Civil Case (Tel Aviv) 17456-12-18 Yonit Werber v. Shmuel Froimovich - part 6

It was claimed that Froimovich breached the duty of disclosure towards Werber by concealing that at the relevant times there was no system at all and "at least that the system is not close to satisfying the defendants' obligations as to its nature" (paragraph 112 of the summaries).

110. Froimovich's core argument, as indicated by their summary, is that Werber's entry as a partner in the venture stemmed from the innovative idea that underpinned it. According to them, "the system is not the essential thing, but the 'idea.'" The system for implementing the idea is simple, with the main asset being the content of the courses and the right to broadcast them. Werber, who are experienced and educated businessmen, were fascinated by the idea and business potential, and after deliberations, accompanied by consultants and legal advice, they decided to invest in the venture. However, at the end of the day, "Werber abandoned the ship because the venture (even before he was given a real chance) did not succeed and did not meet expectations. This is a mistake in the feasibility of the transaction" (paragraph 42 of the summaries). According to Froimovich, the system was reasonable, and in any case it was possible to repair the system that needed to be repaired and even re-install the system at a low cost. Werber's conduct, it was claimed, caused various damages to Froimovich - for which the counterclaim was filed.

The factual basis: the picture of the evidence, the data, and the factual conclusions

Discussion of Werber's claims regarding deficiencies in the system and its quality

111. Werber's main argument is that the technical system developed for the purpose of realizing the business venture was fundamentally flawed and that it was developed "casually" with the absence of many functions that were supposed to be part of it and failures in what it did. This, they claimed, was contrary to what was presented to Lorber.
112. As stated above, and Werber were required to detail and clarify in the table their position on these matters, and with regard to the claims detailed in the table, the expert prepared the opinion. Below I will discuss Werber's arguments in their case, in their proper order.

Werber's Argument Regarding the Calculation of Marketing Fees for Lecturers and the Automation of Fee Payment

113. There is no dispute that the system was required to calculate the fees for lecturers and marketers, in accordance with the business model (described above in the factual background). Throughout the proceeding, Werber claimed a failure in the way the system calculated the fees. The expert's examination revealed that the system correctly calculated the fees, and in the pre-trial summary of April 2, 2024, as well as in the Werber summaries, it was claimed that the failure in this context was not the method of calculating the fees, but rather that the system "did not know" how to actually distribute the fees. In other words, the payment of the fees and the registration in the system regarding the execution of the payments (after they have been transferred) are not done automatically, but involve manual activity. In this context, Werber claimed that they were presented with a conservative target of 100,000 registrants per year and that it was illogical for the payment to be done manually. Only in retrospect did they discover, according to them, that the payment of fees to lecturers was planned to be made manually (paragraph 106.6 of Yonit's affidavit).
114. As can be seen from the evidence, the system saves the commission data due to the marketers (and lecturers) in a "waiting for payment" status, but the stage of actually making a payment to the marketer's account does not exist in the system. The transfer of the payment according to the calculation made in the system must be done manually outside the system, and then a manual marking in the system of the status of the payment to "paid" is required (pp. 30-31 in response to clarification questions; p. 93 of the minutes of January 2, 2025, paras. 2-29). There is no dispute about this. The defendants' expert wrote that it was intended for additional quality control purposes (paragraph 2 of the opinion) and in the cross-examination Shmulik testified that it was done for security reasons "so that no hacker would come" (p. 195, 11-13).
115. It is possible to accept Werber's argument that their understanding was that the payment of the fees would be made by the system automatically in view of the forecast presented regarding the scope of the activity. Support for their testimony that in conversations with Shmulik, it was presented that this is a system that operates automatically, which reinforces this understanding, can also be found in a conversation of April 25, 2018, in which Shmulik refers to the fact that the venture "does not rely on our work beyond the establishment of... We don't provide service, but technology does it..." (p. 58 of the transcript of paras. 8-12). However, Werber did not point to any concrete representation in this matter prior to entering into the agreements; It was not clarified what the operational significance of making payments manually is in terms of the resources required for this purpose; Nor can it be ruled out, at least at the stage when the venture is in its early stages, the logic of Froimovich's position that for reasons of caution and fear of security breaches, the payment was made manually. It is also not clear what the cost of development will be in order for the payment to be made automatically by the system. This is a mistake by Werber, but there is no evidence that Froimovich knew about it, nor can it be determined, in the circumstances of the case, that he should have known about it or that he misled Werber in this matter.

Werber's Claim Regarding "Distribution of Leads" to Lecturers

116. The parties refer to "Lead" as a subscriber who has registered on the website. According to the business model, a lead that comes through a lecturer or marketer "enters" under its marketing tree, but not every "lead" comes through a lecturer or marketer. There are subscribers who come from the system's marketing moves. According to Werber, the system was supposed to associate these "leads" with the lecturers' marketing tree (even though they did not come through them) according to a model of fair distribution (known as Round Rubin) which gives weight in the distribution to the number of courses each lecturer has in the venture (so that the more courses the lecturer has, the higher his share in the distribution ratio).
117. In this context, Werber referred to a webinar dated April 12, 2018 that Shmulik gave to the lecturers, which indicates that this was discussed, and the lecturers were promised to distribute those leads that come from the marketing of the system (pp. 8-10 of the webinar transcript). They also referred to the Lecturers' Regulations, which stipulate in section 5 three remuneration tracks for lecturers, one of which is "Compensation for new users brought in by the Company - in addition to the terms of the Affiliate Marketing Program, each lecturer will also receive compensation for customers who have registered on the site not through the Affiliate Marketing Program, but through marketing and promotion of the Site by the Company and/or anyone on its behalf. The calculation of the remuneration will be carried out in proportion to the number of courses taken by the lecturer on the website [emphasis in the original underline - L. C]" (Appendix 11 to the Werber evidence at p. 296).
118. In their affidavits, Werber testified that the system does not have the ability to distribute unaffiliated "leads" among the lecturers (for example, paragraph 106.6 of Yonit's affidavit). In their summary, based on the expert's opinion, they claimed that the lead distribution mechanism was not available in real time, but only from September 2018, and that this capability operated for the purposes of a one-day trial only, and that there was a material malfunction in the mechanism that was implemented because the distribution rate was determined manually and not automatically, in a way that may cause errors.
119. I will note, with reference to Werber's claim, that the webinar did not explicitly say that the key to the distribution of leads as a result of the system's marketing activities will be determined automatically, but Werber's claim that this is the logical and reasonable understanding is convincing, in the absence of a satisfactory explanation by Froimovich as to the question of what logic exists in having the distribution done manually, which may lead to errors and damage the credibility of the system.
120. According to the expert's findings, as of September 21, 2018, there was supposed to be the ability to automatically distribute leads to lecturers in the system, but this capability did not operate except that day (September 21, 2018) and for experimental purposes (p. 8 of the opinion). The expert noted, however, that the lead distribution mechanism that was developed was defined in such a way that the distribution is indeed done automatically, but the distribution key that determines the ratio of the distribution of leads among the lecturers is defined manually and not according to an automatic variable, and in a way that harms the credibility and fairness of the mechanism (p. 8 of the opinion, p. 75 of the minutes of January 2, 2025, s. 13 to p. 76, s. 7). The expert also found a failure in the fact that the mechanism that was developed automatically grants each new lecturer a distribution ration even if he did not upload a course to the system, so that the distribution mechanism was built incorrectly (p. 10 in response to the clarification questions).
121. In a document in response to questions submitted by Shmulik Lorber in July 2018 as part of contacts between the parties, Werber asked (Appendix 45 to Werber's evidence, pp. 527-528): "How is the issue of distributing leads to lecturers implemented? Manual or automatic, and what tests were done to make sure it was working properly?" Shmulik replied, "It's manual, we haven't transferred leads to the lecturers yet (you can do it at any time we choose, they don't belong to anyone in the tree). The programming did tests for the mechanism. We didn't decide whether to document each such lead to whom it went and when or not. On the one hand, it's good to document. On the other hand, it's not scalable and takes time for each lead." The correspondence that was attached between Shmulik and the programmer Michal Ben Hamo (hereinafter - "Michal") also indicates that the lead distribution component did not exist in the system at the time of its launch as an existing and working component, but rather in development processes (pp. 469-472 of the Werber evidence).
122. I will also note that Froimovich did not present any evidence that the lead distribution component was implemented in the system in practice, and in this context they should be credited with the fact that they did not summon the planner who dealt with this, Michal, to testify.
123. The conclusion is that in this regard, Werber's position should be accepted in the sense that at the time of the launch of the venture the system did not include a component of distributing leads (which did not come through lecturers or marketers) among the lecturers, and that even later after this component was added, it was malfunctioning and was not implemented in practice. It is also possible to accept their position that their (reasonable) understanding was that this mechanism would exist at the time of the launch of the system and that the distribution key would be automatic (based on their testimony, the webinar, the bylaws and the conversations with Shmulik, including the conversation of April 25, 2018). This is, therefore, a mistake that stemmed from Froimovich's misleading representations, and at least a mistake that Froimovich knew or should have known about.

Werber's Claim Regarding Compensation for Lecturers According to the "Popularity Index"

124. According to Werber, the system was supposed to automatically calculate the popularity of the courses and reward, accordingly, lecturers with popular courses. However, it turned out that there is no such index (for example, section 106.5 of Yonit's affidavit).
125. In this context, Werber also referred to the Lecturers' Regulations, which stipulate in section 5 three remuneration tracks for lecturers, one of which is "Remuneration for popularity - the company wants to reward Marzia and therefore will allocate part of its profits and distribute it among the lecturers according to the popularity of the courses. Each course will entitle its owner a share of the profits according to the popularity index that will be measured by the company. The method of measurement and the percentages distributed will be updated from time to time [emphasis in the original underline - L. C]" (paragraph 5 of Appendix 11 to the Werber Evidence, p. 296). Werber also referred to a webinar on April 12, 2018, in which Shmulik told the lecturers that a certain percentage of the company's profits would be distributed to them based on the popularity of the courses (pp. 24-25 of the transcript).
126. According to Froimovich, the system uses Google Analytics software to calculate the popularity index. Froimovich also argues that Werber's claim that the system itself should have known how to take the same action is meaningless.
127. In July 2018, when the parties were in contact, in response to a questionnaire given by Werber, what is the popularity index of the courses? If it is counted automatically or manually? If there is any follow-up and documentation about this and what the data has accumulated, Shmulik replied (Appendix 45 to the Werber Evidence at p. 527): "At the moment it is done manually. We go through the visits to the site's pages with the help of analytics and check the visits to the various course pages... In practice, I sort the pages by entries and associate them with the courses, and from that I get to the most popular course (usually announcing the top 3). It takes a long time and is not really relevant at the moment except for updates until we decide when and how much we will transfer for popularity..."
128. There is no dispute about the expert's findings, according to which the system does not know how to rank, calculate and reward courses according to popularity. The expert explains in the opinion (p. 10) that the relationship between Google Analytics and the system is one-sided in the sense that Google Analytics was given access to document and save the activity of users in the system, but the system does not have access to Google Analytics' analysis of the data. Such a mechanism could have been developed that connects to Google Analytics and calculates rankings based on popularity measured in Google Analytics, but it has not been developed. This explanation of the expert is consistent with what Shmulik said in his response to the questionnaire. In response to the clarification questions, the expert explained that if Google Analytics defines what is considered popular (which is a business definition) - it is possible to use this tool to rank the popularity of the courses (pp. 13-14 for answers to the clarification questions). Shmulik noted in the supplementary affidavit and in the cross-examination that the method of measuring popularity had not been definitively defined (paragraph 123 of the supplementary affidavit, pp. 209-210 of the transcript) and in a webinar for lecturers on June 22, 2018, he said that "the popularity index is being accurately measured," with the explanation reflecting a process of thinking about how popularity is measured (Exhibit 44 of the Werber evidence, at pp. 6-7 of the transcript).
129. The impression from the evidence material, including the Lecturers' Regulations and the Webinar, as well as the lack of detail in Werber's affidavits, is that with regard to the remuneration of lecturers according to the Popularity Index, there has been no discussion in detail about how this mechanism will work (how will the measurement be made? What is the degree of popularity that will be rewarded? When will such a reward be given? and how will it be calculated?). Therefore, it is not possible to accept Werber's position regarding Froimovich's representation that this function will be fully embedded in the software at launch.

Excess remuneration for lecturers

130. According to Werber, the system was supposed to include a component that adds a fee to which the lecturers are entitled to 5% as "excess remuneration." There is no dispute about the entitlement of lecturers to this remuneration, as also appears in the Lecturers' Regulations (Appendix 11 to the Werber Evidence, p. 296). There is also no dispute that the computer component of the "excess remuneration" for lecturers was not developed in the system, when according to Froimovich it was an add-on that was intended to be calculated when paying lecturers (outside the system).
131. As emerges from Yonit's investigation, there was no explicit statement that the excess remuneration would be calculated automatically in the system, but this was a matter that was clear from the concept of a "technological system" (p. 104, paras. 8-9).
132. In their summaries, Froimovich points out that in any case, even if a component should have been installed in the system that automatically calculates the excess remuneration, this is a simple action that requires two days of work, as the expert testified in the hearing (pp. 80, 8-22).
133. In this regard, Werber's understanding that this addition will be made automatically by the system from the date of launch is expected to be logical and necessary, from conversations with Shmulik regarding automation (such as the conversation recorded on April 25, 2018), as well as in view of the Lecturers' Regulations. Accordingly, it can be classified as a mistake that Froimovich should have known about. However, this is a simple and negligible development in terms of the resources needed to add it, and this additional payment manually (when the payments are made manually, as noted) is expected to be very simple.

Werber's Claim Regarding the Ownership of One Course by Several Lecturers

134. According to Werber, the system was supposed to automatically calculate the weight of each lecturer in a course that is jointly owned and distribute the leads accordingly and calculate the fees. Werber testified that Shmulik explained in conversations with him that the system would support this (paragraph 44 of Yonit's affidavit, paragraph 43 of Tzachi's affidavit), and also referred to Lubiner from April 12, 2018, in which Shmulik referred to the possibility of having two lecturers for one course (p. 12, 14).
135. As can be seen from the expert's opinion in response to the clarification questions (p. 15), there is no need to define joint ownership of a course for the purpose of implementing the business model of distributing commissions, except with regard to the distribution of leads that came from the company's marketing activities (and not through any of the lecturers or marketers) among the lecturers (as explained above). The expert accepted Froimovich's position, which was given through the manual definition regarding a key for distributing leads among lecturers, to also support the distribution of leads in relation to courses shared by several lecturers, while referring to the difficulties in manually distributing leads as aforesaid. In this sense, there is truth to Froimowitz's claim that Werber's claim is in fact a private case that is expressed in their aforementioned claim regarding the division of leads among the lecturers.

Werber's Claim Regarding the Absence of "Forums"

136. According to Werber, the system should have included forums that would allow for the development of discussions and the sharing of information, but in practice, forums were not implemented in the system. In their affidavits, Werber noted that Shmulik explained about forums in conversations between them, and in February 2018 he even sent a link to an experimental website that revealed the existence of forums, including links to forums (paragraph 52 of Yonit's affidavit).
137. There is no dispute that there is no forum component in the system. Froimovich argued in this matter that it was not promised that there would be forums at the time of the launch (paragraphs 62-63 of Shmulik's supplementary affidavit), and it was even explicitly stated in the webinar that there would be forums in the future.
138. There is truth to Froimovich's claim that the webinar of April 12, 2018 clearly emerges from Shmulik's words that there are no forums. In this context, Shmulik refers to "more features that we will introduce. We're not talking about them right now because they're not there, but we're going to do a collaboration forum, a launch forum..." (p. 27, paras. 18-20). Yonit also did not remember to say whether in the link to the sample site that was sent, she clicked on the tab that was supposed to lead to the forums and checked whether they actually existed (p. 58 of the transcript, paras. 15-17, p. 107, paras. 20-23); And when asked if there were forums in a link sent to her a few days before the system was launched, she replied that "to the best of her recollection, no" (p. 58 of the transcript, s. 20), while explaining that she did not notice that there were many malfunctions and problems and that they were under pressure (p. 58, s. 22-27). When asked if she had been told that there would be forums at the launch, she replied unconvincingly, "I assume so" (p. 108, paras. 7-8); She also admitted that the absence of the forums in itself is not substantial (p. 108, paras. 11-15).
139. According to the evidence material, including in light of the webinar on which Werber relies on many claims, it is therefore not possible to accept Werber's claim for a promise or representation that at the time of launch the system should have included a forum component (as opposed to a future addition of such a function). At most, this is a mistake that Shmulik did not know and should not have known about.

Werber's Claim Regarding "Coverage"

140. Werber initially claimed that the system did not have a coverage component designed to allow users to write reviews about courses and rate them, but they did not know how to point to direct evidence that there was no such feature in the system. Yonit and Tzachi, in their affidavits, did not declare that there was no system of coverage, and Omri did not state in his affidavit that there was no coverage, but that he did not see on the site that there was coverage, when in the cross-examination he testified that he did not look for the component, but rather "did not come across it" (p. 59 of the transcript, paras. 21-28). In the cross-examination, Yonit testified that she did not check herself whether there was a system of coverage working in real time (p. 108 of the transcript at paras. 33 to p. 109, s. 1). In their summaries, Werber did not repeat the claim that there was no coverage system, but rather claimed that there was no coverage system that worked properly.
141. According to the expert's opinion, there was a system of coverage that operated properly for at least the period between May 10, 2018 and December 19, 2019 (based on a table in which the surveys that were uploaded were preserved; p. 14 of the opinion, pp. 35-36 in response to the clarification questions). Shmulik testified, in this context, that the coverage component was removed in 2020 and even presented a document attesting to coverage of Tzachi's course (Appendix 38 to the Fraimovich evidence).
142. Werber was therefore unable to substantiate the claim that the coverage system did not work properly at the time of the system's launch, or at all. A single complaint in this context to which Werber refers (p. 427 of Werber's evidence) does not substantiate their claim, and Froimowitz rightly claimed that it was hearsay testimony.

Werber's Claim Regarding "Priority for Lecturers"

143. Werber claimed that they were presented with priority in marketing the system for a week, but the system did not allow priority in marketing to the lecturers because every customer who signed up for the system received a link through which he could market it.
144. In their summary, Froimovich claimed that there was no promise of a concrete period of time in which priority would be given to lecturers, and that no component of the system was required for this. The priority was due to the fact that the lecturers were the only ones who existed in the system, and from the fact that only they had a link to carry out marketing activities, so that every new entrant soon after the launch came under their marketing tree (testimony of Shmulik at p. 196; testimony of Keren at the pre-trial date of April 2, 2024, at pp. 16-17).
145. In his opinion, the expert adopted Froimovich's position that there was no need for a component of the system to give priority to lecturers. This is because at the time of the investment, the only people who could market the system were those who were brought into it, who were only the lecturers, and those who came to the system through a link were necessarily attributed to the lecturer who heads the marketing tree (p. 15 of the opinion; p. 81 of the transcript at paras. 15-22). Yonit's claim in the cross-examination was that people could enter the system independently (through Google) and in this way register without the lecturer's tree. In response to the court's question as to why such a subscription should have been prevented, Yonit replied that if the system had distributed the leads from the first moment, it would not have mattered, but Shmulik should have stood behind what he told the lecturers on the air (p. 116, paras. 25-30).
146. The conclusion from the evidence is that it was not proven that there was a promise or representation that priority would be given to the lecturers for a period of one week (the time period was not specified in the webinar of April 12, 2018, and Omri, who referred to the week in his affidavit, said that it was based on information he received from a newspaper). In any case, in practice, the lecturers were given priority at the beginning of the activity without the need to develop a special component for the system by virtue of the fact that the lecturers were the first to register. At most, the priority was not hermetic, because there may be cases in which people who happened to come to the system independently of a Google search, but no evidence was presented that there were actual registrations of this kind and only one inquiry was presented in this regard (p. 433 of the Werber evidence). It is therefore impossible to accept that Schwerber made a mistake in this matter, nor did Froimovich know or should have known about such a mistake.

Werber's claim regarding the restriction of the use of the same account by two users at the same time ("Single Session")

147. A "Single Session" mechanism is a mechanism that prevents the simultaneous use of a subscription by multiple users or multiple devices under a single subscription account. According to Werber, Shmulik presented the system so that the mechanism would be integrated into the system, but in practice the system did not prevent users from connecting simultaneously from several devices. Froimovich claimed that they did not see fit to impose such a restriction on subscribers at the time of the launch. There is no dispute that there is no single session login mechanism in the system.
148. Werber referred to the webinar of April 12, 2018, claiming that it was stated that the system would prevent people from transferring their access information to others. However, what was said in the webinar (pp. 30, 11-21 of the transcript) is that we are working on it (that this is an open process) and not that it is an existing function. Yonit testified, in this context, in the cross-examination that her understanding was that it would be implemented until the launch (pp. 118, s. 14 to p. 119, s. 13). Froimovich argued in this matter that they did not find that this restriction should be applied at the time of the launch, and the expert accepted their position that it was a technical and simple matter of implementing a ready-made third-party supplement (p. 16 of the expert's opinion), while in the cross-examination he added that it was about an hour's work if there was a suitable supplement (p. 81, 23-30).
149. The conclusion is that it is possible to accept Werber's understanding that this is a mechanism that will exist in the system at the time of launch, but it is not possible to determine in light of Shmulik's remarks in the webinar that he knew or should have known about the mistake that was predicted as a misunderstanding. In addition, it appears that this is a simple matter to add and marginal.

Werber's Claim Regarding "Remarketing" Codes (Remarketing)

150. A "remarketing" code is a software component that enables the identification of users who have visited the site for the purpose of continuing marketing that is tailored to them personally. If the user has expressed interest in a certain product, the remarketing code supposedly "colors" the user, and thus he can be shown advertisements while he is wandering around other websites and social networks with the aim of marketing the same product or similar products to him (expert testimony in the minutes of January 2, 2025, p. 78 of the transcript, paras. 1-18; Yonit's testimony in pre-trial of April 2, 2024, pp. 18-19).
151. According to the expert's opinion, there are three places in the system to update the remarketing code. Code that appears on the "Course Page" and Code that appears on the "Lecturer Page" - both are accessible to administrators only and work properly. In addition, a code that appears on the "thank you page" on the website after the purchase of a subscription is completed and is accessible to any reseller, but does not actually work (pp. 17-18 of the opinion). In response to the clarification questions and in the cross-examination, the expert explained that the remarketing codes on the lecturer's page and on the course page (which were in order) were intended for lecturers, and accordingly the lecturers could have forwarded remarketing codes for implementation on these pages to the administrator in order for him to implement them, but they could not implement them independently (p. 18 in response to the clarification questions; pp. 78-79 of the minutes of January 2, 2025). I will note, in this context, that the formulation of the expert's answer in response to the clarification questions was not sufficiently clear, as also emerges from the investigation of Yonit and Shmulik in this context. However, from the context of the matter and the expert's cross-examination, it appears that the malfunction in the remarketing function was only on the "thank you page" (through which marketers were supposed to be able to make use of this tool - whether they were lecturers or not), while remarketing to the lecturers could also be done on the other pages (whether they also did marketing or not).
152. The evidence presented does not indicate that there was a clear definition regarding the manner in which the remarketing would be carried out. In their affidavits, Werber refers to remarketing in a very general way in conversations with Shmulik (for example, paragraph 37 of Yonit's affidavit). In the webinar for lecturers on April 12, 2018, Shmulik refers to the fact that for every user who enters the site, it will be possible to perform remarketing actions and direct the marketing according to the courses that interested him "when he toured the site" (pp. 1-7 of the transcript). It seems that these statements by Shmulik are indeed aimed at remarketing that was in place in the system - marketing that is directed at entering the pages of the courses and lecturers, as Froimovich claimed in their summaries. The expert's position was that there was marketing importance to remarketing on the "thank you page" because it was a "paying customer" who had already made a purchase (in a way that might indicate a higher chance of marketing additional products to him), but Werber did not present evidence - not even oral testimony (in the affidavits of the main witness) - to Shmulik's explicit representation regarding that improper remarketing in the "thank you page" relevant to every marketer of the system (and not only to the lecturers). I will note, in this context, that in the pre-trial Tzachi complained that manual action by the administrator was required for the purpose of assimilating the lecturers' remarketing codes that they could not implement themselves (p. 19 of the minutes of April 2, 2024, paras. 32-36).
153. The conclusion from the compilation is that it is not possible to accept Werber's argument with regard to "remarketing". There was indeed a malfunction in the system with respect to a certain component of the "remarketing", but in the absence of an explicit representation as to how the remarketing would work in the system, as well as the existence of two remarketing components that were in good working order and which ostensibly met what was presented, it is not possible to accept a claim of breach of representation or promise, nor can it be mistaken.

Werber's claim for a loophole that allows viewing course content free of charge

154. Werber claimed that the content of a number of courses can be viewed on the project's website free of charge. This was based on an expert opinion on their behalf (without any evidence of this being presented in real time, except for hearsay testimony mentioned in Doron's affidavit, who did not examine it and did not even attach a copy of the complaint; p. 128 of the transcript, paras. 29 to p. 129, s. 3).
155. The expert found in his opinion that there was a material malfunction in the software that allowed errors stemming from the fact that a component that does not allow free viewing was not used by default, but rather a code that prevents free viewing only for products that are specifically defined as requiring payment for viewing. This means that if a product is not defined as required by mistake, it is open for free viewing (pp. 19-20 of the opinion). In response to the clarification questions, the expert clarified that he did not try to enter the site as an ordinary user and watch the courses free of charge. In another examination conducted by the expert, he found that all courses can be accessed without a subscription by registering to the system on a page dedicated to lecturers, and this indicates that the development of content protection was of poor quality (pp. 18-19 in response to the clarification questions).

00In the cross-examination, the expert testified and clarified that the examination regarding access to the contents of the website free of charge was done through access to the site that he was able to do as the administrator. He also testified that it took him about two and a half to three hours to wander around looking for loopholes in the software in order to find a link that allows him to watch content for free, and that the investigation revealed that that link was a registration page for lecturers (who, according to Fromovich, are supposed to watch the content on the site for free). He noted that the security breach is in the sense that a lecturer who receives the link can pass it on to anyone else who can register as a lecturer himself and watch the content for free. He also testified that he did not find a link on the site that leads to that page and that he did not know if it was visible to users of the site (who are not admins); that he was unable to watch free content using the site as a regular user; But he thought that if someone with technical knowledge "digged" in order to find loopholes, he would probably be able to reach this page, which allows registration as a lecturer and free viewing of the content (pp. 82-88 of the transcript).