Perfect 10 Inc v. Google Inc et al

Filing 385

TRANSCRIPT for proceedings held on 10/6/08 1:43 PM. Court Reporter 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. 385

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 --PERFECT 10, INC., A CALIFORNIA CORPORATION, PLAINTIFF, ) ) ) ) vs. ) No. CV04-09484-AHM(SHx) GOOGLE, INC., ET AL., ) DEFENDANTS. ) ___________________________________) PERFECT 10, INC., A CALIFORNIA ) CORPORATION, ) PLAINTIFF, ) ) vs. ) No. CV05-4753-AHM(SHx) AMAZON.COM, INC., ET AL., ) DEFENDANTS. ) ___________________________________) PERFECT 10, INC., A CALIFORNIA ) CORPORATION, ) PLAINTIFF, ) ) vs. ) No. CV07-5156-AHM(SHx) MICROSOFT CORPORATION, ) DEFENDANT. ) ___________________________________) REPORTER'S TRANSCRIPT OF PROCEEDINGS LOS ANGELES, CALIFORNIA MONDAY, OCTOBER 6, 2008

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

Dockets.Justia.com

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UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

APPEARANCES OF COUNSEL:

FOR THE PLAINTIFF: LAW OFFICES OF JEFFREY N. MAUSNER BY: JEFFREY N. MAUSNER, ATTORNEY AT LAW 21800 OXNARD STREET SUITE 910 WOODLAND HILLS, CA 91356 310-617-8100

FOR THE GOOGLE DEFENDANTS: QUINN EMANUEL URQUHART OLIVER & HEDGES BY: MICHAEL T. ZELLER, ATTORNEY AT LAW 865 S. FIGUEROA STREET 10TH FLOOR LOS ANGELES, CA 90017 213-443-3000 QUINN EMANUEL URQUHART OLIVER & HEDGES BY: 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: MARK T. JANSEN, ATTORNEY AT LAW TWO EMBARCADERO CENTER 8TH FLOOR SAN FRANCISCO, CA 94111 415-576-0200

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UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

APPEARANCES OF COUNSEL (CONTINUED):

FOR THE MICROSOFT DEFENDANTS: WINSTON & STRAWN BY: ANDREW P. BRIDGES, ATTORNEY AT LAW 101 CALIFORNIA STREET SAN FRANCISCO, CA 94111 415-591-1506 MICROSOFT CORPORATION BY: ISABELLA FU, ATTORNEY AT LAW ASSOCIATE GENERAL COUNSEL LEGAL & CORPORATE AFFAIRS - LITIGATION ONE MICROSOFT WAY REDMOND, WA 98052

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

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 Mausner. We're having a status conference, obviously, counsel,
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

LOS ANGELES, CALIFORNIA; MONDAY, OCTOBER 6, 2008 1:43 P.M. ----THE CLERK: Calling Item Number 6, CV04-9484, Perfect

10, Inc. versus Google, Inc., et al.; related to CV05-4753, Perfect 10, Inc. versus Amazon.com, Inc., et al.; related to CV07-5156, Perfect 10, Inc. versus Microsoft Corporation. Counsel, state your appearances, please. MR. MAUSNER: Mausner for Perfect 10. THE COURT: MR. ZELLER: Good afternoon, Your Honor. We filed a -I looked at it. Mike Zeller Jeff

I got it.

Good afternoon, Your Honor.

and Rachel Herrick for Google. THE COURT: MR. JANSEN: Okay. Good afternoon. I'm Mark

Good afternoon, Your Honor.

Jansen for the defendants amazon.com, A9.com, and the recently added Alexa Internet defendant. THE COURT: MR. BRIDGES: Okay. Good afternoon. Andrew

Good afternoon, Your Honor.

Bridges of the San Francisco office of Winston & Strawn for Microsoft Corporation, and also with me today is Isabella Fu, Associate General Counsel of Microsoft Corporation. THE COURT: Good afternoon to all of you and to Mr.

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 today. I haven't received anything from Google or from Microsoft; is that correct?
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and it relates from the order that I issued on September 25th. Can you hear me, Judge Hillman? JUDGE HILLMAN: unfortunately. THE COURT: And when any lawyer wishes to be heard, Yes, but I can't hear that well,

in order to enable Judge Hillman to hear fully, please go to the lectern and speak, and please speak directly into the microphone at the lectern and clearly and loudly, and that will help. I asked the clerk to let you know, Judge Hillman, that if the transmission -- if the audio is cutting out or you can't really meaningfully follow what's going on or contribute to it, just let me know, and we'll make do without you. I know you have another matter on your calendar, so I will try to move this along. JUDGE HILLMAN: today. I'm sorry I can't be in the courtroom

It just didn't work out. THE COURT: Okay. So I issued an order on September

25th, and I got a statement that Mr. Mausner filed in response to it, identical statements in each of the three cases, and that was filed yesterday or today. I got a statement from Amazon that was also filed

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 MR. ZELLER: MR. BRIDGES: THE COURT: That's correct, Your Honor. Correct, Your Honor. All right. Take the microphones that are

at your table, if you're just giving these single responses, and put them near you. All right. Okay? Now, I'll ask about those statements

later, but just let me mention a couple of somewhat related items. I had anticipated and spent a good chunk of the weekend contemplating that we were going to have a hearing today on A9's pending summary judgment motion. There was a

mix-up in chambers, and it turns out that for good and understandable reasons -- and I'm not upset -- there was no hearing, the lawyers didn't come in. We're going to have a hearing on October 27th, and -is that the date we agreed? THE CLERK: THE COURT: Yes. And I'm sending out an order -- you will

get it all electronically this afternoon -- that sets forth directions for that hearing for some supplemental briefing in light of specified questions that I worked up over the weekend that relate to the contentions and in some respects to the evidence. I'm also sending out today and filing a ruling on the evidentiary objections to Dr. Zeda's declaration and to the
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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 parallel declaration -- I forget the guy's name, but I looked over his declaration; I don't have it here before me -sustaining a lot of the objections to the second Perfect 10 declarant and many, but by no means all, of the objections to Dr. Zeda. So one of the instructions I'm giving the lawyers is to file supplemental statements of undisputed fact and genuine issues in light of those evidentiary rulings. the rest of what I'm instructing you to do. So I understand that at least Mr. Mausner and maybe more than one lawyer picked up something that was on Mr. Montes', the courtroom deputy's, desk today when you walked in. If you did, I'm not upset, but it wasn't meant to be handed out at this hearing, so return it. You will get something And you'll see

comparable in the attachment as part of the orders that I am issuing today. All right. Now, turning to the matters at hand, I

said what I believe about the way these cases need to be evaluated and approached and possibly handled in the first two or three pages of the September 25th order. And I construe what you filed today, Mr. Mausner, to be, although cryptic, in agreement that you and your client are prepared to proceed on some kind of representative basis, sample basis. Before I ask you specific questions about what you
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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 it. THE COURT: If you didn't get it, just say so, filed, let me confirm that all of the defense lawyers received a copy of Perfect 10's statement. MR. ZELLER: Did any of you not get it?

Your Honor, Google received a copy of

otherwise, I'll assume that you all got it. Did you all get a copy of Mr. Jansen's statement? MR. BRIDGES: No, Your Honor, Microsoft did not,

which raises one administrative point, if I may, which is none of us as a matter of course in the ECF system is receiving filings in the other cases, at least certainly Microsoft is not. I don't know if there is anything that the Court can do

about that to have at least the ECF linkages in place. THE COURT: weren't they? These cases were formally consolidated,

When something is filed, isn't it supposed to be

served in each of the cases? THE CLERK: When they are consolidated, the parties

are then combined, but this was -- early on it was consolidated for discovery, then there was a stay put in place. THE COURT: All right. Look, I'm not going to figure

out how to handle that. You talk to Mr. Montes, and I'm instructing Mr. Montes to assist the parties in making sure that everything gets served upon everybody else regardless of which case. The

cases are too closely related not to have that happen, and just
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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 apples? make sure it gets done and gets done immediately. All right. Let me hear from you, Mr. Zeller -- and

go to the lectern, please -- about the broad, overall concept of trying to avoid otherwise difficult, time consuming and expensive issues of discovery, of special masters, of technical advisors, and of full-fledged wasteful litigation by a different approach. And the one that I described is by no means refined, and I'm not wedded to it, but I wanted to prod the lawyers into giving me their views as to what can be done to take a different tact altogether. Now, please respond on an overall basis, but pithily, if you can, to what I said on September 25th. MR. ZELLER: Yes. Thank you, Your Honor.

At the outset, we do think that it is problematic to have a sampling approach. We just don't think that there is

going to be enough apples-to-apples type comparisons for it to ultimately be that productive. THE COURT: Now, what do you mean by apples to

What are the apples that you are referring to? MR. ZELLER: Well, first of all, we're dealing with

different defendants, obviously different systems, different time periods, but also we're dealing with in Google's case somewhere between 65 and 80 separate DMCA notices, depending on whose testimony or positions you credit.
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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 So we are talking about a lot of different notices with a lot of different URLs, different sites. And in many

instances, as I think Mr. Mausner's submission of this weekend makes very clear, there were no URLs associated with those DMCA notices. So that in itself is an entire category that we're

dealing with. THE COURT: Are you stating, Mr. Zeller, that your

client received not more than 80 different URL notices? MR. ZELLER: No. They are notices themselves, not

the URLs, not the sites. THE COURT: MR. ZELLER: THE COURT: MR. ZELLER: The DMCA notices, you mean? Yes. You received only at most 80? I believe that's correct. That's my

understanding, Your Honor, somewhere between 65 and 80. THE COURT: What is so cumbersome about litigating

this case based on only those notices? MR. ZELLER: We don't think it's burdensome at all,

and, in fact, that's what we really think should be in the first instance what shapes the way the discovery goes. There is kind of a more threshold issue I can address in a moment, but assuming that what we really have here based on the Perfect 10 submission of this weekend is a contributory copyright infringement case? the DMCA notices.
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I mean, it really is framed by

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 We think that is the first issue that really ought to be addressed by the Court. THE COURT: There are many of these, in fact.

And how should it be addressed, and how

should the lawyers be required to proceed in order to get to a point where it can be addressed? MR. ZELLER: On the contributory infringement issue,

Your Honor, we think that Perfect 10 ought to be required to prepare the chart in the first instance that the Court has discussed. We think that there are additional categories of information that ought to go into it, but certainly narrowing down the universe and having Perfect 10 disclose which URLs, which infringements it is alleging that were the subject of DMCA notices, were not the subject of counter-notifications and which were not taken down, because those would have to be the criteria that would have to be met before they could even get past the Safe Harbor issue. So once we know what that universe is, then that is when we can potentially bring a motion with some additional discovery I can talk about, but it does at least sort of start to shape the playing field. THE COURT: Well, look, Mr. Zeller, in order for me

to understand what you're saying, look at Page 3 of my order, please. In paragraph that's numbered 2(a), let's just assume
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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 so. MR. ZELLER: Well, for one thing, Your Honor, that the issues that I flagged, which are those that are mentioned in the Ninth Circuit's decision, are really, if not dispositive of all the possible issues, the crux of the issues. Assume that, okay? When you say that Google should be required to fill in a chart, what information among the categories of information that were attached on the chart that I attached to my order really would be necessary? MR. ZELLER: THE COURT: In addition? No. Which of those. And then you can

tell me which ones in addition. MR. ZELLER: THE COURT: Okay. Well, certainly, as I --

Because you only sought the first six or

certainly, as between all the defendants -- obviously, the chart covers more than that, and -THE COURT: One thing that we could do, so I don't

want you to keep harkening back to the fact that there are differences, as there are not only in time frame and not only in the alleged infringements and the like, but in the technology and other aspects among the different defendants or the Amazon group of defendants here. If I embark -- if I

require something different than what you guys have all been doing so far, it could be done three times. It could be done

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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 separately in each of the three cases. comprehensively, maybe not. Maybe it will be done

But the idea is to do it more

efficiently and more directly. Now just speak, then, in terms of Google. my question as to Page 3, please. If I went your way and required that Mr. Mausner compile a chart akin to what is currently sought in the interrogatories that are the subject of the motion before Judge Hillman, just what would have to go into it? MR. ZELLER: Certainly, I agree, that the Court ought So answer

to do it as sort of a unified approach because, obviously, there wasn't coordination among the defendants. Different

defendants have different needs for different information. I would say that to achieve the goal of doing this once, at least with respect to the chart as an initial matter, it ought to contain the categories of information that the Court has set forth in Paragraph 3(b) along with two other categories of information. The first additional category would be basically the first publication date of the work involved and when the infringement allegedly began, and then, in addition, who is the person depicted in the image. Those would be the additional

ones in addition to what the Court has in 3(b). We think all the ones the Court has in 3(b) make perfect sense there as well. And these are important for

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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 seated. MR. MAUSNER: I just wanted to clarify something, purposes of being able to proceed with the DMCA motion. Now, one clarification. When the Court says here in

3(b) "the URLs of infringing websites," we would read that as being the URL of the particularly infringing image, if it exists. THE COURT: Now, let's just assume that in the case

of Google, Perfect 10 has sent only not more than 80 DMCA notices, and just assume -- because I don't know what the real facts are -- that those DMCA notices correspond to separate photos, and let's assume they were 80 different websites for that matter, and separate photos of 80 different models for that matter, and separate registrations that were obtained at separate times. know. Lots of differences among the 80. I don't

It doesn't matter, but -I'll hear from you later, Mr. Mausner. Please be

Your Honor, which -- I think there may have been a miscommunication on the URL issue. JUDGE HILLMAN: THE COURT: Mr. Mausner, speak up.

I'll hear from you later, Mr. Mausner.

Suppose I said we don't need to do it for all 80, we should do it for a fewer number, and I'll just say arbitrarily for the sake of understanding your position, 40. Isn't it possible to get to where you want to go to
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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 have fewer than all of the universe serve as the sample on which we can get a glimpse as to what the universe consists of and what the legal and probable trial outcomes would be if it went the full distance? You don't have a problem with that, do you? MR. ZELLER: Your Honor. THE COURT: MR. ZELLER: What is the problem? Well, the problem is this, is that the Well, actually, in many respects I do,

winnowing down process can take place because of the fact of the limited universe that we are talking about here is defined by the DMCA notices, and it's just not all, of course, the URLs. I would assume, and maybe Perfect 10 can confirm, that

they are not suing on every single one that was ever asserted in the DMCA notices. down. Some of those were unquestionably taken

Some of them certainly there will be categories in our

view that Google could not even potentially be liable for because they don't give URLs in those notices. But it seems to

me that there are categories that we can certainly deal with, but there are different categories within the notices. THE COURT: Suppose I -- you know, I think the main

problem that I tried to flag and didn't come up with it perfect and maybe not even a neat solution for, is how the sample would be determined. Now, suppose I said not more than 40 DMCA notices,
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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 each side to specify 20 out of the 80? Perfect 10 goes second. fourth. Once the sampled contents are determined -- and I don't know what they should be, but maybe it will be me who has to determine that -- what's unfair about that? MR. ZELLER: Well, I think fundamentally -- it's not Google goes first,

Google goes third, Perfect 10 goes

a matter of what I would consider to be fair, Your Honor. I think what it really has to do with is where does that ultimately leave us, because, if, say, for example, we deal with 40 of the notices in this first phase, we'll call it, I think, ultimately, the Court's goal here, as stated in the order, is to either have dispositive motions that can narrow down the case or potentially settlement. And without knowing

whether those 40 are, in fact, representative of the entire set of infringement claims, I'm not sure what information that gives us. That's the question mark that we have. THE COURT: Oh, well, I don't know what you mean by

knowing, but I would have a pretty high confidence level that if each side had the same number of picks, it's pretty close to representative. MR. ZELLER: Well, but that would assume that, for

example, if Perfect 10 lost on all 40 notices, whether it would say, well, we now admit we have no claim. I mean, it just seems to me that unless a party is
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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 outcome. going to -THE COURT: Well, I can't be sure what Mr. Mausner

and Dr. Zeda will do, but if they lost on all 40, I think you'd be in a very happy position. I don't think that's a particularly troublesome And if they won on ten, and they otherwise had claims

of thousands -- if you saw what Mr. Mausner told me in the document that was filed today, I don't know how -- other than, of course, by probably statutory damage contentions -- he would deal with the immense number of potential entrants in the universe. I don't think it would be anything close to what is specified in the Perfect 10 statement that was filed today beginning at Page 3 and especially set forth in Page 4. But, you know, you could pick and choose free websites, paid websites, others. You just have to tell me what

the universe is, and then I have to figure out a way to get it done. What is the downside? Other than what you're telling

me so far, which is you can't guarantee it will change things, Judge, and I agree that I can't, what's the downside? MR. ZELLER: Well, I would put -- the downside is

this, is that Google does want to bring dispositive motions, particularly on the DMCA matter. And to do that, there is certain discovery that we
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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 to. need, that we have propounded, we have been at meet and confer sessions with Perfect 10 about that we need to have resolved in order to pin that down. THE COURT: Okay. But what I am trying to

accomplish, Mr. Zeller, is to get you the discovery that is essential and no more, not different kinds of discovery. Now

not to preclude you from it, not to say that at no time would you have the chance to compel and to get a judge to agree that Perfect 10 should be compelled to provide other discovery, but at the current time and under this very perhaps innovative -I've come up with the idea myself. I'm not sure that it has

ever been done elsewhere, but maybe it has. At this stage, that's all you're going to be confined You are not going to be able to seek other stuff, and

Perfect 10 is not going to be compelled to give it, and whatever they think they need from you for the first stage is all -- once I'm satisfied that they have a right to it for the first stage, that's all they can get. What's so bad about that? MR. ZELLER: Well, what I would say -- if I may make

a comment, Your Honor, about what it is that Perfect 10 says in its submission, because I do think that there is potentially ways of carving this out. I mean, without obviously waiving -- what our position is is that, you know, we think we ought to just go
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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 forward with discovery and get this over with. But at that point, what Perfect 10 says is that approximately 1.4 million of these infringements are due to a hundred-and-twenty sites. Seventy-five of these, they say, makes up the majority of this infringement. Those are pay sites.

If we get the identification of the hundred-and-twenty sites that they are talking about which ones are pay, which ones are supposedly free, what the URLs that they assert are the infringements on those, we can move forward on those with potentially some other discovery to pin down the adequacy and other issues associated with the DMCA notices. So I don't disagree with the Court that there is a potential way of organizing this, but what causes me some concern is that I just don't see how the sampling is going to close those issues off. If we deal with things by category, I think that is more likely to be something that would finish that area off. THE COURT: MR. ZELLER: be the pay sites. What do you mean by category? Well, one category, for example, would

They say that this is a majority of the

images that are infringing. It is certainly no surprise -- and I don't think Perfect 10 is going to be disputing here today -- that Google does not index those pages. Their theory of infringement has

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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 as well. nothing to do with Google supposedly providing search results that have links to those individual URLs that have the images on them, the infringing images. They're basically saying, as far as I understand it -- and this would have to be pinned down -- is that Google does business with Giganews, for example, and, therefore, is liable. So if we can get those theories of infringement flushed out, if those can be pinned down, then we are in a position for moving for summary judgment. THE COURT: Well, when you talk to me about theories It I don't

of infringement, that doesn't sound to me like facts. sounds to me more like contentions. know what you're talking about. MR. ZELLER: So help me out.

Well, I think that there is a threshold

issue that we have here, Your Honor, which is, of course, Perfect 10 not too long ago amended its complaint, and there are all manner of other theories that are asserted in this case. There's direct infringement. There's -THE COURT: Without making a final ruling on any There's vicarious

liability.

motion that's pending, I will tell you all that this is almost entirely a contributory infringement case. MR. ZELLER: And that's certainly the way we view it

And so what we are looking for, Your Honor, is, I
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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 Honor. think, from Perfect 10 confirmation as to what theories is it really pursuing, and that is part of the more global question from our perspective. And then once we have the idea that, yes, that we're suing contributory infringement, is there a contributory infringement theory? On the pay sites, for example, simply

that Google has a business relationship with that particular website as opposed to any linking by Google in its search results or search index -- because as we read it and as we understand it, we think that is what Perfect 10 is saying, but, unfortunately, because we have not been getting the discovery that we need, we don't know that for a fact. And I'm sure the Court can appreciate that that makes it very difficult for us to move for summary judgment on these issues without knowing because we are going to be finding out what their theory is for the first time in an opposition. THE COURT: for a moment, please. Thank you, Mr. Zeller. All right. Now, what did you want to tell me before All right. Let me hear from Mr. Mausner

that I may have been -MR. MAUSNER: Yeah, I just wanted to clarify, Your

Each of the 65 to 80 notices contained hundreds or It wasn't just, you know, 65

thousands of URLs in each notice. to 80 URLs.

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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 Number 80. THE COURT: Okay. So if -- let's keep using the

If I had taken an arbitrary approach and said only

40, and among the 20 you could designate, there was some with 300 URLs in a given DMCA notice, you would be prepared to do that, right? MR. MAUSNER: sample of 100. THE COURT: to do it, right? MR. MAUSNER: If you required us to do it, we would But if I require you to do it, you'd have Well, that's a lot more URLs than the

have to try to do it, of course. THE COURT: You would have to try to do it because You are going to have to prove these

what's the alternative? anyway, aren't you? MR. MAUSNER: THE COURT:

Well, I -How could you possibly not contemplate

that if the case went the full distance and there were a trial, you'd have to have all of this information readily available, packaged in a comprehensible way, disclosed and passing the threshold test of admissibility before you can get any jury to go your way? MR. MAUSNER: Well, we don't think we have to prove

every element that's in the chart there. Certainly, we don't have to prove that for contributory infringement. We have to prove that we own a

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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 be. copyright, that someone infringed it, and that the defendant knew about it. THE COURT: Let me ask you to help me out. Please

look at the chart that I attached to my September 25th order, and please tell me -- because this was not necessarily a complete universe, and Mr. Zeller said there is some more stuff that he would want to get -- but I think this is an accurate account of who was seeking what at this stage and what your client's contention is as to whether it's already been produced. Here's a different question to you, Mr. Mausner. Looking at that chart, tell me -- and be careful in what you say -- which of the items that are listed in that chart would not be necessary in order for Perfect 10 to prove contributory infringement? MR. MAUSNER: I don't think unique identifier would

Copyright registration numbers would be. THE COURT: Well, you have said in the status report

statement you filed today -- and I appreciate your filing it, and I thought it was helpful -- you said that you are prepared to use the URL as the unique identifier, right? MR. MAUSNER: doable for the sample. Right, for the sample, because it's If we have to do it for hundreds of

thousands of images, it becomes undoable. THE COURT: But I'm not asking for the moment about

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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 what is doable or not. You are waging a titanic battle here,

and I'm not blind to how tough it is, but my job is to make sure that everything is done as the law requires. Why would a unique identifier of the work not be necessary for you to prove contributory infringement? MR. MAUSNER: Well, we haven't really thought --

well, we've thought about it, but we haven't come to conclusions about how we're going to prove, ultimately, damages. To establish liability, what we would do is move for summary judgment -- as we're going to do against Alexa within the next ten days -- with some examples showing the elements that the Ninth Circuit set forth for contributory liability. THE COURT: and I don't know. Let's suppose that I grant your motion --

How many examples are you going to have in

there against Alexa? MR. MAUSNER: THE COURT: It's over a hundred. Okay. Maybe 200 or so. That's 200

200 infringements.

different infringing sites or displays, right? MR. MAUSNER: THE COURT: Right. Maybe fewer than 200 different models,

maybe fewer than 200 different websites, but altogether the universe of what you're going to claim, there can be no factual dispute about, and summary judgment in your favor has to be granted against Alexa, has to do with 200 infringements, right?
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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 URLs? MR. MAUSNER: Well, it would be -- for free sites, And this is something that is very number. MR. MAUSNER: bit less than that. THE COURT: It could be a little bit more, a little

Several hundred, I'd say. I'm not going to hold you to the precise

Let's just say 200. JUDGE HILLMAN: Excuse me. Would that be 200 or so

there would be URLs for it. important.

For the pay sites, there are no URLs for the

infringing images. It's like a big box, and the images are all there. So the way we identified the infringing images in our DMCA notices was to send them the URL for the website and a copy of the image. THE COURT: did I understand that. MR. MAUSNER: And their position is if there is no I understood that, and not until today

URL for the image, we are not going to remove it. THE COURT: Okay. I'm not going to comment --

certainly not rule upon -- that contention, but as to the free sites, you would have a URL? MR. MAUSNER: THE COURT: identifier? MR. MAUSNER: Yes. Yes, of the web page. Okay. And that would be your unique

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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 THE COURT: So, again, I harken back to the question Which of the other

I asked you a few minutes ago, Mr. Mausner.

categories on what I attached to the September 25th order would you not have to prove to prove liability? If it was a paying site, and there was no URL for the particular display of the infringing display of the photo, then it would have been a page number, right? You would have had to identify it to me or to the jury what it was that was infringed, right? MR. MAUSNER: Well, we may submit a large number of

images, and Dr. Zeda could testify that there were 300,000 images that he downloaded, and they all are infringing Perfect 10 images on this website, and then -THE COURT: MR. MAUSNER: THE COURT: That's not going to cut it. Well -There's no way that that characterization

and conclusion could be properly challenged if there wasn't a foundation for it. Suppose it was 290,000 and that made a difference? You expect the defendants to simply proceed on the basis that because he claimed it was 300,000, they have to deal with 300,000? MR. MAUSNER: Well, it might not -- you know, a

difference of 10,000 might not make a difference on the same website.
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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 Mausner. THE COURT: Don't lose sight of the point, Mr.

I am trying to get you, without being hostile to you

at all, to understand what evidence is and what you're going to have to prove at trial. And that's my premise here.

If you are going to have to prove something at trial, you're going to have to prove it on summary judgment, even as to just liability, okay? So I want to know what it is that's

in this category that you don't have to prove to prove contributory liability. MR. MAUSNER: Well, going back to -- first of all, we

are not at trial yet, and it's our position that we can do motions for summary judgment based on sampling in the categories. For example, the question of whether a search engine is liable for linking to a pay site, and the DMCA notice does not contain a URL of the image because there is no such URL to give, if it's sufficient that the DMCA notice contains the URL of the website and copies of the images -- and, you know, when you get to the point that -THE COURT: You are going to have to specify the page

number in your document production where that image appeared, right? MR. MAUSNER: Well, the images are contained in a

subfile for that website, and those are all of the images, all of the -- there are, you know, 19,000 Perfect 10 images on this
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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 the image. The URL that we give is the URL of the website because there is no infringing -- there is no URL of the web page. THE COURT: Okay. And you would have to give the URL website. They are contained in this subfolder, okay, but at

this point what we're doing is we're giving maybe two or three examples of images on that website, and the question is simply is the search engine liable for linking to that website and having advertising relationships with them. THE COURT: That's the ultimate question.

So let's just assume it's two or three out of 19,000. Only as to those two or three, tell me what you don't need, because you keep waffling and evading my question. MR. MAUSNER: Okay. For our motion, we are attaching I guess that acts at the unique We are

copies of the images to it. identifier.

The actual image itself is attached.

giving the copyright registration number. There is no page number. We're attaching a copy of

with every precise component of it, even if it were a hundred digits long, right? MR. MAUSNER: www.giganews.com. THE COURT: All right. Keep going, Mr. Mausner. Well, for pay sites, the only URL is

Any item on a free site, for example, or URL, it
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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 would be your legal obligation to provide the precise URL? MR. MAUSNER: THE COURT: MR. MAUSNER: anything about damages. would. Yes. All right. Okay. Keep going.

At this point, we're not doing

Of course, if we went to trial, we We will seek actual

But we may seek actual damages.

damages, you know, and it could be based on overall loss of customers that Perfect 10 experienced rather than having to ascribe damage from the showing of one picture. that we could ever do that. THE COURT: to have to deal with. Well, that may be a problem you're going I grant you that I'm not thinking about I don't know

damages right now because I think there is a better way, but if you wanted to show damages because of a loss of customers, you would certainly have to show the date the infringed display occurred, the next item on my list, right? MR. MAUSNER: THE COURT: Right. Because you've got to know what the

customer base was before and after, right? MR. MAUSNER: THE COURT: this information? MR. MAUSNER: The date of the conduct is set forth on Right. Okay. What about the other entries on

the printout because the printout has the date that it was accessed by Dr. Zeda or someone else and downloaded.
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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 THE COURT: Well, just tell me is there any other

item on this page on the information sought by the defendants in motions to compel, the attachment to my order, that in order to establish liability, you just don't have to prove it all? MR. MAUSNER: search term. I don't think you have to prove the

The thumbnail or full-size images, you may have

to prove that under fair use, but that's obvious from the printout itself whether it's a thumbnail or a full size. Copyright registration of compilations or derivative works, now, that may relate to statutory damages. Documents showing chain of title -THE COURT: MR. MAUSNER: chain of title? THE COURT: Well, both. We talked about copyright Don't you have to prove ownership? You are talking about documents showing

registration previously. MR. MAUSNER: THE COURT: related to that.

That's Item 2 -- or the second. Right.

The second on this list.

These are

If it's a compilation or derivative work, you

still have to prove ownership, right? MR. MAUSNER: Right. And what we are doing is we are

providing the copyright registration certificate, and we are going to have a declaration that says which certificate covers which image. THE COURT: Okay. Now, here's the point that I think

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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 is becoming pretty clear, I hope. You started out -- you

didn't start out, but you said a few minutes ago -- other than -- I think you said 19,000, or something like that, we're going to give three, okay? And let's suppose you got before

the fact finder -- or, on summary judgment, before me -- all that you needed to to establish that the defendant you were dealing with in that moment contributorily was liable or liable for contributory infringement on those three. case, Mr. Mausner. You proved your

What would be your position as to the other

infringements that may have been part of your document production -- but I really should have said alleged infringements -- that proving the three would entitle you to recover for the 19,000? MR. MAUSNER: It would establish the principle as to

whether there is liability for that category of infringement, and then hopefully -THE COURT: MR. MAUSNER: THE COURT: Well, let's just say --- we would settle. Let's just say it would prove that there

was liability for those three infringements. MR. MAUSNER: THE COURT: Okay. Don't think too much about category.

Where do you go from there? MR. MAUSNER: Well, those three infringements are The

representative of a certain number of other infringements.
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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 facts are basically the same. THE COURT: How do we know that unless we do a sample

and unless the sample is kosher in the sense that it's devised and implemented in a neutral, fair fashion, either by having a technical advisor appointed who will determine exactly what's in the sample and neither side or any side can object or by having the parties negotiate? It's clear to me except for the

search term and other instructions or events -- and I'll give a chance to one or more defendants to hear about that -- it's pretty clear to me that you acknowledged in our last few minutes of colloquy that all the information sought by the defendants, one or more defendants, is necessary to prove liability. I'm giving you the opportunity to pursue what may or may not prove to be a feasible way to determine what your shot is in proving liability. MR. MAUSNER: Yes, and thank you. We very much want

to do it that way, by a sampling. We definitely support the idea of doing it by sampling because, you know, what happens is when you have so many infringements, the greater the infringer, the more difficult or even impossible it is -- it becomes for the copyright owner to establish each element of the case for each infringement. THE COURT: Okay. Now, in order for the sample to

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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 have any potential value or validity, the defendants have to have a right to have the sample include the items or a representative number of items that you have designated, in whatever way you have with your Adobe PDF format or your responses to interrogatories or otherwise, of things that you were just plain off base on. You gave a DMCA notice that was flagrantly defective, and you can't cure it now. in there, and I look at 40. has its 20. All right? And they get their 20 That defendant

You have your 20.

And on the ones -- on the overall ones, the 40, And you may or may not have

you just failed to prove 20, okay?

proved something about the other 20, but you flatly failed to prove the 20, some defect. One or more of these items that you

would have to prove, you didn't. So getting back to your 19,000, that's already reducing it, right, by 9500 at best? predictor of the total universe? MR. MAUSNER: It is reducing it somewhat, but I don't The sample is the

think the numbers -- if we go with 20 or 40 DMCA notices, we still may be talking about 40- or 60,000 images that are mentioned in those notices. And what I would suggest is that

it be something like a hundred, and there aren't that many different permutations, at least that I've thought of. certainly open to any -THE COURT: You want a hundred notices with -And I'm

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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 MR. MAUSNER: Not notices, Your Honor. URLs or

images, a hundred images. THE COURT: MR. MAUSNER: those images are in. one that it's in. How many DMCA notices? Well, it could cover whatever notices That's what it would cover. Or the first

There is no reason we would have to -- if a

certain URL is mentioned in five notices, we would give the first notices that it's mentioned in. burdensome, we could give -THE COURT: on that one? MR. MAUSNER: THE COURT: I'm not sure what you mean. If you have one notice for one But multiply that by five if you prevail Or if it's not

infringement, but the infringement was engaged in multiple times under my sampling approach. MR. MAUSNER: Well, the infringement is ongoing. The

infringing website has an image at a certain URL.

Perfect 10

sends a notice to one of the defendants saying, "You're linking to this URL. Stop linking," and the defendant doesn't stop the

link or doesn't stop the advertising relationship that they have. THE COURT: Suppose there was a defect in the notice Now,

or some other failure of proof as to that example, okay?

that notice was defective for everything it put the recipient on notice of, right? You can't possibly recover for anything

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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 else that was incorporated in that notice, could you? MR. MAUSNER: You're saying if there is only one URL

that we choose in the notice that we are going to be bound by that? THE COURT: No. If there were a hundred -- because

you just told me, Judge, keep in mind that any given DMCA notice could involve hundreds of URL notices. If the DMCA notice is defective for any reason, you can't prove that there was liability as a contributory infringer within the meaning of the DMCA. Then you can't prove And your

it as to anything that was covered by that notice.

other examples -- your other -- what you put the recipient on notice of in addition to that one active infringement or that one particular photograph is out the window. that conclusion? MR. MAUSNER: Well, that's not necessarily true. What's wrong with

There could be -- if there's a DMCA that has a thousand URLs in it, some of those URLs may not have been sufficient to locate the infringing material because there was something wrong with the way it was copied or something. the other ones could be -- you know, could be sufficient. THE COURT: So if I appointed someone to determine And

how the sample was going to be determined, only three DMCA notices with a hundred or more claimed infringements, every other aspect -- because I can see that there's just too much
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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 potential for game playing here, and not only would the determination of what could be part of the sample and the methodology be done, but maybe both sides in any given case would have an equal number of designations once that's been determined within the framework -- then we are not going to be talking about skewing your effort to have incorporated the sample, only the things that you feel strongest about. And you're going to be bound by the outcome because if there is a defect in the DMCA notice as to one URL, everything in that notice either could be deemed to be a failure of proof -- or certainly that URL. But you can't Then

require a thousand of these to be multiplied by 40 DMCAs.

you're back in the stew that you claimed you didn't want to be in, right, because you have to prove it just to me? to prove all these things. I'm not going to let you get to summary judgment and prevail on anything unless the evidence of all of the elements that you have to prove for contributory liability -- and I'm not even for the moment focusing on damages -- has been established. MR. MAUSNER: We think that this motion that we're And then once You have

going to be filing will establish each element.

we have the theories of liability nailed down, then we can go on to issues of damages. THE COURT: Well, that harkens back to what Mr.

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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 liability? MR. MAUSNER: think, is a good one. individual images. Well, the one that he mentioned, I The pay sites don't have the URLs of the Honor did. Zeller said. Because he, as I understood it, was telling me he And that

doesn't know what your theories of liability are. came as a little bit of a surprise to me. them out yet? MR. MAUSNER: Well, I think we did.

You haven't spelled

I think Your

I think the Ninth Circuit did. THE COURT:

I mean --

Well, you just said, "Once our theories

of liability have been established." MR. MAUSNER: THE COURT: Right. Haven't you established your theories of

We think our notice was the best notice you

can give in that situation where we give the URL of the website and the actual picture, and we've also given instructions for how you locate that picture in the website. So the question becomes is that sufficient notice to the defendants to allow them to locate the infringing image and remove access. They have said in that situation they're not We think that they should remove it.

going to remove it.

So that's an issue that Your Honor can decide on summary judgment. THE COURT: Okay. I see what you're talking about. This A9 motion, this

Let me ask you something.

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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 to Alexa. THE COURT: MR. MAUSNER: Like what? Alexa did not have a designated to Alexa. THE COURT: Like what? motion against Amazon and Alexa that you are going to be filing, is there something about that motion that is sui generis that would not be a good example of comparable motions you might file later on against Google or Microsoft or even A9? MR. MAUSNER: Some is and some is, you know, peculiar

What I'm driving at, in case it isn't clear -- and this is true for the benefit of everybody. I'll hear from some

of the defense attorneys in just a second -- is, okay, you want me to hold off everything, hold off further discovery, hold off any determination about a sample, see how far you get and how far I get on your impending, as you put it, summary judgment motion or partial summary judgment motion against Amazon and Alexa, and I want to know, before I embark on that and whether I go along with your request, how much of a predictor for future work, future summary adjudication motions, other cases, that motion is going to be, what kind of a predictor will it be. MR. MAUSNER: Okay. For that example of pay sites,

that's the same issue that is in all three cases. There are some issues regarding Alexa that are unique

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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 copyright agent registered at the copyright office, so Perfect 10 sent the notices to Amazon, and Alexa takes the position that sending it to Amazon wasn't sufficient, even though it didn't have an agent registered, and the only registered agent was Amazon. THE COURT: Okay. I've given you a lot of time. I

have to give some time to the defendants. from Mr. Bridge (sic) next.

I am going to hear

But you tell me what you meant at

the bottom of Page 2 of what you filed today when you said "Perfect 10 respectfully suggests that large-scale discovery relating to requests made by various defendants be postponed until the Court rules," on your summary adjudication motion. What do you mean by "large-scale discovery" and what kind of discovery that the defendants are seeking would still be permissible? MR. MAUSNER: if there is any. THE COURT: MR. MAUSNER: THE COURT: Amazon and Alexa? You mean a 56(f) request? Yes. So you're talking just, then, about Discovery that relates to the motion,

You're not asking me to hold off on the

discovery efforts that Google and Microsoft are making, are you? MR. MAUSNER: Well, the large-scale discovery that

they're asking about, there is some very -- you know, first of
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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 out. Please give me your overview to start with as to whether you think this concept that I came up with, however unformed or incomplete it is -- and I recognize it is and I knew it was when I sent it out -- makes any sense at all. MR. BRIDGES: Your Honor, Microsoft believes it makes all, these charts are -- if we were doing the charts, we would not be able to do the summary judgment motion. Another example is Google has propounded I think it's 962 requests for admissions on us. them, but they're now -THE COURT: Well, that gets back to this question how We answered about half of

much a single lawyer and hard-working, skillful lawyer can do, and, you know, I don't know that there is that much I can do about that. I am not going to knowingly permit someone to

bludgeon you, but you've embarked on these claims against all of these defendants. And that argument that "I'm overworked

and excessively burdened" can only take you so far, Mr. Mausner. Don't think I'm going to excuse everything that has Not even close.

to be done.

Let me hear from you, Mr. Bridge. MR. MAUSNER: Your Honor, I understand that. I'm

just saying let's get these issues decided for the summary judgment and a lot of this may go away. THE COURT: Well, that's what I am trying to figure

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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 an enormous amount of sense. And, frankly, I feel that with

the statement we received from Perfect 10 over the weekend, we may have had a breakthrough in the case that reflects that the fact that this chart is starting to give this case some structure. And having a structure like this helps us focus on

what's really here and what really isn't here so that we can focus all of our energies on what really is in the case. I just have a few comments to make largely on details just to make sure we don't lose track of what's needed to make this chart successful. I think Mr. Mausner said something today that was different from what he said in his papers, but a "unique identifier of the work"? This arises in part because we're

getting lots and lots of pictures with no Bates numbers or anything, and we just need to know by some identification what the image is that Perfect 10 is claiming. In the papers, Mr. Mausner said they could be uniquely identified by reference to the URL for the image on the Perfect 10 website. Today I thought he said that URLs of

alleged infringements might work. We really think it needs to be tied to something that Perfect 10 controls, and so I think that's what it should be. THE COURT: Well, I saw that, too. And you are

talking about at the top of Page 4? MR. BRIDGES: That's right.

Perfect 10's filing today? Top of Page 4 under the

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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 URL of the image on perfect10.com. THE COURT: That works for us.

If you got that, Mr. Bridge, is what

you're telling me is that you could then see what the photo consists of and then you could find it? MR. BRIDGES: That's right.

And then also the reason I asked for this -- and, frankly, I drafted the Google interrogatory when I was still representing Google, and so it's parallel. THE COURT: (Laughter.) MR. BRIDGES: No, I'm not, Your Honor. You're doubly billing this.

But the point is we've got to have a handle by which we analyze the common thread of the various facts about various works claimed by Perfect 10, so we have to find a way of uniquely identifying that work. It could be a Bates number in It could be some sort of But that

a traditional document production. abstract image number.

Here, if it's a URL, fine.

gives us the framework so that we can attribute all the other information to that work. THE COURT: or Bridges? MR. BRIDGES: THE COURT: MR. BRIDGES: THE COURT: Bridges. Sorry. That's all right. Do you think if I ordered that the world Do you think, Mr. Bridge -- is it Bridge

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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 10. stop and Mr. Mausner do nothing more than negotiate with you for not more than a full day and I locked you both in some room, you could stipulate to a methodology? MR. BRIDGES: I think it's possible, Your Honor. I

would have to confer, obviously, with allied counsel, but I think -- I don't see a reason why both sides can't come to a reasonable accommodation here. THE COURT: Well, no. I think I know what you mean

by allied counsel, but I am just saying suppose it was just for Microsoft. MR. BRIDGES: willing parties. THE COURT: Well, of course. Microsoft and Perfect Oh, absolutely. Now, it requires two

Just your case, okay?

Then you see what you and Mr.

Mausner come up with.

And I see it and the other parties,

including especially Google, could get the benefit of whether or not it is likely to be helpful. MR. BRIDGES: THE COURT: I think that would work, Your Honor. Do you think that you could figure out a

way to define what goes into the sample that would be neutral and fair? MR. BRIDGES: I would like to make a point. I think

there has been discussion of samples and there's been discussion of categories. categories. I think both sides can identify

They wouldn't be a random sample, but we can look

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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 category. MR. BRIDGES: THE COURT: Absolutely. I would just offhand contemplate at the at the many different permutations of combinations of URLs, notices, claimed works and the like. 320, I don't know. Whether it's 20 or 60 or

It's sort of a kaleidoscope, but I think we

could at least sit down and say here are categories that can be looked at in the abstract. THE COURT: Okay. But I knew about the distinction.

I wasn't, I hope, inadvertently confusing the sample with the classification, because the sample could skew the validity of doing this on a truncated basis. Okay. Which ones of all of the information has to be So I thought just sitting here off

provided for and how many?

the top of my head, give each side the same number of designations. MR. BRIDGES: I think that works, Your Honor.

We just want to make sure that the designations give us -- that we have a large enough number of designations that each category gets represented because what we need is a sample within each category. THE COURT: Oh, more than one sample in each

very least -- and I don't think it would be this few -- for every given classification -- every different category, I should say, that we have to get a microcosm of the full
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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 universe for, each side is going to have at least one sample favorable to it, if I give to each side the right to designate an equal number of samples but probably more than one. All right. MR. BRIDGES: self-evident. One thing has occurred to me that could be important, and that is that if Mr. Mausner -- and this is in addition to materials on the chart. If Mr. Mausner or Perfect 10 could What else did you want to tell me? I think all the others are fairly

identify to the best of its knowledge when the first infringement of each work occurred, and that relates substantially to the availability of statutory damages. And I raise that not because we're ready to litigate the damages phase of this case, but I interpret the Court's efforts here to be directed at two things: To help bring

structure to the case, and also to give both sides a realistic appraisal of the likely outcome of the case. THE COURT: Yeah, that's exactly what I'm driving at.

Now, if you look at the chart that I attached, you see where it says just above the middle of the page "Date of and particular conduct constituting the infringing act"? Would

it accommodate your concern if it said "constituting the first infringing act"? MR. BRIDGES: THE COURT: Yes, Your Honor. Okay. Anything else you want to tell me?

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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 I think. The first is trademark infringement. The Google and view. MR. BRIDGES: Understood. And, also, I would like to MR. BRIDGES: That's it on the chart. But if I could

go to a broader view of the case for a minute and try to crystalize some things that were said earlier. THE COURT: MR. BRIDGES: Go ahead. The Court said, as I believe, that this

case is really boiling down to a contributory copyright infringement case. THE COURT: Yes. That's my decided, but not final,

identify five categories of theories that have been out there, and it would be useful to know formally from Perfect 10, perhaps in 30 days with time to think it through, whether it really still asserts these other theories. And if I can just tick them off, it would be useful,

Microsoft cases both include allegations of direct and indirect trademark infringement, but it's never been a topic of discovery in this case. on it. Second, after the Court's enunciation of the server test and the affirmance by the Ninth Circuit, is Perfect 10 still claiming direct infringement of the display and distribution rights arising from framed pages and the links to
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At least discovery has never happened

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 them? THE COURT: When you get a copy of the order that's

going out this afternoon that I prepared for the hearing that didn't take place this morning, you will see that I asked that question. MR. BRIDGES: Great.

Third, does Perfect 10 pursue a direct infringement claim relating to the existence of passwords in search results? Fourth, does Perfect 10 continue still to argue that the copying and display of thumbnail images is not fair use? Fifth, is it still pursuing a vicarious liability claim under copyright law? And the sixth one is pretty minor because it's never really been addressed, but does Perfect 10 allege any violation of public performance rights under Section 1064? In the pleadings I saw earlier, everything was in there, and we just need to trim it down. If we get clarity here, this could dispense with a number of 12(c) or Rule 56(f) -- Rule 56 motions that may be required. So those are my comments, Your Honor. THE COURT: to follow up on that. Okay. Well, I'm not going to have time

There are ways using standard discovery

techniques, such as, interrogatories or requests for admissions, to narrow the issues.
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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 ago. chance. If I were counsel for Perfect 10, given especially the magnitude of the claims and the difficulties of proving them, I'd want to pick my best shots. And I think I know what

the answers would be to most, if not all, of these questions. So we may have a very direct, informal and cheap way of narrowing the issues. that. Let me hear from you because you haven't had a And your name is Mr. Jansen, right? MR. JANSEN: Yes, Your Honor. Mark Jansen for So go ahead and do it. I encourage

amazon.com, A9.com and Alexa Internet. I think I want to, first of all, say I agree that sampling is appropriate, you know, at least to kind of get a sense of what are the categories of alleged infringements that the plaintiff is going after here. I think there is other issues that also have to be, you know, taken discovery of, but I believe the sampling concept is a good one. I do want to address right now the issue that Mr. Mausner has raised about bringing a motion for summary judgment against Alexa and the alexa.com site. Alexa.com just got added to this case three months We haven't taken any discovery. And I think the notion

that instead of providing the basic information about what this case is about in discovery so we can take discovery and get
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 ready to oppose a summary judgment motion, instead, Mr. Mausner wants to present his sample in the form of a summary judgment motion against a defendant that's been in the case for less than four months is to me -- it just isn't workable. doesn't make sense. The motions that have been filed by the defendants that have been in it for years have been to try to get basic information. I think the Court is correct to try to get a It just

sense of what this case is about, but we still do not know the basic theories under which Mr. Mausner, the plaintiff, is bringing this case. The Ninth Circuit decision and Your Honor's review of the preliminary injunction motion dealt with one issue only, one kind of conic, which was so-called thumbnail image searches. decision. Now, since that decision came down, the plaintiff has completely, as far as I can tell, changed its theory but has never told us what those theories are, which is why one of the categories that we asked for -- that A9 asked for in the chart that is part of the Court's order was the search terms and o