Perfect 10 Inc v. Google Inc et al

Filing 611

RESPONSE 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 Google Inc.'s Response to Perfect 10, Inc.'s Evidentiary Objections to the Declaration and Rebuttal Declaration of Rachel Herrick Kassabian filed by Counter Claimant Google Inc, Defendant Google Inc. (Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 611

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QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) [e-mail] 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone] Charles K. Verhoeven (Bar No. 170151) [e-mail] 50 California Street, 22nd Floor San Francisco, California 94111 Rachel Herrick Kassabian (Bar No. 191060) [e-mail] 555 Twin Dolphin Drive, Suite 560 Redwood Shores, California 94065

9 Attorneys for Defendant GOOGLE INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 054753 AHM (SHx)] DEFENDANT GOOGLE INC.'S RESPONSE TO PERFECT 10, INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION AND REBUTTAL DECLARATION OF RACHEL HERRICK KASSABIAN Hon. A. Howard Matz Date: None Set (taken under submission) Time: None Set Crtrm.: 14 Discovery Cut-off: None Set Pre-trial Conference: None Set Trial Date: None Set

13 PERFECT 10, INC., a California corporation, 14 Plaintiff, 15 vs. 16 GOOGLE INC., a corporation; and 17 DOES 1 through 100, inclusive, 18 19 20 22 23 vs. Defendants. AND COUNTERCLAIM

PERFECT 10, INC., a California 21 corporation, Plaintiff,

24 AMAZON.COM, INC., a corporation; A9.COM, INC., a corporation; and 25 DOES 1 through 100, inclusive, 26 27
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Defendants.

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Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S RESPONSE TO PERFECT 10'S EVIDENTIARY OBJECTIONS TO DECLARATION AND REBUTTAL DECLARATION OF RACHEL HERRICK KASSABIAN Dockets.Justia.com

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Defendant Google Inc. ("Google") submits the following response to Perfect

2 10, Inc.'s ("P10") Evidentiary Objections to the Declaration and Rebuttal 3 Declaration of Rachel Herrick Kassabian in support of Google's Motions for 4 Summary Judgment re: Google's Entitlement to Safe Harbor ("Objections"). See 5 Docket No. 564. P10's Objections, which contain substantive arguments and were 6 filed long after Google filed its reply briefs in support of summary judgment, 7 constitute an inappropriate sur-reply and are without merit. This Court should reject 8 them in their entirety. 9 I. 10 11 12 MUCH OF P10'S OBJECTIONS SHOULD BE DISREGARDED AS AN IMPROPER SUR-REPLY TO GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT. Substantial portions of P10's Objections constitute an unauthorized sur-reply

13 to Google's fully-briefed summary judgment motions, and should be disregarded as 14 such. For example, P10's Objections include substantive arguments attempting to 15 rebut the evidence submitted with the Kassabian Declarations, rather than true 16 evidentiary objections going to the admissibility of that evidence under the Federal 17 Rules of Evidence. See Objections at 1:28-2:11 (arguing the merits of whether 18 P10's notices were DMCA-compliant); 3:5-20 (arguing that P10 sent its claimed 19 DMCA notices to the proper address); 4:9-27 (debating the contents of P10's 20 document production as compared with Google's production); 5:17-21 (arguing that 21 Google's Blogger DMCA tracking spreadsheet is substantively incomplete).1 22 23 P10 also improperly filed two new sur-reply declarations. See Declaration of Dr. Norman Zada in Support of Perfect 10's Evidentiary Objections and Responses 25 to Google's Evidentiary Objections (Docket No. 584); Declaration of Jeffrey N. 26 Mausner in Support of Perfect 10's Evidentiary Objections and Responses to Google's Evidentiary Objections (Docket No. 571). Google's objections to those 27 sur-reply declarations are filed concurrently. 24
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Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S RESPONSE TO PERFECT 10'S EVIDENTIARY OBJECTIONS TO DECLARATION AND REBUTTAL DECLARATION OF RACHEL HERRICK KASSABIAN

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P10's attempt to substantively respond to Google's evidence with additional

2 briefing filed after Google's reply briefs violates both the Local Rules and this 3 Court's Scheduling Order. See Local Rule 7-10 ("Absent prior written order of the 4 Court, the opposing party shall not file a response to the reply"); Court's April 25, 5 2007 Scheduling and Case Management Order, at 7:21-22 ("The non-moving party 6 may not file a sur-reply unless the Court first grants leave to do so."). 7 Courts routinely strike or refuse to consider documents submitted in 8 contravention of these rules. See, e.g., Spalding Laboratories, Inc. v. Ariz. 9 Biological Control, Inc., 2008 WL 2227501, at *1 n.2 (C.D. Cal. 2008) ("The Court 10 strikes and does not consider Spalding's 14-page `sur-opposition' to ARBICO's 11 reply brief."); DISC Intellectual Properties LLC v. Delman, 2007 WL 4973849, at 12 *1 n.1 (C.D. Cal. 2007) (rejecting "Defendants ... attempt[] to file a Response to 13 Plaintiffs' Reply in violation of Local Rule 7-10"); see also Cruz v. Tilton, 2009 WL 14 3126518, at *1 (E.D. Cal. 2009). Accordingly, the above-referenced portions of 15 P10's Objections raising substantive rebuttal arguments as opposed to true 16 evidentiary objections (specifically, pp. 1:28-2:11, 3:5-20, 4:9-27 & 5:17-21) should 17 be disregarded and/or stricken. 18 II. 19 21 22 23 24 25 26 28 Google's Response addresses only the evidentiary objections; the remainder of 27 P10's Objections are improper sur-reply arguments which should be disregarded.
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P10'S EVIDENTIARY OBJECTIONS LACK MERIT. The portions of P10's Objections that raise evidentiary objections lack merit

20 and should be overruled, as set forth below. Proffered Statement of Declaration P10's Objections Google's Response2

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Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S RESPONSE TO PERFECT 10'S EVIDENTIARY OBJECTIONS TO DECLARATION AND REBUTTAL DECLARATION OF RACHEL HERRICK KASSABIAN

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Proffered Statement of Declaration

P10's Objections

Google's Response2

KASSABIAN DECLARATION Objections: lack of personal knowledge and lack of foundation (Fed R. Evid 602); inadmissible lay opinion (Fed. R. Evid. 701); improper expert testimony from a witness not qualified (Fed. R. Evid. 702); lack of authentication (Fed. R. Evid. 901). The witness, as counsel for Google, has the necessary personal knowledge and has established the proper foundation to attach a chart summarizing Google's analysis of the deficiencies in P10's claimed DMCA notices, as substantiated in Google's summary judgment motions and Ms. Kassabian is not an documentary exhibits. expert on DMCA notices Given the large number of and has submitted no notices at issue, Google evidence demonstrating her believes such a summary is expertise in this area. Ms. likely to be helpful to the Kassabian has not processed Court. See Scheduling any of Perfect 10's notices. Order, at 5:9-10 (instructing She has provided no the parties to "prepare their evidence that she has papers in a fashion that will reviewed the more than 68 assist the Court in Perfect 10 DMCA notices absorbing the mass of listed in Exhibit A, or that facts."). Since the summary she was aware of what was chart is not "evidence," but on the infringing web pages rather is an aid for the identified in those DMCA Court, P10's evidentiary notices in 2001, 2004, 2005, objections are misplaced. 2006, and 2007, when those Cf. F.R.E. 1006 ("The notices were received. contents of voluminous Consequently, Ms. writings, recordings, or Kassabian's testimony lacks photographs which cannot personal knowledge, lacks conveniently be examined foundation, and constitutes in court may be presented in improper expert testimony. the form of a chart, -4-

5 1. Page 1:7-8 (¶2): Attached as Exhibit A 6 is a chart which 7 summarizes, for the court's convenience, 8 the deficiencies in each 9 of Perfect 10's claimed DMCA notices. 10 11 Exhibit A to the Kassabian Declaration 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
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Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S RESPONSE TO PERFECT 10'S EVIDENTIARY OBJECTIONS TO DECLARATION AND REBUTTAL DECLARATION OF RACHEL HERRICK KASSABIAN

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Proffered Statement of Declaration

P10's Objections Ms. Kassabian does not provide any examples of what a compliant notice would have been under the circumstances, or explain why Perfect 10's notices that were created in accordance with Google's instructions are deficient. For example, Ms. Kassabian does not explain how a DMCA notice that provides a copy of the allegedly infringing web page showing the full URL, with the copyrighted Perfect 10 Images check marked, fails to identify both the allegedly infringing material and the copyrighted work. Nor does Ms. Kassabian provide any other reasonable way that Perfect 10 could have identified the allegedly infringing material and the copyrighted work. Instead, Ms. Kassabian has simply claimed that all Perfect 10 notices are deficient, without any basis or foundation whatsoever.

Google's Response2 summary, or calculation.").

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with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S RESPONSE TO PERFECT 10'S EVIDENTIARY OBJECTIONS TO DECLARATION AND REBUTTAL DECLARATION OF RACHEL HERRICK KASSABIAN

Additionally, Ms. Kassabian does not properly authenticate the referenced chart, Exhibit A. Therefore, Case No. CV 04-9484 AHM (SHx) [Consolidated -5-

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Proffered Statement of Declaration

P10's Objections the documentary evidence is not admissible. Objections: improper legal conclusion; lack of personal knowledge (Fed. R. Evid. 602); irrelevant (Fed. R. Evid. 401, 402).

Google's Response2

5 2. Page 3:3-7 (¶14): 6 Google has yet to receive complete 7 discovery establishing 8 Perfect 10's alleged ownership of all of the 9 images at issue in this 10 lawsuit, such as complete records of all 11 copyright registration 12 and deposits materials, and materials 13 documenting the chain 14 of title for the images Perfect 10 allegedly 15 commissioned or 16 purchased from third parties. 17 18 19 20 21 22 23 24 25 26 27
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The witness, as counsel for Google in this action, is personally involved in and/or oversees all facets of discovery in this case, including meet and confer Liability is not an asserted efforts with P10 regarding issue in Google's DMCA its failure to produce motions. Ms. Kassabian documents, and has the has not testified that she has necessary personal reviewed all of the deposit knowledge to testify materials, work for hire regarding same. See agreements, copyright Commercial Data Servers, certificates, and other Inc. v. IBM Corp., 262 F. discovery produced by Supp. 2d 50, 57-60 Perfect 10 in this case, and (S.D.N.Y. 2003) therefore lacks foundation (documents provided for her statement. through discovery are properly authenticated through an affidavit of the attorney submitting them); Hess v. Multnomah County, 211 F.R.D. 403, 406 (D. Or. 2001) ("The declaration of an attorney is sufficient to authenticate such discovery documents."); see also Hussein v. University and Community College System of Nevada, 2007 WL 4592225, at *2 (D. Nev. 2007) ("To authenticate their exhibits, defendants' attorneys should have -6-

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Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S RESPONSE TO PERFECT 10'S EVIDENTIARY OBJECTIONS TO DECLARATION AND REBUTTAL DECLARATION OF RACHEL HERRICK KASSABIAN

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Proffered Statement of Declaration

P10's Objections

Google's Response2 submitted affidavits testifying that plaintiff produced the documents contained therein during discovery."). The statement is not a legal conclusion. It describes the status of discovery in this litigation. The statement is relevant because it is offered to support the fact that P10's ownership of the copyrights it is asserting against Google ­ while not at issue in Google's DMCA motions ­ remains disputed. See Google's Motion for Summary Judgment re: Entitlement to Safe Harbor under 17 U.S.C. § 512(d) for Web and Image Search, at 9-10, n.11.

KASSABIAN REBUTTAL DECLARATION Objections: Lack of foundation and lack of personal knowledge (Fed. R. Evid. 602); Best Evidence Rule: oral testimony inadmissible to prove contents of a writing (Fed. R. Evid. 1002); irrelevant (Fed. R. Evid. -7The witness, as counsel for Google in this action, is personally involved in and/or oversees all facets of discovery in this case, including Google's production of documents, and has the requisite personal knowledge to

22 3. Page 3:7-10 (¶8): Attached as Exhibit B 23 is a true and correct 24 copy of a document produced by Google at 25 control number GGL 26 033527, titled "Interim Designation of Agent 27 to Receive Notification 28 01980.51320/3165950.4

Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S RESPONSE TO PERFECT 10'S EVIDENTIARY OBJECTIONS TO DECLARATION AND REBUTTAL DECLARATION OF RACHEL HERRICK KASSABIAN

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Proffered Statement of Declaration

P10's Objections 401, 402); exceeds the scope of Perfect 10's Opposition and attempts to introduce new evidence without offering all of the documents relevant to this issue.

Google's Response2 describe and authenticate same. See Commercial Data Servers, Inc., 262 F. Supp. 2d at 57-60; Hess, 211 F.R.D. at 406; Hussein, 2007 WL 4592225, at *2.

of Claimed 4 Infringement" and dated September 23, 5 1999. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
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The Best Evidence Rule is Google is using the inapplicable here because document attached as the witness is authenticating Exhibit B in an attempt to the document in question, assert, for the first time, that not providing testimony in Perfect 10 sent its 2001 lieu of the document. See, DMCA notices to the wrong e.g., R&R Associates, Inc. email address. The best v. Visual Scene, Inc., 726 evidence for this assertion F.2d 36, 38 (1st Cir. 1984) would include the email ("Rule 1002 applies not address for Google's when a piece of evidence copyright agent listed on sought to be introduced has Google's website. been somewhere recorded However, Google did not in writing but when it is that have any information written record itself that the regarding its copyright party seeks to prove."); agent listed on its website in Ingram v. City of Los 1999, so Google was not Angeles, 418 F. Supp. 2d even eligible for a DMCA 1182, 1185 (C.D. Cal. safe harbor at that time. 17 2006) (overruling Best U.S.C. §512(c)(2). In May Evidence Rule objections to 2001, when Perfect 10 declaration that did not started sending its DMCA place contents of writing in notices, the email address issue). for Google's copyright agent as listed on its website The statement is relevant was the one that Perfect 10 because it concerns and authenticates Google's used: designation of DMCA agent [e-mail]. See Declaration of Norman with the Copyright Office.
Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S RESPONSE TO PERFECT 10'S EVIDENTIARY OBJECTIONS TO DECLARATION AND REBUTTAL DECLARATION OF RACHEL HERRICK KASSABIAN

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Proffered Statement of Declaration

P10's Objections Zada in Support of Evidentiary Objections, submitted herewith, ¶5, Exh. 1. Accordingly, Perfect 10 sent its notices to the correct address, as shown by a full record of the documents. For this reason, Paragraph 8 and Exhibit B are irrelevant to any issue raised by Google's motions. Objections: Lack of foundation and lack of personal knowledge (Fed. R. Evid. 602); inadmissible lay opinion (Fed. R. Evid. 701); improper expert testimony from a witness not qualified (Fed. R. Evid. 702); Best Evidence Rule: oral testimony inadmissible to prove contents of a writing (Fed. R. Evid. 1002); irrelevant (Fed. R. Evid. 401, 402); exceeds the scope of Perfect 10's Opposition and attempts to introduce new evidence without offering all of the documents relevant to this issue. Ms. Kassabian lacks the personal knowledge to testify as to all of the -9-

Google's Response2

12 4. Page 2:7-13 (¶2): During the course of 13 discovery, Google has 14 produced thousands of pages of documents 15 detailing Google's 16 processing of Perfect 10 and third party 17 DMCA notices. These 18 documents were produced in "TIFF" 19 format and are text 20 searchable. In June 2008, Perfect 10 asked 21 Google to identify the 22 specific control numbers at which these 23 documents could be 24 found within Google's production. Google 25 complied with Perfect 26 10's request, providing a list of specific control 27 numbers for all such 28 01980.51320/3165950.4

The witness, as counsel for Google in this action, is personally involved in and/or oversees all facets of discovery in this case, including Google's production of documents, and has the requisite personal knowledge to testify regarding the contents and format of same. See Commercial Data Servers, Inc., 262 F. Supp. 2d at 57-60; Hess, 211 F.R.D. at 406; Hussein, 2007 WL 4592225, at *2. The testimony is not inadmissible lay opinion; it recounts objectively verifiable facts and events observed by and known to the witness. Because the witness is

Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S RESPONSE TO PERFECT 10'S EVIDENTIARY OBJECTIONS TO DECLARATION AND REBUTTAL DECLARATION OF RACHEL HERRICK KASSABIAN

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Proffered Statement of Declaration documents.

P10's Objections documents produced by Google and her declaration lacks a foundation establishing a basis for her to testify about all of the documents produced by Google. Ms. Kassabian is not a technical expert and her declaration contains no qualifications establishing her technical expertise. Accordingly, she is not qualified to testify about what is or is not "text searchable." In fact, Perfect 10's production using Adobe is vastly more searchable than Google's, which is largely unsearchable. Furthermore, Google's production is completely disorganized. Many of the documents produced by Google are unreadable or redacted, and Google often produced six copies of the same DMCA notice, making its production one gigantic mess. Declaration of Dr. Norman Zada Submitted in Opposition to Google's Three Motions for Summary Judgment (Docket Nos. 491, 490, 488) ("Zada Decl."), ¶¶19, 73, Exhs. 55, 9 (unreadable -10-

Google's Response2 testifying about facts within her personal knowledge, the Best Evidence Rule does not apply. See, e.g., R&R Associates, Inc., 726 F.2d at 38; Ingram, 418 F. Supp. 2d at 1185. The statements are relevant because they concern Google's DMCA-related document production, and Google's provision to P10 of the specific control numbers for documents detailing Google's processing of P10 and third party DMCA notices. Google proffered these statements to correct misstatements P10 made in its opposition materials regarding same.

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Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S RESPONSE TO PERFECT 10'S EVIDENTIARY OBJECTIONS TO DECLARATION AND REBUTTAL DECLARATION OF RACHEL HERRICK KASSABIAN

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Proffered Statement of Declaration

P10's Objections notices folder). Ms. Kassabian's testimony that Google provided Perfect 10 with "a list of specific control numbers for all such documents" violates the Best Evidence Rule, in that Ms. Kassabian seeks to give oral testimony regarding a written list that she has failed to attach. In fact, Google's list of more than 20,000 bates numbered documents merely identified a mass of multiple copies of the same disorganized and often unreadable or redacted documents. Google failed to provide the DMCA log in spreadsheet form, even though the Court ordered Google to produce such a document in its May 13, 2008 order (Docket No. 294, page 4). Zada Decl., ¶¶19, 73, Exh. 55.

Google's Response2

5. Pages 2:20-22 (¶5): During discovery, Google produced a complete copy of its current DMCA tracking spreadsheet for Google's Blogger service, as well as complete copies of Google's earlier

Objections: Lack of foundation and lack of personal knowledge (Fed. R. Evid. 602); Best Evidence Rule: oral testimony inadmissible to prove contents of a writing (Fed. R. Evid. 1002); irrelevant (Fed. R. Evid. -11-

The witness, as counsel for Google in this action, is personally involved in and/or oversees all facets of discovery in this case, including Google's production of documents, and has the requisite personal knowledge to testify regarding same. See

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Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S RESPONSE TO PERFECT 10'S EVIDENTIARY OBJECTIONS TO DECLARATION AND REBUTTAL DECLARATION OF RACHEL HERRICK KASSABIAN

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Proffered Statement of Declaration

P10's Objections 401, 402). Ms. Kassabian has not testified that she has processed any DMCA notices received by Google regarding Blogger, let alone all such notices. Her declaration does not include a foundation establishing a basis for her to testify about these documents. Accordingly, Ms. Kassabian's testimony regarding what Google has produced lacks foundation and lacks personal knowledge. Ms. Kassabian's testimony violates the Best Evidence Rule, in that Ms. Kassabian seeks to give oral testimony regarding "tracking spreadsheets" that she has failed to attach. Finally, Ms. Kassabian does not define the meaning of the phrases "current DMCA tracking spreadsheet for Google's Blogger service," or "complete copies of Google's earlier Blogger DMCA tracking spreadsheets." Accordingly, her testimony is irrelevant. -12-

Google's Response2 Commercial Data Servers, Inc., 262 F. Supp. 2d at 5760; Hess, 211 F.R.D. at 406; Hussein, 2007 WL 4592225, at *2. Because the witness is testifying about facts within her personal knowledge, the Best Evidence Rule does not apply. See, e.g., R&R Associates, Inc., 726 F.2d at 38; Ingram, 418 F. Supp. 2d at 1185. The statement is relevant because it concerns Google's DMCA-related document production. Google proffered these statements to correct misstatements P10 made in its opposition materials regarding same.

Blogger DMCA 4 tracking spreadsheets.

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Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S RESPONSE TO PERFECT 10'S EVIDENTIARY OBJECTIONS TO DECLARATION AND REBUTTAL DECLARATION OF RACHEL HERRICK KASSABIAN

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Proffered Statement of Declaration

P10's Objections Ms. Kassabian does not explain why the 3,808 infringing blogger.com URLs identified by Perfect 10 in its DMCA notices were not included in Google's "complete copy of its current DMCA tracking spreadsheet for Google's Blogger service." Perfect 10 Blogger Opposition, page 10, lines 9-12.

Google's Response2

13 DATED: November 23, 2009 14 15 16 17 18 19 20 21 22 23 24 25 26 27
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Respectfully submitted, QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP

By Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

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