Expert Witness Harris Declaration PB v TW Restraining Order. 28 Nov 12

CRO W ELL & MO RIN G LLP A T T O R N E Y S A T L A W

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; CASE NO.

CROWELL & MORING LLP Michael Kahn (CSB No. 57432, [email protected]) Gregory D. Call (CSB No. 120483, [email protected]) Beatrice B. Nguyen (CSB No. 172961, [email protected]) 275 Battery Street, 23rd Floor San Francisco, CA 94111 Telephone: 415.986.2800 Facsimile: 415.986.2827 Attorneys for Plaintiffs PeopleBrowsr, Pty., Ltd, PeopleBrowsr, Inc.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

PEOPLEBROWSR, INC., AND PEOPLEBROWSR PTY., LTD.,

Plaintiff,

v.

TWITTER, INC.,

Defendant.

Case No.

DECLARATION OF ROBERT HARRIS IN SUPPORT OF PLAINTIFFS’ APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION


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TABLE OF CONTENTS

Page

-i- ; CASE NO.

A. QUALIFICATIONS ........................................................................................................... 3 B. BACKGROUND AND MATERIALS REVIEWED ......................................................... 4 C. APPLICABLE LEGAL STANDARD ................................................................................ 4 D. TWITTER HAS A MONOPOLY IN THE MARKET FOR ITS UNIQUE DATA .......... 5 E. TWITTER’S PROMISED OPEN ECOSYSTEM ENCOURAGED THIRD

PARTIES TO BUILD BUSINESSES THAT DEPENDED ON TWITTER DATA ......... 6 F. PEOPLEBROWSR PARTICIPATES IN A “TWITTER BIG DATA

ANALYTICS” MARKET THAT DEPENDS ON ACCESS TO EXTREMELY HIGH VOLUMES OF TWITTER DATA .......................................................................... 9 1. Twitter’s Open Ecosystem Created Two Distinct Types of Downstream

Markets .................................................................................................................... 9 2. PeopleBrowsr’s Twitter Big Data Analytics Market Is a Distinct Relevant

Market ................................................................................................................... 11 G. TWITTER’S MONOPOLY OVER ITS UNIQUE DATA GIVES IT

SUBSTANTIAL MARKET POWER IN THE TWITTER BIG DATA ANALYTICS MARKET .................................................................................................. 13

H. TWITTER IS ENGAGED IN A PATTERN OF CONDUCT DESIGNED TO RESTRAIN COMPETITION IN PEOPLEBROWSR’S TWITTER BIG DATA ANALYTICS MARKET .................................................................................................. 14 1. Twitter Used Its Control Over Twitter Data to Control Other Downstream

Twitter Applications Markets ............................................................................... 14 2. Twitter Is Now Taking Action to Restrain Competition in PeopleBrowsr’s

Market ................................................................................................................... 17 I. TWITTER’S THREATENED ACTION WILL INTERFERE WITH

PEOPLEBROWSR’S CONTRACTS AND PROSPECTIVE BUSINESS RELATIONS .................................................................................................................... 19

J. TERMINATING PEOPLEBROWSR’S FIREHOSE ACCESS ALSO THREATENS COMPETITION ....................................................................................... 20

K. THERE IS NO VALID BUSINESS JUSTIFICATION FOR CUTTING OFF FIREHOSE ACCESS ....................................................................................................... 20


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DECL. OF ROBERT HARRIS IN SUPP. OF APPLICATION FOR TRO AND OSC RE PRELIM. INJUNCTION; CASE NO.

Declaration of Bob Harris

I, Robert Harris, declare as follows:

1. I make this declaration in support of Plaintiffs’ Application for Temporary

Restraining Order and Order to Show Cause Re Preliminary Injunction. Except where the matters

below are stated on information and belief, I have personal knowledge of the following facts set

forth in this declaration and, if called as a witness, could and would competently testify to the

following opinions and the bases thereof:

• Twitter has a monopoly in the market for its unique data. Twitter is the dominant

platform for users to post public, contemporaneous reports on their experiences. Social

media sites, like Facebook, that facilitate interactions among small groups of friends or

colleagues, do not provide a substitute for this data.

• Twitter’s promised “open ecosystem” for third party developers encouraged third

parties like PeopleBrowsr to build businesses that depended on Twitter. Twitter was

built as an “open platform” -- a common business model employed by technology

companies like Microsoft and Apple, in which third party developers can build businesses

that operate on an underlying platform (such as Apple’s iOS operating system) without the

platform owner interfering in the market or picking which businesses will succeed.

Twitter promoted its “open ecosystem” to encourage third parties to risk their time and

money building businesses that depended on Twitter to survive.

• PeopleBrowsr participates in a distinct “Twitter Big Data Analytics” market that

depends on access to extremely high volumes of Twitter data. “Big data” is a

burgeoning field using sophisticated techniques to analyze truly massive amounts of data

to understand and make predictions about people’s behavior.1 PeopleBrowsr is one of a

small number of companies to apply “big data” techniques to Twitter, analyzing all or a

very high percentage of the over 340 million short messages or “tweets” posted on Twitter

each day. These “Twitter Big Data Analytics” companies offer services of much greater

1 See Appx. 3, Ex. 1, “What is big data?” IBM.com, Ex. 2, “Sorting Out a Boundless World of Big

Data,” Wall Street Journal, 10/8/12.


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-2- DECL. OF ROBERT HARRIS IN SUPP. OF APPLICATION FOR TRO AND OSC RE PRELIM. INJUNCTION; CASE NO.

sophistication and usefulness than those of the hundreds of general “data analytics”

companies that sample small amounts of Twitter data to provide more limited insights.

Clients of Twitter Big Data Analytics would not see the services provided by general data

analytics companies as a viable substitute.

• Twitter’s monopoly over its unique data gives it substantial market power in the

Twitter Big Data Analytics Market. By its nature, Twitter data analytics depends on

having access to Twitter data to analyze. This is particularly true of Twitter Big Data

Analytics, which needs access to the very highest levels of Twitter data access. Twitter

thus controls a vital input for these businesses.

• Twitter is engaged in a pattern of conduct designed to restrain competition in

PeopleBrowsr’s Twitter Big Data Analytics Market. Twitter has previously used a

variety of techniques to convert downstream markets, such as markets for Twitter

consumer applications, from open ecosystems into more Twitter-controlled markets.

Twitter is now using its control over its data to restrain competition in the Twitter Big

Data Analytics market by reserving full data access for itself and a select group of

partners.

• Terminating PeopleBrowsr’s access to the Twitter “Firehose,” which provides

PeopleBrowsr with all Twitter data, will restrain competition in the Twitter Big Data

Analytics Market. Though Twitter once offered the Firehose to many developers, it now

provides the Firehose to a select group of close partners, relegating others to obtaining a

fraction of that data from its resale partners DataSift and Gnip. This undermines

competitors’ ability to provide competitive Twitter Big Data Analytics services. Twitter

threatens to force PeopleBrowsr to transition from the Firehose to these providers. This

will destroy PeopleBrowsr’s ability to compete in the Twitter Big Data Analytics market,

and eliminate it as a key provider of several Twitter Big Data Analytics services.

• Terminating access to the Firehose will interfere with PeopleBrowsr’s contracts and

prospective business relations. PeopleBrowsr’s customers expect to receive the types of

Twitter Big Data Analytics services that can only be provided with the Firehose. Without


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that access, PeopleBrowsr will not be able to provide its business partners with the

services they expect and have contracted for.

• There is no valid business justification for Twitter’s terminating PeopleBrowsr’s

Firehose access. By terminating Firehose access, Twitter will forego payments that

exceed $1 million annually and lose the benefit of PeopleBrowsr’s technology. Twitter

has offered no rationale or explanation to PeopleBrowsr for terminating its Firehose

access. Thus, it appears that Twitter seeks to benefit from eliminating a competitor.

A. Qualifications

2. I am a Senior Consultant at Charles River Associates and a Professor Emeritus of

Business and Public Policy in the Haas School of Business at the University of California,

Berkeley. I earned Bachelor of Arts and Master of Arts degrees in Social Science from Michigan

State University and Master of Arts and Doctor of Philosophy degrees in Economics from the

University of California, Berkeley. My curriculum vitae is attached as Appendix 1.

3. At Haas, I taught courses at the undergraduate, MBA and Ph.D. levels, including

Managerial Economics, Industry Analysis and Competitive Strategy, Antitrust and Regulatory

Economics, and Business & Public Policy. My academic research has centered on the interaction

of technological change and competition, especially in high tech industries (including computing,

communications, information services and the Internet). I have published more than 50 articles in

journals of business, economics, law and public policy, and authored more than 100 reports on

competition, technological innovation, and on antitrust, telecommunications, and transportation

policy.

4. I have testified on many occasions before U.S. Federal and state courts and have

been qualified to give expert economic testimony in antitrust, intellectual property and

commercial litigation. I have testified in antitrust cases involving monopolization, attempted

monopolization, horizontal or vertical restraints of trade, price discrimination and price fixing. I

have also testified in cases involving patent and copyright infringement, trade secrets and contract

disputes.


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5. I have consulted with many leading companies in computing, communications,

information technologies, software and other high-tech industries on industry analysis and

competitive strategy; technological innovation and new product introductions; mergers,

acquisitions and corporate restructuring; the development and pricing of products and services;

market entry and competitive dynamics; and valuation of patents and patent portfolios.

B. Background and Materials Reviewed

6. In preparation for offering the opinions in this declaration, I have reviewed a

number of articles, websites and publicly available documents, a list of which is provided in

Appendix 2, as well as the draft Declaration of John David Rich in Support of Plaintiffs’

Application for Temporary Restraining Order and Order to Show Cause Re Preliminary

Injunction. A true and correct copy of each of the sources cited in this declaration is included in

Appendix 3.

C. Applicable Legal Standard

7. I am informed that the legal standard for issuing a temporary restraining order

and/or a preliminary injunction requires courts to weigh two interrelated factors: (1) the relative

harm to the parties; and (2) the plaintiff’s likelihood of prevailing on the merits. Butt v. State of

California, 4 Cal. 4th 668, 678 (1992). “[T]he greater the plaintiff’s showing on one [factor], the

less must be shown on the other to support an injunction.” Id.

8. I have reviewed the Complaint, which alleges claims for intentional interference

with contract and prospective business relations; promissory estoppel; and violation of the Unfair

Competition Law (“UCL”), Business and Professions Code Section 17200, et seq.

9. It is my opinion that Twitter’s threatened action of shutting off PeopleBrowsr’s

access to the Twitter Firehose will result in irreparable harm to PeopleBrowsr in the form of lost

goodwill and business relationships and the loss of its ability to continue its business. Such

action by Twitter would interfere with PeopleBrowsr’s ability to carry out its existing contracts

and to consummate prospective business relationships. Further, Twitter’s threatened action

would significantly threaten or harm competition in the market in which PeopleBrowsr

participates.


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D. Twitter Has a Monopoly in the Market for Its Unique Data.

10. Twitter provides a platform for its 140 million users to share and receive

information in real time through short messages called “tweets,” which have a maximum length

of 140 characters. Because tweets are public, contemporaneous reports on what Twitter users are

experiencing, they can be used to provide feedback about products and services that individuals

and organizations find highly useful.

11. The Twitter platform has a monopoly on the unique data it provides. Tweets are

public and reflect the immediate reactions of Twitter users, providing unique feedback regarding

consumers’ reactions to products and brands (e.g., “I love my Starbucks latte!”).2 Because

anyone can read a Twitter user’s tweets, there is a much higher volume of interaction among

Twitter users than on social networking sites like Facebook, where posts are only shared with a

select group. The ability of Twitter users to cause members of the public to “follow” them or

repost (“retweet”) their tweets provides a measure of their influence that cannot be replicated

through data from social networking sites like Facebook.3 Data from Facebook and other social

media sites has value – indeed, PeopleBrowsr uses it to augment its Twitter analytics – but it is a

complement to, not a substitute for, Twitter data. Because social networking sites like Facebook

are not public, they do not provide the same rich set of data regarding users’ sentiments and

influence on each other that Twitter data provides.4 Hence, they are not a viable substitute for

Twitter data.5 Any viable competitors in Twitter’s market have closed down or changed their

product offerings.6 Twitter recognizes its data is unique. Otherwise, it would not cut off

2 Appx. 3, Ex. 3, “Twitter Networks are Different than Social Networks,” Both Sides of the Table,

3/15/10; Ex. 4, “You Don’t Have to Tweet to Twitter,” Above the Crowd, 11/15/11; Ex. 5, “Businesses Must Manage the Twitter Conversation,” Both Sides of the Table, 11/16/12.

3 See Appx. 3, Ex. 4, “You Don’t Have to Tweet to Twitter,” Above the Crowd, 11/15/11; Ex. 5, “Facebook vs. Twitter: How Are They Different?”; Ex. 6, “The Difference Between Facebook, Twitter, LinkedIn, Google+, YouTube and Pinterest”

4 See Appx. 3, Ex. 3, “Twitter Networks are Different than Social Networks,” Both Sides of the Table, 3/15/10; Ex. 5, “Businesses Must Manage the Twitter Conversation,” Both Sides of the Table, 11/16/12.

5 Appx. 3, Ex. 4, “You Don’t Have to Tweet to Twitter,” Above the Crowd, 11/15/11; Ex. 3, “Twitter Networks are Different than Social Networks,” Both Sides of the Table, 3/15/10.

6 Appx. 3, Ex. 7, “Where is the Twitter Competition?” Socialmediatoday.com, 3/23/11.


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Firehose access, knowing that PeopleBrowsr and others could simply obtain a substitute in the

marketplace.

12. At the same time, barriers to entry into Twitter’s market are substantial. Twitter’s

value derives from having over 150 million users communicating with each other and generating

the content users come to see. Even if a competitor could create a superior platform, it is unlikely

that it could attract the critical mass of users that would be necessary to become a viable

alternative to Twitter.

E. Twitter’s Promised Open Ecosystem Encouraged Third Parties to Build Businesses that Depended on Twitter Data.

13. From its inception, Twitter was developed as an open platform model, which, in

combination with many third-party-developed applications, leads to an “open ecosystem.” The

fundamental premise of an open platform is that the platform organizer (in this case, Twitter)

allows and enables third-party software developers to design, program and offer platform users

applications that interconnect with the platform and thereby substantially increase its economic

value. In addition to building the platform, the platform organizer provides Applications Program

Interfaces (APIs) and/or access to the data generated by platform users so that third-parties can

contribute to the growth of the platform and participate in the economic returns to the platform.

Thus, it is well understood by economists—indeed, it is a core principle taught in schools of

business—that an open platform generates “mutual benefits” to both the platform organizer and

third parties.

14. In order for an open platform to succeed, though, it is necessary that the platform

organizer make commitments to maintain the openness of the platform upon which third parties

will rely in their business planning, product development and capital budgeting decisions.

Whether a platform is open or “closed” (i.e., controlled by the platform organizer) is a

fundamental part of the decision to operate on that platform. A company buying into a closed

system must accept the risk that the platform organizer will curtail or eliminate its ability to do

business in order to shape the market in the form it desires, while a participant in an open

platform has been promised that it can compete freely without interference by the platform


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organizer. The “openness” of the platform is a key attribute of the platform that a business is

contracting for when it invests in that platform. In other words, in terms of economics, the

openness of a platform is part of the “contract” between the platform organizers and those who

develop applications and complementary businesses connected to that platform.

15. In the Internet age, the open platform model has become quite common in

technology markets. There are literally thousands of software development companies whose

products were designed to work with one or more open platforms. A good example is Apple’s

App Store. Apple allows third party developers to build applications that use APIs in the Apple

operating system (iOS) so they will work on Apple devices, such as the iPhone and iPad. In

return, Apple receives a portion (typically, 30%) of the revenues those applications generate in

the marketplace. In addition to those direct revenues, though, Apple benefits from hundreds of

thousands of third party-created applications because applications make Apple products like

iPhones and iPads more useful and valuable, which increases Apple’s sales of and profit margins

on those devices.

16. Similarly, as an open platform, Twitter provides a core, basic product, which

primarily allows its users to post and read tweets and to respond to each other in various ways,

including by reposting others’ content or “following” users they find interesting. Rather than

expanding the functionality of this core product by itself, Twitter offered third party developers

APIs to interoperate with this core product and access to the data generated by this core product.7

With that access, the developers could build applications that improved the core Twitter

experience and/or expanded the uses for Twitter data. This open Twitter “platform” enabled third

party developers to build innovative, sometimes successful businesses.

17. Twitter enjoyed substantial benefits from being an open platform, as third party

developers created many of the most useful and economically valuable features that Twitter users

7 “A Conversation with Evan Williams” (available at

http://www.youtube.com/watch?v=p5jXcgZnEa0); Appx. 3, Ex. 8, Twitter blog post, “The Evolving Ecosystem,” 9/2/10.


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now take for granted, such as being able to use Twitter on mobile devices.8 Just as Apple’s open

iOS platform enabled third-party apps that increased the sales and use of Apple devices, so too

have the thousands of applications created on the Twitter platform improved users’ experience

and vastly increased the number of people who use Twitter. In my opinion—and by Twitter’s

own acknowledgement—a substantial portion of Twitter’s success is directly attributable to the

creativity, innovation and investments of third party developers in the Twitter platform.

18. Twitter could have chosen to adopt a tightly controlled model, in which it dictated

who would have access to its data, and used its control over data to determine which applications

succeeded in the marketplace, but it did not. Rather, Twitter’s own conduct indicates that it

believed it would benefit greatly from attracting the innovation, creativity and resources of third-

party developers, and thus repeatedly and publicly offered its API’s and data to third party

developers and touted the economic rewards of being part of its open platform (or “ecosystem”).

In an open platform, it is essential that third parties have open access to Twitter’s software and

data so they can compete freely, without Twitter manipulating access to choose which businesses

succeed. In such a model, Twitter, third-party developers and consumers benefit from the

operation of a market in which Twitter does not dictate terms—i.e. close the platform.

19. Since its founding, Twitter has made many public statements communicating—

indeed, proselytizing—its commitment to the open Twitter ecosystem.9 It offered the Firehose as

part of this open ecosystem, stating it would be available “for everyone in the system” and

“whoever needs this type of content.”10 The apparent intent of these statements was to induce

third parties to risk their time and money on building businesses that rely on Twitter access and

data to survive. Knowing that any rational business person would see potential loss of access to

Twitter data as a substantial risk factor, and needing third parties to improve its product, Twitter

8 Appx. 3, Ex. 9, “Why Twitter is Prepared to Sacrifice Developers for More Users” TheNextWeb,

8/21/12. 9 See, e.g., Appx. 3, Ex. 10, “Twitter Developer Rules of the Road,” Twitter blog post, 9/5/12; Ex.

11, “The Twitter Platform,” Twitter blog post, 5/24/10; Ex. 12, “Enabling a Rush of Innovation,” Twitter blog post, 3/1/10; Ex. 13, Twitter blog post, “Twitter's 'Starling' Released as Open Source,” Twitter blog post, 1/18/08.

10 E.g., Appx. 3, Ex. 12, “Enabling a Rush of Innovation,” Twitter blog post, 3/1/10.


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promised those third parties a continuing open ecosystem so that they would feel comfortable that

they would be able to compete freely without fear of Twitter’s interference.11

F. PeopleBrowsr Participates in a “Twitter Big Data Analytics” Market that Depends on Access to Extremely High Volumes of Twitter Data.

1. Twitter’s Open Ecosystem Created Two Distinct Types of Downstream Markets.

20. By offering APIs and access to its data to third party developers in this open

ecosystem, Twitter generated two distinct types of downstream markets: (a) markets for Twitter

applications that improve on the basic Twitter consumer experience by interconnecting with

Twitter via Twitter APIs (e.g., applications that allow Twitter to work on mobile devices, or

desktop applications that add features to Twitter); and (b) Twitter data analytics markets for

applications like PeopleBrowsr’s that do not replicate the basic Twitter consumer experience, but

instead analyze Twitter’s data to provide information and insights to third parties. As we will see,

there are two fundamentally different types of Twitter data analytics markets: those which use

limited amounts (e.g., samples) of Twitter data to address particular end user needs (such as

searching for the number of tweets mentioning a search term); and Twitter “big data” or “Twitter

data mining” analytics applications that critically depend on access to very high volumes of

Twitter data, such as those offered through the Twitter Firehose.12

21. “Big data analytics is the process of examining large amounts of data of a variety

of types (big data) to uncover hidden patterns, unknown correlations and other useful information.

Such information can provide competitive advantages over rival organizations and result in

business benefits, such as more effective marketing and increased revenue... Big data analytics

can be done with the software tools commonly used as part of advanced analytics disciplines such

as predictive analytics and data mining.”13 According to International Data Corporation (IDC), the

11 Appx. 3, Ex. 14, “A note from @jack to Twitter developers,” Twitter blog post, 9/1/11 (noting

that third party developers are “a fundamental part of [Twitter’s] DNA.”); Ex. 15, “What’s on Deck for Twitter’s Platform,” Gigaom.com, 7/2/10 (the open ecosystem is “not altruistic. We depend on the ecosystem for our success.”).

12 Due to enormous advances in the data processing capabilities, “big data” has become an important concept and growing source of innovation.

13 http://searchbusinessanalytics.techtarget.com/definition/big-data-analytics


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worldwide market for “Big Data technology and services… is expected to grow from $3.2 billion

in 2010 to $16.9 billion in 2015. This represents a compound annual growth rate (CAGR) of 40%

or about 7 times that of the overall information and communications technology (ICT) market.”14

PeopleBrowsr was a pioneer in the application of advanced analytical and data processing

methods to extract highly valuable information from Twitter data.

22. Twitter has a fundamentally different relationship to consumer and data analytics

markets, and different business interests in the markets. The Twitter consumer application market

provides end users with improvements, enhancements and or extensions of the core Twitter

experience. These mobile applications or desktop applications allow Twitter’s users to post and

read tweets, and to follow and respond to other users. Twitter applications developers can also

potentially earn revenue by selling advertising targeting Twitter users. Twitter thus has some

interest in the look and feel of these products, and the service they provide. For example, Twitter

may desire to control or establish uniform standards for how tweets are displayed or how

advertising is incorporated into Twitter applications. Because these products form part of and can

significantly affect the core Twitter experience, they affect the effectiveness of advertising on

Twitter, and thus Twitter’s ability to compete with other services selling advertising, such as

Google or Facebook.

23. In contrast to those applications, Twitter data analytics services do not provide,

modify or affect the core Twitter experience. For example, consumers do not use data analytics

products to read or post tweets. Rather, Twitter data analytics developers use Twitter data to

generate information and insights that are sold to third parties interested in the behavior of Twitter

users. A user of Twitter data analytics may be interested in the number of Twitter users

mentioning their brand, or identifying trends in financial markets, for example. Because data

analytics companies do not provide Twitter users with the core Twitter experience, Twitter does

14 IDC Releases First Worldwide Big Data Technology and Services Market Forecast, Shows Big

Data as the Next Essential Capability and a Foundation for the Intelligent Economy, IDC, March 12, 2012. http://www.idc.com/getdoc.jsp?containerId=prUS23355112.


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not need to control access to Twitter data in order to control the look and feel of the Twitter

”experience.”

24. Historically, Twitter was focused on its core offering, and chose not to develop the

Twitter Big Data Analytics market. Through the efforts of PeopleBrowsr and a handful of other

companies with the technological capability to make sense of the massive amounts of data

generated on Twitter, a market for analysis of the full Twitter data stream has become a viable

market with huge potential. PeopleBrowsr has created innovative uses for the full Firehose

stream that have value in the marketplace, including identifying communities of interest,

providing a visual stream of Twitter activity that highlights key interactions of influential people,

and developing the ability to detect security threats. The Twitter Big Data Analytics market has

become a key focus for Twitter, which recently listed Analytics Products as one of the three types

of programs it seeks to encourage through its Twitter Certified Products Program.15

2. PeopleBrowsr’s Twitter Big Data Analytics Market Is a Distinct Relevant Market.

25. “Data analytics” is an umbrella term that encompasses a wide variety of

businesses that generate information and insights from analyzing Twitter data. For example,

some businesses search for trends in financial data; others track the frequency with which brands

are mentioned on Twitter; still others help businesses target their marketing for maximum impact.

These businesses provide distinct services, have different customers, and do not constitute a

single market. Instead, there are two main types of Twitter data analytics, with Twitter data

analytics developers using dramatically different amounts of Twitter data and markedly different

levels of sophistication in analytical and data processing methods. Thus, for present purposes, I

will distinguish between these two quite different Twitter data analytics markets and,

correspondingly, third party applications that compete in those markets.

26. The first type of data analytics application uses Twitter APIs to access targeted

“samples” of Twitter data to meet particular customer needs. There are hundreds of “small data

15 Appx. 3, Ex. 16, Twitter blog post, “Twitter Certified Products Program - Open for Business,”

8/29/12.


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analytics” applications and developers that use some form of Twitter data to give limited

feedback to their customers.16 For example, these companies might search Twitter and social

media sites for mentions of their client or certain terms their clients are interested in.17 Or they

might take a “moment in time” snapshot reflecting how people are responding to a particular

topic at a particular time (e.g., “Are people saying good or bad things about the President right

now?”), without assessing historical trends or providing any sort of comprehensive, valid picture

of user sentiment.18 This does not require access to all Twitter data, or the comprehensive view of

the “Twitterverse” that PeopleBrowsr uses, but only the ability to search for a limited number of

posts mentioning particular keywords. These applications do not require access to—and do not

use—the Twitter Firehose.

27. In contrast, there is a market for “Twitter Big Data Analytics,”19 which is the

market in which PeopleBrowsr and a very small number of other firms compete. As the name

“Twitter Big Data Analytics” implies, PeopleBrowsr generates economic value by analyzing

massive amounts of Twitter data, using high speed data transmission and processing methods and

highly sophisticated analytical methods. These firms might use other sources of data, such as

Facebook, to provide additional insight and broaden the database from which they draw their

conclusions. In fact, PeopleBrowsr draws from other social media sources and real life

accomplishments to augment its Twitter-based analytics. But Twitter data, with its unique ability

to demonstrate user sentiment and influence, is critical to their services. Therefore, to compete in

the market for Twitter Big Data Analytics, PeopleBrowsr absolutely depends on access to the

Twitter Firehose.20 Without that access, it cannot provide the services it does, much less develop

innovative new Twitter Big Data Analytics services.

16 See, e.g., http://webstrategist.it/social-media-analytics/ (listing companies). 17 See, e.g., http://brandchats.com/en/what-it-is; http://monitter.com. 18 See, e.g., http://www.tweetfeel.com/#obama. 19 For example, the School of Information at UC Berkeley offers a graduate course titled

“Analyzing Big Data with Twitter.” See http://www.ischool.berkeley.edu/courses/290-abdt 20 Appx. 3, Ex. 17, “Assessing Kredibility,” The Kernel, 5/29/12; Ex. 18, “Aggregating Social

Data Requires a Firehose,” CMS Wire, 4/17/12; Decl. of John D. Rich in Support of Pls.’ Application for TRO.


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28. PeopleBrowsr is either the sole provider or one of two providers of three Twitter

Big Data Analytics services: (a) Influence Measurement, where PeopleBrowsr’s Kred product

identifies communities of interest, as well as people with influence in those communities21; (b)

Action Analytics for Government and Enterprise22, which tracks all activity related to a brand or

particular markets in order to identify trends; and (c) Financial Data Services23, which spots trends

in Twitter data in order to allow financial services to more quickly detect when market changes

are occurring.

29. PeopleBrowsr is one of two viable providers of Influence Measurement services

(“Klout” is the other).24 As of now, PeopleBrowsr is the sole provider of Action Analytics for

Government and Enterprise. PeopleBrowsr and Dataminr, a close Twitter partner with Firehose

access, are currently the only Financial Data Services providers, although DataSift, another

Twitter Firehose strategic partner, has announced its intention to offer Twitter Big Data Analytics

services for the financial sector.25 For these reasons, PeopleBrowsr and other Twitter Big Data

Analytics services constitute a separate, distinct market. Actual and potential customers of the

services in the Twitter Big Data Analytics market would not find less sophisticated “small data”

analytics services to be acceptable substitutes.

G. Twitter’s Monopoly over Its Unique Data Gives It Substantial Market Power in the Twitter Big Data Analytics Market.

30. Twitter’s monopoly over its data gives it substantial market power in the

downstream markets using that data, especially the Twitter Big Data Analytics market in which

PeopleBrowsr competes. Companies in downstream markets are in the business of using Twitter

data, a unique input, to generate value for their users. Indeed, data analytics, by their very nature,

21 See kred.com. 22 See https://developer.peoplebrowsr.com/action. 23 Appx. 3, Ex. 19, “Connect to Our Collective Consciousness with PeopleBrowsr,”

Programmableweb.com, 5/30/11. 24 Appx. 3, Ex. 20, “Klout vs. Kred: The ‘Influence Wars’ Heat Up,” Edelman Digital, 7/25/12;

Ex. 17, “Assessing Kredibility,” The Kernel, 5/29/12. 25 Appx. 3, Ex. 21, “Datasift launches real-time social analytics service for the financial sector,”

thenextweb.com, 9/11/12.


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depend on access to the data being analyzed. PeopleBrowsr and other participants in the Twitter

Big Data Analytics market are even more dependent on Twitter, because they require access to

the very highest volumes of data in order to provide their services. Twitter has the ability to

control who has access to the volume of data necessary to compete in this market.

31. PeopleBrowsr’s agreement with Twitter is evidence of its market power.

PeopleBrowsr agreed to pay Twitter 25 percent of its gross revenues or a minimum fee that now

exceeds $1 million per year in exchange for access to the Firehose. In order to compete in the

Twitter Big Data Analytics market, PeopleBrowsr had to accept these terms because there is no

viable substitute for access to the Twitter Firehose. It is essential to PeopleBrowsr’s business.

32. In addition, Twitter has repeatedly required PeopleBrowsr to reveal confidential

business information, including its innovations, business plans, roadmaps, and customer lists.

PeopleBrowsr would only be willing to provide this highly valuable, proprietary information if

Twitter had sufficient market power to require it to do so.

H. Twitter Is Engaged in a Pattern of Conduct Designed to Restrain Competition in PeopleBrowsr’s Twitter Big Data Analytics Market.

33. Twitter is currently engaged in a pattern of conduct in PeopleBrowsr’s Twitter Big

Data Analytics market that it has previously used to gain control of other downstream markets

using Twitter data. In the past, when Twitter has identified promising downstream markets, it has

used its monopoly to clear out competition so that Twitter or a select group of closely controlled

partners can dominate those markets. Twitter has sent clear signals that it considers the Twitter

Big Data Analytics market promising and that it intends to compete directly with PeopleBrowsr’s

Twitter Big Data Analytics services. By Twitter eliminating PeopleBrowsr’s access to the

Twitter Firehose, Twitter seeks to ensure that Twitter or its hand-selected partners dominate that

market.

1. Twitter Used Its Control Over Twitter Data to Control Other Downstream Twitter Applications Markets.

34. Twitter’s threatened action to cut off PeopleBrowsr’s access to the Twitter

Firehose follows a pattern of conduct by which Twitter has substantially reduced competition and

disadvantaged non-Twitter-affiliated developers in the markets for Twitter applications. Twitter


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has already effectively converted consumer markets from open ecosystems to tightly-controlled,

Twitter-dominated markets. Three markets that illustrate Twitter’s approach are (a) the mobile

Twitter applications market; (b) the desktop Twitter applications market; and (c) the Twitter

advertising market.

35. Mobile Applications. There were once thirty-eight companies offering

applications to access Twitter on mobile devices. Twitter promoted these companies and

showcased their applications.26 Then, as it became clear that mobile applications were a major

growth area, Twitter developed plans to enter that market.27 Twitter announced its acquisition of

Atebits, the maker of the leading iPhone Twitter application Tweetie. Tweetie became Twitter’s

own mobile application.28 Twitter then implemented a series of changes intended to secure its

dominance in the mobile marketplace. It started with an inherent data advantage, and also altered

security settings and permissions for third party applications, limited features available to third

parties, and terminated data access for competing mobile developers who purportedly violated

vague and shifting terms of service.29 Out of 38 mobile applications that once existed, only 11

remain.

36. Desktop Applications. A similar scenario played out in the desktop application

market. Twitter initially lacked the capability to develop Twitter applications that ran on Macs

and PCs, and promoted an open ecosystem of fifteen desktop application developers.30 Once it

26 See, e.g., Appx. Ex. 22, Biz Stone, “Congratulations, Twitterrific,” Twitter blog post, 6/13/08;

Ex. 23, Evan Williams, “Twitter on Android,” Twitter blog post, 10/18/08. 27 “A Conversation with Evan Williams” (available at

http://www.youtube.com/watch?v=p5jXcgZnEa0); Appx. 3, Ex. 8, Twitter blog post, “The Evolving Ecosystem,” 9/2/10.

28 Appx. 3, Ex. 8, Twitter blog post, “The Evolving Ecosystem,” 9/2/10; Ex. 23, “Twitter for iPhone,” Twitter blog post, 5/19/10.

29 Appx. 3, Ex. 24, “New Twitter Permissions Hits Mobile Developers Where It Hurts,” wearesocialpeople.com, 5/19/11; Ex. 25, “Twitter Will Shut Off GeoAPI To Developers,” Techcrunch, 3/4/11; Ex. 26, “Key Changes to Twitter's API Terms of Service,” Counselor@law, 3/14/11; Ex. 27, “Twitter Suspends UberTwitter, Twidroyd Over Trademark & Privacy Violation,” Readwrite, 2/18/11; Ex. 28, “Twitter Changes Lead to Online Protests,” NYTimes.com, 8/17/12; Ex. 29, “’Twitter killed my business.’ An inside look at the ecosystem crackdown,” Gigaom.com, 9/7/12.

30 See, e.g., Appx. 3, Ex. 30, Biz Stone, “Twitter Downloads,” 03/2007; Ex. 31, Biz Stone, “New Version of Twitterrific,” 02/2008; Ex. 32, Biz Stone, “TwitterCamp is Open Source!”, 04/2007.


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identified the desktop market as a growth area, however, it acted to take control of that market. It

acquired leading desktop application providers, including Atebits and TweetDeck.31 Then

through the same types of data limitations, changes in security requirements, limits on features,

and termination of data access for competitors, Twitter eliminated all but two competitors in the

desktop application market.32

37. Advertising. There were once more than twenty developers offering Twitter

advertising. Twitter initially encouraged developers in this area, as it had decided not to focus on

advertising. After announcing the launch of its Promoted Tweets advertising product, however,

Twitter imposed new rules that made it harder for third parties to offer Twitter advertising.33 It

took the above-described steps to cut down on the number of mobile and desktop applications that

could compete with Twitter for advertising viewers. And it acquired the leading advertising

provider, AdGrok, using its advantages in the marketplace to drive out competition. Of the more

than twenty developers that once competed in this market, only four remain.

38. Twitter’s Announced Takeover of Consumer Markets. Twitter’s efforts

allowed it to dominate downstream consumer Twitter applications markets. On March 11, 2011,

Twitter’s Head of Platform Ryan Sarver stated, “the number and market share of consumer client

apps that are not owned or operated by Twitter has been shrinking. According to our data, 90%

of active Twitter users use official Twitter apps on a monthly basis.”34 He also stated that “the top

five ways that people access Twitter are official Twitter apps.”35

39. Twitter used its new dominance to justify closing down the open ecosystem it had

promised to developers. Citing the large percentage of users who had come to use Twitter’s

application, and the need to provide a more “consistent user experience,” Sarver announced that

31 Appx. 3, Ex. 33, “Twitter Acquires Atebits, Maker of Tweetie,” New York Times, 04/2010; Ex.

34, “Twitter Acquires TweetDeck,” Mashable, 05/2011. 32 See n. 29, supra. 33 Appx. 3, Ex. 34, Biz Stone, “Hello World,” Twitter blog post, 4/2010 (announcing Promoted

Tweets); Ex. 35, Biz Stone, “Twitter's New Terms of Service,” Twitter blog post 9/2010; Ex. 11, Dick Costolo, “The Twitter Platform,” Twitter blog post, 05/2010.

34 Appx. 3, Ex. 36, Ryan Sarver, “Consistency and Ecosystem Opportunities,” 3/11/11. 35 Id.


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Twitter would be taking over the consumer applications market altogether: “Twitter will provide

the primary mainstream consumer client experience . . . by which millions of people access

Twitter content . . . . [D]evelopers ask us if they should build client apps that mimic or reproduce

the mainstream Twitter consumer client experience. The answer is no.”36

40. Twitter now dominates downstream consumer applications markets where an open

ecosystem of developers previously thrived.37 It engaged in a repeated pattern: (a) encouraging

third parties’ development of promising markets through promises of openness; (b) identifying

the most successful markets; (c) acquiring the capability to provide services in those markets; and

then (d) using its superior data access and control over competitors’ terms of use to take control

of those markets.

41. As justification for its decision to limit competition in these Twitter applications

markets, Twitter stated that it needed to ensure a “uniform” Twitter experience.38 It claimed that

it needed to exert greater control over consumer applications in order to ensure that users had an

acceptable experience with the core Twitter product.

2. Twitter Is Now Taking Action to Restrain Competition in PeopleBrowsr’s Market.

42. This same pattern of Twitter conduct—taking control of downstream Twitter

consumer applications markets—is now recurring in the market for Twitter Big Data Analytics in

which PeopleBrowsr competes. Twitter has made clear its desire to dominate that market.

Twitter has developed its own analytics capability39, acquired leading data analytics companies

including BackType, Summify, Hotspots.io, and Bagcheck40, and provided full Firehose access to

36 Id.; see also Appx. 3, Ex. 37, “Twitter Tells Developers to Stop Building Twitter Clients,” ReadWrite, 3/11/11.

37 Appx. 3, Ex. 38, “Why Are People So Upset With Twitter,” NYTimes.com, 8/24/12. 38 Appx. 3, Ex. 36, Ryan Sarver, “Consistency and Ecosystem Opportunities,” 3/11/11; Ex. 39,

Twitter blog post, “Delivering a consistent Twitter experience,” 6/29/12; see also Ex. 40, “For Twitter-Owned Apps and Sites, a Cacophony of Confusion,” NYTimes.com, 7/2/12 (noting that, despite this justification, Twitter products did not provide uniformity and were inferior to competing products).

39 Appx. 3, Ex. 41, “Introducing Twitter Web Analytics,” Twitter blog post, 9/13/11. 40 Appx. 3, Ex. 42, “Twitter Acquires Social Analytics Platform BackType,” techcrunch.com,

7/5/2011; Ex. 43, “Twitter Gobbles Up Summify,” Mashable, 1/19/12; Ex. 44, “Twitter Acquires Social Analytics Startup Hotspots.io,” Techcrunch.com, 4/16/12; Ex. 45, “Twitter Acquires List Sharing And Discovery Platform Bagcheck,” Techcrunch.com, 8/8/11.


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closely controlled data analytics partners, such as Socialflow, Crimsonhexagon, and Sysomos.41

Its data reseller partner DataSift has also announced its intention to enter the Financial Services

market.42 In April 2012, Twitter announced a partnership with Dataminr, PeopleBrowsr’s only

competitor in the Financial Data Services market, under which Dataminr would receive the full

Firehose.43 In September, Twitter announced its desire to provide analytics related to Influence

Measurement.44

43. The same month Twitter announced that it was developing its own big data

analytical capabilities, it began to limit competitors’ access to the Firehose. Though the Firehose

was originally intended for broad use, Twitter began to transition potential data analytics

competitors from the Firehose to its data resale partners DataSift and Gnip,45 who provide only a

fraction of the data available through the Firehose. Twitter announced that as, Twitter data

resellers, DataSift and Gnip would be the new, transparent standard for Twitter data access. In

fact, Twitter continues to provide direct Firehose access to select or strategic partners over which

it exerts substantial control.46

44. Twitter now intends to force PeopleBrowsr to access Twitter data via either Gnip

or DataSift, thereby severely limiting PeopleBrowsr’s data access and eliminating its ability to

compete with Twitter in the Twitter Big Data Analytics market.

41 Appx. 3, Ex. 46, “New Twitter Ecosystem Poster Child SocialFlow Secures The Firehose And

$7 Million Round,” Techcrunch.com, 4/7/11; Ex. 47, “Twitter Names Mass Relevance, Crimson Hexagon As Curation Partners,” Techcrunch.com, 11/7/11; Ex. 48, “Social Media Monitoring made easy with Sysomos,” Sysomos.com.

42 Appx. 3, Ex. 49, “Datasift launches real-time social analytics service for the financial sector,” thenextweb.com, 9/11/12.

43 Appx. 3, Ex. 50, “Dataminr gains access to full Twitter Firehose,” thenextweb.com, 4/19/12. 44 Appx. 3, Ex., 51, “Twitter Cofounder Suggests A Replacement For The Follower Count,”

Buzzfeed, 9/27/12 (discussing Twitter’s thoughts on Influence Measurement); Ex. 52, “Twitter founder says influence is in retweets. NFL player shows why,” CNET News, 11/16/12 (same); Ex. 53, “New tailored suggestions for you to follow on Twitter,” Twitter blog post, 5/17/12 (describing enhancements to Twitter’s identifying influential people in areas of interest).

45 “A Conversation with Evan Williams” (available at http://www.youtube.com/watch?v=p5jXcgZnEa0) (announcing intention to transition data analytics providers from Firehose to reseller partners).

46 See n. 41, supra.


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I. Twitter’s Threatened Action Will Interfere with PeopleBrowsr’s Contracts and Prospective Business Relations.

45. I am informed that the elements of a claim for intentional interference with

contract are: “(1) the existence of a valid contract between the plaintiff and a third party; (2) the

defendant’s knowledge of that contract; (3) the defendant’s intentional acts designed to induce a

breach or disruption of the contractual relationship; (4) actual breach or disruption of the

contractual relationship; and (5) resulting damage.” Reeves v. Hanlon, 33 Cal.4th 1140, 1148

(2004).

46. Twitter’s threatened action will interfere with PeopleBrowsr’s contractual and

prospective business relations. Twitter Big Data Analytics customers desire the sophisticated

analytics that can only be derived from the very highest volumes of Twitter data. Services from

“small data analytics” companies are not acceptable. Based on my conversations with

PeopleBrowsr management, their customers have contracted for services that PeopleBrowsr can

only provide with the Firehose. PeopleBrowsr’s customers expect analytics based on Twitter data

– not data from other sites – and they expect the types of sophisticated analytics only possible

with the highest levels of Twitter data access. Without Firehose access, PeopleBrowsr will not be

able to meet its contractual obligations. Nor will it be able to enter into new business

relationships with potential customers who seek the types of sophisticated analytics that can only

be provided with Firehose access.

47. Any loss of access to the Firehose will have devastating impacts because

PeopleBrowsr’s business is built on long-term partnerships with its clients, on the basis of which

PeopleBrowsr has made substantial investments. By disabling PeopleBrowsr from delivering on

its existing contracts, Twitter would cause PeopleBrowsr to lose both those customer

relationships and PeopleBrowsr’s investments in technology to fulfill its obligations to those

customers. Further, Twitter’s termination of Firehose access would undermine PeopleBrowsr’s

projections and roadmaps, which are key to its ability to obtain capital, find new clients, and

enjoy continued success.


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48. This interference with PeopleBrowsr’s sources of revenue will inflict severe and

cause irreparable economic injury to PeopleBrowsr. Even if PeopleBrowsr is able to continue in

some form without Firehose access, it will operate at a severe competitive disadvantage to

Twitter’s partners, who enjoy full Twitter data access. History has demonstrated that when

Twitter implements a strategy to restrict markets using its data, it has been successful in

undermining competitors.

J. Terminating PeopleBrowsr’s Firehose Access Also Threatens Competition.

49. I am informed that a direct competitor violates the UCL when it engages in a

business practice that “threatens an incipient violation of an antitrust law, or violates the policy or

spirit of one of those laws because its effects are comparable to or the same as a violation of the

law, or otherwise significantly threatens or harms competition.” Cel-Tech Communications, Inc.

v. Los Angeles Cellular Telephone Co., 20 Cal.4th 163, 187 (1999).

50. In addition to causing irreparable harm to PeopleBrowsr, Twitter’s threatened

termination of Firehose access would cause substantial harm to competition in the market for

Twitter Big Data Analytics. As described above, PeopleBrowsr is the sole provider or one of two

providers of three important sophisticated data analytics services. It is one of two viable

providers of Influence Measurement services; it is the sole provider of Action Analytics for

Government and Enterprise; and currently, PeopleBrowsr and Dataminr, a close Twitter partner

with Firehose access, are the only providers of Twitter Big Data Analytics for Financial Services.

(DataSift, another Twitter Firehose partner, also intends to offer services in the Financial Data

Services market). If PeopleBrowsr can no longer effectively provide these services in the Twitter

Big Data Analytics markets, customers will face fewer competitive choices, and Twitter will soon

dominate the market for these services, enabling Twitter to increase prices, limit options available

to customers, and restrict innovation in the Twitter platform.

K. There Is No Valid Business Justification for Cutting Off Firehose Access.

51. There is no legitimate business purpose for Twitter’s threatened move. In contrast

to PeopleBrowsr, who faces devastating injury to its business if Firehose access is terminated,

Twitter stands to benefit if it continues to provide Firehose access. By terminating its agreement


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with PeopleBrowsr, Twitter will forgo more than $1 million per year it receives for

PeopleBrowsr’s Firehose access. It is likely that Twitter profits from this arrangement, since in

providing the Firehose, Twitter simply transmits data it already owns and provides to others.

There likely are not substantial costs associated with this transfer. The Twitter platform also

benefits from having PeopleBrowsr develop new uses for Twitter’s data, increasing its usefulness

in the marketplace.

52. The business rationale that Twitter offered for its takeover of consumer markets–

the need to provide its users a “uniform Twitter experience”–does not apply to PeopleBrowsr’s

market. PeopleBrowsr does not provide or otherwise affect users’ core Twitter experience.

Consumers do not use PeopleBrowsr to post or read tweets. Rather, PeopleBrowsr mines the data

available through the Firehose to provide new insights to third parties. Twitter does not need to

control PeopleBrowsr’s market to ensure the quality of its product or protect its ability to sell

advertising in competition with other services such as Google or Facebook.

53. In addition, while Twitter might have some business rationale for refusing to

provide Firehose access to new Twitter data analytics companies whose technology is untested or

with whom Twitter has no relationship, such rationales have no application to PeopleBrowsr.

PeopleBrowsr and Twitter have enjoyed a good and mutually beneficial working relationship for

over four years. PeopleBrowsr has not breached the terms of its agreement with Twitter.

PeopleBrowsr continues to innovate in the Twitter Big Data Analytics market, providing new

uses for Twitter data and expanding the market for that data – all of which benefits Twitter.

//

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54. Because it is against Twitter’s short-term financial interest to terminate

PeopleBrowsr’s Firehose access, and that termination serves no valid business rationale, it

appears that Twitter desires to terminate PeopleBrowsr’s access in order to restrain competition in

PeopleBrowsr’s markets and thereby extract supracompetitive revenues from those markets. If

allowed to terminate Firehose access, Twitter will cause irreparable harm to PeopleBrowsr, harm

to competition in the market for Twitter Big Data Analytics, and harm to customers in that

market.

Under penalty of perjury under the laws of the State of California, I declare that the

foregoing is true and correct. Executed on _______________________ in Oakland, California.

_______________________________________ Robert G. Harris

Documents

Expert Witness Harris Declaration PB v TW Restraining Order. 28 Nov 12