Perfect 10 Inc v. Google Inc et al

Filing 612

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 Reply to Perfect 10, Inc.'s Responses to Google's Evidentiary Objections in Support of its Motions for Summary Judgment re: Google's Entitlement to Safe Harbors Under 17 U.S.C. 512 filed by Counter Claimant Google Inc, Defendant Google Inc. (Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 612

1 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) [e-mail] 2 865 South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone] Charles K. Verhoeven (Bar No. 170151) [e-mail] 5 50 California Street, 22nd Floor 6 San Francisco, California 94111 Rachel Herrick Kassabian (Bar No. 191060) [e-mail] 7 555 Twin Dolphin Drive, Suite 560 8 Redwood Shores, California 94065 9 Attorneys for Defendant GOOGLE INC. 10 11 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 054753 AHM (SHx)] DEFENDANT GOOGLE INC.'S REPLY TO PERFECT 10, INC.'S "RESPONSES" TO GOOGLE'S EVIDENTIARY OBJECTIONS IN SUPPORT OF ITS MOTIONS FOR SUMMARY JUDGMENT RE: GOOGLE'S ENTITLEMENT TO SAFE HARBORS UNDER 17 U.S.C. § 512 Hon. A. Howard Matz Date: None Set (taken under submission) Time: None Set Place: Courtroom 14 Discovery Cut-off: None Set Pre-trial Conference: None Set Trial Date: None Set

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

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

24 AMAZON.COM, INC., a corporation; A9.COM, INC., a corporation; and 25 DOES 1 through 100, inclusive, 26 27 28
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Defendants.

GOOGLE'S REPLY TO PERFECT 10'S "RESPONSES" TO GOOGLE'S EVIDENTIARY OBJECTIONS Dockets.Justia.com

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Defendant Google Inc. ("Google") hereby replies to the following Perfect 10,

2 Inc. "Responses" to Google's Evidentiary Objections in Support of Google's 3 Motions for Partial Summary Judgment re: Google's Entitlement to Safe Harbors 4 Under 17 U.S.C. § 512 (hereinafter, the "Evidentiary Objection Responses"): 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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PERFECT 10'S RESPONSE TO GOOGLE, INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATIONS OF SEAN CHUMURA, BENNETT MCPHATTER AND DAVID O'CONNOR RE: GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT (Docket No. 565); PERFECT 10'S RESPONSE TO GOOGLE, INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATIONS OF MARGARET JANE EDEN, DEAN HOFFMAN, C.J. NEWTON, AND LES SCHWARTZ RE: GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT (Docket No. 566); PERFECT 10'S RESPONSE TO GOOGLE, INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU RE: GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT (Docket No. 567); PERFECT 10'S RESPONSE TO GOOGLE, INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JEFFREY MAUSNER RE: GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT (Docket No. 568); PERFECT 10'S RESPONSE TO GOOGLE, INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MELANIE POBLETE RE: GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT (Docket No. 569); PERFECT 10'S REDACTED REPLY TO GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR.
GOOGLE'S REPLY TO PERFECT 10'S "RESPONSES" TO GOOGLE'S EVIDENTIARY OBJECTIONS

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NORMAN ZADA RE: GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT (Docket No. 570; redacted portions filed under seal).

3 Although these documents purport to be "Responses" to objections to evidence, in 4 fact, they are largely sur-reply briefs containing new argument and new evidence on 5 the merits of Google's pending motions for summary judgment regarding Google's 6 entitlement to DMCA safe harbor. Perfect 10's ("P10") filing of these briefs 7 contravenes Local Rule 7-10 and the Court's Scheduling and Case Management 8 Order. The new arguments and evidence presented therein (as identified below) 9 should be stricken and/or disregarded. 10 I. 11 12 13 P10'S EVIDENTIARY OBJECTION RESPONSES ARE IMPROPER SUR-REPLIES, AND THEIR NEW ARGUMENTS AND EVIDENCE SHOULD BE DISREGARDED. After the completion of briefing on Google's three Motions for Partial

14 Summary Judgment, and without obtaining leave of Court, P10 filed the six above15 titled Evidentiary Objection Responses. The vast majority of these documents 16 constitute improper sur-reply briefing and should be disregarded. 17 Local Rule 7-10 provides that "[a]bsent prior written order of the Court, the 18 opposing party shall not file a response to the reply." Additionally, Paragraph 19 III.C.5 of this Court's Scheduling and Case Management Order provides that "[t]he 20 non-moving party may not file a sur-reply unless the Court first grants leave to do 21 so." Courts routinely strike or refuse to consider documents submitted in violation 22 of these rules. See, e.g., Spalding Laboratories, Inc. v. Arizona Biological Control, 23 Inc., 2008 WL 2227501, at *1 n.2 (C.D. Cal. 2008) ("The Court strikes and does not 24 consider Spalding's 14-page `sur-opposition' to ARBICO's reply brief.") (citing 25 Local Rule 7-10); DISC Intellectual Properties LLC v. Delman, 2007 WL 4973849, 26 at *1 n.1 (C.D. Cal. 2007) (rejecting "Defendants ... attempt[] to file a Response to 27 Plaintiffs' Reply in violation of Local Rule 7-10."); see also Cruz v. Tilton, 2009 28 WL 3126518, at *1 (E.D. Cal. 2009).
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GOOGLE'S REPLY TO PERFECT 10'S "RESPONSES" TO GOOGLE'S EVIDENTIARY OBJECTIONS

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On July 2, 2009, Google filed three motions for summary judgment regarding

2 Google's entitlement to DMCA safe harbor regarding its Caching feature, Blogger 3 service and Search service, respectively. See Docket Nos. 423-51. On August 9, 4 2009, P10 sub mitted its opposition materials, including three opposition briefs, three 5 separate statements of allegedly disputed facts, and eleven declarations. See Docket 6 Nos. 473-84. On September 8, 2009, Google filed its reply papers. See Docket 7 Nos. 502-21. 8 Thereafter, on October 12, 2009, P10 filed the Evidentiary Objection 9 Responses--despite having never sought or obtained leave to file any additional 10 argument or evidence in sur-reply to Google's reply materials. These documents 11 contain dozens of pages of argument on multiple subjects, including (1) the 12 substantive standards for summary judgment motions and for DMCA safe harbor,1 13 (2) the merits of Google's DMCA instructions and repeat infringer policy, (3) the 14 alleged sufficiency of P10's DMCA notices, and (4) the specifics of Google's 15 responses to P10's claimed notices.2 For example, the "Reply" to Google's 16 17 18 19 20 21 22 23 24 25 26 27 28
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For example, P10 urges that to obtain summary judgment, Google must prove that all of P10's notices are deficient, whereas to defeat summary judgment, Perfect 10 need show only that one of its notices was compliant. This is not the case--each portion of each claimed notice stands or falls on its own merits, as the Court made clear to P10 during the October 6, 2008 Status Conference. 2 P10's "Responses" also raise arguments on matters not even addressed in the Objections to which they purportedly respond. For instance, P10 represents that Google failed to disclose Google witnesses Shantal Rands Poovala, Paul Haahr, and Bill Brougher during discovery, and that P10 "only learned of" these witnesses "around the time" their declarations were filed in July 2009. This is incorrect. Google designated all three of these declarants as persons most knowledgeable regarding certain topics under Rule 30(b)(6)--Ms. Poovala and Mr. Haahr by letter dated August 28, 2008 (nearly 15 months ago) and Mr. Brougher by letter dated October 26, 2006 (more than three years ago). Mr. Mausner personally deposed each of them--Mr. Brougher on January 11, 2007, and Ms. Poovala and Mr. Haahr in November of 2008. See October 5, 2009 Mausner Decl. ¶¶ 6 & 7. P10's (footnote continued)
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1 Objections to the August 7, 2009 Zada Declaration alone contains 19 pages of 2 argument covering various substantive issues, complete with its own Table of 3 Contents and Table of Authorities. These are not mere "Responses" to evidentiary 4 objections; these are sur-replies filed without the required leave, and should be 5 disregarded and/or stricken. See Spalding Labs., 2008 WL 2227501, at *1 n.2; 6 DISC Intellectual Properties, 2007 WL 4973849, at *1 n.1; Cruz, 2009 WL 7 3126518, at *1. The specific objectionable portions are as follows: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 argument that these witnesses' declarations should be stricken is both incorrect and an improper sur-reply argument. See Moore v. Computer Associates Intern., Inc., 26 2009 WL 2870213, at *3-4 (D. Ariz. 2009) (denying motion to strike affidavit when 27 affiant "was a corporate witness, designated under Federal Rule of Civil Procedure 30(b)(6), and thus Rule 26 disclosure was not required."). 28
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Portions to be Stricken

Description

P10'S RESPONSE TO GOOGLE'S OBJECTIONS TO CHUMURA, MCPHATTER, AND O'CONNOR DECLARATIONS Sections III.A (5:1-6:1) and Argument contending that the Chumura, III.C (7:19-8:8) McPhatter, and O'Connor Declarations prove that P10's DMCA notices identified the location of infringing material and could be readily processed Section III.B (6:2-7:18) Argument contending that the Chumura, McPhatter, and O'Connor Declarations (filed with P10's opposition briefs) substantively refute the Declaration of Shantal Rands Poovala (filed with Google's opening briefs) Section V (10:1-19) Argument regarding the substantive standards governing motions for summary judgment, and urging that P10's DMCA notices identified the location of infringing material and could be readily processed P10'S RESPONSE TO GOOGLE'S OBJECTIONS TO EDEN, HOFFMAN, NEWTON AND SCHWARTZ DECLARATIONS Portions of Section I.A (3:18Argument regarding Google's repeat infringer 4:11) and Section II.A (4:19policy and eligibility for DMCA safe harbor 5:20)

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1 Section II.B (5:21-6:5) 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
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Argument contending that the Eden, Hoffman, Newton and Schwartz Declarations substantively refute the Declaration of Shantal Rands Poovala Section II.C (6:6-7:2) and Argument regarding Google's DMCA Section II.D (7:3-7:11) instructions and eligibility for DMCA safe harbor Section VII (9:12-10:2) Argument regarding the substantive standards governing motions for summary judgment and urging that Google is ineligible for DMCA safe harbor RESPONSE TO GOOGLE'S OBJECTIONS TO CHOU DECLARATION Section I (1:7-2:20) Argument regarding alleged "infringements" identified by Ms. Chou and regarding Google's DMCA instructions Section II (2:21-3:2) Argument regarding the contents and alleged propriety of P10's DMCA notices Section IV (3:18-4:8) Argument regarding liability for alleged activities of "pay sites" P10'S RESPONSE TO GOOGLE'S OBJECTIONS TO MAUSNER DECLARATION Footnote 1 (1:23-28) and Argument regarding the substantive standards portions of Section III (3:28governing motions for summary judgment 4:13) Portions of Section I (1:15-18) Argument regarding Google's alleged and Section II (2:4-3:4) contributory liability and eligibility for DMCA safe harbors P10'S RESPONSE TO GOOGLE'S OBJECTIONS TO POBLETE DECLARATION Footnote 1 (1:21-27) Argument regarding the substantive standards governing motions for summary judgment Section I (1:7-2:9) Argument regarding a purported "sampling" approach to the case P10'S RESPONSE TO GOOGLE'S OBJECTIONS TO ZADA DECLARATION Portions of Section I (3:2-13) Argument regarding the substantive standards governing motions for summary judgment Portions of Section II (6:23-28) Commentary regarding the claimed substance of the Declaration of Shantal Rands Poovala Portions of Section IV (8:23Argument regarding the substantive standards 10:4) and Section V (10:12-26) governing motions for summary judgment and -5-

GOOGLE'S REPLY TO PERFECT 10'S "RESPONSES" TO GOOGLE'S EVIDENTIARY OBJECTIONS

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Google's eligibility for DMCA safe harbor Portions of Section VI (11:7Argument regarding Google's eligibility for 14) and Section VII (12:5-9) DMCA safe harbor Section VIII (12:16-14:5) Argument regarding Google's DMCA instructions Portions of Section IX (14:14Argument regarding liability for alleged activities 17) of "pay sites" Portions of Section X (14:25Argument regarding the contents and alleged 15:5) propriety of P10's DMCA notices Portions of Section XI (15:27Argument regarding the contents of documents 16:1) P10 refers to as "part of [a] `DMCA log'" Portions of Section XIII (16:22- Argument regarding the contents and alleged 25) propriety of P10's DMCA notices Portions of Section XV (17:21- Argument regarding the contents and alleged 24) propriety of P10's DMCA notices and Google's responses thereto Portions of Section XVI (18:21- Argument regarding Google's DMCA policy for 19:2) AdWords For the foregoing reasons, Google respectfully requests that the above-

15 referenced portions of P10's Evidentiary Objection Responses be disregarded and/or 16 stricken. 17 DATED: November 23, 2009 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted, QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

GOOGLE'S REPLY TO PERFECT 10'S "RESPONSES" TO GOOGLE'S EVIDENTIARY OBJECTIONS

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