Q Mr. Mishkoff, my name is Julie Greenberg. I think you're familiar with me. We are going to be taking this deposition in part by telephone. That's were I come in. You're in the presence of the court reporter. Just some general guidelines to make it easier to record everything that goes on. You should answer every question audibly with a "yes," "no," or an answer. Shaking your head and nodding and things like that cannot be recorded. And more importantly today, since I'm here by telephone, I can't see them. So any answer that you have, as long as you make it something that's audible, that will help. And I'm assuming -- I understand that this is going to be tape recorded. For purposes of that, in addition to the stenographic means that the court reporter is using, when we go off the record, I'd like to make sure we go off the record on both recording mechanisms. Is that okay?

MR. LEVY: Certainly. That makes sense.

Q Mr. Mishkoff, can you state your full legal name for the record?

A Henry Charles Mishkoff.

Q And spell your last name, please.

A M-i-s-h-k-o-f-f.

Q Thank you. Have you ever had your deposition taken before, Mr. Mishkoff?

A Yes, I have.

Q And when was that?

A That was sometime in the early '80s. It must have been between 1980 and 1982. I'm not sure of the exact year.

Q Were you a party to that litigation?

A I was a witness. I was not a party to the litigation, as I understand that term.

Q Okay. Is there any reason today that you may not be able to answer completely or truthfully? Are you taking any medications or anything else that is possibly going to effect the way that you answer your questions?

A I can think of no reasons why I cannot answer all questions completely and truthfully.

Q Okay. When I ask a question, I will try to be as clear as I can. And I'm trying to lean into the phone so you can hear me. But if you have any reason to either not understand what I'm asking or can't hear me, please feel free to make that clear, and I will, you know, try and either, you know, repeat it or rephrase it or whatever. But if you don't, I'll assume that you did understand it, okay?

A That's fine.

Q How old are you, Mr. Mishkoff?

A I am fifty-two.

Q And your date of birth?

A June 9th, 1949.

Q And what is your current address?

A 4062 Windhaven Lane, Dallas, Texas 75287.

Q How long have you lived there?

A About fifteen years.

Q Do you own that place?

A Yes, I do.

Q Can you give me an overview of your education and where it was given to you?

A I went to several colleges; Cornell University for a while, University of Colorado, University of Hartford. And then I got an undergraduate degree from Samford University in Birmingham, Alabama. And I don't believe I've taken any post-graduate courses at all. I took a course or two at the University of Alabama in Birmingham, but I don't -- after I had a degree, but I don't think they were post-graduate courses.

Q Okay. What was the degree that you ultimately got?

A It's called a general studies degree.

Q And it was for -- can you spell the name of the school, Samford?

A Yes. That's S-a-m -- as in Mary -- f-o-r-d.

Q Okay. And where are you employed currently?

A I'm self-employed.

Q Can you give me an overview of your employment history from the -- basically when it started. I'm assuming that was approximately when you got your degree.

A No. Because I was going to school part time. So I was working -- if you give me a year that you want me to go back to, I'll start from wherever you want me to start.

Q Well, let's skip all the french fry places, and your first job that you consider a real job, even if it was part time, and then just kind of walk me through your employment history.

A Okay. My first -- what I would call a real job was for Aetna Life & Casualty Insurance in Hartford, Connecticut. I'm going to have to be approximate on the years. I would think that would have been around 1970. And for a while I dropped in and out of school. So some of these jobs are not going to be contiguous.

Q Okay. So after 1970?

A I'm thinking. I'm getting there. Hang on. The next employment I had, I think was probably as a musician. I was a self-employed full-time musician for a couple of years in the mid '70s. When my last band broke up, which would have been I believe in 1975, I had a job working for a company that I'm sure no longer exists called the Cole Layer Trumble Company in Birmingham, Alabama. It was creating property maps for tax appraisal purposes.

Q Can you spell the name of it? Cold, C-o-l-d?

A C-o-l-e.

Q Oh, C-o-l-e.

A Yeah. Layer, L-a-y-e-r; Trumble, T-r-u-m-b-l-e. I believe they were an Ohio-based company. This was just an office they had in Birmingham.

Q And what is it that you did?

A Property maps. I drew property maps for a county-wide tax appraisal project.

Q By hand or on the computer?

A By hand.

Q Okay.

A The next job I had was with a company called Cars, C-a-r-s, in Irondale, Alabama. The company I believe is still there, but I'm sure that's not their name anymore, and I don't know what their name is. I worked there for two years doing computer programming. I'll pause after each one. You tell me when you're ready for me to continue.

Q You can continue -- well, let me just ask you about that. What approximate year are we in? We were --

A Oh, I can pin that down.

Q -- close to the '80s.

A That was '76 through -- wait a minute. No, it wasn't. That was -- I believe that was '76 through '78.

Q Okay.

A I may have to change that later.

Q And that computer programming was done as an employee for this company?

A Yes, it was. I'm real fuzzy on these years. Some of the later jobs, when we get to that I'm more definite about the years, may cause me to change some of the earlier dates.

Q Okay. So after that -- that was your first -- am I correct in understanding that that was your first computer programming employment?

A No. The work I did for Aetna in Hartford where I only worked for six months, I believe, was -- my position was computer programmer/trainee -- or computer analyst/trainee or something like that. So I had had a brief exposure to a computer job before the job at Cars.

Q Okay. So after -- I think you called it Cars in Alabama --

A Right. My next position was with Texas Instruments in Lubbock, Texas.

Q And what was that?

A Computer programming. And that would have been for a year. That was 1978. So the job before that would have been '76 to '78. I don't know if that's what I said.

Q What kind of programs did you write for them?

A I wrote programs for a product called the Texas Instruments Home Computer, which was an unreleased product at the time and was later released and lasted a few years and has not been in production for fifteen years.

Q Okay. After that?

A After that, I moved back to Birmingham and started a company with a friend of mine. I don't know if it was a partnership or a corporation. I believe we were incorporated. But at any rate, there were only two of us. And I think the -- I think we called the company Database Development Corporation.

Q And what was that company -- what was the nature of that company?

A Developing computer systems -- software. And that was in Birmingham. And for a while I lived in Tuscaloosa, Alabama, because we had -- our one client was located there.

Q At that time -- I'm assuming that I can't ask you over more than a specific period, but at that time, do you remember what kind of computer language you were programming in?

A That was COBOL. On that particular computer is the only time I've ever used COBOL in my life.

Q Okay. Did you have any significant clients, or did you have --

A We had one client.

Q Okay.

A In Tuscaloosa. I can't remember the name of the company. They published a book called "Whose Who In American Colleges." And they may still publish that book. I think the name of the company was Randall, R-a-n-d-a-l-l. I'm just not at all certain.

Q Okay. And after that job?

A I did that for a year. I went back to work for Texas Instruments, this time in Dallas. I worked there from 1980 to about 1982.

Q So what year do you think we're in now?

A This is '80 through '82.

Q And what did you do for TI?

A Programming and writing.

Q What language did you use?

A For programming? It was a language that was specific to the TI Home Computer, and I don't remember the name of it, but I also did programming in BASIC for the TI Home Computer.

Q And when you say, "writing," you meant non-computer software writing? You meant other writing?

A It was documentation.

Q What does that mean?

A Reference manuals.

Q And then after that?

A After that I went to work for a company called Tronics, T-r-o-n-i-c-s, in --

Q I'm sorry. T-r-o --

A T-r-o-n-i-c-s, Tronics. They were either in Fort Worth or one of the suburbs of Fort Worth. And I probably worked there for less than a year. I'd say from part of '82 until early '83.

Q I'm sorry. I just lost something. Are you there?

A I'm here.

Q I got cut off a little. All right. So we're now in 1982.

A Right. I worked there from sometime in '82 to early in '83.

Q Okay. And after that?

A After that I became self-employed.

Q By "self-employed," do you mean you opened up your own company?

A Well, that depends on how you define, "company." I was working as a freelancer or a contractor.

Q What kind of work were you doing?

A Writing and programming.

Q See, I got cut off a little. So you said writing and what?

A Programming.

Q I apologize. I don't know if this is a bad connection or what.

MR. LEVY: Could I suggest, Ms. Greenberg, that it might make sense -- the phone is located on the other side of the table from him. I wonder would that make any difference?

MR. REZNICEK: If he sat closer?

MS. GREENBERG: It may help, yeah. I mean, it doesn't sound like it's him fading out verbally. It sounds like the phone cuts out. So hopefully, it's not going to be a problem. But it would help if you're louder. Then maybe I'll hear it through that. It's some kind of a technical waviness to it. I don't know what it is.

MR. REZNICEK: We're going to switch sides.


Q Okay. So we were in the mid '80s, '83-ish?

A Yeah. Hang on one second. Okay.

Q Okay. Thank you. So you started your own freelance business. You were doing writing and computer programming you said?

A That's correct.

Q Okay. And that's around 1983?

A That would have started in early 1983.

Q What kind of programming were you performing or -- well, if you can answer that -- or for what type of client?

A I'm trying to remember here. In -- from about 1984 or '5 on, I started doing database programming. I was mostly doing writing at first. It seems to me there may have been a little programming mixed in with it, probably in BASIC.

Q And how did you hook up with clients that you obtained? Did you advertise?

A No, I did not. It was through what I guess we now call networking, just through people that I knew. My first client, for example, was Texas Instruments, that I had worked for.

Q Yeah. Did you have a name for your business at that time?

A I probably registered a couple of d/b/a's; HCM Enterprises, or something like that, HCM Associates. I don't remember. I may have just used my own name. I know I registered a d/b/a in case I needed one. I just don't remember if I actually used it.

Q So you indicated that you did not advertise. It was mostly word-of-mouth kind of things?

A That's correct. I don't remember running any ads.

Q Okay. And that brings us to when?

A Well, to the present, except there was one period between '83 and the present where I did have an actual job for a year. Other than that one period, I've been freelancing, doing contract work continuously since 1983.

Q What were you doing during that one year?

A From the middle of -- I think from the middle of 2000 to the middle of 2001 -- you'd think I'd know for sure because that's just last year. But I think that's right. I was working for a company, Synctive, S-y-n-c-t-i-v-e, in Dallas. It was a company that was started by friends of mine, and I went to work for them, and that lasted for a year.

Q What was the nature of the company?

A Synctive was, and probably is, trying to do E-commerce consulting.

Q And what type of position did you have?

A I was basically doing programming for them and program development supervision.

Q Were you a classic employee in the sense that they withheld taxes and treated you as a formal employee?

A Yes.

Q And that lasted until when?

A The middle of last year, I believe.

Q Do you remember what month?

A It was either May or June.

Q And then at the time that you were employed for Synctive, were you also performing freelance services separately?

A Yes and no. My clients, as part of my agreement with them, technically became their clients for that time period. So I was doing some of the same work, but that money was not coming to me. It was coming to Synctive.

Q Did you have occasion during any of those years to write any full programs for any companies, including Synctive?

A I'm sorry. What was the question?

Q Did you have occasion during, let's say the last -- you know, during the period when you were doing actively -- actively doing programming and writing, did you have occasion to write any full programs?

A I guess I don't know what you mean by "full programs."

Q Well, did you write self-standing programs that could be used on their own, pieces of work that are considered software?

A During what time period?

Q Essentially I'd say beginning when you started this business where you were working on your own and you think it may have -- it was basically your own business, but you don't know what you really called yourself, if you called yourself anything other than your own name.

A I wrote -- yes, I did. I developed database programs for several clients, which I think fit your definition of "full programs."

Q And these are programs that you wrote and provided, and now they're being used, or at some point they were being used by a company?

A That's correct. I doubt that they're still being used, but they may be.

Q Did you ever enter into any agreements when you wrote those that purported to decide who had the rights to use them and who owns those programs?

A I think so, but I'm not certain.

Q When you perform services in the nature of programming for another entity, is it customary for you to maintain ownership of anything that you write, or is it customary for you to transfer ownership?

A It's customary for that issue not to come up.

Q You never discuss it with your clients?

A Rarely.

Q After you perform services in the nature of that, such as programming, do you ever use those programs yourself, or do you -- in contrast to a situation where you would give it all over and don't use it again?

A I have used pieces of what I have developed, techniques that I have used to create software. If I have to write a similar program, I will go back and look at what I've done and reuse pieces of it.

Q So typically when you give a program over, you give the whole program over?

A That's correct. Typically I'm developing it at the client's site, and they have the use of it, and development is a continuous process. They're using it all along.

Q Have you ever taken the steps of getting anything that you created registered with the U.S. Copyright office?

A I don't believe so. I've copyrighted songs that I've written. But I don't believe I've ever copyrighted a program.

Q When you copyrighted songs, you filled out a form and sent it to the copyright office?

A That's correct.

Q About how many songs have you protected in that way?

A Well, this would have been when I was in high school, and I really don't recall. A few.

Q Does WebFeats -- is WebFeats the name of your business now?

A That's the name I use pretty much exclusively for my business activities.

Q Do you have any other businesses?

A Let me think about that. I don't think I have anything that I'm doing now under any name other than WebFeats. So I think the answer is, no, I don't have any other businesses.

Q Okay. And do you -- it's a sole-proprietorship?

A It's a d/b/a. It doesn't have any existence other than me.

Q Does it have any employees other than you?

A No, and I'm not really an employee.

Q Right.

A It has no employees.

Q What's the address for WebFeats, please?

A I use a mail room address, which is at 2661 Midway Road, Number 224-225, Carrollton, Texas 75006.

Q What do you mean by, "mail room address"?

A It's -- I don't know what the generic name is. The post office has a name for them. It's a business where -- that has boxes where I get my mail. That's the mailing address of WebFeats.

Q Okay. Does WebFeats have a physical location?

A I run it out of my home.

Q Is there any other ownership interests in WebFeats other than you?

A No, there's not.

Q Can you describe the business of WebFeats?

A WebFeats originally was set up for web development and for web hosting. And since then, I have used it for all my computer activities, whether or not they're related to the web, simply because that's the way my bank account is styled, and it's just easier to do business that way.

Q Can you describe what you mean by, "web development"?

A That means creating websites.

Q And what is web hosting?

A Web hosting is providing web space on my web servicer, either for sites that I've developed or for other people's websites. But I no longer provide space for other people's websites.

Q Okay. I'm going to apologize because I'm probably more of a layperson than you expect. And so I don't exactly understand when you say, "space on my servicer." I don't really completely understand that. Can you describe what a servicer is and what you mean by providing space on it?

A A web server -- every website has to reside on a web server. A web server, looking at it the other way, is a computer dedicated, at least partially, to hosting websites. Any website that you've ever accessed has been on a web server somewhere. When I first went into the business, I decided I would do two things. I would create websites, but I would also -- since I had a web server that had extra room on it, I would allow -- I would sell web space. I would allow other people to put their websites on my web server for a monthly fee, and that's called web hosting.

Q Okay. Can I just interrupt for a second? Do you actually have a physical separate computer that's the web host or the web server?

A Yes, I do.

Q Okay. And that's got to have sufficient room on it so that you can provide the service to all these other people?

A Well, I no longer provide service to other people. The only sites that are -- the only websites that are on my server now are sites I've created. I no longer provide web space to people other than myself.

Q Do you provide space to people whose websites you created, but they are other people's websites?

A That's correct.

Q About how many websites would that be that you provide on your server?

A Currently I think it's one. Let me think about that for a minute. No. I guess it's two. Let me think about that for a minute more. I believe -- and I'm not certain -- that there are two entities other than myself that -- where their websites reside on my web server.

Q So there's only three websites on your server?

A No. I have several of my own sites.

Q Okay. So how many are on your -- how many websites does your server host, or provide space for? Is that the right way to say it?

A Yeah. And that's a tough question to answer because it's difficult to define exactly what is a separate website. I suspect the answer to your question is probably less than a dozen.

Q Does the server have a separate entity name or anything? Does it have a site on the internet, or how do you refer to the server itself? Is it just the hardware that's residing in your house?

A That is one way. That would be called the physical web server.

Q Is there, like, a place on the internet of sites somewhere that actually is like the master of the various sites that you host?

A I'm not sure that I understand your question, but I think the answer is no. The web is distributed and not centralized, although there are some centralized aspects to it. But maybe I'm not answering your question.

Q Yeah. I'm not sure I even understand my question because I'm trying to figure it out. It's not some sort of a hierarchy where your presence on the internet provides these other sites the ability to be on, for example, if you shut down some main site, they would all shut down? I don't mean the physical computer obviously that broke. Is there some kind of a master site that provides all these other sites a place to be?

MR. LEVY: Can we go off the record for a moment? Can I help you?


(Off the record at 10:09 a.m.)

Part 2