Evox Productions Llc v. Kayak Software Corporation et alNOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Second Affirmative Defense, Third Counterclaim and Seventeenth Affirmative DefenseC.D. Cal.March 1, 20171 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CALDWELL LESLIE & PROCTOR CALDWELL LESLIE & PROCTOR, PC ROBYN C. CROWTHER, State Bar No. 193840 crowther@caldwell-leslie.com CRAIG H. BESSENGER, State Bar No. 245787 bessenger@caldwell-leslie.com CAMERON J. JOHNSON, State Bar No. 266729 cjohnson@caldwell-leslie.com 725 South Figueroa Street, 31st Floor Los Angeles, California 90017-5524 Telephone: (213) 629-9040 Facsimile: (213) 629-9022 Attorneys for EVOX Productions, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION EVOX PRODUCTIONS LLC, a Delaware limited liability company, Plaintiff, v. KAYAK SOFTWARE CORPORATION, a Delaware corporation; and DOES 1-10, Defendants. Case No. CV15-05053-PSG (AGR) NOTICE OF MOTION AND SECOND MOTION OF EVOX PRODUCTIONS, LLC FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES The Honorable Philip S. Gutierrez Date: April 3, 2017 Time: 1:30 p.m. Crtrm.: 6A Trial Date: April 25, 2017 KAYAK SOFTWARE CORPORATION, a Delaware corporation, Counterclaimant, v. EVOX PRODUCTIONS LLC, a Delaware limited liability company, Counterdefendant. Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 1 of 28 Page ID #:13138 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- CALDWELL LESLIE & PROCTOR TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on April 3, 2017 at 1:30 p.m., or as soon thereafter as this matter may be heard, in the courtroom of the Honorable Philip S. Gutierrez, located in the United States Courthouse, 350 West 1st Street, Courtroom 6A, Los Angeles, CA 90012, EVOX Productions, LLC (“EVOX”) will and hereby does move this Court for Summary Judgment. This Motion is brought pursuant to the Court’s February 24, 2017 Minute Order, Federal Rule of Civil Procedure 56 and Local Rule 56-1, on the following grounds: 1. EVOX is entitled to judgment as a matter of law on Defendant and Counterclaimant KAYAK Software Corporation’s (“KAYAK”) Second Affirmative Defense of Complaint is Barred, in Whole or Part, by Contract because the undisputed evidence demonstrates that the parties’ license agreement is unambiguous and did not permit use of EVOX’s copyrighted photographs on KAYAK’s mobile application, and KAYAK has failed to adduce any evidence sufficient to create a genuine issue of fact on this affirmative defense; 2. EVOX is entitled to judgment as a matter of law on Defendant and KAYAK’s Third Counterclaim and Seventeenth Affirmative Defense of Implied License because the undisputed evidence demonstrates that EVOX did not create any of the copyrighted photographs at KAYAK’s request; an implied term permitting use of EVOX’s copyrighted photographs on KAYAK’s mobile application would contradict the express language of KAYAK’s written agreement with EVOX; and that KAYAK did not tell EVOX that the payments it made to EVOX under its license agreement with EVOX included mobile use until after EVOX had objected to KAYAK’s use of EVOX’s copyrighted photographs on its mobile application, and KAYAK has failed to adduce any evidence sufficient to create a genuine issue of fact on this affirmative defense and counterclaim. Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 2 of 28 Page ID #:13139 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- CALDWELL LESLIE & PROCTOR This Motion is based on this Notice of Motion, the accompanying Memorandum of Points and Authorities, the Declaration of Craig H. Bessenger and exhibits thereto, the Statement of Uncontroverted Facts and Conclusions of Law, all of the pleadings and other documents on file in this case, all other matters of which the Court may take judicial notice, and any further argument or evidence that may be received by the Court at the hearing. DATED: March 1, 2017 CALDWELL LESLIE & PROCTOR, PC ROBYN C. CROWTHER CRAIG H. BESSENGER CAMERON J. JOHNSON By /s/ Robyn C. Crowther ROBYN C. CROWTHER Attorneys for EVOX Productions, LLC Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 3 of 28 Page ID #:13140 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -i- CALDWELL LESLIE & PROCTOR TABLE OF CONTENTS Page MEMORANDUM OF POINTS AND AUTHORITIES ............................................. 1 I. INTRODUCTION ............................................................................................. 1 II. SUMMARY JUDGMENT STANDARD ......................................................... 2 III. THE PLAIN LANGUAGE OF THE AGREEMENT AUTHORIZED USE OF THE PHOTOGRAPHS ONLY ON A SINGLE WEBSITE .............. 3 IV. THERE IS NO GENUINE DISPUTE OF MATERIAL FACT AS TO THE MEANING OF THE LICENSE AGREEMENT ..................................... 5 A. The License Agreement Is Not Ambiguous, Meaning It Is Not Reasonably Susceptible to KAYAK’s Proffered Interpretation ............. 7 1. The Plain Language of the License Agreement Excludes Mobile Use .................................................................................... 7 2. The Relevant and Admissible Extrinsic Evidence Does Not Expose an Ambiguity in the License Agreement ................ 10 B. Even if the Court Determines That the License Agreement Is Ambiguous, It Should Still Find Mobile Use Excluded as a Matter of Law ........................................................................................ 12 1. KAYAK’s Evidence of Its Own, Unexpressed Intent Must be Disregarded ............................................................................ 12 2. KAYAK’s Evidence Regarding Mobile Use would Vary the Terms of the License Agreement and Cannot be Considered .................................................................................. 14 3. There is No Credibility Issue Presented by the Evidence .......... 14 V. KAYAK’S AFFIRMATIVE DEFENSE OF “BARRED BY CONTRACT” AND ITS COUNTERCLAIM AND AFFIRMATIVE DEFENSE OF IMPLIED LICENSE ARE SUBJECT TO SUMMARY JUDGMENT.................................................................................................... 15 A. KAYAK’s Affirmative Defense of Barred by Contract Fails as a Matter of Law ........................................................................................ 16 B. KAYAK’s Counterclaim for and Affirmative Defense of Implied License Fail as a Matter of Law ............................................................ 16 C. EVOX’s Claims Under the Digital Millennium Copyright Act ........... 18 VI. CONCLUSION ............................................................................................... 19 Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 4 of 28 Page ID #:13141 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ii- CALDWELL LESLIE & PROCTOR TABLE OF AUTHORITIES Page(s) Cases Alameda Cty. Flood Control v. Department of Water Res., 213 Cal.App.4th 1163 (2013) ................................................................................. 7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................................................................... 3 Apple Computer, Inc. v. Microsoft Corp., 717 F.Supp. 1428 (N.D. Cal. 1989), aff’d, 35 F.3d 1435 (9th Cir. 1994) ........................................................................................................ 5 Asset Mktg. Sys., Inc. v. Gagnon, 542 F.3d 748 (9th Cir. 2008) ................................................................................ 17 Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. California, 618 F.3d 1066 (9th Cir. 2010) .............................................................................. 13 Cedars-Sinai Med. Ctr. v. Shewry, 137 Cal.App.4th 964 (2006) ............................................................................. 5, 12 City of Hope Nat’l Med. Ctr. v. Genentech, Inc., 43 Cal.4th 375 (2008) ................................................................................. 3, 12, 14 Effects Assoc., Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990) ................................................................................ 17 Endurance Am. Specialty Ins. Co. v. AFA Fin. Grp., LLC, No. CV-12-4939, 2011 WL 13118264 (C.D. Cal. Sept. 8, 2011) .......................... 3 eSilicon Corp v. Silicon Space Tech, No. C-11-06184 EDL, 2013 WL 12174295 (N.D. Cal. Feb. 22, 2013) ..................................................................................... 17 F.B.T. Prods., LLC v. Aftermath Records, 621 F.3d 958 (2010) ................................................................................. 3, 5, 7, 18 Foad Consulting Grp. v. Azzalino, 270 F.3d 821 (9th Cir. 2001) ................................................................................ 17 Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 5 of 28 Page ID #:13142 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iii- CALDWELL LESLIE & PROCTOR Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc., 109 Cal.App.4th 944 (2003) ................................................................................... 7 Garcia v. Truxk Ins. Exchange, 36 Cal.3d 426 (1984) ............................................................................................ 12 Gilliam v. American Broad. Cos., Inc., 538 F.2d 14 (2d Cir. 1976) ..................................................................................... 6 Hot Rods, LLC v. Northrop Grumman Sys. Corp., 242 Cal.App.4th 1166 (2015) ............................................................................... 14 Intervention911 v. Palm Springs, No. 5:13-cv-0117-ODW, 2016 WL 4208430 (C.D. Cal. Aug. 9, 2016) ...................................................................................... 14 In re Isbell Records, Inc., 774 F.3d 859 (5th Cir. 2014) .......................................................................... 12, 15 Johnson v. Diversicare Afton Oaks, LLC, 597 F.3d 673 (5th Cir. 2010) ................................................................................ 15 Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206 (9th Cir. 1999), opinion amended on denial of reh’g, 203 F.3d 1175 (9th Cir. 2000) ................................................................................ 5 Lightbourne v. Printroom Inc., 122 F.Supp.3d 942 (C.D. Cal. 2015), appeal dismissed (Feb. 10, 2016) ...................................................................................................... 12 Lizalde v. Advanced Planning Servs., Inc., 875 F.Supp.2d 1150 (S.D. Cal. 2012) .................................................................... 6 Matter of Placid Oil Co., 932 F.2d 394 (5th Cir. 1991) ................................................................................ 15 MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d 928 (9th Cir. 2010) ................................................................................ 16 Mindlab Media, LLC v. LWRC Int’l, LLC, No. CV 11-3405-CAS, 2013 WL 1141987 (C.D. Cal. Mar. 18, 2013) ..................................................................................... 17 Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 6 of 28 Page ID #:13143 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iv- CALDWELL LESLIE & PROCTOR Netbula, LLC v. BindView Dev. Corp., 516 F.Supp.2d 1137 (N.D. Cal. 2007) .................................................................. 16 Progeny Ventures, Inc. v. Western Union Fin. Servs., Inc., 752 F.Supp.2d 1127 (C.D. Cal. 2010) .............................................................. 7, 10 Riverisland Cold Storage, Inc. v. Fresno-Madera Prod. Credit Ass’n, 55 Cal.4th 1169 (2013) ......................................................................................... 19 S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081 (9th Cir. 1989) ................................................................................ 6 Salehi v. Surfside III Condo. Owners’ Ass’n, 200 Cal.App.4th 1146 (2011) ................................................................................. 5 Schnitt v. Certain Underwriters at Lloyds, No. CV-12-4939 FMO, 2014 WL 12558851 (C.D. Cal. July 29, 2014) ........................................................................................ 3 Series AGI W. Linn of Appian Grp. Inv’rs DE LLC v. Eves, 217 Cal.App.4th 156 (2013) ................................................................................. 17 Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005 (9th Cir. 2012) ................................................................................ 5 Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885 (9th Cir. 2003) .................................................................................. 3 State v. Continental Ins. Co., 55 Cal.4th 186 (2012) ............................................................................................. 5 Tanner v. Title Ins. & Trust Co., 20 Cal.2d 814 (1942) ............................................................................................ 18 U.S. Auto Parts Network, Inc. v. Parts Geek, LLC, 692 F.3d 1009 (9th Cir. 2012) .............................................................................. 17 United Bhd. of Carpenters & Joiners of Am., Lathers Local 42-L v. United Bhd. of Carpenters & Joiners of Am., 73 F.3d 958, 961 (9th Cir. 1996) ................................................................................................................ 3 Wolf v. Superior Court, 114 Cal.App.4th 1343 (2004) ................................................................. 3, 7, 10, 12 Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 7 of 28 Page ID #:13144 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -v- CALDWELL LESLIE & PROCTOR Zalkind v. Ceradyne, Inc., 194 Cal.App.4th 1010 (2011) ................................................................................. 9 Statutes CACI 305 ................................................................................................................... 17 Cal. Civ. Code § 1621 ................................................................................................ 17 Cal. Civ. Code § 1638 .................................................................................................. 5 Fed. R. Civ. Proc. 56(a) ............................................................................................... 2 Other Authorities Hon. Beverly Reid O’Connell, et al., Fed. Civil Procedure Before Trial, Cal. & 9th Cir. Editions, ¶ 14:225 (The Rutter Group 2017) .................... 15 Hon. Beverly Reid O’Connell, et al., Fed. Civil Procedure Before Trial, Cal. & 9th Cir. Editions, ¶ 14:236 (The Rutter Group 2017) .................... 15 Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 8 of 28 Page ID #:13145 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- CALDWELL LESLIE & PROCTOR MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In March 2014, Plaintiff EVOX Productions, LLC (“EVOX”) entered into a written license agreement (“License Agreement”) granting Defendant KAYAK Software Corporation (“KAYAK”) a limited license to use EVOX’s copyrighted photographs (the “Photographs”) on “a single Portal Website.” EVOX’s Statement of Uncontroverted Facts (“SUF”) Nos. 3, 9-10. The License Agreement specifically defined “Portal” as a type of “website,” and contained various other language unambiguously limiting use of the Photographs to a single website. See, e.g., id. Nos. 11, 15. Some 14 months after the parties entered into the License Agreement, EVOX discovered that KAYAK was using the Photographs on both KAYAK’s website and on its separate mobile application in violation of the express terms of the License Agreement. Following an unsuccessful effort to resolve this dispute informally, EVOX filed this action for copyright infringement and violation of the Digital Millennium Copyright Act. KAYAK argues that it is not liable for copyright infringement because the License Agreement permitted KAYAK’s use of the Photographs on its mobile application. According to KAYAK, the License Agreement’s language limiting use of the Photographs to a “single Portal Website” should somehow be interpreted to include use on both a website and a mobile application. KAYAK’s misreading of the License Agreement should be rejected. It is the Court’s role to interpret the License Agreement and decide whether it is ambiguous, meaning whether the License Agreement is reasonably susceptible to KAYAK’s proffered interpretation. This process follows a familiar three-step process: First, the Court must provisionally receive and consider relevant, admissible extrinsic evidence and evaluate the plain language of the contract to determine whether an ambiguity exists. If there is no ambiguity, the Court construes the contract as a matter of law. If the Court determines that the contract is Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 9 of 28 Page ID #:13146 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- CALDWELL LESLIE & PROCTOR reasonably susceptible to KAYAK’s interpretation, the Court then determines whether the extrinsic evidence is admissible, and evaluates the admissible evidence to determine whether it conflicts. If there is no conflict in the evidence, the Court then considers the admissible evidence and interprets the contact as a matter of law. Here, the plain language of the License Agreement unambiguously precludes use of the Photographs on KAYAK’s mobile application. Even in light of the extrinsic evidence, the License Agreement limits its scope of use to a website. The admissible extrinsic is not in conflict as it shows that EVOX and KAYAK never discussed mobile use, and as such, it provides no support for the claim that mobile use was encompassed by the License Agreement. This interpretation eliminates KAYAK’s claims that the License Agreement’s express (or legally implied) terms defeat EVOX’s claims for copyright infringement. Accordingly, EVOX respectfully requests that the Court grant its motion for summary judgment of KAYAK’s Second Affirmative Defense of Complaint is Barred, in Whole or Part, by Contract and its Third Counterclaim and Seventeenth Affirmative Defense of Implied License.1 II. SUMMARY JUDGMENT STANDARD Summary judgment is proper when “there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Proc. 56(a). Only genuine disputes-where the evidence is such that a reasonable jury could return a verdict for the non-moving party-will preclude the 1 In previous filings and discussions with the Court, EVOX indicated that KAYAK’s Implied License claims might not be impacted by a determination that the License Agreement excludes mobile use. See EVOX’s Motion in Limine No. 2 (ECF No. 157 at 6:23-24). In examining the law in connection with this Motion, however, EVOX determined that such claims would also be defeated by a determination that the express agreement excludes mobile use, and this Motion therefore seeks partial summary judgment of those claims. Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 10 of 28 Page ID #:13147 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- CALDWELL LESLIE & PROCTOR entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “‘may grant summary judgment motions touching upon contract interpretation when the agreement is unambiguous. Ambiguity is a question of law for the court.’” Schnitt v. Certain Underwriters at Lloyds, No. CV-12-4939 FMO (AGRx), 2014 WL 12558851, at *5 (C.D. Cal. July 29, 2014), quoting Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888-89 (9th Cir. 2003). “‘[S]ummary judgment is appropriate when the contract terms are clear and unambiguous, even if the parties disagree as to their meaning.’” Endurance Am. Specialty Ins. Co. v. AFA Fin. Grp., LLC, No. CV-12-4939 FMo (AGRx), 2011 WL 13118264, at *3 (C.D. Cal. Sept. 8, 2011), quoting United Bhd. of Carpenters & Joiners of Am., Lathers Local 42-L v. United Bhd. of Carpenters & Joiners of Am., 73 F.3d 958, 961 (9th Cir. 1996). Even where an ambiguity exists, “[t]he trial court’s resolution of an ambiguity is also a question of law if no parol evidence is admitted or if the parol evidence is not in conflict.” Wolf v. Superior Court, 114 Cal.App.4th 1343, 1351 (2004). Only when the parol evidence is in conflict and the conflict raises issues of credibility is it appropriate for resolution by a jury rather than the Court. F.B.T. Prods., LLC v. Aftermath Records, 621 F.3d 958 (2010); City of Hope Nat’l Med. Ctr. v. Genentech, Inc., 43 Cal.4th 375, 395 (2008). III. THE PLAIN LANGUAGE OF THE AGREEMENT AUTHORIZED USE OF THE PHOTOGRAPHS ONLY ON A SINGLE WEBSITE Between January 2014 and March 18, 2014, EVOX and KAYAK negotiated an agreement for KAYAK to use certain of EVOX’s copyrighted photographs. SUF No. 1. KAYAK employee Lauren Fulton negotiated the terms of the agreement on KAYAK’s behalf. SUF No. 2. No other KAYAK employee had direct communications with EVOX before the parties signed the License Agreement for use of EVOX’s photographs. Id. Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 11 of 28 Page ID #:13148 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- CALDWELL LESLIE & PROCTOR The License Agreement contains a clear and robust integration clause. SUF No. 6. EVOX and KAYAK also acknowledged “that they ha[d] thoroughly reviewed [the License Agreement] and bargained for” its terms and therefore the License Agreement would “be construed without regard to the party or parties responsible for its preparation and will be deemed to have been prepared jointly by the parties.” SUF No. 7. Any and all amendments, modifications and supplements to the License Agreement were required to be in writing, signed by EVOX’s Chief Executive Officer. SUF Nos. 6, 8. The License Agreement recites that EVOX granted KAYAK only a “nonexclusive, revocable, nontransferrable, non-assignable limited license to use the Licensed Materials within the Scope of Use, and for the payment of Fees and subject to all of the terms and conditions” of the License Agreement. SUF No. 9. The License Agreement defines the “Rights and Scope of Use” as: “Portal Website Use: (a) Use in a research application on a single Portal Website; (b) Use as Accent Graphics on a single Portal Website. The Licensee’s Rights and Scope of Use are further defined in the License Agreement, Schedules and Appendices.” SUF No. 10. The License Agreement specifically defines the term “Portal” as “a website other than an OEM website or a Dealership website.” SUF No. 11. The License Agreement establishes that “[n]o license is granted to use the Licensed Materials in any manner in any present or future format except for uses and formats expressly permitted by the definition of Scope of Use in this License Agreement.” SUF No. 15. The License Agreement also reflects KAYAK’s agreement “not to claim any title to [the Photographs] or any derivative works thereof . . . [or] any right to use or otherwise exploit such rights except as expressly permitted by” the License Agreement. SUF No. 17. Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 12 of 28 Page ID #:13149 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- CALDWELL LESLIE & PROCTOR IV. THERE IS NO GENUINE DISPUTE OF MATERIAL FACT AS TO THE MEANING OF THE LICENSE AGREEMENT California law governs interpretation of the License Agreement, and “[u]nder California law, ‘[t]he language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.’ Cal. Civ. Code § 1638. Parol evidence is properly admitted to construe a contract only when its language is ambiguous.” F.B.T., 621 F.3d at 963; see also Apple Computer, Inc. v. Microsoft Corp., 717 F.Supp. 1428, 1432 (N.D. Cal. 1989), aff’d, 35 F.3d 1435 (9th Cir. 1994) (“A copyright license is a contract like any other contract and the starting point of the analysis must necessarily be the terms of the license.”). “The fact that the parties dispute a contract’s meaning does not establish that the contract is ambiguous; it is only ambiguous if reasonable people could find its terms susceptible to more than one interpretation.” Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 1999), opinion amended on denial of reh’g, 203 F.3d 1175 (9th Cir. 2000). “The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties.” State v. Continental Ins. Co., 55 Cal.4th 186, 194- 95 (2012) (internal quotation marks and citation omitted); see also Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014-15 (9th Cir. 2012) (same). Determining the parties’ intent is an objective evaluation based on the contractual language itself. “California recognizes the objective theory of contracts, under which it is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation. The parties’ undisclosed intent or understanding is irrelevant to contract interpretation.” Cedars-Sinai Med. Ctr. v. Shewry, 137 Cal.App.4th 964, 980 (2006) (internal quotation marks and citation omitted); see also Salehi v. Surfside III Condo. Owners’ Ass’n, 200 Cal.App.4th 1146, 1159 (2011). Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 13 of 28 Page ID #:13150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- CALDWELL LESLIE & PROCTOR The License Agreement must also be construed in light of federal case law governing the interpretation of copyright license agreements: The license must be construed in accordance with the purposes underlying federal copyright law. Chief among these purposes is the protection of the author’s rights. We rely on state law to provide the canons of contractual construction, but only to the extent such rules do not interfere with federal copyright law or policy. The district court applied the California rule that the contract should be interpreted against the drafter, thereby deeming S.O.S. to have granted to Payday any right which it did not expressly retain. This result is contrary to federal copyright policy: copyright licenses are assumed to prohibit any use not authorized.” S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087-88 (9th Cir. 1989) (emphasis added); see also Gilliam v. American Broad. Cos., Inc., 538 F.2d 14, 21 (2d Cir. 1976) (copyright licensee not entitled to use licensed material in any way “not specifically empowered” by license); Lizalde v. Advanced Planning Servs., Inc., 875 F.Supp.2d 1150, 1162 (S.D. Cal. 2012) (“Silence does not constitute permission because ‘copyright licenses are assumed to prohibit any use not authorized.’”) (citation omitted). The Court engages in the following process when interpreting a contract the meaning of which is disputed by the parties: First, the court provisionally receives (without actually admitting) all credible evidence concerning the parties’ intentions to determine ambiguity, i.e., whether the language is reasonably susceptible to the interpretation urged by a party. If in light of the extrinsic evidence the Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 14 of 28 Page ID #:13151 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- CALDWELL LESLIE & PROCTOR court decides the language is reasonably susceptible to the interpretation urged, the extrinsic evidence is then admitted to aid in the second step-interpreting the contract. Despite the trial court’s provisional review of extrinsic evidence, its determination of whether an ambiguity exists remains a question of law, subject to independent review on appeal.” F.B.T., 621 F.3d at 963 (internal quotation marks and citation omitted); see also Wolf, 114 Cal.App.4th at 1350-51. “‘Courts will not adopt a strained or absurd interpretation in order to create an ambiguity where none exists.’” Alameda Cty. Flood Control v. Department of Water Res., 213 Cal.App.4th 1163, 1180 (2013) (citation omitted). Even where an ambiguity exists and the trial court admits parol evidence to interpret the agreement, “resolution of an ambiguity is also a question of law . . . if the parol evidence is not in conflict.” Wolf, 114 Cal.App.4th at 1351. A. The License Agreement Is Not Ambiguous, Meaning It Is Not Reasonably Susceptible to KAYAK’s Proffered Interpretation The starting point for contract interpretation is the plain language of the document itself. Progeny Ventures, Inc. v. Western Union Fin. Servs., Inc., 752 F.Supp.2d 1127, 1132-33 (C.D. Cal. 2010); see also Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc., 109 Cal.App.4th 944, 956 (2003). 1. The Plain Language of the License Agreement Excludes Mobile Use The License Agreement expressly granted KAYAK a “limited license” to use the Photographs “within the Scope of Use” of the License Agreement, which the License Agreement defined as: “Portal Website Use: (a) Use in a research application on a single Portal Website; (b) Use as Accent Graphics on a single Portal Website.” SUF Nos. 9-10. The License Agreement specifically defines “Portal” as Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 15 of 28 Page ID #:13152 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- CALDWELL LESLIE & PROCTOR “a website other than OEM website or a Dealership website.” SUF No. 11. The License Agreement also states that “[n]o license is granted to use the Licensed Materials in any manner in any present or future format except for uses and formats expressly permitted by the definition of Scope of Use in this License Agreement.” SUF No. 15 (emphasis added). The phrase “single Portal Website” is not ambiguous and plainly excludes use on a mobile application, which is neither a Portal nor a Website. Nor is the definition of “Portal” as “a website other than OEM website or a Dealership website” at all ambiguous. It also necessarily excludes use on a mobile application, again because a mobile application is not a website. As the Court held in denying KAYAK’s summary judgment motion, “It is undisputed that the License Agreement does not contain a provision that expressly permits use on mobile applications, nor does it even include the word ‘mobile application.’” Summary Judgment Order at 11 (emphasis added). Indeed, the License Agreement uses the word “website” 17 times and does not include the phrases “mobile application[s]”, “mobile apps” or the words tablet[s], smartphone[s] or cellular. SUF Nos. 18-19. And again, the License Agreement provides that “[n]o license is granted to use the Licensed Materials in any manner in any present or future format except for uses and formats expressly permitted by the definition of Scope of Use in this License Agreement.” SUF No. 15 (emphasis added); see also id. Nos. 16-17. Throughout this case, including in prior briefing, KAYAK has ignored the License Agreement’s own clear definition of “Portal” and insisted that EVOX’s interpretation of the License Agreement deprives the term Portal of any meaning. To the contrary, EVOX merely contends that the License Agreement means what it says it means, and that Portal is a type of website. KAYAK has also argued that the phrase “single Portal Website” is not defined, and asserts that it must mean “website website” in the context of the definition of “Portal.” In the alternative, KAYAK has insisted that “Portal Website” must mean a “gateway” or “opening,” which happens Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 16 of 28 Page ID #:13153 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- CALDWELL LESLIE & PROCTOR to lead inexorably to KAYAK’s mobile application. Again, a common sense reading of the phrase “single Portal Website” merely limits the scope of use to one website, and the definition of “Portal” then describes that type of website. Nonetheless, even if KAYAK’s reading of “website website” were adopted, it still would not encompass a mobile application. KAYAK’s efforts to strip the term “Portal” out of the context of the License Agreement as a whole and argue that it must be interpreted as something other than a website-as it is expressly defined in the License Agreement-should also be rejected. Rather, “[t]o the extent practicable, the meaning of a contract must be derived from reading the whole of the contract, with individual provisions interpreted together, in order to give effect to all provisions and to avoid rendering some meaningless.” Zalkind v. Ceradyne, Inc., 194 Cal.App.4th 1010, 1027 (2011). Instead of attempting to define “Portal” in the abstract, other language in the License Agreement reinforces the conclusion that the license granted was limited to use of EVOX’s Photographs on a website, and did not include use on a mobile application. As an example, the License Agreement states that monthly fees shall be calculated based on unique visitors to the top-level domain name of the Licensee Portal. SUF No. 20. The License Agreement also required KAYAK to report to EVOX each month “all applicable URLs,” “Portal Use(s) for each Portal Website” and to provide a “PDF copy of the report on unique page views per webpage containing Licensed Materials.” SUF No. 21 (emphasis added). The License Agreement permitted KAYAK to remove EVOX Trademark and EVOX logos from the Photographs provided that it displayed an agreed upon copyright attribution in the lower portion of the webpage frame. SUF No. 22 (emphasis added). KAYAK has previously referenced the License Agreement’s allowance for sublicensing as somehow contradicting the License Agreement’s limitation to use on a single website, but KAYAK is mistaken. KAYAK’s limited right to sublicense was constrained by the requirement that it impose the same scope of use-limited to Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 17 of 28 Page ID #:13154 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- CALDWELL LESLIE & PROCTOR a single Portal Website-on any sublicensee: “Any Sublicensee or grant of usage rights by Licensee (i) will contain limitations and terms and conditions no less protective of the Licensed Materials and EVOX’s rights than those applicable to Licensee set forth in this License Agreement . . . .” SUF No. 16. In sum, the clear written terms of the License Agreement, all of which were reviewed, negotiated for, and approved by KAYAK, limit the use of the Photographs to a single website. See Progeny Ventures, Inc., 752 F.Supp.2d at 1132-33. 2. The Relevant and Admissible Extrinsic Evidence Does Not Expose an Ambiguity in the License Agreement “Even if a contract appears unambiguous on its face, a latent ambiguity may be exposed by extrinsic evidence which reveals more than one possible meaning to which the language of the contract is yet reasonably susceptible.” Wolf, 114 Cal.App.4th at 1351. Here, the License Agreement is unambiguous on its face, and even when relevant and admissible extrinsic evidence is considered, the License Agreement is not reasonably susceptible to KAYAK’s interpretation. At the outset of the parties’ negotiations, EVOX employee Nena Addison emailed KAYAK employee Lauren Fulton, who had contacted EVOX about licensing its photographs and who handled all direct negotiations with EVOX. SUF Nos. 2, 28. As part of her inquiry about KAYAK’s requirements, Ms. Addison asked, “And our content would only be used on the one website www.kayak.com, correct?” SUF No. 28. Ms. Fulton responded, “We have a few affiliate websites in which we power their search. Your images would also appear on these websites.” Id. Ms. Fulton admitted at her deposition that that she did not refer to mobile applications or their use in communications with EVOX regarding the License Agreement. SUF No. 29. While the evidence shows that the parties discussed use on KAYAK’s website, it also shows that they never discussed mobile use. KAYAK admits that, in Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 18 of 28 Page ID #:13155 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- CALDWELL LESLIE & PROCTOR negotiating the License Agreement, EVOX and KAYAK never discussed any possible limits precluding use of those images on the KAYAK mobile application. SUF No. 25. KAYAK also admits that it never discussed how KAYAK intended to use the images: KAYAK never stated to EVOX that it intended to use the Photographs only on its website but not its mobile application nor did EVOX ever inquire if KAYAK intended to use the images only on its website but not on its mobile application. SUF No. 26. Finally, KAYAK admits that EVOX never directly inquired about the KAYAK mobile application during the course of the parties’ negotiations; and never asked about KAYAK’s intended use (or about its mobile application) in relation to the License Agreement or a draft of the License Agreement itself. SUF No. 27. Thus, it is only if the term “website” as used in the Parties’ negotiations and later in the written agreement could be reasonably construed to encompass mobile applications that the Court might find the License Agreement to be reasonably susceptible to KAYAK’s interpretation, as that is the only term used by either Party to describe KAYAK’s anticipated and authorized use. However, KAYAK’s witnesses understood that a mobile application was different from the website and webpages that the Parties referenced in their communications and written agreement. Lincoln Jackson, KAYAK’s Chief Designer, who was the impetus behind KAYAK’s search for higher-quality photographs, understood that a website was not a mobile application. SUF No. 23. Timothy Knowling, who executed the License Agreement on KAYAK’s behalf, understood that mobile applications are not the same thing as webpages and do not have URL’s, which was a basis for the usage fees and reporting requirements in the License Agreement. SUF No. 24. Thus, KAYAK cannot reasonably contend that the term “website” encompassed mobile applications. As a result, even considering extrinsic evidence, the License Agreement is not reasonably susceptible to KAYAK’s interpretation that it included Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 19 of 28 Page ID #:13156 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- CALDWELL LESLIE & PROCTOR mobile use. The Court should therefore find that the License Agreement is not ambiguous and excludes mobile use on its face. B. Even if the Court Determines That the License Agreement Is Ambiguous, It Should Still Find Mobile Use Excluded as a Matter of Law “The trial court’s resolution of an ambiguity is also a question of law if no parol evidence is admitted or if the parol evidence is not in conflict.” Wolf, 114 Cal.App.4th at 1351. “It is solely a judicial function to interpret a written contract unless the interpretation turns upon the credibility of extrinsic evidence, even when conflicting inferences may be drawn from uncontroverted evidence.” Garcia v. Truxk Ins. Exchange, 36 Cal.3d 426, 439 (1984) (emphasis added). Accordingly, “[i]f, as here, there are pieces of evidence which, while each undisputed, raise differing inferences, it is within the province of the court to draw inferences based on the evidence.” In re Isbell Records, Inc., 774 F.3d 859, 866 (5th Cir. 2014) (applying California law); see also City of Hope, 43 Cal.4th at 395. Here, KAYAK has only two types of extrinsic evidence to support its interpretation of the License Agreement, neither of which is admissible and might defeat summary judgment: (1) Evidence of KAYAK’s unexpressed intent to use the Photographs on its mobile application; and (2) Evidence that varies the express terms of the License Agreement. Moreover, the evidence does not show a credibility conflict that a jury might need to resolve. 1. KAYAK’s Evidence of Its Own, Unexpressed Intent Must be Disregarded Any evidence of KAYAK’s “undisclosed intent or understanding is irrelevant to contract interpretation” and cannot be considered by the Court in determining whether the language of the License Agreement is reasonably susceptible to KAYAK’s proffered interpretation. Cedars-Sinai, 137 Cal.App.4th at 980; see also Lightbourne v. Printroom Inc., 122 F.Supp.3d 942, 948 (C.D. Cal. 2015), appeal Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 20 of 28 Page ID #:13157 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- CALDWELL LESLIE & PROCTOR dismissed (Feb. 10, 2016) (“Faced with this clear and unambiguous contractual language, its interpretation is a question of law, and Lightbourne’s internal understanding-to the extent it differs-is irrelevant.”); Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. California, 618 F.3d 1066, 1077-78 (9th Cir. 2010) (Noting “a key preliminary caveat” to the use of extrinsic evidence is that “[t]he extrinsic evidence must qualify for admission,” and rejecting as irrelevant California’s proffered extrinsic evidence because the contract was “not reasonably susceptible to the interpretation California proposes.”). While KAYAK contends that it always planned to use the Photographs on its mobile application, it admits that it never discussed this intent with EVOX. SUF Nos. 25-28. Accordingly, KAYAK’s internal records and other extrinsic evidence of its subjective intent and understanding of the License Agreement are irrelevant to interpreting the License Agreement. KAYAK’s repeated insistence during the course of this litigation that it would not have entered into the License Agreement had KAYAK known it would not permit mobile application use is also irrelevant to interpreting the License Agreement, because there is no evidence KAYAK ever communicated this view to EVOX. Similarly, KAYAK has argued that its course of conduct after entering into the License Agreement of paying for its use of the Photographs on its mobile application is consistent with its subjective, undisclosed understanding that the License Agreement allowed for such use. Even if true, KAYAK never disclosed to EVOX that it was using the Photographs on its mobile application or, for that matter, that it was paying for such use. See, e.g., SUF Nos. 30-36 (KAYAK’s usage reports to EVOX did not disclose KAYAK’s use of the Photographs on its mobile application until after EVOX discovered and objected to KAYAK’s impermissible mobile application use). Accordingly, KAYAK’s payment for use of the Photographs on its mobile application does not reflect any understanding, knowledge, or acquiescence by EVOX concerning such use. Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 21 of 28 Page ID #:13158 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- CALDWELL LESLIE & PROCTOR 2. KAYAK’s Evidence Regarding Mobile Use would Vary the Terms of the License Agreement and Cannot be Considered “[W]hile ‘extrinsic evidence can be admitted to explain the meaning of the contractual language at issue, . . . it cannot be used to contradict it or offer an inconsistent meaning.’” Intervention911 v. Palm Springs, No. 5:13-cv-0117-ODW (SPx), 2016 WL 4208430, at *3 (C.D. Cal. Aug. 9, 2016), quoting Hot Rods, LLC v. Northrop Grumman Sys. Corp., 242 Cal.App.4th 1166, 1175-76 (2015). The License Agreement clearly states, in three separate sections, that any use not expressly permitted by its terms, including the right to distribute the Photographs in any existing format, is not authorized. SUF Nos. 15-17. Because the written agreement does not permit mobile use, an implied term authorizing such use would contradict the three separate terms limiting the scope of the license to the express grant of rights, and KAYAK’s Affirmative Defense and Counterclaim for Implied License fail as a matter of law. 3. There is No Credibility Issue Presented by the Evidence Even if there were some inconsistency in the admissible evidence relevant to the interpretation of the contract, unlike in City of Hope, for example, there is no need for a jury to decide “which of these two witnesses to believe,” because EVOX and KAYAK have not given “widely divergent testimony about what the parties understood certain contractual provisions to mean.” 43 Cal.4th at 394. Again, as an example, EVOX does not dispute that KAYAK’s internal records indicate it intended to use the Photographs on both its website and mobile application when it negotiated the License Agreement. KAYAK does not contend, for example, that it actually told EVOX that it intended to use the Photographs on its mobile application, and that EVOX is now lying when it claims otherwise. Similarly, KAYAK does not dispute that it never communicated its intent or understanding to EVOX. Nor is there any disagreement about whether a mobile application is a website, as KAYAK’s witnesses agree that it is not. SUF Nos. 23-24. Based on the Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 22 of 28 Page ID #:13159 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15- CALDWELL LESLIE & PROCTOR available evidence, the circumstances here are akin to those in Isbell Records, where “[t]he only dispute is over the meaning of the Recording [License] Agreement and the inferences that should be drawn from the numerous undisputed pieces of extrinsic evidence.” 774 F.3d at 867. The Court should therefore interpret the License Agreement as a matter of law, and find that it did not permit KAYAK to use the Photographs on its mobile application. While this analysis might require the Court to draw inferences from the evidence the Parties submitted, the Court is not prohibited from doing so on a motion for partial summary judgment. “Summary judgment is proper where the dispute is of a type normally decided by the court and not a jury. Where, for policy reasons, courts normally draw the ultimate conclusion, the matter is more akin to a ‘pure’ issue of law that may be resolved on summary judgment” Hon. Beverly Reid O’Connell, et al., Fed. Civil Procedure Before Trial, Cal. & 9th Cir. Editions, ¶ 14:225 (The Rutter Group 2017). “It makes little sense to forbid the judge from drawing inferences from the evidence submitted on summary judgment when that same judge will act as the trier of fact, unless those inferences involve issues of witness credibility or disputed material facts.” Id., ¶ 14:236 (citing Matter of Placid Oil Co., 932 F.2d 394, 398 (5th Cir. 1991); Johnson v. Diversicare Afton Oaks, LLC, 597 F.3d 673, 676 (5th Cir. 2010)). V. KAYAK’S AFFIRMATIVE DEFENSE OF “BARRED BY CONTRACT” AND ITS COUNTERCLAIM AND AFFIRMATIVE DEFENSE OF IMPLIED LICENSE ARE SUBJECT TO SUMMARY JUDGMENT That the License Agreement does not authorize mobile use of the Photographs dictates that KAYAK’s Second Affirmative Defense of Barred by Contract and its Third Counterclaim and Seventeenth Affirmative Defense of Implied Contract must be adjudicated in EVOX’s favor. Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 23 of 28 Page ID #:13160 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16- CALDWELL LESLIE & PROCTOR A. KAYAK’s Affirmative Defense of Barred by Contract Fails as a Matter of Law KAYAK’s Second Affirmative Defense of Barred by Contract fails given that the License Agreement does not authorize use of the Photographs on mobile devices. KAYAK’s Answer pleads no facts in support of this affirmative defense (ECF No. 19 at 4), and in the Parties’ recently lodged Proposed Amended Final Pretrial Conference Order (“PTCO”), KAYAK did not identify the elements of this defense, but instead summarized the law as requiring EVOX to show that “KAYAK’s use of the subject images was in violation of a condition limiting the scope of the parties’ agreement.” ECF No. 150-1 at 12; see Netbula, LLC v. BindView Dev. Corp., 516 F.Supp.2d 1137, 1151 (N.D. Cal. 2007). The Ninth Circuit has held that a plaintiff may recover for copyright infringement based on a breach of a license agreement when the licensee exceeded the scope of an applicable license and the claim is “grounded in an exclusive right of copyright (e.g., unlawful reproduction or distribution).” MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d 928, 940 (9th Cir. 2010). EVOX’s claim for copyright infringement arises out of KAYAK’s reproduction and distribution of the Photographs via its mobile application. As the License Agreement did not provide mobile rights, this reproduction and distribution exceeded the scope of the license and the License Agreement provides KAYAK with no defense to EVOX’s claims. Thus, KAYAK’s Second Affirmative Defense should be adjudicated in EVOX’s favor as a matter of law. B. KAYAK’s Counterclaim for and Affirmative Defense of Implied License Fail as a Matter of Law In its Third Counterclaim, KAYAK seeks a declaration that it had an implied license to use the Photographs “for which it paid in full and which it used for their sole intended purpose.” ECF No. 20, ¶¶ 91-93. In the PTCO, KAYAK summarized the elements of this claim as “An implied contract is a contract created Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 24 of 28 Page ID #:13161 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -17- CALDWELL LESLIE & PROCTOR by the conduct of both parties if the conduct of both parties is intentional and each knows, or has reason to believe, that the other party should interpret the conduct as amounting to the grant of a license.” ECF No. 150-1 at 11 KAYAK provides the same summary for its Seventeenth Affirmative Defense of Implied License. Id. at 16. In support, KAYAK cites Cal. Civ. Code § 1621, which defines an implied contract as one defined by conduct, and CACI 305, which is the instruction for an “Implied-in-Fact Contract.” State law will determine whether a copyright holder has an implied license as long as it does not conflict with the Copyright Act. Foad Consulting Grp. v. Azzalino, 270 F.3d 821, 827 (9th Cir. 2001). With this principle in mind, the Ninth Circuit has found an implied license for the use of copyrighted works where the plaintiff created an original or derivative work at the defendant’s request intending that the licensee will copy and distribute the work, and the work would be of minimal value without the license to use it. Asset Mktg. Sys., Inc. v. Gagnon, 542 F.3d 748, 754-55 (9th Cir. 2008) (citing Effects Assoc., Inc. v. Cohen, 908 F.2d 555, 558-59 (9th Cir. 1990)); see also Foad Consulting Grp., 270 F.3d at 828; U.S. Auto Parts Network, Inc. v. Parts Geek, LLC, 692 F.3d 1009, 1020 (9th Cir. 2012); Mindlab Media, LLC v. LWRC Int’l, LLC, No. CV 11-3405-CAS (FFMx), 2013 WL 1141987, at *6 (C.D. Cal. Mar. 18, 2013); eSilicon Corp v. Silicon Space Tech, No. C-11-06184 EDL, 2013 WL 12174295, at *5 (N.D. Cal. Feb. 22, 2013). It is undisputed that EVOX did not create any images at KAYAK’s request; rather, KAYAK licensed a subset of images EVOX created in the course of its business. SUF Nos. 4-5. Consequently, the doctrine of implied license as the Ninth Circuit has applied it to copyright infringement claims is wholly inapplicable. Even looking to California law, however, courts will not imply contractual terms into express agreements that contradict the express terms. Series AGI W. Linn of Appian Grp. Inv’rs DE LLC v. Eves, 217 Cal.App.4th 156, 168-69 (2013). Implied terms “are justified only when they are not inconsistent with some express Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 25 of 28 Page ID #:13162 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -18- CALDWELL LESLIE & PROCTOR term of the contract and, in the absence of such implied terms, the contract could not be effectively performed.” Tanner v. Title Ins. & Trust Co., 20 Cal.2d 814, 824 (1942). Both of these principles would be violated by a finding that the License Agreement included an implied right to mobile use of the Photographs.2 C. EVOX’s Claims Under the Digital Millennium Copyright Act It is not clear whether KAYAK believes that its contractual claims apply to EVOX’s Second Cause of Action for Violation of the Digital Millennium Copyright Act (“DMCA”), or whether KAYAK contends that its counterclaim for Implied License would offer it a right to use the Photographs on its mobile application without any attribution to EVOX. However, there is no dispute that KAYAK displayed the Photographs on its mobile application without the language required by the License Agreement. SUF Nos. 38-39. On June 3, 2015, after EVOX notified KAYAK that the Photographs displayed on KAYAK’s mobile applications failed to include the required copyright management information, KAYAK responded by adding a notice to the “legal notices” section of the mobile application. SUF No. 40. The License Agreement separately required KAYAK to provide such a notice, and the notice did not satisfy KAYAK’s separate obligation to provide copyright attribution on every webpage frame where the Photographs appeared. SUF No. 41. Moreover, KAYAK failed to make the notice available on its mobile application until June 3, 2015, more than 14 months after KAYAK began using the Photographs. Id. There is no interpretation of the License Agreement, reasonable or otherwise, that permitted KAYAK to display the Photographs on its mobile 2 To the extent KAYAK bases its claims of an implied license on EVOX’s acceptance of payments that KAYAK claims included mobile use, the evidence demonstrates that KAYAK did not tell EVOX that the payments included mobile use until after EVOX discovered and objected to use of the Photographs on KAYAK’s mobile application. SUF Nos. 30-36. Absent evidence that EVOX knowingly acquiesced to payment, its lack of objection is not evidence to prove the interpretation of the License Agreement. F.B.T., 621 F.3d at 967. Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 26 of 28 Page ID #:13163 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -19- CALDWELL LESLIE & PROCTOR application without the required copyright attribution, and KAYAK’s Second Affirmative Defense of Barred by Contract is inapplicable to EVOX’s claims under the DMCA. KAYAK may also assert that its affirmative defense of, and counterclaim for, Implied License is responsive to EVOX’s DMCA claims. To prevail on such a claim, KAYAK would have to demonstrate that, despite the License Agreement’s clear language requiring copyright attribution on every webpage displaying the Photographs and in the “legal notices” section, the Court can imply an agreement by EVOX permitting KAYAK to use the Photographs on KAYAK’s mobile application with no attribution whatsoever, because KAYAK designed its mobile application to obtain copies of the Photographs from the same place that KAYAK hosted the copies of the Photographs for use on KAYAK’s website. See PTCO at 18. Any such argument would run afoul of the principles discussed above that the Court may not imply terms into a contract that contradict the express terms of the parties’ License Agreement. Accordingly, KAYAK may not rely on its defense or counterclaim of Implied License to defeat EVOX’s claim under the DMCA. VI. CONCLUSION The parol evidence rule “is founded on the principle that when the parties put all the terms of their agreement in writing, the writing itself becomes the agreement. The written terms supersede statements made during negotiations. . . . The purpose of the rule is to ensure that the parties’ final understanding, deliberately expressed in writing, is not subject to change.” Riverisland Cold Storage, Inc. v. Fresno-Madera Prod. Credit Ass’n, 55 Cal.4th 1169, 1174 (2013). KAYAK ignores its written agreement with EVOX and tries to establish the terms of the License Agreement by relying on unexpressed intent or colloquial usage of terms that are expressly defined in the License Agreement itself. The Court should reject this effort and find for Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 27 of 28 Page ID #:13164 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -20- CALDWELL LESLIE & PROCTOR EVOX as a matter of law that the parties’ written License Agreement does not authorize use of the Photographs on KAYAK’s mobile application.3 DATED: March 1, 2017 CALDWELL LESLIE & PROCTOR, PC ROBYN C. CROWTHER CRAIG H. BESSENGER CAMERON J. JOHNSON By /s/ Robyn C. Crowther ROBYN C. CROWTHER Attorneys for EVOX Productions, LLC 3 This ruling does not preclude KAYAK’s affirmative defenses and counterclaims that the failure of the License Agreement to authorize use on KAYAK’s mobile application was the result of a mutual or unilateral mistake, which claims will be tried to a jury. Case 2:15-cv-05053-PSG-AGR Document 167 Filed 03/01/17 Page 28 of 28 Page ID #:13165 Case 2:15-cv-05053-PSG-AGR Document 167-1 Filed 03/01/17 Page 1 of 4 Page ID #:13166 Case 2:15-cv-05053-PSG-AGR Document 167-1 Filed 03/01/17 Page 2 of 4 Page ID #:13167 Case 2:15-cv-05053-PSG-AGR Document 167-1 Filed 03/01/17 Page 3 of 4 Page ID #:13168 Case 2:15-cv-05053-PSG-AGR Document 167-1 Filed 03/01/17 Page 4 of 4 Page ID #:13169 Abrams, Mah & Kahn 1 1 UNITED STATES DISTRICT COURT 2 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 3 4 EVOX PRODUCTIONS LLC, a ) Delaware limited liability company, ) 5 ) Plaintiff, ) 6 ) v. ) Case No. 7 ) CV15-05053-PSG(AGR) KAYAK SOFTWARE CORPORATION, a ) 8 Delaware corporation; and DOES ) 1-10, ) 9 ) Defendants. ) 10 ____________________________________) KAYAK SOFTWARE CORPORATION, a ) 11 Delaware corporation, ) ) 12 Counterclaimant, ) ) 13 v. ) ) 14 EVOX PRODUCTIONS LLC, a ) Delaware limited liability company, ) 15 ) Counterdefendant. ) 16 ____________________________________) 17 18 Videotaped deposition of LAUREN FULTON, 19 taken on behalf of the Plaintiff/ 20 Counterdefendant at 90 Park Avenue, New York, 21 New York, commencing at 9:45 a.m., on May 31, 22 2016, before Michele Moskowitz, a Shorthand 23 Reporter and Notary Public in and for the State 24 of New York. 25 CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 1 of 25 Page ID #:13170 Abrams, Mah & Kahn 23 1 10:01:01 Q. Okay. Do you know who would know 2 10:01:03that? 3 10:01:06 A. I don't know. 4 10:01:07 MR. MOSKIN: Object to form. 5 10:01:10 Q. So the answer -- 6 10:01:11 A. I don't know. 7 10:01:12 Q. Were you tasked with negotiating 8 10:01:18the deal with EVOX? 9 10:01:19 A. Yes. 10 10:01:20 Q. By who? 11 10:01:21 A. My boss Tim Knowling. 12 10:01:24 Q. Tim Knowling, okay. 13 10:01:27 And do you recall approximately 14 10:01:28when he gave you that assignment? 15 10:01:33 A. I don't know now. I'm sure some 16 10:01:35e-mails -- 17 10:01:36 Q. Was it -- 18 10:01:36 A. -- would show that. 19 10:01:37 Q. Okay. 20 10:01:37 A. But I don't know. 21 10:01:38 Q. Do you recall if it was in an -- in 22 10:01:43person or via e-mail or a meeting, anything 23 10:01:46like that? Do you have any recollection? 24 10:01:48 A. Probably in a meeting. 25 10:01:53 Q. Do you have any recollection as to CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 2 of 25 Page ID #:13171 Abrams, Mah & Kahn 26 1 10:04:06 Q. Phone? E-mail? 2 10:04:09 A. I don't remember. 3 10:04:11 Q. Okay. Were you KAYAK's primary 4 10:04:13point of contact with EVOX during the course of 5 10:04:15the negotiations? 6 10:04:15 A. Yes. 7 10:04:16 Q. Did anyone else at KAYAK negotiate 8 10:04:18with EVOX directly? 9 10:04:23 A. I don't recall. 10 10:04:26 Q. Do you recall who you dealt with at 11 10:04:28EVOX? 12 10:04:29 A. Yes. 13 10:04:29 Q. And who was that? 14 10:04:31 A. John Brosnan. 15 10:04:33 Q. Anyone else? 16 10:04:35 A. Eric Shing and Nena, and I don't 17 10:04:42recall her last name. 18 10:04:43 Q. Okay. And during the course of 19 10:04:55your communications with EVOX, did you talk on 20 10:04:57the phone with any -- with Mr. Brosnan or 21 10:05:00Mr. Shing or Nena? 22 10:05:03 A. Yes. 23 10:05:07 Q. Okay. Do you recall how many 24 10:05:08times, approximately? 25 10:05:09 A. I can't recall. CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 3 of 25 Page ID #:13172 Abrams, Mah & Kahn 28 1 10:06:32deal structure that EVOX proposed to us based 2 10:06:35on unique views. 3 10:06:38 Q. Anything else? 4 10:06:50 A. No. 5 10:07:04 MR. BESSENGER: Okay. I'm going to 6 10:07:06 mark as the next exhibit in order an 7 10:07:09 e-mail from Nena whose last name I could 8 10:07:12 not remember either but is apparently 9 10:07:16 Addison. Let's see, this is Exhibit 3. 10 10:07:18 (January 2014 e-mail exchange from 11 10:07:18 Ms. Addison to Ms. Fulton was marked 12 10:07:18 Plaintiff's Exhibit 3 for identification, 13 10:07:18 as of this date.) 14 10:07:34 Q. This is an e-mail from Ms. Addison 15 10:07:36dated January 22, 2014. If you flip back a 16 10:07:43page, you can see at the bottom -- actually, 17 10:07:47let me -- let me start over. 18 10:07:49 If you go to the bottom, the first 19 10:07:51page, which is Bates stamped KAYAK 07, you see 20 10:07:55that Ms. Addison sent you an e-mail on January 21 10:07:5821, 2014, and then up at the top of the same 22 10:08:02page, KAYAK 07, you responded the next day, on 23 10:08:06January 22nd. 24 10:08:09 And do you recall receiving this 25 10:08:13e-mail and/or sending this e-mail to CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 4 of 25 Page ID #:13173 Abrams, Mah & Kahn 29 1 10:08:15Ms. Addison? 2 10:08:29 A. Yes. 3 10:08:29 Q. And that is your e-mail address up 4 10:08:33at the top of the page? 5 10:08:34 A. Yes. 6 10:08:35 Q. Do you recall if this was the first 7 10:08:38correspondence with EVOX that you had in 8 10:08:40relation to the license agreement with the 9 10:08:42company? 10 10:08:43 A. No. 11 10:08:45 Q. If you look at the first page, 12 10:08:47KAYAK 07, the first sentence from Ms. Addison 13 10:08:51reads, "Hi Lauren, thanks for taking the time 14 10:08:53to chat about the project and your need for 15 10:08:56auto stock." 16 10:08:57 Do you recall what the chat was 17 10:09:00that she's referencing there? I know it was a 18 10:09:03long time ago. I don't -- I don't mean to -- 19 10:09:07 A. No. 20 10:09:07 Q. And that was -- I'm sorry, just 21 10:09:08to -- that was a no? 22 10:09:08 A. No. 23 10:09:09 Q. Okay. Thank you. 24 10:09:12 Do you recall what you told 25 10:09:16Ms. Addison about KAYAK's need for auto stock? CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 5 of 25 Page ID #:13174 Abrams, Mah & Kahn 30 1 10:09:18 A. On the call? 2 10:09:19 Q. Mm-hmm. 3 10:09:20 A. No. 4 10:09:25 Q. And based on this e-mail it sounds 5 10:09:26like Mr. Brosnan -- she reports that he's out 6 10:09:31of the office sick, but Mr. Brosnan is the 7 10:09:33gentleman that you referenced you dealt with 8 10:09:37with respect to the negotiations? 9 10:09:38 A. Yes. 10 10:09:38 Q. Okay. And Ms. Addison is asking 11 10:09:48for you to provide some answers to questions. 12 10:09:52It sounds like she's trying to get some details 13 10:09:55from you. She asks about KAYAK's business name 14 10:09:58and mailing address, she references the sample 15 10:10:04use agreement, and if you flip over to the next 16 10:10:13page, KAYAK 08, it says, "You indicated that 17 10:10:16you are interested in the three-angle colors 18 10:10:19set." 19 10:10:21 So does that refresh your 20 10:10:22recollection as to whether or not KAYAK 21 10:10:26selected from EVOX's library a specific type of 22 10:10:30image? 23 10:10:33 A. Sorry, can you -- 24 10:10:34 Q. Sure. 25 10:10:35 A. -- clarify? CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 6 of 25 Page ID #:13175 Abrams, Mah & Kahn 80 1 11:25:30 Q. And do you know why that changed 2 11:25:31from 30,000 to a million in this e-mail from 3 11:25:35Mr. Brosnan? 4 11:25:35 A. Probably based on the clarification 5 11:25:38of unique page views. 6 11:25:42 Q. Do you have any more detailed 7 11:25:45understanding of it than that? 8 11:25:46 A. I don't. 9 11:25:59 Q. And do you have an understanding of 10 11:26:02where the 3 million number came from, that 11 11:26:05moved down to a million? 12 11:26:06 A. I don't recall. 13 11:26:14 MR. BESSENGER: I'll mark as the 14 11:26:15 next exhibit in order, Exhibit 13, which 15 11:26:20 begins with KAYAK 01129. 16 11:27:04 (E-mail chain beginning with Bates 17 11:27:04 stamp KAYAK 01129 was marked Plaintiff's 18 11:27:04 Exhibit 13 for identification, as of this 19 11:27:04 date.) 20 11:27:04 Q. This is an e-mail chain from you, 21 11:27:15Ms. Fulton -- before we get to that, I just 22 11:27:18realized, going back to Exhibits -- or Exhibit 23 11:27:22No. 12, which would just be the preceding 24 11:27:27document, I just wanted to clarify, do you 25 11:27:29recall this e-mail exchange with Mr. Fulton? CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 7 of 25 Page ID #:13176 Abrams, Mah & Kahn 81 1 11:27:32 A. With Mr. Fulton? 2 11:27:34 Q. I'm sorry, with -- it's getting to 3 11:27:36be almost lunch time. With Mr. Brosnan. 4 11:27:40 A. Oh, this -- 5 11:27:42 Q. Do you recall this? 6 11:27:42 A. Yes. 7 11:27:43 Q. Okay. 8 11:27:47 MR. BESSENGER: And Jonathan, I 9 11:27:48 don't know if you want to enter into a 10 11:27:49 stipulation that e-mails produced by KAYAK 11 11:27:53 bearing her e-mail address are 12 11:27:55 authenticated or not. 13 11:27:55 MR. MOSKIN: Yeah, that's -- I 14 11:27:56 don't -- likewise I think -- I don't -- 15 11:27:57 MR. BESSENGER: Yeah, I don't think 16 11:27:59 there's going to be a big dispute about 17 11:28:00 that, but it will save us some time. 18 11:28:05 Okay. 19 11:28:06 Q. So onto -- 20 11:28:07 MR. MOSKIN: Let's say this, if 21 11:28:09 there is something -- I can't anticipate 22 11:28:10 what, you know, possible anomaly there 23 11:28:15 would be, but that would pretty uniformly 24 11:28:18 have to be true. And I don't want to 25 11:28:19 waste your time and I trust you don't want CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 8 of 25 Page ID #:13177 Abrams, Mah & Kahn 103 1 11:56:49document, Exhibit 13, if you would go to -- 2 11:56:55yeah, it's the same e-mail exchange with your 3 11:56:57analyst. Go to the page KAYAK 01130. Down at 4 11:57:06the bottom here you write -- the last e-mail 5 11:57:10exchange on that page -- 6 11:57:11 MR. MOSKIN: Sorry, what page are 7 11:57:12 you on? 8 11:57:12 MR. BESSENGER: KAYAK 01130. 9 11:57:15 MR. MOSKIN: Okay. 10 11:57:15 Q. And there's just a brief e-mail, a 11 11:57:17one-line e-mail exchange down at the bottom 12 11:57:19from you to Yuting Qi, and you write -- this is 13 11:57:23dated January 4, 2014 -- "This is perfect. 14 11:57:27Thanks for all of your help, Yuting." And I'm 15 11:57:37going to introduce another exhibit which is 16 11:57:40relevant to that e-mail exchange and this is an 17 11:57:56e-mail from you Bates stamped KAYAK 01118 and 18 11:58:08this will be Exhibit 14. 19 11:58:09 (E-mail Bates stamped KAYAK 01118 20 11:58:09 was marked Plaintiff's Exhibit 14 for 21 11:58:09 identification, as of this date.) 22 11:58:23 Q. And I just want to direct your 23 11:58:25attention to the date of this e-mail, which is 24 11:58:30Exhibit 14, it's from you, Lauren Fulton, to an 25 11:58:35e-mail address ail_reporting@evox.com and CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 9 of 25 Page ID #:13178 Abrams, Mah & Kahn 104 1 11:58:44there's an attachment entitled May 2014 KAYAK 2 11:58:50Car Unique IP and this was sent by you to EVOX 3 11:58:56on the same day that you wrote this e-mail to 4 11:58:59Yuting Qi saying, "This is perfect. Thanks for 5 11:59:02all of your help, Yuting;" is that right? If 6 11:59:07you look down at the bottom of KAYAK 01130. 7 11:59:18 A. Mm-hmm. 8 11:59:18 Q. Okay. And your e-mail, "This is 9 11:59:21perfect," that's in reference to a report that 10 11:59:26Yuting Qi provided you with; is that right? 11 11:59:28 A. Yes. 12 11:59:29 Q. And so is this report that you 13 11:59:31e-mailed the KAYAK car unique IP on the same 14 11:59:37day -- is that the report that Yuting sent to 15 11:59:41you, to the best of your recollection? 16 11:59:43 A. Yes. 17 11:59:43 Q. Okay. Referring back to Exhibit, 18 11:59:5413 which is this same lengthy e-mail chain that 19 11:59:59you had with your analyst -- 20 12:00:01 A. Mm-hmm. 21 12:00:01 Q. -- the thread picks up again. You 22 12:00:04have this June 4, 2014, e-mail to Yuting Qi and 23 12:00:07then the next e-mail in order is from you to 24 12:00:11Dr. Karadimitriou on March 27, 2015, so quite a 25 12:00:20few months later. CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 10 of 25 Page ID #:13179 Abrams, Mah & Kahn 108 1 12:03:52 Q. And on April 2, 2015, flipping over 2 12:03:55now to KAYAK 01129, at the bottom of the page, 3 12:04:00on April 2, 2015, the new analyst Yongqiang 4 12:04:06Zhang writes, "Hi Lauren, I've attached the 5 12:04:09result to the JIRA ticket. Please take a look 6 12:04:11and let me know if it is okay." And this is 7 12:04:19to -- so I can get a better understanding, so 8 12:04:21the JIRA ticket, you can actually attach other 9 12:04:23documents to; is that right? 10 12:04:25 A. Yes. 11 12:04:27 Q. So in the system this ticket would 12 12:04:29have this report attached to it? 13 12:04:31 A. Yes. 14 12:04:42 Q. Then above that you write on April 15 12:04:4513th, maybe eleven days later, "Hi Yon, I took 16 12:04:50a look at the report. It looks perfect. I'm 17 12:04:52going to send what you have in the JIRA to our 18 12:04:55contact." Is the contact EVOX? 19 12:04:59 A. Yes. 20 12:05:02 Q. And then you ask to set up this 21 12:05:04monthly report. Do you know why EVOX was not 22 12:05:13receiving monthly reports for that stretch of 23 12:05:16time from June 4, 2014, through May 2015? 24 12:05:21 A. The previous sender of the reports, 25 12:05:25so that would have been Yuting Qi, left. CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 11 of 25 Page ID #:13180 Abrams, Mah & Kahn 114 1 13:22:49chain and you're basically saying this is the 2 13:22:52report we ran previously, I need some more of 3 13:22:55these going back to account for all the use and 4 13:22:57then moving forward I need you to send these 5 13:22:59every month; is that right? 6 13:23:00 A. Correct. 7 13:23:07 Q. Did you ever communicate to EVOX 8 13:23:14that -- I'll refer you to the document that is 9 13:23:24KAYAK 01118, do you have that in front of you? 10 13:23:27 A. Mm-hmm. 11 13:23:27 Q. It's a one-page document? 12 13:23:29 A. Yup. 13 13:23:31 Q. And this says, "Please find KAYAK 14 13:23:33car unique IP views from May 2014." 15 13:23:36 A. Mm-hmm. 16 13:23:37 Q. Did you ever communicate to EVOX 17 13:23:42what was actually encompassed within this 18 13:23:45report? 19 13:23:46 A. Can you clarify -- 20 13:23:47 Q. Sure. 21 13:23:48 A. -- that? 22 13:23:48 Q. Did you ever say to EVOX this is 23 13:23:52what is in this report, it's -- well, let me 24 13:23:54back up. 25 13:23:55 From your perspective and from your CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 12 of 25 Page ID #:13181 Abrams, Mah & Kahn 115 1 13:23:57understanding, this report that was transmitted 2 13:24:00on June 4, 2014 -- 3 13:24:02 A. Mm-hmm. 4 13:24:02 Q. -- includes user views of KAYAK's 5 13:24:07mobile application; is that right? 6 13:24:08 A. Correct. 7 13:24:08 Q. Did you ever tell anyone at EVOX at 8 13:24:12any time that this report included user views 9 13:24:15of KAYAK's mobile application? 10 13:24:18 A. The discussion I had with EVOX on 11 13:24:21these reports was based on their request and 12 13:24:23what they wanted included in the reports and 13 13:24:25they wanted included total user page views or 14 13:24:31whatever their -- their phrasing is, unique 15 13:24:34page views. 16 13:24:34 Q. Let's go back and -- 17 13:24:36 A. So that's what we put in the 18 13:24:37report. 19 13:24:40 Q. So let's go back and look at the 20 13:24:41actual definition, which is -- and I'm looking 21 13:24:44at KAYAK 01133 at the top, and this is from 22 13:24:49Mr. Brosnan, "Per our compliance department, we 23 13:24:51define a unique page view as every time a page 24 13:24:54is viewed by a unique IP address." 25 13:24:56 So you understood that to include CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 13 of 25 Page ID #:13182 Abrams, Mah & Kahn 116 1 13:25:00views of KAYAK's mobile application? 2 13:25:01 A. Correct. 3 13:25:03 Q. Okay. Did you ever tell or 4 13:25:05communicate to anyone at EVOX that that was 5 13:25:08your understanding? 6 13:25:08 A. I do not recall. 7 13:25:09 Q. If you had, would you recall? 8 13:25:14 A. Can you clarify that? 9 13:25:15 Q. Would anything refresh your 10 13:25:18recollection of whether or not you ever 11 13:25:19communicated that to EVOX? 12 13:25:21 A. Would anything refresh my 13 13:25:23recollection? I mean, potentially. What do 14 13:25:27you mean by anything? 15 13:25:29 Q. Have you reviewed any of your 16 13:25:31e-mails in preparation for your examination 17 13:25:34today? 18 13:25:35 A. I reviewed the e-mail that I just 19 13:25:38sent here. 20 13:25:38 Q. Okay. And no other e-mails? 21 13:25:40 A. No. 22 13:25:41 Q. You didn't review any other 23 13:25:42documents in preparation for your testimony 24 13:25:44today? 25 13:25:44 A. For today? CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 14 of 25 Page ID #:13183 Abrams, Mah & Kahn 119 1 13:27:49which is KAYAK 01118, this just says KAYAK car 2 13:27:56unique IP views, this does not reference 3 13:28:00KAYAK's mobile application or anything else; is 4 13:28:02that right? This is -- 5 13:28:05 A. Correct. 6 13:28:06 Q. The reports that KAYAK was actually 7 13:28:09delivering to EVOX did not reference KAYAK's 8 13:28:12mobile application at least initially; is that 9 13:28:14right? 10 13:28:14 A. Correct. 11 13:28:14 Q. So -- 12 13:28:16 MR. MOSKIN: Can you repeat the 13 13:28:26 question? 14 13:28:26 (The record is read back by the 15 13:28:26 reporter.) 16 13:28:27 MR. MOSKIN: Well, I -- I'm -- I 17 13:28:29 thought -- I think that's ambiguous. I 18 13:28:32 don't know -- I'll object to form. 19 13:28:37 Q. So unless KAYAK communicated to 20 13:28:42EVOX that the use reports it was delivering 21 13:28:45included users views of KAYAK's mobile 22 13:28:51application, how would EVOX have understood 23 13:28:52that those numbers were included in the 24 13:28:54reports? 25 13:28:54 A. Based on our conversations about CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 15 of 25 Page ID #:13184 Abrams, Mah & Kahn 131 1 13:45:22 Q. So you don't -- 2 13:45:22 A. Between 2 and 3. 3 13:45:24 Q. You don't view this e-mail as all 4 13:45:27talking about the same terms of the same deal? 5 13:45:29 A. No. I was -- 6 13:45:29 Q. This is one deal, isn't it? 7 13:45:31 A. It is one deal, but truly, like, in 8 13:45:333 I was just looking for a response on what 9 13:45:37exactly page attribution is. I had never dealt 10 13:45:39with it before, I didn't know, so I was just 11 13:45:41looking for a definition. 12 13:45:58 Q. KAYAK's mobile application actually 13 13:46:00has a separate screen for legal disclosures and 14 13:46:04copyright attributions and so on; is that 15 13:46:06right? 16 13:46:06 A. That's correct. 17 13:46:07 Q. Okay. So when he here is 18 13:46:12discussing the fact that page attribution 19 13:46:15permission would be at the bottom of the page, 20 13:46:18that wouldn't work on KAYAK's mobile 21 13:46:20application; is that right? 22 13:46:21 MR. MOSKIN: Asked and answered. 23 13:46:23 Q. You can answer. 24 13:46:23 A. Correct. But I did not know that 25 13:46:25at that time. Again, the whole idea of page CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 16 of 25 Page ID #:13185 Abrams, Mah & Kahn 132 1 13:46:27attribution was completely new to me. 2 13:46:35 Q. Did you know at the time of this 3 13:46:36e-mail that KAYAK's mobile application put 4 13:46:39disclosures and attributions and copyright 5 13:46:42notices and so on on a separate screen? 6 13:46:44 A. I did not know. 7 13:46:49 Q. Do you know when you first learned 8 13:46:50that? 9 13:46:51 A. I don't recall. 10 13:47:04 MR. BESSENGER: I'll mark as the 11 13:47:06 next exhibit, No. 18, this is another 12 13:47:11 e-mail from Ms. Fulton KAYAK 0762. 13 13:47:16 (E-mail from Ms. Fulton Bates 14 13:47:16 stamped KAYAK 0762 was marked Plaintiff's 15 13:47:16 Exhibit 18 for identification, as of this 16 13:47:16 date.) 17 13:47:35 Q. At the bottom of this e-mail is 18 13:47:37another description of a ticket from JIRA and 19 13:47:41the summary is, "Add attribution to car images 20 13:47:44provider on all mobile app platforms" and is 21 13:47:47dated May 20, 2015. Then underneath that it 22 13:47:54says, "Add attribution to EVOX images on mobile 23 13:47:57apps. Must be the same verbiage as website." 24 13:48:03Underneath that it says, "Let's add this to the 25 13:48:05settings legal screen, create a new legal CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 17 of 25 Page ID #:13186 Abrams, Mah & Kahn 133 1 13:48:08notices entry for now and put this on that 2 13:48:11screen." 3 13:48:19 And then above, on June 23, 2015, 4 13:48:22you respond, "How can I see these live? Where 5 13:48:25do I go in app?" 6 13:48:32 So when this is being discussed 7 13:48:37internally at KAYAK about where these are to be 8 13:48:40located on the mobile application, we're 9 13:48:43talking about screens here; is that right? 10 13:48:48"Let's add this to the settings legal screen, 11 13:48:50create a new legal notices entry for now and 12 13:48:52put this on that screen"? 13 13:48:55 A. Yup. 14 13:48:55 Q. And is it correct that before this 15 13:49:00time, in other words before May 20, 2015, there 16 13:49:03was no attribution of any kind with respect to 17 13:49:06EVOX on KAYAK's mobile application? 18 13:49:09 A. I don't recall. I don't know the 19 13:49:10dates off the top of my head. 20 13:49:12 Q. If there was some sort of 21 13:49:14attribution before this time, would there have 22 13:49:16been a need to add attribution to EVOX images 23 13:49:18on mobile apps? 24 13:49:21 A. No. 25 13:49:23 Q. And when you go up to the top here CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 18 of 25 Page ID #:13187 Abrams, Mah & Kahn 157 1 14:37:46signed contract and first we've got the 2 14:38:02transmittal e-mail, which will be Exhibit No. 3 14:38:0627 I believe. 4 14:38:08 (E-mail with final contract 5 14:38:08 beginning with Bates stamp KAYAK 0560 was 6 14:38:08 marked Plaintiff's Exhibit 27 for 7 14:38:08 identification, as of this date.) 8 14:38:19 Q. And this says KAYAK 0560 and it's 9 14:38:26an e-mail from Mr. Shing at EVOX to you, CC'ing 10 14:38:30some other folks at EVOX, and it's transmitting 11 14:38:34a signed copy of the license agreement between 12 14:38:37EVOX and KAYAK, do you see down below you 13 14:38:40write, "Hi, Tim confirmed he signed." 14 14:38:44 Does the Tim there refer to 15 14:38:45Mr. Knowling? 16 14:38:45 A. Correct. 17 14:38:46 Q. And he was the signatory on this 18 14:38:48agreement? 19 14:38:48 A. Correct. 20 14:38:49 Q. Do you recall receiving this e-mail 21 14:38:54from Mr. Shing? 22 14:38:57 A. Yes. 23 14:39:04 MR. BESSENGER: Next in order is 24 14:39:06 going to be Exhibit 28. This is the 25 14:39:11 executed copy of the agreement. You CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 19 of 25 Page ID #:13188 Abrams, Mah & Kahn 158 1 14:39:15 probably have a few of those. Now you 2 14:39:17 have another one. 3 14:39:19 (Executed copy of agreement was 4 14:39:19 marked Plaintiff's Exhibit 28 for 5 14:39:19 identification, as of this date.) 6 14:39:38 Q. And I want to direct your attention 7 14:39:40to -- well, first of all, on the first page, 8 14:39:42which is KAYAK 0562, do you see there that it 9 14:39:47is signed by both parties, Mr. Falstrup and 10 14:39:50Mr. Knowling at EVOX and KAYAK respectively? 11 14:39:54Right in the middle of the page? It's kind of 12 14:39:55a strange contract but it's -- 13 14:39:56 A. Yeah. Yes. 14 14:39:57 Q. Okay. And I want to direct your 15 14:39:59attention to the next page, which is KAYAK 16 14:40:020563, to the same section that we were just 17 14:40:07looking at in the initial draft, 9.2.1 subpart 18 14:40:14(f). 19 14:40:14 A. Mm-hmm. 20 14:40:14 Q. And as you confirmed, this contract 21 14:40:17went back and forth several times, there were 22 14:40:20red lines exchanged, et cetera. I want you to 23 14:40:23look at point (f) in the signed copy of the 24 14:40:25contract, and it says, "PDF copy" -- and this 25 14:40:27is referring to the usage reports. "PDF copy CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 20 of 25 Page ID #:13189 Abrams, Mah & Kahn 174 1 15:01:32 A. Correct. 2 15:01:32 Q. Okay. 3 15:01:33 A. And actually quickly -- 4 15:01:36 Q. Sure. 5 15:01:37 A. -- your previous question, when 6 15:01:39this all first came up, I was -- I actually was 7 15:01:41surprised that I'd never used mobile, but now 8 15:01:44I'm not surprised because I've reviewed these 9 15:01:48e-mails. 10 15:01:49 Q. Run that by me one more time. I'm 11 15:01:52sorry, I'm just not -- 12 15:01:53 A. You asked me -- 13 15:01:53 Q. Would you be surprised if you came 14 15:01:56to learn that you had never used mobile 15 15:01:59application or mobile app in your 16 15:02:00communications with EVOX? 17 15:02:01 A. Yes. 18 15:02:02 Q. Okay. 19 15:02:02 A. And I think in the very beginning 20 15:02:05when I was looking for e-mails I was like oh, 21 15:02:07wow I didn't use mobile. I used it internally 22 15:02:09at KAYAK when we were talking about setting up 23 15:02:11the deal, but in some of these specific 24 15:02:15communications, not with John Brosnan. 25 15:02:17 Q. Okay. So you were initially CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 21 of 25 Page ID #:13190 Abrams, Mah & Kahn 175 1 15:02:22surprised and then you came to not be surprised 2 15:02:25after you reviewed your documents, is that -- 3 15:02:27am I getting that right? 4 15:02:29 A. I guess -- I guess I took your 5 15:02:30question in the context of like today sitting 6 15:02:33at this table. 7 15:02:33 Q. I see. 8 15:02:34 A. And so I'm not surprised because 9 15:02:36I've looked through some of these, but I think 10 15:02:38in the beginning I was surprised. 11 15:02:39 Q. Got it. You looked through them 12 15:02:40and you didn't find any references to mobile? 13 15:02:43 A. Correct. Yeah. 14 15:02:51 Q. And in this -- going back to this 15 15:02:52e-mail, Exhibit No. 32, where you say they look 16 15:02:57great on site and we are really pleased, was it 17 15:03:11your understanding that Mr. Brosnan understood 18 15:03:16on site to mean kayak.com and KAYAK's mobile 19 15:03:19application? 20 15:03:22 A. I can't really speculate to what he 21 15:03:25understood. 22 15:03:27 Q. Okay. Can you tell me what images, 23 15:03:46if any, KAYAK is using now on its website and 24 15:03:49its mobile application? 25 15:03:52 A. We are using images now. CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 22 of 25 Page ID #:13191 Abrams, Mah & Kahn 195 1 15:47:37 Q. And would you say that during that 2 15:47:39time there were hundreds or dozens? 3 15:47:41 A. Maybe not hundreds. Dozens. 4 15:47:43 Q. Okay. I'm done on that topic. 5 15:47:53 Ms. Fulton, unless counsel has any 6 15:47:55redirect, I'm ready to wrap up for the day. 7 15:48:00 MR. MOSKIN: Very well. Nothing 8 15:48:01 from me. 9 15:48:02 THE VIDEO OPERATOR: Shall we 10 15:48:04 conclude? 11 15:48:05 MR. BESSENGER: Yes. 12 15:48:06 THE VIDEO OPERATOR: This concludes 13 15:48:07 today's deposition of Miss Lauren Fulton. 14 15:48:08 We're now off the record. The time is 15 15:48:10 3:48 p.m. Thank you. 16 MR. BESSENGER Ms. Fulton, your 17 counsel, Mr. Moskin, and I were just 18 discussing off the record that he would 19 like you to have an opportunity to review 20 the transcript of today's proceedings. 21 Once the court reporter here notifies the 22 parties that a transcript has been 23 prepared, you'll have 30 days to review 24 and make certain changes to the extent 25 that you view them as necessary. CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 23 of 25 Page ID #:13192 Abrams, Mah & Kahn 196 1 I should tell you that to the 2 extent that you do make changes, I'm 3 entitled or my colleagues are entitled to 4 discuss those and go into those should 5 there be a trial or some other proceeding 6 where your testimony would be introduced. 7 Also under the central district 8 local rules, my firm will be maintaining 9 the original copy of the transcript, so 10 I'll let you deal with Mr. Moskin in terms 11 of the review and signing of the final 12 transcript. Do you understand that? 13 THE WITNESS: Yes. 14 MR. BESSENGER: Okay. Jonathan, do 15 you have anything to add? 16 MR. MOSKIN: No. 17 (Time noted: 3:55 p.m.) 18 19 20 21 22 23 24 25 CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 24 of 25 Page ID #:13193 Abrams, Mah & Kahn 197 1 DEPONENT'S DECLARATION 2 3 I, LAUREN FULTON, declare under penalty 4 of perjury that I have read the foregoing 5 transcript, and I have made any corrections, 6 additions, or deletions that I was desirous of 7 making, and that the foregoing is a true and 8 correct transcript of my testimony contained 9 therein. 10 11 Executed this ______ day of ___________, 20___, 12 at _____________________, ____________________. 13 14 (City) (State/Country) 15 16 ______________________ 17 LAUREN FULTON 18 19 20 21 22 23 24 25 CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-2 Filed 03/01/17 Page 25 of 25 Page ID #:13194 Abrams, Mah & Kahn 1 1 UNITED STATES DISTRICT COURT 2 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 3 4 EVOX PRODUCTIONS LLC, a ) Delaware limited liability company, ) 5 ) Plaintiff, ) 6 ) v. ) Case No. 7 ) CV15-05053-PSG(AGR) KAYAK SOFTWARE CORPORATION, a ) 8 Delaware corporation; and DOES ) 1-10, ) 9 ) Defendants. ) 10 ____________________________________) KAYAK SOFTWARE CORPORATION, a ) 11 Delaware corporation, ) ) 12 Counterclaimant, ) ) 13 v. ) ) 14 EVOX PRODUCTIONS LLC, a ) Delaware limited liability company, ) 15 ) Counterdefendant. ) 16 ____________________________________) 17 18 Videotaped deposition of TIMOTHY KNOWLING, 19 taken on behalf of the Plaintiff/Counterdefendant 20 at 90 Park Avenue, New York, New York, commencing 21 at 9:39 a.m., on June 1, 2016, before Michele 22 Moskowitz, a Shorthand Reporter and Notary 23 Public in and for the State of New York. 24 25 CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-3 Filed 03/01/17 Page 1 of 7 Page ID #:13195 Abrams, Mah & Kahn 21 1 09:55:36 website, the mobile application platform? 2 09:55:38 Anything else? 3 09:55:39 A. That's -- yes, it would include 4 09:55:42 both website and mobile applications. 5 09:55:44 Q. Do you ever use the term search 6 09:55:46 vertical -- in your experience -- let me back 7 09:55:49 up. 8 09:55:50 How many license agreements have 9 09:55:52 you personally signed off of in your time at 10 09:55:55 KAYAK? And if you need to estimate, that's 11 09:55:58 fine. 12 09:55:59 A. I would estimate under five. 13 09:56:07 Q. Is that inclusive of the agreement 14 09:56:09 with EVOX? 15 09:56:10 A. It includes this agreement. 16 09:56:12 Q. Did any of those five agreements 17 09:56:15 use the term vertical or search vertical? 18 09:56:19 A. Not that I recall. 19 09:56:24 Q. And did you assign the task of 20 09:56:32 finding an image supplier to Ms. Fulton? 21 09:56:35 A. I did. 22 09:56:36 Q. And were you in turn assigned that 23 09:56:39 task by somebody? 24 09:56:40 A. I was, yes. 25 09:56:42 Q. And who assigned you that task? CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-3 Filed 03/01/17 Page 2 of 7 Page ID #:13196 Abrams, Mah & Kahn 22 1 09:56:44 A. Our CTO, Giorgos Zacharia. 2 09:56:47 Q. Would you spell that for the court 3 09:56:48 reporter? 4 09:56:48 A. Giorgos, G-I-O-R-G-O-S, Zacharia, 5 09:56:53 Z-A-C-H-A-R-I-A. Zacharia. 6 09:56:59 Q. We dealt with some very long names 7 09:57:01 yesterday. 8 09:57:02 A. Right. 9 09:57:02 Q. And why did the CTO give that 10 09:57:07 assignment to you? 11 09:57:07 A. At the time our chief designer was 12 09:57:10 looking for images, different image content for 13 09:57:15 the car rental vertical and had been evaluating 14 09:57:20 options and Giorgos asked my team to negotiate 15 09:57:26 the agreement with a provider for that content. 16 09:57:29 Q. And that's Lincoln Jackson, the 17 09:57:31 designer? 18 09:57:31 A. He was our chief designer at the 19 09:57:32 time, yes. 20 09:57:33 Q. And why was Mr. Jackson seeking out 21 09:57:39 different images? 22 09:57:41 A. He -- Lincoln was interested in 23 09:57:43 consistency in the images, so certain view, 24 09:57:46 three-quarters view, the ability to size 25 09:57:49 accordingly. So he wanted just the images to CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-3 Filed 03/01/17 Page 3 of 7 Page ID #:13197 Abrams, Mah & Kahn 77 1 11:21:22 Q. As you sit here and read it now, 2 11:21:23 does it impact your understanding? 3 11:21:25 A. No. 4 11:21:28 Q. Does the fact that it is calling 5 11:21:30 for a report of unique page views per web page 6 11:21:34 affect your understanding? 7 11:21:37 A. I'm not a technical person and I 8 11:21:39 didn't set up the reporting, so I don't know 9 11:21:41 what we could or could not do with the 10 11:21:42 reporting, but I went back and reviewed the 11 11:21:47 structure under paragraph 8 and saw that it was 12 11:21:49 rolled out to simply monthly UVs at a high 13 11:21:53 level and thought okay, that's the number they 14 11:21:55 need. 15 11:21:56 Q. With the caveat that you're not a 16 11:21:58 technical person, nor am I, is it fair to say 17 11:22:01 that mobile applications don't have web pages? 18 11:22:05 A. I'm not a technical person, I -- 19 11:22:07 Q. To the best of your understanding. 20 11:22:09 A. I believe an app is its own entity 21 11:22:13 versus a web page, but I'm not a programmer. 22 11:22:25 Q. And related to that, do you know 23 11:22:27 whether KAYAK's mobile application has -- we've 24 11:22:31 been discussing in passing URLs and you 25 11:22:36 mentioned kayak.com, for example, is KAYAK's CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-3 Filed 03/01/17 Page 4 of 7 Page ID #:13198 Abrams, Mah & Kahn 78 1 11:22:39 URL, does KAYAK's mobile application have a 2 11:22:42 URL? 3 11:22:45 A. I'm not a technical expert. I 4 11:22:47 don't believe it does. 5 11:22:54 Q. When did you first become aware 6 11:22:57 that EVOX was taking issue with KAYAK's use of 7 11:23:01 EVOX's images on KAYAK's mobile application? 8 11:23:05 A. I believe it was May 2015. 9 11:23:07 Q. And how did that come to your 10 11:23:10 attention? 11 11:23:11 A. Brett Cochran, who was leading the 12 11:23:14 U.S. business development team, who Lauren 13 11:23:16 Fulton reported to, let me know that there was 14 11:23:19 some concerns from EVOX. 15 11:23:24 Q. And what were those concerns as you 16 11:23:26 best recall? 17 11:23:27 A. From what I recall, it was related 18 11:23:28 to the images being on the mobile app. 19 11:23:33 Q. And what was your reaction upon 20 11:23:36 hearing that concern? 21 11:23:38 A. My reaction was we were paying for 22 11:23:41 the use of the images on a unique view basis, 23 11:23:44 not defined by platform so -- 24 11:23:47 Q. As you understood the agreement. 25 11:23:48 A. As I understood the agreement. So CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-3 Filed 03/01/17 Page 5 of 7 Page ID #:13199 Abrams, Mah & Kahn 93 1 A C K N O W L E D G M E N T 2 3 I, TIMOTHY KNOWLING, declare under penalty 4 of perjury that I have read the foregoing 5 transcript, and I have made any corrections, 6 additions, or deletions that I was desirous of 7 making, and that the foregoing is a true and 8 correct transcript of my testimony contained 9 therein. 10 11 Executed this ______ day of ___________, 20___, 12 13 at _____________________, ____________________. 14 (City) (State/Country) 15 16 17 _____________________________ 18 TIMOTHY KNOWLING 19 20 21 22 23 24 25 CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-3 Filed 03/01/17 Page 6 of 7 Page ID #:13200 CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-3 Filed 03/01/17 Page 7 of 7 Page ID #:13201 EXHIBIT C ENTIRE DOCUMENT PROVISIONALLY LODGED UNDER SEAL Case 2:15-cv-05053-PSG-AGR Document 167-4 Filed 03/01/17 Page 1 of 1 Page ID #:13202 Abrams, Mah & Kahn 1 1 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DISTRICT 2 3 - - - - - - - - - - - - - - - - -x 4 : EVOX PRODUCTIONS LLC, a : 5 Delaware limited liability : company, : 6 Plaintiff, : : 7 vs. : Case No. : CV15-05053-PSG 8 KAYAK SOFTWARE CORPORATION, a : (AGR) Delaware corporation; and : 9 DOES 1-10, : Defendants. : 10 _____________________________ : : 11 KAYAK SOFTWARE CORPORATION, a : Delaware corporation, : 12 Counterclaimant, : : 13 vs. : : 14 EVOX PRODUCTIONS LLC, a : Delaware limited liability : 15 company, : Counterdefendant. : 16 : - - - - - - - - - - - - - - - - -x 17 18 Videotaped Deposition of LINCOLN D. 19 JACKSON, taken on behalf of the Plaintiff/ 20 Counterdefendant at 111 Huntington Avenue, Boston, 21 Massachusetts, commencing at 10:11 a.m., on August 22 17, 2016, before Anne H. Bohan, Registered Diplomate 23 Reporter and Notary Public in and for the 24 Commonwealth of Massachusetts. 25 CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-5 Filed 03/01/17 Page 1 of 8 Page ID #:13203 Abrams, Mah & Kahn 7 1 10:12:20Lardner for KAYAK Software. 2 10:12:22 MR. SMITH: Dominic Smith, KAYAK Software. 3 LINCOLN D. JACKSON 4 a witness called for examination by counsel for the 5 Plaintiff and Counterdefendant, having been 6 satisfactorily identified by the production of his 7 driver's license and being first duly sworn by the 8 Notary Public, was examined and testified as 9 follows: 10 DIRECT EXAMINATION 11 10:12:35 BY MS. CROWTHER: 12 10:12:35 Q. Good morning. Would you please state and 13 10:12:38spell your name for our record. 14 10:12:39 A. My name is Lincoln Jackson, L-i-n-c-o-l-n 15 10:12:42J-a-c-k-s-o-n. 16 10:12:45 Should I be looking at you or the camera? 17 10:12:47 Q. It's up to you. Usually we're in somewhat 18 10:12:51the same place. It's closer to a conversation so 19 10:12:54you're welcome to look at me. 20 10:12:56 A. Okay. 21 10:12:56 Q. Mr. Jackson, were you previously employed 22 10:12:58by KAYAK Software Corporation? 23 10:13:00 A. Yes. 24 10:13:01 Q. When did you leave? 25 10:13:02 A. Approximately four months ago maybe. CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-5 Filed 03/01/17 Page 2 of 8 Page ID #:13204 Abrams, Mah & Kahn 12 1 10:17:25 A. No. 2 10:17:26 Q. Did you know that there were negotiations 3 10:17:30about the terms of the license agreement before 4 10:17:32anyone signed it? 5 10:17:34 A. Yes. 6 10:17:36 Q. Did you provide any input on the terms of 7 10:17:41the license agreement? 8 10:17:41 A. I said that they were high-quality images. 9 10:17:45 Q. How about what the actual agreement or 10 10:17:48limitations of the use of the images was going to 11 10:17:51be? 12 10:17:51 A. No, no. 13 10:17:52 Q. No? 14 10:17:52 A. No. 15 10:17:53 Q. Didn't provide any input about that? 16 10:17:54 A. No. 17 10:17:55 Q. Let's back up a little bit. How long did 18 10:18:03you work for KAYAK? 19 10:18:05 A. Approximately 11 years. 20 10:18:07 Q. What was the last title you held before you 21 10:18:11left? 22 10:18:11 A. Chief designer. 23 10:18:13 Q. What does a chief designer do? 24 10:18:14 A. Generally oversee all design on the site, 25 10:18:22but my role was -- I was actually chief designer of CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-5 Filed 03/01/17 Page 3 of 8 Page ID #:13205 Abrams, Mah & Kahn 23 1 10:30:33 Q. Do you know whether you worked on designing 2 10:30:36the hotel search product? 3 10:30:38 A. Yes, I did. 4 10:30:39 Q. Is it possible that you were redesigning 5 10:30:42the hotel product or maybe launching the initial 6 10:30:45hotel product? 7 10:30:45 A. Yes. 8 10:30:46 Q. How about the flight search; did that exist 9 10:30:49at the time you joined? 10 10:30:50 A. Yes, that existed. 11 10:30:51 Q. As far as you know, did KAYAK launch the 12 10:30:58flight service first, then hotel, then rental cars? 13 10:31:01 A. That is my recollection, yes. 14 10:31:03 Q. What was the title that you held after 15 10:31:11director of product management? 16 10:31:13 A. I was design chief. 17 10:31:17 Q. Is that different from chief designer? 18 10:31:20 A. In my mind it was. 19 10:31:21 Q. What were the differences? 20 10:31:24 A. Title, I guess. Ego. 21 10:31:28 Q. Do you know when you got the title of chief 22 10:31:31designer? 23 10:31:32 A. I asked for it to be changed approximately 24 10:31:35maybe two years before I left. 25 10:31:40 Q. At that time did your responsibilities CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-5 Filed 03/01/17 Page 4 of 8 Page ID #:13206 Abrams, Mah & Kahn 25 1 10:32:54 Q. Who was the other chief designer? 2 10:32:59 A. John Maynard of mobile. That was the 3 10:33:03split, between mobile and web. 4 10:33:06 Q. Did he get the title of chief designer at 5 10:33:10the same time you did? 6 10:33:12 A. I don't know. 7 10:33:18 Q. Did you use "web" in your title when you 8 10:33:21referred to your position? 9 10:33:22 A. I did not, no. 10 10:33:24 Q. Did you ever hear anyone else at KAYAK use 11 10:33:27it? 12 10:33:27 A. I'm going to have some recollection that in 13 10:33:33some org chart internally it may have said "web," 14 10:33:38but no. We didn't really go around talking about 15 10:33:41each other's titles. 16 10:33:46 Q. When KAYAK first launched a mobile 17 10:33:56application, was it an iOS application? 18 10:33:59 A. Yes. 19 10:33:59 Q. You may have told me already, I'm sorry. 20 10:34:04Did you have any involvement with designing that 21 10:34:06product? 22 10:34:06 A. Yes. 23 10:34:06 Q. What was your involvement? 24 10:34:08 A. I designed it. 25 10:34:12 Q. Did you write the code? CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-5 Filed 03/01/17 Page 5 of 8 Page ID #:13207 Abrams, Mah & Kahn 28 1 10:36:42 Q. -- tenure? 2 10:36:43 A. Yes. John Maynard was not the head of 3 10:36:46mobile, though. You're saying he was the primary 4 10:36:49designer? He was actually not also designer but 5 10:36:52also an engineer, so he may have had some 6 10:36:54involvement also with coding of these things. 7 10:36:59 Q. But on the design side, at a certain point 8 10:37:02there became a demarcation between your job for the 9 10:37:06web and Mr. Maynard's job for mobile? 10 10:37:08 A. Correct. 11 10:37:11 Q. Do you think a website is the same thing as 12 10:37:19a mobile application? 13 10:37:20 A. No. 14 10:37:21 Q. What are the differences between them? 15 10:37:25 A. The back -- the database, the back end 16 10:37:30stuff is the same, but the front end is using a 17 10:37:32completely different code to display information. 18 10:37:37And on all the phones or tablets, you can do a 19 10:37:41website that is just displayed inside of a browser, 20 10:37:45or you can have a native app, which we developed, 21 10:37:48that displays the same content. 22 10:37:54 Q. When you designed the first mobile 23 10:38:02application, was it set up so that it would cache 24 10:38:05certain files on the user's mobile device? 25 10:38:07 A. I have no idea. CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-5 Filed 03/01/17 Page 6 of 8 Page ID #:13208 Abrams, Mah & Kahn 134 1 C E R T I F I C A T E 2 I, Lincoln D. Jackson, do hereby certify that I 3 have read the foregoing transcript of my testimony, 4 and further certify under the pains and penalties of 5 perjury that said transcript (with/without) 6 suggested corrections is a true and accurate record 7 of said testimony. 8 Dated at __________, this ____ day of ________, 9 2016. 10 11 _____________________ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-5 Filed 03/01/17 Page 7 of 8 Page ID #:13209 CERTIFIED COPYCase 2:15-cv-05053-PSG-AGR Document 167-5 Filed 03/01/17 Page 8 of 8 Page ID #:13210 EXHIBIT E ENTIRE DOCUMENT PROVISIONALLY LODGED UNDER SEAL Case 2:15-cv-05053-PSG-AGR Document 167-6 Filed 03/01/17 Page 1 of 1 Page ID #:13211 EXHIBIT F REDACTED DOCUMENT PROVISIONALLY LODGED UNDER SEAL Case 2:15-cv-05053-PSG-AGR Document 167-7 Filed 03/01/17 Page 1 of 10 Page ID #:13212 REDACTED Case 2:15-cv-05053-PSG-AGR Document 167-7 Filed 03/01/17 Page 2 of 10 Page ID #:13213 Case 2:15-cv-05053-PSG-AGR Document 167-7 Filed 03/01/17 Page 3 of 10 Page ID #:13214 Case 2:15-cv-05053-PSG-AGR Document 167-7 Filed 03/01/17 Page 4 of 10 Page ID #:13215 Case 2:15-cv-05053-PSG-AGR Document 167-7 Filed 03/01/17 Page 5 of 10 Page ID #:13216 Case 2:15-cv-05053-PSG-AGR Document 167-7 Filed 03/01/17 Page 6 of 10 Page ID #:13217 Case 2:15-cv-05053-PSG-AGR Document 167-7 Filed 03/01/17 Page 7 of 10 Page ID #:13218 Case 2:15-cv-05053-PSG-AGR Document 167-7 Filed 03/01/17 Page 8 of 10 Page ID #:13219 Case 2:15-cv-05053-PSG-AGR Document 167-7 Filed 03/01/17 Page 9 of 10 Page ID #:13220 Case 2:15-cv-05053-PSG-AGR Document 167-7 Filed 03/01/17 Page 10 of 10 Page ID #:13221 EXHIBIT G ENTIRE DOCUMENT PROVISIONALLY LODGED UNDER SEAL Case 2:15-cv-05053-PSG-AGR Document 167-8 Filed 03/01/17 Page 1 of 1 Page ID #:13222 EXHIBIT H ENTIRE DOCUMENT PROVISIONALLY LODGED UNDER SEAL Case 2:15-cv-05053-PSG-AGR Document 167-9 Filed 03/01/17 Page 1 of 1 Page ID #:13223 EXHIBIT I ENTIRE DOCUMENT PROVISIONALLY LODGED UNDER SEAL Case 2:15-cv-05053-PSG-AGR Document 167-10 Filed 03/01/17 Page 1 of 1 Page ID #:13224 EXHIBIT J ENTIRE DOCUMENT PROVISIONALLY LODGED UNDER SEAL Case 2:15-cv-05053-PSG-AGR Document 167-11 Filed 03/01/17 Page 1 of 1 Page ID #:13225 EXHIBIT K ENTIRE DOCUMENT PROVISIONALLY LODGED UNDER SEAL Case 2:15-cv-05053-PSG-AGR Document 167-12 Filed 03/01/17 Page 1 of 1 Page ID #:13226 EXHIBIT L ENTIRE DOCUMENT PROVISIONALLY LODGED UNDER SEAL Case 2:15-cv-05053-PSG-AGR Document 167-13 Filed 03/01/17 Page 1 of 1 Page ID #:13227 EXHIBIT M ENTIRE DOCUMENT PROVISIONALLY LODGED UNDER SEAL Case 2:15-cv-05053-PSG-AGR Document 167-14 Filed 03/01/17 Page 1 of 1 Page ID #:13228 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4851-9306-0654.1 Jean-Paul Ciardullo (CA Bar No. 284170) E-mail: jciardullo@foley.com FOLEY & LARDNER LLP 555 South Flower Street, Suite 3500 Los Angeles, CA 90071-2411 Telephone: (213) 972-4500 Facsimile: (213) 486-0065 Jonathan E. Moskin (pro hac vice) E-mail: jmoskin@foley.com FOLEY & LARDNER LLP 90 Park Avenue New York, NY 10016-1314 Telephone: (212) 682-7474 Facsimile: (212) 687-2329 Attorneys for Defendant-Counterclaimant KAYAK SOFTWARE CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION EVOX PRODUCTIONS LLC, a Delaware limited liability company, Plaintiff, v. KAYAK SOFTWARE CORPORATION, a Delaware corporation; and DOES 1-10, Defendants. Case No: CV15-05053-PSG-AGR RESPONSES TO PLAINTIFF AND COUNTERDEFENDANT EVOX PRODUCTIONS LLC’S FIRST SET OF REQUESTS FOR ADMISSION TO DEFENDANT AND COUNTERCLAIMANT KAYAK SOFTWARE CORPORATION KAYAK SOFTWARE CORPORATION, a Delaware corporation, Counterclaimant, v. EVOX PRODUCTIONS LLC, a Delaware limited liability company, Counterdefendant. The Honorable Philip Gutierrez Trial Date: January 31, 2017 Case 2:15-cv-05053-PSG-AGR Document 167-15 Filed 03/01/17 Page 1 of 7 Page ID #:13229 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4851-9306-0654.1 KAYAK Software Corporation (“KAYAK”) hereby responds as set forth below to EVOX Productions LLC’s First Set of Requests for Admission, Numbers 1 through 11. KAYAK expressly reserves its right to supplement these responses as more information becomes available to it. RESPONSES TO REQUESTS FOR ADMISSION REQUEST FOR ADMISSION NO. 1: Admit that KAYAK does not own any of the COPYRIGHTED PHOTOGRAPHS. RESPONSE TO REQUEST FOR ADMISSION NO. 1: KAYAK admits that it makes no claim to ownership of the stock photographs at issue in this case. REQUEST FOR ADMISSION NO. 2: Admit that EVOX owns the COPYRIGHTED PHOTOGRAPHS. RESPONSE TO REQUEST FOR ADMISSION NO. 2: After reasonable inquiry, KAYAK is unable to admit or deny this request pending receipt of discovery from Evox and pending determination whether the stock photographs are copyrightable. KAYAK therefore denies the same. REQUEST FOR ADMISSION NO. 3: Admit that the COPYRIGHTED PHOTOGRAPHS are entitled to protection under United States copyright law. RESPONSE TO REQUEST FOR ADMISSION NO. 3: KAYAK denies this request. REQUEST FOR ADMISSION NO. 4: Admit that KAYAK may use the COPYRIGHT PHOTOGRAPHS only as provided for by the LICENSE AGREEMENT. RESPONSE TO REQUEST FOR ADMISSION NO. 4: KAYAK admits that its understanding of the license agreement is that it is permitted to use the stock photographs on its mobile app as well as its internet site. After reasonable inquiry, KAYAK is unable to admit or deny this request pending receipt of Case 2:15-cv-05053-PSG-AGR Document 167-15 Filed 03/01/17 Page 2 of 7 Page ID #:13230 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4851-9306-0654.1 discovery from Evox and pending determination whether the stock photographs are copyrightable. KAYAK therefore denies the same. REQUEST FOR ADMISSION NO. 5: Admit that the LICENSE AGREEMENT granted KAYAK a license to use the COPYRIGHTED PHOTOGRAPHS only within the SCOPE OF USE of the LICENSE AGREEMENT. RESPONSE TO REQUEST FOR ADMISSION NO. 5: KAYAK objects that this request calls for a legal conclusion as to the scope of use contemplated by the License Agreement. KAYAK admits that its understanding of the scope of use in the license agreement is that it is permitted to use the stock photographs on its mobile app as well as its internet site. KAYAK otherwise denies this request. REQUEST FOR ADMISSION NO. 6: Admit that the SCOPE OPF USE of the LICENSE AGREEMENT is limited to “(a) Use in a research application on a single Portal Website; (b) Use as Accent Graphics on a single Portal Website.” RESPONSE TO REQUEST FOR ADMISSION NO. 6: KAYAK objects that this request calls for a legal conclusion as to the scope of use contemplated by the License Agreement. The request is also vague and ambiguous given that the License Agreement provides no definition of “portal.” KAYAK admits that its understanding of the scope of use in the license agreement is that it is permitted to use the stock photographs on its mobile app as well as its internet site. KAYAK otherwise denies this request. REQUEST FOR ADMISSION NO. 7: Admit that KAYAK used the COPYRIGHTED PHOTOGRAPHS on KAYAK’s Case 2:15-cv-05053-PSG-AGR Document 167-15 Filed 03/01/17 Page 3 of 7 Page ID #:13231 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4851-9306-0654.1 MOBILE APPLICATION. RESPONSE TO REQUEST FOR ADMISSION NO. 7: KAYAK admits that it used at least some of the subject stock photos on its mobile app pursuant to the License Agreement and the parties’ express understanding in entering the License Agreement, which permitted all uses at issue in this action. REQUEST FOR ADMISSION NO. 8: Admit that KAYAK’s MOBILE APPLICATION is a separate PLATFORM from KAYAK’s WEBSITE. RESPONSE TO REQUEST FOR ADMISSION NO. 8: Denied. REQUEST FOR ADMISSION NO. 9: Admit that KAYAK infringed EVOX’s rights in the COPYRIGHTED PHOTOGRAPHS. RESPONSE TO REQUEST FOR ADMISSION NO. 9: Denied. REQUEST FOR ADMISSION NO. 10: Admit that KAYAK removed COPYRIGHT MANAGEMENT INFORMATION from EVOX’s COPYRIGHTED PHOTOGRAPHS. RESPONSE TO REQUEST FOR ADMISSION NO. 10: Admit that Evox consented to KAYAK’s use of the subject stock photos under a page-attribution method without the original copyright management information accompanying each image separately and otherwise denies this request. REQUEST FOR ADMISSION NO. 11: Admit that, other than removing the COPYRIGHT MANAGEMENT INFORMATION, KAYAK did not alter the COPYRIGHTED PHOTOGRAPHS for use on its MOBILE APPLICATION. Case 2:15-cv-05053-PSG-AGR Document 167-15 Filed 03/01/17 Page 4 of 7 Page ID #:13232 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4851-9306-0654.1 RESPONSE TO REQUEST FOR ADMISSION NO. 11: Admit that Evox consented to KAYAK’s use of the subject stock photos under a page-attribution method without the original copyright management information accompanying each image separately; admit that KAYAK made no changes to the photos other than with Evox’s consent, and otherwise deny this request. DATED: March 23, 2016 FOLEY & LARDNER LLP By: /s/ Jean-Paul Ciardullo Jean-Paul Ciardullo Attorneys for Defendant-Counterclaimant, KAYAK SOFTWARE CORPORATION Jonathan E. Moskin, Esq. (pro hac vice) FOLEY & LARDNER LLP Case 2:15-cv-05053-PSG-AGR Document 167-15 Filed 03/01/17 Page 5 of 7 Page ID #:13233 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4851-9306-0654.1 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 555 South Flower Street, Suite 3500, Los Angeles, CA 90071-2411. On March 23, 2016, I served true copies of the following document(s) described as RESPONSES TO PLAINTIFF AND COUNTERDEFENDANT EVOX PRODUCTIONS LLC’S FIRST SET OF REQUESTS FOR ADMISSION TO DEFENDANT AND COUNTERCLAIMANT KAYAK SOFTWARE CORPORATION on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the document(s) to be set from e-mail address jciardullo@foley.com to the persons at the e-mail addresses listed in the Service List. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. Executed on March 23, 2016, at Los Angeles, California. /s/ Jean-Paul Ciardullo Jean-Paul Ciardullo Case 2:15-cv-05053-PSG-AGR Document 167-15 Filed 03/01/17 Page 6 of 7 Page ID #:13234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 4851-9306-0654.1 SERVICE LIST EVOX Productions LLC v. KAYAK Software Corporation CV15-05053-SS Robyn C. Crowther, Esq. Caldwell Leslie & Proctor, PC 725 South Figueroa Street, 31st Floor Los Angeles, CA 90017-5524 Telephone: (213) 629-9040 Facsimile: (213) 629-9022 E-mail: crowther@caldwell-leslie.com (by e-mail only) Attorneys for Plaintiff and Counterdefendant EVOX Productions LLC Craig H. Bessenger, Esq. Caldwell Leslie & Proctor, PC 725 South Figueroa Street, 31st Floor Los Angeles, CA 90017-5524 Telephone: (213) 629-9040 Facsimile: (213) 629-9022 E-mail: bessenger@caldwell-leslie.com (by e-mail only) Case 2:15-cv-05053-PSG-AGR Document 167-15 Filed 03/01/17 Page 7 of 7 Page ID #:13235 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CALDWELL LESLIE & PROCTOR CALDWELL LESLIE & PROCTOR, PC ROBYN C. CROWTHER, State Bar No. 193840 crowther@caldwell-leslie.com CRAIG H. BESSENGER, State Bar No. 245787 bessenger@caldwell-leslie.com CAMERON J. JOHNSON, State Bar No. 266729 johnson@cladwell-leslie.com 725 South Figueroa Street, 31st Floor Los Angeles, California 90017-5524 Telephone: (213) 629-9040 Facsimile: (213) 629-9022 Attorneys for EVOX Productions, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION EVOX PRODUCTIONS LLC, a Delaware limited liability company, Plaintiff, v. KAYAK SOFTWARE CORPORATION, a Delaware corporation; and DOES 1-10, Defendants. Case No. CV15-05053-PSG (AGR) [PROPOSED] ORDER GRANTING EVOX PRODUCTIONS, LLC’S SECOND MOTION FOR SUMMARY JUDGMENT The Honorable Philip S. Gutierrez Date: April 3, 2017 Time: 1:30 p.m. Crtrm.: 6A Trial Date: April 25, 2017 KAYAK SOFTWARE CORPORATION, a Delaware corporation, Counterclaimant, v. EVOX PRODUCTIONS LLC, a Delaware limited liability company, Counterdefendant. Case 2:15-cv-05053-PSG-AGR Document 167-16 Filed 03/01/17 Page 1 of 2 Page ID #:13236 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- CALDWELL LESLIE & PROCTOR Plaintiff and Counterdefendant EVOX Productions, LLC’s (“EVOX”) Second Motion for Summary Judgment (“Motion”) came on for hearing before this Court on April 3, 2017, at 1:30 p.m. After full consideration of the matter, this Court finds as follows: EVOX’s Motion is GRANTED. IT IS THEREFORE ORDERED that summary judgement is entered in favor of EVOX and against KAYAK Software Corporation (“KAYAK”) on KAYAK’s Second Affirmative Defense of Complaint is Barred, in Whole or Part, by Contract; and KAYAK’s Third Counterclaim and Seventeenth Affirmative Defense of Implied License. IT IS SO ORDERED. Dated: The Honorable Philip S. Gutierrez Judge, United States District Court Prepared by: /s/ CALDWELL LESLIE & PROCTOR, PC ROBYN C. CROWTHER CRAIG H. BESSENGER CAMERON J. JOHNSON Attorneys for EVOX Productions LLC Case 2:15-cv-05053-PSG-AGR Document 167-16 Filed 03/01/17 Page 2 of 2 Page ID #:13237