Perfect 10 Inc v. Google Inc et al
Filing
523
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(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 Google's Corrected Consolidated Statement of Undisputed Facts in Support of Google's Motion for Summary Judgment re: Safe Harbor Under 17 U.S.C. 512(c) for its Blogger Service [Public Redacted] filed by Counter Claimant Google Inc, Defendant Google Inc. (Herrick, Rachel)
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Perfect 10 Inc v. Google Inc et al
Doc. 523
QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) michaelzellera,guinnemanuel.com 865 South Figu&roa Street, 1 0 "' loor Los Angeles, California 90017-2543 Telephone: 213 443-3000 Facsimile: 213) 443-310p
Charles K. erhoeven (Bar No. 170151) c harlesyerhoevenQ,ciuiimemanuel.com 50 California Street,-22"" oor San Francisco1 California 94111
Rachel Herrick Kassabian (Bar No. 191060) rachelkassabian(a,guinnemanuel.com 555 Twin o p in rive, Suite 5 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 througA 100, inclusive, Defendants. AND COUNTERCLAIM PERFECT 10, INC., a California corporation, Plaintiff,
VS.
CASE NO. CV 04-9484 AHM (SHx) Consolidated with Case No. CV 05AHM (SHx)] DEFENDANT GOOGLE'S CORRECTED CONSOLIDATED S JJ + ST ATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. 512(c) FOR ITS BLOGGER SERV CE [Rebuttal Declarations of Rachel Herrick 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
AMAZON.COM, INC., a corporation; A9.COM, INC. a corporation; and DOES 1 through 100 , inclusive, Defendants.
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DEFENDANT GOOGLE'S CORRECTED CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. 512(c) FOR ITS BLOGGER SERVICE
Dockets.Justia.com
For the Court' s convenience, Defendant Google Inc. ("Google ") hereby submits this Consolidated Separate Statement of Undisputed Facts in Support of Google's Motion for Summary Judgment re: Google's Entitlement to Safe Harbor under 17 U.S .C. § 512(c) for its Blogger Service , incorporating verbatim Google's Statement of Uncontroverted Facts and Plaintiff Perfect 10 , Inc.'s ("P 10") Statement of Genuine Issues in Opposition to Google's Motion for Summary Judgment re: Safe Harbor under 17 U.S.C. § 512( c) for its Blogger Service , as well as Google's Reply to P10's Statement of Genuine Issues.
DEFENDANT GOOGLE'S CONSOLIDATED SEPARATE STATEMENT OF MOTIONTO-KS UMMARY JUDGMENT RE: SAFE IIARB13R UNDER 17 U.S.C. c) -F OR BLOG GER SER VICE GOOGLE'S UNCONTROVERTED FACTS AND SUPPORTING EVIDENCE 1. Google's Blogger service allows users to create blogs hosted on Google servers. 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.") ¶ 26.
Google does not interfere 2. 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.
PERFECT 10'S RESPONSE AND EVIDENCE
1 2 Google has developed and 3. maintains a DMCA policy and procedure for expeditiously processing complaints received under the DMCA regarding Blogger. Poovala Dec. ¶¶ 27, 31 & Ex. G.
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DEFENDANT GOOGLE'S CORRECTED CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE; SAFE HARBOR UNDER 17 U.S.C. 5121c1 FOR ITS BLOGGER SERVICE
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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 alleged facts regarding Google's response to specific P 10 notices) is irrelevant to the identified fact because (1) it concerns services other than Blogger and/or (2) it concerns how Google allegedly has implemented its DMCA policy - not whether Google has such a policy. Additionally, Google's Blogger DMCA tracking spreadsheets speak for themselves. Poovala Dec. 1137, 93 and Ex. J, 11, and KK; Rebuttal Declaration of Rachel Herrick Kassabian ("Rebuttal Kassabian Dec.") ¶ 2. P 10's claim that the is demonstrably false. See Poovala Dec., Ex. KK. The fact that Google received a few 25 26 27
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poor-quality faxes (including several from P 10) is irrelevant to its qualification for DMCA safe harbor for its Blogger service. P 10's claims regarding Adobe's
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extraction feature are irrelevant. Rebuttal Poovala Dec. ¶¶ 12-14.
DEFENDANT GOOGLE'S CORRECTED CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE; SAFE HARBOR UNDER 17 U.S.C. 512(c) FOR ITS SLOGGER SERVICE
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4. Google has a designated 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 ("P10" ) Responses to Requests for Admission); Poovala Dec. Ex. A.
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GOOGLE'S REPLY
P10 has cited no contrary evidence disputing this fact. P10's improper legal argument and reference to other irrelevant facts should be stricken. See Scheduling Order at 6:5-6. 5. Google publishes the information required for DMCA complaints related to Blogger at http://www.google.com/blogger _dmca.html. Poovala Dec. 127, Ex. G.
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DEFENDANT GOOGLE'S CORRECTED CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17
U.S.C. 512(c) FOR ITS BLOGGER SERVICE
GOOGLE ' S REPLY
P 10's cited evidence does not actually dispute the identified fact. P 10's evidence ( comprised of P 10' s opinions that Google's Blogger DMCA instructions do not apply to it) is irrelevant to whether Google publishes the information required to submit a Blogger DMCA notice on Google ' s website , as is the fact that Google has an additional fax number on file with the Copyright Office. 6. It is Google's policy to respond expeditiously to notices of copyright infringement directed to Blogger . Poovala Dec. ¶ 31.
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DEFENDANT GOOGLE ' S CORRECTED CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE ' S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. 512 ( c) FOR ITS BLOGGER SERVICE
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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. P10's cited evidence (including the opinions of Norman Zada, Dean Hoffman, C.J. Newton, Les Schwartz and Margaret Jane Eden, and alleged facts regarding Google's response to specific P 10 notices) is irrelevant to the identified fact because (1) it concerns services other than Blogger and/or (2) it concerns how Google allegedly has implemented its DMCA policy - not whether Google has such a policy. Additionally, Google's Blogger DMCA tracking spreadsheets speak for themselves. Poovala Dec. ¶¶ 37, 93 and Exs. J, 11, and KK. P 10's claim that the is demonstrably false. See Poovala Dec., Ex. KK. P10's claims regarding Adobe's extraction feature are irrelevant. Rebuttal Poovala Dec. IT 1214. Google directs 7. complainants to identify in sufficient detail the copyrighted work allegedly infringed on a Blo er site. Poovala Dec.
DEFENDANT GOOGLE'S CORRECTED CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17
U.S.C. 512(c) FOR ITS BLOGGER SERVICE
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P 10's cited evidence does not actually dispute the identified fact, but rather is argument regarding what information P 10 allegedly provided in response to Google's instructions, and thus is irrelevant. See Scheduling Order at 6:5-6. Both P 10 and Google point to the same evidence -- Google's DMCA policy for Blogger which speaks for its t notice complaining of such URLs. The cited evidence does not support the stated proposition . P10 has not submitted the complete notices and has not identified where in those notices these alleged infringements may be found. The Chou Declaration provides no foundation for these assertions.
The alleged fact may not be asserted in response to Google's DMCA motions because P 10 has failed to provide complete discovery regarding this issue . For example, P 10 has refused to identify which images are covered by which copyright registrations, assignments , work for hire agreements , or DMCA notices , and where each of those images allegedly was infringed. Kassabian Dec. T 14. Disputed in p art , but irrelevant. P10 never submitted a DMCA-compliant notice complaining of such URLs. The cited evidence does not support the stated proposition.
The alleged fact may not be asserted in response to Google's DMCA motions because P10 has failed to provide complete discovery regarding this issue. For example, P10 has refused to identify which images are covered by which copyright registrations, assignments, work for hire agreements, or DMCA notices, and where each of those images allegedly was infringed. Kassabian Dec. ¶ 14. Undisputed that Google removed the content at the referenced URL. Disputed , but irrelevant . P10 never submitted a DMCA-compliant notice complaining of such URLs (nor does P 10 even identify them here). The cited evidence does not support the stated proposition. The alleged fact may not be asserted in response to Google's DMCA motions because P 10 has
-40DEFENDANT GOOGLE'S CORRECTED CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. 512(c) FOR ITS BLOGGER SERVICE
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failed to provide complete discovery regarding this issue. For example , P10 has refused to identify which images are covered by which copyright registrations , assignments , work for hire agreements , or DMCA notices , and where each of those images allegedly was infringed. Kassabian Dec. 1 14.
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Disputed , but irrelevant. P10 never submitted a DMCA-compliant notice complaining of such URLs.
The cited evidence does not support the stated proposition.
The alleged fact may not be asserted in response to Google's DMCA motions because P 10 has failed to provide complete discovery regarding this issue. For example, P 10 has refused to identify which images are covered by which copyright registrations, assignments, work for hire agreements, or DMCA notices, and where each of those images allegedly was infringed. Kassabian Dec. ¶ 14. The statements are demonstrabl false. See Poovala Dec., Ex. KK (listing Blogger removals); Rebuttal Kassabian Dec. ¶ 5 (confirming production of earlier Blogger DMCA tracking spreadsheets).
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Dis p uted , but irrelevant. P10 never submitted a DMCA-compliant notice complaining of such URLs or such alleged infringers. The number of URLs Google has received in DMCA-compliant Blogger notices is not within Google's control. The cited evidence does not support the stated proposition.
The alleged fact may not be asserted in response to Google's DMCA motions because P 10 has failed to provide complete discovery regarding this issue. For example, P 10 has refused to identify which images are covered by which copyright registrations, assignments, work for hire agreements, or DMCA notices, and where each of those images allegedly was infringed. 41DEFENDANT GOOGLE'S CORRECTED CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE. SAFE HARBOR UNDER 17
U.S.C. 512(c) FOR ITS BLOGGER SERVICE
Kassabian Dec. T 14. The statements are d emonstrabl false. See Poovala Dec., Ex. K K (listing Blogger removals);Reb utta l Kassabian Dec. T 5 ( confirming producti on of earlier Blogger DMCA tracking spreadsheets).
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Undisputed , but irrelevant, that Google owns the domain ggpht.com and that Adobe has a cut and paste feature.
P 10 never submitted a DMCA-compliant notice complaining of such URLs. P 10 has not submitted the complete notice and has not identified where in that notice this alleged infringement may be found. The cited evidence does not support the stated proposition. The alleged fact may not be asserted in response to Google's DMCA motions because P 10 has failed to provide complete discovery regarding this issue. For example, P 10 has refused to identify which images are covered by which copyright registrations, assignments, work for hire agreements, or DMCA notices, and where each of those images allegedly was infringed. Kassabian Dec. ¶ 14.
Disputed , but irrelevant, P10 never submitted a DMCA-compliant notice complaining of alleged infringements on Google Groups.
The cited evidence does not support the stated proposition. P 10 has not submitted the complete notice and has not identified where in that notice this alleged infringement may be found.
The alleged fact may not be asserted in response to Google's DMCA motions because P10 has failed to provide complete discovery regarding this issue. For example, P 10 has reused to identify which images are covered by which copyright registrations, assignments, work for hire agreements, or DMCA notices, and where Pas of .hose images allegedly was infringed.
DEFENDANT GOOGLE'S CORRECTED CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. 512lc1 FOR ITS BLOGGER SERVICE
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Kassabian Dec. ^ 14.
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Disputed, but irrelevant , P10 never submitted a DMCA-compliant notice complaining of
alleged infringements on Google Groups. The cited evidence does not support the stated proposition.
The alleged fact may not be asserted in response to Google's DMCA motions because P 10 has
failed to provide complete discovery regarding this issue . For exam ple , P 10 has refused to identify which images are covered by which copyright registrations, assignments , work for hire agreements, or DMCA notices, and where each of those images allegedly was infringed. Kassabian Dec. 1-14. Disputed , but irrelevant, P10 never submitted a DMCA-compliant notice complaining of alleged infringements on Google Groups.
The cited evidence does not support the stated proposition. P 10 has not submitted the complete notice and has not identified where in that notice this alleged infringement may be found.
The alleged fact may not be asserted in response to Google's DMCA motions because P 10 has failed to provide complete discovery regarding this issue. For example, P 10 has refiised to identify which images are covered by which copyright registrations, assignments, work for hire agreements, or DMCA notices, and where each of those images allegedly was infringed. Kassabian Dec. ¶ 14. Disputed, but irrelevant , P 10 never submitted a DMCA-compliant notice complaining of alleged infringements on Google Groups or AdSense.
The cited evidence does not support the stated proposition.
The alleged fact may not be asserted in response to Google's DMCA motions because P 10 has failed to provide complete discovery regardipg_
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DEFENDANT GOOGLE'S.CORRECTED CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. 512fc1 FOR ITS BLOGGER SERVICE
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this issue. For example, P 10 has refused to identify which images are covered by which copyright registrations, assignments, work for hire agreements, or DMCA notices, and where each of those images allegedly was infringed. Kassabian Dec. ¶ 14. Dis p uted , but irrelevant, P10 never submitted a DMCA-compliant notice complaining of alle ed infringements on Google Groups or Adsense. The cited evidence does not support the stated proposition. The alleged fact may not be asserted in response to Google's DMCA motions because P10 has failed to provide complete discovery regarding this issue. For example, P 10 has refused to identify which images are covered by which copyright registrations, assignments, work for hire agreements, or DMCA notices, and where each of those images allegedly was infringed.
Kassabian Dec. ¶ 14.
Dis p uted , but irrelevant . P 10 never submitted a DMCA-compliant notice complaining of alleged infringements on this URL. The cited evidence does not support the stated proposition. The alleged fact may not be asserted in response to Google's DMCA motions because P 10 has failed to provide complete discovery regarding this issue. For example, P 10 has refused to identify which images are covered by which copyright registrations, assignments, work for hire agreements, or DMCA notices, and where each of those images allegedly was infringed. Kassabian Dec. 1 14.
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Undisputed but irrelevant . P10 never submitted a 1U MCA-compliant notice ' complaining of alleged infringement on this
The cited evidence does not support the stated nromsitim P10 has not submitted the complete -44-
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DEFENDANT GOOGLE'S CORRECTED CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. 512(cl FOR ITS SLOGGER SERVICE
notice and has not identified where in that notice this alleged infringement may be found.
The alleged fact may not be asserted in response to Google's DMCA motions because P10 has failed to provide complete discovery regarding this issue. For example, P 10 has refused to identify which images are covered by which copyright registrations, assignments, work for hire agreements, or DMCA notices, and where each of those images allegedly was infringed. Kassabian Dec. 1 14.
Undisputed that the referenced URL is not a post URL, as required by Google's published DMCA policy for Blogger. 60.
Undisputed , but irrelevant, that Adobe has a cut and paste feature. Disputed as to P10's characterization.
P 10 never submitted a DMCA-compliant notice complaining of alleged infringements on this ThKLLcited evidence does not support the stated UUK e proposition. P10 has not submitted the complete notice and has not identified where in that notice this alleged infringement may be found.
The alleged fact may not be asserted in response to Google's DMCA motions because P 10 has failed to provide complete discovery regarding this issue. For example, P10 has refused to identify which images are covered by which copyright registrations, assignments, work for hire agreements, or DMCA notices, and where each of those images allegedly was infringed. Kassabian Dec. T 14.
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Disputed , but irrelevant. P10 never submitted a DMCA-compliant notice complaining of alleged infringements on this URL. The cited evidence does not support the stated proposition. P10 has not submitted the complete notice and has not identified where in that notice this alleged infringement may be found. The alleged fact may not be asserted in response
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DEFENDANT GOOGLE'S CORRECTED CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. 512lc1 FOR ITS BLOGGER SERVICE
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to Google ' s DMCA motions because P10 has failed to provide complete discovery regarding this issue . For example , P10 has refused to identify which images are covered by which copyright registrations , assignments , work for hire agreements , or DMCA notices , and where each of those images allegedly was infringed. Kassabian Dec. ¶ 14. Undisputed that Adobe has a cut and paste feature , which is exactly what Google had to do in attempting to process P 10's defective July 2, 2007 notice. Disputed , but irrelevant. P10 never submitted a DMCA-compliant notice complaining of alleged infringements on this URL.
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The cited evidence does not support the stated proposition . P10 has not submitted the complete notice and has not identified where in that notice this alleged infringement may be found.
The alleged fact may not be asserted in response to Google's DMCA motions because P10 has failed to provide complete discovery regarding this issue . For example, P 10 has refused to identify which images are covered by which copyright registrations, assignments , work for hire agreements , or DMCA notices, and where each of those images allegedly was infringed. Kassabian Dec. T 14.
Undisputed that Adobe has the referenced features , which made no difference in Google's processing. 63. Disputed , but irrelevant. P10 never submitted a DMCA-compliant notice complaining of alleged infringements on AdSense.
The cited evidence does not support the stated proposition. The alleged fact may not be asserted in response to Google's DMCA motions because P10 has failed to provide complete discovery regarding this issue. For example, P 10 has refused to _46DEFENDANT GOOGLE'S CORRECTED CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17
U.S.C. 512(c) FOR ITS BLOGGER SERVICE
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identify which images are covered by which copyright registrations, assignments, work for hire agreements, or DMCA notices, and where each of those images allegedly was infringed. Kassabian Dec. ¶ 14. Disputed, but irrelevant. P 10 never submitted a DMCA-compliant notice complaining of such alleged infringements.
The cited evidence does not support the stated proposition. P10 has not submitted the complete notices and has not identified where in those notices these alleged infringements may be found.
The alleged fact may not be asserted in response to Google's DMCA motions because P10 has failed to provide complete discovery regarding this issue. For example, P 10 has refused to identify which images are covered by which copyright registrations, assignments, work for hire agreements, or DMCA notices, and where each of those images allegedly was infringed. Kassabian Dec. ¶ 14.
Google's AdSense logs speak for themselves. See Poovala Dec., Ex. LL.
DATED: September 10, 2009
QUINN EMANUEL URQUHART OLIVER & HEDGES. LLP
By L14 CAJ
Michael Zeller
Rachel Herrick Kassabian Attornevs for Defendant GOOGLE INC. 24 25 26 27 28
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-47DEFENDANT GOOGLE'S CORRECTED CONSOLIDATED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. 512fc1 FOR ITS SLOGGER SERVICE
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