Perfect 10 Inc v. Google Inc et al

Filing 235

NOTICE OF MOTION AND MOTION to Produce Documents - PERFECT 10'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF ITS MOTION TO COMPEL DEFENDANT GOOGLE, INC. TO PRODUCE DOCUMENTS - filed by plaintiff Perfect 10 Inc.Motion set for hearing on 11/19/2007 at 10:00 AM before Magistrate Judge Stephen J. Hillman. (Attachments: #1 Exhibit Earlier Order re Perfect 10's Motion to Compel Defendant Google, Inc. to Produce Documents and to Answer Interrogatories)(Mausner, Jeffrey)

Perfect 10 Inc v. Google Inc et al

Doc. 235

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Jeffrey N. Mausner (State Bar No. 122385) Warner Center Towers, Suite 910 21800 Oxnard Street Woodland Hills, California 91367-3640 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff PERFECT 10, INC.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

PERFECT 10, INC., a California corporation, vs. Plaintiff,

Master File No. CV04-9484 AHM (SHx) DISCOVERY MOTION PERFECT 10 S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF ITS MOTION TO COMPEL DEFENDANT GOOGLE INC. TO PRODUCE DOCUMENTS Hearing Date: November 19, 2007 Time: 10 A.M. Place: Courtroom of Judge Hillman Discovery cut-off, pre-trial conference, and trial dates have not been set by Judge Matz

GOOGLE, INC.; et al., Defendants. AND CONSOLIDATED CASE

PERFECT 10 S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF ITS MOTION TO COMPEL DEFENDANT GOOGLE INC. TO PRODUCE DOCUMENTS
Dockets.Justia.com

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Google has refused to produce any discovery in response to Perfect 10 s 5th, 6th, and 7th requests for production, except for one deposition transcript. Google s claim that the parties did not complete the conference of counsel is incorrect; Perfect 10 s attorney spent a great deal of time meeting and conferring with Google s attorneys, and was not able to reach agreement on any of the discovery requests. After the conference call with the Court on October 23, the parties had an additional conference on October 24, but Google still has not proposed providing any discovery at all. One of the most important areas of discovery involves damages and/or profits of the infringer. Google has not produced any documents at all which allow Perfect 10 to determine its lost sales or Google s profits from infringement. Many of Perfect 10 s requests can be answered by the following materials, which Google has available but is simply unwilling to produce: 1. Frequency of searches, including searches on the names of Perfect 10 models and on the name Perfect 10. (Requests 135-137.) In P10 s First Request propounded in March 2005, Request No. 43 asked for the number of searches on the names of 141 P10 models. The Court deferred ruling on P10 s motion to compel on this request, finding that it is a mega request. In Request Nos. 135 and 137, P10 has now reduced the number of models to nine, so it is clearly not a mega request. This information is essential to one of P10 s damage claims, which would use the number of searches done on P10 models to determine the number of customers who were looking for Perfect 10 content but who did not join P10 s website because the infringing images were available for free using Google. Google must have information regarding the number of searches done on P10 models. Google has a Google Trends program which is available to the public, which provides the relative frequency of searches, but does not publicly provide the actual number of searches. In other words, for example, Google will publicly provide the relative frequency of searches on the name of P10 model Aria Perfect 10 s Supplemental Memorandum in Support of Its Motion to Compel Defendant Google Inc. to Produce Documents
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Giovanni compared to actress Ashley Judd. (See Ex. 10 to Zada Declaration.) In order to do this, Google Trends must have the actual numbers of searches so that it can compute the relative frequency of the searches.1 Another search engine, Overture.com, publicly provides this information regarding number of searches, including searches on the names of P10 models. (See Ex. 11 to Zada Decl.) Google opposes producing this information on the grounds that in the meet and confer regarding a motion to dismiss, P10 indicated it would drop its right of publicity claim from an amended complaint if Google agreed not to file the motion to dismiss. First, this is irrelevant because the discovery relates to damages under P10 s copyright claim as well as right of publicity claim. Second, Google rejected P10 s offer, requiring instead that P10 stipulate to dismiss the right of publicity claim with prejudice. P10 cannot do that. For this reason and others, P10 has decided to keep the right of publicity claim in the case and oppose Google s motion to dismiss. See the rest of the e-mail string (Ex. 14) that took place after the portion of the e-mails that was attached to the Golinveaux decl. Furthermore, despite being ordered to state the percentage of all Google Web and Image searches during the years 2002 and 2005 for the 50 most frequently used search terms, Google has not produced this information (or information on the number of searches) for Web and Image Search for 2005 and for Image Search for 2002. Google has not stated that it does not have this information, it has just not produced it even though it was ordered to do so. (See Order Re Perfect 10 s Motion to Compel Defendant Google, Inc. to Produce Documents, dated May 22, 2006, attached hereto as Exhibit A, page 12 lines 6-18 (Revised Interrogatory No. 24).) 2. The number of searches with the safe search filter off. (Request Nos. 118, 139-143, 145, 147-149, 184.) This information indicates the extent to which
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Google has failed to even produce evidence ordered by the Court, such as the number of searches on Perfect 10 and various sexually explicit search terms (Request Nos. 47 and 48), or the percentage of searches on the top 50 image searches and web searches for 2002 and 2005 (Revised interrogatory 24). Perfect 10 s Supplemental Memorandum in Support of Its Motion to Compel Defendant Google Inc. to Produce Documents
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users are using Google to search for free adult images, which destroys Perfect 10 s business. This information is essential to another damage claim, which will be based upon P10 s share of the adult market; it is also relevant to profits of the infringer, as well as other important issues in this case. See Joint Stipulation, page 16 line 7 to page 17 line 21. Google argues that P10 should be limited to damages discovery relating only to infringement of P10 s images. Joint Stip. page 18 lines 21-28. But Google has not produced that information. 3. Information on the useability of image recognition to locate infringing images in Google s indexes. (Request No. 174.) See Joint Stipulation, page 1 line 20 to page 2 line 12; page 81 line 20 to page 82 line 1 and Exhibit 17 to Zada decl. 4. Information on how the provision of infringing content helps Google s revenues. (Request Nos. 121-124, 135-137, 139, 146, 150, 164, 165, 168, 175178, 185-186, 188-189.) This relates to profits of the infringer, which are recoverable under §504 of the Copyright Act. See Joint Stipulation pages 55-56. All of the above information is readily available to Google, but Google has been unwilling to provide it to Perfect 10. Google assists infringing websites by offering them a Google Analytics feature by which the infringing website can keep track of a whole slew of information, including which images are downloaded and how often, the primary sources of traffic to that website, and a great deal of other information that would help answer Perfect 10 s discovery requests. See Zada declaration and Exhibits 12-13 attached thereto. 5. Google s DMCA log or an equivalent document in which Google keeps a listing of all DMCA notices it received and any notes regarding those notices, including the identity of the website owner, any emails to and from that owner, and action taken. (Request No. 196.) Even though the DMCA log was ordered produced, it has not been produced. (See Order, attached as Ex. A, page 2 line 27 (Request No. 51).) If Google does not have such a DMCA log or any document which contains that information in a spreadsheet or some other readily usable Perfect 10 s Supplemental Memorandum in Support of Its Motion to Compel Defendant Google Inc. to Produce Documents
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format, it should so state. See Joint Stip. p. 82 ln 28 to p. 83 line 4; p. 86 ln 4-22. 6. The identity of the Google employee(s) who processed each Perfect 10 DMCA notice. (Request Nos. 132-133.) The Rule 30(b)(6) witness who was supposed to be most knowledgeable regarding this testified that he did not know the names of the employees that processed any particular notice. 7. Emails and other communications with infringing Google advertising partners and websites that were the subject of Perfect 10 infringement notices. (Request Nos. 168.) Once again, Google has this information but is simply unwilling to produce it. This relates to Google s efforts to stop infringement (if it took any) and its ability to control infringement.2 8. The identity of the Google employees who knowingly assisted infringing websites, as set forth in the Declaration of Luke Sample, and their deposition transcripts. (Request Nos. 197-198, 200.) See Joint Stip. p. 86 ln 25 to p. 88 ln 14. 9. Any agreements that Google or Google advertising affiliates have to use any CELEBRITY images or rights of publicity. (Request Nos. 161-163, 181.) If there aren t any, Google should so state. See Joint Stipulation p. 62 ln. 16 to p. 63 ln. 20. Google can very easily determine what constitutes the images of a CELEBRITY by comparing the name associated with the image to the list of 73 celebrities in the definitions. (See Ex. 1 to Mausner decl., page 3 lines 4-19.) 10. Which newsgroups Google owns. (Requests No. 158-159.) See Joint Stipulation page 81 lines 16-19. 11. Revenues received from other search engines for which Google
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That Perfect 10 sent notices of infringement to Google regarding over 2000 infringing websites is evidence of Google s knowing contribution to massive infringement by these webmasters. Perfect 10 spent years finding its infringements and sending those notices, and Google should not be excused from producing relevant documents simply because of the massive scale of its contribution to infringement. Google must produce its records regarding ownership of the infringing sites that were the subject of Perfect 10 s notices. Google received notices regarding all these websites and Perfect 10 has the right to find out what communications Google had with those websites, if any. Perfect 10 s Supplemental Memorandum in Support of Its Motion to Compel Defendant Google Inc. to Produce Documents
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provided search results. (Request Nos. 190-192.) See Joint Stip. p. 82 ln. 14-22. It is very obvious by now that Google is simply trying to stonewall discovery in this case. Although Google will claim to have produced seven or eight thousand pages of documents, many of those documents are simply multiple copies of the same DMCA notices which Perfect 10 sent to Google. Zada decl. Google s 30(b)(6) witnesses, who were supposed to be the most knowledgeable employees on certain topics, did not know who processed Perfect 10 s DMCA notices, whether there were more image searches or web searches, how to spot likely infringing material, who the heads of various departments were, and answered I don t know as many as over 150 times during a seven hour deposition. Google has produced at most a few hundred emails between itself and infringing advertising affiliates, even though it was ordered to produce communications with many of the infringing websites. (Order attached as Exhibit A, page 5 line 21 to page 6 line 10.) No information has even been produced about how much money Google is making from and paying to these websites. Google has produced next to no meaningful discovery so far, despite enormous resources expended by Perfect 10 and by this Court. Perfect 10 limits its motion regarding Request No. 194 to: All documents relating to John Levine s work for Google. At the minimum, Google should be required to produce existing reports and other internal existing memoranda as requested; there is no excuse for its failure to produce those. Finally, if Google is going to be a $160 billion market cap company that is infringing so much copyrighted material, it should not be allowed to hide behind its massive infringement and claim that all the information regarding its infringement is a mega request. If Google refuses to produce evidence regarding how much of its business is comprised of adult content, infringing content, or celebrity content, it should not be allowed to make the claim that these are only an incidental part of its business. Perfect 10 s Supplemental Memorandum in Support of Its Motion to Compel Defendant Google Inc. to Produce Documents
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Dated: November 5, 2007

Respectfully submitted, Jeffrey N. Mausner

Perfect 10 s Supplemental Memorandum in Support of Its Motion to Compel Defendant Google Inc. to Produce Documents

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