Perfect 10 Inc v. Google Inc et al

Filing 518

DECLARATION of Shantal Rands Poovala 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 , 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 Rebuttal Declaration of Shantal Rands Poovala in Support of Defendant Google's Motions for Summary Judgment re: Google's Entitlement to Safe Harbor Under 17 U.S.C. 512 [Public Redacted] filed by Counter Claimant Google Inc, Defendant Google Inc. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F)(Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 518

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) [e-mail] 86-55-South Figueroa Street, I t Floor Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone]
Charles K. erhoeven (Bar No. 170151) charle sverhoevenna,ciuinnemanuel .com 50 California Street, -22nd F oor

San Francisco, California 94111
Rachel Herrick Kassabian (Bar No. 191060) rachelkassabiana,guinnemanuel.com 555 Twin Dolphin rive, uite 560

Redwood Shores, California 94065 Attorneys for Defendant GOOGLE INC.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
PERFECT 10, INC., a California corporation,

Plaintiff, VS. GOOGLE INC. a corporation; and DOES 1 through 100, inclusive, Defendants. AND COUNTERCLAIM PERFECT 10, INC., a California corporation,

CASE NO. CV 04-9484 AHM (SHx) Consolidated with Case No. CV 05753 AHM (SHx)] REBUTTAL DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO F HARBOR UNDER 17 U.S.C. §S 512 Hon. A. Howard Matz Date: None (taken under submission) Time: None Set Ctrm: 14 Discovery Cut-off. None Set Pretrial Conference Date: None Set Trial Date: None Set PUBLIC REDACTED

Plaintiff,
Vs. AMAZON.COM , INC., a corporation; A9.COM , INC. a corporation; and DOES 1 through 100, inclusive, Defendants.

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I, Shantal Rands Poovala, declare as follows: 1. 1 am the head of the Consumer Products Legal Support group at

3 Defendant Google Inc. ("Google"). I have personal knowledge of the matters set 4 forth herein and if called and sworn as a witness, I could and would competently 5 testify thereto.
6 7 Google' s Processing of P10' s January 21, 2005 DMCA Notice to Amazon 2. In 2004 and 2005, Amazon sent Google several DMCA notices that it

8 received from Perfect 10 ("P10"), which were included as Exhibits L12, L30, L32,

9 L34 and L46 to my June 29, 2009 Declaration. Google expeditiously processed all of 10 the Amazon notices to the fullest extent possible in light of the various defects they 11 contained. Google's processing of these notices is described more fully at paragraphs

12 75-85 of my June 29, 2009 Declaration. 13 3. 1 have reviewed Exhibit 19 to the Declaration of Norman Zada filed

14 with P10's July 5, 2009 Motion for Summary Judgment and Summary Adjudication 15 re: Copyright Infringement against Defendant Google. Exhibit 19 to that Declaration 16 is a DMCA notice that P10 claims to have sent to Amazon on January 21, 2005 17 (hereinafter the "Amazon Notice"). Google has no record of having received the 18 Amazon Notice from either Amazon or P10. Google first learned of this notice only 19 after receiving and reviewing P10's recently-filed motion for summary judgment. 20 Attached as Exhibit A is a true and correct copy of the January 21, 2005 notice P10 21 claims to have sent to Amazon.
22 4. The Amazon Notice is in the same format as the other Group B Notices

23 described in paragraphs 41-47 and 82-85 of my June 29, 2009 Declaration, and

24 suffers from the same types defects as the other Group B Notices. 25 5. After confirming that Amazon had received the January 21, 2005 notice

26 from P10, my team expeditiously processed it, following the procedures described in 27 paragraphs 5-39 and 82-85 of my June 29, 2009 Declaration. Many of the URLs in
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that notice were either not live on the internet, or were duplicative of other P10 notices and had already been processed and prevented from appearing in Google's search results. Nevertheless, our team completed processing of the Amazon Notice within two weeks after we first learned of its existence.
6. Attached as Exhibit B (FILED UNDER SEAL) is a true and correct

copy of my spreadsheet reflecting the processing of the Amazon Notice (and other

7 P 10 notices). The content and format of this spreadsheet is similar to the other 8 spreadsheets I keep regarding the processing of P 10's notices, which were attached to 9 my June 29, 2009 Declaration as Exhibits FF, GG, HH and II. Specifically,

s

7.

The URLs that ultimately were prevented from appearing in Web and

26 Image Search results in response to P10 ' s notices ( including the Amazon Notice) are
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I I tracked in my various spreadsheets and the M files maintained by the 2 engineering team.

3 Google's 2001-2002 DMCA Processing 4 5 6 7 8 9 10 11 .12 13 8. I understand that Perfect 10 contends that Google did not suppress links

to infringing material pursuant to the DMCA prior to March of 2002. This is incorrect. Google did indeed have a policy for processing DMCA-compliant notices of infringement prior to March of 2002. Google suppressed links to infringing material in response to DMCA-compliant notices at all times relevant to this lawsuit. 9, I also understand Perfect 10 contends that it submitted several DMCA

notices to Google in 2001. I have searched for these notices in Google's files and have not been able to locate them. Assuming that one of more of these notices was indeed sent to Google, it appears that they were not sent to the correct location or addressee at Google.

14 Goode's Processing of the Group C Notices 15 16 17 18 19 10. As explained in my June 29, 2009 Declaration, the majority of the files

on the DVDs and hard drive that accompanied P10's Group C Notices were image files with no extractable text that Google could cut and paste. Even many of the supposed screen shots accompanying those notices were png image files with no extractable text. Thus, my team had to manually type the URLs from those screen

20 shots, assuming an intelligible URL could be discerned from them. 21 22 23 24 25 26 11. As for the PDF files that were also included on the DVDs and hard

drive that accompanied P 10's Group C Notices, they were similarly time-consuming to review and process. Even though text from the PDF files could be copied and pasted, these files often included many pages with no discernable infringing material, and pages with multiple URLs displayed. For example, these PDF files often contained many pages of Google search results and other pages with no

27, potentially infringing images on them. Thus, my team had to scroll through those
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pages to try to locate discernable URLs associated with potentially infringing material. Because most of the PDF files had more than one UAL on each page, the removals team was required to repeat this procedure multiple times for each page of PIO's lengthy PDFs. P10's "URL Extraction" Claims 6 7
12. I have reviewed the two "URL extraction" methods described in the

August 7, 2009 Declaration of Norman Zada. Neither method would have appreciably increased the speed with which Google could process P I O's Group C Notices, as compared with the procedures Google employed. Initially, as described above, a majority of the files on the hard drive and DVDs that accompanied P1 O's Group C Notices were image files that had no URLs associated with them, and thus could not be processed with either of the methods Norman Zada describes. Additionally, because the PDF files sent by P 10 contained many pages with no

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potentially infringing material, and with multiple URLs or other links on most pages, neither of PIO's proposed methods would have simplified the review process.

13.

The first method of "URL extraction" that Norman Zada describes is

"creating links from URLs in the document" using Adobe Acrobat 6.0. Zada Dec. ¶ 9. His declaration describes copying and pasting one URL at a time from the PDF files -- the same way that my team extracted URLs for the PDF files in processing the Group C Notices. M, Ex. 2, p. 8. Even if it were possible to extract more than one URL or link at a time from the PDF files accompanying P I O's Group C Notices, this would slow Google's processing down rather than speed it up, as most of the PDF files contain hundreds or thousands of links to admittedly non-infringing URLs that would have to be reviewed individually and discarded. 14. 26 27
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As for the second method, Norman Zada describes Adobe's "bookmark"

feature as a claimed means for Google to more rapidly identify URLs on the hard drive and DVDs that accompanied P I0's Group C Notices. However, this feature -4REBUTTAL DECLARATION OF SHANTAL RANDS POOVALA IN SUPPORT OF DEFENDANT GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBOR UNDER 17 U.S.C. & 512

also would not have eased the burden associated with processing the Group C Notices. First, many of the PDF files accompanying P 10's Group C Notices did not have any bookmarks at all. This was true of the July 2, 2007 notice, for example. Second, even when there were bookmarks, many did not contain any URLs or other

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identifiable locations of infringing material. Third, P10 never stated in the Group C Notices that it was only complaining about the infringing material located at the URLs it had listed as bookmarks in certain of the PDF files. Thus, Google could not rely on the URLs in the bookmarks to locate and review material claimed to be infringing by P 10-Google had to review all of the files manually, one by one. Finally, my team could not copy and paste even the URLs that appeared as bookmarks in these PDF files, because the text of the bookmarks was not extractable and thus could not be cut and pasted.

Google's Processing of AdSense DMCA Notices 15. Google has a policy and procedure for processing DMCA notices

directed toward AdSense, published at http://www.google.com/adsense_dmca.html. Attached as Exhibit C is a true and correct copy of Google's published DMCA policy for AdSense. Google's procedure for processing DMCA notices regarding AdSense is described at paragraph 38 of my June 29, 2009 Declaration. Google has responded expeditiously to DMCA notices directed toward AdSense since the service was launched in 2003.
16. A copy of the current AdSense DMCA tracking spreadsheet was

attached to my June 29, 2009 Declaration as Ex. II. It is my understanding that this spreadsheet was collected and produced to P10 in mid-2008. This spreadsheet includes AdSense DMCA processing records for the period from through

^. Google has earlier spreadsheets reflecting processing of AdSense DMCA notices dating back to _, which I am informed were produced to P 10 during discovery. Further, Ex. LL to my June 29, 2009 Declaration contains
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additional spreadsheets which reflect Google's special processing of P 10's DMCA notices for AdSense during . As can be seen from a review of

Exhibits II and LL, together they contain approximately s URLs pertaining to AdSense account holders that were processed in response to P 10's notices. Google's Processing of Bloner DMCA Notices 17. As discussed at paragraphs 31-35 of my June 29, 2009 Declaration,

Google removes infringing images and other material posted by Blogger users when provided with a DMCA notice identifying such material. When Google takes down a post URL, an automated process also takes down all images which are displayed at that post URL, even though those images are hosted on different (image) URLs.

This is why it is important that complainants like P 10 follow Google's published DMCA guidelines for Blogger notices by submitting post URLs. Images hosted on Google servers are uploaded by users of Google's blogger.com or blogspot.com products. It should be noted that these are effectively the same product that have different domain names. Goo2le's ProcessinE of DMCA Notices Submitted by Dean Hoffman, C.J. Newton, Jane Eden and Les Schwartz
18. I have reviewed the May 29, 2009 declaration of Dean Hoffinan, filed

by P 10 on August 9, 2009. Mr. Hoffman claims that he has sent Google "approximately ten" DMCA notices since 2005. I have reviewed Google's processing records and located nine notices from Mr. Hoffman that Google received between July 2005 and November 2006. Google processed these notices consistent with Google's DMCA policies and procedures for Web Search, and prevented _ _ URLs from appearing in Google's search results in response to these notices. 19. I have reviewed the May 28, 2009 declaration of C. J. Newton, filed by

P 10 on August 9, 2009. Mr. Newton claims that he sent Google over 100 DMCA notices. I have reviewed Google's processing records and located at least 77 notices
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I from C. J. Newton that Google received . Google processed these notices consistent 2 with Google's DMCA policies and procedures for Web Search , and prevented more 3 than URLs from appearing in Google's search results in response to these notices. 4 I have also reviewed the one DMCA notice that Mr. Newton attached to his
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declaration . We do not have a record of having received this notice. I have

6 compared the contents of the allegedly infringed webpages with the allegedly 7 infringing webpages referenced in that notice , and I saw no similar or identical portions of text that might be indicative of alleged copyright infringement of Mr. Newton's article. 20. I have reviewed the July 28 , 2009 declaration of Les Schwartz and

Exhibit N to the Declaration of Jeffrey Mausner, filed by P 10 on August 9, 2009. I have reviewed Google's processing records and confirmed that Google processed all nine DMCA notices from Les Schwartz that were attached to the Mausner Declaration . Google processed these notices consistent with Google's DMCA policies and procedures for Web Search , and prevented at least N URLs from appearing in Google's search results in response to these notices. Google also removed at least three Google Groups posts in response to these notices . I was able to locate communications between Mr . Schwartz and basic AdWords support, but those communications were not notices of copyright infringement under the DMCA. I have also reviewed Exhibit 5 to Mr . Schwartz ' s declaration, which he describes as a print-out of a Google Groups web page selling pirated copies of his DecisionBar software. I visited that Google Groups webpage by typing the URL listed on the print-out into a web browser, and confirmed that Mr. Schwartz's DecisionBar software was not available for purchase on that webpage . The Google Groups webpage only mentions the DecisionBar software by name , and provides links to another webpage associated with an entity called Forex Club. I clicked on the Forex

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Club link as well, and confirmed that the DecisionBar software also was not available for purchase on that Forex Club webpage. 21. I have reviewed the August 4, 2009 declaration of Jane Eden, filed by

P 10 on August 9, 2009. Ms. Eden claims to have sent Google approximately 70 DMCA notices between February 2008 to the present. I have reviewed Google's processing records and located 62 notices that Google received from Jane Eden between February 2008 and July 2009. Google processed these notices consistent with Google's DMCA policies and procedures for Web Search, and prevented s URLs from appearing in Google's search results in response to these notices. Google does not have any record of Ms. Eden complaining that Google did not adequately process her DMCA notices. Rather, Google's records indicate that Ms. Eden was happy with Google's processing. Attached as Exhibit D is a true and correct copy of an email communication from Ms. Eden on this issue. Communications from Perfect 10 22. Attached as Exhibit E is a true and correct copy of an email from Norm

Zada at Perfect 10 to Google dated December 23, 2005. GoogIe's Product-Specific DMCA Policies
23. Google has separate teams of employees that process the DMCA notices

for many of its products and services. Google has informed complainants, via its public DMCA policy pages, of the specific teams to contact and information to provide for claims of infringement pertaining to Google's various products and services other than Web Search since 2005. Google provides this information to

23 expedite its handling of DMCA notices and to ensure that copyright owners are 24 provided with examples of the different types of information Google needs to locate 25 and remove allegedly infringing material for each of its various products and 26 services. Whenever Google is able to determine that a DMCA notice has been sent to 27 the wrong team of employees or complains of infringement accessible through more
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than one Google product or service, Google will forward the notice to the appropriate team or teams for processing.

24.

Google Groups is another Google service with its own DMCA policy

and procedure. Attached as Exhibit F is a true and correct copy of Google's DMCA policy for Google Groups. To the best of my knowledge Perfect 10 has never sent Google a DMCA notice directed to Google Groups. Google does, however, have a 7 repeat infringer policy for Google Groups and tracks the processing of DMCA notices directed at Google Groups. 25. Google acquired the online-marketing company DoubleClick in March

2008. DoubleClick maintains a separate digital advertising platform that places advertisements on web pages and in other digital content for its marketing clients. Advertisements served by DoubleClick UALs are not associated with Google's AdSense program. To the best of my knowledge, Google has not received a DMCA notice directed to DoubleClick.

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I declare under penalty of perjury under the laws of the United States of

2 America that the foregoing is true and correct , Executed September 4, 2009 at 3 Mountain View, California. 4

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