Perfect 10, Inc. v. Google, Inc.

Filing 62

Filed (ECF) Appellant Perfect 10, Inc. petition for panel rehearing and petition for rehearing en banc (from 08/03/2011 opinion). Date of service: 08/17/2011. [7861468] (JNM)

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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PERFECT 10, INC.,

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PLAINTIFF-APPELLANT,
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VS.
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GOOGLE INC.,
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DEFENDANT-APPELLEE.
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______________________________)

10-56316

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ORAL ARGUMENT HEARD BEFORE
THE HONORABLE ALEX KOZINSKI, CHIEF JUDGE
THE HONORABLE SANDRA S. IKUTA
THE HONORABLE MICHAEL DALY HAWKINS
SAN FRANCISCO, CALIFORNIA
MONDAY, APRIL 11, 2011

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PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING;
TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE.

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APPEARANCES:

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FOR PLAINTIFF:

LAW OFFICES OF JEFFREY N. MAUSNER
BY: JEFFREY N. MAUSNER
DAVID NATHAN SCHULTZ
ATTORNEYS AT LAW
21800 OXNARD STREET
SUITE 910
WOODLAND HILLS, CALIFORNIA 91367

ALSO PRESENT:

DR. NORMAN ZADA
PRESIDENT, PERFECT 10

FOR DEFENDANT:

MAYER BROWN LLP
BY: ANDREW H. SCHAPIRO
ATTORNEY AT LAW
1675 BROADWAY
NEW YORK, NEW YORK 10019

TRANSCRIBER:

DOROTHY BABYKIN
COURTHOUSE SERVICES
1218 VALEBROOK PLACE
GLENDORA, CALIFORNIA
[phone]

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91740

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CASE NOS:

10-56316

PROCEEDING:

I N D E X

ORAL ARGUMENT

APRIL 11, 2011

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SAN FRANCISCO, CALIFORNIA; MONDAY, APRIL 11, 2011

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MR. SCHULTZ:

MAY IT PLEASE THE COURT.

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SCHULTZ.

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AND APPELLANT PERFECT 10.

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THIS IS JEFF MAUSNER.

I'M DAVID

AND WE REPRESENT PLAINTIFF

PERFECT 10'S PRESIDENT DR. NORMAN ZADA IS ALSO
HERE.

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I WOULD LIKE TO RESERVE 10 MINUTES FOR REBUTTAL.

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THE DISTRICT COURT COMMITTED PERHAPS ITS MOST

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CRITICAL ERROR IN THIS CASE BY INVALIDATING EVERY PERFECT 10

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GROUP C NOTICE WITHOUT PROPERLY EXAMINING OR ANALYZING EACH

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TYPE OF NOTICE.

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THE COURT INCORRECTLY APPLIED THE REQUIREMENTS OF

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THE DMCA.

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IDENTIFY THE COPYRIGHTED WORK CLAIMED TO HAVE BEEN INFRINGED

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AND WAS TOO BURDENSOME.

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IT ERRONEOUSLY RULED THAT EACH NOTICE FAILED TO

THE HONORABLE ALEX KOZINSKI:

IT APPROVED THE GROUP

B NOTICES.

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MR. SCHULTZ:

IT APPROVED --

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THE HONORABLE ALEX KOZINSKI:

IN FORM.

SO, SOME OF

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THEM WERE NOT COMPLETE, BUT IN FORM IT APPROVED THE GROUP B

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NOTICES.

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MR. SCHULTZ:

CORRECT, YOUR HONOR.

IT APPROVED

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CERTAIN UNIDENTIFIED GROUP B NOTICES.

AND AS WE STAND HERE

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TODAY, WE DON'T KNOW WHICH GROUP B NOTICES THE DISTRICT COURT

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BELIEVED WAS COMPLIANT AND WHICH WERE NOT.

BUT YOU ARE

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CORRECT THAT THE FORM OF THE GROUP B NOTICES WAS APPROVED BY

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THE DISTRICT COURT.

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THE HONORABLE SANDRA S. IKUTA:

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THE HONORABLE ALEX KOZINSKI:

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COULD --

YOU COULD HAVE SAVED

YOURSELF PROBABLY A MINUTE BY JUST SAYING YES.
THE HONORABLE SANDRA S. IKUTA:

COULD I GET BACK TO

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THE PRELIMINARY INJUNCTION MOTION BECAUSE THAT IS REALLY WHAT

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IS BEFORE US, AND WE GET TO DMCA ONLY IF IT'S INEXTRICABLY

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INTERTWINED.

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NOW, ON THAT, THE DISTRICT COURT SAID, ASSUME THAT

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THERE WAS CONSTRUCTIVE NOTICE, BECAUSE OF THE NATURE OF THE

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INFORMATION IN THE DRIVES THAT WERE GIVEN TO GOOGLE, THERE

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WEREN'T SIMPLE MEASURES.

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DIRECTIVE TO GOOGLE.

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BLOCKING THOSE URLS.

IT WASN'T -- IT WASN'T SUFFICIENTLY

SO THERE WEREN'T SIMPLE MEASURES FOR

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NOW, WHAT WAS WRONG WITH THAT ANALYSIS?

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THERE ARE EIGHT STEPS OR TEN STEPS THAT GOOGLE WOULD HAVE TO

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DO IN ORDER TO FIND THE APPROPRIATE URL?

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MR. SCHULTZ:

IT SAYS,

WELL, YOUR HONOR, THERE'S SEVERAL --

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THERE ARE SEVERAL PROBLEMS WITH THAT ANALYSIS.

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WE SUBMITTED EVIDENCE THAT ONE OF THE THINGS THAT GOOGLE

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WOULD HAVE BEEN ABLE TO DO WAS TO USE IMAGE RECOGNITION

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TECHNOLOGY IN ORDER TO BE ABLE TO REMOVE INFRINGING IMAGES.

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FIRST OF ALL,

WE HAD TWO TECHNICAL EXPERTS WHO SUBMITTED
DECLARATIONS TO THAT EFFECT, AND IT WAS NOT CONTROVERTED BY

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GOOGLE.
THE HONORABLE SANDRA S. IKUTA:

NOW, THE DISTRICT

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COURT SAID THE ONLY THING BEFORE HIM IS THE ZADA DECLARATION,

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AND THAT'S SPECULATIVE I THINK IS WHAT HE SAID.

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SO, WERE THE OTHER DECLARATIONS -- I THINK IT WAS

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-- I'VE FORGOTTEN HIS NAME -- OF THE EXPERTS, WERE THEY

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BEFORE THE DISTRICT COURT --

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MR. SCHULTZ:

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THE HONORABLE SANDRA S. IKUTA: -- OR WERE THEY

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YES.

BROUGHT TO THE DISTRICT COURT'S ATTENTION?

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MR. SCHULTZ:

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TO THE DISTRICT COURT.

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YES, YOUR HONOR.

THEY WERE SUBMITTED

THOSE DECLARATIONS I BELIEVE IT WAS -- IT WAS THE
O'CONNOR, CHUMURA --

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THE HONORABLE SANDRA S. IKUTA:

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MR. SCHULTZ: -- AND MC PHATTER.

OH, AND MC PHATTER.
TWO OF THOSE

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DECLARATIONS SPECIFICALLY ADDRESSED THOSE ISSUES.

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SUBMITTED WITH THE SUMMARY JUDGMENT MOTION AND RESUBMITTED IN

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CONNECTION WITH THE P.I. MOTION.

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THEY WERE

IN ADDITION, YOUR HONOR, THE -- WE SUBMITTED 95

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WHAT WE'VE REFERRED TO AS P.I. NOTICES IN CONNECTION WITH THE

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PRELIMINARY INJUNCTION MOTION.

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NOTICES IN MANY CASES INVOLVING A FEW NUMBERS OF IMAGES.

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THOSE WERE VERY SIMPLE

AND THE DISTRICT COURT SIMPLY DID NOT EVEN TURN TO
LOOK AND SEE WHETHER THERE WERE SIMPLE MEASURES THAT COULD

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HAVE BEEN USED TO ELIMINATE THE INFRINGING MATERIAL ON THOSE

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NOTICES BECAUSE IT NEVER, AS FAR AS WE CAN TELL, EVEN

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ADDRESSED THOSE PARTICULAR NOTICES IN CONNECTION WITH THE

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PRELIMINARY INJUNCTION MOTION.

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RULING WITH RESPECT TO NOTICES IN THE SUMMARY JUDGMENT

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MOTION, REFERRED TO IT AND RELIED UPON IT ON THOSE -- ON THE

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SIMILAR ISSUES THAT WERE BEFORE IT ON THE PRELIMINARY

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INJUNCTION MOTION.

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IT SIMPLY TOOK ITS UNDERLYING

AND IF YOUR HONOR WOULD LIKE, I CAN ACTUALLY GO

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THROUGH SOME OF THESE NOTICES WHICH WOULD ACTUALLY

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DEMONSTRATE HOW SIMPLE IT REALLY WAS FOR GOOGLE TO BE ABLE TO

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ADDRESS THE PARTICULAR NOTICES THAT WERE BEFORE IT.

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THESE WERE BEFORE IT ON THE PRELIMINARY INJUNCTION MOTION.

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THE HONORABLE SANDRA S. IKUTA:

SOME OF

WELL, IF THE

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DISTRICT COURT DIDN'T ADDRESS THOSE 95 NOTICES, THEN, I DON'T

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THINK THAT WE WOULD LOOK AT THEM IN THE FIRST INSTANCE.

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I DON'T THINK WE NEED TO GO THROUGH THEM HERE UNLESS ONE OF

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MY COLLEAGUES HAS A DIFFERENT THOUGHT.

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MR. SCHULTZ:

THAT'S FINE, YOUR HONOR.

SO,

BUT I DO

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WANT TO SAY THAT SOME OF THESE NOTICES AS WELL WERE BEFORE

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THE COURT IN FORM IN CONNECTION WITH THE SUMMARY -- IN

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CONNECTION WITH THE SUMMARY JUDGMENT MOTIONS AND IN

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CONNECTION WITH THE P.I. MOTIONS.

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AND WE HAVE REPRODUCED ON THESE BOARDS FOUR
DIFFERENT NOTICES.

THEY'RE FOUND AS WELL ON PAGES 15, 13, 8

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AND 10 OF PERFECT 10'S REPLY BRIEF.

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IDENTIFIED INFRINGEMENT CONCERNING BLOGGER, THE FIRST NOTICE,

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ADSENSE, THE SECOND NOTICE.

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INFRINGEMENT ON IMAGE SEARCH.

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AND THE LAST TWO ARE

THEY ALL SATISFY SECTION 512(C)(3)(A)(2) OF THE

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DMCA.

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OF THAT IMAGE.

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AND THESE NOTICES WHICH

THEY IDENTIFY THE INFRINGED IMAGE BY PROVIDING A COPY
FOR EXAMPLE --

THE HONORABLE SANDRA S. IKUTA:

BUT CAN WE

CONCENTRATE ON THE PRELIMINARY INJUNCTION.

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MR. SCHULTZ:

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THE HONORABLE SANDRA S. IKUTA:

I'M --

WELL -I HAVE A QUESTION

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ABOUT EVEN HOW WE GET TO THE DMCA ISSUES AND WHY THEY'RE

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INEXTRICABLY INTERTWINED --

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MR. SCHULTZ:

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THE HONORABLE SANDRA S. IKUTA: -- IF WE'RE LOOKING

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OKAY.

AT THE PRELIMINARY INJUNCTION STANDARD.

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MR. SCHULTZ:

OKAY.

YOUR HONOR, THE ISSUE -- THE

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ISSUE BECOMES WHETHER OR NOT THERE WAS CONSTRUCTIVE NOTICE

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HERE.

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THE HONORABLE SANDRA S. IKUTA:

DIDN'T THE DISTRICT

COURT JUST ASSUME CONSTRUCTIVE NOTICE?
MR. SCHULTZ:

THE DISTRICT COURT ACTUALLY --

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ACTUALLY DID NOT ADDRESS THE ISSUE OF CONSTRUCTIVE NOTICE.

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IT SAID THAT OUR NOTICES DID NOT PROVIDE CONSTRUCTIVE NOTICE.

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AND, THEN, IT TURNED ON TO SAY THAT, IN FACT, IF THERE WAS --

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IF THERE WAS CONSTRUCTIVE NOTICE, THEN, THERE WAS SIMPLE

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MEASURES THAT -- THERE WERE NO SIMPLE MEASURES THAT COULD

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HAVE BEEN TAKEN.

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BUT IT SEEMS TO ME THE SIMPLEST MEASURES -- IF THE

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NOTICES WERE SUFFICIENT, YOUR HONOR, AND IF THE NOTICES

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COMPLIED WITH THE DMCA, THEN, THE SIMPLEST MEASURE WOULD HAVE

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BEEN THROUGH REMOVING INFRINGING MATERIALS.

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SO, THEREFORE, THAT'S THE MAJOR REASON WHY THE
ISSUE OF THE UNDERLYING NOTICES IS DIRECTLY RELEVANT HERE.

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THE HONORABLE SANDRA S. IKUTA:

YOU'RE SAYING THAT

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IF THE NOTICES WERE ADEQUATE, THEN, PER SE THERE WERE SIMPLE

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MEASURES.

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MR. SCHULTZ:

I'M SAYING IF THE NOTICES WERE

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ADEQUATE, A SIMPLE MEASURE WOULD HAVE BEEN REMOVING THE

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INFRINGING IMAGES.

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AND EVEN IF THERE WAS NOTICE OUTSIDE -- EVEN IF

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THERE WAS KNOWLEDGE OUTSIDE THE NOTICES, WHETHER OR NOT THE

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NOTICES WERE COMPLIANT, THERE STILL WERE SIMPLE MEASURES THAT

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COULD HAVE BEEN TAKEN.

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THE HONORABLE SANDRA S. IKUTA:

AND IF WE FOUND

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THAT THE DISTRICT COURT WAS RIGHT, AT LEAST IN CERTAIN

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INSTANCES, SAY, IN GROUP C, THAT DMCA NOTICES WERE NOT

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COMPLIANT -- OR WERE DEFICIENT UNDER THE DMCA, DOES THAT MEAN

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THERE WEREN'T SIMPLE MEASURES?

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MR. SCHULTZ:

IS --

NO, YOUR HONOR, BECAUSE --

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THE HONORABLE SANDRA S. IKUTA:

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MR. SCHULTZ:

WOULD --

BECAUSE -- LET ME GIVE YOU ANOTHER

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EXAMPLE.

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COURT HAD -- THAT GOOGLE HAD KNOWLEDGE OF INFRINGEMENT ON ITS

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SYSTEM.

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TO CHILLING EFFECTS.

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THERE WERE A VARIETY OF DIFFERENT WAYS THAT THE

IT WAS, FOR EXAMPLE, FORWARDING PERFECT 10'S NOTICES

A SIMPLE MEASURE THAT WOULD HAVE REDUCED THE DAMAGE

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ON ITS SYSTEM COULD HAVE BEEN TO STOP FORWARDING THE LIVE

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LINKS AND THE PICTURES WITHOUT REDACTING THEM.

IT COULD HAVE

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STOPPED CONNECTING TO THOSE.

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VARIETY OF STEPS TO LOOK AT THE IMAGES THAT WERE ON ITS

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SYSTEM.

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COULD HAVE GOTTEN IN TOUCH WITH US IF OUR NOTICES WERE

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ALLEGEDLY DEFICIENT.

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IT COULD HAVE TAKEN A WHOLE

IT COULD HAVE ATTEMPTED TO PROCESS OUR NOTICES.

IT

AND, IN FACT, GOOGLE CLAIMED THAT EACH AND EVERY

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ONE OF OUR NOTICES WAS DEFICIENT AND NEVER BOTHERED TO

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EXPLAIN TO US WHAT WAS A COMPLIANT NOTICE.

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SYSTEM OF THE DMCA IT WAS SUPPOSED TO BE A BACK AND FORTH.

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UNDER THE WHOLE

GOOGLE COULD HAVE GOTTEN IN TOUCH WITH PERFECT 10

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AND SAID, THIS IS HOW YOU MAKE A NOTICE COMPLIANT.

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WHAT WE NEED TO DO TO ADDRESS THE SIGNIFICANT AND MASSIVE

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INFRINGEMENT ON OUR SYSTEM, AND IT SIMPLY DID NOT DO SO.

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THE HONORABLE ALEX KOZINSKI:

I'M SORRY.

THIS IS

WHERE IS

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THIS REQUIREMENT THAT THEY EDUCATE YOU AS TO HOW TO BE

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COMPLIANT WITH THE LAW?

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MR. SCHULTZ:

WELL, THERE IS A -- THERE IS THE

NOTION THAT -THE HONORABLE ALEX KOZINSKI:

EVEN THOUGH THIS IS

LAWFULLY COMPLIANT --

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MR. SCHULTZ:

I'M SORRY?

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THE HONORABLE ALEX KOZINSKI:

EVEN THOUGH THE

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NOTICE IS LAWFULLY COMPLIANT OR IT'S NOT LAWFULLY COMPLIANT.

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AND IF IT IS, THEN, YOU DON'T NEED TO CHANGE ANYTHING.

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MR. SCHULTZ:

CORRECT, YOUR HONOR.

THE HONORABLE ALEX KOZINSKI:

AND IF IT'S NOT, I

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DON'T SEE WHERE THERE IS A REQUIREMENT THAT THEY TEACH YOU

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HOW TO BE LAWFULLY COMPLIANT.

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MR. SCHULTZ:

WELL, I BELIEVE THAT THERE'S

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CERTAINLY A REQUIREMENT TO WORK TOGETHER TO TRY TO MAKE THIS

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THE LEAST POSSIBLE BURDEN.

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WHAT IS OR ISN'T BURDENSOME HERE.

THERE'S A WHOLE DISCUSSION OF

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THE HONORABLE ALEX KOZINSKI:

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MR. SCHULTZ:

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THE HONORABLE ALEX KOZINSKI:

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IT MAY BE A --

AND -IT MAY BE A GOOD IDEA

OR MAY NOT, BUT WHERE'S THE REQUIREMENT?
MR. SCHULTZ:

WELL, I THINK -- I THINK THE STATUTE

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DOES TALK ABOUT -- I THINK THE STATUTE DOES TALK ABOUT THAT

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IF THE NOTICES ARE SUBSTANTIALLY COMPLIANT, THEN, THERE IS

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SUPPOSED TO BE ON THE PART OF THE ISP DISCUSSING HOW THOSE

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NOTICES CAN BE MADE COMPLETELY COMPLIANT.

I THINK THAT'S

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512(C)(3)(B), YOUR HONOR, BUT I WILL -- I CAN COME BACK AND

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GET YOU THE EXACT CITE DURING OUR REBUTTAL.

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THE HONORABLE SANDRA S. IKUTA:

COULD I ASK YOU

ABOUT A DIFFERENT ISSUE?

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MR. SCHULTZ:

ABSOLUTELY, YOUR HONOR.

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THE HONORABLE SANDRA S. IKUTA:

THE DISTRICT COURT

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SAID THAT PERFECT 10 DID NOT REALLY PRESENT ANY EVIDENCE OF

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IRREPARABLE HARM, THE BALANCE OF THE EQUITIES, OR THE PUBLIC

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INTEREST ON THE PRELIMINARY INJUNCTION STANDARD.

AND THE

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DISTRICT COURT RAISED SOME QUESTION ABOUT WHETHER WE SHOULD

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-- WHETHER THE PRESUMPTION OF IRREPARABLE HARM WAS STILL

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AVAILABLE.

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SORT OF UNDERLIES WHAT THE SUPREME COURT SAID IN EBAY, THAT

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THERE'S NO PRESUMPTION OF IRREPARABLE HARM.

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AND SINCE THEN WE'VE HAD THE MONSANTO CASE, WHICH

ASSUMING THAT WE CAN'T PRESUME IT THEN, WHAT

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EVIDENCE DID PERFECT 10 PRODUCE ON IRREPARABLE HARM AND WHAT

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EVIDENCE ON BALANCE OF EQUITIES AND PUBLIC INTEREST, THE

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OTHER STEPS?

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MR. SCHULTZ:

YOUR HONOR, WE SUBMITTED

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UNCONTROVERTED EVIDENCE THAT PERFECT 10 HAD LOST AN

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ADDITIONAL $20 MILLION SINCE 2005.

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THE HONORABLE SANDRA S. IKUTA:

OKAY.

THE DISTRICT

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COURT SAID YOU DIDN'T MAKE THE CAUSAL LINK BETWEEN YOUR

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FINANCIAL PROBLEMS OR PERFECT 10'S FINANCIAL PROBLEMS AND

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GOOGLE'S ACTIONS.

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DID YOU PRESENT ANY EVIDENCE ON THAT, OR DO YOU NOT
HAVE TO?
MR. SCHULTZ:

WE -- WELL, I'M NOT CERTAIN WHETHER

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WE HAVE TO, YOUR HONOR.

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PRESENTED EVIDENCE THAT AS A RESULT OF THE MASSIVE

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INFRINGEMENT THAT WAS AVAILABLE ON PERFECT 10'S SYSTEM THAT

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WE WERE UNABLE TO SELL OR SELL ANYTHING THAT WAS OFFERED BY

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GOOGLE ON ITS SYSTEM FOR FREE.

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BUT I BELIEVE THAT WE DID.

WE

FOR EXAMPLE, WE SHOWED THAT THE NUMBER OF P-10

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THUMBNAILS ON IMAGE SEARCH HAD INCREASED FROM APPROXIMATELY

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2,500 TO 22,000 WHEN WE WERE BEFORE THE COURT AT THAT TIME.

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AS A RESULT PERSONS WERE ABLE TO LINK TO INFRINGING WEBSITES

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OFFERING AN AVERAGE OF 9,000 -- 9,000 IMAGES.

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THEREFORE, IT SEEMS TO ME THAT WE DID PRESENT SIGNIFICANT

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EVIDENCE OF HARM.

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ABLE TO SELL ANY OF OUR PRODUCT.

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SIGNIFICANTLY.

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UNCONTROVERTED DECLARATION OF DR. ZADA WAS BECAUSE ALL THESE

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MATERIALS WAS AVAILABLE BEFORE --

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AND,

WE WEREN'T -- WE PRESENTED -- WE WEREN'T
OUR REVENUE WENT DOWN

AND ONE OF THE MAJOR REASONS AS STATED IN THE

THE HONORABLE SANDRA S. IKUTA:

WAS THAT SORT OF

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LIKE A RES IPSA LOQUITUR, IF YOU CAN GET IT FREE, WHY BUY IT.

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OR DID YOU HAVE A DECLARATION THAT MADE THAT LINK?

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MR. SCHULTZ:

I BELIEVE THE DECLARATION OF DR. ZADA

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MADE THAT LINK.

BUT I THINK IT'S VERY LOGICAL, YOUR HONOR,

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THAT IF ALL THESE IMAGES ARE BEING DOWNLOADED FOR FREE

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BECAUSE THEY'RE AVAILABLE ON PERFECT 10 -- THEY'RE AVAILABLE

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ON GOOGLE'S SYSTEM THROUGH IMAGE SEARCH OR WEB SEARCH, AND IN

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FACT PERFECT 10 SHOWS THAT ITS INCOME HAS SIGNIFICANTLY

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DECREASED, I THINK THERE IS SORT OF A RES IPSA LOQUITUR

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ARGUMENT THERE.

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OF WHAT PERFECT 10 DID.

BUT WE ALSO STATED THAT IT WAS AS A RESULT

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THE HONORABLE MICHAEL DALY HAWKINS:

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ANY EVIDENCE THAT INDIVIDUALS WHO IN THE PAST PURCHASED

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PROTECTIVE MATERIAL FROM YOUR CLIENT, THEN STOPPED PURCHASING

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DO YOU HAVE

THOSE ITEMS BECAUSE THEY WERE AVAILABLE FOR FREE?
MR. SCHULTZ:

I BELIEVE WE HAVE GENERALIZED

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EVIDENCE, YOUR HONOR, THAT THE NUMBER OF PEOPLE PURCHASING

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ITEMS DECREASED SIGNIFICANTLY.

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PERSON WHO SAID, LOOK, I'M NO LONGER PURCHASING IT.

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I CAN'T POINT TO A SPECIFIC

BUT IT MAKES PERFECT SENSE.

IF YOU'RE ABLE TO GET

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THIS MATERIAL FOR FREE ON THE INTERNET, WHY BOTHER TO PAY

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PERFECT 10.

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THE HONORABLE SANDRA S. IKUTA:

SO, THE DISTRICT

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COURT ALSO SAID THAT THERE WAS NOTHING ON BALANCE OF EQUITIES

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OR THE PUBLIC INTEREST, THAT YOU DIDN'T ADDRESS EITHER OF

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THOSE TWO FACTORS.

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WAS THE DISTRICT COURT WRONG ON THAT?

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MR. SCHULTZ:

I THINK THE DISTRICT COURT WAS WRONG

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ON THAT, YOUR HONOR, BECAUSE I THINK -- THE DISTRICT COURT,

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IN FACT, STATED IN ITS EARLIER OPINION IN THIS CASE THAT THE

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PUBLIC INTEREST IS ALSO SERVED WHEN THE RIGHTS OF COPYRIGHT

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HOLDERS ARE PROTECTED AGAINST ACTS LIKELY CONSTITUTING

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INFRINGEMENT.

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AND FOR THAT MATTER, THE BALANCE OF THE EQUITIES

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AND THE PUBLIC -- THE BALANCE OF THE EQUITIES WHEN THERE'S

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COPYRIGHT INFRINGEMENT -- ALSO, THERE'S CASE LAW THAT WE

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CITED IN OUR PAPERS THAT STATES THAT UNDER THOSE

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CIRCUMSTANCES ONE IS ENTITLED TO INJUNCTIVE RELIEF.

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SO, I THINK THAT THE DISTRICT COURT WAS INCORRECT

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THERE.

IF WE HAVE SHOWN THAT WE'RE ENTITLED TO INJUNCTIVE

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RELIEF BECAUSE OF THE COPYRIGHT INFRINGEMENT THAT EXISTS

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HERE, I THINK WE SATISFY THE OTHER FACTORS AS WELL.

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THE HONORABLE SANDRA S. IKUTA:

OKAY.

BECAUSE THE

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SUPREME COURT SAYS, NO, YOU'VE GOT TO LOOK AT ALL FOUR.

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THEY REVERSED US ON THAT VERY POINT.

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MR. SCHULTZ:

AND

NO, I UNDERSTAND THAT ALL FOUR ARE

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NECESSARY TO LOOK AT.

WHAT I'M SAYING IS I BELIEVE THAT IN

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THIS CIRCUMSTANCE WHERE THERE ARE MILLIONS OF UNAUTHORIZED

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DOWNLOADS, WHERE PEOPLE ARE ABLE TO GET ALL OF THESE

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MATERIALS FOR FREE -- AND WE HAVE UNCONTROVERTED EVIDENCE OF

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THAT FACT -- UNDER THOSE PARTICULAR FACTUAL CIRCUMSTANCES,

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THAT EVIDENCE SATISFIES BOTH THE IRREPARABLE HARM, THE

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SUBSTANTIAL LIKELIHOOD OF SUCCESS AND THE OTHER FACTORS.

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BECAUSE IT IS IN THE PUBLIC INTEREST, AND THE BALANCE OF THE

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EQUITIES DO FAVOR INJUNCTIVE RELIEF UNDER THOSE

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CIRCUMSTANCES.

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THE HONORABLE ALEX KOZINSKI:

LET'S TALK A LITTLE

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BIT ABOUT CHILLING EFFECTS.

I'M NOT SURE I QUITE UNDERSTAND

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HOW THIS WORKS.

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THEN, AFTER THE IMAGE IS TAKEN DOWN, YOU SEND SOMETHING TO

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CHILLING EFFECTS.

YOU GET A NOTICE, A TAKE-DOWN NOTICE.

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WHAT EXACTLY IS IT YOU SEND?

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MR. SCHULTZ:

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THE HONORABLE ALEX KOZINSKI:

AND,

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YOUR HONOR, WE'RE NOT SENDING -NOT YOU.

WHAT IS IT

THAT GOOGLE SENDS?

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MR. SCHULTZ:

GOOGLE.

MY UNDERSTANDING, YOUR

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HONOR, IS WE'RE SENDING NOTICES AGAIN IDENTIFYING INFRINGING

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PERFECT 10 IMAGES TO CHILLING -- TO GOOGLE.

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TURNING AROUND AND FORWARDING THOSE NOTICES; IN SOME CASES,

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NOTICES THAT THEY HAVEN'T EVEN PROCESSED DIRECTLY TO CHILLING

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EFFECTS.

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THE HONORABLE ALEX KOZINSKI:

GOOGLE IS

SO, IT IS -- WHAT

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THEY'RE SENDING TO CHILLING EFFECTS ARE THE THINGS THAT YOU

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SEND THEM?

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MR. SCHULTZ:

EXACTLY.

NOT ONLY THAT, YOUR HONOR,

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THEY ARE THEN TURNING AROUND AND LINKING TO THE NOTICES OF

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CHILLING EFFECTS.

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SO, FOR EXAMPLE --

THE HONORABLE ALEX KOZINSKI:
THE WORD "YES"?

IS YOUR ANSWER YES?

MR. SCHULTZ:

YES.

HAVE YOU EVER HEARD

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THE HONORABLE ALEX KOZINSKI:

OKAY.

I DON'T WANT A

WHOLE STORY.

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MR. SCHULTZ:

SORRY, YOUR HONOR.

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THE HONORABLE ALEX KOZINSKI:

SO, THE THINGS THAT

5

THEY ARE MOVING -- THEY ARE SENDING ARE ENTIRELY WITHIN YOUR

6

CONTROL?

7

PUT A DISCLAIMER ON THEM.

8

ANYTHING LIKE THAT, RIGHT?

9

I MEAN, YOU COULD DISTORT THE IMAGES.

MR. SCHULTZ:

YOU COULD

YOU COULD PUT YELLOW POLKA DOTS,

THE PROBLEM, YOUR HONOR --

10

THE HONORABLE ALEX KOZINSKI:

11

MR. SCHULTZ:

12

THE HONORABLE ALEX KOZINSKI:

YES OR NO?

YES.
OKAY.

SO, WHAT'S

13

THAT BASED ON?

14

TO CHILLING EFFECTS, AND YOU HAVE IT ENTIRELY WITHIN YOUR

15

POWER OR YOUR CLIENT'S POWER TO DISTORT THE IMAGES TO AVOID,

16

YOU KNOW, THEM BEING USED FOR THE WAY YOU DID IT HERE, WHAT'S

17

YOUR COMPLAINT WITH THEM?

18

IF YOU KNOW THAT THEY'RE GOING TO SEND THEM

MR. SCHULTZ:

WELL, FIRST OF ALL, YOUR HONOR, WHEN

19

WE STARTED SENDING OUR GROUP C NOTICES, WE HAD NO IDEA THEY

20

WERE BEING FORWARDED TO CHILLING EFFECTS.

21

WE ONLY STARTED SENDING THEM BECAUSE PERFECT -- BECAUSE

22

PERFECT 10'S GROUP B NOTICES WERE NOT BEING PROCESSED --

23

THE HONORABLE ALEX KOZINSKI:

24

PRELIMINARY INJUNCTION, RIGHT?

25

WITH FUTURE CONDUCT.

THEY WERE -- AND

BUT WE'RE HERE ON A

SO, YOU'RE TRYING TO DEAL

SO NOW YOU KNOW.

18
1
2

SO, WHY IS THIS SOMETHING FOR WHICH YOU NEED THE
COURT'S HELP?

3

WHY ISN'T IT SOMETHING --

MR. SCHULTZ:

WELL, WE NEED THE COURT'S HELP, YOUR

4

HONOR, BECAUSE THE DISTRICT COURT FOUND THAT IN THIS CASE

5

THERE WAS DIRECT COPYRIGHT INFRINGEMENT.

6

WHATSOEVER IN THE RECORD THAT THESE NOTICES WERE, IN FACT,

7

BEING FORWARDED FOR ANY RESEARCH PURPOSES.

8

ME, WHEREAS HERE THE NOTICES ARE CONTINUING TO BE FORWARDED,

9

THERE ARE TONS OF LINKS TO P-10 IMAGES ON CHILLING EFFECTS

10

AND IT SEEMS TO

STILL THERE.

11
12

THERE'S NO EVIDENCE

WHERE WE'RE TRYING TO FORWARD OUR NOTICES IN SUCH A
WAY THAT THE IMAGES CAN BE REMOVED.

13

WHERE THE IMAGES CLEARLY IDENTIFY BOTH THE

14

INFRINGED MATERIAL AND THE INFRINGING MATERIAL, IT SEEMS TO

15

ME UNDER THE FAIR USE FACTOR ANALYSIS IT'S THEIR BURDEN --

16

IT'S GOOGLE'S BURDEN, AND THEY HAVE NOT SATISFIED THAT

17

BURDEN.

18
19
20

THE HONORABLE ALEX KOZINSKI:

THIS MAY OR MAY NOT

BE TRUE, BUT YOU DIDN'T ANSWER MY QUESTION.
WHY DO YOU NEED THE COURT'S HELP, WHY DO YOU NEED

21

TO EXERCISE THE COURT'S EQUITABLE JURISDICTION AUTHORITY WHEN

22

YOU COULD SOLVE THE PROBLEM YOURSELF?

23

MR. SCHULTZ:

24

THE HONORABLE ALEX KOZINSKI:

25

THAT WAS MY QUESTION.

BECAUSE, YOUR HONOR -THE ANSWER YOU GAVE

ME WAS A LEGAL ARGUMENT AS TO WHY YOU'RE ENTITLED TO RELIEF.

19
1

MR. SCHULTZ:

BUT LET ME ADD ONE MORE POINT THEN,

2

YOUR HONOR.

3

HAVE LIVE LINKS, THAT WE -- THAT ARE REMAINING LIVE.

4

CAN'T DO ANYTHING ABOUT THOSE, YOUR HONOR.

5

THOSE NOTICES ARE BEING FORWARDED TO CHILLING EFFECTS, WE

6

HAVE TO POINT OUT THE LINKS IN ORDER TO SEND THE NOTICES IN

7

THE ADOBE FORMAT THAT WILL ALLOW THEM TO BE PROCESSED.

8

THAT'S HOW WE HAVE TO DO IT.

9

DAMNED IF YOU DON'T.

10

IT SEEMS TO ME THAT IN ADDITION THESE NOTICES
WE

GOOGLE -- WHEN

WE'RE SORT OF DAMNED IF YOU DO,

IF WE SEND THEM IN A FORMAT WHERE THEY CAN'T BE

11

PROCESSED, THEY'RE DEFICIENT.

12

ADOBE WHERE THEY HAVE THESE LIVE LINKS, THEY NOT ONLY REFUSE

13

TO PROCESS THE NOTICES, BUT THEY FORWARD THE LIVE LINKS TO --

14
15

WHERE WE TRY TO SEND THEM IN

THE HONORABLE ALEX KOZINSKI:

LINKS, YOU MEAN IF YOU CLICK ON THEM, THEY TAKE YOU THERE?

16

MR. SCHULTZ:

17

THE HONORABLE ALEX KOZINSKI:

18
19
20
21
22
23
24
25

WHEN YOU SAY LIVE

BE LIVE LINKS?

EXACTLY.

THEY TAKE YOU THERE AND -WHY DO THEY HAVE TO

WHY CAN'T THEY BE DEAD LINKS?

MR. SCHULTZ:

BECAUSE IN ADOBE, YOUR HONOR, I

BELIEVE THAT'S THE WAY THAT THE NOTICES ARE FORWARDED.
THE HONORABLE ALEX KOZINSKI:

AND YOU CAN'T GET

ADOBE TO GIVE YOU JUST SIMPLY A PRINTED LINK NOT A LIVE LINK?
MR. SCHULTZ:

I DON'T BELIEVE SO, YOUR HONOR, BUT

I'M NOT CERTAIN -THE HONORABLE ALEX KOZINSKI:

BUT IF YOU'RE WRONG

20
1

--

2

MR. SCHULTZ:

3

THE HONORABLE ALEX KOZINSKI:

4
5
6
7

-- OF THAT.
BUT IF YOU'RE WRONG

ABOUT THAT, THAT KILLS YOUR ARGUMENT?
MR. SCHULTZ:
YOUR HONOR.

I DON'T THINK IT KILLS MY ARGUMENT,

BUT --

THE HONORABLE ALEX KOZINSKI:

WELL, WHY DO YOU HAVE

8

TO SEND IT IN ADOBE?

9

SOMETHING THAT IT DOESN'T HAVE THE LIVE LINK IN IT?

10

WHY CAN'T YOU SEND AN IMAGE, A J-PEG OR

IT HAS A FULL LINK.

IT GIVES YOU A FULL -- BUT NOT

11

SOMETHING THAT YOU CAN ACTUALLY CLICK ON.

12

CERTAINLY DO IT IN WORD.

13

TURNS URLS INTO LIVE LINKS.

14

MR. SCHULTZ:

YOU COULD

YOU JUST TURN OFF THE FUNCTION THAT

YOUR HONOR, YOU COULD CERTAINLY DO

15

THAT, AND THEN THEY WOULD BE VERY -- AND, THEN, IT WOULD BE

16

MUCH MORE BURDENSOME FOR ANYONE TO BE ABLE TO PROCESS THOSE

17

NOTICES BECAUSE YOU WOULD THEN HAVE TO --

18

THE HONORABLE ALEX KOZINSKI:

THIS WOULD BE --

19

YOU'RE DOING GOOGLE A FAVOR BY MAKING LIVE LINKS.

20

BEING SARCASTIC.

21

ON THEM TO --

I'M NOT

I'M JUST -- YOU'RE TRYING TO MAKE IT EASY

22

MR. SCHULTZ:

23

YES, YOUR HONOR.

MAKES IT A LOT EASIER.

24

THE HONORABLE ALEX KOZINSKI:

25

MR. SCHULTZ:

I THINK USING ADOBE

OKAY.

I THINK --

IF YOU HAVE NO OTHER QUESTIONS, I'D

21
1

LIKE TO RESERVE MY TIME.

2
3

THE HONORABLE ALEX KOZINSKI:
RESERVE.

WE'LL SEE IF WE GIVE YOU SOME TIME AFTERWARDS.

4

MR. SCHULTZ:

5

THE HONORABLE ALEX KOZINSKI:

6
7
8
9
10
11

YOU HAVE NO TIME TO

THANK YOU, YOUR HONOR.
WE'LL HEAR FROM THE

OTHER SIDE.
MR. SCHAPIRO:

THANK YOU.

MAY IT PLEASE THE COURT,

ANDREW SCHAPIRO FOR THE APPELLEE GOOGLE.
THIS CASE IS HERE ON THE APPEAL OF A DENIAL OF A
MOTION FOR A PRELIMINARY INJUNCTION.
AND AS I THINK MANY OF THE COURT'S QUESTIONS HAVE

12

SUGGESTED, THAT'S A CRITICAL FACT.

13

LEAST FOUR REASONS.

14

IRREPARABLE HARM, THE PLAINTIFFS CANNOT PREVAIL.

15

AND IT'S CRITICAL FOR AT

THE FIRST IS THAT ABSENT A SHOWING OF

THE HONORABLE SANDRA S. IKUTA:

WHAT'S WRONG WITH

16

THE RES IPSA LOQUITUR ARGUMENT?

17

LOT OF COMMON SENSE APPEAL BECAUSE WE'RE REVIEWING THE

18

DISTRICT COURT'S OPINION FOR AN ABUSE OF DISCRETION.

19

WOULD HAVE TO FIND THAT IT MADE -- IT MADE AN ERROR ON THAT.

20

BUT YOU SAY, WELL, IF I CAN GET IT FOR FREE JUST BY PUTTING A

21

MODEL'S NAME INTO THE GOOGLE'S SEARCH ENGINE, WHY AM I GOING

22

TO SUBSCRIBE AND BUY IT.

23

SENSE APPEAL.

24
25

MR. SCHAPIRO:

I MEAN, IT CERTAINLY HAS A

SO, WE

I MEAN, THAT HAS A LOT OF COMMON

SURE.

EXCEPT THAT THE RECORD

CONTAINS EVIDENCE THAT PERFECT 10 HAS NEVER MADE MONEY, YOUR

22
1

HONOR.

IT HAS NEVER MADE MONEY.

2

MAGAZINE IN THIS DAY AND AGE IS HAVING SOME DIFFICULTIES,

3

FINANCIAL OR OTHERWISE, IS NOT EVIDENCE THAT IT IS BEING

4

IRREPARABLY HARMED BY GOOGLE.

5

PUT IN A DECLARATION THAT HAS SOMETHING MORE THAN

6

SPECULATION, THAT HAS SOME EXPERT ANALYSIS PROVIDING

7

CAUSALITY.

8

AND THE FACT THAT A

IT WOULD BE SIMPLE ENOUGH TO

BUT EVEN IF -- EVEN IF THERE WERE A SHOWING THAT

9

PERFECT 10 WAS LOSING MONEY BECAUSE OF GOOGLE -- AND THERE IS

10

NO SUCH SHOWING IN THE RECORD -- THAT'S NOT IRREPARABLE HARM.

11

THE HONORABLE SANDRA S. IKUTA:

WELL, THEY MAKE --

12

MR. SCHAPIRO:

13

THE HONORABLE SANDRA S. IKUTA:

14

THAT THEY'RE LOSING MONEY. IT'S THE CAUSAL LINK --

THAT'S COMPENSABLE.

15

MR. SCHAPIRO:

16

THE HONORABLE SANDRA S. IKUTA:

THEY MAKE A SHOWING

THEY'VE ALWAYS BEEN LOSING MONEY.
IT'S THE CAUSAL--

17

THEY'RE LOSING MORE MONEY MORE RAPIDLY AS THE THUMBNAILS

18

INCREASE.

19

FOUND WAS LACKING.

20

THERE'S A DECLARATION.

21

IT WAS THE CAUSAL LINK THAT THE DISTRICT COURT
AND THEY SAID, WELL, WE STATED IT.

MR. SCHAPIRO:

AND IT'S ALSO COMMON SENSE.
SO, I DON'T THINK THAT THE EVIDENCE

22

SHOWS THAT THE RATE OF LOSING MONEY HAS INCREASED.

BUT EVEN

23

IF IT WERE, AND EVEN IF THIS COURT WERE WILLING -- AND I

24

DON'T THINK IT SHOULD -- TO OVERLOOK THE CAUSATION PROBLEM,

25

THAT'S STILL NOT IRREPARABLE HARM BECAUSE IT'S MONEY DAMAGES.

23
1

SO, THEY HAVEN'T MADE OUT THAT ELEMENT OF A SHOWING.

2

THEY'VE ALSO DELAYED TWO YEARS.

AND THE CASES OF

3

THIS COURT SUGGEST THAT A DELAY OF FAR MORE -- OF FAR LESS,

4

RATHER, IS ENOUGH TO DEFEAT ANY CLAIM OF IRREPARABLE HARM.

5

BUT THERE ARE OTHER REASONS WHY THE POSTURE --

6

THE HONORABLE ALEX KOZINSKI:

7
8

CAN YOU GIVE ME THE

DELAY, FROM WHEN TO WHEN.
MR. SCHAPIRO:

IT WAS TWO YEARS FROM THE TIME THE

9

CASE WAS SENT BACK TO THE DISTRICT COURT TO THE TIME THAT

10

THERE WAS THE SECOND MOTION FOR A PRELIMINARY INJUNCTION.

11
12
13

AND THE TIMING OF IT IS INTERESTING AND WORTH
ATTENTION BECAUSE SUMMARY JUDGMENT PAPERS -THE HONORABLE ALEX KOZINSKI:

BUT MY GUESS THE

14

DISTRICT COURT WOULD HAVE BEEN VERY UNHAPPY WITH THEM IF THEY

15

HAD FILED A PRELIMINARY INJUNCTION MOTION RIGHT AFTERWARDS.

16

YOU KNOW, YOU HAVE TO BE PRETTY CAREFUL.

17

BE PRETTY TOUCHY.

18

DISTRICT COURT.

19

BURDENED WITH UNNECESSARY, PREMATURE MOTIONS.

20

DISTRICT JUDGES CAN

YOU PROBABLY KNOW THAT.

YOU PRACTICE IN

AND THEY DON'T LIKE TO HAVE THEIR DOCKETS

MR. SCHAPIRO:

THAT IS CERTAINLY TRUE.

AND,

21

UNFORTUNATELY, THIS WAS AN UNNECESSARY AND PREMATURE MOTION.

22

THIS MOTION WAS FILED --

23

THE HONORABLE ALEX KOZINSKI:

YOU CAN'T TAKE A

24

POSITION IT'S BOTH PREMATURE AND TOO LATE.

I MEAN, TWO

25

MINUTES AGO YOU SAID, OH, THEY WAITED TWO YEARS.

NOW YOU'RE

24
1

SAYING IT'S PREMATURE.

2

MR. SCHAPIRO:

I'M SORRY.

MY POINT, YOUR HONOR,

3

WAS THAT THEY PULLED THE TRIGGER ON THIS ON THE EVE OF A

4

DECISION ABOUT SUMMARY JUDGMENT.

5

OPPORTUNITY, AND THESE PLAINTIFFS WILL HAVE THE OPPORTUNITY

6

TO RAISE THE OBJECTIONS THEY MIGHT HAVE TO JUDGE MATZ'S

7

RULINGS ABOUT THE CONTENT OF THE NOTICES IN DUE COURSE.

8

CASE IS STILL PLAYING ITSELF OUT.

9

WHAT ABOUT THE GROUP B NOTICES, FOR EXAMPLE.

THIS COURT WILL HAVE THE

THIS

YOUR HONOR ASKED EARLY ON,
AND COUNSEL FOR

10

THE PLAINTIFF SAID, WELL, WE'RE NOT SURE WHICH ONES WERE

11

RULED APPROPRIATE OR NOT APPROPRIATE.

12

RAN IN, SOUGHT A PRELIMINARY INJUNCTION.

13

SUPPOSED TO BE THE NEXT STEP IN THE DISTRICT COURT BELOW.

14

THAT'S BECAUSE THEY

THE HONORABLE SANDRA S. IKUTA:

AND THAT WAS

BUT ISN'T THAT JUST

15

ON THE DMCA NOTICES.

16

CORRECT, THE SUMMARY JUDGMENT PENDING BEFORE THE DISTRICT

17

COURT?

18
19

SO, IT'S JUST ON GOOGLE'S SAFE HARBOR,

OR IS IT ALSO ON THE INFRINGEMENT CLAIMS?
MR. SCHAPIRO:

SUMMARY JUDGMENT IS ON THE DMCA SAFE

HARBOR ONLY.

20

THE HONORABLE SANDRA S. IKUTA:

SO, EVEN IF GOOGLE

21

PREVAILED, THE DISTRICT COURT STILL HAS TO FASHION INJUNCTIVE

22

RELIEF.

23

IT'S JUST LIMITED BY THE DMCA.
MR. SCHAPIRO:

IT'S LIMITED AND, IMPORTANTLY -- AND

24

THIS IS ANOTHER REASON WHY THIS COURT NEED NOT REACH THE

25

ISSUES UNDERLYING PLAINTIFF'S ARGUMENTS -- THERE'S NOTHING

25
1

LEFT TO ENJOIN.

2

INTELLIGIBLE NOTICE THAT HAS NOT BEEN PROCESSED AND THAT HAS

3

NOT BEEN DISABLED.

4

THERE IS NOTHING IN ANY SUFFICIENT OR

AND THAT'S AN EXTREMELY --

THE HONORABLE SANDRA S. IKUTA:

5

RIGHT?

6

DIDN'T AGREE WITH YOU ON THAT POINT.

7

THAT'S WHAT'S IN DISPUTE?

THAT'S THE DISPUTE,

MR. SCHAPIRO:

I MEAN, THE DISTRICT COURT

EVEN THE GROUP B NOTICES, MY

8

UNDERSTANDING IS THAT EVEN THE REMAINING GROUP B NOTICES AND

9

EVEN THE -- SOME OF THE DIFFICULT-TO-UNDERSTAND NOTICES HAVE

10
11

NOW BEEN PROCESSED.

THERE'S SOME --

THE HONORABLE SANDRA S. IKUTA:

HOW ABOUT THE 95

12

NOTICES THAT THEY CLAIM THE DISTRICT COURT OVERLOOKED IN THE

13

PRELIMINARY INJUNCTION MOTION?

14

MR. SCHAPIRO:

15

PROCESSED AS WELL.

16

MOST OF THOSE HAVE NOW BEEN

DISTRICT COURT.

17

THEY'VE NOT YET BEEN CONSIDERED BY THE

BUT GOOGLE HAS ALWAYS THROUGHOUT HAD A SIMPLE

18

STANCE IN THIS CASE THAT HAS SAID -- AND IN ITS DEALINGS WITH

19

PERFECT 10, THAT HAS SAID, TELL US WHAT THE MATERIAL IS, GIVE

20

IT TO US IN SOME CLEAR WAY, SHOW US THEY OWN IT, AND WE'LL

21

TAKE IT DOWN.

22

SO, WE HAVE GONE ABOVE AND BEYOND IN THE CASE OF

23

MANY OF THESE DEFECTIVE NOTICES.

24

TO, BUT WE HAVE DONE THAT.

25

WE DON'T HAVE AN OBLIGATION

AND THERE WAS A DIALOGUE BETWEEN JUDGE KOZINSKI AND

26
1

THE LAWYER FOR THE PLAINTIFFS EARLIER ABOUT WHETHER THERE'S

2

AN OBLIGATION FOR US TO WORK WITH THE PLAINTIFFS TO TRY AND

3

HELP THEM SOLVE THE DEFECTS IN THEIR NOTICES.

4

AND THE RECORD IS VERY CLEAR ON THAT, THAT GOOGLE

5

HAS, WHETHER WE'RE REQUIRED TO OR NOT, REACHED OUT TO

6

PLAINTIFFS TIME AND TIME AGAIN.

7

THIS IN THE SUPPLEMENTAL EXCERPTS FROM RECORD AT PAGE 1780.

8

YOU'LL FIND AN EMAIL FROM GOOGLE POLITELY ASKING FOR SOFT

9

COPY SPREADSHEETS, WHICH IS ALL WE WANT --

10

AND THERE'S CITATIONS FOR

THE HONORABLE SANDRA S. IKUTA:

LET ME JUST TAKE A

11

STEP BACK FOR A MINUTE.

AND THIS IS WHAT I WAS STRUGGLING

12

WITH ON THE CONTRIBUTORY INFRINGEMENT ARGUMENT AND THE SIMPLE

13

MEASURES ARGUMENT.

14

BECAUSE GOOGLE IS SO EFFECTIVE AS A SEARCH ENGINE

15

-- I MEAN, THEY NOW REALLY ASSISTED ALL OF THESE INFRINGING

16

SITES TO MULTIPLY THEMSELVES IMMENSELY.

17

CAN BE A BIG DISPUTE ABOUT THAT.

18

WELL, LOOK, YOU HAVE THIS SIMILAR IMAGES SEARCH.

19

GO THROUGH AND GET ALL OF THE IMAGES THAT THEY'VE INDICATED

20

ARE INFRINGING, THAT ONLY THEY HAVE THE RIGHT TO DISPLAY, AND

21

YOU COULD BLOCK ALL THOSE URLS.

22

I DON'T THINK THERE

AND, THEN, PERFECT 10 SAYS,
YOU COULD

THAT ARGUMENT HAS SOME APPEAL GIVEN GOOGLE'S

23

CURRENT EXISTING TECHNOLOGY THAT IT'S USING.

24

WHEN YOU LOOK AT -- IS GOOGLE -- DOES IT KNOW OF THE

25

INFRINGEMENT.

YES.

SO, WHY ISN'T

AND COULD IT TAKE STEPS TO BLOCK THESE

27
1

SITES.

2

ALREADY.

3
4

AND THEY ARGUE, YES, THEY HAVE THE TECHNOLOGY

WHY DOESN'T THAT MEET THE CONTRIBUTORY INFRINGEMENT
STANDARD OR TEST?

5

MR. SCHAPIRO:

JUDGE MATZ DID NOT ABUSE HIS

6

DISCRETION TO FIND, A, THAT THE DECLARATION SUBMITTED BY DR.

7

ZADA WAS PURELY SPECULATIVE ABOUT THE POWERS OF IMAGE

8

RECOGNITION.

9
10

BUT MORE IMPORTANTLY, IMAGE RECOGNITION IS NOT
LICENSE RECOGNITION.

11
12

IT'S NOT FAIR USE RECOGNITION.

THE HONORABLE SANDRA S. IKUTA:
-- I KNOW YOU MADE THAT ARGUMENT.

BUT IF PERFECT 10

BUT IF PERFECT 10 SAYS,

13

LOOK, WE GIVE OUR MODEL A DIFFERENT NAME, AN ALIAS.

14

YOU FIND ANYTHING WITH THAT NAME OR ANY IMAGE WITH THAT NAME,

15

IT'S ONLY -- WE'RE THE ONLY ONES WHO HAVE THE RIGHT TO USE

16

IT.

17
18
19

SO, IF

AND, THEN, YOU CAN GET A COUNTER NOTICE IF YOU
MISTAKENLY TAKE DOWN AN IMAGE WHERE THE PERSON HAS A LICENSE.
MR. SCHAPIRO:

UNFORTUNATELY, IT'S SIMPLY NOT TRUE

20

THAT THEY'RE THE ONLY PEOPLE ENTITLED TO USE THOSE

21

LIKENESSES.

22

EXCERPTS OF RECORD AT PAGES 2136 TO 2196 WHERE WE HAVE A

23

WHOLE SERIES OF COUNTER NOTIFICATIONS --

I'LL DIRECT THE COURT TO THE SUPPLEMENTAL

24

THE HONORABLE ALEX KOZINSKI:

25

MR. SCHAPIRO:

PARDON ME?

WHAT VOLUME IS THAT?

28
1
2

THE HONORABLE ALEX KOZINSKI:

DO YOU KNOW WHAT

VOLUME IT IS?

3

(MR. SCHAPIRO BRIEFLY CONFERRING.)

4

THE HONORABLE ALEX KOZINSKI:

5

MR. SCHAPIRO:

6

IS IT A SUPPLEMENTAL?

IT'S IN A SUPPLEMENTAL, 2136 TO

2196.

7

THE HONORABLE ALEX KOZINSKI:

8

MR. SCHAPIRO:

9

THE HONORABLE ALEX KOZINSKI:

10

MR. SCHAPIRO:

2136 TO 2196, VOLUME X.
VOLUME X.

GO AHEAD.

11

136?

AT THOSE PAGES THE COURT WILL FIND

12

MANY EXAMPLES OF COUNTER NOTIFICATIONS, ONE IN WHICH AN

13

AUTHOR POINTS OUT THAT HE HOLDS LICENSES FOR THE IMAGES AT

14

ISSUE; ANOTHER IN WHICH THE AUTHOR EXPLAINS THAT HE ONLY CAME

15

TO LEARN OF THE TAKE-DOWN FROM THE CHILLING EFFECTS -- FROM

16

THE CHILLING EFFECTS WEBSITE.

17

SIMILARLY, A COUNTER NOTIFICATION IN WHICH THE

18

AUTHOR DESCRIBES PERFECT 10'S DMCA NOTICE AS VAGUE AND

19

INCOMPREHENSIBLE AND SAYS, I QUOTE, YOU CAN'T EVEN TELL WHICH

20

IMAGE OR FILE THEY'RE COMPLAINING ABOUT.

21

AND NEITHER CAN WE.

22

SO, THE MERE FACT THAT THERE'S SOME SPECULATION IN

23

THE RECORD SUGGESTING THAT THE IMAGE TECHNOLOGY -- IMAGE

24

RECOGNITION TECHNOLOGY OUT THERE EVEN IF IT DIDN'T HAVE THE

25

OTHER DEFECTS, EVIDENTIARY DEFECTS, WOULD ALSO SUFFER FROM

29
1

THE -- THAT IMAGE RECOGNITION TECHNOLOGY IS NOT INFRINGEMENT

2

RECOGNITION TECHNOLOGY.

3

THE HONORABLE SANDRA S. IKUTA:

WELL, THEY DID HAVE

4

NUMEROUS PAGES SHOWING SIMILAR IMAGE.

5

DOES HAVE THAT CAPABILITY.

6

THAT WERE SENT TO THE DISTRICT COURT.

7

MC PHATTER DECLARATION, AND THERE WAS THE TIN EYE MATERIAL.

8

SO, THEY HAD MORE THAN THE ZADA DECLARATION.

9

WHETHER THAT WAS NOT SHOWN TO THE DISTRICT COURT OR WHY THE

10

DISTRICT COURT SAID THAT ALL THAT WAS PRESENTED WAS THE ZADA

11

DECLARATION.

12

MR. SCHAPIRO:

AND I KNOW THAT GOOGLE

AND THEY HAVE THE PAGES THERE
AND THERE WAS THE

I'M WONDERING

HERE'S WHAT THE MC PHATTER

13

DECLARATION SAID, YOUR HONOR.

14

TO HAVE IMAGE RECOGNITION TECHNOLOGY.

15

ON HIS USE OF IMAGE SEARCH HE HAS NO KNOWLEDGE OF GOOGLE

16

TECHNOLOGY. HE WAS NEVER DISCLOSED AS AN EXPERT.

17

METHODOLOGY OR BASIS FOR THE OPINION.

18

ADDRESS -- SORRY.

19

RECOGNITION TECHNOLOGY.

20

IT SAID, QUOTE, GOOGLE APPEARS
AND HE SAID THAT BASED

NO

AND HE DOES NOT

AND O'CONNOR DOES NOT ADDRESS IMAGE

WE FIND OURSELVES HERE IN THE UNITED STATES COURT

21

OF APPEALS BATTLING ABOUT THESE EVIDENTIARY ISSUES.

AND I

22

THINK THAT THAT ILLUSTRATES WHY THIS FIGHT IS IN THE WRONG

23

COURTROOM, UNLESS THERE'S SOME STRONG BASIS FOR AN

24

INJUNCTION.

25

I'VE WALKED INTO A DISTRICT COURT.

AND I LOOK AT THESE EXHIBITS, AND I FEEL LIKE

30
1

BUT THESE ARE NOT THE FACTS THAT WERE FOUND BY THE

2

DISTRICT COURT.

3

CLEARLY ERRONEOUS.

4

CORRECT.

5

AND THE DISTRICT COURT'S FINDINGS WERE NOT
THEY WERE, IN FACT, WE BELIEVE CLEARLY

THIS CASE CAN BE DISPOSED OF ON OTHER GROUNDS AS

6

WELL.

7

EVEN A SHOWING, BUT THERE WAS NO ARGUMENT MADE BELOW ABOUT

8

PUBLIC INTEREST OR BALANCE OF THE EQUITIES.

9

SOME OF THE FACTS THAT THERE WAS NO SHOWING -- NOT

YOU ASKED QUESTIONS ABOUT THAT, JUDGE IKUTA.

JUDGE

10

MATZ AT PAGE 10027 OF THE EXCERPTS OF RECORD IN HIS DECISION,

11

THE DECISION ON APPEAL, STATED THAT PERFECT 10 MADE NO

12

ARGUMENT, ZERO, ABOUT PUBLIC INTEREST OR BALANCE OF EQUITIES

13

IN ITS MOTION OR ITS REPLY BRIEF.

14
15
16

WHY DOESN'T THAT DISPOSE OF THE ISSUE.

WHY ISN'T

THAT WAIVER.
THE STANDARD OF REVIEW HERE AS WELL IS ONE THAT I

17

THINK COUNSELS AGAINST GETTING DEEPLY INTO THE MERITS OF THIS

18

NOTICE OR THAT NOTICE OR WHETHER GOOGLE CAN USE IMAGE

19

RECOGNITION TECHNOLOGY.

20

AS I SAID EARLIER, THERE WAS ONLY A PARTIAL SUMMARY

21

JUDGMENT ORDER ISSUED BELOW.

22

CONTEXT OF THE DMCA, CAN FIND THEIR WAY TO THIS COURT IN DUE

23

COURSE BUT NOT AT THIS TIME.

24
25

SO, THOSE ISSUES, EVEN IN THE

THE HONORABLE ALEX KOZINSKI:
-- TALK A LITTLE BIT ABOUT BLOGGER.

TALKING A LITTLE BIT

31
1

MR. SCHAPIRO:

2

THE HONORABLE ALEX KOZINSKI:

3

YES.

DIFFERENT CASE IN A WAY.

4

MR. SCHAPIRO:

5

THE HONORABLE ALEX KOZINSKI:

6

9

SURE.

FIRST OF ALL -I MEAN, IT PRESENTS A

DISCRETE ISSUE.

7
8

THIS IS SORT OF A

MR. SCHAPIRO:

IT WASN'T UP BEFORE THE COURT

BEFORE.
FIRST OF ALL, SINCE WE ARE AGAIN IN THE PRELIMINARY

10

INJUNCTION POSTURE, THERE'S BEEN NO SHOWING OF IRREPARABLE

11

HARM RELATING TO BLOGGER.

12

UNDERLYING LIABILITY, IT INVOLVES ONLY PASSIVE PROCESSING OF

13

USER'S UPLOADS.

14

DIRECT INFRINGEMENT.

15
16

IT INVOLVES ONLY -- AS TO

SO, THERE'S LITTLE LIKELIHOOD OF SUCCESS ON
AND ON --

THE HONORABLE ALEX KOZINSKI:

BUT THOSE IMAGES ARE

ON GOOGLE'S OWN SERVERS.

17

MR. SCHAPIRO:

YES, MANY OF THEM ARE.

18

THE HONORABLE ALEX KOZINSKI:

19

MR. SCHAPIRO:

20

THE HONORABLE ALEX KOZINSKI:

YES.

AND THEN YOU GET --

AND JUST AS THE COURT SAID --

21

THE OTHER PERFECT 10 CASE, RIGHT?

22

SO, THEN YOU GET TO

WHICH TALKED ABOUT

CARRYING THINGS ON, YOU KNOW, A SERVER.

23

MR. SCHAPIRO:

THE ISSUE WAS LEFT OPEN.

24

THE HONORABLE ALEX KOZINSKI:

25

MR. SCHAPIRO:

SORRY.

THE ISSUE WAS LEFT OPEN.

THE WEIGHT

32
1

OF AUTHORITY -- IN FACT, ALL THE AUTHORITIES HAVE FOUND THAT

2

PASSIVE UPLOADS SUCH AS THIS DO NOT RESULT IN THE STRICT

3

LIABILITY, WHICH IS THE HALLMARK OF DIRECT INFRINGEMENT.

4

THERE'S THE COSTAR CASE.

5

WE CITE IN OUR BRIEF.

6

THERE ARE DISTRICT COURT CASES THAT

BUT BEYOND THAT, THERE IS NO EVIDENCE -- AND JUDGE

7

MATZ CITED THIS -- OF ANY BLOGGER URLS THAT GOOGLE DIDN'T

8

DISABLE.

9

ITS OWN PROBLEMS.

ACTUALLY, THE ONLY ONES WERE IN GROUP C WHICH HAS
BUT OTHER THAN THOSE THAT WERE IN GROUP C

10

THERE ARE NONE THAT WERE NOT DISABLED BY BLOGGER.

11

THERE'S NOTHING TO -- BY GOOGLE.

12

HERE.

13

SO,

THERE'S NOTHING TO ENJOIN

THE HONORABLE SANDRA S. IKUTA:

COULD YOU ADDRESS

14

THE DISTRICT COURT'S DISCUSSION ON THE VICARIOUS LIABILITY ON

15

THE FINANCIAL BENEFIT AND WHETHER THE USE OF THE ADSENSE AND

16

THE CLICKS IS ENOUGH TO GIVE A DIRECT FINANCIAL OR A DIRECT

17

ENOUGH FINANCIAL BENEFIT.

18

MR. SCHAPIRO:

IT'S NOT ENOUGH FOR A DIRECT

19

FINANCIAL BENEFIT.

20

BE A CAUSAL LINK BETWEEN THE INFRINGEMENT OR THE PRESENCE OF

21

THE INFRINGING MATERIAL AND THE FINANCIAL BENEFIT.

22

THE WORK THAT IS DONE BY THE WORD "DIRECT."

23

AS THE ELLISON CASE HOLDS, THERE HAS TO

THE HONORABLE SANDRA S. IKUTA:

THAT'S

SO, THE IMAGES OF

24

THE WOMEN ATTRACT PEOPLE TO THE SITE, AND, THEN, WHEN THEY'RE

25

THERE, THEY CLICK ON THE ADS.

ISN'T THAT THE WHOLE IDEA

33
1
2

BEHIND ADSENSE?
MR. SCHAPIRO:

THE IMPORTANT POINT FOR DIRECT

3

FINANCIAL BENEFIT IS THAT THERE HAS TO BE SOME

4

DIFFERENTIATION BETWEEN THE DRAW FROM LEGITIMATE MATERIAL AND

5

INFRINGING MATERIAL.

6

BENEFIT FROM INFRINGING ACTIVITY, OR ARE YOU JUST GETTING THE

7

SAME SORT OF FINANCIAL BENEFIT YOU WOULD GET FROM RUNNING

8

YOUR SITE IN ANY EVENT.

9

ARE YOU GETTING A DIRECT FINANCIAL

I THINK THE AUTHORITIES ARE SOLID ON THAT.

AND

10

THIS COURT'S ELLISON DECISION CERTAINLY FOUND THAT -- I'M

11

GOING TO QUOTE FROM IT HERE -- "THE ESSENTIAL ASPECT OF THE

12

DIRECT FINANCIAL BENEFIT INQUIRY IS WHETHER THERE IS A CAUSAL

13

RELATIONSHIP BETWEEN THE INFRINGING ACTIVITY AND ANY

14

FINANCIAL BENEFIT A DEFENDANT REAPS."

15

AND IT HELD IN THAT CASE THAT -- THIS COURT HELD

16

RATHER -- THAT THERE WAS NOT A DIRECT FINANCIAL BENEFIT FROM

17

PROVIDING ACCESS TO INFRINGING MATERIAL WHERE THE RECORD

18

LACKED EVIDENCE THAT THE DEFENDANT ATTRACTED OR RETAINED

19

SUBSCRIPTIONS BECAUSE OF THE INFRINGEMENT SPECIFICALLY.

20
21
22

AND THAT'S NOT SATISFIED HERE.

THERE'S CERTAINLY

NOTHING IN THE RECORD THAT WOULD SUPPORT THAT.
NOW, OF COURSE, AS YOU KNOW, YOUR HONOR, VICARIOUS

23

LIABILITY ALSO HAS A SECOND INDEPENDENT FACTOR, AND THAT'S

24

THE RIGHT OR ABILITY TO CONTROL THE INFRINGEMENT.

25

THINK WITH BLOGGER IN PARTICULAR THAT TEST CAN'T BE MET AS

AND I

34
1

WELL.

GOOGLE DOES NOT CONTROL WHAT PEOPLE POST ON BLOGGER.

2

IT DOES TAKE DOWN INFRINGING MATERIAL --

3

THE HONORABLE ALEX KOZINSKI: -- USE BLOGGER YOU

4

HAVE TO CLICK ON AN AGREEMENT OR AGREE TO THE TERMS OF USE.

5

AND I AM GUESSING THE TERMS OF USE INVOLVES PROMISES NOT TO

6

DISPLAY ILLEGAL MATERIAL.

7

MR. SCHAPIRO:

8

THE HONORABLE ALEX KOZINSKI:

9

YES, YES.
INFRINGING MATERIAL,

DEFAMATORY MATERIAL, RIGHT?

10

MR. SCHAPIRO:

YES.

11

THE HONORABLE ALEX KOZINSKI:

12

BUT I'VE READ ENOUGH OF THOSE LICENSES.

13

I AM JUST GUESSING,

OFTEN ENOUGH TO KNOW THAT --

14

MR. SCHAPIRO:

YOU'RE THE ONLY PERSON WHO READS TO

15

THE END OF THEM, YOUR HONOR.

16

THROUGH.

17
18

20
21
22
23
24
25

MOST PEOPLE JUST CLICK RIGHT

BUT, YES, YOUR HONOR, YOU'RE CORRECT.
THE HONORABLE ALEX KOZINSKI:

END OF THEM.

19

I'VE SCROLLED DOWN

I DIDN'T SAY TO THE

I JUST SAID ENOUGH.

THE HONORABLE MICHAEL DALY HAWKINS: -- OUR INTEREST
UP.
MR. SCHAPIRO:

THAT'S ABSOLUTELY TRUE.

BUT MERE

CONTROL OVER THE SITE IS NOT CONTROL OVER THE ENTIRE -THE HONORABLE ALEX KOZINSKI:

WELL, HOW IS THAT

DIFFERENT THAN KICKING SOMEBODY OFF A FLEA MARKET?
MR. SCHAPIRO:

WELL, THE FONOVISA -- IN FONOVISA,

35
1

FIRST OF ALL -- AND I KNOW THAT YOUR HONOR IN THE DISSENT IN

2

THE VISA CASE QUESTIONED THIS, BUT THERE IS MERIT TO THE

3

ARGUMENT THAT IN A CONTROLLED, PHYSICAL SPOT THEY CAN EASILY

4

BE PATROLLED.

5

THEY'RE MASSIVELY AWARE OF WHAT'S GOING ON IN THE FLEA

6

MARKET.

THAT PRESENTS A DIFFERENT SITUATION THAN A BLOG.

7
8

PEOPLE WALK THROUGH AND THEY SEE WHAT'S THERE.

BUT EVEN IF IT DIDN'T -- THE RECORD AS I STATED
BEFORE SHOWS --

9

THE HONORABLE ALEX KOZINSKI:

WELL, I'M SORRY.

I

10

THOUGHT YOU WERE GOING TO TELL ME HOW IS THAT DIFFERENT.

11

JUST SAID, OH, THEY'RE DIFFERENT.

12

THEY DIFFERENT.

13

ON THE DIFFERENCE BETWEEN PHYSICAL SPACE AND CYBER SPACE AND

14

--

15

OH, WELL.

OKAY.

YOU

HOW ARE

I MEAN, YOU KNOW, YOU'RE NOT GOING TO RELY

MR. SCHAPIRO:

NO, NOT ON THAT DIFFERENCE, YOUR

16

HONOR.

IT'S A DIFFERENCE OF THE SIZE, THE SCOPE AND THE

17

ABILITY SIMPLY BY WALKING THROUGH THE FLEA MARKET, FOR

18

EXAMPLE, TO SEE WHAT'S GOING ON THERE.

19

OBLIGATION TO PATROL BLOGGER.

20

GOOGLE HAS NO

BUT IN ANY EVENT IT HAS TAKEN DOWN ANYTHING FOR

21

WHICH IT HAS RECEIVED AN INTELLIGIBLE NOTICE FROM P-10 FROM

22

BLOGGER.

23

THAT HAS A URL THAT CAN BE DISCERNED.

24
25

THERE IS NO INFRINGING MATERIAL STILL ON BLOGGER

THE HONORABLE ALEX KOZINSKI:
ANSWER.

SO, THAT'S YOUR

I MEAN, IT'S PERFECTLY ALL RIGHT.

I JUST WANT TO

36
1
2
3
4

KNOW WHAT YOUR ULTIMATE ANSWER WAS.
AND HOW ABOUT CHILLING EFFECTS.

DOES GOOGLE REALLY

HAVE TO SEND LIVE LINKS TO CHILLING EFFECTS?
MR. SCHAPIRO:

YOUR HONOR WAS ABSOLUTELY CORRECT IN

5

THAT THIS IS A PROBLEM UTTERLY OF PERFECT 10'S OWN MAKING.

6

GOOGLE HAS ASKED PERFECT 10 AGAIN AND AGAIN, A, STOP SENDING

7

IMAGES LIKE THIS IN YOUR DMCA NOTICES.

8

THEY MAKE OUR JOB HARDER, IN FACT.

9

COPY SPREADSHEETS.

10

WANT THEM IN ADOBE.

11

WE DON'T NEED THEM.

PLEASE JUST SEND US SOFT

B, DON'T SEND THEM IN ADOBE.

WE DON'T

THAT ACTUALLY MAKES IT HARDER FOR US.

AND IN TERMS OF WORKING BACK AND FORTH, AS I SAID,

12

STARTING AT PAGE 1780 IN THE SUPPLEMENTAL EXCERPTS, THERE'S A

13

WHOLE EMAIL CHAIN BACK AND FORTH IN WHICH WE'RE TRYING TO GET

14

THEM TO BE COOPERATIVE WITH US.

15

THERE'S NO NEED FOR THEM TO HAVE THIS

16

SELF-INFLICTED WOUND UNLESS PERHAPS THEY WOULD RATHER BE IN

17

LITIGATION THAN IN A MONEY-LOSING SOFT CORE ADULT

18

ENTERTAINMENT BUSINESS.

19

IT'S INEXPLICABLE TO US WHY THEY KEEP --

20

THE HONORABLE ALEX KOZINSKI:

21

MR. SCHAPIRO:

WHAT?

IT'S INEXPLICABLE TO US.

AND WHEN

22

PLAINTIFF'S COUNSEL STOOD UP A FEW MOMENTS AGO AND SAID,

23

WELL, WE HAD NO IDEA THAT --

24
25

THE HONORABLE ALEX KOZINSKI:
BE SURE I UNDERSTAND.

I'M SORRY.

JUST TO

YOU ARE NOT ASKING FOR LIVE LINKS.

37
1

MR. SCHAPIRO:

2

THE HONORABLE ALEX KOZINSKI:

3
4

WE ARE NOT ASKING FOR LIVE LINKS.
AND YOU DON'T LIKE

ADOBE -- YOU DON'T LIKE PDFS.
MR. SCHAPIRO:

WE WANT SOFT COPY SPREADSHEETS SO

5

THAT WE CAN COPY THINGS OUT OF THEM RATHER THAN TO HAVE TO

6

MANUALLY TYPE THEM IN.

AND WE'VE SAID THIS TO PERFECT 10 A

7

HUNDRED DIFFERENT WAYS.

AND THE VAST MAJORITY OF CONTENT

8

OWNERS OUT THERE UNDERSTAND IT EVEN IF THEY HAVE LOTS OF

9

CONTENT, AND THEY PROVIDED IT, AND WE WORK WITH THEM TO DO

10
11

OUR JOB AND DISABLE THE LINKS.
BUT WHEN PLAINTIFF'S COUNSEL SAID A FEW MINUTES AGO

12

THAT HE HAD NO IDEA UNTIL RECENTLY THAT -- THAT PERFECT 10

13

HAD NO IDEA THAT THEIR NOTICES WERE BEING FORWARDED TO

14

CHILLING EFFECTS, I TRULY HAD TO SCRATCH MY HEAD BECAUSE

15

PERFECT 10 ITSELF HAS USED CHILLING EFFECTS AND CITED IT IN

16

LITIGATION, IN THIS LITIGATION.

17

THE COURT CAN LOOK AT THE CHILLING EFFECTS AMICUS

18

BRIEF WHICH HAS SOME OF THOSE CITATIONS.

SO, MAYBE I'M JUST

19

CONFUSED ABOUT THE TIMING, BUT THAT STATEMENT IS HARD TO TAKE

20

SERIOUSLY WHEN THEY'VE USED CHILLING EFFECTS THEMSELVES IN

21

THE LITIGATION.

22

UNLESS THE COURT HAS FURTHER QUESTIONS.

23

THE HONORABLE ALEX KOZINSKI:

24

I'LL HAVE TIME.

25

THANK YOU.

WE'LL GIVE YOU A MINUTE FOR A

REBUTTAL IF YOU WISH TO TAKE IT.

38
1

MR. SCHULTZ:

2

THE HONORABLE ALEX KOZINSKI:

3

HOW MUCH, YOUR HONOR?
ABOUT A MINUTE.

A

MINUTE.

4

MR. SCHULTZ:

WITH RESPECT TO BLOGGER, WE'VE

5

SUBMITTED UNCONTROVERTED EVIDENCE THAT THERE ARE STILL 565

6

BLOG SPOT SITES THAT ARE HOSTING THOUSANDS OF PERFECT 10

7

IMAGES.

8

SIMPLY INCORRECT.

9

SO, THE NOTION THAT GOOGLE HAS DONE EVERYTHING IS
THERE IS IRREPARABLE HARM GOING FORWARD.

WITH RESPECT TO THE ISSUE OF IMAGE RECOGNITION,

10

JUDGE IKUTA GOT IT EXACTLY RIGHT.

THE WAY TO DEAL WITH THIS

11

IS THE COUNTER NOTIFICATION PROCESS.

12

"SEE SIMILAR IMAGE" FUNCTION.

AND GOOGLE CAN USE ITS

13

WITH RESPECT TO THE ISSUE OF WHETHER OR NOT WE'VE

14

SHOWN IRREPARABLE HARM, WE'VE SHOWN UNCONTROVERTED EVIDENCE

15

THAT WE'RE NEAR BANKRUPTCY.

16

FOR THE MOMENT, THE SUPREME COURT IN DORAN SPECIFICALLY --

17

SPECIFICALLY SAYS THAT THAT IS SUFFICIENT TO GET YOU

18

IRREPARABLE HARM.

19

PUTTING THE CAUSAL ISSUE ASIDE

AND, FINALLY, WITH RESPECT TO THE RIGHT AND ABILITY

20

TO CONTROL, IN FACT, GOOGLE IS ABLE TO TAKE DOWN AND DO

21

WHATEVER IT WANTS WITH THESE BLOG SPOT SITES.

22

TO ME THAT'S DIRECT INFRINGEMENT RIGHT THERE.

23
24
25

SO, IT SEEMS

MR. MAUSNER HAS ASKED IF HE COULD HAVE A MINUTE AS
WELL AFTER -THE HONORABLE MICHAEL DALY HAWKINS:

I HAVE A

39
1

QUESTION.

2

MR. SCHULTZ:

YES.

3

THE HONORABLE MICHAEL DALY HAWKINS:

IF WE WERE TO

4

SEND THIS BACK TO DISTRICT COURT AND DIRECT THE ISSUE OF A

5

PRELIMINARY INJUNCTION, CAN YOU BOND AROUND IT?

6

CLIENT BOND IT?

7

MR. SCHULTZ:

I BELIEVE SO.

CAN YOUR

I MUST ADMIT, YOUR

8

HONOR, I HAVE NOT -- I HAVE NOT ASKED MY CLIENT THAT SPECIFIC

9

QUESTION, BUT I BELIEVE WE WOULD BE ABLE TO DO SO.

THAT

10

SHOULD NOT PREVENT YOUR HONORS FROM SENDING US BACK TO THE

11

DISTRICT COURT.

12
13

THE HONORABLE ALEX KOZINSKI:

MR. MAUSNER:

15

THE HONORABLE ALEX KOZINSKI:

YES, ONE MINUTE, YOUR HONOR.

MR. MAUSNER:

18

THE HONORABLE ALEX KOZINSKI:

YOU REPRESENT THE

SAME CLIENT?
MR. MAUSNER:

21

THE HONORABLE ALEX KOZINSKI:

23

YOU

I'M SORRY?

20

22

ALL RIGHT.

REPRESENT SOMEBODY ELSE?

17

19

MR.

MAUSNER WANTS TO SPEAK?

14

16

I'M SORRY.

YES, YOUR HONOR.
OKAY.

WE'LL HEAR A

MINUTE.
MR. MAUSNER:

THE PROVISION OF THE DMCA REQUIRING

24

COOPERATION IS 512(C)(3)(B)(I) -- 512((C)(3)(B)(1).

THE SHOW

25

"SIMILAR IMAGES" WAS SHOWN TO THE DISTRICT COURT, JUDGE

40
1
2

IKUTA.

IT'S AT ER 40211 TO 40235, I BELIEVE.
GOOGLE HAS REPEATEDLY TOLD PERFECT 10 THAT THE

3

SPREADSHEET NOTICES ARE ALL DEFICIENT.

4

STARTED SENDING THE ADOBE GROUP C NOTICES.

5

THAT'S WHY PERFECT 10

AND THE LAST THING, YOUR HONORS, IS GOOGLE HAS

6

CITED TO PAGES 2136 TO 2196, VOLUME X.

THAT'S 60 PAGES OF

7

COUNTER NOTIFICATIONS.

8

OF THOUSANDS OF URLS, AND THERE HAVE ONLY BEEN AT MOST 60

9

COUNTER NOTIFICATIONS THAT THEY SUBMITTED.

PERFECT 10 HAS SENT THOUSANDS -- TENS

10

THAT'S ALL.

11

THE HONORABLE ALEX KOZINSKI:

12

MR. MAUSNER:

13

THE HONORABLE ALEX KOZINSKI: -- WE'RE ADJOURNED.

14

THE CLERK:

15

(PROCEEDINGS CONCLUDED.)

16
17
18
19
20
21
22
23
24
25

OKAY.

THANK YOU, YOUR HONOR.

ALL RISE.