Perfect 10 Inc v. Google Inc et al

Filing 324

ANSWER to Plaintiff Perfect 10, Inc.'s Second Amended Complaint filed by Defendant and Counterclaimant Google Inc. (Attachments: #1 Exhibit s A-E to Google's Answer to Perfect 10's Second Amended Complaint)(Zeller, Michael)

Perfect 10 Inc v. Google Inc et al

Doc. 32

1 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) michaelzeller@quinne manuel.com 2 865 South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone] Charles K. Verhoeven (Bar No. 170151) charlesverhoeven@quinne manuel.com 5 50 California Street, 22nd Floor 6 San Francisco, California 94111 Rachel M. Herrick (Bar No. 191060) [e-mail] 7 555 Twin Dolphin Drive, Suite 560 8 Redwood Shores, California 94065-213 9 Attorneys for Defendant Google Inc. 10 11 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 054753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS DEMAND FOR JURY TRIAL

13 PERFECT 10, INC., a California corporation, 14 Plaintiff, 15 vs. 16 GOOGLE INC., a corporation; and 17 DOES 1 through 100, inclusive, 18 19 20 22 23 vs. Defendants. AND COUNTERCLAIM

PERFECT 10, INC., a California 21 corporation, Plaintiff,

24 AMAZON.COM, INC., a corporation; A9.COM, INC., a corporation; and 25 DOES 1 through 100, inclusive, 26 27 28 Defendants.

Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS Dockets.Justia.com

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Google Inc. ("Google") hereby answers the second amended complaint JURISDICTION AND VENUE 1. Google admits that Perfect 10 has brought claims in its second

2 of Perfect 10, Inc. ("Perfect 10") as follows:

5 amended complaint under the Copyright Act, 17 U.S.C. § 101, et. seq., and under 6 the Lanham Act, 15 U.S.C. § 1051, et. seq. Google states that the remaining 7 allegations of paragraph 1 of the second amended complaint constitute legal 8 conclusions for which no response is necessary. 9 11 2. 3. Google admits that venue is proper in this District pursuant to 28 Google admits that personal jurisdiction is proper over it. 10 U.S.C. § 1391(c). 12 Google denies that there has been any wrongful activity at issue. Google denies the 13 remaining allegations of paragraph 3 of the second amended complaint. 14 15 4. THE PARTIES Google lacks information or belief to admit or deny the

16 allegations of paragraph 4 of the second amended complaint and on that basis it 17 denies the allegations. 18 5. Google admits that it is a California corporation which owns and 19 operates an Internet website located at the URL google.com and denies the 20 remaining allegations of paragraph 5 of the second amended complaint. 21 6. Google lacks information or belief to admit or deny the 22 allegations of paragraph 6 of the second amended complaint and on that basis it 23 denies the allegations. 24 7. Google lacks information or belief to admit or deny the 25 allegations of paragraph 7 of the second amended complaint and on that basis it 26 denies the allegations. 27 28
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THE BUSINESS OF PERFECT 10 -1-

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8.

Google lacks information or belief to admit or deny the

2 allegations of paragraph 8 of the second amended complaint and on that basis it 3 denies the allegations. 4 9. Google denies that PERFECT 10 was a well-known magazine. 5 Google lacks information or belief to admit or deny the remaining allegations of 6 paragraph 9 of the second amended complaint and on that basis it denies the 7 allegations. 8 10. Google lacks information or belief to admit or deny the 9 allegations of paragraph 10 of the second amended complaint and on that basis it 10 denies the allegations. 11 11. Google lacks information or belief to admit or deny the 12 allegations of paragraph 11 of the second amended complaint and on that basis it 13 denies the allegations. 14 12. Google lacks information or belief to admit or deny the 15 allegations of paragraph 12 of the second amended complaint and on that basis it 16 denies the allegations. 17 13. Google lacks information or belief to admit or deny the 18 allegations of paragraph 13 of the second amended complaint and on that basis it 19 denies the allegations. 20 14. Google lacks information or belief to admit or deny the 21 allegations of paragraph 14 of the second amended complaint and on that basis it 22 denies the allegations. 23 15. Google lacks information or belief to admit or deny the 24 allegations of paragraph 15 of the second amended complaint and on that basis it 25 denies the allegations. 26 16. Google lacks information or belief to admit or deny the 27 allegations of paragraph 16 of the second amended complaint and on that basis it 28 denies the allegations.
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17.

Google lacks information or belief to admit or deny the

2 allegations of paragraph 17 of the second amended complaint and on that basis it 3 denies the allegations. 4 5 18. THE BUSINESS OF GOOGLE Google admits that it operates a search engine available at the

6 website google.com. Google admits that the users of its search engine use the 7 search engine at that website to locate information available on the Internet. Google 8 offers numerous different search functions, including Web Search, a search of the 9 World Wide Web generally looking for terms found on the Internet; Image Search, a 10 search of the World Wide Web generally looking for images found on the Internet; a 11 "Groups" function, which allows users to create, search and browse discussion 12 groups on the Internet; a "News" search, which aggregates news items posted on the 13 Internet and allows users to search them; "Product Search," which allows users to 14 search for products available online; the "Google Scholar" search, which allows 15 users to search diverse sources of scholarly research, including books, peer16 reviewed papers, abstracts and articles; and other types of search for a wide variety 17 of information. Google also provides "Blogger," a web publishing service and 18 optional hosting service, whereby third-party users may create a personal website 19 and post content to the Internet. 20 Google's ambition is to apply its groundbreaking, and patented, search 21 technology to enable persons around the globe to have instantaneous access to 22 virtually every kind of information. Google admits that when a user types search 23 terms into a field in a search interface on Google's website, Google's search engines 24 will frequently generate a list of links to websites associated with the search terms 25 and will display those links on google.com, sometimes with a short excerpt, extract, 26 or description of the content in each of those websites. Google admits that when a 27 user types search terms into a field in a search interface on Google's website, in 28 addition to a link to a website associated with the search terms, Google also Case No. CV 04-9484 AHM (SHx) [Consolidated -3with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

1 sometimes provides a link to "cached" content that resides on Google's servers, 2 which is a snapshot that Google takes of a web page as Google's search engine 3 software crawls the Internet. Google denies that it has infringed copyrights, or that 4 it has assisted others in infringing copyrights. 5 Google lacks information or belief to admit or deny the remaining 6 allegations of paragraph 18 of the second amended complaint and on that basis it 7 denies the allegations. 8 19. Google admits that it offers an image search feature to provide 9 users with images related to whatever search term or terms users input. Google 10 admits that searches performed using the Image Search feature of the search engine 11 return reduced-size images from websites throughout the Internet, and that Google 12 creates those reduced-size images. Google admits that, as part of the current 13 automated crawl process that generates Google's Image Search index, copies of the 14 crawled images are saved to Google servers. Google denies that Image Search 15 results return high-quality copies of images that reside on Google's own servers. 16 Google admits that Huch Medien GmbH filed a lawsuit against Google. Google 17 lacks information or belief to admit or deny the remaining allegations of paragraph 18 19 of the second amended complaint and on that basis it denies the allegations. 19 20. Google admits that Image Search locates images available on the 20 Internet by analyzing the text on the page adjacent to the image, the image caption 21 and dozens of other factors to determine the image content. Google admits that 22 Image Search also uses sophisticated algorithms to remove duplicates and ensure 23 that quality images are presented first in search results. Google denies that it 24 commits copyright infringement or defamation. Google lacks information or belief 25 to admit or deny the remaining allegations of paragraph 20 of the second amended 26 complaint, and on that basis it denies the allegations. 27 28
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21.

Google admits that it sells millions of dollars of advertising each

2 year to advertisers wishing to have their websites seen by Google users. Google 3 denies the remaining allegations of paragraph 21 of the second amended complaint. 4 6 22. 23. Google denies the allegations of paragraph 22 of the second Google lacks information or belief to admit or deny the 5 amended complaint. 7 allegations of paragraph 23 of the second amended complaint, and on that basis it 8 denies the allegations. 9 24. Google denies that it would be virtually impossible for 10 consumers to locate websites, allegedly infringing or otherwise, if they were not 11 directed to them by Google. Google lacks information or belief to admit or deny the 12 remaining allegations of paragraph 24 of the second amended complaint, and on that 13 basis it denies the allegations. 14 25. Google lacks information or belief to admit or deny the 15 allegations of paragraph 25 of the second amended complaint, and on that basis it 16 denies the allegations. 17 19 21 23 26. 27. 28. 29. Google denies the allegations of paragraph 26 of the second Google denies the allegations of paragraph 27 of the second Google denies the allegations of paragraph 28 of the second Google admits that it has implemented an advertising program it 18 amended complaint. 20 amended complaint. 22 amended complaint. 24 refers to as "AdWords," and that under that program customers pay Google a fee 25 corresponding to occasions when a user of Google's search engine clicks on an 26 advertisement for the websites. Google admits that under the AdWords program 27 customers agree to abide by Google's Terms and Conditions which include 28 prohibitions of illegal conduct, including copyright infringement, and which permit Case No. CV 04-9484 AHM (SHx) [Consolidated -5with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

1 Google to terminate accounts of customers who violate these terms. Google admits 2 that to place an advertisement, an advertiser must, among other things, submit to 3 Google the text of the ad, the relevant URL, and a keyword. Google denies the 4 remaining allegations of paragraph 29 of the second amended complaint. 5 30. Google denies the allegations of the first sentence of paragraph 6 30 of the second amended complaint. Google lacks information or belief to admit or 7 deny the remaining allegations of paragraph 30 of the second amended complaint 8 and on that basis denies the allegations. 9 31. Google lacks information or belief to admit or deny the 10 allegations of paragraph 31 of the second amended complaint and on that basis 11 denies the allegations. 12 32. Google lacks information or belief to admit or deny the first two 13 sentences of paragraph 32 of the second amended complaint, and on that basis 14 denies the allegations. Google denies the remaining allegations of paragraph 32 of 15 the second amended complaint. 16 33. Google admits that it has implemented an advertising program 17 known as "AdSense," from which Google generates revenues and under which 18 website publishers agree to abide by Google's Terms and Conditions that include 19 prohibitions of illegal conduct, including copyright infringement, and which permit 20 Google to terminate accounts of website publishers who violate these terms. Google 21 lacks information or belief to admit or deny the allegations of paragraph 33 of the 22 second amended complaint that Google advertisements have appeared next to more 23 than 10,000 Perfect 10 copyrighted works, and that there are currently hundreds of 24 Perfect 10 reduced-size images on Google's servers which, when clicked on, 25 promote websites that are Google advertising partners, and on that basis denies the 26 allegations. Google denies the remaining allegations of paragraph 33 of the second 27 amended complaint. 28
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34. 35.

Google denies the allegations of paragraph 34 of the second Google admits that, in some contexts, it is paid on a pay-per-

2 amended complaint. 4 click-through basis. Google denies the remaining allegations of paragraph 35 of the 5 second amended complaint. 6 8 36. 37. Google denies the allegations of paragraph 36 of the second Google admits that Google's Web Search includes a caching 7 amended complaint. 9 function, and that its services include Google Page Creator, Google Analytics, 10 Google Groups, a translation service, and Blogger. Google denies the remaining 11 allegations of paragraph 37 of the second amended complaint. 12 13 15 38. 39. FIRST CLAIM FOR RELIEF Google hereby incorporates and re-alleges its responses to Google lacks information or belief to admit or deny the

14 paragraphs 1 thorough 37, above. 16 allegations in paragraph 39 of the second amended complaint, and on that basis it 17 denies the allegations. 18 40. Google lacks information or belief to admit or deny the 19 allegations in paragraph 40 of the second amended complaint, and on that basis it 20 denies the allegations. 21 23 25 27 41. 42. 43. 44. Google denies the allegations in paragraph 41 of the second Google denies the allegations in paragraph 42 of the second Google denies the allegations in paragraph 43 of the second Google denies the allegations in paragraph 44 of the second -722 amended complaint. 24 amended complaint. 26 amended complaint. 28 amended complaint.
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45. 46. 47. 48. 49. 50. 51. 52. 53.

Google denies the allegations in paragraph 45 of the second Google denies the allegations in paragraph 46 of the second Google denies the allegations in paragraph 47 of the second Google denies the allegations in paragraph 48 of the second Google denies the allegations in paragraph 49 of the second Google denies the allegations in paragraph 50 of the second Google denies the allegations in paragraph 51 of the second Google denies the allegations in paragraph 52 of the second Google denies the allegations in paragraph 53 of the second SECOND CLAIM FOR RELIEF

2 amended complaint. 4 amended complaint. 6 amended complaint. 8 amended complaint. 10 amended complaint. 12 amended complaint. 14 amended complaint. 16 amended complaint. 18 amended complaint. 54. 55. Google hereby incorporates and re-alleges its responses to Google lacks information or belief to admit or deny the

21 paragraphs 1 thorough 37, above. 23 allegations in paragraph 55 of the second amended complaint, and on that basis it 24 denies the allegations. 25 56. Google denies that any of Perfect 10's alleged trademarks are 26 widely known throughout the United States. Google lacks information or belief to 27 admit or deny the remaining allegations in paragraph 56 of the second amended 28 complaint, and on that basis it denies the allegations. Case No. CV 04-9484 AHM (SHx) [Consolidated -8with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

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57.

Google lacks information or belief to admit or deny the

2 allegations in paragraph 57 of the second amended complaint, and on that basis it 3 denies the allegations. 4 58. Google lacks information or belief to admit or deny the 5 allegations in paragraph 58 of the second amended complaint, and on that basis it 6 denies the allegations. 7 59. Google denies that any of Perfect 10's alleged trademarks are 8 widely known throughout the United States and elsewhere. Google lacks 9 information or belief to admit or deny the remaining allegations in paragraph 59 of 10 the second amended complaint, and on that basis it denies the allegations. 11 13 15 17 19 21 23 25 27 28
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60. 61. 62. 63. 64. 65. 66. 67.

Google denies the allegations in paragraph 60 of the second Google denies the allegations in paragraph 61 of the second Google denies the allegations in paragraph 62 of the second Google denies the allegations in paragraph 63 of the second Google denies the allegations in paragraph 64 of the second Google denies the allegations in paragraph 65 of the second Google denies the allegations in paragraph 66 of the second Google denies the allegations in paragraph 67 of the second THIRD CLAIM FOR RELIEF -9-

12 amended complaint. 14 amended complaint. 16 amended complaint. 18 amended complaint. 20 amended complaint. 22 amended complaint. 24 amended complaint. 26 amended complaint.

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68. 69. 70.

Google hereby incorporates and re-alleges its responses to Google denies the allegations in paragraph 69 of the second Google lacks information or belief to admit or deny the

2 paragraphs 1 thorough 37 and 54 through 67, above. 4 amended complaint. 6 allegations in the first sentence of paragraph 70 of the second amended complaint, 7 and on that basis it denies the allegations. Google denies the remaining allegations 8 in paragraph 70 of the second amended complaint. 9 11 12 14 16 18 72. 73. 74. 75. 71. Google denies the allegations in paragraph 71 of the second FOURTH CLAIM FOR RELIEF Google hereby incorporates and re-alleges its responses to Google denies the allegations in paragraph 73 of the second Google denies the allegations in paragraph 74 of the second Google admits that, in some contexts, when AdSense 10 amended complaint.

13 paragraphs 1 thorough 37 and 54 through 71, above. 15 amended complaint. 17 amended complaint. 19 advertisements are clicked on, Google receives revenue. Google lacks information 20 or belief to admit or deny the allegations purporting to describe Exhibits 2 and 4 of 21 the second amended complaint, and on that basis denies the allegations. Google 22 denies the remaining allegations in paragraph 75 of the second amended complaint. 23 76. Google admits that advertisements from AdWords customers 24 appear under the "Sponsored Links" section of Google Web Search results. Google 25 admits that, when users click on "Sponsored Links," Google receives revenue. 26 Google admits that advertisers participate in an auction that determines whether or 27 not their advertisement will appear under the heading "Sponsored Links," and that 28 the bid is one of many factors that determines the appearance or nonappearance of Case No. CV 04-9484 AHM (SHx) [Consolidated -10with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

1 the advertisement in "Sponsored Links." Google admits that the ranking of pages in 2 Google search results is determined by Google's patented PageRank technology, 3 which relies on the uniquely democratic nature of the web by using its vast link 4 structure as an indicator of an individual page's value. Google denies that Google 5 search results and "Sponsored Links" are one and the same. Google denies the 6 remaining allegations in paragraph 76 of the second amended complaint. 7 77. Google denies the allegations in the first sentence of paragraph 8 77 of the second amended complaint. Google lacks information or belief to admit or 9 deny the remaining allegations of paragraph 77 of the second amended complaint, 10 and on that basis it denies the allegations. 11 13 15 78. 79. 80. Google denies the allegations of paragraph 78 of the second Google denies the allegations of paragraph 79 of the second Google admits that Image Search locates images available on the 12 amended complaint. 14 amended complaint. 16 Internet by analyzing the text on the page adjacent to the image, the image caption 17 and dozens of other factors to determine the image content. Google admits that 18 Image Search also uses sophisticated algorithms to remove duplicates and ensure 19 that quality images are presented first in search results. Google lacks information or 20 belief to admit or deny the remaining allegations of paragraph 80 of the second 21 amended complaint, and on that basis it denies the allegations. 22 81. Google lacks information or belief to admit or deny the 23 allegations of paragraph 81 of the second amended complaint, and on that basis it 24 denies the allegations. 25 27 82. 83. Google denies the allegations of paragraph 82 of the second Google denies the allegations of paragraph 83 of the second -1126 amended complaint. 28 amended complaint.
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1 2 4 84. 85.

FIFTH CLAIM FOR RELIEF Google hereby incorporates and re-alleges its responses to Google lacks information or belief to admit or deny the

3 paragraphs 1 thorough 37 and 54 through 71, above. 5 allegations of paragraph 85 of the second amended complaint, and on that basis it 6 denies the allegations. 7 9 11 86. 87. 88. Google denies the allegations of paragraph 86 of the second Google denies the allegations of paragraph 87 of the second Google admits that one or more advertisers has purchased the 8 amended complaint. 10 amended complaint. 12 name of one or more models in Exhibit 8 of the second amended complaint as a 13 keyword in Google's AdWords program. Google denies the remaining allegations 14 of paragraph 88 of the second amended complaint. 15 17 19 21 23 24 26 28
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89. 90. 91. 92.

Google denies the allegations of paragraph 89 of the second Google denies the allegations of paragraph 90 of the second Google denies the allegations of paragraph 91 of the second Google denies the allegations of paragraph 92 of the second SIXTH CLAIM FOR RELIEF

16 amended complaint. 18 amended complaint. 20 amended complaint. 22 amended complaint. 93. 94. Google hereby incorporates and re-alleges its responses to Google denies the allegations of paragraph 94 of the second

25 paragraphs 1 thorough 37 and 54 through 92, above. 27 amended complaint. -12-

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95.

Google denies the allegations of paragraph 95 of the second SEVENTH CLAIM FOR RELIEF

2 amended complaint. 96. 97. Google hereby incorporates and re-alleges its responses to Google lacks information or belief to admit or deny the

5 paragraphs 1 thorough 37 and 54 through 71, above. 7 allegations of paragraph 97 of the second amended complaint, and on that basis it 8 denies the allegations. 9 11 13 15 17 19 21 22 98. 99. Google denies the allegations of paragraph 98 of the second Google denies the allegations of paragraph 99 of the second 10 amended complaint. 12 amended complaint. 100. Google denies the allegations of paragraph 100 of the second 101. Google denies the allegations of paragraph 101 of the second 102. Google denies the allegations of paragraph 102 of the second 103. Google denies the allegations of paragraph 103 of the second GENERAL DENIAL 104. Except as expressly admitted herein, Google denies each and 14 amended complaint. 16 amended complaint. 18 amended complaint. 20 amended complaint.

23 every allegation of plaintiff's second amended complaint, and specifically denies 24 that Google has infringed upon any of plaintiff's purported rights, or that plaintiff is 25 entitled to any relief against Google. 26 27 28
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AFFIRMATIVE DEFENSES By alleging the Affirmative Defenses set forth below, Google does not

3 agree or concede that it bears the burden of proof or the burden of persuasion on any 4 of these issues, whether in whole or in part. 5 6 8 9 FIRST AFFIRMATIVE DEFENSE Plaintiff's second amended complaint, and each cause of action within SECOND AFFIRMATIVE DEFENSE This Court lacks subject matter jurisdiction over claims to enforce

7 it, in whole or in part, fails to state a cause of action.

10 copyrights for which Plaintiff has not obtained, or has not pleaded ownership of, 11 validly issued copyright registrations. 12 13 15 16 17 limitations. 18 19 20 laches. 21 22 24 25 23 mitigate damages. SEVENTH AFFIRMATIVE DEFENSE Plaintiff lacks standing, in whole or in part, to assert claims pertaining SIXTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred, in whole or in part, by its failure to FIFTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred, in whole or in part, by the doctrine of 14 copyright fair use. FOURTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred, in whole or in part, by relevant statutes of THIRD AFFIRMATIVE DEFENSE Plaintiff's claims are barred, in whole or in part, by the doctrine of

26 to the publicity or intellectual property rights of others, or to assert unfair 27 competition claims based on alleged harm to third parties. 28
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1 2 4 5 3 indispensable parties.

EIGHTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred, in whole or in part, by its failure to join NINTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred, in whole or in part, by free speech rights

6 guaranteed by the First Amendment to the United States Constitution and by the 7 Constitution of California and other states. 8 9 11 12 14 15 17 18 19 20 22 23 24 25 27 28
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TENTH AFFIRMATIVE DEFENSE Plaintiff's state-law claims are barred, in whole or in part, by the ELEVENTH AFFIRMATIVE DEFENSE Plaintiff's claims are pre-empted, in whole or in part, by the Copyright TWELFTH AFFIRMATIVE DEFENSE Plaintiff's copyright claims are barred, in whole or in part, by the THIRTEENTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred, in whole or in part, by estoppel. FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred, in whole or in part, by consent, FIFTEENTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred, in whole or in part, by unclean hands. SIXTEENTH AFFIRMATIVE DEFENSE Plaintiff's remedies are barred, in whole or in part, by 15 U.S.C. §

10 Communications Decency Act, 47 U.S.C. § 230(c).

13 Act, 17 U.S.C. § 301.

16 Online Copyright Infringement Liability Limitation Act, 17 U.S.C. § 512.

21 acquiescence, and actual and/or implied license.

26 1114(2) and Cal. Bus. & Prof. Code § 17200, et. seq.

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SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiff's claims for damages, including but not limited to statutory

3 and/or punitive damages, are barred, in whole or in part, by Google's right to due 4 process under the United States Constitution and/or the Constitution of California 5 and other states. 6 7 9 10 EIGHTEENTH AFFIRMATIVE DEFENSE Plaintiff's claims for statutory damages and attorney's fees are barred, NINETEENTH AFFIRMATIVE DEFENSE Plaintiff's claims for damages, including for disgorgement of Google's

8 in whole or in part, by the Copyright Act, 17 U.S.C. § 412.

11 alleged profits, attributable to sales or other activities outside the United States are 12 barred by reason of the Copyright Act's territorial limitations and by the lack of 13 subject matter jurisdiction over such extra-territorial claims in proceedings under the 14 U.S. Copyright Act. 15 16 TWENTIETH AFFIRMATIVE DEFENSE Plaintiff's claims for damages, including for disgorgement of Google's

17 alleged profits, attributable to sales or other activities outside the United States are 18 barred by reason of the Lanham Act's territorial limitations and by the lack of 19 subject matter jurisdiction over such extra-territorial claims in proceedings under the 20 Lanham Act. 21 22 TWENTY-FIRST AFFIRMATIVE DEFENSE Plaintiff's second amended complaint is barred, in whole or in part,

23 because plaintiff's alleged marks are generic, unprotectable, and lack secondary 24 meaning with respect to services provided by Google. 25 26 28 TWENTY-SECOND AFFIRMATIVE DEFENSE Plaintiff's claimed rights in the purported marks and the registrations TWENTY-THIRD AFFIRMATIVE DEFENSE Case No. CV 04-9484 AHM (SHx) [Consolidated -16-

27 thereon are invalid.

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Plaintiff's claims are barred, in whole or in part, because the alleged use TWENTY-FOURTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred, in whole or in part, by the doctrine of TWENTY-FIFTH AFFIRMATIVE DEFENSE Plaintiff is barred from obtaining any relief from Google in this action

2 of Perfect 10's trademarks has created no likelihood of confusion.

5 trademark fair use and nominative fair use.

8 because plaintiff has suffered no injury or damage as a result of any act or conduct 9 by Google, and none of Google's revenues or profits is attributable to its allegedly 10 infringing conduct. 11 12 13 14 1. COUNTERCLAIMS INTRODUCTION Google and Its Search and Reporting Technology This case is fundamentally about the legality of web search

15 engines. In challenging Google in this case, Perfect 10 attempts to create a vast new 16 set of liabilities and burdens that are incompatible with the technological and 17 business necessities of the search industry and contrary to basic principles of free 18 speech. 19 2. Google is a global technology leader focused on improving the 20 ways people connect with information. Google's innovations in web search and 21 advertising have made its website a top Internet destination and its brand one of the 22 most recognized in the world. Google is the world's most popular tool for accessing 23 information on the Internet. 24 3. The Internet is a massive, interconnected network of networks of 25 computing devices that offer a vast array of resources to users of the network. The 26 Internet operates by digital technologies that operate through extensive conversion, 27 reproduction, transmission, and display or other output of many types of data. 28
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4.

Google maintains the world's largest online index of websites

2 and of content stored on web pages, and Google makes this information freely 3 available to anyone with an Internet connection. Google's automated search 4 technology helps people obtain nearly instant access to relevant information from 5 our vast online index. Google relies upon thousands and thousands of computer 6 network servers containing indices of over 10 billion documents and extraordinarily 7 sophisticated software technology that can handle thousands of queries per second 8 from around the world and deliver results in under a second in over 40 languages. 9 5. In addition to its search services, Google operates and maintains 10 numerous other services. One such service is Blogger, a web publishing service and 11 optional hosting service, whereby third-party users may create a personal website 12 and post content on the Internet. 13 6. At a basic level, Google's search engine operates in four phases. 14 Google (1) uses an automated process to "crawl" the web to find websites, (2) 15 indexes the content found on those websites, (3) responds to search queries by 16 presenting results that are relevant to the search terms, and (4) provides links to the 17 web location where the content resides. 18 7. Google has accomplished what it has because its processes and 19 systems are highly automated and scalable. Exhibit A to the Answer and 20 Counterclaims is a true copy of the Technology Overview of the Google system 21 found at www.google.com/corporate/tech.html. 22 8. While Google indexes a massive number of pages on the web 23 through automated processes, it refrains from indexing pages for which the sponsor 24 of the page has used standard technical means, such as called a "robot exclusion 25 header," a metatag, or a robots.txt file that indicates a website publisher's desire to 26 be passed over by automated indexing tools. 27 9. Google seeks to be comprehensive in describing relevant content 28 on the web and to provide relevant and useful search results that enable users to Case No. CV 04-9484 AHM (SHx) [Consolidated -18with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

1 locate and identify web content that matches what they seek. Google's automated 2 search and reporting process provides results neutrally according to its formulas, 3 independently of financial incentives. Google does not accept payment for inclusion 4 or ranking in search results, and it identifies and distinguishes sponsored links that 5 appear separately on search result pages. 6 10. Google uses a proprietary and objective system for ranking the 7 display of search results in response to queries entered by a user. Its PageRank 8 technology performs an objective measurement of the importance of web pages by 9 solving an equation of more than 500 million variables and 2 billion terms. 10 PageRank relies on the uniquely democratic nature of the web by using its vast link 11 structure as an indicator of an individual page's value. Important, high-quality sites 12 receive a higher PageRank, which Google remembers each time it conducts a 13 search. Google combines PageRank with sophisticated text-matching techniques to 14 find pages that are both important and relevant to user searches. 15 11. Google has revolutionized the way people around the world 16 search for information. It has changed the lives of students, journalists, 17 genealogists, scholars, lawyers, doctors, politicians, medical patients, and virtually 18 everyone else who interacts with the Internet on a regular basis. There are countless 19 purposes for which persons use Google. 20 12. Google is not the only information location tool for the Internet. 21 There are numerous other tools for searching for information and content on the 22 Internet, including other search engines, directories, recommendation sites, and the 23 like. Without Google, users could use other search engines and other information 24 location tools to find information, including infringing or other unlawful content, on 25 the Internet. Many persons prefer Google to other search engines, however, because 26 of the size of Google's index and because of their satisfaction with Google's ordering 27 of search results. 28
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13.

Google's search engine indexes textual content of web pages,

2 information in source code of web pages but not displayed to the viewer, and links 3 information among pages. Google does not create a human-edited index by 4 evaluating or describing the content of pages; it relies upon the verbal content of 5 web pages, with certain automated tools applied to improve the quality of indexing 6 and search results. This process is contrasted with web directories, which make 7 human-based editorial determinations and judgments about the classification and 8 characterization of websites. 9 14. When a user enters a search term or phrase into its web search 10 engine, Google returns search results that identify web pages that contain that term 11 or phrase or pages that were linked to by other pages that contain the term or phrase. 12 While the presentation of search results may vary according to the nature of the 13 source and the results, Google often furnishes (1) a page title taken from the code 14 for the origin website, (2) a short excerpt from the text on the site, (3) the URL (or 15 an excerpt of the URL), (4) the size of the indexed page, (5) the date when the page 16 was last indexed by Google, (6) a link to Google's cache of the original page, which 17 is particularly useful in case the original site has been changed or is down, and (7) a 18 link to "similar pages" as identified through an automated tool that is influenced by 19 the number of common words among the pages. In addition to search results, in the 20 case of word searches Google may also display sponsored links in a separate area of 21 the search results page. 22 15. Upon clicking on the title of a word search result delivered by 23 Google, a user is taken to the corresponding indexed page on the original website. 24 If it is down or changed from what Google indexed, by clicking on Google's cache 25 link a user is taken to a copy of the page in Google's index, with the searched terms 26 highlighted, information about the date and time the cached copy was retrieved from 27 the original website, a link to the current page, and the complete original URL of the 28 page cached by Google.
Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

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1 3

16. 17.

Google's image search engine allows users to search for images Google's image search engine indexes images based on text that

2 stored on the web using keywords. 4 accompanies the images at their locations on the web, including text contained in 5 file na mes of the images' locations. Google does not itself generate verbal 6 descriptions of the content of the images. 7 18. Google's image search engine delivers results to users by 8 displaying (1) "thumbnails" of the indexed images, typically scaled down versions 9 of the images (thumbnails are generally approximately 100 by 100 pixels in size, 10 whereas original size full-screen images on a modern high-resolution monitor may 11 be approximately 700 by 1000 pixels, meaning that the thumbnails may contain less 12 than two percent of the data of the original image), (2) some label (file) information 13 of the indexed image, (3) size information regarding the image, and (4) part or all 14 (depending on the length of the web "Uniform Resource Locator" ("URL")) of the 15 full web URL of the image. 16 19. Google's image search engine returns search results using the 17 most descriptive tool available to assist the user in determining whether the 18 displayed items match the desired image: an extract from the image itself. As the 19 maxim says, "a picture is worth a thousand words," and text descriptions (such as 20 "high school football player with red jersey in air catching ball, facing left, before 21 crowd") are likely to be too vague to be valuable to a search user. There is no 22 practical way to create verbal descriptions for all indexed images on the web instead 23 of using extracts of the images in the search results. The images presented in the 24 search results are degraded from the originals because of the extraction used in 25 presenting them, but they are essential to an efficient identification of the image 26 content. 27 20. When a Google user clicks on an image listed in image search 28 results, Google responds by (1) displaying a "thumbnail" of the indexed image, (2) Case No. CV 04-9484 AHM (SHx) [Consolidated -21with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

1 providing information (either a full or a partial web address) about the file location 2 of the image file on the site of origin, (3) providing a hypertext link to the site of 3 origin, and (4) causing the site of origin to appear in a separate section of the 4 browser window that can be enlarged or reduced by the user in size in the browser 5 window. Google's Search products do not transmit to users any images other than 6 thumbnails; the "full size" displays are initiated by the user's browser and 7 transmitted from the website of origin. 8 21. Google's web search and image search engines have utterly 9 transformed the way persons search for text-based information and images. Google 10 is able, through its sophisticated and powerful technology, automated systems, and 11 vast storage capacity, to deliver relevant information in under a second from a 12 massive amount of source material. By automated means, Google adds source 13 material to its indices at a prodigious rate so that it is available immediately to 14 search users. 15 22. Google is so powerful that complex searches can effectively 16 search for needles in the web haystack. Google's effectiveness depends in large part 17 upon its automated processes, the comprehensive scope of the nature of its index, 18 the power of its technologies, and its efficiency in delivering search results that most 19 closely match user expectations and desires. The more that Google indexes, the 20 more powerful and useful its search becomes. 21 23. Google continually updates its indexes of over 8 billion pages of 22 web content. New pages are continually added, and previously crawled pages are 23 regularly re-crawled in order to determine whether their content has changed. 24 Frequently updated sites may be crawled every day. This process is automated and 25 highly dynamic. 26 24. When Google processes a search request, it lacks knowledge 27 about the personal identity, business affiliation, intentions, activities, and purposes 28 of the user making the search request. Google lacks knowledge of whether, for Case No. CV 04-9484 AHM (SHx) [Consolidated -22with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

1 example, the user is making an authorized or other fair use of any copyrighted 2 material accessed as a consequence of the search request. Similarly, for example, 3 Google lacks knowledge whether the user copies the material in some concrete or 4 permanent form, alters it in some concrete or permanent form, distributes copies of 5 it to the public, or displays copies of it to the public. 6 25. Google's search transforms the original content available on the 7 web and fills an entirely different function from that of the original content. Google 8 uses that content in its context as part of the vast web, analyzing the relationship of 9 that content to other content on the web, and revealing correspondences between 10 that content and concepts or terms in the mind of the search user. For example, 11 teachers may use Google as a tool to look for telltale similarities in student papers 12 that may disclose plagiarism. Scholars may use Google to study language patterns. 13 Prospective employees may use Google to learn about potential employers, and vice 14 versa. Fans of a celebrity may look for information or resources about that 15 celebrity. The potential uses of Google are innumerable. 16 26. Google's web and image search functions do not provide the user 17 with an equivalent to the original source material that substitutes for the original. 18 Google furnishes users only thumbnail images in its search results. For original 19 images, the user must call upon the website of origin with his or her Internet 20 browser. In its Web Search results, Google delivers only short excerpts; the user 21 must follow a link to reach the original site directly. 22 27. Google's web and image search functions do not impair the 23 market value of original works. To the contrary, many website sponsors go to great 24 lengths to increase the likelihood that Google will index, and will display prominent 25 search results from, their sites. Google is informed and believes, and therefore 26 alleges, that Google's web and image search functions add to the market value of 27 original works by making the public more aware of them and causing the public to 28 seek them out more frequently.
Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

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1

28.

There is no reliable and efficient way to determine copyright

2 status of any material on the web. There is no reliable way to determine authorship, 3 ownership of copyright, the presence, absence, or scope of licenses associated with 4 any copyrights, or even what law applies to works that may have been created in any 5 country in the world. 6 29. Google devotes substantial resources to complaints including 7 notifications of copyright infringement pursuant to 17 U.S.C. § 512(c)(3) and 8 complaints regarding third-party trademark infringement. Google has a dedicated 9 staff and a regular process to handle and respond to those complaints or notices, 10 which may require repeated correspondence with the claimant to obtain necessary 11 information, and which require evaluation in light of the applicable laws and 12 Google's policies. Many Google Services do not have account holders or 13 subscribers. For Services that do, Google has adopted and reasonably implemented 14 a policy that provides for the termination in appropriate circumstances of any 15 subscribers and account holders of Google's system who are repeat infringers. 16 17 30. Other Tools To Access Content On The Internet There are many ways for persons to find free pornography,

18 including infringing or otherwise illegal pornography, on the web without using 19 Google's search engine. There are other search engines and web directories that 20 fulfill similar functions. Moreover, many persons search for content on the web 21 simply by guessing at domain names that may be relevant to the content sought. For 22 example, a user can find pornography simply by pointing a web browser to the web 23 addresses "www.porn.com," "www.sex.com," "www.xxx.com," and 24 "www.nudemodels.com." Many of these sites automatically prompt the display of 25 many more sites containing pornography, without being sought by the user. 26 28
Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

31.

A user may also easily find, without using Google's search

27 engine, pornographic websites that advertise that they provide unauthorized content. -24-

1

32.

Internet newsgroups also allow persons ready access to free

2 pornography on the Internet. Users of common programs such as Microsoft 3 Outlook Express can subscribe to newsgroups such as 4 alt.binaries.pictures.erotica.breasts.natural to obtain regular postings of free 5 pornographic photographs and videos of women with natural breasts (the niche 6 Perfect 10 claims to occupy). Some newsgroups furnish infringing pornographic 7 images. 8 33. In addition, persons using peer-to-peer communication software 9 or protocols such as Kazaa, Morpheus, and BitTorrent may share pornographic 10 images and videos, including infringing images and videos, without needing to use 11 Google to obtain pornography. Furthermore, some persons who simply want free 12 pornography on the Internet, without regard for the infringing status of the content, 13 may find it abundantly without using Google's search engine. 14 15 34. Perfect 10 And Google Perfect 10 publishes a website featuring nude women. Perfect 10

16 once published PERFECT 10 MAGAZINE also featuring nude women, but no 17 longer does so. Perfect 10 claims to specialize in pornography featuring women 18 who have not undergone cosmetic surgery to enhance their figures. 19 35. On information and belief, Perfect 10 has never operated a 20 profitable adult entertainment business. On information and belief, Perfect 10's 21 ventures are unsuccessful because they do not appeal to a wide audience. Perfect 22 10's Winter 2004 magazine, 112 pages long not counting inside and outside covers, 23 contains a total of 3 pages of advertisements from 4 advertisers (two of whom are 24 local businesses in the Los Angeles area) and a 1-page public service announcement 25 for the American Red Cross, not counting advertisements by Perfect 10 for Perfect 26 10's merchandise, "model boxing" events, and other products or services of Perfect 27 10. 28
Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

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36.

Plaintiff Perfect 10 is hardly the only "Perfect 10" on the

2 Internet. As a Google search reveals, "Perfect 10" is also a major Singapore radio 3 station; a tag line for a Miami radio station; a "men's club" in Austin, Texas; scores 4 for gymnastics, beauty (as popularized by Bo Derek), surfing, and other endeavors; 5 a gymnastics-themed web log; a book title unrelated to Plaintiff; a satellite 6 technology provider; an energy bar company; a line of hair products; a winery; and 7 the name for a nail salon. 8 37. PERFECT 10 is a weak trademark at best, and more likely 9 generic. "Perfect 10," when applied to women, means the highest standard of 10 beauty, as popularized by Bo Derek in the film "10." As applied in many other 11 contexts as well, it is a generic term referring to the highest score attainable. 12 38. Image searches of the words "Perfect 10" using Google yield 13 links to photos of Perfect 10 magazine covers from subscription advertisements; a 14 book cover for an unrelated book entitled "Perfect 10: The Blessings of Following 15 God's Commandments in a Postmodern World"; advertisements for Perfect 10 hair 16 products; a bass guitar amplifier; snapshots of women from different walks of life; 17 photos of gymnastic performances; and several snapshots of men jumping into 18 water. 19 39. Google is informed and believes, and therefore alleges, that users 20 can find Perfect 10's website, learn about Perfect locate new and used Perfect 10 21 magazines and merchandise, and find out about Perfect 10-sponsored events through 22 Google. 23 40. Google is informed and believes, and therefore alleges, that 24 Perfect 10 enjoys substantial benefits from the ability of Google users to locate 25 information about Perfect 10 including Perfect 10's website and sites carrying 26 advertisements for Perfect 10 magazines, merchandise, and events, by using Google. 27 41. Google is informed and believes, and therefore alleges, that 28 Perfect 10 is aware of a practice common among website owners, of using "robot Case No. CV 04-9484 AHM (SHx) [Consolidated -26with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

1 exclusion headers," which are signals included in the software code of websites that 2 indicate that the website owner does not wish the site to be indexed by search robots 3 that survey the Internet. Despite Perfect 10's knowledge of the industry practice of 4 using robot exclusion headers from time to time, Perfect 10 has not used such robot 5 exclusion headers or otherwise informed Google that it does not wish its website to 6 be indexed for the Google search engine. 7 9 11 13 users. 14 45. Google is informed and believes, and therefore alleges, Perfect 15 10 has gained a great deal of traffic to its websites as a consequence of those 16 websites' inclusion in the Google index and search results. 17 46. Google is informed and believes, and therefore alleges, that 18 Perfect 10 has engaged in optimization techniques to increase the likelihood that 19 Perfect 10's websites will be indexed against key words used by users in Google 20 searches. 21 23 47. 48. Google is informed and believes, and therefore alleges, that Google provides, among many other uses, an ability of copyright 22 Perfect 10 has derived substantial revenues resulting from searches on Google. 24 and trademark owners to freely self-police a large portion of the Internet for 25 potential infringements of their rights. Google is informed and believes, and 26 therefore alleges, that Perfect 10 uses Google to search for content offered by 27 competitors, including content that may pertain to Perfect 10's models and may 28 infringe upon Perfect 10's purported rights. Google is informed and believes, and Case No. CV 04-9484 AHM (SHx) [Consolidated -27with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

42. 43. 44.

Google indexes websites sponsored by Perfect 10, including Google does not index pages on websites published by Perfect 10 Perfect 10 has never complained to Google about its website

8 perfect10.com, perfectten.com, and modelboxing.com. 10 that require a password. 12 pages being indexed by Google and being included in search results delivered to

1 therefore alleges, that Google and other search engines make Perfect 10's detection 2 of alleged online infringements much easier than the Perfect 10's detection of offline 3 infringements, i.e., infringements in print media. Google is informed and believes, 4 and therefore alleges, that Perfect 10 has used Google to gain evidence to use 5 against other defendants in other copyright infringement cases, and Perfect 10 has 6 used printouts of sites found through Google to support its claims against third 7 parties in other cases. Google thus functions as a handy and effective means of 8 Perfect 10's own policing of alleged infringements and violations by others. 9 49. Perfect 10 claims to have sent Google a number of notices of 10 alleged infringements and of alleged violations of other rights in 2001. Perfect 10 11 claims that, at the time, Google explained that it was unable to do anything about the 12 alleged infringements. For approximately three years thereafter, Perfect 10 admits 13 that it did not communicate with Google regarding any alleged infringements of 14 Perfect 10's alleged rights. Instead, Perfect 10 conducted a public campaign 15 beginning at least as early as 2001 accusing Google of participating in an "Internet 16 Conspiracy." Perfect 10's "Internet Conspiracy" campaign, while discussing 17 Google, was directed heavily at Yahoo!--on the same page that Perfect 10 18 advertised its Yahoo! Club forum. A copy of a page that Perfect 10 published in 19 2001 is attached to the Answer and Counterclaims as Exhibit B. 20 50. In 2004, Perfect 10 faxed pages of correspondence and 21 attachments, purporting to be notices of a variety of violations of Perfect 10's and 22 others' alleged rights, to Google's general fax number with no addressee shown and 23 with no heading to allow Google to direct the faxes appropriately. These purported 24 "notices" suffered from a variety of deficiencies. For example, the notices failed to 25 properly identify the copyrighted work claimed to be infringed, failed to properly 26 identify the allegedly infringing material, listed allegedly infringing URLs that had 27 not been located using Google's Search service (and thus there was nothing to 28 remove or take down), listed partial and/or incomplete URLs, listed alleged Case No. CV 04-9484 AHM (SHx) [Consolidated -28with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

1 infringing material that did not appear to be owned by Perfect 10, and contained 2 duplicative references to allegedly infringing URLs identified in previous purported 3 notices. Google corresponded with Perfect 10, explained what was most effective in 4 expediting Google's assistance, explained that the purported notices were defective, 5 processed the purported notices of alleged infringement to the best of its ability, 6 removed links to allegedly infringing content, and entered alleged Perfect 10 marks 7 into its trademark complaint procedures in order to avoid advertising containing 8 Perfect 10 marks. Perfect 10 accused Google of failing to handle its purported 9 notices expeditiously, but Perfect 10 refused to take steps to assist Google in more 10 expeditious handling of Perfect 10's notices. Instead, Perfect 10 began sending its 11 purported notices in formats that were increasingly difficult, if not impossible, to 12 process, and which lacked the information necessary to constitute valid notices 13 under governing law--despite Google's clear requests and instructions. These 14 deficiencies only worsened in 2007, when Perfect 10 began sending purported 15 "notices" in the form of multiple DVDs and an entire hard drive, many of which 16 contained thousands of pages of allegedly infringing material, but none of which 17 properly identified the copyrighted work claimed to be infringed or the allegedly 18 infringing material. For example, one DVD submitted by Perfect 10 contained 35 19 folders comprising more than 25,000 pages of printouts of alleged infringing 20 material. The hard drive Perfect 10 submitted claimed to have contained over 1 21 million infringements of alleged Perfect 10 copyrighted images. A single subfolder 22 of that hard drive contained over 16,000 electronic files of allegedly infringing 23 material. And further, at least one of Perfect 10's purported notices was improperly 24 directed to Google's Board of Directors, contained a variety of litigation-based 25 threats, and expressed a desire for quick settlement of Perfect 10's pending claims. 26 51. Perfect 10 has stated or asserted that it owns the publicity rights 27 of models appearing in its magazine or on its website. Perfect 10 has also stated or 28 asserted that it owns the publicity rights pertaining to nude images of models Case No. CV 04-9484 AHM (SHx) [Consolidated -29with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

1 appearing in its magazine or on its website. Google is informed and believes, and 2 therefore alleges, that in fact a number of Perfect 10 models, including models for 3 whom Perfect 10 has claimed publicity rights in suing for violations of those 4 publicity rights, have not granted to Perfect 10 complete and exclusive assignments 5 of all their publicity rights. Google is informed and believes, and therefore alleges, 6 that Perfect 10 does not own exclusive publicity rights in all Perfect 10 models for 7 which it claims publicity rights. Google is informed and believes, and therefore 8 alleges, that some Perfect 10 models have appeared in other magazines, such as 9 Penthouse or Hustler, or have appeared on their own websites, without Perfect 10 10 controlling their rights to appear in those other publications. Google is informed 11 and believes, and therefore alleges, that a number of Perfect 10 models are young 12 women from foreign countries, who may lack fluency in the English language, and 13 who may not have made a knowing and intelligent assignment of publicity rights to 14 Perfect 10; on that account any alleged assignments of publicity rights drafted in the 15 English language and executed by persons who lacked fluency in English are void. 16 52. Perfect 10 is a frequent plaintiff and claims to have spent over $8 17 million in approximately a 2-1/2 year period to enforce its purported rights. Perfect 18 10 has accused other companies of engaging in conduct alleged to harm Perfect 10 19 by contributing to or being responsible for infringements or other unlawful activities 20 of others in distributing pornography on the Internet. Perfect 10 sued Visa 21 International Service Association, MasterCard International Incorporated, and other 22 companies for copyright infringement, trademark infringement, violation of rights of 23 publicity, and other claims on the ground that those companies provided "critical 24 business support" to allegedly infringing websites. Perfect 10 alleged that Visa and 25 MasterCard bore responsibility for massive harms for allowing alleged infringers to 26 process payments for subscription fees with Visa's and MasterCard's payment 27 systems. In its amended complaint against Visa and MasterCard, Perfect 10 28 specifically alleged that "Stolen Content Websites cannot exist without the Case No. CV 04-9484 AHM (SHx) [Consolidated -30with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

1 knowledge and direct participation of the financial institutions that process the credit 2 card transactions for such unlawful material and that, as a result, effectively act as 3 knowing fences for the sale of billions of dollars worth of stolen property." Google 4 is informed and believes, and therefore alleges, that Perfect 10 has taken the position 5 that multiple companies have caused the harms for which it sues Google in this 6 action. 7 53. Google brings these counterclaims for declaratory relief based 8 upon explicit threats and actual litigation by Perfect 10 against Google. An actual 9 case or controversy exists within the meaning of 28 U.S.C. § 2201 as to whether 10 Google bears liability pursuant to the claims threatened by Perfect 10 in and out of 11 court. A judicial determination is necessary and appropriate at this time so that the 12 parties may ascertain their respective rights and obligations, if any. 13 14 15 16 18 20 54. 55. 56. 17 the counterclaims above. Perfect 10 has not been harmed by or suffered any cognizable Based on the circumstances described above, Google is entitled 19 injury from any alleged conduct by Google. 21 to a declaration that it has not infringed any copyright rights of Perfect 10 on 22 account of fair use. 23 24 25 26 28
Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

FIRST CAUSE OF ACTION DECLARATION OF NONINFRINGEMENT OF COPYRIGHT (FAIR USE) Google incorporates and re-alleges paragraphs 1 through 53 of

SECOND CAUSE OF ACTION DECLARATION OF NON-LIABILITY FOR COPYRIGHT INFRINGEMENT (OCILLA) 57. Google hereby incorporates and re-alleges paragraphs 1 through

27 56 of the counterclaims above. -31-

1 3

58. 59.

Google is a service provider under the Online Copyright Google provides connections for material through a system or

2 Liability Limitation Act ("OCILLA"), 17 U.S.C. § 512. 4 network controlled or operated by or for Google. Google provides connections by 5 which persons other than Google may initiate transmission of the material. Google 6 carries out the provision of connections through an automatic technical process 7 without selection of the material. Google does not select the recipients of the 8 material except as an automatic response to the request of another person. 9 11 60. 61. Google stores at the direction of its users material that resides on Google refers and links its users to online locations containing 10 Google's system or network. 12 material by using information location tools including a directory, index, reference, 13 pointer, and hypertext links. 14 62. Since 1999, Google has duly filed a designation of an agent for 15 copyright notices under OCILLA. Attached to the Answer and Counterclaims as 16 Exhibit C is a copy of Google's Amended Interim Designation of Agent to Receive 17 Notification of Claimed Copyright Infringement, as maintained by the Copyright 18 Office of the United States at http://www.copyright.gov/onlinesp/agents/google.pdf. 19 63. When Google receives notification of claimed infringements 20 pursuant to 17 U.S.C. § 512(c)(3), or otherwise becomes aware of facts or 21 circumstances from which infringing activity is apparent, Google responds 22 expeditiously to remove, or disable access to, the material that is claimed to be 23 infringing or to be the subject of infringing activity. 24 64. To the extent Google has any subscribers or account holders, 25 Google has adopted and reasonably implemented, and informs any such subscribers 26 and account holders of Google's system or network of, a policy that provides for the 27 termination in appropriate circumstances of any subscribers and account holders of 28 Google's system who are repeat infringers. -32Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] ANSWER TO SECOND AMENDED COMPLAINT AND COUNTERCLAIMS

1

65.

Google's web search and image search engines have no

2 subscribers. Its search engines are available to anyone and they search sites of third 3 parties with which Google has no business relationship. 4 6 8 10 66. 67. 68. 69. Google accommodates and does not interfere with standard Google does not receive a financial benefit directly attributable Google does not have the right and ability to control infringing Perfect 10 lacks evidence that Google has the