PILLSBURY MADISON & SUTRO RANDOLF J. RICE #083712 BARBARA R. SHUFRO #128857 MELISSA A. BURKE #171710 Ten Almaden Boulevard San Jose, CA 95113-2226 Telephone: (408) 947-4000 Attorneys for Defendant NETCOM ON-LINE COMMUNICATIONS SERVICES, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ___________________________________________ RELIGIOUS TECHNOLOGY CENTER, a No. C95-20091 RMW California non-profit corporation; and BRIDGE PUBLICATIONS, INC., a California non-profit corporation, DECLARATION OF RICK FRANCIS IN SUPPORT OF Plaintiffs, NETCOM'S MOTION TO DISMISS, OR IN THE vs. ALTERNATIVE, FOR SUMMARY JUDGMENT NETCOM ON-LINE COMMUNICATION SERVICES, INC., a Delaware corporation; DENNIS ERLICH, an individual; and TOM KLEMESRUD, Date: April 14, 1995 an individual, dba CLEARWOOD DATA SERVICES, Time: 9:00 a.m. Before: The Hon. Ronald M. Whyte Defendants. ___________________________________________ I, RICK FRANCIS, declare as follows: 1. I am the Vice President of Software Engineering for defendant NETCOM On-Line Communication Services, Inc. ("NETCOM"). If called as a witness, I could and would testify competently as follows: 2. NETCOM is an "access provider" to the Internet. 3. The Internet is a worldwide network of private and public computer networks that link universities, government agencies, commercial entities, individuals and other users having disparate computer systems and networks, by means of a common communications standard. The computer networks that comprise the Internet communicate through an open, nonproprietary communications protocol known as TCP/IP (Transmission Control Protocol/Internet Protocol), which determines addressing mechanisms and the routing of information. The Internet's networks are connected in a variety of ways, including regular phone lines, high speed dedicated leased lines, and fiber optic links. Nonprofit consortiums, including the Commercial Internet Exchange Association, provide central gateways where the networks of commercial Internet access providers, telecommunications companies and government-subsidized entities interconnect. Policies regulating the Internet are made by the Internet Society Operating Committee, a voluntary membership organization dedicated to promoting networking technologies. 4. The Internet was organized by the U.S. government in the 1970s to insure that a communications system would be in place in the event of a national emergency. Because of this, the Internet is organized as a "web" with every link reachable by many routes. In addition, many Internet network sites are government or university based. Use of the Internet has grown rapidly since the commercialization Of the Internet in the early 1990's. According to International Data Corporation, there were approximately 16 million Internet users as of the end of 1993, with the number of users expected to more than double to approximately 36 million by the end of 1994. 5. Applications of the Internet include the following: Electronic Mail: Enmail is an Internet application by which an Internet user can exchange messages with any other user who has an E-mail address. Messages can be sent almost instantly to designated individuals or groups on a mailing list. USENET Newsgroups: USENET is a network of thousands of computers attached to the Internet that provide forums, or newsgroups, which allow users to exchange information on a variety of topics of shared interest. "Newsgroups" are simply the way postings are categorized on USENET accordingly to topics of interest, for example alt.religion.scientology is one such newsgroup. Internet users can seek of provide information on diverse topics ranging from sports or other hobbies to job opportunities to restaurant and travel suggestions. When a posting is made to a particular newsgroup through a local server, that local server makes available what is posted to a group of other USENET servers, which in turn does the same, until all server sites obtain access to the posting. USENET postings are distributed world-wide within a matter of hours. There are tens of thousands of USENET participants. USENET postings are "resident" on the computer facilities at NETCOM, and at every USENET server site, in machine readable form, in order to accomplish the subscribers, intended posting to the network of computers that participate as USENET sites. Virtually all of the approximately 10,000 USENET sites, including major universities and U.S. government as sites, maintain all USENET newsgroup postings on their servers for a short period of time, including those posted from other sites, to ease transmission of the messages and for the convenience of Usenet users. World Wide Web: The World Wide Web is a browsing and searching system comprised of thousands of computer servers, referred to as home pages, each linked by a special communications protocol called Hypertext Transport Protocol (HTTP). This open protocol allows Internet users to view and access text, graphics, video and audio resident on a home page or to leap instantaneously to further or related information on the same server or other home pages. Databases and Public Domain Software: Many of the computers connected to the Internet are repositories for vast amounts of data, graphics, public domain software and other programs that have been made available to the public. For example, with an Internet connection, one can access commercial, educational and government databases, newspapers, magazines, library card catalogs, industry newsletters, weather updates, and other information. Data and File Transfer: The Internet can be easily used to move electronic files (including data, programs or text) from one computer to another. This can be very useful for parties that collaborate on data files where the parties are separated by great distances. Unlike a fax machine, information transferred over the Internet remains in digital format and does not need to be re-entered by a receiving party; it can be manipulated and then re-transmitted to other Internet users. 6. A number of companies have emerged to provide Internet connectivity services. These access providers vary widely in the number and type of subscribers, geographic coverage, and levels and quality of Internet connectivity provided to subscribers. Direct Internet access, which permits access to the full range of the Internet's resources, requires a telecommunications network configured to support the Internet Protocol such as SLIP (Serial Line Interface Protocol) or PPP (Point to Point Protocol). Many Universities offer access to the university community or to the public. It is possible for experienced "hackers" to gain access to the Internet through a number of means. 7. As an access provider, NETCOM provides its subscribers with a means of connecting with the Internet. Using a computer equipped with a modem or dedicated phone line, a NETCOM subscriber can obtain access to the Internet's communication, information, entertainment and computer resources, as well as its commercial applications, for a monthly subscription fee. All of NETCOM's Internet connectivity services utilize the Company's national telecommunications network comprised of a backbone of leased high speed dedicated data lines (T-3 and T-1 lines), computer software and hardware, and local access points (called points of presence or "POPs") in more than 30 major metropolitan areas. NETCOM's POPs allow its subscribers in these metropolitan areas to access the Internet through a local telephone call. NETCOM's subscribers pay a monthly subscription fee and are entitled to unlimited access time through NETCOM's Internet connection, $17.50 per month for a shell account or $19.50 per month for a more user friendly software-interface. NETCOM derives no incremental benefit from what is posted on the Internet system by its subscribers, or what is retrieved. 8. Many people access the internet through a Bulletin Board Service (BBS). A BBS can range in size from a single personal computer with few transmission lines, whose information is only available to subscribers, to a CompuServe or Prodigy content provider service. 9. Many Bulletin Board Services are also participants in USENET, a world-wide distribution chain for local postings. Postings on a particular BBS can be accessed from any computer in the Internet through USENET, if that BBS is a USENET participant. As described earlier, there are tens of thousands of USENET participants on the Internet. 10. As an Internet connectivity provider, NETCOM provides its customers with access to the Internet through the Company's telecommunications network. While NETCOM provides full access to the resources of the Internet, the Company is not involved in any way in determining content of the information available on the Internet and the Company has no control over the information that may be accessed. NETCOM is not involved in operating or maintaining any of the applications of the Internet. NETCOM does not post or control the contents of the information posted or its destination. NETCOM does not control where, when or whether the information may be "downloaded." Rather, NETCOM allows subscribers to lease access time to its facilities to post USENET messages. NETCOM functions as a conduit to the information available on the Internet. NETCOM maintains communication with its subscribers about NETCOM's services through a newsgroup service, and allows its subscribers to communicate in an unmoderated fashion, but otherwise does not maintain or supervise any database. 11. A number of the major on-line service providers, such as CompuServe and America Online, Inc., utilize closed host computer systems using proprietary communications protocols and provide more limited access to the Internet. These on-line services generally offer their subscribers a specified slate of content, E-mail and other services. NETCOM competitors include AlterNET, CERFnet, DIGEX, PANIX, The Pipeline, The Well, The World and a number of smaller access providers. NETCOM is unlike America Online, CompuServe, GEnie or Prodigy, services which also, or primarily, attempt to provide content-based services to subscribers. NETCOM does not offer such content-based services. In contrast, NETCOM, through a fixed-rental agreement, leases the equipment necessary to enable its subscribers to communicate on the Internet. 12. NETCOM does not have the ability to monitor in advance the content of messages transmitted by the Company's subscribers over the Internet. In addition, the Company has no editorial 1 control over the content of the messages transmitted over the Internet. The average amount of information carried over the Internet through NETCOM is 150 megabytes or 150 Million key strokes per day. It would be impossible to read and monitor or exercise editorial control over the content of this amount of information. NETCOM has never before "prescreened" postings, does not currently have the software to do so, and believes this proposed procedure is unworkable for the reasons explained in NETCOM's Memorandum of Points and Authorities filed in support of its Motion to Dismiss. 13. Defendant Tom Klemesrud is a NETCOM subscriber. Mr. Klemesrud has a "UUCP account" ("Unix to Unix Copy account") which allows him access to 900 newsgroups for his subscribers and propagate their information to USENET. NETCOM has approximately 2000 customers with similar accounts. Through his BBS, Klemesrud allows his individual subscribers to gain access to the Internet via the connection he maintains with NETCOM. 14. Defendant Dennis Erlich is apparently one of Klemesrud's subscribers. Erlich can "dial-up" Klemesrud's computer and cause messages to be generated by Klemesrud's computer which are posted to any number of newsgroup categories on the USENET. Any material posted to a USENET newsgroup will eventually end up being transmitted to everyone on the USENET system, no matter where the message is posted from. 15. The actions of Erlich in sending messages through the Klemesrud computer to NETCOM's computer for posting on the USENET cause a copy of that message to be generated on NETCOM's computer. NETCOM does not create any other copies of the message. The same copy generated on NETCOM's computer by Erlich through Klemesrud's computer (not an additional copy) is transmitted to the USENET, and is retained on NETCOM's computer for eleven days. After eleven days, the copy is automatically deleted. References in NETCOM's sales material stating that copies of messages are retained for several weeks are outdated. Because of the increased number of USENET groups, NETCOM has reduced the period of retention for messages to the eleven days stated in this paragraph. 16. Because Erlich is not a direct subscriber to NETCOM, NETCOM has no way to discretely terminate his access to the Internet even if required to do so. Rather, the only way for NETCOM to cut off Erlich's access to the Internet is by dropping Klemesrud as a subscriber and simultaneously terminating the Internet access of all Klemesrud's 500+ individual subscribers. As a result, all of these users of a bulletin board service will be uniformly denied access to the Internet because of the alleged misconduct of one. Executed under penalty of perjury under the laws of the State of California this /13/ day of March, 1995. /s/ RICK FRANCIS