Perfect 10 Inc v. Google Inc et al

Filing 444

DECLARATION of Dean Hoffman 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 21800 Oxnard Street, Suite 910 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 PERFECT 10, INC., a California corporation, Plaintiff, v. GOOGLE, INC., a corporation; and DOES 1 through 100, inclusive, Case No. CV 04-9484 AHM (SHx) Consolidated with Case No. CV 05-4753 AHM (SHx) DECLARATION OF DEAN HOFFMAN BEFORE JUDGE A. HOWARD MATZ

Date: August 17, 2009 Time: 10:00 a.m. Place: Courtroom 14, Courtroom of the Defendant. Honorable A. Howard Matz ______________________________ AND CONSOLIDATED CASE. Discovery Cut-Off Date: None Set Pretrial Conference Date: None Set Trial Date: None Set

Declaration of Dean Hoffman

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I, Dean Hoffman, declare as follows:

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1.

I am the owner of D.H. Trading

Systems

LLC and president

of Hoffman Asset Management, Inc. I was formerly the president of
Strategic Trading Systems, Inc. ("Strategic Trading"). Strategic Trading
was in the business of selling software that assisted in the trading

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of

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commodity futures. I submit this declaration in connection with Perfect
10's lawsuit against Google. own personal

All of the matters stated herein are of my knowledge, except where otherwise stated, and if called as a

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witness, I could and would testify competently thereto.
2.

The software sold by Strategic Trading was copyrighted.

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There were websites that copied the software and offered it for download on the Internet, without Strategic Trading's permission. Most of these

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websites charged for the download, and of course Strategic Trading did not receive any of this money. Google's search engine provided, and still provides, links to the websites offering the infringing downloads of our
software.

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3.

Starting in about 2005,I sent DMCA notice and take-down

letters to Google, to get Google to remove the links to these websites

offering Strategic Trading's software without permission. I sent
approximately ten such notice and take-down letters to Google.

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4.

At first, for a couple of the notices, it appeared that Google

may have taken down some of the offending links. However, Google sent

my notice and take-down letters to a website called Chillingeffects.org. Chillingeffects.org published some of my notice and take-down letters on
the Internet. Google then included links in its search results to my takedown notices on the Chillingeffects.org website. My take-down notices
stated the URLs of the infringing websites, so people could find where

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they could download the infringing software just as easily through Google
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Declaration of Dean Hoffman

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and Chillingeffects.org.

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realized that the posting of my take-down

notices on Chillingeffects.org could draw as much or more attention to the

infringing links than simply having the links on Google's search results. I
contacted one of the heads of Chillingeffects.org and told her they were

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just republishing those infringing links, but she refused to remove my
take-down notices.

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5.

Nevertheless, I continued to send take-down notices to

Google, hoping that either Google or Chillingeffects.org would realize what they were doing, and stop publishing my notices. However, it soon
became clear to me that Google was not even removing the infringing

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links I put in my take-down notices. I kept checking back and performing
searches on Google to see

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if they were removing the links I gave notice

of, and those links were still in the search results after my notices.

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6.

When I continued to send notices, Google wrote back to me

on a couple of occasions, saying that they wanted the notices in electronic

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format when I faxed them, or saying they wanted the notices in fax format when I emailed them. I thought Google was just giving me the runaround, but

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sent the notices again in whatever format they asked me for.

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Nevertheless, Google did not remove the infringing links,, after the first couple of notices.

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7.

At that point I gave up, because I realized that Google was

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not going to remove the infringing links, and any take-down notice would

just be re-published by Google on Chilling Effects, so I was just wasting
my time.

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I

realtzed that Google did not want to take down the infringing

links. I believe that Google punishes copyright owners for sending takedown notices by republishing the links on Chillingeffects.org, for anyone

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who would dare to submit a take-down notice to Google. I think Google
operates punitively toward copyright owners. They have no intent to
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Declaration of Dean Hoffman

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cooperate with copyright owners, because they merely re-publish the

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infringing links on Chillingeffects.org, even in those few cases where they
actually do remove some infringing links.

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8.

My experience is that Google made some attempt to take

down links from the first couple of notices, but sent the notices to

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Chillingeffects.org to let the copyright owner know that it wasn't going to
do them any good to send take-down notices. After the first couple

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notices, when I had the nerve to send some more, Google just didn't do anything at all to remove the infringing links.

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9.

Strategic Trading had to stop offering new software for sale,

because we were unable to control infringement on the Internet. In other

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words, we were driven out of this line of business because of Google's refusal to remove infringing links from its search results and sending my take-down notices to Chillingeffects.org for publication on the Internet.

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I declare under penalty of perjury under the laws of the United
rg, Penngylvania.

States

of

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America that the foregoing is true and correct to the best of my knowledge.

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Declaration of Dean Hoffman