|
DEPOSITION OF JOSEPH FRANELL |
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
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AMERICAN BUDDHA, an Oregon
Nonprofit corporation,
Plaintiff,
vs. NO. 06-CV-3054-PA
THE CITY OF ASHLAND and THE
WASHINGTON POST COMPANY,
Defendants.
_________________________________/
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DEPOSITION OF JOSEPH FRANELL
FRIDAY, NOVEMBER 3, 2006
10:02 A.M.
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LAURA L. SMITH, RPR, OR CSR #97-0340, CA CSR #2731
Certified Court and Deposition Reporter
2305-C Ashland Street, PMB 228
Ashland, Oregon 97520
(541) 488-4677
2
1 APPEARANCES
2
3 For the Plaintiff:
4
BY: CHARLES CARREON, Attorney at Law
5 423 Gateway Drive, #64
Pacifica, California 94044
6 650-735-5277
7
8 For the Defendant City of Ashland:
9 HOFFMAN HART WAGNER, LLP
BY: KAREN O'KASEY, Attorney at Law
10 1000 S.W. Broadway, 20th Floor
Portland, Oregon 97205-3070
11 503-595-1242
12
13 For the Defendant (via telephone): The Washington
Post Company:
14
WILLIAMS & CONNOLLY
15 BY: KEVIN HARDY, Attorney at Law
725 12th Street, N.W.
16 Washington, D.C., 20005
202-434-5257
17
18
Also present: Mrs. Tara Carreon
19 Mr. Michael W. Franell,
Ashland City Attorney
20
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23
24
25
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1 I N D E X
2 Page
3 Examination by Mr. Carreon 4
4 Examination by Mr. Hardy 35
5 Reporter's Certificate 36
6
7
8 EXHIBITS
9 Plaintiff's Identification
10 1 One-page document entitled AFN Copyright 7
Infringement Process
11
2 One-page e-mail dated August 1, 2006 to 9
12 abuse@ashlandfiber.net from Kathleen Parker
13 3 One-page e-mail dated August 2, 2006 to 11
abuse@mind.net from Richard Holbo
14
4 Six-page document entitled Services 11
15 Agreement
16 5 One-page e-mail dated August 1, 2006 to 13
Kathleen Parker from Richard Holbo
17
18
19
20 ---o0o---
21
22
23
24
25
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 BE IT REMEMBERED, that on FRIDAY, NOVEMBER 3, 2006,
2 commencing at the hour of 10:02 A.M., at the office of the
3 City of Ashland Legal Department, 20 East Main Street,
4 Ashland, Oregon, before me, LAURA L. SMITH, a Certified
5 Shorthand Reporter in and for the states of Oregon and
6 California, there personally appeared:
7 JOSEPH FRANELL,
8 a witness in the above-entitled action, called by the
9 plaintiff, who, being by me first duly sworn, was examined
10 and testified as follows:
11 EXAMINATION BY MR. CARREON
12 Q Good morning, Mr. Franell --
13 A Good morning.
14 Q -- we have been introduced.
15 And have you ever been deposed before?
16 A No.
17 Q Okay. So, what we always say is that the oath you
18 just took is the same as you would be given in a court of
19 law, and the answers you give are with the same solemnity as
20 if those were given in court.
21 If at any time you do not understand my questions,
22 please ask me and I will rephrase them; I mean that.
23 And, generally speaking, unless your attorney
24 instructs you not to answer, even if Ms. O'Kasey makes an
25 objection -- for example, she might say, vague and
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 ambiguous, or whatever -- you are to answer the question
2 unless you have been directed not to answer.
3 If you have been directed not to answer, then it
4 would be my duty to say, "Are you going to follow your
5 counsel's instruction?"
6 But usually we take care of that right now by
7 saying if your counsel directs you not to answer, I assume
8 you'll follow her instructions.
9 A I will.
10 Q And then I can waive asking you that follow-up
11 question.
12 A Okay.
13 Q Thank you, okay. Very good. Now, the first
14 witness scheduled for deposition today is called a
15 designated witness to speak on behalf of the city of Ashland
16 with regard to several different questions.
17 I take it you are that witness.
18 All righty. Let's start with the first question.
19 The first question is whether the city of Ashland
20 has a written policy enacted pursuant to the Digital
21 Millennium Copyright Act?
22 A It does not.
23 Q And you are the systems administrator for the
24 Ashland Fiber Net?
25 A I am the information technology director for the
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 city of Ashland.
2 Q And prior to this position, you had another job in
3 Florida for a telecommunication company; what was that?
4 A I was the senior manager of operations.
5 Q For what company?
6 A Knology Broadband of Florida -- K-n-o-l-o-g-y --
7 Broadband of Florida.
8 Q Now, as part of operating the -- excuse me, strike
9 that.
10 As information technology director for the city of
11 Ashland, is it your duty to direct the operations of the
12 Ashland Fiber Net?
13 A It is.
14 Q I take it from your experience that you understand
15 that a Digital Millennium Copyright Act policy, or DMCA
16 policy, as I refer to it, is a great help in running an
17 Internet service provider like Ashland Fiber Net?
18 A Yes.
19 MS. O'KASEY: I object to the form of the question.
20 You can answer.
21 THE WITNESS: Yes.
22 Q BY MR. CARREON: I have a document here that is
23 called the AFN Copyright Infringement Process; it appears to
24 have a couple of initials, Rh, and a date at the bottom,
25 8/11/2006.
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1 I am going to show you this document and ask you if
2 you are familiar with it.
3 A Yes.
4 Q All right.
5 MR. CARREON: Can we mark that as Exhibit Uno?
6 (Whereupon Exhibit No. 1 was marked for
7 identification.)
8 Q BY MR. CARREON: All righty. Looking at Exhibit 1
9 here, can you tell me if August 11, 2006 was the date of
10 adoption?
11 A I don't know that for sure.
12 Q All righty. And do you know the initials, Rh?
13 A Yes, I do.
14 Q Whose are those?
15 A Richard Holbo.
16 Q And do you have any knowledge about when this was
17 adopted, or what reliance employees of -- Ashland Fiber Net
18 employees placed upon this Exhibit 1 document?
19 A I have knowledge of how it's used; I don't know
20 when it was adopted.
21 Q How is it used?
22 A It's used, um, as part of our acceptable use policy
23 and in how we interact with the Internet service providers.
24 Q Now, in this case, what has been alleged by my
25 client, American Buddha, is that there was a service
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 interruption by turning off a modem that serviced her web
2 site and/or not her web site, American Buddha web site, and
3 that that was done in violation of the DMCA. That is just
4 by way of preface.
5 You understand that those are the allegations in
6 the lawsuit; correct?
7 A I've read the allegations and I understand that
8 that was part of it.
9 Q Okay. And have you spoken with Mr. Holbo about
10 this matter?
11 A Yes.
12 Q All right. And what has he told you, if anything,
13 about how he implemented --
14 Well, has he told you that he implemented the
15 procedures set forth in Exhibit 1?
16 A Yes.
17 Q Okay. With respect to the American Buddha matter?
18 A Yes.
19 Q Okay. And the first thing on the infringement
20 process list is, one, "Receive notice of copyright
21 infringement."
22 And there is a document that I will show you and
23 ask you if you can identify that document for me, and its
24 significance to this case, as far as you can understand.
25 A This was an e-mail that was sent from Kathleen
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 Parker to our abuse e-mail address, to the Ashland Fiber
2 Network's abuse e-mail address, that expresses a concern
3 about a copyright infringement.
4 Q And this is the only document that was produced to
5 me which appears to be anything like a notice of copyright
6 infringement.
7 It's your understanding that this is the only
8 notice that was received from Kathleen Harris?
9 MS. O'KASEY: You mean Kathleen Parker?
10 MR. CARREON: Parker.
11 THE WITNESS: My understanding was that there was
12 also a phone call that Kathleen and Richard Holbo had a
13 discussion about, but I don't have firsthand knowledge of
14 that.
15 MR. CARREON: Okay. I'd ask the court reporter to
16 mark this document, as identified as Kathleen's e-mail, as
17 Exhibit 2.
18 (Whereupon Exhibit No. 2 was marked for
19 identification.)
20 Q BY MR. CARREON: Did Mr. Holbo tell you whether
21 there were more than one phone call?
22 A Whether there was more than one phone call with
23 whom?
24 Q Excuse me; Kathleen Parker.
25 A Um, I'm sure of one phone call, I'm not sure if
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1 there were more.
2 Q All right. And what was the substance of that at
3 least one phone call, as far as you understand?
4 A Again, I don't have any firsthand knowledge of
5 that, so I don't know.
6 Q Now, in your former position -- or from the
7 professional study that you have done, do you have any
8 knowledge of whether Exhibit 2 was a notice that complied
9 with the requirements of the Digital Millennium Copyright
10 Act?
11 A I don't know.
12 Q Do you know whether or not a DMCA notice is
13 required to be sworn under penalty of perjury?
14 A I don't know.
15 Q Now, looking at Exhibit 1, item two is: "Attempt
16 to contact downstream customer."
17 Do you have any knowledge of who the downstream
18 customer would be in this situation presented by Exhibit 2?
19 A In this case, our downstream customer would be the
20 ISP.
21 Q And that is InfoStructure?
22 A Yes.
23 Q And did Mr. Holbo tell you that he had forwarded
24 the e-mail from Ms. Parker to abuse@mind.net by means of an
25 e-mail which is printed out there for you?
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1 A He did not tell me that.
2 Q Okay. Is that your understanding of what that
3 document is, Mr. Holbo's forwarding of the Parker e-mail to
4 InfoStructure?
5 A It does not appear to be forwarded, it appears to
6 be a summary of the complaint.
7 Q We'll mark that as Exhibit 3.
8 (Whereupon Exhibit No. 3 was marked for
9 identification.)
10 Q BY MR. CARREON: With respect to all contracts
11 between InfoStructure and the city of Ashland, there are
12 three documents that have been produced by Ms. O'Kasey. I
13 put those in front of you and ask you if those are all
14 contracts between InfoStructure and the city of Ashland?
15 A These are all of the contracts that I'm aware of
16 between InfoStructure and the city of Ashland.
17 MR. CARREON: All right. I'd like to mark those
18 jointly as Exhibit 4 and I will put them in chronological
19 order, with the most recent at the top, as they were given
20 to me.
21 (Whereupon Exhibit No. 4 was marked for
22 identification.)
23 Q BY MR. CARREON: The fifth item of testimony is all
24 e-mails or other correspondence and records of telephone
25 calls between and among the following persons or entities
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1 concerning the matters alleged in this lawsuit.
2 And we have various parties. Perhaps I can just
3 pass you this list and ask you to take a look through it and
4 then I can ask you a couple of questions about that
5 correspondence or e-mail.
6 A Okay.
7 Q All righty. So what I have here, as we've already
8 marked two e-mails as exhibits, we have another one here; is
9 it your understanding that this is, in fact, the only other
10 document which falls into this category: All e-mails, other
11 correspondence, records of telephone calls between and among
12 the following persons or entities concerning the matters
13 alleged in this lawsuit. And then it's essentially the city
14 of Ashland or its employees, InfoStructure, its employees,
15 Kathleen Parker, the Washington Post, the Orlando Sentinel,
16 the husband of Kathleen Parker.
17 Is it your understanding that this is the only
18 other e-mail that falls into that category?
19 A Yes.
20 Q And --
21 MS. O'KASEY: Let me interject something. For the
22 record, we objected to producing any e-mails having to do
23 with conversations with any attorneys in this matter, so
24 there may be other e-mails that are subject to the privilege
25 which are not produced which he wouldn't know about. So --
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1 MR. CARREON: I'm going to go ahead and mark this as
2 Exhibit 5.
3 (Whereupon Exhibit No. 5 was marked for
4 identification.)
5 Q BY MR. CARREON: The comment made by Ms. O'Kasey,
6 without telling me the contents of any documents, are you
7 aware of any communications that took place between any of
8 the city of Ashland employees and attorneys which are
9 subject to privilege, very likely? Are you aware of any?
10 A Yes.
11 Q And do you know when those took place?
12 And again, we can, just for purposes of placing the
13 date, apparently virtually all of the matters pertaining to
14 this lawsuit occurred on August 2nd.
15 A I don't know if they were on that date or not. I
16 know there were communications. I'm not sure of the date.
17 Q All right. Do you know if they occurred before the
18 City of Ashland turned off the modem that was servicing the
19 American Buddha web site?
20 A I don't know that for sure.
21 Q Do you have any reason to believe that there was
22 communication with counsel during the process of deciding
23 what to do with the Parker complaint?
24 A Yes.
25 Q Okay. And so you believe there was some
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1 communication, you don't know what the contents of it was?
2 A That's correct.
3 Q All right. Those communications were had between
4 someone else at the city of Ashland and an attorney?
5 A That's correct.
6 Q In other words, you weren't involved directly in
7 the legal back-and-forth, but you are aware of it?
8 A Yes.
9 Q Did you play any decisive role in the decision to
10 turn off the modem that was servicing the American Buddha
11 web site?
12 A No active decision-making on my part was part of
13 that decision.
14 Q Are you aware of who was the decider, as our
15 president likes to put it?
16 A Yes.
17 Q And may I ask, who was that?
18 A It was the ISP, InfoStructure.
19 Q And how do you know that?
20 A That is what I was told.
21 Q All righty. By?
22 A Both counsel and one of my employees.
23 Q And that employee was?
24 A Richard Holbo.
25 Q Do you know if at -- do you know if, at any time in
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 this process, if there were telephone calls or e-mails from
2 anyone besides Kathleen Parker representing themselves as
3 being an agent of the Washington Post newspapers?
4 MR. HARDY: Objection to form.
5 THE WITNESS: No.
6 Q BY MR. CARREON: So as far as you know, nobody?
7 A That's correct.
8 Q The sixth item of discussion here is, all facts
9 that would support the city of Ashland affirmative
10 allegation and denials set forth in its answer and the
11 persons having knowledge of those facts.
12 That's a little bit technical, but I'm going to
13 show you an answer and these things called affirmative
14 defenses with respect to -- have you seen this document?
15 A Yes.
16 Q All righty. And with respect to the first defense
17 appearing on the second page here, can you tell me what
18 facts would support the city of Ashland affirmative
19 allegations and denials in that first defense?
20 MS. O'KASEY: I object and instruct you not to
21 answer to the extent it requires discussions with your
22 attorney regarding this matter.
23 If you have facts that you have knowledge of
24 independent of any discussions that you have had with
25 counsel, you can answer. Otherwise, I'm instructing you not
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 to answer.
2 THE WITNESS: I have no other facts.
3 Q BY MR. CARREON: Okay. Do you understand what is
4 stated there basically beyond your understanding?
5 A Yes.
6 Q Or do you understand it? Okay.
7 Number two, plaintiff has failed to state a claim
8 for any first amendment violation as AFN is not a public
9 forum and plaintiff has no constitutional, protected right
10 to violate the copyright laws.
11 Now, my first question, do you understand that
12 question?
13 A Yes.
14 Q All right. Now can you answer it?
15 MS. O'KASEY: I object and instruct you not to
16 answer to the extent it calls -- it requests or requires you
17 to reveal any conversations that you have had with your
18 attorney.
19 If you are aware of any facts independent of any
20 conversations that you have had with your attorney, you may
21 answer; otherwise, I'm instructing you not to answer.
22 THE WITNESS: I'm aware of no other facts.
23 Q BY MR. CARREON: So you don't know whether AFN is
24 or is not a public forum?
25 MS. O'KASEY: That calls for a legal conclusion,
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 Counsel. Object to form.
2 MR. CARREON: That's what these designated
3 witnesses are for, is to speak for the city. If you don't
4 want to have a witness who doesn't understand the matter
5 testify on behalf of the city, I'll give you an opportunity
6 to put him forward. Otherwise, this will be the city of
7 Ashland's answer to that question. Is it a public forum.
8 MS. O'KASEY: I object to the form of the question,
9 it calls for a legal conclusion. Further, if it requires
10 you to discuss any information that you've learned through
11 your counsel, that is subject to the attorney-client
12 privilege.
13 If you have any knowledge outside of that, you can
14 answer. If you don't, I'm instructing you not to answer.
15 THE WITNESS: The only knowledge I have is knowledge
16 that I've gained through my interaction with my legal
17 counsel.
18 Q BY MR. CARREON: Okay. So the city of Ashland,
19 then, has no knowledge independent of its communication with
20 counsel concerning whether AFN is or is not a public forum;
21 is that correct?
22 A That's correct.
23 Q Thank you.
24 And taking a look at item three, it's -- excuse me,
25 the third defense, it says, plaintiff fails to state a claim
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 for declaratory relief because his service has been
2 reconnected and there is currently no justiciable claim or
3 controversy.
4 Do you agree, as the city of Ashland --
5 Speaking on behalf of the City of Ashland, do you
6 agree that the reconnection of service has eliminated any
7 grounds for dispute in this lawsuit?
8 MS. O'KASEY: I object and instruct you not to
9 answer to the extent it calls for information that you've
10 learned through conversation with your attorney.
11 If you have any independent facts outside of
12 conversations with your attorney, you may answer; but if you
13 do not, you may not answer the question.
14 THE WITNESS: I have no independent facts.
15 Q BY MR. CARREON: Let's take a look at the fourth
16 defense, and I'll just ask you to look at that and ask me
17 directly with respect -- answer me directly with respect to
18 the fourth defense.
19 Do you have any knowledge, independent of what you
20 have gained from your discussions with counsel with regard
21 to that fourth defense?
22 A No.
23 Q Okay. Let's move down to the fifth one, and you
24 can read that. That one is entitled Mootness, and the same
25 question again.
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 A Same question, no.
2 Q And with respect to the sixth defense, same
3 question.
4 A No.
5 Q With respect to the seventh defense?
6 A No.
7 Q And with respect to the eighth defense, which is
8 also labeled, And by Way of Counterclaim?
9 A No.
10 Q One of the other topics to be discussed today is
11 whether there is anyone else in the city who has knowledge
12 of any of the questions that I am asking you.
13 Is there anyone else in the city that you know of
14 who would have any facts, outside of what they may have
15 learned from discussing the matter with an attorney, with
16 respect to any of those affirmative defenses and with
17 respect that you said you had no personal knowledge; anybody
18 else?
19 A No.
20 Q If I were to ask you to assume that InfoStructure
21 has said, through its agents, that the city of Ashland made
22 the decision to turn off the modem that was servicing the
23 American Buddha web site, would you have any response to
24 that?
25 A It would require me to speculate, so I think I
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 would defer to answer that.
2 Q Have you had any discussions with Mr. Holbo about
3 that?
4 A About?
5 Q About InfoStructure's blaming the City of Ashland
6 for turning off the --
7 A No.
8 Q -- the American Buddha?
9 A No, I have not.
10 Q Any discussions with InfoStructure?
11 A No.
12 Q Any discussions with counsel, with regard to which
13 you would not give me the contents, but you can tell me that
14 the discussion occurred?
15 A About that allegation?
16 Q Yes, sir.
17 A No.
18 Q I take it there is no dispute that the modem was
19 actually turned off and that the American Buddha web site
20 was -- and all the other web sites that were available
21 through that modem in fact was turned off for a period of
22 time on August 2nd?
23 A The only thing I can speak to is that the modem was
24 turned off. I -- I have -- I have no further knowledge as
25 to any other effects that that might have had.
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 Q And to your understanding, the purpose for doing
2 that, why was that done?
3 A Because InfoStructure, our customer, instructed us
4 to turn off the modem.
5 Q And their reason for doing that as understood by
6 you?
7 A Was that there was a complaint of copyright
8 violation.
9 Q Are you aware of any other occasions, since you
10 began your tenure here as the information technology
11 director, whether a modem has been turned off at the request
12 of one of the downstream ISPs --
13 A I --
14 Q -- for -- excuse me, for copyright infringement,
15 for alleged copyright infringement?
16 A I have been told that there are instances of that
17 happening. I wasn't personally involved.
18 Q Okay. But your understanding is that the city of
19 Ashland has been turning off modems during the time that you
20 have been the technology director in response to requests
21 from ISPs in order to remedy claims of copyright
22 infringement?
23 A Yes.
24 Q And there would be documentation on each of those
25 occurrences?
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 A I believe there is documentation, yes, but I'm not
2 -- I have not seen that documentation.
3 Q And in each case, it's your understanding that the
4 city of Ashland continues to adhere to the policy set forth
5 in Exhibit 1?
6 A Yes.
7 Q And so in each case, there would be a notice of
8 copyright infringement, a record of the attempt to contact
9 the downstream customer, a record of there being an
10 eight-hour interval for allowing the copyright infringement
11 to be cured, and then a record of the modem being placed in
12 the local.modems file in the DHCP servers?
13 You can just go ahead and review that; I think I've
14 just summarized what is on Exhibit 1.
15 A Our policy I don't believe requires us to keep
16 records of those steps being taken, but I believe all of
17 those steps were taken in each case.
18 Q There is nothing in this Exhibit 1 policy that
19 provides for notification to the operator of the web site
20 who is alleged to be posting infringing material; correct?
21 A That's correct.
22 Q And is it your understanding that that is in
23 compliance with or in violation of the DMCA?
24 A Since my relationship is as a wholesaler to ISPs, I
25 don't know if that is a requirement or not of the DMCA.
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 Q Do you have any intention to inquire into DMCA
2 compliance with counsel for the City of Ashland in order to
3 determine whether perhaps some amendment to the policy set
4 forth in Exhibit 1 would bring it into compliance with the
5 DMCA or whether no such changes are necessary?
6 A Yes.
7 MS. O'KASEY: Let me just object to the form of the
8 question.
9 THE WITNESS: Sorry.
10 MS. O'KASEY: You can answer.
11 THE WITNESS: Yes.
12 Q BY MR. CARREON: And so in a sense, this case is
13 highlighting a legal concern that you are going to follow up
14 on?
15 A Yes.
16 Q I take it it is the --
17 Let's go back to one other topic. The city of
18 Ashland has alleged that Ashland Fiber Net is not a public
19 forum, as we discussed. You said you didn't have any
20 personal knowledge of that.
21 Are there any mission statements -- is there a
22 mission statement for the Ashland Fiber Network?
23 A I'm not certain.
24 Q Would you agree that the Ashland Fiber Net is 100
25 percent municipally owned by the City of Ashland?
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 A Yes.
2 Q And we would agree that the City of Ashland is a
3 municipal subdivision of the state of Oregon?
4 A Yes.
5 Q And we would agree that the entire revenue base of
6 the city of Ashland is funded by taxation and other
7 collections from its residents and activities that are
8 performed for the benefit of the residents?
9 MS. O'KASEY: I object to the form of the question.
10 You can answer.
11 THE WITNESS: I don't know that for sure. I've only
12 been with the city seven months; I am not certain of all of
13 its funding sources.
14 Q You are unaware of any funding sources outside of
15 the usual municipal sources, taxation and whatever revenue
16 is taken in; for example, through an enterprise of AFN which
17 does have a revenue flow, correct, income flow?
18 A There are two questions there, so -- sorry.
19 Q I do that. That's what the court reporter was
20 warning us all about at the beginning. Let me break them
21 down.
22 Ashland Fiber Net generates revenue?
23 A Yes.
24 Q And that revenue comes from -- the first source
25 would be ISP contracts such as those that we viewed here
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 today?
2 A That's one of the sources, yes.
3 Q The second would be from subscriber revenues which
4 are -- that there are -- I believe there is still cable
5 television and there are direct subscribers to that through
6 AFN.
7 A There are some direct subscribers to AFN, not cable
8 television today.
9 Q Those contracts have been sold?
10 A Not sold.
11 Q We don't need to venture into that.
12 If we were to ask you for a safe summarization of
13 what you would tell your employees at Ashland Fiber Network
14 as the goal with respect to providing service to the
15 citizens of Ashland, how would you summarize that, 30 words
16 or less?
17 A To provide advanced telecommunication services to
18 the citizens of Ashland.
19 Q And advanced telecommunications services, let's
20 break that down. What would that include?
21 A Today, that could include high speed Internet
22 services, television or other video services, it could
23 include telephone services, and there are other
24 telecommunication services that might be available, but
25 those would be the ones that would come to mind.
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 Q All of those involve speech; correct?
2 A Yes.
3 Q It is not the policy of the city of Ashland to
4 provide more favorable access to any party to the
5 instruments of telecommunication that are provided by AFN?
6 A Is that a question? I'm sorry.
7 Q That's what we would call a leading question.
8 A Okay.
9 Q Would you agree?
10 A Yes, I would agree.
11 Q It's the policy of the city of Ashland to provide
12 all the telecommunication services that it has on an equal
13 basis to everyone who pays the appropriate designated fees
14 that have been adopted by the city?
15 A Yes.
16 Q One of those services that is made available, not
17 necessarily utilized by the vast majority, but is made
18 available through AFN is the ability to host web sites which
19 can be viewed on the Internet.
20 MS. O'KASEY: I object to the form of the question.
21 You can answer.
22 THE WITNESS: We don't host web sites. All we do is
23 provide connection to the Internet. How those connections
24 are used is not something that we, um, we dictate.
25 Q BY MR. CARREON: Let's be a little bit technical.
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
27
1 Every modem has what is called an Internet protocol;
2 correct?
3 A MAC address.
4 Q MAC address that is unique; correct?
5 A Yes.
6 Q That modem is placed in the home or office of any
7 Internet user here in the City of Ashland in order to obtain
8 services on the Internet?
9 A Yes.
10 Q That modem can be utilized to send and receive
11 e-mail; correct?
12 A Yes.
13 Q It can be utilized to view Internet web sites;
14 correct?
15 A Yes.
16 Q And it can also be used as a conduit to host web
17 sites?
18 A Yes.
19 Q When the modem is turned off, you can't send or
20 receive e-mail, view web sites, or host web sites through
21 that IP address?
22 A That's right.
23 Q In this case, during the time period the modem was
24 disconnected, it was impossible for any of the users who
25 received their Internet access through that modem to send or
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 receive e-mail, view web sites on the Internet, or host web
2 sites through that address?
3 A That's correct.
4 Q All right. And I take it that the city of Ashland
5 would not exercise that power to control access to the
6 Internet and those three levels of communication in a
7 discriminatory manner?
8 A That's correct.
9 Q Nor would it exercise that power on the basis of a
10 distinction between this type of speech or that type of
11 speech because the city of Ashland didn't like it?
12 A That's correct.
13 Q So if someone is publishing a web site or sending
14 e-mails that are defamatory of Mayor Morrison, the Ashland
15 Fiber Net is not going to take any action on it?
16 MS. O'KASEY: Well, I object to the form of the
17 question.
18 You can answer.
19 THE WITNESS: That's correct.
20 Q BY MR. CARREON: And in fact, we can't think up any
21 circumstance where the City of Ashland is going to disable
22 those three communicative functions that we went through
23 unless there is a copyright infringement?
24 MS. O'KASEY: I object to the form of the question.
25 You can answer.
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
29
1 THE WITNESS: That's not completely accurate.
2 Q BY MR. CARREON: They didn't pay their bill?
3 A That's correct, that would be one instance where an
4 ISP would instruct us to disable a modem.
5 Q But there isn't any circumstances we can think of
6 where, assuming that the person paying for access or the
7 business had in fact paid, there is no circumstance in which
8 the nature of the content that is being communicated from a
9 web site would result in a shutdown of the modem except a
10 verified allegation of copyright infringement.
11 MS. O'KASEY: I object to the form of the question.
12 You can answer.
13 THE WITNESS: Not the content specifically, but if
14 what was being transmitted was negatively affecting the
15 network performance, viruses, spams, network attacks, that
16 would be other instances of a violation of an acceptable use
17 policy that could result in a shutdown of a modem.
18 Q BY MR. CARREON: So that -- what would you call
19 that? Those would be malicious communications intended to
20 cause damage to the network or other network users?
21 A Yes.
22 Q Those could also trigger a shutdown?
23 A Yes.
24 Q Any other type of content that would trigger a
25 shutdown?
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
30
1 A Not that I'm aware of.
2 Q So that we come back to the issue of copyright
3 infringement, and that is the only grounds on which the city
4 of Ashland would shut down a modem, then it's rather clear
5 that determining the bona fide nature of any individual
6 allegations of copyright infringement is quite crucial;
7 would you agree?
8 MS. O'KASEY: I object to the form of the question.
9 You can answer.
10 THE WITNESS: Yes.
11 Q BY MR. CARREON: And let us assume -- and if my
12 assumption is wrong, then your answer is void -- but let us
13 assume that the DMCA provides that in advance of a web site
14 being shut down for an allegation of copyright infringement,
15 that the operator of the web site is to be permitted an
16 opportunity to respond to the allegations of copyright
17 infringement, would you agree that in this case, the City of
18 Ashland did not give that opportunity to the operator of the
19 American Buddha web site?
20 A Again, the operator of the American Buddha web site
21 is not the customer of the city of Ashland or the Ashland
22 Fiber Network. So in this case, that would be a question
23 that I believe, since you are asking for an assumption, that
24 would be best directed toward the service provider, the
25 Internet service provider, InfoStructure.
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
31
1 InfoStructure is the customer of the Ashland Fiber
2 Network. The owner operator of American Buddha is not a
3 direct customer of the Ashland Fiber Network.
4 Q But we would agree that the purpose of Ashland
5 Fiber Net wasn't to establish a web of contracting
6 relationships with downstream ISPs but rather to serve the
7 citizens of Ashland; correct?
8 A From the beginning, the Ashland Fiber Network was
9 structured as an open network where that relationship was
10 the relationship that was put in place, so wholesale,
11 retail, customer. So that's the structure that has been in
12 place since the beginning of the Ashland Fiber Network.
13 So I think you could say that the intent was a
14 deliberate intent to set up that structure of a wholesale,
15 retail, customer relationship, the Ashland Fiber Network
16 being the wholesaler, not the retailer.
17 Q Let me ask you: Suppose the City of Ashland
18 receives an allegation of copyright infringement against
19 InfoStructure.
20 A Uh-huh.
21 Q Someone says they have stolen all the text that is
22 on this particular web page and sends you the link; under
23 those circumstances, then, you would agree that
24 InfoStructure would have the opportunity to communicate with
25 the City of Ashland and explain that, actually, it had
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
32
1 licensed all this content from the author and it was
2 perfectly lawful? Yes, this person did write it, however,
3 they had the license; they e-mail you the license, it's all
4 good; you would agree that that communication should take
5 place; correct?
6 A Yes.
7 Q All right. And I take it that if it turns out that
8 the interpretation of the DMCA -- well, back it up.
9 I take it the City of Ashland didn't do anything to
10 determine whether InfoStructure had communicated with the
11 American Buddha web site operator in an effort to determine
12 whether the alleged material in -- the allegedly infringing
13 material in fact was infringing?
14 A I don't know if Richard Holbo asked that question
15 or not.
16 Q Okay. And I take it that if the city learns, from
17 consultation with its counsel, that that sort of
18 confirmation that the communication has actually reached the
19 individual or company whose web site is going to be turned
20 off or whose Internet service is going to be affected before
21 turning off the modem, that the city will make that
22 necessary change in its policies?
23 MS. O'KASEY: I object to the form of the question.
24 You can answer.
25 THE WITNESS: Yes.
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
33
1 MR. CARREON: Perhaps we can take a little break?
2 I'll shuffle through my notes and speak with my
3 client, and if you would like to do any redirect, we can do
4 that and then we can go on to the next witness.
5 (Recess in proceedings.)
6 ---o0o---
7 Q BY MR. CARREON: Mr. Franell, I just had a couple
8 more questions.
9 A Okay.
10 Q One, taking a look at Exhibit 2, I notice
11 references in there to pornographic, obscene, and doctored.
12 Does the fact -- do any of those descriptions of
13 Internet content have anything to do with the procedure on
14 Exhibit 1?
15 A Those descriptions do not.
16 Q Okay. So we would agree that Ms. Parker's
17 complaints that there was content at American Buddha that
18 was doctored, pornographic, or obscene, have nothing to do
19 with determining whether something infringes copyright?
20 A That's correct.
21 Q Okay. And accordingly, if there were a
22 determination by AFN that some content were pornographic, or
23 obscene, or doctored, those would not lead to a shutdown of
24 a modem but rather only the allegation of copyright
25 infringement?
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
34
1 A That's correct.
2 Q All right. With respect to turning off the modem,
3 it is the case that one modem may service a large number of
4 web sites; correct?
5 A There is that capability, yes.
6 Q Because a modem provides access for a server to the
7 Internet, it can provide access --
8 A It can, that's correct.
9 Q -- and a server is basically a computer that
10 stores, within its memory, web site content that can be
11 served to the Internet?
12 A That's one use of a server, yes.
13 Q Okay. And in this case, there was no determination
14 in advance of how many web sites might be serviced by this
15 one modem that was turned off?
16 A There was no determination of that made by the
17 Ashland Fiber Network or its employees. I don't know if
18 InfoStructure did or not.
19 MR. CARREON: Thank you. Okay, that concludes my
20 questions.
21 THE WITNESS: All right.
22 MR. HARDY: I just have a couple questions.
23 MR. CARREON: We have got you, Kevin.
24 MR. HARDY: Okay.
25 - - - - -
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
35
1 EXAMINATION BY MR. HARDY
2 Q Thank you. I apologize for not being there in
3 person, but I do appreciate the courtesy of allowing me to
4 participate by telephone since I'm on the east coast.
5 Just a couple questions.
6 Do you know whether Kathleen Parker is or was at
7 any time an employee or agent of the Washington Post
8 Company?
9 A The only information I have relative to that came
10 from my attorney. So I can tell you what she told me if she
11 wants me to, but that's the only information I have.
12 MS. O'KASEY: His question is: Do you have any
13 information on your own.
14 THE WITNESS: No.
15 Q BY MR. HARDY: No, you do not?
16 A No, I do not.
17 MR. HARDY: That's all I have.
18 MR. CARREON: Very good. We can conclude.
19 MS. O'KASEY: I don't have any questions.
20 (Deposition concluded at 11:02 a.m.)
21 ---o0o---
22
23
24
25
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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1 REPORTER'S CERTIFICATE
2 STATE OF OREGON )
) ss.
3 COUNTY OF JACKSON )
4 I, LAURA L. SMITH, a Certified Shorthand Reporter
5 and Notary Public for the State of Oregon, do hereby
6 certify:
7 That the witness, JOSEPH FRANELL, was present at the
8 time and place herein set forth and was by me sworn to
9 testify as to the truth;
10 That the said proceedings were recorded
11 stenographically by me and were thereafter transcribed under
12 my direction via computer-assisted transcription;
13 That the foregoing transcript is a true record of
14 the proceedings which then and there took place;
15 That I am a disinterested person to said action.
16 IN WITNESS WHEREOF, I have affixed my seal and
17 subscribed my name on January 11, 2007.
18
19
20
21
22
23
______________________________
24 LAURA L. SMITH, Notary Public
CSR NO. 97-0340
25
*** Laura L. Smith, CSR, RPR 541.488.4677 ***
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