Perfect 10 Inc v. Google Inc et al

Filing 428

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(d) For Web And Image Search [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. 428

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller Bar o. 196417} michaelzeller ^ aul,nnemanuel.com 2 8^5 Sou^gueroa treet , 1 door Los Angeles, California 90017-2543 3 Telephone: [phone] Facsimile : 213) 443-3100 4 Charles K. erhoeven .( Bar No . 170151 } 5 50Zali^ornia^treet, 22""Moor San Francisco ? California 94111 6 Rachel Herrick Kassabian ( Bar No. 191060) 7 S 5 5^ Twin 8 9 10 11
rachelkassabian (cr^,guinnemanuel.com o p in rive, cite 5 ^Redwood Shores , California 94065 Attorneys for Defendant GOGGLE INC. charlesverhoeven (a^gu nemanuel.com

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'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 51Z{d FOR WEB AND IMAGE EAR H Separate Statement, Declarations of achel Herrick Kassabian, Sibrina Khan, Bill Brougher, Shantal Rands Poovala and Paul Haahr filed concurrently herewith]
Hon. A. Howard Matz

PERFECT 10, INC., a California 12 corporation, 13 14 15 16 17
vs.

Plaintiff,

GOGGLE INC. a corporation; and DOES 1 throug^i 100 , inclusive, Defendants.

18 AND COUNTERCLAIM 19 20 corporation, 21 22 23
vs. PERFECT I0, INC., a California

Plaintiff,

Date: August 17, 2009 Time: 10:00 a.m. Crtrm.: I4 Discovery Cut-off: None Set Pretrial Conference Date: None Set Trial Date: None Set

AMAZON.COM, INC., a corporation; A9.COM, INC. a corporation; and 24 DOES 1 throug^l 100 , inclusive, 25 26 27 28
Ok980 . 5132012993889.1

Defendants.

PUBLIC REDACTED

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Dockets.Justia.com

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TO ALL PARTIES AND THEIR ATTORNEYS Or 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 hereby 5 does move this Court for summary judgment pursuant to the safe harbor provisions of 6 the Digital Millennium Copyright Act, 17 U.S.C. § 512 {"DMCA") with respect to 7 plaintiff Perfect 10, Inc.'s {"PI O") claims of copyright infringement directed to S Google Web and Image Search.l This motion for summary judgment is made on the 9 grounds that Google satisfies each of the statutory requirements for safe harbor under 10 the governing DMCA provision , I7 U.S.C. § S 12(d). 11
This motion is based on this Notice of Matron and Motion, the concurrently-

12 ^ filed Memorandum of Points and Authorities and Separate Statement, the supporting 13 Declarations of Rachel Herrick Kassabian, Sibrina Khan, Bi11 Brougher, Shantal I4 Rands Poovala and Paul Haahr, the pleadings and other papers an file in this action, 15 and such additional evidence as may be presented at or before the hearing. 16 17 Statem^nt _of Local Rule 7-3 Compliance Google's counsel engaged in the Local Rule 7-3 pre--filing conference with

18 ^ P 10's counsel on November 7, 2008 as well as times thereafter. 19 20 21 22 23 24 25 26 27 28
01980.E 13?DR443884.1

I Under separate covers, Google is filing motions for summary judgment of entitlement to DMCA safe harbor under Sections 512(b) regarding Google's caching feature {"Caching Motion") and 512{c} regarding Google's Blogger service ("Blogger Motion"}. Google respectfully suggests that the Court consider the instant motion regarding Section 512(d} f rst, as it includes a recitation of the facts common to all the three motions, and is incorporated by reference in Google's Caching and Blogger motions. Additionally, to the extent Gaogle's Blogger service and Web Search caching feature function as information location tools under 17 U.S.C. § 512(d), by linking users to content hosted on third-party websites, Google moves for- summary judgment on P10's copyright infringement claims regarding those services and features under Section 512(d) as well.
I 1 F M TI D M TI R MA Y JUD T ENTITLEMENT TQ SAFE HARBQR UNDER 17 U.S.C. §512(d) FOR WEB AND IMAGE SEARCH

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DATED: ruly 2, 2009

QUINN EMANUEL URQUHART OLIVER & HHEDGES, LLP
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a,c ae e er Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

-2DA T L 1 'I ^ R U MA Y JU ENTITLEMENT TO SAFE HARBOR UNDER 17 U. S.C. 5512 (4) FOR WE8 AND IMAGE SEARCH

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TABLE QF CONTENTS P^

3 MEMORANDUM OF POINTS AND AUTHORITIES ...............................................1 4 PRELIMINARY STATEMENT ...................................................................................1 S STATEMENT OF FACTS ............................................................................................1 THE PARTIES ....................................................................................................1 A. B. P 10 .............................................................................................................1 Google ...................................................................................... .2

6 I. 7 8 9 II. 10 III. 11 IZ 13 14 V. 15 VI. 16 17 18 19 VII. IV.

P 10' S RELEVANT ALLEGATIONS AGAINST GOOGLE .......................... .. 3 THE DMCA ...................................................................................................... ..3 GOOGLE'S DMCA POLICIES ........................................................................ ..5 A. B. Google's DMCA Policy And Process For Web Search .......................... .. 5 Google's DMCA Policy And Process For Image Search ....................... .. 6

GOOGLE' S REPEAT INFRINGER POLICY ................................................. .. 6 P10'S DEFECTIVE NOTICES ......................................................................... ..7 A. B. C. Group A: The 2001 Notices .................................................................... .. 8 Group B: The Spreadsheet Notices ...................................... ................... .. 8 Group C: The DVD And Hard Drive Notices..... .................................... ..9

GOOGLE'S REQUESTS FOR DMCA-COMPLIANT NOTICES ................. I 1

20 VIII. GOOGLE'S PROCESSING OF P10'S DEFECTIVE NOTICES .................... I2 21 22 23 24 A. B. C. D. Google's General Approach To The P 10 Notices .................................. 12 Google's Processing Of The Group B Notices ....................................... 14 Google's Processing Of The Group C Notices ....................................... 15 Google ' s Enforcement Of Its Repeat Infringer Policies .... ..................... 15

25 ARGUMENT ............................................................................................................... 17 26 I. 27 28
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GOOGLE MEETS THE DMCA'S THRESHOLD REQUIREMENTS .......... 17 A. B. Google Is A Service Provider ....... .......................................................... 17 Google Has An Appropriate Repeat Infringer Policy ............................. 17 ->-

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11 21 II.

C.

Google Does Nat Interfere With Standard Technical Measures ............ 18

GOGGLE IS ENTITLED TO SAFE HARBOR UNDER SECTION 512(D) ................................................................................................................ 19 A. PIO's Defective Notices Failed To Confer Any I^nowledge .................. 20
1. The Group A Notices Arc Irrclc^ant ........................................ 20

2. 3. 7 8 III. 9 10 11 12
B. B.

The Group B Notices Did Not Confer Knowledge ................... 20 The Group C Notices Did Not Confer Knowledge .................. 22

Google Expeditiously Processed P 10's Defective Notices ..................... 23

GOGGLE DOES NOT HAVE THE RIGHT AND ABILITY TO CONTROL THE ALLEGED INFRINGING CONDUCT, NOR DOES IT RECEIVE A FINANCIAL BENEFIT ATTRIBUTABLE THERETO....... 24 A.
Alleged Infringing Activity ..................................................................... 24 Google Does Not Receive A Financial Benefit Directly A t tr ib u t a bl e To Th e All ege d I n fr i ng i ng A c ti v ity .................................... 25

Google Does Not Have The Right And Ability To Control The

13 CONCLUSION ............................................................................................................ 2 5 14 15 16 17 18 I9 20 21 22 23 24 25 26 27 28
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) NTITLEMENT TO SAKE HARBOR UNDER 17 U.S.C. ^512(d) ]^OR WEB AND IMAGE SEARCH

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TABLE OF AUTHORITIES
P_ age Cases

Anderson v. LibeYty Lobby, Inc., 477 U . S . 242 (I986) ......................................................................................... ....... I6

S Arista Records, Inc. v. Mp3Board, Inc., 2002 WL 1997918 ( S.D.N.Y. 2002} ............................................................... .......20 6 COY b lS COY p . v . Amazon . co m, Inc., ^ 7 3 S 1 F . Supp . 2d 1 090 { W . D . W as h . 2004 } ...................................................... , 17 , 24 8 Cusano v. Klein, 280 F. Supp . 2d 1035 {C.D. Cal. 2003) ........................................................... .......16 9 Ellison v. Robertson, 10 3 S 7 F.3 d 1072 ( 9th Cir. 2004) ......................................................................... ......... 4 11 12 13 Field v. Google, 4I2 F. Supp. 2d 1 l06 (D. Nev. 2006},.... .........................,............................... ...9, 17 Hendrickson v. EBay Inc 165 F. Supp . 2d 1082 (C.D. Cal. 2001) ........................................................... ... 4, 24

14 Io Group, Inc. v. Veoh Networks, Inc., p 586 k^ . Supp . 2 d 11 3 2 { N . D . C a l . 2008 ) ........................................................... . 24 , 25 15 Lenz v. Universal Music Corp p 16 572 F . Supp. 2d 11 SO {N.D . Ca l . 20 0 8 } ........................................................... ......... S 17 Perfect 10, Inc. v. Arnazon. com, Inc., 508 F.3d l l46 ( 9th Cir . 2007 ) ........................................................................ ... 2, 24 18 Perfect 10, Inc. v. CCI3ill LLC, 19 488 F . 3 d 1102 ( 9th Cir . 2007 ) ......................................................................... passim 20 Perfect I0, Inc. v. Visa Intl Serv. Assn, 494 F.3d 788 {9th Cir. 2007 ) ........................................................................... . 24, 25 21 y Rivera v. Anay a, 22 726 F . 2d 564 (9th Cir . 1984} ........................................................................... ....... 16 23 24 2S 26 27 28
01984.5 E 32012993884. l

UMG Recordings, Inc. v. Veoh Networks, , 2008 WL 5423841 ( C.D. Cal . 2008} ............................. ....... 22 F. Supp . 2d Statutes 17 U.S.C. § 507 ............................................................................................................20 17 U.S.C. § S 12 .................................................................................................... passim
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1 2 Rules

3 Fed. R. Civ. P. 56(b) ....................................................................................................16 4 S 6 7
Other Authorities

144 Cong. Rec. 108 (199$}........ ................................................................................3, 4 144 Cong. Rec. 61 { 1998} .............................................................................................. 3

8 H.R. Rep. No. 105-SS 1(II} .....................................................................................23, 25 9 10 11 12 13 I4 15 16 17 18 19 20 21 22 23 24 2S 26 27 28
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ENTITLEMENT TO SAFE HARBOR UNDER l7 U.S.C. §5 ] 2(d) FOR WEB AND IMAGE SEARCH

MEMORANDUM OF POINTS AND AUTHORITIES
Pwelimnar^y Statement

Congress enacted the Digital Millennium Copyright Act {"DMCA") to protect J and promote free enterprise and free speech on the Internet. Concerned about the impact of service provider liability on Internet access and free speech, Congress 6 established the safe harbor provisions of the DMCA to shield service providers from 7 claims of infringement based on providing information location and content hosting 8 services, among other activities. The DMCA's notice requirements establish that 9 service providers are not expected to police the Internet for claimed copyright
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infringement, but are expected to respond to proper notices by copyright owners. The notice requirements are indispensable to the statute's protection of technological development, corr>lnerce and free speech. There are no material facts for trial regarding whether Google qualifies for safe

harbor under Section S 12{d} of the DMCA. It does. Perfect 10, Inc. ("P 10"} delivered to Google burdensome, abusive, repetitive and incomplete notices that were hopelessly defective under the DMCA, and worse, appeared to be designed to advance a strategic litigation objective rather than secure actual DMCA takedowns. Although the notices were inadequate and thus failed to impose any obligation on Google under the DMCA, Google nevertheless went beyond what the law requires in a good faith effort to process them. Accordingly, Google is entitled to DMCA safe harbor, and should be granted summary judgment on P10's copyright infringement claims regarding Web and Image Search.
Statement of Facts

TIIE PARTIES

A.

Plo

P10 alleges that it creates, licenses and sells copyrighted adult entertainment products, including photographs, magazines and a website. Second Amended
,I, D M TI >r R UMMARY JUD ML- T RE: AN L ENTITLEMENT TO SAFE 1-IARBOR UNDER 17 U.S.C. y5 f 2(d) ^'OR WEE3 AND IMAGE SEARCH

2$ Complaint ¶¶ $-10. P10 has pursued litigation against a wide variety of parties, but
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1 has focused its litigation efforts on companies such as Google , Amazon, Microsoft 2 and CCBiII , rather than the parties who have actually made copies of P10 images 3 ^^ available on their websites . In one of those cases , the court has addressed the 4 inadequacies of P10 ' s notices. See Perfect 10, Inc. v. CCBiII LLC , 48$ F.3d 1102, 5 6 7 11 I3 (9th Cir. 2007}.
B. _ oogle G

Google operates the world's most popular Internet search engine. Declaration of Bill Brougher ("Brougher Dec."), ^ 2 , Google has indexed billions of web pages

9 on the Internet. Id. ¶ 3. As the Ninth Circuit has recognized, Google offers a 10 valuable information location service to the public for free. See Perfect 10, Inc. v, 11 Amazon.com , Inc., 508 F . 3d 1146 , 1165 (9th Cir . 2007). 12 Google uses an automated software program , known as a web crawler or the

13 "Googlebot ," to obtain copies of publicly available web pages for use in its search 14 index . Brougher Dec. ¶ 4 . For Image Search , Googie ' s search engine compiles an 15 index of the text associated with each image crawled , which is in turn associated with 16 a particular " thumbnail " image . Id. When a user enters a query, the search engine 17 searches the relevant index and delivers the links ( for Web Search ) or thumbnails (for 18 Image Search ) that aid the user in identifying and locating the third-party content 19 most relevant to the search . Id. ¶ 5. Although Google crawls and indexes billions of 20 web pages , it does not crawl or index all web pages . For instance, web pages hosted Ill on seltiers with a robot exclusion .txt file, which instructs robots not to crawl or index 22 those web pages , are not crawled and indexed by Google. Id. ^ 4. Google also does 23 not crawl or index websites that are accessible only by password . Declaration of Paul 24 Haahr {"Haahr Dec.") ^ 14. Not all websites in the Google index will appear in the 25 ^ search results. Haahr Dec. ¶¶ 4, 11. Google regularly blocks links to content 26 (including thumbnails } from search results for policy and Iegal reasons , including a 27 valid DMCA notice . Id. ¶¶ 4, 11. 28
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PIG 'S RELEVANT ALLEGATIONS AGAINST GOGGLE P 10's main claims are directed to Web and Image Search. P 10 contends that

3 Google directly infringes P10's copyrights by making thumbnail copies of images 4 ^ that are available on third-party Internet sites and displaying those thumbnails in 5 ^ Image Search results. Second Amended Complaint ^ 26(a), (b}. P I 0 also alleges that 6 ^ Googie is secondarily liable for copyright infringement for (1 }allowing users to see 7 full-size images of P 10's copyrighted works hosted or displayed by third parties (id, ^ 8 26{c)); (2) linking users to allegedly infringing copies of P 10's images hosted or 9 displayed by third pa>,·fies (id. ¶ 26(d)); and (3) linking to third-party sites with names la o>- passwords allegedly permitting access to perfectl O.com (Id. ¶ 26(e)}. 11 12 III. THE DMCA The DMCA reflects Congress' careful balance between the rights of copyright

13 ^ holders and the rights ofcitizen-consumers on the Internet. See 144 Cong. Rec. 108, 14 ^ H7092 ( 1998}) {statement of Rep. Coble ) (attached to the Declaration of Rachel 1S ^ Herrick Kassabian ("Kassabian Dec.") as Ex. D). Congress enacted the DMCA to 16 ^ "updat[e] the copyright laws for the digital age and prepar[e] a sizable portion of our 17 ^ economy for the next century." 144 Cong. Rec. 61, 54887 (1998) (statement of Sen. 18 Lott} (attached to the Kassabian Dec. as Ex . C }. Congress sought to address the 19 expansion of secondary liability for copyright infringement, which threatened the 20 very "infrastructure of the Internet ." Id. at S4888 (statement of Sen . Ashcroft}. 21 Two recurring concerns were emphasized during the congressional debate.

22 The first was that "if America's service providers aI-c subject to litigation for the acts 23 of third parties at the drop of a hat, they will lack the incentive to provide quick and 24 sufficient access to the Intelnet. " 144 Cong. Rec. 108 , H7095 ( 1998) (statement of 25 ^ Rep. Goodlatte} (Kassabian Dec., Ex. D). Congress noted the potentially disastrous 26 consequences for consumers if search engines become subject to civil liability 27 because they " categoriz[e ] [web pages ] far a directory" or develop other "true
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28 consumer-oriented products." Id. at 54889 (statement of Sen. Ashcroft} Kassabian -3EF L 1 `I'I D N I^ It MMAR JUD M - RE: DA T ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. §S 12(d} FOR WEB AND IMAGE SEARCH L'

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Dec., Ex. C. Congress considered the protection of such web infrastructure " critical

2 ^^ to unlock the potential for the Internet ." Id. at 548$8. 3 The second concern was to safeguard Internet service providers from copyright

4 liability that could threaten free speech on the Internet. Cangress correctly predicted 5 that the Internet would become the forum for individual expression in the 21st 6 Century , and that "an increasingly high percentage of what we say to each other will 7 be electronically transmitted ." 144 Cong. Rec. 108, H7092 ( statement of Rep. Frank) 8 (Kassabian Dec., Ex . D). Unless carefully managed , secondary copyright liability 9 had the potential " to diminish the freedom [ ISPs] felt in presenting things ." Id. Thus,

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the DMCA was structured to avoid " either an incentive or an excuse to censor" on the part of service providers. Id. To address these concerns , Congress created four " safe harbors " that shield

13 certain activities from liability or damages under the Copyright Act. 17 U.S,C. § S 12. 14 The goal was to encourage and "facilitate the robust development and worldwide 1S expansion of electronic commerce, communications , research, development, and 16 education ," by "protect [ ing] qualifying Internet service providers from Liability for all 17 monetary relief for direct, vicarious and contributory infringement ." Hendi°ickson v. 18' EBay, Inc., 165 F. Supp . 2d 1082 , 1088 (C.D. Cal. 2001 ) (quoting S. Rep . No. 10519 20 21 190, at 20); see also CCBiII, 488 F.3d at 1111; Ellison v. Robertson, 357 F. 3d 1072, 1076 {9th Cir. 2004}. Congress made clear that "a service provider need not monitor its service or

22 affirmatively seek facts indicating infringing activity , .. in order to claim [the 23 DMCA's] limitation on liability ." H.R. Rep . No. 105-511 ( II), at S3 ( 1998} (attached 24 to the Kassabian Dec. as Ex. E}; see 17 U.S.C. § 512(m} (codifying same}. The Ninth 25 Circuit has echoed this important precept. CC13ill, 488 F.3d at 1111 ("a service 26 provider need not affirmatively police its users far evidence of repeat infringement 27
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.... Were we to require service providers to terminate users under circumstances -4L 1 M A M 'l I I^ t U M RY J R ENTITLEMENT TQ SAPE I-IARROR CINDER 17 U.S.C. §512 ( d} I,OR WEB AND IMAGE SEARCH L1;

28 other than those specified in § 512(c}, § S 12(c}'s grant of immunity would be

1 ^ meaningless ."). The DMCA places the burden squarely an the copyright holder to 2 provide proper notice to service providers . CCBiII, 488 F.3d at 1113. This means 3 ^ that copyright owners must review each alleged infi·ingement, make a good faith 4 ^ determination regarding whether it is infringing (including considering the possibility 5 ^ of fair use), and submit aDMCA-compliant notice. See id.; Lenz v. Universal Music 6 ^ Corp., 572 F. Supp . 2d 1150, 115556 (N.D. Cal. 2008} . Absent proper notice or 7 actual knowledge of infringement, service providers are under no obligation to 8I^ respond in any fashion. See CCBiII, 48$ F.3d at 1113. 9'. IV. 10 11

GOOGLE'S DMCA POLICIES
A. Goole's DMCA Policy And Process For Web Search

Google publishes information required for DMCA complaints relating to Web

12 Search at http:l/www.google.comldmca.html. Declaration of Shantal Rands Poovala 13 {"Poovala Dec."), Ex. B. For a Web Search DMCA complaint, Google directs 14 ^ complainants to identify the copyrighted work infringed by providing a brief 15 description of it and the complete URL (web address} or other location where the 16 work can be found. Id. ¶ 7. Google also directs complainants to provide the 17 complete URL at which the infringing material is located and the Web Search query 18 that directly links to that web page. Id. ¶ 8. Google needs this information in order to 19 verify the complaint and prevent abuses of the DMCA removal procedure. Id. ¶ 7-8. 20 Without proper notice, Google has na way of knowing which uses a copyright owner 21 regards to be infringing, in contrast to those uses that are licensed, a fair use, or

22 otherwise acceptable to the owner. Id. ^ 15. 1f a URL is incamplete or contains 23 ellipses or misspellings, it hinders Google's ability to locate the materials in question. 24 Id. ¶ 9, Haahr Dec. ¶ 4. 25 Google expeditiously processes DMCA notices using a team of employees

26 ^ charged with processing removal requests. Poovala Dec. ¶^ 11-20. On receipt, 27 notices aI·e entered into an electronic "queue" for tracking purposes, and reviewed to 28 confirm that they contain the required information. Id. ¶¶ 11, 13. if they do not,
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Google asks for more information . Id. ^ 13 If they are complete, the ^ team

2 then compares the copyrighted work to the infringing material . Id. ^ 14. If there is a

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3 match, the team forwards the URL in question to an engineering team responsible for 4 DMCA removals , which then blocks that URL from appearing in Google search S results. Id.; Haahr Dec . ^^ S-b . Google then notifies the complainant of the removal. 6 I Poovala Dec . ¶ 14. Google also notif es the complainant of any counter - notifications 7 received. Id. ¶ 18. If there is acounter-notification , and if the complainant informs Google within ten days that it has f led a lawsuit, the URL will remain blocked. Id. 9 Otherwise , the URL will again be able to appear in search results. Id. 10 11
B. Gao^le 's DMCA Policy And.,Process For Ymage ,_ Search

Google's DMCA policy for Image Search removals is published at

12 http: //www.goo Ie.coin/images _ dmca.html, and is similar to its policy for Web 13 Search . Poovala Dec. ¶ 22.2 Google directs complainants to provide the complete 14 URL at which the infringing material is located , but for Image Search , this requires 1S an image URL. Id. ¶¶ 22-23, Ex. E; Haahr Dec. ¶ 10. Google's policy for lmage 16 Search explains how copyright holders can locate the image URL of an infringing 17' image . Poovala Dec. ¶ 23 & Ex. E. The same image may be displayed on the page 18 actually hosting the image on its servers, as well as on one or more web pages using a 19 hyperIink to the hosted image . Haahr Dec. ^ 10. Again, Google has no way of 20 knowing which uses of an image the copyright owner regards to be infringing, so the 21 owner must identify each infringing web page URL and/or image URL. Poovala

22 Dec. ¶ 1 S. 23 V. 24 GOOGLE ' S REPEAT YNFRINGEI2 POLICY Google ' s Web and Image Search services have no subscribers or account

2S I holders . Haahr Dec, ¶ 17. Webmasters do not "sign up" to have their websites listed 26 27 28
01980 ,51320019938$4. ]

2 Google's handling of Image Search DMCA nalices is similar to the process for Web Search . Poovala Dec . ^ 25; see sacpra Part IV.A.

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^ DEF LE' N TI b M 7' AN M Tl N I^ R UMMARY JUD ME T R -: ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. §5l2(d) I^OR WEB AND {MAGE SEARCH LE'

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in Google's organic search results---websites appear in Google search results if they

2 ^ are crawled by the Googlebot and are relevant to users ' queries. Id. Thus , there aI·e 3 no subscriptions or accounts to terminate pursuant to a repeat infringer policy with 4 ^ respect to Web and Image Search. Qf course, Google has repeat infringer policies for 5 its products and services with account holders, such as AdSense or Blogger.3

6 Pursuant to those policies, Google will terminate account holders following receipt of 7 s verified DMCA notices.4 Even though not required by the DMCA, Google also 8 makes a good faith attempt to enforce its repeat infringer policies even where the 9 notice in 10'' estion is defective or not otherwise directed to those products or services.

12 13 IVY. 14 P10'S DEFECTIVE NOTICES
P 10 purpol-ts to have sent Google 83 DMCA notices.' Kassabian Dec., Ex. L;

IS ^ Poovala Dec., Exs. L & N. In spite of the fact that P I 0 has been advised by the 16 17 s Beyond the fact that Google has such policies, Google does not concede that 18 the enforcement of these policies is relevant to the Section 512{d) analysis, where the 19 information location service itself does not have account holders or subscribers.

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2I lan Ha^ense acco^In>: noluer, or puralisner, places cer^ain cUUe ^n it.s weo pales in order to signal to Google's servers that Google-provided ads should be delivered to 22 that page. See https://www.google.com/adsensellogin/en_US/?sourceid= aso&subid 23 =na-en-ha-bk&utm medium=ha&utm teen=adsense.

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ror ease or rererence, Google rezers co r i v s lilvf^,H ccm^nunica^^crns as "natives." However, Google does not concede that these communications constituted 26 valid notices of copyright infringement pursuant to the DMCA. Nor does Google 27 concede that the URLs identified by P 10 as "infringing URLs" in its claimed notices were actually infringing.

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courts, and by various service providers including Google, regarding the important

2 !^ notice requirements of the DMCA, P10' s notices consistently failed to meet those 3 requirements. As the summary table at Exhibit A of the Kassabian Declaration 4 demonstrates, P10's notices failed to include at least two-and in some cases as many 5 as five-of the sewn required components set forth in the DMCA. Moreover, P 10's 6 obvious strategy has been to impose an impossible burden on Google in the Dope that 7 Google is not able to remove the content at issue, and that P 10 can then sue Google. 8 The format and content of P10's defective notices evolved over time, and are grouped 9 here by their shared characteristics. See gener°al'ly Kassabian Dec., Ex. L; Poovala 10 Dec., Exs. L & N. 11 12
A. Group A: The 2001 Notices

During discovery, P 10 produced seventeen notices from 2001 (collectively, the

13 "Group A Notices"}. Kassabian Dec., Ex. L.s P 10 has conceded that its suit is not 14 based on these alleged notices , so they are irrelevant here . Id., Ex B.9 15 16
B. Group B; The Spreadsheet Noticcs

P 10 sent Google a series of notices in spreadsheet format {hereinafter, the

17 ^ "Group B' Notices"). Each comprised a cover letter or email and athree-column 18 spreadsheet . Poovala Dec. ¶ 42, Ex. L.10 The first column listed infringing URLs, 19. the second listed the corresponding search terms used, and the third listed the 20 copyrighted work at issue. Id. ¶ 42. " Some of the salve URLs were listed multiple 2i 22 23 24 25
g See Kassabian Dec. ^ 13 (listing the dates of the 17 Group A Notices}. 9 Even had P10 not waived any claims based on the Group A Notices, they suffer from a myriad of defects, including failing to identify the copyrighted works at issue, or the UItLs of the infringing material. See Kassabian Dec., Exs. A & L. Moreover, any such claims would be time-barred. See 17 U,S.C. § 507.

1 ° See Poovala Dec. ^ 41 {listing the dates of the 48 Group 13 Notices}. The May 26 31, and dune 1, 4, and 16, 2004 notices did not include a spreadsheet. Id. ¶ 43. ' I Google does not concede that any of the works identified in P 10's notices 27 28
419$4.51320f2993889. ]

actually belong to P 10. Google has yet to receive complete discovery establishing (footnote continued)
_g_ D L I TI A D M I - Et MMARY J R6: ENTITLEMENT TO SAFE HARBOR UNDER ] 7 U.S.C. §512(d) FOR WEB AND IMAGE SEARCH L'

1

times in various Group B Notices. Id. ^ 45, Ex. L. Numerous fields in the

2 ^ spreadsheets were left blank. Id. ¶ 44, Ex. L. 3 The Group B Notices consistently failed.ta identify P 10's copyrighted work at

4 ^ issue. Id., Ex. L. In many instances, the Group B Notices made no attempt to 5 identify any work at all. Poovala Dec. ¶ 44, Ex. L, In other instances, they listed 6 ^ various media containing dozens, hundreds, or even thausands of images-without 7 ^ specifying which of the many images was at issue--such as (1) entire websites like 8i perfectl O.com, amyweber.net and ambersmith.net, (2) multiple pages from P 10 9 Magazine, (3} an unidentified "PerfectI O DVD," and (4) an.unspecified "Perfect 10 10 Model Boxing DVD." Id. 11 The Group B Notices also failed to properly identify the location of the

12 ^ infringing material . The vast majority of tl^e CTRLs listed were web page URLs, but i3 the Group B notices largely failed to include the image URLs that would allow 14 Google to block the hosted image to which other pages had linked. Poovala Dec. ^ 15 46, Ex. L. At many of those web page URLs, multiple images were displayed. Id. 16 Ex. M. Additionally, many of the URLs were incomplete. Id. ¶ 45. 17 18 C. Group C: The DVD And Hard Drive Notices

In December 2005, and from spring 2007 onward, P 10 provided notices with a

19 ^ cover Ietter , a spreadsheet , and aseveral -hundred gigabyte hard drive or DVDs

2a

containing electronic f les ("Group C Notices"), Poovala Dec., ¶ 48, Ex. N.12 The

21 ^ cover letters represented that the accompanying hard drive or DVDs contained 22 ^ infringing copies of P 10 images in various folders. Id. ¶ 49, Ex. N. For at least eight 23 of the eighteen notices, the cover letters acknowledged that P 10 located the infringing

24 images not on Google, but on password-protected "Usenet" sites with which P 10 25 26 P 10's copyright ownership, including all registration, deposit and chain of title 27 documents. Kassabian Dec. ¶ 14. 'Z See Poovala Dec. ^ 48 (listing the dates of the 18 Group C Notices). 28 -9^ 01980 .513200. 2943889, I
I^ R MM RY J R·: L AN M I DA ENTITI.1aMENT TO SATE HARBOR UNDER ] 7 U.S.C. §512{d}TOR WEI3 AND IMAGE SEARGI-I L

1

apparently established accounts . Id. As noted above , Google's search services do not

2 ^ crawl , index or link to the content on password - protected sites. Haahr Dec. ¶¶ 14-15. 3 f In addition , many of the cover letters directed Google to search for the P 10 works at 4 ^ issue amongst P10's entire 15,000 + image collection contained on a hard drive it sent S ^ on June 28 , 2007. Poovala Dec. ¶ S0, Ex. N. 6 The spreadsheets failed to properly identify the location of the infringing

7 materials . The first column listed the top-level URL for various websites without 8 ^ specifying the location within that site of an infringing image. Poovala Dec. ¶ S 1, 9 Ex. N. The second andlor third columns listed only the electronic folder in which the 10 files containing infringing material were saved on the accompanying drive or DVDs. Id 13 The spreadsheets likewise did not identify the corresponding P I 0 images
12

infringed . Instead , the cover letters directed that if Google wished to see and

13 I. ^ compare the P10 images corresponding to each alleged infringement , it had to search 14' for them amongst P10's entire 15,000+ image collection from perfectl0.com, 15 16

contained on a hard drive P10 had sent on June 28, 2007. Id. ^ S0, Ex. N The hard drive and DVDs contained a myriad of nested electronic folders in

17 ^ the form of ( 1) raw image files such as JPEG files, and {2 ) screen shots of Google 18

search results . Poovala Dec . ¶^ S2-S3, Ex. O. None of the raw image files displayed

19 a web page or image URL. Id ^ S4, Ex. P. ^`' Some of the screen shots failed to

20
21

include a complete URL of the page depicted . Id. ¶ S5. Other screen shots appear to

2z

13 Seven of the Group C Notices did not oven include a spreadsheet to guide 23 Google ' s review of the accompanying DVD, but were otherwise the same as the other Group C Noticos. Poovala Dec. ^ 4S, n. 4, Exs. N 1, N2, N 13, N 16, N 17 & N 18. The 24 March 20 , 2007 DVD also included three large folders of extraneous materials which 2S P 10 does not even claim are alleged infringements of P 10 works. For example, Folder 4 contains alleged infringements of songs and movies, none of which P10 26 claims to own . Poovala Doc ., Ex. N2. 14 Many raw image files displayed other companies ' copyright notices ( such as 27 Playboy), and Inay not have even belonged to P 10 . Poovala Dec ., ^ S4, Ex. N3.

28
01980 . 5132D/^993889.1

-10D^ 'I L>J' N 7l F M "I 1 N AN M l l N k· R MMARY JUI^ h I EZI:: ENTITI..EMENTTO SAFE HARBOR iJNDER ]7 U.S.C, §512(d) I^OR WIB AND IMAGE sEARCE-3 L'

1 have been manipulated such that the image depicted could not be found at the YJItL

2

^ depicted. Id., Ex. R. In total, these foldel· s contained aver 70,000 distinct files.

3 Declaration of Sibrina Khan ("Khan Dec."), ^^ 6. Many individual folders contained 4 tens of thousands of pages of screen shots of infringing material . Id. ^¶ 12-17. 5 The hard drive and DVDs were incomprehensible, failing to direct Google to

6 ^ the specific works or infringements claimed. For example, just one of the hundreds 7 of electronic folders on the hard drive provided with the 3une 28, 2007 notice, entitled 8 "z other infringing websites," contains 46,187 pages of screen shots. Khan Dec. ^ 19. 9 This folder includes a subfolder named "ALL LARGE ARE P 10" which contains 107 10 of its own subfolders that in turn contain 24,870 pages of screen shots. Poovala Dec., 11 Ex. N3; Khan Dec. ^ 19. For 108 of the 246 top-level URLs listed in the June 28

12 notice, P I 0 referred to the entire "ALL LARGE ARE P 10" subfolder as the location 13 of the infringing material without specifying which of the images contained within 14 those 24,870 pages was infringing. Poovala Dec., Ex. N3. Likewise, one of the 15 DVDs sent with the December 13, 2007 notice contains several layers of folders and 16 subfolders comprising 2$,672 pages of screen shots of infringing material. Poovala 17 Dec., Ex. NS; Khan Dec. ¶ 16. 18 In total, Google received one hard drive and 21 DVDs with the Group C

19 ^ Notices, all in the foI-mat described above. Poovala Dec. ^ 48. 20 VY^. 21 GOOGLE'S RE UESTS FOR DMCA-COMPLIANT NOTICES Google repeatedly advised P 10 of the various defects that hindered or

22 ^ precluded Google from completely processing its notices. Poovala Dec. ^^ 56-73, 23 Exs. S-EE. In particular, Google advised P 10 to: (1 }follow Google's DMCA 24 J guidelines (which comply with the statute's requirements}; (2) provide complete 25 '. ^ URLs; ( 3} submit notices in electronic soft copy, given the large number of URLs 26' involved; (4) identify the infringed woI·ks at issue, and (5) identify the URLs at which 27 Google could find the infringing material. Id. Google also explained that it could do 28
D 1980.51324(1993889. I

-11DE · I'I E "f' A D M '3'I N R UMMARY JUDGME T EZE: DANT LE' ENTITLEMENT TO SAFE HARBOR UNDER l7 U.S.C. y512(d) I:OR WEB AND IMAGE SEARCH

I

nothing witl^ raw image files, nor could it da anything about material located on

2 password-protected sites not crawled ar indexed by Google. 1'd. 3 At no time did P 10 respond to Google's letters by resubmitting its notices in an

4 intelligible and DMCA-compliant format . Paavala Dec. ^ 74. To this day, P10 5 continues to send notices in these unintelligible formats, and refuses to provide 6 ^^ Google with soft copy spreadsheets listing individual URLs. Id. 7 VIII . GOOGLE'S PROCESSING OF P10 ' S DEFECTIVE NOTICES
Google first describes its overall approach to processing P10's notices, and

9 then describes the challenges unique to processing each of Groups B and C. 10 11
A. Google ' s General Approach To The PIO Notices

P 10's notices were unlike any others Google has received, in both their volume

I2 and incomprehensibility. Poavala Dec. ¶ 75. Although Google does not concede that 13 it was required to do so, Google went above and beyond the DMCA's requirements 14 in order to process P 10's notices . Icy, ^^^ 75-77. 15 16 I7 As noted above, the notices consistently

18 II failed to specify the location of the infringing materials. In addition, P 10 uniformly 19 failed, in every notice, to identify the work that Cxoogle should compare with the 20 alleged infringing material ( assuming a discernable URL was listed). Ncvei-theless, 21 C Google made agood-faith attempt to process these defective notices. 22 23 24 25 26 Though P10 sporadically sent electronic soft copies of its notices, it has refused

27 to do so since 2005, even though Google has repeatedly explained that an electronic 28 soft copy URL facilitates the speed and accuracy of processing. Poovala Dec. ¶ 84.
0198Q.>132^l2993889

-12DEFENDAN"1^ LE'S "I1CE f^ M I'1 N A D M [ ^ R UMMARY,lUD MEN`! [ZE; EN"I']TLL:MENTTU SAFE HARBUR UNI.)1:R E7 U.S.C. j5l2(d) FOR WEB AND IMAGE SEARCI-I L'

1

An electronic soft copy URL, which may be copied and pasted directly to/from the

2 browser address bar, allows Google to immediately access the specif c page that 3 contains infringing material . Id. Without electronic soft copies , Google was forced 4 to manually type thousands of URLs, many of which were lengthy and complex.15 5 Id. Given the poor quality of many of P 10's notices ( including those transmitted by 6 fax), this was often an impossible task. Id.'^ 7 $ 9 URLs Over the past four-plus years, Google has reviewed numerous URLsin response to P10 ' s DMCA notices , and has blocked many of those from appearing in Web or Image Search results, despite the

Ia
11

inadequacy of P10's notices . Poovala Dec. ¶ 91.

Google received numerous counter--notifications in response to P 10 ' s notices

12 ^ Poovala Dec . ¶ 96, Ex . MM; see 17 U.S.C . ^ 512{g). 1n these counter-notifications, 13 ^ various counter-complainants swore under oath that the images displayed on their 14 sites were not owned by P 10. See Poovala Dec. ¶ 96 , Ex. MM. Some further 15 declared that P10' s notices appeared to be aimed at stifling competition . Id., Ex. MM 16 Is Examples of URLs in P10's notices include: http :// www.lninovia.com/modules I$ /uskolaxaallervlindex , ohta?carueta^vibe Sorensen & foto=vibe%20sorensenOl .i laa&ini 19 cio=0&PHPSESSID=1531 ec14c93c0e1 cet^7323d013e4c51 b and httl,://www . wallpapers - zone . com/ari^inal/stars et to>, models femmes/alena seredo 20 valalena seredova 004.ht>nl.
'^ P10's failure to provide soft copy lists is puzzling now that Google has confirmed through discovery that P10 has them - but apparently chooses not to send 22 them to Gool? le. P 10 recently filed one such soft-copy 23 spreadsheet with the Court in the related Af^zazot^ case . See Kassabian Dec. ¶ 11, Exs. 24 J {email} and K (Ex. 9 to the Zada Dec. in Support of P 10's MSJ Against Alexa and 25. Amazon). That sheet includes much of the very information that. Google has been asking P 10 to provide , including the web page URL where the alleged infringing 26 material is located and the image URL where the same image is hosted. Id. PIO's 27 conduct is inconsistent with the DMCA and suggests a stronger interest in harassment I, than in facilitating the removal of links to infringing copies of its images.

17

21

2$
0198°.5132012993 889.1

-13DE ^ D `t' L ^' N TI L I^ M I E N AND M "!-1 N^ IZ UMMARY J D MrNT RE: EN7'ITLI:MENT TO SAFE I-IARE30R [JNDER 17 U.S.C. S^ 12(d) POR WFIi AND IMAGE SEARCH L ',

1 ^ at 1737. Far example , one such counter-complainant declared : " I have no idea why 2 ^ Pm being named in this infi·ingement notice. Perfect 10, Inc. owns no copyrights to 3 ^ any of the images posted on my sites ... My guess is that Perfect 10, Inc. is doing 4 this to eliminate competition ...." Id. (emphasis added). S'I These counter-complainants also asserted that P10's failure to identify in its

6 ^ notices the specific image claimed to be infringing deprived them of the information 7 they needed to prepare proper counter-notifications. Poovala Dec., Ex. MM at 1737, S 9 10 11 12 13 14 15 1757. For example, one such counter--complainant declared:
The notice that Perfect 10, Inc. sent you is so vague that I don't even know which imagelfile they arc complaining about . They just list models. You can't own a particular model. If he would have listed an actual file I could have easily produced documentation showing that I have the rights to display it. He probably did this because he knew that larger companies, like myself, would have counter sued his pathetic attempt to reduce the amount of competition he has to deal with.

16 Id. at 1737 {emphasis added); see also id. at 1757 ("I never received any additional 17 information about this, such as which images in particular were problematic. I have 1$ ^ done my best to resolve this issue, but without the specific information I cannot be 19 ^ sure that the issue has been resolved . ") Though Google forwarded all of these 20 counter-notifications to P 10, P 10 never responded to them. Poovala Dec. ¶ 96. 21
P 10 also has conceded that it has sent Google DMCA notices complaining

22 ^ about websites that were actually licensed to display P 10's images. Poovala Dec. ¶¶ 23 97-95, Ex. NN; see also Kassabian Dec., Ex. J (email from Norman 7ada 24 25 26 27
O 198D ,5 1 320/2993 8 89. ]

B.

Goole 's Processing Gf The Group B Notices

With few exceptions, Google was able to complete its processing of the

28 majority of the Group B Notices within one to two weeks of receipt. Poovala Dec. _ 14_
NDAN L N I I M TI N AND M l^l N 1' R U ARY ![^D ME T RE: ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. ySl2(d) FOR WE^3 AND CMAGB SEARCI-I L'

1

^ 82. In some cases, these notices (which often contained hundreds of URLs) were

2 processed in as little as two days. Id. Google's efforts were hampered by the severity 3 of the notices' defects and P 10's lack of cooperation. Where I' 10 refused to 4 ^ cooperate by sending complete URLs, electronic soft copies of lists of URLs, and the 5 like, Google's processing efforts were delayed . Id. Further, P 10 would often send

6 i several identical or slightly revised versions of the same notice, thereby forcing 7 Google to re-review and re-process hundreds of URLs. Id. ^ 83." 8 9 C, Goole's Processing Of The Groin C Notices

Given the massive volume of materials in the Group C Notices and their general incomprehensibility,
Poovala Dec. ^ 87. Again, though Google does not

la
11

12 concede that any of this was required under the DMCA, the team reviewed the 13 ^ thousands of pages of screenshots page by 14 I discernable URLs. IS 16
P10 is the only copyright balder that has

and manually typed in the

17 refused to provide notices in a format amenable to the standard processing done by 18 19 20 21 22
oo^lc' s Enforcement Of lets Repeat Ynfrin ger, Politics _ Gaogle carefully reviewed P10's notices to ensure that its repeat infringer

23 policies wore enforced. ^ s As noted above, Web and Image Search have no such 24
"Far example , on .lone 28, 2004 , P 10 sent a notice listing 316 allegedly infringing URLs. Eight days later, P10 sent the same list of 316 URLs. Five days 26 later , P10 sent the same list yet again . Poovala Dec ., Exs. L5 , L6, L7. !s Facts specific to Google ' s enforcement of its I3logger repeat infringer policy 27 with respect to P10 ' s notices are stated in Googlc ' s I3logger Matian.

25

2s
01980 . 5132012993 889. I

-15[' L TI · M Tl D M 1 1 l^ R UMMARY J D M· T RE: ENTITLEMENT TO SA]:E I-IARBOR UNDER 17 U.S.C. ^51?(d} f OR WEI3 ANA IMAG1 SEARCH L'

1

policy because there are no account holders or subscribers , but Google did not turn a

2 blind eye to other services where it was evident that another service might be 3 4 5 6. 7 S 9 10 11 12 13
Summary Judgment Standard

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

14 ^ judgment on all or part of a claim," or on an affirmative defense. l{ed. R. Civ. P. 15 ^ 56(b); Rive^^a v. Ant^ya, 726 F.2d 564, 566 (9th Cir. 1984}. "ihc moving party must 16 ^ demonstrate the absence of a genuine issue of material fact for trial. Anderson v. 17 ^ Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The opposing party "may not rest 18 upon the mere allegations or denials of the adverse party's pleadings, but the adverse 19 party' s response , by affidavits or as otherwise provided ... [by Rule S6], must set 20 forth specific facts showing that there is a genuine issue for trial ." Cusana v. Klein,
21 22 23 24 25 26 27

280 F . Supp. 2d 1035, 1038 (C.D. Cal. 2003). '^ Google does not concede that its efforts here were required for Section 512(d) safe harbor regarding a product or service that has no account holders or subscribers {as is the case with Web and linage Search ). However , Google does ma !< e a good faith attempt to enforce its repeat infringer policies wherever the information provided makes that possible. 20 None of P10':s notices was actually directed to a Google service with account holders or subscribers, as instructed by Googlc ' s product-specific DMCA policies. See, e.g., http://wr^vw.^oogle.coal/adsense^dmca.hhnl. -16EF NDA T L -' N T! E M Tl AND M T F R UMMARY JUD M· I ENTITL>^MENT TO SAFJ~ HARBDR UNDER 17 U.S.C. §51?(d} FOR WEB AND fMAGE SEARCH LE I,

28
41980 , 5 ] 3202993889, I

1 2 I I. 3

Argament

GOOGLE MEETS THE DMCA'S THRESHOLD REQUIREMENTS
To be eligible for any DMCA safe harbor, a party must meet three threshold

4 conditions. First, the party must be a service provider. Second, it must have adopted S and reasonably implemented a repeat infringer policy. Third, the party must not b ^ interfere with "standard technical measures" used by copyright owners to identify or 7 ^ protect their works. 17 U.S.C. §§ S 12{1<), S 12(i}( 1). Google meets all of these 8 ^ requirements. 9^ A. Goole Is A Service Provider

lo'

It is beyond dispute that Google is a "service provider" as defined by the

I1'. ^ DMCA. See 17 U.S.C. § S12(k}{1)(B) {service provider is "a provider of online 12 services or network access, or the operatoa· of facilities therefor"}; Co^bis Co^·p. v. 13 Amazon.com, Inc., 351 F. Supp. 2d 1090, 1100 (W.D. Wash. 2004) (DMCA's 14 definition of service provider is a broad one encompassing a variety of activities}. At 15 least one other district court has already found Google to be a "service provider" in 16 the context of a safe harbor motion. See Field v, Google, 412 F. Supp. 2d 1106, 1 125 17 ^ (D. Nev. 2006} {granting Google's motion for partial summary judgment of DMCA 18 safe harbor under ^ 512(b)}. Google satisfies this condition as a provider of Web and 19 ^ Image Search and other services. 20 21
B. Goode Has An Appropriate Repeat Infringer Policy

Web and Image Search do not have account holders or subscribers, and thus

22 Google need not (and cannot) have a repeat infringer policy for those services. As 23
noted above, AdSense and Blogge^- are services for which Google has repeat infringer

24 policies, since those services have account holders. The DMCA requires "a policy 2S that provides for the termination in appropriate circumstances of subscribers and

26 account holders of the service provider's system or network who are repeat
27 infringers." 17 U.S.C. § S12(i)(1)(A). A policy is considered implemented if the 28 service provider " has a working notification system, a procedure for dealing with
a 198Q. 5 l 3 X0/2993889. I

-17D N TI M F . UMMARY JUD M EZ T L M 'I 1 ENTITLEMENT TO SAFIa E-iARBOR UNI]ER ]7 U.S.C. X512{d) FOR WEB AND IMAGE SEARCH L'

1

DMCA-compliant notif cations, and ... it does not actively prevent copyright owners

2 from collecting information needed to issue such notif cations ." CCBiII, 488 F.3d at 3 1109. A policy is considered reasonalaly implemented if the service provider

4 I,^ terminates those subscribers or account holders when "appropriate." Id. at 1111. S ^ Google's repeat infringer- policy meets all ofthese conditions. 6
First, Google has a designated agent far receiving DMCA notices. Poovala

7 Dec., Ex. A; Kassabian Dec., Ex. G (P 10 admitting same}. Google also publishes 8 detailed instructions explaining what information Google needs to process a DMCA 9 notice , and how and where the notice should be submitted. Poovala Dec . ^ 5 & Ex.

10
11 12

B; see e.g., http:llwww. google . cornldmca .html. If a notice is deficient , Gaagle requests the necessary information . Id. ^ I3. Second, Google has a procedure for dealing with DMCA compliant notices,

13 including verifying the complaints, ensuring that offending links or content are 14 removed , and tracking its processing efforts. See Part 1V, supra. 1S Third, Google does not actively prevent copyright owners from collecting

16' information needed to issue a DMCA notice . Poovala Dec. ^ 39. To the contrary, 17 copyright owners are free to utilize search services to locate infringing content.2^ 18 19
C. Google Does Not Interfere With Standard Technical Measures

Google does not interfere with any known technical measures that are used by

20 copyright owners . 17 U.S.C. § 512(i){1}{B); Haahr Dec. ¶ 18.22
21 22 23 24

Again, beyond the fact that Google has such policies, Google does not concede 25 that the enforcement ofthese policies is relevant to the Section 512{d} analysis, since Google's Web and Image Search services have no account holders to terminate.
2b 22 The DMCA does not identify any "standard technical measures," nor does 27. Google know which such measures (if any) are considered "standard" by copyright owners.

z]

28
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1 2 3

i ^^.

GOOGLE IS ENTITLED TO SAFE HARI30R UNDER SECTION 512 D Having satisf ed the threshold requirements, the undisputed evidence

4 ^ demonstrates that Google is entitled to safe harbor under Section 512{d) with respect 5 to P 10's search-related infringement claims, Section S 12{d} provides safe harbor for 6 ^ service providers linking users to an online location containing infringing material or 7 J infringing activity if the service provider: 8 9 10 11 12 13 14' 15 16 17 18 19 20 21 22 23 24 25 26 27 28
019$6.5 l 32Ql1993889. ]

(1){A) does not have actual knowledge that the material ... is infringing; {S) 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 infringing 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, responds expeditiously to remove, or disable access to, the materia! that is claimed to be infringing ... except that, for purposes of this paragraph, the [identif cation of the location of the claimed infringement in the required DMCA notice] shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or Iink.
17 U.S.C. § 512(d). Google meets this test.'3

z3 The statutory requirements for a valid DMCA notice are attached as Exhibit F to the Kassabian Declaration. -19b' TI E P M 1 ANU M 'I 1 N F R UMMARY JUD ML T RE: DE ENDA ENTITLEMENT TO SAFE HARBOR UNUER 17 U.S.C. §5 i 2(d) >:OR WEB AND IMAGE SEARCH L'

1 2

A.

P1d' s Defective Notices Failed To Confer Any Knowledge

P 10 claims that Google has knowledge of infringement of P 10's images via

3 I Web and Image Search by virtue of its 80+ notices . Not so . P 10's notices are the 4 epitome ofnon -compliance with the DMCA. Without exception , they fail to identify 5 the "copyrighted work claimed to have been infringed" or the "material that is 6 claimed to be infringing," and thus conferred no knowledge upon Google. See l7 7 U.S.C. § 512{c}(3){B}; CCBiII, 488 F.3d at l 113 (defective notice does not impute 8 knowledge of infringement ). A defective notice does not trigger any obligation to 9 remove infringing material. 17 U.S.C. ^ 512(c)(3)(B). Thus, because P10's notices 10 did not confer actual or constructive knowledge of infringement , they did not trigger 11
an obligation to remove anything . See 17 U.S.C. § 512 (c}(3)(B}(i) and ( d)(3). Each

12 group of notices is addressed below. 13 14 The Group A Notices consist of 17 letters P 10 allegedly sent to Google in IS 16 17 18 19 entitled to j udgment in its favor on those claims.24 20
2. The Group I3 Notices Did Not Confer Knowlcd^c 2001. P10 has confirmed that those notices are iI·rclevant to its case , and thus, it is 1. The Group A Notices Are Yrrelevant

not basing its claims on these notices . See Kassabian Dec., Ex. B. Indeed, such claims would be time-barred anyway. See 17 U.S.C. § 507. Accordingly, to the extent P10's complaint can be read to include the 2001 Group A Notices, Google is

21 22 23 24 25
'^ As discussed above , even had P 10 not waived any claims based upon the Group

The Group B Notices do not comply with the DMCA' s notice requirements. The Group B Notices failed to identify the works at issue in a number of ways. For many of the URLs listed , P 10 did not identify any copyrighted works whatsoever,

26 A Notices , these notices are fatally defective, and Google is entitled to suminaly 27 judgment on this basis as well . See szcprcr at 8 fn. 9; Kassabian Dec. ¶ 13 & Exs. A
and L.

28
01980 . 5 ] 32012993889.1

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ANT L D M TI !' R MM R JUD MIr 1] ^: ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. §512{d ) FOR WEB AND IMAGE 5EARCH

W20-

L'

1 ^ listing only a model name . Poovala Dec., Ex. L (column for work identification left 2 ^ blank). A bare reference to model names is insufficient under the DMCA. See Arista 3 Records, Inc. v. Mp3Board, Inc., 2002 WL 199791 S, *$-9 (S.D.N.Y. 2002) {DMCA 4 letters listing only artists' names , but no songs , held insufficient). Three of the Group S B Notices identif ed entire DVDs described as "P 10 DVD" or "P 10 Model Boxing 6 DVD" as the infringed work. Poovala Dec., Exs. L23, L35, L44. P 10 did not 7 ^ provide Google with these DVDs. Id. $ Similarly, P10 identified entire websites or multi - page ranges of va^·ious

9 ^ magazines as "the work" at issue, without specifying any particular images. Poovala 10 Dec. ¶ 44 & Ex . L.z' For example , P 10's February 13, 2006 notice identified the 11 entire perfectl0 . com website as the infringed work for all 1, 181 URLs listed , and the 12 September 27, 2005 notice identified perfectl0 . com as the infringed work for alI z47 13
URLs listed. Id., Ex. L47. Likewise, the .lure 28, 2004 notice 'identified multiple

14 pages of Perfect 10 magazine as the work infringed at 175 of the 316 allegedly 1S
infringing URLs listed , and the December 21, 2004 notice identified a 24-page

16 section of P 10 magazine as the infi·inged work at one or more of the URLs listed. Id , 17 Exs. LS , L 1$. P 10's abusive and improper blanket citation to entire image collections 1$ '^,^ fails to confer sufficient notice under the DMCA. CCBiII, 4$$ F.3d at 1 1 ] 3. 19 The Group B Notices also failed to identify the location of the infringing

20 ^ material as ^·equired . 17 U.S.C. ^ 512{c)(3}(A}(iii); 17 U.S.C. § 512(d}(3). P10 21
routinely provided URLs for pages displaying multiple images ----without specifying

22 which images were infringed . Poovala Dec., Ex. L. Similarly , several of the Group 23 ^ B Notices listed incomplete URLs-i. e., they contained ellipses, misspellings , and/or

24 2s
26 27 2$
X19&^.Sk320/2993889.1

extra spaces . Id. P 10's failure to provide the specific location of infringing materials

Z' P 10 does not claim to own two of those sites: amyweber.net and ambersmith.net.
-21DA T L N T1 L ^ M ']'I N AND M'] N r R UMMARY J D ME T RE; ENTITLEMENT TO SATE 1-iARI30R UNpER 17 U.S.C. 5512(d} I^OR WII3 AND IMAGE SEARCH L'

1 ^ is fatal under the DMCA. CCBiII, 488 F.3d at 1112-13; see 17 U.S.C. 2 ^ § S 12(c)(3){A)(iii); 17 U.S.C. § S 12(d){3}. 3 Additionally, as referenced above, P 10 submitted the salTle Group B Notices

4 multiple times, and largely refused to submit electronic soft-copy notices. P10's S barrage of duplicative, hard-copy notices only made Google's task of processing 6 ^ them more burdensome. Such harassing conduct violates the letter and spirit of the 7 ^ DMCA. See UMG Recordings, Inc. v. Veoh Networks, Inc.,

F. Supp. 2d

,

8 2008 WL 5423841, *9 (C.D. Cal. 200$) (Matz, J.) (the "`notice and take--down' 9 procedure is a formalization and refinement of a cooperative process that has been 10 employed to deal efficiently with network-based copy^·ight infringement.") (quoting 11 I2 13 S. Rep. lOS-190, at 4S) (emphasis added).
3. The Group C Noticcs llid Not Confer Knowledge

The Group C Notices do not substantially comply with the DMCA 's notice

14 ^ requirements either. 17 U.S.C. § S 12{c)(3){A}(ii} and (iii}; § S 12(d)(3 ). Worse, these 15 notices appear to have been designed to burden Google in the hope of cultivating a lb lawsuit. 17 First, the Group C Notices categorically fail to identify the specific works at

18 (issue, instead directing Google to P 10's entire 15,000+ image collection from 19 perfectl0.com as the work infringed. 20 Second, the Group C Notices also fail to identify the location ofthe infringing

21 ^ material as required. These notices referred to entire websites, screen shots of which 22 are on the DVDs or a hard drive provided with the notices, rather than specifying 23 URLs at which infringing content might be located. Many of the thousands of pages 24 of electronic f les on the DVDs and hard drive either failed to reflect a complete 2S URL, or any URL at all, Poovala Dec., Ex. N. Some screen shots appeared to be 26 altered in that the URL depicted did not result in the page reflected. The Group C 27 Notices present an incomprehensible fumble of screenshots, files and folders that are
0 E 98D. 51320fz993889, I

28 ineffective to confer notice under the DMCA. CCBiII, 488 F.3d at 1112-13 (service -22D L[ 1 ^ t EZ ^ M L' NDANT ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. §512(d) FOIL WEB AND IMAGE SEARCH

1 ^ providers are not required to "piece together the relevant information for each 2 ^ instance of claimed infringement" from thousands of pages of materials}. 3 The Group C Notices also referenced the home pages for password-protected

4 ^ "Usenet" sites, which home pages did not contain any images, Indeed, P10 canceded 5 ^ that those infringing materials could only be accessed by logging onto the Usenet 6 ^ sites directly. P10 claims that these Usenet sites contain 93% of the infringements at 7 issue in this case, yet as P 10 is well-aware-it is impossible for Google to remove 8 links to them from its search results, because those lin]<s do not exist in Google's 9 index in the first place. Haahr Dec. ¶^ i 4^ 15. 10 Thus, P10's notices conferred no knowledge of any infi·ingements via Web or

11 ^ Image Search . See 17 U.S.C. § S I2(d)(3) & (c)(3) {defective notices cannot be 12 ^ considered in determining whether a service provider has actual or apparent 13 knowledge of infringement ); CCBiIl, 488 F.3d at 1113 ( defective notice does not 14 impute knowledge of infringement). 1S 16
S. Google Exneditiousiy Processed P10's Defective Notices

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

17 '^ exceeded what the law requires to process them. As described in detail above, 18 Google (1) notified P 10 of the defects and how to correct them; 19 {3)

20 ^ blocked discernable URLs from search results even when P I 0 had failed to identify 21 ^ the specific work allegedly infringed at those URLs; and (4) enforced (wherever 22 possible) Google's repeat infringer policies, despite the defects in the notices. See 23 Part VIII, supra; see also Poovala Dec. ^^ 75-91. Google' s processing efforts were 24 ^ beyond reasonable in light of the numerous defects therein, and P 10's repeated 25 refusals to cure them. Id. ^ 85. Google processed the notices as quickly as possible, 26 sometimes in as little as two days, and routinely asked

z7

employees to work over holidays. Id. ^^ 82, 85. By any standard, Google

28 expeditiously processed P I0's notices , despite their gross defects and inadequacies. -23U1980 .51320fZ993889.1
L 1 · M 'I' A D M TI N^ R UMMARY IUD MEN IZI:: DAN" ENTITLEMENT TQ SAFE ]-IARBOR UNDER I7 U.S.C. X512{d) >=0R WEB AND IMAGE SEARCH L'

1 See 17 U.S.C. § SIZ(c)(3}; H.R. lOS-SS1{II) at 53-54 ("Because the factual 2 circumstances and technical parameters may vary from case to case , it is not possible 3 to identify a uniform dine limit for expeditious action.") (Kassabian Dec., Ex. E}. 4 Thus, even if the Court were to find P 10's notices sufficient {which they are not), 5 Google expeditiously responded to them. 6 III. 7 8 9 GOGGLE DOES NOT HAVE THE RIGHT AND ABILITY TO CONTROL THE ALLEGED INFRINGING CONDUCT, NOR DOES IT RECEIVE A FINANCIAL BENEFIT ATTRIlIUTAI3LE THERETO. Google does not have the right and ability to control the alleged infringing activity, but even if it did, Google does not receive a financial benef t directly attributable that activity. 17 U.S.C. § 512(c}{ 1)(B) & { d}(2). Both elements must be

la
I1

12 ^ met for the safe harbor to be denied. Io G,°oup, Inc. v. Veoh Netwa^°ks, Inc., 586 F. 13 ^ Supp. 2d 1132, 1150 (N.D. Cal. 2008) (quoting Corbin, 351 F. Supp. 2d at 1109}. 14 15 16 A. Google Docs Not Have The Right And Ability To Control The A11c^ed Infringing Activity

The Ninth Circuit has already ruled that "Google cannot stop any of the third-

17 party websites from reproducing, displaying, and distributing unauthorized copies of

18 P 10 images because that infringing conduct takes place on third --party websites." 19 Amazon.com, 508 F.3d at 1174. Google's ability to remove access to materials

2a
21

^ accessed through its system does not equate to the right and ability to control the
infi·inging activity. Id.; see Corbin, 3 51 F. Supp. 2d at i 110; Hendrickson, 165 F.

22 Supp. 2d at 1093--94. Google cannot remove these sites from the Internet, or dictate 23 what they choose to display. Haahr Dec. ¶ 16. All Google can do is to prevent third24 party websites from appearing in search results. The ability to do so is not enough to 25 establish a right and ability to control the allegedly infringing activity. Perfect 10, 26 Inc. v. visa Intl Sere. Assn, 494 F.3d 788, 805 {9th Cir. 2007) ("the defendant must 27 have the right and ability to supervise and control the infi·ingeinent, nat just affect
U i 980 .5132002993889.1

28 it."}. Google lacks any such right or abili