Perfect 10 Inc v. Google Inc et al

Filing 411

NOTICE OF MOTION AND Amended MOTION for Order for Schedule for Filing Dispositive Motions Amended Notice of Motion and Amended Motion for Order Setting Schedule for Filing Dispositive Motions filed by Defendant and Counterclaimant Google Inc. Motion set for hearing on 6/1/2009 at 10:00 AM before Judge A. Howard Matz. (Attachments: #1 Declaration of Rachel Herrick Kassabian in Support of Motion for Order Setting Schedule for Filing Dispositive Motions, #2 Proposed Order Granting Motion for Order Setting Schedule for Filing Dispositive Motions)(Zeller, Michael)

Perfect 10 Inc v. Google Inc et al

Doc. 41

1 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) michaelzeller@quinne manuel.com 2 865 South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone] Charles K. Verhoeven (Bar No. 170151) charlesverhoeven@quinne manuel.com 5 50 California Street, 22nd Floor 6 San Francisco, California 94111 Rachel Herrick Kassabian (Bar No. 191060) rachelkassabian@quinne manuel.com 7 555 Twin Dolphin Drive, Suite 560 8 Redwood Shores, California 94065 9 Attorneys for Defendant GOOGLE INC. 10 11 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 054753 AHM (SHx)] DEFENDANT GOOGLE INC'S AMENDED NOTICE OF MOTION AND MOTION FOR AN ORDER SETTING A SCHEDULE FOR THE FILING OF DISPOSITIVE MOTIONS MEMORANDUM OF POINTS AND AUTHORITIES Hearing Date: Time: Place: June 1, 2009 10:00 a.m. Courtroom 14

13 PERFECT 10, INC., a California corporation, 14 Plaintiff, 15 vs. 16 GOOGLE INC., a corporation; and 17 DOES 1 through 100, inclusive, 18 19 20 22 23 vs. Defendants. AND COUNTERCLAIM

PERFECT 10, INC., a California 21 corporation, Plaintiff,

Discovery Cut-off: None Set Pretrial Conference Date: None Set Trial Date: None Set

24 AMAZON.COM, INC., a corporation; A9.COM, INC., a corporation; and 25 DOES 1 through 100, inclusive, 26 27 28
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Defendants.

Case No. CV 04-9484 AHM (SHx MOTION FOR AN ORDER SETTING A SCHEDULE FOR THE FILING OF DISPOSITIVE MOTIONS Dockets.Justia.com

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 1, 2009, at 10:00 a.m., in the

3 courtroom of the Honorable A. Howard Matz, located at 312 North Spring Street, 4 Los Angeles, California 90012, Courtroom 14, Defendant Google Inc. ("Google") 5 shall and hereby does move this Court for an order setting a schedule for the filing 6 of dispositive motions in this action. Specifically, Google asks the Court for an 7 order providing that the parties shall brief and file their cross-motions regarding 8 Google's DMCA safe harbor defense prior to briefing and filing their cross-motions 9 regarding copyright infringement liability, because the former motion will, if 10 granted, moot the latter motion. Google further shall and hereby moves for relief 11 from the 20-day hold requirement of Local Rule 7-3. Google has discussed this 12 motion thoroughly with Perfect 10's counsel but could not reach any resolution. 13 Both parties represented that their positions on the issue are final. Further, Perfect 14 10 represented that it would seek to file its first dispositive motion in the next few 15 weeks. Accordingly, Google respectfully requests that this Court grant it relief from 16 the 20-day waiting period under Local Rule 7.3, because if Google waits until the 17 expiration of that period before filing this motion, Google will have suffered the 18 harm it seeks to avoid by this motion. 19 This motion is based on this Notice of Motion and Motion, the Memorandum 20 of Points and Authorities filed concurrently herewith, the Declaration of 21 Rachel Herrick Kassabian in support thereof, the pleadings and other papers on file 22 in this action, and such additional evidence as may be presented at or before the 23 hearing. 24 25 26 27 28
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Statement of Local Rule 7-3 Compliance Google's counsel and Perfect 10's counsel engaged in a Local Rule 7-3 pre-

3 filing conference regarding the order in which dispositive motions should be filed 4 and who should be the movant on these dispositive motions on May 5, 2009. 5 DATED: May 8, 2009 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By /s/ Michael Zeller Attorneys for Defendant GOOGLE INC.

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TABLE OF CONTENTS Page

4 MEMORANDUM OF POINTS AND AUTHORITIES ........................................... 1 5 PRELIMINARY STATEMENT...............................................................................1 6 BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7 8 9 10 11 13 I. 14 15 II. 16 17 18 19 20 21 22 23 24 25 26 27 28
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A. B. C.

The Court Advises the Parties to File Dispositive Motions in an Order That Would Potentially Moot Later-Filed Motions. .................... 2 Google Initiates Meet and Confer Efforts Regarding Its Planned Dispositive Motions on Its DMCA Safe Harbor Defense in November 2008. ................................................................................... 2 Perfect 10 States its Intention to File a Dispositive Motion Regarding Copyright Infringement Liability.........................................3

12 ARGUMENT ........................................................................................................... 5 GOOGLE'S DMCA SUMMARY JUDGMENT MOTIONS SHOULD BE HEARD FIRST, SINCE THEY WOULD POTENTIALLY MOOT PERFECT 10'S LIABILITY MOTION..........................................................5 PERFECT 10'S SUMMARY JUDGMENT MOTION ON LIABILITY IS PREMATURE BECAUSE DISCOVERY IS OUTSTANDING. ............... 8

CONCLUSION ...................................................................................................... 10

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TABLE OF AUTHORITIES Page Cases

4 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .......................................................................................... 10 5 Burnside-Ott Aviation Training Center, Inc. v. United States, 985 F.2d 1574 (Fed. Cir. 1993).......................................................................... 10 6 7 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .......................................................................................... 10 8 Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090 (W.D. Wash. 2004) ........................................................... 6 9 10 Hendrickson v. EBay Inc., 165 F. Supp. 2d 1082 (C.D. Cal. 2001)................................................................ 6 11 Io Group, Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132 (N.D. Cal. 2008)........................................................... 5, 6 12 13 Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) ............................................................................. 5 14 15 17 18 19 20 21 22 23 24 25 26 27 28
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Statutes

16 17 U.S.C. § 512(b), (c) and (d) ........................................................................ passim Rules Fed. R. Civ. P. 56(f) ........................................................................................... 1, 10

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MEMORANDUM OF POINTS AND AUTHORITIES Preliminary Statement Google brings this motion for an order setting a schedule for the filing of

4 dispositive motions in this action. Google specifically requests that the Court order 5 that Google's Motions for Summary Judgment of Entitlement to Safe Harbor Under 6 17 U.S.C. § 512(b), (c), and (d) of the DMCA, and any opposition filed by Perfect 7 10, be briefed and resolved prior to any dispositive motion by Perfect 10 regarding 8 copyright liability. This Court has rightly directed the parties to sequence their 9 motions so that motions having potentially preclusive effect on other motions be 10 filed and decided first. Ordering briefing and resolution of Google's DMCA 11 motions first is an appropriate and efficient approach to the parties' motions. If 12 granted, Google's DMCA motions will moot the central issue in Perfect 10's 13 planned infringement liability motion--that is, whether Google may be held liable 14 for monetary relief for direct or secondary copyright infringement. Other courts 15 have elected to resolve DMCA issues before copyright liability issues for this very 16 reason. 17 Moreover, Perfect 10's anticipated motion for summary judgment on 18 copyright liability is premature because relevant discovery is still outstanding. 19 Thus, resolution of Perfect 10's motion will be delayed by the fact that Google will 20 have no choice but to respond with a Rule 56(f) motion. Thus, hearing Google's 21 DMCA motions first serves the interests of judicial economy, and comports with 22 this Court's guidance regarding the sequence of dispositive motions. 23 Accordingly, Google respectfully requests that this Court issue an order that 24 Google shall file its motions for summary judgment on entitlement to DMCA safe 25 harbor within 30 days of the Court's order on this motion, the briefing on said 26 motions shall comply with the schedule set forth in the [Proposed] Order filed 27 concurrently herewith, and that Perfect 10 shall not file its planned motion until after 28 Google's DMCA motions are resolved.
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1 2 3 4 A.

Background The Court Advises the Parties to File Dispositive Motions in an Order That Would Potentially Moot Later-Filed Motions. On August 18, 2008, counsel for the parties appeared before the Court at a

5 scheduling conference. (Declaration of Rachel Herrick Kassabian, ¶ 3.) Among the 6 many issues discussed was the number of dispositive motions Google expects to 7 file. (Id., Ex. A, at 48:1-5.) During the course of that discussion, the Court 8 instructed the parties to stipulate to the sequence for filing dispositive motions such 9 that those that would potentially moot other motions be filed first: 10 11 12 13 14 15 16 17 18 19 20 22 23 24 25 Now, what you should do, and what I'm ordering you to do, Mr. Zeller -- and I don't have a view on how it would shake out -- is determine which of these motions, if it's meritorious or possibly if it's lacking in merit, would preclude the need the need for any later motion to be filed. In other words, figure out and work with Mr. Mausner. And I want you to stipulate to a sequence. And we can figure out the timing, because if there is some motions which, if I find them to be meritorious, would moot the need for later motions, then the later motions don't get made, your firm loses a little bit of money, and Google pays a little bit less in attorneys' fees, and the Court doesn't have to waste time. B. Google Initiates Meet and Confer Efforts Regarding Its Planned Dispositive Motions on Its DMCA Safe Harbor Defense in November 2008. Following the Court's instructions at the August 18, 2008 conference, Google

21 (Id., 48:9-20; see also id., 49:12-14 (e mphasis added)).

26 met and conferred with Perfect 10 in November 2008 pursuant to Local Rule 7-3 27 concerning Google's intention to file motions for summary judgment based on 28 Google's entitlement to safe harbor under the DMCA, 17 U.S.C. §§ 512(b), (c),
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1 and (d).

(Id., ¶ 4, Ex. B.)

Later that same day, Perfect 10 sent Google

2 correspondence expressing its intention to file a cross-motion for summary 3 judgment on this same issue. (Id., ¶ 5, Ex. C.) 4 In December 2008, just before the Court entered a stay of this action, Google 5 continued its meet and confer efforts, discussing the substantive issues raised in 6 Google's planned DMCA motions, Google's intent to file one motion addressing 7 each of the relevant subsections of the DMCA implicated here (for a total of three 8 motions), and the amount of time the parties would need to prepare opposition and 9 reply papers. (Id., ¶ 6.) The parties discussed a briefing schedule wherein Perfect 10 10's opposition and cross-motion would be filed four weeks after Google's moving 11 papers, Google's reply papers would be filed four weeks after Perfect 10's 12 opposition papers, and the motions would be heard four weeks later. (Id.) Though 13 the parties did not reach final agreement on the precise briefing schedule for 14 Google's DMCA motion and Perfect 10's cross-motion before the Court stayed the 15 litigation on December 22, 2008, Perfect 10 did not dispute Google's intention to be 16 the moving party on this affirmative defense. (Id.) 17 18 19 C. Perfect 10 States its Intention to File a Dispositive Motion Regarding Copyright Infringement Liability. On April 23, 2009, the day the stay expired, Google sent Perfect 10

20 correspondence seeking to resume and complete the parties' meet and confer efforts 21 regarding a stipulated schedule under which Google would file its DMCA summary 22 judgment motions and Perfect 10 would file its opposition and/or cross-motion. 23 (Id., ¶ 7, Ex. D.) Later that same day, Perfect 10 responded to Google's letter by 24 asking to initiate meet and confer efforts regarding Perfect 10's plan to file a 25 summary judgment motion regarding direct, contributory, and vicarious copyright 26 infringement liability. 28
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(Id., ¶ 8, Ex. E.)

Perfect 10's correspondence further

27 indicated that its planned motion would also address the DMCA issues that the

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1 parties had previously discussed would be presented by Google in Google's DMCA 2 motion. (Id.) 3 On May 5, 2009, the parties met and conferred telephonically regarding, inter (Id., ¶ 9.) During that call, Google 4 alia, their planned dispositive motions.

5 explained that because Google's DMCA motions could, if granted, moot Perfect 6 10's planned infringement liability motion, it would be more efficient for the parties 7 to brief (and the Court to decide) the DMCA motions first. Nevertheless, Perfect 10 8 refused to agree that Google's DMCA motions be filed and resolved first. Indeed, 9 Perfect 10 confirmed that (1) its liability motion would include a section addressing 10 the DMCA (despite the parties' earlier discussions that Google would be the moving 11 party on this affirmative defense), and (2) Perfect 10 also intended to file a cross12 motion to Google's DMCA motion (thereby consuming the Court's time and the 13 parties' resources by briefing the same issue twice). (Id.) 14 In an attempt to compromise, Google offered that Perfect 10 could be the 15 moving party regarding infringement liability (consistent with Perfect 10's burden 16 of proof), but that Google should remain the moving party regarding its DMCA 17 affirmative defense (consistent with Google's burden of proof), as the parties had 18 previously discussed. (Id.) Perfect 10 refused Google's offer, insisting that it be the 19 moving party on both issues. (Id.) 20 Thus, the parties did not reach agreement regarding the order in which their 21 dispositive motions should be filed and heard by the Court, or which party should be 22 the moving party for each set of motions. (Id., ¶ 10.) Both parties confirmed during 23 the May 5 call that their positions on this issue are final. (Id.) Perfect 10 indicated 24 it would file its planned infringement liability motion soon, likely in the next few 25 weeks. (Id.) Google asked Perfect 10 if it would agree to jointly submit these 26 scheduling questions to the Court, but Perfect 10 refused this as well, thereby 27 necessitating this Motion. (Id.) Perfect 10 did, however, reiterate its agreement to 28 Google's proposal that the parties have four weeks to file opposition and reply
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1 papers regarding Google's DMCA motion, and that the motions be heard four weeks 2 after reply briefs are filed. (Id.) 3 4 I. 5 6 7 Argument GOOGLE'S DMCA SUMMARY JUDGMENT MOTIONS SHOULD BE HEARD FIRST, SINCE THEY WOULD POTENTIALLY MOOT PERFECT 10'S LIABILITY MOTION. Google's motions for summary judgment regarding entitlement to safe harbor

8 under subsections 512(b), (c), and (d) of the DMCA should be heard before Perfect 9 10's planned infringement liability motion. Google has asserted the DMCA safe 10 harbor as one of its affirmative defenses. (Answer to Second Amended Complaint 11 and Counterclaims, docket no. 324) 12 The DMCA limits the liability of service providers for copyright infringement 13 in various circumstances, if the service providers meet certain criteria. See 17 14 U.S.C. § 512(b), (c), (d); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1175 15 (9th Cir. 2007) (limiting liability "for infringement of copyright by reason of the 16 intermediate and temporary storage of material on a system or network controlled or 17 operated by or for the service provider," "for infringement of copyright by reason of 18 the storage at the direction of a user of material that resides on a system or network 19 controlled or operated by or for the service provider," and "for infringement of 20 copyright by reason of the provider referring or linking users to an online location 21 containing infringing material or infringing activity, by using information location 22 tools, including a directory, index, reference, pointer, or hypertext link,") More 23 specifically, the DMCA safe harbors protect qualifying service providers from 24 liability for all monetary relief for direct, vicarious and contributory infringement 25 claims. Io Group, Inc. v. Veoh Networks, Inc., 586 F.Supp.2d 1132, 1141 (N.D. 26 Cal. 2008). Thus, if a court grants a service provider's summary judgment motion 27 regarding DMCA safe harbor, it need not reach the issue of whether the service 28
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1 provider is liable for monetary relief for direct or secondary copyright infringement. 2 See 17 U.S.C. § 512(b), (c), (d). 3 Other courts have elected to resolve DMCA issues before copyright liability 4 issues. See generally Io Group, 586 F.Supp.2d at 1141 (deciding that it was more 5 efficient to address defendant's motion for summary judgment as to the applicability 6 of safe harbor under the DMCA before plaintiff's motion for summary judgment on 7 liability); Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090, 1098 (W.D. 8 Wash. 2004) ("[E]ven if [plaintiff's] copyright infringement claims can [bear] fruit, 9 [defendant's] liability protection ensures that the claims will wither on the vine"). 10 Indeed, one court in this district has described the DMCA safe harbor defense as a 11 "preliminary issue" to be addressed before the ultimate question of infringement 12 liability is reached. See Hendrickson v. EBay Inc., 165 F.Supp.2d 1082, 1087-88 13 (C.D. Cal. 2001) ("Before the Court reaches the merits of that [secondary copyright 14 liability] question, the Court must address a preliminary issue: whether the DMCA 15 shields eBay from liability for copyright infringement.") 16 Here, Google has met and conferred with Perfect 10 regarding Google's 17 intention to file summary judgment motions regarding Google's entitlement to 18 DMCA safe harbor. Google's DMCA motion should be heard first, before Perfect 19 10's planned infringement liability motion, because this Court has rightly ordered 20 the parties to sequence their motions so that motions having potentially preclusive 21 effect on other motions be filed and decided first. Google's DMCA motion, if 22 granted, will moot the central issue in Perfect 10's planned infringement liability 23 motion--namely, whether Google may be held liable for monetary relief for direct 24 or secondary copyright infringement. Thus, hearing Google's DMCA motions first 25 serves the interests of judicial economy, and comports with this Court's directives 26 regarding the sequence of dispositive motions. 27 By contrast, even if Perfect 10 were to succeed on its copyright liability 28 motion, the Court would still need to reach Google's DMCA motion. Nothing
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1 would be gained, and no motions would be eliminated, by addressing Perfect 10's 2 liability motion first. Indeed, judicial and party resources may well be wasted by 3 proceeding in this fashion. This is precisely what the Court has indicated it wants to 4 avoid. (Kassabian Dec., ¶ 3, Ex. A, 48:9-20.) 5 Perfect 10 likely will argue that it can resolve this problem by including 6 DMCA issues in its liability motion. This would not resolve anything. The DMCA 7 is a complete defense to Perfect 10's copyright infringement claims. If Google 8 prevails under the DMCA, the Court and the parties will have wasted time and 9 resources on numerous issues that Perfect 10's liability motion necessarily must 10 raise, such as ownership and other prima facie elements of an infringement claim. 11 Having Perfect 10's motion proceed before or simultaneously with briefing on the 12 DMCA cannot avoid that problem. Furthermore, Google informed Perfect 10 many 13 months ago that Google intended to file a DMCA summary judgment motion. (Joint 14 Rule 16(b) Report, Docket No. 334, at 21; Kassabian Dec., ¶ 4, Ex. B.) Perfect 10 15 never contested that Google should be the moving party on this affirmative defense. 16 (Kassabian Dec., ¶ 5, Ex. C.) Indeed, as the party asserting (and bearing the burden 17 of proof on) the DMCA affirmative defense, Google should have the right to be the 18 moving party on this important issue. Limiting Google to just a single opposition 19 brief/cross-motion on this critical defense would deny Google the opportunity to 20 fully and fairly defend itself against Perfect 10's copyright claims. Accordingly, 21 Google's DMCA motions should be heard before Perfect 10's liability motion, and 22 Google should be deemed the moving party on the DMCA issue.1 23 24 25 26 27 28
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Of course, Perfect 10's plan to address the DMCA in both its anticipated copyright liability motion and its cross-motion to Google's DMCA motion flies even more directly in the face of this Court's Scheduling and Case Management Order, which holds that: The parties shall avoid filing cross-motions for summary judgment on identical issues of law, such that the papers would be unnecessarily (footnote continued)
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1

1 II. 2 3

PERFECT 10'S SUMMARY JUDGMENT MOTION ON LIABILITY IS PREMATURE BECAUSE DISCOVERY IS OUTSTANDING. Google's DMCA motions should be heard first for the additional reason that

4 Perfect 10's anticipated motion for summary judgment on copyright liability is 5 premature. At the October 6, 2008 conference, this Court warned Perfect 10 in no 6 uncertain terms that it may not reach dispositive motion practice on its copyright 7 infringement claims without first providing the necessary discovery: 8 9 10 11 12 13 14 15 16 17 19 21 22 23 24 25 26 27 28
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Don't lose sight of the point, Mr. Mausner. 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 are going to have to prove it on summary judgment, even as to just liability, okay? *** I'm not going to let you get to summary judgment and prevail on anything unless the evidence of all of the elements you have to prove for contributory liability . . . has been established. As of this writing, Google has three discovery motions pending before

18 (Kassabian Dec., ¶ 12, Ex. G, 27:1-7, and 36:16-20) (emphasis added). 20 Magistrate Judge Hillman and is currently meeting and conferring with Perfect 10 cumulative. (E.g., a party's moving and reply papers on its own motion would advance the same arguments as its opposition papers to the other party's cross-motion"). (Kassabian Dec., ¶ 11, Ex. F - Scheduling and Case Management Order, ¶ 5.) This is precisely what Perfect 10 plans to do: advance arguments regarding Google's DMCA safe harbor defense in its moving and reply papers on its own copyright liability motion, and also address that same issue in its opposition/ cross-motion to Google's DMCA motions. Perfect 10 should not be permitted to waste this Court's (footnote continued)

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1 regarding a number of additional discovery disputes.2 Perhaps in hopes of avoiding 2 these discovery obligations, Perfect 10 now wants to put the proverbial cart before 3 the horse and file its dispositive motion without first giving Google even the most 4 basic discovery it has requested regarding Perfect 10's copyright infringement 5 claims, including: 6· 7 8 9 10 11 · 12 13 14 15 16 · 17 18 19 20 21 Evidence of copyright ownership and registration of the images at issue--a necessary predicate for maintaining Perfect 10's copyright infringement claims. (See Motion to Compel Perfect 10 to Produce Documents, Comply with the Protective Order, and Affix Document Control Numbers to its Document Productions, filed May 7, 2009, now pending (Docket No. 407)). An identification of the alleged infringements Perfect 10 is asserting here, including evidence of the date and location of infringement, publication date of the infringed image and registration date. (See Google Inc.'s Motion to Compel Further Responses to Interrogatory Nos. 3 and 11, filed August 15, 2008, still pending (Docket No. 336)). Evidence regarding the alleged market (if any) for Perfect 10's cell phone download images--relevant to Google's fair use defense. (See Motion to Compel Perfect 10, Inc. to Produce Documents, Comply with the Protective Order, and Affix Document Control Numbers to its Document Productions, filed May 7, 2009, now pending (Docket No. 407)). All of this discovery is directly relevant to Perfect 10's planned liability

22 motion, and Google is entitled to it before it must defend against such a motion. 23 Thus, Google will have no choice but to file a Rule 56(f) motion in response to 24 25 resources by filing cumulative documents addressing the very same issue in three different briefs. 26 27 28
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1 Perfect 10's presently contemplated summary judgment motion on liability. See 2 Fed. R. Civ. P. 56(f). Rule 56(f) protects parties from being "railroaded" by 3 premature motions such as Perfect 10's. Celotex Corp. v. Catrett, 477 U.S. 317, 326 4 (1986). Indeed, "summary judgment should `be refused where the nonmoving party 5 has not had the opportunity to discover information that is essential to [its] 6 opposition." Burnside-Ott Aviation Training Center, Inc. v. United States, 985 F.2d 7 1574, 1582 (Fed. Cir. 1993)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 8 250 n.5 (1986)). 9 Accordingly, Perfect 10's failure to provide this basic discovery, and the 10 corresponding pendency of Google's outstanding discovery motions regarding that 11 discovery, provides a further basis for ordering that Perfect 10's infringement 12 liability motion is not ripe for adjudication now. Hearing Google's DMCA motion 13 first will allow time for the Court's resolution of Google's outstanding discovery 14 motions, and Perfect 10's compliance with the resulting orders. 15 16 Conclusion For the foregoing reasons, Google respectfully requests that this Court order

17 that Google's Motions for Summary Judgment of Entitlement to Safe Harbor Under 18 17 U.S.C. § 512(b), (c), and (d) of the DMCA, and any cross-motions filed by 19 Perfect 10, be briefed and resolved prior to the filing of any dispositive motion by 20 Perfect 10 regarding copyright liability. Google further requests that the briefing on 21 said motions follow the schedule set forth in the [Proposed] Order filed concurrently 22 23 24 25 26 Two of Google's discovery motions were pending at the time the court entered 27 the stay on December 22, 2008, and the third motion was filed on May 7, 2009. (See Docket Nos. 336, 371, and 407.) 28
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2

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1 herewith. Google further requests that it be relieved of the 20-day hold requirement 2 of Local Rule 7-3 with respect to this motion.3 3 4 DATED: May 8, 2009 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By /s/ Michael Zeller Attorneys for Defendant GOOGLE INC.

Under the Local Rules, parties are required to wait 20 days after engaging in the pre-filing conference in advance of an anticipated motion. There is good cause to grant Google relief from this 20-day requirement. First, the parties confirmed during their pre-filing conference that their respective positions regarding the sequence for these dispositive motions were final. (Kassabian Dec., ¶ 10.) As such, nothing would be accomplished by further delay of resolution of these issues. Second, Perfect 10 represented that it would file its motion soon, likely in the next few weeks. (Id.) Without relief from the 20-day requirement, Perfect 10 is likely to file its liability motion before the Court has the opportunity to consider the present motion. The spirit of the Court's prior directive and efficiency therefore support relieving Google of the 20-day requirement so that the Court can resolve the sequence of the motions before they are filed. Otherwise, both the parties and the Court may be burdened by and waste resources on motions that have been filed in a less-than-optimal sequence that has not been approved by the Court.
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