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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Page 1 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF NEW YORK 3 4 - - - - - - - - - - - - - x 5 J.T. COLBY & COMPANY, INC. 6 d/b/a/ BRICK TOWER PRESS, 7 J. BOYLSTON & COMPANY, 8 PUBLISHERS, LLC and 9 IPICTUREBOOKS, LLC, 10 Plaintiffs 11 V. 12 Case No.: APPLE, INC., 13 14 11-CIV4060 Defendant - - - - - - - - - - - - - x 15 16 Deposition of Richard S. Goldhor, Ph.D. 17 18 Tuesday, January 31, 2012 19 9:58 a.m. 20 21 Goodwin Procter, LLP 22 53 State Street 23 Boston, Massachusetts 24 Reported by: Deborah Roth, RPR/CSR 25 Job # 45894 TSG Reporting - Worldwide 877-702-9580 Page 13 1 and patents and stuff like that. 2 the flavor of it. 3 Q. 4 Systems? 5 A. So that's When did you start working for Family I started working for Family Systems in 6 the mid-'90s. 7 was after Symantec had acquired Delrina and 8 then did the typical kind of big company thing 9 and shut down various site operations of 10 Delrina that they weren't interested in. 11 I forget the exact date, but it So our operation in Boston was shut 12 down in '95, and at that point I started doing 13 various kinds of consulting, and it was 14 shortly after that I started working for 15 Family Systems. 16 Q. Who is Brian Reynolds? 17 A. Brian Reynolds is an English man. He's 18 a very interesting fellow, self-made. 19 I believe, the founder and certainly the head 20 of a company called Micro Focus, who -- their 21 main claim to fame, as far as I understand it, 22 is that they developed a system for developing 23 and maintaining Cobalt programs that ran on 24 PCs. 25 He was, So their customers were enterprises TSG Reporting - Worldwide 877-702-9580 Page 19 1 involved in that work, but I knew of it, and I 2 would occasionally be in on conference calls 3 to Brian and so on. 4 Q. As far as you know, does Brian Reynolds 5 maintain the same residences in California, 6 Manhattan, England and Jamaica? 7 A. I don't believe so, but I'm really 8 not -- I'm really not sure. 9 has sold some of those places. I believe that he I'm under the 10 impression that he spends most of his time in 11 Jamaica these days. 12 13 14 Q. Family Systems? A. 15 16 Did you work on ibook products for Yes, I did. We're talking about now Family Systems -- 17 Q. Family Systems. 18 A. -- version of the -- 19 Q. Ibook product. 20 A. Yes. I wrote -- one of my first 21 assignments, actually, was to work with Brian 22 to write the ibook patent, and in addition to 23 that I had some involvement in writing the 24 very earliest code for the ibook and creating 25 some ibook material, and generally managing TSG Reporting - Worldwide 877-702-9580 Page 20 1 2 3 4 those processes. Q. GOLDHOR Can you describe what Family Systems ibook was? A. Family Systems ibook was a system and 5 an architecture for allowing a community to 6 create material, including text, but not 7 limited to text, and to publish it using web 8 technologies, but to also make it possible for 9 multiple members of the community to edit that 10 material, comment on it, create their own 11 versions of it and so forth. 12 13 Q. In some way it sounds like a precursor to Facebook; would that be it? 14 A. More like a precursor to Wiki. 15 Q. Wikipedia? 16 A. Yeah. 17 Q. Who came up with the name "ibook" for 18 19 the Family Systems ibook products? A. I don't remember. The chances are 20 pretty good that it was Brian. 21 deeply involved in everything that ibook is 22 and became and so forth, but I don't 23 explicitly remember who came up with the name. 24 25 Q. Brian was When you started working for Family Systems, was the idea for Family Systems ibook TSG Reporting - Worldwide 877-702-9580 Page 26 1 effort. 2 GOLDHOR Offhand, I can't think of other 3 examples, but that was a typical idea of who 4 Brian wanted to start using this technology. 5 6 MS. SHEEHAN: Mark this as Goldhor 3. 7 (GOLDHOR EXHIBIT NO. 3 MARKED) 8 Q. Do you recognize this document? 9 A. I don't believe I've seen it before. 10 It looks like introductory instructions for 11 people who might get interested in starting to 12 use ibooks. 13 14 Q. I'll draw your attention to Paragraph 5. 15 A. The one that starts "Use this" -- 16 Q. Paragraph 6, "ibooks." 17 A. Yeah. 18 Q. In that paragraph there's a list that 19 states, "This is great for research teams, 20 professional writers and collaborative teams 21 in businesses and organizations where the most 22 convenient place for coauthors to meet is on 23 the web." 24 A. Uh-huh. 25 Q. Is this an accurate description of who TSG Reporting - Worldwide 877-702-9580 Page 27 1 Family Systems intended to use ibook? 2 3 MS. RAY: A. Objection to form. That's certainly a great description. 4 I wouldn't say it's an exclusive description, 5 that is there are other people, but all of 6 those groups, research teams, professional 7 writers, collaborative teams and businesses 8 and organizations, yes, all of those kinds of 9 groups would have been among the targeted 10 11 users for ibook systems. Q. Who would you add to this list? 12 13 MS. RAY: A. Objection to form. It's more a matter of who I know Brian 14 would add to the list, which would be just 15 about everyone. 16 journals. 17 Vikram Singh, who was traveling around the 18 world, and Brian established an ibook for him 19 to use to record his travels. 20 another example. 21 22 Families to record family There was a young fellow, I believe MS. SHEEHAN: So there's Would you mark this as Goldhor 4. 23 (GOLDHOR EXHIBIT NO. 4 MARKED) 24 A. Yeah, look at that. 25 Q. Do you recognize this document? TSG Reporting - Worldwide 877-702-9580 Page 36 1 ibook concept and its typical of the way an 2 ibook book page would look. 3 Q. What is tri.ibook.com? 4 A. As I recall, it was a website that 5 Brian set up to make it easy for people who 6 wanted to try out the ibook technology to do 7 so. 8 instance, where they could create an ibook. 9 They wouldn't have to have their own server. 10 11 So it would provide a place, for Q. If other users downloaded ibook's software, they would use their own server? 12 13 MS. RAY: A. Objection to form. The ibook technology had a server side 14 and a client side, and Brian would certainly 15 be -- would have been happy to provide the 16 server side technology to anyone who wanted to 17 develop a web server that supported the ibook 18 technology, but most people were hesitant 19 about getting in that deep. 20 So he created a website where anyone 21 could come and basically develop their own 22 ibook, and so he was providing the server as a 23 way to make it easier for people to get 24 started. 25 Q. Did users pay to use Family Systems TSG Reporting - Worldwide 877-702-9580 Page 37 1 ibook? GOLDHOR 2 3 MS. RAY: A. Objection. Form. The reason that I'm hesitating is that 4 Brian's rules about usage were very complex. 5 He actually spent a lot of time trying to work 6 through the issues of what the rights were, 7 but a fairly close short answer is no. 8 most circumstances, use of the ibook 9 technology would have been free. Under 10 Q. What do you mean by rights issues? 11 A. Brian was very aware of intellectual 12 property rights. 13 rights to intellectual property in the form of 14 the patent, for instance, in order to make 15 that technology more widely available and to 16 prevent it from being bottled up by others. 17 He wanted to assert his And as far as the -- what I mean the 18 sort of usage rules, I'm thinking of the kind 19 of rules for open source software, for 20 instance. 21 one point he did a lot of work with an 22 attorney who had expertise in the area of -- I 23 should remember the kind of official phrase. 24 Let's say open-source groups who, like the 25 Free Software Foundation, who wanted to As a matter of fact, I remember at TSG Reporting - Worldwide 877-702-9580 Page 45 1 A. Not to my knowledge. 2 Q. Did Family Systems ever offer 3 electronic versions of fiction books already 4 in print? 5 6 7 MS. RAY: Objection. Lack of foundation. A. I think that Brian would have been 8 delighted to have someone use the ibook 9 technology to create fiction, but if you mean 10 did -- were there instances where people 11 uploaded existing published works of fiction? 12 Q. Yes. 13 A. No. Again, these rules of use that I 14 was describing to you, I know that that was 15 one of the issues that was thrashed out at 16 great length, and from time to time various 17 rules were proposed. 18 was much more focused on people using the 19 ibook technology to create new material. 20 Q. But in general, Brian So, for example, an electronic version 21 of Moby Dick would not be available through 22 Family Systems ibook products? 23 24 25 MS. RAY: foundation. A. Objection. Lack of Calls for speculation. That statement per se isn't true, as TSG Reporting - Worldwide 877-702-9580 Page 46 1 far as I know. 2 bounds. 3 technology very widely available. 4 people to obey the law in their use of it, so 5 if someone had the legal right to the content 6 of Moby Dick and had the legal right to use 7 ibook technology to publish it, that would 8 have been fine with Brian. 9 10 Q. Brian wasn't into setting He wanted to make the ibook He wanted But the purpose of Family Systems ibook products was to create new material? 11 MS. RAY: 12 foundation. 13 Objection. Lack of for speculation. 14 A. Misstates his testimony. Calls Brian wanted to make the ibook 15 technology as widely available as possible and 16 would have been delighted to have all sorts of 17 people use it for different things that he 18 wasn't interested in personally. 19 didn't want people to break the law, so I 20 would say he would be perfectly happy again if 21 someone had the legal right to use this 22 technology to publish what's now called, you 23 know, eBooks or something like that. 24 25 He very much He wouldn't have been interested in that particular use of it, but he would have TSG Reporting - Worldwide 877-702-9580 Page 47 1 been pleased that there was someone who was 2 using it in a way that he wasn't interested in 3 almost. 4 MS. SHEEHAN: I want to mark the 5 next two exhibits as Goldhor 11 and Goldhor 6 12. 7 (GOLDHOR EXHIBIT NOS. 11 AND 12 MARKED) 8 Q. Do you recognize Goldhor 11? 9 A. Yes. 10 ibook ibook. This is another version of the I can't read the contributor. 11 Q. What is Goldhor 11? 12 A. It's a printout of the beginning of an 13 ibook. 14 Q. Did you work on this material? 15 A. I don't remember this particular form, 16 but I know for certain that I worked on the 17 ibook ibook. 18 I wish I could read the contributor. 19 And I recognize the -- in general, 20 the various different technologies that are 21 listed here. 22 23 24 25 Q. Is this an accurate list of the ibook products in 2001? MS. RAY: Objection. Lack of foundation. TSG Reporting - Worldwide 877-702-9580 Page 48 1 A. 2 mean? 3 Q. Yes. 4 A. These were products or ideas for Well, the items under product, you 5 products, except for this thing called 6 progress -- well, it does seem to be -- I 7 don't remember that, the very bottom one, 8 create and manage task lists, but these were 9 products or products to be, yes. 10 11 Q. Is this a list of products that would be available in 2001 on ibook.com? 12 A. In some sense, yes, in some form. 13 Q. Looking at Goldhor 12, do you recognize 14 this screen shot? 15 A. 16 that. 17 version before. 18 Q. 19 20 21 I recognize it by form and stuff like I don't think I've seen this particular Is this a list of the ibook system? MS. RAY: foundation. A. Objection. Lack of Calls for speculation. I'd say it's a list of the family of 22 interrelated ibook services. 23 more as services than products, but either 24 way. 25 technologies. I think of them A list of interrelated ibook TSG Reporting - Worldwide 877-702-9580 Page 62 1 Man. 2 we got as part of Family Systems. 3 4 Q. I believe it is the ibook trademark that I point your attention to the language starting with 4 colon -- 5 A. Uh-huh. 6 Q. -- saying "Computer hardware and 7 software used to support and create 8 interactive user modifiable electronic book." 9 A. Yes. 10 Q. Is that an accurate description of the 11 12 scope of trademark rights for Family Systems? A. 13 That we registered for -MS. RAY: 14 foundation. 15 Objection. Lack of for speculation. 16 A. Calls for a legal opinion. Calls Yes, that is I remember that we 17 registered the trademark for use, both on 18 hardware and software, and it was specifically 19 for interactive electronic books. 20 21 22 Q. electronic books? A. 23 24 25 What are interactive user modifiable It's the -MS. RAY: foundation. A. Objection. Lack of Calls for speculation. It's the ibook technology that we've TSG Reporting - Worldwide 877-702-9580 Page 63 1 described, that is a web-based technology for 2 supporting collaborative creation and 3 modification of content. 4 May I add something? 5 As far as the computer hardware 6 goes, it was always Brian's intent that there 7 would be hardware that would act as a platform 8 for the software. 9 as a -- as smart phone or tablet technology Today you would describe it 10 that would enable you to do all this neat 11 stuff, holding something that was specifically 12 designed to support the ibook technology as 13 opposed to being a general purpose computer 14 with a keyboard and so on. 15 16 17 18 Q. technology? A. The hardware technology was never implemented, so I did not work on it. 19 20 Did you work on that hardware MS. SHEEHAN: Mark this as Goldhor 19. 21 (GOLDHOR EXHIBIT NO. 19 MARKED) 22 Q. Do you recognize Goldhor 19? 23 A. No, I don't. 24 Q. I'll represent to you that this came 25 from the United States Patent and Trademark TSG Reporting - Worldwide 877-702-9580 Page 72 1 agree not to contest Apple's use of ibook for 2 its notebook computer? 3 4 5 MS. RAY: Objection to form. Lack of foundation. A. That's my layperson's understanding of 6 what was going on. 7 if -- without that jointly-signed affidavit, 8 that Apple would have had trouble getting 9 their registration, getting their trademark 10 registered. 11 12 My understanding is that MS. SHEEHAN: Mark this as Goldhor 20. 13 (GOLDHOR EXHIBIT NO. 20 MARKED) 14 Q. Do you recognize this document? 15 A. Without reading through it in detail, 16 but this looks like the consent agreement, the 17 agreement that Apple and Family Systems 18 signed. 19 Yeah, Lawrence Wertheimer is the 20 person whose name -- he lived in New York and 21 he was the director of Family Systems. 22 Q. Pointing your attention on Page 1 -- 23 A. Uh-huh. 24 Q. -- to the description in Paragraph 2 of 25 the Family Systems use of the mark ibook -TSG Reporting - Worldwide 877-702-9580 Page 73 1 A. Uh-huh. 2 Q. -- is this an accurate description, 3 4 GOLDHOR based on your understanding? A. "Computer software used to support and 5 create interactive, user modifiable, 6 electronic books and related goods and 7 services." 8 9 10 11 Q. Yes. And based on your knowledge, Family Systems never expanded its use of the mark ibook from what is described here? A. 12 As far as I know -MS. RAY: 13 foundation. 14 Objection. Lack of speculation. 15 A. Objection to form. Calls for As far as I know, during the time that 16 I was working for Family Systems, everything 17 that we did with the mark falls comfortably 18 under this description. 19 Q. Were you involved at all with Family 20 Systems' assignment of its trademark 21 registration to Apple? 22 23 24 25 A. The complete assignment, no involvement whatsoever. Q. Have you spoken to Brian Reynolds about it? TSG Reporting - Worldwide 877-702-9580 Page 77 1 server somewhere, and there was parts that a 2 user would download onto his or her machine. 3 4 Q. software onto a machine. 5 6 And the user would download that At that time, it would have been -would it have been a desktop computer? 7 A. It could have been desktop or laptop. 8 Q. And I believe you testified that Brian 9 10 11 12 13 Reynolds, who was -- I believe you said he was the owner of Family Systems, correct? A. I don't know the legal arrangement, but he was the mover and shaker. Q. And I believe you testified that 14 Mr. Reynolds envisioned at some point having 15 ibook software that could be used on a smart 16 phone or tablet device, correct? 17 MS. SHEEHAN: 18 A. Objection. Just to clarify, there weren't things 19 called smart phones and tablets, but he was 20 very interested in something that would be 21 easy to walk around with and would be 22 optimized for this use, as opposed to being a 23 general purpose computer. 24 25 Q. But at the time that you were working with the ibook technology, things like smart TSG Reporting - Worldwide 877-702-9580 Page 78 1 phones and tablet computers didn't exist yet, 2 correct? 3 A. Certainly not in their present form. 4 Q. The ibook technology, including the 5 ibook software, would allow users to read 6 books created by other people, correct? 7 A. Any kind of content. 8 Q. Any kind of -- 9 A. If someone had created a novel and put 10 it up in -- using the ibook technology, then 11 people could read that. 12 Q. The content that could be accessed 13 using the ibook technology would include both 14 text and visual material, correct? 15 A. Yes, that's correct. 16 Q. And I believe you testified that 17 Mr. Reynolds did not envision any particular 18 limitations on the type of content that could 19 be accessed, correct? 20 21 MS. SHEEHAN: A. That's correct. Objection. In general, it was 22 intended to be very open-ended enabling 23 technology that could be used for all sorts of 24 things. 25 Q. The ibook technology, including the TSG Reporting - Worldwide 877-702-9580 Page 79 1 ibook software, could have been used by 2 individuals to make books they had written 3 available to others, correct? 4 A. Yes. 5 Q. The ibook technology, including the 6 ibook software, could be used by commercial 7 publishers to make their books available to 8 others, correct? 9 A. The technology certainly could be used 10 that way. 11 whole notion of commercial use, and at various 12 times there were various limitations 13 suggested. 14 this was technology that could be used either 15 by an individual or an organization. 16 Q. As I said, Brian struggled with the But as far as the technology goes, And as it was designed and made 17 available, the ibook technology, including the 18 ibook software, could really be used by 19 anybody to make content available to others; 20 is that correct? 21 22 A. This is anyone who agreed to the licensing terms -- 23 Q. Assuming -- 24 A. -- and had a computer and access to the 25 Internet. TSG Reporting - Worldwide 877-702-9580 Page 80 1 Q. Assuming they had downloaded the 2 software and agreed to the terms associated 3 with the software, and then had it loaded onto 4 some kind of device. 5 A. That's correct, with one caveat. I 6 don't know how important it is, but Brian 7 really strove to put in a requirement that it 8 only be used for material that would advance 9 the common good or something like that. He 10 had language that might appear very 11 idealistic, but he was quite serious about it. 12 And so that was -- that limitation on the type 13 of material would have been the only 14 limitation. 15 Q. So that in terms of the subject matter, 16 it sounds like of the content he had hopes for 17 what it would be used for? 18 A. Yes. 19 Q. And you said that the ibooks 20 technology -- excuse me, ibook technology, 21 including the ibook software, could be used to 22 support and create user-modifiable electronic 23 books, correct? 24 A. Yes. 25 Q. Is it fair to say that a user could TSG Reporting - Worldwide 877-702-9580 Page 81 1 read a book or other content using that 2 technology? 3 A. You mean if someone had created -- let 4 me answer it this way. 5 created, let's say, a novel, had written a 6 novel using the ibook technology, then a user 7 could access the ibook and read the novel just 8 using that software. 9 Q. If someone had They could use the ibook software to 10 look for material, find it, decide they wanted 11 to read it and then read it using the 12 software? 13 A. That's correct, yes. 14 Q. And if a user, in reading some content 15 that they had found using the ibook software, 16 decided that they wanted to add to or modify 17 that content, for example, by adding a note, 18 they could do that as well, correct? 19 20 21 A. If they had the appropriate permissions, they could, yes. Q. I believe you mentioned that the ibook 22 software was available as a free download, 23 correct? 24 25 MS. SHEEHAN: A. Objection. Well, from time to time and for various TSG Reporting - Worldwide 877-702-9580

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