Perfect 10 Inc v. Google Inc et al

Filing 792

OPPOSITION OF PLAINTIFF PERFECT 10. INC. TO DEFENDANT GOOGLE INC.'S EX PARTE APPLICATION TO STRIKE PERFECT 10'S MOTION FOR PRELIMINARY INJUNCTION AGAINST DEFENDANT GOOGLE INC. re: EX PARTE APPLICATION for Order for Striking of Perfect 10, Inc.'s Second Motion for Preliminary Injunction and for Sanctions #789 filed by Plaintiff Perfect 10 Inc. (Mausner, Jeffrey)

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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 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 OPPOSITION OF PLAINTIFF PERFECT 10. INC. TO DEFENDANT GOOGLE INC.'S EX PARTE APPLICATION TO STRIKE PERFECT 10'S MOTION FOR PRELIMINARY INJUNCTION AGAINST DEFENDANT GOOGLE INC.; DECLARATION OF JEFFREY N. MAUSNER IN SUPPORT THEREOF Date: Opposition to Ex Parte Time: Opposition to Ex Parte 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.

Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction

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TABLE OF CONTENTS THIS COURT SHOULD DENY GOOGLE'S EX PARTE APPLICATION, WHICH IMPROPERLY SEEKS TO AVOID A RULING ON GOOGLE'S UNLAWFUL CONDUCT. ..................................... 1 GOOGLE'S EX PARTE APPLICATION DISREGARDS RECENT OUTRAGEOUS GOOGLE CONDUCT THAT NECESSITATES INJUNCTIVE RELIEF. .................................................................................................. 5 A. Google's Forwarding Of Perfect 10's DMCA Notices To Its Partner Website, Chillingeffects.org. ............................................................... 6 The PI Motion Seeks Injunctive Relief Based On Other New Unlawful Conduct Engaged In By Google. .................................................. 10 Google's Summary Judgment Motions Do Not Cover New And More Massive Infringement And Other Google Misconduct ............................................................................................................ 10

PERFECT 10'S FILING OF THE PI MOTION DOES NOT VIOLATE THE JULY 8 ORDER. ............................................................................. 16 THE NINTH CIRCUIT'S OPINION SUPPORTS THIS COURT'S CONSIDERATION OF PERFECT 10'S PI MOTION. ....................................... 16 THE AUTHORITIES CITED BY GOOGLE DO NOT SUPPORT THIS COURT'S GRANTING OF THE APPLICATION. .................................. 17 GOOGLE'S CONTENTIONS REGARDING IRREPARABLE HARM PROVIDE NO BASIS TO STRIKE THE PI MOTION........................ 17

VII. PERFECT 10'S REQUEST THAT THIS COURT RECONSIDER THE SERVER TEST LIKEWISE PROVIDES NO BASIS TO GRANT THE APPLICATION. .................................................................................. 18 VIII. JUDGE HILLMAN'S RECENT RULING IN CONNECTION WITH PERFECT 10'S SANCTIONS MOTION FURTHER COMPELS THIS COURT TO DENY THE APPLICATION. ........................... 19 IX. THE DISCOVERY SOUGHT BY GOOGLE IS NOT NECESSARY FOR THIS COURT TO DETERMINE PERFECT 10'S PRELIMINARY INJUNCTION MOTION. ............................................................ 20 CONCLUSION. .............................................................................................................. 20

i Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction

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TABLE OF AUTHORITIES

Doran v. Salem Inn, Inc. 422 US 922, 932, 95 S.Ct. 2561 (1975) .............................. 4 Grand River Enterprise Six Nations, Ltd. v. Pryor, 481 F3d 60 (2nd Cir. 2007) ....... 4 Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) ................... 1, 16

13 Rutter Group Practice Guide: Federal Civil Procedure Before Trial (TRG 2010) §13:58 .................................................................................................. 4 28 U.S.C. § 1292(a)(1)................................................................................................. 2

ii Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction

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I.

THIS COURT SHOULD DENY GOOGLE'S EX PARTE APPLICATION, WHICH IMPROPERLY SEEKS TO AVOID A RULING ON GOOGLE'S UNLAWFUL CONDUCT. Defendant Google Inc. ("Google") has filed a misleading and overreaching

ex parte application (the "Application") to strike Plaintiff Perfect 10, Inc.'s Motion for Preliminary Injunction against Google, which was filed on March 3, 2010 and is set for hearing on April 5, 2010 (the "PI Motion"). Google's Application asks this Court to strike Perfect 10's PI Motion without ever reviewing Perfect 10's moving papers or considering the merits of Perfect 10's claim that it is entitled to injunctive relief ­ a claim that the Ninth Circuit specifically invited Perfect 10 to bring in its initial ruling in this case. See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1176-77 (9th Cir. 2007) (reversing this Court's ruling that Perfect 10 was unlikely to succeed on the merits of its secondary liability claims and stating that "the district court will need to reconsider the appropriate scope of injunctive relief after addressing these secondary liability issues"). The Application is based almost entirely upon two mistaken assertions. First, Google incorrectly contends that Perfect 10 has not suffered new harm that requires injunctive relief. Application at 1. In fact, as explained below, Perfect 10 has suffered significant new harm because, in the last few months, Google has begun to copy Perfect 10's confidential DMCA notices, containing full-size copyrighted Perfect 10 images ("P10 Images") and live links, and send them to its partner, chillingeffects.org, for publication on the Internet. Google has also provided in-line links to such images, thus making thousands of full-size P10 Images from Perfect 10's DMCA notices, which Google was supposed to remove, available to Google users. Google's new outrageous conduct, which has made it impossible for Perfect 10 to send further DMCA notices to Google, compels Perfect 10 to seek injunctive
1 Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction

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relief (see Section II, below). Second, Google mistakenly asserts that Perfect 10's filing of the PI Motion violates this Court's July 8, 2009 Order (the July 8 Order"). Application at 1, 3, That Order, which specifically holds that Google "exhibited gamesmanship" by filing its three summary judgment motions (the "DMCA Motions") in July 2009, contains absolutely no language whatsoever that prevents Perfect 10 from filing a preliminary injunction motion. See Declaration of Rachel Herrick Kassabian in support of the Application ("Kassabian Decl."), Exh. A. 1 Moreover, the July 8 Order cannot possibly bar this Court's consideration of the PI Motion, because the PI Motion is based largely on developments that took place after July 8, 2009. Such developments include, but are not limited to, Google's incredible new conduct of forwarding Perfect 10's confidential DMCA notices to chillingeffects.org, thereby making thousands of full-size infringing P10 Images contained in these notices available to Google's users. Google's Application improperly seeks to prevent this Court from considering Perfect 10's PI Motion on the merits. Any ruling granting the Application and striking or staying the PI Motion constitutes a denial of the motion, which will be immediately appealed by Perfect 10 to the Ninth Circuit. See 28 U.S.C. § 1292(a)(1) (courts of appeals have jurisdiction of appeals from orders refusing injunctions). This Court should deny the Application and hear Perfect 10's PI Motion on its merits for at least the following seven reasons:
1

The language of the Order also undermines Google's repeated reference to Perfect 10's summary judgment motion as "reactive." See, e.g., Application at 1. To the contrary, Perfect 10 would have filed its summary judgment motion before Google's three DMCA Motions if Google had not filed its Motion for Order for Schedule for Filing Dispositive Motions and then filed its DMCA Motions without waiting for the Court's ruling on its own prior motion. As the Court noted in the July 8 Order, "The Court is aware that Google decided to file its three DMCA motions, noticed for August 17, 2009, without awaiting the Court's order on its motion. Although Google's filing of the DMCA motions before the Court's order exhibited gamesmanship ­ i.e., it gives the appearance of Google racing to the courthouse at the same time it was purporting to seek the Court's guidance on an orderly sequence of the filing of motions ­ Google did not violate any Court order." See July 8, 2009 Order, Docket No. 453, found at Kassabian Decl. Exh. A.
2 Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction

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First, Perfect 10's PI Motion is based on several new developments, including matters such as Google's forwarding of DMCA notices to chillingeffects.org, that took place after July 8, 2009. These new developments, including Google's refusal to respond to notices alleging violations of Perfect 10's rights of publicity and its incomplete processing of 95 recent Perfect 10 DMCA notices, are not addressed either by Google's three DMCA Motions or by Perfect 10's summary judgment motion (see Section II, below). Second, the terms of the July 8 Order simply do not prevent Perfect 10 from filing a PI Motion. Nor does the July 8 Order bar Perfect 10 from seeking injunctive relief, notwithstanding the fact that Google's DMCA Motions are pending. The July 8 Order merely stayed further briefing on Perfect 10's summary judgment motion. It provides no basis to grant the Application or to prevent this Court from considering Perfect 10's PI Motion on the merits (see Section III, below).2 Third, the Ninth Circuit's 2007 ruling on Perfect 10's initial motion for preliminary injunction specifically contemplates Perfect 10's filing of a subsequent preliminary injunction motion following further fact finding. Under these circumstances, this Court cannot properly strike or stay Perfect 10's PI Motion (see Section IV, below). Fourth, there simply is no authority for the key proposition of law advanced by Google in support of the Application: that this Court may strike the PI Motion on an ex parte basis, without considering the merits of the PI Motion. None of the cases upon which Google mistakenly seeks to rely supports this proposition (see Google also claims that the PI Motion should be stricken because it is an "improper surreply to Google's DMCA Motions." Application at 6 n.2. This assertion is obviously incorrect ­ Perfect 10's PI Motion is a separate motion alleging new unlawful conduct by Google and seeking different relief than the relief at issue in the DMCA Motions, and Google has an opportunity to oppose the PI Motion. Moreover, Google's incorrect assertion that Perfect 10 "has been admonished not to file improper sur-replies before" in orders issued in the Amazon case completely mischaracterizes the language of those orders, See Docket Nos. 220 and 284.
3 Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction
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Section V, below). Fifth, Google spends a significant portion of the Application asserting that Perfect 10 allegedly has failed to establish the irreparable harm necessary for it to obtain injunctive relief. Application at 9-12. The question of irreparable harm cannot properly be addressed on an ex parte basis and cannot support the granting of the Application. Rather, this issue may only be addressed by the Court in connection with a ruling on the merits of the PI Motion (see Section VI, below).3 Sixth, Google asserts that the PI Motion is improper because Perfect 10 asks this Court to revisit the "server test" in ruling on the PI Motion. Application at 1213. As Google well knows, in order for the Ninth Circuit to revisit the "server test" in connection with any appeal, Perfect 10 must first raise the issue before this Court. In fact, this Court has stated that the Ninth Circuit may want to review the server

Google is seeking to use the Application to obtain a final determination on the PI Motion, while giving Perfect 10 only 24 hours to respond to its arguments and without even allowing the Court the opportunity to read the PI Motion. The first time that Google ever mentioned that it would file an ex parte application to strike the PI Motion was in an email to Perfect 10's counsel sent on March 8, 2010 at 12:02 a.m. Before that time, Google had only asked for additional time to file its opposition to the PI Motion, and the parties were discussing a briefing schedule. See Declaration of Jeffrey N. Mausner in opposition to the Application, submitted herewith, Exh. 1, pages 28-31. This Court should not be forced to decide the PI Motion based on Google's Application and this Opposition, written in less than 24 hours. Rather, the PI Motion should be fully briefed and decided on the merits. For example, Google asserts that Perfect 10's claim that that it is near bankruptcy and must have immediate relief to survive is contrary to "blackletter law that alleged monetary damages cannot constitute irreparable harm for purposes of imposition of a preliminary injunction." Application at 9. In fact, a leading treatise specifically states that "[a] `substantial loss of business and perhaps even bankruptcy' absent preliminary injunctive relief shows `irreparable injury.'" See 13 Rutter Group Practice Guide: Federal Civil Procedure Before Trial (TRG 2010) §13:58, citing Doran v. Salem Inn, Inc. 422 US 922, 932, 95 S.Ct. 2561, 2568 (1975) and Grand River Enterprise Six Nations, Ltd. v. Pryor, 481 F3d 60, 67 (2nd Cir. 2007)--(loss of current or future market share may constitute irreparable harm). Clearly, this issue should not be decided in response to an ex parte application to strike a motion for preliminary injunction, but in a hearing on the merits of the PI Motion.
4 Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction

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test, at least in certain contexts. Furthermore, Perfect 10's request to revisit the "server test" is explicitly based on new evidence that was not before this Court or the Ninth Circuit in connection with Perfect 10's initial preliminary injunction motion. Memorandum of Points and Authorities in Support of PI Motion ("Memo") at 24-25. For these reasons, Perfect 10's discussion of the server test likewise provides no grounds for this Court to grant the Application and strike the PI Motion without a hearing on the merits (see Section VII, below). Seventh, this Court cannot properly rule upon Google's three DMCA Motions before it considers Perfect 10's PI Motion because Google still has not produced documents that are highly relevant to Google's DMCA Motions. In fact, Judge Hillman specifically stated in his January 27, 2010 Order that "the court may ultimately decide that the documents sought could be material to Perfect 10's opposition to the pending Motions for Summary Judgment." Because Judge Hillman has yet to rule upon this issue, which was raised in connection with Perfect 10's Motion for Evidentiary and Other Sanctions, the DMCA Motions are not ripe for disposition and the relief sought by the Application is inappropriate (see Section VIII, below).4 II. GOOGLE'S EX PARTE APPLICATION DISREGARDS RECENT OUTRAGEOUS GOOGLE CONDUCT THAT NECESSITATES INJUNCTIVE RELIEF. Google's ex-parte application substantially mischaracterizes Perfect 10's PI Motion. In particular, it completely disregards recent new and extraordinarily damaging Google conduct that consists, among other things, of Google taking thousands of Perfect 10 copyrighted Images, including full-size P10 Images, contained in Perfect 10's confidential DMCA notices, and making them available to Google's assertion that Perfect 10 has purposefully delayed this case is ludicrous. See Application at 12. There have been times when Perfect 10 has had trouble keeping up with discovery being propounded by Google and Amazon, with their limitless resources and hordes of attorneys, but Perfect 10 has always sought to move the case as quickly as possible, given its limited resources. Furthermore, the stay of discovery sought by Perfect 10, discussed at page 11, lines 26-27 of the Application, was denied, and Google has taken very extensive discovery in the case.
5 Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction
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Google users on a massive scale. This new and extraordinarily damaging Google conduct, which started only a few months ago, is a key element of the PI Motion. A. Google's Forwarding Of Perfect 10's DMCA Notices To Its Partner Website, Chillingeffects.org. In December 2009, in response to 95 recent Perfect 10 DMCA notices, Google began forwarding full-size Perfect 10 Images contained in those notices to its partner website, chillingeffects.org, for publication on the Internet. Google also provided an in-line link to those images, at the location where they were placed on the servers of chillingeffects.org. As a result, P10 Images and links that Perfect 10 has asked Google to remove are instead being reinstated on chillingeffects.org. Because Google provides a direct in-line link to those images, Google users can now search for a Perfect 10 model and download all of the images of that model in Perfect 10's confidential DMCA notices, as well as thousands of other P10 Images, all while remaining at google.com. Memo at 3, 9-10; Declaration of Dr. Norman Zada in support of the PI Motion ("Zada Decl.") ¶¶13-15, Exhs. 5-7. Perfect 10 has repeatedly complained to Google about this recent conduct, but Google refuses to stop. Google's unwillingness to cease this conduct prevents Perfect 10 from sending further DMCA notices to Google, which effectively precludes Perfect 10 from protecting its copyrighted works. Google's recent unlawful conduct, which basically places back on the Internet the very images and links which Perfect 10 asked Google to remove, is illustrated by the following example, which is page 8 of Exhibit 5 to the Zada Declaration ("Page 8").

6 Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction

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7 Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction

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The thumbnail on the upper left of Page 8 was identified by Perfect 10 as an infringing image in the confidential 63-page DMCA notice it sent to Google on November 8, 2009. Although Google at one point removed that thumbnail from its Image Search results, it reinstated that very same thumbnail in its Image Search results and in-line linked that thumbnail to a URL at images.chillingeffects.org where Perfect 10's entire confidential DMCA notice was copied and stored. By clicking on the reinstated P10 thumbnail shown at the upper left of the above page, Google users were able to access Perfect 10's entire DMCA notice, consisting of thousands of live images and links. One page of this notice is shown on the right side of Page 8. Google users could click on any of those images, such as the checked image shown on Page 8 above and download a full-size version of that same P10 Image, as shown below. As the above discussion indicates, Google is willfully reinstating known infringing P10 Images onto the Internet and then providing direct links to those images. Such conduct, which began in December 2009, is not the subject of either Google's DMCA Motions or Perfect 10's summary judgment motion. It clearly constitutes both direct and contributory copyright infringement, because Google is both copying and distributing full-size P10 Images, and because Google is providing access to known infringing material. Because the PI Motion specifically seeks to enjoin such newly infringing conduct, Google's attempt to strike the PI Motion fails. At the very minimum, this Court needs to address whether such newly infringing conduct should be enjoined on the merits, based upon a full briefing by the parties.

8 Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction

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 The above page is page 9 of Exhibit 5 to the Zada Declaration. The full-size P10 Image found on this page was obtained by clicking on the checked thumbnail shown on Page 8.
9 Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction

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B.

The PI Motion Seeks Injunctive Relief Based On Other New Unlawful Conduct Engaged In By Google.

Perfect 10's PI Motion also seeks to enjoin other recent unlawful conduct by Google, which is not at issue either in Google's DMCA Motions or Perfect 10's summary judgment motion. First, Google has recently confirmed that it will not take any action against violations of Perfect 10's assigned rights of publicity, including violations by Google's advertising affiliates on websites that Google hosts. In January 2010, Google advised Perfect 10: "It appears that your email also concerns rights of publicity violations. Rights of publicity are not covered by the DMCA, and pursuant to Google's content policies, we will be unable to take further action on your complaint." Zada Decl. ¶¶15, 101, Exhs. 7, 73. This issue is not covered by Google's DMCA Motions or Perfect 10's summary judgment motion. Consequently, there is no basis to stay or deny Perfect 10's request for injunctive relief concerning this issue. Second, Google's DMCA Motions do not even mention the following Google programs, which have infringed, in total, hundreds of full-size P10 Images stored on Google's servers: Google Groups, Google Sites, Google Picasa, and infringements on other Google owned URLs, such as ggpht.com and googlepages.com. Google has not responded to most of Perfect 10's DMCA notices regarding such infringements, which provided Google with a copy of Google's own infringing webpage, showing the infringing P10 Image along with the full URL of that web page. Zada Decl. ¶¶65-66, 77, Exhs. 45-46, 57. Perfect 10's motion seeks to enjoin such ongoing infringement. Because this issue is not even mentioned in Google's DMCA motions, there is no basis for this Court to strike or stay that portion of Perfect 10's PI Motion. C. Google's Summary Judgment Motions Do Not Cover New And More Massive Infringement And Other Google Misconduct
10 Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction

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Google continues to incorrectly argue that its three DMCA summary judgment motions will decide the case, which is simply not correct, for the following reasons, among others: In addition to the infringement mentioned above, which is not covered by Google's DMCA Motions, infringement on Google's system has increased dramatically since July 2009, when Google filed its three motions. In spite of 95 new DMCA notices sent by Perfect 10 to Google between October and November 2009, Google is now offering at least 22,000 P10 thumbnails in its Image Search results, and is linking those images to websites that, on average, infringe at least 9,000 additional full-size P10 Images. Google is also offering 222 million links to massive infringers, which it is refusing to remove. Furthermore, Google has stated that it will not take any action against its massive infringing paysite advertisers, regardless of the notice. Google is also continuing to place ads next to full-size identified P10 Images on websites that it hosts. Zada Decl. ¶¶6, 16, 17, 45, 2 Exhs. 1, 8, 10, 30, 9. None of these Google activities is covered by the DMCA. As a result, Google's DMCA Motions will not resolve these issues. Moreover, Google cannot receive a DMCA safe harbor for its failure to act as discussed above. Because these issues are addressed by the Perfect 10's PI Motion, but not Google's DMCA Motions, there is no basis for this Court to strike the PI Motion. In addition, Google's DMCA Motions do not cover any of the 95 recent Perfect 10 DMCA notices sent to Google in October and November of 2009, whether those notices were compliant, and whether or not Google suitably responded to those notices. For example, Google has recently demonstrated that it can process notices that it previously claimed it could not process. This contradicts Google's contention in its pending DMCA Motions, that all such notices were deficient. An example of such a notice as it now appears on chillingeffects.org servers, and Google's in-line linking to it, is shown below. This example is page1 of Exhibit 6 to the Zada Declaration ("Page 1"):
11 Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction

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12 Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction

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The image at the upper left of Page 1 is taken from a Perfect 10 DMCA notice, which Perfect 10 refers to as a "check the box" or "check the infringing image" notice. A portion of the notice is shown on the right side of Page 1. Perfect 10 included copies of the infringing P10 thumbnails, along with three links provided by Google, the "See full-size image" link, which Google requires for its Image Search notice, the Web page link, which Google requires for its web search and AdSense notices, and a thumbnail link. Google had refused to process these notices for years, but recently began to process them. However, because Google is reinstating the infringing images and links identified by Perfect 10 back on the Internet, Perfect 10 cannot provide Google with any additional notices. Zada Decl. ¶¶13-15, Exhs. 5-7. As another example of Google's misconduct, which is not covered by Google's DMCA Motions, Google has recently claimed that it has removed or suppressed identified images and links when it has not in fact done so. The following two pages, taken from pages 22 and 23 of Exhibit 7 to the Zada Declaration, set forth a January 7, 2010 email from Google's DMCA agent to Dr. Norman Zada of Perfect 10. This email demonstrates that Google claimed that it removed images that it did not actually remove. In the email, "DNR" stands for "did not remove." Although Google states in the email that it removed certain links and/or images listed in its email, which Perfect 10 had identified in a November 8, 2009 notice to Google, Google actually did not remove many of the infringing links and/or images which it claimed it removed. This failure on Google's part to suppress known infringing links after July of 2009 should subject it to contributory liability. The resolution of Google's pending three summary judgment motions will not resolve such issues. However, they are addressed in the PI Motion, and for this reason as well, there is no basis to stay or strike that Motion.

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III.

PERFECT 10'S FILING OF THE PI MOTION DOES NOT VIOLATE THE JULY 8 ORDER. By its very terms, the July 8 Order does not bar Perfect 10 from filing the PI

Motion. Nor does the July 8 Order contain any language that prevents Perfect 10 from seeking injunctive relief. Rather, the July 8 Order merely "STAYS further briefing on Perfect 10's just-filed motion for summary judgment (Docket No. 436) until further order of the Court." Kassabian Decl. Exh. A. Google has failed to identify, and indeed cannot identify, any language in the July 8 Order that supports the granting of its Application or the striking of the PI Motion. On the contrary, Google's Application seeks relief that is significantly broader and more oppressive than that set forth in the July 8 Order. The July 8 Order simply stayed Perfect 10's summary judgment motion, which remains pending. By contrast, the Application asks this Court to strike the PI Motion entirely, thereby effectively denying the PI Motion without the Court ever considering the motion on its merits. Because the July 8 Order does not support the relief sought by Google, this Court should deny the Application in its entirety. IV. THE NINTH CIRCUIT'S OPINION SUPPORTS THIS COURT'S CONSIDERATION OF PERFECT 10'S PI MOTION. In its ruling on Perfect 10's initial motion for preliminary injunction, the Ninth Circuit reversed this Court's denial of Perfect 10's right to injunctive relief on its secondary liability claims, holding as follows: "Because the district court will need to reconsider the appropriate scope of injunctive relief after addressing these secondary liability issues, we do not address the parties' arguments regarding the scope of the injunction issued by the district court." Perfect 10 v. Amazon, 508 F.3d at 1177. Perfect 10 has now filed a PI Motion which once again seeks injunctive relief on its secondary liability claims, among other relief, based upon the guidelines set forth in the Ninth Circuit's opinion. Under these circumstances, this Court may not grant the Application and strike Perfect 10's PI Motion.
16 Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction

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V.

THE AUTHORITIES CITED BY GOOGLE DO NOT SUPPORT THIS COURT'S GRANTING OF THE APPLICATION. Google's primary contention in support of the Application is that this Court

may strike the PI Motion because Perfect 10's filing of the motion violates the July 8 Order. Application at 1-2. As explained in Section III, above, this contention is wrong as a matter of fact. Moreover, none of the cases cited by Google even supports the contention advanced by Google: that this Court has the inherent authority to strike the PI Motion on an ex parte basis. On the contrary, none of the cases upon which Google mistakenly seeks to rely (id.) involves an ex parte application to strike a motion, let alone a motion seeking injunctive relief. For this reason as well, this Court has no basis to grant the Application. VI. GOOGLE'S CONTENTIONS REGARDING IRREPARABLE HARM PROVIDE NO BASIS TO STRIKE THE PI MOTION. Google also asserts that this Court should strike the PI Motion because Perfect 10 allegedly has failed to establish the irreparable harm necessary for it to obtain injunctive relief. Application at 9-12. This misplaced contention provides no basis for this Court to grant the Application or strike the PI Motion. This Court properly may consider whether Perfect 10 has suffered irreparable harm in connection with its ruling on the merits of Perfect 10's PI Motion. It may not use Google's assertion to strike the PI Motion, however, and thereby avoid ruling on the merits of Perfect 10's right to injunctive relief. Google fails to cite a single authority supporting its assertion that this Court can rely upon Google's claims regarding irreparable harm to strike the entire PI Motion, because no such authority exists. For this reason as well, this Court should deny the Application and instead address the merits of Perfect 10's PI Motion.

17 Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction

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VII. PERFECT 10'S REQUEST THAT THIS COURT RECONSIDER THE SERVER TEST LIKEWISE PROVIDES NO BASIS TO GRANT THE APPLICATION. Google further contends that this Court should strike the PI Motion because Perfect 10 has improperly asked the Court to violate Ninth Circuit law by seeking reconsideration of the server test. Application at 12-13. This assertion fails for at least two reasons. First, Perfect 10's request that this Court revisit the viability of the server test is a necessary prerequisite to raising this issue in connection with any appeal to the Ninth Circuit. Perfect 10 does not expect this Court to ignore currently binding Ninth Circuit precedent when ruling upon the PI Motion. Nevertheless, Perfect 10 must raise this issue in its PI Motion in order to preserve its right to seek a reconsideration of the server test before the Ninth Circuit. Second, Perfect 10's request to reconsider the server test is explicitly based upon new evidence that was not before this Court or the Ninth Circuit in connection with Perfect 10's initial preliminary injunction motion. See Memo at 24-25. For this reason as well, Google's assertion that Perfect 10's request to reconsider the server test establishes that the PI Motion was brought in bad faith and should be stricken has no basis whatsoever, and fails to provide any grounds for this Court to grant the Application.5
5

In one of its many irrelevant attacks on Perfect 10, Google criticizes Perfect 10 and accuses it of "forum-shopping," for suing Google in Canada. However, Google raised the following affirmative defense in its Answer to the Second Amended Complaint (Docket No. 324): NINETEENTH AFFIRMATIVE DEFENSE Plaintiff's claims for damages, including for disgorgement of Google's alleged profits, attributable to sales or other activities outside the United States are barred by reason of the Copyright Act's territorial limitations and by the lack of subject matter jurisdiction over such extra-territorial claims in proceedings under the U.S. Copyright Act.
18 Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction

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VIII. JUDGE HILLMAN'S RECENT RULING IN CONNECTION WITH PERFECT 10'S SANCTIONS MOTION FURTHER COMPELS THIS COURT TO DENY THE APPLICATION. Finally, this Court may not stay the PI Motion until it rules upon Google's three DMCA Motions, because these motions are not yet ripe for adjudication. After filing its oppositions to Google's DMCA Motions, Perfect 10 learned that Google had failed to produce thousands of documents that were relevant to these three motions. Accordingly, on November 29, 2009, Perfect 10 filed a Motion for Evidentiary and Other Sanctions against Google (Docket No. 617 et seq.), which was referred by this Court for hearing before Magistrate Judge Hillman (the "Sanctions Motion"). In an Order dated January 27, 2010, Magistrate Judge Hillman ruled that "the court may ultimately decide that the documents sought could be material to Perfect 10's opposition to the pending Motions for Summary Judgment." (See Order dated January 27, 2010; Docket No. 759.) Since then, however, Google has stonewalled the meet-and-confer process which Magistrate Judge Hillman ordered the parties to engage in so that Perfect 10 could obtain the needed documents. See emails attached as Exhibit 1 to the Declaration of Jeffrey N. Mausner in Opposition to the Application, submitted herewith; see also Docket Nos. 764, 764-2, 756. Because of Google's conduct, it is unclear when the needed documents will be made available to Perfect 10 or when Magistrate Judge Hillman will rule on Perfect 10's Sanctions Motion. Until these issues are resolved, this Court cannot properly adjudicate Google's three DMCA Motions. Under these circumstances, where the DMCA Motions are not yet ripe for determination, Perfect 10's request for preliminary injunction should not be delayed.

19 Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction

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IX.

THE DISCOVERY SOUGHT BY GOOGLE IS NOT NECESSARY FOR THIS COURT TO DETERMINE PERFECT 10'S PRELIMINARY INJUNCTION MOTION. Google also asks this Court for expedited discovery it asserts is necessary to

oppose the PI Motion. Application at 16. The discovery that Google requests, however, relates to details regarding damages, not the issues raised by the PI Motion. Whether or not Google has direct liability for forwarding Perfect 10's confidential DMCA notices containing thousands of P10 Images to chillingeffects.org for publication on the Internet is a legal issue that may be resolved without the need for additional discovery. X. CONCLUSION. For all of the foregoing reasons, Perfect 10 respectfully requests that this Court deny Google's Ex Parte Application in its entirety and allow Perfect 10's Motion for Preliminary Injunction to proceed to a hearing on the merits. Dated: March 9, 2010 LAW OFFICES OF JEFFREY N. MAUSNER

Jeffrey N. Mausner By: __________________________________ Jeffrey N. Mausner Attorney for Plaintiff Perfect 10, Inc.

20 Perfect 10's Response to Google's Ex Parte Re P10's Motion for Preliminary Injunction