J.T. Colby & Company, Inc. et al v. Apple, Inc.

Filing 127

DECLARATION of Dale M. Cendali in Opposition re: 87 MOTION for Partial Summary Judgment.. Document filed by Apple Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Tab - Borden Dep., # 10 Tab - Colby 30(b)(6) Dep., # 11 Tab - Gedikian Dep., # 12 Tab - Goldhor Dep., # 13 Tab - Gundersen Dep., # 14 Tab - Kvamme Dep., # 15 Tab - La Perle Dep. (REDACTED), # 16 Tab - Widup Dep.)(Cendali, Dale)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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J.T. COLBY & COMPANY, INC.,
d/b/a BRICK TOWER PRESS,
J. BOYLSTON & COMPANY,
PUBLISHERS, LLC and
IPICTUREBOOKS, LLC,

6

Plaintiff,
7

vs.

Case No. 11-CIV4060 (DLC)

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APPLE, INC.,
9

10

Defendant.
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HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
VIDEOTAPED 30(b)(6) DEPOSITION OF STEVE GEDIKIAN
Redwood Shores, California
Thursday, September 27, 2012

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Reported by:
LORRIE L. MARCHANT, CSR No. 10523
RPR, CRR, CCRR, CLR

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JOB NO. 53421

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in its -- the existence of this product and its

2

basic features.

3
4
5

Q.

What did you know about the basic features

of the product before it was released?
A.

That the product is an application used for

6

creating -- or an application that anyone can use to

7

create a work that could then be consumed using

8

iBooks or experienced using iBooks.

9
10

Q.

When was iBooks Author released to the

public?

11

A.

I believe it was January of this year.

12

Q.

Do you have any knowledge concerning the

13

reasons that Apple decided to develop the iBooks

14

Author product?

15
16
17
18
19

A.

I'm not sure of what the intentions were or

the reasoning for why we created that product.
Q.

Are you aware of the goals that Apple has

for that product?
A.

iBooks Author is meant to make it easy

20

for anyone to be able to -- to take their

21

inspiration and turn it into a work that can be

22

experienced with iBooks.

23

applications.

24

processor or ...

25

Q.

There are many

It's like -- just like a word

When you say "the product can be
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experienced with iBooks," do you mean that the works

2

that people create using iBooks Author can be made

3

available for download on the iBookstore?

4
5

A.

That's one of the ways that those works

could be experienced.

6

Q.

How -- what other ways are there?

7

A.

A person who's created a work could take

8

the document that's been -- that is saved from

9

iBooks Author and put it on a Web site if they wish

10

and make it available to anybody.

11

Q.

If the --

12

A.

There are -- there are many different ways.

13

Q.

Forgive me for interrupting.

14

Were you

finished with your answer?

15

A.

Yes, now I'm finished.

16

Q.

If a user of iBooks Author uploaded the

17

result of iBooks Author to a Web site, would

18

somebody who wished to experience that work need the

19

iBooks software?

20

MS. RAY:

21

THE WITNESS:

22

25

It depends what you mean by

"experience."

23
24

Objection.

BY MR. CHATTORAJ:
Q.

What do you mean?

word "experience."

You've been using the

What do you mean by that?

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any other format, that is up to the person to decide

2

how they want that information to be disseminated.

3

Q.

But if that were done, the features of the

4

iBooks Author work that had been created would not

5

all be carried over; right?

6

A.

It depends which features they used.

7

Q.

So it's possible that they could be

8
9

distributed by e-mail, then, iBooks Author works?
A.

The contents of an iBooks Author document

10

could be copied and pasted into an e-mail, the words

11

that you write, and then disseminated in that

12

fashion.

13

want to share that information.

It is for the author to decide how they

14

Q.

Are you familiar with the name "iBooks 2"?

15

A.

I am.

16

Q.

What is it?

17

A.

It is the name -- it is -- it is the second

18
19
20

version of the iBooks application.
Q.

Is the original iBooks application still

available for download from Apple?

21

A.

Not to my knowledge.

22

Q.

What are the differences between iBooks 2

23

and the original iBooks software, to the best of

24

your knowledge?

25

A.

iBooks 2 added support for works created
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with iBooks Author.

2

features.

3

that were associated with that.

4

I believe that was the primary

So -- and there was a number of features

So, for example, study cards is a feature

5

that was -- that came with support for iBooks Author

6

books and documents.

7

Q.

When was iBooks 2 released to the public?

8

A.

I believe it was released at or around the

9

same time as iBooks Author.

10

Q.

So would that be January 2012?

11

A.

I believe so.

12

Q.

How would you ascertain that date with

13

certainty?

14

A.

Look at a press release.

15

Q.

Are you familiar with the trade name

16

I'm not certain.

"iBooks Textbook"?

17

A.

18

Textbook."

19

Q.

20

I'm familiar with the term "iBooks
I'll withdraw the question.

I didn't mean

to imply anything legal, a trade name.

21

Are you familiar with the name "iBooks

22

Textbook"?

23

A.

24

Textbook."

25

Q.

I'm familiar with the name "iBooks
What is it?
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A.

It is a descriptive term to describe one

2

type of work that could be created with iBooks

3

Author.

4
5
6

Q.

Did iBooks Textbooks exist before the

release of iBooks Author?
A.

There was a textbook category available in

7

the iBookstore for which books that could be

8

described as textbooks were available.

9
10
11

Q.
Author?
A.

12
13
14
15
16
17

Who is the intended audience of iBooks
Anyone with a Mac or PC -- I'm sorry.
Anyone with a Mac who wishes to create a

work.
Q.

Can iBooks Author be used on any platform

other than a Mac personal computer?
A.

iBooks Author is only available on the

Mac.

18

Q.

So iBooks Author cannot be used on an iPad?

19

A.

It depends what you mean by can iBooks

20

Author be used on an iPad.

21

with iBooks Author can be experienced on an iPad.

22
23
24
25

Q.

The work that is created

Through the use of the iBooks software

application; right?
A.

Through the use of the iBooks application,

the work that's been created with an iBooks
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used for many, many purposes.

2

type words.

3

They can use to it create -- they can use many of

4

the various objects that are included, widgets that

5

are included in the application, to lay out a work,

6

as the author intended.

7

ways that that application may be used.

8
9

Q.

They can use to it

They can use it to paste in images.

So that -- these are the

So iBooks Author can be used to design the

appearance of the iBooks Author work; right?

10

MS. RAY:

11

THE WITNESS:

Objection.
iBooks Author can be used

12

to take -- I'm not sure I'm understanding what

13

you're getting at or what your question is

14

specifically.

15

just want to make sure I understand what you're

16

trying to say.

17
18
19
20
21
22
23
24
25

Could you restate your question.

I

BY MR. CHATTORAJ:
Q.

Well, I'm not trying to -- I'm just asking

you questions.
A.

That's fine.

I want to make sure I

understand your question before I answer it.
Q.

That's a good idea, and you're always

welcome to ask for clarification.
When I say "design," what I mean is to use
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and by "elements" I include both, you know, included

2

objects, text, pictures, covers, in a way that the

3

author wishes to present a certain design of the

4

work to anyone who seeks to read or experience that

5

work.

6

A.

A person who's creating a work with

7

iBooks Author can use iBooks Author's various

8

functions to lay out the contents of that work any

9

which way they please.

10

Q.

Does Apple act as a publisher of books

11

created with iBooks Author that are then offered

12

for sale or download through the iBookstore?

13

MS. RAY:

14

THE WITNESS:

15

on -- well, no.

16

Objection.
I'm not sure.

It depends

"publisher."

17
18
19
20

I don't know what you mean by

BY MR. CHATTORAJ:
Q.

Do you have an understanding of what the

word "publisher" means in general?
A.

It is a -- a publisher -- a publisher, in

21

my view, is a organization or legal entity that is

22

responsible for the cost of distributing work.

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which point I imagine that they share in any

24

revenues that might result from a purchase of that

25

work.
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A.

All this -- all this information is, but

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from a customer's perspective, there is no

3

representation of that separate data file.

4

customer's experience perspective, when they open

5

the document, they are viewing a singular document.

6

From the

So there is -- while technically under --

7

from an engineering perspective, that data might be

8

stored in a separate file, or in this case, the ones

9

that you listed are, but from a customer experience

10

perspective, they are not represented in a separate

11

fashion.

12

Q.

Right.

But just to be clear, from an

13

engineering perspective, annotations, highlighting,

14

font changes, font size changes, backgrounds, themes

15

are all stored in a separate data file from the

16

actual --

17

A.

They're not stored within the book.

I

18

don't know if it's a data file or if it's a

19

database, but they're not -- they don't modify the

20

original book or the original document that you're

21

looking at.

22
23

Q.

If I own -- let me start over.
I have an iTunes account, and I use my

24

iTunes account to download content both to my iPhone

25

and to my iPad -- that's my iPad (indicating).
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BY MR. CHATTORAJ:

2

Q.

3

Exhibit 8.

4

that describes various features of the iBooks app.

5

Is that a fair characterization?

6

A.

Continuing to look at page 3 of Gedikian
The left-hand side, there's some text

It appears that there are -- there are a --

7

several paragraphs that describe various aspects of

8

the iBooks app.

9

Q.

The third paragraph down has a title in

10

heading font that says, Use Reading Tools.

11

a fair characterization of that phrase?

Is that

12

A.

That is an accurate reading of that phrase.

13

Q.

Would you call that a --

14

(Discussion off the record.)

15

MR. CHATTORAJ:

We took a brief pause for

16

the court reporter and videographer.

17

continuing.

18
19

We are

BY MR. CHATTORAJ:
Q.

You just testified that "Use Reading Tools"

20

was an accurate reading of the phrase that appears

21

there.

22

characterize that has a heading describing the

23

content in the paragraph that appears below the

24

phrase "Use Reading Tools"?

25

A.

I'm asking you also is that fair to

It appears that "Use Reading Tools" is a
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heading for that paragraph.
Q.

The paragraph reads, You can highlight or

3

underline text, make notes, look up a word in the

4

dictionary or on the Web or search inside the book.

5

You can even VoiceOver to have iPad read to you.

6

Did I read that correctly?

7

A.

Yes.

8

Q.

Would it be fair to characterize those

9

features as reading tools?

10

MS. RAY:

11

THE WITNESS:

12

15

That is one interpretation of

these features.

13
14

Objection.

BY MR. CHATTORAJ:
Q.

Is that the interpretation that is

reflected on this page?

16

A.

17

more time.

I believe that -- allow me to read it one

18

It depends on what you mean by "reading

19

tool."

20

text or adding a note or looking up a word doesn't

21

necessarily have to mean that -- that it aids you in

22

reading.

23

concept of reading in this particular case.

24
25

Q.

I believe using highlights or underlining

It's just a tool that's related to the
So this is a misleading, "Use Reading

Tools"?
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preparation of the documents?

2
3

MS. RAY:

whether I did or not.

4
5

Unless I see them, I can't know

MR. CHATTORAJ:

I am showing Counsel a

document, as she suggested.

6

And I ask you to verify.

7

document you're referring to (indicating)?

8

MS. RAY:

9

MR. CHATTORAJ:

10

13

I believe it is.
Okay.

We'll print that out

and look at that after the next break.

11
12

Is this the

BY MR. CHATTORAJ:
Q.

Mr. Gedikian, is the iBooks software

application an interactive Web collaboration system?

14

A.

It could be interpreted in that way, yes.

15

Q.

How?

16

A.

By interactive, when you open a document

17

with iBooks, you can interact with the contents of

18

that document.

19

can change the background.

20

and point size.

21

of notes and highlights.

22

those ways it is an interactive -- read the

23

description again.

You can swipe through pages.

You

You can change the font

You can add commentary in the form
You can-- so, yeah.

24

Q.

Interactive Web collaboration system.

25

A.

Yeah.

So in

You could view it that way.
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example, if my wife and I both had iBooks and were

2

using the same account, we could both be looking at

3

the same document and making such edits and changes

4

to them.

5
6

Q.

Are you and your wife permitted by Apple's

terms of use to share the same account?

7

A.

I don't know.

8

Q.

Is it part of Apple's marketing

9
10
11

communications to the general public that they
should share iTunes accounts?
A.

In my experience, when we talk about

12

"accounts," we talk about them in the context of one

13

account per person.

14

Q.

So other than sharing iTunes accounts, are

15

there other ways in which this phrase, "interactive

16

Web collaboration systems," would apply to iBooks?

17

A.

Well, the fact that I can also take the

18

highlights in the book and the commentary that I add

19

and share them with my friends or my wife via e-mail

20

or other mechanisms, I believe that is another

21

interpretation of how iBooks is an interactive

22

collaboration tool.

23
24
25

Q.

So you're able to send e-mails from within

the iBooks application?
A.

Yes.

So if I type up a highlight -- or if
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I make a highlight and add a notation to it or a

2

passage or a comment or whatever, there is a way for

3

me to go and share that note directly from inside of

4

iBooks, which would bring up an e-mail form inside

5

of iBooks and send it.

6
7
8
9

In the same way that you can share photos,
for example, from the Photos app via an e-mail.
Q.

In my experience of iOS, if I'm using the

Photos app or iBooks app or iTunes -- withdrawn.

10

When I'm using the iBooks app in iOS and

11

I -- I seek to e-mail a document, doesn't it open

12

the Mail app?

13

A.

I don't believe that to be the case.

I

14

believe a mail sheet -- an e-mail sheet comes up on

15

top of the app, at which point you can pick your

16

sender and subject and you can see the body of the

17

message that is pre-populated by iBooks, and then

18

you can send that message.

19

iBooks is still visible.

20
21

Q.

And when you press send,

But as a technical matter, is that mail --

is that e-mail functionality -- withdrawn.

22

As a technical matter, does the e-mail need

23

to be sent by the e-mail client that's installed on

24

an iOS device?

25

A.

As a technical matter, the e-mail sheet is
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a -- is a representation of a Mail sheet that

2

would -- you could also access inside of the mail

3

app.

4

If you did not have an account set up, for

5

example, inside of the Mail app for e-mail, then

6

attempting to use that feature inside of iBooks

7

would not -- would require you to set up a mail

8

account.

9

Q.

Is the e-mailing function that you're

10

talking about within iBooks handled by mailing

11

software installed on an iOS device as opposed to

12

iBooks, after iBooks has populated the content of

13

the e-mail?

14

MS. RAY:

15

THE WITNESS:

16

Can you repeat the question,

please.

17
18

Objection.

BY MR. CHATTORAJ:
Q.

Is the e-mailing function that you're

19

talking about within iBooks handled by e-mail

20

software that is installed on an iOS device separate

21

from iBooks?

22

A.

23

"handled."

24

Q.

25

I'm not sure I understand what you mean by
Does the e-mail that is sent out by the

user -- withdrawn.
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2

Does iBooks contain an e-mail client?
A.

iBooks -- iBooks can access a system -- a

3

developer API that allows applications to send

4

e-mails.

5

Q.

What is an API?

6

A.

An API is, I believe, short for application

7

programming interface.

8

the programming language that is used to create an

9

app that provides some sort of feature or benefit

10

It's basically a function of

within the app.

11

So in the case of -- in this specific

12

example, I believe there's a mail API that allows

13

you to invoke or bring up a mail sheet, if you will.

14

We call it a mail sheet.

15

display an e-mail message and send it from within an

16

application.

17

Q.

Which allows you to

Is the iOS mail API available to other

18

software applications that developers can create for

19

iOS devices?

20

A.

I believe that to be the case.

21

Q.

So does iBooks itself contain anything

22

other than a call upon the mail API to have its

23

e-mail functionality?

24

A.

Can you restate the question?

25

Q.

You said that iBooks calls on mail API in
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2

order to put up the e-mail sheet; right?
A.

iBooks will invoke a mail API that will

3

display a blank e-mail -- or a new e-mail sheet that

4

iBooks will then pre-populate with information,

5

depending on what you're sharing.

6
7
8
9

Q.

Is the mail API itself part of the iBooks

code?
A.

The mail API is a -- my understanding is

that the mail API is a function of the iOS system

10

software, and that applications can choose to take

11

advantage of that functionality.

12

Q.

So testimony answer is, no; right?

13

MS. RAY:

14

THE WITNESS:

15

Objection.
I believe I answered your

question.

16

BY MR. CHATTORAJ:

17

Q.

Is the mail API part of iBooks?

18

A.

The mail API is a system-level API that any

19

application can take advantage of.

20

what you mean by "is the mail API part of iBooks."

21

The fact that iBooks contains code that invokes the

22

mail API could be construed as it being part of

23

iBooks.

24
25

Q.

It depending on

What other collaborative methods exist with

respect to iBooks other than sharing iTunes accounts
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2

and e-mailing certain content to other users?
A.

As a user you can choose to visit the

3

iBookstore, and from there you can provide ratings

4

and reviews on any given book and have a

5

conversation, if you will, with other users about

6

the contents of a particular title.

7

You can also access a "tell a friend"

8

feature within the store that allows you to

9

recommend a particular title to a friend or a

10

colleague or a family member, at which point you can

11

then have subsequent conversations, an e-mail or

12

other forms.

13

In iOS 6, we added the ability to like a

14

particular title on Facebook.

15

which of your friends have also liked the particular

16

title.

17

interact with others on a particular title.

18

Q.

And it would show you

So there are multiple ways that you can
Going back to the e-mail functionality for

19

a second, does the recipient of the e-mail that you

20

send by pressing the e-mail button within iBooks

21

have to be using the iBooks software?

22

A.

The recipient of the e-mail that's

23

generated is a -- based on the user's action does

24

not require that the customer on the other end have

25

iBooks to read the e-mail.
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Q.

And what does iBooks populate the e-mail

2

with when you sent an e-mail out of the iBooks

3

software?

4

A.

Depends on what you're sharing.

5

Q.

What kinds of things can you share by

6
7

e-mail?
A.

You can share -- I believe you can share a

8

specific title.

9

recommend a book that you have been reading to a

So, for example, if you want to

10

friend, you can share the existence of that title,

11

at which point the recipient would receive an e-mail

12

with a reference to the title and the ability to go

13

to the iBookstore to get more information.

14

You can share annotations, notes, comments,

15

passages, whatever, that you've added to a book, or

16

any title that you have in your iBooks bookshelf.

17

You can share highlights that you've made.

18

I believe those are the -- the things that

19

come mind.

20

Q.

And the person who receives it can read it

21

regardless of whether they have the iBooks

22

application; right?

23

A.

That is a standard e-mail, so it will

24

arrive in their inbox.

25

or any mail reading application.

And whether they use Gmail

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2
3

Q.

Now, you mentioned user reviews of books,

right, as another collaboration method?
A.

That is one way that a customer can, yes,

4

interact with another customer and collaborate on

5

the dialogue of a particular title.

6
7
8
9
10

Q.

Is a person able to write reviews of books

from within the iBooks app interface?
A.

A customer can write a review from within

the iBookstore which is represented inside of the
iBooks app.

11

Q.

Is that another API call?

12

A.

The review is a feature of the iBookstore.

13
14

So that's just part of the fabric of the iBookstore.
Q.

Please describe for me the user experience

15

of writing a review of the title from -- within the

16

iBookstore, as accessed through the iBooks app.

17

A.

So as a customer, you would tap the store

18

button and arrive on typically the iBookstore home

19

page.

20

From there you can tap on any title.
And when you tap on the title, you're taken

21

to a -- a product details page that describes the

22

details of that title.

23

a way to provide a star rating, which is a

24

five-point star, like, quick way to provide a

25

positive or negative view of a particular title, as

And within that page there's

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well as a writer review feature, where you can go in

2

and provide a subject line and, in effect, a

3

dialogue.

4

particular title.

Whatever you want to say about a

5

Q.

And that's a dialogue?

6

A.

It's -- I don't think it's a dialogue.

7

think it's within -- I'm not certain.

8

I

within the page.

9

I think it's

And then by default, what you see are

10

existing reviews and commentary that have been added

11

by other users, but you can choose to add your own.

12
13
14

Q.

But can you respond to existing reviews and

commentary?
A.

You can tap "Write a review" and identify a

15

particular person's name and write whatever you

16

want.

17

person by doing that.

18
19

So, in effect, yeah you're responding to that

Q.

By stating that you're responding to

their --

20

A.

Correct.

21

Q.

-- review --

22

A.

Correct.

23

Q.

-- or comment?

24

A.

By stating the person's name and writing

25

whatever it is that you want to say, you are
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responding to that person.

2

read it or not is up to them.

3

Q.

Whether they choose to

Are these user reviews similar to user

4

reviews that are available in other e-commerce

5

sites, such as Amazon?

6

MS. RAY:

7

THE WITNESS:

Objection.
I can't say -- I can't attest

8

to what specific features other e-commerce sites

9

employ.

10

I don't -- I don't know.
BY MR. CHATTORAJ:

11

Q.

Have you ever visited Amazon.com?

12

A.

I have visited Amazon.com.

13

Q.

Does Amazon.com contain user reviews?

14

A.

I have seen customer reviews on Amazon.com.

15

Q.

Do those include star ratings?

16

A.

I believe that they do have a notion of a

17

simple positive or negative rating.

18

it's stars or not.

19
20
21

Q.

Do they have reviews?

I'm not sure if

I mean content that

reflects users' opinions about products.
A.

From my experience, I have seen Amazon -- I

22

have seen text from users who are discussing the

23

topic of that particular title --

24

Q.

Does --

25

A.

-- or product, whatever it is.
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context of Amazon.com.

2
3

So I then asked does the iBookstore
describe that use as collaboration?

4

MS. RAY:

5

THE WITNESS:

Objection.
I'm not aware of a specific

6

instance where the word "collaboration" is used in

7

the context of our marketing materials on -- with

8

regard to customer reviews.

9
10

BY MR. CHATTORAJ:
Q.

Are you aware of any use of the word

11

"collaboration" in connection with any marketing

12

materials concerning iBooks?

13

A.

I can't say whether or not that specific

14

word is used in context of our marketing materials

15

with regards to iBooks.

16

like "sharing," for example.

17

share your notes.

There may be similar words,
The fact that you can

18

Q.

But the word "collaboration"?

19

A.

I'm not aware of a specific use -- or I

20

can't recall a specific use of that word, of that

21

specific word.

22

Q.

What about the use of the word

23

"collaborative" in marketing materials in connection

24

with iBooks?

25

A.

I don't recall a specific instance where
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I -- where I've seen that word or remember the use

2

of that word.

3
4
5

Q.

Same question with respect to the

iBookstore.
A.

I don't recall a specific instance where

6

I've used or seen the word "collaborate" or

7

"collaborative" used in the context of the

8

iBookstore in customer-facing marketing materials.

9
10
11

Q.

What about internal communications

concerning marketing of the iBookstore?
A.

I have not seen every single e-mail.

I

12

can't tell you for certain whether or not an

13

employee at Apple used that term in the context of

14

iBooks.

15

Q.

Have you ever seen it?

16

A.

I can't recall.

I may have.

I don't know.

17

"Collaborative" is a bit of a technical or techie

18

term.

19

We try to make things simple for people to

20

understand.

21

appropriate term from a customer's perspective to

22

describe the things that you can do in the context

23

of collaboration.

24
25

Q.

We usually use synonyms for technical terms.
So words like "sharing" is -- is a more

Is that true of your internal

communications concerning marketing of the
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