Perfect 10 Inc v. Google Inc et al

Filing 309

PERFECT 10'S OPPOSITION TO GOOGLE'S EX PARTE APPLICATION FOR CONTINUANCE OF HEARING DATE ON MOTION FOR ORDER GRANTING LEAVE TO FILE SECOND AMENDED COMPLAINT; DECLARATIONS OF JEFFREY N. MAUSNER AND DR. NORMAN ZADA IN SUPPORT THEREOF re EX PARTE APPLICATION to Continue Hearing from July 7, 2008 to August 11, 2008 Re: MOTION for Leave to file Second Amended Complaint #297 filed by Plaintiff Perfect 10, Inc.; Ex Parte Application EX PARTE APPLICATION to Continue Hearing from July 7, 2008 to August 11, 2008 Re: MOTION for Leave to file Second Amended Complaint #297 filed by Plaintiff Perfect 10, Inc.; Ex Parte Application #308 filed by Plaintiff Perfect 10 Inc. (Mausner, Jeffrey)

Perfect 10 Inc v. Google Inc et al

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JEFFREY N. MAUSNER (State Bar No. 122385) DAVID N. SCHULTZ (State Bar No. 123094) 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, Plaintiff, v. GOOGLE INC., a corporation; and DOES 1 through 100, inclusive, Defendants. Master Case No.: 04-9484 AHM (SHx) PERFECT 10'S OPPOSITION TO GOOGLE'S EX PARTE APPLICATION FOR CONTINUANCE OF HEARING DATE ON MOTION FOR ORDER GRANTING LEAVE TO FILE SECOND AMENDED COMPLAINT; DECLARATIONS OF JEFFREY N. MAUSNER AND DR. NORMAN ZADA IN SUPPORT THEREOF

Discovery Cut-Off Date: None Set _____________________________ Pretrial Conference Date: None Set Trial Date: None Set AND CONSOLIDATED CASE

Perfect 10's Opposition to Google's Ex Parte Application to Continue Hearing
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Defendant Google, Inc. ("Google") has filed an ex parte application (the "Application"), seeking to continue the hearing on Perfect 10's motion for leave to file its proposed Second Amended Complaint (the "Motion") for at least one month.1 The Application is the latest example of Google's continued attempts to obstruct and delay this case, while Perfect 10's business is dying. Google's Application is based on a false premise ­ that Michael T. Zeller of Quinn Emanuel Urquhart Oliver & Hedges, LLP ("Quinn Emanuel") has been Google's primary litigator in this case. Not only has Mr. Zeller not been the primary litigator for Google, he thus far has been almost completely absent from the case. Declaration of Jeffrey N. Mausner, attached hereto ("Mausner Decl."), ¶2. For example, Mr. Zeller has not been involved in a single meet and confer, has not written any of Google's e-mails relating to the Motion or Perfect 10's attempt to amend, and has not participated in any conversations with counsel for Perfect 10 regarding this issue. With the exception of Mr. Zeller's appearance at one hearing in this case and his attendance as an observer at one deposition in the Amazon case, virtually all of the litigation in this case has been done by Rachel Herrick and Thomas Nolan, two of the other lawyers at Quinn Emanuel. Id. Perfect 10 has been quite accommodating with extensions requested by Google in the past, and would do so again here, except that Google has been needlessly delaying the case, as well as engaging in unnecessary motion practice. For example, despite the fact that Judge Hillman ruled that Perfect 10's president, Dr. Norman Zada, could see all the discovery in this case, Google has refused to allow Dr. Zada to see discovery that Google recently produced in response to this Court's Order of May 13, 2008 (Pacer Docket No. 294). Instead, Google has When it filed the Application, Google failed to comply with this Court's rules regarding ex parte applications. Paragraph 5 of this Court's Procedures and Schedules specifically states that a moving party filing an ex parte application "shall serve the opposing party by FAX , hand service or email ..." Google failed to do so. Perfect 10's counsel only obtained the Application by checking the Pacer Docket. Declaration of Jeffrey N. Mausner, attached hereto, ¶9.
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asserted that, at some future unnamed date, it intends to relitigate the scope of the protective order to prevent Dr. Zada from seeing documents relating to image recognition and search term frequency. Mausner Decl., ¶ 3. Moreover, Google recently threatened Perfect 10 with another ex parte application, if Perfect 10 did not agree to Google's request for an extra month to prepare a portion of its discovery responses, which this Court had ordered Google to produce by June 16, 2008. Perfect 10 agreed to Google's request for a 30 day extension just a few days ago. Id., ¶4. Additionally, after Perfect 10 spent substantial resources to obtain two separate court orders requiring Google to produce its DMCA log, Google still has not produced the log that was ordered by this Court, even though it claims that it has done so. See Declaration of Dr. Norman Zada, attached hereto ("Zada Decl."), ¶ 2.2 Google's other discovery abuses are too numerous to discuss here. Perfect 10 cannot allow Google to keep delaying the ultimate resolution of this case while Perfect 10's business is being ruined. As detailed in the Motion, Google misrepresented and concealed the fact that it stores thousands of infringing full-size copyrighted Perfect 10 images on its servers. Memorandum of Points and Authorities in support of the Motion, filed June 12, 2008 (Pacer No. 297), at 3-6. These misrepresentations led, at least in part, to the denial of Perfect 10's Motion for a Preliminary Injunction. Id. at 1, 3-6. Google's motion contains a number of false or misleading statements. First, Google misleadingly claims that this Court should grant the Application because Perfect 10 waited a year and a half to amend its complaint. Memorandum of Points and Authorities in support of the Application ("Memo") at 3. However, Perfect 10 did not know of Google's misrepresentations and concealments In its Order of June 16, 2008, this Court ordered Google to produce its DMCA log, which was defined as a "spreadsheet-type document summarizing DMCA notices received, the identity of the notifying party and the accused infringer, and the actions (if any) taken in response." Google has not produced such a document, although it claims that it has. Zada Decl., ¶ 2.
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regarding the storing of infringing images on its servers a year and a half ago. Mausner Decl. ¶ 5-6. Second, Google asserts that Perfect 10 failed to disclose the evidence regarding Google's storing of full-size images on its servers during the meet-andconfer process. Memo at 6. As explained in Perfect 10's moving papers in support of the Motion, Perfect 10 offered to provide Ms. Herrick with the evidence supporting its claim that full size images reside on Google's servers (a fact obviously known to Google), and one other factual allegation in the proposed Second Amended Complaint, if Google would then stipulate to the filing of the complaint. Google refused that offer, insisting that Perfect 10 provide proof of all the factual allegations before Google would even consider a stipulation. See Mausner Declaration in support of the Motion, filed on June 12, 2008, Pacer No. 301. Third, Google complains about the new causes of action that Perfect 10 seeks to add (Memo at 5), even though it never objected to the new causes of action during the meet-and-confer process. Google's only objections were to the new factual allegations, requiring that Perfect 10 submit proof of all of the new factual allegations, and to factual allegations that it deemed to be salacious. See Exhibit 13 to the Mausner Declaration in Support of the Motion, Pacer No. 301. Fourth, Google falsely asserts that documents comprising the Motion were filed from June 12 to June 17. Memo at 6. As can be seen from the Pacer Docket in the case, all but one document in support of the Motion were filed on June 12; the one additional document was filed on June 13. Google already has had more than one week to prepare its opposition ­ an amount of time that is more than sufficient under the Local Rules. This is simply a motion to amend the complaint; Google will have sufficient time later to try to prove that the allegations are not true.

Perfect 10's Opposition to Google's Ex Parte Application to Continue Hearing

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Finally, Google makes several other statements in the Application that are completely unsupported and simply wrong. For example, Google incorrectly asserts that the millions of full-size images which Google stores on its servers and links to via Google search results "have nothing to do with Google search." Memo at 6 (emphasis in original). Google's related contention that Perfect 10 is asserting a completely new theory of copyright liability [see Memo at 5-6] is also incorrect. Google avoided a preliminary injunction by falsely asserting that the images that Google's search engine in-line linked to were not stored on Google's servers. As explained in the moving papers in support of the Motion, Google's false assertion led to a finding that Google was not displaying the images under the server test, and that Google did not have control over the images for purposes of vicarious liability. In fact, Google is storing thousands of infringing Perfect 10 copyrighted images on its servers, through Google's blogger.com and blogspot.com programs ­ a fact that Google should have revealed in its filings with this Court and the Ninth Circuit and in its discovery responses. Google is displaying those images through in-line linking because they are on Google's servers, and Google has the right and ability to delete those images from the Internet. Even if Google were correct that Perfect 10 is alleging new claims, Google's assertion that these claims are timebarred is wrong as a matter of law. In a case of continuing copyright infringement such as this one, "an action may be brought for all acts that accrued within the three years preceding the filing of the suit." Kourtis v. Cameron, 419 F.3d 989, 999 (9th Cir. 2005). Therefore, at the very least, Google would be liable for everything it has done during the past three years. Google is also wrong that Perfect 10 knew that Google was storing infringing images on its servers five years ago. Mausner Dec. ¶5. If Perfect 10 had known that, it certainly would have pointed that out to this Court and the Ninth Circuit in connection with its motion for preliminary injunction, something that Google should have done.

Perfect 10's Opposition to Google's Ex Parte Application to Continue Hearing

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DECLARATION OF JEFFREY N. MAUSNER I, Jeffrey N. Mausner, declare as follows: 1. I am a member of the State Bar of California and admitted to practice before this Court. I am counsel of record for Plaintiff Perfect 10, Inc. ("Perfect 10") in this action. All of the matters stated herein are of my own personal knowledge, except where otherwise stated, and if called as a witness, I could and would testify competently thereto. 2. During the time that defendant Google Inc. ("Google") has been represented by Quinn Emanuel Urquhart Oliver & Hedges, LLP ("Quinn Emanuel"), I have had very few dealings with Michael Zeller of Quinn Emanuel. Mr. Zeller has not been involved in a single meet and confer in connection with this action. He has not written any e-mails to me relating to Perfect 10's Motion for an Order granting Perfect 10 leave to file its proposed Second Amended Complaint (the "Motion"). Nor has Mr. Zeller participated in any conversations with me regarding the Motion or Perfect 10's attempt to amend. Other than one hearing before this Court, at which Mr. Zeller appeared with me, and Mr. Zeller's attendance as an observer at one deposition in the Amazon case, virtually all of my dealings with counsel for Google have been with Rachel M. Herrick and Thomas Nolan, two of the other lawyers at Quinn Emanuel. 3. Google has refused to allow Perfect 10's president, Dr. Norman Zada, to see discovery that Google recently produced in response to this Court's Order of May 13, 2008. Instead, in various e-mails that she has sent to me, Ms. Herrick has asserted that Google intends to relitigate the scope of the protective order in this case to prevent Dr. Zada from seeing documents relating to image recognition and search term frequency. Dr. Zada's inability to view these documents is affecting Perfect 10's ability to properly litigate this case. 4. In an e-mail sent to me on June 12, 2008, Ms. Herrick stated that Google would file another ex parte application if Perfect 10 did not agree to
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Google having an extra month to prepare a portion of its discovery responses, which this Court had ordered Google to produce by June 16, 2008. Perfect 10 agreed to Ms. Herrick's request for the 30-day extension. 5. I did not know of Google's misrepresentations and concealments regarding the storing of infringing images on its servers a year and a half ago, when I was contemplating amending the complaint. 6. I contemplated filing a Second Amended Complaint around January 2007. However, I decided to wait until after the Ninth Circuit issued its opinion in connection with the parties' appeal of this Court's ruling on Perfect 10's motion for a preliminary injunction before seeking leave to amend. I was concerned that filing a Second Amended Complaint while this action was on appeal could affect or delay consideration of the appeal. Second, by waiting to file an amended complaint until after the Ninth Circuit issued its ruling, I would be able to analyze whether the Ninth Circuit's opinion affected the allegations of Perfect 10's proposed Second Amended Complaint. 7. Perfect 10 began the meet and confer process for this Motion more than three months ago (see Ex Parte Application, page 3 line 14) and it was Google that delayed that process. Attached hereto as Exhibit 1 are true and correct copies of e-mails between me and Google's attorney, Rachel Herrick, showing that there was delay on Google's part. 8. Attached hereto as Exhibit 2 are true and correct copies of e-mails between me and Ms. Herrick dated June 16 and 17, relating to Google's request for a continuance.

Perfect 10's Opposition to Google's Ex Parte Application to Continue Hearing

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