Perfect 10 Inc v. Google Inc et al

Filing 483

DECLARATION of Sheena Chou 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)

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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 CASE NO. CV 04-9484 AHM (SHx) Consolidated with Case No. CV 05-4753 AHM (SHx) DECLARATION OF SHEENA CHOU SUBMITTED IN OPPOSITION TO GOOGLE'S THREE MOTIONS FOR SUMMARY JUDGMENT RE DMCA SAFE HARBOR FOR ITS WEB AND IMAGE SEARCH, BLOGGER SERVICE, AND CACHING FEATURE (DOCKET NOS. 428, 427, AND 426) 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

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

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DECLARATION OF SHEENA CHOU I, Sheena Chou, declare as follows: 1. I submit this declaration in connection with Perfect 10's lawsuit against Google. 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 Perfect 10's website and with the Adobe style DMCA notices that Perfect 10 has sent Google . I have also read Google's published instructions for submitting Blogger and Image Search DMCA notices. 2. 3. I currently work part time for Perfect 10, Inc. I have a degree in One of my jobs at Perfect 10 has been to download infringing Perfect 10 Economics from UCLA and am quite familiar with computers and the Internet. 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, newsgroupdirect.com, newsgroups-download.com, newsreader.com, -1Declaration of Sheena Chou

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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 verify that those web pages were still either directly linked to by Google in its search -2Declaration of Sheena Chou

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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. I have been able to extract URLs from Adobe documents at the rate of approximately 5 URLs a minute. 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. By "blogger.com URLs," I will mean web pages or URLs that include the term blogger.com. By "blogspot.com URLs," I will mean web pages or URLs that include the term blogspot.com. From what I have seen, Google's blogspot.com hosting program is different from its blogger.com image storage program. The blogspot.com site typically displays medium-size P10 Images and text (see for example Exhibit 1, which I downloaded from blogspot.com on August 3, 2009. I have covered the non-P10 Image on that page. When I have clicked on such medium-size P10 Images, a full-size P10 Image on a blogger.com web page has often appeared on my screen, devoid of any text. (An example of this is shown in Exhibit 2, which is what appeared on my screen when I clicked on the medium-size P10 Image shown in Exhibit 1. I downloaded this image from blogger.com on August 3, 2009. 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 71 of 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 -3Declaration of Sheena Chou

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work relating to P10 Images on blogger.com web pages 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:// and possibly www. removed. I have been able to locate the infringing P10 Images by simply inputting that URL into my browser bar without the starting http:// and possibly www. The "B" and "C" columns of the spreadsheet 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 May 18, 2009 and July 3, 2009 are the ones that are shown in red at the bottom of the spreadsheet. 9. I was also assigned to determine the number of blogspot.com post URLs and other blogspot.com URLs that Perfect 10 identified to Google in its notices, and the number of identified blogspot.com post-URLs that Google had not suppressed as of July 2009. I will use the term "post URL" to refer to what Google's Blogger DMCA instructions call the "permalink of the post." I found at least 219 blogspot.com URLs that were not post URLs, and at least 329 blogspot.com post URLs, for a total of at least 548 blogspot.com URLs, that Perfect 10 identified to Google in its Adobe style notices, beginning June 28, 2007. Of the 329 post URLs identified to Google, at least 201 had not been suppressed as of July 2009. My work is contained in Exhibit 9, the disk, in a folder labeled "Post URLs not removed." In that folder, I have also included a spreadsheet labeled "Infringing post URLs not removed," which is similar to the one appearing in Exhibit 45 to the Zada Declaration, except larger. The left column contains the infringing identified blogspot.com post URL, with the starting http:// and -4Declaration of Sheena Chou

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possibly www. removed. The second column, entitled "Notice Date," contains the date of the DMCA notice which identified that infringing web page. The third column, entitled "Up," contains the last date I verified that webpage was still live. The final column, entitled "Web Search," contains a "YES" if Google was directly linking to that infringing web page via its Web Search results. I have also included adobe files which provide evidentiary support for the spreadsheets, and a spreadsheet labeled "other blogspot URLs," which has a listing of 219 other infringing blogspot.com web pages that were identified by Perfect 10s Adobe style notices. 10. I have observed that in a number of cases, the full-size blogger image still appears on Google's blogger.com servers, even when the original blogspot site that displayed those images no longer exists. In those situations, there is no permalink or top level domain of the blog and date of the blog entry that Perfect 10 could provide, as requested by Google. Furthermore, Perfect 10 has provided the top level domain with the date, as well as the permalink, in most notices, because it has sent to Google a copy of the infringing web page which typically displays that information. Perfect 10 has also provided to Google, in its DMCA notices, the complete URL of the blogger.com web page containing the full-size P10 image, along with a copy of that web page. 11. I am quite familiar with perfect10.com, which is not a blog. The images on perfect10.com cannot be identified by a "permalink of the post" as there is no such thing on perfect10.com. I have examined thousands of infringing blogger.com web pages that Perfect 10 included in its DMCA notices to Google. Those web pages consisted of a P10 Image and a blogger.com URL. There was no other text on those web pages, no posts, and no "permalink of a post." 12. I have studied Google's DMCA instructions for Image Search and for Web Search. Based on my experience, I believe that Google Image Search instructions are in most cases completely unnecessary, and in many cases, unworkable, as illustrated by the website nudecelebforum.com. This website has infringed thousands -5Declaration of Sheena Chou

Exhibit 1

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Saturday, April 21, 2007

Amy Weber Wallpapers

http://poze-fete.blogspot.com/2007/04/amy-weber-wallpapers.html (1 of 6)8/3/2009 1:56:00 PM

Exhibit 2

Amy+Weber+Wallpapers+7.JPG (image)

http://4.bp.blogspot.com/_UeqztKpMe7Q/RiogPYre18I/AAAAAAAAAoA/mRmacsuVnpQ/s1600-h/Amy+Weber+Wallpapers+7.JPG8/3/2009 1:56:04 PM