Perfect 10 Inc v. Google Inc et al

Filing 478

DECLARATION of Les Schwartz in opposition to MOTION for Summary Judgment #457 , 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 Summary Judgment #458 , 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 , MOTION for Summary Judgment #456 filed by Plaintiff Perfect 10 Inc. (Mausner, Jeffrey)

Perfect 10 Inc v. Google Inc et al

Doc. 478

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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. Case No. CV 04-9484 AHM (SHx) Consolidated with Case No. CV 05-4753 AHM (SHx)

DECLARATION OF LES SCHWARTZ SUBMITTED IN OPPOSITION TO GOOGLE'S THREE MOTIONS FOR GOOGLE, INC., a corporation; and SUMMARY JUDGMENT RE DMCA DOES 1 through 100, inclusive, SAFE HARBOR FOR ITS WEB AND IMAGE SEARCH, BLOGGER Defendant. ______________________________ SERVICE, AND CACHING FEATURE (DOCKET NOS. 428, 427, AND 426) AND CONSOLIDATED CASE. BEFORE JUDGE A. HOWARD MATZ Date: October 5, 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

Declaration of Les Schwartz
Dockets.Justia.com

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I, Les Schwartz, declare as follows: 1. I am the president of Les Schwartz, Inc. dba DecisionBar

Trading Software. Our software, called DecisionBar, assists individuals and professional traders in making trading decisions. My company owns the copyright for the computer program and also the trademark DecisionBar. The software is leased on a monthly basis. I submit this declaration in connection with Perfect 10's lawsuit against Google. All of the matters stated herein are of my own personal knowledge, except where otherwise stated, and if called as a witness, I could and would testify competently thereto. 2. Starting in approximately September of 2007, I began sending DMCA

notices to Google, to try to get Google to stop linking to and hosting websites that sell pirated versions of my company's software and use our trademark. I crafted my initial notices based on instructions on Google's website. I followed Google's requirements and put in the swearing language Google requested as well as my contact information as Google requested. I understand that since Google has designated my DMCA notices as Confidential, copies of those notices will be submitted by Mr. Mausner as exhibits to his declaration, filed under seal. Google's instructions asked me to fax my notices, which I did. After I sent Google approximately 15 to 20 notices by fax, I received an email from Google stating that all my notices that were sent by fax should be emailed. I re-sent the notices by email that I had earlier faxed, along with perhaps 20 to 30 more notices. So in total, I sent Google somewhere between 35 and 50 notices. 3. Google asked that I resend my notices in a different format, by email.

Google asked me to provide a) "Copyrighted URL"; b) "Allegedly infringing URL"; and c) "Make BRIEF reference to the text/images which you feel are in violation of your own material." A true and correct copy of this email is attached as Exhibit 1. I had already provided the same information in at least as much detail -1Declaration of Les Schwartz

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to Google in my prior notices, following Google's instructions, but Google asked me to resend this information again in a different format, which I did. Attached as Exhibit 2 is a true and correct copy of one such email that I sent to Google on June 4, 2008, which followed Google's new instructions. 4. Attached as Exhibit 3 is a true and correct copy of an email that I

received from Google on June 17, 2008, in response to my June 4 email. In this email, Google claims that "we were unable to locate the allegedly infringing content on the page(s) in question." That is completely untrue. All Google had to do was click on the links I provided in my notices and then search for "decisionbar". 5. I wrote back to Google on about June 17, so stating. A true and

correct copy of my email is attached as Exhibit 4. I was very angry with the way Google was avoiding removing the pirated software of my company. I wrote: Each of these sites are selling pirated version of our copyrighted software using our trademark. Your statement that you are "unable to locate the allegedly infringing content" is actually laughable. I'm sure Google would not take that view if someone was pirating selling their proprietary software. As an example, lets look at a link where YOU are the webmaster: http://groups.google.com/group/be.finance/browse_thread/thread/d1e3 16c832d03aff/ It is obvious that this site is illegal selling pirated software. Do a search for DecisionBar among all of the pirated software you are allowing them to sell. How about this one: http://www.youseewealth.com/forum/archive/index.php/t-1081.html The use of DecisionBar with the word "Crack" should be a dead give away. They even use content from our website to sell our stolen product. There is no question in my mind that you are being disingenuous when you claim you can't find the infringing material, and are just trying to make me jump through hoops. -2Declaration of Les Schwartz

Exhibit 1

To: [e-mail] From: [e-mail] (by way of Les Schwartz <[e-mail]>) Subject: Re: [#205011304] Your previous requests At 07:05 AM 11/19/2007, you wrote: >Hi Les, > >Please find a copy of multiple complaints you sent to our office, >previously. As you aware, you now have a signature on file with us. Please >let us know which of these requests are still of concern to you and feel >free to email us those URLs in the format which we have requested in >earlier emails.

1. (a) Copyrighted URL: www.____________.com (b) Allegedly infringing URL: www.____________,com (c) Make BRIEF reference to the text/images which you feel are in violation of your own material.

>We thank you for your cooperation and patience as we sort out the confusion. > >Regards, >The Google Team

Exhibit 2

From: Les Schwartz <[e-mail]> Subject: Trademark Infringement Requests Date: Wed, 04 Jun 2008 14:08:08 -0400 Dear Google, Some months ago we sent you numerous DMCA trademark infringement requests. At that time you put our signature on file and asked that we submit request via email in the format below. Here is a list of sites infringing on our trademark. It should be pointed out that these are mostly sites which sell bootleg software and have no place being listed. These site are selling bootleg copies of our copyrighted software using our registered trademark. Our TradeMark is DecisionBar. Reg. #3,279,777 1. (a) Copyrighted URL: www.decisionbar.com (b) Allegedly infringing URL: http://www.fullfileaccess.com/warez-download-full-version-rapidshare-filecrack-serial-keygen-decision+bar.html (c) Make BRIEF reference to the text/images which you feel are in violation of your own material. Selling bootleg copies of our copyrighted software using our registered trademark: DecisionBar 2. (a) Copyrighted URL: www.decisionbar.com (b) Allegedly infringing URL: http://www.youseewealth.com/forum/archive/index.php/t-1081.html (c) Make BRIEF reference to the text/images which you feel are in violation of your own material. Selling bootleg copies of our copyrighted software using our registered trademark: DecisionBar

3. (a) Copyrighted URL: www.decisionbar.com (b) Allegedly infringing URL: http://traderclub.com/discus/messages/18/1804.html?ThursdayMay3120071222 am (c) Make BRIEF reference to the text/images which you feel are in violation of your own material. Selling bootleg copies of our copyrighted software using our registered trademark: DecisionBar 4. (a) Copyrighted URL: www.decisionbar.com (b) Allegedly infringing URL: http://www.bradynet.com/bbs/jobs/100267-0.html (c) Make BRIEF reference to the text/images which you feel are in violation of your own material. Selling bootleg copies of our copyrighted software using our registered trademark: DecisionBar

5. (a) Copyrighted URL: www.decisionbar.com (b) Allegedly infringing URL: http://groups.google.com/group/be.finance/browse_thread/thread/d1e316c832d 03aff/8708005bd0772ff3 (c) Make BRIEF reference to the text/images which you feel are in violation of your own material. Selling bootleg copies of our copyrighted software using our registered trademark: DecisionBar 6. (a) Copyrighted URL: www.decisionbar.com (b) Allegedly infringing URL: http://www.forexnews.com/fxforum/forum/forum_posts.asp?TID=1809 (c) Make BRIEF reference to the text/images which you feel are in violation of your own material. Selling bootleg copies of our copyrighted software using our registered trademark: DecisionBar

7. (a) Copyrighted URL: www.decisionbar.com (b) Allegedly infringing URL: http://www.forexnews.com/fxforum/forum/forum_posts.asp?TID=1809 (c) Make BRIEF reference to the text/images which you feel are in violation of your own material. DecisionBar 8. (a) Copyrighted URL: www.decisionbar.com (b) Allegedly infringing URL: http://www.fullreleases.com/NewMembers/full-ddl-download-serial-cracktorrent-new-Decisionbar.php?search=Decisionbar (c) Make BRIEF reference to the text/images which you feel are in violation of your own material. Selling bootleg copies of our copyrighted software using our registered trademark: DecisionBar 9. (a) Copyrighted URL: www.decisionbar.com (b) Allegedly infringing URL: http://www.daytradetools.com/new.htm (c) Make BRIEF reference to the text/images which you feel are in violation of your own material. Selling bootleg copies of our copyrighted software using our registered trademark: DecisionBar 10. (a) Copyrighted URL: www.decisionbar.com (b) Allegedly infringing URL: Shocking-Review.com/Decision-Bar (c) Make BRIEF reference to the text/images which you feel are in violation of your own material. Using our registered trademark: DecisionBar Please note that #10 was also filed as an adwords complaint. Thank you, Les Schwartz

Exhibit 3

Date: Tue, 17 Jun 2008 21:24:36 -0000 From: [e-mail] To: "Les Schwartz" <[e-mail]> Subject: Re: [#290277671] Your Complaint User-Agent: Neotonic Trakken/combo_frontend-3.1.50D X-Antivirus: AVG for E-mail 8.0.100 [270.3.0/1505] Hi Les, We have received your DMCA complaint dated June 4, 2008. Upon recent review of the website(s) mentioned in your complaint, we were unable to locate the allegedly infringing content on the page(s) in question. If this matter is still a concern, please reply to this email with detailed information to enable us to locate the allegedly infringing content. Please note that in matters involving trademark, it is best to directly address the webmaster of the page in question. Once the webmaster has altered the page in question, Google's search results will automatically reflect this change after we crawl the site. R e g a rd s , The Google Team

Exhibit 4

To: [e-mail] From: Les Schwartz <[e-mail]> Subject: Re: [#290277671] Your Complaint X-ELNK-Trace: 3b4972aff6260a054969b67446a45b3899594df05feb3df10ff772a7796ae10760bc1103a8f1c5d93 50badd9bab72f9c350badd9bab72f9c350badd9bab72f9 X-Originating-IP: 66.32.17.55 X-Antivirus: AVG for E-mail 8.0.100 [270.3.0/1505] Dear Google Team, Each of these sites are selling pirated version of our copyrighted software using our trademark. Your statement that you are "unable to locate the allegedly infringing content" is actually laughable. I'm sure Google would not take that view if someone was pirating selling their proprietary software. As an example, lets look at a link where YOU are the webmaster: http://groups.google.com/group/be.finance/browse_thread/thread/d1e316c832d03aff/ It is obvious that this site is illegal selling pirated software. Do a search for DecisionBar among all of the pirated software you are allowing them to sell. How about this one: http://www.youseewealth.com/forum/archive/index.php/t-1081.html The use of DecisionBar with the word "Crack" should be a dead give away. They even use content from our website to sell our stolen product. There is no question in my mind that you are being disingenuous when you claim you can't find the infringing material, and are just trying to make me jump through hoops. You have all the information you need in my original letter. I expect you to do what is right. As a long time Google advertiser, I would have expected better treatment. Regards, Les Schwartz Decisionbar Trading Software

Les Schwartz DecisionBar Trading Software
6555 NW 9th Ave., #403

Ft. Lauderdale, FL 33309 Phone: [phone], FAX: [phone]

Email1: [e-mail] Email2: [e-mail]
http://www.decisionbar.com

No virus found in this incoming message. Checked by AVG. Version: 8.0.100 / Virus Database: 270.3.0/1505 - Release Date: 6/16/2008 7:20 AM

Exhibit 5

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