Perfect 10 Inc v. Google Inc et al

Filing 364

STATEMENT of Perfect 10 for October 6, 2008 Case Management Conference Before Judge Matz filed by Plaintiff Perfect 10 Inc re: Minutes of In Chambers Order/Directive - no proceeding held,, Set Hearings, #363 . (Mausner, Jeffrey)

Perfect 10 Inc v. Google Inc et al

Doc. 364

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JEFFREY N. MAUSNER (State Bar No. 122385) Law Offices of Jeffrey N. Mausner 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, ________________________________ PERFECT 10, INC., a California corporation, Plaintiff, v. AMAZON.COM, INC., a corporation, ________________________________ PERFECT 10, INC., a California corporation, Plaintiff, v. MICROSOFT, INC., a corporation. CASE NO. CV 07-5156 AHM (SHx) CASE NO. CV 04-9484 AHM (SHx) PERFECT 10'S STATEMENT FOR OCTOBER 6, 2008 CASE MANAGEMENT CONFERENCE BEFORE JUDGE MATZ Date: October 6, 2008 Time: 1:30 P.M. Place: Courtroom 14, Courtroom of the Honorable A. Howard Matz Consolidated with CV 05-4753 AHM (SHx)

Perfect 10's Statement for October 6, 2008 Case Management Conference
Dockets.Justia.com

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A.

SIMPLIFICATION OF THE CASE. Perfect 10 agrees with the Court's view that the case should be simplified as

much as possible to minimize unnecessary effort by all parties, and thanks the Court for its efforts in this regard. Perfect 10 would like to make some observations that, in conjunction with the Court's suggestions (which Perfect 10 will address below), should allow for a very substantial simplification of the case. 1. There are approximately 120 massive infringing websites that are responsible for approximately 98% of the infringements in these cases. The remaining approximately 3,000 infringing websites are responsible for about 2% of the infringements. Of the 120 massive infringing websites, approximately 75 are pay sites, and approximately 45 are free sites. The 75 pay sites, by and large, offer the same stolen images, approximately 19,000 P10 images each, for a total of approximately 1.4 million copies of Perfect 10's images. These infringing pay sites also offer thousands of infringing full-length movies, TV shows, and songs, for $10 to $20 per month in membership fees. The massive free sites have offered approximately 60,000 infringing copies of P10 images. So the vast preponderance of the infringement in these cases is due to pay sites, which by and large, have stolen and sell access to the same 19,000 P10 images each. As well as providing links to these websites in their search results, Defendants have business dealings with many of the webmasters for these pay sites. Defendants share in the revenues of such infringers by accepting payments to place links to and ads for such websites in their sponsored link section. 2. 3. Perfect 10 has sent to Defendants, in its DMCA notices, more than In response to Perfect 10's notices regarding massive infringing 1,000,000 copies of infringing P10 images from massive infringing websites. websites, Defendants have either taken no action, or virtually no action, to reduce further damage to Perfect 10's copyrighted works. //
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Perfect 10's Statement for October 6, 2008 Case Management Conference

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B.

PERFECT 10 WILL BE FILING A MOTION FOR PARTIAL

SUMMARY JUDGMENT AGAINST AMAZON AND ALEXA WITHIN THE NEXT 10 DAYS. Before the parties spend substantial resources on discovery related to damages, a determination should first be made by the Court as to which issues can be resolved by summary adjudication. That determination can be made based on a sample of copyrighted works, as suggested by the Court. To that end, Perfect 10 will be filing a motion for partial summary judgment against Amazon and Alexa for contributory copyright infringement, within the next ten days. The motion will be based on a limited number of Perfect 10 copyrighted images, as suggested by the Court. The outcome of this motion is likely to substantially simplify current discovery disputes. Specifically, in its motion, Perfect 10 will provide proof that it owns the copyrights to a few hundred images, by attaching copyright certificates and deposit materials, which have previously been produced to the Defendants. Perfect 10's evidence of copyright ownership will address a number of the issues raised by the Court in its Order. Perfect 10's motion will also address the issues raised by the Court with regards to contributory liability (paragraph 2.A on page 3 of the Order). Specifically, Perfect 10's motion will go over several of its DMCA notices, which provide examples of infringing material that Defendants learned was accessible through their search engines. These notices contain print-outs of infringing web pages, identify infringing URLs, and provide the date when Defendants learned of such infringing material, as discussed in paragraph 2.A of the Court's Order. Perfect 10 explains why its notices were compliant, and sets forth a number of simple measures that Defendants could have taken, but did not take, to prevent further damage to Perfect 10's copyrighted works. Perfect 10 respectfully suggests that large scale discovery relating to requests made by various Defendants be postponed until the Court rules on whether the evidence presented by Perfect 10 in its motion is sufficient for
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Perfect 10's Statement for October 6, 2008 Case Management Conference

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summary adjudication. The Court's ruling on Perfect 10's motion may well make most of the disputed discovery unnecessary and lead to the resolution of all cases. C. OTHER ISSUES RAISED BY THE COURT. With respect to some of the other issues raised by the Court: 1. Identification of Perfect 10's Copyrighted Works. Perfect 10 agrees with a cut-off date for registrations of Perfect 10's copyrights, to be set based upon the trial date. Perfect 10 has already identified most of the copyrighted works at issue in the case, by sending to Defendants at least 1,000,000 copies of Perfect 10 images in its DMCA notices. To the extent that a DMCA notice did not include all infringing works, or Perfect 10 discovers additional works, it will provide those works to Defendants in a folder labeled with the infringing website's name, prior to the cutoff date set by the Court. 2. Vicarious liability. Depending on the outcome of Perfect 10's impending motion, the issue of vicarious liability may never come up. If it does, Perfect 10 agrees that such issues can be resolved based on a sampling of images. However, Perfect 10 does believe that certain commercial functions of Defendants, such as partnering with infringing websites to earn money by placing ads around, and thereby exploiting, copyrighted works, should be subject to vicarious liability. Otherwise, if the copyright holder is only able to proceed on the basis of contributory liability, it could end up sending a never-ending stream of DMCA notices, while the search engine simply places its ads next to the copyright holder's work on a different infringing URL. This will depend on the ultimate ruling by the Court as to what constitutes contributory liability for an advertising agency. 3. Copyright Spreadsheet. In the event that the Court wishes for Perfect 10 to begin now to prepare a chart, Perfect 10 suggests the following, assuming that the chart will be based on between 50 and 100 images, selected by Perfect 10, based on some form of agreed upon sampling criteria. The following discussion contains elements of both what the Court thought was the minimum requirements
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Perfect 10's Statement for October 6, 2008 Case Management Conference

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(set forth on page 5, paragraph 3(b) of the Order), and the chart which contains additional compilations of information sought by the Defendants. Unique identifier of the work:. This would be the URL of the image on perfect10.com. Copyright Registration number. This would be the earliest copyright registration number that covers the image. Chain of title information. Perfect 10 would identify the photographer and identify the work for hire agreement or assignment of rights agreement. URL(s) of infringing websites or web pages. Massive infringing pay sites, such as giganews.com, which are causing enormous damage to Perfect 10, typically do not have web pages. The images are simply downloaded into the user's computer. For a site like giganews.com, Perfect 10, in its DMCA notices, provided the URL of the infringing website (giganews.com), along with copies of approximately 15,000 Perfect 10 images from that website, as well as instructions as to how to download those images. Free web sites do have web pages, so Perfect 10 provided the URLs of the infringing web pages in its DMCA notices, along with, in many cases, copies of the infringing web pages themselves. Perfect 10 can identify several infringing web pages on free sites for each of up to 100 images, as long as Perfect 10 selects the images. It would be extremely burdensome for Perfect 10 to have to do this for all infringing web pages, as that would require that Perfect 10 search through as many as 2,000,000 document pages in its productions to locate each of 100 different images. DMCA Notices Covering Each Image. This is manageable if Perfect 10 can identify one DMCA notice for each of the 100 selected images. There is no requirement under the DMCA that Perfect 10 provide multiple DMCA notices for each alleged infringed image, although Perfect 10 did so in many cases. //
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Perfect 10's Statement for October 6, 2008 Case Management Conference

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Other issues. Perfect 10 believes that its motion for partial summary judgment against Amazon and Alexa will demonstrate that a number of the other items requested by Defendants are apparent from the evidence presented and do not need to be listed in a spreadsheet. These would include the date (which appears on the Adobe document as well as the DMCA notice), the search term (which either appears on the DMCA notice or is irrelevant), whether the image is a thumbnail (this is apparent from the printout of the web page), the name of the person depicted (this appears in the image URL or on the webpage), etc. Perfect 10 believes that a description of the damages claimed for each image should be postponed until after its motion for summary judgment is decided. Questions posed by the Court: For one copyrighted work, how much time would it take to enter all the allegedly infringing URLs onto a spreadsheet? Answer: The critical term is "all." Perfect 10 has produced to Defendants somewhere in the order of 2,000,000 pages of documents, most of which contain infringements. To identify which of 2,000,000 documents contains a particular image would require examining all of the 2,000,000 documents (unless Perfect 10 could somehow rule out a significant portion of the documents). Furthermore, the URLs on many of these web pages are extremely long, and may involve over 100 characters each. The original spreadsheet proposed by Defendants would have required placing URLs in certain entries of a spreadsheet 2,000,000 x 30,000 in size (2,000,000 documents and 30,000 images). Perfect 10 does not have the resources to do this. However, Perfect 10 could provide several infringing URLs for each of 100 images. In response to the Court's second question, Perfect 10 is always in favor of settling legal disputes. Although Perfect 10 will create a chart if the Court so requests, this will take time, and some aspects of the chart may prove to be unnecessary, depending on the Court's ruling on Perfect 10's motion for partial
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Perfect 10's Statement for October 6, 2008 Case Management Conference