Perfect 10 Inc v. Google Inc et al

Filing 511

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 Jeffrey Mausner 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

Doc. 51

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 JEFFREY MAUSNER 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

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
01980.51320/3061434.1

Defendants.

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JEFFREY MAUSNER Dockets.Justia.com

1 I. 2 3 4

PORTIONS OF THE EVIDENCE OFFERED BY PERFECT 10 IN THE DECLARATION OF JEFFREY MAUSNER ARE INADMISSIBLE AND SHOULD BE DISREGARDED. Portions of the Declaration of Jeffrey Mausner, submitted in opposition to

5 Google Inc's Motions for Summary Judgment Re: DMCA Safe Harbor for its Web 6 and Image Search, Blogger Service, and Caching Feature (Docket Nos. 426-28), are 7 inad missible and should be disregarded for purposes of the Motion. 8 Evidence submitted to the Court on motion practice must meet all 9 requirements for admissibility of evidence if offered at the time of trial. Beyene v. 10 Coleman Sec. Services, Inc., 854 F.2d 1179, 1181-1182 (9th Cir. 1988); Travelers 11 Cas. & Sur. Co. of America v. Telstar Const. Co., Inc., 252 F. Supp. 2d 917, 923 (D. 12 Ariz. 2003). See also Fed. R. Evid. 101 (Rules of Evidence apply to all proceedings 13 in the courts of the United States); Fed. R. Evid. 1101 (listing exceptions to Rule 14 101). Such evidence must be relevant to the claims and defenses of the case. Fed. 15 R. Evid. 401; 403; McCormick v. City of Lawrence, Kan., 2007 WL 38400, at *3 (D. 16 Kan. Jan. 5, 2007). Testimonial evidence must be based on the personal knowledge 17 of the witness offering the evidence. Fed. R. Evid. 602. Documentary evidence 18 must be properly authenticated. Fed. R. Evid. 901. Hearsay evidence is 19 inadmissible unless it has been defined as non-hearsay or the proponent establishes 20 eligibility for one or more exceptions under the Rules. Fed. R. Evid. 801-804. 21 Testimony requiring scientific, technical, or other specialized knowledge may be 22 given only by an expert witness with the requisite knowledge, skill, experience, 23 training, or education. Fed. R. Evid. 701, 702. The Mausner Declaration fails to 24 meet one or more of these criteria, as specified below. 25 As further set forth below, the Mausner Declaration is riddled with Mr. 26 Mausner's opinions regarding Google and the DMCA. A declaration brought under 27 Federal Rule of Civil Procedure 56(e) is not a proper vehicle for a party to stand on 28 its "soapbox" and share its opinions regarding copyright infringement and Google's
GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JEFFREY MAUSNER

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1 DMCA practices and procedures. In addition to being improper opinion testimony 2 of a lay witness, Mr. Mausner's personal opinions have no bearing on the legal 3 standards at issue for safe harbor. 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
GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JEFFREY MAUSNER

Proffered Evidence 1. Mausner Decl., at ¶¶ 2-13

Google's Objection Fed. R. Evid. 401, 402, 403, 602, 701 The statements are argumentative, irrelevant (because Mr. Mausner's personal opinions have no bearing on the legal standards at issue for safe harbor), speculative, do not appear to be based upon the witness's personal knowledge, lack foundation, and are improper opinion testimony.

2.

Mausner Decl., at ¶ 15

Fed. R. Evid. 401, 402, 403, 602 The statement is argumentative and irrelevant.

3.

Mausner Decl., at ¶ 16 ("Google incorrectly stated: [T]here is nothing that Google can do to remove the offending content without the cooperation of the site administrator. ... Only an administrator can, by including code that blocks our robots or placing a request with us, prevent his/her page from being listed. Without administrator cooperation we cannot exclude material available

Fed. R. Evid. 401, 402, 403, 602, 701 The statement is argumentative, irrelevant (Mr. Mausner's personal opinions regarding the accuracy of statements have no bearing on the legal standards at issue for safe harbor), speculative, does not appear to be based upon the witness's personal knowledge, lacks foundation, and is improper opinion testimony.

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1 2 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 6. 5. 4.

on the Internet from our index.") Mausner Decl., at ¶ 17 ("This letter makes clear that Google takes the position that it does not have to remove or disable access to usenet sites, no matter what notice Perfect 10 gives.") Fed. R. Evid. 401, 402, 403, 602, 701 The statement is argumentative, irrelevant (because Mr. Mausner's personal opinion regarding the meaning of a letter have no bearing on the legal standards at issue for safe harbor), speculative, mischaracterizes the document, does not appear to be based upon the witness's personal knowledge, lacks foundation, and is improper opinion testimony. Mausner Decl., at ¶ 18 ("Attached as Exhibit C are true and correct copies of articles and some of the related comments, regarding Google's lack of compliance with DMCA procedures.") Fed. R. Evid. 401, 402, 403, 602, 80104 The statement is argumentative, irrelevant, constitutes inadmissible hearsay, speculative, mischaracterizes the documents, does not appear to be based upon the witness's personal knowledge, and lacks foundation. Mausner Decl., at ¶ 28 ("Attached hereto as Exhibit L are true and correct copies of emails between Valerie Kincaid, an attorney for Perfect 10, and Tom Nolan, an takes the position that it can and will Fed. R. Evid. 401, 402, 403, 602 The statement is argumentative, irrelevant (because whether Google forwards notices to Chilling Effects has no bearing on the legal standards at mischaracterizes the document, does

attorney for Google, in which Google issue for safe harbor), speculative,

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JEFFREY MAUSNER

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1 2 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 8. 7.

continue to publicize Perfect 10's DMCA notices on Chillingeffects.org.") Mausner Decl. Exh. C

not appear to be based upon the witness's personal knowledge, and lacks foundation. Fed. R. Evid. 401, 402, 403, 602, 80104 The evidence is irrelevant, lacks foundation, and constitutes inadmissible hearsay.

Mausner Decl. Exh. D, E, G

Fed. R. Evid. 401, 402, 403 The evidence is irrelevant.

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 JEFFREY MAUSNER

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