Sellify LLC v. Amazon.Com, Inc.

Filing 16

DECLARATION of Robert D. Kaplan in Support re: 11 MOTION for Summary Judgment Notice of Motion.. Document filed by Amazon.Com, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D (Redacted), # 5 Exhibit E)(Kaplan, Robert)

Sellify LLC v. Amazon.Com, Inc.

Doc. 16 Att. 1

EXHIBIT A
TO THE DECLARATION OF ROBERT D. KAPLAN

(TARPEY DEPOSITION TRANSCRIPT EXCERPTS)

Dockets.Justia.com

ANNE MARIE TARPEY 5/26/2010
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ______________________________________________________ SELLIFY LLC, Plaintiff, vs. AMAZON.COM INC., Defendant. ) No. 09CV 10268 (JSR) ) ) CONFIDENTIAL ) )

______________________________________________________ DEPOSITION UPON ORAL EXAMINATION OF ANNE MARIE TARPEY ______________________________________________________ 1:28 p.m. to 3:16 p.m. May 26, 2010 925 Fourth Avenue, Suite 2900 Seattle, Washington

Barbara L. Nelson, CCR Court Reporter
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APPEARANCES FOR THE PLAINTIFF: FRANCIS X. DEHN Attorney at Law Smith Dehn, LLP 381 Park Avenue South Suite 713 New York, New York 10016 FOR THE DEFENDANT: JEFFREY WANG Attorney at Law Friedman Kaplan Seiler & Adelman 1633 Broadway New York, New York 10019

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Whereupon, ANNE MARIE TARPEY, having been first duly sworn, was called as a witness herein and was examined and testified as follows: EXAMINATION BY MR. DEHN: Q Ma'am, would you be kind enough to give the court reporter your full name? A Sure. It's Anne Marie Tarpey. Q Would you spell the last name, please? A T-a-r-p, as in Paul, e-y. Q Could you tell us what you do for a living? A I am the Associates Operations Analyst for Amazon.com. Q And in general, what are the responsibilities of an Associates Operations Analyst? A I enforce the terms of the operating agreement, the Associates Program operating agreement. Q And when you say you enforce them, what's that mean? A Basically, I review associates' accounts and determine whether or not they're in compliance with the terms of the operating agreement and take action if they aren't.
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1 2 3 4 5 6 7 ______________________________________________________ 8 INDEX OF EXHIBITS 9 ______________________________________________________ 1 0 EXHIBIT: DESCRIPTION: MARKED: 11 No. 1 Associates Program Operating Agreement 14 12 No. 2 May 26, '09 e-mail to Cuttingedgedesigns, 22 13 Five Screenshots 14 No. 3 E-mail Chain re: Cuttingedgedesigns Account 46 15 Closure 16 No. 4 April 6, '09 E-mail re: Change to Amazon 51 17 Associates Program 18 No. 5 July 14, '09 E-mail Forwarding Ad 53 19 No. 6 Message, What is the Amazon Associates 58 20 Program? 21 No. 7 Message, Using Terms Other Than Associate 59 22 No. 8 Associates Program Paid Search Traffic FAQ 64 23 No. 9 Excerpts from the Official Amazon 65 24 Associates Blog 25
______________________________________________________ INDEX OF EXAMINATION ______________________________________________________ WITNESS: PAGE: ANNE MARIE TARPEY Examination by Mr. Dehn 4

Q Do you have, under your portfolio, all of the associates, or is it just a segment of them that you're responsible for and then others are responsible for the other ones? A No, I would be responsible for the associates base. Q Roughly how many associates are there? A Over three million. Q Three million? A Mm-hmm. Q Wow. Is the Associates Program what people might generally call an affiliates marketing program? A Yes. MR. WANG: Objection to the form. Q And when the phrase affiliates marketing program is used, what does that mean to you? What are affiliate marketers? MR. WANG: Objection to the form. You can answer. THE WITNESS: Okay. Essentially -- well, I can speak to the Associates Program. And that is that we, in exchange for a person, a member linking from their site to our site and referring customers and sales to us, we pay them a small percentage of the completed sale for that traffic.

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Q Okay. Are you aware that there are other companies out there that do similar things? A Yes. Q And does the phrase affiliate marketing program have a generic meaning to you? A Yeah, I mean, it would follow the same structure that -- general structure as the Associates Program in that they -- the members would be given some sort of compensation for referring traffic. But there are a variety of different models in affiliate marketing. Q Okay. How long have you been employed in your present position? A Since January of 2008. Q Is that when you joined Amazon? A No, I joined in March of 2005. Q Okay. If we could work backwards from 2008, when you assumed your present position, then let me just ask you what position with Amazon you held and, in general, what you did in those positions? A Starting in 2005 or starting in 2008? Q Let's start in 2008 and work backward. A Okay. In 2008, I started in my current role, so I began enforcing for the Associates Program at that point.
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of '98 until 2001, I worked in Amazon customer service. And then, prior to 1998, I worked in a variety of different positions as a case manager for chronically mentally ill adults. Q Do you have a college education? A I do. Q What is the nature of your degree? A I have two bachelor's degrees, one in psychology, one in English and American literature, and then I have a master's degree in ecopsychology. Q In your role in connection with the enforcement of the Associates Program rules, has it been necessary from time to time or has it been appropriate, I should ask you, from time to time to dismiss or discontinue a relationship with an Amazon affiliate? A Yes. Q Okay. And on an annual basis, how many such cases do you get? A I typically enforce against 50 to 75 associates in a week. I'm trying to recollect what my figure was for last year. It was around 3,000 accounts, I believe. Q If you can recall, could you tell me, in general, the bases for terminating an associate? And
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Q Okay. A Prior to that, I worked in the Guarantee Claims Department, and then in the Chargebacks Department within the company. Q And is the Guarantee Claims Department where customers claim that a product was guaranteed and then it didn't work, so I get my money back? Is that what it is? A Essentially, the Guarantee Claims Program secures marketplace transactions for sales that are fulfilled by third parties on our site. If the product is not received or materially different, then we would determine whether or not we would give the customer their money back. And then chargebacks are fairly self-explanatory. We deal with credit card companies over disputed transactions. Q Okay. And did you say that was the role you had when you joined the company? A Yes. Q Okay. What did you do before you became employed with Amazon in 2005? A From 2000 -- let's see. In 2001, I worked for a company who supported downloads of software for about six months. And then I worked for a science education curriculum company. And then, from November

let's take the most common one first and then work our way down a little bit. What's the most common basis to dismiss an associate? A Sure. The biggest one -- area I would say is bidding on our branded terms for sponsored ad placements. And that's followed by people engaging in scumware activity, which would be using a technological means to tag an Amazon session and therefore get credit for it without the end user being aware that it's occurring. Another area is personal orders, where an associate would place orders through their tagged links, which they're not permitted to do. And then there's also people who register domain names with our terms in them. Those are -- really, those are the big four. There are a variety of lesser offenses. Q Okay. The first one you mentioned, bidding on our terms, is that something that only became against the rules last year, when you changed the rules with the Associate Program? A No, it was -- I'm not sure when it was implemented prior to my arrival in the position, but that was an area that was prohibited when I arrived in 2008. Q I see. And when you use the phrase our

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terms, are you referring to Amazon's trademarks? A Yes. Q Are there terms that are forbidden for this purpose beyond the ones that would be registered trademarks? MR. WANG: Objection to the form. THE WITNESS: The only ones that are specifically expressed in the operating agreement are proprietary terms, but we do include a component in the operating agreement which says that they need to respect the intellectual property rights of others. Q So in this first category you gave me, when you said bidding on our terms, okay, are you including in that when people bid on keywords which are the intellectual property of others, as well as Amazon, or are you strictly talking about Amazon at this point? A Just Amazon. Q Just Amazon, okay. All right. Since these four categories are the big four that you mentioned, is it then -- well, would it not be part of the big four -- would it be a fairly unusual occurrence for there to be a termination because someone else's intellectual property was used? MR. WANG: Objection to the form. THE WITNESS: I would not say that it's
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on products that we offer. So specialty sites would be able to say, you know, I can recommend this particular product and that kind of thing and offer their own opinions. Q When an associate creates a link to Amazon, does the associate create that -- is the associate responsible for the content of the actual link? A Yes and no. They could build their own text link, but we offer a variety of link-building tools via Associates Central, and that would be -- the link content would be provided by us. Q Do associates ever put -- do they ever create and put ads for Amazon on their Web sites? A I'm not sure what you mean by ads. Do you mean like actual links and the banner ads and things like that? Q Well, it could be in the form of banner ad. I guess here's my question, though. You mentioned the fact that associates could create text on a Web site, which would link to Amazon? A Right. Q So there would be the part that we generally consider the text, the content of a Web site. It could have a little underscore and a link to Amazon, I take it?
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rare, but it's less frequent than this. Q Do you have any idea roughly how many times that would occur during a year in -- let's say the last year and be the basis for termination? A I'm going to say anywhere between 10 to 25 accounts. It's hard for me to speculate without my record in front of me. Q Uh-huh. Ms. Tarpey, what's the general purpose of the Amazon Associates Program? A Well, it's to obviously increase traffic to the Amazon site by encouraging others to provide links to their customers to come to Amazon to purchase products or services. Q And maybe this is a little harder to understand for a person who's not connected, or a lay person like me, but why would a big company like Amazon find it necessary or advisable to get third parties to drive traffic? Someone like me might think, They haven't heard of Amazon already? MR. WANG: Objection to the form. I think this may be beyond the scope of Ms. Tarpey, but if she has an answer, she can give it. THE WITNESS: I don't know why -- what the initial rationale would be, but I do know that there is value in third parties offering opinions and advice

A Yes. Q Okay. But then many Web sites also feature various materials that we might think of as more traditional web advertising, in the form of a banner or a logo or some other thing. Do some associates use those sorts of mechanisms to link to Amazon, as well? A Yes. Q Under the operating agreement, are associates permitted to use Amazon's trade names and/or logos as part of their links? A We have a very specific list of trademark guidelines, as to how associates can use our logos, things like that. We do have -- the banner ads that we provide on the site sometimes include our logos and things like that, but in terms of just kind of cutting and pasting a logo from the Amazon site, that's generally not permitted. Q Okay. Well, I guess my question is are they allowed, under some circumstances, to use Amazon's trademarks and logos, assuming they follow whatever rules you impose on them? MR. WANG: Objection to the form. THE WITNESS: If their use follows the trademark guidelines, then yes, they would be permitted to use them.

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Q Okay. Other than the rules imposed in the operating agreement, do affiliates have the freedom to create the content of the material surrounding the links to Amazon? A Well, they would have control over their own site content. MR. DEHN: Okay. Let me do this. I don't have another copy of this, Jeff. I just want to see if the witness can identify this. MR. WANG: Okay. MR. DEHN: Let me have it marked. Would you mark this as Tarpey 1, please? (Marked Deposition Exhibit Number 1.) Q Ms. Tarpey, I have a document that was presented to us as Amazon, or AMZ pages 21 through 30. It's headed Associates Program Operating Agreement. And I just want to show this to you and see if this is, in fact, the agreement that governs the Amazon associates? A Yes. Q Okay. Ms. Tarpey, how specific can associates make a link to Amazon's web page? In other words, if they want to key in on a certain page featuring certain types of merchandise, can they do that, as well as just keying to the Amazon.com home
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accounts that don't have that dash-20 on them. Q Okay. Other than -MR. WANG: By the way, I'm sorry to interrupt you. Just, again, as we're talking about the ins and outs of the Amazon site and its program, I'd just like to make sure that we mark the deposition as confidential. MR. DEHN: Absolutely. Q Other than the dash-20 tag, how many characters is the -- is it proper for me to call that the associate ID? A I think that's -Q Okay. How many characters is the associate ID? A It can really vary. I would say that it really depends on the kind of associate ID that they've created, because each associate store ID can also create subtags or tracking IDs, and so it really depends. It widely varies. Q Okay. A It can go anywhere from, you know, one to three characters to up to 15, I would say. Q I see. Now, other than -- other than the obvious differences, now obvious that you discussed them, but now the obvious differences in terms of the
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page? A Yes. Q And is the link created by the -- I'm sorry, back up. I think you said that a link to Amazon could be created either by the associate or they could use, I guess, a template furnished by Amazon; am I correct? A Yes. Q Okay. If the -- let's assume that an associate uses a link furnished by Amazon. Is it possible that other Amazon associates, out of the three million or so you mentioned, would use an identical link to get to Amazon? MR. WANG: Objection to the form. You can answer. THE WITNESS: It wouldn't be -- well, let me put it to you this way. It wouldn't be identical if the associate in question would like to get paid for it. The link would have to vary the associate tag that's included in that URL in order to receive credit for the sales. Q I see. What does the associate tag look like? A The basic format of it would be a series of alphanumeric characters and then a dash-20 after it for U.S. and Canadian accounts. There are some older

associate ID, would it be possible for two different associates to have an identical link to Amazon that's been furnished by Amazon? MR. WANG: Objection to the form. THE WITNESS: I would say no, because the tracking IDs are all unique. The store IDs are all unique to ensure that the proper associate would get credit for it. There can't be duplication. Q No, no, that's what I said. Other than that. Other than that associate ID. I thought we were talking about the -- you said tracking ID. I thought I was referring to the same thing. A Right. Q Other than that tracking ID, is it possible that two or more associates could be using the same link to Amazon, furnished by Amazon, for the purpose of getting it to the Amazon site? MR. WANG: Objection to the form. THE WITNESS: Yes. Q Okay. A They could link to the same -- a same product with a different tag in the URL with the same browse page with the same -- or with a different tag. Q Okay. So for example, if let's say, you know, two different associates, both wanted to link to

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particularly on behalf of Amazon.com, which is her purpose here. But if you'd like to ask her personal opinion, then I'd ask that you phrase the question that way. MR. DEHN: No. Well, I don't really want Ms. Tarpey's personal opinion, but what she says is I'm the enforcement person. Q And I think your testimony, in fairness, is that, you know, we would enforce against someone if we think it's infringement; we would not enforce if we think it's fair use. So I guess I'm asking what is your understanding as to what fair use is? MR. WANG: I'm going to object to the question and instruct you that, to the extent that that belief is informed by discussions you had with Counsel, which you say you have from time to time with respect to fair use, you should exclude that from your answer. THE WITNESS: To be honest, I leave it to Counsel to determine what is fair use and what is -Q Fair enough, okay. Approximately how many times have you looked into the issue of whether a keyword purchased by someone else, by an associate, is either infringement or a fair use? A As I said before, I'm not certain how many
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have any sense as to what percentage of those fees were derived from keyword bidding or other paid search on search engines? A No, I really could not even give you an idea. Q Did anyone at Amazon, other than legal counsel, discuss with you the reasons why the policy was changed in this fashion? A I was informed of the decision after it had been made, and my recollection is that the primary reason was the associates were cannibalizing our own sponsored link efforts, and that -- and we decided that we wanted to take over the entirety of the sponsored links traffic, rather than leave a portion of it to the associates. Q Okay. Is it, to your knowledge, is a sponsored link purchase a significant strategy of Amazon's at this time? MR. WANG: Objection to the form. THE WITNESS: I am not privy to any of those discussions, so I can't offer an answer. Q In this document, in the first page of this document, Tarpey 2, the third full paragraph, it says, Please stop all paid search advertising activity within five business days of the date of this e-mail
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-- the number of times. It's been fairly infrequent. In terms of the keyword bidding specifically, I'm sorry, I can't come up with a more specific answer. Q Prior to Amazon's adoption of the change in its associates policy, so that it would no longer pay referral fees for purchases resulting from sponsored links in keyword purchases -- I'm sorry, let me start again, because I want to use the phrase. In the second paragraph in Tarpey 2, it says, Associates are not permitted to engage in keyword bidding or other paid search on Google, Yahoo, MSN, and other search engines and their extended search networks to send traffic to our site. Prior to the time when this policy was adopted, was keyword bidding or other page search on these search engines a common way for associates to drive traffic to Amazon? MR. WANG: Objection to the form. You can answer. THE WITNESS: Yes. Q Do you have any idea what the -- you know, what the proportion would have been? I'm sorry. A Sure. Q Let me relate that to something. Of the referral fees that were paid to associates, do you

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and discontinue any further activity of that nature. Do you have any knowledge as to whether that paid search advertising activity was stopped by the recipient of this e-mail, Cuttingedgedesigns? A It was not. Q And how did you determine that? A I received another e-mail in July stating that the ad was still up. Q As the enforcement person, is it your practice, typically, to look into -- or someone working with you, is it your practice to look into, you know, what's going on after the five days, a five-day period passes? A Well, my typical enforcement process is to review a variety of reports for offenders, but they're based on traffic, and it's quite often just the people that are driving the most traffic that I see. I follow up on other cases as and when I can. Q I see that the person who signed this particular e-mail is David, Associates Account Specialist. Is he someone who works with you? A Actually, it's my signature block. Q Okay. A And the reason why I adopt pseudonyms for notices is, as I'm sure you can understand, when

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you're handling people's money, they can be quite aggressive and angry. And the person who was in this role previously had some issues with signing her true name and having people come to our offices. Q Quite understandable. Do you recall, then, at the time that -- at the time that this message was sent, how many open enforcement files you would have had at that particular time? A As I said, I usually enforce between 50 and -- again, 50 to 75 accounts would be including warnings and closures, so I'm not certain how many would have been available for follow-up at that point, if you understand what I mean. How many cases I hadn't 100 percent confirmed had been resolved. Because, to be honest, most people, after their first warning, will desist the activity, so there's no need to follow up again. You know, provide them with a certain grace period beyond the five business days that are stated in the e-mail, and if they come to my attention again, I will close them, as in this case. Q Okay. So is it fair to say that it would not normally be your practice to, say at the end of the five days, to try to search yourself and just see what comes up? A I would say more often than not, no, I don't
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from? A Well, they were from me doing the actual search. Q Oh, so you did the actual search -A Yes. Q -- at the time that you were -- or around the time that you sent this e-mail to Cuttingedge? A Yes. Q Okay. A I would have captured this information prior to sending the notification. Q Okay. Thank you. I should have asked you, at the time that you prepared this e-mail to Cuttingedge, could you just tell us generally what, if anything else, you did in -- you know, in connection with preparing this e-mail or otherwise dealing with Cuttingedge? A Well, first of all, I document whatever offense has been brought to my attention, and then I'd also check to see if they were related to any prior offenders for the same activity. Q How do you do that? A We have a variety of different proprietary tools to determine whether or not accounts are related by a variety of different criteria.
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get the opportunity to do that. Q You don't get the opportunity because your workload is heavy and -A Yes. Q Okay. Just directing your attention back to Tarpey 2, I was under the impression that the pages here that were provided were something that accompanied this particular e-mail, but I could be wrong. Could you look at those pages and let me know whether, in conjunction with the page one, which is the e-mail that you sent to Cuttingedgedesigns and MSN.com, whether you supplied any of this other documentation to Cuttingedge? A Documents -- pages two, three, four, five, and six are all internal documentation that I did not attach to notifications sent to the associate. Q Okay. But this would -- so this would have been documentation that would have been in your file? A Precisely. Q Okay. And where would you have obtained this documentation? A These are screenshots of the ad itself and -- as well as a screenshot of the internal tool I use to identify who has tagged a particular session. Q And do you know where these screenshots came

Q Ms. Tarpey, do you have any idea, following the adoption of the new policy regarding paid search on search engines, do you have any idea of approximately how many associates you discovered to be in violation of that particular policy? A As a ballpark figure, about 150 within the first two to three months. Q Did you start enforcing that policy immediately upon the adoption of the new -- of the rule change? A Yes. Q Okay. And how did you typically determine -- this case with Cuttingedge, obviously, it was a complaint made by my client, but what was the typical way in which you discovered that people were still using paid search? A I worked closely with our own sponsored links team and used their reporting, which would show associates who had referred traffic from search engines within that day and what keywords they had used to do that. And then I would go out and search for those specific terms to determine whether or not there was an actual sponsored ad placement, because there's no way to differentiate between what was free traffic in the free search results and what was

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Tarpey 3, please? THE WITNESS: Before we move on, do you mind if I take a break and go to the rest room? MR. DEHN: Please do, please do. (Recess taken from 2:31 to 2:34 p.m.) (Marked Deposition Exhibit Number 3.) Q Ms. Tarpey, I'll represent that Tarpey 3 consists of pages labeled AMZ 8 through 11, and furnished by Amazon's Counsel. Apparently the first three pages consist of an e-mail thread. Do you recognize this thread? A I do. Q It appears that the -- well, I see three different mentions of different dates here. A Oh. Q The May 26th of 2009 seems to be the earliest one, and that appears to be the same as we saw in the previous document, Tarpey 2; is that correct? A Yes. Q Okay. And then there was another message that was sent on Tuesday, July 14th. Do you see that, beginning on the bottom of page one? A Yes. Q Did you send that message, as well?
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this point it also included changing their segment to -- from whatever they had stated on their application to the associate's fraud segment, so they could be easily identified as fraudulent associate. Q Okay. And then there appears to be a third message here beginning on page one, September 9th, 2009. Was this a message that you sent to Cuttingedge, as well? A They -- let me clarify. So this message sent on September 9th included the notices that I sent on May 26th and July 14th. Q Okay. A And it was re-sent in response to the inquiry from Cuttingedge on page ten, or also it says page three at the bottom of the page, when he asks, Why is my account closed, with four question marks. Q Was that the sum total of his message to you, Why is my account closed? A Yes. Q All right. And I don't think you answered this precise question before. Over let's say the past year -- I'm sorry, strike that. In your experience at Amazon.com in this particular position, how many accounts did you close or suspend because associates had purchased
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A Yes. Q And what was the occasion for sending that message? A I had received notice that the ad was still up on -- I can't remember. It was actually -- I think it was either the day before or the day of the notice being sent to Cuttingedgedesigns in July. Q And from whom did you receive that notice? A From Kathy Sheehan, I believe. Q And who's Kathy Sheehan? A She's our Senior Corporate Counsel. Q Okay. And so what action did you take on July 14th of 2009? A I actually closed the associate's account and withheld payment of all unpaid referral fees. Q Do you recall how much that was, approximately? I probably have a document, but what do you recall? A I think it was right around $600, but I'm not certain. Q Okay. Other than withholding that amount, what else, if anything, does closing an associate account consist of? A It includes marking the account as closed and marking it not to be paid. And I believe that at

trademarked terms belonging to someone else? A Had purchased trademarked terms for use as -Q As keywords? A As keywords? Q Yes. A I would say less than five. Q Had other complaints -- in your experience, had other complaints come to your attention from people saying that one of your associates is out there using my trademark as a keyword? A Yes, I do -- I recollected at least two other occasions where we've received objections to someone using the trademarked term of another. Q Okay. But the total number of objections would be less than five, do you think? MR. WANG: Objection to the form. THE WITNESS: I would say that the total number of account actions have been less than five. Q Okay. Do you have a rough estimate as to how many objections, whether deemed significant enough to warrant taking action on your part or not, what the rough total number of objections would have been? A I would simply be guessing. I would say maybe 20. It's very hard for me to say, because the

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sheer volume of issues that I receive, to ballpark it any better than that. Q Okay. But in comparison to the -- I think you said you've got 50 or 75 cases you're considering per week, so in comparison to that, it would be a very small number; would that be fair to say? A Yes. Q I noticed in Tarpey 3, there was -- in one of those, I think it was the July message, there was a statement that, if you want, you can reapply to reopen your account if you promise to obey the rules, something along those lines? MR. WANG: Objection. I believe it's -Q Does that capture the substance? MR. WANG: Objection to the form. THE WITNESS: It's actually included in the message on September 9th. Q Ah, I'm sorry. I thought it was part of the July. Okay. A No, it is not included in the July message. Q Okay. I'm sorry. All right. But in substance, you informed Cuttingedge that it could, if it promised to obey your rules, it could, in fact, reapply to reopen an account; correct? A Yeah.
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A It's a screenshot of the results from a particular command line tool. It's not -- I don't actually hold on to this as an independent record. I was using this to show what the status of the account was and the annotation that I had made on it at the time of closure. Q Okay. Thank you. All right. Now, going back to Tarpey 4, do you recognize this document? A I do. Q And what is this? A This was the notification sent to associates to let them know that we were going to be no longer paying them for traffic referred from paid search placements directly to our site, that sent users directly to our site. Q And I think we began to discuss this before, but we ended up discussing something else, so I wanted to come back to it. Do you have an understanding, from any of your colleagues at Amazon, why this particular change at that time applied only to U.S. and Canada? A I am not certain. Q Has anyone ever told you what they believed the reason was? A Well, I could speculate that the reason
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Q Okay. To your knowledge, has Cuttingedge reapplied to open a new account? A Not to my knowledge. MR. DEHN: Would you mark that as Tarpey 4, please. (Marked Deposition Exhibit Number 4.) Q Would you take a look at that, ma'am? A Sure. MR. WANG: Just to be clear, for the record, I think that AMZ 11 was included as part of Tarpey 3, but -MR. DEHN: Ah. MR. WANG: I believe that is a separate document. I don't have any other objection or comment beyond that. Just to make it clear for the record. Q Okay. Let's clear up that problem. If you could just go back to Tarpey 3 for one second? A Absolutely. Q The last page -A Yes. Q -- appears to be a screenshot of some kind? A It is. And this is how the associate's information appears in one of our internal tools. Q Okay. So this is an internal document from your files, as well; is that correct?

would be -MR. WANG: I don't think he wants you to speculate. THE WITNESS: Okay. Q Have you ever had any conversations with anyone about the reason behind it? A No. Q Mr. Wang is correct that I don't want you to really speculate, but have you seen any evidence or any information suggesting a reason why the change was limited to U.S. and Canada? MR. WANG: Objection to the form. THE WITNESS: Not to my recollection. Q Okay. And was this document sent to all Amazon associates? A That's my understanding, yes. MR. DEHN: I'd like that marked as Tarpey 5, please. (Marked Deposition Exhibit Number 5.) Q Ma'am, have you ever seen this document before that's marked as Tarpey 5? A I believe I saw it yesterday. Q Have you ever -- directing your attention specifically to the screenshot, have you ever seen that document showing the apparent results of a Google

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found out about this was from Counsel, you should exclude from your answer discussions you had with Counsel. THE WITNESS: Sure. The primary issues, from my perspective, were the fact that he was using trademarked terms to display his ad and the using -sending users directly to Amazon from that ad. Q Right. So those are the two that we've discussed at some length. Were there any other issues with respect to these scammer ads? A Not that I'm recollecting. Q Okay. Other than with Counsel, did you have any discussion with colleagues at Amazon regarding the content of these ads? A No. I mean -- wait. I was on the thread with Eric Herrmann and Counsel about it, but all the conversations took place on that thread with Counsel. (Marked Deposition Exhibit Number 6.) Q There's Tarpey 6. A Okay. Q Ma'am, Tarpey 6 is a document provided to us by Amazon's Counsel with the number AMZ 755. The first sentence -- well, I guess this document contains -- it contains a question saying, What is the Amazon Associates Program? And the answer is, Launched in
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all. MR. WANG: Very fancy. MR. DEHN: Yeah, well, some fancy Manhattan guy had to run this off your DVD, and I told him to use cheap paper, but he didn't listen. So this is Tarpey 7. THE WITNESS: Okay. Q Ma'am, is this also -- this document, did this also come from the FAQ that you referred to? A Yes. Q Okay. Are you aware of any reason why Amazon would instruct its associates not to call themselves affiliates? A I'm not sure of the precise rationale behind it. Q Has anyone ever discussed that with you at all? A No. Q Would -- the for example statement here, it says, For example, you should refrain from using words such as network, affiliate, partnership, reseller, alliance or relationship agreement or any other words which may lead one to confuse the program with any other advertising initiatives. Would -- suppose an associate did use one or
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1996, Associates is Amazon.com's affiliate marketing program. Is this -- is this information that's furnished to associates, ma'am? A Yes. Q Okay. And in what form? This is sort of -the appearance of this is sort of computerized style, but in what form do people generally get this? A It would be in an FAQ available on Associates Central. Q Okay. And what is Associates Central? A That's the interface that members use to view help content, generate links, view their reports, et cetera. Q Okay. That sentence, that first sentence that I read, Launched in 1996, Associates is Amazon.com's affiliate marketing program, is that an accurate statement, ma'am? A Yes. Q Okay. That's all I have for that one. Number 7. (Marked Deposition Exhibit Number 7.) MR. WANG: This is on heavy stock paper. MR. DEHN: Yeah, because you know what? I gave you my original and then I made copies. That's

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more of those terms to describe themselves. Would that be justification for any kind of enforcement against them? A Well, they are, per the operating agreement, they are responsible for accurately describing their relationship with us. So that would be a violation of the operating agreement. Q Have you ever taken enforcement action against any associate for using one or more of these terms to describe themselves? A Not for one or more of these terms, but I have taken action against accounts that have misrepresented the relationship with us by not making the relationship between the two of us clear. Q Okay. But if someone -- for example, if an associate referred to himself as an affiliate, you wouldn't do anything to him, would you? MR. WANG: Objection to the form. THE WITNESS: I guess I've just never seen it. I mean, theoretically I would, as a violation of the operating agreement. Q Okay. But there hasn't been an instance in which you have taken an enforcement action against anyone for describing themselves in one of these terms, is there?

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A Not that I -MR. WANG: Objection to the form. Sorry. THE WITNESS: Sorry. Not that I recollect, no. As I said, I've taken action for those who have not clearly represented the relationship by -Q Could you clarify that a little bit? A Absolutely. Q I mean, if it's not by use of one of these terms, how has someone, in your experience, misstated the nature of their relationship with Amazon and then been enforced against as a result? A Well, wait. Actually, it would be a related term. They'd say something like partnered with Amazon.com, or just failed to mention that their content and the links that they provide on the site are not to Amazon. And they -- because they're required to specifically call out that they are in association with Amazon.com, and in essence confusing customers as to who is the source of the materials that are being displayed on the site. Q Yeah, I want to go back to something you just said. A Sure. Q You said something about -- I'm not sure what you were getting at, but I think you said that
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Q Okay. Whatever the prescribed statement is? A Exactly, exactly. MR. DEHN: Okay. We're up to Number 8. (Marked Deposition Exhibit Number 8.) Q I'll show you what we marked Exhibit 8. A Sure. Q Ma'am, this document is numbered AMZ 18 and 19, provided by Amazon's Counsel. A Okay. Q Ms. Tarpey, do you recognize this particular document? A I do. Q And what is this? A This is a series of FAQs based on the operating agreement changes of May 1st, 2009, to prohibit paid search placements sending users directly to Amazon. Q Was this document sent to people in conjunction with your memo that we identified earlier that was sent to all the Amazon associates? A I had thought that a specific URL was included. It's actually -- you can't really see it, but on Tarpey 4, in the first paragraph, there's actually, in the last sentence, there's, Please visit this page, underscore, for FAQs.
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they would have to make clear that they were associated with Amazon? MR. WANG: Objection to the form. Q Is that right? A At one point, we had a logo that people would use to say "in association with Amazon.com." And the operating agreement requires a specific statement now, and I'm not sure of the exact language, but that that language be included on the Web site to indicate that they are a member of the Associates Program. Q I see. So if I had a Web site, for example, and I -- you know, on my web page, I had something about a great new toaster oven. A Mm-hmm. Q And by the way, it's available everywhere. You can get it at Amazon, underscore, and then they could click on that link and go right to Amazon. Are you saying they wouldn't be allowed to do that unless there's somewhere on that Web site they indicated they were an Amazon associate? MR. WANG: Object to the form. You can answer. THE WITNESS: They should. They should have an association with Amazon on their page.

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Q Yes. A And this would have been the page that was linked there. Q Okay. Great. Tarpey 9, please. (Marked Deposition Exhibit Number 9.) Q Okay. Ma'am, do you recognize this document, Tarpey 9? A I do. Q For the record, this is a document originally marked S-47 through S-53. It came from Plaintiff's document production. What is this document, ma'am? A This looks like a capture of the Amazon Associates Blog postings. Q And when it says the Official Amazon Associates Blog, what's official about it? A The entries are posted by our marketing team. Q And does this document consist of -- or, well, let me rephrase the question. Does this document contain a number of tips to associates regarding how to effectively function as associates of Amazon? MR. WANG: Objection to the form. THE WITNESS: This essentially notifies them

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