Perfect 10, Inc. v. Google, Inc.

Filing 31

Filed (ECF) Appellant Perfect 10, Inc. response opposing motion (,motion to strike portion or whole of document). Date of service: 12/21/2010. [7588942] (JNM)

Perfect 10, Inc. v. Google, Inc.

Doc. 31

Court of Appeals Docket No. 10-56316

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PERFECT 10, INC., Plaintiff-Appellant vs. GOOGLE INC., Defendant-Appellee.

On Appeal From The United States District Court, Central District Of California, Hon. A. Howard Matz, USDC No. CV 04-9484 AHM (SHx)

PLAINTIFF- APPELLANT PERFECT 10, INC.'S OPPOSITION TO MOTION TO STRIKE; DECLARATION OF JEFFREY N. MAUSNER IN SUPPORT THEREOF PUBLICLY FILED, REDACTED VERSION; FULL VERSION FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER Jeffrey N. Mausner (California Bar No. 122385) David N. Schultz (California Bar No. 123094) Law Offices of Jeffrey N. Mausner 21800 Oxnard Street, Suite 910 Woodland Hills, California 91367 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff/Appellant Perfect 10, Inc.

Dockets.Justia.com

TABLE OF CONTENTS I. II. INTRODUCTION AND SUMMARY OF ARGUMENT.............................. 1 THE SJ TENTATIVE ORDER IS PROPERLY INCLUDED IN THE RECORD ON APPEAL ......................................................................... 3 A. The SJ Tentative Order Shows That The District Court Failed To Correct Flagrant Errors Found In The Final SJ Order Of Which It Was Advised By Perfect 10.................................... 4 1. The District Court Relied On Factual Errors To Impermissibly Strike Four Third-Party Declarations Submitted By Perfect 10 ............................................................. 5 The District Court Was Repeatedly Advised That Perfect 10 Sent Its Group A Notices To The Correct Email Address Listed on Google's Website ............................... 7 Examples of Other Errors In The SJ Tentative Order ................ 7

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3. B.

The SJ Tentative Order Confirms That Perfect 10 Had No Opportunity To Address The District Court's Newly Created Requirements For DMCA Notices ........................................................ 8 It Is Pointless To Strike The SJ Tentative Order Because It Is Cited In Other Documents In The Record ........................................ 9 Google's Contentions Are Misleading And Inapposite ........................ 9

C. D. III. IV. V.

THE AMAZON TENTATIVE ORDER IS PROPERLY INCLUDED IN THE RECORD ON APPEAL............................................. 10 THE POOVALA ORDER IS PROPERLY INCLUDED IN THE EXCERPTS OF RECORD ............................................................................ 11 CONCLUSION.............................................................................................. 12

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TABLE OF AUTHORITIES Cases Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) .......................1 Perfect 10, Inc. v. CCBill, LLC, 488 F.3d 1102 (9th Cir.), cert. denied, 552 U.S. 1062 (2007) .............................................................................................5 Townsend v. Columbia Operations, 667 F.2d 844 (9th Cir. 1982). ................. 2, 3, 4 Statutes 17 U.S.C. §512 .................................................................................................. 1, 7, 8 Treatises California Practice Guide: Federal Ninth Circuit Civil Appellate Practice (TRG 2010) §4:19 ...................................................................3

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I.

INTRODUCTION AND SUMMARY OF ARGUMENT. In an attempt to prevent this Court from understanding the true picture

underlying the erroneous rulings of the District Court at issue in this appeal, Defendant-Appellee Google Inc. ("Google") has filed a Motion to Strike (Docket No. 24) (the "Motion"), seeking to strike three documents included in the Excerpts of Record filed by Plaintiff-Appellant Perfect 10, Inc. ("Perfect 10"): 1) The District Court's tentative order concerning Google's three

motions for partial summary judgment (the "SJ Motions") that Google was entitled to safe harbor protection under §512 of the Digital Millennium Copyright Act (the "DMCA"), found at ER10063-87 (the "SJ Tentative Order"); 2) A portion of the District Court's tentative order in Perfect 10's related

and consolidated case against Amazon, found at ER10097-98 (the "Amazon Tentative Order");1 and 3) The District Court's Order denying Google's motion to quash the

deposition of Google employee Shantal Rands Poovala ("Ms. Poovala"), whose declarations were relied upon by the District Court in granting, in large part, Google's SJ Motions, found at ER20001-03 (the "Poovala Order"). This Court should deny Google's Motion for three separate reasons. First, Circuit Rule 30-1.4 provides that, in all appeals, the excerpts of record shall
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Perfect 10's cases against Google and Amazon were consolidated before the same judge. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1157 (9th Cir. 2007). 1

include "any opinion, findings of fact or conclusions of law relating to the judgment or order appealed from." Circuit Rule 30-1.4(iv) (emphasis added). The three documents Google seeks to strike are each opinions relating to the orders that are the subject of Perfect 10's appeal. Second, this Court has held that documents used by a district court in forming its opinion may properly be included in the record on appeal, because their inclusion "reflects what actually occurred in the district court." Townsend v. Columbia Operations, 667 F.2d 844, 849 (9th Cir. 1982). The three documents Google seeks to strike also are properly in the Excerpts of Record because they reflect what actually occurred in the District Court. Third, the SJ Tentative Order and the Amazon Tentative Order are discussed in detail in a document that was filed in the District Court and is unquestionably part of the record on appeal ­ Perfect 10's written response to the SJ Tentative Order, submitted at the May 10, 2010 hearing on the SJ Motions (the "Response"). See District Court Docket No. 961, Exh. C. Perfect 10's Response, a binder consisting of an eleven-page document pointing out numerous errors in the SJ Tentative Order and exhibits from the record demonstrating these errors, is found in its entirety at ER20020-64 and was referred to by the District Court at the May 10, 2010 hearing. See Transcript of May 10, 2010 Hearing ("May 10 Transcript") at 4:23-5:18, 22:4-5 ("Mr. Mausner [Perfect 10's counsel] came forth with a binder

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here, and I'll look at it and it may be very helpful").2 Under these circumstances, there is neither reason nor basis to strike either tentative order.3 A leading treatise explains why the three documents that Google incorrectly seeks to strike are properly in the Excerpts of Record: Documents used by the district court in forming its opinion may properly be included in the record on appeal even though they were neither "filed" by the district court clerk nor entered on the civil docket. In such circumstances, their inclusion in the record is not an unauthorized augmentation but, rather, "reflects what actually occurred in the district court." C. Goelz and M. Watts, California Practice Guide: Federal Ninth Circuit Civil Appellate Practice (TRG 2010) §4:19, quoting Townsend, 667 F.2d at 844 (italics emphasis in original; bold emphasis added). This Court should apply the above language, as well as its holding in Townsend, and deny the Motion in its entirety. II. THE SJ TENTATIVE ORDER IS PROPERLY INCLUDED IN THE RECORD ON APPEAL. This Court should not strike the SJ Tentative Order because the District Court clearly relied upon this document in reaching its ruling on Google's SJ

For the convenience of the Court, portions of the May 10 Transcript, which is District Court Docket No. 881, are attached as Exhibit 1 to the Declaration of Jeffrey N. Mausner, attached hereto (the "Mausner Decl."). For this same reason, there is also no basis to strike references to the SJ Tentative Order or the Amazon Tentative Order from Perfect 10's Opening Brief ("OB"), even if this Court chooses to strike these two documents from the Excerpts of Record (and it should not, for the reasons discussed herein). These two documents are referred to in the Response, which is clearly part of the record on appeal. 3
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Motions. Moreover, as explained below, inclusion of the SJ Tentative Order is necessary to "reflect[] what actually occurred in the district court," Townsend, 667 F.2d at 844, because it shows that: 1) In issuing its July 26, 2010 final order granting, in large part,

Google's SJ Motions (the "SJ Order"), the District Court included numerous errors, originally found in the SJ Tentative Order, which Perfect 10 raised with the court in its Response [see Section II.A, below]; and 2) The new requirements created by the District Court to invalidate

Perfect 10's Group C DMCA notices [see OB at 36-45] were not included in the SJ Tentative Order and thus could not have been addressed by Perfect 10 at the hearing on the SJ Motions [see Section II.B, below]. A. The SJ Tentative Order Shows That The District Court Failed To Correct Flagrant Errors Found In The Final SJ Order Of Which It Was Advised By Perfect 10.

The District Court issued its SJ Tentative Order on May 7, 2010, and invited Perfect 10 and Google to bring any errors in that document to the court's attention at the May 10, 2010 hearing on the SJ Motions. Accordingly, Perfect 10 submitted its Response at the May 10, 2010 hearing. The Response quoted liberally from the SJ Tentative Order and identified at least 19 critical errors in that document. See ER20020-20031. Nevertheless, the District Court failed to correct many of these errors, which were included verbatim in the final SJ Order issued by the District Court on July 26, 2010. A discussion of just a sample of these outcome4

altering errors demonstrates why inclusion of the SJ Tentative Order in the Excerpts of Record is necessary to reflect how the District Court reached its final SJ Order. 1. The District Court Relied On Factual Errors To Impermissibly Strike Four Third-Party Declarations Submitted By Perfect 10.

In connection with its opposition to Google's SJ Motions and in support of its Motion for Preliminary Injunction, Perfect 10 submitted four uncontroverted third-party declarations from Margaret Jane Eden, Dean Hoffman, C.J Newton, and Les Schwartz, criticizing Google's processing of their DMCA notices. ER90106-90153. At the very least, these four declarations established a genuine issue of material fact regarding the adequacy of Google's repeat infringer policy, sufficient to deny the SJ Motions. See OB at 61-62.4 Nevertheless, in the SJ Tentative Order, the District Court improperly struck all four declarations, based on the demonstrably incorrect statement that Perfect 10 "has provided no argument as to why its failure [to identify these declarants in its Rule 26 disclosures in 2005] was substantially justified or harmless. Thus, the Court will not consider these declarations on this motion for partial summary judgment." SJ Tentative Order at 8, found at ER10070 (emphasis added). This Court has held that DMCA notices sent by third parties, as well as by the plaintiff, are relevant in determining whether a service provider has "implemented its repeat infringer policy in an unreasonable manner." Perfect 10, Inc. v. CCBill, LLC, 488 F.3d 1102, 1113 (9th Cir.), cert. denied, 552 U.S. 1062 (2007). 5
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Perfect 10 addressed this error in the Response submitted at the May 10, 2010 hearing on the SJ Motions. Perfect 10 reminded the court that, in two documents filed on October 12, 2009, it had submitted uncontroverted evidence that it did not know about the four declarants until only days or weeks before submitting their declarations in 2009. Response at 8-9 [ER20028-29].5 Despite being advised of its error, the District Court included the same exact language from the SJ Tentative Order quoted above in its final SJ Order and relied upon that erroneous statement to strike the four declarations. Compare SJ Order at 8 [ER10038] with SJ Tentative Order at 8 [ER10070]. Had the District Court corrected the erroneous statement in the SJ Tentative Order, it could have relied upon the four declarations to deny Google's SJ Motions. Accordingly, the SJ Tentative Order is appropriately included in the Excerpts of Record, because the District Court relied upon this document in the SJ Order and because it reflects what actually occurred in the District Court ­ that erroneous language from the SJ Tentative Order was left unchanged in the final SJ Order.

The two documents were Perfect 10's response to Google's evidentiary objections to the four declarations (District Court Docket No. 566), and a Declaration of Jeffrey N. Mausner in support of Perfect 10's response to the evidentiary objections (District Court Docket No. 571). See ER6009960100. For example, in his declaration, Mr. Mausner explained that he "first knew about and spoke with Margaret Jane Eden on or about July 31, 2009," only nine days before her declaration was provided to Google, and he "first knew about and spoke with Les Schwartz on or about July 27, 2009," only 13 days before his declaration was provided to Google. See ER60099. 6

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2.

The District Court Was Repeatedly Advised That Perfect 10 Sent Its Group A Notices To The Correct Email Address Listed on Google's Website.

In its SJ Tentative Order, the District Court invalidated all of Perfect 10's Group A DMCA notices, based on the finding that "Google has offered undisputed evidence that all of the Group A notices were sent by email to `[e-mail]' instead of to the address of Google's designated agent listed at the Copyright Office." SJ Tentative Order at 12 [ER10075]. In its Response, Perfect 10 reminded the District Court that it had submitted uncontroverted evidence showing that [e-mail] was the email address for sending DMCA notices that Google listed on its website in 2001, when Perfect 10 submitted its Group A notices. Response at 6 [ER20026].6 Nevertheless, the District Court included the exact same language quoted above in its final SJ Order. Compare SJ Order at 12 [ER10042] with SJ Tentative Order at 12 [ER10075]. 3. Examples of Other Errors In The SJ Tentative Order.

The District Court made other demonstrable errors in its SJ Tentative Order that it failed to correct in the final SJ Order, even after Perfect 10 pointed out these errors in its Response. These include: (i) the District Court's failure to discuss Google's AdSense and AdWords programs and Google's lack of a repeat infringer Pursuant to 17 U.S.C. §512(c)(2), a copyright owner may send DMCA notices to the address listed either on the ISP's website or at the Copyright Office. 7
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policy concerning these programs [see Response at 6 (ER20026)]; and (ii) the District Court's failure to recognize that Google did not process any DMCA notices from anyone in 2001. [See Response at 7 (ER20027)]. The District Court's failure to address these errors and the others described in the Response further demonstrates that inclusion of the SJ Tentative Order in the record on appeal is necessary for this Court to understand what actually occurred in the District Court and how that court failed to address errors raised by Perfect 10. B. The SJ Tentative Order Confirms That Perfect 10 Had No Opportunity To Address The District Court's Newly Created Requirements For DMCA Notices.

As explained in detail in Perfect 10's Opening Brief, the District Court invalidated most of Perfect 10's DMCA notices only by creating two unnecessary and unworkable additional requirements not found in §512(c)(3) of the DMCA ­ that a compliant notice must be a single document and that it must identify the infringed work by specifying the exact location of an authorized copy. OB at 9-10, 19-20, 36-45. These new "single document" and "exact location" requirements, as well as the District Court's lengthy analysis of one atypical Snagit notice [see OB at 45-47], are not discussed anywhere in the SJ Tentative Order. ER10063-87. The SJ Tentative Order thus is properly included in the Excerpts of Record, because it allows this Court to understand what actually happened below: that Perfect 10 never had the opportunity to address the District Court's newly-created requirements or submit declarations or pleadings explaining why these 8

requirements are unworkable and contrary to law. See OB at 47-48. C. It Is Pointless To Strike The SJ Tentative Order Because It Is Cited In Other Documents In The Record.

Language from the SJ Tentative Order repeatedly appears in the Response, which is in the Excerpts of Record and is clearly part of the record below. See Response at 1-11 [ER20020-31]. Moreover, the SJ Tentative Order is discussed extensively in the transcript of the May 10, 2010 hearing, which is also clearly part of the record below. See, e.g., Mausner Decl., Exhibit 1 [May 10 Transcript at 4:14-5:19, 7:24-9:15]; ER20004-20015. Therefore, there is simply no point in striking the SJ Tentative Order. On the contrary, inclusion of the SJ Tentative Order in the record on appeal helps to explain what occurred in the District Court. D. Google's Contentions Are Misleading And Inapposite.

In support of its request to strike the SJ Tentative Order, Google asserts that the District Court told the parties not to rely on the document. Motion at 1. According to Google, the District Court stated at the May 10, 2010 hearing on the SJ Motions that the SJ Tentative Order was "not to be distributed or used for any purpose." Id., quoting May 10 Transcript at 4:14-22. The alleged quotation relied upon by Google is misleading and incomplete. In fact, the District Court specifically told the parties that the SJ Tentative Order "is not to be distributed or used for any purpose until I issue a final order." May 10 Transcript at 4:21-22 (emphasis added). Because the District Court has issued 9

the final SJ Order, Perfect 10 properly may use the SJ Tentative Order to explain to this Court what actually occurred before the District Court.7 The cases cited in the Motion likewise do not support striking the SJ Tentative Order. None of the cases cited by Google stands for the proposition that a District Court's tentative ruling cannot be included in the record on appeal. This is particularly true here, where this Court will lack a complete picture of what occurred below without the opportunity to review the SJ Tentative Order. III. THE AMAZON TENTATIVE ORDER IS PROPERLY INCLUDED IN THE RECORD ON APPEAL. The excerpt from the Amazon Tentative Order is appropriately included in the record on appeal because it reflects what occurred before the District Court and because it is found in Perfect 10's Response, which is properly part of the Excerpts of Record.8 In the SJ Tentative Order, the District Court invalidated all of Perfect 10's Group C notices by suggesting that they were similarly deficient to those notices found by this Court to be deficient in CCBill. See SJ Tentative Order at 1617 [ER10078-79]. Perfect 10's Response pointed out that this characterization of the Group C notices was inconsistent with the District Court's description of Moreover, because the Excerpts of Record containing the SJ Tentative Order were filed under seal, the SJ Tentative Order has not been distributed to anyone other than this Court. The copy of the SJ Tentative Order included in the Excerpts of Record was emailed by the District Court to the parties. The District Court never issued a final version of the Amazon Tentative Order because the parties settled the case beforehand. 10
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similar notices in the Amazon Tentative Order,

Response at 6 [ER20026], quoting Amazon Tentative Order at 31 [ER10097] (emphasis added). The District Court ignored this inconsistency in the final SJ Order, where it continued to rely upon CCBill to invalidate the Group C notices. SJ Order at 15-16 [ER10045-46]. Furthermore, the District Court's new requirements for DMCA notices set forth in the SJ Order were not even mentioned in the Amazon Tentative Order. Accordingly, the portions of the Amazon Tentative Order included in the Excerpts of Record should not be stricken, because they are found in another document in the record and are necessary for this Court to fully understand what transpired before the District Court. IV. THE POOVALA ORDER IS PROPERLY INCLUDED IN THE EXCERPTS OF RECORD. In the Poovala Order, Magistrate Judge Hillman noted that "there appears to be some conflict" between the declarations of Ms. Poovala upon which Google

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relied in support of its SJ Motions and Ms. Poovala's testimony at a Rule 30(b)(6) deposition. Poovala Order at 2, District Court Docket No. 964 [ER20002]. Perfect 10 raised these very same disparities between these declarations and Ms. Poovala's deposition testimony in detailed objections to Ms. Poovala's declarations. Perfect 10 argued, among other things, that the Rule 30(b)(6) deposition demonstrated that Ms. Poovala lacked personal knowledge and expertise, and that the numerous contradictions between Ms. Poovala's declarations and her deposition testimony compelled the court to strike her declarations in their entirety. ER60013-69. Nevertheless, the District Court failed to rule upon any of Perfect 10's objections. Instead, the court substantially relied upon Ms. Poovala's declarations in the SJ Order, at a time when it was aware that Perfect 10 was seeking to depose Ms. Poovala in her individual capacity ­ a deposition upheld in the Poovala Order. Accordingly, the Poovala Order is properly included in the Excerpts of Record, because it allows this Court to understand that the District Court issued the SJ Order without addressing Perfect 10's significant objections to Ms. Poovala's declarations. See also OB at 71-73. V. CONCLUSION. For all of the above reasons, this Court should deny Google's motion to strike the SJ Tentative Order, the portions of the Amazon Tentative Order, and the Poovala Order from the Excerpts of Record.

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Dated: December 21, 2010

Respectfully submitted, LAW OFFICES OF JEFFREY N. MAUSNER By: ___________________________________ Jeffrey N. Mausner David N. Schultz Attorneys for Plaintiff Perfect 10, Inc.

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DECLARATION OF JEFFREY N. MAUSNER I, Jeffrey N. Mausner, declare as follows: 1. I am an attorney admitted to practice before the Ninth Circuit Court of

Appeals. I am counsel of record for Plaintiff-Appellant Perfect 10, Inc. 2. I attended the hearing on May 10, 2010 in the District Court regarding

Defendant-Appellee Google Inc.'s three motions for partial summary judgment. Attached hereto as Exhibit 1 is a true and correct copy of excerpts of the transcript of that hearing. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 21st day of December, 2010 at Los Angeles County, California.

_________________________________ Jeffrey N. Mausner

Exhibit 1

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 _____________________________________ CINDY L. NIRENBERG, CSR 5059 U.S. Official Court Reporter 312 North Spring Street, #438 Los Angeles, California 90012
www.cindynirenberg.com

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION HONORABLE A. HOWARD MATZ, U.S. DISTRICT JUDGE ---

) PERFECT 10, INC., A CALIFORNIA ) CORPORATION, ) ) PLAINTIFF, ) ) vs. ) No. CV04-09484-AHM(SHx) ) GOOGLE, INC., ET AL., ) ) DEFENDANTS. ) ___________________________________)

REPORTER'S TRANSCRIPT OF PROCEEDINGS LOS ANGELES, CALIFORNIA MONDAY, MAY 10, 2010

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

APPEARANCES OF COUNSEL:

FOR THE PLAINTIFF: LAW OFFICES OF JEFFREY N. MAUSNER BY: JEFFREY N. MAUSNER, ATTORNEY AT LAW 21800 OXNARD STREET SUITE 910 WOODLAND HILLS, CA 91367 818-992-7500

FOR THE DEFENDANTS: QUINN EMANUEL URQUHART OLIVER & HEDGES BY: MICHAEL T. ZELLER, ATTORNEY AT LAW 865 SOUTH FIGUEROA STREET 10TH FLOOR LOS ANGELES, CA 90017 213-443-3180 QUINN EMANUEL URQUHART OLIVER & HEDGES BY: BRADLEY R. LOVE, ATTORNEY AT LAW 50 CALIFORNIA STREET 22ND FLOOR SAN FRANCISCO, CA 94111 415-875-6330

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10. THE CLERK: LOS ANGELES, CALIFORNIA; MONDAY, MAY 10, 2010 10:00 A.M. ----Calling Item Number 1, CV04-9484, Perfect

10, Inc. versus Google, Inc., et al. Counsel, state your appearances, please. MR. MAUSNER: Jeff Mausner for the plaintiff Perfect

May Melanie Poblete sit at counsel table with me? THE COURT: MR. MAUSNER: MR. ZELLER: Yes, she may. Thank you. Good morning, Your Honor. Mike Zeller Sure.

and Brad Love for Google. THE COURT: Okay. Good morning to both of you.

We're here for a hearing on the summary adjudication motions that Google filed long ago that have already been the subject of some discussion at previous hearings. I circulated

to the parties last week a 22-page, single-spaced draft order, very much draft. At the end of this hearing, make sure that you return that order to Mr. Montes. It is not final, and it is not to be

distributed or used for any purpose until I issue a final order. As is my practice that I think counsel are familiar with, I invite you to address any factual errors that may have crept into this draft or material omissions that reflect or
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5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would consist of facts that should have been included, and then we can talk about the legal analysis. So why don't you start, Mr. Mausner, from the lectern, please. MR. MAUSNER: Thank you, Your Honor.

We prepared a binder for this, which I would like to hand up to the Court (indicating). THE COURT: MR. MAUSNER: THE COURT: MR. MAUSNER: Have you given this to Mr. Zeller? Yes, Your Honor. What's in this binder? The binder contains -- the first tab is

a narrative of what I would say in case we do not have time to go through all of that, and I expect that we will not. And

then the second tab contains samples of evidence supporting what's stated in the first tab, the narrative. There are a number of misstatements in the tentative that Perfect 10 believes have to be brought to the Court's attention. THE COURT: MR. MAUSNER: All right. Okay. So start with those, please.

As the Court I'm sure is aware,

Perfect 10 has sent Group C notices to Google in various sizes. For example, some of Perfect 10's Group C notices like the October 16th, 2009 contain just one image. THE COURT: Okay. Here's what you should do. If you

want to be as effective as ideal, then you tell me what page
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7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 notebook. THE COURT: MR. MAUSNER: that was on Blogger. Yes. This is an image, an infringing image As you can see from the bottom of the

page there, it contains the URL Blogger. Some of the notices that Perfect 10 submitted consist of a copy of the infringing Blogger web page like this showing the full URL and a cover page stating, "This is the infringing image." The URL is on there. And one of the things we would like to know is if it is a notice like this where it is one page -- you know, there is a cover page and then there is maybe one, two or three images like this that have the URL at the bottom, is that a sufficient notice. We have here both the infringing and infringed image. It has a copyright notice on there, so Google knows for sure that it's Perfect 10's copyrighted -THE COURT: Okay. Mr. Mausner, this hearing is not This hearing is about

going to be a tutorial for me to you.

errors or omissions or mistakes in a draft order. Now, if you are asking me to look at Page 1 of your handout, too, because it relates to something that was erroneous on Page 4, then please make that clear. MR. MAUSNER: Okay. Well, what's erroneous on Page 4

is the statement, "And only after the motion papers were filed
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22. THE COURT: Oh, we have a problem that I encountered did Google begin to process any Group C notices," and there is a statement on Page 4 as to, you know, which notices were sent prior to the motion papers. THE COURT: Okay. It seems to me that in principle,

in the abstract, you would have been benefited if there were a delay that extended into only after the motion was filed, but now you want to correct that by pointing to the Zada declaration Exhibit 45, Pages 7 through 9 and 11? MR. MAUSNER: Right. And for one of those notices

there was a 200-day delay. THE COURT: MR. MAUSNER: Okay. And then the others were after, and

there were delays for those as well. THE COURT: MR. MAUSNER: Please continue. Okay. Number 2 on Page 4. This is

from tentative Pages 22 to 23.

"Instead, P10 expected Google

to search through a separate electronic folder" -THE COURT: MR. MAUSNER: Wait a minute. Well, yeah. You are on Page 22? It's the tentative Page

before, and I had hoped it would be avoided, because my pages are on Word Perfect. MR. MAUSNER: THE COURT: Can you give me the section number? 4-B3. Okay. Hold on a minute. I have it.

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Section 4-B3? MR. MAUSNER: near the end. Right. And it's in the first paragraph

It says, "Instead, P10 expected Google to search

through a separate electronic folder containing all of the more than 15,000 images from P10's website that were already infringed." THE COURT: You say that's -- okay. I see. And

what's erroneous about that? MR. MAUSNER: searching at all. First of all, the images were provided. Most of the Well, they didn't have to really do any

images had the copyright notices on them, and if they wanted to see it, they could simply go to Perfect 10's website, type in the model's name and the images -- you know, five or six images of that model would pop up and it was right there. THE COURT: What is erroneous about the

characterization of what was available or required of Google based on the notices themselves? MR. MAUSNER: Well, the notices provided a picture

which is both the infringing and infringed picture to them. That was the purpose -- or one of the main purposes of going to the Group C notices so that the infringed/infringing image would be provided to them right there with the notice and they would be able to see it. THE COURT: Well, the infringing image was provided,

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mausner and the factual -THE COURT: analysis as well. Mr. Mausner came forth with a binder here, and I'll look at it and it may be very helpful. What would you say? And also what I sent out for your

You don't come in with a binder and I understand why, and that's fine. I don't necessarily invite those, but if you wish

to respond, now is your chance. MR. ZELLER: Well, I would respond to a couple of

points, and in particular this notion here where Mr. Mausner was attempting to resuscitate the Group C notices by saying that essentially one could go and look at Perfect 10's website to see the work that is protected. That is by definition the very kind of improper process that CCBill and other decisions say is not what the DMCA requires. And, moreover, this notion that somehow you can

collapse the idea of, "I show you the infringing image and, therefore, I show you what it is that's owned," by the copyright owner, I think would render language in the DMCA superfluous. The DMCA under Paragraph 3, Elements of Notification, requires identification of the copyrighted work, and it requires identification of the material that is claimed to be infringed. THE COURT: But he pointed out a photo which I

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: you a chance. MR. ZELLER: Just briefly. Well, I gave him a chance, so I'll give

As to the remaining Group B notice URLs, those are moot for purposes of the second preliminary injunction motion that was filed. I don't think there's any dispute that they

were eventually processed. I mean, I recognize the Court has found a factual dispute as to whether or not it was expeditious or not, however, there are no unprocessed Group B notice URLs, so, accordingly, there would be no basis for an injunction. just simply moot on that ground. The post MSJ filing notices are all the kinds of notices that fail for the reasons that the Court has already explained in its tentative, so we don't think that there is any new issues with respect to those. They obviously are -- they It's

would fail for the same reasons that the Group A and the Group C notices fail under the Court's tentative. THE COURT: Okay. Thank you, counsel. Please give

the draft orders to Mr. Montes. MR. MAUSNER: THE COURT: MR. MAUSNER: May I clarify something, Your Honor? Yes. And this is included in our list of --

in the booklet, incorrect statements in the tentative. THE COURT: Well, then I'll look at it in the

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

booklet. MR. MAUSNER: But this actually deals with what he

said, which is the statement in there is -- this is on Tentative Page 4. THE COURT: MR. MAUSNER: Yes. "Google has processed all of the Group It is

B notices, though not immediately on receiving them."

not correct that Google has processed all of the Group B notices, and we are basing that in large part upon the spreadsheet that Mr. MacGillivray submitted. This is number

Paragraph 9 on Page 7 of the narrative in the notebook. THE COURT: Okay. Thank you, Mr. Mausner. Please give your

The matter is under submission. draft orders to Mr. Montes. MR. ZELLER: MR. MAUSNER: THE COURT: Thank you. Thank you.

I'm ordering the parties to split the

cost of a transcript and to order one not on a daily basis, but on an expedited basis. (Proceedings concluded.) --oOo--

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CERTIFICATE

I hereby certify that pursuant to Section 753, Title 28, United States Code, the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.

Date: MAY 13, 2010

_________________________________ Cindy L. Nirenberg, CSR No. 5059

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on December 21, 2010: PLAINTIFF- APPELLANT PERFECT 10, INC.'S OPPOSITION TO MOTION TO STRIKE; DECLARATION OF JEFFREY N. MAUSNER IN SUPPORT THEREOF [PUBLICLY FILED, REDACTED VERSION; FULL VERSION FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER] I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Dated: December 21, 2010 By:_______________________________ Brittany Rosen