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)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?