(Back on the record at 12:32 p.m.)

Q Now, so we marked Exhibit 2. Now I'm moving on to Exhibit C, which in your stack of faxes, has a handwritten "Exhibit 5" on the top, but we're going to not -- we're going to throw that paper away, and we're going to call it Plaintiff's Exhibit 3.

MR. REZNICEK: It's already marked as such and in front of the witness.

Q Okay. So can you look at that and tell me what that is, Mr. Mishkoff?

A This is a letter I either faxed or mailed to you, or possibly both.

Q Then -- when did you first put the advertisement for the shirt company on the website that we have been focusing on, the mall website that you created?

A I believe that the link to the shirt company was probably placed in April of -- we're talking about last year, aren't we? April of 2001. That's an estimate. It was sometime between the end of March and the middle of May.

Q And how did that come about?

A It was a favor I did for my girlfriend.

Q Favor in what way? That putting it on? Did you create the ad itself or --

A Well, I created the link from my site to her site.

Q Who created the little drawing?

A That was something I had on my computer and -- for years. And I don't know if it was a scan of her business card or what. But I've had that on my computer for a long time. The drawing of the shirt was not created for this purpose. I may have resized it and added some text to it. Without it in front of me, I don't remember. But I do remember having the drawing of the shirt on my computer well previous to this.

Q You don't remember if she provided you with the art work or whatever?

A It had been on my computer for years, probably for five years, and I don't remember if I scanned it or she scanned or where we got it from.

Q Is she still in the business of that store or that shirt business?

A She still occasionally sells shirts.

Q Do you know if she got any business from that advertisement?

A Well, all I know -- I don't know anything personally, but I know what she told me, which is that she did not.

Q Do you have a way of managing the traffic on the website?

A Logs are created automatically when anybody -- it's called hitting. When you get a hit on any web page or any element of the page, it is automatically logged.

Q Did you manage the logs?

A Well, I didn't -- I have software that I've created that creates reports from those logs once a week. The logs themselves are pretty much indecipherable. But I create reports weekly, and typically, I look through the reports once a week. I create them automatically after midnight Saturday, and typically, on Sunday, that's one of the things I do is look through the reports of my various websites to see -- just to get some idea of how many people have been visiting my web server.

Q And can you share with me what you observed in terms of monitoring those hits?

A I don't remember numbers. I remember -- I remember the hits increasing steadily.

Q Beginning right when you first turned the website on?

A I don't remember. I really don't remember. I remember -- I remember that as it got closer to the opening of the mall, I got more hits.

Q Was there any -- was there any other means by which you informed people that this website existed? Did you have any materials that said visit the website at www.theshopsatwillowbend.com?

A I believe I had a link -- well, I know I had a link from my home page, from the WebFeats home page. I just don't remember when I put that link up. And I believe that I registered it with the search engines, with several of the major search engines. I don't know that for a fact, but that's typically what I do.

Q Which do you consider the search engines, the major ones, the ones that you would have registered with?

A Definitely Yahoo, probably Lycos, Excite. I used to use Web Crawler a lot, but that's not used much. And then there are some free -- there was a free service that I have used occasionally that will send in your submission to multiple search engines, and I don't know which search engines those would be.

Q When you register a website for search-ability, or whatever, on these search engines, what does that involve?

A It varies. Most of them you just give them the URL and that's it. And that's literally all you have to do. A couple of them, like Yahoo, which is the major search engine, you have to give them a short description. And sometimes I don't feel like writing a description. So I don't register with Yahoo. So I'm not a hundred percent sure I registered this with Yahoo, but I probably did.

Q Did you have to pay a fee?

A There are places with which you have to pay fees. I have never paid a fee in my life to register any site with a search engine, including this site.

Q So for sure these three that you named, you didn't pay them any money?

A I don't know for a fact that I registered it with those three. I believe that I probably did, and I know that I did not pay them any money.

Q I'm going to discuss something I have limited knowledge of, but you probably know what I'm talking about. When you put a website on, and I think when you register it with the website, don't you have to pick like key words that the search engines will pick up?

A No, you do not.

Q Like metatags or something?

A That's in the HTML code itself. And the search engine reads that when they index your site. That's not anything you have to explicitly tell the search engines.

Q Did you tell them any of that, any of the ones that you registered with?

A Well, that's not part of the process. I may have had some metatags on that page. I don't remember.

Q Would the search companies have a record of that?

A I have no idea.

Q Can you find that out now? I mean, is it something that --

MR. LEVY: Can we go off the record? Or we can put this on the record, whatever you like. Let's leave it on the record.


MR. LEVY: We -- when we filed with the court of appeals the electronic files which represent the website, and when we sent that motion to the district court as a formal request to supplement the record attaching CDs as one of the two things we wanted to add to the record, those two CDs, which you have had for some time now, include the electronic files from the websites as they existed at the time of each injunction. That is to say The Shops at Willow Bend file on that CD is the site as it existed at the time of the injunction when it was taken down if no more changes were made to it at that time. And similarly, the CD for the "sucks" sites are the site as it existed, the electronic files, as they existed at the time of the preliminary injunction against that site. You can look in the source code of those electronic files to determine what metatags and what title tags and what description tags, all the various kinds of tags, you can look for it as you can also look in the source code at the links to see what it linked to from each one.


MR. LEVY: And so that's really the precise way to see what the metatags were.


MR. LEVY: Going off the record -- let's go off the record.

(Off the record at 12:44 p.m.)

Part 9