Perfect 10 Inc v. Google Inc et al

Filing 409

DECLARATION OF VALERIE KINCAID IN SUPPORT OF PERFECT 10'S PORTIONS OF THE JOINT STIPULATION RE GOOGLE INC.'S MOTION TO COMPEL PERFECT 10 TO (1) PRODUCE DOCUMENTS, (2) TO COMPLY WITH PROTECTIVE ORDER, AND (3) TO AFFIX DOCUMENT CONTROL NUMBERS TO ITS DOCUMENT PRODUCTION filed by Plaintiff Perfect 10 Inc re: MOTION to Compel Perfect 10, Inc. to Produce Documents, Comply with the Protective Order, and Affix Document Control Numbers to its Document Productions #407 , Joint Stipulation re Discovery Motion,,,,,, #408 (Mausner, Jeffrey)

Perfect 10 Inc v. Google Inc et al

Doc. 40

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JEFFREY N. MAUSNER (State Bar No. 122385) Warner Center Towers, Suite 910 21800 Oxnard Street Woodland Hills, California 91367-3640 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff Perfect 10, Inc.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PERFECT 10, INC., a California corporation, Plaintiff, v. GOOGLE INC., a corporation; and DOES 1 through 100, inclusive Defendants. _____________________________ AND CONSOLIDATED CASE
Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)]

DISCOVERY MOTION DECLARATION OF VALERIE KINCAID IN SUPPORT OF PERFECT 10'S PORTIONS OF THE JOINT STIPULATION RE GOOGLE INC.'S MOTION TO COMPEL PERFECT 10 TO (1) PRODUCE DOCUMENTS, (2) TO COMPLY WITH PROTECTIVE ORDER, AND (3) TO AFFIX DOCUMENT CONTROL NUMBERS TO ITS DOCUMENT PRODUCTION Date: June 1, 2009 Time: 2:00pm Place: Courtroom of Judge Hillman Discovery Cut-Off Date: None set Pretrial Conference Date: None set Trial Date: None set

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DECLARATION OF VALERIE KINCAID I, Valerie Kincaid, declare as follows: 1. I am a member of the State Bar of California and admitted to practice before this Court. I am an attorney for the Law Offices of Jeffrey Mausner, which is counsel for Plaintiff Perfect 10, Inc. ("Perfect 10") in this action. All of the matters stated herein are of my own personal knowledge, except where otherwise stated, and if called as a witness, I could and would testify competently thereto. I make this declaration in support of Perfect 10's portions of the Joint Stipulation re Google Inc.'s Motion to Compel Perfect 10 to (1) Produce Documents, (2) to Comply with Protective Order, and (3) to Affix Document Control Numbers to its Document Production. 2. 3. 4. 5. Attached hereto as Exhibit 1 is a copy of the Order entered on Attached hereto as Exhibit 2 is a copy of the relevant pages of the Attached hereto as Exhibit 3 is a copy of the email to me from Google sent a meet and confer letter on October 24, 2008 regarding September 25, 2008. transcript of the hearing conducted on October 6, 2008. Thomas Nolan, Google's counsel, dated October 17, 2008. Perfect 10's response to Google's sixth and seventh sets of document requests, and counsel spoke telephonically on November 6, 2008. During that telephonic conference, Perfect 10's counsel said that it would respond to all of Google's inquiries after December 8, 2008 ­ the hearing date on Perfect 10's summary judgment motion against various Amazon defendants. The parties only substantively met and conferred regarding request nos. 190 and 191. Ms. Herrick misrepresents in her declaration that on "November 6, 2008 (by telephone), counsel for Google and counsel for Perfect 10 met and conferred regarding Perfect 10's deficient responses to Google's 6th and 7th Sets of Requests for Production. Among other issues, the parties discussed Perfect 10's improper objections to these
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responses." (Herrick Decl., ¶ 60.) Ms. Herrick was not present at the telephonic meet and confer and I answered questions regarding Perfect 10's objections, but virtually everything other issue was deferred. In fact, Google sent a letter on April 23, 2009 seeking to meet and confer regarding the sixth and seventh sets of document requests. Attached hereto as Exhibit 4 is a copy of the letter to Jeffrey Mausner from Rachel Herrick Kassabian, dated April 23, 2009. 6. Attached hereto as Exhibit 5 is a copy of the Order Regarding Google Inc.'s Motion to Compel Production of Documents and Responses to Interrogatories, signed May 19, 2006. 7. 8. 9. 10. 11. 12. 13. 14. 15. Attached hereto as Exhibit 6 is a copy of the email to Rachel Herrick Attached hereto as Exhibit 7 is a copy of emails to Rachel Herrick and Attached hereto as Exhibit 8 is a copy of the email to Jeffrey Mausner Attached hereto as Exhibit 9 is a copy of the email to Thomas Nolan Attached hereto as Exhibit 10 is a copy of the email to Thomas Nolan Attached hereto as Exhibit 11 is a copy of the email to Thomas Nolan Attached hereto as Exhibit 12 is a copy of the email to Valerie Attached hereto as Exhibit 13 is a copy of the e-mail to Valerie Attached hereto as Exhibit 14 is a copy of the e-mail to Valerie from Jeffrey Mausner, dated January 29, 2008. Thomas Nolan from Jeffrey Mausner, dated March 3, 2008. from Rachel Herrick, dated March 3, 2008. from Valerie Kincaid, dated November 5, 2008. from Valerie Kincaid, dated October 24, 2008. from Valerie Kincaid, dated October 31, 2008. Kincaid from Thomas Nolan, dated November 5, 2008. Kincaid from Thomas Nolan, dated October 10, 2008. Kincaid from Thomas Nolan, dated November 3, 2008.

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Exhibit 1

Case 2:04-cv-09484-AHM-SH

Document 363

Filed 09/25/2008

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O UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL Case No. CV 04-9484 AHM (SHx) CV 05-4753 AHM (SHx) CV 07-5156 AHM (SHx) PERFECT 10, INC. v. GOOGLE, INC., et al. PERFECT 10, INC. v. AMAZON.COM, INC., et al. PERFECT 10, INC. v. MICROSOFT CORPORATION Date September 25, 2008

Title

Present: The Honorable Stephen Montes Deputy Clerk

A. HOWARD MATZ, U.S. DISTRICT JUDGE Not Reported Court Reporter / Recorder Tape No. Attorneys NOT Present for Defendants:

Attorneys NOT Present for Plaintiffs:

Proceedings:

IN CHAMBERS (No Proceedings Held)

The Court has considered the parties' responses to the Court's minute order dated August 20, 2008 concerning discovery disputes and the appointment of a discovery master. The Court has also considered the parties' contentions and concerns regarding a variety of issues arising from the August 18, 2008 scheduling conference and the August 27, 2008 telephonic conference, including the setting of trial dates for the Google and Amazon cases. The Court does not intend to appoint either a technical advisor or a discovery master at this time. The parties in all these cases somehow have succumbed to the all-too-frequent tendency of litigants and lawyers to get sidetracked. That is particularly regrettable in lawsuits, such as these, that are complicated, technology-driven and potentially farreaching.1 For the Court to manage these cases in a standard fashion, such as to treat the pending discovery motions as if they were commonplace disputes, would not advance the goal of enabling the parties either to ready these cases for Rule 56 determinations or for

There are other considerations that compound the difficulties. Plaintiff's counsel, for example, often complains about the supposedly unfair burdens that the Goliath-like defendants subject him to. And perhaps he is right that in certain respects their strategy may be to overwhelm him. Yet Perfect 10 may have invited those problems with its sweeping claims and its own conduct in the course of discovery.
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O UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL Case No. CV 04-9484 AHM (SHx) CV 05-4753 AHM (SHx) CV 07-5156 AHM (SHx) PERFECT 10, INC. v. GOOGLE, INC., et al. PERFECT 10, INC. v. AMAZON.COM, INC., et al. PERFECT 10, INC. v. MICROSOFT CORPORATION Date September 25, 2008

Title

meaningful settlement talks.2 Given the foregoing problems, as well as the enormous, ever-expanding number of the copyrighted images that Perfect 10 claims were infringed, it is necessary and appropriate for the Court to manage these cases differently. Therefore, in the exercise of its inherent and statutory authority to administer the rules of discovery in a manner that will "secure the just, speedy, and inexpensive determination of every action and proceeding," Fed. R. Civ. P. 1, the Court intends to require the parties to negotiate in good faith a method or approach that will enable them to assess the strengths and weaknesses of their respective overall "cases" and contentions based on a sample of the key pertinent facts. In other words, the parties will take an approach comparable to that of a recognized, impartial expert who uses surveys and statistical analyses to project the extent (if any) of customer satisfaction with a product or, in the trademark context, the extent of confusion among consumers as to the source or origin of goods. From the information that the parties obtain, exchange and organize, they should be able to extrapolate reliable conclusions as to where they think they can go, or want to go, from there. Accordingly, the Court has determined that a further conference with counsel in all three cases is necessary. Accordingly, the Court ORDERS the parties in all these cases to appear for a status conference on October 6, 2008 at 1:30 p.m.. The broad purpose of the conference is to explore ways for the parties to achieve the foregoing objectives -- i.e., summary judgment and settlement readiness -- without "going the distance" via fullfledged, uncircumscribed discovery. At the conference, the Court will invite counsel to address the following preliminary or tentative findings and proposals, which will probably be incorporated into a special Case Management Order that will issue at the same time as the scheduling

It is highly improbable that there will be a trial in any of these cases. That is so obvious that it need not be belabored.
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O UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL Case No. CV 04-9484 AHM (SHx) CV 05-4753 AHM (SHx) CV 07-5156 AHM (SHx) PERFECT 10, INC. v. GOOGLE, INC., et al. PERFECT 10, INC. v. AMAZON.COM, INC., et al. PERFECT 10, INC. v. MICROSOFT CORPORATION Date September 25, 2008

Title

orders for the Google and Amazon cases. The following paragraphs are numbered to facilitate discussion. 1. Perfect 10 will have to identify each "Perfect 10 Copyrighted Work" it claims was infringed by not later than ___________________. Thereafter, Perfect 10 will be precluded from seeking damages for the infringement of any work not so identified. It would, however, be entitled to injunctive relief for works identified later. 2. In this discovery phase, the focus should be on developing information that enables the parties to assess their positions as to the secondary copyright liability claims that the Ninth Circuit addressed in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1169-76 (9th Cir. 2007). Among the key major factors that should be the focus of their efforts are the following: A. Contributory Liability (see 508 F.3d at 1171-72). (1) What specific infringing material did defendant learn was on or accessible through its "system"? (a) When? (b) How? (i) If by way of a DMCA notice, what did the notice contain? (ii) Was the notice in compliance with section 512? (2) At the time defendant learned of the infringing image, what simple, reasonable and feasible measures, if any, did defendant have to avoid providing Internet users access to infringing images? (See 508 F.3d at 1172.) E.g., what changes to its operations could defendant have made to avoid assisting infringing websites? (See 508 F.3d at 1174-75.) Vicarious Liability (see 508 F.3d at 1173-74). (1) At the time defendant learned of the infringing image, did defendant have a legal right to stop or limit the directly infringing conduct? (a) Did it have the right to terminate websites? (b) Did it have the right to block websites' ability to host and serve
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B.

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O UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL Case No. CV 04-9484 AHM (SHx) CV 05-4753 AHM (SHx) CV 07-5156 AHM (SHx) PERFECT 10, INC. v. GOOGLE, INC., et al. PERFECT 10, INC. v. AMAZON.COM, INC., et al. PERFECT 10, INC. v. MICROSOFT CORPORATION Date September 25, 2008

Title

infringing images? (2) Did defendant actually decline to exercise that right? (3) Does defendant have such a legal right currently? (4) At the time defendant learned of the infringing image, did defendant have the practical ability to stop or limit infringement? (a) The ability to determine whether there is infringement, in the absence of targeted DMCA notices? (b) The ability to block access to infringing images? (5) In what manner did defendant derive a direct financial benefit from the directly infringing conduct? (This inquiry seeks a description; it does not require a calculation of claimed damages.) 3. In light of the large number of copyright registrations and works that Perfect 10 has placed at issue in all three cases, the Court finds that it would be both fair and feasible for Perfect 10 to create a spreadsheet along the lines contemplated by Google's Interrogatories Nos. 3 and 11, A9.com's Interrogatories Nos. 1 and 6, and Microsoft's Interrogatory No. 1 -- but only for a selected and relatively small sample of copyrighted works. Such a limited spreadsheet would reduce or possibly eliminate any requirement that the parties search through all the hard drives and disorganized physical documents that Perfect 10 has provided in discovery thus far. It also would do much to avoid or reduce further discovery disputes, promote the efficient and timely administration of these lawsuits and provide a framework for settlement. (a) Based on the joint stipulations in the parties' pending motions to compel responses to those interrogatories, the Court compiled a chart, attached hereto, that displays the categories of information sought in those interrogatories, as well as the information that Perfect 10 contends it has already produced or will produce. The Court realizes that not all those interrogatories seek identical pieces of information. (E.g., Microsoft did not request a list of infringing URLs.) However, they all basically seek a way to enable the parties to gather and access vital identifying information about the copyrighted work in question.
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O UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL Case No. CV 04-9484 AHM (SHx) CV 05-4753 AHM (SHx) CV 07-5156 AHM (SHx) PERFECT 10, INC. v. GOOGLE, INC., et al. PERFECT 10, INC. v. AMAZON.COM, INC., et al. PERFECT 10, INC. v. MICROSOFT CORPORATION Date September 25, 2008

Title

(b) The precise information required for the spreadsheet remains to be determined. The Court doubts that all of the disputed categories reflected in the attachment need be included, but at a minimum, it would be necessary to identify the work, the registration number, chain of title information, the URL(s) of infringing websites, and the DMCA notices. At trial Perfect 10 itself would have to introduce such information anyway, because the fact-finder would need it to determine whether the parties proved their claims (or defenses, as the case may be). If at trial Perfect 10 sought to prove these facts through charts and summaries, it would have had to provide the underlying evidence for the charts and summaries sometime before trial. See Fed. R. Evid. 1006. The Court finds that it is "reasonable" to require it to do so at this stage, in discovery. 4. After the entries have been made in the spreadsheet, the Court will either limit discovery to the Perfect 10 Copyrighted Works specified in the spreadsheet or require that discovery be primarily focused on those works. In any event, the Court will order the parties to use the spreadsheet entries to extrapolate facts, based on statistically sound methods, as to the remaining works that Perfect 10 has claimed were infringed. To implement this approach, two issues must be decided. (a) First, what categories of information should be placed on the spreadsheet? There are at least two ways to determine this. The first way is for the parties to agree on what information is so vital that it should be reflected on the spreadsheet. The second way is for the Court to make that determination. (b) Second, which works will be selected for the sample that is the basis for the spreadsheet? Again, the first way to determine this is for the parties to agree. The second is to allow Perfect 10 to select the works that will be entered on the spreadsheet, from the potentially thousands it has pointed to thus far, provided that Dr. Zada file a sworn declaration describing the methodology, including any assumptions, Perfect 10 used to select such works. 5. What will deter Perfect 10 from skewing the designation of works in an effort to
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O UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL Case No. CV 04-9484 AHM (SHx) CV 05-4753 AHM (SHx) CV 07-5156 AHM (SHx) PERFECT 10, INC. v. GOOGLE, INC., et al. PERFECT 10, INC. v. AMAZON.COM, INC., et al. PERFECT 10, INC. v. MICROSOFT CORPORATION Date September 25, 2008

Title

enlarge or exaggerate the number of infringements and/or damages? Simply this: Defendants will be given the opportunity to establish that the spreadsheet entries Perfect 10 chose are not fairly representative of the entire range of works in question. If they succeed, the Court likely would order Perfect 10 to develop a spreadsheet for literally every work it identified as having been infringed, and would preclude it from pursuing damages for any work not properly incorporated into such spreadsheet. In other words, the Court would return the case to conventional forms of "combat." At the conference, the Court will also invite counsel to answer the following questions: (a) For one copyrighted work, how much time would it take to enter all the allegedly infringing URLs onto a spreadsheet? How much time would it take to enter all the information tallied in the attached chart? (b) Assume that the sample discussed above consists of 100 copyrighted works and that discovery of the facts relevant to the claims and defenses for those works has been completed. Looking at those facts in the light most favorable to Perfect 10, assume that at most Perfect 10 may succeed in proving liability for 50 works. Would such a statistical outcome help the parties resolve their dispute? What if the number were 33 out of 100?
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Information Sought by Defendants in Motions to Compel Category G oogle 1 A9.com2 M i c r o s o f t3 Already in Perfect 10's production?

Unique identifier of the work Copyright Registration # Page number of document(s) containing the work URLs of allegedly infringing webpage Date of DMCA notice sent Damages claimed Date of and particular conduct constituting the infringing act Search term and other instructions or events used to cause the infringing display Indicate thumbnail or full-size image Copyright registrations of compilations or derivative works incorporating the work Documents showing chain of title Date of first publication of the work Persons depicted

T T T T T T

T T T T

T T T (just "exemplar") Y T Y Y

T T T

T Y

T T

T T T

Y Y

Google's Interrogatory No. 11. See Joint Stipulation Re. Google Inc.'s Motion to Compel Further Responses to Google's Interrogatories Nos. 3 and 11, p. 52. A9.com's Interrogatories No. 1 and 6. See Joint Stipulation Re: Defendant A9.com's Motion to Compel Perect 10's Responses to A9.com's First Set of Interrogatories Nos. 1, 2, 4, 5, 6, pp. 7, 41-42. Microsoft's Interrogatory No. 1. See Joint Stipulation Re Microsoft's Motion to Compel A Response to Interrogatory No. 1 and To Determine the Sufficiency of Responses to Requests for Admission, pp. 7-8.
3 2

1

Exhibit 2

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

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
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 contrib