(Back on the record at 11:28 a.m.)
Q Did you have a chance to look at it, Mr. Mishkoff?
A No, I did not.
Q Could you?
A Yes, I do.
Q Let me just direct your attention. Exhibit C is irrelevant to this, and that's only because we copied it from something that was filed in this case. It was Exhibit C attached to something. So you can ignore that.
A Understood. So you want me to look through it now?
Q Yeah. Just look through it.
A Okay.
Q Can you identify it for me?
A Most of it -- well, half of it is the -- is my shopsatwillowbend website, and there is other extraneous material, pieces of other websites in it.
Q Okay. Let's look at the very first page as it's attached right now.
A Okay.
Q And it says at the top, The Shops At Willow Bend?
A Right.
Q Is this the first page of your website by that name?
A Well, all the pages probably say that at the top.
Q They do? I'm not talking about the very, very top. I'm talking about in big font, right in the center of the page at the top.
A Yeah. Several of my pages say that at the top, but I suspect we're talking about -- this is different because Willow Bend, those two words are in a larger font. And I think that's unique to this page. And if that's the page that you're looking at, then I'm looking at the same page.
Q Okay. It says, "The Shops at Willow Bend," and then the very next thing underneath it is a box "This is an unofficial site."
A Yes. That uniquely identifies the page. So I'm sure we're talking about the same page now.
Q Okay. So this looks like what was the page that you would see first when you got onto your website?
A Well, that's a tricky question. Because technically, on the internet you can go directly to any page of any website without going through any specific page. But this was the home page, which I think is what you mean.
Q I knew there would be a word somewhere. Okay. That's what I mean, the home page. And on this home page right under that box it says, "this is an unofficial site," there's a picture -- mine is not a real clear photocopy. So I suspect yours is an even less clear photocopy; am I right?
A Yes.
Q And I also have a color printout with the original for this photocopy. It's a colored picture, but I can't tell if it's a paragraph or a drawing. Do you know?
A I believe it's a drawing.
Q Where was this drawing created?
A I don't know.
Q Where did you get it for your website?
A I copied it from your website.
Q How did you get it from our website?
A I downloaded it from your website.
Q And then the words, "The Grand Court," is that part of what you downloaded?
A No. That wouldn't have had to have been downloaded. That's a description that I'm sure I read on your website. Whether it used those exact words or not, I don't know.
Q But you actually put them under the picture yourself?
A Yes. I believe so. I'm 99 percent sure.
Q And then there's a little description that says, "The Shops at Willow Bend is a 1.5 million square foot shopping mall that opened on August 3rd, 2001" -- oh, there's our answer -- "on the northwest corner of the Dallas North Tollway and West Park Boulevard in Plano, Texas." Did you write that little paragraph?
A Yes, I did.
Q Did you author it, or did you repeat it from somewhere that you had seen before?
A I obviously got the information elsewhere, but I doubt that it's a word-for-word quote from anywhere. It could be, but I'm guessing that it's not.
Q Do you know where you got the information?
A It would have been from one of your press releases or from your website or -- well, I was going to say from the material that I picked up at your trailer, but I wouldn't have gone to the trailer after the mall opened, and this was obviously written after the mall opened. So it was either from one of your press releases as reported in the newspaper or from information that I gathered from your website. I mean, I probably got various pieces of information that are in that paragraph from different sources. The size of the mall -- you know, I knew when the mall opened because I was at the opening ceremonies. I knew the location. I wouldn't have had to get that from anyplace. The size of the mall I obviously got from someplace, and I don't remember where.
Q Okay. You don't remember that you, like, cut and pasted this paragraph?
A It is extremely unlikely, to the point of impossibility, that I would have done that.
Q And then right under that little paragraph that we just read, there are these brackets and it says, "Anchors and Maps" and then a line, and then it says, "Shops," and then a line and then it says, "Facts." What are those three things?
A Those are links.
Q And where do they get you when you press on them?
A They go to other pages on the website, probably pages that are in this exhibit.
Q Okay. Well, let's shelf that for just a minute. We'll go through the pages, and when we get them, if you recognize them as, oh, this is where you can get it, you can tell me.
A Okay.
Q And then it says, "This website" -- underneath those three things that we just read it says, "This website is a community service provided by WebFeats." That would be your company, WebFeats, correct?
A That's correct.
Q "For more information, contact us via E-mail or visit our home page." And then the word, "E-mail" and the word, "home page" are both underlined. So that would imply they're also links?
A Yes, it does.
Q Did you ever get any E-mails?
A I do not remember ever getting any E-mail.
Q Do you remember noticing that you never did?
A I don't know how you can notice something that never happened.
Q Well, you can say, you know, all this time I haven't gotten any E-mails. Do you remember the non-existence of E-mails, or you just don't remember either way?
A I believe that I would remember if I did get an E-mail. I don't believe that I ever got an E-mail from this page.
Q Do you remember any E-mails that would have indicated that they originated from this website anywhere?
A No, I do not.
Q And then it says, "Visit our home page." What does that mean? You know, I was under the impression --
A Can I go back to the previous question and just elaborate? Because once the lawsuit started and I tried to publicize the lawsuit, then I did get a lot of E-mail in relation to this whole issue. And I'm assuming that you were talking about before that just -- and I just want to make that clear.
Q Yeah. That is -- I was talking about people who were reviewing it as a website about the mall and not about the lawsuit.
A Right. Okay. I'm sorry.
Q That's fine. Okay. And then the part that says, "home page," and it looks to be a link.
A Uh-huh.
Q What is that link to?
A That would have gone to the WebFeats home page.
Q And the part that says, "E-mail," what happens when you press at that?
A That's an E-mail link. It would have pulled up typically -- and that varies according to what computer is being used to view the website. It will typically pull up an E-mail form with my E-mail address already encoded as the person to whom the E-mail is directed.
Q Do you have various E-mail addresses?
A I have -- well, technically, I have an unlimited number of E-mail addresses. I have several that I use fairly regularly.
Q Can you identify them for me?
A Sure. The one that I use almost all the time is Hank@WebFeats.com.
Q And "WebFeats" is all one word, plural, correct?
A Correct, WebFeats.
Q Okay. That's one. What's another?
A I use -- I'm trying to think if I've ever used anything else at WebFeats. I believe -- and this is difficult without being in front of my computer. But I believe I use Addisonweb@WebFeats.com.
Q That's A-d-d?
A A-d-d-i-s-o-n-w-e-b.
Q And anything that went to Addisonweb@WebFeats.com would be directed to your exclusive attention?
A Anything that goes to anybody at Webfeats.com goes to my exclusive attention.
Q Okay. Do you have any other E-mail addresses, even if they don't have Webfeats.com as the trunk?
A I have a couple on my Addisonweb domain that I use. One of them is Hank@Addisonweb.com.
Q Does it matter when you do "Hank" if you do a capital or not?
A No. E-mail addresses are not case sensitive.
Q Okay. Hank@Addisonweb.com?
A Right. And I believe I also use Hankm@Addisonweb.com.
Q Do you know -- is that it?
A I know there are more that I check regularly. I have accounts on Compuserv, on Prodigy, on AOL.
Q Can you tell me what they are?
A I don't remember. My E-mail program checks them automatically, and I don't ever give those addresses out, and I don't know what they are.
Q Well, what do you check them for?
A Well, typically, like on Prodigy, sometimes the company -- Prodigy sends out a newsletter once a month, and I check my Prodigy E-mail, and it's there. Compuserv does the same thing. I think they send out a weekly newsletter. But anything that's in those is either something sent out by the company, or it's spam, which I get a lot of at all my E-mail addresses.
Q Do you know which of the four that we just went through is the one that this website that we're looking at in Exhibit 1 as a link?
A It would have gone to Hank@WebFeats.com. That's -- that's the E-mail address that I give out to people.
Q Including your friends, everybody? That's your main one?
A Absolutely.
Q Do you save that E-mail?
A Some.
Q And you -- because of your answer before, I'm surmising you didn't save or don't remember any E-mail that came in relative to the Willow Bend site, but not about the lawsuit, at all?
A I don't remember any E-mail coming in. If any did come in, I might have saved it. I don't know. But I don't remember any having come in.
Q Okay. So now we're back to -- oh, the word -- the link for "home page" --
A Uh-huh.
Q -- that's a link to what home page?
A To the WebFeats home page.
Q Okay. And then above it where it says, "Anchors and Maps" --
A Right.
Q That's a link you said?
A Yes, it is.
Q And where does that -- can you look through these papers and see --
A Yeah. In my pile, it's the next page. At the top it says, "The Shops at Willow Bend Anchors."
Q And is that the Anchors and Maps? That link gets you to this single page?
A Right. That is one link, the phrase "Anchors and Maps." And if you click on that link, it takes you to this one page entitled, "Anchors."
Q And on this second page, which is it second page of Exhibit 1, it says, "Anchors," "The Shop at Willow Bend." And then it says, "Anchors." And it says, "The Shop at Willow Bend will feature five 'anchor' stores." Do you know -- did you write that?
A Yes, I did.
Q And I'm noticing it's written in the future tense. So I guess it was written before the little blurb on the page before, which was written after the mall was open?
A Yeah. My guess is that the blurb that's on the previous page probably was originally in the future tense, and I changed it after the mall opened and neglected to change the text on this page. Obviously it was written before the mall opened and should have been edited but wasn't.
MS. GREENBERG: I'm going to ignore that phone ringing, and I apologize. Did you hear it?
MR. REZNICEK: We did.
MS. GREENBERG: Well, hopefully, it won't happen anymore. I'm ignoring it.
Q So we're back on the page that says, "Anchors." There's an image there, and says underneath it, "Click on graphic to enlarge." What is that image?
A That appears to be a map of the mall and the surrounding roads.
Q Where did that image originate?
A From your website.
Q The other website? Well, let's give that a name. That was the same name as yours, but with the word "The" in front?
A Correct.
Q I think it was theshopsatwillowbend.com?
A Correct.
Q Is that what you mean when you say "your website?"
A That's correct.
Q Okay. Did you download this?
A Yes.
Q Can you explain what you have to do to download the image exactly?
A Typically -- and I think that differs a little bit from browser to browser. But typically, you right-click on it, and then it comes up giving you your options, one of which is to save, and you name the file. It probably gives you a default name, which is the same that you name it. And you save it on your computer at which point it's been downloaded.
Q Did you ever get any permission from anybody to do that?
A No, I did not.
Q Okay. And then next to the image and the words, "Click on graphic to enlarge," there's one, two, three, four, five -- what I think you referred to as anchor stores?
A Right.
Q And where did you get the information from that? Did you write these five things like that, or did you copy that?
A Well, I would have -- I wrote them, but I would have gotten the information from somewhere else. I mean, that's not information that I knew.
Q Do you remember how you got that information?
A Not specifically. It would have been either from one of your brochures or press releases or the newspaper or a combination -- or your websites or a combination of all of those.
Q And these are all -- all five of these store names; Dillard's, Foley's, Lord & Taylor, Neiman Marcus, Saks Fifth Avenue, they all are underlined in the sense that it looks like they are links also; is that correct?
A Yes.
Q Did you take any steps to verify any of this information after you found it, or did you just incorporate it on your website? Do you remember actually researching any of this to verify anything like the square footage or the number of levels underneath all five of those stores? It says, "Saks is not scheduled to open until 2004. The other anchors opened with the mall." Do you have any specific information how you came to rely on these facts and incorporate them?
A As I said, I read them in one of several sources or some combination of those sources. I had very few sources for this information. It would have been your press releases, the newspaper, the website. Possibly the television, but I doubt that. But those were the sources of information that were available to me.
Q Okay. And I'm going to skip to -- let's see -- how do I describe it -- Page 1, 2, and then I'm skipping Page 3, 4, 5 and 6 and 7. And I'm going to what's Page 8 in my pile, and it says, "Shops at Willow Bend Shops" and it is written -- instead of up and down -- or landscape or portrait or whatever. I believe it's written in other orientation. It says in the top-right corner, "Page 1 of 4." Are you looking at that yet?
A Yes, I am.
Q Okay. And this says at what would be the top, if you turn it sideways, "The Shops at Willow Bend Shops." Is this the link that you would arrive at if you press, "Shops" on the home page?
A Yes, it is.
Q And underneath the word, "Shops" it says, "The Shops at Willow Bend features nearly 175 designer and specialty stores and restaurants, including the following:" And then there's a list, and it starts with things that begin with A. So it appears to be in alphabetical descendants. It lists a bunch of things beginning with Adrian Vittadini and going to Caswell-Massey. I'm probably showing my ignorance of designers because I don't know how to pronounce that, but that's what you're looking at, correct?
A Yes. That's correct.
Q And where did you get this list of stores?
A From your website, I believe.
Q Did you create the list of stores from information you got on your website or did you copy this list?
A I imagine that I retrieved it from information on your website. I mean, I don't remember exactly.
Q Well --
A But I don't think there was a list -- I don't remember there being a list of stores on your website. I remember there being a list that had descriptions after each store name, and I didn't want anything but the store names. So I would not have been able to just copy it. I don't remember this list appearing in this form on your website at that time. I think there's one now, but at that time I don't think there was one that I could have copied. So I don't think I did.
Q Okay. What about the words, "The Shops at Willow Bend features nearly 175," did you write that, or did you cut and paste that or something?
A I believe I wrote that.
Q And then each of these has -- not each. Many of these, if not all but two, have an underlining to them. Does that also imply that they're also links?
A Yes, it does.
Q Do you -- when you have to set up something with that link function, do you have to do something technical in the website construction?
A Yes.
Q What does that involve?
A It's a programming language called HTML. And it involves finding out the web address that is to be linked to and writing a line of programming code in HTML.
Q So on this page, for example -- but there are other links -- but on this page, every time there is an underlining, which is most of these store names, did you create a separate little program?
A It's one program statement. It's not a program. It's actually called an anchor command, which doesn't make much sense. But that's the command in HTML.
Q Especially since these aren't the anchor stores?
A Exactly.
Q So can you -- is it possible, if you're copying things from somebody else's website, to copy that function, or do you have to do that yourself?
A It is possible to do it.
Q Do you know if you wrote those functions into your website, or did you use them from the one that you were borrowing from?
A I wrote them myself.
Q Is it possible to get into the programming code of the other website?
A What other website?
Q Well, if you're taking from another website -- you said you referred to theshopsatwillowbend.com, if they have something with a link, you could copy the whole function of the link and everything and put it on yours with the link?
A That's correct.
Q And when you do that, do you actually look at their little one-liner program command, or do you actually just import it?
A You look at something called the source code, which is really just another phrase to describe the HTML code that I described earlier. And you look at the source code and it is possible then to copy it.
Q But you did not do that?
A That's correct.
Q Why did you not just copy the way that they have it?
A I'm not sure there were any links to the stores, and my recollection is that there was not any -- I mean, I know your current website has links to stores. I don't believe your website at the time had any links. It just listed the store names.
Q Okay. Then since they're links -- and it goes to -- the next page, too, continues in alphabetical order; is that correct?
MR. LEVY: Ms. Greenberg, we just had a tape stop. Can we -- we're ready.
Q So the very next page, with more shops, says, "CC's Coffee House," and it goes down in alphabetical order to, "Just Hats." Those are still stores listed on your website?
A That's correct.
Q And, again, they have underlining, which implies that -- I think everything on here execpt maybe two again, or three maybe, are also links. And then we go to the next page. And by the way, these pages are numbered at the top-right corner. So that the page we just looked at with CC's Coffee House says Page 2 of 4. I think that implies Page 2 of the list of stores, there being four altogether. Is that consistent with your understanding?
A This is actually an anomaly of the fact that we're looking at it on paper. On the screen it would be one continuous screen. But because of your printer having to paginate it, it numbers them. That is something that is an issue that does not exist if you're looking at it on the web.
Q Okay. So when you're looking at it, it would have one of those scroll bars on the right probably?
A That's correct.
Q Okay. So all of this -- but just for paper reference, when it says, 2, 3 and 4 of 4, they're all part of that scroll-down list of shops?
A That's correct.
Q Then after that it ends at Yves Delorme. I don't know how to say that, but that's a good guess. Then we have -- the next page it says at the top, "The Shops at Willow Bend" next. Are you looking at that?
A Yes, I am.
Q And it says -- hold on one second. I'll look at the top page again. Would that be the link that you would arrive at when from the home page you press "back"?
A That's correct.
Q So now we're on that facts section, and it's got one, two, three -- five bullet points; is that correct?
A That's correct.
Q Did you write the text?
A Yes, I did.
Q Of various things?
A Yes, I did.
Q Where did you get that information?
A From the same place I would have gotten all of the other information. I don't remember the exact source, probably a combination of your website, your press releases and stories in the newspaper. I don't remember exactly. And possibly your brochures that I picked up at the trailer.
Q Do these facts -- other than the fact that you changed from the future to the past tense and things like that, is this reflective, for the most part, of the material that you put in from the beginning?
A Hang on one second, and I'll tell you. Yes, I believe so.
Q So I was just going to look through the facts first. The first paragraph -- the first bullet point talks about this scheduled opening date, which was moved up to coincide with Texas' three-day sales holiday. My intuition tells me that was not in the brochure because it doesn't seem to be the kind of thing a brochure would say. Would this be something you got from a newspaper article?
A I'd be assuming just like you're assuming, Julie.
Q You don't remember?
A I don't remember. It's a logical conclusion, but that's just an assumption on my part.
Q Is that a regular occurrence, that Texas three-day holiday?
A I think this is the second year that they've done it.
Q Were you aware of it the first year?
A Yes, because another mall timed their opening for that holiday.
Q Well, given that you were paying attention to when the mall was open -- or was going to open -- you don't remember thinking, oh, they're moving it up?
A Yes, I do. I remember that --
Q Okay. Do you remember how you learned it?
A No, not specifically. I assume that I read about it in the newspaper, but I really don't know that for a fact.
Q Then the next bullet point talks about the two-level parking. This is very specific information. My goodness. 6,358 cars, 2,925 spaces on the lower level. Do you remember where you got that information?
A Well, I don't think I counted them. So my guess is it came from some of your information, from one of your press releases or -- the answers to all these questions are going to be the same. I have very few sources of information; the newspaper, your brochure, your press releases and your website. The information would have come from one of those sources. And in no case am I going to be able to relate the information on my website to a specific source.
Q Okay. I notice that in every bullet point, the words "The Shops at Willow Bend" is written in a different font or in italics of the same font.
A Right.
Q Why is that?
A Because it's a name.
Q And you're thinking is -- it's not a link, right?
A No, it's not.
Q You just -- you put names, in general, under different fonts?
A Well, the options are to put them in quotes, to underline them, which you don't like to do on the web. You can do that in print. Or you can -- put them in italics, something to specify that they're a name. The more obvious way to do it is put them in quotes, but I like italics better. It's a design decision.
Q When you say, "name," do you mean like a trade name or trademark?
A I mean the name, the name of the mall.
Q Well, here's the name "Taubman Centers, Inc.," that was in the last bullet point. That looks like a name, but it's not written in italics. How did you distinguish between those two?
A Well, you're asking me to describe a thought process that I went through a long time ago, and I'm not sure I can. I can --
Q Well, I don't really want to commit you to what you were thinking then.
A I mean there are considerations like "shops" is plural, and if it were just text rather than a name, it should have a plural verb, but it has a singular verb. So it's important to show that that is a unit --
Q Committing grammatical errors --
A Well, I can't do that. It's against my policy.
Q Okay.
A I can see a variety of reasons.
Q And then getting back to the last bullet point where it mentions "The Shops at Willow Bend is a project of Taubman Centers, Inc.," is that -- I can't tell that well. Is that a link?
A No. Oh -- I say no, and I'm not sure.
Q Hold on. I may be able to see in the color better.
MR. LEVY: We should make clear, for the record, that although you've described a number of documents as being -- names as being underlined, the copy here makes it very hard to be sure whether what we've got there is a blur or an underline.
MS. GREENBERG: Right. Let me, for the record, tie this in.
Q You saw where it says Exhibit C? That's because this is Exhibit C to the Plaintiff's Motion for Preliminary Injunction. That was a color photocopy, I assume, for everybody. At least it is in mine. So you can tell really much better when you look at the color. For example, in the color the word -- the font, for the most part, is green except for the things that do appear to be links. For example, in the third bullet point, the words "five anchor stores," that's purple, and so is "designer" and "specialty stores" and "restaurants." That's all one big underline in purple. So that's very clear that that's a link. And then the words "Taubman Centers, Inc.," on the last bullet point is in contrast to all the rest of that letter in the bullet point, which are in green. And there's clearly an underline. So that means that's a link. Do you know what that linked to?
A I assume it would have gone to the Taubman website. I don't remember that for a fact, but I can't imagine what else I would have linked that to.
MR. LEVY: Do you have the electronic file that one could -- I supposed that if Mr. Mishkoff could look at the electronic file, he could tell you for sure.
MS. GREENBERG: Okay. Yeah. I'd like to know what it -- but getting back to --
Q There's a fair amount of thought processes that had to go into creating those links. Do you remember, or can you give me your best sense of what you went through -- you must have had to choose a place to link it to. Am I correct in assuming that you didn't have a previous relationship with that website that you linked to to be able to just link it; you had to actually look for what you were going to link it to?
A That's correct.
Q So do you remember what you went through? You must have done some degree of research to figure out where to go with that link.
A Which link are we talking about?
Q Taubman Centers, Inc.
A I just -- I imagine -- in that particular case, I knew -- I believe I knew where the Taubman website was because of all your press materials. I'm not sure I had to look for that. I don't remember. I believe it must have been in your press materials. I can't imagine that it wasn't. And if it wasn't, I would have searched for it. But I believe that it was in your materials. I don't think I had to research that one.
Q Was that something that you might have had reason to visit before putting this website together?
A The Taubman website?
Q Yeah.
A No.
Q Where did you learn that it was a Michigan-based developer retail properties?
A From your materials.
Q Did you have occasion during any of this, from the time you learned about the mall coming during the period of time you created the website, to do any investigation into the company, Taubman, or the individual, Alfred Taubman or Robert Taubman, the CEO, any of those people?
A No, I did not.
Q Did you become familiar at all with any -- with anything else going on with respect to these companies or what they were involved in?
A No, I did not.
Q Did you discuss, ever with anybody, Donna Hartley or anybody, legal proceedings involving a Mr. Taubman in New York?
A I don't believe -- if we're talking this time period, I don't believe I was aware of those proceedings until much later. I think I've only learned about that fairly recently.
Q Okay. Now, going back to the earlier pages that we skipped of this same Exhibit 1. On the third printed page of this exhibit, it says, "Dillards.com" at the top left. And then more in the center it says, "Welcome to Dillard's." Do you see that?
A Yes, I do.
Q Would this be the page you arrive at when you click the Dillard's link on the previous page?
A As far as I know. I'm not familiar with Dillard's website. But you would have come to Dillard's website, and I assume that's what this is.
Q And then similarly on the next page it looks to say Foley's -- information about Foley's.
A Right.
Q Is this where you go when you click Foley's?
A Again, that's my guess. You'd go to the Foley's website, and I'm not familiar with the Foley's website, but this could be it.
Q The next page is Lord & Taylor information, same kind of thing for Lord & Taylor?
A Correct.
Q And then the next page, Neiman Marcus, same kind of thing?
A Correct.
Q The next page, Saks Fifth Avenue?
A Right.
Q Those are all the ones you categorized as the anchor stores?
A That's correct.
Q Do you know if you need permission from any of these stores to put a link on your site?
A Well, I'm not a lawyer, but it's my understanding that you don't.
Q Did you ever look into it?
A I have read things about that concept for the last five years, and everything that I've read has led me to believe that you do not need permission to link to anybody's site.
Q Do you have reason to believe that you need permission, or don't need permission, to download, say, a map or a drawing?
A Could you -- to download a drawing?
Q Well, for example --
A The answer is no, I don't believe you need --
Q The drawing of The Grand Court.
A I don't believe you need permission to download anything.
Q And to put it on your website?
A I'm not sure how to answer that question.
Q At the time that you say you copied it from the website that was affiliated with the mall and then put it on your own by downloading it and putting it on your own, did you believe you needed permission to do that?
A I believed that it probably would have been the correct thing to do to get your permission, which I did not do on the assumption that you would not mind because I was using it to publicize your own mall.
Q I think I'm done with that exhibit. Let me put it aside for just a minute.
MR. LEVY: Can we go off the record for a moment?
(Off the record at 12:17 p.m.)