Perfect 10 Inc v. Google Inc et al

Filing 440

DECLARATION of Sheena Chou In Support Of MOTION for Summary Judgment as to Copyright Infringement #436 filed by Plaintiff Perfect 10 Inc. (Mausner, Jeffrey)

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Jeffrey N. Mausner (State Bar No. 122385) Law Offices of Jeffrey N. Mausner Warner Center Towers, Suite 910 21800 Oxnard Street Woodland Hills, California 91367-3640 Email: [e-mail] Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff Perfect 10, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx) Consolidated with Case No. CV 05-4753 AHM (SHx) DECLARATION OF SHEENA CHOU IN SUPPORT OF PERFECT 10'S MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION AGAINST GOOGLE BEFORE JUDGE A. HOWARD MATZ Date: August 17, 2009 Time: 10:00 a.m. Place: Courtroom 14, Courtroom of the Honorable A. Howard Matz Discovery Cut-Off Date: None Set Pretrial Conference Date: None Set Trial Date: None Set

PERFECT 10, INC., a California corporation, Plaintiff, v. GOOGLE INC., a corporation; and DOES 1 through 100, inclusive, Defendants. ______________________________ AND CONSOLIDATED CASE.

Declaration of Sheena Chou in Support of Perfect 10's Motion for Summary Judgment Against Google

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DECLARATION OF SHEENA CHOU I, Sheena Chou, declare as follows: 1. I make this declaration in support of Perfect 10's Motion for Summary Judgment against Google and in support of Perfect 10's opposition to Google's motion for summary judgment. Except where otherwise stated, I have direct and personal knowledge of the facts set forth herein and, if called as a witness, could and would competently testify thereto. I am very familiar with the Adobe style DMCA notices that Perfect 10 has sent Google. 2. I currently work part time for Perfect 10, Inc. I have a degree in Economics from UCLA, took two computer courses in high school, and am quite familiar with computers. 3. One of my jobs at Perfect 10 has been to download infringing Perfect 10 images from various pay websites. I have personally downloaded more than 15,000 Perfect 10 images from each of at least twenty of the pay sites listed on pages 5 and 6 of Exhibit 22 to the Declaration of Dr. Norman Zada ("Zada Declaration"), filed concurrently herewith. I have also downloaded thousands of Perfect 10 images from other pay sites listed on those pages. I am very familiar with Perfect 10's images. I have reviewed Perfect 10's website to become familiar with those images. In addition, many of the images from the infringing pay websites contain Perfect 10's copyright notice on the image, as they appear on Perfect 10's website, or are organized in groups of images with titles that clearly indicate that they are from Perfect 10, such as "Your requested P10 Website," "Some of your P10 Gallery," "Your P10 2006 fills," "requested P10 2007's." The pay websites from which I have downloaded thousands of infringing Perfect 10 images include, but are not limited to: 100proofnews.com, 1usenet.com, active-news.com, alibis.com, anonymousnewsfeed.com, astraweb.com, athenanews.com, binaries.net, bubbanews.com, cheapnewsgroups.com, eurofeeds.com, fastusenet.com, galacticgroups.com, giganews.com, infinityusenet.com, maximumusenet.com, newsdemon.com, newsgroup-binaries.com, -1-

Declaration of Sheena Chou in Support of Perfect 10's Motion for Summary Judgment Against Google

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newsgroupdirect.com, newsgroups-download.com, newsreader.com, planetnewsgroup.com, powerusenet.com, rhinonewsgroups.com, supernews.com, thundernews.com, tigerusenet.com, usenet.com, usenet-access.com, usenetunlimited.com, usenetgiant.com, usenetmonster.com, and usenetrocket.com. 4. I have observed that those pay sites also offer thousands of full-length movies and songs. I have observed that Dr. Zada has downloaded large numbers of images from those sites as well. My experience with the pay sites listed on pages 5 and 6 of Exhibit 22 of the Zada Declaration is that they all offer the same images, but that they rotate the images that they offer. In other words, a particular group of Perfect 10 images ("P10 Images") may be available for download for several months, and then not available for several months, and then once again available. While one group of Perfect 10 images may not be available, other groups are. The period of time a group of images is available is often called the "retention period." The websites have different retention periods. The longer the retention period, the greater the number of images that are available for download at any one time. That is why I was able to download more images from some sites than from others. But in the end, the P10 Images available from the aforementioned websites over time appear to be the same. 5. I have been able to readily find P10 Images on such websites by doing searches on "P10"; P10 in combination with a date, such as "P10 2004"; the model name; or the image URL of the image, such as Marisa_Miller_44.jpg. 6. One of my other assignments has been to determine whether Google has removed from its search results, URLs identified by Perfect 10. I have been able to do this simply by inputting the URL provided by Perfect 10, without the starting http:// or www., into the Google search box. 7. The Adobe files provided by Perfect 10 in its notices have been sufficient to allow Google to find the infringing material. I know this because I have extracted hundreds of URLs from those same files using Adobe's URL extraction feature, and have placed those same URLs into Google's search box or into my browser bar to -2-

Declaration of Sheena Chou in Support of Perfect 10's Motion for Summary Judgment Against Google

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verify that those web pages were still either directly linked to by Google in its search results, or were still on Google's blogger.com servers. I was able to locate the infringing material in this manner using the URLs provided by Perfect 10 in its notices. 8. One of my other assignments has been to determine whether Google has removed full-size Perfect 10 images from Google's blogger.com servers in response to Perfect 10's notices. Between May 18, 2009 and July 3, 2009, I verified that at least 3737 blogger.com URLs which were extracted from Perfect 10's Adobe notices sent to Google from July 2, 2007 through July 9, 2008, when inputted into my browser bar, still resulted in P10 Images accessible to Internet users. I used our Adobe program to resave those images in PDF format. The date shown on each Adobe file is the date that I resaved the image. I have verified that at most 71of the blogger URLs, out of approximately 3808 URLs identified by Perfect 10 in its notices, have been disabled as of May 18, 2009. Most of these 71 URLs were not disabled until months after Google first received notice from Perfect 10. The vast majority of the blogger.com URLs in Perfect 10's notices, at least 3737 out of 3808, had not been disabled at the time that I performed this assignment, many months after Perfect 10 had sent the notices to Google. My work is contained in Exhibit 9 (the disk), in a folder labeled "blogger up 51809." The adobe files in that folder show the dates for which full-size P10 Images were still available on blogger.com servers. The excel spreadsheet that I made, which summarizes the results of my work, is contained in the same folder in Exhibit 9 entitled "blogger up 51809." The excel spreadsheet gives the URL of the web page on the left, with the starting http:// removed. I have been able to locate the infringing P10 Images by simply inputting that URL into my browser bar without the http://. The "B" and "C" columns give dates when those images were identified in Perfect 10 DMCA notices to Google. The date on the right gives the last date that Perfect 10 has an Adobe file showing that the P10 Image was still available at that blogger.com URL. (Those Adobe files are contained in Exhibit 9, in the folder entitled "blogger up 51809.") The only URLs that I was not able to retrieve the P10 Image for between -3-

Declaration of Sheena Chou in Support of Perfect 10's Motion for Summary Judgment Against Google