Perfect 10 Inc v. Google Inc et al

Filing 508

EVIDENTIARY OBJECTIONS in support re: 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 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 Google Inc.'s Evidentiary Objections to the Declaration of Sean Chumura 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 filed by Counter Claimant Google Inc, Defendant Google Inc. (Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

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1 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) michaelzeller@quinne manuel.com 2 865 South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone] Charles K. Verhoeven (Bar No. 170151) charlesverhoeven@quinne manuel.com 5 50 California Street, 22nd Floor 6 San Francisco, California 94111 Rachel Herrick Kassabian (Bar No. 191060) [e-mail] 7 555 Twin Dolphin Drive, Suite 560 8 Redwood Shores, California 94065 9 Attorneys for Defendant Google Inc. 10 11 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 054753 AHM (SHx)] GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SEAN CHUMURA 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 Hon. A. Howard Matz Date: None Set (taken under submission) Time: None Set Place: Courtroom 14 Discovery Cut-off: None Set Pre-trial Conference: None Set Trial Date: None Set

13 PERFECT 10, INC., a California corporation, 14 Plaintiff, 15 vs. 16 GOOGLE INC., a corporation; and 17 DOES 1 through 100, inclusive, 18 19 20 22 23 vs. Defendants. AND COUNTERCLAIM

PERFECT 10, INC., a California 21 corporation, Plaintiff,

24 AMAZON.COM, INC., a corporation; A9.COM, INC., a corporation; and 25 DOES 1 through 100, inclusive, 26 27 28
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Defendants.

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SEAN CHUMURA Dockets.Justia.com

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Google hereby submits the following objections to the Declaration of Sean

2 Chumura, Submitted in Opposition to Google Inc.'s Motions for Summary Judgment 3 Re: DMCA Safe Harbor for its Web and Image Search, Blogger Service, and 4 Caching Feature. The Chumura Declaration is objectionable for several reasons, 5 and should be disregarded in its entirety. 6 Evidence submitted to the Court on motion practice must meet all 7 requirements for admissibility of evidence if offered at the time of trial. Beyene v. 8 Coleman Sec. Services, Inc., 854 F.2d 1179, 1181-1182 (9th Cir. 1988); Travelers 9 Cas. & Sur. Co. of Am. v. Telstar Const. Co., Inc., 252 F. Supp. 2d 917, 923 (D. 10 Ariz. 2003). See also Fed. R. Evid. 101 (Rules of Evidence apply to all proceedings 11 in the courts of the United States); Fed. R. Evid. 1101 (listing exceptions to Rule 12 101). Such evidence must be relevant to the claims and defenses of the case. Fed. 13 R. Evid. 401; 403; McCormick v. City of Lawrence, Kan., 2007 WL 38400, at *3 (D. 14 Kan. Jan. 5, 2007). Testimonial evidence must be based on the personal knowledge 15 of the witness offering the evidence. Fed. R. Evid. 602. Testimony requiring 16 scientific, technical, or other specialized knowledge may be given only by an expert 17 witness with the requisite knowledge, skill, experience, training, or education, and 18 opinion testimony is not permitted of a lay person. Fed. R. Evid. 701, 702; see also 19 U.S. Aviation Underwriters, Inc. v. Yellow Freight Sys., Inc., 296 F. Supp. 2d 1322, 20 1331 (S.D. Ala. 2003) (unqualified expert opinions inadmissible at summary 21 judgment). The Chumura Declaration fails to meet one or more of these criteria, as 22 set forth below. 23 24 25 26 27 28
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Proffered Evidence 1. Chumura Decl., at ¶ 3 ("I have to this declaration, which I obtained

Objection Fed. R. Evid. 401, 402, 403, 602 foundation, and such information was

examined Exhibit 1 which is attached The statement is irrelevant, lacks

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from Jeff Mausner. Page 1 of Exhibit never disclosed in discovery. 1 is the output of a computer program that I created under the direction of Dr. Norman Zada. The program allows Perfect 10 to select images from Google Image Search by checking a box that the program makes available next to each Google thumbnail. The program places the date the Google search was done in the upper right corner, and puts the three links offered by Google for each image in the block corresponding to that image. The first URL after the term "Image" is the URL associated with Google's "See full-size image" link; the second URL after the term "Site" is the link Google provides to the underlying third party website (often called a Web Page URL); and the bottom URL after the term "Thumbnail" is the link to the location at which the "thumbnail" resides on Google's server. The program also has a Web Search option which allows Perfect 10 to

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save selected Google Web Search results.") 2. Chumura Decl., at ¶ 4 ("If Google received page 1 of Exhibit 1 in a notice, it would have more than enough information to readily locate 1. Adobe Acrobat has a feature which allows for the extraction of whatever URLs it wanted from page 1 of Exhibit 1 into a text file or excel spreadsheet.") Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statement is irrelevant, argumentative, mischaracterizes the foundation, is not within the witness's personal knowledge, and is improper never been disclosed by P10 as an expert in this case, nor does he appear to have the necessary expertise to provide such expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 14748 (1999). 3. Chumura Decl., at ¶ 5 ("If Google received any of those pages in a notice, it would have enough information to locate the images on the webpage from both its Image Search and Web Search results. All Google needs to act is the Web Page URL, which is contained on each of Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statement is irrelevant, argumentative, mischaracterizes the foundation, is not within the witness's personal knowledge, constitutes improper legal opinion, and is improper opinion testimony. Mr. Chumura has

and block all the URLs listed on page document, speculative, lacks

URLs. So Google could cut and paste opinion testimony. Mr. Chumura has

that page, and remove the images and document, speculative, lacks

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those pages. Once Google has the URL of the Web Page containing an infringement, it can block it. The the specification of a particular page in a particular book. It tells Google where to go on the Internet to find the infringing material, equivalently, which book to open and which page to turn to.") 4. Chumura Decl., at ¶ 5 ("The Thumbnail Source URL contains both the "See full-size image" URL as well as the Web Page URL embedded in it, along with information such as whether the user had their safe search on and what browser they were using. It may be extraction feature, as shown on page 9 of Exhibit 1.")

never been disclosed by P10 as an expert in this case, nor does he appear to have the necessary expertise to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 14748 (1999).

Web Page URL may be thought of as provide such expert testimony. See

Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statement is irrelevant, argumentative, speculative, lacks foundation, is not within the witness's personal knowledge, and is improper opinion testimony. Mr. Chumura has never been disclosed by P10 as an to have the necessary expertise to provide such expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 14748 (1999).

readily extracted using Adobe's URL expert in this case, nor does he appear

5.

Chumura Decl., at ¶ 6 ("So metimes when a URL is too long, Google will

Fed. R. Evid. 401, 402, 403, 602, 701, 702

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replace it with a URL that has ellipses in it. However, the original by doing a Google combination search on the base URL along with a character string from the rest of the URL. Effectively, one searches on the two portions of the URL that one has. The base URL is usually the URL of the home page of the website, like google.com.")

The statement is irrelevant, argumentative, speculative, foundation, is not within the witness's personal knowledge, and is improper opinion testimony. Mr. Chumura has never been disclosed by P10 as an expert in this case, nor does he appear to have the necessary expertise to provide such expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 14748 (1999).

full URL can almost always be found mischaracterizes the evidence, lacks

6.

Chumura Decl., at ¶ 7 ("The only URL shown with this image is not a the image with this URL, by cutting and pasting the URL into their browser bar.")

Fed. R. Evid. 401, 402, 403, 602, 701, 702 argumentative, speculative, lack foundation, and constitute improper opinion testimony. Mr. Chumura has never been disclosed by P10 as an expert in this case, nor does he appear to have the necessary expertise to provide such expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-

post URL. However, anyone can find The statements are irrelevant,

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48 (1999). 7. Chumura Decl., at ¶ 8 ("I do not believe that Google's Image Search instructions are necessary or helpful in the vast majority of situations. In fact, they can be unnecessarily burdensome when an infringing web page contains many infringing images, as is illustrated by page 2 of Exhibit 1 to my declaration.") Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statement is irrelevant, argumentative, mischaracterizes the facts, is unduly prejudicial, speculative, confuses the issues, lacks foundation, is not within the witness's personal knowledge, constitutes improper legal opinion, and is improper opinion testimony. Mr. Chumura has never been disclosed by P10 as an expert in this case, nor does he appear to have the necessary expertise to provide such expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999). 8. Chumura Decl., at ¶ 8 ("Each of the Fed. R. Evid. 401, 402, 403, 602, 701, first fifteen thumbnails appearing on page 2 of Exhibit 1 is linked to, and appears on, the same infringing web page, darkshadow.3xforum.ro. If Perfect 10 were to follow Google's Image search instructions, it would have to provide at least 15 Image 702 The statement is irrelevant, argumentative, mischaracterizes the document, speculative, lacks foundation, is not within the witness's personal knowledge, constitutes improper legal opinion, and is improper

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URLs (one for each of the images more.")

opinion testimony. Mr. Chumura has expert in this case, nor does he appear to have the necessary expertise to provide such expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 14748 (1999).

shown on page 2), but possibly many never been disclosed by P10 as an

9.

Chumura Decl., at ¶ 8 ("Suppose on Fed. R. Evid. 401, 402, 403, 602, 701, the other hand that Perfect 10 were to 702 identify a single URL for the infringing web page, darkshadow.3xforum.ro. In order to web page, Google would have to remove the first fifteen images shown on page 2 of Exhibit 1 from its Image Search results, as well as any other image that Google was displaying in its search results from that web page, even if it were not a P10 Image. That is the only way that Google, given its current method of infringing web pages, could block all direct links to the identified The statement is irrelevant, argumentative, mischaracterizes the document, speculative, lacks personal knowledge, constitutes improper legal opinion, and is improper opinion testimony. Mr. Chumura has never been disclosed by P10 as an expert in this case, nor does he appear to have the necessary expertise to provide such expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); Kumho Tire 48 (1999).

stop directly linking to that infringing foundation, is not within the witness's

linking infringing thumbnails back to Co. v. Carmichael, 526 U.S. 137, 147-

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infringing web page darkshadow.3xforum.ro. So specifying a single web page URL does much more in this case than specifying possibly hundreds of Image URLs.") 10. Chumura Decl., at ¶ 8 ("In fact, just Fed. R. Evid. 401, 402, 403, 602, 701, specifying P10 Image URLs by themselves would not prevent Google from continuing to directly link to darkshadow.3xforum.ro from a non-P10 thumbnail from that same web page.") 702 The statement is irrelevant, argumentative, speculative, lacks foundation, is not within the witness's personal knowledge, constitutes improper legal opinion, and is improper opinion testimony. Mr. Chumura has never been disclosed by P10 as an expert in this case, nor does he appear to have the necessary expertise to provide such expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 14748 (1999). 11. Chumura Decl., at ¶ 8 ("Of course, once Google in-line links a user to that web page, the user can view and download any of the infringing images on that page, regardless of Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statement is irrelevant, argumentative, mischaracterizes the document, speculative, lacks

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which Google thumbnail he clicked on to get there. That is why it is necessary for Google to remove all thumbnails that link to that webpage from its Image Search results, rather than just a few thumbnails.")

foundation, is not within the witness's personal knowledge, constitutes improper legal opinion, and is improper opinion testimony. Mr. Chumura has never been disclosed by P10 as an expert in this case, nor does he appear to have the necessary expertise to provide such expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 14748 (1999).

12. Chumura Decl. Exhs. 1-2

Fed. R. Evid. 401, 402, 403, 602, 901 The evidence is irrelevant, lacks foundation, does not appear to be based on the witness's personal knowledge, and is not properly authenticated.

DATED: September 8, 2009

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By Michael Zeller Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SEAN CHUMURA

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