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. 5

EXHIBIT E
TO THE DECLARATION OF ROBERT D. KAPLAN

(LANDAU DEPOSITION TRANSCRIPT EXCERPTS)

Dockets.Justia.com

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------SELLIFY LLC, Plaintiff, -againstAMAZON.COM, INC., Defendant. -------------------------------------May 24, 2010 10:00 a.m. No. 09 CV 10268 (JSR)

Videotaped deposition of NATHANIEL LANDAU, taken by Defendant, pursuant to Notice, held at the offices of Friedman Kaplan Seiler & Adelman LLP, 1633 Broadway, New York, New York, before Joseph R. Danyo, a Shorthand Reporter and Notary Public within and for the State of New York.

HUDSON REPORTING & VIDEO, INC. 124 West 30th Street, 2nd Fl. New York, New York 10001 Tel: [phone] New York 212-273-9911 Fax: [phone] New Jersey 732-906-2078

Hudson Reporting & Video Nationwide 800-310-1769

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APPEARANCES: SMITH DEHN LLP Attorneys for Plaintiff 381 Park Avenue South Suite 713 New York, New York 10016 By: FRANCIS X. DEHN, ESQ.

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FRIEDMAN KAPLAN SEILER & ADELMAN LLP Attorneys for Defendant 1633 Broadway New York, New York 10019-6708 By: ROBERT KAPLAN, ESQ. Also Present: HENRY MARTE, Videographer oOo

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THE VIDEOGRAPHER: This marks the beginning of videotape number one in the videotaped deposition of Mr. Nathaniel Landau in the matter of Sellify LLC versus Amazon.com filed in the United States District Court for the Southern District of New York. This deposition is being held at Friedman Kaplan Seiler & Adelman, 1633 Broadway, New York, New York on Monday, May 24, 2010 at approximately 10 a.m. The court reporter is Joe Danyo. The videographer is Henry Marte. We are both here on behalf of Hudson Reporting & Video. Would counsel please identify themselves for the record. MR. DEHN: Frank Dehn, Smith Dean LLP, for the plaintiff. MR. KAPLAN: Robert Kaplan, Friedman Kaplan Seiler & Adelman, for the defendant. THE VIDEOGRAPHER: The time is 10:01 a.m. We are going off the record.
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IT IS HEREBY STIPULATED AND AGREED, by and 2 between the attorneys for the respective parties 3 hereto, that the sealing and filing of the within 4 deposition be, and the same hereby are, waived; 5 and that the transcript may be signed before any 6 Notary Public with the same force and effect as 7 if signed before the Court. 8 IT IS FURTHER STIPULATED AND AGREED that 9 all objections, except as to the form of the 10 question, shall be reserved to the time of trial. 11

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Landau (Discussion off the record) THE VIDEOGRAPHER: The time is 10:01 a.m. We are going back on the record. N A T H A N I E L L A N D A U, having been first duly sworn by Joseph R. Danyo, a Notary Public for the State of New York, was examined and testified as follows: EXAMINATION BY MR. KAPLAN: Q. Good morning, Mr. Landau. My name is Bob Kaplan. I represent Amazon.com in this lawsuit. I am going to be asking you some questions this morning about the expert report that you had submitted in this case. If there is anything I ask you that you don't understand my question, just please ask me to clarify and I will be happy to do that. If you answer, I will assume that you have understood my question. Is that okay? A. Yes. Q. Thanks. I would like to start by getting your educational background. Can you tell me where you went to college? A. Sure. I went to Vassar College and I graduated in 1996.

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Landau A. I haven't thought about that eventuality. That would be significantly trickier and may or may not be possible. Q. So that is not what you mean when you say that a filtration mechanism would enable it to determine whether a link originated from a particular source. If I understand you correctly, you mean that if someone clicked through? A. Correct. Q. You would then know that that traffic came from a particular link? A. That's correct. Q. Can you just describe what that mechanism would do that you are suggesting is possible? A. Certainly. You could look within a URL for a particular term or set of terms which in this case would be the affiliate ID. You could couple that with refer information to know that it came from say Google, although you wouldn't necessarily need to do that to be able to satisfy Mr. Dehn's client's requests, and once you found that piece of information, which is the
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Landau Q. Have you ever created such a filtration mechanism? A. I have. It is not exactly the same, because I have not managed affiliate programs before, but I have created many products that have parsed pieces of URLs and then created some customized experience based on data that is in that URL. Q. So you have created mechanisms that make use of information in the URL for business purposes unrelated to severing a link or suppressing an advertisement? A. Correct. Q. Now am I right that there are other companies out there besides Amazon.com that have advertising affiliates? A. I believe that is true. Q. Do you know any companies that do that? A. Off the top of my head, no. Q. Are you aware of any companies at all that use the type of filtration mechanism that you describe for the purpose of addressing inappropriate advertisements or links?
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Landau affiliate ID in that URL, Amazon servers could create any number of effects to put either a different web page or different messaging in front of the consumer who clicked on that link. Q. So what would happen is if you clicked on that link, even though the URL said www.Amazon.com you would be taken to some other page selected by Amazon, is that right? A. Correct. It would still be -- my guess is that it would still be an Amazon.com. Yes. It is not for me to say what they would do. Q. Now that paragraph also says that it is your opinion that Amazon either has or should be able to implement a filtration system. Is it your opinion that Amazon already has such a mechanism? A. No. Q. So what do you mean when you say that either they have it or they should be able to implement it? A. I don't know if they do or not, so they might very well have it. I don't know. If they don't have it, they could certainly build it.

Landau A. No. Q. Do you know if any such company does that? A. No. Q. So it is not part of your opinion that such a filtration mechanism is the standard in the industry for addressing inappropriate links to a company's website? A. That's correct. I'm not an expert in this. Q. Now you said that Amazon could develop this mechanism that would cause someone who clicks on a sponsored advertisement to land somewhere other than the ordinary Amazon page. Just so I am clear, you are not saying that this mechanism would cause the advertisement itself not to appear, is that right? A. That's correct. Q. Who actually serves the advertisement when the viewer sees it? Who is actually serving that ad? A. It could be in many places. In the examples that I have seen it was on Google, which means that Google and Google AdWords was serving

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Landau that ad. Q. Let me ask the question more specifically. Let us assume that the person buying the ad bought it from Google, bought a keyword on Google, and when you typed a search using that keyword into Google, this sponsored ad comes back. In that set of facts, where would -who would be serving this sponsored ad? A. Google would be serving that sponsored ad. Q. So is it correct that Google could take that ad completely off the Internet? A. They certainly could. Q. They could just stop displaying that ad? A. If they had reason to. Q. Yes. I am asking you as a technical matter. It would certainly be possible for Google to take that ad off the Internet? A. Yes. Q. Do you know if Sellify, the plaintiff in this case, asked Google to stop displaying the ad? A. I don't know.
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Landau some variant thereof as a keyword on Google to display an ad that you thought was disparaging of Zerve, would you ask Google to stop displaying that ad? A. Most likely. Q. Would that be a reasonable thing to do in your opinion? A. I believe it would. Q. Would it be a prudent thing to do in your opinion? A. Absolutely. Q. If someone purchased a keyword on Google to display an ad that disparaged Sellify, the plaintiff in this case, do you think that it would have been reasonable for Sellify to ask Google to stop displaying that ad? MR. DEHN: Bob, I have given you some latitude, but I object to this question. It has nothing to do with his opinion. MR. KAPLAN: You can object. A. I personally do think that is reasonable. Q. You think that would have been a prudent thing to do?
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Landau Q. Do you know if they contacted Google at all? A. I don't know. Q. Do you have any experience of asking Google to remove an advertisement or a link that you thought was inappropriate for some reason? A. No. Q. Do you have any experience asking Google to remove an advertisement for any reason at all? A. No. Q. Do you know what Google's policy is if they receive such a request? A. I do not. Q. Do you know whether Google has a policy with respect to advertisements, for example, for counterfeit goods? A. I don't know. Q. Do you know if they have any policy with respect to ads that disparage a competitor if that is called to their attention? A. I'm not familiar with Google's policies. Q. If someone purchased Zerve.com or

Landau A. I do. Q. It's an entity that buys the keyword that generates the ad in this situation, isn't that right? A. Yes. Q. The company that buys the ad could also cause it to be taken down, isn't that correct? A. Yes. Q. Do you know what company it was in this case that purchased the Google ad that is at issue? A. I do not. Q. Have you ever heard of a company called Cutting Edge Designs? A. No. Q. Do you know whether at some point Sellify learned that it was Cutting Edge that was buying this advertisement? A. I don't know. Q. So I take it you don't know whether Sellify ever asked Cutting Edge to take the ad down? A. No.

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Landau Q. If someone purchased Zerve.com again as a keyword on Google that generated an ad that you thought disparaged Zerve and you knew who had purchased that ad, would you ask that company to take down the ad? A. Most likely. Q. Do you think that would be a reasonable and prudent thing to do? A. I do. Q. Do you know if there was any reason why Sellify couldn't ask the company that purchased the ad to take it down? A. I don't know. Q. Now in this situation that we have all been discussing, which is where some entity buys a Google keyword that generates an ad that plaintiff believes is disparaging of its business, if Google did in fact stop displaying the ad, that would not have any impact on Google's other customers or users, would it? A. Not to my knowledge. Q. It would have no impact on the experience of someone who was running a Google search for OneQuality.com other than the fact
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Landau could also limit it to only sessions originating from Google, for example, but for it to be 100 percent effective, it would need to be every link going to the Amazon site. Q. The whole point of the filter is to check all new Amazon web sessions as they are initiated to see if it comes from this improper source, is that correct? A. That's correct. Q. Do you have any sense of how many sessions are initiated on Amazon every day? A. I do not. I imagine it is billions, but I don't know. Q. And what percentage of those billions do you think came from this Cutting Edge advertisement? A. An incredibly small percentage. Q. But even though only an incredibly small percentage of these billions of searches originate from the offensive ad, all of the searches would have to go through this filter? A. That's correct. Q. Now you have already, it is in your report that you have no knowledge of Amazon's
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Landau that that offensive ad would not appear, is that correct? A. To my knowledge, that's correct. Q. And it would have no impact of any kind on the millions or billions of people running other Google searches? A. Correct. Q. Similarly, if Cutting Edge, the company I will represent to you who bought this ad, had taken it down, that would not have any impact on the experience of someone running a search for OneQuality.com except that the ad would no longer appear, is that right? A. I believe so. Q. If Amazon created a filtration system such as the one that you say is possible, any time any Internet user clicked on any link to Amazon.com, that session would have to run through that filter, isn't that right? A. That's correct. Q. It is not just sessions originating from the problematic ad, it is sessions that originate anywhere on the Internet? A. That is one way to build it. You

Landau Internet operations. But do you know whether running this filter mechanism on every web session might affect the speed with which an Amazon page is delivered to a user? A. It might. Q. Are you familiar with the term "latency"? A. Yes. Q. Can you describe what latency is? A. Latency is the amount of time that transpires between a request being served and a response to that request. Q. So creating this filtering mechanism as a solution to the problem of this single bad advertisement might increase latency for all of the billions of Amazon users, isn't that correct? A. Yes. Q. Based on your experience in Internet commerce, would you agree that maximizing the speed at which a page is delivered minimizing latency is important to a web retailer like Amazon? A. Yes. Q. Do you know whether the filtration

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Landau mechanism would have any other effect on Amazon's Internet operations? A. I don't know if it would, but it is possible that it would increase their need for new servers and possibly other databases as well. There is potentially a large capital outlay that they would need to have to support this. Q. Now do you have any estimate as to how many links there are around the Internet to Amazon? A. I would never presume to estimate that, but it is quite large. Q. It would be many millions, would you assume? A. Yes. Q. If among those many millions of links if any other one was inappropriate for any reason and you wanted to use this same mechanism, you would have to create a filter with respect to that link as well, isn't that right? A. Yes. Q. So, if you applied this same solution to the problem of inappropriate links and there are in fact among the many millions of links
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Landau and then had a link to Amazon.com. How is that -- why is that a useful thing for Cutting Edge to do from their point of view? A. In my opinion? Q. Yes. A. It is creating the impression that a legitimate business is in fact a scammer and that you should buy from this other company that is not a scammer. Q. How does that help Cutting Edge? A. It helps them by incenting more people to click on their affiliate link. Q. How does that help them? A. Because if somebody ends up purchasing through that link, they would get paid a commission as part of the Amazon affiliate program. Q. So in your opinion the motive for doing this is to get people to click on the link, buy something on Amazon, thereby generating a commission? A. Correct. Q. Do you know whether Amazon told Cutting Edge that it would cancel its account if
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Landau others that are inappropriate, that would compound the latency problem even more, wouldn't it? A. Potentially. There are efficiencies of scale, but, yes. Q. Do you know whether Amazon became aware at some point of the content of this disputed advertisement? A. I don't know. Q. Do you know what steps, if any, Amazon took with respect to the ad? A. I believe that they disabled the affiliate account in question. Q. Let me back up for a second. A company like Cutting Edge, which was the affiliate here that generated the ad at issue, why would they do that? A. For them, it is a way to try to increase their own sales by piggybacking off of somebody else's brand. Q. Let me see if I understand what that means. The ad that was served when somebody typed OneQuality or something like that was an ad that said something like don't buy from scammers

Landau it didn't stop buying keywords on Google to create an ad with a link to Amazon? A. I don't have that information. Q. Do you know if Amazon told Cutting Edge it would not pay a commission for purchases made by clicking on that ad? A. No, I have no information about that. Q. Do you know whether they in fact canceled Cutting Edge's account? A. I believe I was told that they did, but I don't know for certain. Q. Do you know if they stopped paying Cutting Edge for purchases that were made by clicking on that ad? A. I don't know. Q. Would you agree that cutting off the revenue stream from an inappropriate advertisement is a reasonable approach to getting the advertiser to stop doing it? A. It seems to me that it would be. Q. Now you have testified that it is your opinion that it would be possible for Amazon to create the type of filtration mechanism that you describe. Am I correct that you have not

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Landau offered an opinion that such a mechanism is the only way to address the problem? A. Correct. Q. And that you have not offered an opinion that such a mechanism is the best way to address the problem? A. That is also correct. Q. And that you have not offered an opinion that such a mechanism would have no impact on Amazon's other operations? A. Correct. Q. And you have not offered the opinion that such a mechanism would have no other impact on the experience of Amazon users? A. Correct. Q. And you have not offered an opinion that such a mechanism would be cost-efficient? A. That is also correct. Q. You have not offered an opinion that such a mechanism would be commercially reasonable in these circumstances? A. I don't know if it would be or not. Q. And you have not offered an opinion that such a mechanism is the industry standard
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CERTIFICATION I, Joseph R. Danyo, a Shorthand Reporter and Notary Public, within and for the State of New York, do hereby certify: That I reported the proceedings in the within entitled matter, and that the within transcript is a true record of such proceedings. I further certify that I am not related, by blood or marriage, to any of the parties in this matter and that I am in no way interested in the outcome of this matter. IN WITNESS WHEREOF, I have hereunto set my hand this 25th day of May, 2010.

JOSEPH R. DANYO

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Landau way to address this type of problem? A. Correct. Q. And you have not offered the opinion that such a mechanism is used by other large Internet retailers? A. Correct. Q. And, in fact, you haven't offered an opinion that such a mechanism is used by any business that you are aware of to address the problem of an inappropriate link or advertisement? A. Correct. MR. KAPLAN: I have no further questions. Thank you. THE VIDEOGRAPHER: This marks the end of today's deposition. The time is 11:08 a.m. We are going off the record. (Time noted: 11:08 a.m.) _______________________________ Subscribed and sworn to before me this______day of_________, 2010. ___________________________________

INDEX Witness NATHANIEL LANDAU

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EXHIBITS Landau Page 1 Amended expert witness report 34 2 Expert witness report of Nathaniel 37 Landau INFORMATION REQUESTED Page Line 26 14 oOo

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