Perfect 10 Inc v. Google Inc et al

Filing 503

REPLY 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 Public Redacted filed by Counter Claimant Google Inc, Defendant Google Inc. (Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 503

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) michaelzeller o uinnemanu l.com 8 5 South Figueroa Street, 10 Floor Los Angeles, California. 90017-2543 Telephone: [phone] Facsimile: [phone] Charles K. erhoeven (Bar No. 170151) uwneman_ uel.com_ charlesverhoeven Floor 5OCa1iifoornia^Street, 2 San Francisco? California 94111
Rachel Herrick Kassabian (Bar No. 191060) rachelkassabian(^quinnemanuel.com 555 Twin Dolphin rive, Suite 560

Redwood Shores, California 94065 Attorneys for Defendant GOOGLE INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
PERFECT 10, INC ., a California corporation, .

CASE NO. CV 04-9484 AHM (SHx) Consolidated with Case No. CV 05753 AHM (SHx)] DEFENDANT GOOGLE INC.'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 512 ( b ) ATURE R ITS CACHING Consolidated Separate Statement, Rebuttal Declarations of Rachel Herrick Kassabian, Shantal Rands Poovala, and Bill Brougher filed concurrently herewith] Hon. A. Howard Matz Date: None Set (taken under submission) Time: None Crtrm.: 14 Discovery Cut--off: None Set Pretrial Conference Date: None Set Trial Date: None Set PUBLIC REDACTED

Plaintiff,
vs. GOOGLE INC. a corporation; and DOES 1 throuj^ 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 I through 100, inclusive, Defendants.

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TABLE OF CONTENTS
Page

PRELIMINARY STATEMENT ................................................................................. 1 ARGUMENT ............................................................................................................... 1 L P10 HAS RAISED NO MATERIAL DISPUTE REGARDING GOOGLE'S SATISFACTION OF THE DMCA'S THRESHOLD REQUIREMENTS ............. ................................................... ..................... 2 P 10 DOES NOT DISPUTE (AND THUS CONCEDES) THAT GOOGLE STORES NO IMAGES IN ITS CACHE ........................................ 2 P 10 HAS IDENTIFIED NO DISPUTED MATERIAL FACTS PRECLUDING GOOGLE'S ENTITLEMENT TO SAFE HARBOR
UNDER SECTION 512 (B) FOR ITS CACHING FEATURE ......................... 3 A. There Is No Material Fact In Dispute Regarding Whether

II. III.

Google's Cache Is Intermediate And Temporary .................................... 4 B. Google Satisfies All Eight Conditions For Section 512(b) Safe Harbor ............................................................................ ......................... 5 1. 2. 3. 4. 5. 6. 7. 8. P10 Misapprehends Section 512(b)'s First Condition .................. 6 P10 Has No Factual Basis For Its Purported Dispute Of The Second Condition .................................................................. 6 P10 Does Not Dispute That Google Satisfies The Third Condition ...................................................................................... 7 P10 Has No Factual Basis For Its Purported Dispute Of The Fourth Condition ................................................................... 8 P10 Does Not Dispute That Google Satisfies The Fifth Condition ...................................................................................... 8 P10 Does Not Dispute That Google Satisfies The Sixth Condition ...................................................................................... 8 P10 Misreads The Seventh Condition ..........................................9 P 10 Fails To Identify A Triable Issue Regarding The Eighth Condition ......................................................................... 10

CONCLUSION .......................................................................................................... 12

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TABLE OF AUTHORITIES
Page

Cases Field v. Google, 412 F. Supp. 2d 1106 (D. Nev. 2006) ....................................................1, 4, 5, 6, 7 Statutes 17 U.S.C. § 512 ..................................................................................................passim

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PrelimigM Statement Google's caching feature temporarily and automatically stores historical (or "cache") copies of third-party websites that Google crawls and indexes for its Web Search service, gives Web Search users the option to view these copies for a brief period of time, and doesn't charge a dime for it. Section 512(b) of the DMCA provides a safe harbor for this activity. Google meets every condition necessary for that safe harbor, and Perfect 10 ("P 10") has failed to raise anything approaching a triable issue. Far from clarifying the issues this Court must decide, P10 has raised a host of irrelevant points in the hopes that something-anything---might stick. In the scant two pages of briefing it actually devotes to the caching issue, P10 focuses almost entirely on a cherry-picked handful of examples that it contends were stored for an allegedly "non-temporary" time. But a few outlier examples from years ago (which themselves were stored temporarily,
do not change the fact that Google's cache storage is temporary and intermediate. Indeed, P 10 itself acknowledges that at least one district court has already ruled precisely this. See Field v: Google, 412 F. Supp. 2d 1106 (D. Nev. 2006). Nor does P10 fare any better with its insistence that the 512(b) safe harbor is

somehow limited to "

11

(apparently other than Google). Again, Field already held to the contrary. In sum, P JO's rhetoric aside, it does not contest the applicable law, nor does it present even a single material fact in dispute. Google's motion should be granted. ArLyument Section 512(b) of the Digital Millennium Copyright Act ("DMCA") provides safe harbor for the operation of Google's caching feature. P 10 raises a barrage of 25 arguments and purported reasons why Google cannot qualify for this safe harbor, 26 but in doing so, P10 fails to address an alternative ground for summary judgment,
27 misunderstands the cache, misreads the statute, and cites only a single case-which

28 unambiguously supports Google's motion.
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Google meets all conditions and requirements for safe harbor, and Google's motion should be granted. 1. P10 HAS RAISED NO MATERIAL DISPUTE REGARDING GOOGLE'S SATISFACTION OF THE DMCA'S THRESHOLD REOUIREMENTS. Google meets all three of the threshold requirements for DMCA safe harbors. See Google's Motion for Summary Judgment re: Google's Entitlement to Safe Harbor Under 17 U.S.C. § 512(d) For Web And Image Search ("Search Motion") at 17-18. Specifically, Google (1) is a service provider, (2) has an appropriate and reasonably implemented repeat infringer policy, and (3) does not interfere with any known standard technical measures. See id.
As fully explained in Google's Reply in support of its Search Motion ("Search Reply"), Perfect 10 does not dispute any of the material facts demonstrating Google's satisfaction of those requirements. See Search Reply at 1-6.1 There is no triable issue regarding these requirements.

II.

P10 DOES NOT DISPUTE (AND THUS CONCEDES) THAT GOOGLE STORES NO IMAGES IN ITS CACHE. P10's opposition completely fails to address a fundamental and key point: No

images are stored in Google's cache. See Declaration of Bill Brougher in Support of Google's Motion for Summary Judgment re: Google's Entitlement to Safe Harbor Under 17 U.S.C. § 512 ("Brougher Dec.") ¶ 7; see also Defendant Google's Consolidated Separate Statement of Undisputed Facts in Support of Google's Motion for Summary Judgment re: Safe Harbor Under 17 U.S.C. § 512(b) for its Caching Feature ("Cache Consol. Statement") ¶ 7. P I0's entire case is premised on infringements of images, but there is not a single image in the cache, infringing or otherwise. Each of the images P10 presents in its various examples is stored on and 27 1 Google hereby incorporates its arguments from the Search Motion and the 28 supporting Reply as though fully set forth herein.
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displayed by -a third-party website, not Google. Accordingly, Google argued in its moving papers that to the extent P 10's claims regarding Google's cache feature are based upon links to (as opposed to storage of) infringing images via its cache,
Google is entitled to summary judgment on those claims pursuant to Section 512(d). See Cache Motion at 9 n.11; see also Search Motion at Sec. IL Perfect 10 does not dispute this at all in its opposition, and therefore concedes this ground for summary judgment.

III.

P10 HAS IDENTIFIED NO DISPUTED MATERIAL FACTS PRECLUDING GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER SECTION 512 (B ) FOR ITS CACHING FEATURE. Section 512(b) provides safe harbor for service providers "by reason of the

intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider" (17 U.S.C. § 512(b)) and imposes eight conditions for this safe harbor (17 U.S.C. § 512(b)(1)(A)-(C) and 17 U.S.C.
§ 512(b)(2)(A)-(E)). In arguing against summary judgment on this safe harbor, P 10 first claims that Google's cache is not "intermediate and temporary", citing to a handful of screenshots from several years ago that supposedly reflect cache storage of a few web pages of approximately a year. This unremarkable "evidence" is entirely consistent with Google's moving papers, which made clear that for the vast majority of web pages, the cache is refreshed every few weeks -sometimes more frequently, sometimes less. These outdated outliers do not defeat summary judgment. Second, P10 makes a halfhearted stab at contesting some (but not all) of the eight conditions under Section 512(b). None of P 10's protestations create a triable issue.2

P 10 directs the bulk of its opposition brief to arguments directed at Google's Search Motion, thereby submitting a total of 48 pages of briefing in opposition to Google's Search Motion in violation of this Court's briefing page limits. Google responds to those arguments in its Reply in support of its Search Motion. To the
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A.

There Is No Material Fact In Dispute Re ardin Cache Is Intermediate And Temporary.

Whether Google's_

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P 10 has not pointed to any disputed facts that refute the record reflecting that storage is temporary and intermediate, notwithstanding a few outliers in the refresh rate that P10 managed to find. Indeed, at least one district court in this Circuit has already determined that Google's cache falls within Section 512(b)'s definition of "intermediate and temporary storage of material." See Field, 412 F. Supp. 2d at 1124-25 (finding that the storage of materials in its cache for approximately 14 to 20 days is "temporary" under Section 512(b)). That finding is not surprising, since Google's cache is indeed a temporary repository for the textual portions of many of the web pages the Googlebot crawls. See Brougher Dec. ^ 6. Nor do P 10's examples disprove that those cache copies were still "temporary," as opposed to permanent.

In hopes of creating a triable issue, P10 claims that Google's cache storage is not in fact "intermediate and temporary" by pointing to a handful of screenshots of purported cache results that it claims were stored for between . But

even assuming these stray examples are accurate screenshots and have not been manipulated in any way, they do not contradict the material facts-that "[ijn the vast majority of cases, the cache will be refreshed approximately every few weeks." See Brougher Dec. 1 6.3

extent necessary, Google incorporates each of those arguments by reference into the present motion.

3 P 10 makes a related claim that Cache Consol. Statement ¶ 9. This is incorrect-Google has already established that it maintains a cache copy "only until the Googlebot next visits the particular web page" (Brougher Decl. ¶ 6), and Field 27 has already established that "refreshing" the cache is sufficient for the Section 28 512(b) safe harbor.
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See Rebuttal Declaration of Bill Brougher in Support of GoogIe's Motions for Summary Judgment re: Google's Entitlement to

8 Safe Harbor Under 17 U.S.C. § 512 ("Rebuttal Brougher Dec.") ¶¶ 3-5. Under Field
and by any reasonable interpretation, an average two-week refresh rate-even with some stray outliers in either direction-is "intermediate and temporary" storage. Moreover, P 10's arguments about storage in the cache are not

just incorrect they are also irrelevant. Google's cache stores HTML text, but again, it does not store copies of images. Brougher Dec. ¶ 7. P 10 does not dispute this fact in its opposition brief. Thus, there are no P 10 images-or any other images for that matter-stored in Google's cache, on a temporary basis or otherwise. Any images P 10 has submitted as allegedly from Google's cache (including the images from Exhibits 9 and 26 to the Declaration of Norman Zada) are stored on and displayed from third-party websites, not from Google's cache. Id. As such, P10's claims regarding those images are really claims about linking to alleged infringing content, not storage of that content. Thus, in addition to the safe harbor provided by Section 512(b), P10's claims also fall within the scope of the safe harbors of Section 512(d) as well, and Google is entitled to summary judgment on that additional basis. See Section 11, supra; Search Motion at Sec. 11. B. Goode Satisfies All Ei ht Conditions For Section 512 ( b) Safe Harbor

Section 512(b) provides eight conditions of eligibility for its safe harbor. P 10's opposition does not dispute (and therefore concedes) that Google meets three of the conditions, and presents no meaningful evidence to dispute the remaining
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five. Accordingly, P 10 has failed to raise a triable issue of fact regarding Google's eligibility for this safe harbor.
1. P10 Misa pp rehends Section 512 b 's First Condition

Section 512(b)'s first condition is that the allegedly infringing material at issue be made available online by a person other than the service provider. See 17 U.S.C. § 512(b)(1)(A) & (B). This is indisputably true as to Google. Under the

7 server test, it is the webmasters of the third-party websites who post and display the 8 allegedly infringing material, not Google. Brougher Dec. ¶j 6-7. Nevertheless, P10
urges that because Google crawls the Internet and creates its cache, somehow it is Google who has placed the crawled material on the Internet. See Cache Opp. at 2:12-13 ). P10's

fundamental misunderstanding of the application of this condition does not create a triable issue. As the Feld court made clear, and as the evidence (and common sense) confirms, it is the third-party website, and not Google, who "makes [the material] available online." 412 F. Supp. 2d at 1124.

2.

P10 Has No Factual Basis For Its Pur p orted Dis p ute Of The Second Condition

Section 512(b) requires that the allegedly infringing material be transmitted from its originator to a third person at the third person's direction. 17 U.S.C. § 512(b)(1)(B). P10 claims that
and that therefore, Google does not meet this condition. P 10 cites no case, statute, or fact in support of this pronouncement. Nor could it. Any material in Google's cache was transmitted from the third-party website to Google at Google's request via the operation of the Googlebot and any "meta-tags" in the website's HTML code (see Field, 412 F. Supp. 2d at 1112-13) and Google obviously is not the same person as the third-party website. Indeed, as Field has explained:

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1 2 3 4
5

Section 512(b)(1)(B) requires that the material in question be transmitted from the person who makes it available online, here Field, to a person other than himself, at the direction of the other person. Field transmitted the material in question, the pages of his Web site, to Google's Googlebot at Google's request. Google is a person other than Field. Thus, Google's cache meets the requirement of Section 512(b)(1)(B).

6 7

S 412 F. Supp. 2d at 1124. P10 does not address this holding at all, much less explain 9 why what was true in 2006 somehow is not true in 2009. P 10's related argument that the cache

apparently because similarly falls flat. First, P10's entire premise is faulty because this is not the relevant test. And even if it were, Google of course agrees that third-party websites do not "post" infringing images to the cache-indeed, the cache contains no images at all, infringing or otherwise. And, of course, third-party websites most certainly do "transmit[]" their material to the cache at Google's request within the meaning of 512(b)(1)(B), including through the use of meta-tags on those thirdparty websites' HTML code. See Brougher Dec 14; Field, 412 F. Supp. 2d at 111213 & 1124. There is no triable issue on this condition. 3. P10 Does Not Dispute That Google Satisfies The Third Condition. P 10 does not dispute that Google's cache storage is carried out through an "automatic technical process for the purpose of making the material available to users of the system or network who" wish to access it after being initially made available by third-party websites, as required by 17 U.S.C. § 512(b)(1)(C). See Cache Consol. Statement ¶ 14; see also Field, 412 F. Supp. 2d at 1124 (" [t]here is no dispute that Google's storage is carried out through an automated technical
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process" or that "one of Google's principal purposes in including Web pages in its cache is to enable subsequent users to access those pages if they are unsuccessful in requesting the materials from the originating site for whatever reason."); Brougher Dec. 116, 10-12. There is no triable issue on this condition. 4. 6 7 P10 Has No Factual Basis For Its Pur p orted Dispute Of The Fourth Condition. Section 512(b)'s fourth requirement is that the service provider not modify the content of the stored materials. 17 U.S.C. § 512(b)(2)(A). In hopes of conjuring up a dispute, P 10 muses that Google
See Cache Opp. at 2:19-21. This is devoid of merit. Placing a frame around certain content in no way modifies the content itself-just as framing a painting does not turn it into a different painting. Google has established that its "robot obtains copies of the web pages from

originating websites without modification to their content." Brougher Dec. ¶ 6. There is no triable issue on this condition.
5. P10 Does Not Dis ute That Goo le Satisfies The Fifth Condition.

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P 10 does not dispute that Google "complies with rules concerning the

19 refreshing, reloading, or other updating of the material when specified by the person 20 making the material available online," as required by 17 U.S.C. § 512(b)(2)(B). See Cache Consol. Statement 1 17; see also Brougher Dec. ¶ 13. There is no triable issue on this condition.
6. P10 Does Not Dispute That Google Satisfies The Sixth Condition.

P 10 does not dispute Google's showing that it does not interfere with any technology used by a website to collect information directly from users who may access allegedly infringing materials on their site, as required by 7 U.S.C. 28 § 512(b)(2)(C). See Cache Consol. Statement T 18; see also Declaration of Paul
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1 Haahr in Support of Google's Motions for Summary Judgment Re Entitlement to 2 Safe Harbor Under 17 U.S.C. § 512 ("Haahr Dec.") ¶ 19. There is no triable issue
on this condition.

7.

P10 Misreads The Seventh Condition.

Google has established that it meets Section 512(b)'s seventh condition as set forth at 17 U.S.C. § 512(b)(2)(D^-namely, that Google does not alter the 7 prerequisites for access to copyrighted material that third-party webmasters 8 establish, such as payment or password protection. See Haahr Dec. ¶ 20. To meet this condition Google may not crawl the password-protected portions of a website and then make those portions available in its cache without the need to input a password. Google indisputably satisfies this requirement because Google does not crawl or cache the password-protected portions of websites in the first place. See Haahr Dec. ¶ 14.
P10 does not even address this condition in its opposition brief. P10's only reference to it is in its Statement of Genuine Issues, where it claims that Google's cache somehow bypasses Perfect 10's password requirements for

www.perfectIO.com. P10 has misread the statute-Google does not crawl the password-protected portions of perfect IOxom, and the person whose password settings must not be altered is the webmaster of the third-party website Google crawls, not P 10. Indeed, if P 10's distorted conceptualization were correct, Section 512(b)(2)(D) would effectively eliminate the 512(b) safe harbor for any service provider accused of infringement, by any password-protected website, in every instance-because the third party's act of infringement would always make the accuser's work available in a manner that bypasses the accuser's password requirements. P 10's misconstruction notwithstanding, there is no triable issue on this condition.

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8.

P10 Fails To Identify A Triable Issue Regarding The Eighth Condition.

Section 512(b)'s final condition is that if the service provider receives a

4 statutorily compliant notification that a claimed infringement is in its cache and has been removed from the originating site, the service provider must "respond[] expeditiously to remove, or disable access to," that infringement. 17 U.S.C. § 512(b)(2)(E).
P 10 makes the cryptic claim in its Statement of Genuine Issues that Cache Consol. Statement ¶ 11. In fact, however, none of P10's notices were directed to Google's cache feature, nor did any involve alleged infringements that had been removed from the originating site or provide the required attestation "confirming that the material has been removed from the originating site." 17 U.S.C. § 512(b)(2)(E). As a result, P 10's notices failed to trigger the eighth condition, so it does not even apply here. 17 U.S.C. § 512(b)(2)(E)(i) & (ii). This fact alone is dispositive of the eighth condition. But even if P 10's notices had been properly directed (which they were not), and even if they were legally valid (which they were not), Google processed them expeditiously. See Search Motion at 12-16. P 10 does not directly address Google's policy of responding to valid notices of infringement under Section 512(c)(3) in its opposition, making only a passing reference to it in its conclusion. Instead, P 10 includes a lengthy five-page argument in its Statement of Genuine Issues, which is improper and a violation of the Court's Scheduling and Case Management Order.4 Even if the Court were to consider P 10's improper arguments made in its Statement, however, none passes muster.

4 Section III.C.1 ("No legal argument should be set forth in [the Statement of Genuine Issues]."). See Cache Consol. Statement ¶ 20 at 6-10. Accordingly, this argument should be stricken, and this Court should find no triable issue on this 28 condition.
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(1) P 10 claims ( again) that Google has not produced a 2 3 Cache Consol . Statement ¶ 20. False: Google has produced voluminous documents tracking Google's processing of P 10's notifications of infringement . See Declaration of Shantal Rands Poovala (" Poovala Dec.") at T¶ 14, 19, 37-38 & Exs . J, K, II;
Rebuttal Declaration of Rachel Herrick Kassabian (" Kassabian Rebuttal Dec.") at ¶ 2. Indeed , P10 actually cites to these tracking spreadsheets repeatedly in its opposition papers. See, e.g., Search Opp. at 22-23.

(2) P 10 suggests that Google has no

Cache

Consol. Statement 1 20. False : At all relevant times, Google has had a process and procedure for handling DMCA notices . See, e.g., Poovala Dec. ¶¶ 3-39 ; Kassabian Rebuttal Dec . T 2, Ex. B. (3) P10 claims Google did not process DMCA notices prior to Cache Consol . Statement 1 20. False : Google did process DMCA notices before M. See Rebuttal Declaration of Shantal Rands Poovala (" Rebuttal Poovala Dec.") 18 ; Rebuttal Kassabian Dec. 12,' Ex. B.
(4) P 10 suggests that Google refused to suppress infringing search results pursuant to the DMCA before Cache Consol . Statement ¶ 20.

False : Google suppressed infringing search results at all times relevant to this lawsuit. See Rebuttal Poovala Dec. ¶ 8; Rebuttal Kassabian Dec. ¶ 2, Ex. B.

(5) P10 claims that Google has not processed P10's purported DMCA notices. Cache Consol . Statement ¶ 20. False : Google has gone beyond its legal requirements to process P10's defective notices . See Poovala Dec. ¶¶ 75-100.5

P 10 makes a number of false factual assertions in its (improper) Statement of Genuine Issues that are directed primarily at issues raised by Google's Search Motion. Google accordingly responds to them fully in its Search Reply and incorporates that response by reference here.
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1

Conclusion There are no material facts left for trial regarding Google's entitlement to safe

2

3 harbor under 17 U.S.C. § 512(b) for all ofP10's claims directed to Google's caching 4 feature. Google respectfully requests that the Court grant it summary judgment on 5 this basis. 6 DATED: September 8, 2009 7 8 9 10 11 12 13 14 15 16 17
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QUINN EMANUEL URQUHART OLIVER & HEDGES. LLP 1 x""'JL By Michael Zeller Rachel Herrick Kassabian Attornevs for Defendant GOOGLE INC.

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