4839-3320-3996.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

KICKSTARTER, INC.,

Plaintiff,

v.

FAN FUNDED, LLC and ARTISTSHARE,
INC.,

Defendants.






Civil Action No. 11-cv-6909 (KPF)

DECLARATION OF ROBERT J. SILVERMAN

I Robert J. Silverman declare as follows:
1. I am an attorney with the firm of Foley & Lardner LLP (Foley & Lardner) and I
am a counsel of record representing Plaintiff Kickstarter, Inc. (Kickstarter) in the above-
captioned lawsuit against Defendants ArtistShare, Inc. and Fan Funded, LLC (collectively,
ArtistShare).
2. This declaration refers to certain documents by the production numbers assigned
to them and/or by the Joint Appendix exhibit numbers (JAX__) that the parties have used in
summary judgment briefing.
3. On or about February 6, 2014, I spoke on the telephone with Robert Thompson,
an individual who had testified by deposition in this lawsuit and who is identified, in U.S.
Provisional Application No. 60/394,974 the priority document for U.S. Patent No. 7,885,887
(the 887 Patent) as one of The Founders of ArtistShare. (JAX8, ART-011494).
4. I told Mr. Thompson that I am one of the attorneys representing Kickstarter and
that, if he is represented by counsel, I would like to speak with his attorney. Mr. Thompson said
that he was not being represented. I explained that I was contacting him to find out whether he
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would be willing to sell his rights in the 887 Patent and I asked Mr. Thompson whether he
would agree to convey (to Kickstarter) whatever patent rights he owned in the 887 Patent, in
return for a payment of three thousand dollars ($3,000).
5. Mr. Thompson confirmed his deposition testimony saying that he was the
source of some of the ideas that appeared in the claims of the 887 Patent. Mr. Thompson said
that he would be willing to sell whatever rights he owned in the patent, although he feared that
there might be reprisals (even if unjustified), from Mr. Camelio and ArtistShare, if he were to
enter an agreement with Kickstarter. Mr. Thompson asked me whether, as part of an agreement,
Kickstarter would agree to reimburse him for any legal fees incurred in addressing such matters.
Mr. Thompson said that he was willing to consider such an agreement and agreed to have a
follow-up discussion.
6. I spoke with Mr. Thompson again by telephone on or about May 1, 2014. During
that discussion, Mr. Thompson explained that he would be in Boston (where my office is
located) the following week and he proposed that we meet in person. He asked me to send him
an email with directions to my office, which I did (JAX91, KS0013059). Mr. Thompson
responded by email later that same day with the message: Bob, great ... I'll see you then.
Looking forward to it. best, Robert Thompson (JAX91, KS0013060).
7. On May 9, 2014, Mr. Thompson came to Foley & Lardners office in Boston,
where he met with me, as well as two other attorneys in my firm (also representing Kickstarter in
this lawsuit Matthew Lowrie and Matthew Ambros).
8. During the meeting, Mr. Thompson said that he did not assign any monetary
value to his rights in the 887 Patent, but said that he would be willing to convey such rights to
Kickstarter in exchange for a business opportunity with Kickstarter including having dinner
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with Kickstarters founders.
9. I attempted to call Mr. Thompson by telephone on or about June 25, 2002. There
was no answer on his phone and I left a voicemail message. He did not call me back, but sent
me an email message, on June 25, 2014, that reads (JAX91, KS0013062):
Dear Bob,

I received your voice mail. After careful consideration, and a review of the matter (I
finally did engage an attorney) I don't consider myself to be an inventor with respect
to the patent. To the extent that a court would find me to be an inventor on the patent
(I can't honestly imagine how), I would assign those rights to artistshare, gratis. It's
not an issue of money or ownership, but of fairness to the artists that are part of the
artistshare community (esp. Maria Schneider, with whom I worked and produced one
of her albums). I do take a great amount of pride in being a founding business partner
in helping Brian Camelio launch his dream for artistshare, but the ideas represented in
the patent were Brian's, not mine...although I appreciate the legal prowess you guys
possess in trying to find a nexus between myself and the patent filing!

I'm going to request that both sides cease contacting me. My involvement in
artistshare was brief, and a very long time ago. I do hope that Kickstarter and
Artistshare can resolve this matter...they're both remarkable companies that allow
artists to create new work, in an age where artists are struggling to make ends meet.

All the best,

Robert Thompson

This was the first time that Mr. Thompson told me that he would not be willing to convey
whatever rights he had in the 887 Patent to Kickstarter. It was also the first time he indicated
that he had been in contact with counsel for ArtistShare.
10. Several weeks later, on or about July 18, 2014, ArtistShare served papers in
support of its Cross Motion for Summary Judgment. Included among those papers was the
Declaration of Robert Thompson dated June 21, 2014, which had not been provided to me or
Kickstarters counsel previously, even though it seemed that nearly a month had passed since it
was signed. It appeared that, Mr. Thompson had signed his Declaration even before he had sent
me the June 25, 2014 email (mentioned above), although that email said nothing about his
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Declaration.
11. After receiving ArtistShare's July 18, 2014 summary judgment Opposition, and
learning of Mr. Thompson's Declaration, I contacted ArtistShare's counsel and asked whether
ArtistShare would agree to produce its communications (and those of its principal, Brian
Camelia) with Mr. Thompson. The parties agreed to exchange all such communications by
August 1, 2014. However, ArtistShare produced no communications between Mr. Camelia (or
ArtistShare) and Mr. Thompson - but only communications between Mr. Thompson and
ArtistShare's outside counsel, who wrote Mr. Thompson's Declaration and asked him to sign it
(JAX90, ART-18982-18988).
12. ArtistShare's summary judgment Opposition brief (dated July 18, 2014) includes
the following statement (at p. 5) (emphasis omitted):
According to Mr. Thompson, he has explained to Kickstarter's attorneys "on more than
one occasion" that "I do not believe I am in inventor and have never made that claim. " Id.
Mr. Thompson repeatedly refused to sell any interest that Kickstarter alleges he has in the
'887 Patent. Id. Kickstarter was well aware of these dispositive facts when it filed its
motion for summary judgment, yet failed to disclose them to the Court or ArtistShare.
Leaving aside the incorrect and argumentative remark about being "dispositive," there is no truth
whatsoever in ArtistShare's allegations that "Kickstarter was well aware of [the statements in
Mr. Thompson's Declaration] when it filed its motion for summary judgment [dated June 16,
2014], yet failed to disclose them to the Court or ArtistShare."
I declare under the penalty of perjury under the laws of the United States that the
foregoing is true and correct to the best of my knowledge.
Dated: August 16, 2014
Robert J. Silverman
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