J.T. Colby & Company, Inc. et al v. Apple, Inc.
Filing
168
DECLARATION of Bonnie L. Jarrett 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 (REDACTED), # 2 Exhibit 2, # 3 Exhibit 3 (REDACTED), # 4 Exhibit 4, # 5 Tab - Colby 30(b)(6) Dep, # 6 Tab - Shatzkin Dep (REDACTED))(Cendali, Dale)
<![CDATA[
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 11
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 12
1
M. Shatzkin
2
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?
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 24
1
M. Shatzkin
2
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?
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 25
1
2
M. Shatzkin
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 26
1
M. Shatzkin
2
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.
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 70
1
2
M. Shatzkin
Q
I understand we have only a few
3
minutes left on the tape.
4
a break.
5
A
We might as well take
Okay.
6
THE VIDEOGRAPHER:
The time
7
is 11:00 a.m., and we're going off
8
the record.
9
(Recess taken.)
10
THE VIDEOGRAPHER:
11
is 11:24 a.m., and this begins
12
tape number two.
13
14
Q
The time
Mr. Shatzkin, we're going to mark
as Exhibit 3 a copy of your expert report.
15
(Exhibit 3, Mr. Shatzkin's
16
expert report, marked for
17
identification, as of this date.)
18
Q
Is this the report that you
19
prepared in connection with the Colby and Apple
20
litigation?
21
A
Sure looks like it.
22
Q
Looking at page 2 of Exhibit 3, at
23
the top of the page, in the second paragraph, it
24
starts, "I have reviewed."
25
A
Yes.
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 71
1
M. Shatzkin
2
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.
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 72
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 73
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 74
1
2
3
4
5
M. Shatzkin
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?
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 75
1
M. Shatzkin
2
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.
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 141
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 147
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 148
1
2
M. Shatzkin
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.
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 149
1
M. Shatzkin
2
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?
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 151
1
M. Shatzkin
2
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.
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 152
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 153
1
2
M. Shatzkin
the witness to look at.
3
THE VIDEOGRAPHER:
4
is 2:16 p.m. and we're going off
5
the record.
6
(Recess taken.)
7
THE VIDEOGRAPHER:
The time
The time
8
is 2:20 p.m. and we're back on the
9
record.
10
(Exhibit 9, CD-Rom, marked
11
for identification, as of this
12
date.)
13
Q
We've marked as Exhibit 9 a disk
14
containing a spreadsheet that was produced to us
15
by plaintiffs.
16
name is iBooks trade master file BISAC.
17
loaded that on a laptop for the witness to look
18
at.
My understanding is the file
19
MR. RASKOPF:
20
21
22
We've
This is
Exhibit 9.
Q
Mr. Shatzkin, have you seen this
spreadsheet before?
23
A
Yes, I think I have.
24
Q
Is this the spreadsheet that you
25
talked about earlier that contained sales data
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 154
1
2
M. Shatzkin
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?
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 157
1
M. Shatzkin
2
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.
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 158
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 159
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 160
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 162
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 165
1
M. Shatzkin
2
is I assume this is a recently recent search.
3
don't know about how much of the original iBooks
4
output was cleared for distribution at the
5
moment or even whether that process is an
6
ongoing process.
7
the same search three months from now would it
8
yield the same numbers or would more books come
9
back into play.
10
11
I
So in other words, if you ran
So no, it doesn't really change
my opinion about anything.
Q
And as you said the spreadsheet
12
you looked at, your understanding was it covered
13
2000 to 2004, correct?
14
A
Yes, approximately.
15
Q
So you wouldn't know what the
16
numbers would reflect, for example, for 2008,
17
correct?
18
A
That's right, I would not know.
19
Q
You wouldn't know what the numbers
20
would reflect for 2009?
21
A
That's right.
22
Q
Or for 2010?
23
A
Yes.
24
Q
Or for 2012?
25
A
Right.
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 167
1
M. Shatzkin
2
sold to intermediaries rather than consumers by
3
iBooks.
4
I'm aware of for direct consumer sales.
5
6
They didn't really have a means that
Q
Do you know whether they have a
means today for direct to consumer sales?
7
A
I don't know.
8
Q
Do you know what portion of the
9
10
iPicturebooks sales were hard copies as opposed
to ebooks?
11
A
No.
12
Q
Do you know what portion of the
13
iPicturebooks sales were online as opposed to in
14
other outlets?
15
A
No.
16
Q
Do you know what portion, if any,
17
of iPicturebooks sales were directly to
18
consumers?
19
A
No.
20
Q
Looking at the amended complaint,
21
turning to page six, paragraph 15, looking at
22
that paragraph it says, "The iBooks print books
23
include a large number of famous books from
24
well-known authors, many of them focused on
25
history."
Do you see that?
Does that affect
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 168
1
M. Shatzkin
2
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,
25
or something of that nature.
That's the four
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 172
1
M. Shatzkin
2
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.
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 173
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 174
1
M. Shatzkin
2
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?
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 175
1
M. Shatzkin
2
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?
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 176
1
2
M. Shatzkin
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.
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 183
1
M. Shatzkin
2
absence of sales is not an argument, only the
3
presence of sales is an argument.
4
working from what I knew sales had been, not
5
from what sales were not.
6
Q
So I was
Is it fair to say that your
7
opinion as to whether there were any brand
8
equity in the iBooks name among science fiction
9
book purchasers is based on the number of units
10
of science fiction books that you saw reflected
11
on the spreadsheet that you looked at?
12
MR. RASKOPF:
Objection to
13
the form of the question.
14
A
Yes, it's fair to say that.
15
Q
Is there any other basis for that
16
opinion?
17
MR. RASKOPF:
18
the form of the question.
19
A
No.
Objection to
Actually, that's not quite
20
right.
21
that opinion is the author list, but primarily
22
it was about the number of units sold.
23
24
25
The other element that is a basis for
Q
When you say the author list what
do you mean by that?
A
I mean the illustrious names,
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 184
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 185
1
M. Shatzkin
2
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.
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 190
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 191
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 192
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 211
1
M. Shatzkin
2
Q
You talked about there being
3
opportunities for push strategy both online and
4
in retail stores.
5
respect to iBooks or iPicturebooks any effort
6
has been made to engage in a push strategy,
7
either online or in bookstores?
Do you know whether with
8
A
I don't know.
9
Q
Looking at page eight in your
10
report under opinions and conclusions, in the
11
first paragraph you say, "The iBooks imprint has
12
reached thousands of its niche readers."
13
is the basis for that statement, is that the
14
sales records you looked at?
15
MR. RASKOPF:
16
What
Asked and
answered.
17
A
18
records.
19
Q
Interpretation of the sales
In the next paragraph you refer to
20
very significant science fiction authors
21
including Ray Bradbury and Arthur Clarke,
22
correct?
23
brands?
24
25
A
brands.
Do you consider those authors as being
Sure, they are.
All authors are
Some are better known than others.
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 212
1
M. Shatzkin
2
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.)
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 214
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 215
1
2
M. Shatzkin
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 222
1
M. Shatzkin
2
or that in any way, in my opinion, denigrates
3
his abilities.
4
the publishing business are stymied by the
5
massive number of very, very small commercial
6
projects that we in the publishing business
7
handle as a routine of our day-to-day lives.
8
9
Q
It is normal that people outside
You talked earlier about niche
imprints.
Is it fair to say that iBooks, that
10
the iBooks imprint to the extent it has a brand
11
is a niche imprint?
12
MR. RASKOPF:
13
the form of the question.
14
A
Objection to
I would say it is fair to say that
15
iBooks has the foundation to capitalize on brand
16
equity within the science fiction fantasy niche.
17
When you cross the line of having something that
18
qualifies as a niche imprint or a strong brand
19
is a separate question, but since my premise is
20
that publishing brands are built on the
21
knowledge of consumers who have purchased and
22
read something that gives the brand identity, I
23
think that iBooks did enough to qualify on that
24
basis and if the right strategies were employed
25
they would have -- employed and able to use the
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 223
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
Page 224
1
M. Shatzkin
2
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
TransPerfect Legal Solutions
212-400-8845 - depo@transperfect.com
]]>
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?
