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CROWELL & MORING LLP Michael Kahn (CSB No. 57432, mkahn@crowell.com) Gregory D. Call (CSB No. 120483, gcall@crowell.com) Beatrice B. Nguyen (CSB No. 172961, bbnguyen@crowell.com) 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 A. B. C. D. E. F. QUALIFICATIONS ........................................................................................................... 3 BACKGROUND AND MATERIALS REVIEWED ......................................................... 4 APPLICABLE LEGAL STANDARD................................................................................ 4 TWITTER HAS A MONOPOLY IN THE MARKET FOR ITS UNIQUE DATA .......... 5 TWITTERS PROMISED OPEN ECOSYSTEM ENCOURAGED THIRD PARTIES TO BUILD BUSINESSES THAT DEPENDED ON TWITTER DATA ......... 6 PEOPLEBROWSR PARTICIPATES IN A TWITTER BIG DATA ANALYTICS MARKET THAT DEPENDS ON ACCESS TO EXTREMELY HIGH VOLUMES OF TWITTER DATA.......................................................................... 9 1. Twitters Open Ecosystem Created Two Distinct Types of Downstream Markets.................................................................................................................... 9 2. PeopleBrowsrs Twitter Big Data Analytics Market Is a Distinct Relevant Market ................................................................................................................... 11 TWITTERS MONOPOLY OVER ITS UNIQUE DATA GIVES IT SUBSTANTIAL MARKET POWER IN THE TWITTER BIG DATA ANALYTICS MARKET .................................................................................................. 13 TWITTER IS ENGAGED IN A PATTERN OF CONDUCT DESIGNED TO RESTRAIN COMPETITION IN PEOPLEBROWSRS 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 PeopleBrowsrs Market ................................................................................................................... 17 TWITTERS THREATENED ACTION WILL INTERFERE WITH PEOPLEBROWSRS CONTRACTS AND PROSPECTIVE BUSINESS RELATIONS .................................................................................................................... 19 TERMINATING PEOPLEBROWSRS FIREHOSE ACCESS ALSO THREATENS COMPETITION ....................................................................................... 20 THERE IS NO VALID BUSINESS JUSTIFICATION FOR CUTTING OFF FIREHOSE ACCESS ....................................................................................................... 20

G. H.

I. J. K.

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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. Twitters 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 Apples 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 peoples 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
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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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. Twitters 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 PeopleBrowsrs 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 PeopleBrowsrs 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 PeopleBrowsrs 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 PeopleBrowsrs contracts and prospective business relations. PeopleBrowsrs customers expect to receive the types of Twitter Big Data Analytics services that-2- only be provided with the Firehose. Without can
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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 Twitters terminating PeopleBrowsrs Firehose access. By terminating Firehose access, Twitter will forego payments that exceed $1 million annually and lose the benefit of PeopleBrowsrs 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. -3DECL. OF ROBERT HARRIS IN SUPP. OF APPLICATION FOR TRO AND OSC RE PRELIM. INJUNCTION; CASE NO.

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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 plaintiffs likelihood of prevailing on the merits. Butt v. State of California, 4 Cal. 4th 668, 678 (1992). [T]he greater the plaintiffs 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 Twitters threatened action of shutting off PeopleBrowsrs

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 PeopleBrowsrs ability to carry out its existing contracts and to consummate prospective business relationships. Further, Twitters 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 users 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 Twitters market have closed down or changed their product offerings.6 Twitter recognizes its data is unique. Otherwise, it would not cut off
Appx. 3, Ex. 3, Twitter Networks are Different than Social Networks, Both Sides of the Table, 3/15/10; Ex. 4, You Dont 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. See Appx. 3, Ex. 4, You Dont 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 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. Appx. 3, Ex. 4, You Dont 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 5 4 3 2

Appx. 3, Ex. 7, Where is the Twitter Competition? Socialmediatoday.com, 3/23/11. -5-

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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 Twitters market are substantial. Twitters

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. Twitters 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 economistsindeed, it is a core principle taught in schools of businessthat 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 -6DECL. OF ROBERT HARRIS IN SUPP. OF APPLICATION FOR TRO AND OSC RE PRELIM. INJUNCTION; CASE NO.

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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 Apples 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 Apples 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

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. -7DECL. OF ROBERT HARRIS IN SUPP. OF APPLICATION FOR TRO AND OSC RE PRELIM. INJUNCTION; CASE NO.

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now take for granted, such as being able to use Twitter on mobile devices.8 Just as Apples 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 opinionand by Twitters own acknowledgementa substantial portion of Twitters 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, Twitters own conduct indicates that it believed it would benefit greatly from attracting the innovation, creativity and resources of thirdparty developers, and thus repeatedly and publicly offered its APIs 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 Twitters 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 termsi.e. close the platform. 19. Since its founding, Twitter has made many public statements communicating

indeed, proselytizingits 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. 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 9

E.g., Appx. 3, Ex. 12, Enabling a Rush of Innovation, Twitter blog post, 3/1/10. -8-

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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 Twitters interference.11 F. PeopleBrowsr Participates in a Twitter Big Data Analytics Market that Depends on Access to Extremely High Volumes of Twitter Data. 1. 20. Twitters Open Ecosystem Created Two Distinct Types of Downstream Markets. 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 PeopleBrowsrs that do not replicate the basic Twitter consumer experience, but instead analyze Twitters 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
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 [Twitters] DNA.); Ex. 15, Whats on Deck for Twitters Platform, Gigaom.com, 7/2/10 (the open ecosystem is not altruistic. We depend on the ecosystem for our success.). Due to enormous advances in the data processing capabilities, big data has become an important concept and growing source of innovation.
13 12 11

http://searchbusinessanalytics.techtarget.com/definition/big-data-analytics -9-

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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 Twitters 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 Twitters 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

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. -10DECL. OF ROBERT HARRIS IN SUPP. OF APPLICATION FOR TRO AND OSC RE PRELIM. INJUNCTION; CASE NO.

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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. 25. PeopleBrowsrs Twitter Big Data Analytics Market Is a Distinct Relevant Market. 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 toand do not usethe 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 17 18 19

See, e.g., http://webstrategist.it/social-media-analytics/ (listing companies). See, e.g., http://brandchats.com/en/what-it-is; http://monitter.com. See, e.g., http://www.tweetfeel.com/#obama.

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 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. -12DECL. OF ROBERT HARRIS IN SUPP. OF APPLICATION FOR TRO AND OSC RE PRELIM. INJUNCTION; CASE NO.
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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 PeopleBrowsrs 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. Twitters Monopoly over Its Unique Data Gives It Substantial Market Power in the Twitter Big Data Analytics Market. 30. Twitters 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 22 23

See kred.com. See https://developer.peoplebrowsr.com/action.

Appx. 3, Ex. 19, Connect to Our Collective Consciousness with PeopleBrowsr, Programmableweb.com, 5/30/11. 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. Appx. 3, Ex. 21, Datasift launches real-time social analytics service for the financial sector, thenextweb.com, 9/11/12. -13DECL. OF ROBERT HARRIS IN SUPP. OF APPLICATION FOR TRO AND OSC RE PRELIM. INJUNCTION; CASE NO.
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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. PeopleBrowsrs 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 PeopleBrowsrs 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 PeopleBrowsrs Twitter Big Data Analytics Market. 33. Twitter is currently engaged in a pattern of conduct in PeopleBrowsrs 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 PeopleBrowsrs Twitter Big Data Analytics services. By Twitter eliminating PeopleBrowsrs access to the Twitter Firehose, Twitter seeks to ensure that Twitter or its hand-selected partners dominate that market. 1. 34. Twitter Used Its Control Over Twitter Data to Control Other Downstream Twitter Applications Markets. Twitters threatened action to cut off PeopleBrowsrs access to the Twitter

Firehose follows a pattern of conduct by which Twitter has substantially reduced competition and -14disadvantaged 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 Twitters 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 Twitters 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

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. 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. Appx. 3, Ex. 8, Twitter blog post, The Evolving Ecosystem, 9/2/10; Ex. 23, Twitter for iPhone, Twitter blog post, 5/19/10. 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. 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. -15DECL. OF ROBERT HARRIS IN SUPP. OF APPLICATION FOR TRO AND OSC RE PRELIM. INJUNCTION; CASE NO.
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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. Twitters Announced Takeover of Consumer Markets. Twitters efforts

allowed it to dominate downstream consumer Twitter applications markets. On March 11, 2011, Twitters 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 Twitters application, and the need to provide a more consistent user experience, Sarver announced that
Appx. 3, Ex. 33, Twitter Acquires Atebits, Maker of Tweetie, New York Times, 04/2010; Ex. 34, Twitter Acquires TweetDeck, Mashable, 05/2011.
32 33 31

See n. 29, supra.

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 35

Appx. 3, Ex. 36, Ryan Sarver, Consistency and Ecosystem Opportunities, 3/11/11. 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. 42. Twitter Is Now Taking Action to Restrain Competition in PeopleBrowsrs Market. This same pattern of Twitter conducttaking control of downstream Twitter

consumer applications marketsis 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
Id.; see also Appx. 3, Ex. 37, Twitter Tells Developers to Stop Building Twitter Clients, ReadWrite, 3/11/11.
37 38 36

Appx. 3, Ex. 38, Why Are People So Upset With Twitter, NYTimes.com, 8/24/12.

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 TwitterOwned 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 40

Appx. 3, Ex. 41, Introducing Twitter Web Analytics, Twitter blog post, 9/13/11.

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 -17Discovery 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, PeopleBrowsrs 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 PeopleBrowsrs data access and eliminating its ability to compete with Twitter in the Twitter Big Data Analytics market.

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. Appx. 3, Ex. 49, Datasift launches real-time social analytics service for the financial sector, thenextweb.com, 9/11/12.
43 44 42

41

Appx. 3, Ex. 50, Dataminr gains access to full Twitter Firehose, thenextweb.com, 4/19/12.

Appx. 3, Ex., 51, Twitter Cofounder Suggests A Replacement For The Follower Count, Buzzfeed, 9/27/12 (discussing Twitters 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 Twitters identifying influential people in areas of interest). 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 45

See n. 41, supra.

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I.

Twitters Threatened Action Will Interfere with PeopleBrowsrs 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 defendants knowledge of that contract; (3) the defendants 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. Twitters threatened action will interfere with PeopleBrowsrs 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. PeopleBrowsrs 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

PeopleBrowsrs 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 PeopleBrowsrs investments in technology to fulfill its obligations to those customers. Further, Twitters termination of Firehose access would undermine PeopleBrowsrs projections and roadmaps, which are key to its ability to obtain capital, find new clients, and enjoy continued success. -19DECL. OF ROBERT HARRIS IN SUPP. OF APPLICATION FOR TRO AND OSC RE PRELIM. INJUNCTION; CASE NO.

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48.

This interference with PeopleBrowsrs 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 Twitters 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 PeopleBrowsrs 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, Twitters 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 Twitters threatened move. In contrast

to PeopleBrowsr, who faces devastating injury to its business if Firehose access is terminated, -20Twitter 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 PeopleBrowsrs 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 Twitters 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 experiencedoes not apply to PeopleBrowsrs 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 PeopleBrowsrs 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 Twitters short-term financial interest to terminate

PeopleBrowsrs Firehose access, and that termination serves no valid business rationale, it appears that Twitter desires to terminate PeopleBrowsrs access in order to restrain competition in PeopleBrowsrs 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

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