Perfect 10 Inc v. Google Inc et al

Filing 426

NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Defendant Google Inc.'s Entitlement to Safe Harbor Under 17 U.S.C. 512(b) For Its Caching Feature [Public Redacted] filed by Defendant and Counterclaimant Google Inc. Motion set for hearing on 8/17/2009 at 10:00 AM before Judge A. Howard Matz. (Attachments: #1 Statement of Uncontroverted Facts and Conclusions of Law, #2 Proposed Order)(Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 426

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QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller Bar o. 19b417) michaelzeller u^nnemanu l.com $ 5 out igueroa treet, 10 oor Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: 213 443-3100 Charles K. eihoeven·{Bar No. 170151) charlesverhoev^en a^qul^nemanuel.com 5d ^a^i^rn^aStr eet; 22"" Floor' San Francisco California 94111 Rachel Herr^clC Kassabian (Bar No. 191060) rachelkassabian(a7quinnemanuel .com S55 Twin I]o in^rive, quite 5 ^ } Redwood Shores, California 94065

9 Attorneys for Defendant GOOGLE INC. 10 11
corporation,

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-94$4 AHM {SHx) Consolidated with Case No. CV 05753 AHM {SHx)] DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. § SI2(b) FOR ITS CACHING EA RE Separate Statement, Declarations of ache] Herrick Kassabian, Sibrina Kahn, Bill Brougher, Shantal Rands Poovala and Paul Haahr filed concurrently herewith]
Hon. A. Howard Matz Date: Au ust 17, 2009 Time: 10:00 a.In. Crum.: 14 Discovery Cut-off: None Set Pretrial Conference Date: None Set Trial Date : None Set

12 PERFECT 10, INC., a California 13 Plaintiff, 14
V5.

15 GOOGLE INC. a corporation; and 16 DOES 1 through 100, inclusive, 17 18 19 AND COUNTERCLAIM 20 PERFECT 10, INC., a California 21 corporation, Plaintiff, 22 23
vs.

Defendants.

MAZO .CO , 24 A9.COMNINC.Ma INC., a corporation; A , corporation; and DOES 1 throug^i 100, inclusive, 2S Defendants. 26 27 2$
03 980 .5 ] 32001993879. [

PUBLIC REDACTED

DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT RE; GOOGLE' ENTITLEMENT TO SAFE HARBOR UNDER ] 7 U.S.C. S 5 [2(b) FOR 1T5 CACHING FEATURE Dockets.Justia.com

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August 17, 2009, in the courtroom of the

3 Honorable A. Howard Matz, located at 312 North Spring Street , Los Angeles, 4 California 90012 , Courtroom 14, Defendant Google Inc, {"Google" ) shall and 5 hereby does move this Court for summary judgment pursuant to the safe harbor 6 provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 512 ("DMCA") 7 with respect to plaintiff Perfect 10 , Inc.'s (" P 10") claims of copyright infringement 8 against Google directed to the caching feature of Google Web Search . This motion 9 for summary judgment is made on the ground that Google satisfies each of the 10 statutory requirements for safe harbor under the governing DMCA provision, 17 11 12 13 U.S.C. § 512{b}.' This motion is based on this Notice of Motion and Motion, the concurrentlyfiled Memorandum of Points and Authorities and Separate Statement , the supporting

14 Declarations of Rachel Herrick Kassabian , Sibrina I{han, Bill Brougher, Shantal 15 Rands Poovala and Paul Haahr , the pleadings and other papers on file in this action, 16 including Google ' s Motion for Summary Judgment Regarding Google"s Entitlement 17 to Safe Harbor under 17 U.S.C . 512(d) for Web and Image Search , and such 18 additional evidence as may be presented at or before the hearing. 19 20 21 22 23 24 25 26 27 28
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' Under separate covers , Google also is f ling motions for partial summary judgment of entitlement to DMCA safe harbor under Sections 512(c) regarding Google's Blogger service {" Blogger Motion ") and 512 ( d) regarding Google's Web and Image Search feature (" Search Motion"). Google respectfully suggests that the Court consider Google ' s motion under Section 512 ( d) (the " Search Motion"} first, as it includes a full recitation of the facts and arguments common to all three motions. The Search Motion and its supporting brief are incoiparated here by reference.
DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT RE: GO ENTITLEMENT TO SAFE HARBOR I^NDER 17 U.S.C. § 512(b) FOR ITS CACHING FEATURE

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Statement of Local Rule 7-3 Cam,Pl,iance

Google's counsel engaged in the Local Rule 7-3 pre-filing conference with P 10's counsel on November 7, 2008 as well as times thereafter.

S DATED: July 2, 2009 6

QUINN EMANUEL URQLTHART OLIVER & HHE^DGES, LLP ,,
^^^^inr,^^_ ^ ^l s.t1.^ ^^^

S 9 10 11 12 13 14 15 16 17 18 19 20 21 22^ 23 24 25 2b 27 28
U 1980. 5132UfZ993879. ]

Michael Zeller Rachel Herrick Kassabian Attorneys for Defendant GOOGLE TNC.

DEFENDANT GOOGLE'S NOTICE OF MOTION ANp MOTION FOR SUMMARY JUDGMENT RE: GOOGLE' ENTITLEMENT TO SAFE HARBOR UNDER t7 U.S.C. S 5l2(b} FOR 1TS CACHING FEATURE

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TABLE OF CONTENTS Page

4 MEMORANDUM OF POINTS AND AUTHORITIES ...................................... 1 5 PRELIMINARY STATEMENT ............................................................................ l b STATEMENT OF FACTS ...................................................................................... 1 7 I. S II. 9 III. GOOGLE'S CACHING FEATURE ............................................................... 1 P 10' SCACHING-RELATED ALLEGATIONS ............................................ 2 GOOGLE'S DMCA POLICY AND PROCEDURE REGARDING ITS CACHE FEATURE ......................................................................................... 3 GOOGLE'S REPEAT INFRINGER POLICY ............................................... 3 P10'S DEFECTIVE NOTICES ....................................................................... 4

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11 12 13

IV. V.

VI.

GOOGLE'S PROCESSING OF P10'S NOTICES ......................................... 5

SUMMARY JUDGMENT STANDARD ............................................................... 5 14 ARGUMENT ............................................................................................................ 6 15 lb 17: CONCLUSION ........................................................................................................ 9 18 19 20 21 22 23 241 25 2b 27 28
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I. II.

GOGGLE MEETS THE DMCA'S TI^SHOLD REQUIREMENTS ........ 6 GOGGLE IS ENTITLED TO SAFE HARBOR UNDER ^ 512(B) ............... 7

DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY ]UDGMENT RE: GOGGLE ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. § 512(b) FOR ITS CACHING FEATURE

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TABLE OF AUTHORXTIES
Page Cases
477 U.S. 242 (I986) ................................................................................................ 6

4 Anderson v. Liberty Lobby, Inc., 5 6
Cusano v. Klein,

280 F. Supp. 2d 1035 {C.D. Cal. 2003} ..................................................................6

7 Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004 ) ...............................................................................8 8 Field v. Google, 412 F. Supp. 2d 1105 (D. Nev. 2006) .............................................................6, 7, 8 9 1a Rivera v. Anaya, 726 F.2d 564 (9th Cir. 1984} .................................................................................. 6 11 12 13 RuleslSfa>futes 17 U.S.C. § 512 ...................................................................................................passim

14 Fed. R. Civ. P. 56 .................................................,...........,..................................,....,..6 15 Fed. R. Civ. P. 56(b) ............................................................................................... 5-6 16 17 18 19 20 21 22 23 24 25 26' 27 28
01980 . 5132012993879. ]

-11_ DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT RE: GOOG

)NTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. § 5l2(b) FOR ITS CACHING FEATURE

MEMORANDUM OF POINTS AND AUTHORYT^ES 2 3
Preliminary Statement

Google stores historical, or "cache," copies of the text from third-party

4 websites that it crawls and indexes for its Web Search service. Google makes these S cached copies available for a limited time to users of its Web Search service. While 6 the text of the site is made available to users by Google via the cached copy, any 7 images on those cached web pages are delivered directly from the third party-sites, S not from Google's cache. 9 P10 has alleged various direct and secondary copyright infringement claims

10 against Google based upon Google's caching feature. These claims fail, because 11 Google qualifies for safe harbor under Section 512(b} of the Digital Millennium

12 Copyright Act ("DMCA"). Because P 10 has not raised a triable issue of fact 13 regarding Google's satisfaction of the statutory safe harbor requirements, Goog]e's 14 motion for summary judgment on this basis should be granted. 15 16 Y. 17
tatemcnt of Factsz

GOOGLE'S CACHING FEATURE Google maintains the world's most popular Internet search engine.

18 Declaration of Bill Brougher ("Brougher Dec."} ¶ 2. Googlo has indexed billions of 19 web pages available on the Internet. Id. ^ 3. Google uses an automated software 20 program, known as a web crawler, to obtain copies of publicly available web pages, 21
by sending requests to the server for the originating website and receiving the

22 requested content in response. Id. '^ 4. Google's proprietary software analyzes a 23 copy of each web page it receives from the originating web servers and compiles an 24 index of the text available on accessible websites. Id. 25 Google provides Web Search users with the option of selecting a lin!< to a

26 "cached copy" of the web pages that appear in its search results. Brougher Dec. ^ 5. Google respectfully refers the Court to pages S-I 6 of its Search Motion, which 2S recite the facts common to both motions.
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DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY .NDGMENT RE: GO ENTITLEMENT TO SAFE HARBOR UNDER [7 U,S.G. S 512{b} FOR ITS CACHING FEATURE

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When a user clicks on the " cached" link, the user sends a request to Google's

2 computers , which respond automatically by transmitting the archival copy of the 3 text of the web page in question . Id. ^( 8. This cached copy of the web page text is 4 made available through an automatic technical process, as opposed to a direct link to i S the website . Id. ¶ 6. However, there are no images stored in this cache . Id. 7.

6 Any images displayed on the cached page are delivered from their original source, if 7 they still exist . Id. Google maintains a copy of the text of a web page in the cache 8 available to users only until its web robot next visits that particular web page. Id. ¶ 9 6. In the majority of cases, Google ' s cache made available to users is refreshed 10 every few weeks . Id. Thus , Google's cached copy is a temporary " snapshot" of the 11 text on a web page as it appeared the last time the web page was crawled by 12 Google's web robot. Id. 13 Google's cache available to use>·s provides Internet users with several

14 important benefits . Brougher Dec. ¶¶ 10-12. It allows users to view the text of 1S pages that the users cannot access directly. Id. '^( 10. A web page can become 16 inaccessible because of transmission problems, censorship by governments, or too 17 many users seeking the same page at the same time . Id. The archival functionality 1$ is also important to users, such as researchers, who wish to determine how a 19 particular web page has changed aver time. Id.. ^ 11. The cached link further allows 20' users to more readily determine why a particular page was responsive to their query, 21
by highlighting the terms of the query . Id. ^^ 12.

22 II. 23

P10 ' S CACHING - RELATED ALLEGATIONS With respect to caching , P10 alleges that Google is secondarily liable for

24 copyright infringement based upon Google's alleged provision (through its cache 25 feature} of cached links to third- party websites that display infringing copies of its 26 27 28
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DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT RE: GO ENTITLEMENT TO SAFE 1-IAR80R [JNDL:R 17 U.S,C. § S ]2(6) FOR ITS CACHING FEATURE

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copyrighted works . Second Amended Complaint ¶ 26(d).3 P 10 alleges that in some

2 cases, Google provides cache copies to users when the allegedly infringing images 3 ^^ are no Ionger available on the third-party websites. Id.4 4 III. 5 6 GOOGLE'S DMCA POLICY AND PROCEllURE REGARDING ITS CACHE FEATURE Google's policy is to respond expeditiously to notices of copyright

7 infringement in accordance with the DMCA. Declaration of Shantal Rands Poovala 8 ("Poovala Dec.") ¶ 5. Google publishes the information it needs to process DMCA 9 complaints relating to Web Search at https://www.google.com/dmca.html. Id. to Gaogle's Web Search DMCA policy covers its caching feature as well. Id. lI
10.

Cached pages displaying allegedly infringing material are prevented from appearing

12 in Google's search results in the same manner as are Web Search links. Id. Thus, 13 when Google suppresses a web page from appearing in Web Search results, it 14 automatically prevents all cached links to that page from appearing in the results as 15 well. Id.; see Search Motion at 5-6. Accordingly, Google's procedure for 16 processing DMCA notices regarding cached content is the same as Google's 17 procedure for processing DMCA notices regarding Web Search. Poovala Dec. '^ 10. 18 IV. 19 GOOGLE'S REPEAT INFRINGER POLICY Google has and enforces repeat infringer policies for alI products or services

20 with "subscribers or account holders ," as required by the DMCA . Poovala Dec. ¶ 21 36. Goagle's Web Search service has no subscribers or accaunt halders. Haahr

22 Dec. ¶ 17. Webmasters do not "sign up" to have their web sites listed in Google's 23 24
As noted above, there are no images in Googlc's cache. To extent P 10's 25 caching claims are construed as allegations based on linking to third party content, Google is entitled to safe harbor.under Section 512(d), and requests summary 26 judgment for its caching feature on that basis. See Search Motion at 19-25. 3

As a technical matter, this is impossible because the only images displayed on the cached page are those which are accessible from the website hosting those 28 images at the time the user accesses the cached link. Brougher Dec. ¶ 7. 27
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DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY .IUDGMENT RE: GOOGLE' ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. ^ 5 ] 2{b) FOR ITS GACI-LING FEATiJRE

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organic search results or the cache . ird. Thus, there are no subscriptions or accounts

2 to terminate with respect to Web Search or its cache feature . Of course , Google has 3 repeat infringer policies for the products and services with account holders , such as 4 AdSense or Blogger.s Pursuant to those policies , Google will terminate account S holders following receipt of -verified DMCA notices . Even though not 6 required by the DMCA , Google also makes a good faith attempt to enforce its repeat 7 infringer policies even where the notice in question is defective or not otherwise 8 directed to those products or services. 9 10 11 12 V. 13 P10'S DEFECTIVE NOTICES A full discussion of P 10's DMCA notices, and their numerous defects, is set

14 forth in Google ' s Search Motion at pages 7- I 1 (incorporated herein by reference}. I5 Pursuant to 17 U.S.C. § 5I2{c)( 3)(B}(ii), Google repeatedly advised P10 of

16 the various defects that hindered or precluded Google from completely processing 17' 5 Beyond the fact that Google has such policies , Google does not concede that 1$ the enforcement of these policies is relevant to the Section S I2(b) analysis, where the product or selvice itself does not have account holders or subscribers. 19 20 ' An AdSense account holder, or "publisher ," places certain code on its web pages in order to signal to Google's servers that Google --provided ads should be 22 delivered to that page. See httpsalwww. google . com/adsensell ogin/cn_US/?sourcei d = aso&subid 23 =na-en-ha-bk & utm medium =ha&utm term=adsense. 2^ 21
r or ease or rererence , t^-oogle rerers to r i u ^ s I^IViL. R comrnunlcatlons as 26 "notices ." However, Google does not concede that these communications 27 constituted valid notices of copyright infringement pursuant to the DMCA. Nor does Google concede that the URLs identif ed by P I 0 as "infringing URLs" in its 28 claimed notices were actually infringing,
0198D ,S E 32alZ993879.1

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DEFENDANT GOOGLE'S NOVICE OF MOTION ANI7 MOTION FOR SUMMA[tY JUDGMENT RE: GOOG ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. ^ 512{b) FOR ETS CAC1-IING FEATURE

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its notices . See Search Motion at 11 - 12; Poovala Dec., ¶¶ 57-74 & Exs. S-EE. At

2 no time did P10 respond to Google ' s letters by resubmitting its notices in an 3 intelligible and DMCA-compliant format. Poovala Dec . ¶ 74. In short, P10's 4 I, notices consistently failed to identify the work at issue and the location of the S infringing content ( among other defects ). See Search Motion at 7-11. Worse, P 10's 6 obfuscatory and burdensome notices , coupled with its refusals to con-ect the noted 7 defects, suggested that P10 had little interest in actually removing links to content
from Google ' s search results . See id. at 11-I2.

9 VI. 10 11

GOOGLE' S PROCESSING OF P10 ' S NOTICES Although P10' s notices failed to comply with the DMCA, Google went

beyond what the Iaw requires to expeditiously process them , by (1 } notifying P 10 of

12 the defects and how to correct them; 13 (3}preventing all discernable URLs

14 from appearing in search results even though P 10 had failed to identify the work 1S allegedly infringed at those UR.L,s; and ( 4) enforcing GoogIe's repeat infringer 16 policies for services with subscribers or account holders implicated by the notices, 17 despite the defects in the notices . See Poovala Dec. '^^ 56-94; Search Motion at 1218 19 16. As discussed above , when Google suppresses a live web page URL from

20 appearing in Web Search results in response to user queries , it automatically 21 prevents all cached links to that page from appearing in Web Search results as well.

22 '. See Part III, supt^a . Thus , Google's processing of P 10 ' s notices directed to Web 23
Search automaticaIIy prevented all cached links to those pages from appearing in

24 Web Search results as well. Poovala Dec. ¶ 10; see Search Motion at 12-16 2S (discussing Google ' s processing of P 10 ' s notices for Web Search}. 26 27
Summary Judgment Standard

"A party against whom relief is sought may move at any time ...for

28 summary judgment on all or part of a claim," or on an affirmative defense. Fed. R.
61980 . 5132001993879,1

-5DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT RE: GOOGLE ENTITLEMENT TO SAFE I-IARBOR UNDER 17 U.S.C. § 5l2(b) FOR 1TS CACHING FEATURE

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Civ. P. 56(b); Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir. 1984}. The moving

2 party must demonstrate the absence of a genuine issue of material fact for 3 !^ trial. Anderson v. Liberty Lobby, rnc., 477 U.S. 242, 256 (1986). The opposing 4 party "may not rest upon the mere allegations or denials of the adverse party's 5 pleadings , but the adverse party' s response , by affidavits or as otherwise provided in 6 [Rule 56], must set forth specific facts showing that there is a genuine issue for 7 trial". Cusano v. Klein , 280 r. Supp. 2d 1035, 1038 {C.D. Cal. 2003). 8 9
Ar^umcnt

P10's allegations of copyright infringement directed to Google's caching feature of its Web Search service falls within the DMCA's subsection { b}, which provides safe harbor against claims of infringement " by reason of the i ntermediate

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12 and temporary storage of material on a system or network controlled or operated by 13 or far the service provider ." 17 U.S.C. § S 12(b). P 10' s defect-laden notices failed 14 to confer knowledge of infringement Llpon Google, but even if they had, Google 15 responded to the fullest extent required , entitling Google to safe harbor. I6 I. 17 1$ GOOGLE MEETS THE DMCA ' S THRESHOLD RE U7REMENTS
Google incorporates by reference the arguments in its Search Motion at pages

17-18, establishing that Google meets the DMCA' s threshold requirements , and will

19 only summarize them here. 20 It is beyond dispute that Google is a "service provider " as defined by the

21 f DMCA. 17 U.S.C. §.512{k}{1}{B); Field v. Google, 412 r. Supp. 2d 1106, 1125 22 (D. Nev . 2006). The undisputed evidence further establishes that Google has a 23 working DMCA notification system for Web Search. 1Q Google also has a 24 designated agent for receiving notifications of claimed infringement. Poovala Dec., 25 26
10 Again , there is no Image Search user cache. If the Court considers P10's 27 caching allegations to be directed to Image Search, Google incorporates by reference the relevant portions of its Search Motion, and requests summary 28 judgment on Pi0's caching allegations on that additional basis.
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DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY .IUDGMENT RE: GOOGLE ENTITLEMENT TO SAFE 1-(ARBOR UNDER 17 U.S.C. y^ 512{b} FOR ITS CACI-3ING FEATURE

Ex. 1; Kassabian Dec., Ex . G (P 10 admitting same} . Google publishes detailed 2 instructions explaining what i nformation Google needs to process a DMCA notice 3 ^ directed to Web Search, and how and where the notice should be submitted. 4 Poovala Dec . ^ 5. if a DMCA noticd is deficient, Google requests the additional 5 C information needed to process the notice. Id. ¶ 13. Google has a procedure for 6 processing DMCA notices, including verifying the complaints, ensuring that 7 offending URLs do not appear in search results, and tracking its processing efforts. 8 Id. ¶¶ 11-14. Further , Google has implemented a repeat infringer policy for services 9 with account holders or subscribers , and terminates those account holders or

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subscribers where appropriate. Id. ¶^ 36-38. Finally , Google does net actively

11 ^ prevent copyright owners from collecting information needed to issue a DMCA 12 natice , and does not interfere with any known " standard technical measures ." Haahr ^ 13 Dec. ¶ 18; see also Search Motion at 18. 14 15 Having satisfied the threshold conditions of eligibility, Google is entitled to seek safe harbor under the DMCA. GOGGLE ^S ENTYTLED TO SAFE HARBOR UNDER ^ S12(B) Google is entitled to safe harbor under Section 512 ( b) with respect to P10's

16 II. 17

18. cache-related infringement claims . Section 5 I2(b) provides safe harbor for service 19' providers " by reason of the intermediate and temporary storage of material an a 20 system or network controlled or operated by or for the service provider ." Section 21 512(b} imposes eight conditions for safe harbor, and Google meets them all. See 17

22 U.S.C. § 512{b}(1)(A}-(C}; 17 U.S.C. ^ 512(b){2){A)-{E} ( summarized below}. 23
As a preliminary matter , Google's cache falls within Section 512(b} because

24 ^ it constitutes " intermediate and temporary storage of material ." 17 U.S.C. § 512{b); 25 see also Field, 412 F. Supp . 2d at 1125 (granting Gaogle ' s motion for summary 26 judgment of eligibility for safe harbor under Section 512(b)}. Google stores the text 27 associated with the web pages it has i ndexed in its cache made available to users. 28 Brougher Dec. ¶ 6. Google maintains a copy of a given web page in its cache made
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DEFENDANT GOOGLE'S NOTICC OF MOTION AND MOTION FOR SUMMARY 1UDGMENT RE: GOOD ENTITLEM! NTTO SAFE HAR[iOR UNDER 17 U.S.C. § 512(b) FOR ITS CACI-{1NG FEATUR>;

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available to users only until its web robot next visits that particular web page. Id. In

2 ' the majority of cases , Google's cache made available to users is refreshed every few 3 weeks . Id. This is " intermediate and temporary " within the meaning of the DMCA. 4 field, 412 F. Supp . 2d at 1124 (finding that Goagle ' s cache storing archival copies 5 of web pages for approximately 14 to 20 days is "temporary " under ^ 512(b)) {citing 6 Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004}}. 7 8 Further, Google satisfies all eight conditions for Section 512(b) safe harbor. First, the allegedly infringing P10 images are made available online by a

9 person other than Google-specif tally , the webmasters of the third-party websites 10 displaying the allegedly infringing material . 17 U.S.C. § 5l2(b){1)(A); Brougher 11 12 Dec. ^ 4. Second, the allegedly infringing P 10 images are transmitted by third-party

13 websites to users at Google's request . 17 U.S.C. § 512(b)(1)(B); Brougher Dec. ^ 4. 14 Third, Google ' s storage of the web page HTML text in its cache made

IS ^ available to users is carried out through an automated technical process, for the 1b purpose of malting the material available to users who wish to access it after it was 17 initially made available by the third-party websites. Brougher Dec. ^^ 6; 17 U.S.C. 18 § 512(b}(1)(C}; Field, 412 F. Supp. 2d at 1124 {no dispute that Google met this 19 requirement). 20 21 Fourth , Gaogle's robot obtains copies of the web pages from originating websites without modif cation to their content. 17 U.S.C. § 512(b}{2}(A}; Brougher

22 ^ ^ Dec. ¶ 6.

23

Fifth, if webmasters hosting the content in question specify rules concerning

24'. refreshing, reloading , or other updating of the material, Google complies with those 25 ', rules . 17 U.S.C. § 512{b}(2}(B}; Brougher Dec. ¶ 12. 2bl'^
Sixth , Google does not interfere with any technology used by a website to

27^' collect information directly from users who may access allegedly infringing 281 materials on their site. 17 U.S.C. § 512(b){2){C); Haahr Dec. ^ 19.
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-xDEFENDANT GOOGLE'S NOTICIJ OF MOTION AND MOTION FOR SUMMARY 1[JDGMENT RE: GOOG ENTITLEMENT TO SAFE HARBOR UNDER f 7 U.5.C. § 512{b) FOR 1T5 CAC]-IING FEATURE

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Seventh, Google ' s cache does not alter the prerequisites established by

2 webmasters for access to copyrighted material , such as payment or password 3 ^ protection. 17 U.S,C. § 512(b}{2){D); Haahr Dec. ¶ 20. 4 E_ig_hth , if a valid notice of infringement under Section 512(c)(3 ) is received, it

5 is Google's policy to respond expeditiously to remove or disable access to the 6 infringing material. 17 U.S.C. § 512(b)(2)( E); Paovala Dec. ¶ 5. Here , although 7 none of P10's notices directed to Web Search were valid, Google nevertheless went 8 beyond what the DMCA requires and processed them expeditiously. See Search 9 Motion at 12-16. 10 11 Having satisfied all eight conditions, Google is entitled to safe harbor under
Section 512 ( b) with respect to all of P 10's copyright infringement claims arising

12 from Google ' s caching feature. I I 13 14 Conclusion There is no material fact left for trial regarding whether Google is entitled to

15 safe harbor under Section 512(b}. Google respectfully requests that the Court grant 16 ^ it summary judgment on this basis. 17 18 DATED: July 2, 2009 19. 20
By

QUINN EMANUEL URQUHART OLIVER & HHEDGES, LLP >
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21 22 23 24
II

Michael %eller Rachel Herrick Kassabian Attorneys far Defendant GOOGLE INC.

Google is entitled to safe harbor under Section 512(d) with respect to P10's 2S caching allegations for the same reasons Google is entitled to safe harbor with respect to the Web Search allegations , See Search Motion at 19-25. As discussed 26 above, third - party websites display the images that appear in the cached copy, and 27 Google merely links to them . Brougher Dec. ¶ 7 . Thus, in addition to Section 512(b} safe harbor, Google is entitled to safe harbor under Section 512(d) as well, 28 based upon the cache feature's linking to third party content.
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DEFENDANT GOOGLE`S NOTICE OF MOTION AND MOTION FOR SUMMARY 1UDGMENT RC: GO ENTITLEMENT TO SAFE HARBOR UNDER ]7 U.S.C. § S 12(b) FOR ITS CACHING FEATURE