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MARICOPA COUNTY COMMUNITY COLLAGE DISTRICT

Maricopa County Community College

District

v.

Dr. Cleopatria Martinez,

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Tempe, Arizona

November 18, 2013

9:32 a.m.

Miller Certified Reporting, LLC

Post Office Box 513

Litchfield Park, Arizona 85340

(P) 623-975-7472 (F) 623-975-7462

(COPY)

Anger Furniss Miller, RPR

Certified Reporter (AZ 50127)

Miller Certified Reporting, LLC

MCCCll/N(artinez 03451

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HEARING, PUBLIC SESSION, BEFORE THE

ADMINISTRATIVE HEARING COMMITTEE OF THE MARICOPA COUNTY

COMMUNITY COLLEGE DISTRICT, in the matter of Cleopatria

Martinez, held at 9:32 a.m. on November 18, 2013, at the

Maricopa County Community College, 2411 West 14th

Street, Tempe, Arizona, in the presence of:

Dr. Keith J. Crudup, Chairperson

Dr. Nora A. Reyes

Dr. Carlos r. Caire

FOR THE DISTRICT:

Mr. Pavneet Singh Uppal, ~sq.

Ms. Shayna Blach, Esq.

FISHER & PHILLIPS, LLP

201 East Washington Street, Suite 1450

Phoenix, Arizona 85004

FOR TI-IE APPELLANT

Mr. Steven Montoya, ~sq.

MONTOYA, JIMENEZ & PASTOR, P.A.

3200 North Central Avenue, Suite 2550

Phoenix, Arizona 85012

ADVISOR TO THE COMMITTEE:

Mr. Ernest Calderon, Esq.

Mr. Taylor R. Bell, Esq.

RIDENOUR, HIENTON & LEWIS, PLLC

201 North Central Avenue, Suite 3300

Phoenix, Arizona 85004

(Note: There are various members of the public

present throughout the proceedings.)

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I N D E X

WITNESS PAGE

Sean Garrison

Direct Examination by Mr. Uppal ..............26

Cross-Examination by Mr. Montoya .............83

Redirect Examination by Mr. Uppal...........111

Cassandra Kakar

Direct Examination by Ms. Blach .............117

Cross-Examination by Mr. Montoya............143

Redirect Examination by Ms. Blach...........157

Anna Solley

Direct Examination by Mr. Uppal .............158

Cross-Examination by Mr. Montoya............163

Cleopatria Martinez

Direct Examination by Mr. Montoya...........172

Cross-Examination by Mr. Uppal ..............227

Further Cross-Examination by Ms. Blach......267

Redirect Examination by Mr. Montoya.........271

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I N D E X

WITNESS PAGE

I'redric D. Bellamy

Direct Examination by Mr. Montoya...........272

Cross-Examination by Mr. Uppal ..............293

Redirect Examination by Mr. Montoya.........310

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I N D E X

(NOTE: Pursuant to order of the Committee,

all exhibits marked for identification are received into

evidence; Page 13, Line 23.)

(NOTE: MCCCD Exhibits 44, 45, and 46 are not

attached and are retained by Mr. Calderon, Advisor to

the Hearing Committee.)

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August 9, 2013 Letter, Intent to Dismiss

March 20, 2013 Notice of Pre-Disciplinary

Conference

October 18, 2012 Counseling Notice

Dr. Cleopatria Martinez Deposition Transcript,

Vol. 1

Dr. Cleopatria Martinez Deposition Transcript,

Vol. 2

April 19, 2013 Sean Garrison Expert Report &

Exhibits

October 29, 2010 Sean Garrison Memo

April 2, 2010 Directive

December 9, 2010 Directive

Anna Solley Declaration

Ronnie Elliot Declaration

Joe Sueyoshi Declaration

James Sousa Declaration

Wilbert Nelson Declaration

Dr. Martinet's MAT 082 Lecture Notes

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I N D E X

EXHIBIT DESCRIPTION

MCCCD

16 Dr. Martinez's MAT 182 Fall 2009 Lecture Notes

17 Dr. Martinez's MAT 182 Spring 2010 Lecture

Notes

18 October 15, 2010 E-mail Correspondence

19 Excerpts from Charles P. McKeauge Basic

Mathematics Textbook

20 Excerpted Comparison Between Charles P.

McKeauge Basic Mathematics Textbook and Dr.

Martinez's MAT 082 Lecture Notes

21 Excerpts from Sullivan & Sullivan Precalculus

Textbook

22 Excerpted Comparison between Sullivan &

Sullivan Precalculus Textbook and Dr.

Martinet's MAT 182 Lecture Notes

23 January 12, 2010 E-mail to Dr. Martinez

24 January 26, 2010 E-mail

25 January 28, 2010 E-mail

26 February 12, 2010 E-mail

27 October 12, 2010 Letter from Dr. Solley to Dr.

Martinez Summarizing Chronology of Events

28 MCCCD Copyright PowerPoirlt Training

Presentation

29 Dr. Martinet's Responses to MCCCD's Requests

for Production of Documents Regarding Receipts

30 May 31, 1995 Correspondence regarding Transfer

to Phoenix College

31 Dr. Martinet's Employee Profile

32 Arizona State Retirement Fact Sheet,

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I N D E X

EXHIBIT DESCRIPTION

MCCCD

33 November 29, 2011 Letter to Dr. Martinez

34 September 17, 2012 E-mail correspondence

between Dr. Martinez and Tim Bryan

35 November 28, 2012 E-mail to Dr. Martinez's

Students Regarding Refunds

36 Decemberll, 2012 Student Complaint

37 December 11, 2012 E-mail to Dr. Martinez

Regarding Student Complaints

38 December 13, 2012 E-mail to Dr. Martinez

39 Various E-mails Regarding Student Refunds

40 E-mail Regarding Tim Bryan Materials

41 2012/2013 MCCCD Faculty Policy Manual

42 2011 MCCCD Blue Book

43 Printouts from ratemyprofessor.com

44 Precalculus: Concepts Through Functions,

Instructor's Edition, by Sullivan & Sullivan

45 Basic Mathematics, by Charles McKeauge

46 Bound Tim Bryan Materials Sold to Students

EXHIBIT DESCRIPTION

1 3.4 Trigonometry Identities

2 18 Basic Graphs and Conics

3 Math 187 Fall 2010 Pre-Calculus (Algebra)

Outline

4 Math 182 Spring 2010 Plarle Trigonometry Outline

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I N D E X

MAT187 Test 1, 1.1-1.10

Domain and Range of Graphs

Homework for Transformations

Inverse Trigonometric Functions

Calculus 120, Basic Integration Formulas

Tim Bryan's Intermediate Algebra Outline for

Syllabus Spring 2011"

Chapter 2 Fractions Test for MAT 082

Attached A Regarding Violations to Academic

Freedom

February 7, 2011, Tom Adamson's E-mail

regarding Scholarships from Math Department

August 21, 2011 E-mail from Dr. Martinez to Joe

Sueyoshi regarding Request Copies of my Fall

2011 Schedule

September 21, 2010 E-mail from Dr. Kakar to Dr.

Martinez regarding Prirlt Request

September 22, 2011 E-mail from Dr. Martinez to

Joe Sueyoshi Regarding Lecture Notes

April 4, 2012 E-mail from Dr. Martinez to Dr.

Kakar regarding Request for Permission to

Develop Materials

December 16, 2010 Letter to Dr. Martinez from

Mr. Bellamy

Professional Biography of Fredric Bellamy

Staples Receipt dated April 2, 2013

December 13, 2012 E-mzil from Lee Combs to Dr.

Martinez Regarding $11 Refund

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I N D E X

EXHIBIT DESCRIPTION

APPELLANT

22 August 23, 2010 E-mail from Estelle Simpson to

Dr. Martinez Regarding Substitution of my

Problems

23 September 13, 2011 £~-mail from Joe Sueyoshi to

Dr. Martinez Regarding Latest Copy Request

24 September 16, 2011 E-mail from Dr. Kakar to Dr.

Martinez regarding Latest Copy Request

25 April 8, 2010 E-mail from Lee Combs to Maggie

McConnell Regarding Conversation Today

26 April 13, 2010 E-mail from Dr. Martinex to Dr.

Solley Regarding Request for Meeting with Dr.

Solley

27 September 22, 2011 E-mail from Dr. Kakar to Dr.

Martinez Regarding Informal Grievance

28 February 7, 2011 E-mail from Dr. Kakar to Dr.

Martinez regarding Vocabulary Notes

29 Summary of Trigonometry Identities

30 Geometry Summary

31 February 7, 2011 Permission to Use Handouts

Signed by Mena Sung

32 April 15 10.3 Problems 1-8 and 19-27, odd

33 Description of Professor Martinez's Notes

34 September 1, 2011 E-mail from Dr. Martinez to

Amalia Valley Villegas Regarding Request Copies

of My Fall 2011 Schedule

35 January 7, 2011 E-mail from Dr. Martinez to Dr.

Solley regarding Electronic Copy of Dec 9, 2010

letter

36 January 11, 2011 E-mail from David Munoz to Dr.

Martinez Regarding Acknowledgment of Receipt

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I N D E X

EXHIBIT DESCRIPTION

37 January 11, 2011 E-mail to Dr. Martinez

Regarding Pay.Gov Payment Confirmation

38 January 11, 2011 E-mail from Melissa Sailors

to Lee Combs Regarding Previous Request for

Information Re: Cleopatria Martinez

39 January 15, 2011 ~-mail from Dr. Solley to Dr.

Martinez Regarding Electronic Copy of Dec 9,

2010 Letter

40 January 18, 2011 E-mail from Dr. Solley to Dr.

Martinez Regarding MAT 120 Outline for Spring

2011

41 February 3, 2011 E-mail from Dr. Solley to Dr.

Martinez Regarding December 9, 2010 Directive

42 February 8, 2011 E-mail from Dr. Solley to Dr.

Martinez Regarding Copy Request: MAT 120

Homework Outline for Syllabus

43 February 14, 207.1 ~-mail from Dr. Solley to Dr.

Martinez Regarding Tests for M120

44 February 17, 2011 E-mail from Dr. Solley to Dr.

Martinez Regarding Meeting Request

45 February 18, 2011 E-mail from Dr. Martinez to

Dr. Solley Regarding Meeting Request

46 rebruary 17, 2011 E-mail from Dr. Solley to Dr.

Martinez Regarding Meeting Request

47 January 27, 2011 E-mail from Dr. Martinez to

Dr. Solley Regarding December 9, 2010 Directive

48 February 4, 2011 ~-mail from Dr. Solley to Dr.

Martinez Regarding Copy Request: MAT 120

Flomework Outline for Syllabus

49 April 4, 2011 E-mail from Joe Sueyoshi to Dr.

Martinez Regzrdirlg Copy Calc Ch 3 Test

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I N D E X

EXHIBIT DESCRIPTION

APPELLANT

50 April 4, 2011 E-mail from Joe Sueyoshi to Dr.

Martinez Regarding Copy Calc Ch 3 Test

51 April 5, 2011 E-mail from Joe Sueyoshi to Dr.

Martinez Regarding Copy Calc Ch 3 Test

52 April 7, 2011 E-mail from Dr. Martinez to Joe

Sueyoshi Regarding Copy Calc Ch 3 Test

53 April 11, 2011 E-mail from Dr. Martinez to

Wilbert Nelson Regarding Textbook Required?

54 September 20, 2011 E-mail from Dr. Martinez to

Karen Lee Regarding Request Permission to Copy

My Lecture Notes

55 April 2, 2012 E-mail from Dr. Kakar to Dr.

Martinez Regarding Exam with Graph

56 October 12, 2011 E-mail from Dr. Kakar to Dr.

Martinez Regarding Copy Request: Trig

Identities

57 September 11, 2013 E-mail from Lee Combs to the

Hearing Committee

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P R O C E E D I N G S

CHAIRPERSON CRUDUP: I convene the

Administration Hearing regarding the Statement of

Charges brought by the Maricopa County Community College

District, which for the purposes of this hearing we will

call Phoenix College against Cleopatria Martinez.

We have a court reporter present and a record

will be made of this hearing.

Welcome, everyone. We are the Hearing

Committee. I wanted to read the MCCCD charges against

Dr. Cleopatria Martinez. My name is Dr. Keith Crudup,

this is Dr. Nora Reyes, and this is Dr. Carlos Caire.

Would counsel and the parties please introduce

themselves starting with Phoenix College and then Dr.

Martinez.

MR. UPPAL: Good morning. Mr. Chairman and

Members of the Committee, my name is Pavneet Uppal; with

me is my colleague Shayna Balch, we're from the law firm

of Fisher & Phillips, and we represent the District in

today's hearing. I also want to introduce my client,

President Anna Solley. She is here with us. She is the

District representative and President of Phoenix

College.

And thank you for your time and look forward to

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this hearing.

MR. MONTOYA: Good morning. My name is Steven

Montoya. I'm a lawyer here in Phoenix. This is my

client, Dr. Cleopatria Martinez. She's a professor of

mathematics at Phoenix College, who's worked for the

District for 28 years.

CHAIRPERSON CRUDUP: Thank you.

MR. MONTOYA: You're welcome.

CHAIRPERSON CRUDUP: Are there any witnesses

present in the hearing room -- other than -- no other

witnesses?

We will ask witnesses who have not testified to

remain outside the hearing room. Once -- once the

witness has testified, they may remain if we have room.

I don't think we have much room. Naturally, Dr. Anna

Solley and Dr. Cleopatria Martinez who will be witnesses

are allowed to remain in the room as they are the client

representatives or the client herself.

The Hearing Committee has reviewed all the

exhibits, briefs, et cetera. We ask the parties to

cover the major points of the case. Since the rules of

evidence do not apply in administrative hearings, the

Hearing Committee is Zdmitting all that has been

submitted into evidence to become part of the record.

We will now begin the case. The Hearing

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Committee will allow each side ten minutes each for an

opening statement beginning with Phoenix College and

then Dr. Martinez.

MR. UPPAL: All right. Members of the

Committee, good morning. I want to proceed with my

opening statement and take you through the charges and a

brief summary of the evidence that you will be hearing

today. This will also show, I believe, conclusively by

the time that you listen to all the evidence -- and

thank you for reviewing the materials that we have

submitted -- that the recommendation and the request to

terminate Dr. Martinez's employment should be

recommended by this Committee to the full Board.

As you hear the evidence today, I ask you to

keep a couple of things in mind as we launch into my

summary as well as the main presentation, and it's the

following: This is not a court of law. So, the

technical rules as you -- as Mr. Crudup -- Dr. Crudup

just mentioned, the rules of evidence such as --

generally, the rules of evidence do not apply.

Similarly, the sorts of things that you hear in the

court of law or sorts of things that you might here in a

TV drama such as something must be proven beyond a

reasonable doubt or by preponderance of the evidence,

those standards likewise do not apply.

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So, what I'm going to ask this Committee is as

you evaluate the evidence, as you evaluate the

credibility of the witnesses which you will need to do,

as you review the documents, apply the standards of

common sense; because at the end of the day, this

Committee is not caring out the ultimate decision,

that's up to the Board. This Committee is charged with

making a recommendation to the Board.

And I believe that if you apply a standard of

common sense, you will see that there is a mountain of

evidence in support of the charges, the charges as we

will go through basically boil down to three points,

which is: One, that Dr. Martinez has violated both the

law and the District's rules with respect to

misappropriating, misusing, and plain stealing

copyrighted materials, that's really what we're talking

about.

Copyright involves ownership. And here we have

a situation where Dr. Martinez, unfortunately,

misappropriated and used on her own, materials from

three copyrighted textbooks. Here they are. They look

like textbooks, they smell like textbooks, they feel

like textbooks, and when you open to the second page,

there is a copyright notice. There is no doubt about

this issue.

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Likewise, after you hear the evidence, I submit

to you that there will really be no reasonable basis to

dispute -- and, indeed, Dr. Martinez has never disput 

-- that she copied material without permission, without

attribution, and in violation of the copyright holder's

rights, and inserted them into her own materials which

she distributed to her class. And it doesn't matter

what her reasons were behind that. The fact is that

that act constitutes a violation of copyright and it

exposes the District to hundreds of thousands, perhaps

even a million dollars in damages.

And you will hear expert testimony on this

issue.

The second major point is that Dr. Martinez

then after the District took actions to address her

violation of copyright, it was forced to take actions

including imposing restrictions upon her copying

privileges. Basically, an instructor normally if they

adhere to the rules has a right to submit requests for

copying to Phoenix Colleges online copy center. Because

of these repeated violations, that privilege -- and it

is a privilege -- was restricted with respect to Dr.

Martinez. In order to address her copyright violations,

restrictions had to be imposed upon her right t=o submit

materials to the copy center.

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In essence, the District imposed a series of

restrictions after she violated copyright, after they

tried to explain it to her, after they tried to counsel

her, after she still continued to violate the copyright

rules, the District imposed a requirement that, in

essence, her materials that she wanted to use during her

classes had to be pre-reviewed, not for purposes of

interfering with her academic freedom, but simply and

plainly and only, for looking at the fact as to whether

those materials, whether or not they contained

copyrighted materials that are being used without

permission.

We had to do this. There was no other

alternative in light of the liability situation that Dr.

Martinez had created. Dr. Martinez repeatedly violated

those copyright restrictions -- excuse me, copyi.rig

restrictions.

Instead of submitting her materials for

pre-review, instead of using approved textbooks, instead

of having her Department Chairman review the materials

to make sure there was no copyright infringement, she

repeatedly tried to circumvent these restrictions by

directly printing things to the Department printer; by

going outside to Staples and making copies on her owrl,

all so she could avoid the review procedures that were

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put in place to prevent the liability that she had

exposed the District to for copyright infringement.

Second major issue is as a result of her

copyright violations and her attempts to circumvent the

restrictions that were imposed upon her, her pattern of

conduct culminated in a situation where instead of

having students buy textbooks instead of hiving students

-- instead of submitting materials for pre-review for

the District to make sure that they didn't contain

copyright infringement; her behavior culminated in a

situation where she took materials that she wanted to

use in class and as the evidence will show and went to

Staples and made copies. This too was an act of

circumvention. She then took those materials that she

had copied at Staples and distributed them to her class

and asked her class to pay for those materials.

Now, I want to be very clear 7iere. We're not

claiming that she turned a profit on this; but, that's

not the issue. This was, again, another act of

circumvention, another act to avoid the restrictions

that had been put in place, and in doing so she violated

the District cash-handling rules, which was the ultimate

straw that broke the camel's back.

You are all familiar with the cash-handling

rule. It is a rule that states that unless you hive

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2, 5

prior permission, you cannot sell anything to your

students; you cannot sell Tupperware, you can't sell

lottery tickets, you can't sell a novel, and you can't

sell course materials. And it doesn't matter whether or

not your intent is to try to turn a profit, because the

reason for the rule is different. The reason for the

rule -- I'm sure it will make common sense to you, but

it will also be explained through testimony, the reason

for the rule is that an instructor is in a position of

power and authority over his or her students. So,

imagine a situation where you're an instructor grid you

say, you require, you recommend, or any way imply to

your students that they are required or needs to in some

way buy materials from you and pay for them.

What is a student going to think?

I think most of you have beers instructors at

one time or another or you might already be. Yoti know

what the student is going to think, you're in a position

of authority over them. The student is going to think

that they have to buy these materials because if they

don't buy the materials they may suffer some kind of

detriment with respect to their grades or recommendation

or whatever authority the instructor holds, and they

will conclude that they must buy the materizls.

CHAIRPERSON CRUDUP: About two more mirltztes.

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MR. UPPAL: Thank you.

That is the reason why the cash-handling rule

is in place, it's to prevent an abuse of power.

So, when -- what happened here is that a

student came to the District and said that he had bought

-- or, she had bought these materials from Dr. Martinez,

but Dr. Martinez would not give her a receipt. Well,

why? Because common sense would tell you why. She

would not give a receipt because she already knew she

was violating the rules.

So, when this was discovered, the District took

action to enforce this rule, and the action it took was

first meet with Dr. Martinez and try to counsel her as

it had done previously with the copyright issues. Dr.

Martinez literally walked out of that meeting. She

would not listen to that counseling. Then she was

instructed to contact the students with respect to whom

she violated the cash handing rules; she dici riot do so.

So, then she was told by Dr. Solley and by Dr. I<akar

that she needed to issue refunds. She still did not

issue refunds. The District checked on whether or not

she was complying with the directive to issue refunds

for the materials she had sold in violation of the

cash-handling rule. She did not do so.

In fact, a spot check of the >tudents who were

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owed this commission

CHAIRPERSON CRUDUP: Time.

MR. UPPAL: If I could wrap up in 15 seconds.

CHAIRPERSON CRUDUP: Okay.

MR. UPPAL: -- discovered that she had not

issued the refunds. So, finally, she was instructed she

had to produce cancelled checks and she still has not

done so.

That's why we're here, it is a pattern of

conduct that creates liability arld is plainly

unacceptable. Thank you.

CHAIRPERSON CRUDUP: Thank you.

MR. MONTOYA: How much time do I have?

CHAIRPERSON CRUDUP: Ten minutes.

MR. MONTOYA: Ten minutes. I'll try to keep it

in mind.

The evidence is going to be clear that what my

friend Mr. Uppal has told you this morning is nonsense.

There is no copyright violation; that is ridiculous.

There's something called the Fair Use Doctrine.

Scholars since I was in college have been making copies

of other people's publications for class work pursuant

to the copyright statute without violating any law.

Most recently I submitted an opinion,

coincidentally decided on Friday of last week, in the

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case of Authors Guild versus Google. I challenge you, I

beg you to get on Google Book, and to plug in the book

that's on your desk. You can read 90 percent of it on

Google Book for nothing and a federal court ruled that

that didn't violate the author's or the publisher's

copyright.

We have an expert who's been litigating

copyright cases for 25 years in the Valley. I-Iis name is

Fred Bellamy. IIe's reviewed all these materials and he

thinks that the District's allegation that Cleopatria

Martinez has violated the copyright law is preposterous.

In his words, trumped up. She didn't violate the

copyright laws; that is ridiculous.

Read the case, get on Google Book and look for

yourself. Looking at Google Book -- that makes what

Ms. -- Professor Martinez did infinitesimally small.

She didn't violate the copyright law; that is

ridiculous.

In reference to the copyright materials.

Everyone knows, you heard of the saying, even a dog

knows the difference between getting tripped on and

kicked. Anyone knows the difference between selling --

hey, I'll sell -- I'm Star_bucks, I'll sell you this cup

of coffee; and getting reimbursed for something: Hey,

I'm going to Starbucks, you went me to pick something

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up, you can pay me when we get back? That's not selling

anything.

We'll read the District rules regarding selling

or money handling in the course of the hearing and they

don't even apply to the situation.

The materials that she actually copied, the

District was willing to copy them only one-by-one, like

one segment of the material per segment. She offered

her students: Hey, if you want to borrow mine and go

copy it yourself, go ahead. You can. If you want me to

copy them all at Staples, we can do that too. She was

reimbursed. Not only was she riot selling something, she

was getting reimbursed for something and she lost money

on it.

One thing that is completely absent from the

Administration's case is any look at this scholar in her

totality. And you're scholars, and I urge you to do

that, that is your obligation to do.

This woman worked her way based on scholarships

through undergraduate and through graduate school. She

ultimately was awarded a Ph.D. through the University of

Colorado all on scholarships based upon her merit. Her

mother had a third-grade education. She grew up in the

projects nn welfare. She has beers an educator for the

college — commtmity college district for 28 years. No

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student has complained about her saying that she is a

horrible teacher. She loves teaching.

Actually, you know this, she's been with the

District for 28 years. She's 65 years old. She could

retire. Collect a full pension, get another job, and

collect on that, too. The reason why she hasn't done

that is because she loves to teach. It would have been

a lot easier for her to say: Hey, listen, if you're

going to humiliate me this way, if you're going to beat

up on me this way, I'm ]L1SL going to retire. I'm going

to bow out. The reason why she didn't do that is

because it's wrong to bow out in the face of unjustified

charges and it's wrong to leave your job when you love

your job and you deserve your job and you haven't done

anything wrong.

The last thing that I'd like to say within my

ten minutes is, you know, God, termination? Even --

even if the District is right, does this warrant

termination for a scholar who's worked for the District

for 28 years?

Absolutely not. The punishment, the sanction

is not to measure it with the alleged underlying

misconduct even if you believe the underlying

misconduct. And a principle of justice which should

adhere in this proceeding is proportionality.

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The District's, the Administration's proposed

sanction overreaches in its allegations, overreaches in

its misinterpretation of the applicable rules and

overreaches in its sanction, all the while ignoring the

totality of this scholar's -- of this community college

professor's lifetime accomplishments in 28 years serving

this District. Thank you.

CHAIRPERSON CRUDUP: Thank you. Mr. Uppal, you

can call your first witness.

MR. UPPAL: Excellent. We're going to call our

expert, Sean Garrison. Where would the Committee like

him to sit? At the end of the table?

(Whereupon the witness enters the hearing

room.)

MR. UPPAL: Mr. Lopez was out in the hall and

indicated he wanted to sit in as a member of the public.

If we can accommodate him, Mr. Chair?

MR. MONTOYA: He is not one of our witness.

MR. UPPAL: ~Ie is not our witness.

MR. MONTOYA: But we believe he has a right to

be here as a member' of the public and a member of the

District cornmuriity.

MR. UPPAL: We're firle with that.

THE WITNESS: Where am I going?

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MR. UPPAL: You're going right there, Mr.

Garrison.

Dr. Martinez, I have a request of you. You're

fine where you are, but there's a PowerPoint slide right

behind you so if you could not shift this way, that

would be much appreciated.

All right. May we continue?

CHAIRPERSON CRUDUP: Yes.

MR. UPPAL: All right. Sir, would you please

state your name?

TI-IE WITNESS: Sean Garrison.

MR. [JPPAL: And would you please --

THE COURT REPORTER: Sorry. I hate to

interrupt, but I need to swear in the witness, please.

SEAN GARRISON,

called as a witness herein, having been first duly

sworn, was examined and testified as follows:

DIRLCT EXAMINATION

BY MR. UPPAL:

Q. Mr. Garrison, could you please introduce

yourself to the Committee and tell the Committee who you

are.

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A. Yes. As I said, my name is Sean Garrison. I

am a partner at the law firm of Lewis, Roca &

Rothgerber. I practice in the intellectual property and

technology practice group at Lewis, Roca & Rothgerber.

I've been practicing in that field for 21 years.

Exclusively in that field, working primarily with

copyrights and trademarks.

Q. And how did you become involved in this matter?

A. Initially, I received a call and it was either

from Maggie McConnell or Lee Combs in the Legal

Department indicating that they had an issue at Phoenix

College, a copyright issue for which they were looking

for an independent review of some materials.

Q. And could you explain to the Committee why

you're qualified to have conducted that review?

A. Well, again, so through -- at that time,

probably 18, 19 year's worth of experience practicing in

copyright law, advising clients in terms of

copyrightability of issues; how you protect your

copyright rights; how to analyze whether something is

copyrightable or not; how to seek protection; also

representing clients in the enforcement and defense of

copyright infringement claims.

Q. Would it be fair to say that your Legal

practice is essentially devoted to advising clients and

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litigating copyright issues?

A. Copyright is a substantial part of my practice.

There's also trademarks and a little bit of patent

licensing and litigation, yes, in the area of

intellectual property. That's all I do.

Q. All right, sir. And could you please explain

to the Committee in legal and in practical terms, what

is a copyright? What's the purpose of a copyright?

A. Okay. Sure. So, copyright protects works of

authorship, it is created by the U.S. Constitution,

Article 1, Section 8 in order to foster the creation in

the t7nited States of the sciences and works of

authorship.

And what a copyright protects is an author's

creative grid original expression in whatever they may be

writing or creating. Copyright -- the purpose of the

copyright is trlen to give that author a limited time

period for exclusive control over the works that they

crep e; end that can be to commercialize those works,

with the ides being that it's better for the economy,

it's better for the society if we foster the development

of these -- of these kinds of works.

And in exchange for that -- in exchange for

author's sparing their works that they've created with

the public, they're going to get a limited period of

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exclusivity with respect to those works that they've

created.

Q. So, in essence, does a copy under the law,

does a copyright holder own the right to financially

exploit and benefit the work for which he or she owns

the copyright?

A. Absolutely.

Q. That's -- that's really, basically, the

underlying policy and the central rule of copyright law,

right?

A. The policy is we want to foster these works,

right. So, in order to do that and create that

incentive, we want to then give the copyright owners the

exclusive right to then commercialize and exploit those

works to benefit financially from those works in

exchange for sharing them with the public.

Q. Is there a legal term that someone violates the

copyrights, someone who does not hold a copyright if he

or she exploits the copyright, or undermines the

copyright, or violates it in someway, what is that

called under the law?

A. It's called "infringement." And it doesn't --

in terms of exploitation, it doesn't require any sort of

financial aspect to it, but it's simply using the

copyrighted work without authorization.

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Q. I want to ask you a follow-up question on what

you just said. So, are you saying that under the law

you can violate a copyright even if you do not

personally benefit from that?

A. Oh, absolutely.

Q. Can you give the Committee some common examples

of what constitutes copyright infringement?

A. Copyright, what it protects is the right to

copy the work of authorship; the right to distribute it;

the right to publish it, for example; and it gives yOLl

that exclusive right. So, an infringement then would

be: You are copying the work; you're distributing the

work; publishing it in some way without the copyright

owner's permission.

Q. And can you give the Committee an example of

how a copyright could be infringed even though the

infringer herself does not financially benefit from the

situation?

A. Sure. So, you can imagine any number of

different scenarios. So, think of perhaps a non-profit

entity that works with battered women, and as the

director of that non-profit entity, I come across a book

that I think will be particularly helpful for 'the women

that come into my shelter and I decide I get a copy of

that book, and I scan it or make copies of it and hancl

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it out to all the women that come into my shelter. I

don't charge them for it, I give it away. But,

nonetheless, I am infringing that copyright because I

don't have the right to do that. I'm distributing that

work; I'm copying that work without permission of the

copyright owner.

Q. So, irrespective of the financial motive, even

if you have a motive that's completely altruistic, or

charitable, or not for your own financial gain, if you

exploit a copyrighted work, that may constitute

infringement?

A. Motive is entirely irrelevant to infringement.

Q. So, following up the example you just gave of

the battered women's shelter. If a college professor

infringes or violates a copyright by distributing

copyrighted materials by copying them and giving them to

her students, does the same rule apply that motive is

irrelevant?

A. Oh, absolutely. And the District itself has

been sued in that situation before.

Q. I think that goes without saying, but could

you, since you're here and since this is a large part of

your practice, could you explain to the Committee, you

know, in the legal and practical terms why is it so

important for individuals and institutions such as MCCD

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[sic] to comply with copyright law?

A. Well, I think there's a number of different

reasons. One from the standpoint just from an

educational institution of academic integrity that

itself would create works of authorship to respect the

rights of others, number one. But, number two, just

from an infringement standpoint, the District and/or

college is going to be responsible for the acts of its

faculty, and if the faculty is out there infringing

someone else's copyright, that's going to lead to

potential claims for substantial damages.

So, a copyright owner that sues for

infringement is entitled to get any actual damages that

he or she may prove, which could be, for example, lost

profits. You know, in the case of a textbook, I know

that that's what you're dealing with here, you know,

whatever profits they may have lost from the sale of the

textbook. If -- they also have a choice to sue for

what's referred to as statutory damages, and that is a

notion in copyright law that says, you know, sometimes

it's very difficult, if not impossible, to really

pinpoint what your real damages are, but that doesn't

mean that there's no harm that's been caused by the

infringement.

And so what the statue then allows is for the

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copyright owner to elect instead of taking actual

damages, statutory damages, and statutory damages can be

awarded based on each work that's infringed and then

there's a range, anywhere from $750 per work to $30,000

per work depending on the circumstances. And in case of

willful and intentional infringement, the judge has

discretion to ratchet those damages up to $150,000 per

work.

4• So, that's not -- those statutory damages that

you were explaining to the Committee, those statutory

damages are available even if loss profits can't be

shown?

A. Absolutely right. In fact, that's -- that's

usually when a copyright owner will -- there's two

instances when a copyright owner will typically elect

statutory damages: One is when they're not able to show

any actual monetary damages; two would be when perhaps

their monetary damages are minimal to some degree.

Maybe they can show some, but determining with certainty

is a little bit difficult, they can elect to go the

statutory damage's route. And they czn even go through

the case and get answers to both sides of the question,

right?

So, they can get a ruling t,h~t, okay, your

actual damages are $10,000, but we would zward $25,000

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or a hundred thousand dollars or whatever it might be in

statutory damages and the copyright owner can elect at

that point in time.

Q. So, are these statutory damages which are not

dependent on profits, is this a way of the law sending a

message to potential copyright infringers?

A. Well, certainly in part that is the case.

Because, especially, the discretion that the Courts are

given in awarding those damages, and then in issues

where there are intentional and willful infringement

found, being able to escalate those damages

specifically.

But, even more so than that it is to ensure

that the copyright owner is able to get some

compensation for the unauthorized use of their

copyrighted work even in instances where they really may

not be able to show true actual financial damages.

Q. And how common is it for copyright holders to

bring a lawsuit if they feel that their works are being

violated or misused by persons who are acting in

violation of copyright law?

A. Lawsuits get filed all the time. I can tell

you that Pearson Education, the publisher of the

"Prec~lculus Concept Through Functions."

Q. Are you pointing at this book?

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A. Yes, I am.

Q. When you say "Pearson," are you talking about

the publisher of that book?

A. That is the publisher and copyright owner of

that textbook. Over the last ten years, Pearson has

been a party to over a hundred copyright cases.

Q. Pearson publishes textbooks, right?

A. Yes, they do. Pearson owns more than 10,000

copyrights in the U.S. Copyright Office. I can't tell

you exactly how many they have because when you search

the U.S. Copyright Office records, there is an upward

limit of 10,000 and all I can tell you is that they have

more than that.

Q. So, if Pearson, the publisher of textbooks,

sues for copyright infringement, does this mean

educational institutions get sued for copyright

violations?

A. Oh, absolutely. As I mentioned before, the

District itself has been sized for copyright violations

in the past.

Q. So, this issue of facing the lawsuit for the

District itself, when you said the District has been

sued, you're referring to MCCD, right?

A. Yes, I am.

Q. The District itself has been sued for copyright

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violation?

A. It had an issue at Mesa Community College about

10 or 11 years ago where a professor took an electronic

book, published it on her classroom Website for students

to access and use during the term, to download during

the term; did not have the authorization of the

copyright owner and the copyright owner sued.

Q. So, this issue of facing a lawsuit, it's not

merely theoretical?

A. Absolutely not.

Q. It happened.

Okay. So, in addition to damages that you were

explaining to the Committee, if y011 face a copyright

infringement lawsuit, are there also other issues of

liability such as attorney fees at issue?

A. Yes. ust off, any intellectual property

lawsuit and copyright in particular are extraordinary

expensive cases to prosecute and defend. The American

Intellectual Property Right Association publishes each

year a survey of economic costs of litigation in IP and

they break that out even geographically so we can figure

out, in the southwest, in Arizona, if a copyright

infringement case is file, what's the mean cost of

defending the lawsuit. So in lawsuits where the damages

are, you know, just a million dollars or less, the mean

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cost just of defending is $344,000. So just to defend

the lawsuit, regardless of whether it has merit or not,

is substantially expensive if you're sued.

On top of that, if you get to the end of the

lawsuit and you are found guilty essentially or liable

for copyright infringement, the judge then has

discretion to award attorney's fees to the copyright

owner. So, you not only are paying your own costs to

defend the case you could get stuck paying the

plaintiff's fees as well.

Q. So, you just said that the mean number for

defending a copyright infringement lawsuit is 344,000.

When you say the word "mean," does that mean half of the

lawsuits or substantial mein is the middle number?

A. That's right.

Q. Not an average?

A. That's right.

Q. Marcy of the lawsuits would cost $344,000 to

defend?

A. Yes.

Q. And if the defendant such as the District loses

the lawsuit, not only does it have to pay its loses, it

also has to pay the other side, the copyright holder,

for his attorney's fees?

A. Likely.

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Q. Okay. All right, sir.

Are you familiar with Dr. Cleopatria Martinez?

A. Only by name. I've never met Dr. Martinez.

Q. And how did you come to -- how did you become

acquainted -- even though you've not met her, how did

you become to learn about Dr. Martinez?

A. Again, as I mentioned, I was contacted by the

District legal office over an issue at Phoenix College.

I went out and met with Cassandra Kakar, Joe Sueyoshi,

and Maggie McConnell from the Legal Department at

Phoenix College and they explained to me this was in --

Q. I don't mean to interrupt you. Let's just

establish who they are.

A. Sure.

Q. One of the people you met with is Maggie

McConnell?

A. Right.

Q. And you understood her to be in-house counsel

for the District?

A. Correct.

Q. And wring that same meeting, you met with a

Professor Sueyoshi?

A. Yes.

Q. And he's Chairman of the Math Department at

Phoenix College, right?

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A. That was my understanding.

Q. And the third person you met with is Dr.

Cassandra Kakar?

A. Yes.

Q. And she was a representative of the District?

A. Vice President of Academic Affairs, if I recall

her title correctly.

Q. I'm sorry if I interrupted. I wanted to make

sure the Committee understood who those people were. I

believe you were telling the Committee what transpired

at the meeting.

A. I went out and met with them, they explained to

me that there were some issues with course materials

that had been requested for copying at the college

copying center, and that there had been a grievance

filed by Dr. Martinez over, I guess, a suspension of her

copying privileges; that the issue that had arisen back

in the early part of 2010 over her course materials, and

concerns over whether or not those materials had been

copied without authorization from textbooks.

So, what the District was asking me to do was

take an independent review of four course packets, I'll

refer to them as, and make a determination of whether I

thought they had been created based on copying or

whether there was independent creation.

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MR. UPPAL: Okay. I want to direct the

Committee's attention to Tab 9 of your binders in front

of yOU.

Q. BY MR. UPPAL: Mr. Garrison, I'm going to show

you --

A. I think this is actually Tab 6.

Q. I apologize. I was looking at it upside down?

MR. MONTOYA: Pavneet, could you tell me what

exhibit number that is because you've not given me a

tabbed version.

MS. BLACH: That is the exhibit list.

MR. MONTOYA: So, that is Exhibit 6?

MR. UPPAL: Yes. So, that would be the expert

report of Mr. Garrison.

MR. MONTOYA: I understand. Thank you.

Q. BY MR. UPPAL: Mr. Garrison, to expedite

everything, I will come around here. I will tell you

that before you were admitted to the room that the

Committee counsel, Mr. Calderon, had informed the

parties that all the materials submitted by both sides

had essentially been placed in evidence.

So, what we have here is your expert report and

there are exhibits behind your expert. report. So, for

example, we have Exhibit 1 to your report. That's Bates

labeled Garrison 0027. That's your Bates label,

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correct?

A. Yes.

Q. And a Bates label is a way that lawyers

intentionally keep track of documents?

A. Correct.

Q. So we have four exhibits to your report. Are

these the lecture notes or course materials that you

were asked to review?

A. Yes. These were handed to me at the meeting I

had with Dr. Kakar and Mr. Sueyoshi and Maggie

McConnell.

Q. What was your understanding as to who had

created these course materials or lecture notes?

A. Dr. Martinez.

Q. In some cases the lecture notes are quite

thick, they're not just a few pages, they're 50 or 60

pages?

A. Correct.

Q. Okay. Tell the Committee again what were you

charged with analyzing with respect to the course

materials.

A. So, the concern was whether or not the content

of these materials had been copied out of copyrighted

textbooks; and what the college was looking for -- the

District was looking for was kind of an independent

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analysis. They had already done internally some

analysis and had concerns and believed there had been

copying and they were asking, essentially, for an

independent review.

Q. So, then, did you undertake an analysis in

which you compared Dr. Martinet's lecture notes that are

appended to your expert report against copyrighted

textbooks?

A. We did.

Q. And as you sit here today, what is your opinion

as to whether Dr. Martinez engaged in copyright

infringement with respect to the lecture notes that are

appended to your report?

A. Three of the four, there's no doubt in my mind

there was copyright infringement, the verbatim of

copying out of textbooks that we were able to find, and

other evidence that during those time periods there was

no authorization in place from the copyright owner of

those textbooks to do that.

With respect to the fourth one, which is

exhibit 4, and this is the Math 187 fall 2010

precalculus algebra outline, I could not determine arty

specific evidence of copying, but there was an entry

that I found to be concerning and highly suggestive of

copying.

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Q. Well, let's leave the fourth one behind. Let's

use the first three sets of lecture notes.

Just as an aside, you're a lawyer, I'm a

lawyer, Mr. Montoya is lawyer, and Mr. Calderon. I

think the reasons -- one of reasons people hate lawyers

is we are always saying: On the one hand or the other

hand. You didn't say.

You said: There is no doubt in your mind that

what Dr. Martinez did with the respect to the three

lecture notes is copyright infringement. Do you have

that level of certainty? There's no doubt in your mind?

A. There's no doubt in my mind.

Q. Let me turn then to the analysis that you

conducted. So, first of all, we have these three books

in front of us. Do you recognize these books?

A. I r~~ognize the top book and I recognize the

titles of the other two.

Q. Okay. And you basically were trying to compare

whether Dr. Martinez's lecture notes contained material

that was taken from these types of textbooks, right?

A. Correct.

Q. And I want to -- can't really see it here,

unfortunately, but these -- if the Committee looks at

the screen, on the left side there is a picture of the

cover of the textbook and on the right side there is a

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page which I know that you cannot read from the vantage

point at which you are sitting, but the right side

essentially contains the copyright notice and

essentially -- Shayna, can you try and adjust that --

essentially you will see in your -- you're welcome to

look at the textbooks themselves -- this textbook, for

example -- well, Mr. Garrison, you're the expert here.

What does that "C" with the circle mean?

A. That is the copyright notice. So, it says

copyright 2007 Pearson Education, Inc.

Q. Okay. We'll go through these a little bit

quicker. But, in fact, all of these contain copyright

notices, don't they?

A. They do.

Q. What's the purpose of the copyright notice?

A. To do exactly what it sounds like, to give

notice to the public that the publisher or claimant in

the notice claims copyright of the work.

Q. All right. So, next I want to direct the

Committee's attention -- I know you're on Tab h, and if

you will turn to approximately page 13 of Mr. Garrison's

report. Starting on page 13, Mr. Garrison, and

continuing, you have a series of charts that are in your

report. These are charts that you prepared, right?

A. Yes.

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Q. What are these charts designed to illustrate?

And if the Committee prefers, you can look on the screen

here.

A. What we did is for each of the four course

packets that we received, we created a chart where we

found either instances of District copying out of a

textbook or some discrepancy in the materials themselves

that would be suggestive of having been copied from

somewhere else, and we identified in the chart the

left-hand column, specifically the pages and item

numbers of the materials.

Q. What's the left-hand column titled?

A. "Course materials page/question number."

Q. Okay. So that left-hand column, that is

reference to particular citations or particular pages of

Dr. Martinez's lecture notes where you contend that you

have found copying of copyrighted material?

A. I don't content it, it's there.

Q. Okay. The second column that says,

"Discrepancy or text," what's the purpose of that

column?

A. So, 'that is an expositive description of

exactly what copying we found.

Q. And the third column that says, "Source

information," is that essentially --

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A. That's the -- that's the textbook and where it

came from.

Q. Okay. And, for example, you have -- you have

many of these charts in your expert report, but this

first chart for precalculus trigonometry, fall 2009,

this contains two-dozen instances, doesn't it, of

situations -- or, excuse me, examples where you

determined that Dr. Martinez's lecture notes had lifted

are verbatim copy material from copyrighted works?

A. I believe for this one it was about two dozen.

I should say these are just examples, so this is not

necessarily an exhaustive list of all the copying that

there was. But the point, given the time constraints

that we had on the work at the time, was to identify

whether or not there was copying and substantial

copying; and once we got to that point and were

satisfied that, yes, indeed there was, there was no

point in beating a dead horse.

Q. Gotcha. When you say there is no point in

beating the dead horse, do you mean really for your

purpose it wouldn't have served a purpose to try and

find every single instance of infringement?

A. No.

Q. This was more than enough for you to conclude

without a doubt she had engaged in copyright

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infringement?

A. You could go on forever with the number of

pages in that textbook; it just wouldn't have been

efficient.

MR. UPPAL: I want the Committee to understand

that. This is not an exhaustive list of every single

act of infringement that Dr. Martinez engaged in. The

expert witness just said that he reached a point --

MR. MONTOYA: I object.

MR. UPPAL: -- where there was no point in

beating a dead horse.

MR. MONTOYA: Excuse me. I object to a speech

from counsel during examination.

Q. BY MR. UPPAL: All right. So let='s continue.

This is a continuation of --

CHAIRPERSON CRUDUP: Continue.

Q. BY MR. UPPAL: -- of the szme chart. And

there's no way we can go through every single example

precalculus trigonometry but I want to go through a few

examples on your chart.

A. Sure.

MR. UPPAL: The Committee can look at the

screen or follow along with its binder. Just one second

to catch up here.

Q. BY MR. UPPAL: All right. So if we look at

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this problem, for example, did you -- you will see that

there's essentially a triangle with a right angle in it.

Did you find this same problem in Dr. Martinez's lecture

notes and in a textbook?

A. That's right. So, we're talking about -- this

is actually from the third course packet, the basic

arithmetic, MAT 082, which on my report that starts on

page 17, and this particular one is, I believe, the

third -- third entry in that report.

Now, what we found here was exactly right:

Identical image, identical text used both in Dr.

Martinet's course packet and the textbook which was the

"Basic Mathematics" by McKeauge. And I should say we

found this not by having the textbook itself in hand,

but we found this one through our own due diligence of

Google searching. And this section of the McKeauge

textbook happened to be avzilable on Google, and by

putting in the parameters here, we were able to locate

it and it was identical.

Q. So, Mr. Garrison, I'm glad that you used that

example, because before y0U were admitted to this room,

during the opening statements, counsel For Dr. Martinez

made an argument that somehow these materials or

portions of these materiels are available on Google or

Google Books, that what Dr. Martinez did couldn't

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constitute copyright infringement. Could you explain to

the Committee what the difference is?

A. Well, certainly. The fact that something is

available on Google or through a search engine has

absolutely nothing to do with whether or not it is

protectable as copyrighted material or copyrighted text.

That's one of the great myths or fallacies that if it's

available on the Internet, it's free for anybody to

copy; that's a hundred percent untrue.

Q. So, this is also part of your report. And on

the left-hand side of the page, this is a comparison

that you drew between -- or, is this a comparison

between a textbook -- excuse me.

This is a comparison -- an illustrative

comparison that I want you to explain to the Committee,

and essentially would you agree with me that it's

showing that on the right side are Dr. Martinez's

lecture notes and on the left side are the very same

examples of the sources of the copyrighted books from

which she took the example?

A. This looks to be one example. You can see No.

36 on the left side is identical to No. 27 on the right

side.

Q. And let's just go through another couple of

examples. What did y0U find with respect to problem No.

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28 on this chart?

A. With respect to No. 28, what we see is there

appears to be some minor word changes. So, for example,

replacing the word "rent" with "house payment."

Q. Does that take it out of the realm of

copyright?

A. No, absolutely not. In fact, many courts will

interpret that kind of minor word changing as evidence

of intentional infringement.

So, ultimately what we found here is the

problems and with some minor word changing were

virtually identical, 80 percent identical.

Q. Okay. And here's one involving where the

source copyrighted textbook, Sullivan had a pie chart

and the pie chart is missing from Dr. Martinez's lecture

notes, right?

A. The pie chart is not included but the substance

from the pie chart is incorporated into the text.

Q. So, basically everything but the pie chart was

copied from this textbook?

A. Yes.

Q. And there ire various other examples which I

would encourage the Committee to look at.

Le't's take a look at this one real briefly.

What's -- again, orl the left-hand side you have Dr.

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Martinet's -- excuse me. You have the copyrighted book

with its example on the left-hand side and on the

right-hand side you have what Dr. Martinez incorporated

into her lecture notes. Could you explain this to the

Committee?

A. Well, they're identical.

Q. You would agree that's identical as well?

A. Correct.

Q. Same thing with this example? Basically

they're identical except for --

MR. MONTOYA: Objection.

Q. BY MR. UPPAL: Would you agree with me that

this example is Dr. Martinet's lecture notes are

identical except for she didn't include the title

"Gallons Per Second"?

MR. MONTOYA: Objection to counsel testifying

for the purported expert witness.

Q. BY MR. UPPAL: Okay. You know, in light of the

objection, I'm going to withdraw the question so there

doesn't have to be a ruling on it.

Mr. Garrison, why don't you read what's on the

left-hand side of the screen that's taken from the

Sullivan & Sullivan textbook.

MR. MONTOYA: Objection. I think the witness

should testify to the Committee. Reading stuff that

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anyone can read, that you can read for yourself, that's

really not, in my opinion, what we're here for. If he

could get to him testifying as to the content of his

opinions, fine. But reciting stuff that he's reading on

the board, that's really not in my opinion what we're

here for and I also think it's a waste of our valuable

time.

MR. UPPAL: Well, I'd like to respond to that.

If Dr. Martinez and her counsel want to stipulate that

the copyright infringement was repetitive and rampant,

we can move on. But I think it's important for the

District -- for the Committee to understand how

blatantly and pervasively this individual took

copyrighted materials and incorporated them into her own

lecture notes.

MR. MONTOYA: My response is I think he has the

right to prove his case, but reading stuff to you from

the board that you can read for yourself, in my opinion,

that is a waste of time and that's not what this

individual is here to t=estify about.

MR. UPPAL: I submit to you that the time -- we

have a certain amount of allotted time and we should be

able to use it in Lhe matter that we believe best

illustrates the misconduct that the -- that Dr. Martinez

engaged.

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MR. MONTOYA: I think that's true. If, in

fact, the Committee affirms that we have a certain

amount of allotted time. If you want to limit time, I

encourage him to waste all of his time with this kind of

thing, but so far no one has told us what the time limit

is, and consequently I object.

(Whe.reupon a discussion was held off the

record between advisory counsel and the Committee.)

CHAIRPERSON CRUDUP: Okay. The hearing today

we want to try to stop by 5 o'clock, so we are -- we

read through this material, so you can read through what

you're doing now, but do not continue with this line,

just reading through material.

MR. UPPAL: Okay. Excellent. And I just say

the reason I ask the witness to read it is in response

to any objections which are being interposed essentially

because the counsel does not want the Committee to see

here how blatantly this was done, but I'm going to move

on.

Q. BY MR. UPPAL: Mr. Garrison, would you read the

example from the copyrighted text on the left-hand side?

A. Yes. So otzt of the textbook, it is problem No.

5, and there is in bold "Gallons Per Second" of heading

and then the text of_ the word problem is:

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"The flow of water from a water facet can fill

a 3-gallon container in 15 seconds. Give the

ratio of gallons to second as a rate in

gallons per second."

Q. And --

A. If we move to No. 31 from the lecture notes,

the text of the word problem is identical.

Q. So, I want to respect what the Committee just

illustrated, but we're going to just -- without you

reading them -- go through. These are, again, examples

as I flip through the materials in your expert report,

there's just -- would you agree with me that there's

just example after example of verbatim copying by Dr.

Martinez from copyrighted textbook?

A. There is repetitive verbatim copy.

Q. And we Ylave many examples of this.

MR. MONTOYA: I think this witness already

testified -- I wrote it down -- that he could go on,

quote, unquote, "forever," unquote. I really think

that -- end I ask the Committee, please tell us how much

time each side has, then I'll stop objecting and we can

move orl. Because if he wants to spend his time doing

this, thzt is hi_s right. But I don't want him 'to take

all of the tirrle that he has, me be left with no time to

defend her career, she's the one who has something to

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lose, and then 5 o'clock hits and we're done.

CHAIRPERSON CRUDUP: I think this morning

for -- we're thinking the morning for his side and

afternoon session for your side.

MR. MONTOYA: Thank you. I understand.

MR. UPPAL: So, I'm just going to draw the

Committee's attention to the numerous examples. I will

continue.

Q. BY MR. UPPAL: Oh. I do want to ask you one

thing, Mr. Garrison, before we move on. In addition to

copying the word problems, there's examples in your

report where Dr. Martinez has, in fact, even copied the

graphs or illustrations, right?

A. Yes.

Q. This is one of those?

A. It is.

Q. And you did these charts for each of the three

textbooks from which you concluded there was copyright

infringement?

A. We did the charts for the course packets.

Q. For three — okay. Excellent.

Arid here you have before you an e-mail from Dr.

Solley which is also in the binder. I want to draw your

attention to this portion of Dr. Martinez's e-mail to

Dr. Solley nn October 15, 2010. I'm going to read out

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what Dr. Martinez wrote, but what I want you to tell the

Committee is what the significance of this is.

So, Dr. Martinez wrote: "I indicated in my

syllabus instead of a published textbook, I was

using lecture notes in my MAT 082 class.

Because of this students were not required to

buy the textbooks."

What is the significance of any of that?

A. This is a very key piece, because what this

demonstrates is that the lecture notes were serving as a

substitute for the textbook.

Q. Why is that important?

A. Because that is exactly why the publisher then

-- the -- they are losing their right to exploit their

copyrighted work, because of the substitution. The

substitution of the work for the textbook also excludes

all of the course materials from being considered a fair

use.

Q. We'll turn to that exclusion for fair use in a

second. But I just want to quickly draw the Committee's

atterit:ion to ratings from her students to move on:

"No book needed; didn't have to pay for the

textbook; she just uses a set of lecture notes

that she copied for us at Kinkos; she doesn't

believe iri textbooks so you print work off of

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her Website."

All right. So, Mr. Garrison all of this

copyright infringement -- all of these examples of

copyright infringement, they involve math, right?

A. They do.

Q. And we all heard sort of this, you know, saying

or statement that math is universal, right?

A. Sure.

Q. Okay. Well, since we are just dealing with

math problems or math equations, please explain to the

Committee why what Dr. Martinez did is still copyright

infringement?

A. So, really, if you want to look at the copying,

the instances of copying, there's three aspects to it:

We've talked about the word problems; we've talked about

the images that are copied; and then the third element

of the copying that we found were actual problem

equations. So, you know, the example might be, you

know, something like 2X to the third power plus 42 times

8 equals what and you have to solve that equation.

Those essentially were the three elements for

the math textbook. And why that is then copyrightable

and protectable is that it takes a lot of work and

creativity to come up with: What examples am I going to

use; what problems do I want to utilize in order to

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illustrate the underlying math principles that we're

talking about. The underlying math principles aren't

copyrightable, that's not what's being protected, but

the decisions to use this particular set of example

equations or the language for this particular word

problem, that is what is indeed copyrightable and indeed

copyrighted by the textbook publishers.

Q. So?

A. So, yes, these would be examples of the sets of

equations that were copied from textbooks that I was

referring to.

Q. And the sequence of presentation also has

copyright significance?

A. The sequence of presentation, the compilation

of multiple equations into one set is protectable.

Q. Okay. How about now?

In addition, you gave an example with respect.

to sequence of equations. What about -- didn't the

materials that you reviewed, the lecture notes that you

reviewed, did a lot of them contain word math problems?

A. They did. And so, you know, again, with

respect to the word problems, there is creativity in

~eterrnining, _you know: What words do I want to use; how

do I want to put those words onto the page, to then

illustrate the underlying principle. And the key for

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copyrightability is it's only a minimal degree of

creativity that's required to have copyright protection.

So, this is not -- copyright is not reserved

for works of fiction and things that, you know, have no

bearing to facts or math principles, copyright extends

far beyond that.

Q. How about charts or graphic illustration that

illustrate math concepts, are those copyright protected?

A. Yes.

Q. So, in essence -- well, let's just go through

it real quickly. So, even though it's math equations,

can you explain to the Committee why there's no doubt in

your mind what Dr. Martinez did is copyright

infringement?

A. Because there's repetitive, verbatim copying.

Q. And the repetitive, verbatim copying is from

textbooks that have what?

A. They are copyrighted.

Q. They have a copyright notice, right?

A. They do have a copyright notice.

Q. And, sir, once -- before you -- before you

started giving your testimony, there was ~n argument

presented by Mr. Montoya who is counsel for his client,

Dr. Martinez, that what Dr. Martinez did constituted

fair use. Arld so to speed things up, could you tell the

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Committee, A, what is fair use, and why in your opinion

what Dr. Martinez did is not fair use?

A. Sure. Fair use, I mean, for starters it is

what it says, it's a fair use and not an unfair use.

And it is a statutory defense to a copyright

infringement claim that says: Although you are

infringing, in a very limited set of circumstances we

may decide that -- or, the Court may decide that it's

okay, it's fair, and there are underlying principles.

And the two most under- -- I would say the two

most important underlying principles for the fair use

are: Is what you're doing just copying to serve as a

substitute for the original work? In other words, you

know, there's no transformation in the work from the

original to the new work. And, second, what is the

market effect of this infringement? Not just by the one

person doing it, but if this were adopted as a regular

practice across the market, what effect is that going to

have on the market for the copyrighted work?

Q. So, as to that second factor, you mean the law

looks at not just what Dr. Martinez did but --

A. If every professor at every college and

university did the same thing, what effect is that going

to have on the copyright owner's work.

Q. Well, you have in the materials what Dr.

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Martinez did, which is she didn't require them to buy

published textbooks?

A. Right.

Q. So what would be the effect if every professor

did what Dr. Martinez did which is create lecture notes

taken from copyrighted books?

A. Then.you would have substantially less -- if

not no -- sales of textbook.

Q. Right. Because --

A. And they would lose money.

Q. Because who would buy the textbook if they

didn't need to, right?

A. And if they lost money, they wouldn't create

new textbooks.

Q. So, as to the first factor as to whether the

infringer is essentially making a copy to substitute for

the original copyrighted work, what is your opinion as

to whether or not that's effectively what Dr. Martinez

did?

A. There's no question, she said it. She said it

in her e-mail; she said it in tier deposition. That's

what she was doing, that was her intent.

Q. To make a substitute for the copyrighted book?

A. So the students did not have to buy the

textbook.

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Q. So, given that neither factor is present in

this case, what's your -- is there really any question

as to whether or not Dr. Martinez qualifies for the

exception of fair use?

A. There's no fair use.

Q. There's no fair use here?

A. No.

CHAIRPERSON CRUDUP: Could I ask one question,

please? Can I?

MR. CALDERON: Absolutely, Mr. Chair.

CHAIRPERSON CRUDUP: What would have made Dr.

Martinez's use of copyrighted material in line of fair

use without infringing on copyrights restrictions?

THE WITNESS: So, a number of things. Number

one is and most importantly getting authorization from

the copyright owner to create these, that would be

number one.

Number two would be if what she was doing is

simply supplementing and using as illustration from the

textbooks that the students were required to buy and did

buy. And so it wasn't using it as a substitute but

really as more of a supplement of the textbook.

Thirdly, with respect to the course materials

themselves -- this is kind of spelled out in her

communication that is she had with Pearson Education --

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acknowledgment in terms of where the material was being

taken, because without that acknowledgment, without

saying this is being used from the Sullivan textbook or

the Tussy & Gustafson textbook or the McKeauge textbook,

the implication of those materials is it's the original

work of Dr. Martinez. And given the copying, that

didn't occur.

CHAIRPERSON CRUDUP: Okay.

MR. UPPAL: Dr. Crudup, thank you for your

question. And I welcome the Committee to ask any

questions of this expert witness that you might have.

Q. BY MR. UPPAL: When you said in response to Dr.

Crudup's question as to what would have made it fair

use, you said authorization from the copyright holder,

right? Does that basically mean written permission from

the copyright holder?

A. It would. So -- in fact, that wouldn't be an

issue of fair use because then you have permission to do

what you do.

Q. Right. The copyright holder can always say to

someone: Sure, you can copy my materials?

A. Absolutely.

Q. And the second one, the second point that you

said is the issue of whether whit Dr. Martinez did

qualifies as a supplementation of tYle copyrighted

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material or whether it's essentially a replacement,

right?

A. Yes.

Q. Under that circumstance, to fit under that

criteria, wouldn't you have to have the students buy the

textbook?

A. Yes.

q. And she did the opposite, right?

A. Yes. That's the problem here.

Q. And the third one, you said acknowledgment.

Does that basically mean something like an attribution

such as the author thanks such and such,

author/publisher for allowing her to use the following

materials that are taken from textbook so and so?

A. There isn't necessarily -- necessarily any

specific wording that you have to use, but what you do

have to do is include copyright notices that may be

required by the owner, identify the fact that you are

copying from another copyrighted work and what that

might be.

Q. Did she -- did Dr. Martinez do any of these

things that -- any of these three things that you've

just explained to the Committee what would have allowed

her to qualify under fair use?

A. Not in any of the four course packets that I

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reviewed.

Q. But you did see Dr. Martinez obtained some

permissions, didn't you? And I want to turn to those.

As I look for them, why don't you tell the

Committee whether you saw any permissions from any

publishers for the course materials that you had

explained constitute copyright infringement?

A. I did not.

Q. All right. I want to draw your attention to

this letter which is in the binder before the Committee,

and it's one of the permissions that Dr. Martinez came

up with, and it's dated April 13, 2010, and the

highlighted portion says:

"This acknowledgment must be carried on the

copyright or acknowledgment page of your book,

or as a footnote on the page on which the

material appears."

And then gives the acknowledgment: "Sullivan

'Precalculus Concepts Through Function, the

Right Triangle,' April copyright 2007,

reprinting by permission of Pearson Education."

And then the permission section says: "To make

up to 35 copies of selected homework problems

from each section of Chapter 5, 6, and 7, pages

through 371 to 563; for Professor Martinez and

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students in MAT 187, precalculus, beginning

fall 2010 at Phoenix College."

Well, here's a permission. Why -- does this

change your opinion that Dr. Martinez engaged in

copyright infringement?

A. No, because the three course packets on which

it's my opinion that there is copyright infringement are

not covered by this permission statement. Number one,

it talks about the fall of 2010. Two of the three were

from the fall of 2009 and spring of 2010, so it predates

this permission. This would not -- this doesn't apply

retroactively.

Second, it's very specific to what course it's

talking about, it's MAT 187, precalculus. So, it

wouldn't apply to the MAT 082 basic arithmetic example.

This is typical of what you would see in any

sort of permission statement and/or the legal term might

be license to copy and use a copyrighted work. And what

a copyright owner is able to do is place very stringent

restrictions on what you are able to do, and so here you

see Pearson's saying you got to put this acknowledgment

in your book, you can only use problems from Chapters 5,

6, end 7. So, that meads if you're using problems from

Chapter 4 or Chapter 8, that's not covered. You can

only make up to 35 copies. So, the 36 copy would be an

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infringement.

As soon as you step outside the bounds of the

authorized permission, you're infringing.

Q. And read the last sentence of that permission

and tell me if that is complied with?

A. "Permission is granted free of fee on the

understanding that the above textbook has been

adopted for the course and purchased by the

students."

And that, again, goes to the crux of the issue

from a textbook publisher. Yes, we will allow this

under certain circumstances, but we need to know that

the students are buying the textbook. You can't use

your materials as a substitute for our book.

CHAIRPERSON CRUDUP: Excuse me. As far as

requiring a syllabi professor that may say requires a

textbook. In the case of Dr. Martinez, do you have any

syllabi as far as the exhibit saying this is the

required textbook?

THE WITNESS: My recollection was that these

were riot required textbooks in the semesters that we

were talking about.

CHAIRPERSON CRUDUP: Okay. Thank you.

THE WITNESS: That was the information that I

w1s given.

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CHAIRPERSON CRUDUP: Another point -- sorry.

But, can we take like a five-minute short break?

MR. UPPAL: Absolutely, Dr. Crudup.

CHAIRPERSON CRUDUP: Thank you. I need five to

10 minutes.

(Whereupon a recess is taken at 10:57 a.m.

until 11:03 a.m.)

CHAIRPERSON CRUDUP: I'd like to say ideally

our lofty goal is to try to get all the arguments in by

5 o'clock today. I do want to make sure both sides get

equal time. Again, we're shooting for your side this

morning and your side in the afternoon.

MR. UPPAL: Dr. Crudup, I agree. The only

thing I would say is that we started a little bit late.

And the other thing I would say is my understanding of

equal time is usually that the cross-examination counts

toward their time. So, that might take my case after

the lunch break, depending on the cross-examination

time. Just in fairness.

MR. MONTOYA: Can I just say one thing?

CHAIRPERSON CRUDUP: Sure.

MR. MONTOYA: I think the concept of equal time

is unfair in this case because it's my client's job, her

livelihood, her career on the line. She should have

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more time. And moreover equal time. Since they're

going first really allows them --

MR. UPPAL: Steve, can we reserve that argument

until the Committee's advisor is back?

MR. MONTOYA: Please don't interrupt me, that

is the Chair's job.

MR. UPPAL: I just think the Committee's

counsel should be here.

MR. MONTOYA: I would ask that you direct that

I not be interrupted other than by you or Members of the

Committee or counsel.

So, I think my -- allowing them to go first,

allows -- and saying that there's equal time, allows

them to actually control exactly how much time that I

have and I think that's unfair. Thank you.

(Whereupon Mr. Calderon is present in the

hearing room.)

MR. UPPAL: My intent was not to interrupt. My

only thought was that the Committee might have wanted to

hear that argument and my response when counsel was

present.

CHAIRPERSON CRUDUP: Thank you. Noted. I

guess we can reconvene.

MR. CALDERON: I'm sorry. I went to the soda

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machine.

MR. UPPAL: Mr. Chairperson, can I continue?

CHAIRPERSON CRUDUP: Yes.

Q. BY MR. UPPAL: Mr. Garrison, we're talking

about the permission. First of all, did Dr. Martinez

produce and have you ever seen a single permission for

any of the three sets of summaries that you created in

your expert report that show copyright infringement?

A. No.

Q. With respect to the permission she did produce,

I just want to quickly take the Committee through it,

they don't apply retroactively, right?

A. Correct.

Q. And they require an attribution or

acknowledgment that the materials were taken from a

copyrighted work, right?

A. They do.

Q. Did that attribution or acknowledgment zppear

in any of the materials or any of the course notes of

Dr. Martinez that you reviewed?

A. No.

Q. And, finally, the permission requires that --

acid is granted -- under the understanding that the

copyrighted textbook be published -- excuse me, be

purchased by the students; is that right?

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A. It is.

Q. Was that requirement met?

A. Not to my understanding.

Q. You said not to your understanding. But,

actually, didn't even review a e-mail by Dr. Martinez to

the contrary? We can flip back to it.

A. With respect to the MAT 082, she specifically

says that.

Q. Because of this, the students were not required

to buy textbooks?

A. She was using her lecture notes instead.

Q. She was using reviews from students in other

courses essentially saying the same thing --

A. Yes.

Q. -- isn't there, that they don't have to buy

textbooks?

A. Yes.

Q. No book needed; didn't have to pay for

textbook, these are all student comments.

All right. And with respect to these three

issues of students not being required to buy the

textbook, that the permissions aren't retroactive, and

that they require attribution which Dr. Martinez did not

give, these three failures carry through with respect to

each of their permission that Dr. Martinez produced;

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isn't it true?

A. Yes.

MR. UPPAL: So, we could go through all these

but the Committee has them before them, so taking my cue

from what the Chairperson said, I'm not going to make

this point over and over except that if there's any

doubt on the Committee's part, we can go through it.

But, yes, there are permissions, but they don't

apply to the materials that have been infringed; they're

not retroactive; there's no attribution; and students

aren't being required to buy the textbooks, that's the

problem with all of the permissions that Dr. Martinez

has produced.

Q. BY MR. UPPAL: And, in fact, Mr. Garrison, the

fact that Dr. Martinez knows how to go about getting

permissions from publishers, does that indicate anything

to you?

A. Well, I think it does. It would — it would

certainly be used, or could be used, as evidence of

willfully trying to evade the restrictions and

intentionally infringing on the work.

Q. Why does the fact that Dr. Martinez has

permissions just not for the works she infringed, why

does that show willful violation or willful

infringement?

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A. Couple of things. Number one, you know how 'to

get it, so to then bury your head in the sand and not

get it is evidence of intentionally not doing so.

Second, when you look through the e-mail

correspondence from the fall of 2010, what you see is

Dr. Martinez continually going back to Pearson in

particular, and kind of changing the scenario, in my

view, what looks like to be an effort to get Pearson to

say something that, yes, it's okay to use the materials

that could then be used out of context.

Q. All right. And with respect to the volume of

material that Dr. Martinez took without permission from

copyrighted textbooks, does that have any significance

with respect to fair use or any other issue?

A. Well, the -- the volume is certainly a factor.

What we saw in our analysis, in my opinion, is that

there was more than enough to establish that there was

infringement. There is no -- some people believe that

there is this rule that if you only take up to a certain

percent, that's okay, and it's a fair use; but, that's

not the case at all.

Although the amount and substanti.zlity is an

issue to be considered in the overall fd1.Y~-USP analysis,

you can then take a very small part of a copyrighted

work and it still would be a substantial piece of that

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work; and if you do that, that's going to be

infringement, it's not going to qualify for a fair use.

And if we're talking about in the context of a math

textbook that is going to have numerous sections trying

to teach numerous different mathematical principles, and

you take whole sections of problems to demonstrate a

particular mathematical principle, it doesn't make sense

to try to do this mathematical equation in your head of,

well, what percentage did it take? That is a

substantial amount from the textbook as it relates to

that particular principle.

Q. All right. You've now covered the permissions

that Dr. Martinez did produce and why they don't apply

with respect to the material that they infringe. With

respect to this textbook "Basic Mathematics," did Dr.

Martinez produce any permission at all?

A. I did not see one.

Q. With respect to this one, "Pre-Algebra"`?

A. I did not see one for that book either.

Q. Did you have a chance to review a report that

Dr. Martinez produced from a lawyer reamed Fred Bellamy?

A. I did.

Q. And who is Mr. Bellamy?

A. Mr. Bellamy is a lawyer at Steptoe & Johnson

here in Phoenix.

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Q. And you have nothing against Mr. Bellamy right?

A. I do not.

Q. And you read his report?

A. Yes.

Q. Okay. And his -- again, to expedite matters,

Mr. Bellamy's report essentially states that in his

opinion Dr. Martinez did not engage in copyright

infringement.

MR. MONTOYA: Objection. I don't think that he

can testify to what a piece of evidence says that has to

be introduced into evidence first. Mr. tJppal is not a

witness in this case.

MR. UPPAL: I'll withdraw the question.

CHAIRPERSON CRUDUP: Okay.

Q. BY MR. UPPAL: What is -- since you read it and

since you're an expert, what is the central position of

Mr. Bellamy's report?

A. Mr. Bellamy argues that Dr. Martinez's course

packet or lecture notes -- we don't know exactly which

one because he doesn't say -- is fair use.

Q. Okay. And does Mr. Bellamy give zny opinion

with respect to the three charts that you created as to

which you've testified Dr. Martinez engaged in copyright

infringement?

A. I don't recall him addressing the charts at all

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in his letter.

Q. Can you tell from Mr. Bellamy's two-page letter

what he reviewed?

A. Well, you can't because it says, number one,

that the materials you sent include your spring 2000

[sic] lecture notes for MAT 182 trigonometry, and the

problem we have for that is that two of the course

packets that I reviewed have at least a heading in those

materials for MAT 182 trigonometry. So, we don't know

which of the two, for starters, that he may have been

looking at.

Then he also says, "~s well as the pages from

the required textbook that contains similar math

problems," but we don't know what textbook that was,

what pages those were, and it's my understanding that

there wasn't a required textbook in the spring of 2010.

Q. So, Mr. Bellamy when he says "required

textbook," what does -- what does that phrase illustrate

or point to?

A. I'm not sure I understand your question.

Q. What does "required textbook" mean? Does it

mean that the textbook was required?

A. It would suggest zt Least he was told that the

textbook was required for the class.

Q. So, let's look at the factors thzt Mr. Bellamy

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points to in his report. He indicates that the lecture

notes do not appear to supplant the textbook but rather

to supplement it. What -- what do you have to say to

the Committee about that issue?

A. That flies in the face of all the evidence that

we have, that the purpose of the course materials were

to replace the textbook so that the students did not

have to buy it.

Q. And, in fact, that's what some of the students

are saying in their reviews, right?

A. Yes.

Q. So is it your contention that this is a

factually incorrect statement?

A. Based on the evidence that I've seen, yes.

Q. And, once again, we don't know what Mr. Bellamy

looked at, we don't even know whether he looked at the

course materials that you reviewed, do we?

A. We don't.

MR. MONTOYA: It is 11:15. He has taken all of

the time testifying for this witness. I just ask that

the Committee hold -- not hold that against us, but hold

it against him because he hzs a lot of other stuff that

he's going to went to go th.r_ough yOLl with -- go through

with you, and he's taki.rig X11 of the time and it should

only be his time, not -- not our tune.

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MR. UPPAL: I'd like to address this. And I

want to say that I've known Mr. Montoya for a very long

time and I really respect his capability and what he's

trying to do for his client, but this is now about the

tenth time he's raised this objection. I think the

Committee has ruled on it. But now that we're at the

tenth time that the same objection has been raised, I

think it's fair to say I need to point out that Mr.

Montoya and his client did not even show up on time.

MR. MONTOYA: I think we did. I think we were

here early. In fact, I know we were and that can be

confirmed with the guard downstairs.

MR. UPPAL: Then that's fine, I withdraw that

if that's the case. We were here at 9 o'clock and maybe

perhaps Mr. Montoya didn't realize, and that's fine.

MR. MONTOYA: We were preparing downstairs and

we came up.

MR. UPPAL: We were ready to proceed at 9:00.

I think this issue has been ruled on.

MR. CALDRON: for your information, Chairman,

the hearing was set for 9:30.

MR. UPPAL: That's fine. We were hear at 9:00,

but if it's 9:30, we were here too. But I think Mr.

Montoya is actually cutting into my time by making the

same objection ten times after the Committee has ruled

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on it.

MR. MONTOYA: I don't think the Committee has

ruled on it. And this was a specific request, that his

use of his time should be -- should cut into the rest of

his time, not into our time. And that's -- that's a

request that I urge you -- that's very traditional in

these types of cases, that if someone uses up all their

time, that's their problem and not the other side's

problem. That -- Court's routinely issue rulings in

that regard. Of course, you don't have to, but I think

-- I think it's appropriate for me to ask you to.

CHAIRPERSON CRUDUP: We're going to take that

into consideration. There is a good chance we're going

to be beyond today the way things are going.

So, just a rough timeline. From 9:30 to 9:50

we had intro and opening statements; from 9:50 to 11:15

we've had Phoenix College -- is that what this says? --

and then from 11:50 'to 12:30 [sic] let's have lunch; and

from 12:20 to 11 to 1:20, Phoenix College witnesses;

and then and there 1 1:20 to 4:20 Dr. Martinez's

witnesses; then from 4:20 to 5:00, closing statements.

MR. MONTOYA: Yes.

CHAIRPERSON CRUDUP: Let's shoot for that, but

there's a good chance we'll have to go to that.

MR. UPPAL: I certainly agree and defer with

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all that, my only point would be as I made previously,

Mr. Montoya's cross-examination has to count against his

time.

MR. MONTOYA: I disagree with that. Not, if

he's taking -- not if he's -- not at the rate that he's

going. He has known from the very beginning that we

only have a short period of time but, yet, he insists

stubbornly to proceed the way that he's proceeding, and

I respect him for that, but that's his choice and he

should bear the responsibility for it, not us.

DR. CAIRE: May I ask a question?

CHAIRPERSON CRUDUP: Yes.

DR. CAIRE: If Mr. Martinez's questioning is

taken out of his time, how are we going to guarantee

that your questioning will be taken out of your time if

it's at the end of the hearing?

MR. UPPAL: Well, both sides have to -- both

sides' cross-examination have to count against their

time allotment. Mine will as well.

MR. CALDRON: Mr. Chairman, I recommend that

cross-examination be taken out of the time allotment of

the person who has called the witness, unless it looks

like somebody is asking cross-examination in order to

delay, then — then it should be reconsidered. But

normally you present a witness; you ask your witness

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questions and expect the cross-examination; you get a

rebut if you want. That should come out of the time of

the person that calls the witness, unless it looks like

the person on cross is trying to string it out for no

reason, then I would recommend the Hearing Committee

tell them stop, we've heard enough.

That's my recommendation, Mr. Chair.

CHAIRPERSON CRUDUP: Okay. I agree.

Q. BY MR. UPPAL: All right. So continuing, sir,

with respect to Mr. Bellam_y's two-page letter --

actually, let me move on.

Does it change your opinion in anyway that Dr.

Martinez engaged in verbatim and repetitive copyright

infringement?

A. No.

Q. Okay. And does Mr. Bellamy's report address

your report in any manner?

A. It does not. And it appears to rely upon facts

that aren't supported by the evidence that I've seen.

Q. Anci rend the fourth item that Mr. Bellamy

states in his two-page letter -- well, actually, let me

read it znd ask you for your reaction.

"There does not appear to be any adverse effect

on the potential market for the textbook based

on the lecture notes, as the students are

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required to purchase the textbook for the

course."

What's your reaction to that?

A. Well, exactly as I just said. We talked about

earlier one of the significant issues being the

potential market. And in this case he seems to be

relying on the fact that the students are required to

purchase the textbook for the course, and the evidence

that I've seen is directly to the contrary.

Q. Would you agree that Dr. Martinez's -- well,

you've already said it. So, you would agree, right,

that it was a verbatim copyright infringement?

A. In many cases.

Q. Would you agree it was rampant?

A. Correct.

Q. How about pervasive?

A. That's a fair characterization.

MR. UPPAL: I pass the witness.

TIIE WITNESS : Yes .

MR. MONTOYA: May I proceed?

CHAIRPERSON CRUDUP: Yes.

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CROSS-EXAMINATION

BY MR. MONTOYA:

Q. You practice law privately?

A. I do.

Q. Intellectual property?

A. Correct.

Q. Do you litigate copyright cases?

A. I have, yes.

Q. You ever represented any publishers?

A. Any publishers, no.

Q. Would you like to?

A. I

Q. It would be a good client, right?

A. Any potential client can be a good client.

Q. Wouldn't a large publisher be a good client,

Mr. Garrison? That's true, isn't it?

A. Could be.

Q. Now, Mr. Garrison, you know this report of

yours, what's it dated?

A. Which report are you referring to?

Q. Your expert report that's right in front of you

beginning with page 1, Garrison page 1. What's the date

of that, please?

Do you mind if I come and show you?

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A. This is Exhibit 6, April 19th, 2013?

MR. MONTOYA: Can I move this so I don't trip

over it?

MS. BLACH: Yes.

Q. BY MR. MONTOYA: Okay. And I'm looking at the

first page. Did you prepare this in the context of a

lawsuit?

A. Yes, I did.

Q. Okay. And as an expert witness in a lawsuit,

you're hired to add -- to help the person who hired

you's case, aren't you?

A. I'm hired as an expert witness to give you an

opinion on whatever is at issue in the case.

Q. Have you ever heard of a client hiring an

expert who gives adverse opinions that is disclosed to

the Court?

A. I've seen that happen all the time, yes.

Q. Have you ever -- isn't it true that before a

client discloses an expert in federal court, the client

gets a preliminary opinion from the expert to see if it

helps the client's case?

A. Not always the case, rio.

Q. How many cases have you tried in federal court,

sir?

A. In federal court, to trial I would say probably

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one or two.

Q. How many years have you been practicing?

A. Twenty-one.

Q. Twenty-one years you've tried to two federal

cases?

A. Yes.

Q. Were they in copyright? If you can --

A. I do not remember.

Q. -- remember.

You don't remember.

MR. UPPAL: Could -- could you let the witness

answer the question, please?

MR. MONTOYA: Chair, I don't want to get into

any arguments with opposing counsel. Consequently, I'm

going to ask opposing counsel to direct his questions

not to me but to the Chair.

MR. UPPAL: Objection. In that case -- very

well.

Objection. I request the Chair direct Mr.

Montoya to allow the witness 'to answer the question

before he moves onto the next question and not talk over

the witness.

MR. MONTOYA: And I'll try to. I'm trying to

go quickly.

Q. BY MR. MONTOYA: I-low many appeals have you

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argued regarding the issue of copyright, sir?

A. One.

Q. Okay. Have you ever been qualified as an

expert in federal court?

A. I have not.

Q. Now, tell -- tell the Members of the Committee

how much money you were paid to prepare this opinion of

yours.

A. I'm paid $500 an hour.

Q. Times how much? You know, mathematics. Right?

A. I had not calculated how much time I spent on

it, but probably in the nature of -- neighborhood of

$10, 000.

Q. Okay. And how much have you charged them to

prepare for this hearing?

A. I haven't sent out a bill yet, but it's been

probably another 7 to 10 hours.

DR. REYES: Mr. Chairman, may I ask a question,

please?

CHAIRPERSON CRUDUP: Yes.

DR. REYES: Would it be possible, rather than

to try to get a person's character and profession, if we

care focus on the packets we were presented.

MR. MONTOYA: I will.

DR. RYES: Because we can waste a lot of time.

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MR. MONTOYA: I will, but let me respond to

that. The reason why I'm going into this is because

this shows -- I do like Mr. Garrison, he's certainly a

nice man; however, it's important for the Committee to

know that expert witnesses -- lawyers know you can find

an expert witness to say anything. They are not

objective; they are not neutral. And one of the most

important attributes of a witness is lack of bias and

neutrality, and I am establishing that this witness is

hardly neutral, he is a paid advocate who's already --

who's an expert witness in a federal lawsuit on behalf

of the District and it does go to his credibility. He's

not someone who just is giving you a scientific

analysis.

But I was able to be done with that part of it

anyway.

DR. REYES: One more question. Did you -- did

you have any opposition to the facts that were shared by

Mr. Garrison?

MR. MONTOYA: Oh, yeah. I'm about to get to

that.

DR. REYES: If you can please --

MR. MONTOYA: I will.

DR. REYES: -- stick with those points, 'that

will be appreciated.

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MR. MONTOYA: I will.

Q. BY MR. MONTOYA: Do you have any math

background?

A. Other than math classes that I took in college,

no.

Q. Were you a math major?

A. I was not.

Q. What did you major in?

A. I went in as a physics major and come out as a

comparative literature major.

Q. Okay. Did you understand the equations that

you were reviewing?

A. I didn't feel that I had to -- had to

understand the equation to know whether or not --

Q. Can you answer the question?

A. -- there was copying.

Q. Can you answer 'the question?

A. I am.

Q. Answer the question?

A. I am.

THE COURT REPORTER: I'm sorry. I'm sorry.

Please, one at a time.

THE WITNESS: If you would allow me to answer,

I' cl be happy to do that .

MR. UPPAL: Mr. Chairman?

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Q. BY MR. MONTOYA: Did you understand the

equation, that's the question?

MR. UPPAL: Mr. Chairman.

CHAIRPERSON CRUDUP: Yes.

MR. UPPAL: I object. Once again Mr. Montoya

is not allowing the witness to answer the question when

he doesn't like the answer. And so this -- this is just

fairness. And the witness said it himself before I

objected, he wants to answer the question.

CHAIRPERSON CRUDUP: Please allow the witness

to answer.

MR. MONTOYA: He wasn't answering.

MR. UPPAL: That's argumentative.

MR. MONTOYA: Okay. Well, let me ask the

question. It's a super simple one grammatically.

MR. UPPAL: No. No, I object. He had an

answer he wanted to give and he should be allowed to

give it before we move on to the next question.

CHAIRPERSON CRUDUP: I'll allow the witness to

answer the question.

MR. MONTOYA: Okay. Okay.

Q. BY MR. MONTOYA: Go ahead and answer.

A. I believe what I said was: In order to

determine whether or not there was copying, I did not

have to understand the equation or not.

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Q. Okay. I understand that.

A. So, I didn't focus on that.

Q. Okay. Did you -- now, here's the question --

that I understand what you just said, you say you didn't

have to.

My question is: Did you unaerstana the

equations?

A. I didn't focus on that one way or the other to

try and understand them or not.

Q. Okay. Do you believe that mathematical

formulas and equations can be copyrighted?

A. The underlying principles? I'm not quite sure

I understand your question.

Q. Well, okay. Do you understand that there are

mathematical formulas and mathematical calculations

applying those formulas?

A. So, you're talking about something like "PI r2"

is the area of a circle, that kind of equation?

Q. That's a formula.

A. A formula is that what you're referring to?

Q. And that formula can be represented numerically

and graphically using geometry, correct?

A. No.

Q. Okay. Can that be copyrighted?

A. The formula itself, no.

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Q. Okay. Now, can mathematical calculations be

copyrighted?

A. Yes.

Q. That's your view?

A. Yes, if you --

Q. Okay. Are you aware that the Supreme Court of

the United States has ruled -- do you know what an

algorithm is?

A. I do know what an algorithm is.

Q. Tell the Committee what an algorithm is.

A. An algorithm is a formula that is used by a

computer to carry out a particular function.

Q. Only by a computer?

A. Well, it doesn't have to be a computer.

Q. Do mathematicians use mathematical algorithms?

A. Yes, they do.

Q. Okay. Answer the Committee whether or not an

algorithm is subject to copyright?

A. Subject to copyright?

Q. Yes. That's a simple question.

A. As an algorithm expressing a particular

principle of math, I don't think it would be.

Q. Okay. Now, it's true that insubstantial

copying doesn't violate the copyright law, right?

A. I don't think yotl earl just say "insubstantial

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copying."

Q. Isn't substantiality an element of a copyright

claim? The infringement has to be substantial; isn't

that true, yes or no?

A. No, there has to be copying.

Q. Okay. But the copying has to be substantial,

right?

A. No. The copying -- there has to be copying. I

think what you're referring to, sir, may be the concept

of substantial similarity.

Q. Well, okay. So, did you try to find out how

extensive the copying that you claimed Professor

Martinez was -- how extensive, was it?

A. I think the charts that I prepared showed that

it was very extensive.

Q. Okay. Now, let's do a little bit of

arithmetic. What percentzge was copied and what

percentage was not?

A. As I said in my direct testimony, you wouldn't

do that --

Q. You don't know?

A. -- calculation.

Q. Do you know?

MR. UPPAL: Objection.

MR. MONTOYA: Ile answered the question. I-Ie

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said he didn't know.

MR. UPPAL: When Mr. Montoya -- objection.

When Mr. Montoya does not like the answer, he cuts off

the witness, the witness has not completed his answer,

and Mr. Montoya once again raised his voice, cut off,

and tried to move ahead. So, I want the witness to be

able to answer.

CfIAIRPERSON CRUDUP: Let the witness answer.

Q. BY MR. MONTOYA: Do you know what --

MR. UPPAL: Wait.

MR. MONTOYA: Okay. Go ahead.

MR. UPPAL: Objection.

Q. BY MR. MON`TOYA: Go ahead. Answer away.

A. What was the question?

Q. The question was: Do you know --

MR. UPPAL: No. I -- I -- objection.

MR. MONTOYA: What the --

MR. UPPAL: I'd like the exact question read

back.

MR. MONTOYA: And that's the Chair's call, not

your call, Mr. Uppal.

MR. UPPAL: I didn't say it was my call. I

said I would like the question to be read back.

CI-IAIRPERSON CRUDUP: Just rephrase the

question, please.

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Q. BY MR. MONTOYA: Okay. Do you know what

numerical percentage Professor Martinez copied from the

source works in any particular example?

A. I -- no. Other than the particular examples

were verbatim copying.

Q. You --

MR. MONTOYA: Okay. And the reason why I

interrupt him, I would ask that the witness be directed

to answer my questions. We are really pressed for time.

If you want to come in and be here all day, that would

be fine, but I really would like to move on.

MR. UPPAL: Objection. That's argumentative.

He's answering the questions, Mr. Montoya just doesn't

like the answers he's getting so he keeps cutting the

witness off.

CHAIRPERSON CRUDUP: Please.

Q. BY MR. MONTOYA: Now, so you claim Professor

Martinez infringed the copyright laws or violated the

copyright laws?

A. Yes.

Q. Okay. Tell the Committee -- this is really

important -- in your view, when was the last instance in

your opinion of infringement? Chronologically in time

when was the last incident?

A. I'm not -- well, I'm not sure I understand the

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question. Are you talking about of the four course

materials that I review?

Q. Of everything you reviewed, whatever it was

that you reviewed, when -- tell the Committee when the

last infringement was in time chronologically.

A. Well, of the four course packets that I

reviewed the last once came from the fall of 2010.

Q. Okay. So that was three years ago?

A. Yes, it would be.

Q. What's the statute of limitations on copyright

claims?

A. Three years from the discovery of the

infringement.

Q. Okay. And you saw this correspondence

between -- do you know whether -- okay. You claim that

-- a paid expert witness -- that Professor Martinez

violated the copyright laws. Do you know whether the

publisher's lawyers, their teams of lawyers have claimed

that Professor Martinez has violated the copyright laws?

A. No, I have no idea.

Q. You said that fair use was a statutory defense;

is that true?

A. Yes, it is.

Q. It's also a common law defense, isn't it?

A. Well, there is no more common law copyright.

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That was abolished by the 1976 Copyright Act.

Q. But, in fact, the statute incorporated the

common law, right?

A. The statute codified certain elements from the

common law; but it's a statutory defense, there's no

more common law.

Q. So, according to you there's no common law of

copyright. What about copyright cases subsequent to the

passage of the Copyright Act, isn't that a common law of

copyright?

A. I'm not sure I understand your question.

Q. I withdraw the question.

Now -- now, you say that whether or not

something is on Google has nothing to do with copyright?

A. I believe what I said is whether or not

something is available on the Internet, whether that's

through Google or anywhere else, does not mean that it

is not protected by copyright.

Q. IIave you ever been on Google Books?

A. I'm not sure if I have.

Q. IIave you ever heard of an author named Toni

Morrison?

A. Yes.

Q. Were you a fan of hers?

A. I wouldn't say a fan but I've heard of her.

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Q. I-Iave you ever heard of her famous book,

"Beloved"?

A. No.

Q. Do you know whether or not you can read

90 percent of it on Google Books even though it's

copyrighted?

MR. UPPAL: Objection. Facts not in evidence.

MR. MONTOYA: I'm asking him what he knows.

MR. UPPAL: No, that --

THE WITNESS: No, I don't know.

MR. UPPAL: -- that presupposes something.

CHAIRPERSON CRUDUP: Okay. Go ahead and answer

it.

Q. BY MR. MONTOYA: Do you know whether or not you

can read 90 percent of Toni Morrison's famous book

"Beloved" on Google Books?

A. I do not.

Q. Have you ever heard of a -- you like legal

books?

A. Not particularly.

Q. Have you ever heard of a book called "Simple

Justice" by Richard Kluger? It won the National Book

Award?

A. No.

Q. Do you know whether -- so, you wouldn't know

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whether you can read that book that's copyrighted in

it's entirety on Google Books?

A. I do not.

Q. Now, what is your -- you went to Columbia Law

School?

A. I did.

Q. That's a fine law school, isn't it?

A. I -- I liked it. I had --

Q. It's in the Southern District of New York,

right?

A. It is in the Southern District of New York.

Q. In fact, a lot of intellectual property

litigation transpires in the Southern District of New

York in Downtown Manhattan, right?

A. It does.

Q. So, it's -- the Southern District o~ New York

is a hotspot for copyright litigation, isn't it?

A. Between the Southern District of New York and

the Ninth Circuit, those probably are the two primzry

venues.

Q. Well, have you read the District Court's recent

opinion in Authors Guild versus Google?

A. I'm aware of it; I've not read the opinion.

Q. Are you aware that a federal judge ruled in

that case that Google Books --

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MR. UPPAL: Objection.

Q. BY MR. MONTOYA: -- didn't violate --

MR. UPPAL: Objection. Where is this in Mr.

Montoya's submissions? I'd just like to be cited to the

exhibit.

MR. MONTOYA: I'll tell you, it's in the

citation of supplemental authority that I filed with the

Committee's counsel, each Member of the Committee, and

opposing counsel on Friday. That's exactly where it is.

Plus, it's also all over the Internet. It's the biggest

news in the area of copyright for the past month.

MR. UPPAL: I don't have it. Is it an exhibit?

I mean, you can just point me to -- I've -- I got a

binder of your materials.

MR. MONTOYA: What I'll do is I got a copy for

you. Here's a copy for you.

MR. UPPAL: But my question was --

MR. MONTOYA: Don't ask me questions.

CHAIRPERSON CRUDUP: He supplied it by e-mail

to us on Friday.

MR. UPPAL: Where is the actual document? Was

it -- is it in evidence? I just -- it's a question at

point. Is the -- is the --

MR. MONTOYA: Can I answer?

MR. CALDERON: I'll answer. Mr. Chairman, I

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understand everything that was submitted has been

admitted as evidence, the whole shebang.

MR. UPPAL: So, Mr. Calderon, was the opinion

submitted by Mr. Montoya?

MR. CALDERON: Everything up to this morning

when we started at 9:30 is in the record.

MR. UPPAL: Very good.

Q. BY MR. MONTOYA: Okay. Have you ever heard of

a Jurist named Denny Chin?

A. I do not know Denny Chin.

Q. Have you ever heard of the United States Court

of Appeals for the Second Circuit?

A. Yes, I have.

Q. Isn't that one of the most renowned circuit --

federal circuit courts in the United States?

A. It's the Court of Appeals for the Southern

District of New York.

Q. Is that a yes or a no?

A. I don't know how you measure whether it's

renowned or not.

Q. You think it's renowned, don't you?

A. No, I wouldn't determine it to be renowned or

not .

Q. Okay. Are you aware that Denny Chin, even

though he was sitting as a District Court judge is irl

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fact really a judge on the Second Circuit Court of

Appeals?

A. I am aware of that now that you mentioned it.

Q. And are you aware that in Judge Chin's written

opinion of last Friday, he concluded that Google Books

did not violate the federal copyright laws because

Google Books copying of over 20 million books --

MR. UPPAL: Objection. Is this a question or a

speech?

Q. BY MR. MONTOYA: -- was fair use under the

copyright law? Are you aware of that, question mark?

THE WITNESS: May I respond?

CHAIRPERSON CRUDUP: Yes. Respond.

THE WITNESS: I am aware that the opinion was

released on Friday. As I mentioned, I have not read

that opinion. I am aware that the. opinion found that

the Google Books' indexing of the books was was

not -- was a fair use.

And the issues that I understand from the

summaries that I have read on that case were that there

were two principle differences in that case from what we

have here. Number one being that Google's copying was

transformative in nature in that the purpose of what

Google was doing was to index and make numerous books

that are, for example, no longer iri print available to

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be found and located, number one; but, number two, that

these were not intended to be a substitute for obtaining

the books themselves.

Q. BY MR. MONTOYA: Okay.

DR. REYES: Mr. Chairman, may I?

CHAIRPERSON CRUDUP: Yes.

DR. REYES: A question regarding -- we all

received the Google document and information --

MR. MONTOYA: Yes.

DR. REYES: -- and appreciate that.

My question is in regard to how it was

presented by Google. I believe they have reference

information for where they took the -- the information,

what was being scanned. There was all these citations.

So, if we could stick to that line of questioning with

regard to the fact of --

MR. MONTOYA: Well -- well, we really can't

because you've not been on Google Books obviously --

DR. REYES: Yes, I have.

MR. MONTOYA: -- because it's not a question of

citation, Professor, it's a question of wholesale

complete copying. This isn't a question of pulling out

a paragraph without citation, this — they copied 90

percent of Toni Morrison's book, including the cover.

So, my basic point is --

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MR. UPPAL: Objection. Objection. So I just

want to say to the Committee that what Mr. Montoya just

said is argument. He's not a witness.

MR. MONTOYA: I answered a question.

MR. UPPAL: He has no expertise in copyright

law. He's not a copyright lawyer. I would just say to

the Committee, he's saying a lot of things under the

guise of a question that's actually a speech. For what

he says, there's no evidence.

MR. MONTOYA: Well, my response would be, the

evidence is Judge Chin's 30-page written opinion that

speaks for itself.

And the evidence is also something that you can

take judicial notice of and that is Google Books. I'm

telling you, they are replicating these books --

MR. UPPAL: He's telling you -- objection.

MR. MONTOYA: -- virtually in photo.

MR. UPPAL: That's argument. That's not a

fact.

MR. MONTOYA: I'm answering ~ question --

MR. UPPAL: He's telling yoLz.

MR. MONTOYA: -- that a Member of the

Committee --

argument.

MR. UPPAL: He's telling you. This is

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MR. MONTOYA: I was trying to answer a

question, Professor.

DR. REYES: Okay. I'm just going back to what

was stated. And based on my own notes, I understood Mr.

Garrison to say in response to a previous question what

would have made Dr. Martinez's use of copyright material

alined with fair use, and the response was getting

authorization from copyright to -- well, in my -- in my

words.

MR. MONTOYA: I understand. That's a good

point. I want to go to --

DR. REYES: -- as supplemental; not substitute

for textbook; and acknowledgment regarding the source as

to whether the material came. That's what I'm trying to

get back to.

MR. MONTOYA: And, thank you. I want to get

back to that.

DR. REYES: Okay.

Q. BY MR. MONTOYA: I'm going to show you

something on my little iPad that you guys can see, too.

It's what I've been talking about. It's Toni Morrison's

book "Beloved" on Google Books. Does this look like a

supplement or the actual book?

A. It looks to be a scan of the book.

Q. Yeah. And it's your understanding that

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isn't it true that 'three private authors with

copyrighted books -- not out-of-print books, not books

whose copyright had expired -- sued Google for copyright

infringement in Authors Guild versus Google?

A. I do not know how many there were.

Q. You don't?

A. I don't.

Q. You don't know whether or not you agree with

Authors Guild versus Google or not because you haven't

read it, have you?

A. I haven't read the opinion. I did note on the

website there --

Q. And --

CHAIRPERSON CRiJDUP: Five more minutes.

THE WITNESS: excuse me. Next to the scan,

that there was -- that there was an icon and

availability there that said "buy the book." That you

could click on it to buy it and either download it or

have it sent to you.

Q. BY MR. MONTOYA: Yezh. And actually you can

buy -- you can buy the --

MR. UPPAL: Objection. It's riot a question.

MR. MONTOYA: Okay.

MR. tJPPAL: Here we go again.

MR. MONTOYA: That was not responsive to my

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question.

MR. UPPAL: If Mr. Montoya is going to continue

this, I should get to cross-examine him.

CHAIRPERSON CRUDUP: Move on.

Q. BY MR. MONTOYA: Under the Fair Use Doctrine

you don't need the copyright holder's permission, do

you?

A. That's correct.

Q. Under the rair Use Doctrine, the mere fact that

you cite the source of what you copied, that's not a

defense, is it?

A. That you -- no, it is not.

Q. In fact, urlder 'the Fair -Use Doctrine, you can

publish the book even if the copyright holder vehemently

objects, right?

A. No. I would diszgree with that.

Q. Okay. Isn`t it true that under the Fair Use

Doctrine, if -- even if the publisher objects, you still

get to publish it?

A. The whole book? No.

Q. Well, no, you get to use the portion that you

published even without permission?

A. If the entire anzlysis is gone through and a

Court determines in balancing the factors that that's a

fair use.

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Q. You're not saying --

A. It's purely contextual. There is no -- you're

asking for a principle of law that does not exist.

Q. But you admit this, that under the Fair Use

Doctrine, you don't need the publisher's permission?

A. That is correct.

Q. And under the Fair Use Doctrine, you don't need

to attribute the underlying source, do you, under the

Fair Use Doctrine?

A. Actually, if you look at the classroom

guidelines that are part of the legislative history that

is an issue. That is the point.

Q. I'm asking: Do you know whether or not those

classroom guidelines were ever provided to Professor

Martinez?

A. I don't.

Q. Those classroom guidelines are not part of the

statute, ire they?

A. They are not part of the statute, they have

been adopted in case law.

Q. But they haven't -- case law is conflicting in

this area, isn't it?

A. I don't know what you mean by "conflicting."

Q. We]_l, you -- okay. I mean -- I mean what

"conflicting" would always mean as a part of speech.

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You have differing opinions --

MR. UPPAL: Objection.

MR. MONTOYA: -- that contradict with each

other.

question.

MR. UPPAL: Another speech. This is not a

MR. MONTOYA: He asked me.

MR. UPPAL: But you didn't --

CHAIRPERSON CRUDUP: Five more minutes.

TF-lE WITNESS: I don't know what issue is

conflicting.

Q. BY MR. MONTOYA: Now, do you think copyright is

a controversial area of law?

A. Iri some cases it can be.

Q. Okay. Do you think that the nature of

copyright is evolving in light of the Internet?

A. Certainly.

Q. I'red Bellamy, do you know him?

A. I know him, yes.

Q. Do you know he -- he went to Harvard College,

are you aware of that?

A. I am aware of that.

Q. Are you zware that he went to Harvard Law

School?

A. I believe that's right.

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Q. Are you aware he was a partner at Brown & Bain

for many years?

MR. UPPAL: Objection. Now --- you know, he's

having an objection for wasting time. Mr. Bellamy --

MR. MONTOYA: He asked him about Fred Bellamy.

MR. UPPAL: No, he didn't. Mr. Bellamy can

come here and testify about going to Harvard himself.

MR. MONTOYA: Can I respond before the

Committee rules? Can I say something before you rule?

Mr. Uppal asked: Do you know who Fred Bellamy

is, he works at Steptoe & Johnson. I'm just following

up on E'red Bellamy.

MR. UPPAL: We'll stipulate he went to Harvard.

Q. BY MR. MONTOYA: Are you aware he was a partner

at Brown & Bain for many years?

A. That I don't remember.

Q. The date of your expert opinion is April 19,

2013, correct?

A. Correct.

Q. And can -- do you remember criticizing Mr.

Bellamy's opinion for not considering your expert

opinion?

A. I think what I wzs criticizing was the original

report thzt I Ylzd prepared in 2010.

Q. Who cave you the materials that you based your

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opinion on factually? Who gave you the factual data

that you based your opinion on?

A. In 2010?

Q. Whenever.

A. 2013? It came from, as I said, the meeting

that I had with --

Q. It came from the District?

A. -- Cassandra Kakar and Joe Sueyoshi, yes. It

came from my own independent searching and evaluation

and --

Q. Did you interview Professor Martinez?

MR. UPPAL: Objection. Objection. Once again

he's --

MR. MONTOYA: I only have two minutes. I'm

trying to get my point across.

MR. UPPAL: Well, then, don't interrupt.

TI-IE WITNESS : And --

Q. BY MR. MONTOYA: Did you interview Professor

Martinez?

A. I did not.

Q. So, you don't -- you don't know her factual

explanation for what she did, do you?

A. Only from the e-mail correspondence and the

deposition testimony that I've read.

Q. How do you know you've got all 'the e-mails from

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Professor Martinez? How do you know they were complete?

A. I don't.

MR. MONTOYA: No further questions. Thank you.

Thank you, sir.

CHAIRPERSON CRUDUP: Okay. I guess lunch break

recess until what time?

THE WITNESS: So, I'm done? Do I understand

that?

MR. UPPAL: Now, actually, may I make a request

of the Committee? I'd like to limit my redirect to this

witness to five minutes. So, if we could delay lunch by

five-minutes and then we could excuse this witness.

CHAIRPERSON CRUDUP: Okay. Proceed.

REDIRECT EXAMINATION

BY MR. UPPAL:

Q. Mr. Garrison, since Mr. Montoya has questioned

you about this opinion, read that last paragraph of page

20 out loud to the Committee and please tell the

Committee what that means.

A. Are you -- the paragraph that starts

"simi.l.arly"?

MR. MONTOYA: Objection.

MR. UPPAL: Sure.

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MR. MONTOYA: Now, he's asking this witness to

read something to you --

MR. UPPAL: It's two sentences.

MR. MONTOYA: -- that's already in evidence.

MR. UPPAL: It's two sentences.

MR. MONTOYA: That is a waste of time.

MR. UPPAL: It takes less than his objection.

CHAIRPERSON CRUDUP: You can read. Go ahead.

THE WITNESS: Okay. "Similarly Google Books is

also transformative in the sense that it has

transformed book text into data for purposes of

substantive research, including data mining and

text mining in new areas, thereby opening up

new fields of research. Words in books are

being used in a way they have not been used

before. Google Books has created something new

in the use of book text. The frequency of

words and trends in their usage provides

substantive information."

Q. BY MR. UPPAL: Is there anything trarlsformative

about what Dr. Martinez did with respect to the

materials that you told the Committee were copyright

infringement?

A. No. Her coursework were merely a substitute.

MR. MONTOYA: Objection. He's not a

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mathematician. He's not qualified to answer that.

MR. UPPAL: That's not an objection.

MR. MONTOYA: Goes to foundation.

MR. UPPAL: I'm sorry. I don't mean to chuckle

at that.

Q. BY MR. UPPAL: Would you tell the Committee

what "transformative" means in the realm of copyright

law?

A. Sure. In the realm of copyright law, what

"transformative" means is that you would take -- taken

an original work and repurposed it for something

different. Not taken original work, summarized it, and

used it for the very same purpose.

Q. So, what did Dr. Martinez do and how is it

different from the Google Books project?

MR. MONTOYA: Objection.

THE WITNESS: Dr. Martinez copied --

MR. MONTOYA: He testified he doesn't know what

the Google Books project is about. He's testified that

he's never even been on Google Book.

MR. UPPAL: That's not an objection. That's an

attempt by Mr. Montoya to keep the Committee from

understanding why this Google --

CHAIRPERSON CRUDUP: Allow him to finish his

live minutes.

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MR. UPPAL: Thank you.

THE WITNESS: The distinction is that what Dr.

Martinez did was to copy out of the textbooks, create

what is essentially a condensed version of the textbook,

of the -- of the principles that she was teaching, and

allowing the students to use that as a substitute for

the textbook itself. Totally different from what the

Judge was describing there in Google Book.

Q. BY MR. UPPAL: So, in plain English, does

"transformative" mean transforming it into substantially

different?

A. Yes.

Q. And that is what Judge Chin from the section

just read held that Google Books does?

A. Correct.

Q. It takes a work that may be copyright but the

manner in which Google Books uses it, transforms it

isn't something else?

A. Yes.

Q. That's what makes it a fair use?

A. Yes.

Q. Is there anything with what Dr. Martinez did

with verbatim, rampant copying that is transformative?

A. No. Google Books was riot simply republishing

books for anyone to get access to.

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Q. And in some cases, wasn't there even permission

that Google Books had?

A. There may have been, I don't know.

MR. MONTOYA: Objection. Reading from the

opinion --

THE WITNESS: With respect to the partner

program --

THE COURT REPORTER: I'm sorry. I'm sorry.

Please, one at a time.

MR. MONTOYA: That was an objection, Chair.

DR. REYES: I don't believe he answered.

MR. UPPAL: I just want him to explain to the

Committee that some of what Google Books -- this opinion

is about, some of what Google Books, what this opinion

does, concerned copyrighted material that the Google

Books did not have permission for; but, in that case the

Judge said it's transformative, it's been transformed

into something different. In respect to another

section, Google Books obtained permission.

MR. MONTOYA: Now -- now, he's -- now the

hypocrisy of what he just did --

MR. UPPAL: Well, I'm trying to ask the

witness. He's cutting into my five minutes. May I

continue, Mr. Chairperson?

CHAIRPERSON CRUDUP: One more minute.

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MR. UPPAL: Okay.

THE WITNESS: So, page 5 of the opinion is

referring to the partner program, where it specifically

says that works are displayed with permission of the

right's holders; it explains that partners provided

Google with a printed copy of their books for scanning

or a digital copy if one existed; partners then decided

how much of their books from a few sample pages to an

entire book would be browsable; and as of 2012, there

were approximately 2.5 million books with the consent of

some 45,000 right's holders as part of that program.

MR. UPPAL: Thank you.

Thank you for indulging me with five minutes,

Mr. Chairperson and Committee Members. I greatly

appreciate it.

CHAIRPERSON CRUDUP: Recess until 12- -- 12:25

or so.

(Whereupon the noon recess was taken from 11:57

a.m. until 12:29 p.m.)

(Whereupon the witness enters the hearing

room.)

CHAIRPERSON CRUD[JP: You can call your next

witness. I guess we're calling to order or reconvening.

MS. BLACH: All right, we cell our next

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witness, Dr. Cassandra Kakar.

CASSANDRA KAKAR,

called as a witness herein, having been first duly

sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MS. BLACH:

Q. Dr. Kakar, can you please let the Committee

know who you are and where you work.

A. Yes. I'm the Vice President of Academic

Affairs. My name is Dr. Cassandra Kakar and I work at

Phoenix College.

Q. How long have you worked for MCCCD?

A. About 18 years.

Q. Have you ever met Dr. Martinez before?

A. Yes.

Q. When did you meet Dr. Martinez?

A. About nine, nine to ten years ago. She was the

Department Chair and I just became the Interim Vice

President of Academic Affairs, so we worked together

then.

Q. Did you have any interactions with her in 2010?

A. Yes, I did.

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Q. What happened in 2010?

A. There was a bit of a controversy in January

because my Vice President of Administrative Services had

notified me that there was some concern about copyright

violation from the copy center regarding some of the

materials Dr. Martinez wanted to have reproduced or

printed.

Q. When were you first notified of these issues?

A. Early in January, January 2010. Ronnie --

Dr. -- Ms. Elliot let me know about them. She wanted me

to kind of explore, find out what was going on, and so I

did do that, did a bit of an investigation.

Q. And what was this investigation that you did?

A. Well, I felt like I needed to get Mr. Sueyoshi,

the Department Chair, involved because there were large

-- there was significant-sized workbooks that were being

held up to be printed because they felt there was some

copyright. So, I asked Joe if he would review the

materials and compare them to the textbooks we were

using and he did that for us. There were 10 to 12 pages

for two of the textbooks, you could see very clearly it

was directly from the book.

So, I then reported it to Ms. Elliot and said

that tYlis is what Mr. Sueyoshi had discovered, and that

Ronnie and I had pretty rnuch concurred that we needed to

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talk to Dr. Solley and let her know that we were -- we

had a lot of concern about this and we felt like we

needed to let District Legal know. And Dr. Solley, once

we presented it to her, she agreed. So we met with

Maggie McConnell from the District Office about this.

Q. And what happened after you met with Maggie

McConnell from the District Office?

A. Well, Maggie was very concerned as well. We

were very concerned about the college as well as the

District and the liability that could possibly happen.

And so then Ronnie Elliot, basically she let Dr.

Martinez know that there was some concerns and that

she's not going to be able to have those copies made.

Q. Dr. Kakar, I'd like to show you a document.

This is Exhibit 23 to the District's exhibits. Do you

recognize this document?

A. Yes, I do.

Q. And what is that document?

A. Looks like Dr. Martinez's writing to Ronnie

asking: "Please remind me, what are the items I had

printed for fall that were suspect and the same

for spring," because there were some fall print

jobs and some springs. And Ronnie responded to her

there was a mechanism iri place to f_lzg potential

copyright materials and it was brought to her attention

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that some of the items printed were suspect and -- for

fall as well as spring.

So, Ronnie was asking Dr. Martinez, does she

have any documentation that -- from the publisher that

released her to use the materials in this way; and, if

so, she just wanted the documentation so she could

release her print job and then we could move on. But if

she didn't have the approval, then we cannot print the

request at this time.

Q. Dr. Kakar, the e-mail at the bottom that is

dated Jan 12th, 2010, it's from Ronnie Elliot to

Cleopatria Martinez --

A. Mm-hm.

Q. -- is that the initial notification to Dr.

Martinez that you mentioned earlier?

A. Yes. I mean, yes, this kind of got it started.

Q. And can you please read for me the first

sentence of that e-mail.

A. From Ronnie?

Q. Yes.

A. "As you may or may not know, we have mechanisms

iri place to red flag potential copyright

issues."

Q. Okay. I'm going to show you another document.

It's been marked as Exhibit 24 to the Districts's

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exhibits and this is another e-mail, and it is from

Ronnie Elliot, and it's dated January 26th, 2010, to

Cleopatria Martinez. Do you recognize this document?

A. Yes, I do. Yes, and she lets Dr. Martinez know

that we did talk indeed to Margaret McConnell, our

District legal counsel, regarding copyright infringement

and fair use as defined in federal law. We provided

Maggie with the copies of her request and a copy of the

textbooks and this morning received the finding based on

the federal copyright law, including limitations of fair

use. So, now it is documented in this piece.

Q. Dr. Kakar, do you know whether the District, in

addition to these two e-mails that I just showed you,

ever met with Dr. Martinez to explain their copyright

concerns to Dr. Martinez?

A. Well, I know that there were a lot of e-mails

going back and forth and I believe that Dr. Martinez

actually spoke to Maggie McConnell on the phone and had

a phone conference with her as well.

Q. Did you ever have any meetings with Dr.

Martinez about --

A. Oh, I had multiple meetings with Dr. Martinez.

E-mails, face-to-face, phone conversations. extensive.

In fact, there's a document that's ten pages long of

communications and ways to reach out to Dr. Martinez.

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Q. I'm going to walk you through some of these

communications. We went through the January 12th

e-mail; this is the January 26th e-mail that we just

discussed; the next exhibit is Exhibit 25, and this is

another e-mail. It's dated January 28th, 2010, and this

is from Margaret McConnell to Cleopatria Martinez. Do

you recognize this e-mail?

A. Yes, I do remember this.

Q. And what does that e-mail summarize?

A. Basically that anything from copyrighted source

reproduced without written permission, there has to be

written permission for the copyright holder to say that

it's okay. It's an error. An individual that would be

printing without that is violating copyrights.

Q. Dr. -- Dr. Kakar, did anything prompt that

e-mail? Had Maggie McConnell met with Dr. Martinez

prior to sending this e-mail?

A. Perhaps. I recall a phone conversation, but

perhaps they did meet face-to-face.

Q. Was she ---

A. And she said: I explained to you today that I

represented District --

MR. MONTOYA: I need to object as to this

witness testifying as to what she thinks transpired

between two individuals when she doesn't, in fact, know

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based on her knowledge. They didn't tell her it

happened, she didn't witness it happen.

THE WITNESS: No, I was copied -- sorry.

MS. BLACH: Let me respond to the objection to

the Hearing Committee. Dr. Kakar is copied on this

e-mail, so she is testifying based on information that

she knows.

MR. MONTOYA: But she was asked whether or not

Professor Martinez actually met with Ms. McConnell and

that's what I was objecting to.

MS. BLACH: And that's actually addressed in

the first sentence of the e-mail.

CHAIRPERSON CRUDUP: Okay. Continue.

Q. BY MS. BLACH: So, as I was asking you Dr.

Kakar, can you please read the first sentence of that

e-mail?

A. "As we discussed today, it is inappropriate

to copy anything from copyrighted source and

reproduce it without written permission of the

copyright holder, it is more egregious if a

person reproduces it without providing notice

on the material about who owns the copyright."

Q. So that's a third e-mail where Dr. Martinez was

instructed regarding copyright laws?

A. Yes.

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Q. Let's walk through another one. Here is

Exhibit 26 and this is an e-mail from Paul DeRose dated

Friday, February 12, 2010, to Cleopatria Martinez;

you're, of course, copied on this e-mail. It appears to

be a summary of the meeting. Can you please explain

what happened during that meeting for me?

A. Yes. It was a meeting with myself, Paul

DeRose, who is now the Interim Vice President of

Administrative Services, and our faculty Senate

President Denny Sheehan was with Dr. Martinez. And we

basically discussed copyright laws, we went over the

copyright verbiage that is printed in the front of the

textbook that is being used in the math class.

And "in order to use material from the text,

prior approval must be obtained from the

publisher's Legal Department" -- we covered all

this with Dr. Martinez -- "and an approval from

the publisher rep is not acceptable.

Cleopatria was referred to the e-mail sent by

Maggie McConnell which describes the copyright

issue and contains a link to seek publisher's

approval. Cleopatria said she understands the

copyright law and will not use material from

any textbook without prior approval from the

publisher's Legal office. And if Cleopatri~

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decides to bind her notes or handouts,

Cassandra" -- I -- "recommended they be

distributed by the bookstore similar by the

practice used by other faculty at her

department and Phoenix College. This will be a

nominal fee to the students, and will also

minimize cost to the Department's print budget.

The posting of notes on Blackboard is also an

option.

"In addition to our discussion, we would like

to encourage you" -- we are asking Dr. Martinez

-- "to attend an upcoming copyright workshop

that is being held at Phoenix College. This

workshop is being held March 1st from 1:00 to

3:00 p.m."

Q. As of I'ebruary 12th, 2010, Dr. Martinez told

you that she understood copyright laws?

A. Yes, she did.

Q. Did it appear to you that she understood

copyright laws?

A. She seemed sincere and she felt like she

understood more and knew more about copyright laws.

Q. And this summary is based off of an in-person

meeting that you had with Dr. Martinez, with Paul

DeRose, and with Denny Sheehan?

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A. Yes.

Q. How is Denny Sheehan invited to this meeting?

A. Dr. Martinez invited him as a faculty Senate

President.

Q. And, Dr. Kakar, I would like to bring your

attention to the last sentence of this e-mail. Can you

read that allowed for me?

A. "This workshop is scheduled for March 1st from

1:00 to 3:00 p.m."

Q. Sorry. The last --

A. "In addition to our discussion, we would also

like to encourage you to attend an upcoming

copyright workshop being held March 1st from

1:00 to 3:00 p.m."

Q. Dr. Kakar, do you know whether Dr. Martinez

attended that copyright workshop that she was invited

to?

A. No, she did not attend.

Q. Do you know whether the District took any steps

to hold a separate one-on-one training session for her

since she could not attend that meeting?

A. Yes. I arranged for her to meet with one of

our librarians that has expertise in copyrigYlt and also

attended the workshop and she went through the

PowerPoirit with Dr. Martinez in a one-on-one

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environment.

Q. Let me introduce another exhibit. This is

Exhibit 8. This is a letter dated April 2nd, 2010. Do

you recognize this document?

A. Yes, I do. This is a letter from Dr. Solley to

Dr. Martinez.

Q. And, in essence, what is this notifying Dr.

Martinez of?

A. Well, that basically, she's been using the

materials that she -- that are copyrighted -- or,

violate copyright, and that we're going to~have to

suspend her copying privileges again, because Icon

Services are -- you know, it was pointed out that these

materials are being printed again. So, Dr. Solley

basically felt like she needed to suspend her -- her

printing privileges.

Q. And does this letter summarize any of the

copyright regulations?

A. Yes. It gives the detail 3.2 Copyright

Regulation from our Governing Board 1, 2, and 3, and the

back page has 4, 5, and h.

Q. And I'd like you to read the last two

paragraphs out loud.

A. "You are finally admonished that arly further

copyright/fair use violation would lead to

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disciplinary action taken against you, up to

and including termination of _your employment.

"I am willing to arrange for individual

training and consulting on copyright if you

feel it will be helpful. But I will restore

your copying privileges only when I determine

that you not only understand your legal

obligations but also that you will strictly

adhere to them."

Q. So, on April 2nd, 2010, Dr. Martinez was yet

again advised that her conduct violated copyright laws?

A. Yes.

Q. I'm now showing you an exhibit that's been

marked as Exhibit 25 to Dr. Martinez's exhibits. And

this is an e-mail -- well, there's actually two e-mails.

The first e-mail is on the lower portion, on page 2 of

this. It starts at the bottom of page 1, end it's from

Maggie McConnell -- Margaret McConnell to Cleop~tria

Martinez, and then on top of that there's another e-mail

from Lee Combs to Cleopatria Martinez, and these are

both dated on April 8th, 2010. Do y0U recognize these

e-mails?

A. Yes, I do.

Q. Can you please describe for me that first

e-mail from Maggie McConnell to Cleopatri~ Martinez?

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A. Yes. It seems like Cleopatria -- or, Dr.

Martinez was asking Maggie McConnell to actually read

some of her class materials and she advised her to speak

to the librarian about the questions, you responded the

librarian had asked you to speak to me. It was my

understanding you wanted advice concerning whether, in

your words, changing a number from a three to a five or

plus to a minus from someone's copyrighted math equation

presumably in a textbook would avoid a copyright

violation.

And Maggie says: "I explained to you that the

numbers, sequences of numbers are definition of

'literally works' under federal copyright

guidelines. While I noted that two plus two is

equal to four is not copyrightable, I advised

you that more complicated math equations are.

I stated that the only way for you to ensure

you do not violate copyright is to make up the

math questions completely on your own to

illustrate a math theory. As I noted, that

would only be 'the safe approach. And with your

advanced degree and your years of experience

that should not be difficult.

"You still indicated you wish for me to review

materials. You also advise 'that you could not

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attend the special presentation I arld Hazel

Davis prepared on copyright law for Phoenix

College last month because of other

commitments. However, as I reiterated, I'm not

going to be in a position to tell you whether

the changing of a number or two, or of a

mathematical sign, is enough.

"In fact, no Maricopa Community College

District is going to be in a position to tell

you that 'tweaking' is okay, particularly when

the owner of the original work isn't given

credit for the 'tweaked' work. The verdict

under the law would almost certainly be that

'tweaking' would not solve the problem, and

that is the answer that you are going to get

from a wide range of folks."

Q. Doctor, in the interest of time, I'm going to

go through some e-mails. I want you the summarize them

rather than read them all into 'the record.

A. All right.

Q. I do want to respect the Committee's time.

A. Okay.

MR. MONTOYA: I object. Now, this -- first

this witness is reading e-mils that are already into

evidence that you can read yourself. Now she's

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purporting to summarize e-mails that are already in

evidence that you can read for _yourself. That is

improper and it's a super waste of time.

MS. BLACH: I would like to try to speed this

up if possible with the Hearing Committee. I would be

happy -- if Mr. Calderon was willing to stipulate --

MR. UPPAL: Montoya.

MR. MONTOYA: I'm Montoya, he's Calderon.

MS. BLACI-I: I'm sorry.

MR. MONTOYA: That's okay.

MS. BLACH: I'm sorry. If you're willing to

stipulate to the fact your client was repeatedly

notified of copyright violations on dozens of occasions

via e-mail, via letters, via in-person meeting, and

telephone, we can bypass this entire line of

questioning.

MR. MONTOYA: We dispute that she violated

copyright; however, we do not dispute that these e-mails

were sent or that these e-mails were received, which is

very, very different. Anci because we do not dispute

that they were sent or that they were .received, we don't

need to go through this process. Arld I think that we're

already behind time and I would hope that this witness

will testify to things that she has personal knowledge

of that is not already irl these documents, but

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summarizing -- you know, you wouldn't want me to

summarize documents in to evidence, you'd rather read

the documents yourself firsthand.

DR. REYES: Mr. Chairman, may I suggest that if

we abide by the time that's written on the board, you

can proceed as you are if you so chose to use your time

that way, but that we adhere to the time on the board.

Would that be acceptable?

CIIAIRPERSON CRUDtJP : That ' s right .

MR. MONTOYA: I don't -- that would be fine

with me. What I don't want is: Oh, we're out of time

and how unfair.

DR. RYES: That is why you can use your

judgment.

MS. BLACH: Thank you. I'll be happy to

proceed that way.

Q. BY MS. BLACH: So, these e-mails dated

April 8th, 2010, is that yet another notification to Dr.

Martinez --

A. Yes.

Q. of her copyright violations?

A. Yes. Lee made commentary after Magaie wrote

her summary.

Q. Okay. So that's two e-mails.

I would like to next introduce Exhibit 27. And

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earlier you described a document that you said was about

ten pages long. Is this that document?

A. Yes, this is the document that I was referring

to.

Q. And does this document -- is this document a

chronology?

A. Yes, it is.

Q. And is this document a chronology of all of

the -- well, many of the repeated communications that

you had with Dr. Martinez about copyright issues?

A. Yes.

Q. And it's ten pages long, single spaced?

A. Correct.

MR. MONTOYA: When we refer to documents, I

would ask that the Chairman direct whoever is referring

to them to identify them chronologically so we can have

some type of idea of where this happened because I think

that's important in this case.

MS. BLACH: All of these exhibits are, in fact,

dated and I actually have been going through them

chronologic111y.

MR. MONTOYA: Well, I mean, I would ask that

you identify the date for the record and I would ask the

Chair to direct you to do so, please.

MS. BL~CII: I'm hippy to do so. This is an

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October 12th, 2010, letter to Dr. Martinez detailing the

repeated communications to Dr. Martinez regarding her

copyright violations.

Q. BY MS. BLACH: In the interest of time, Dr.

Kakar, I'm trying to fly through a couple of exhibits

here.

The next exhibit that I'm introducing is

Exhibit No. 9. This is the December 9th, 2010,

directive. Do you recognize that document?

A. Yes, I do.

Q. And can you read for me just the first -- the

first sentence of that one, two, three, fourth

paragraph?

A. "Pursuant to Section 3.7.4 of the RFP, I now

direct you to only use course materials

approved by the Department that are available

in the bookstore for sale to the students and

that are authorized by persons other than

yourself . "

Q. Do you know why this directive was put into

place?

A. Because there were more arld more attempts and

actual printing of materiels that violated copyright

law.

Q. Ancl do you know whether Dr. Martinez abided by

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this December 9, 2010, directive?

A. She actually -- no, she didn't. She continued

to try to use her own materials.

Q. Can you give me any examples of how she tried

to evade this directive?

A. Well, I know that sometimes -- one time she had

adjunct faculty members print materials for her; I know

she would print things from her computer directly to the

laser printer at the -- in the department, Math

Department; and I also know that she willfully went

around the processes we put in place and went to a

private entity, Staples, to have books created and bound

by materials the author had not approved be printed.

Q. Are there any other examples detailed in the

October 12th, 2010, chronology that we discussed a few

minutes ago?

A. I think there's more that comes later. I mean,

I can -- if you want to go on to the next letter.

Q. I was just asking --

A. Yeah, October 12th.

Q. I was just asking generally if you were aware

whether there were additional attempts to avoid the

directive that were sent forth in the October 12, 2010,

letter?

A. Yeah. I mean, at some point Dr. Solley asked

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that Joe Sueyoshi approve all the print jobs of Dr.

Martinez just to make sure that copyright violations

were not occurring, and he saw numerous times that he

had to say that the materials could not be printed

because they had contained the same types of things that

were in the previous documents from way back when Ronnie

Elliot discovered it with Icon back in 2010.

MR. MONTOYA: Excuse me. I have one -- I

didn't mean to interrupt. Were you done?

THr WITNESS: Yes. Thank you.

MR. MONTOYA: My time for cross-examination

comes out of their time, and I just wanted to get the

Committee's guidance as to when that time begins before

it all runs out. Like, 1:25 is right around the corner.

CHAIRPERSON CRUDUP: Okay. 1:25 you can begin

your cross-examination.

MR. MONTOYA: My -- my case begins at 1:25, not

my cross-examination of their case. The Chair

previously rilled with the concurrence of the entire

Committee, that cross-examination time would come out of

the person who called the witness, unless the person

who's cross-examining, the examiner was wasting time.

So, my cross-examination, unless I'm misunderstanding

the Committee's ruling, would have to transpire before

1:25. TYlat's X11 I'm asking.

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MR. CALDERON: Mr. Chairman, may I ask a

question? Counsel, how long do you have left of this

witness?

MS. BLACH: I only have a few minutes, maybe

five minutes or so left of my direct, and my colleague

does have an additional witness that he intends to call

for a few minutes.

MR. CALDERON: Does that help at all with the

timetables?

MR. MONTOYA: Well, I -- I'm not going to have

nearly as much time as she's taken for this witness, but

I probably wi_11 need ten minutes. So, that's going to

put us -- we're not going to make it, and that's the

only reason why I bring this up. Because I don't want

to be penalized for it into my time.

MR. UPPAL: I want to bring something up

myself. Mr. Montoya, with his speeches and --

DR. CAIRE: I'm sorry.

MR. UPPAL: -- addressing the Committee, has

actually acted unfairly towards us. I mean, this has

got to be his 24th issue and speech on this matter. And

Mr. Calderon, I want to ask you, when we had a prior

telephone conference, didn't you state something along

the lines of there would be attempts to make it roughly

equal, but it was not down to the last minute?

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MR. MONTOYA: I object to Counsel being --

MR. UPPAL: Could we get Mr. Calderon to

actually address that?

MR. MONTOYA: First, I need to object for the

record and I did, so I'll shut up now.

MR. CALDERON: Mr. Chairman, first of all, I'm

not going to be examined. It's a good shot, but I'm not

going to be examined. But I will say that my

understanding of talking to the Committee, the Committee

was going to do everything they could to make it as

equal as possible. I did not promise precision.

MR. UPPAL: So, my request would be if we could

get through this witness without Mr. Montoya raising

objection on the same issue again, because that's what's

unfair.

CHAIRPERSON CRUDUP: Just continue, please.

MS. BLACH: Thank you, sir.

Q. BY MS. BLACH: Let's see where I was now.

So -- so I can move onto the next line of questioning in

the interest of time, I just want to make sure I

tinderstancl your response correctly. So, essentially,

you just testified that in addition to violating the

directive by submitting copy jobs to Joe Sueyoshi that

did not comply with the directive; Dr. Martinez also

attempted to avoid the directive by having ~n adjunct

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faculty member make photocopies for her by printing

repeated documents directly to the Math Department's

laser printer; and also by evading the directive by

having materials copied at an offsite Staples store?

A. That's correct.

Q. And those are the ones that you're aware of?

A. Yes.

Q. Let's put the shift over to -- let's talk some

more about the copies that Dr. Martinez made at the

off-campus Staples store. How were you notified about

those Staples -- how were you notified about those

photocopies?

A. Students began to complain to the Department

Secretary and the Department Chair about not getting a

receipt. They didn't get a receipt from Dr. Martinez

for the book that they purchased from her.

Q. And is it -- was it improper for Dr. Martinez

to have sold these materials directly to her students?

A. Yes. It's improper on a number of levels.

First of all, the common sense, a faculty should never

sell anything to a student. They're really in a

position where a student might feel obligated to

purchase something because they're the instructor that

is going to be grading them. So, it's very

inappropriate in that level. But also it violates the

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cash-handling policies and procedures of the Maricopa

Community College District.

Q. Was Dr. Martinez aware of the Cash-I-Iandling

Policy?

A. Yes. She has signed off on the designations

that we all do at the beginning of the year. She's very

aware of the policies.

Q. After you were notified of the violation of the

Cash-Handling Policy, did you ever meet with Dr.

Martinez about her violation?

A. Yes, we did. Actually, Dr. Solley and I met

with her, I believe it was in October, and we actually

had a second Corrective Action, and it was a formal

meeting and a document was being read by Dr. Solley to

Dr. Martinez about this cash-handling incident, and Dr.

Martinez was very agitated, did not wish to stay,

challenged Dr. Solley. And Dr. Solley was reading the

letter to her, she told Dr. Solley she didn't need to be

read to and she basically left with the document in hand

and left the -- left the office.

Q. Did she leave the office before the meeting was

concluded?

A. Yes, she did.

4• So, she essentially walked out of the meeting?

A. Yes, she did.

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Q. During this meeting, was Dr. Martinez

instructed to issue refunds to the students that she

improperly charged?

A. Yes. We got to that, I think that was about

when she stopped the meeting and walked out. It's

documented in that letter, though, that she is to refund

the students.

Q. Do you know whether the District took any steps

to notify the students that Dr. Martinez would be

issuing refunds?

A. She did not take the steps but we did. We --

Joe Sueyoshi, the Department Chair, sent out an e-mail

blast to students that were involved in her class and

let them know Dr. Martinez would be refunding them and

they are to notify -- and be in touch with her so they

could get their money back.

Q. Do you know whether the students ever received

those refunds they were supposed to receive?

A. My understanding is one student got their money

returned, I believe that was Patty, but no other

students received a refund.

Q. In fact, didn't you receive copies of e-mails

in which students complained about not receiving the

refunds?

A. Yes, end I actually sat down with some

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guidelines and asked Dr. Martinez to please send --

provide me with copies of checks, the front and back

copies, so I could make sure that the students would be

reimbursed. And I believe I sent that message to her

January 8th of 2012, and gave her until the 18th, I

believe, to bring me the documentation; and I never

received anything from Dr. Martinez.

Q. To date, has Dr. Martinez complied with your

instruction to provide you with copies of cancelled

checks for the student reimbursements?

A. No.

Q. Do you know if students are still actively

seeking refunds from Dr. Martinez?

A. I think there's a few. I know that the

cashiers have told me that students come to the

cashier's office because they got this e-mail blast and

they're wondering where their money is.

Q. And did you report these issues with the

Cash-Handling Policy to anyone?

A. Well, of course, Dr. Solley knew and District

legal was aware and the HR area.

MS. BLACH: All right. Pass the witness.

MR. MONTOYA: Chairman, may I proceed?

CHAIRPERSON CRUDUP: Yes. You may proceed.

MR. MONTOYA: Thank you.

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CROSS-EXAMINATION

BY MR. MONTOYA:

Q. Hello. I'm Steve Montoya.

A. Hello.

Q. How are you?

A. Fine. How are you?

Q. Have we met?

A. I don't think we have.

Q. I don't think we have either.

I have a few questions for you. Do you have a

doctorate degree?

A. Yes, I do.

Q. In what?

A. Education.

Q. Ph.D. or Ed.D.?

A. Ed.D.

Q. When did you obtain it?

A. About two years ago.

Q. Are you an expert in copyright law?

A. No, I'm not.

Q. Do you purport to be -- is studying copyright

law your hobby?

A. No.

Q. You testified repeztedly, and correct me if I'm

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wrong, that in order to copy somebody else's work

without violating the copyright law, you need their

written permission?

A. I was reading from lawyer's, what they had

devised.

Q. Do you know --

A. I didn't write those.

Q. Do you know --

A. I was reading the lawyer's commentary.

Q. Okay. Do you know whether that's true or not?

A. Well, I do -- I -- from -- I've learned quite a

bit now, and from some of the dialogues and the

information we've received from attorneys, if the

student has purchased the textbook and if the publisher

has said it's okay to use it, use materials, then that

faculty member could use it, but it's very important

that the student purchases the textbook.

Q. Do you know whether or not under the Fair Use

Doctrine you can use for limited educational purposes a

copied work without the publisher's permission? Do you

know whether you can do that or not?

A. I'm not going to -- I won't answer that.

Q. You don't know?

A. I don't know.

Q. I understand.

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145

Do you know -- you mentioned Maggie McConnell.

I just met her during lunch. Do you know her?

A. Yes.

Q. She's the District -- she's one of the

District's lawyers, right?

A. Yes, that's correct.

Q. You don't know whether or not she's a copyright

expert, do you?

A. I think she has some knowledge but she did feel

it was -- it was wise to bring in an expert, a legal

expert, which we did.

Q. Are you aware that Professor Martinez

repeatedly contacted Maggie McConnell asking her for

direction, asking her to review stuff in advance, and

Maggie McConnell refused?

A. I wasn't aware of that.

Q. Okay. Do you know whether or not Professor

Martinez -- do _you know a guy named Lee Combs?

A. Yes, I know Lee.

Q. Tell the Committee who Mr. Lee Combs is?

A. He's our General Counsel or attorney for the

District.

Q. Okay. Do you know whether or not Professor

Martinez repeatedly contacted the General Counsel for

the District, Lee Combs, and asked him to give her

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guidance regarding whether or not her materials violated

copyright law or, in fact, fell within copyright's Fair

Use Doctrine? Do you know that?

A. I don't know that.

Q. Okay. Now, you said that you know -- you

testified that Professor Martinez met with doctor -- the

District's librarian?

A. No. Phoenix College librarian.

Q. That's right. Thank you for correcting me.

You testified Professor Martinez met with

Phoenix College's librarian --

A. Yes.

Q. -- to talk about copyright law?

A. Because it was unfortunate she missed the

workshop. We --

Q. Do you know why she missed the workshop?

A. Can I finish?

Q. Of course you can.

A. We felt it was important that we go through the

PowerPoint, and one of our librarians has some expertise

and has attended the workshop. So, we had them sit down

and they had a one-on-one session together.

Q. Do you know whether or not that librarian

actually told Professor Martinez that Professor Martinez

seemed to understand copyright law as well as the

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librarian did?

A. I don't know that. I did not have that

conversation with...

Q. Do you know whether or not the Phoenix College

librarian actually even went through the PowerPoint with

Professor Martinez?

A. I was told she did go through the PowerPoint.

Q. You don't know that, do you?

A. I asked the librarian and she said she went

through the PowerPoint.

Q. Did you ask Professor Martinez?

A. No, I did not.

Q. Okay. I think that you testified you were

reading from an exhibit, I think it was Exhibit 26, that

more complicated mathematical equations are subject to

copyright. Did you say that?

A. I read what Maggie McConnell wrote.

Q. Do you know whether that's true or not?

A. I don't have personal knowledge, but I was

reading what the attorney Maggie McConnell had written

to Dr. Martinez.

Q. So, you can't -- you can't swear -- you're

under oath, right?

A. Correct.

Q. You can't swear to the Committee you know

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that's even true, can you?

A. I'm not an expert in copyright laws.

Q. Okay. I think that you testified that

Professor Martinez was subverting the directive by

copying things directly to the laser printer, right?

A. In the Math Department.

Q. Have you seen what she actually copied?

A. Yes.

Q. What? What was it?

A. Stacks of -- well, here's just a few of them.

I think there was at least 14 that were printed. At

least 14. And here are -- this is what was found, nine

copies.

Q. Did you ask Professor Martinez what she was

going to do with those?

A. No, I did not.

Q. Why not?

A. I received this from the Department Chair.

Q. Okay. So, you don't know whether it was to

distribute to students or for some other reason or

whether it was even ~n accidental printing? Do you

know?

A. I was told by Dr. Martinez --

Q. I'm asking you.

MS . 13LACI-I : Sir, please let t~~e witness answer

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the question.

MR. MONTOYA: Well, I'm going to -- please

don't direct me what to do, that's the Chair's job.

MS. BLACH: Chairperson, I respectfully request

that Mr. Montoya allow the witness to finish her answer

before cutting her off and proceeding to the next

question.

CHAIRPERSON CRUDUP: Please allow her to

finish.

MR. MONTOYA: Yes, sir.

THE WITNESS: So this was brought to me by the

Department Chair and they knew that at least 14, they

don't know where the other copies were. This is the

same materials that were under question by Maggie

McConnell.

And as I met with Dr. Martinez she had

explained to me that she made a mistake and put in a

wrong number in her computer and printed this -- it

wasn't what she wanted to have printed, she just wanted

one copy to have printed.

Q. BY MR. MONTOYA: You've made mistakes in

printing sometimes, right?

A. Well, probably, yes.

Q. There's nothing nefarious about that, is there?

No?

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