Perfect 10 Inc v. Google Inc et al

Filing 521

STATEMENT of Undisputed Facts in Support of 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's Consolidated Separate Statement of Undisputed Facts in Support of Google's Motion for Summary Judgment re: Safe Harbor Under 17 U.S.C. 512(d) for Web and Image Search (PART 1) [Public Redacted] filed by Counter Claimant Google Inc, Defendant Google Inc. (Attachments: #1 Google's Consolidated Separate Statement of Undisputed Facts in Support of Google's Motion for Summary Judgment re: Safe Harbor Under 17 U.S.C. 512(d) for Web and Image Search (PART 2) [Public Redacted])(Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 521

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) michaelzeller(akiulnnemanuel. com 8 6 5 South Figueroa Street, 1 0 ... Floor Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone] Charles K. erhoeven(Bar No. 170151) 6harlesverhoeven(@,qui^nemanuel.com 50 California Street ' 00 San Francisco, Cali fornia 94111
Rachel Herrick Kassabian (Bar No. 191060) uinnemanuel.com rachelkassabian

555 Twin Do p 1n rive, Suite 5 6 0 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.

CASE NO. CV 04-9484 AHM (SHx) Consolidated with Case No. CV 05753 AHM (SHx)] DEFENDANT GOGGLE' S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE' S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U . S.C. 512 ( d) FOR WEB AND IMAGE SEA C Rebuttal Declarations of Rachel errick Kassabian, Bill Brougher and Shantal Rands Poovala filed concurrently herewith] Hon. A. Howard Matz Date: None Set (taken under submission) Time: None Set Crtrm.: 14 Discovery Cut-off: None Set Pretrial Conference Date: None Set Trial Date: None Set PUBLIC REDACTED

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

Plaintiff, VS. AMAZON. COM, INC., a corporation; A9.COM , INC. a corporation; and DOES 1 through 100 , inclusive, Defendants. 27 28
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DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

Dockets.Justia.com

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DEFENDANT GOOGLE'S RESPONSE TO PERFECT 10'S STATEMENT OF GENUINE ISSUES IN 13PPOSITION TO GOOGLE'S MOTION FOR SUMMXRY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARUH ................ . GOOGLE'S UNCONTROVERTED P10'S RESPONSE AND EVIDENCE FACTS AND SUPPORTING EVIDENCE Google maintains an 1, Internet search engine accessible on the World Wide Web at www.google . com. Declaration of Bill Brougher i n Support of Google's Motion for Summary Iud^ment Re: Google's Entitlement to Safe Harbor Under 17 U.S.C. § 512 ("Brougher Dec.") 12.

Google uses an automated 2. software program, known as a web crawler or the "Googlebot," to obtain copies of publicly-available web pages for use in its search index . For Image Search , Google's search engine compiles an index of the text associated with each image crawled , which is in turn associated with a particular "thumbnail " image . When a user enters a query, the search engine searches the relevant index and delivers the links ( for Web Search ) or thumbnails ( for Image Search ) that aid the user in identifying and locating the thirdparty content most relevant to the search . Brougher Dec. T¶ 4, 5. GOOGLE'S REPLY P10 has cited no contrary evidence disputing these facts . P10's response is primarily legal argument, which is prohibited by the Court ' s Scheduling Order. See Scheduling and'Case Management Order (" Scheduling Order" ) at 6:5 - 6 ("No legal

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argument should be set forth in this document."). The Court should strike P 10s response to this Undisputed Fact. Additionally, P 10's submission of one set of Web Search results is irrelevant to the facts asserted. 3. Google does not interfere with any known " standard technical measures." Declaration of Paul Haahr in Support of Google's Motion for Summary Judgment Re: Google's Entitlement to Safe Harbor Under 17 U.S.C. § 512 ("Haahr Dec.") ¶ 18.

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Google's DMCA Policy and Procedure for Web Search and Image Search
Goode has developed 4. and maintains a DMCA policy and procedure for processing complaints received under the DMCA regarding Web Search. Declaration of Shantal Rands Poovala in Support of Google's

Motion for Summary Judgment
Re: Google's Entitlement to Safe Harbor Under 17 U.S.C. § 512 ("Poovala Dec.") 15, Ex. B.

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DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

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DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

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GOOGLE'S REPLY
Most of P 10's response is improper legal argument and should be stricken. See Scheduling Order at 6:5-6 ("No legal argument should be set forth in this document."). P10's cited evidence (including the opinions of Norman Zada, Dean Hoffman, C.J. Newton, Les Schwartz and Margaret Jane Eden, and what Google allegedly has done in response to specific P 10 notices) is irrelevant to the identified fact because it is directed to how Google has implemented its DMCA policy - not 25 26 27 28
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whether Google has such a policy. Additionally, Google's DMCA tracking spreadsheets speak for themselves. Poovala Dec. Ex. II; Rebuttal Declaration of Rachel Herrick Kassabian at ¶ 2. The fact that Google received a few poor-quality

-5DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

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faxes (including several from P10) is irrelevant to its qualification for DMCA safe harbor. Perfect 10's statements regarding chill ingeffects. org also are irrelevant.
Google has developed 5.. and maintains a DMCA policy and procedure for processing complaints received under the . DMCA regarding Image Search. Poovala Dec. ¶ 21, Ex. D.

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GOOGLE'S REPLY P 10's cited evidence is irrelevant to the identified fact because it is directed to how Google has implemented its DMCA policy - not whether Google has such a
policy. Google has a designated 6. agent for receiving notifications of claimed infringement. Declaration of Rachel Herrick Kassabian in Support of Google's Motion for Summary Judgment Re: Google's Entitlement to Safe Harbor Under 17 U.S.C. § 512 "Kassabian Dec."), Ex. G Perfect 10's Responses to Requests for Admission); Poovala Dec. ¶ 3. Ex. A.

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DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

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GOOGLE'S REPLY P10's cited evidence does not actually dispute the identified fact. That Google has an additional fax number on file with the Copyright Office is irrelevant to whether Google publishes the information required to submit a DMCA notice on Google's website. Google publishes the 8. information required for DMCA complaints relating to Image Search at http://www.google.com/images dmca.html. Poovala Dec. ¶ 21, Ex. D.

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-7DEFENDANT GOOGLE'S CONSOLIDA'T'ED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512{d} FOR WEB AND IMAGE SEARCH

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7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 GOOGLE'S REPLY Most of P 10's response is improper legal argument and should be stricken.

24 See Scheduling Order at 6:5-6. 25 P 10's cited evidence (including P 10's opinions regarding Google's Image

26 Search DMCA instructions, Google's alleged implementation of its Image Search 27 DMCA policy, and that Google has an additional fax number on file with the
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28 Copyright Office) is irrelevant because it (1) does not actually dispute the identified -8DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

fact, and (2) has no bearing on the fact that Google publishes its Image Search DMCA instructions on its website.
P10's reference to an email sent by Google on June 1, 2004 is irrelevant because that email was sent in response to P10's May 31, 2004 notice regarding Web Search, not Image Search. Poovala Dec., Ex. Ll.

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9. It is Google's policy to respond expeditiously to notices of copyright infringement directed to Web Search or Image Search. Poovala Dec. ¶T 5, 21

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DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

GOOGLE'S REPLY Most of P 10's response is improper legal argument and should be stricken. See Scheduling Order at 6:5-6. P 10's cited evidence (including the opinions of Norman Zada, Dean Hoffman, C.J. Newton, Les Schwartz and Margaret Jane Eden, and what Google allegedly has done in response to specific P10 notices) is irrelevant to the identified fact because it is directed to how Google has implemented its DMCA policy - not whether Google has such a policy. Additionally, Google's DMCA tracking spreadsheets speak for themselves. Poovala Dec. Ex. T1. The fact that Google received a few poor-quality faxes (including several from P10) is irrelevant to its DMCA policy. P 10's claim that is unsupported by both P10's and Google's evidence. Poovala Dec. IT 57-64, Exs. S-V; Zada Dec. at 20:16-26 & 23:27-28. P1 O's claim that
is unsupported by the evidence it cites, and incorrect. See Rebuttal Kassabian Dec. Ex. B; Rebuttal Poovala Dec. ¶ 8. P 10's claim that is

unsupported by the evidence it cites and irrelevant to Google's policy of responding expeditiously to DMCA notices, nor does the DMCA impose specific time periods for recordkeeping.

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10. For a Web Search DMCA complaint, Google directs cogplainants to identify the copyrighted work infringed by providing a brief description of it and the complete URL or other location where the work can be found. Poovala Dec. ¶ 7 _1(
DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

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GOOGLE'S REPLY
P 10's cited evidence does not actually dispute the identified fact, but rather is argument regarding what information P10 provided in response to Google's instructions , and thus is irrelevant . See Scheduling Order at 6:5-6. Both P10 and Google point to the same " documentary support " - GoogIe's published DMCA policy for Web Search - which speaks for itself. 11. For a Web Search DMCA complaint, Google directs complainants to provide the complete URL at which the allegedly infringing material is located and the Web Search query that directly links to that web page. Poovala Dec. ¶ 8, Ex. B.

GOGGLE' S REPLY P 10's cited evidence does not actually dispute the identified fact, but rather is 25 26 27 28
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argument regarding P1 0's interpretation of Google's Web Search DMCA instructions , and thus is irrelevant . See Scheduling Order at 6:5-6. 12. For an Image Search DMCA complaint, Google directs complainants to provide a Ir

DEFENDANT GOOGLE ' S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE ' S MOTION FOR SUMMARY J UDGMENT RE : SAFE HARBOR UNDER 17 U.S . C. § 512{d} FOR WEB AND IMAGE SEARCH

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infringing material is located, which is the image URL. Poovala Dec. 122, Ex. D. Haahr Dec. ¶ 10.

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GOOGLE' S REPLY
P 10's cited evidence does not actually dispute the identified fact, but rather is

10 argument regarding P 10's interpretation of Google's Image Search DMCA 11
instructions, as well as P 10's opinions regarding those instructions, and thus is

12 irrelevant. See Scheduling Order at 6:5-6. 13 14 15 16 17 18 19 20 21 22 GOOGLE'S REPLY P 10's cited evidence does not dispute the identified fact, but rather discusses 13. Google's published DMCA policy for Image Search tells copyright holders
how to locate the image URL of an allegedly infringing image. Poovala Dec. 23, Ex. D.

23 what P10 claims it did in response to Google's Image Search DMCA instructions, 24 and thus is irrelevant. P 10's opinion's and argument that Google's instructions 25 should explain how to submit DMCA notices for infringing images that are not 26 linked to by Google is nonsensical and irrelevant. See Scheduling Order at 6:5-6. 27 28
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DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

1 2 3 4 5 6 7 GOGGLE' S REPLY P 10 does not dispute the identified fact. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5--6. The identified fact is unsupported by the evidence it cites, and Google's Image Search DMCA instructions (to which both parties cite) speak for themselves. 15. Unless provided with the necessary information from the copyright owner, Google has no way of knowing which uses the owner regards to be
infringing, as opposed to those uses that are licensed, a fair use, or otherwise acceptable to the owner. Poovala Dec. 1 15.

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GOOGLE'S REPLY P 10's cited evidence does not actually dispute the identified fact that Google needs the required information from copyright owners. P 10's improper and circular legal argument should be stricken. See Scheduling Order at 6:5-6. 16. For Web and Image Search DMCA complaints, incomplete URLs containing
improper ellipses, misspellings,

or extra spaces, hinder Google's ability to locate the materials in question. Poovala Dec. ¶¶ 9, 24; Haahr Dec. TT 4, 11.

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DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

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2 3 4 5 6 7 Googic ' s Reply P 10's cited evidence does not actually dispute the identified fact. P 10's improper legal argument should be stricken . See Scheduling Order at 6:5-6. P10's cited evidence ( including the opinions of Norman Zada and Sean . Chumura regarding how Google should process DMCA notices) is irrelevant to the identified fact, and does not support it in any event. 13 14 15 16 17. 18 19 20 21 22 23 24 25 26 27 28
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17. For Web and Image Search DMCA complaints, URLs which are not live on the web, not indexed by Google, or are excluded from search results , cannot be blocked because they already do not appear in Web or Image Search results. Poovala Dec. T9, 24; Haahr Dec . T4, 11.

GOOGLE ' S REPLY P 10's cited evidence does not actually dispute the identified fact. P 10's improper legal argument should be stricken . See Scheduling Order at 6:5-6. P10's cited evidence ( including the opinions of Norman Zada regarding Google's DMCA processing and other Google services not at issue in this lawsuit ) is irrelevant to the identified fact, and in any event does not support it. P 10's opinion that Google should block sites that are not even indexed or linked to by Google is nonsensical and irrelevant.
DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE' S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S . C. § 512(d) FOR WEB AND IMAGE SEARCH

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18. Google has a team of employees charged with processing DMCA removal requests. Poovala Dec. ¶11.

GOOGLE'S REPLY P 10 does not dispute the identified fact. P 10's improper legal argument

8 should be stricken. See Scheduling Order at 6.5-6. 9 10 II 12 13 14 15 .16 17 18 19 GOOGLE'S REPLY P 10's cited evidence does not actually dispute the identified fact, nor does P 10 dispute receiving the Google communications requesting additional information and DMCA-compliant notices. Poovala Dec., Exs. S-EE. P10's cited evidence (including the opinions of Norman Zada with respect to the sufficiency of 19. If a DMCA notice for Web or Image Search does not contain the required information, Google notifies the complainant and requests additional information. Poovala Dec. T¶ 13, 25.

20 Google's communications) is irrelevant to the identified fact. P 10's improper legal 21 argument should be stricken. See Scheduling Order at 6:5-6. 22 20. Google verifies claims 23 of infringement by comparing the copyrighted work claimed 24 to be infringed to the allegedly infringing URL identified in 25 the DMCA notice. Poovala Dec. T¶14, 25. 26 27 28
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DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

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GOOGLE'S REPLY
P10's cited evidence (including the deposition testimony of Mr. MacGillivray

27 and the Declaration of Mr. Botelho) does not actually dispute-or even support 28
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_ -16DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT
OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

1 the identified fact. P1 O's cited evidence (including the opinions and speculations of 2 Norman Zada regarding how Google processed P1 O's notices, Google's DMCA 3 instructions , what Google really needs to process a DMCA notice , and the adequacy 4 of the Group C Notices ) is irrelevant to the identified fact. P10's improper legal 5 argument should be stricken . See Scheduling Order at 6:5-6. Further , Google's 6 DMCA instructions speak for themselves. 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GOOGLE'S REPLY P 10's cited evidence ( including the opinions of Norman Zada, Dean 21. Google blocks infringing web page and image URLs from appearing in Google search results. Haahr Dec. ¶¶ 6, 7, 9; Poovala Dec. ¶M 14, 24.

27 Hoffman, C . J. Newton , Les Schwartz and Margaret Jane Eden , and P10 ' s claims as 28
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DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S . C. § 512(4) FOR WEB AND IMAGE SEARCH

to what Google allegedly has done in response to specific P10 notices) does not actually dispute the identified fact. P1 O's cited evidence also is irrelevant to the identified fact and is contradicted by P I O's witnesses' own testimony. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5-6.

5 Google's DMCA tracking spreadsheets and its engineering files confirming the 6 removal of infringing URLs speak for themselves, as do P 10's notices. Poovala 7 Dec. Ex. II; Haahr Dec. Ex. 1. P 10's statements regarding chillingeffects.org also 8 are irrelevant. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 22. If Google receives a counter- notification as a result of a Search-related DMCA removal and the original complainant responds within ten days and informs Google it has filed a lawsuit, the URL will remain blocked from search results. Poovala Dec. ¶ 18.

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DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 GOOGLE ' S REPLY
P 10's cited evidence does not actually dispute the identified fact. P 10's

18 improper legal argument should be stricken. See Scheduling Order at 6 : 5-6. P10's 19 cited evidence ( including the opinions of Norman Zada) is irrelevant to the 20 identified fact because it discusses Googlc's repeat infringer policies for other 21
Google services - not whether Web Search and Image Search have account holders

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24. Webmasters do not "sign up" to have their websites listed in Google's organic search results . Haahr Dec. ¶17. GOOGLE ' S REPLY

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE' S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

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P 10 has not cited any contrary evidence disputing this fact. It remains

2 uncontroverted. 3 4 5 6 Websites are included in 25. Google's organic search results if they were crawled by the Googlebot and if they are relevant to users' queries. Haahr Dec. ¶ 17.

GOOGLE ' S REPLY P 10's cited evidence does not actually dispute the identified fact. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. P10's cited evidence ( including the opinions of Norman Zada as to whether Google's search results list "relevant " sites ) is irrelevant because the specific results for a search for " Jamike Hansen" have no bearing on the identified fact.
26. Google has repeat infringer policies for its products and services with account holders, such as AdSense and Blogger. Poovala Dec. ¶ 36.

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-_20DEFENDANT GOOGLE ' S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE ' S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.G. § 512(d) FOR WEB AND IMAGE SEARCH

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GOOGLE'S REPLY P 10's cited evidence does not actually dispute the identified fact. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. P 10's cited evidence (including the opinions of Norman Zada and Sheena Chou regarding Google's DMCA processing efforts) is irrelevant to the identified fact because it is directed to allegations regarding how Google has implemented its repeat infringer policies -- not whether Google has such policies for services with account holders and subscribers. Additionally, Google's published repeat infringer policies and DMCA tracking spreadsheets for Blogger and AdSense speak for themselves. Poovala Dec. Exs. F, G, J, K, 11; Rebuttal Pooval Dec. Ex. C. 27. Google does not actively prevent copyright owners from collecting information needed to issue notifications of copyright infringement under the DMCA. Poovala Dec. 39.
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OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U,S.C. § 512(4) FOR WEB AND IMAGE SEARCH

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I 2 3 4 5 6 7 GOOGLE'S REPLY P10's cited evidence does not actually dispute the identified fact. P10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. P10's cited evidence (including the opinions of Norman Zada, Dean Hoffman, C.J. Newton, Les Schwartz and Margaret Jane Eden regarding Google's DMCA instructions) does not actually support the identified fact, and is irrelevant to it. Google's published DMCA instructions speak for themselves.
Group A: The 2001 Notices' 28. During discovery in this action, P 10 produced 17 claimed DMCA notices dated in 2001, all of which were dated more than three years prior to P10's filing of this action. Kassabian Dec. ¶ 13, Ex. 1-L 17.

1 The Group A Notices include e-mail communications from Perfect 10 to Google dated May 11, 2001 (Kassabian Dec. Ex. L 1), May 15, 2001 (Exs. L2, L3 and L4), May 18, 2001 (Exs. L5, L6 and L7), May 21, 2001 (Exs. L8, L9 and L10), 27 May 22,2001 (Exs. LI1, L 12 and L13), May 24, 2001 (Ex: L 14), June 26, 2001 (Ex. L 15), June 29,2001 (Ex. L 16) and July 6, 2001 (Ex. L17). 28
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DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE; SAFE HARBOR UNDER 17 U.S.C. § 5I2(d) FOR WEB AND IMAGE SEARCH

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GOOGLE'S REPLY P10 does not dispute the identified fact, so it remains uncontroverted. P10's improper legal argument should be stricken. See Scheduling Order at 6:5-6.
29. P 10 has indicated that its suit is not based on the DMCA notices purportedly sent to Google in 2001. Kassabian Dec. ¶ 3, Ex. B.

GOOGLE'S REPLY

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE; SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

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PLO's cited evidence (the Mausner Declaration) does not actually dispute

2 Google's cited evidence - it just attempts to re-characterize it. P10 does not dispute 3 that it refused to provide discovery regarding the Group A Notices. P10's improper 4 legal argument should be stricken. See Scheduling Order at 6:5-6. The remainder 5 of P I O's claims are irrelevant to the identified fact and are unsupported by the 6 evidence it cites. 7
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30. None of the Group A Notices properly identified the copyrighted work claimed to be infringed. Kassabian Dec. ¶¶2, 13, Exs. A & L1-L17.

GOOGLE'S REPLY P I O's cited evidence does not actually dispute the identified fact with respect to all but one of the alleged infringements in the Group A Notices, and even as to that infringement, mis characterizes the underlying notice, which speaks for itself. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. 31. None of the Group A Notices properly identifed the location of the allegedly infringing material. Kassabian Dec. 112, 13, Exs. A & L 1L17.

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GOOGLE'S REPLY P10's cited evidence does not actually dispute the identified fact with respect to all but one of the alleged infringements in the Group A Notices, and even as to that infringement, mis characterizes the underlying notice, which speaks for itself. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5-6.
Group B : The Spreadsheet Notices2 32. None of the Group B

Notices properly identified the u 0 11

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2 The Group B Notices include P 1 O's notices dated May 31, 2004, June 1, 2004, June 4, 2004, June 16, 2004, June 28, 2004, July 6, 2004, July 11,2004, July 19, 2004, October 11,2004, November 2,2004, November 8, 2004, November 15, 2004, November 16, 2004, November 18,2004, November 26, 2004, December 1, 2004, December 9,2004, December 21, 2004, December 27, 2004, December 29, 2004, December 31, 2004, January 3, 2005, January 16, 2005, January 21, 2005, January 25, 2005, February 3, 2005, February 7, 2005, February 11,2005, February 17, 2005, February 23, 2005, March 6, 2005, March 27,2005, April 3,2005, April 3,2005, April 11, 2005, May 1,2005, May 7, 2005, June 12,2005, June 19,2005, July 16,2005, July 26,2005, August 30,2005, September 27,2005, December 7, 2005, 27 December 22,2005, December 23, 2005, February 13,2006, and April 24, 2007. Poovala Dec. Exs. Ll-L48. 28
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DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512{d} FOR WEB AND IMAGE SEARCH

infringed. Poovala Dec. ¶14147, Exs. L1-L48. Kassabian Dec. ¶ 2, Ex. A.

7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
01980 .51320/3092049.1

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT
OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

GOOGLE'5 REPLY 2 P 10's cited evidence does not actually dispute the identified fact. P 10's

3 improper legal argument should be stricken. See Scheduling Order at 6:5-6. P10's 4 cited evidence (including the opinions of Norman Zada, Sean Chumura, David 5 O'Connor, and Bennett McPhatter, regarding Google's DMCA instructions and 6 whether P 10 followed them, and Yahoo !'s purported processing efforts) is irrelevant 7 to the identified fact. Google's DMCA instructions and P 10's notices speak for 8 themselves. Further, that P10 provided the exact page number in P10 Magazine to identify the copyrighted work infringed at one URL in one of its Group B Notices is irrelevant to the question of whether that notice, or any of the other Group B Notices, was sufficient in its entirety. 33. None of the Group B Notices properly identified the location of the allegedly infringing material. Poovala Dec. T¶41-47, Exs. Ll-L48. Kassabian Dec. ¶ 2, Ex. A.

18 19 20 21 22 23 24 25 26 27 28
01980 . 51320/3092049.1

-27DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF.UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

1 2 3 4 5 6 GOOGLE'S REPLY P 10's cited evidence does not actually dispute the identified fact with respect to all but one of the alleged infringements in the Group B Notices, and even as to that infringement, mischaracterizes the underlying notice, which speaks for itself. P1 O's cited evidence (including the opinions of Norman Zada, Sean Chumura, David O'Connor, and Bennett McPhatter regarding (1) Google's alleged ability to process P 10's notices and (2) Google's DMCA instructions) is irrelevant to the identified fact because it is directed to Google's processing of P 10's notices, not whether those notices included the referenced information. P10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. 17 18 19 20 21 22 23 24 25 26 27 28
01980.51320/30920}9.1 . -2

34. P10's notices dated May 31, June 1, June 4, June 16, June 28, July 6, July 11, and July 19, 2004 do not identify a specific copyrighted work claimed to be infringed for one or more of the allegedly infringing URLs included in 1 that communication . Poovala Dec. ¶141, 44, Exs . L1-L8.

11

-8--

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U,S.C. § 512(d) FOR WEB AND IMAGE SEARCH

GOOGLE'S REPLY P 10's cited evidence does not actually dispute the identified fact. P 10's improper legal argument should be stricken . See Scheduling Order at 6:5-6. P 10's cited evidence ( including the opinions of Norman Zada regarding ( 1) what Google did or should have done in response to specific P 10 notices and (2 ) Google's DMCA instructions) is irrelevant to the identified fact because it is directed to Google's alleged processing efforts, not the adequacy or content of P 10's notices. P 10 does not dispute that some portion of its Group B Notices did not provide the identified information . Google's published DMCA instructions and P 10's notices speak for themselves. 35. P 10' s notices dated May 31, June 1, June 4, June 16, 2004 do not identify the Google search query used to locate the allegedly infringing material for one or more of the allegedly infringing URLs included in that communication . Poovala Dec. ¶ 41, Exs. Ll-L4. GOOGLE'S REPLY

27 28
01980 .51320/3092049.1

29-

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE ' S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

P10 does not dispute the identified fact. It remains uncontroverted. P10's 2 improper legal argument should be stricken. See Scheduling Order at 6:5-6. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 GOOGLE'S REPLY P 10's cited evidence does not actually dispute the identified fact. P 10's
36. P10 ' s notices dated June 16, June 28, July 6 , July 11, July 19, October 11, November 2, November 8, November 15, November 16, November 18, November 26, December 1, December 9, December 21, December 27, December 29, and December 31, 20045 January 3 , January 16, January 21, January 25, February 3, February 7, February 11, February 17, February 23, March 6, March 27, April 3, April 3, April 11, May 1, May 7, June 12 , June 19, July 16, July 26, and August 30, 2005 list multiple pages in Perfect 10 Magazine as the copyrighted work claimed to be infrin gg ed at one or more of the allegedly infringing URLs included in that communication : Poovala Dec. ¶¶41 , 44, Exs . 1,4-1,42.

22 improper legal argument should be stricken. See Scheduling Order at 6:5-6. P10's 23 cited evidence (including the opinions of Norman Zada regarding (1) what Google 24 did or should have done in response to specific P 10 notices and (2) P 10's 25 explanation of why it prepared its Group B Notices as it did) is irrelevant to the 26 identified fact because it does not dispute the refrenced content of P10's notices. 27 P 10 does not dispute that some portion of its Group B Notices did not provide the 28
01980.5132013092049.1 -30-

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C'. § 512(d) FOR WEB AND IMAGE SEARCH

I

identified information . Google's published DMCA instructions and P10's notices

2 speak for themselves. 3 P 10's notices dated June 37. 28, July 6, July 11, July 19,

4 j October 11, November 2, 5 6 7

November 8, November 15, November 16, November 18, November 26, December 1, December 9, December 21, December 27, December 29, and December 31, 2004, January 3, January 16, January 21, January 25, February 3, February 7, February 11, February 17, February 23, March 6, April 11, May 1, May 7, June 12, July 16, December 7, December 22, and December 23, 2005 list "amyweber.net" as the copyrighted work claimed to be infringed at one or more of the allegedly infringing URLs included in that communication. Poovala Dec. IT 41, 44, Ex. L5-L31, L35-L38, L40, L44-L46.

GOOGLE'S REPLY
P 10 does not dispute the identified fact, and in fact admits it. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5-6.
P 10's notices dated 38. January 21, February 3, February 7, February 11, February 17, February 23, March 6, March 27, April 11, May 7, June 12, June 19, July 26, August 30, September 27, December 7, December 22, and December 23, 2005, February 13, 2006, and April 24, 2007 list "Perfect l0.com" as the .copyrighted work claimed to be infringed at one or more of the allegedly infringing URLs included in that ccmmunicaticn_ Poovala Dec.
DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

25 26 27
01980 .51320/30920 .1

I

2 3 4 5 6

¶¶ 41, 44, Ex. L24, L26-L32, L35, L37-L39, L41-L48.

GOOGLE'S REPLY P 10 does not dispute the identified fact, and in fact admits it. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. 39. P10's notice dated January 16, 2005 lists "Perfect 10 DVD" as the copyrighted work claimed to be 1nfrln ed at one or more of the allegedly infringing UR Ls included in that communication. Poovala Dec. 1141 , 44, Ex. L23. GOOGLE'S REPLY P 10 does not dispute the identified fact. P 10 ' s improper legal argument should be stricken . See Scheduling Order at 6:5-6. 24 25 26 27 28
01980 . 51320 /3092049.1

40. P 10's notices dated April 11 and December 7, 2005 list "Perfect 10 Model Boxing DVD" as the copyrighted work claimed to be infringed at one or more of the allegedly infringing UR.Ls included in that communication . Poovala

_3z_
DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE ' S MOTION FOR SUMMARY JUDGMENT RE; SAFE HARBOR UNDER 17 U. S.C. § 512(d) FOR WEB AND IMAGE SEARCH

1

Dec. ¶141 , 44, Ex. L35, L44.

2 3 4 5 6 7 41. At many of the web page URLs identified in P10's Group B Notices, multiple images were displayed, but P 10 did not identify which images infringed its copyrights. Poovala Dec. 1141, 45, Ex. L.

15

27

28
01990.51320/3092049.1

-33DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

1 2 3 4 5

6
7 8 9 10 II 12 13 14 15 16 17 IS 19 20 21

GOOGLE ' S REPLY P 10's cited evidence does not actually dispute the identified fact. P 10's improper legal argument should be stricken. See Scheduling Order at 6 : 5-6. P10's cited evidence ( including the opinions of Norman Zada regarding how Google processed P10's notices and P10 ' s explanation of why it prepared the notices the way it did) is irrelevant to the identified fact because it does not dispute the contents of the notices themselves.
P 10 does not claim that 42. the entirety of "Perfect 1O.com" was infringed at any of the URLs in P 10's Group B Notices. Kassabian Dec. ¶ 10, Ex. I (P 10's Responses to Requests for Admission).

GOOGLE'S REPLY P10's cited evidence does not dispute Google's cited evidence, nor could it,

22 since P 10 cannot contradict its own prior sworn admissions to avoid summary 23 judgment. See Fed. R. Civ. P . 36(b) ("A matter admitted under this rule is 24 conclusively established unless the court, on motion, permits the admission to be 25 withdrawn or amended ."); School Dist. No. IJ, Multnomah County, Or. v. ACandS, 26 Inc., 5 F.3d 1255 , 1264 ( 9th Cir. 1993) (upholding lower court grant of summary 27 28
01980 . 5132013092049.1

DEFENDANT GOOGLE ' S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE' S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U . S.C. § 512(d) FOR WEB AND IMAGE SEARCH

1 judgment despite affidavit that contradicted prior interrogatory response ). P 10's

2
.3 4
5

improper legal argument should be stricken. See Scheduling Order at 6:5-6. 43 There are thousands of images viewable on perfect 10.com . Kassabian Dec. 19, Ex. H (Zada Declaration).

6
44. P 10 does not claim that every image in the multiplepage sections of Perfect 10 Magazine cited in its Group B Notices was infringed at any of the URLs cited therein. Kassabian Dec. ¶ 10, Ex. I

(P 10's Responses to Requests for Admission).

GOOGLE ' S REPLY
P 10's cited evidence does not dispute Google's cited evidence , nor could it,

23 24 25 26 27 28
01980 . 5 1 3 2 013 0 92 049.1

since P10 cannot contradict its own prior sworn admissions to avoid summary judgment. See Fed. R. Civ. P. 36(b); School Dist. No. IJ, Multnomah County, Or. v, ACandS, Inc., 5 F.3d 1255, 1264 (9th Cr. 1993). P10's claims are not supported by the cited evidence , nor are they relevant to the identified fact. P 10's improper legal argument should be stricken . See Scheduling Order at 6:5-6.

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE ` S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(4) FOR WEB AND IMAGE SEARCH

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
01980 . 51320/3092049. 1

incomplete URLs. Poovala Dec. ¶¶ 41, 45, Ex. L.

GOOGLE'S REPLY
P 10's cited evidence does not actually dispute the identified fact. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. PI O's cited evidence (including the opinions of Norman Zada and Sean Chumura regarding P10's attempt to justify why it prepared its Group B Notices the way it

did) is irrelevant to the contents of the notices themselves. P 10's claims are contradicted by its own DMCA notices, which speak for themselves.
46. Each of P10's Group B Notices cited one or more URLs that displayed multiple images, with no specification as to which image was at issue. Poovala Dec. Ex. ¶T 41, 45, 46, Exs. L and M.

GOOGLE'S REPLY P 10's cited evidence does not actually dispute the identified fact.
47. P 10 did not provide an image URL for each of the alleged infringements of its copyrighted works identified in its Group B Notices. Poovala Dec. ¶¶ 41, 46-47,

all
-36-

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

I 2

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 .24 25 GOOGLE ' S REPLY P 10's cited evidence does not actually dispute the identified fact. P 10's claim GOOGLE ' S REPLY
P10's cited evidence does not actually dispute the identified fact, and in fact P 10 admits that it did not provide image URLs for all of the alleged infringements identified in its Group B Notices . P 10's improper legal argument should be stricken . See Scheduling Order at 6:5-6. P 10's cited evidence ( including Norman Zada's opinions regarding what Google really needs to process a DMCA notice) is irrelevant to the content of the Group B Notices , which speak for themselves.

48. P 10'.s notices dated June 28, July 6, and July 11, 2004 contained identical lists of allegedly infringing URLs, but P 10 did not disclose this fact to Google when submitting them. Poovala Dec. IT 41, 45, Exs. L5, L6, L7.

26 that its July 11, 2004 notice contained 19 pages in addition to the identical list of 27 28
01980 . 51320/3092049.1

_-`i7DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

infringing URLs from the July 6, 2004 notice, does not contradict the identified fact. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. Group C: DV D and Hard Drive Notices3 4 5 6 7 Google's search products do 49. not crawl, index, or link to Usenet news servers, Haahr Dec. ¶¶1415.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 The Group C Notices include P1 O's notices dated December 9,2005, March 26 20, 2007, June 28, 2007, July 2, 2007, July 12, 2007, July 31,2007, October 16, 2007) December 13,2007, January 24,2008, March 17,2008, July 9, 2008, 27 November 26, 2008, November 27, 2008, April 24,2009, May 7,2009, May 30, 2009, June 4,2009, and June 13,2009. Poovala Dec. Exs. NI-NIS. 28
019 90 . 5 13 2013 092 04 9.1

GOGGLE' S REPLY

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

P 10's cited evidence does not actually dispute the identified fact. P 10's

2 improper legal argument should be stricken . See Scheduling Order at 6 : 5-6. P 10's 3 cited evidence ( including the opinions of Norman Zada regarding what Google 4 crawls and indexes ) is irrelevant to the identified fact because it is directed to 5 whether Google crawls other sites or home pages of sites, not whether Google 6 crawls, indexes , or links to Usenet news servers . P 10's examples of Google 7 crawling what it has defined as " usenet sites " are not relevant because the examples
are web pages on web servers , not Usenet content on Usenet news servers. 50. Google's search products do not crawl , index , or link to password - protected content. Haahr Dec. ¶114-15.

GOGGLE ' S REPLY P 10's cited evidence does not actually dispute the identified fact. P 10's improper legal argument should be stricken. See Scheduling Order at 6 : 5-6. P1 O's cited evidence ( including the opinions of Norman Zada regarding what Google crawls and indexes) is irrelevant to the identified fact because it is directed to whether Google crawls and indexes home pages, which is not password-protected content . P 10's examples of crawling password - protected sites are not relevant because they are limited to the homepages of such sites , and not the passwordprotected content.
51. None of the Group C Notices properly identified the copyrighted work allegedly infringed . Poovala Dec. ¶T48-55,

27 28
01980 .51320/3092049.1

0
_39

I!F

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE' S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S . C. § 512(d) FOR WEB AND IMAGE SEARCH

T12, Ex. A. 2 3 4 5 6 7

13 14 15 16 17 18 19 20 21 22 23. 24 25 26 27 28
01980 .51320/3093049.1 -0-

GOOGLE'S REPLY
DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE`S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512{d} FOR WEB AND IMAGE SEARCH

P 10's cited evidence does not actually dispute the identified fact. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. P 10's cited evidence (including the opinions of Norman Zada regarding Google's DMCA instructions and how P 10 believes that Google could have processed the Group C notices) does not support P 10's claims, and is irrelevant to the contents of Group C Notices, which speak for themselves. 52. None of the Group C Notices properly identified the location of the allegedly infringing material. Poovala Dec. ¶¶ 48-55, Exs. N1-N18, Kassabian Dec. ¶ 2, Ex. A.

27
01980 .513203092049.1

28
-41

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

2
.3 4 5 6 7

GOOGLE'S REPLY P10's cited evidence does not actually dispute the identified fact. P10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. P10's cited evidence (including the opinions of Norman Zada regarding Google's DMCA instructions and how P10 believes that Google could have processed the Group C notices) does not support P10's claims, and is irrelevant to the contents of Group C Notices, which speak for themselves. 53. P10's notices dated December 9, 2005, March 20, June 28, October 16, and December 13, 2007, March 17 and November 26, 2008, and May 7, 2009 complain of alleged infringement on the Usenet. Poovala Dec. ¶T 48-49, Exs. Nl N3, N7-N8, NZO, N12, N15. GOOGLE'S REPLY P 10 does not dispute the identified fact. P 10's improper legal argument

22 23 24 25

26 should be stricken. See Scheduling Order at 6:5-6. 27 28
01980 . 5132013092049.1

The DVDs and hard drive 54. received with P10's notices dated
tuber 9. 2C 0
a

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

2

June 28, October 16, and December 13, 2007, January 24, March 17, and July 9, 2008, and April 24 and May 7, 2009 include raw image files that do not display web page URLs or image URLs. Poovala Dec. ¶T 48 , 53, 54, Exs. NI-N3, N7-N11, N14-N15.

GOOGLE' S REPLY 7 P 10's cited evidence does not actually dispute the identified fact. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. P10's cited evidence does not support its claim, as none of the examples of raw image files P 10 provides at Exhibit 23 of the Zada Declaration display any URLs.
The folder "z perfect 10 55. web site" on the hard drive that accompanied P 10's June 28, 2007 notice contains 367 subfolders and over 15,000 pages of allegedly .copyrighted P 10 images. Poovala Dec. 148, Ex. N3; Declaration of Sibrina Khan in Support of Google's Motions for Summary Judgment Re: Entitlement to Safe Harbor Under 17 U.S.C. § 512 ("Khan Dec.") ¶ 20.

Other than the references to 56. the entire folder named "z perfect 10 web site" on the hard drive that accompanied P 10's notice dated June 28, 2007, P10's notices dated between June 28, 2007 and May 7, 2009 do not identify the copyrighted works claimed to be infrfringed. Poovala Dec. ¶T 48, 50, Exs. N3-N15. 25 26 27
01980 . 51320/3092049,1

28 1
DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

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
01980 . 51320/3092049.1

GOOGLE'S REPLY P 10's cited evidence does not actually dispute the identified fact. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. P 10's cited evidence (including the opinions of Norman Zada regarding Google's DMCA instructions and how it could have processed the Group C notices) does not support its claim, and is irrelevant to the contents of the Group C Notices, which speak for themselves.
57. P 10's notice dated December 9, 2005 does not identify any copyrighted works claimed to be infringed. Poovala Dec. 148, Ex. N1.

GOOGLE'S REPLY

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

P 10's cited evidence does not actually dispute the identified fact, and in fact admits it. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. P 10's Group C Notices speak for themselves.
P 10's notice dated 58. December 9, 2005 does not .identify any web page or image URLs that allegedly infringe P10's copyrighted works. Poovala Dec. ¶ 48, Ex. N1.

5

6 7

GOGGLE' S REPLY P 10's cited evidence does not actually dispute the identified fact, and in fact admits it. P10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. P 10's cited evidence (including the opinions of Norman Zada regarding 20 21 22 23 24 25 26 27 28
01980.51320/3092049.1

what Google needed to process P 10's notices) is irrelevant to the contents of the Group C Notices themselves, which speak for themselves.
P 10's notice dated March 59. 20, 2007 was addressed to Google's Board of Directors. Poovala Dec. ¶ 48 , Ex. N2.

1 GOOGLE ' S REPLY

4-1

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

P10 does not dispute the identified fact. P10's improper legal argument 2 should be stricken. See Scheduling Order at 6:5-6. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 GOOGLE'S REPLY 19
P 10 does not dispute the identified fact. P 10's improper legal argument 60. None of the members of Google's Board of Directors has ever served as Google's designated agent for the receipt of notices of claimed copyright infringement under the DMCA. Poovala Dec. ¶ 3.

GOGGLE' S REPLY P 10 does not dispute the identified fact. 61 Each of P10's notices dated December 9, 2005, March 20, 2007, June 28, 2007, July 2, 2007, July 12, 2007, July 31, 2007, October 16, 2007, December 13, 2007, January 24, 2008, March 17, 2008, July 9, 2008, April 24, 2009, and May 7, 2009 contains multiple layers of electronic folders comprising thousands of pages of allegedly infringing material. Poovala Dec. ¶148 , 52, Exs. NlN11, N14-N15; Khan Dec. ¶4-5, 10-19.

20
should be stricken. See Scheduling Order at 6:5-6.

21 22 23 24 25 26 27 28
01980 . 51320/3092049.1

62. The "z other infringing websites folder" on the hard drive received with P 10's notice dated June 28, 2007 has three subfolders consisting of 46,187 pages of allegedly infringing material. Poovala Dec. ¶ 48, Ex. N3; Khan Dec. ¶ 19.

GOOGLE'S REPLY P 10 does not dispute the identified fact.
DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

2 3 4
5

The "ALL LARGE ARE 63. P 10" subfolder in the "z other infringing websites " folder on the .hard drive received with P 10's notice dated June 28, 2007 comprises at least 24,870 ages of allegedly infringing material. Poovala Dec . ¶48, Ex . N3; Khan Dec. ¶ 19.

6
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
019&0.5132013092049.1

GOOGLE'S REPLY P 10 does not dispute the identified fact. DVD2 submitted with P 10's 64. notice dated December 13, 2007
contains 28,672 pages of allegedly infringing material within layers of folders and subfolders. Poovala Dec. ¶ 48, Ex. N8; Khan Dec. ¶16.

GOOGLE'S REPLY P 10 does not dispute the identified fact. 65. Each of P 10's notices dated December 9,2005, March 20, 2007, June 28, 2007, July 2, 2007, July 12,2007, July 31, 2007, October 16,2007, December 13,2007, January 24, 2008, March 17, 2008, July 9, 2008, November 26, 2008, April 24, 2009, and May 7, 2009 contains one or more incomplete URLs. Poovala Dec. 1148, 55, Exs. N1-N12, N14-N15.

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

GOOGLE'S REPLY P 10's cited evidence does not dispute the identified fact. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. P10's cited evidence (including the opinions of Norman Zada and Sean Chumura regarding the information it thinks Google needs to process a DMCA notice) is irrelevant to contents of the Group C Notices, which speak for themselves.
Each of P 10's notices dated 66. March 20, 2007, June 28, 2007, July 2, 2007, July 12, 2007, July 31, 2007, October 16, 2007, December 13, 2007, January 24, 2008, March 17, 2008, July 9, 2008, November 27, 2008, April 24, 2009, May 7, 2009, May 30, 2009, June 4, 2009, and June 13, 2009 includes one or more screen shots displaying multiple Images. Poovala Dec. ¶¶48, 55, Exs. N2N11, N13, N18.

GOOGLE'S REPLY P10 does not dispute the identified fact. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5-6.
Each of P10's notices dated 67. between March 20, 2007 and June 13, 2009 includes one or more screen shots that do not display image URLs. Poovala Dec. ¶¶ 48, 5, Exs. N2-N18.

GOOGLE'S REPLY 1`10 does not dispute the identified fact. P10's improper legal argument 26 should be stricken. See Scheduling Order at 6:5-6. 27 28
01980.51320/3092049,1

P 10's notices dated between 68. March 20, 2007 and June 13, 2009 included screen shots denictina

ir-

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.G. § 512(d) FOR WEB AND IMAGE SEARCH

2 3 4
5

alleged framing or inline linking showing apparent independent navigation of the framed web page such that even when the complete URL for that page is displayed in the screen shot, the URL does not lead to the allegedly inline-linked web page. Poovala Dec. ¶¶48, 55, Exs. N2-N18, R.

6
7

GOOGLE'S REPLY

P 10 does not dispute the identified fact. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. Google's Processing of P10 ' s Notices 69. Over the past four-plus years, Google ha numerous URLS
in response to P 10's DMCA

18 19 20 21 22 23 24 25 26 27 28
01980 . 51320/3092049.1

notices, and, those URLs from appearing in Web or Image Search results. Poovala Dec. ¶91, Exs. FF, GG, HH, II; Haahr Dec. ¶¶6, 9, Exs. 1 and 2.

-49-

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

I 2 3 4 5 6
OMP

GOGGLE' S REPLY P 10 does not dispute the identified fact and in fact admits it. P 10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. 70. Google carefully reviewed P 10's notices to ensure that its repeat infringer policies were enforced. Poovala Dec. ¶ 92.

27 28
01990,51320/3092049.1

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512{d} FOR WEB AND IMAGE SEARCH

1 2 3 4 5 6 7 GOOGLE'S REPLY
P10's cited evidence (including the Botelho Declaration and Zada's various opinions) does not actually dispute the identified fact. P10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. Google's DMCA tracking spreadsheets documenting Google's enforcement of its repeat infringer policies, as well asP10's DMCA notices, speak for themselves.

GOOGLE ' S REPLY P10's cited evidence ( including Zada ' s various opinions) does not actually dispute the identified fact. P 10's improper legal argument should be stricken. See 27 28
01980 .51320/3092049.1

Scheduling Order at 6 : 5-6. Google ' s DMCA tracking spreadsheets documenting Google's enforcement of its repeat infringer policies , as well asP 10's DMCA
-51DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

notices, speak for themselves. P 10 does not dispute that it never followed Google's DMCA instructions for AdSense.
Google ' s Processing of the Group S Notices

72. Google sent P10 correspondence identifying deficiencies in P 10's DMCA notices. Poovala Dec. 1156-73, Exs. S-EE. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
01980 , 5132013092049.1

GOOGLE'S REPLY P 10's cited evidence (including Zada's various opinions) does not actually dispute the identified fact, and in fact admits it. P10's improper legal argument

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

should be stricken . See Scheduling Order at 6 : 5-6. Google ' s communications and instructions to P10 speak for themselves. 73. In response , P10 disputed that its notices were defective, and did not re-submit corrected notices. Poovala Dec. 1 74.

4 5 6 7 8 9 10 11

GOOGLE'S REPLY P 10's cited evidence (including Zada' s various opinions) does not actually

12 dispute the identified fact. P 10's improper legal argument should be stricken. See 13 Scheduling Order at 6:5-6. P10' s responsive communications disputing Google's

14 instructions speak for themselves. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
01980 . 5132013092049.1

74. The majority ( i.e. more than half) of P 10's notices dated between May 31, 2004 and June 13, 2009 did not include electronic soft copy lists of allegedly infringing URLs. Poovala Dec. ¶ 84, Exs . L and N.

DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S . C. § 512(d) FOR WEB AND IMAGE SEARCH

GOOGLE'S REPLY P 10's cited evidence (including Zada's various opinions) does not actually dispute the identified fact. P10's improper legal argument should be stricken. See Scheduling Order at 6:5-6. P 10's claim is contradicted by the referenced P10 DMCA Notices, which speak for themselves. In response to P 10's notices, 75. Google blocked access to any discernable web page oLjWge

GOOGLE'S REPLY
P10's cited evidence (including Zada's various opinions, and the Botelho

27 Declaration) does not actually dispute the identified fact. P1 O's improper legal 28 argument should be stricken. See Scheduling Order at 6:5-6. Google's DMCA
01980.51320/3092049.1

-54DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

I tracking spreadsheets and engineering files documenting the suppression of 2 infringing URLs speak for themselves. 3 4 5
76. Google tracked the processing of P 10's notices. Poovala Dec. T178-80, 88; Exs. FF, GG, HH, II..

6

17 18 19 GOOGLE'S REPLY
P10's cited evidence (including Zada's various opinions) does not actually

20 dispute the identified fact. P 10's improper legal argument should be stricken. See 21
Scheduling Order at 6:5-6. Google's DMCA tracking spreadsheets and engineering

22 files documenting the suppression of infringing URLs speak for themselves. P 10's 23 cited evidence (including the opinions of Norman Zada regarding Google's DMCA 24 logs) is irrelevant to the fact that Google tracked its processing efforts. 25 26 27 28
01980 ,5132013092049.1
-5 J-

77. Google completed processing of the majority of the Group B Notices within one to two weeks of receipt; some were completed in as little as two days.
DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 5I2(d) FOR WEB AND IMAGE SEARCH