Perfect 10 Inc v. Google Inc et al

Filing 772

NOTICE OF MOTION AND MOTION for Preliminary Injunction Against Defendant Google Inc. filed by Plaintiff Perfect 10 Inc. Motion set for hearing on 4/5/2010 at 10:00 AM before Judge A. Howard Matz. (Attachments: #1 Proposed Order GRANTING PRELIMINARY INJUNCTION, SUBMITTED BY PLAINTIFF PERFECT 10, INC.)(Mausner, Jeffrey)

Perfect 10 Inc v. Google Inc et al

Doc. 772

Case 2:04-cv-09484-AHM-SH Document 772

Filed 03/03/10 Page 1 of 6

1 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

Jeffrey N. Mausner (State Bar No. 122385) Law Offices of Jeffrey N. Mausner Warner Center Towers 21800 Oxnard Street, Suite 910 Woodland Hills, California 91367-3640 Email: [e-mail] Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff Perfect 10, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PERFECT 10, INC., a California corporation, v. Plaintiff, Case No.: CV 04-9484 AHM (SHx) Before Judge A. Howard Matz PLAINTIFF PERFECT 10, INC.'S NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION AGAINST DEFENDANT GOOGLE INC. [Filed Separately: Memorandum of Points and Authorities; Declarations of Dr. Norman Zada, Jeffrey N. Mausner, Sheena Chou, Melanie Poblete, Dean Hoffman, C.J. Newton, Margaret Jane Eden, Les Schwartz, Sean Chumura, David O'Connor, Bennett McPhatter; and [Proposed] Order] Date: April 5, 2010 Time: 10:00 a.m. Place: Courtroom 14, Courtroom of the Honorable A. Howard Matz Discovery Cut-Off Date: None Set Pretrial Conference Date: None Set Trial Date: None Set

GOOGLE INC., a corporation, Defendants.

Plaintiff Perfect 10, Inc.'s Notice of Motion and Motion for Preliminary Injunction Against Defendant Google Inc.
Dockets.Justia.com

Case 2:04-cv-09484-AHM-SH Document 772

Filed 03/03/10 Page 2 of 6

1 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

TO DEFENDANT GOOGLE INC. AND TO ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 5, 2010, at 10:00 a.m., or as soon thereafter as the matter may be heard, in Courtroom 14, the Courtroom of the Honorable A. Howard Matz, located at 312 N. Spring Street, Los Angeles, California, Plaintiff Perfect 10, Inc. ("Perfect 10") will and hereby does move this Court for a preliminary injunction restraining and enjoining Defendant Google Inc. ("Google") from engaging in continuing acts of copyright infringement and violations of Perfect 10's rights of publicity. In particular, Perfect 10 seeks an Order in the form of the [Proposed] Order Granting Preliminary Injunction lodged separately herewith, which provides, in relevant part, as follows: During the pendency of this action, Google, any of its subsidiaries, affiliates, successors, officers, directors, employees, agents, representatives, any entities owned or controlled by Google, and any persons acting in active concert or participation with any of them, shall be and are restrained and enjoined during the pendency of this action, from: (A) Copying, reproducing, distributing, publicly displaying, adapting or otherwise infringing, or contributing to the infringement of any copyrighted image owned by Perfect 10 ("Perfect 10 Copyrighted Images" or "P10 Images") which has been or will be identified in notices sent by Perfect 10 to Google. (B) Hosting or linking to any websites that display, distribute, or make available Perfect 10 Copyrighted Images, for which Google has received notice from Perfect 10. (C) Distributing, publicly displaying, publishing, or otherwise providing or making available any combination of passwords and usernames to perfect10.com.
1

Plaintiff Perfect 10, Inc.'s Notice of Motion and Motion for Preliminary Injunction Against Defendant Google Inc.

Case 2:04-cv-09484-AHM-SH Document 772

Filed 03/03/10 Page 3 of 6

1 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

(D)

Hosting or linking to any websites that distribute,

publicly display, publish, or otherwise provide or make available any combination of passwords and usernames to perfect10.com, for which Google has received notice from Perfect 10. (E) Providing sponsored links to and/or placing Google advertisements on or for infringing websites that display, distribute, or make available Perfect 10 Copyrighted Images, for which Google has received notice from Perfect 10. (F) (G) Powering rapidshare.com search engines used to find Providing Perfect 10's DMCA notices containing Perfect infringing materials offered by rapidshare.com. 10 Copyrighted Images and/or lists of infringing URLs to chillingeffects.org for republication on the Internet, and/or providing links in its search results to such Perfect 10 Copyrighted Images or lists of infringing URLs. (H) Violating, or contributing to the violation of, any rights of publicity owned or controlled by Perfect 10, after receiving notice of such violation. Within 14 days of the entry by this Court of this Order Granting Preliminary Injunction (the "Order"), Perfect 10 and Google shall meet and confer and attempt to submit a Joint Proposed Order for Compliance With Preliminary Injunction, setting forth the procedures that Google will follow in complying with this Order. If the parties are not able to reach agreement on such a Joint Proposed Order, then within 21 days of the entry by the Court of this Order, Perfect 10 shall submit a Proposed Order for Compliance With Preliminary Injunction, setting forth Perfect 10's proposal for compliance. Perfect 10 may also submit a memorandum not to exceed 15 pages in support
2

Plaintiff Perfect 10, Inc.'s Notice of Motion and Motion for Preliminary Injunction Against Defendant Google Inc.

Case 2:04-cv-09484-AHM-SH Document 772

Filed 03/03/10 Page 4 of 6

1 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

of its Proposed Order for Compliance With Preliminary Injunction. Within 7 days of Perfect 10's submission, Google may submit its alternative Proposed Order for Compliance With Preliminary Injunction. Google may also submit a memorandum not to exceed 15 pages in support of its Proposed Order for Compliance With Preliminary Injunction and in opposition to the provisions of Perfect 10's Proposed Order. Within 7 days of Google's submission, Perfect 10 may file a Reply, not to exceed 10 pages. The Court will then decide upon the terms of the Order for Compliance With Preliminary Injunction. The specific acts which Perfect 10 seeks to enjoin are set forth in Plaintiff Perfect 10, Inc.'s Memorandum of Points and Authorities In Support of Motion For Preliminary Injunction Against Defendant Google Inc., filed separately herewith under seal. These include, but are not limited to, the following acts of Google: 1) Storing more than 3,837 full-size Perfect 10 copyrighted images ("P10 Images") on Google's own blogger.com servers. 2) Hosting more than 565 websites in its blogspot.com program that have infringed more than 11,000 P10 Images. 3) Placing its AdSense advertising next to tens of thousands of infringing P10 Images, many of which have been repeatedly identified to Google in Perfect 10's DMCA notices, in some cases more than eighty times. 4) Placing its AdSense advertising next to more than 4,000 P10 Images hosted on Google's own blogspot.com servers, over which Google has complete control. 5) Hosting websites which offer links for downloading as many as 26,000 full-size P10 Images from massive infringing sites such as rapidshare.com, megaupload.com, and depositfiles.com.
3

Plaintiff Perfect 10, Inc.'s Notice of Motion and Motion for Preliminary Injunction Against Defendant Google Inc.

Case 2:04-cv-09484-AHM-SH Document 772

Filed 03/03/10 Page 5 of 6

1 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

6) Powering rapidshare.com search engines which search exclusively for links offered by rapidshare.com, which are used to download massive quantities of infringing material. 7) Providing more than 222 million links to known massive infringers such as rapidshare.com, thepiratebay.org, and isohunt.com, and refusing to take any action against these infringing websites. 8) Refusing to take any action against Google advertising affiliates that have collectively infringed more than 180,000 P10 Images. 9) Displaying more than 22,000 infringing P10 thumbnails and linking them to websites that infringe, in total, hundreds of thousands of P10 Images. 10) Offering thousands of full-size P10 Images to its users via Google's "see full-size image" links and its in-line links. 11) Providing passwords for perfect10.com in its search results and hosting and linking to websites which provide perfect10.com passwords. Such passwords have allowed users to illegally download at least 4,500,000 P10 Images from perfect10.com. 12) Formatting P10 Images so they can be downloaded on cell phones. 13) Sending Perfect 10's DMCA notices containing full-size P10 Images to chillingeffects.org, for republication on the Internet, and then providing in-line links to those images in its search results. By doing so, Google knowingly provides access to thousands of infringing images it was supposed to remove. This Motion is made on the grounds that: (i) Perfect 10 has a probability of success on the merits of its copyright infringement and right of publicity claims and Perfect 10 will suffer irreparable harm if the Motion is not granted; and, alternatively (ii) serious questions are raised by this Motion and the balance of hardships tip in favor of Perfect 10. This Motion is based upon this Notice of Motion, the Memorandum of Points and Authorities filed separately herewith under seal, the Declarations of
4

Plaintiff Perfect 10, Inc.'s Notice of Motion and Motion for Preliminary Injunction Against Defendant Google Inc.

Case 2:04-cv-09484-AHM-SH Document 772

Filed 03/03/10 Page 6 of 6

1 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

Dr. Norman Zada (filed under seal), Jeffrey N. Mausner (some exhibits filed under seal), Sheena Chou, Melanie Poblete, Dean Hoffman, C.J. Newton, Margaret Jane Eden, Les Schwartz, Sean Chumura, David O'Connor, and Bennett McPhatter, all filed separately herewith, the [Proposed] Order Granting Preliminary Injunction lodged herewith, the complete files and records in this action, all matters of which this Court properly may take judicial notice, and any additional matters that may be submitted to the Court at or before any hearing on the Motion, including in any reply papers. Dated: March 3, 2010 LAW OFFICES OF JEFFREY N. MAUSNER By: __________________________________ Jeffrey N. Mausner Attorney for Plaintiff Perfect 10, Inc.

Jeffrey N. Mausner

Plaintiff Perfect 10, Inc.'s Notice of Motion and Motion for Preliminary Injunction Against Defendant Google Inc.

5