Perfect 10 Inc v. Google Inc et al

Filing 427

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(c) For Its Blogger Service [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. 427

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller Bar o. 196417}
2 3 michaelzeller e,gu><nnemanu^l.com $bS^^Flgueroa treet, 1 ^` Floor Los Angeles, California 90017-2543 Telephone: [phone]

4 Facsimile: 5 6

213 443-3100 Charles K. erhoeven (Bar No. 17015 I ) charl esverho ev en^a^,g u^n emanuel .com . SO^a^i^orriia treet, 2^ ^ oor

San Francisco California 94111-4624 Rachel Herr>ck Kassabian (Bar Na. 191060) rachelkassabian(a,guinnemanuel.com 7 5SS Twin o p ><n rlve, ulte 5 $ Redwood Shores, Cal>fornia 94065-2129 9 Attorneys for Defendant GOOGLE INC.

Ia
11 12 13
Plaintiff,

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
PERFECT I0, INC., a California corporation,

CASE NO. CV 04-9484 AHM (SHx} [Consolidated with- Case No. CV 054753 AHM (SI^x)] DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 512 c ) FOR ITS BLOGGER ^ER I}CE
[Separate Statement, Declarations of Rachel Herrick Kassabian, Sibrina Khan, Bill Brou her, Shantal Rands Poovala and Pain Haahr filed concurrently herewith] Hon. A . Howard Matz

14
vs.

15 GOOGLE INC. a corporation; and

16 DOES 1 through 100, inclusive,
17 18 AND COUNTERCLAIM 19 Defendants.

20 PERFECT 10, INC., a California
corporation,

21

Plaintiff,
22
vs.

23
AMAZON.COM, INC., a corporation;

Date : Au gust 17, 2009 Time: ] 0 :[^0 a.m. Crtrm.: 14 Discovery Cut-off: None Set y Pretrial Conference Date: None Set Trial Date: None Set

24 A9.COM, INC. a corporation; and
DOES I throug^ 100, inclusive,

25 Defendants. 26 27 28
01980 ,5132002993936, I

PUBLIC REDACTED

DEFENDANT GOOGLE'S NOTICE OF MOTION AND MUT10N FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. § S 12(c) FUR ITS ]SLOGGER SERVICE

Dockets.Justia.com

1 2

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 I^ California 90012, Courtroom 1^, 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 PIaintiff Perfect 10, Ines. {"P10") claims of copyright infringement 8 against Google directed to Google's Blogger service. This motion for summary 9 judgment is made on the ground that Google satisfies each of the statutory Ia requirements for safe harbor under the governing DMCA provision, namely 17 11 12
U.S.C. § 512(c).'

This motion is based on this Notice of Motion and Motion, the concurrently-

13 ^ filed Memorandum of Points and Authorities and Separate Statement, the supporting 14 Declarations of Rachel Herrick Kassabian, Sibrina Khan, Bill Brougher, ShantaI 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. S I2(d) for Web and Image Search, and such 1$ additional evidence as may be presented at or before the hearing. 19 20 21 22 23 2^1 25 26 27 2$
01980 .5 1320/2993 93 6.1
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' Under separate covers, Google also is filing motions for partial summary judgment of entitlement to DMCA safe harbor under Sections 512{b) regarding Google's caching feature ("Caching Motion"} and 512(d) regarding GoogIe's Web and Image Search feature ("Search Motion"). Google respectfully suggests that the Court consider Google's Search Motion f rst, as it includes a full recitation of the facts and arguments common to all three motions. The Search Motion and its supporting brief are incorporated here by reference.

DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SCIMMARY JUDGMENT RE; GOOGLE'S ENTiTLEMEN7 ' TO SAFE HAREOR UNDER 17 U.S.C. ^ 512{c } FOR ITS i3LOGGER SERVICE

1 2

Statement of Local Rule 7-3 ,, Compliance Google's counsel engaged in the Local Rule 7-3 pre-fling conference with

3 P10's counsel on November 7, 2008 as well as times thereafter. 4 S DATED: duly 2, 2009 6 7 8 9 10 11 12 13 14 15 1b 17 18 19 20 21 22 23 24 25 26 27 28
^ 1980513208993936. I - _^ _

^UINN EMANUEL URQUHART OLIVER & ^ EDGES, LLP

Michael Zeller Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. § 512(c) FOR ITS SLOGGER SERVICE

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TABLE OF CONTENTS
Page

3 PRELXMYNARY STATEMENT ................................................................... ........... i 4 STATEMENT OF FACTS ............................................................................. ...........1 5 I. 6 II. 7 III. 8 IV. 9 V. 10 VI. 11 GOGGLE' S SLOGGER SERVICE ....................................................... ...........1 P10'S RELEVANT ALLEGATIONS AGAINST GOGGLE ............... ...........2 GOOGLE'S DMCA POLICY AND PROCEDURE FOR BLOGGER ...........2 GOOGLE'S REPEAT INFRINGER POLICY ....................................... ...........3 P10'S DEFECTIVE DMCA NOTICES ................................................. ...........4 GOGGLE' S PROCESSING OF P 10' S NOTICES ................................ ........... S

SUMMARY JUDGMENT STANDARD ...................................................... ...........6

12 ARGUMENT ............................................... . ............... . ................................... ........... 6 13 I. 14 II. 15 16 17 III. 18 19, 20 21 GOGGLE MEETS THE DMCA'S THRESHOLD REQUIREMENTS ...........6 GOGGLE IS ENTITLED TO SAFE HARBOR UNDER § 512(C} ...... ...........7 A.
B.

P10's Defective Notices Failed To Confer Any Knowledge ....... ........... 8
Google Expeditiously Processed P 10's Defective Notices .......... .........10

GOGGLE DOES NOT HAVE THE RIGHT AND ABILITY TO CONTROL NOR DOES IT RECEIVE A FINANCIAL BENEFIT FROM INFRINGING ACTIVITY ......................................................... .........10 A. B. Google Does Not Have the Ri ht And Ability Ta Control All ege d I n fr ing i ng A ct i v i ty O ^ B l ogger Account I-Iolders .......... .........11 Google Does Not Receive A Financial Benefit Directly A ttributab l e T a All eged Infringing Activity On BIogger ............ .........12

221 CONCLUSTON ............................................................................................... .........13

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O 1980 .5 1 3 2412 993 9 3 6. I

^^_ DEFENDANT GOOGI.E'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S

ENTITLEMENT TO SAFE I^ARI30R UNDER 17 U.S.C. § 5I2(c) FOR ITS BI.OGGER SERVICE

1 2 3

TABLE OF AUTHORITIES Page
Cases

4 Anderson v. Liberty Lohby, Inc., 477 U. S. 242 (I986) ................................................................................................ 6 5 Corbis Corp v. Amazon. com, Inc., ^ ................................................ 351 F. Supp . 2d 1090 {W . D. Wash , 2004 ) 6 .7, 11, 12 7 (Cusano v. Klein, 280 F. Supp. 2d 1035 {C.D. Cal. 2003}. ................................................................ .6 8 Field v. Google, 412 F. Supp. 2d 1106 (D. Nev. 2006} ............................................................. ........6 9 10 Hendrickson v. eBay, 165 F. Supp. 2d 1082 (C.D. Cal. 2001 } ......................................................... 1 1 12 s i1 Io Grou ,Inc. v. Veoh Networks, Inc., 586 ^. Supp. 2 d 1132 (N.D. Cal. 2008} ....................................................10, 11, 12 12 13 Metro-Goldwyn-Ma er Studios, Inc. v. Grokster, Ltd.,
S45 U . S . 913 (2005) ........................................................................................ ...... 11

14 Perfect 10, Inc. v. Amazon. corn, Inc., 508 F.3d 1146 (9th Cir. 2007) ...........................................................:........... ...... l 1 15 16 Perfect 10, Inc. v. CCBiII LLC, 488 F.3d 1102 (9th Cir. 2007) ........................................................................ .... 7, 9 17 Perfect 1 D, Inc. v. Visa International Serv. Assn., 494 F.3d 788 {9th Cir. 2007) ......................................................................... ...... I2 18' 19 Rivera v. Anaya, 7 26 F . 2d 564 {9th C i r. 1984) .......................................................................... ........ 6 20 UMG Recordings, Inc. v. Veoh Networks, F. Supp. 2d , 2008 WL 5423841 (C.D. Cal. 2008) ...................................9 2I 22 Statutes 23 24 Rules 25 26 27 28
u 19$0.51322993936. ] ^1_

17 U.S.C. § 512 ...................................................................................................passim

Fed. R. Civ. P. 56(b) ....................................................................................................6

DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDCR 17 U.S.C. § 512{c} FOR ITS I3LOGGER SERVICE

1 2 3

MEMORANDUM OF POINTS AND AUTHORITIES
Preliminary Statement

Google ' s "Blogger" Service allows users to create and post content hosted on

41 Google servers . Perfect 10 ("P 10") has alleged various direct and secondary copyright infringement claims against. Google based on Blogger content . There are ^ no material facts for trial regarding whether P10 may pursue its claims based on ^ Blogger content , because Google qualifies for safe harbor under Section 5 I2(c) of the Digital Millennium Copyright Act ("DMCA"). As a threshold matter, P10's 9 defective notices were insufficient to confer knowledge of copyright infringement,

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and summary judgment in Google ' s favor should be granted an this basis alone. Moreover , Google expeditiously processed P 10's notices to the fullest extent

12 possible , removing allegedly infringing material displayed on Blogger, and 13 enforcing its repeat infringer policy for Blogger account holders. Because P10 has 14 not raised a triable issue of fact regarding Google's satisfaction ofthe statutory 15 requirements for this safe harbor, Google 's motion for summary judgmenl : on this

16 basis should be granted.
17 18 !I. 19 Statement of FactsZ GOOGLE'S BLOGGER SERVICE Google provides a service , known as Blogger, that allows Blogger account

20 holdersa to create their own blogs hosted on Google servers. See 21 www.blogspot.catn; Declaration of Shantal Rands Poovala ("Poovala Dec.") ^ 26.

22 Blogger account holders create and post content on their blogs, including images. 23 ^ Id. In some cases , images displayed on Blogger are uploaded by the account holder 24 25 26 27 28
01980 . 513207943436.1

a

Google respectfully refers the Court to pages 6-16 of its Search Motion, which recite the facts common to both motions.

-1DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S
ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. § 5 ] ^(c) FOR IT5 BLOGGER SERVICE

1 ^^ to Google's servers, and in other cases the account holder hyperlinks to content 2 hosted on other sewers. Id.^ Bloggel· web pages are crawled and indexed by 3 Google {and may appear in search results) unless the blog author requests to be 4 excluded from that process or Google removes such content from Blogger for policy S reasons . Declaration of Paul Haahr (" Haahr Dec ."} ¶¶ 4, 16. 6 II II. 7 P10'S RELEVANT ALLEGATIONS AGAINST GOGGLE P10 alleges that Google is directly and secondarily liable for copyright

S infringement based upon Google's hosting of allegedly infringing images uploaded 9 by third parties on Google' s Blogger service . Second Amended Complaint 28. 10 III. I1 GOOGLE'S DMCA POLICY AND PROCEDURE FOR BLOGGER
Google has a DMCA policy and procedure for processing DMCA notices

12 directed to Blogger content , published at 13 htt alwww. oo le.comlblo er dmca . html. Poovala Dec., Ex . G. For a Blogger 14 DMCA complaint, Google directs complainants to identify in sufficient detail the 1S copyrighted work allegedly infringed by providing a brief description of the work I6 and the complete URIa or other location where the work can be found. Google I7 needs this information to veri°ify the complaint . Id. ¶ 29. Google also directs 18 complainants to identify the location of the allegedly infringing material on a 19 Blogger site so that Google can locate it. 1'd. ^ 30. To identify the location, the 20; copyright holder must provide either {I) the URL for the tap-level domain of the 21 blag along with the date of the blog entry at issue, or (2} the specif c URL far the

22 particular blog post -- known as the pea·malinlc or " post URL." Id. 23 24 3 Blogger "account holders" are third parties who use Google's Blogger service to 2S create and maintain blogs, which are personal websites they can easily update with 26 9 To the extent Google links to such content as opposed to hosting it, the Section 27 S 12(d) safe harbor applies, and Google is entitled to summary judgment on that
basis regarding P10's Blogger claims. See Search Motion. text and links to other content on the Internet.

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D 148D .5 ] 32D/2993936, ]

DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. y 51 Z{c) FOR ]TS )SLOGGER SERVICE

1

Google expeditiously processes the DMCA notices it receives regarding its

2 Blogger service . Poovala Dec. ^ 31.5 When a notice is received , it is entered into 3 an electronic Blogger " queue" for tracking purposes . Id. ^ 32 . The notices are 4 reviewed by members of Google ' s _ team responsible far processing S Blogger DMCA complaints to confirm that they contain the required information. 6 ^ Id. If a notice does not contain the required information , Google asks the 7 complaining party for more information . Id. Once the notice is verif ed, Google 8 ^ expeditiously removes infringing image ( s), and notifies the Blogger account holder 9 of the DMCA complaint . Id. ¶ 33. Google sends any counter - notifications received 10 to the party that originally complained . Icy' ^ 3S. If, within fourteen days of learning 11
of the counter - notification , the complaining party fails to notify Google that it has

12 filed a lawsuit, Google reinstates the image(s). Id. I3 N. 14' GOOGLE'S REPEAT ^NFR^NGER 1'OL><CY Google has and enforces repeat infringer policies for all products or services

1S with "subscribers or account holders ," as required by the DMCA. Poovala Dec. ^ 161 36. Google ' s Blogger service is one such service. The terms and conditions for 17 Blogger advise account holders that they are not permitted to display copyrighted 18 material unless they have the legal right to do so, and that their accounts may be 19 terminated far violating Google's policies. Id. ¶ 26, Ex. F. Google tracks the

20
21 22 23 24 2S

DMCA notices processed regarding a particular account, and terminates the account following receipt of -verified DMCA notices. Id. '^ 37, Ex. J.

Google's DMCA policy instructs that Blogger notices should be sent to the 26 attention of Google' s Legal Support for Blogger DMCA Complaints. Blogger 27 notices generally are not processed by the same members of the ® team that process Web and Image Search DMCA complaints. Poovala Dec . ^¶ 31-32.

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01980 .51320I^993936. E

_^_ DEFENDANT GOOGLE'S NOTICE OF MOT10N AND MOTION FOR SUMMARY JUDGMhNT R^: GOOGLE'S

ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. ^ 512(c) FOR ITS I3LOGGER SERVICE

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i v.

PIO'S DEFECTXVE DMCA NOTICES A full discussion of P10's DMCA noticesb, and their numerous defects, is set

3 ^ forth in Google's Search Motion at pages 7-11 (incorporated herein by reference). 4 Pursuant to 17 U.S.C. § 512( c}(3}(B){ii), GoogIe repeatedly advised P10 of

5 the various defects that hindered or precluded GoogIe from completely processing 6 ^ its notices . See Search Motion at 11-12; Poovala Dec. ^^¶ 56-73 & Exs. S-EE. At no 7 time did P 10 respond to Google's letters by resubmitting its notices in an intelligible 8 and DMCA-compliant format. Poovala Dec. ^ 74. 1n short, P 10's notices 9 consistently failed to identify the work at issue and the location of the infringing 10 content {among other defects). See Search Motion at 7- l I . 11
Warne, P I O's

obfuscatory and burdensome notices, coupled with its refiisals to correct the noted

12 defects, suggested that P 10 had little interest in actually removing links to content 13 from Google's search results or any other service, including Blogger. See id. at l I14 15
12.

Not one of P 10's notices was sent to the attention of Google's Legal Support

16 ^ for Slogger DMCA Complaints, as directed by the Blogger DMCA policy at 17 http:llwww.goagle.comlblo^ger dmca.htmI. Poovala Dec. ^( 93. Nat one of P 10's 18 notices contained the information necessary for GoogIe to locate allegedly I9 infringing material on a Blogger site, namely the post URL or date of the blog entry. 20 1"d. Nonetheless, Google identified Blogger URLs where possible and treated these 21 22 as notices for the Blogger service. Specifically, Google's review of P 10's notices revealed that 16 of them

23 ^ identified discernable URLs associated with Blogger websites as the allegedly 24 25 6 For ease of reference, Google refers to P10's DMCA communications as "notices." However, Google does not concede that these communications 26 constituted valid notices of copyright infringement pursuant to the DMCA. Nor 27 (footnote continued) 2$
O 198US 130/2493936, l

-4DEFENDANT GOOGLE'SNOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S
ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. ^ 512{c} FOR ITS BLOGGER S) RVICI

1

infringing URLs in question.' All but two are among the Group B Notices

2 ^ discussed in Google's Search Motion , and were sent in the same format as the other 3 notices in that group. 1'd. One of the two Group C Notices (dated July 2, 2007) 4 ^ included Blogger URLs buried in the two accompanying DVDs , each of which was 5 ^ comprised of thousands of pages of allegedly infringing material . Id. ¶¶ 86-57, Ex. 6 ^ N4. As referenced above, each of P 10's notices contained multiple defects, as set 7 ^ forth in detail in Google's Search Motion . See Search Motion at 7-11. The same 8 failure to identify the works at issue and the location of the infringing materials 9 plagued all of the Blogger-related notices within Groups B and C. 10 VI. 11 GOOGLE ' S PROCESSING OF P10 ' S NOTICES Although P 10's notices identifying Blogger URLs were (1) buried among

12, Web Search and Image Search notices , (2) missing the information required to 13' ^ locate the infringing materials , and (3 ) otherwise non-compliant with the DMCA's 14 '. requirements ( as discussed in the Search Motion at pages 7-11 }, Google's 15 team expeditiously processed them for Blogger , to the extent possible.
16

Specifically , as Gaogle's ®team processed the notices for Web and

17 ^ Image Search, the team scrutinized them for any references to Blogger websites, as 1$ reflected by a "blogger. com" or "blogspot.com " domain name. Poovala Dec. ^ 93. 19 The -team then forwarded all such URLs to the Blogger team for further 20 processing . Id. The Blogger team removed the offending blog post and/or image 21 22 23 24 25 does Google concede that the URLs identified by P10 as "infringing URLs" in its claimed notices were actually infringing.

wherever the identity of that post and/or image could be discerned (given P 10's failure to provide the specific post URL), noted a strike against the account holder

' The notices identifying discernable Blogger URLs are dated February 7, February 26 17, April 3, April 11, June 12, June 19, July 16, July 26, August 30, September 27, December 7, December 22 and December 23, 2005 , February 13, 2006, July 2, 27 2007, and June 4, 2009 (attached as Exhibits L and N to the Paavala Dec.}.
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0 ] 984. 51320!2993936. I
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DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'5 ENTITLEMENT TO SAFE I-IARI30R UNDI R l7 U.S.C. y 512(c} FOR ITS SLOGGER SERVICE

1 2 3 4 5 6
Summary Judgment Standard

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

7 ^ summary judgment on all or part of a claim," or on an aff rmative defense. Fed. R. 8 Civ. P. 56{b); Rivera v. Anaya, 726 F.2d 564, S66 (9th Cir. 1984). The moving 9 ^ paT-ty must demonstrate the absence of a genuine issue of >:natcrial fact for 10 trial. Anderson v. Liberty Lohhy, Inc., 477 U.S. 242, 256 (1986). The opposing 11 party "may not rest upon the mere allegations or denials of the adverse party's 12 pleadings, but the adverse party's response, by aff davits or as otherwise provided in 13
[Rule 56], must set forth specific facts showing that there is a genuine issue for

14 trial". Cusano v. Klein, 280 F. Supp. 2d 1035, 1038 (C.D. Cal. 2003). 1S 16
Argument P10's allegations of copyright infi·ingen^ent directed to Goagle's Blogger

17 service fall within the DMCA' s subsection {c}, which provides safe harbor against 18 claims of infringement " by reason of the storage at the direction of a user of 19 material " residing on a service provider's system or network . 17 U.S.C . § 512(c}. 20 P 10's defective notices failed to confer knowledge of infringement upon Google, but 21! even if they had, Google responded to the fullest extent required, entitling Google to 22 safe harbor. 23 I. 24 2S GOGGLE MEETS THE DMCA'S THRES^IOLD RE UIREMENTS
Google incorporates by reference the arguments in its Search Motion at pages

17-1 S, establishing that Google meets the DMCA' s threshold requirements , and will

26 only summarize them here. 27 It is beyond dispute that Google is a "service provider" as defined by the 17 U.S.C. § 512{k}{i}(B} {defining service provider as "a provider of

2$ DMCA
0 1980 . 5132D12993936. I

-vDEFT;NDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY 1UDGM>;NT RE: GOOGLE'S ENTITL}rMENT TO SAFE HARBOR UNDER 37 [1.S.C. § 5 i2(c) FOR ITS BLOGGER SERVICE

^ online services or network access , or the operator of facilities therefor"); see Field v. ^ Google, 412 F. Supp. Zd 110b, 1125 (D. Nev. 200b}; Corl^is Copp. v. Amazon. com, ^ Inc., 3S 1 F.Supp . 2d 1090 , 1098 (W.D . Wash . 2004 } (definition of "service provider" ^ is broad encompassing a variety of activities}. Further, the undisputed evidence establishes that Google has a working DMCA notification system for Blogger. Google also has a designated agent for receiving notifications of claimed infringement . Poovala Dec., Ex. A; Declaration of Rachel Herrick I{assabian
("Kassabian Dec."}, Ex. G. Google publishes detailed instructions explaining what information Google needs to process a DMCA notice directed to Blogger , and how

la and where the notice should be submitted . Poovala Dec . ¶^ 27-31. If a Blogger 11
DMCA notice is def dent, Google requests the additional information needed to

12 process the notice . Id. ^ 32. Google has a procedure for processing DMCA notices 13 that includes verifying the complaints , ensuring that offending content is removed, 14 and tracking its processing efforts. Id. ^^ 27-35. 15 ', Further, Google' s Blogger service has a reasonably implemented repeat

16' infringer policy "that provides for the termination in appropriate circumstances of 17 subscribers and account holders ." 17 U.S.C. § S 12(i)(1)(A); PeNfecl 10, Inc. v. 1$ ^ CCBiII LLC, 4S8 F.3d 1102, 1109 {9th Cir. 2007); Poovala Dec. ^ 37. Finally, 19 Google does not prevent copyright owners from collecting information needed to 20 issue a DMCA notice, and does not interfere with any known " standard technical 21 22 measures ." Poovala Dec .'s 39; Haahr Dec. ^ 18. Having satisfied the threshold conditions of eligibility , Google is entitled to

23 seek safe harbor under the DMCA. 24 IL 25 GOGGLE IS ENTYTLED T4 SAFE T^ARBOR UNDER §_^1zLC^ Google is entitled to safe harbor under the DMCA ' s Section S 12(c) with

26 respect to P 10's Blogger-related claims . Section S 12(c} provides safe harbor for a 27 service provider storing allegedly infringing material an its system or network at the 28 direction of users, if the service provider:
01980 . 5 i 32012993936. l

DEFENDANT GOOGLE'S NOTICE OF MOTION AND MO'C10N FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR rJNDER 1'7 U.S.C. $ S!2(c) FOR ITS BLOGGER SERVICE

1 2 3 4 S 6 7 8 9 10 11 12

(1){A) does not have actual knowledge that the material ... is infringing; (B} in the absence of such actual knowledge, is not aware of facts
or circumstances from which infringing activity is apparent; or

(C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material; {2} does not receive a financial benefit directly attributable to the infi·inging activity, in a case in which the service provider has the right and ability to control such activity; and {3} upon notification of claimed infringement [via a valid DMCA notice], responds expeditiously to remove, or disable access to, the material that is claimed to be infringing ....

I3 ^ I7 U.S.C. § S 12{c)(1){A}-(C). Google meets this test. 14 1S A. P10 's Defective Notices Failed To Confer Any ^nowled^e,

None of P10's notices conferred knowledge of infringement of P10's

16 ^ copyrights via Google' s Blogger service . Not a single one of P 10's notices was 17 directed to Blogger pursuant to GoogIe's published policy for that service. Rather, 18 as noted above, the Blogger URLs were buried within the notices directed to Web 19 and Image Search. Google only identifled them by scrutinizing P10's Web and 20 Image Search notices for any references to BIoggez· websites, as reflected by a 21 22 "blogger.com" or "blogspot.com" domain name. Poovala Dec. ¶ 93.
Regardless, even if P 10's notices directed to Google's Search services could

23 somehow be imputed to Blogger, those communications did not confer any notice of 24 infringement whatsoever. See Search Motion at 19-23.g None provided the specific 2S' 26 s A complete discussion of the defects in the Group B and C Notices, including 2^ those in which certain Blogger URLs were buried, is set forth in Google's Search Motion and incorporated herein by reference. See Search Motion at 7-11. 28
01980.5132Dl294393b.1

-o_ __ __ _ DEFENDANT GOOGLE'S NOTIC> OF MOTION AND MOTION FOIL SUMMARY .IUDGMFNT R>;: GOOGLE'S

ENTITLEMENT'r0 SAFE I-[ARBOR UND)aR 17 iJ.S.C. § S ]2(c) FOR i1'S BLOGGBR SERVICE

1

information necessary for Google to locate the allegedly infringing material on a

2 ',I Blogger site . Poovala Dec. ^ 93. Instead of following Google's DMCA policy by 3 identifying the post URL at which the alleged infringement could be found, P 10 4 routinely provided the top level URLs for the blog ( such as 5 elmanaba.blogspot . com), without reference to a date of the post at issue. These 6 URLs were insufficient because they typically displayed multiple images contained 7 in multiple posts . See e.g. id. Ex. JJ. 8 This deficiency was compounded by P I O's failure to identify the work

9 infringed at the URL provided . For example , P 10 repeatedly identified 10 "perfectlO . com" as the infringed work. Processing this "notice" would require 11 Google to review each blog and compare it to all 15,000 + images displayed at

12 perfectl0 . com in hopes of finding a match . Under the DMCA, this is P10 ' s burden, 13 not Google's . CCI3ill, 488 F . 3d at 1112-13. Moreover , P10's URLs for Blogger 14 were often incomplete , thereby thwarting Google's ability to Iocate the blog itself, 15 let alone any infringement on the blog. See Poovala Dec., Ex. L28. 16 Thus, P10' s notices conferred no knowledge of any infringements via any of

17 Gaogle's services , including Blogger . See 17 U.S.C. ^ 512(c)(3}{B} (defective
1$ 19 DMCA notices cannot be considered in determining whether a service provider has actual or apparent knowledge of infringement}; CCI3il1, 488 F . 3d at 1113 {defective

2p; notice does not impute knowledge of infringement ). As this Court has observed, the 211 "'notice and take-dawn ' procedure is a forl-nalization and refinement of a cooper°ative 22 process that has been employed to deal efficiently with network-based copyright 23 24 infringement ." UMG Recordings, Inc. v. Veoh Nettivorhs, F. Supp . 2d , 2008

WL 5423841, *9 {C.D. Cal. 2008) {Mats, J.) (quoting S. Rep. 105-190, at 4S}

25 (emphasis added ). P10 utterly failed to moot its obligations under this cooperative 2b process. 27 28
O1980 ,51320IZ993936.[

DIwFENDANT GOOGLE'S NOTICE OF MO"PION AND MOTION I:OR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 [1.5.C. ^ 51?(c} [^OR IT5 BLOGGER SERVICE

1 2

B.

Goo le Ex editiousl Processed P10's Defective Notices

Although P10' s notices fell far short of the DMCA' s requirements , Google

3 went beyond what the law requires to process them. Specifically , as Google's 4 - team processed the notices for Web and Image Search , they scrutinized 5 them for any references to Blogger websites, as reflected by a "blogger . com" or 6 "blogspot . com" domain name . Poovala Dec . ¶ 93. The _ team forwarded 7 ^ all such URLs to the Blogger team for further processing. Id. 8 The Blogger team removed the offending blag post and/or image wherever

9 ^ the identity of that post and/or image could be discerned (given P 10's failure to 10 provide the specific post UItL}, noted a strike against the accaunt holder who had 11 posted the material, and terminated the account where appropriate, pursuant to

12 Blogger's repeat infringer policy. Poovala Dec. ¶ 93. 13 14 1S
Google's processing efforts were expeditious, especially in light of the

16 ^ severity of the defects in P 10's notices and P 10's staunch refusals to correct those 17 ^ defects . Poovala Dec. ¶^^ 85 , 93; see also Search Motion at 23-24. Thus, even if the 18 ^ Court were to find P 10's notices Buff dent (which they are not), Google 19 ^ expeditiously responded to them. 20 III. 21 22 23 GOGGLE DOES NOT HAVE THE RIGHT AND ABILITY TO CONTROL NOR DOES IT RECEIVE A FINANCIAL BENEFIT FROM INFRINGING ACTIVITY Google does nat have the right and ability to control the alleged infringing

24 activity on Blogger, but even if it did, Google does nat receive a financial benefit 25 directly attributable thereto . See 17 U.S.C. § 512 (c){1)(B}and ( d){2). "Both 26 elements must be met for the safe harbor to be denied." Io G^°oup, Inc. v. i^eoh 27 ^ Networks, Inc., S86 F.Supp. 2d 1132, 1150 (N.D. Cal. 2008) (quoting Corbin Corp, 28'.
0 ] 980 .5132Dr1993936.1
- 1 1!-

DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGM>;NT RE: GOOGLE'S ENTITLEMENT TO SAFE 1-IARBOR UNDER 17 U.S.C. § 512(c) FOR ITS IILOGGER SERVICE

1

v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1109 (W.D. Wash. 2004)) (emphasis

2 ^ added). 3 4 5
A. Google Does Nat Have the Right And Ability To Control, Alleged Infringing Activity Of Blogger Account Holders

"A defendant exercises control over a direct infringer when he has both a

6 ^ legal right to stop or limit the directly infringing conduct, as well as the practical 7 ability to do so." Perfect 10, Inc. v. Amazon. com, hzc. , 508 F.3 d 1146, 1173 {9th 8 Cir. 2007) (citing Mety^o-Goldwyn-Mayer Studios, hzc. v. G^°okster, Ltd., S4S U.S. 9 ^ 913, 930 (2005)}. The question is whether the service provider has the right and

to
11

ability to control the infringing activity, not whether the service provider can control its awn system. to Group, 586 F. Supp. 2d at 11 S 1. Thus, a service provider's

12 capacity to remove materials posted on its website or stored on its system does not 13 equate to the right and ability to control infringing activity. Id. at 16-17; see Corhis, 14 351 F. Supp. 2d at 1110; Hendrickson v. e13ay, 165 F. Supp. 2d 10$2, 109394 (C.D. 15 Cal. 2001). 16 For example, into Group, the court found that Veoh's right and ability to

17 ^ control its system by taking down infringing videos (after receiving proper notice} 18 did not equate to the right and ability to control the infi^ingirzg activity of third-party 19'. users, for two reasons. First, there was no suggestion that Veoh aimed to encourage 20 copyright infringement. Second, there was na evidence that Veoh could control the 21' content users chose to upload before it was uploaded. Io Gr°oup, 586 F. Supp. 2d at 22
1152-53; see also Hendrickson, 165 F. Supp. 2d at 1093 (no right and ability to

23 control the infringement where eBay did not have control over pirated items sold on 24 its system. 2S Similarly here, Google has neither the right nor the ability to control the

26 ^ infringing activity of Blogger account holders. Google does not encourage 27 copyright infringement on its Blogger system. Poovala DEC. ¶ 26. To the contrary, 28 the Blogger terms and conditions expressly forbid the uploading of infi·inging
01980 .5132012993936, ] _^ ,_

DIrFENDANT GOOG.LE'S NOTTCT; OF MOTION AND MOTION FOR SUMMARY Ji1DGMENT R>:: GOOGLTa'S ENTITLEMENT TO SAFE T-EARSOR C1ND);R ! 7 1.^.S.C. ^ 512{c) FOR 1TS SLOGGER S1 RVICE

1

copyrighted materials. Id., Ex. F; Io Group, 5S6 F. Supp . 2d at 1143-44. Nar is

2 there any evidence that Google could control the content Blogger account holders 3 choose to upload before it is uploaded . Io Group, 586 F. Supp . 2d at 1 I53. All 4 Google can do is remove infringing material posted on Blogger upon receipt of a 5 DMCA-compliant notice. This is insufficient to establish a right and ability to 6 control the allegedly infringing activity as a matter of law. to Group, 586 F. Supp. 7' 2d at 1151; Corbin, 351 F. Supp. 2d at 1110; Hendrr'clcson v. el3ay, 16S F. Supp. 2d 8^i at 1093-94. Indeed , to hold otherwise would eviscerate the DMCA' s safe harbor 9 protections by imposing liability on service providers for the very act of complying 10 with the DMCA's provisions in taking down infringing content . Io Group, 586 F. 11 12' 13 14 Supp. 2d at 1151.
B. Goo le Does Not Receive A Financial Benefit Drr·ectl

Attributable To Alle ed Infrin in Activi

On Blo er

Because Google lacks the right and ability to control the alleged infringing

15 ^ activity, it need not show that it does not receive a financial benefit directly 16 attributable to it. See Perfect I0, Inc. v. Visa International Serv. Assn., 494 F.3d 17 788, 806 {9th Cir. 2007) (declining to address financial benefit an an appeal from 18 dismissal because there was no right and ability to control); Io Group, 586 F. Supp. 19 2d at 1150 (same). Nevertheless, even if Google had to make such a showing, 20 Google receives no such benefit. Google does not charge Blogger account holders 21! to host their blogs. Poovala Dec. ^ 26. Because infringing and non-infringing users 22 ^ pay the same thing--nothing -to use the Blogger service, the direct financial 23 benefit test is not met. See Search Motion at 24-25 (citing H.R. Rep. 105-551(lI), at 24 54) (Kassabian Dec. Ex. E). 25 26 27 28
01980.5 1320R99393G. I

-^G_ DEFENDANT GOOGLE'S NOTICE 0^' MOTION AND MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S

ENTITLEMENT TO SAFE HARBOR UNUI:R 97 U.S.C. y 512(c) FOR ITS BLOGGER SERVICE

1 2

Conclusion There is no material fact left for trial regarding whether Google is entitled to

3 safe harbor under Section 512{c) regarding P10's Blogger - related copyright 4 infringement claims . Google respectfully requests that the Court grant it summary 5 judgment on this basis. 6 DATED: July 2, 2009 7 8 9 1a I1 12 13 14 15 16 17 18 19 20 2i 22 23 24 25 26 27 28
D 3 98D. 5 ] 32Dl2993936.1 - i _^_
B ^" !^ "'' C- ^r^r ,f d^'.e: t 1. ^ r. ^^

QU1NN EMl1.NUEL URQUHART QLIVER & HEDGES, LLP
:^r-1...)^fc:: ^jr
rr
r^_.

yMichael Zeller Rachel 1-lerrick Kassabian Attorneys for Defendant G^C^GLE TNC.

DEFENDANT GOOGLE'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE I-(ARBOR UND>;R 17 U.S.C. ^ 512(c} FOR ITS E3LOGGER SERVICE