Perfect 10 Inc v. Google Inc et al

Filing 383

TRANSCRIPT for proceedings held on 8/18/08 2:28 PM. Court Reporter Cindy Nirenberg, [e-mail]. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 12/16/2008. Redacted Transcript Deadline set for 12/26/2008. Release of Transcript Restriction set for 2/23/2009. (Nirenberg, Cindy)

Perfect 10 Inc v. Google Inc et al

Doc. 383

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 _____________________________________ CINDY L. NIRENBERG, CSR #5059 U.S. Official Court Reporter 312 North Spring Street, #438 Los Angeles, California 90012
www.cindynirenberg.com

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION HONORABLE A. HOWARD MATZ, U.S. DISTRICT JUDGE ----

) ) ) ) vs. ) No. CV04-09484-AHM(SHx) ) GOOGLE, INC., ET AL., ) DEFENDANTS. ) ___________________________________) ) PERFECT 10, INC., A CALIFORNIA ) CORPORATION, ) PLAINTIFF, ) ) vs. ) No. CV05-04753-AHM(SHx) ) AMAZON, ET AL., ) DEFENDANTS. ) ___________________________________)

PERFECT 10, INC., A CALIFORNIA CORPORATION, PLAINTIFF,

REPORTER'S TRANSCRIPT OF PROCEEDINGS LOS ANGELES, CALIFORNIA MONDAY, AUGUST 18, 2008

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

Dockets.Justia.com

2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

APPEARANCES OF COUNSEL:

FOR THE PLAINTIFF: MAUSNER IP LAW BY: JEFFREY N. MAUSNER, ATTORNEY AT LAW 21800 OXNARD STREET SUITE 910 WOODLAND HILLS, CA 91367 310-617-8100

FOR THE DEFENDANT GOOGLE: QUINN EMANUEL URQUHART OLIVER & HEDGES BY: MICHAEL T. ZELLER, ATTORNEY AT LAW RACHEL M. HERRICK, ATTORNEY AT LAW 555 TWIN DOLPHIN DRIVE SUITE 560 REDWOOD SHORES, CA 94065 650-801-5000

FOR THE DEFENDANTS AMAZON.COM, A9.COM AND ALEXA INTERNET: TOWNSEND & TOWNSEND & CREW BY: ANTHONY J. MALUTTA, ATTORNEY AT LAW TWO EMBARCADERO CENTER 8TH FLOOR SAN FRANCISCO, CA 94111 415-576-0200

PRESENT TELEPHONICALLY: STEPHEN J. HILLMAN, U.S. DISTRICT COURT MAGISTRATE JUDGE

3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CLERK: LOS ANGELES, CALIFORNIA; MONDAY, AUGUST 18, 2008 2:28 P.M. ----Calling Item Number 3, CV04-9484, Perfect

10, Inc. versus Google, Inc., et al. and related case, CV05-4753, Perfect 10, Inc. versus Amazon, et al. Counsel, state your appearances, please. MR. MAUSNER: Good afternoon, Your Honor. Jeff

Mausner for the plaintiff, Perfect 10. THE COURT: MR. ZELLER: Good afternoon. Good afternoon, Your Honor. Mike Zeller

and Rachel Herrick for Google. THE COURT: MR. MALUTTA: Good afternoon. Good afternoon, Your Honor. Anthony

Malutta for Amazon.com, A9.com and Alexa Internet. THE COURT: MR. MALUTTA: THE COURT: Can you spell your last name, please? Malutta. Okay. M-A-L-U-T-T-A.

Judge Hillman, are you patched in?

JUDGE HILLMAN: THE COURT:

Yes. I'm not sure if the clerk

All right.

told you that I've arranged, happily, to have Judge Hillman participate in this 16(b) scheduling conference hearing. I'm going to give you a sense of where things may lead, although I have made no final decision, and I reserve the right to discuss the matter further with Judge Hillman, but
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 depending on what I learn in this conference -- and part of it will be about the status of the Microsoft case -- there is a good likelihood that I'm going to require the parties to meet and confer and recommend two different independent individuals as to whom or from whom the Court would appoint one to serve as a discovery master in this case in lieu of Judge Hillman. Not

just in this case, meaning Google and Amazon, but possibly in Microsoft. Now, the status of Microsoft could affect that, and I have some views which I'll explore with the lawyers about the costs and the like, but the overriding concern I have and the overview I have from reading these lengthy scheduling conference papers is that the level of acrimony is unacceptable, the conceptual, practical and apparently personal differences are profound, that the course of further proceedings leading up to trial in any or all of these actions are going to be unmistakenly and unavoidably acrimonious and complicated, and it would be beyond the capacity of the Court, both Judge Hillman and myself, to administer justice properly under those circumstances, and outside assistance under the federal rules is probably perfectly appropriate and even compelled in this case. That's my overview.

Now, I'm going to ask you some questions about the Microsoft case. I'm ordering the parties to jointly -- and

that means splitting the cost three ways -- obtain a transcript
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of today's proceeding. And I'm ordering you, Mr. Mausner, to notify counsel for Microsoft today that I asked certain questions about the status of the Microsoft case. They're not patched in because

this was a decision I made only a short while ago, but I want you to send a copy of the transcript to them or make it available to them promptly as soon as it's available. Now, in the Microsoft case, I had a scheduling conference, and I set a trial date of June 23rd. I don't have I've

a very reliable recollection of all that transpired.

looked at some notes that were compiled, and I noticed that when we had that conference, which resulted in a precise schedule leading up to a June 23rd, 2009 trial date -- and that conference was held on February 11th, I guess some six or seven months ago -- there was a dispute between the parties, meaning Perfect 10 and Microsoft, relating to the format of electronic discovery. And that's the same dispute that is pending now. Microsoft is using TIFF, an acronym that stands undoubtedly for something. Perfect 10 was using Adobe or JPEG. So I don't

recall if that was a matter that was supposed to be resolved by Judge Hillman if the parties couldn't agree, but where does it stand on the Microsoft case, because that seems to be the present dispute here? And by asking you where it stands, I mean have the
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here. parties worked out some kind of agreement on how to exchange and in what format to make available electronic discovery? MR. MAUSNER: There is no discovery dispute regarding

the form of the documents to be produced and which have been produced. That has gone away. THE COURT: MR. MAUSNER: Well, what is the agreement then? There is no agreement. We produced They produced

documents to them in Adobe and other formats.

documents to us in TIFF, and there is no dispute about that. THE COURT: Why should there be a dispute here, then?

If that's a combination that has been working in Microsoft, why can't it work here? MR. MAUSNER: I see no reason why it couldn't work

The only dispute -- and this is in all three of the

cases -- is whether we have to do a compilation of the documents that have been produced. The compilation that all of

the parties want -- you know, it's a chart that sets out certain information. THE COURT: take a hundred years? MR. MAUSNER: THE COURT: got to that figure. MR. MAUSNER: infringements. Well, there are over a million Over a hundred years. You know, Mr. Mausner, tell me how you This is the chart that you claim would

The chart has -- different charts have from

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were. six, I think, to -THE COURT: Tell me what some of your assumptions

How many people would be working on it, how much time

per person, and how many hours per week, and with what other factors that would result in three generations of human beings or a hundred years being necessary? MR. MAUSNER: We actually do have that. I don't have

it with me, but for -- you know, you are talking about at least 6 million entries. And we worked it out and we did it with 40

hours per week, and it would take one person more than a hundred years to do it. THE COURT: I don't believe that, personally. I am

not trying to tell you that your math is all wrong. MR. MAUSNER: For a million entries -- a million rows

with at least 6 columns in it, you're talking about 6 to 10 million entries. That is going to take -- and I think

that's a very conservative estimate of how long it's going to take. THE COURT: credibility. I think on its face it lacks all

The only reason I am tarrying at this point to

point that out is that it's an example, although regrettably not the only example, of real hyperbole. MR. MAUSNER: THE COURT: It -Mr. Mausner, don't interrupt me. Okay?

There could be all kinds of reasons why it's
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 inconceivable that something like that would take a hundred years, including the likelihood that between now and year 10, and between year 10 and year 20, and between now and the next century, there would be continuing advances in all kinds of matters involving software, computers, calculations and everything else. But I'm not going to debate the point with you because, it may be burdensome, but no way close to a hundred years. The more important point is that it tells me something about what is going on in these cases, and that's not necessarily just a slap on your wrist, because if there is some level of frustration that results in such extreme positions being asserted repeatedly that on their face lack all credibility, it may be because there's been a persistent campaign of provocation, which wouldn't surprise me either. I'm not finding fault with just one side. But don't in the So

future come to any judge or any special master whom I wind up appointing with such outrageous claims of a hundred years. A hundred years ago, nobody could imagine what life is like today, August 18th, and I don't think you can imagine what life will be like for the next hundred years either. Now, getting more directly to the issues in the Microsoft case that may have a bearing on what I do here, the recurring dispute that's present before me this afternoon is as
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to the defendants' request that lots of depositions, far more than the ten that the rules presumptively allot, 30 in the case of Google, are necessary and fair. How many depositions is Microsoft going to be permitted to take of Perfect 10? MR. MAUSNER: rules in Microsoft. THE COURT: There was not any variation of the

It was ten. Have the parties reached an agreement in

Microsoft that it would be the rules and no exceptions? MR. MAUSNER: scheduling conference. THE COURT: MR. MAUSNER: THE COURT: And the parties are sticking to that? Yes. Okay. Now, did the parties enter into a Well, that's what was decided at the

Protective Order in Microsoft that affects such things as the right of in-house counsel to review claimed confidential material of Perfect 10, the right of Zada to review claimed confidential material of Microsoft, and other comparable disputes that are surfacing today between your client on the one hand and Google and Amazon on the other? MR. MAUSNER: THE COURT: MR. MAUSNER: THE COURT: Yes. No issues relating there? No. Okay. So what is the deal? What is the

nature of the agreement?
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MAUSNER: produced by Microsoft. Dr. Zada can see all of the documents Their in-house counsel can see all of

the documents produced by Perfect 10. THE COURT: Well, let me ask you a different

question, and it's kind of working from a different perspective. What disputes have surfaced in Microsoft between

the time we had that scheduling conference in February and now? MR. MAUSNER: There is just the discovery dispute

involving the charts that they want us to compile, and then there are also some requests for admissions that they want us to modify our responses to. THE COURT: And are those disputes the subject of a

motion that's pending before Judge Hillman? MR. MAUSNER: the joint stipulation. THE COURT: MR. MAUSNER: THE COURT: MR. MAUSNER: THE COURT: Have the parties lined up a mediator? No. Have they discussed a mediator? No. Speaking just for yourself, I realize you It's not pending yet. We're working on

can't purport to speak for Microsoft, but why do you think things are proceeding more smoothly in the Microsoft case, if they are -- as appears to be the case -- than in these cases? MR. MAUSNER: Well, I think, you know, Google's

counsel is trying to make things difficult for us.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the 8th. THE COURT: And is there a motion pending before THE COURT: MR. MAUSNER: Amazon case. it. THE COURT: MR. MAUSNER: Which motion are you referring to? It's the same motion involving the What about Amazon? There haven't been many disputes in the

There's this one motion that's pending and that's

charts that they want us to compile, the discovery motion. THE COURT: MR. MAUSNER: THE COURT: And is that pending before Judge Hillman? That is. That's set for September 8th.

And also on September 8th is Google's

motion to compel answers to Interrogatories 3 and 11? MR. MAUSNER: Yes, that's also going to be heard on

Judge Hillman relating to Zada and his access to information? MR. MAUSNER: THE COURT: MR. MAUSNER: Yes, in the Google case. And when is that noticed for? We had a telephone hearing on that.

Judge Hillman determined that Google had not established that the information that they wanted to prevent Dr. Zada from seeing was not publicly available or that it was crown-jewels type of information, and he asked Google to submit another declaration on that issue. THE COURT: Hillman on that?
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

Is there a hearing date set before Judge

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know, I -THE COURT: Well, have you discussed with the lawyers Microsoft? MR. MAUSNER: To get all of these cases over. You MR. MAUSNER: No. They're going to submit their

declaration and then it would proceed from there. THE COURT: Okay. Now, with the date that I set for

the Microsoft trial of June 23rd, what prompted you to propose April 14th for a trial date in Google? MR. MAUSNER: Well, we wanted to proceed with the That case has been

Google case prior to the Microsoft case.

pending since 2004, and, you know, we wanted to have it sometime before the Microsoft case, several months, and that was the date that we thought we could manage. THE COURT: Why did you want to have it before

in any one of these three different cases the possibility of having one case serve not as the conclusive case -- or preclusive, necessarily, but as the equivalent of a test case, and depending on findings -- and there could be very precise findings with quite detailed, special findings for the jury to return -- to have the benefit to the administration of justice of collateral estoppel? MR. MAUSNER: We have not discussed that. We have

discussed having the trials together all at once and -THE COURT: Well, I'll tell you now that I am very

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 disinclined to pack Amazon and Google together at trial. The

differences are far too great, the risk of confusion far too great, the overlap far too little to warrant having a single trial. But that doesn't mean that if there are multiple

trials, there would have to be a reinvention of the same wheel all over again. I can think of various ways to ease the burden on Perfect 10 at the second trial, but you shouldn't seriously pursue the notion that there's going to be a joint trial of the Google and Amazon cases. That's just not going to happen.

Now, having set the dates in Microsoft, and believing that with a June 23rd date -- that's something that I intend to stick to -- I've got to tell you, with all of the difficulties and issues that have to be resolved on the Google case, your proposed trial of April 14th is utterly unrealistic and impractical. The presumptive schedule I'm setting for very simple cases doesn't even -- on today's scheduling conferences doesn't trigger such an early trial date, and this case is not presumptively simple. be resolved. So maybe you should begin to consider how you want to wage battle -- and you have a right to wage battle, and I admire in many respects the way you have been waging battle against these behemoths -- in light of the fact that you are
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

There are too many issues that have to

14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 going to go first almost certainly in Microsoft. So maybe you should put on a thinking cap and figure out how you want to structure that trial in a way that think is both advantageous to your client vis-a-vis the upcoming trials, because they are going to be sitting in on the trial and watching. And one of the benefits of having a discovery master who looks at these three cases as a whole, different as they are and separate as they may have to be handled in certain respects, one of the benefits is that there are various measures, stipulations, preclusive orders, legal consequences of findings in one matter that could bind the parties in the other. It's a little bit harder for your client than it is for the defendants if they're not parties to all three cases, but that just may be the way it is, Mr. Mausner, because you've taken on all these behemoths, and you have a right to, but that doesn't mean you can avoid the impact of adverse findings even though you may not be able to benefit from the impact of positive findings. And I want you to keep that in mind because So I

it's something that I intend to keep right before me. won't say more on that point.

Now, turning to the status of Google, we're going to go through that 16(b) report first. There is some questions I'm going to ask about that.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Why don't you have a seat, please, Mr. Mausner, and I want to hear from you, Mr. Zeller, so go to the lectern, please. First of all, without getting into detail -- I won't subject you to that -- you tell me whether at any point since February, when I had had the scheduling conference in the Microsoft case and today, you have been in touch with Microsoft's counsel about the status of that case that Perfect 10 brought. MR. ZELLER: THE COURT: MR. ZELLER: I personally have not, Your Honor. People from your firm? Yes. I believe that there have been I think they have been

some communications that we have had. somewhat limited.

They were basically geared toward trying to

understand whether cases were consolidated, to what degree there had been a request for consolidation and the schedule. I know that the conversations we've had so far, Your Honor, have not drilled down into some of the details with the disputes -- or the issues, I should say, that the Court was inquiring about today. THE COURT: All right. But in light of the answers

that you heard Mr. Mausner give me, let's look at some of the areas of contention that currently exist here. I'm directing your attention, Mr. Zeller, to Page 14, for example, and there's a dispute about how many depositions
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Google should be permitted to take. You want to have 30. He tells us that there

Mr. Mausner wants to limit you to ten.

is no such dispute in the Microsoft case. Why the problem here? MR. ZELLER: Well, my own surmise, based on hearing

what Mr. Mausner is saying today, is is that our case does have additional claims that have been asserted against Google. I

don't believe -- and certainly someone can correct me if I'm wrong, but I don't believe that there are publicity claims based on these nine, ten models, for example. THE COURT: MR. MAUSNER: THE COURT: MR. ZELLER: Hold on just a second. No, there are not. Keep going, Mr. Zeller. So that means that there are additional Are there?

witnesses for that reason alone. Also -- and this is somewhat a result of the more recent developments with the most recent amended complaint, but I understand that there are additional works that have at least been asserted against us so far. Maybe they will or have

already been asserted against Microsoft or maybe they are going to be shortly asserted, but they are assignees -- or rather assignors of copyrights who we would propose to potentially depose as well. THE COURT: Well, if you had the documents that

comprise the assignments -- and these are assignments to
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 documents? MR. ZELLER: Not necessarily. assignors? MR. ZELLER: Well, I think for a number of potential Perfect 10; is that correct? MR. ZELLER: Perfect 10. I know that they are assignments to

To what degree we have the underlying documents

today, I don't know that answer. THE COURT: But why would you need to depose the

reasons, Your Honor, Number 1 which would be to find out what licenses were granted by these assignors. THE COURT: Wouldn't that be reflected in the

I mean, we don't know what documents Perfect 10 has, to what degree they have taken over the files, what kinds of, you know, discussions. I've actually had very similar cases like this where people take the rights -- and often with, say, photographs or musical works or musical compositions, and it's not necessarily a straightforward matter as to who have they licensed, who have they provided rights to. There may be prior assignments that Sometimes you are dealing with

these people have entered into.

heirs, purported heirs, who, in fact, don't have the rights. So I mean there can be many, many different -THE COURT: MR. ZELLER: Did you say heirs, H-E-I-R-S? Yes. H-E-I-R-S.

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 claims. So, in other words, they may have themselves been some sort of assignee or a subsequent acquirer of the rights. So, I mean, there can be many permutations on these Today, because some of these are very newly asserted

works, we don't know those details, and that's part of what we will have to find out in the coming days and weeks. THE COURT: Okay. Look at the bottom of Page 15 and

the top of Page 16 of the 16(b) report because this is where the issue of TIFF production versus the alternative, which I take it is some kind of combination of Adobe and something else that Perfect 10 uses. You heard Mr. Mausner say P-10 is prepared to proceed in this case the way it has in Microsoft. P-10 does it its way. MR. ZELLER: You do it your way,

What's the problem with that? Well, I think the problem -- it really When files are produced in Many of those

boils down to this, Your Honor.

their native format -- say, they are PDF files. are not text searchable.

If they are produced in TIFF, which I will represent to the Court is the standard today in litigation in how people produce electronic files, that problem is overcome because you can basically put these things into databases, these documents, these materials, and they can be fully text searchable, which is obviously very, very important. efficiencies.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

It creates enormous

19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And so when we are producing things in TIFF, these files in TIFF, Perfect 10 can load into a database and do word searches. All of that comes up. We don't get that advantage

if the files that Perfect 10 is producing are, say, for example, in PDF. And also, of course, in some instances, if something -- if a rule -THE COURT: But if Google is litigating against the

world, Mr. Zeller, not just against P-10, Google routinely provides discovery in TIFF format, right? MR. ZELLER: THE COURT: That's correct. Okay. Does Google ever litigate against

other adversaries who don't use TIFF format? MR. ZELLER: the cases -THE COURT: use TIFF format? MR. ZELLER: Your Honor. I wouldn't characterize it as a right, Do you have a right to have the adversary That, I don't know. I can say that in

I would say that for efficiency purposes -But, you know, Google is a creative So is Microsoft. Older, but still out

THE COURT: enterprise, obviously. there.

Microsoft seems to be, if Mr. Mausner is correct in his

characterization, capable of litigating, I take it, full bore against Perfect 10, even though Perfect 10 doesn't make its information available in TIFF.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Why should Google have such difficulty? MR. ZELLER: word, Your Honor. What I would say is this, is that when things are produced in native files -- if Google were to do that -- and, by the way, so the Court is aware of this, in order to put something into TIFF, it has to be converted. So if Google were to start producing things in native format, it would multiply disputes. There's no question. We are going to Difficulty I don't think is the right

People would come and say I can't read this. have the same issue with Perfect 10.

If they produce something, whatever file format it is -- sometimes these can be very exotic. be in Apple format. Sometimes they may

And that imposes tremendous costs on the

party to try and, Number 1, figure out what the file is; Number 2, to decipher it. So, I mean, I would suggest, Your Honor, that really a fair playing field in this circumstance would be that everyone produces in a common format. shared. Also when the day comes for a trial in this sort of situation, and -- I mean, I think the Court, if it inquired of other litigants in other cases that have been tried before Your Honor in recent weeks or months, would find that there is often an enormous benefit to be gained by the parties of having a
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

Information can be

21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 another. common format, because once trial comes, you don't necessarily have to have, you know, very, very different formats. Parties find it very difficult to talk to one The technicians find it very difficult to talk with I mean, there is

one another, and this is a technical case.

going to be presumably a lot of exhibits, a lot of documents, a lot of information in computer format, and kind of a Tower of Babel. THE COURT: How much does it cost to convert whatever

discovery in the format Perfect 10 currently has been employing to TIFF format? MR. ZELLER: Well, part of that -- well, right now, I don't

Your Honor, we have not been able to do all of that.

even have the cost because a large part of this, we can't read. We have very large disks, disks full of data that have been turned over to us. This is partly what we have We've received We We

raised in the course of our discovery issues.

very sizable hard drives filled with undifferentiated data. don't know why it's there. can't tell what it is. I mean, you know, we can go to vendors and get estimates for them to try and decipher these things, but ultimately, Your Honor, it takes however much time it takes them. They have to go through these things file by file by There are no control numbers.

file to open them up, to potentially convert them to something
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 open. else. So I would submit, Your Honor, that -- I mean, we are looking at so far, what Perfect 10 has submitted, something in the neighborhood of 600 gigabytes of electronic information in this native file format. by file kind of -THE COURT: So we have been talking about this I mean, it literally requires a file

technical gap or dispute, but right now Google has made no motion to require production in TIFF format, right? MR. ZELLER: conferring on that. THE COURT: Mr. Mausner? MR. MAUSNER: I don't think -- yeah, I think we have And that's your understanding, I understand we're meeting and

mentioned it to each other, but I don't think we're meeting and conferring. Your Honor, I've looked at these documents, and they If you open them in Outlook, Outlook automatically If it's a PDF, it will open a

chooses whatever they're in. PDF.

If it's in some other format, it automatically opens it

in that format, but it's not -- it's not hard to open it. THE COURT: Okay. I'm not asking for enough There's no motion

information now to make some kind of ruling.

pending, and I don't know if there will be one or how it will be resolved.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. completed. MR. MAUSNER: THE COURT: MR. MAUSNER: Yes. Have you noticed any others? Yes. We have noticed a Rule 30(b)(6) Right now I'm trying to get a sense of what is really going on here to decide who will resolve it, so let's move on. The depositions that Perfect 10 has taken that are referred to at the top of Page 17, have those been completed, Mr. Mausner? MR. MAUSNER: been completed. you're -THE COURT: MR. MAUSNER: THE COURT: No, that's what it says here. Okay. Yes. We've taken four depositions that have Is there another one that

I think four.

But I wanted to know if any have been

deposition for a technical person regarding what information they need to locate an infringing image in their system. THE COURT: MR. MAUSNER: September 10th. They wanted to place certain conditions on our taking You know, that they would have, I think, five days of And when is that supposed to be? I believe it's going to be

30(b)(6) deposition of Perfect 10, and we don't agree to that many days, but the day we've set is September 10th. don't know if we need to resolve all of those -UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

And I

24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Given the nature of that deposition,

although it's a 30(b)(6) deposition, it's kind of about something involving expertise, so tell me -- that's kind of a segue to this question. On Page 15 of this 16(b) report, there It

is a surprisingly cryptic entry about expert discovery.

says, "Perfect 10 has yet to designate any experts, but when it does, Google will take discovery regarding same." What are the areas of expertise? What is the nature

of expert testimony that Perfect 10 contemplates being part of this case and necessary for trial? MR. MAUSNER: Okay. And a lot of this actually may

be done by Dr. Zada rather than an outside expert, but I think Google is going to raise the issue of whether they could locate the infringing images based on the URL that Perfect 10 provided to them. We think that that's actually a pretty simple answer, that you can locate it with those URLs, but we think that they are going to raise that. There will be -THE COURT: So somebody, and it might be Dr. Zada,

will demonstrate to the jury how easy it is, right? MR. MAUSNER: THE COURT: Correct. With equipment that would be available

here in the Court, right? MR. MAUSNER: We could do it that way, yes, Your

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 think of. THE COURT: How about you, Mr. Zeller? What are the Honor. There will be issues regarding damages. You know, The one

we've been thinking about damage theories in the case.

that I like the best is to take -- to try to figure out the number of potential customers that Perfect 10 lost because its images were available for free through Google. What I'm thinking is, you know, you start with the number of searches. THE COURT: MR. MAUSNER: THE COURT: Don't go too far down the road. Okay. Because I don't really want to hear about But

the different theories of damage analysis or testimony. damages would be an area of expertise. MR. MAUSNER:

What else would be?

That's really the main one that I can

areas of expert testimony that will be applicable here? MR. ZELLER: Well, I would certainly say that,

broadly stated, there would be categories of technical experts, matters of -THE COURT: technology? MR. ZELLER: Yes, sir. What I would say is is that Into what areas of technicality or

how it is that Google's search engine operates, such as the automated processes by which it collects information, how it is
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that users interact with the Google site, where are -- where's the information, the data that is at issue here, stored, how is it retrieved, how is it displayed -THE COURT: Don't you think a lot of this would be so

incontestably clear that it could be easily incorporated into user-friendly, meaning, jury-friendly, stipulations? MR. ZELLER: I would expect so.

In fact, Your Honor, what I would expect is that on some of these issues, that they will be so clear that the Court can determine them as a matter of law on summary judgment. I mean, many of these issues would from our perspective go to, say, fair use, and why it is that we ultimately believe that many of the claims that are being asserted here would be matters of fair use. So I absolutely do think, Your Honor, that those would be entirely suitable areas for stipulation or admitted facts or somehow a simplified, and, as the Court somehow put it, a jury-friendly way of putting this across. Absolutely.

I would also say that we would likely have survey experts, experts, because, for example, we have trademark and dilution claims here. We would expect that should those claims go forward, that we would want to have some sort of empirical evidence relating to issues such as protectability. Is the term even

recognized by anyone, is it famous for any purpose, as has been
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 asserted in this case, and does it have secondary meaning? We would also potentially have likelihood-of-confusion type experts to discuss those issues as well. I would think that also -- I mean, the counter to what Mr. Mausner has raised is we certainly -- I think another area of technical expertise would involve really the reasonableness and the notice that has been provided under the DMCA. Mr. Zada apparently has a view that it's easy to discern what the infringing sites are, the accused sites are, based upon the information provided. I can certainly tell the Court that Google has a very different view about the adequacy of that information. Maybe

that will be resolved on summary judgment, maybe it will have to go to trial, but that would certainly be another area as well. THE COURT: Okay. Now, in this Google report -- and

don't go to sleep on me, Mr. Malutta, because I want you to listen carefully to all that's been said. I'll give you an

opportunity to give me your take on some of these same issues very shortly. But on Page 13 of this Google report, the parties remind me that I previously ordered them to meet and confer and submit a stipulation and proposed order addressing the scope of
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Microsoft. the copyrights, and they tell me that there's been an exchange. Where do things stand on that, on that stipulation? MR. MAUSNER: We have exchanged our language. What

we decided to do was wait to see when the Google trial was going to be scheduled because the date -- the cutoff date for new copyright registrations could depend on the trial date or we could do it some other way, but we decided to see what the trial date was going to be, and then -THE COURT: But do you have an agreement in

principle, once you know what the trial date is, as to what the cutoff will be? MR. MAUSNER: ways of doing it. today. No, we don't because there is different

You know, one would be six months from

One could be, you know, six months from the trial date.

So we wanted to see what the trial date was going to be and then try to work that out. THE COURT: Did you propose that kind of approach to

counsel for Amazon, Mr. Malutta, or -- what firm are you with? Townsend? MR. MALUTTA: MR. MAUSNER: Townsend & Townsend. No, we haven't gotten to Amazon and

We're going to request the same agreement with the

other parties as well. THE COURT: Well, you probably don't have to request

it because once I decide what it is -- and I'm going to set a
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 date for that to be determined. And right now I'm telling you

that the stipulation has to be lodged one week after I send out a scheduling order on the Google case. One week.

And that will be the same basis for imposing that requirement on Perfect 10 in the other two cases. We don't

have to have motion practice and meet and confers and arguments. If you want to wait and see what the trial date will be, I can sort of understand that. I'll work with you on that.

But within a week of that, I want Google and Perfect 10 to file the stipulation as to the cutoff date for copyrights that are going to be the subject of the case thereafter, including up to trial. And whatever the concept is that you

agree to will be the concept in both Microsoft and Amazon. Now, you're here today, Mr. Malutta, so you will have a chance to squawk about that if you want. MR. MALUTTA: THE COURT: All right. Microsoft isn't, but Microsoft is going And if they seek to be heard

to get a copy of the transcript.

about something, they will have the right to take the appropriate steps. Since I mentioned you already, do you have a problem with what I just said? MR. MALUTTA: THE COURT: Our concern, Your Honor, is that -I'm talking just about the issue of a

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cutoff date for the copyrights that are going to be the subject of the dispute against your clients. MR. MALUTTA: THE COURT: No, Your Honor, we don't. Okay. The other parts of what I have

been exploring, I'll give you a chance to be heard on. Now, the next question I want to ask is this letter of request to a British court that I said Judge Hillman will have to determine, and he was good enough to agree to handle, is that resulting from the claims relating to FoneStarz? MR. MAUSNER: THE COURT: other two cases? MR. MAUSNER: THE COURT: MR. MAUSNER: THE COURT: Yes. Which ones? I think both. And where do things stand in terms of a Yes. Does that issue apply in either of the

letter of request in those cases? MR. MAUSNER: We haven't actually discussed it. It's

the defendants who want to take the deposition. Our position would be that one deposition should be taken of FoneStarz for all three cases, and we would like to participate in the deposition by video conference so we don't have to go over there. THE COURT: MR. MAUSNER: What's so bad about traveling to London? I would love to do it, but, as you

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 might imagine, I don't have the time to do anything, Your Honor. THE COURT: Well, I sympathize with you, but I really I'm just

wonder whether you're -- well, we'll see about that. going to hold off on what I have to say. to me.

But that makes sense

And it makes sense to me further to have a single deposition of Zada in all three cases with ample opportunity -enough, but not more than enough -- for each of the three sets of defendants to question him, but with an agreement that would require all three defendants to meet and confer with each other and determine who will take the lead and who will be actually posing the questions about issues and topics and claims and defenses that are common to all three defendants. Okay?

So what I am saying, Mr. Malutta and Mr. Zeller -and this is going to have to be the case with whoever is representing Microsoft -- that's the Winston & Strong firm, right? MR. MAUSNER: THE COURT: Yes. Okay. Zada is going to be subject to

several days of deposition, but in one fell swoop in a schedule that all four sets of parties are going to have to agree to, and the defendants are going to have to coordinate their questions so that he doesn't get gang raped in the sense of having the same question about the same claims or counterclaims
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 or the same technology or the same manner of practice for Perfect 10 or the same issues of damages, or whatever it is that's common to all three cases. Insofar as Perfect 10 is

concerned, he gets asked by one lawyer. Now, if there is something that that one lawyer doesn't ask or chooses not to ask that is about the same general issue and a different lawyer wishes to ask, that would be okay because maybe somebody forgets something, maybe somebody doesn't think it's important. But anything that's

common to all of them gets asked just once. Now, you are all to meet and confer and schedule that deposition. I am contemplating that the entirety of the deposition would take -- for all three cases would take not more than six days. And that's the limit I'm authorizing and setting. there is a need to modify that based on some factor that I'm failing to contemplate, then you can come back to ask me. that's 42 hours of deposition in all three cases max. And you might as well tell Dr. Zada to get ready because I'm not going to shave that to a smaller allotment. And I may increase it, depending just on what is involved, but I hope I don't have to. MR. MAUSNER: Your Honor, may I inquire? But If

They will also be wanting to take 30(b)(6)
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 abstract. depositions which most likely will be Dr. Zada also. Can we

say that the six days includes everything that's going to cover Dr. Zada? THE COURT: I don't want to make that in the

I will want to discuss that, among other things,

with Judge Hillman. I don't know to what extent the 30(b)(6) would involve a different kind of testimony or examination and maybe less percipient. It depends on what the 30(b)(6) is about.

If you want to act wisely, and people aren't inclined -- or, I should say, intent on flexing their muscles or drawing the last ounce of blood, they will see what happens during that initial allotment before they take a 30(b)(6) deposition. And it may be that there is no need or very little need for additional questions in the guise of a 30(b)(6), so I am not going to grant your request offhand. But I'm telling you I am trying to be fair minded. I

don't know who has more of a claim that the other guy is acting in bad faith here. I really can't figure that out. But I want

to put an end to it, and so does Judge Hillman. And if somebody plays games with any of the arrangements that I'm throwing out -- and a lot of this is just me sitting here thinking about what makes common sense. don't have a script, and I haven't thought this through.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

I I

34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 haven't even looked at this until a couple of hours ago -- then whoever plays games is going to be subject to a potential degree of sanctions ranging from -- or, let me put it this way, within the whole array of sanctions available under the federal rules. I'm not contemplating there will be games playing, but there better not be from either side, because Judge Hillman and I are fed up with the failure of the parties to figure out sensible ways to accommodate each other and get this case ready -- or these cases ready for settlement, because I think settlement is where it's heading no matter what. back to that later. All right. The next point I want to make is that the But we'll get

letter of request to the British court, if it's something that is going to be applicable in all three cases, then you have the burden -- and I'm imposing it on you, Mr. Mausner -- to meet and confer with the lawyers in the Microsoft and the Amazon cases, and patch in somebody from Quinn Emanuel and have a single request encompassing all three cases, either proposed and agreed to or at least a single request that would be the subject of a single ruling by whoever handles discovery disputes. Right now, that happens to be Judge Hillman. It's

not to be done in three different cases in much the same way. So that's the next order that is necessary. Yes, Mr. Zeller?
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ZELLER: If I may be heard briefly on that

particular issue just to raise to the Court a complicating factor which is that -- and I think what the Court is saying about a single letter of request makes perfect sense from the U.S. court perspective and particularly for Judge Hillman. My

concern is, however, that the British courts, if there is going to be a dispute over this particular letter of request -- I mean, they have very particular requirements of what they expect these to look like, so there would potentially be motion practice in the British courts over these particular requests. We spent a lot of time, and it took quite some time to narrowly tailor this. Now, obviously, this could be completely obviated if Perfect 10 could prevail upon FoneStarz to agree to sit for the deposition. I understand that the individual with knowledge of this is someone who's the head of their -- he's apparently identifiable and known, and he was the person who submitted information, a declaration, in connection with the motion for preliminary injunction. But I just wanted to raise that potentially complicating feature because if we send a request that has, I don't know, just X number -- you know, too many of these requests all kind of bundled together, even though -- because it's looking for different information for each defendant, the
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 me. British courts may blanch at it, and so I just wanted to alert the Court to that. THE COURT: All right. Well, thank you for alerting

I'm not sure I fully understand what you are saying, but

it's premature to assume that that is what is going to happen. It could happen. I'm not saying you are making something up,

but work something out with the lawyers. And what efforts have you made to see to it that FoneStarz is consensually available to be deposed? MR. MAUSNER: with them anymore. We haven't because we're not in contact

We don't oppose this at all, as long as we

get to participate by video. THE COURT: What do you mean not in contact? Is

there no business arrangement? MR. MAUSNER: know, it dried up. There currently is not. It's -- you You can get

There wasn't anything left.

these cell phone downloads for free off of the -THE COURT: aware of that. MR. MAUSNER: Actually, it's my understanding that I know that is what was alleged, and I'm

Google approached FoneStarz with some kind of business proposal, so -- but we don't oppose this at all. that way. And I don't think there should be -THE COURT: Mr. Mausner, why did you feel compelled Let me put it

to add that little footnote about Google contacting FoneStarz?
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 no. THE COURT: Are you planning to seek a Protective What relevance is that -MR. MAUSNER: contact than we have. I think they have had more recent That's all I'm saying. You asked me

if we had any contact or not. THE COURT: from FoneStarz, right? MR. MAUSNER: I actually don't know. I mean, I just Well, you must have found out about it

heard that, and I don't know -THE COURT: Okay. It doesn't matter to me, but the

point that I'm jumping on you for is to keep the clutter out of this. I don't want gamesmanship and gotcha thinking to Cut it out. No more.

permeate this lawsuit or these lawsuits. Both sides. All sides.

Now, the next question again arising out of the Google 16(b) report is triggered by something on Page 19. I'm told -- and, of course, this is Perfect 10's lawyer speaking -- that Google, quote, "unreasonably wants Perfect 10 to put a confidentiality designation on each page." Okay. With respect to this discovery dispute about Is

confidentiality on various pages, where do things stand? there a motion pending before anybody? MR. MAUSNER:

There's not currently a motion pending,

Order or is Google planning to seek an order compelling this
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 designation? Where do things stand? Ms. Herrick? If necessary,

MS. HERRICK:

Absolutely, Your Honor.

we do intend to pursue motion practice because obviously something that's very important in this case, as in all cases, is that the parties strictly abide by the Protective Order. And the large hard drives that Mr. Zeller was referring to earlier have been produced with a sticker on them that just says "Confidential," and inside, there is a mix of confidential and clearly public information. And we don't want

to run afoul of the Protective Order by accidentally producing or maybe filing something that Perfect 10 meant to designate as confidential but didn't specifically identify or label. THE COURT: But if you're correct that some stuff is

obviously public, then you are not at risk if whatever is obviously public is something that makes its way into some filing of yours, right? MS. HERRICK: THE COURT: I'm sorry? Say that one more time.

You're not at risk of violating a

Protective Order if something that's obviously public is something that you incorporate into something that you filed, right? MS. HERRICK: Technically, if we were to file

something not under seal that Mr. Mausner has designated as confidential, we would be violating the Protective Order, and we certainly don't want to in any way, shape or form risk that.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 deal here. So if something is obviously public, it's been given this blanket, random, sweeping, as Google would have it, designation of confidentiality because you put some little sticker on a hard drive, and they incorporate it into something they say or do or file, even though it was part of this hard drive with the confidential blanket stamp, are you going to fuss? MR. MAUSNER: No. And we would also, you know, be THE COURT: Okay. But let's see if we can have a

happy to tell them if they want to ask about something. It's just going to be very difficult to take all of these millions of documents and, you know, put actual confidential designations on each one. THE COURT: Okay. Well, I'm not making a ruling

about this dispute and neither is Judge Hillman, who has been patient enough to -- are you still there, Judge Hillman? JUDGE HILLMAN: THE COURT: I am. Neither of us has to issue some

Okay.

kind of advisory ruling because maybe it won't come to light. But it seems to me, Ms. Herrick, that when push comes to shove, and you are really in the process of needing to make use of whatever is on these documents, if there is a genuine ambiguity or doubt, then you run it by the people at Perfect 10 or Mr. Mausner.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And I'm going to hold Mr. Mausner to his word because I am going to hold you to your word. If something is obviously public, use it. Don't And

waste your client's money or your time getting permission.

he is not going to be given any credence if he claims that you made a violation of the Protective Order by using it, because if it was obviously public, you had a right to do it. MS. HERRICK: Your Honor, just one further thing.

Some things might appear to be obviously public to us, but Perfect 10 has nevertheless insisted that it's confidential. For instance, screenshots of alleged infringements, Perfect 10 has taken the position that the screenshots that identify where an infringing image can be found is confidential. So that is something that I might want to file

because it appears to be just a screenshot, but Perfect 10, I think, would be upset by that and would argue that that would be a violation of a Protective Order because they have designated those sorts of material as confidential. We believe improperly so, but that is just one example of how I think there will be -THE COURT: But my point is if there is something

that's really making you think that you are at risk of inadvertently, unintentionally violating a Protective Order, bring it up.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Order. court. You got a problem with screenshots? MR. MAUSNER: Not with the shot itself, but the

location of the infringing website allows anybody to find the infringements, basically. And we don't have a problem with those being filed in What we do have a problem with is Google publishing the

location of the infringing websites on the internet, which is something that it's done in the past. It's actually published Perfect 10's DMCA notices that have the URL where the infringing images are located. THE COURT: So why don't you modify the Protective

Make it clear what you do think they shouldn't do. MR. MAUSNER: THE COURT: But -Look, I'm not going to spend more time on

this one because I've got too many other things to do, but it seems to me that this is an example of what I'm afraid has been going on here which is that both sides are just pointing the finger and failing to talk to each other. If there is some clarity that can be agreed to that will limit the need to fuss and make motions about the Protective Order and the snapping of confidentiality, then change your God damn Protective Order, file it, and proceed on that basis. Now, let's move on. MR. MAUSNER: Your Honor, I think they do, too, but

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. THE COURT: Mr. Mausner. And would you go to the lectern, Mr. Malutta, because now I want to talk about -- and it won't take as much time -the issues in the Amazon case. MR. MALUTTA: THE COURT: Thank you, Your Honor. Before I ask you specific questions or Okay. Now, please be seated, we definitely want to avoid motions. for that. THE COURT: Well, you can avoid motions by We just don't have time

considering in good faith reasonable proposals of Google. MR. MAUSNER: THE COURT: And we will. It isn't just you who would have to make Maybe

a motion because the other guy is being unreasonable. Google would have to make a motion because you're being unreasonable. MR. MAUSNER: We will try, Your Honor.

I'll tell you

touch on specific things in the 16(b) report that I have before me on that case, do you wish to be heard about anything that's been said or any ruling I've made or any observation I've made thus far? MR. MALUTTA: Not really, Your Honor. You once

referred to us as sort of the tail of the dog here, and I feel like that again. Google has amply presented their arguments on

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the various issues you've addressed. THE COURT: Well, but I'm giving you your opportunity

to present your client's take, if you have anything distinctive that you want me to know about. MR. MALUTTA: I'm sorry. No, Your Honor. The one distinctive thing I should

address which sort of changes the outlook here is that Alexa Internet, another one of the Amazon defendants, was just added in this case, so that really changes the case posture. Amazon have been in this case obviously since 2005. THE COURT: MR. MALUTTA: THE COURT: But you represent all three? We represent all three. Okay. So tell me whether there are A9 and

tactical or analytical differences that you expect -- not necessarily factual differences arising from some different way they function, but are there going to be -- I assume there are not going to be any tactical or analytical differences since you are representing all three, right? MR. MALUTTA: I would disagree. I would say there

are certainly some analytical legal issues. I mean, you alluded that they do function differently, that A9 and Alexa function very differently, and they bring together totally different affirmative defenses, different claims -THE COURT: I haven't had chance to look at their --

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A9. defenses? MR. MALUTTA: Alexa operates very differently from They amalgamate search Originally, it was Alexa for a well, first of all, has Alexa filed its answer? MR. MALUTTA: THE COURT: It has filed an answer. What is distinctive about its affirmative

A9 is more of a search portal.

results from different search engines.

Google, then it transitioned to other providers.

time was more -- is more of a traditional search engine, sort of crawling the indexing. THE COURT: MR. MALUTTA: You say for a time. What about now?

They have ceased doing image search.

They are still doing web search, the textual links. THE COURT: So Alexa is just a Google competitor?

It's a Yahoo, it's an Ask.com? MR. MALUTTA: THE COURT: MR. MALUTTA: Googles of the world. THE COURT: does business? MR. MALUTTA: A9 barely functions anymore. It hasn't And what has changed about the way A9 It's the poor step-cousin, yes. Pardon me? It's the poor step-cousin to the

A9 is -- the function is still the same.

provided image search, which was the subject of the original complaint, since 2006.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Well, are you telling me that because

Alexa is the new kid on the block that the way these cases are coordinated for discovery -- and that's what I've already made clear is going to happen and has been happening and will happen, but not for trial. I don't intend to consolidate them

for trial -- but that the way that they would be coordinated for discovery along the broad outlines that I have been discussing here today is unfair to Alexa? MR. MALUTTA: coordinated discovery. THE COURT: So on Page 14 of your 16(b) report, I'm No, I have no objection to the

told that your view is that I should -- the Court should defer discovery on the -MR. MALUTTA: THE COURT: On contributory damages as to A9. And that A9 intends to file a motion This was filed on August 12th -- so What kind

within the next ten days.

we don't have ten days -- for hearing and decision. of motion is that? MR. MALUTTA:

It's a motion for summary adjudication

as to A9's defense under the DMCA, Section 512(a). THE COURT: motion by August 22nd? MR. MALUTTA: THE COURT: We are, Your Honor. And so your view is if it's a meritorious And you are going to be filing that

motion and found to be meritorious, then no discovery would be
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 damages. stay? MR. MALUTTA: Discovery as to contributory -- on If we've permissible? MR. MALUTTA: THE COURT: Correct. And what discovery are you trying to

We feel we don't need to get into damages.

got a defense as to the DMCA, damages are precluded. THE COURT: Okay. So if the motion is soon to hit

me, Mr. Mausner, what's your response as to whether or not we should hold off on discovery as to that aspect of the case? MR. MAUSNER: THE COURT: MR. MAUSNER: As to damages regarding A9? Yes, and as to contributory infringement. While the summary judgment motion is

pending, I think that's agreeable. THE COURT: Okay. So there we have it. You don't

have to make a motion to stay discovery or burden any court. That's the way we'll proceed. MR. MAUSNER: Now, there may be some discovery that

relates to the summary judgment motion depending what is raised. THE COURT: MR. MAUSNER: Well, then you'd make a 56(f) motion. Right. And, Your Honor, we'd like more

than a week, of course, to respond to their motion. THE COURT: Yeah, you'll have two weeks.

All summary judgment motions will be on stages of
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 two-week intervals. Two weeks to the opposition, two weeks

after the opposition for the reply, and two weeks after the reply for the hearing date. That's going to be the rule on all summary adjudication and all summary judgment motions on all three cases. I may have deviated from that in the scheduling order on the Microsoft case, but the lawyers and you can adjust things accordingly. MR. MAUSNER: Okay. There may be some summary I'm

judgment motions that we would need more than two weeks.

not sure if we would here, but there may be some that are more complicated than this one. THE COURT: Okay. Well, keep in mind that this may

be the first motion for resolution, at least on some of the merits of your various claims, so I assume that Google and Microsoft will be watching for what positions you take and what rulings I issue. And that leads to this point. I forgot to mention Google has got

this when I was talking about the Google case.

a whole pack of summary judgment motions they want to make, and I don't know when you are planning to make them. seem like it's timely now. to give you. Okay? They seem to be It doesn't

But here's the guidance I'm going

They seem to be discrete motions.

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 addressing different claims and defenses. And if you were to

file all of them at the same time, I would grant relief to Perfect 10 both on the time to oppose and the like, so don't even bother doing that. Don't dump the ball in the court or on

Mr. Mausner at the same time. You've got -- one, two, three, four, five, six, seven -- you've got eight motions that you specify on Page 21 of the Google 16(b) report. Now, what you should do, and what I'm ordering you to do, Mr. Zeller -- and I don't have a view on how it would shake out -- is determine which of these motions, if it's meritorious or possibly if it's lacking in merit, would preclude the need for any later motion to be filed. In other words, figure out and work with Mr. Mausner. And I want you to stipulate to a sequence. And we can figure

out the timing, because if there is some motions which, if I find them to be meritorious, would moot the need for later motions, then the later motions don't get made, your firm loses a little bit of money, and Google pays a little bit less in attorneys' fees, and the Court doesn't have to waste time. So I'm not going to be setting dates on these two cases today anyway. I'm going to be speaking to Judge Hillman,

but that's going to be the requirement. And that will apply to your case as well, Mr. Muletta -- Malutta. I apologize. How do you correctly

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Monday. THE COURT: But if there are going to be others at a pronounce your name? MR. MALUTTA: THE COURT: Malutta. Forgive me. I couldn't remember.

I don't know if you've told me in your 16(b) report about all the different motions. that you plan to file? MR. MALUTTA: Did you say that in yours --

Is that in your report? Just the one that we plan to file next

later time, depending on what happens -MR. MALUTTA: THE COURT: We're happy to pace them apart. Yeah, you've got to be practical about

this and look for a way to handle things with common sense and efficiency. All right. Now, I already, I think, issued a

ruling -- and you said you didn't have a problem with it -about when the cutoff date will be for copyrights which a