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Rich Declaration PB v TW Restraining Order 28.Nov.12

Rich Declaration PB v TW Restraining Order 28.Nov.12

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Published by: MikeIsaac on Nov 29, 2012
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06/10/2013

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 &
 
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A
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DECL. OF JOHN DAVID RICH IN SUPP. OF APP. FOR TRO AND OSC RE: PRELIM. INJ.SFACTIVE-902893547.1
CROWELL & MORING LLPMichael Kahn
(CSB No. 57432, mkahn@crowell.com)
 Gregory D. Call
(CSB No. 120483, gcall@crowell.com)
Beatrice B. Nguyen
(CSB No. 172961, bbnguyen@crowell.com)
275 Battery Street, 23rd Floor San Francisco, CA 94111Telephone: 415.986.2800Facsimile: 415.986.2827Attorneys for PlaintiffsPeopleBrowsr, Pty., Ltd, PeopleBrowsr, Inc.SUPERIOR COURT OF THE STATE OF CALIFORNIACOUNTY OF SAN FRANCISCOPEOPLEBROWSR, INC., ANDPEOPLEBROWSR PTY., LTD.,Plaintiff,v.TWITTER, INC.,Defendant.Case No.
DECLARATION OF JOHN DAVID RICHIN SUPPORT OF PLAINTIFFS’APPLICATION FOR TEMPORARYRESTRAINING ORDER AND ORDER TOSHOW CAUSE RE: PRELIMINARYINJUNCTION
 
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DECL. OF JOHN DAVID RICH IN SUPP. OF APP. FOR TRO AND OSC RE: PRELIM. INJ.SFACTIVE-902893547.1
I, John David Rich, declare as follows:1.
 
I am the founder and Chief Executive Officer of Plaintiffs PeopleBrowsr, Inc. andPeopleBrowsr Pty., Ltd. (together, “PeopleBrowsr”). I make this declaration in support of Plaintiffs’ Application for Temporary Restraining Order and Order to Show Cause RePreliminary Injunction. Except where the matters below are stated on information and belief, Ihave personal knowledge of the facts set forth in this declaration and, if called as a witness, couldand would competently testify thereto.2.
 
Twitter is a platform that allows its 140+ million active members to post shortmessages called “tweets” about what they are experiencing in real time. PeopleBrowsr receivesevery one of the more than 340 million tweets posted on Twitter daily through what is called theTwitter “Firehose,” and makes this massive flow of data useful by highlighting relevantinformation, spotting trends, and identifying influential people.3.
 
Twitter intends to terminate PeopleBrowsr’s Firehose access on November 30,2012, after which PeopleBrowsr would only have access to a fraction of the data availablethrough the Firehose. This would cause severe harm to PeopleBrowsr’s business. PeopleBrowsr relies on the Firehose to provide deep analytics based on a comprehensive picture of Twitter activity. A mere sample of Twitter data is insufficient to provide the analytics PeopleBrowsr’sweb users and organizational clients expect. Without the Firehose, PeopleBrowsr cannot providethe products its users and contracting partners expect, and will suffer devastating damage to itsgoodwill and business relationships.
A.
 
Twitter Is the Only Source for Its Unique Brand of Consumer Information.
4.
 
Twitter data is a unique and essential input for PeopleBrowsr’s business. Tweetsare public, contemporaneous reports on users’ experiences that provide unique feedback regarding consumers’ reactions to products and brands. Twitter also allows millions of users torespond to each other by, for example, reposting (“retweeting”) each others’ content or mentioning each other in their own tweets. This web of interactions provides unique insightabout which members of communities are influential.
 
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DECL. OF JOHN DAVID RICH IN SUPP. OF APP. FOR TRO AND OSC RE: PRELIM. INJ.SFACTIVE-902893547.1
5.
 
Social networking sites like Facebook are not public, and do not provide the samerich set of public data regarding users’ sentiments and influence. Data from these sites can serveas a valuable complement to Twitter data. Indeed, when PeopleBrowsr was recently approached by a Facebook analytics company called Swaylo that was seeking to sell its assets on favorableterms, PeopleBrowsr took advantage of the opportunity in order to broaden the inputs for itsanalytics. The Swaylo data is not a substitute for Twitter data, which is central and critical toPeopleBrowsr’s services. My customers and prospective customers are interested in dataanalytics based on Twitter data. Supplementing Twitter data with data from other sites isattractive to them – replacing Twitter data with data from other sites is not.
B.
 
PeopleBrowsr Built a Valuable Business Based on Twitter’s Commitment toKeep Access to Its Data Open.
1.
 
Twitter Has Offered PeopleBrowsr the Firehose for Over Four Years.
6.
 
PeopleBrowsr has had a successful relationship with Twitter for over four years,since I met Twitter’s Chief Technology Officer in early 2008. By July 2008, Twitter andPeopleBrowsr entered into a Content License Agreement that provided PeopleBrowsr access tothe Firehose at no cost. (A true and correct copy of this agreement is attached as Exhibit A.)7.
 
In June 2010, Twitter and PeopleBrowsr renewed that agreement, agreeing thatPeopleBrowsr would pay the greater of: (a) a minimum monthly fee of $15,000, which wouldincrease by $5000 per month with a cap of $100,000 or (b) 25 percent of PeopleBrowsr’s grossrevenue, net of third party revenue share. (A true and correct copy of this agreement is attachedas Exhibit B.) PeopleBrowsr was willing to pay Twitter 25 percent of its gross revenue becausethere is no substitute for Twitter data. Twitter’s revenue under this agreement has steadily grown,and PeopleBrowsr now pays Twitter more than $1 million per year for its Firehose access.2.
 
PeopleBrowsr Provides Valuable Insight Utilizing the Full Firehose.
8.
 
PeopleBrowsr’s real-time scoring engine receives three to four thousand tweetsevery second through the Firehose; extracts useful information from the tweets, such as users’location, gender, and communities; processes and tags the tweets for use in PeopleBrowsr’sanalytics; and stores the tweets in its 100+ Terabyte data mine
.
PeopleBrowsr has received and

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