Perfect 10 Inc v. Google Inc et al

Filing 510

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 Dean Hoffman 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 AngeDean, California 90017-2543 Telephone: [phone] Facsimile: [phone] CharDean K. Verhoeven (Bar No. 170151) [e-mail] 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 14 15 vs. 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 DEAN HOFFMAN 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) 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

PERFECT 10, INC., a California 13 corporation, Plaintiff,

16 GOOGLE INC., a corporation; and DOES 1 through 100, inclusive, 17 Defendants. 18 19 AND COUNTERCLAIM 20 PERFECT 10, INC., a California corporation, 21 Plaintiff, 22 vs. 23 AMAZON.COM, INC., a corporation; 24 A9.COM, INC., a corporation; and DOES 1 through 100, inclusive, 25 Defendants. 26 27 28
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GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DEAN HOFFMAN Dockets.Justia.com

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Google hereby submits the following objections to the Declaration of Dean

2 Hoffman, 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 Hoffman Declaration is objectionable for several reasons, and 5 should be disregarded in its entirety. 6 I. 7 8 9 THE HOFFMAN DECLARATION SHOULD BE STRICKEN BECAUSE P10 FAILED TO DISCLOSE MR. HOFFMAN IN ITS RULE 26(A) DISCLOSURES OR DISCOVERY RESPONSES. The Hoffman Declaration should be disregarded in its entirety because,

10 although this case has been pending for close to five years, P10 never disclosed Mr. 11 Hoffman in its Rule 26 Initial Disclosures or its interrogatory responses as a person 12 having knowledge of facts relevant to this case. A party cannot rely on evidence at 13 summary judgment that the party failed to provide during discovery.1 Wolk v. 14 Green, 2008 WL 298757, *3 (N.D. Cal. 2008); Guang Dong Light Headgear 15 Factory Co., Ltd. v. ACIIntern., Inc., 2008 WL 53665, *1 (D. Kan. 2008). P10's 16 failure to disclose Mr. Hoffman as a witness deprived Google of the opportunity to 17 depose him prior to P10's submission of his self-serving declaration, which is 18 demonstrably false in several respects. For example, the Hoffman Declaration 19 mischaracterizes the facts with respect to Google's processing of his DMCA notices 20 and his responses thereto (see Rebuttal Declaration of Shantal Poovala in Support of 21 Google's Motions for Summary Judgment Re Entitlement to Safe Harbor Under the 22 23 24 25 26 27 28
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On April 10, 2008, Google propounded an interrogatory asking P10 to "State all facts which support YOUR contention, if YOU so contend, that GOOGLE has not adopted and reasonably implemented a policy for termination in the appropriate circumstances of subscribers and account holders who are repeat infringers, as described in 17 U.S.C. § 512(i)(I)(A), and IDENTIFY all PERSONS with knowledge of such facts and all DOCUMENTS that REFER OR RELATE TO such (footnote continued)

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1 DMCA, ¶ 18), which facts Google would have established had it had the 2 opportunity to depose Mr. Hoffman. The Hoffman Declaration should be stricken in 3 its entirety. Fed. R. Civ. P. 26, 33, 37; see also Guang Dong Light Headgear 4 Factory 2008 WL 53665, *1 (D. Kan. 2008) (granting motion to strike summary 5 judgment affidavit because witness identity and testimony not properly disclosed 6 during discovery). 7 II. 8 9 THE HOFFMAN DECLARATION IS A SIDESHOW AND SHOULD BE DISREGARDED AS SUCH. Ultimately, P10's attempt to create a "case within a case" should be rejected.

10 This suit is not about whether Google processed the DMCA notices of Hoffman­it 11 is about P10's DMCA notices. These declarations are a sideshow and should be 12 disregarded as such. Unit Drilling Co. v. Enron Oil & Gas Co., 108 F.3d 1186, 13 1193 (10th Cir. 1997) (affirming district court exclusion of evidence that threatened 14 a "trial within a trial"); Jefferson v. Vickers, Inc., 102 F.3d 960, 963 (8th Cir. 1996) 15 (same). 16 III. 17 18 VARIOUS PORTIONS OF HOFFMAN DECLARATION ARE INADMISSIBLE UNDER THE FEDERAL RULES OF EVIDENCE. Even were the Court to consider the Hoffman Declaration, portions of it are

19 inadmissible and should be disregarded. Evidence submitted to the Court on motion 20 practice must meet all requirements for admissibility of evidence if offered at the 21 time of trial. Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1181-82 (9th 22 Cir. 1988); Travelers Cas. & Sur. Co. of America v. Telstar Const. Co., Inc., 252 F. 23 Supp. 2d 917, 923 (D. Ariz. 2003). See also Fed. R. Evid. 101 (Rules of Evidence 24 apply to all proceedings in the courts of the United States); Fed. R. Evid. 1101 25 (listing exceptions to Rule 101). Such evidence must be relevant to the claims and 26 27 facts." Interrogatory No. 12. P10 did not list Mr. Hoffman in its May 26, 2008 (footnote continued) 28
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1 defenses of the case. Fed. R. Evid. 401; 403; McCormick v. City of Lawrence, Kan., 2 2007 WL 38400, at *3 (D. Kan. Jan. 5, 2007). Testimonial evidence must be based 3 on the personal knowledge of the witness offering the evidence. Fed. R. Evid. 602. 4 Testimony requiring scientific, technical, or other specialized knowledge may be 5 given only by an expert witness with the requisite knowledge, skill, experience, 6 training, or education, and opinion testimony is not permitted of a lay person. Fed. 7 R. Evid. 701, 702. The Hoffman Declaration fails to meet one or more of these 8 criteria, as set forth below. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Proffered Evidence 1. Hoffman Decl., at ¶ 2 ("The software sold by Strategic Trading was copyrighted. There were offered it for download on the Internet, without Strategic Trading's permission. Most of these websites charged for the download, and of course Strategic Trading did not receive any of this money. Google's search engine provided, and still provides, links to the websites offering the infringing downloads of our software.") 2. Hoffman Decl. ¶¶ 3-6

Objection Fed. R. Evid. 401, 402, 403, 602 The statement is argumentative, constitutes improper legal opinion, foundation.

websites that copied the software and irrelevant, speculative, and lacks

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

response, nor in its May 29, 2009 updated response. -3-

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DEAN HOFFMAN

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702 The statements are irrelevant, argumentative, constitute improper legal opinion, speculative, lack foundation, and constitute improper opinion testimony. 3. Hoffman Decl., at ¶ 7 ("At that point I gave up, because I realized that Google was not going to remove the infringing links, and any takedown notice would just be republished by Google on Chilling Effects, so I was just wasting my time.") 4. Hoffman Decl., at ¶ 7 ("I realized that Google did not want to take down the infringing links. I believe that Google punishes copyright owners for sending take-down notices by republishing the links on Chillingeffects.org, for anyone who would dare to submit a take-down notice to Google. I think Google operates punitively toward copyright owners. They have no intent to cooperate with copyright owners, because they merely re-publish the Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statements are irrelevant, argumentative, constitute improper legal opinion, speculative, lack foundation, and constitute improper opinion testimony. Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statements are irrelevant, argumentative, constitute improper legal opinion, speculative, lack foundation, and constitute improper opinion testimony.

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infringing links on Chillingeffects.org, even in those few cases where they actually do remove some infringing links.") 5. Hoffman Decl., at ¶ 8 ("My attempt to take down links from the first couple of notices, but sent the notices to Chillingeffects.org to let the copyright owner know that it wasn't going to do them any good to send take-down notices. After the first couple of notices, when I had the nerve to send some more, Google just didn't do anything at all to remove the infringing links.") 6. Hoffman Decl., at ¶ 9 ("Strategic Trading had to stop offering new software for sale, because we were Internet. In other words, we were driven out of this line of business because of Google's refusal to remove infringing links from its search results and sending my takedown notices to Chillingeffects.org for publication on the Internet.") Fed. R. Evid. 401, 402, 403, 602, 701 702 The statements are irrelevant, legal opinion, speculative, lack foundation, and constitute improper opinion testimony. Fed. R. Evid. 401, 402, 403, 602, 701, The statements are irrelevant, argumentative, constitute improper legal opinion, speculative, lack foundation, and constitute improper opinion testimony. experience is that Google made some 702

unable to control infringement on the argumentative, constitute improper

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1 2 DATED: September 8, 2009 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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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 DEAN HOFFMAN

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