J.T. Colby & Company, Inc. et al v. Apple, Inc.
Filing
116
DECLARATION of Claudia Ray in Support re: 114 MOTION in Limine to Exclude any Testimony, Argument or Evidence Regarding the Expert Reports and Opinions of Mike Shatzkin.. Document filed by Apple Inc.. (Attachments: # 1 Exhibit 1 (Part 1 of 2), # 2 Exhibit 1 (Part 2 of 2), # 3 Exhibit 2 (Redacted), # 4 Exhibit 3 (Redacted), # 5 Exhibit 4, # 6 Exhibit 5 (Filed Under Seal), # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8 (Redacted), # 10 Exhibit 9)(Cendali, Dale)
<![CDATA[
Exhibit 2
REDACTED
Page 1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------X
JT COLBY AND COMPANY, INC., D/B/A
BRICK TOWER PRESS, J. BOYLESTON AND
COMPANY PUBLISHERS, LLC, AND
IPICTUREBOOKS, LLC,
Plaintiffs,
-against-
Index No.
11-CV-4060(DLC)
APPLE, INC.,
Defendant.
-------------------------------------X
VIDEOTAPED DEPOSITION OF
MIKE SHATZKIN
New York, New York
December 4, 2012, 9:35 a.m.
Reported By:
Nicole Sesta
Ref: 8575
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court reporter.
3
A
Okay.
4
Q
Also note that we have a court
5
order in place today.
So that the objections
6
will simply consist of the word objection.
7
your counsel is going to instruct you not to
8
answer I'm sure he'll do that.
If
9
A
Okay.
10
Q
Can you think of any reason why
11
you're not able to testify today, is there any
12
medication that you're on that might affect you?
13
A
No, no.
14
Q
Is it correct that you're here
15
today to testify as an expert witness on behalf
16
of the plaintiffs in the lawsuit between JT
17
Colby and Apple?
18
A
Yes.
19
Q
What did you do to prepare for
20
this deposition?
21
A
I read a bunch of material, the
22
complaint, depositions by Rich Freese and John
23
Colby, I think.
24
testimony, the expert report and then the
25
deposition from the branding, I'm sorry, the
And I read the expert
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name jumped out of my mind, the branding expert
3
from Apple.
4
Q
Would that be Professor Carpenter?
5
A
Yes, Professor Carpenter.
And I
6
had my staff help me massage some numbers to
7
analyze some of the data out of the sales
8
records of iBooks.
9
much what I did to prepare for this, prepare to
10
write the report that you have and prepare for
11
this testimony.
12
Q
I would say that's pretty
You mentioned the expert report of
13
Professor Carpenter, was that just one report or
14
was there more than one?
15
A
I'm recalling one.
16
Q
You also mentioned deposition
17
transcripts of Mr. Freese and Professor
18
Carpenter, are those the only deposition
19
transcripts that you reviewed, and excuse me Mr.
20
Colby?
21
22
23
A
Colby.
Think I read something from Mr.
But those would be the only ones.
Q
You mentioned having your staff
24
help you with numbers.
25
Who on your staff helped
you with that?
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my ability up to the time I wrote the report
3
yes.
4
5
Q
You're being compensated in
connection with your work in this case, correct?
6
A
Yes.
7
Q
How much are you being paid?
8
A
$500 an hour for the work done so
9
10
11
12
far, $600 an hour during deposition time, and
$700 an hour if we go to trial.
Q
How many hours have you spent so
far in connection with this case?
13
A
Roughly 25.
14
Q
Do you know how many hours you
15
spent reviewing materials in connection with
16
this case?
17
A
Well, I would say that that 20
18
hours is probably let's guess eight reviewing
19
materials, eight writing and editing, and four
20
conferring with counsel.
21
sort of a rough break down but probably close to
22
accurate.
23
Q
I mean that would be
Had you ever heard of any of the
24
plaintiffs in this case before you were
25
contacted by Mr. Freese?
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A
Yes, sure.
3
4
MR. RASKOPF:
A
Yes.
Objection.
Wait a minute.
Plaintiffs,
5
no, actually if iBooks is a plaintiff I had
6
heard of iBooks.
7
Q
8
Company?
9
A
No.
10
Q
Before this case?
11
A
No.
12
Q
Had you heard of Brick Tower Press
13
I had not heard of Mr. Colby.
Had you heard of JT Colby and
before this case?
14
A
No.
15
Q
Had you heard of J. Boyleston and
16
Company before this case?
17
A
No.
18
Q
Had you heard of iPicturebooks?
19
A
Yes.
20
Q
And in what context did you hear
21
22
of iPicturebooks?
A
Very aware of it.
I'm in the
23
business and I'm aware of what goes on in the
24
business, and I knew Byron Preiss and I knew
25
what Byron Preiss did.
So I was aware of iBooks
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and I was aware of iPicturebooks when they were
3
new.
4
Q
Do you recall roughly when that
6
A
Late 1990s.
7
Q
Had you ever met Mr. Raskopf
5
8
was?
before this case?
9
A
No.
10
Q
Had you ever worked with his law
11
firm before this case?
12
A
No.
13
Q
Have you heard of Allegaert Berger
14
& Vogel?
15
A
No, I haven't heard them.
16
Q
You said you had heard of iBooks
17
and iPicturebooks before.
Have you ever done
18
any work for either of those entities?
19
A
No.
20
Q
Had you ever done any work for Mr.
22
A
No.
23
Q
Have you ever heard of a company
21
24
25
Preiss?
called Byron Preiss Visual Publications?
A
Yes.
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and how they impact particular players or
3
particular propositions is what I think I've got
4
a reputation for doing well.
5
6
Q
Have you ever worked directly for
any publishers as a full-time employee?
7
A
No, except for Two Continents, no.
8
Q
You have worked for publishers as
9
a consultant, correct?
10
A
Oh, yes.
11
Q
What publishers have you worked
A
All of them, literally.
12
for?
13
Random
14
House, Simon & Schuster, Harper Collins,
15
Hachette, Penguin.
16
big ones now, right.
17
ones.
18
retained by them or I've sold them projects or
19
that is to say sold them books to publish.
I mean, I'm just naming the
Many small ones, foreign
I mean, in one way or another, I've been
20
I've interacted on a professional
21
basis with most of the significant publishers in
22
the English-speaking world.
23
24
25
Q
Have you ever done any work for
Harlequin?
A
I spoke at Harlequin's global
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Q
It says, "I have reviewed and
3
considered the amended and supplemental
4
complaint and jury demand, answer and
5
affirmative defenses, the plaintiffs iBooks
6
sales figures and examples of the plaintiffs'
7
print and electronic books."
Do you see that?
8
A
Yes.
9
Q
What sales figures did you look
A
We looked at a spreadsheet that, I
10
at?
11
12
believe, was the sales reporting or compilation
13
of the sales reporting by Simon & Schuster for
14
the several-year period during which they
15
distributed iBooks.
16
Q
Do you know what period that was?
17
A
Off the top of my head, like
18
around 2000 to 2004, something like that.
19
20
Q
Did you look at any other sales
figures other than the ones you just mentioned?
21
A
Not that I remember, no.
22
Q
You also mentioned in your report
23
examples of the plaintiffs print and electronic
24
books.
25
Do you recall what books you looked at?
A
Exactly which titles, no.
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Q
Do you recall how many?
3
A
Four, six.
4
Q
Did you look at any web sites in
5
connection with your report?
6
A
No.
7
Q
Did you conduct any research in
8
connection with your report?
9
MR. RASKOPF:
10
11
Objection to
the form.
A
No.
Well, except, as discussed
12
earlier, the manipulation of the data from the
13
sales reporting to make it more informative,
14
that you could call that research.
15
wasn't -- in other words, it wasn't looking at
16
other information, but it was doing something to
17
existing information to make it more meaningful.
18
19
20
21
22
Q
But it
That was what you called the
number crunching that Ms. Flannery did?
A
That Katherine Flannery did.
That's right.
Q
The sales figures that you looked
23
at, were those for iBooks only or for iBooks and
24
iPicturebooks?
25
A
I believe both of them were in
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there, but my focus was on iBooks.
3
Katherine actually sorted numbers for both of
4
them, but my focus was on the iBooks.
5
6
Q
I believe
Did you conduct any consumer
surveys in connection with your report?
7
A
No.
8
Q
Did you review any marketing
9
materials for iPicturebooks or iBooks?
10
MR. RASKOPF:
11
Objection to
the form.
12
You may answer.
13
A
I don't think so.
14
Q
You mentioned publicity earlier.
15
Did you review what you would consider publicity
16
materials?
17
A
No.
18
Q
No materials as to just iBooks or
19
iBooks and iPicturebooks?
20
MR. RASKOPF:
21
Objection to
the form.
22
You may answer.
23
A
I'm sorry, what?
24
Q
Let me break it down a little bit.
25
Did you review any marketing materials with
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respect to iBooks?
A
I didn't review any marketing
materials that I can recall at all.
Q
Same question:
Did you review any
6
marketing materials with respect to
7
iPicturebooks?
8
A
No.
9
Q
Did you review any publicity
10
materials with respect to iPicturebooks?
11
A
Note that I recall.
12
Q
Did you review any Wikipedia
13
entries?
14
A
No.
15
Q
Did you review any media articles
16
or coverage?
17
A
No.
18
Q
Did you do any Google or other
19
internet searching with respect to iBooks or
20
iPicturebooks?
21
A
No.
22
Q
And other than what you listed in
23
your report in that second paragraph at the top
24
of page two, do you recall reviewing anything
25
else in connection with your report?
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A
No.
3
Q
Looking at the next paragraph,
4
starts, "The facts I call upon."
5
A
Uh-huh.
6
Q
Is it fair to say that that's a
7
reference to your general experience?
8
A
Yes.
It is fair to say that.
9
Q
Did you make any assumptions in
10
preparing your report and formulating your
11
opinions?
12
A
Well, some of what might be my
13
expert opinions could be characterized as
14
assumptions, but they're assumptions based on --
15
they're informed assumptions.
16
assumptions based on a lot of history over a
17
long period of time.
18
I did make assumptions.
19
Q
They're
But yes, in that context,
Did you make any assumptions
20
regarding the existence of any facts that you
21
relied on?
22
23
A
I don't quite understand that.
MR. RASKOPF:
Note my
24
objection to the form of the
25
question.
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people, is that also the gatekeepers?
3
A
No, the bookstore buyers, the
4
reviewers and the librarians and the people who
5
are making professional judgments about the
6
books.
7
Q
So is it fair to say that you're
8
expressing that brands matter to the gatekeepers
9
but not to the end consumers?
10
A
That's exactly right.
11
MR. RASKOPF:
12
Note my
objection to the form.
13
A
That's exactly right.
14
Q
And then in the next paragraph you
15
say, "As all brand experts know the key for
16
brands to deliver a consistent experience to
17
their users."
18
A
Uh-huh.
19
Q
What's your basis for saying that?
20
A
Well, despite the fact that I've
21
had no formal education in branding or taken any
22
courses in branding, I have been exposed to a
23
lot of dialogue about branding and marketing
24
conversations for many, many, many, many years.
25
And there are ways to describe -- there are
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romance novels, correct?
3
MR. RASKOPF:
4
Objection to
the form.
5
You may answer.
6
A
Yes.
7
Q
Do you know whether Harlequin
8
Broadly speaking, yes.
markets directly to consumers?
9
A
Yes, they do.
10
Q
Do you know what that marketing
11
involves?
12
A
Not in great detail, no.
13
Q
Do you know any information about
14
15
how they market to consumers?
A
Well, I know that they make offers
16
that encourage consumers to buy from them
17
directly.
18
related.
19
that's probably the primary technique for them
20
is offering subscriptions.
21
Q
I think they're probably subscription
They both print and digital.
I think
Let's mark as Exhibit 5 what I'll
22
represent is a November 27, 2012 printout of the
23
home page from the Harlequin.com web site.
24
(Exhibit 5, November 27,
25
2012 Harlequin printout, marked
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for identification, as of this
3
date.)
4
Q
Looking at Exhibit 5, when you
5
said that Harlequin makes offers, is there
6
anything here that reflects the offers that
7
you're referring to?
8
MR. RASKOPF:
9
10
Objection to
the form.
A
Well, enjoy 20 percent off every
11
day might be one of them.
12
This is not really
what I was thinking, no.
13
Q
What kind of --
14
A
Well, actually, no.
Well, there's
15
a Harlequin extras.
16
And there seem to be price offers here.
17
maybe it's not subscription.
18
discounting by price.
19
are probably subscription offers buried in there
20
somewhere too.
21
Q
22
23
I'm not sure what that is.
So
Maybe it's
But I would imagine there
When you say subscription what do
you mean?
A
What I mean is a way for a
24
consumer to sign up like in a book club or
25
something else or committing to pay regularly
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over time and, therefore, getting something
3
regularly over time.
4
Q
That something being a book?
5
A
Books, yes.
6
Q
So is it fair to say that as
7
you're discussing it a subscription offer would
8
be somebody who essentially subscribes to books
9
as if they were magazines getting them regularly
10
delivered?
11
A
That's right.
12
Q
Looking at the second page of
13
Exhibit 5 it refers to free online reads.
14
you aware that Harlequin offered free online
15
content?
16
A
17
18
Were
I wasn't specifically aware of
that but I'm not surprised.
Q
And then down at the bottom of the
19
page it refers to community, do you see that
20
heading?
21
Is that something you were aware of?
And under that it talks about blogs.
22
A
Not specifically but again, I'm
23
not surprised.
24
Q
Why were you not surprised?
25
A
Because that's a pretty standard
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tool for a direct to consumer strategy.
Q
When you say a direct to consumer
4
strategy, would that be distinct from selling
5
directly to retailers in a trade context?
6
7
8
9
10
A
Yes, a direct consumer strategy as
opposed to dependence on the trade.
Q
Did you know whether Harlequin
does any advertising for its books?
A
I suspect very little, if any, but
11
I don't know.
12
advertising it would be restricted to either
13
books for which they have very, very high
14
expectations or it wouldn't be for a single
15
book, but would be to try to gain the attention
16
of a person like get them to subscribe to the
17
newsletters on the web site or get them to a
18
subscription offer or something of that nature.
19
I wouldn't think that advertising was a
20
particularly important component of their
21
marketing.
22
23
Q
I suspect if they do do
You haven't seen any of their
advertisement materials, have you?
24
A
No.
25
Q
Have you ever seen any of
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speaker on a program and talk about it.
I think
3
it would be likely that they have other ways of
4
thinking about their audiences, whether they're
5
divorcees or, I don't know, books about cheating
6
on your spouse.
7
do.
8
definitely they are aware because they're
9
dealing with millions of women all over the
I don't really know what they
I'm not a romance reader.
I think but
10
world that there are tastes within the romance
11
consumption that need to be addressed and
12
branded.
13
time.
14
Q
I'm sure they work at that all the
Do you know whether Harlequin uses
15
its own name Harlequin as an imprint or whether
16
it has other imprints as well?
17
A
I think it has other imprints.
18
know it has at least some other imprints as
19
I
well.
20
Q
You said Harlequin is likely aware
21
of target customers for its different products,
22
correct?
23
whether Harlequin has developed specific
24
products for specific consumers?
25
Do you know whether or do you know
MR. RASKOPF:
Objection to
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3
the form.
A
You may answer.
I think that's what they do.
In
4
other words, I think that they figure out target
5
audiences or series.
6
this up, who knows whether they have it or not,
7
English historical romances.
8
don't know Regal books about the English lords
9
and ladies having romances.
10
I don't know.
I'm making
They may create I
If they found that that was a
11
category that people just wanted to read more
12
and more and more of they might very well create
13
a branded series around that category and be
14
creating a product specifically for that series.
15
That's an evolutionary stage of a niche
16
publisher, which I think Harlequin is about the
17
most evolved niche publisher there is.
18
write the book and they probably included that
19
in what they've done.
20
Q
21
They
niche publisher?
22
MR. RASKOPF:
23
24
25
Is Scholastic an example of a
the form.
A
Objection to
You can answer.
Well, yes, I guess they are.
They're probably larger than Harlequin.
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speaking at both of them.
3
4
Q
Do you know whether Scholastic
sells books directly through its web site?
5
A
I'm sure they do.
6
Q
Looking at your report, which is
7
marked as Exhibit 3.
8
A
I have the report.
9
Q
On page five at the top you say
10
science fiction fans knew Tor and Baen?
11
A
Uh-huh.
12
Q
Am I pronouncing that correctly,
14
A
Yes.
15
Q
How does science fiction fans know
A
They know Tor and Baen because
13
16
17
Baen?
Tor?
18
they read Tor books and Baen books.
If you read
19
science fiction there are only a dozen places
20
that issue the books that are significant, and
21
if you're a science fiction consumer or put it
22
this way, there are many, many science fiction
23
readers and romance readers and thriller readers
24
who are consuming them by the dozens per year.
25
When there are -- if you're consuming 20, 30, 40
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titles in a genre and there are only 6, 10, 15
3
places that issue them, you find pretty quickly
4
that you're getting repeats.
5
So you'll be conscious of them.
6
And both Tor and Baen make very active efforts
7
to communicate directly with their audiences.
8
And I don't know much about Baen on the inside
9
but I do about Tor.
They have a tremendous
10
reach, direct contact reach with the science
11
fiction community.
12
13
14
Q
You said there are only a dozens
places that issue those that are significant?
A
In any significant numbers.
15
MR. RASKOPF:
16
the characterization of the
17
witness' prior testimony.
18
19
MS. RAY:
MR. RASKOPF:
MS. RAY:
Per the judge it
has to be limited to objection.
24
25
I want to get
the objection clear on the record.
22
23
Let's keep it to
objection.
20
21
Objection to
MR. RASKOPF:
Objection as
well.
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Q
What are those dozen places?
3
A
I don't know them all.
4
science fiction reader.
5
6
I'm not a
Q
Do you have any particular ones in
A
Well, Orbit is the Hachette
mind?
7
8
division that does science fiction.
I don't
9
remember what Random House calls their science
10
fiction imprint.
11
that's part of Random House.
12
with Ballantine, but the big houses mostly do
13
science fiction.
14
may not still exist, but which was a big science
15
fiction imprint would now be owned by Penguin, I
16
think.
17
specialists and they don't exist.
18
may exist in the hundreds because they're going
19
to be small publishers that do three titles and
20
then go away, but I'm not thinking about those.
21
I'm thinking about the ones that are providing a
22
lot of content into the marketplace.
23
aren't hundreds of those.
24
25
There was Del Ray Books, well
Del Rey Books was
And there's Daw, which may or
In these niche areas there are
Q
I mean they
There
You mentioned Tor and Baen as
making active efforts to communicate with their
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audience; is that correct?
3
active efforts?
4
A
What did you mean by
They solicit people to be in touch
5
with them.
They say register on our web site,
6
get our newsletter.
7
beginning to sell directly to their customers.
8
Baen definitely does that.
9
selling directly to customers for a long time.
In Tor's case they're
Baen has been
10
Baen has subscription offers I know.
11
think Tor does yet.
12
whatever communication means they have, which
13
largely are the books, to encourage consumers to
14
be in touch with them in ways that will allow
15
free communication and free marketing.
16
Q
I don't
So essentially they use
On page five of your report in the
17
second paragraph you mention Hay House building
18
e-mail lists?
19
A
Yes.
20
Q
What do you mean by e-mail lists?
21
A
I mean lists of e-mail addresses
22
for which you have the permission of the owner
23
to send them an e-mail.
24
25
Q
Would those be e-mails of prior
customers?
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Could be prior customers or could
3
be people that just signed up to get your
4
e-mails.
5
Q
6
Do you know whether Tor uses
e-mail lists?
7
A
Yes, they do.
8
Q
How do you know that?
9
A
In this particular case I know it
10
because I did -- I had a conversation with the
11
VP at Macmillan, Macmillan owns Tor, who's their
12
digital guy last November, and he told me a
13
whole bunch of data about how many e-mails
14
they'd sent out for Tor last month, et cetera,
15
et cetera, which he was encouraging me to write
16
about and I did write about a blog post from
17
November 2011, I think, about what Tor was doing
18
in terms of marketing, which I think was 650,000
19
e-mails sent in one month or something.
20
they've spoken at -- I had them speak at a
21
conference last June as well.
22
23
24
25
Q
And
Is there anything else that either
Tor or Baen do to reach consumers?
A
No, I don't think so.
think they advertise.
I don't
I don't think they stage
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events.
3
would do to reach consumers.
4
consumers by the books you sell.
5
reach them.
6
7
I'm trying to think about what you
Q
I think you reach
That's how you
Have you ever visited a web site
for either publishers?
8
A
Have I ever visited?
9
Q
A web site for either publisher,
10
Tor or Baen?
11
A
I've looked at Baen's not long ago
12
because they're a bit of a puzzle to me.
13
wanted to see if I could learn more about them.
14
I've never actually talked to anybody at Baen,
15
which for me is unusual.
16
recall.
17
18
19
Q
I
Tor, I can't really
Do you know whether Tor sells
books directly through its web site?
A
I'm pretty sure they do.
Tor
20
announced about two years ago not only would
21
they sell books through their web sites, but
22
they would sell books of other publishers
23
through their web site as well.
24
that they ever actually executed on that.
25
was a provocative announcement when it was made
I'm not sure
It
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so I took note of it.
3
is what they announced at my conference last
4
June, are now selling ebooks off their web site
5
and will sell ebooks of other publishers as well
6
as their own.
7
8
Q
They also recently, this
So they sell both hard copy and
ebooks through their web site?
9
A
I believe they sell hard copy.
10
I'm almost certain they've started the ebook,
11
but unfortunately what I'm reporting to you is
12
what they announced they would do.
13
absolutely certain that they actually did it but
14
I think they did it.
15
Q
So I'm not
Do you know whether -- withdrawn.
16
I think you said it was your understanding that
17
Tor did not stage events?
18
A
Yes.
19
Q
What do you mean by events?
20
A
Events would be live gatherings
21
promulgated by a publisher.
22
23
Q
A
I'm pretty sure Harlequin does do
events?
24
25
Do you know whether Harlequin does
events.
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Q
Do you know whether Scholastic
3
holds events like this conference you mentioned
4
for Hay House?
5
A
I don't know.
6
Q
You mentioned that Harlequin is a
7
niche publisher.
8
a strong brand identity?
Would you consider it to have
9
MR. RASKOPF:
10
the form of the question.
11
12
A
Objection to
Yes, they have a strong brand
identity, a very strong brand identity.
13
Q
Also Tor, correct?
14
A
Yes.
15
Q
And Baen as well?
16
A
Yes.
17
Q
Scholastic too?
18
A
Yes.
19
Q
Do you know when any of those
20
21
brands developed their brand identity?
A
They evolve over time.
I don't
22
think you can put a moment to it, yesterday they
23
didn't have a brand identity and today they do.
24
Their brand identity is built on what they
25
publish and every book they sell, every book
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the fact that he said backlist titles implies
3
that what he may be talking about is new iBooks
4
editions of books that were previously published
5
elsewhere.
6
that he interpreted it that way or he meant it
7
that way.
8
9
10
Q
The lack of the word of suggests
It goes on to say in trade
fiction, and that would be fiction books sold in
the book trade channels you described before?
11
A
Yes.
12
Q
Science fiction, fantasy, graphic
13
novels, history, and popular culture, correct?
14
A
Yes.
15
Q
He's saying here on the about us
16
page with respect to iBooks that it publishes in
17
all those genres?
18
A
Yes.
19
Q
Is that your understanding as to
20
what iBooks publishes?
21
A
Yes, published, yes.
22
Q
Do you know whether iBooks has
23
24
25
ever published any first editions of any books?
A
I don't know.
I don't know
whether the iBooks output was all previously
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published books or whether it was some originals
3
or not.
4
5
I don't know.
Q
Do you know how many new titles
iBooks publishes each year?
6
A
No.
7
Q
Do you know how many iBooks has
8
9
published overall?
A
I know in these documents that I
10
know what their output was for a period of time
11
that I examined, which was approximately 2000 to
12
2004 that we talked about earlier.
13
period we did tally titles, and so I know in a
14
general sense.
15
known and expressed opinions about but I don't
16
remember the numbers at the moment.
17
Q
I cannot recall.
For that
But I have
I believe you said that you had
18
reviewed a report by Professor Carpenter,
19
correct?
20
A
Yes.
21
Q
Was it just one report by him?
22
MR. RASKOPF:
23
Asked and answered.
24
25
A
I recall one.
was a second one.
Objection.
Oh no, no, there
That's right.
I did see a
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A
National Book Network is a
3
distributor like Toucan is.
4
Network is an organization that has a warehouse
5
sales force and a computer and takes the books
6
of little publishers and puts them into the
7
trade.
8
9
Q
Into the trade meaning into book
retailers?
10
11
National Book
A
Into bookstores and wholesalers,
Q
Looking back at Exhibit 7, which
right.
12
13
was the web page, in the paragraph about iBooks
14
that listed different categories, is that fair
15
to call them trade fiction, science fiction, et
16
cetera?
17
A
Yes.
18
Q
Do you know what percentage of
19
20
iBooks books fall within those categories?
A
That's exactly the analysis --
21
well, I didn't do the analysis for all the
22
categories because I didn't think there was a
23
particular opportunity in all the categories,
24
but we looked carefully at what the percentage
25
was of science fiction.
Actually not so much
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the percentage as the number.
3
looking for was any categories where they may
4
have done enough titles to have built vertical
5
recognition.
6
7
8
9
10
Q
What we were
Do you recall how many books were
in the science fiction category?
A
Hundreds.
I can't remember how
many, but that's in my report.
Q
Do you recall how many books were
11
science fiction as opposed to any other
12
category?
13
A
Far more.
I don't remember the
14
percentages but far more were science fiction
15
than any other category.
16
science fiction was as much as all other
17
categories.
18
that's accurate.
19
Q
I think approximately
But I can't quite remember whether
Looking at your report, which was
20
Exhibit 3, at the bottom of page five you have
21
the heading iBooks brand, the iBooks brand.
22
the first line you say, "The iBooks imprint
23
published a large number of titles primarily in
24
the science fiction genre."
25
A
Do you see that?
Uh-huh.
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has spawned companies that really don't have
3
much presence except on the internet because
4
it's a big enough market to support that.
5
That's well understood by people who are working
6
the digital revolution.
7
Q
In your report when you say which
8
have turned out to be of substantial interest on
9
the internet and sold well as ebooks, were you
10
talking about genre fiction generally or the
11
books published by iBooks in particular?
12
A
No, I was actually talking about
13
the genres in which they publish, not iBooks
14
itself.
15
how those books have sold on the internet,
16
iBooks books particularly have sold on the
17
internet.
18
I don't think I ever knew or do know
Q
Looking in the next line you say,
19
"Although the sales of iBooks overall were
20
modest (
21
fiction titles alone totally
22
do you see that?
23
A
Uh-huh.
24
Q
Looking at that and doing the
25
units) with sales of science
units,"
math, is it fair to say that 34 percent of the
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total units were science fiction books?
3
MR. RASKOPF:
4
the form.
5
6
A
That certainly would be the
calculation, yes.
7
8
Objection to
Q
And you view that as being
primarily science fiction?
9
MR. RASKOPF:
10
the form of the question.
11
A
Objection to
I actually am not looking at it
12
from that perspective.
13
characterizing is the percentage of the total
14
output that was one thing or another.
15
was looking for was a critical mass of output in
16
any area.
17
approximately
18
were sold, whether that was
19
What you're
What I
So, in other words, whether
science fiction units
or out of
out of
or out of
20
is not as important to me as they sold
21
units.
22
me is that there are likely to be tens of
23
thousands of people who have bought more than
24
two or three of these books.
25
What's selling
units meant to
That's what I was looking for.
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Was there a foundation of awareness which would
3
have constituted a building block for expanding
4
the brand using internet techniques.
5
wasn't so much the percentage because obviously
6
the person who bought a gardening book whether
7
there's one of them or a thousand of them is not
8
going to be aggregatable into a science fiction
9
community.
So it
So I wasn't worrying about those
10
people, whether there were a lot of them or a
11
little of them.
12
was there enough to constitute some brand
13
awareness.
14
more important to me than the ratio.
15
Q
What I was worrying about was
That's the
number was much
You say you were looking at
16
whether it was likely that there were people who
17
bought two or three or more books?
18
A
Right.
19
Q
Do you know for a fact that there
20
are people who bought two or three or more
21
books?
22
A
No.
23
Q
You said that somebody who is
24
interested in gardening books is not going to be
25
aggregatable into science fiction, correct?
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many books in the same genre and repeat what
3
they do, and because I know that iBooks had a
4
lot of very, very highly branded authors, I
5
intuit, I believe as an expert that the
6
likelihood is that fans of science fiction
7
having discovered an iBook, however it is they
8
found it shopping in a store that carried it,
9
would easily find others and be attracted to
10
others.
11
something that I can point to a survey to
12
demonstrate.
13
So it's an expert opinion.
Q
It's not
Do you know whether any of the
14
things you've talked about is likely to happen
15
had happened prior to 2010?
16
MR. RASKOPF:
17
the form of the question.
18
Objection to
Q
Customers discovering their books
20
A
I'm sorry?
21
Q
Do you know whether prior to 2010
19
and --
22
customers had discovered books published under
23
the iBooks imprint?
24
MR. RASKOPF:
Objection to
25
the form of the question.
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Q
And come to recognize it?
3
MR. RASKOPF:
4
the form of the question.
5
answer.
6
A
Objection to
You may
That was actually the point to
7
this paragraph, which was one, approximately 2
8
million units of iBooks science fiction were
9
sold to an unknown number of people.
And I am
10
positing that a significant number of those
11
people had several, and those people would know
12
iBooks and would have from the sales that took
13
place in the time period that I was analyzing
14
it.
That's the basis of the opinion.
15
Q
And that time period was 2000 to
16
2004, correct?
17
A
Approximately, yes.
18
Q
But you don't know for a fact
19
whether there were repeat customers who had two
20
or three or more iBooks science fiction books?
21
MR. RASKOPF:
22
the form.
Objection to
Asked and answered.
23
A
No.
24
Q
We're going to go off the record
25
for a minute while we set up a spreadsheet for
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that as you recall was from 2000 to 2004?
3
A
Yes, I believe it is.
4
Q
Did anyone explain this
5
spreadsheet to you in terms of what data it
6
contained or how it worked?
7
A
I don't think so, no.
We didn't
8
have any need to understand every column.
We
9
were looking for very, very specific information
10
and we were able to -- actually Katherine was
11
able to find what I asked her to find without
12
much help from me or anybody else.
13
Q
Looking at the spreadsheet it
14
looks like there's an initial column that was
15
numbers; is that correct?
16
17
A
left, yes.
18
19
Okay, yes, the numbers on the far
Q
It looks like there's a next
heading that says ISBN?
20
A
ISBN, yes.
21
Q
What does ISBN stand for?
22
A
International standard book
Q
Is that the unique number assigned
23
24
25
number.
to a book?
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over.
A
I don't feel like there's anything
4
here that I'm not seeing.
5
my granular familiarity with each individual
6
column is minimal.
7
Q
Understood.
I'm telling you that
My understanding is
8
that the spreadsheet reaches to 2,800 pages and
9
that if one were to continue scrolling over to
10
the right I think you get to close to 100
11
columns.
12
MR. RASKOPF:
13
We'll take
your word for it.
14
Q
If you can scroll down.
15
A
Down?
16
Q
Down.
17
It may be simplest to just
use the page down key.
18
A
Where do you want me to go?
19
Q
If you can find the title
20
Battlestar Galactica.
21
A
Do you know the row number?
22
Q
Looks like 817.
23
A
Yes, got it.
24
Q
It looks like the title Battlestar
25
It may be 317.
Galactica appears six times in a row; is that
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correct?
In other words, there's six rows that
3
have Battlestar Galactica in the title?
4
A
Yes.
5
Q
Looking at that it looks like
6
three of them have the same ISBN number, which
7
would be 743413261.
8
9
A
I see two of them with 261.
I see
one with 621, which might be a typo, yes.
10
Q
Looking at the two that have --
11
A
I see two that have 261, the top
12
13
two, that are both 2299.
Q
You said that when you looked at
14
this you were counting the numbers of books,
15
where books had the same title did you count
16
each time the title appeared?
17
A
I don't know.
18
Q
Where a book had -- where the same
19
ISBN number was listed, do you know if that was
20
counted?
21
A
I don't know.
22
Q
Was this the only spreadsheet that
23
you looked at containing sales data for the
24
plaintiffs?
25
A
I think so.
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3
Q
sales data for both iBooks and iPicturebooks?
4
5
Do you know whether it showed
A
I know that it did.
We sorted out
the iPicturebooks.
6
Q
When you say you sorted out --
7
A
We didn't tally them.
We were
8
looking for science fiction and our
9
understanding was that there wasn't any science
10
fiction in iPicturebooks.
11
Q
So you weren't addressing any
12
sales levels for iPicturebooks in your report,
13
correct?
14
A
That's right.
15
Q
Does the spreadsheet identify when
16
any particular sales have occurred?
17
A
I don't really remember.
I don't
18
know.
I can't remember whether there was more
19
than one spreadsheet that we added together for
20
the time period or whether there was only one
21
spreadsheet that covered the entire time period.
22
I really don't recall.
23
information.
24
wanted to extract a small subset of what the
25
spreadsheet contained, and I gave my colleague
We got a bunch of
I knew what I wanted.
I knew I
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the information I needed so she could extract
3
what I wanted to extract.
4
over the spreadsheets themselves myself.
5
I didn't really pour
MS. RAY:
Counsel, our
6
understanding is that there was
7
only one spreadsheet produced to
8
us as material the witness
9
considered.
10
MS. BOGDANOS:
11
That's
correct.
12
MS. RAY:
If there was
13
another spreadsheet -- so our
14
understanding is correct, there
15
was no other spreadsheet?
16
17
MS. BOGDANOS:
Q
Correct.
In directing your colleague to
18
tally numbers of science fiction units sold, did
19
you do any independent investigation to confirm
20
the numbers that you derived from the
21
spreadsheet?
22
A
No.
Under both meanings of that
23
question, that I can conjure, the answer would
24
be no to both of them.
25
Q
You testified that your
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understanding is that the sales data covered the
3
period 2000 to 2004, correct?
4
A
Approximately.
5
Q
Approximately.
To the best of
6
your knowledge have you reviewed any sales data
7
for any time period after 2004?
8
9
A
I can't recall.
I seem to know
anecdotally that the numbers have not been
10
nearly -- were not nearly as robust after the
11
Simon & Schuster period.
12
seeing numbers or whether I know that by asking
13
questions and being told that I can't really
14
recall, but I didn't try to analyze it.
15
Q
Whether I know that by
Looking at this spreadsheet of
16
sales data do you know whether these sales were
17
made to distributors or to end customers?
18
A
Well, there were two components
19
and don't ask me to find them because I won't be
20
able to, which were shipments out and returns.
21
So the shipments out and returns were all
22
transactions conducted with intermediaries.
23
number that I just gave you, the 1,900,000, or
24
whatever, was a net number.
25
shipments out with returns subtracted.
The
That is it was the
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So the presumption is that the
3
difference between gross and the net constitute
4
sales that were made to consumers by the
5
intermediaries.
6
Q
So I understand, you would have a
7
gross sales number, correct, and a net sales
8
number, is that right, and the difference
9
between those represent?
10
A
Returns.
11
Q
Returns?
12
A
There was a gross sales number.
13
What we got as raw data was a gross sales number
14
and a returns number.
15
net sales number and that's the number I was
16
reporting.
17
was designed to accomplish.
18
19
Q
We from that calculated a
That was part of what the exercise
So the
was the net number, the
number shipped out net of returns?
20
A
That's right.
21
Q
Other than looking at the net
22
sales number do you have any way of knowing how
23
many of any of the
24
total
25
the hands of consumers?
or the
books were actually sold into
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A
No.
3
Q
I think we're done with the
4
spreadsheet.
Let's take a quick break and get
5
the laptop out of the way.
6
THE VIDEOGRAPHER:
7
is 2:32 p.m. and we're going off
8
the record.
9
The time
(Recess taken.)
10
THE VIDEOGRAPHER:
The time
11
is 2:34 p.m. and we're back on the
12
record.
13
Q
We're going to mark as Exhibit 10
14
a November 27, 2012 printout of the search
15
results for iBooks on Amazon.com?
16
(Exhibit 10, Amazon.com
17
results, marked for
18
identification, as of this date.)
19
20
Q
Mr. Shatzkin, have you ever looked
up iBooks on Amazon?
21
A
No.
22
Q
On any web site?
23
A
No.
24
Q
Looking on the left-hand side of
25
this printout, which is of the first 12 of 849
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Q
Do you know what portion of books
3
sold in the iBooks imprint are sold in hard
4
copy?
5
6
7
8
A
Versus digital, no, I have no
Q
Do you know what portion are sold
idea.
online as opposed to in other outlets?
9
A
No.
10
Q
We're going to mark as Exhibit 11
11
a copy of the amended and supplemental complaint
12
in this case.
13
(Exhibit 11, amended and
14
supplemental complaint, marked for
15
identification, as of this date.)
16
Q
Before we turn to that, do you
17
know what portion of iBooks sales, meaning sales
18
of books sold under the iBooks imprint, were
19
made to distributors as opposed to end
20
consumers?
21
MR. RASKOPF:
22
Objection to
the form.
23
Q
Meaning directly.
24
A
No.
25
Even for the time period that
I measured I assumed that they were almost all
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your opinion at all that iBooks focused on
3
science fiction?
4
A
No.
5
Q
Why not?
6
A
For the reason I stated earlier,
7
which is that from my perspective the publishing
8
they did outside of science fiction for the
9
purposes of my opinion about whether they had
10
brand equity in science fiction, publishing
11
outside of science fiction was noise.
12
not meaningful.
13
much publishing they did within science fiction.
14
15
16
Q
It was
What was meaningful was how
That again was based on the sales
numbers that you looked at?
A
That's right.
Sales numbers which
17
also -- and the output numbers.
18
the sales were one component and a number of
19
titles published was another component of it.
20
21
22
Q
In other words,
Do you know how many titles iBooks
has published in the science fiction genre?
A
All I know is in the summary that
23
is in this report, whatever it was, 178 titles
24
or 560, I can't remember, 600 titles, $2 million
25
or something of that nature.
That's the four
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walls of my knowledge.
Q
In arriving at that number do you
4
know whether that number, as you put it your
5
colleague crunched the numbers, do you know
6
whether she crunched the numbers to eliminate
7
duplicate ISBN numbers?
8
MR. RASKOPF:
9
the form of the question.
10
11
Objection to
You may
answer.
A
You just pointed out duplicate
12
ISBN numbers to me for the first time.
13
know whether she eliminated them or not.
14
15
16
Q
I don't
Do you know whether she eliminated
duplicate titles?
A
I don't know.
I don't know about
17
science fiction more than anything else.
18
other words, whether all the numbers are
19
slightly inflated by that factor or whether none
20
of them are, I don't know.
21
Q
22
another?
23
A
In
24
25
You just don't know one way or
That's right.
(Exhibit 12, May 17, 2000
memorandum draft, marked for
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Q
Why not?
3
A
Well, you're showing me a document
4
that was from 2000 and I would think that it's
5
superceded by data from 2000 to 2004.
6
what I relied on.
7
that precedes that data characterizes it
8
differently would not change my opinion.
9
Q
That's
So the fact that a document
So the description of iBooks as a
10
general trade imprint doesn't affect your view
11
one way or the other by the company itself?
12
13
A
No, it doesn't affect my opinion
Q
Do you know whether iBooks has
at all.
14
15
ever used e-mail lists of the type you described
16
earlier?
17
A
I don't know.
18
Q
Do you know whether iBooks sells
19
books directly to consumers through its web
20
site?
21
22
23
A
I have no idea.
I actually think
I know that they don't.
Q
Do you know whether iBooks hosts
24
events of the type you described earlier,
25
whether conferences or --
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A
I'm not aware of any.
3
Q
Do you know whether iBooks uses
4
Facebook or Twitter?
5
A
I don't know.
6
Q
Do you know whether it makes any
7
use of social media whatsoever?
8
A
I don't know.
9
Q
Do you know whether with respect
10
to the -- withdrawn.
11
plaintiffs have done anything with the iBooks
12
imprint to put it in direct contact with
13
consumers?
14
Do you know whether the
MR. RASKOPF:
15
Objection to
the form.
16
A
I don't know.
17
Q
Have you made any inquiry as to
18
whether the iBooks imprint has made any effort
19
to be in touch with its consumers?
20
MR. RASKOPF:
21
Note my
objection to the form.
22
A
I'm trying to remember how I know
23
that.
The current owner of iBooks is a
24
bookstore guy and has not probed in that
25
direction, but I can't remember why I know that.
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I'm not aware of them making any efforts to go
3
direct to consumer.
4
5
6
Q
When you say a bookstore guy what
do you mean by that?
A
I mean that his background is in
7
bookstores and his belief is in bookstores.
8
in the continuum or in the evolution of industry
9
thought moving from bookstore dependent to
10
bookstore independent, he tends to be more
11
behind the curve than ahead of the curve based
12
on his background.
13
Q
So
I believe you said that you had
14
not looked at any web sites in connection with
15
your report, correct?
16
MR. RASKOPF:
17
the characterization of the
18
witness' prior testimony.
19
answer.
20
21
22
23
A
Objection to
You may
I don't recall looking at any web
sites to prepare for this, no.
Q
Do you know whether there is any
active web site for iBooks?
24
MR. RASKOPF:
Objection to
25
the form of the question.
You may
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answer.
3
A
I don't know.
Kind of hard for
4
them to have one I guess if they didn't have one
5
before or the iBooks store opened.
6
what they do if they have one now.
7
8
Q
I'm not sure
You talked earlier about community
building, do you recall that?
9
A
Community?
10
Q
Community building.
11
A
Yes.
12
Q
Do you know whether any of
13
plaintiffs have engaged in community building
14
with respect to iBooks?
15
MR. RASKOPF:
16
the form.
17
18
19
Objection to
You may answer.
A
I'm not aware of any such efforts,
Q
Do you know whether any of
no.
20
plaintiffs have engaged in search engine
21
optimizations with respect to iBooks?
22
A
No, I don't know.
23
Q
Do you know whether they've
24
collaborated with other publishers or imprints
25
with respect to iBooks?
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A
No, I don't know.
3
Q
Do you know if they have
4
collaborated with other web sites?
5
A
I don't know.
6
Q
For example, Library Thing which
7
you mentioned?
8
A
9
collaborated or not.
10
11
I have no idea whether they have
Q
Do you know if they have
collaborated with Good Reads at all?
12
A
I don't know.
13
Q
Do you have any information about
14
what volume of traffic the plaintiffs' web site
15
gets?
16
17
18
19
A
No, I don't even know if they have
a web site.
Q
Have you ever seen any marketing
materials for plaintiffs' iBooks books?
20
MR. RASKOPF:
21
the form.
Objection to
You may answer.
22
A
I don't think so.
23
Q
I understand that earlier you used
24
both the terms marketing and advertising.
25
Are
those two different things in your mind?
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A
Depending on how one defines
3
marketing, advertising could be a subset of
4
marketing.
5
is marketing and other things are marketing.
6
Some people break out publicity and advertising
7
as if they were separate from marketing.
8
nuanced view of how to define these things.
9
don't think there's a textbook definition that
10
11
12
Publicity is marketing.
Advertising
It's a
I
says it's one or the other.
Q
Would you understand marketing as
including publicity and advertising?
13
A
I would, yes.
14
Q
Do you know whether plaintiffs do
15
any advertising for their iBooks imprint?
16
A
I don't know.
17
Q
Do you know if they do any
18
advertising for iPicturebooks?
19
A
I don't know.
20
Q
Do you know whether there are any
21
fan sites for any of the iBooks or
22
iPicturebooks?
23
A
I don't know.
24
25
MS. RAY:
Let's take a
break.
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THE VIDEOGRAPHER:
3
is 2:56 p.m.
4
The time
We're going off the
record.
5
(Recess taken.)
6
THE VIDEOGRAPHER:
7
is 3:19 p.m.
8
The time
number four.
9
10
Q
This begins tape
Mr. Shatzkin, have you ever
visited a web site at iBooksInc.com?
11
A
Not that I'm aware of.
12
Q
Do you know who owns
13
iBooksInc.com?
14
A
No.
15
(Exhibit 13, Gregory
16
Carpenter expert report, marked
17
for identification, as of this
18
date.)
19
20
21
Q
Mr. Shatzkin, we've marked as
Exhibit 13 Professor Carpenter's report.
MR. RASKOPF:
Isn't there a
22
rule against a thousand page
23
documents?
24
25
MS. RAY:
a thousand pages.
I'm not sure it's
We did spare
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Q
And I believe you saw one
spreadsheet?
A
I saw one spreadsheet and I don't
5
know which of those two or whether it was a
6
different one.
7
Q
Looking at page 11 of the report,
8
paragraph 31, it says, "The practice in the book
9
industry was that distributors could return
10
books that did not sell to the consumers for up
11
to two years."
12
A
Is that correct?
Well, the practice in the book
13
industry is not defined that way.
14
have been the practice of this distributor.
15
There's not a standard returns practice in the
16
industry, except that returns are generally
17
enabled.
18
each publisher or distributor can set its own
19
rules and a rule that you can return up to two
20
years from purchase is not unusual.
21
22
That could
But there certainly are rules from
Q
If you turn to page 12, looking at
paragraph 35.
23
A
Uh-huh.
24
Q
It refers to sales in 2005 and
25
2006, do you see that?
Do you have any reason
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science fiction names, that iBooks published on
3
its list.
4
Q
When you refer to the author list
5
would that include authors such as Arthur C.
6
Clark?
7
A
That's exactly right.
8
Q
Do you know whether iBooks, the
9
10
imprint, published any first editions of any
books by Arthur C. Clark?
11
A
I have no idea.
12
Q
Do you know whether titles that
13
iBooks published that were authored by Arthur C.
14
Clark were also available from other publishers
15
at the same time?
16
A
I don't know.
17
Q
So is it fair to say that you
18
don't know as to any of the authors published by
19
iBooks Inc. whether it was a unique source for
20
those titles at the time it published them?
21
A
That's right, I don't know.
22
Q
If you turn to page 33.
Actually,
23
it may make sense to look first at page 32,
24
paragraph 95.
25
below figure shows the sales of the iBooks
At the bottom it states, "The
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imprint for the priced period through the Colby
3
period."
4
and then paragraph 96 refers to another table.
5
And you looked at this when you looked at the
6
Carpenter report?
It refers to a table on the next page
7
A
Yes.
8
Q
Did these tables affect your
9
opinion one way or the other?
10
A
No.
11
Q
Why not?
12
A
Because, why not.
It's sort of
13
hard to address that from a negative, but maybe
14
the simple thing to do is to say that the low
15
bars on the right, as far as I know, did not
16
subtract anything from the high bars on the
17
left.
18
the evidence on which I based my opinion.
19
just simply failed to give additional evidence
20
to support my opinion.
21
So, in other words, they didn't reduce
Q
They
And that evidence being the number
22
of books sold as reflected on the spreadsheet
23
that you looked at that you believe were
24
categorized as science fiction?
25
A
That's right.
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MR. RASKOPF:
Note my
3
objection to the form of the
4
question.
5
A
No.
6
Q
Looking at page one of your
7
report, the numbered paragraphs at the bottom
8
when you say this report will explain the
9
following, in number one when you refer to
10
multi-level branding, that's what you just
11
talked about authors, imprints, or series in
12
publishing companies; is that correct?
13
A
Uh-huh.
14
Q
And number two refers to trend
15
towards book purchasing online and a focus on
16
business to consumer brands, correct?
17
A
Uh-huh.
18
Q
Is it your opinion that iBooks is
19
a business to consumer brand?
20
MR. RASKOPF:
21
the form of the question.
22
A
Objection to
It is my opinion something is
23
not -- you cannot say, well, I guess you can say
24
it is or isn't a consumer brand.
25
anything that's ever bought by a consumer is a
In some level
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consumer brand.
3
consumer brand on which some commercial value
4
can be built.
5
about it, it would be pretty hard.
6
thousands of people that would know about it it
7
would be somewhat easier.
8
people that know about it then you're Harlequin
9
and you build a world scale enterprise on it.
10
The question is whether it's a
If there are six people that know
If there are
If there millions of
It is my opinion that iBooks was
11
recognized as a legitimate science fiction
12
publisher by a substantial number of science
13
fiction book consumers, and that that created a
14
foundation on which can be built upon.
15
Q
That again is based on the sales
16
numbers?
17
A
Yes.
18
Q
In paragraph three where you say
19
how the iBooks brand could have capitalized on
20
its legacy, do you see that, to build a valuable
21
consumer franchise?
22
ever did capitalize on that legacy?
Is it your opinion that it
23
MR. RASKOPF:
24
the form of the question.
25
A
Objection to
I'm not aware of any specific
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steps that were taken to capitalize on that
3
legacy in the manner which say I would have done
4
it.
5
Q
Looking at page two of your
6
report, number four at the top, you refer to
7
misstatements and erroneous conclusions by
8
Professor Carpenter, correct?
9
A
Uh-huh.
10
Q
Are those -- are your opinions as
11
to the misstatements and erroneous conclusions
12
that you believe Professor Carpenter reached set
13
forth at pages six, seven, and eight of your
14
report?
15
A
Certainly -- that certainly does
16
seem to be a list of them.
17
whole list of them I'm not sure, but it does
18
seem to be the section in which I gathered that
19
particular batch of information.
20
Q
Whether it's the
Do you have any other opinions
21
about Professor Carpenter's expert reports,
22
whether his original report or his rebuttal
23
report, that are not set forth in your report?
24
25
A
I can't even really begin to
answer that question.
Probably.
I mean I have
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Q
Do you know whether at any point
3
in time iBooks has been the only source for
4
Arthur C. Clark books?
5
A
No.
6
Q
In the last paragraph on page
7
eight in the first line you say, "At the time
8
the entire industry turned its attention to
9
consumer branding."
Do you see that?
10
A
Uh-huh.
11
Q
You say there is no precise date
12
but you reference November 2007, the
13
introduction of the Kindle and is that the
14
Amazon ereader?
15
A
That's the Amazon ebook ereader,
Q
Do you know whether iBooks turned
16
17
18
yes.
its attention to consumer branding?
19
A
I see no evidence that they have.
20
Q
If we take a short break we may be
21
close to done.
22
THE VIDEOGRAPHER:
23
is 4:09 p.m. and we're going off
24
the record.
25
The time
(Recess taken.)
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proposition, and they need to understand the
3
environment or climate in which they are
4
introducing that, and what words are the best to
5
use.
6
There's definitely a marketing
7
component to all those things, or Net Galley,
8
things like that.
9
figuring out who might write about it or in some
Sometimes it includes
10
more conventional aspects of marketing
11
publicity.
12
13
Q
We mentioned your blog earlier.
I
think it's called the Shatzkin File?
14
A
That's right.
15
Q
Do you know how many blog entries
16
17
18
you've done?
A
It will be four years in February.
I would say probably about between 3 and 400.
19
Q
20
discuss iBooks?
21
A
No.
22
Q
Do any of your blog entries
23
Do any of your blog entries
discuss any of the plaintiffs?
24
A
No.
25
Q
Do any of your blog entries
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discuss Byron Preiss?
3
A
No.
4
Q
Have you been asked to give any
5
opinion in this case about whether there is
6
likely to be confusion between the iBooks
7
imprint and Apple's iBooks software application?
8
MR. RASKOPF:
9
the form of the question.
10
11
A
Objection to
I don't think I've been
specifically asked that question.
12
Q
Do you have any opinion?
13
A
Yes.
14
Q
What is your opinion?
15
A
I think it would be inevitable
16
that there would be confusion.
17
Q
What's the basis for that opinion?
18
A
The names are the same.
The ebook
19
world is new and still confusing to a lot of
20
people and I think that the power of Apple is
21
such that to the extent that there's any
22
awareness of iBooks it is likely in this day and
23
age to be thought of as the Apple ebook format,
24
rather than anything else.
25
Q
Have you done any research
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understanding that iBooks is the Apple ebook
3
format.
4
Q
You testified earlier that in your
5
view sales during the period 2000 to 2004
6
reflected the existence of an iBooks brand
7
identity?
8
A
That's right.
9
Q
As of that time?
10
A
Yes.
I was very focused in the
11
answer.
12
identity to what I posit to be thousands of
13
people who bought more than one or two iBook
14
science fiction books in that time period, not
15
universally or with ubiquity, but to a targeted
16
audience, which happens to be the same targeted
17
audience that would be productive for a science
18
fiction publisher to capture.
19
a sliver of the audience that Apple would
20
consider to be important for an audience.
21
However, I said it represents the
Q
It's a fraction,
You said -- withdrawn.
Is it your
22
understanding that the iBooks imprint and Apple
23
use different logos in connection with their
24
iBooks products?
25
A
Once again, I'm sort of no
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brand -- they would have a real opportunity to
3
turn that into something that would be a long
4
way from being Harlequin, but would be on its
5
way to being something like Harlequin or Baen or
6
Tor or Orbit.
7
Q
You talked about crossing the line
8
to having a brand.
9
iBooks at any point crossed that line?
10
MR. RASKOPF:
11
12
Is it your opinion that
Objection to
the form.
A
You're asking me to generate a
13
characterization.
14
comfortable saying when the lines got drawn.
15
go back to what I said, which is that they have
16
a foundation of knowledgeable people in what
17
strikes me as sufficient number to make a real
18
play for a science fiction brand.
19
I'm just simply not
It's not a dozen people.
I
It's
20
probably thousands and it may be tens of
21
thousands of people who consumed enough books so
22
if -- remember if it was 50,000 people, we're
23
living in a country of 300 million people.
24
whether it be 50,000 of them and you and I may
25
never meet one with those odds, but if we could
So
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meet those 50,000 people and say do you know
3
iBooks they'd say I read an Arthur Clarke book,
4
and then I read something by someone I didn't
5
know because these people who read 5, 10, 20, 40
6
science fiction books a year, as I said earlier,
7
are not reading them from 500 publishers.
8
They're coming from a dozen publishers.
9
would remember iBooks.
10
Q
They
Is it your opinion that iBooks has
11
made a play to capitalize on those people who
12
have bought books in the past?
13
MR. RASKOPF:
14
the form of the question.
15
16
17
Objection to
A
I have not seen the evidence of
Q
I'd like to show you what we've
it.
18
marked to save time as Exhibit 14, a book called
19
Plantepedia by Maggie Stuckey.
20
Exhibit 15 Glide Path by Arthur C. Clarke.
21
We've marked as Exhibit 16 Arthur C. Clark's
22
Venus Prime 5.
23
book called Voodoo Moon Trilogy by Cheri Scotch.
24
We've marked as Exhibit 18 the Dawn of Amber by
25
Robert Zelazny.
We've marked as
We've marked as Exhibit 17 a
We've mark as Exhibit 19 Dorian
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