Perfect 10 Inc v. Google Inc et al

Filing 386

TRANSCRIPT for proceedings held on 10/27/08 11:13 AM. 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. 386

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. CV05-4753-AHM(SHx) ) AMAZON.COM, INC., ET AL., ) ) DEFENDANTS. ) ___________________________________)

REPORTER'S TRANSCRIPT OF PROCEEDINGS LOS ANGELES, CALIFORNIA MONDAY, OCTOBER 27, 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 MELANIE POBLETE, PARALEGAL 21800 OXNARD STREET SUITE 910 WOODLAND HILLS, CA 91356 310-617-8100

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

ALSO PRESENT 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

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EXHIBITS

COURT EXHIBITS A B

MARKED 18 19

ADMITTED

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 it? MR. ZELLER: consolidated. It is because the cases are for P10. THE CLERK: LOS ANGELES, CALIFORNIA; MONDAY, OCTOBER 27, 2008 11:13 A.M. ----Calling Item Number 1, Perfect 10, Inc.

versus Amazon.com, Inc., et al. Counsel, state your appearances, please. MR. MAUSNER: Good morning, Your Honor. Jeff Mausner

With me is Melanie Poblete, who is a paralegal. THE COURT: MR. JANSEN: Good morning to you both. Good morning, Your Honor. Mark Jansen

representing defendant A9.com. THE COURT: MR. ZELLER: for Google. THE COURT: Google is not a party to this case, is Okay. Good morning, Your Honor. Mike Zeller

I mean -Well, you're welcome to be here, but I

THE COURT:

don't think I need to hear from you. MR. ZELLER: I agree, Your Honor. It's not my

intention to speak unless spoken to. THE COURT: All right. Please be seated.

Mr. Mausner, approach the lectern. I will rule on the objections that came in over the
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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 Brief.
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weekend to your client, Mr. Zada's, declaration, and I rebuke you for going beyond the scope of the authorized responses from the previous questionnaire that I circulated. You filed

something in the nature of a sur-reply, and I don't think that was warranted, and I don't want you to do it again. Now, turn to the questions that are dated October 27th. The previous pages on this several-page questionnaire,

there are Pages 1 through 5 which simply incorporated in a pithy fashion the responses that I got to the previous questionnaire. And if somebody thinks that there is a material

omission or mischaracterization in the responses, then I'll give you a very brief opportunity to tell me how we flubbed it, otherwise, I want to focus on the questions that are on the unnumbered page, which we will call Page 6, the page that has the date of October 27th. MR. MAUSNER: Thank you, Your Honor. On Page 2, the first

There is one correction.

question there regarding the Zada declaration, Paragraph 16, our response to that is yes where it says, "Did not answer. (Probably 'no.')" THE COURT: MR. MAUSNER: THE COURT: MR. MAUSNER: Where did you answer yes? Page 2, Lines 2 through 5. Page 2 of what? Page 2 of the Perfect 10 Supplemental

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 THE COURT: MR. MAUSNER: you like me to -THE COURT: MR. MAUSNER: I'll look at it later. On Page 2, Lines 2 through 5, we We've Well, I must have left that in my study. I have a copy here, Your Honor. Would

stated -- and this is a listing of the infringements. listed eight different forms of infringement.

It says, "A9 has

provided web search links and cache links to infringing websites, like the Irina Garenskih example mentioned by the Court." And we said, "This is infringement of display and distribution rights by third party websites' reproduction right by A9 users." THE COURT: All right. I'll look at it.

Look at Page 6, please, Mr. Mausner. MR. MAUSNER: THE COURT: Yes, sir. Actually, I meant to do something else

before I heard from you, so why don't you be seated for a minute. There are certain parts of the pending motion that I'm in a position to rule on. I'm going to rule orally, and

there's one chunk that I'll take under submission. I grant summary adjudication to A9 on the direct infringement claims that have been brought against it. server test is still the test. The

It will be up to the Ninth

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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 Circuit to revise the test, limit it, refine it, and I can see that it might. There could be a distinction that would be drawn between an ISP or a search engine on the one hand and a direct infringer on the other, but nothing in the current state of the law warrants a disregard. And P10 does not dispute and could

not dispute that A9.com never did and has not stored any of the images on its own servers. That's in the Statement of Undisputed Facts, Paragraph 13 in the SGI response. thumbnails or the actual size. Although A9 provides a "see full-size image" option, the Ninth Circuit did not address this, and I don't think that the conclusion it would draw would be any different. What the Court in Germany ruled may be interesting, but it's only part of the developing jurisprudence, and I'm going to stick with the server test and grant summary adjudication against Perfect 10 and in favor of A9 on the direct infringement claims. I'm also going to grant summary adjudication on the vicarious infringement claims. There is clearly no legal right That's true for the

that A9 has to stop the infringing conduct, and it doesn't have the practical ability to do so. I don't have to get into issues of whether there was a direct financial benefit. That was part of the Grokster

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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 formulation because really the only issue here is control. And the opinion of the Ninth Circuit in this case when it went up on appeal, 508 F.3d at 1173 through 74, and later on 74 and 75, deal in sequence with this issue of a legal right to stop it or a practical ability to stop it. I find

that the language, the analysis and the conclusion that is set forth by the Ninth Circuit in that case precludes Perfect 10 from establishing vicarious infringement liability in this case. A9 never had and still doesn't have a contractual or other right to control the content on any third party websites. That's reflected in Paragraph 14 of the Statement of Undisputed Facts. P10 attempts to dispute those, but the dispute that it sets forth in the SGI Paragraph 14 goes to contributory liability, not vicarious liability. And I don't find that any ability that A9 may have to control its own index comes close to meeting the Ninth Circuit standard for having the practical ability to shut down the infringing sites or remove the infringing content from those sites. The ability to stop or limit that kind of conduct doesn't mean the ability -- or isn't synonymous with the ability to detect it. It means to shut it down, and there is

no evidence that would permit a jury to find that A9 had that
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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 ability here. So those are my rulings on the direct infringement and vicarious infringement parts of this motion. And you can file a very pithy order confirming that those were my rulings, Mr. Jansen, and that will go out in writing, but I'm not going to be supplementing these oral findings with any opinion. So let's turn to the crux of this case and of the other consolidated cases which are the claims for contributory liability. And on the contributory liability prong, I see the

possibility of there being two genuine factual -- and to some extent mixed factual and legal issues that probably -- but I'm not making a conclusive ruling -- warrant denying the summary adjudication motion. The first has to do with whether or not the threshold question for invoking 512(a), which is the premise of the summary adjudication motion, the Safe Harbor, in 512(a), whether the threshold requirement of complying with 512(i), the repeat infringer policy, has been established. The focus there -- and that will be the focus of this very limited hearing. I have seven or eight matters on my

afternoon calendar, and I intend to break not a minute later than 12:00, if we go that far. The focus will be on

Clickriver, and there are some questions that I will address when we get to that.
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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 you. please. MR. MAUSNER: It's our position that an entity either If they modify some of And as to 512(a) itself, if you turn to that and get past the 512(i) threshold, there are two aspects of statutory requirements that seem to be at play here in the sense that I'm not satisfied that A9 has made the necessary irrefutable showing, and that is whether or not they retained the material longer than necessary and whether it modified the content. So those are the overviews that may place in context some of the questions and some of the colloquy that we are about to have, counsel. Please return to the lectern, Mr. Mausner. MR. MAUSNER: THE COURT: Yes, sir. Okay. Now, start out with Question 14,

is or is not a 512(a) service provider.

their content on some searches, then they are not a Section 512(a) service provider. THE COURT: proposition? What authority is there for that

Let's assume, for the sake of your answering that

question, that there were a hundred searches, and they modified the content on one and did not on 99. MR. MAUSNER: make the choice. THE COURT: Keep going. I -- go ahead. I'm sorry to interrupt They had the ability to do so. They

What else?

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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 MR. MAUSNER: to modify the content. needs to be modified. They make the choice of whether or not There may only be some that content But once they do that and once they have

that ability, then they are a 512(a) service provider, period. THE COURT: Well, why do you say period? Can you

tell me what supports that conclusion? MR. MAUSNER: THE COURT: Well, I think it will be -Again, assuming, Mr. Mausner, that there

are a hundred searches and 99 are not modified. MR. MAUSNER: Okay. First of all, that's not what A9 has submitted no evidence that

we're being faced with here.

there are search results that they didn't modify. The only evidence that has been submitted is what Perfect 10 submitted which shows that for searches on Perfect 10 models, these search results are modified. This is their motion for summary judgment, and they clearly have not met their burden of showing that there are any search results where there is no modification. But even apart from that, I think this will be -- or this could be a case, if Your Honor wants to reach that, that issue, that determines it, but Your Honor doesn't have to reach that issue because there's no evidence at all that's been submitted that there are any search results that weren't modified. THE COURT: So putting aside the question-of-proof

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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 burdens -- and one should never put those aside. You gave a

perfectly responsible answer -- you think that the law is such that if a provider has the capacity to modify and it sometimes chooses to do so, it's precluded from that safe harbor? that your position? MR. MAUSNER: THE COURT: Yes, Your Honor. Do you have any statutory or case Is

authority support for that proposition and conclusion? MR. MAUSNER: No, Your Honor.

But the reason for Section 512(a), which does not have a notice and take-down provision in it, is for those very kind of service providers who cannot do -- cannot take down material, cannot modify it. It's for companies like cable companies and phone companies that actually provide the transmission, and they do not have the ability to do that. If a service provider has the ability, and they exercise that ability in some cases, then they are no longer a 512(a) provider -- or I should say they never were a 512(a) provider. THE COURT: What can you tell me about the degree to

which the evidence that Dr. Zada attached and the searches he chose to address are representative? MR. MAUSNER: models only. Well, they're searches on Perfect 10

As to Perfect 10 models, you know, they are

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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 representative of all searches. All of the evidence shows that A9 never got a link from Alexa. What they got is the URL, and then A9 created the We submitted a -- there's only

link by putting in the code. one -THE COURT: and not to Google? MR. MAUSNER:

Why did you refer to Alexa in your answer

That's another point, Your Honor.

The

only evidence that A9 submitted of what it got from the search provider was that one -- it's Page 7 of Exhibit 1 to the Amacker supplemental declaration. They never submitted what they got from Google, and they never submitted what they got from Microsoft. And, again,

Your Honor, this is their burden of proof to show what they received from their search provider. And if they had done

that, we could have shown for those cases as well what it was that A9 added. We did that for the Alexa case. They provided

us that one page, and we submitted the actual source code that A9 created. THE COURT: You know, you just cross-referred to the

Alexa case, and I want to tell you that to the extent that you expected me to take into account in your opposition to this motion the notices that you apparently incorporate in something you filed in your own separate summary judgment motion against Alexa is a baffling notion. I don't do that. I will not do

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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 necessary. THE COURT: MR. MAUSNER: Well, don't do that again. We submitted a sample, but we didn't least. that. I'm not incorporating into my analysis anything that you asked me to consider by reference. different defendant. Different motion,

And you've got to understand that we

can't go searching around for tidbits of information even in related cases, even when we are pouring a lot of effort into those cases that aren't presented before us. We have as much work as you do, Mr. Mausner, at So I'm not going to let you cure that in any I don't want any more papers on this

supplemental thing. motion. Zero.

MR. MAUSNER:

Your Honor, we don't think it's

want to burden the Court with, you know, many, many DMCA notices. THE COURT: Okay. In any event, keep going. You

were saying that you were really responding only to the evidence that A9 incorporated, and that was on Page 7 of Exhibit 1. MR. MAUSNER: Yes, Your Honor. That is one instance

that A9 provided any evidence of what they got from their search provider. And then this is what A9 got from its search
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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 please.
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provider, Your Honor (indicating). THE COURT:

Do you have a --

I don't have the screen on.

Move the easel, Steve, so I can see the monitor, please. MR. MAUSNER: We have a blow-up also. This is

Exhibit 1, Page 9, of the Amacker supplemental declaration. THE COURT: MR. MAUSNER: Honor, if you'd like. THE COURT: Just put it up on the easel. And give Page 9 or Page 7? Page 9. And I have an extra copy, Your

your extra copy to your paralegal, and I'll take it. MR. MAUSNER: THE COURT: MR. MAUSNER: Okay. Go ahead. As you can see, Your Honor, what A9 There is no link at all in

received from Alexa is very little. here.

The only thing that is contained in what it received

from Alexa is the URL and the snippet of text. THE COURT: What part of this document do you refer Is it the context?

to as the snippet of text? MR. MAUSNER: Tournaments." THE COURT: MR. MAUSNER: Okay.

The snippet of text is "US CATS

Go ahead.

This is what Alexa did with this.

Melanie, can you give a copy of this to Judge Matz,

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 And this is Exhibit 37 to the Zada supplemental declaration. Okay. So Exhibit 37 to the Zada declaration

shows what A9 did with the URL and the text snippet that it got. A9 wrote all of this code here (indicating), and in particular it put in the code for the link which is this href command. And it wrote other code regarding where the link is

going to appear and what the link and the web page itself is going to look like. THE COURT: have to tarry on it. Answer 15(a), please. MR. MAUSNER: As a matter of fact, Your Honor, we do. All right. I get the point. We don't

What happened is they submitted a motion to strike Dr. Zada's supplemental declaration, which I believe was filed on Saturday. At Page 9, Lines 5 to 14 of the motion to strike, A9 claims that sponsored links on amazon.com for the massive infringing pay sites Giganews and NewsRazor are not coming from A9. And then A9 quotes from a statement on Amazon's website

that says, "The amazon.com sponsored links are provided by Clickriver ads and other third party networks." Now, we had cited this for the proposition that it's coming from A9. They claim now that those ads are coming from

third party networks, and they rely on Gil Sheinfeld's
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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 and -THE COURT: new evidence? MR. MAUSNER: motion to strike. THE COURT: MR. MAUSNER: Which I haven't even looked at. That's correct -- oh, you haven't Yes, Your Honor, in response to their Wait a minute. You are now introducing declaration where he says that, "Clickriver did not provide those ads. They were provided by Google or some other third He doesn't say who those third party

party provider." providers are.

Now -- so over the weekend, we took a look at this,

looked at their motion to strike? THE COURT: MR. MAUSNER: No. Well, this is directly responsive to

this question anyway as to whether we have any evidence that infringers it has identified are Clickriver subscribers. Now, this -THE COURT: The evidence you are about to show me is

something that you've given to Mr. Jansen? MR. MAUSNER: THE COURT: MR. MAUSNER: Yes, Your Honor. Tell me what it is. The first page -- this one here

(indicating) -- is part of a search that was done on amazon.com for Usenet. And as a result of that search, there were some

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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 sponsored links that came up which are shown close to the middle of the page, a little bit down. There are sponsored

links for Giganews, NewsRazor, and Easynews. MR. JANSEN: I'm sorry. Excuse me, Your Honor.

I'm not sure I did get what you are showing to the Court right now, unless this was an exhibit that was in your prior -MR. MAUSNER: MR. JANSEN: some kind (indicating). MR. MAUSNER: MR. JANSEN: THE COURT: And I gave you the other one. No, I never got that. Hand it to Mr. Jansen, please. No. I gave it to you this morning.

You gave me this which is a printout of

By the way, what's the difference, if any, between a Clickriver ad and a sponsored link? MR. MAUSNER: link are the same. has a link in it. THE COURT: So what does this document that you've What does They are synonymous. Ad and sponsored

Basically, it's an advertisement that also

handed -- let's call it Exhibit A to this hearing. this show me?

(Court Exhibit A was marked for identification.) MR. MAUSNER: This shows sponsored links on

amazon.com, and it shows the sponsored links are Giganews, NewsRazor and Easynews.
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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 A9.com. Now, when you put your curser over the Giganews sponsored link, you get the link that appears at the very bottom of the page, which is RD.A9.com and then a bunch of other letters and symbols. And notice just above that link, it says "Search powered by A9." That's highlighted in yellow just above the

link at the bottom. Now, when you do a View Source for these three sponsored links, this is what you get, the other sheet that was handed up. It shows that these sponsored links are coming from There's no mention in this code of Google or any other The sponsored link is coming from A9.

third party network.

So it does not appear that what A9 stated in its motion to strike or in Mr. Sheinfeld's declaration is correct. THE COURT: answer that. All right. I will give A9 a chance to

But I don't -- we'll mark the second page, which

has various portions highlighted in yellow, most of them references to A9, as Exhibit B. (Court Exhibit B was marked for identification.) THE COURT: Now, I don't follow what all of this is

supposed to tell me about these materials establishing that the infringers are Clickriver subscribers. links to Clickriver, Exhibit A and B. MR. MAUSNER: Well, Amazon has stated that the I don't see where it

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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 sponsored links come from A9 through Clickriver or from third parties. They have stated that the links for these infringing

websites, Giganews and NewsRazor, are not coming from A9, they are coming from some third party provider, which could have been Google or someone else. The current links that are -- sponsored links that are on Amazon's website for Giganews and NewsRazor, this exhibit, the second one, is the source code for those links. The only mention of any entity in that code is A9. There's no mention of Google or any other third party which shows that the link is coming from A9. THE COURT: Okay. Please be seated.

Mr. Jansen, please go to the lectern, and start out by telling me whether you think any of the answers I incorporated into the previous outline, which I listed questions only, need correction or amplification. MR. JANSEN: Your Honor, I don't think so except with

the issue of modification, which I think is a critical question the Court's posed in a number of questions that were handed out today as well. THE COURT: Yeah, well, we'll get to that. I'm going

to give you a chance to respond to what Mr. Mausner just told me. But in terms of the questions 1 through 13, no changes? MR. JANSEN: No changes. Our answer is the same. We

don't believe we modify the search results as the code should
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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 be interpreted. THE COURT: All right. Well, now, the concerns that

I have with your motion -- to give you a chance to respond in context to what Mr. Mausner told us -- include the following -and this is going to be a little hard for you to address piece-by-piece, so do your best to do it kind of generally or generically. The items in Question 7 -- this is before you get It resulted

to this page -- is this issue of modification.

from various exhibits that were attached to the initial Zada declaration, Exhibits 2, 7 and 8, which were addressed in Paragraphs 13, 18 and 19 of his declaration. It appeared that A9 recommended search results based on the user search history and added certain text and links to the search results page. This is with reference to Toolbar.

Now, I know that Toolbar had only a certain life span, and we will get back to that later. Paragraph 16 of that declaration, the previous one from Zada, pointed out that A9 had more search results than search results in the underlying search engine, had changed the order of the search results sometimes, and sometimes there appeared to be filtering in what results were returned. So if that's what you were alluding to when you first responded a moment ago, my question to you now is why do those not constitute modifications that would preclude application of 512(a)?
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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 MR. JANSEN: Well, let me just try to clarify what I

think we tried to point out in our papers, which is that we concede that if you do a search on Google, that is, if you had done a search on Google in 2005 and up through 2006 when A9 changed to MSN, and if you did a search on Alexa today, which now provides the web search results, you might get a different listing of result sets, but it's not because of anything that A9.com does. It's because of the -- because A9.com is -- I

think Amacker said repeatedly -- takes exactly the URLs, the search results that are provided by the search provider, and relays those to the user. There is some reformatting in the sense that they have to be made readable by the user's computer screen so that they display and can be read, because the XML format that's delivered by the supplier's search engine is just data. not readable. It's

It has to be formatted so it can be displayed by

the user's web browser when the user is sitting at his computer screen. So Google, for example -- and Dr. Zada had examples of this I think at Exhibits 5 through 6 of his declaration -did provide different search results to the users that visited Google. And if the user visited A9.com at that time, the search result would go to Google, and Google selected a different set of responses to send back to A9. That's the

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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 reason that the results look different to the user who searched on A9.com as opposed to Google. THE COURT: But I'm talking about Toolbar for the

last series of questions and references that I made before, and Toolbar was something that A9 created. operation I guess in 2006 or so. MR. JANSEN: Toolbar. I will address Toolbar, right. It went out of

Toolbar, as I understand it, Number 1 has never been put at issue in this case, but I will try to explain my understanding. THE COURT: Well, I don't know how you can say it's I mean, I flagged it as a concern

never been put in issue. back in early October. MR. JANSEN:

It was put in issue for the very first

time in the opposition to the summary judgment motion but never in responses to interrogatories or the complaint. But let me explain how Toolbar does not -- and the Toolbar functionality -- doesn't constitute a modification of the results. THE COURT: MR. JANSEN: Please do. Okay. Toolbar users would visit A9.com.

They were the only account holders or subscribers that ever existed with the A9 functionality. And as to them, there was

clear policy in their agreement that they would be subject to termination if they engaged in any kind of copyright violation.
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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 As part of that program, their search history was stored on an A9.com search history server, as I understand. And I haven't got all of the details on this, but that's my understanding. So as Matt Amacker explains in his declaration, when a user who is a Toolbar subscriber sent in a query, they would receive automatically the results from the provider, Google, as search results. And on the exhibit that Matt Amacker attaches to his declaration -- I don't have the number offhand. It may be

Number 3 to his supplemental declaration -- the left-hand column has got the search results coming back immediately from Google, unmodified except to the extent that there is formatting so that the viewer can see it and click on the links, which is what the whole purpose of a search engine is. On the right-hand side, there is a column showing the Toolbar subscriber's prior use history that relates to that search. So if that person had done a search for Mt. Everest

previously, there would be -- or child safety seats I think is the example in Matt Amacker Exhibit 3 -- there would be a listing on the right side that would show that user's prior search history on Mt. Everest or child safety seats. THE COURT: modification? MR. JANSEN: The material that is being forwarded at Why does that not constitute a

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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 photos? MR. JANSEN: The photos, or I think Mr. Mausner is the request of the user is material from Google in a search request. There is additional information that's being given,

but it's not a modification of the URLs that are provided by Google. There is additional information that's being given to

the user, but it's not modification of the material that is the issue of this lawsuit, i.e., the material claimed to be -THE COURT: You mean the content of the photos -- the

also concerned about simply a link to a website that might have a lot of text and maybe photographs in it somewhere. he's gone beyond image search and photos, but, yes. Those cached -- if you want to say that the history -- the Toolbar history information that's being given is not the instantaneous search result that is being provided back to the user. The user submits the request to A9. A9.com I think

immediately brings back instantaneously, without storage on its facilities, to the user. And it does store the history of --

if that user went to a particular website, then, I think, as I understand it, it was stored, the information that they visited, that URL. The photograph is not stored. The image,

if there was an image visited, is not stored on that, just the URL address that corresponds to the site that was visited. That's what I know about that generally right now.
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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: Okay. Mr. Jansen, given the limited

time, turn now, please, to the evidence that Mr. Mausner proffered here in court this morning in response to Question 15(a), and give me your take on what he claims it shows. MR. JANSEN: Well, I want to, first of all, say

that -- this is Exhibit B? THE COURT: MR. JANSEN: Yeah. Or is it Exhibit A? His Exhibit A is a

search that was done on amazon.com. Number 1.

It was not done on A9.com,

That's important I think for the Court to recognize. And I don't believe this is a new issue at all

because -- I believe if you looked at Exhibit 29 to Dr. Zada's previous declaration, he has a very similar printout of a search for Usenet on amazon.com. And I want to point out right now that Exhibit 29 to his declaration -THE COURT: Look, the simple question I would like

you to clarify, please, is whether there is now in the content of Exhibit A and B, as I defined those, evidence that Giganews and NewsRazor and Usenet, certain other Usenets, have been Clickriver subscribers. MR. JANSEN: Yes or no? I believe that's not true, Your Honor,

but I have no way of -- having just gotten this Exhibit B and not being able to really tell how or whether it's related, and not being a code expert myself, I can't possibly comment on
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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 what this even means. THE COURT: MR. JANSEN: THE COURT: Can you comment on -I can't comment -- yes? Can you comment on what your client's

contention is in answer to 15(b)? MR. JANSEN: My client's contention in response to

15(b) is, Number 1, as I understand it -- and this is in the declaration of Gil Sheinfeld. I asked specifically about this

when we put together our supplemental response -- or, actually, we put this together as part of the motion to strike when we got the first -- the opposition brief -- is that Clickriver does not have any contractual arrangement with any of those Usenets. And the understanding that I have -- and it was put

in the declaration -- was that those are provided on amazon.com. Sponsored links come from other sources besides

simply Clickriver, including Google and others. And the understanding I had -- and this was put in Mr. Sheinfeld's declaration -- is that Clickriver would not have referred links to those entities because it did not -- and it doesn't now and it never had a contractual relationship with those Usenets. So I don't believe there is any evidence that plaintiff has submitted -- and plaintiff has had three years to take discovery of a relationship -- a contractual relationship between any alleged infringer and Clickriver. And to hand this

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 up on the day of the hearing after three years of discovery, and then make this claim that is really -- just really a lot of innuendo, as far as I can tell, just like the rest of Mr. Zada's declaration, I believe is completely improper and should be ignored. But to get to the other points in Question 15, Clickriver, again, does not -- it does not put sponsored links on the A9.com system. It provides sponsored links, and now

it's limited to only service providers, such as, for example, refrigerator repairmen or TV installers on amazon.com in connection with advertisement for particular products. Like, for example, televisions on amazon.com, if you were in the Los Angeles area, you would also get a sponsored link for, you know, installers who would install home theater systems. Clickriver does have -- and this I think is one of the questions on your sheet -- it does have a repeat infringer policy that complies with what's expected in the Ninth Circuit; that is, it has a very clear provision to subscribers. this is Exhibit 13 to Zada's declaration. And I'm holding that up right now, Your Honor (indicating). I don't know if this can be seen, but it says that Clickriver adds content guidelines, and this is Exhibit 13 to Zada's declaration. It says very clearly at the very And

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 beginning, "We reserve the right at any time to refuse or suspend any ad;" and, "Intellectual property violation: are not permitted for products that violate intellectual property rights," Page 1. It goes through, and there is a notice provision at the bottom for trademark issues in particular. And to answer the other question you had about -- the last page provides very clearly that communications or trademark complaints, for example, would go to A9.com. And to answer the other question, I believe that if there was a violation of some copyright -- or perceived violation of some copyright on amazon.com, which is what Counsel is referring to with this so-called evidence, this new evidence, the proper place to send the notice is to amazon.com because amazon.com is the entity that would obviously have that sponsored link. But certainly if a notice was sent to A9.com, Ads

then that would be dealt with. The problem is in this case -- and I think in your last two questions on your sheet, the issue of notice is not relevant to this motion because 512(a), if A9.com qualifies -and I think it certainly does with respect to at least the vast majority of searches. I can see questions from the judge about

possibly searches that involve responses to the Toolbar subscribers, but as to all the other searches, there was no modification of the content without doubt.
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 Certainly, as to all the post-Toolbar period, there is no doubt that we're a 512(a). And if we qualify as 512(a),

we are not required to respond to a notice and take-down directed to the 512(a) activity. Now, I think if there was a Clickriver-sponsored link problem that really existed, then probably a notice to A9.com would -- A9.com would look at that notice and deal with it appropriately. But we've never gotten a notice.

And that's another issue that will be an issue later in this case should the Court deny the summary judgment motion, is that Perfect 10 never sent A9.com a notice as required under the DMCA. The notice was supposed to go to A9.com's legal And that's very clear in --

department in Palo Alto. THE COURT: I agree with you. MR. JANSEN: THE COURT:

Yeah, let's not get into that right now.

Okay. How do you answer Number 17 on this list Dr. Zada fished around and came up

of questions for today? with something. MR. JANSEN:

Well, this is interesting.

Number 1, A9

never got the January 21, 2005 notice.

It went to amazon.com.

At that time amazon.com did have an A9 search function. Amazon.com told Mr. Zada -- that was Karen Rusmyer told Mr. -- Dr. Zada that A9 had no way of removing the links technically because of the nature of how they received the data
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 16. MR. JANSEN: I think the answer for that is yes. automatically from Google. And that notice was sent to Google

with the understanding that Google would take care of that issue. THE COURT: was sent to Google? MR. JANSEN: Oh, it's undisputed, I think. But I What evidence is there that the notice

haven't submitted it with this paper because, again, notice is not an issue, you know, in this motion. But it is an

undisputed fact that that notice was forwarded to Google. As far as the statement that this particular link was not taken down, I can't tell by looking at -- I haven't analyzed it enough to know whether or not what Dr. Zada says in his supplemental declaration is true, and we'd move to strike it for that reason. I haven't investigated whether it's true

or not, but I can, I think, tell you that A9.com hasn't because it can't, Number 1, technically, on a reasonable basis; and, Number 2, because it has no duty to do so. not made any effort to remove that link. THE COURT: Okay. And the last question is Number A9.com itself has

I think I tried to answer that in one of my last answers that I think, certainly, if there is an issue with Clickriver, if there were -- and this is purely hypothetical -an issue with Clickriver providing sponsored links onto A9.com,
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 which Gil Sheinfeld says it does not, then a notice should go to A9.com to be dealt with, because I pointed out, to the extent that Clickriver had some problematic sponsored link that went to amazon.com and was visible on the amazon.com website, the notice should go to amazon.com complaining about a Clickriver-sponsored link there because amazon.com is the entity that is actually supplying that content to the user, if there is a problem with it. But the notices would definitely get dealt with if they're specific enough. And the problem again was that A9.com

never got a notice -- especially one relating to Clickriver -ever from plaintiff. THE COURT: Is it your contention that the repeat

infringer policy that A9 had for A9.com is applicable to and sufficient to the extent that the conduct of Clickriver is at issue? MR. JANSEN: Yes, I believe it is. I don't believe

the conduct of Clickriver is at issue because I don't think Clickriver ever put sponsored links onto A9.com, and there's been no showing by plaintiff that it ever did so. All the

evidence that plaintiff has submitted has been alleged sponsored links on the amazon.com website. notice, if there was one, should go there. THE COURT: Okay. That will be the segue for the And, again, the

only question that I will permit Mr. Mausner to answer and that
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 apologize. THE COURT: MR. MAUSNER: That's all right. Okay. Exhibit 11 to the original is -- thank you, Mr. Jansen. thing that Mr. Jansen said. Do you have any evidence in the record to refute what he just said; that all of the sponsored links went to Amazon and not to A9? MR. MAUSNER: I believe there was evidence in the You may be seated -- is the last

record that at one time sponsored links were on A9 itself. THE COURT: MR. MAUSNER: What is that evidence? One second, Your Honor.

(Counsel confers with Dr. Zada off the record.) MR. MAUSNER: THE COURT: MR. MAUSNER: This is Dr. Zada. I know that. He forgot his jacket this morning. I

declaration of Dr. Zada -- would you like me to put it up on the Elmo, Your Honor? THE COURT: Okay. I think I have it. The search was Usenet,

It's an A9 search.

November 13th, 2005? MR. MAUSNER: Correct, Your Honor. And near the top, On the

it shows sponsored links for giganews and guba.net.

second page, it shows sponsored links for usenetbinaries and powerusenet.com. Third page shows sponsored links for

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 powerusenet.com and thundernews.com, and the fourth page shows newsdemon, and so on. There are quite a few sponsored links on A9. THE COURT: Okay. Thank you, Mr. Mausner.

Did you see that material just now? MR. JANSEN: right now, Your Honor. THE COURT: MR. JANSEN: Go ahead. This is completely another example of If you take a Yes, I did. I want to respond to it

plaintiff taking things totally out of context.

look at that, yes, there was sponsored links provided by Google automatically as part of the search results when A9.com had a contract with Google. And the date of this at the bottom is

11/13, November 13th, 2005. THE COURT: MR. JANSEN: Right. If you look at Gil Sheinfeld's

declaration, it says very clearly that Clickriver programs did not start -THE REPORTER: MR. JANSEN: I'm sorry, Counsel. I'm sorry.

If you look at the declaration of Gil Sheinfeld that we submitted -THE COURT: display it. MR. JANSEN: Yeah, I won't. I'll look at it. You don't have to

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
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

Paragraph 3, it began running on a very limited alpha basis starting April 2006. This cannot be from Clickriver.

This was a feed -- again, an automatic response from Google in response to a user search query. And that's the evidence they

have, and they are constantly trying to make things into things they are not. THE COURT: submission. All right. I'll take this motion under

Thank you, counsel. Thank you, Your Honor. Thank you, Your Honor.

MR. MAUSNER: MR. JANSEN:

(Proceedings concluded.) --oOo--