Perfect 10 Inc v. Google Inc et al

Filing 435

DECLARATION of Shantal Rands Poovala in support of MOTION for Partial Summary Judgment as to Defendant Google Inc.'s Entitlement to Safe Harbor Under 17 U.S.C. 512(b) For Its Caching Feature [Public Redacted] MOTION for Partial Summary Judgment as to Defendant Google Inc.'s Entitlement to Safe Harbor Under 17 U.S.C. 512(b) For Its Caching Feature [Public Redacted] #426 , 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] 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] #427 , 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] 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] #428 VOLUME 3 (INCLUDING EXHIBITS N18 - PP) filed by Counter Claimant Google Inc, Defendant Google Inc. (Attachments: #1 Exhibit N18 Part 1, #2 Exhibit N18 Part 2, #3 Exhibit N18 Part 3, #4 Exhibit N18 Part 4, #5 Exhibit N18 Part 5, #6 Exhibit N18 Part 6, #7 Exhibit N18 Part 7, #8 Exhibit N18 Part 8, #9 Exhibit N18 Part 9, #10 Exhibit N18 Part 10, #11 Exhibit O, #12 Exhibit P, #13 Exhibit Q, #14 Exhibit R Part 1, #15 Exhibit R Part 2, #16 Exhibit R Part 3, #17 Exhibit S, #18 Exhibit T, #19 Exhibit U, #20 Exhibit V, #21 Exhibit W, #22 Exhibit X, #23 Exhibit Y, #24 Exhibit Z, #25 Exhibit AA, #26 Exhibit BB, #27 Exhibit CC, #28 Exhibit DD, #29 Exhibit EE, #30 Exhibit FF, #31 Exhibit GG, #32 Exhibit HH, #33 Exhibit II, #34 Exhibit JJ, #35 Exhibit KK, #36 Exhibit LL, #37 Exhibit MM, #38 Exhibit NN, #39 Exhibit OO, #40 Exhibit PP)(Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 435

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) michaelzellergciuinnemanucl. com 865 out F igueroa S treet , 1 t F loor Los Angeles , California 90017-2543 Telephone : ( 213) 443-3000 Facsimile : 213) 443-3100 Charles K. erhoeven (Bar No. 170151) charlesverhoeven(c), uinnem anuel.com ^
5 C a l i fornia S treet , -22nd Floor San Francisco, California 94111 Rachel Herrick Kassabian (Bar No. 191060) rachelkassabianna, guinnemanuel.co_m 555 Twin Dolphin-Dr'!ve, Suite 5 60

Redwood Shores, California 94065 9 Attorneys for Defendant GOOGLE INC.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
PERFECT 10, INC., a California corporation,

CASE NO. CV 04-9484 ARM (SHx) C onsolidated with Case No. CV 053 AHM (SHx)] DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE' S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. § 512 Hon. A. Howard Matz

Plaintiff, VS. GOOGLE INC. a corporation; and DOES 1 througA 100, inclusive, Defendants. AND COUNTERCLAIM PERFECT 10, INC., a California corporation, Plaintiff, vs. AMAZON.COM , INC., a corporation; A9.COM, INC. a corporation; and DOES 1 through 100, inclusive, Defendants.

Date: August 17, 2009 Time: 10: 00 a.m. Ctrm: 14

Discove ry Cut-off None Set Pretrial Conference Date: None Set Trial Date: None Set PUBLIC REDACTED

01980.5132012993831,1

DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. & 512 Dockets.Justia.com

I, Shantal Rands Poovala, declare as follows:
1. I am the head of the Consumer Products Legal Support group at I have been employed with Google since

Defendant Google Inc. ("Google").

November 2002. In the middle of 2004, I began assisting with the processing of

5 notices of alleged copyright infringement under the Digital Millennium Copyright 6 Act ("DMCA"). This became my full-time position in 2005. I currently manage a 7 team of personnel who respond to DMCA notices and other complaints received by
Google. In the course of my duties, I have become familiar with Google's products and services, Google's DMCA policies, and the manner in which Google processes (and documents the processing of) DMCA notices.

2.

I have personal knowledge of the matters set forth herein and if called

and sworn as a witness, I could and would competently testify thereto. Google ' s Designation of an Agent To Accept DMCA Notices 3. Google has designated an agent for receiving notifications of claimed

copyright infringement under the DMCA. Attached as Exhibit A is a true and correct copy of Google's current designation of agent form, on file with the Copyright Office. At no time from 2001 through the present has the Google Board of Directors served as Google's designated agent for this purpose. 4. DMCA notices are processed by my team, in the order received.
Google 's DMCA Policy and Procedure for Web Search 5. received Google has a DMCA policy and procedure for processing complaints under the DMCA regarding Web Search located at

http://www.google.com/dmca.html. Attached as Exhibit B is a true and correct copy of Google's published DMCA policy for Web Search. It is Google's policy to respond expeditiously to notices of copyright infringement directed to Web Search.

28
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DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. S 512

6.

Google ' s published DMCA policy for Web Search instructs copyright

owners to submit DMCA notices by fax or mail to a specified address, and to include various information consistent with the requirements of the DMCA.
7. For example, for a Web Search complaint, Google directs complainants

to identify in sufficient detail the copyrighted work at issue and refer to the location where Google can find the work at issue . Google needs this to verify the complaint.

8.

Google also directs complainants to provide the complete URL at which

the infringing material - that is, the material the complainant wants removed-is located and the Web Search query that directly links to that web page. A web page URL is a string of characters that identifies the location of that web page on the World Wide Web. It is what an Internet user sees in his or her browser bar. 9. If the URL contains improper ellipses or misspellings or is otherwise

incomplete , Google is unable to verify the complaint or block the URL from appearing in the search results. Google also cannot block URLs which are not live on the web, or which are already blocked , because these URLs already do not appear in Web Search results. Google to block. 10. Google ' s Web Search policy covers its caching feature as well. When In other words, in those circumstances there is nothing for

Google suppresses a live web page URL from appearing in Web Search results pursuant to its Web Search DMCA procedure , it automatically prevents all cached links to that page from appearing in Web Search results as well. 11. Google has a team of employees charged with processing DMCA

removal requests . If a Web Search DMCA notice i s received by fax or email, it is automatically entered into the -queue ," which is a list of notices to be processed. If a notice is received by mail , it is sent via interoffice mail to the

team , at which time it is entered into the=queue . The - queue is organized so that the earliest-received notice is at the top of the list.

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DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE ' S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE ' S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. $ 512

_2--

I

12.

In most circumstances, each notice is handled by the same team queue until

2 member for the entirety of its processing, and will 3 processed.

This ensures that notices are processed expeditiously, in the order in

4 which they are received. If a non-Web Search DMCA notice is received, a team 5 member will forward the notice to the appropriate queue for the service referenced.

6

13.

Once a notice is assigned to a member of the _ team, he or she

7 reviews the notice to confirm that it contains the required information. For Web 8 Search, these fields are: (1) identification of the copyrighted work allegedly 9 infringed, (2) the exact URL at which the allegedly infringing material is located, (3) 10 the complainant's contact information, (4) the sworn statements required by 17 II U.S.C. § 512(c)(3)(A)(v) and (vi), and (5) a signature, unless the complainant has a 12 signature on file with Google. 13 14. If Google has received the required information, the _ team

member processing the notice compares the copyrighted work claimed to be infringed to the allegedly infringing material, by pasting or manually typing the URL(s) into a browser. If there is a match, the - team scans the notice and sends it to www.chillingeffects.org ("Chilling Effects"), a nonprofit organization.

Chilling Effects provides Google with a URL (the "Chilling Effects URL") at which it has posted the notice in question. The _ team then forwards the allegedly infringing URL(s) in question and the Chilling Effects URL to the engineering team for further processing. Once URLs have been submitted to the

engineering team for removal, Google notifies the complainant that the notice is being processed. The engineering team notifies the ^ team once the URLs have been prevented from appearing in Google search results in response to user 27 queries. 28
01980.51320!2993831.1 II

. If any allegedly infringing URLs could not be
3

DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE' S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. ^ 512

removed because they were incomplete, were not live on the web, or were already blocked (i.e. there was nothing to remove), the engineering team notifies the - team.

4
5

15. Google needs the copyright owner to identify each URL at which it claims infringing material is located (by web page URL), because without proper notice, Google has no way of knowing which uses a copyright owner regards to be infringing, in contrast to those uses that are licensed, a fair use, or otherwise acceptable to the owner.

6

16 .

The AdSense terms and conditions advise account holders (or "publishers") that they may not display copyrighted material unless they have the right to do so, and that they may be terminated for violating these policies. Attached as Exhibit C is a true and correct copy of Google's terms and conditions for AdSense. 17. Google processes all DMCA notices expeditiously.

18. At that point, the matter is closed, unless a counter-notification i s received. Google notifies the original complainant of any counter-notifications received as a result of a DMCA removal . If the original complainant then notifies Google within ten days 27 28
01980 . 51320/22993831 .1 11

that it has filed a lawsuit, the URL will remain blocked. Otherwise , the URL again will be free to appear in search results.
DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE' S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. S 512

19. 20.

Google documents its processing of DMCA notices.

Goode 's DMCA Policy and Procedure for Image Search 21. processing Google has developed and maintains a policy and procedure for DMCA complaints regarding Image Search located at

http:llwww.google.com/images_dmca.html.

Attached as Exhibit D is a true and

correct copy of Google's published DMCA policy for Image Search. It is Google's policy to respond expeditiously to notices of copyright infringement directed to Image Search.

22.

Google's DMCA policy for Image Search is largely the same as its

policy for Web Search. Google directs complainants to provide the complete URL at which the allegedly infringing material is located. For Image Search, this requires the corresponding image URL. The image URL refers to the location of the image file hosted by a third party. Other web pages hosted elsewhere may link to that

image URL and display that image. This means that complainants must provide the image URL at which the allegedly infringing image is hosted if the complainant wishes to prevent the image from appearing at all in search results. Google can only process the URL verified by the complainant in the notice. 23. Google's DMCA policy for Image Search explains how copyright Attached as

holders can locate the image URL of an allegedly infringing image.

Exhibit E are sample screen shots of the steps Google's published policy directs copyright holders to take to locate the image URL. 24. As with Web Search, providing a partial or incomplete URL prevents Google also

Google from identifying the location of the complained-of image.

cannot block from its Image Search results URLs which are already blocked, because such URLs already do not appear in Image Search results, so there is nothing to block.
01980.51320/2993931.1 11

DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. s 512

I

25.

Google's

procedure

for

processing

notifications

of copyright

2 infringement related to Image Search is the same as the procedure for processing 3 notifications relating to Web Search.
The same engineering team processes the

Image Search URLs provided by the _ team. The same notice and counternotification process is used. If the complaint lacks information required, Google asks the complaining party for clarification.

Gonle 's DMCA Policy and Procedure for Bloggeir 26. Google provides users with a service, known as Blogger, that allows Google does not charge

users to create their own blogs hosted on Google servers. users to set up Blogger accounts. "blogspot.com" or "blogger.com."

Most web pages on Blogger bear the suffix Users can create and post content on their blogs,

including images. In some cases, the images displayed on Blogger are uploaded by users to Google's servers, and in other cases, the user hyperlinks to content hosted on third party servers. Google does not encourage copyright infringement on its Blogger system. The terms and conditions for Blogger advise account holders that they are

not permitted to display copyrighted material unless they have the legal right to do so, and that they may be terminated for violating Google's policies. Attached as Exhibit F is a true and correct copy of Google's terms and conditions and content policy for Blogger. 27. notices Google has a DMCA policy and procedure for processing DMCA directed at Blogger content, published at

http://www.google.com/blogger dmca.html.

Attached as Exhibit G is a true and

correct copy of Google's published DMCA policy for Blogger.
28. Google's published DMCA policy for Blogger instructs copyright

owners to submit DMCA notices by web form, fax or mail to a specified address, and to include various information consistent with the requirements of the DMCA.

29. 11

For example, for a Blogger DMCA complaint, Google directs

complainants to identify in sufficient detail the copyrighted work allegedly infringed
01980 .51320/2993831.1

DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE' S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. S 512

1 by providing a brief description of the work and the complete URL where the work 2 can be found. Google needs this to verify the complaint. 3 30. Additionally, Google directs complainants to identify the location of the

4 infringing material on a Blogger site so Google can locate it. To do so, the copyright holder must provide either (1) the URL for the top level domain of the blog along with the time and date of the bldg entry at issue, or (2) the "permalink," or URL for the post in question (hereinafter "post URL"), which can be found by clicking on the timestamp of the posts. Attached as Exhibit H is a screen shot of a Blogger page, identifying the time stamp of the post and date of the blog entry. 31. It is Google's policy to respond expeditiously to notices of copyright DMCA notices are received by fax, mail, or, if

infringement directed to Blogger.

voluminous, e-mail, sent to the attention of Google's Legal Support for Blogger DMCA Complaints. As of April 2009, DMCA notices relating to Blogger are also received via a web form, which is available to complainants on Google's website. Attached as Exhibit I is a true and correct copy of the Blogger DMCA web form. 32. When a notice is received, it is entered into an electronic Blogger

"queue" for tracking purposes. The notices are reviewed by members of Google's team responsible for processing Blogger DMCA complaints to confirm they include the required information. If a notice does not include the required

information, Google asks the complainant for more information. 33. After confirming that the required information is provided, the removals

team compares the copyrighted work claimed to be infringed to the allegedly infringing material. Once confirmed, Google immediately takes it down, notifies the Blogger account holder of the DMCA complaint, and notifies the complainant that the notice was processed.

34.
27 It is important that the complainant identify the specific 28 location of each alleged infringement (by post URL or blog entry date), because
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DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 6 512

without proper notice, Google has no way of knowing what is actually at issue and which uses are infringing, in contrast to those uses that are licensed, a fair use, or otherwise acceptable to the owner. 35.
5

Google sends any counter-notifications received to the original

complainant. If within fourteen days the complainant fails to notify Google that it

6 has filed a lawsuit, Google reinstates the allegedly infringing content on the Blogger website in question.
GooLyle's Repeat Infringer Policies

36.

Google has established and diligently implemented repeat infringer

policies for all of its products or services that have subscribers or account holders. Google tracks how many DMCA notices are received regarding each particular account by noting a "strike" against the account. 37. Blogger is a product or service with account holders. Upon receipt and

14 verification of a DMCA notice directed to Blogger, the team will note a strike against the account holder. If a blog has been the subject of - DMCA notices, the entire blog is taken down and the account is terminated. The number of strikes against an account is tracked in both Google's internal system and in spreadsheets. Attached as Exhibit J is a true and correct copy of excerpts of the current Blogger repeat infringer tracking spreadsheets. The

complete electronic version of this spreadsheet is contained on a CD submitted herewith as Exhibit II.

38.

AdSense is another product or service that has account holders. Upon

receipt and verification of a DMCA notice directed to AdSense, Google disables the ads displayed at or linking to the allegedly infringing URL identified in the notice, and notifies the AdSense account holder of the DMCA notice.
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DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 6 512

I 2 3 4 5 6 7

If an AdSense account holder has been the subject of M DMCA notices, the Team terminates

that AdSense account. The number of strikes against an AdSense account is tracked in both Google ' s internal system and in spreadsheets . Attached as Exhibit K is a true and correct copy of excerpts of the AdSense repeat infringer tracking spreadsheets. The complete electronic version of this spreadsheet is contained on a CD submitted herewith as Exhibit 11.

39.

Google does not actively prevent copyright owners from collecting

information needed to issue a DMCA notice. Perfect 10 ' s Notices 40. Google has received a number of claimed DMCA notices from Perfect

10 ("P 10"). Other than these notices, Google is and was unaware of any facts and circumstances from which infringement of P 10's alleged copyrights was apparent.
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DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. S 512

41.

The Group B Notices. Attached as Exhibit L are true and correct copies

of claimed DMCA notices Google received from P10 dated May 31, 2004 (Exhibit L1), June 1, 2004 (Exhibit L2), June 4, 2004 (Exhibit L3), June 16, 2004 (Exhibit L4), June 28, 2004 (Exhibit L5), July 6, 2004 (Exhibit L6), July 11, 2004 (Exhibit L7), July 19, 2004 (Exhibit L8), October 11, 2004 (Exhibit L9), November 2, 2004 (Exhibit L10), November 8, 2004 (Exhibit L11), November 15, 2004 (Exhibit L12), November 16, 2004 (Exhibit L13), November 18, 2004 (Exhibit L14), November 26, 2004 (Exhibit L15), December 1, 2004 (Exhibit L16), December 9, 2004 (Exhibit L17), December 21, 2004 (Exhibit L18), December 27, 2004 (Exhibit L19), December 29, 2004 (Exhibit L20), December 31, 2004 (Exhibit L21), January 3, 2005 (Exhibit L22), January 16, 2005 (Exhibit L23), January 21, 2005 (Exhibit L24), January 25, 2005 (Exhibit L25), February 3, 2005 (Exhibit L26), February 7, 2005 (Exhibit L27), February 11, 2005 (Exhibit L28), February 17, 2005 (Exhibit L29), February 23, 2005 (Exhibit L30), March 6, 2005 (Exhibit L31)1, March 27, 2005 (Exhibit L32), April 3, 2005 (Exhibit L33), April 3, 2005 (Exhibit L34), April 11, 2005 (Exhibit L35), May 1, 2005 (Exhibit L36), May 7, 2005 (Exhibit L37), June 12, 2005 (Exhibit L38), June 19, 2005 (Exhibit L39), July 16, 2005 (Exhibit L40), July 26, 2005 (Exhibit L41), August 30, 2005 (Exhibit L42), September 27, 2005 (Exhibit L43), December 7, 2005 (Exhibit L44), December 22, 2005 (Exhibit L45), December 23, 2005 (Exhibit L46)2, February 13, 2006 (Exhibit L47), and April 24, 2007 (Exhibit L48) (hereinafter referred to as "the Group B Notices").

1 Google has no record of having received the February 17, 2005 and March 6, 2005 notices. P10 produced them during the preliminary injunction proceedings, and Google processed both at that time. See Ex. II. Both notices were sent to an incorrect fax number (650-618-1499). 2 The July 16, 2005 notice (Exhibit L40) was addressed to AOL. The November 15, 2004, February 23, March 27, April 3 and December 23, 2005 notices (Exhibits L12, L30, L32, L34 and L46) were addressed to Amazon. These notices were (footnote continued)
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DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE' S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 6 512

1

42.

The Group B Notices each contained a cover letter and a three-column

2 spreadsheet claiming to identify material allegedly infringing P 10's copyrights. The first column listed allegedly infringing URLs, the second listed the corresponding search terms, and the third listed the allegedly infringed P 10 copyrighted material. 43. The May 31 (Exhibit L l), June 1 (Exhibit L2), June 4 (Exhibit L3), and

June 16, 2004 (Exhibit L4) notices were in a slightly different format, consisting of email communications sent to Google listing a number of URLs at which allegedly infringing copies of P10 images were displayed. 9
44. The Group B Notices contained a variety of defects. For example, in

10 many instances, they failed to identify any copyrighted work at all, leaving the field 11 blank and providing only a model name. In other instances, they listed various media 12 containing dozens, hundreds, or even thousands of images, without specifying which 13 image was at issue, such as (1) entire websites like perfectl0.com, amyweber.net, and 14 ambersmith.net, (2) multiple pages from Perfect 10 Magazine, (3) an unidentified
"Perfect 10 DVD," and (4) an unspecified "Perfect 10 Model Boxing DVD." P 10 did not provide Google with these DVDs. 45. Many of the URLs in the Group B Notices were (1) duplicative of

URLs previously identified by P10 in other notices, (2) incomplete because they incorrectly contained ellipses in the middle of the partial URL, misspellings, or extra spaces, and/or (3) were associated with web pages displaying multiple images, and thus, Google could not determine which image P10 was referring to. Moreover,

several of the URLs identified in the first column of the Group B Notices were not even in Google's search index. In other words, links to those URLs would not appear in Web or Image Search results, so there was nothing to block.

forwarded to Google because Google powered those search results at the time, Google processed the notices, as reflected in the spreadsheets attached as Exhibit II and Exhibit 1 to the Haahr Declaration.
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I

46.

Additionally, the vast majority of the URLs listed in the Group B

2 Notices were web page URLs, but the Group B notices largely failed to include the 3 image URLs that would allow Google to block the hosted image to which other pages 4 had linked. At many of those web page URLs, multiple images were displayed. By 5 way of example, attached as Exhibit M is a true and correct copy a printout of the 6 web page www.russiancelebrities.org/rciGallery.asp?GID=4, which was one of the 7 316 URLs identified in P10's July 11, 2004 notice (Exhibit L7). The web page displays more than 60 different images of female models. 47. As explained above, Google cannot fully process a removal from Image

Search without an image URL. Thus, for all of the allegedly infringing URLs with the suffix "Jpg" or ".gif' that my team could confirm to be image URLs, my team processed them with the Image Search DMCA procedures described above and prevented all links to those allegedly infringing image URLs from appearing in Image Search. When P 10 only provided a web page URL, my team was unable to confirm which, if any, image on the page was allegedly infringing, and therefore, Google processed those web page URLs pursuant to Google's Web Search DMCA procedures described above.

48.

The Groin C Notices. Attached as Exhibit N are true and correct copies

of claimed DMCA notices Google received from P10 dated December 9, 2005 (Exhibit N1), March 20, 2007 (Exhibit N2), June 28, 2007 (Exhibit N3), July 2, 2007 (Exhibit N4), July 12, 2007 (Exhibit N5), July 31, 2007 (Exhibit N6), October 16, 2007 (Exhibit N7), December 13, 2007 (Exhibit N8), January 24, 2008 (Exhibit N9), March 17, 2008 (Exhibit N10), July 9, 2008 (Exhibit N11), November 26, 2008 (Exhibit N12), November 27, 2008 (Exhibit N13), April 24, 2009 (Exhibit N14), May
01980.5132012993 831.1

-12DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 6 512

7, 2009 (Exhibit N15), May 30, 2009 (Exhibit N16)3, June 4, 2009 (Exhibit N17), and June 13, 2009 (Exhibit N18). These notices are hereinafter collectively referred to as "the Group C Notices." The Group C Notices each contain (1) a cover letter, (2) a spreadsheet, and (3) a several-hundred gigabyte hard drive or one or more DVDs full of electronic files grouped into various folders and sub-folders. 4 49. The cover letters for the Group C Notices stated that the accompanying

hard drive or DVDs contained infringing copies of P10 images in various folders. For at least eight of the eighteen Group C notices, the cover letters acknowledged that P10 located allegedly infringing images not on Google, but by subscribing and logging on to various Usenet services directly via password-protected "Usenet" sites, running searches, and downloading raw image files directly from those servers. 50. The spreadsheets accompanying the Group C Notices did not identify

any particular P10 images infringed. The March 20, 2007 notice (Exhibit N2) made no attempt whatsoever to identify copyrighted works. The cover letters for the other Group C Notices directed that if Google wished to see and compare the P10 images corresponding to each alleged infringement, it had to search for them amongst P 10, s entire 15,000+ image collection from perfectl0.com. Those Group C Notices sent after the June 28, 2007 notice (Exhibit N3) referred Google to the image collection from perfect l0.com as contained on the hard drive P10 had sent on June 28, 2007. 51. The Group C Notices also failed to identify the location of any allegedly

infringing material. In the spreadsheets accompanying the Group C Notices, the first column listed the top-level URL for various websites, without specifying the location

3 The May 30, 2009 notice (Exhibit N16) was addressed to Earthlink, and was forwarded to Google because Google powered Earthlink search results at the time. Google processed the notice, as reflected on Exhibit HH. 4 Seven of the Group C Notices (Exhibits N 1, N2, N 12, N 13, N 16, N 17 and N 18) did not include an accompanying spreadsheet, and five (Exhibits N12, N13, N16, N17 and N18) attached electronic files rather than a DVD or hard drive.

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DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE' S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 6 512

1 within that site of an infringing image. The second and/or third columns failed to 2 specify the location of the works at issue on the accompanying hard drive or DVDs. They only listed the electronic folder in which the electronic files containing allegedly infringing material were saved. 52. The hard drive and DVDs contained a myriad of nested electronic By

folders and subfolders containing thousands of files of alleged infringements.

7 way of example, attached as Exhibit O are screen shots of the layers of folders on one of the DVDs provided with the July 2, 2007 notice (Exhibit N4). Pages 1-5 of the exhibit show the hundreds of folders and subfolders on the DVD. Pages 6 - 15 of the exhibit show a screen shot of the many hundreds of files nested within just one of the subfolders on the DVD, entitled "hotpinkwet.com."
53. The files of allegedly infringing material on the hard drive and DVDs

provided with the Group C Notices are in the form of (1) raw image files such as JPEG files, and (2) multi-page screen shots of Google search results.

54.

Attached as Exhibit P is an example of a "raw image" file P10

submitted with its March 17, 2008 notice (Exhibit N10). According to P10's cover letters, the raw image files on the Group C hard drive and DVDs were located by running searches on Usenet sites, not on Google. Thus, for many of the domain names listed, the Group C Notices admit that P10 did not locate the infringing material via Google's search services. None of the raw image files display a web page URL or image URL. Many of the raw image files displayed copyright notices of other companies (such as Playboy), and thus evidently were not P 10 images.
55. Attached as Exhibit Q is an example of a multi-page screen shot Many screen shots were

provided with P10's July 31, 2007 notice (Exhibit N6).

hundreds or thousands of pages long. Some screen shots did not include full URLs of the screen or image depicted. Other screen shots appear to have been manipulated

such that the image depicted could not be found at the particular URL depicted. Attached as Exhibit R is an example of a screen shot provided with P10's July 31,
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2007 notice (Exhibit N6) depicting framing or inline linking of images in Google search results, which appears to have been manipulated to navigate away from the framed page. This is evident from the fact that the framed page has the same web page URL (circled), yet in each of these examples, different content is shown in the framed page. This exhibit illustrates why Google cannot simply use the circled web page URL to suppress allegedly infringing material, because doing so would not address all of the images P10 claims are infringing. This exhibit also demonstrates how P10 would often send Google screen shots of allegedly infringing material located using other search engines, such as Yahoo, rather than sending notices pertaining to Google's Search services.

Google Notifies P10 of Deficiencies in P10's Notices 56. Google timely advised P10 of the various defects in its notices that

hindered or precluded Google from completely processing them. 57. For example, Google received a purported DMCA notice from P10

dated May 31, 2004. Google emailed P10 the very next day, asking that P10 resubmit the notice in a format compliant with the DMCA and setting forth the steps it needed to take to do so. Attached as Exhibit S is a true and correct copy of Google's June 1, 2004 correspondence. That same day, P10 re-sent its May 31, 2004 notice with additional information regarding the search terms used to identify some of the allegedly infringing URLs listed therein. Google processed the May 31, 2004 and June 1, 2004 notices as one notice, since the URLs listed were identical. 58. On June 4, 2004, P10 re-sent Google its June 1, 2004 notice, but with

some additional URLs added. Attached as Exhibit T is a true and correct copy of Google's June 16, 2004 correspondence explaining the various defects in P 10's June 4, 2004 notice. 59. On June 16, 20043 P10 re-sent its June 4, 2004 notice with still more

URLs added to the list.

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DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. S 512

60.

On June 28, 2004, P10 sent another notice to Google which listed a total

of 316 allegedly infringing URLs. Just eight days later, on July 6, 2004, P10 re-sent Google an identical list of 316 allegedly infringing URLs. Another five days later, on July 11, 2004, P10 again re-sent Google an identical list. In other words, in a span of

5 two weeks, P10 submitted three purported DMCA notices to Google containing 6 identical lists of allegedly infringing URLs, without disclosing that its June 28, July
6, and July 11, 2004 notices contained identical lists of URLs.

61.

On July 15, 2004, after P10 appeared to have ceased supplementing its

lists of infringing URLs, Google emailed P 10 requesting that it send an electronic soft copy list (such as a list in Microsoft Word format) of the URLs P10 contended infringed its copyrights (as opposed to, for example, trademark rights), in order for Google to process the large number of URLs in the list as quickly as possible. Attached as Exhibit U is a true and correct copy of Google's July 15, 2004 letter. 62. On July 19, 2004, P10 emailed Google an Excel spreadsheet listing

infringing URLs, including the 316 listed in the June 28, July 6, and July 11 notices. 63. On July 27, 2004, Google emailed P10 to report that the processing of

the June 1 and June 28 notices was nearly finished. To facilitate the processing, however, Google requested that P10 provide soft copies of the URLs contained in those notices. Google also acknowledged receipt of P10's July 11, 2004 notice. Google also asked that P10 provide only those URLs that were not included in one of P 10's earlier notices, to avoid redundant processing efforts and to make sure that each notice was processed completely. Attached as Exhibit V is a true and correct copy of Google's July 27, 2004 correspondence. P 10 did not respond to Google's requests.
64. Approximately two months passed with no communication from P10.

Then, in late September 2004, P 10's counsel sent Google a draft Complaint, indicating that P10 would file it if the parties could not resolve their dispute immediately. Despite having not received the requested electronic soft copies of

28 P 10's June 1 and June 28, 2004 notices, Google's removals team immediately began
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the laborious process of manually typing in the many hundreds of URLs listed in those notices, for further processing.

65.

Attached as Exhibit W is a true and correct copy of Google's December

20, 2004 letter to P10, pointing out several deficiencies in P10's notices. 66. Attached as Exhibit X is a true and correct copy of Google's August 1,

2005 letter to P10, explaining the numerous deficiencies in P 10's recently-received notices. 67. Attached as Exhibit Y is a true and correct copy of Google's December

21, 2005 letter to P 10, regarding the numerous deficiencies in P 10's recently-received notices.

68.

Attached as Exhibit Z is a true and correct copy of Google's January 31,

2006 letter responding to P 10's previous correspondence, and reiterating the multiple deficiencies in P10's recent notices.
69. Attached as Exhibit AA is a true and correct copy of Google's

correspondence to P10 dated April 26, 2007, describing deficiencies in P10's latest DMCA notice. As the notice included eleven pages of allegedly infringing URLs, Google advised P10 that processing the notice would be faster if P10 provided Google with a soft copy of the notice. P 10 did not do so.

70.

Attached as Exhibit BB is a true and correct copy of Google's August

31, 2007 letter to P10, detailing the deficiencies in several of P 10's recent notices, and providing corrective instructions. Among other things, Google again asked P10 to provide notices in an electronic format. P 10 did not do so. 71. Attached as Exhibit. CC is a true and correct copy of Google's October

31, 2008 letter to P10, identifying various deficiencies in P1 O's recent notices.
72. Attached as Exhibit DD is a true and correct copy of Google's May 5,

2009 letter to P 10 regarding the deficiencies in P 10's recent notice.
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73.

Attached as Exhibit EE is a true and correct copy of Google 's May 20,

2009 letter to P 10, regarding the deficiencies in P 10 ' s recent notice.
74. At no time did P10 ever respond to Google's letters by resubmitting its

notices in an intelligible and DMCA-compliant format . To this day, P10 continues to send notices in these unintelligible formats and refuses to provide Google with soft copy electronic spreadsheets listing individual web page and image URLs.

Processin P10's Notices 75. P 10's notices were so unlike any others Google received , in both their

volume and incomprehensibility, that Google went above and beyond the DMCA's requirements in order to process them , by (1) notifying P10 of the defects and how to correct them; (3) blocking discernable URLs from search results; and ( 4) enforcing Google's three strikes policies for services with subscribers or account holders.
76. my

team carefully reviewed the notices to ascertain whether they identified an allegedly infringing URL that could be reviewed . This exercise was effectively made

impossible , since P10 never specifi cally identified the work that Google should compare with the alleged i nfringing material . Instead, for the vast majority of the

allegedly i nfringing URLs identified in P 10 ' s notices to Google, P10 described the corresponding copyrighted work as either : ( 1) entire websites , such as perfectl0.com, amyweber . net, and ambersmith . net, each of which contained hundreds of distinct images, and most of which were viewable only with a username and password also not provided by P10 ; (2) ranges of pages in various issues of Perfect 10 Magazine that were never provided to Google; ( 3) the unidentified "Perfect 10 Model Boxing DM", which was never provided to Google ; or (4) the unidentified "Perfect 10 DVD", also never provided to Google . Thus, our team was unable to verify P 10's allegations of infringement because P 10 failed to provide Google with specific copyrighted works or detailed descriptions of those works that Google could use to
01980 . 5 1320/2993831.1

DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR
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compare to the content displayed at the allegedly infringing UR.Ls (when such URLs were actually provided). 77. Google nevertheless processed P 10's notices as best it could. My team

checked all discernable URLs (when a complete URL was provided), and 6 7 After verifying

8 the URLs that it could, my team sent them to Google's engineering team, 9 10 Preventing web page URLs from appearing in Web Search results automatically removes the cached link to the allegedly infringing material from Web Search results as well. 78.

79.

Attached as Exhibit FF is a true and correct copy of excerpts of my

spreadsheet reflecting the processing of P10's notices dated May 31, 2004 through June 19, 2005.

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1 2 3 4 5 6

80.

Attached as Exhibit GG is a true and correct copy of excerpts of my

spreadsheet reflecting the processing of P10's notices dated July 16, 2005 through April 24, 2007. This spreadsheet includes much of the same categories of

information as Exhibit FF, and uses the same codes and abbreviations.

28
DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 6 512

1 2 3
81. The URLs that were ultimately prevented from appearing in Web and

4 Image Search results as a result of P 10's notices were tracked in my spreadsheets
and/or by the engineering team.

A.
82.

Google' s Processing of the Group B Notices
Google was able to complete its processing of the majority of the Group

B notices within one to two weeks of receipt. In some cases, these notices (which

9 often contained hundreds of URLs) were processed in as little as two days. Where
P 10 refused to cooperate by sending complete URLs, electronic soft copies of lists of URLs, and the like, my team's processing efforts were delayed.

83.

As referenced above, P10 would often send several identical or slightly

revised versions of the same notice, without specifying the revisions made, thereby forcing my team to re-review and re-process hundreds of URLs.
84. Similarly hindering my team was P10's refusal to consistently provide

lists of URLs in electronic soft copy form. A soft copy URL, which may be copied and pasted directly to/from the browser address bar, allows Google to immediately access the specific page that allegedly contains infringing material. Though P10

initially sent a few soft copy notices at Google's request, it inexplicably stopped doing so immediately prior to filing this lawsuit. In late 2004 and 2005, P10 provided the necessary electronic soft copies of URL lists only sporadically. P 10 has not sent a single electronic soft copy list of URLs with its notices since 2005. Every time P10 refused to abide by Google's DMCA policy in this respect, Google had to undertake the laborious task of manually typing in the hundreds or thousands of URLs listed. Given the poor quality of many of P10's faxes, this was often an

impossible task, as both manual re-typing and use of optical character recognition ("OCR") programs resulted in numerous errors and guess work. Exhibit L37

28 illustrates a poor quality fax received from P 10.
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85.

My team's processing efforts were expeditious, especially in light of

the sheer volume of the notices, their numerous defects, P 10's refusals to cure those defects, and the pendency of this litigation.

We even worked over our Thanksgiving and Christmas holidays to ensure that the notices were timely processed. S. 86. Google's Processing of the Group C Notices In 2007, P 10 stopped sending DMCA notices in hard copy spreadsheet

format, and instead started sending cover letters accompanied by DVDs and hard drives containing dozens or hundreds of folders nested several layers deep. Those folders in turn contained thousands of pages of screenshots of various websites, and thousands of raw image files that P 10 claimed to have downloaded directly from password-protected websites ( i.e., images that P 10 did not locate using Google's search engine). These DVDs and hard drives were, for all practical purposes,

impossible to process. 87. One such "notice" was sent on July 2, 2007. It (like the other Group C The DVDs provided

Notices) was organized differently than earlier P 10 notices.

with this notice contained thousands of screen shots of allegedly infringing material. Upon receipt, my team immediately attempted to further process the notice. These employees began reviewing the accompanying DVDs, examining the thousands of pages of screenshots page by page, and manually typing in the discernable URLs. P10 is the only copyright holder who has refused to provide notices in a format amenable to the standard processing done by the _ team.

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DECLARATION OF S14ANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. S 512

This process also led to a handful of Blogger removals. 88. I created two spreadsheets, similar to those attached as Exhibits FF and

GG, to track Google's efforts to process the Group C Notices. Attached as Exhibit HH are true and correct copies of excerpts of those spreadsheets.

The URLs Google blocked from appearing in search results are tracked in both Exhibit HH and

89.

For the Court's convenience, attached as Exhibit II is a DVD containing

true and correct copies of the complete versions of all four processing spreadsheets, as well as the Blogger and AdSense DMCA processing spreadsheets (referenced and excerpted in hard copy, above).
90. Upon receipt of the other Group C Notices, Google expeditiously

reviewed the notices to determine whether they could be further processed, and notified P10 of the defects therein. P10 never re-submitted any of the Group C

Notices in corrected form, despite having been advised repeatedly of their

28 deficiencies.
01980.513200-99383 ] .1

P10 continues to send notices in this unintelligible format, despite -23-

DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. & 512

I

Google's instructions to the contrary. Indeed, P 10 submitted purported notices in this

2 same defective format as recently as May 7 and June 13, 2009. 3 4 5 Whereby blocking them from appearing in Web or Image Search results in 91. Over the past four-plus years, Google has

6 response to user queries.
7 8 9 These processing efforts are documented in Exhibits FF, GG, HH, and II, among other places.

C. 92.

Google' s Enforcement of its Repeat Infringer Policies Despite the fact that none of P 10's notices were directed to a Google

service with account holders or subscribers, Google carefully reviewed them to ensure that its repeat infringer policies were enforced.
93. For instance, not one of P10's notices was sent to the attention of None of P10's notices And, none of

Google's Legal Support for Blogger DMCA Complaints.

stated that it was complaining of copyright infringement via Blogger.

P 10's notices contained the specific information necessary for Google to locate allegedly infringing material on a Blogger site, namely the post URL or date of the blog entry. Instead, P10's notices routinely provided only the top-level domain for the blog (such as www.elmanaba.blogspot.com), or web page URLs that included numerous blog posts and images. By way of example, attached as Exhibit JJ is an excerpt from www.elmanaba.blogspot.com, identified in P10's December 22, 2005 notice (Exhibit L45), which displays multiple images. Nevertheless, to the extent As my team

possible, my team expeditiously processed P 10's notices for Blogger.

processed the notices for Web and Image Search, they scrutinized them for any references to Blogger websites, as reflected by a "blogger.com" or "blogspot.com" domain name. The - team identified sixteen notices that referenced Blogger
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URLs: the February 7, 2005 (Exhibit L27), February 17, 2005 (Exhibit L29), April 3, 2005 ( Exhibit L34 ), April 11, 2005 ( Exhibit L35), June 12, 2005 (Exhibit L38), June 19, 2005 ( Exhibit L39), July 16, 2005 (Exhibit L40), July 26, 2005 ( Exhibit L41), August 30 , 2005 ( Exhibit L42), September 27, 2005 (Exhibit L43), December 7, 2005 (Exhibit L44 ), December 22, 2005 (Exhibit L45), December 23, 2005 (Exhibit L46), February 13, 2006 ( Exhibit L4), July 2, 2007 ( Exhibit N4) and June 4, 2009 (Exhibit N 17). The _ team then forwarded all such URLs to the members of the - team responsible for further processing regarding Blogger. The Blogger team removed the offending blog post wherever the identity of that post could be discerned (given P10's failure to provide the specific post URL), and noted a strike against the blog account in question , pursuant to Google's infringer policy. Google terminated 0 blog accounts
in response to any DMCA notices ( including P 10's). Attached as Exhibit KK are true and correct copies of excerpts of various processing spreadsheets and e-mails reflecting Google's processing of P10's DMCA notices implicating Blogger.

repeat

94.

= P10 ' s notices failed to specify when , if ever, they were

complaining of AdSense content and did not include the information Google needs to process an AdSense DMCA complaint ( as explained in Google's published AdSense DMCA policy),

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25DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. S 512

1 2 3 4 5 6 7 Attached as Exhibit LL is a true and correct copy of excerpts of various processing spreadsheets reflecting AdSense terminations carried out in response to P 10's DMCA notices.
95. Google's published DMCA policy for AdWords requires complainants

to (1) direct DMCA notices to Google's Legal Support for AdWords Complaints at a special fax number, and (2) provide, among other things, the ad text and visible URL for each infringing ad result. Google cannot identify allegedly infringing AdWords ads without this information.

-

None of P10's DMCA notices were directed to Google's

Legal Support for AdWords, nor did they provide the required information for AdWords complaints, such as the AdWords ad text in question. Counter-notifications Received in Response to P10's Notices 96. Google received many counter-notifications in response to removals of

URLs identified in P10's purported DMCA notices. Attached as Exhibit MM are true and correct copies of various of these counter-notifications. In accordance with Google's standard procedure, the URLs listed in these counter-notifications were 27 reinstated in Google search results. Google sent each of these counter-notifications to 28 P 10, but P 10 never responded to them.
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DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 6 512

'^^^ ^

1

97.

Google even received an a-mail fram P10 stating that one of its own'

2 ^ notices had improperly listed websites which held a valid license ^to display the P 10 3 images Norman Zada had sworn were infringing. Specifically, two weeks after, ^,

4 i Google processed P 10's December 22, 2005 notice, P 10 informed Goggle that it had 5 inadvertently listed as infringing a number of URLs which in fact were affiliates of

6 copyright holders from wham P 10 had purchased images. Thus, those aff Bates had 7 licenses to display the P 10 images in question, and were not actually infringing. 8 Accordingly, Google reinstated the URLs that had been suppressed from Search 9 results, and the Blogger content that had been removed. Attached as Exhibit NN is a 10 true and correct copy of P 10's January 200b counter-notification to its own notice. ll 98. The January 2006 counter-notif cation is a perfect example of why ^

12 ^^ Google can only suppress links to the specific web page or image URL provided by a ^ 13 complainant. Google cannot otherwise identify which uses are licensed, a fair use, or 14 ^ otherwise acceptable to the owner. 15 16 99. Processing Communications for P10 ' s Notices Attached as Exhibit 00 are true and correct copies of various Google ^

17 !, ^ communications infornung P X O that Google had processed P l 0's notices. 18 100. Attached as Exhibit PP is a tree and correct copy of a communication ^

19 ^ Googie received from P 10 regarding Google's processing of P 10's notices. 20 21 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed ^s1^'1PJ 2^, , 2009 at

22 ^ Mountain View, California. 23 24 25 26 27 28
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Shantal Rands Poovala

SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER I7 U.S.C. § 512