Perfect 10 Inc v. Google Inc et al

Filing 504

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

Perfect 10 Inc v. Google Inc et al

Doc. 504

1 2 3 4 5 6 7

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417)

mi chaelzel l erag uinnemanuc 1. com 865higueroa Street, 10... F Floor Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone] Charles K. erhoeven(Bar No. 170151) charlesverhoeven u .emanuel.com 5 California Street,-22"' Floor San Francisco? California 94111-4624 Rachel Herrick Kassabian (Bar No. 191060) rachelkas s abiana,g uinnemanuel . com
555 Twin Dolphin rive,5uite60

8 Redwood Shores, California 94065-2129 9 Attorneys for Defendant GOGGLE INC. 10 11 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx) Consolidated with Case No. CV 05-

12 PERFECT 10, INC., a California corporation, 13 Plaintiff, 14
VS.

753 AHM (SHx)]

15 GOOGLE INC. a corporation; and 16 DOES 1 throw 100, inclusive, 17 18 AND COUNTERCLAIM 19 20 PERFECT 10, INC., a California
corporation,

Defendants.

DEFENDANT GOOGLE'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFEHARBOR UNDER 17 U.S.C. 512 (c R IT S BL OGG ER AERW)CE LConsolidated Separate Statement, Rebuttal Declarations of Rachel Herrick Kassabian , Bill Brougher , and Shantal Rands Poovala filed concurrently herewith] Hon. A. Howard Matz

21 Plaintiff, 22 Vs. 23 AMAZON.COM, INC., a corporation; 24 A9.COM, INC. a corporation; and DOES I throug^I 100, inclusive, 25 Defendants. 26 27 28
5 1 3 2013 6922 2 1. l

Date: None (taken under submission) Time: None Crtrm.: 14 Discovery Cut-off. None Set Pretrial Conference Date: None Set Trial Date: None Set PUBLIC REDACTED

DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 6 512(c) FOR ITS BLOGGER SERVICE

Dockets.Justia.com

I

TABLE OF CONTENTS
Page

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B.

PRELIMINARY STATEMENT ................................................................................... 1 ARGUMENT ................................................................... I. .................... ...... ............... 1 1. P 10 HAS RAISED NO MATERIAL DISPUTE REGARDING GOOGLE'S SATISFACTION OF THE DMCA'S THRESHOLD REQUIREMENTS .............................................................................................. 1 A. P 10 Does Not Dispute -And Therefore Concedes -Two Of The
Three Threshold Requirements ................................................................. 2

And Reasonably Implemented ..................................................................2 1. 2. There is no real dispute that Google has a working notification system for Blogger ...................................................... 3 P10 presents no evidence disputing Goo^gle ' s showing that
it has a procedure for dealing with DMCA-compliant notices ............................................................................................. 5 3. P 10 concedes that Google does not actively prevent

Google's Repeat Infringer Policy For Blogger Is Both Appropriate

copyr^igght owners from collecting information needed to is ue Blogger notifications ............................................................. 8 P 10 presents no material facts contesting Google ' s showing that it terminates Blogger account holders when appropriate ...................................................................................... 8

4.

II.

P10 HAS FAILED TO RAISE A TRIABLE ISSUE REGARDING GOOGLE' S ENTITLEMENT TO SAFE HARBOR UNDER § 512(C).........10 A. P I O's Defective Notices Failed To Confer Any Knowledge of Infringement ............................................................................................11 1. 2. 3. 4. Far from following Google ' s Blogger DMCA instructions, P 10 intentionally disregarded them .............. ................................11 Evidence of good-faith processing may not be used to render DMCA- compliant an otherwise defective notice ........ ......13 PLO's linking allegations have nob earing on Blogger safe harbor ............................................................................................ 14 P1O's reference to GoogleGroups and gg ht.com are irrelevant too, having never been pleaded nor the subject of a valid DMCA Notice ................................................................... 14

B.
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Google Expeditiously Processed P10's Defective Notices .................... 15

DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. $ 512lc1 FOR ITS BLOGGER SERVICE

I

III. IV.

GOOGLE IS NOT REQUIRED TO POLICE ITS BLOGGER SERVERS FOR INFRINGEMENTS ............................................................... 16 GOOGLE DOES NOT HAVE THE RIGHT AND ABILITY TO CONTROL NOR DOES IT RECEIVE A FINANCIAL BENEFIT FROM INFRINGING ACTIVITY ................................................................... 16 A. B. Google Does Not Have the Right And Ability To Control Alleged Infringing Activity Of Blogger Account Holders ................................... 17 Google Does Not Receive A Financial Benefit Directly Attributable To Alleged Infringing Activity On Blogger ....................... 17

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5

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CONCLUSION ...........:................................................................................................18

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-i iDEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S,C. S 512(cl FOR ITS BLOGGER SERVICE

TABLE OF AUTHORITIES
Page

Cases Corbis Corp. V. Amazon. coin, Inc., 351 F. Supp. 2d 1090 (W.D. Wash. 2004) ....................................................... 12,17 Hendrickson v. eBay, Inc. 165 F. Supp. 2d 1082 (C.D. Cal. 2001) ........................................... 4, 12, 13, 15, 17 Io Group, Inc. v. Veoh Networks, Inc.,
586 F. Supp. 2d 1132 (N.D. Cal. 2008) ................................................... 6, 9, 16, 17 Perfect 10, Inc. v. Amazon.com, Inc.,

2009 WL 1334364 (C.D. Cal. May 12, 2009) ........................................................ 15 Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007 ) ......................................................................... passim Perfect 10, Inc. v. Visa International Serv. Assn., 494 F.3d 788 (9th Cir. 2007) ............................................................................ 16,17 Southco, Inc. v. Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004) ................................................................................... 14 UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F. Supp. 2d 1081 (C.D. Cal. 2008) .................................................................. 12 Statutes 17 U.S.C. § 512 .. ................................................................................................... passim

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DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. S 512(c) FOR ITS BLOGGER SERVICE

Prelimina

Statement

There are no material facts for trial regarding Google's entitlement to safe harbor under 17 U.S.C. § 512(c) for Perfect 10's ("P10") claims relating to Google's Blogger service. Far from identifying any material factual dispute, P10's Blogger opposition papers concede the bulk of Google's motion, ignore the relevant facts and law, and seek to cloud the real issues with hyperbole and innuendo. PI O's admitted flouting of Google's published DMCA instructions for Blogger reflects an impermissible disregard for the letter and sprit of the DMCA that should not be

9 rewarded. Perfect 10's opposition makes two major claims, each of which is wrong. First, P 10 urges that Google did not reasonably implement a repeat infringer policy for Blogger. But P10 itself cites documents that prove Google does. P10 may prefer that Google track repeat infringers differently, but Google complies with the statute, which is all that is required. Second, P10 claims that it did not need to comply with Google's published DMCA policy for Blogger because it knows better than Google what information Google needs to process a Blogger notice. This is, of course, not the case---the DMCA itself (and not just Google's policy) requires P10 to follow Google's instructions, by identifying the particular post containing the alleged infringement. P10 has failed to raise any triable issue regarding Google's safe harbor from P10's Blogger-related copyright claims. Google's motion for summary judgment should be granted.
Argument 1. P10 HAS RAISED NO MATERIAL DISPUTE REGARDING

GOOGLE'S SATISFACTION OF THE DMCA 'S THRESHOLD REQUIREMENTS
27

As discussed in Google·'s Motion for Summary Judgment re: Google's
-111

28 Entitlement to Safe Harbor Under 17 U.S.C. § 512(d) for Web and Image Search
5132013092221,1

DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 6 512(c) FOR ITS BLOGGER SERVICE

("Search Motion"), to be eligible for a DMCA safe harbor, a party must meet three threshold conditions. First, the party must be a service provider. Second, it must have adopted and reasonably implemented a repeat infringer policy. Third, the party must not interfere with "standard technical measures" used by copyright owners to identify or protect their works. 17 U.S.C. §§ 512(k), 512(1)(1). P10 does not dispute that Google satisfies the first and third elements. For the second, regarding Google's repeat infringer policy for Blogger, P10's purported dispute raises no triable issue. A. PIO Does Not Dispute -And Therefore Concedes-Two Of The Three Threshold Re q uirements..

P10 does not dispute that Google is a service provider under 17 U.S.C. § 512(k)(1)(B). See Google's Consolidated Separate Statement of Undisputed Facts in Support of Google's 512(d) Motion ("Search Consol. Statement"), at T 1. Likewise, there is no dispute that Google does not interfere with any known "standard technical measures" as defined by 17 U.S.C. 512(1). See Google's Consolidated Separate Statement of Undisputed Facts in Support of Google's 512(c) Motion ("Blogger Consol. Statement"), at ¶ 2. P10 therefore concedes both points, and in any event, Google clearly meets both requirements. See Search Motion at 17-18.
B. Google ' s Repeat Infringer Policy For Blogger Is Both Appropriate And Reasonably Implemented.

P 10 purports to dispute that Google has an appropriate repeat infringer policy, but proffers no material facts on this issue. Instead, P 10's "evidence" consists of a hodgepodge of assertions regarding other Google services that have no bearing on the Blogger motion, statements of opinion that are irrelevant to the governing legal standards, and mi s characterizations of Google's evidence. See, e.g., Blogger Consol. Statement ¶ 13. None of this saves P 10's claims from summary judgment. As discussed in Google's moving papers, a repeat infringer policy is 28 considered implemented if the service provider (1) "has a working notification
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DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. S 512fc1 FOR ITS SLOGGER SERVICE

system, [(2)] a procedure for dealing with DMCA-compliant notifications, and... [(3)] does not actively prevent copyright owners from collecting information needed to issue such notifications," and the policy is considered reasonably implemented if the service provider (4) terminated subscribers or account holders "when it had knowledge of infringement." Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1109, 1113 (9th Cir. 2007). P 10 does not dispute that the CCBi1l standard for reasonable 7 implementation of a repeat infringer policy governs here, as outlined in Google's 8 motions. See Blogger Opp. at 19-20. Google's repeat infringer policy meets all four 9 of CCB111's conditions, and P 10 presents no colorable evidence to the contrary.
1. There is no real dis p ute that Goode has a workin g notification system for Blogger.

Google's moving papers set forth its DMCA notification system for Blogger that it (1) has an agent for receiving notifications of claimed infringement, (2) publishes instructions regarding the information needed to process a DMCA notice, (3) tells complainants how and where to submit notices, and (4) if a notice is deficient, Google requests the necessary information. See Poovala Dec. ¶¶ 27-35. P10's many and varied claims fail to establish a material dispute as to any of these facts. These include the following: (1) P 10 does not dispute that Google has a designated agent for receiving notifications of claimed infringement. See Blogger Consol. Statement 14.1 (2) P 10 purports to dispute that "Google publishes the information required for DMCA complaints related to Blogger at http://wwE.goQgle.com/hlogaer dmea.html."

P10 relatedly argues that - See Blogger Consol. Statement 15. This is irrelevant because the DMCA does not require it. P10 also claims that the Blogger fax number listed on Google's DMCA webpage does not match the fax number on file with the Copyright Office. Id. This, too, is irrelevant since both fax numbers are checked and responded to. See Poovala Dec. ¶ 12, 31.
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DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 6 512(c) FOR ITS BLOGGER SERVICE

1 2

False : P10 provides no contrary evidence disputing this fact (see Blogger Consol. Statement ¶ 5), and its own submission of the published Blogger instructions

3 effectively admits it. See Zada Dec., Ex. 1 at 1-10 (attaching published Blogger
instructions) & T 8 (discussing same) .2

(3) P10 argues that Google's Blogger instructions See Blogger Consol. Statement ¶ 5. False: The Blogger DMCA instructions apply to any hosted P10 images the same way they do all other hosted material. (4) P 10 claims that See Blogger Opp. at 7. False: All blog posts have a post URL. Google asks for a post URL because that is the removable unit of content and the only way to ensure that the infringing material is removed from all locations that display it. When Google takes down a post URL, an automated process also takes down all images displayed at that post URL. Rebuttal Poovala Dec. ¶ 17. Thus, P 10's refusal to submit post URLs prevents Google from removing all content 16 associated with allegedly infringing Blogger posts. 17 (5) P10 further criticizes the instructions as and

18 Blogger Opp. at 7. False and irrelevant : P10 may not like Google's instructions, 19 but Google has and informs copyright owners of its notification system for accepting 20 21 22 z P10 ignored these instructions, and it is now evident why -because PTO believes that it which supposedly _ 23 24 Blogger Opp. at 13:19-21. PTO's deliberate refusal to follow Google ' s instructions
and requests is yet another reason why its notices do not pass muster under the DMCA, and required no response at all from Google. See Hendrickson v. eBay, Inc., 26 165 F. Supp . 2d 1082, 1085 (C.D.Cal. 2001) (finding notices deficient where plaintiff 27 "refused to fill out eBay's Notice of Infringement form ... [and] never provided eBay the specific item numbers that it sought ."); see also Section ILA, infra.

25

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DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 6 512(c) FOR ITS BLOGGER SERVICE

DMCA notices-which is all that is required-and P 10 does not dispute that fact. CM11, 488 F.3d at 1109. (6) P 10 claims Google does not tell complainants how and where to submit Blogger notices. See Blogger Consol. Statement T¶ 7-9. False: P10 attaches those very instructions to Zada's own declaration. Zada Dec., Ex. 1 pp. 1-10.3
(7) P 10 claims that Google must never request information from a copyright

7 owner when a Blogger notice is insufficient, since Google supposedly did not do so 8 with P10. See Blogger Consol. Statement ¶ 10. This too is demonstrably false. See 9 Poovala Dec. ¶¶ 57-73 (recounting Google's repeated notifications to P 10 of the
deficiencies in its notices) & Exs. S-EE. 2. P10 resents no evidence dis p utin g Goo le's showin that it has a p rocedure for dealing with DMCA-com liant notices. Google has demonstrated that it has a policy and procedure for processing

DMCA-compliant notices directed to Blogger, which includes providing directions for submitting Blogger complaints, verifying the complaints, ensuring that offending content is removed, notifying the Blogger account holder of the removal, processing counter-notifications, and tracking its processing efforts. See Poovala Dec. ¶¶ 27-37, Exs. J & II. P10 offers a series of non-consequential nitpicks about Google's tracking procedure, but presents no material facts disputing that Google actually employs it. See Blogger Opp. at p. 21-22; Blogger Consol. Statement ¶¶ 6, 10, 11.4

3 P 10's proffered "disputes" - that Google did not personally email P 10 a copy of these publicly available instructions and does not have a separate designated agent for Blogger (neither of which is required by the DMCA) and that Google has more than one fax number for DMCA notices (which the DMCA does not prohibit) - fall flat. See Blogger Consol. Statement J¶ 7-9; CM11, 488 F.3d at 1109. 4 As an example of the immaterial "facts" P 10 proffers, it claims that Google's

See Blogger Consol. Statement T 11. Those instructions "suggest" footnote continued)
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DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. & 512(c) FOR ITS BLOGGER SERVICE

1

(1) P10 claims Google's Blogger log is not - False: The Blogger

2 notice tracking spreadsheet is usable to Google and facilitates Google's 3 implementation of its repeat infringer policy for Blogger. Poovala Dec. ¶ 37, Exs. J
and 11. That is all that matters.

(2) P 10 asserts that the log is somehow defective because it tracks -

False: The DMCA imposes no obligation to track users in any particular way, and certainly does not prohibit doing so with See Io Group, Inc. v. Veoh

Networks, Inc., 586 F. Supp. 2d 11321 1145 (N.D. Cal. 2008) ("section 512(1) does not require service providers to track users in a particular way"); CCBill, 488 F.3d at 1110 (holding that a DMCA log need only record the email addresses of most repeat infringers).
(3) P10 opines that the log is False and irrelevant : The size of

the log is a function of the valid DMCA notices Google receives, which Google does not control. And in fact, the current spreadsheet contains ^ows, DMCA notices directed to Blogger See Poovala Dec. Exs. J & II.

(4) P10 claims the Blogger spreadsheets don't date far enough back to include P10's 2005 notices. False: Google's spreadsheets list Blogger processing of P10's 9/27/2005 and 12/22/2005 notices, among others. See Poovala Dec. Ex. KK at 15101539.5

23 24 25 26 27 28
5132013092221.1

no such thing - nor has P 10 ever submitted a DMCA notice regarding any alleged written work such as the text of a book. 5 With its moving papers, Google submitted its current Blogger notice processing See Poovala Dec. Exs. J & II. Google spreadsheet, which dates from also submitted excerpts from various earlier Blogger spreadsheets that pertained to Google's processing of P 10's Blogger notices dating back to M. See id. Ex. KK. During discovery, Google produced complete copies of its earlier Blogger DMCA (footnote continued)
DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.G. & 512(c) FOR ITS BLOGGER SERVICE

(5) P10 claims that Google's Blogger spreadsheet is missing many of the Blogger-related URLs P10 claims it included in its hopelessly defective Group C notices. Irrelevant : Google need only show that it has a procedure for processing DMCA-compliant notices. CM11, 488 F.3d at 1113. Google made that showing,6 (6) P10 objects that the log is in small type. Irrelevant : The DMCA contains no particular font requirements. (7) P 10 states that the log is not searchable. False : Google's Blogger processing spreadsheets are indeed text searchable---by Google internally (in Excel format), and as produced to P 10 during discovery (in TIFF format-a courtesy P 10 has not extended to Google with much of its own production). Rebuttal Kassabian Dec. ¶J 2, 3.
(8) P10 claims that the log contains redactions. False: The current Blogger spreadsheet contains no redactions, and P10's contrary assertion is simply wrong. Poovala Dec., Ex. 11.7

spreadsheets to P 10 (again dating back to M). Rebuttal Kassabian Dec. ¶ 5. Indeed, Google's Blogger logs predate both P10's (July 2008) complaint amendment to add Blogger claims, and its claimed discovery that Google hosted Blogger content (2006). See id. Ex. A at ¶ 6 (611212008 Zada Dec. in Supp. of Mot. for Leave to File 2d Am. Complaint). 6 For the same reason, P10's complaint that Google's current Blogger spreadsheet only shows what it considers to be a small number of repeat infringer terminations is equally irrelevant. The number of such terminations is purely a function of the number of (compliant) Blogger DMCA complaints Google receives, and how many are directed to the same account. See Poovala Dec. ¶ 37, Exs. J and II. As P 10 knows, Google marks any redacted material in its document productions with "redacted" stamps. See Zada Dec. Ex. 9 ("Redacted Documents" folder).

Poovala Dec., Ex. II at GGL 045217-045224. 28
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DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 6 5I2(c) FOR ITS BLOGGER SERVICE

In sum, none of P 10's groundless accusations regarding Google's Blogger spreadsheets comes close to creating a material dispute concerning Google's process for responding to DMCA-compliant notices.8
3. 5 P10 concedes that Google does not actively prevent copyright owners from collecting information needed to issue Blogger notifications.

6 7

P 10's opposition brief fails to address - and thus concedes - that Google does

8 not actively prevent copyright owners from collecting the necessary information to 9 submit Blogger notices to Google, and rightly so. Far from actively preventing the collection of information, Google provides copyright owners with powerful tools for locating and remedying infringement on the Internet. P10 provides no evidence to the contrary, instead making only some unsupported allegations in its Statement of Genuine Issues pertaining to Search, not Blogger.9 Blogger Consol. Statement 116 There is no triable issue here.
4. P10 presents no material facts contesting Google ' s showier that it terminates Blogger account holders when appropriate. P10 makes two arguments in attempting to create a triable issue regarding

Google's otherwise-uncontested showing that it terminates Blogger account holders

8 P1 O's complaints regarding Google ' s AdSense log are both wrong and misplaced, since Google' s processing of AdSense complaints is irrelevant to Google's safe harbor for Blogger hosting . Cf. CM11, 488 F . 3d 1116-17 ( qualification for safe harbor is specific to the function of each service provided). Any Blogger account that violates Google's repeat infringer policy is terminated-regardless of whether AdSense advertisements are displayed on that blog. Poovala Dec. % 37, 93.

9 P 10 claims that Google makes things for copyright holders and proffers various ways P 10 might implement DMCA procedures differently if P10 ran Google. See Blogger Opp. at 15-16. P10 ' s suggestions are irrelevant and do not even imply that-must less constitute evidence that-Google "actively prevent [ s] copyright owners from collecting information needed to issue notifications " directed to Blogger. CM11, 488 F . 3d at 1109.
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DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 5 512lc1 FOR ITS BLOGGER SERVICE

I when appropriate. First, P10 claims that Google's tracking of Blogger accounts by 2 renders Google ineligible for safe harbor. Second, P10 claims that Google did not terminate repeat infringers in response to P 10 notices. P 10 is wrong on both counts. First, as discussed above, the DMCA imposes no obligation on service providers to register subscribers for their services in any particular way, using any particular information. See Io Group, 586 F. Supp. 2d at 1144, 1145 (rejecting 8 arguments that Veoh needed to verify and track actual identities or block material based on IP addresses because of "the hypothetical possibility that a rogue user might reappear under a different user name and identity does not raise a genuine fact issue as to the implementation of a repeat infringer policy). Google's procedure for terminating Blogger accounts identified by DMCA. See also CCBill, 488 F.3d at 1113.
Second, P 10's claim that Google did not properly terminate repeat infringers in response to P 10's notices is demonstrably incorrect. P 10 points to not a single Blogger account that (1) was identified in multiple DMCA-compliant notices but (2) was not properly terminated under Google's policies, 10 See Blogger Consol. Statement ¶ 33. Moreover, all of P10's purported evidence of infringing material on Blogger that is "still up" relates to P10's defective Group C Notices, which failed to provide notice of repeat infringement. Zada Decl., Exs. 9, 45; see Section II.A.2 infra; CCBill, 488 F.3d at 1113. The undisputed facts establish that Google did track

is sufficient under the

to P10's references to AdSense, Google Groups and gghpt.com servers have no bearing on Google's enforcement of its Blogger repeat infringer policy, and were not the subject of any valid P10 notices. CCBill, 488 F.3d 111617; see Section II.A.2, infra.

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51320/3092221.1 DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 6 512(c1 FOR ITS BLOGGER SERVICE

and terminate repeat infringers in response to all intelligible portions of P 10's notices." Poovala Dec., Ex. KK, at 1531-1535; Zada Dec., Ex. 45, at 3. Because there is no genuine dispute regarding material facts which establish that Google meets the threshold conditions of eligibility with respect to its Blogger service, Google is entitled to seek safe harbor under the DMCA. II. P10 HAS FAILED TO RAISE A TRIABLE ISSUE REGARDING GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 512 ( Q. 8 Nowhere in its opposition materials does P10 contend that Google failed to expeditiously process a single Blogger URL identified in any of M's Group B Notices. 12 See Zada Dec. ¶T 8, 41-51, 60-61 Exs. 1, 28-35, 45, 9; Chou Dec. ¶¶ 8-11 (citing only examples of infringing material on Blogger from P10's Group C Notices as having not been taken down). Thus, even assuming the Group B Notices were 13 DMCA-compliant (which they were not), Google is entitled to safe harbor on the Group B Notice claims for its Blogger service. As for the Group C Notices, they were hopelessly defective - as is aptly demonstrated by P 10's failure even to submit them to this Court for examination. 13 As P10 concedes, the Group C Notices were not directed to Blogger, and even if they were, they failed to confer notice of any infringement (on Blogger or otherwise). But

11 Likewise, P 10's submission of several declarations by other DMCA complainants is irrelevant here, since (among other reasons) none of these declarations reference Blogger DMCA notices in any way. See also Evidentiary Objections. 12 P10 does not claim that Blogger is implicated in its Group A Notices, nor did Google own Blogger when the Group A Notices allegedly were sent. 13 Instead, P 10 submitted purported "excerpts" of certain of its Group C Notices for the obvious reason that it would be an impossible task to try to direct the Court to where in its Group C notices a particular infringement might be found. See Zada Dec. ¶¶ 9, 22, 55. Google has submitted complete copies of the Group C Notices as they were received by Google, so the Court can examine them for itself. The validity of the Group C Notices must be evaluated in the format in which they were sent to Google -not in some cherry-picked, excerpted manner. See Evidentiary Objections. 28
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DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 6 512fc1 FOR ITS BLOGGER SERVICE

in any event, Google processed them to the fullest extent possible given the circumstances, and P10 presents no contrary material facts. See Search Motion at 15; Search Reply at 18-23; Blogger Motion at 5-6.14
A. P10 's Defective Notices Failed To Confer Any Knowledge of Infringement. P 10 asserts two arguments as purported triable issues regarding whether P 10 provided proper notice of infringements on Blogger. First, P10 argues that its notices were proper because Blogger Opp. at 2.

Second, P10 claims that its notices must have been compliant because

Id. P10 is mistaken on both counts.15 1. Far from following Google's Blogger DMCA instructions, P10 intentionally disregarded them. P 10's purported DMCA notices and their multiple deficiencies under the DMCA are fully discussed in Google's Search Motion, and Google's reply in support thereof. To the extent necessary, Google incorporates those discussions by reference here. Regarding Google's DMCA policy for Blogger specifically, P10's own brief refutes its first argument that its notices must be compliant because it simply followed Google's published Blogger DMCA instructions. In fact, P10 proudly admits that it did not follow Google's published Blogger instructions and that (as Google's

The general failure of P 10's Group C notices to identify the infringed work or the location of any infringing material , and the impermissible burden they placed on Google as a service provider, is described in detail in Google's Search Motion (and incorporated herein by reference). 15 Again, because P10 has proffered no evidence in opposition regarding Google's expeditious processing of the Group B Notices, these arguments pertain only to the Group C Notices, and warrant safe harbor regarding all Group C Notice claims.
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DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 6 512(c) FOR ITS BLOGGER SERVICE

instructions request), 16 and concedes that it did not send a single notice to the address or fax number designated in those instructions. See Blogger Opp. at 7-8, Blogger Consol. Statement ¶ 17. P 10's intransigence continued even after it amended its complaint in the summer of 2008 to specifically add Blogger-related claims. See Blogger Opp. at 9:5--6
referring to the Group C Notices). P 10's lack of cooperation violates the letter and spirit of the DMCA. See UMG

8 Recordings, 620 F. Supp. 2d at 1089-91 (describing cooperative process). 9 P 10 asserts a variety of excuses for failing to follow Google's instructions, but none of them matter.' Google's published DMCA instructions apply to all complainants, and P 10's refusal to follow them dooms its Blogger copyright claims under the DMCA. The Court need look no further to find that P 10's purported notices conferred no "knowledge" of infringement, and to grant Google safe harbor for P10's Blogger-related copyright claims. Hendrickson, 165 F. Supp. 2d at 1092 (no duty to act in response to insufficient notices to be eligible for safe harbor under § 512(c)); Corhis Corp. v. 4mazon.com, Inc., 351 F. Supp. 2d 1090, 1107 (W.D. Wash. 2004) ("[Plaintiff s] decision to forego the DMCA notice provisions ... stripped it of

P10 claims that images on blogger.com Blogger Opp. at 14. This is incorrect. See Sec. I.B.1, supra.
P 10 further urges Google does not need a post URL, because different web pages display the same image, and Google removed other types of URLs in the past. Blogger Opp. at 14. This too is incorrect. Again, the fact that several web pages can display the same posted image is why Google needs a post URL to properly remove infringing material. Providing the post URL allows Google to remove any images displayed at that post, which effectively prevents those images from being displayed on other web pages too. Poovala Dec. ¶¶ 30, 34; Rebuttal Poovala Dec. ¶ 17. (footnote continued)
DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE; GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. ^ 512(c) FOR ITS BLOGGER SERVICE

28
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1 the most powerful evidence of a service provider's knowledge - actual notice of 2 infringement from the copyright holder,").' 8 3 4 5
2. Evidence of g ood -faith p rocessin g ma y not be used to render DMCA-compliant an otherwise defective notice.

P10 next claims that because Google did remove some material on Blogger in

6 response to P10's notices, all of its notices must be DMCA-compliant. See Blogger 7 Opp. at 2. As discussed more fully in the Search Motion at 15-16 and Search Reply 8 at 11-15, however, that a service provider may have done more than what was 9 required in an attempt to process a defective DMCA notice does not constitute an 10 admission that the notice in question was DMCA-compliant. See Hendrickson v. II eBay, Inc., 165 F. Supp. 2d 1082, 1092 (C.D. Cal. 2001) (finding that eBay's 12 removal of a listing "out of an abundance of caution" did not alter the fact that the 13 plaintiff had failed to identify the location of the infringing material under the DMCA).19 Google cannot lose safe harbor for its good-faith efforts to process as much of P10's defective notices as could be discerned. A contrary holding would

P10 additionally argues that Google's Blogger instructions are inconsistent with its Web Search instructions. Of course they are different- they concern different services with different DMCA removal processes requiring different information. 18 P10 claims that it submitted its Group B Notices containing Blogger URLs according to Google's Web Search instructions. This is incorrect. See Search Motion at 15-16; Search Reply at 11-15. It is also irrelevant to P10's attempts to defeat safe harbor, because P 10 only proffers purported evidence that Google did not
expeditiously process Blogger URLs in its Group C notices. See Section I.B.2, supra. notices (Blogger P 10 admits that Opp. at 2), which were hopelessly defective for the reasons discussed in Google

notices and notices that an Alexa deponent thinks likewise are irrelevant to determining the sufficiency of P 10's notices to Google. See 27 Evidentiary Objections. Moreover, that these companies might also have gone beyond what the DMCA requires has no bearing on the sufficiency of P I O's notices. 28
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Search Motion papers. 19 P10's claims that Yahoo! supposedly was able to process

DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. & 512(c) FOR ITS SLOGGER SERVICE

effectively punish service providers like Google for making any attempts to process a notice once defects in that notice are identified. See H.R. Rep. 105-551(11), at 54 (Kassabian Dec., Ex. E) (stating that the limitation on liability set for in 512(c) will not be lost from a notice "that does not comply with the notification provisions of [512(c)(3)]"). Google's efforts do not transform a defective notice into a compliant one, and a defective notice does not confer knowledge of infringement.

7 8 9

3.

P10' s linking allegations have no bearing on Blogger safe harbor.

P 10 also argues that Google does not address its claims that Googie is See Blogger Opp. at 16-17. P10's opposition does not identify a single DMCA-compliant notice referencing rapidshare.
Moreover, this is not a hosting issue; it is a linking issue covered by the Search Motion.20 There is no dispute that Google does not host rapidshare content. See Blogger Opp. at 17. P10's claims regarding rapidshare.com are irrelevant to Blogger safe harbor. 4. P10 's reference to Goode Groups and ggpht . com are irrelevant too, having never been pleaded nor the subject of a valid DMCA Notice.

Finally, P10 claims that Google's motion ignores alleged infringements on ggpht.com and Google Groups. See Blogger Opp. at 17-18. P 10 has never raised the

20 P1 O's argument that Google does not address the claimed hosting of websites that display passwords to perfect 10.com also is incorrect. First, P10 has not identified any DMCA-compliant notices complaining of a Google-hosted site displaying P 10
passwords. See Blogger Opp. at 18. Moreover, Google processed any discernible Blogger URLs . See Poovala Dec. ¶ 79. Finally, because passwords are not copyrightable, this too is a linking issue, not a hosting issue. See Search Motion and Search Reply. See 37 C.F.R. § 202.1 (2004) ("words and short phrases such as names, titles, and slogans" are "not subject to copyright"); Southco, Inc. v. Kanebridge Corp., 390 F.3d 276, 286 (3d Cir. 2004) (same).
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DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE:
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issue of Google Groups or ggpht.com before. Neither is included in the operative complaint. Nor does P 10 point to a single DMCA-compliant notice directed to Google Groups or ggpht.com. See Zada Dec. T¶ 9, 52, Exs. 2, 36. Claims not

properly before this Court cannot defeat Google's summary judgment motion for its Blogger service.
B. Goole Expeditiously Processed P10's Defective Notices

Notwithstanding P 10's admitted failure to (1) mention Blogger in its notices, (2) follow Google's DMCA instructions for Blogger, or (3) send its notices to the address or fax number provided for Blogger complaints, Google expeditiously processed P 10's claimed notices to the fullest extent possible. P 10 concedes this point with respect to its Group B Notices. See Section II, supra. As for its Group C Notices, none of P1 O's various arguments in opposition create an issue of material fact.21

P 10 claims that Google's processing of certain Blogger URLs in its Group C Notices was not expeditious enough. Blogger Opp. at 3. To the contrary, as explained in Google's moving papers, its processing efforts were expeditious in light of the circumstances-which included massively defective notices, no cooperation whatsoever from P 10, and a pending lawsuit. See Poovala Dec. ¶T 40-94. P 10 may not fault Google for any processing delays that P 10 caused. See Hendrickson, 165 F. Supp. 2d at 1092 (no need to process defective notices); Perfect 10, Inc. v. Amazon.com, Inc., 2009 WL 1334364, at *5 (C.D. Cal. May 12, 2009).

21 As explained in Google's Search Motion and Reply, P10 has identified no material factual disputes regarding Google's expeditious processing of the Group C Notices. Google incorporates those arguments here by reference.
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I III.

GOOGLE IS NOT REQUIRED TO POLICE ITS BLOGGER SERVERS FOR INFRINGEMENTS.
P10 next contends that even where Google took down a Blogger site that

displayed a particular image in response to P 10's notices, Google failed to remove all (i.e., identical) full-size P10 images that might reside elsewhere on its

6 servers. Blogger Opp. at 4. P 10's refrain that Google should affirmatively police the 7 Internet to find all copies of P 10's images, presume that they are infringing, and take
them down-without any notice from P 10 - is contrary to law. The DMCA does not require service providers to police the Internet for copyright infringement (see Search Motion at 3-5; 17 U.S.C. 512(m); CCBill, 488 F.3d at 1112), and the fact that Google might host an infringing website does not affect this principle. Under the DMCA, it is P10's burden to identify all infringing URLs in a valid notice. See CCBill, 488 F.3d at 1113 ("The DMCA notification procedures place the burden of policing copyright infringement - identifying the potentially infringing material and adequately documenting infringement - squarely on the owners of the copyright. ,).22 IV. GOOGLE DOES NOT HAVE THE RIGHT AND ABILITY TO

CONTROL NOR DOES IT RECEIVE A FINANCIAL BENEFIT FROM INFRINGING ACTIVITY. P 10 does not contest that if Google does not have the right and ability to control the alleged infringing activity on Blogger, the Court need not decide whether Google receives a financial benefit directly attributable thereto. See Blogger Opp. at

22 In addition to the DMCA's prohibitions, in this case there have been instances where P10 complained of alleged infringement pertaining to a Blogger URL that in fact was a licensed use of that P 10 image. See Poovala Dec. Ex. NN (P 10 counternotification identifying elmanaba.blogspot.com and joesbabes.blogspot.com as licensed users.); see also Poovala Dec. ¶ 15 ("Google has no way of knowing what links a copyright owner regards to be infringing, in contrast to those uses that are licensed...."}. 28
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1

19:6.18.23 Instead, P 10 insists that Google has the right and ability to control

2 infringement by Blogger users. P10 misses the mark.
A. Goo le Does Not Have the Right And Ability To Control Alleged Infringing Activity Of Blogger Account Holders

P10's only "evidence" supporting its claim that Google has the right and ability to control infringing activity on Blogger is that such infringement is on Google's 7 servers, and that Google can take it down after it has been uploaded by Blogger
users. Blogger Opp. at 19. This is insufficient as a matter of law to establish the right and ability to control required by § 512(c)(1)(2)B). See Io Group, 586 F. Supp. 2d at 1152-53 (holding that a service provider's capacity to remove materials posted on its website or stored on its system does not equate to the right and ability to

control infringing activity); Corbis, 351 F. Supp. 2d at 1110 (same); Hendrickson, 165 F. Supp. 2d at 1093-94 ( same ). There is no triable issue here.
B. Goo le Does Not Receive A Financial Benefit Directl y Attributable To Alleg ed Infrin in Activi On Blo er

As noted, because P10 has presented no evidence to suggest that Google has the right and ability to control the alleged infringing activity, there is no need to address whether Google receives a direct financial benefit from that activity. Visa, 494 F. 3d at 806. Nonetheless, Google does not receive such a benefit.
P 10 does not address -- and thus concedes - that a service provider does not receive a financial benefit directly attributable to the claimed infringement "where the infringer makes the same kind of payment as non-infringing users of the provider's service...." H.R. Rep. 105-551(II), at 54 (Kassabian Dec., Ex. E). P10 also does not dispute that infringing and non-infringing Blogger users pay the same thing - nothing

23 See 17 U.S.C. § 512( c)(1)(B) and (d )(2); Perfect 10, Inc. v. Visa International Serv . Assn ., 494 F.3d 7881 806 ( 9th Cir. 2007). ".Both elements must be met for the safe harbor to be denied." Io Group, 586 F. Supp. 2d at 1150 (emphasis added). 28
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DEFENDANT GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. 6 512(c) FOR ITS BLOGGER SERVICE

- to use Blogger. Thus, there is no dispute that Google does not receive a financial benefit directly attributable to the alleged infringing activity , and P 10 has failed to establish any material facts to the contrary. 4
First, the fact that some Bloggers display advertising using the AdSense

5 service -and are thus AdSense account holders ----- is not enough . P 10 puts forward 6 no evidence suggesting that clicks on AdSense advertisements located near infringing 7 material (if any) were a direct result of the display of the alleged infringing image. 8 Second , Bloggers who use AdSense , like any other AdSense user, are not financially
incentivized to display infringing material. To the contrary, once Google is provided with notice of infringing material , the ability to generate revenue on that page is eliminated immediately. See Poovala Dec. ¶ 37. There simply is no direct link between the revenue Google receives and any infringing use that would suggest that Blogger users are encouraged to infringe , for Google 's profit. To the contrary-the Blogger terms of service (and the AdSense terms of service ) expressly prohibit and punish any such infringements . See id. 127 & Ex. G.

Conclusion P 10 has presented no material facts left for trial regarding Google's entitlement to safe harbor under Section 512(c) regarding P10's Blogger-related copyright infringement claims. Google respectfully requests that the Court grant it summary judgment on this basis. DATED: September 8, 2009 2UINN EMANUEL URQUHART OLIVER & EDGES. LLP

By Michael Zeller Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

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DEFENDANT GOOGLE ' S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: GOOGLE ' S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S . C. S 5I2(c) FOR ITS BLOGGER SERVICE