Perfect 10 Inc v. Google Inc et al

Filing 835

RESPONSE IN SUPPORT of MOTION for Preliminary Injunction Against Defendant Google Inc. #772 - RESPONSE OF PLAINTIFF PERFECT 10, INC. TO DEFENDANT GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATIONS OF SEAN CHUMURA, BENNETT MCPHATTER AND DAVID O'CONNOR RE: PERFECT 10'S MOTION FOR PRELIMINARY INJUNCTION AGAINST GOOGLE 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 91367-3640 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, Plaintiff, v. GOOGLE, INC., a corporation; and DOES 1 through 100, inclusive, Defendant. Case No. CV 04-9484 AHM (SHx) Before Judge A. Howard Matz RESPONSE OF PLAINTIFF PERFECT 10, INC. TO DEFENDANT GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATIONS OF SEAN CHUMURA, BENNETT MCPHATTER AND DAVID O'CONNOR RE: PERFECT 10'S MOTION FOR PRELIMINARY INJUNCTION AGAINST GOOGLE [Declaration Of Jeffrey N. Mausner In Support Of Perfect 10's Responses To Google's Evidentiary Objections Re Perfect 10's Motion For Preliminary Injunction Against Google, Filed Concurrently Herewith] 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
Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declarations of Sean Chumura, Bennett McPhatter and David O'Connor

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Plaintiff Perfect 10, Inc. ("Perfect 10") hereby responds to Defendant Google Inc.'s ("Google") Evidentiary Objections to the following three declarations submitted by Perfect 10 on March 3, 2010 in connection with Perfect 10's Motion for Preliminary Injunction against Google (Docket No. 791) (the "PI Motion"): 1. 2. 3. I. Declaration of Sean Chumura (Docket No. 780) (the "Chumura Declaration of Bennett McPhatter (Docket No. 782) (the Declaration of David O'Connor (Docket No. 781) (the "O'Connor Declaration"); "McPhatter Declaration"); and Declaration").1 GOOGLE IMPROPERLY ASSERTS THAT MCPHATTER AND O'CONNOR WERE NOT DISCLOSED. The Chumura, McPhatter and O'Connor Declarations are identical to earlier declarations of those same three witnesses submitted by Perfect 10 on August 9, 2009 in connection with Perfect 10's opposition to Google's Motions for Summary Judgment Re DMCA Safe Harbor for its Web and Image Search, Blogger Service, and Caching Feature (Docket Nos. 479-481) (the "DMCA Motions"). Google again raises almost the same objections to the Chumura, McPhatter and O'Connor Declarations as it did to the earlier versions of these declarations. Once again, these objections are baseless. First, Google once again raises the same mistaken objection to the McPhatter and O'Connor Declarations. Google asserts that this Court should strike both declarations because Perfect 10 did not disclose Mr. McPhatter or Mr. O'Connor in discovery as a percipient witness or as an expert witness. Google's separate Evidentiary Objections to the Chumura Declaration, the McPhatter Declaration, and the O'Connor Declaration, all filed on March 16, 2010 (collectively, the "Evidentiary Objections"), are Docket Nos. 811, 812, and 813, respectively. 1
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Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declarations of Sean Chumura, Bennett McPhatter and David O'Connor

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Instead, Google contends that Perfect 10 "sprung" these declarations on Google without allowing Google the opportunity to depose Mr. McPhatter or Mr. O'Connor. See Evidentiary Objections at 1. 2 This objection is even more unreasonable now, since Google has known of these declarants for months. Google's objection that Perfect 10 did not timely disclose Mr. McPhatter or Mr. O'Connor never had any basis, because Perfect 10 did not know of these declarants until just before or just after Google filed its DMCA Motions on July 2, 2009. In particular, counsel for Perfect 10, Jeffrey N. Mausner ("Mausner"), first knew about David O'Connor on or about June 10, 2009, and first spoke with him on or about June 11, 2009. Mr. O'Connor's declaration was obtained on June 16, 2009 and provided to Google on July 6, 2009. (Docket Nos. 443, 480.) Mausner first knew about and spoke with Bennett McPhatter on or about July 5, 2009. Mr. McPhatter's declaration was obtained on July 9, 2009 and provided to Google on August 9, 2009. (Docket No. 481.) See Mausner Evidentiary Objections Decl. ¶4.3 Therefore, Perfect 10 timely disclosed these witnesses to Google by providing Google with their declarations, shortly after Perfect 10 became aware of the witnesses. 4 Google has had more than six months to depose Mr. Google does not raise this objection to the Chumura Declaration. Mr. Chumura was disclosed in Perfect 10's August 2008 updated Rule 26 disclosures, but Google has not attempted to depose him. Declaration of Jeffrey N. Mausner in Support of Perfect 10's Responses to Google's Evidentiary Objections Re Perfect 10's Motion for Preliminary Injunction, filed concurrently herewith ("Mausner Evidentiary Objections Decl."), ¶5. 3 See 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, filed on October 12, 2009 (Docket No. 565). 4 Furthermore, the McPhatter and O'Connor Declarations rebut claims made by Google's witness, Shantal Rands Poovala, that Perfect 10's notices did not provide sufficient information for Google to locate the infringing material or were otherwise deficient. Mr. McPhatter and Mr. O'Connor therefore fall within the exception for disclosure of impeachment witnesses set forth in Rule 26(a)(1)(A)(i) of the Federal Rules of Civil Procedure. 2
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Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declarations of Sean Chumura, Bennett McPhatter and David O'Connor

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O'Connor and Mr. McPhatter or to propound discovery regarding these witnesses, but has failed to do so. Consequently, Google has no basis for its objections. II. GOOGLE'S OBJECTION THAT PERFECT 10 HAS NOT DESIGNATED MCPHATTER AND O'CONNOR AS EXPERT WITNESSES IS PREMATURE AND INAPPLICABLE. Google also objects that Perfect 10 did not timely disclose Mr. McPhatter and Mr. O'Connor as expert witnesses. See Evidentiary Objections at 1, 3-4. This objection fails as well. A. Rule 26 Allows The Disclosure Of Expert Testimony Up Until 90 Days Before Trial. Rule 26(2)(C) of the Federal Rules of Civil Procedure only requires that a party designate its expert witnesses within 90 days of trial, unless otherwise ordered by the court. It states, in pertinent part: (C) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosure must be made: (i) at least 90 days before the date set for trial or for the case to be ready for trial. Here, no trial date has been set for this action, and the Court has not entered an order setting a date for the disclosure of expert witnesses. Accordingly, the time by which Perfect 10 must designate Mr. Chumura, Mr. McPhatter, or Mr. O'Connor as experts has yet to arrive. Moreover, this Court denied a similar motion brought by defendant A9.com, Inc. to strike a different declaration of Sean Chumura filed by Perfect 10 in Perfect 10 v. Amazon.com, Inc., et al., on the ground that Mr. Chumura allegedly had not been disclosed as an expert at that time. See Perfect 10 v. Amazon.com. Inc., et al., Case No. CV 05-4753, Minute Order of October 6, 3

Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declarations of Sean Chumura, Bennett McPhatter and David O'Connor

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2008 (Docket No. 169).5 Furthermore, Google has not disclosed its expert witnesses. For these reasons, the Court should deny Google's request to strike the McPhatter and O'Connor Declarations. III. THE CHUMURA, MCPHATTER, AND O'CONNOR DECLARATIONS ARE VERY RELEVANT TO THE CASE AND DIRECTLY CONTRADICT STATEMENTS MADE BY GOOGLE. Google further asserts that the Chumura, McPhatter, and O'Connor Declarations are irrelevant. According to Google, the personal opinions of these declarants regarding methods for processing DMCA notices "have no bearing on [Perfect 10's] probability of success on the merits." Evidentiary Objections at 4. As explained below, Google is incorrect. The Chumura, McPhatter, and O'Connor Declarations are relevant for multiple reasons. A. The Declarations Conclusively Prove That Perfect 10's Notices Allowed Google To Locate The Infringing Material. Exhibit 1 to the Chumura, McPhatter, and O'Connor Declarations contains examples of various types of DMCA notices sent by Perfect 10 to Google that are similar or identical to the sample notices submitted by Perfect 10 in connection with its PI Motion. See Declaration of Dr. Norman Zada In Support of Perfect 10's Motion for Preliminary Injunction Against Google, Inc. (Docket Nos. 790, 795-797) (the "Zada Declaration"), Exhs. 47, 48, 31. 32. 50, 39, 15, 11. For example, Page 1 of Exhibit 1 to the Chumura, McPhatter and O'Connor Declarations is similar to Exhibit 47 to the Zada Declaration in Support of Preliminary Injunction. Page 2 of Exhibit 1 is the same style of notice as Exhibit 48 to the Zada Declaration. Page 3 of Exhibit 1 is the same style of notice as the notices that appear on Page 3 of Exhibit 31 to the Zada The Court only excluded small portions of Mr. Chumura's declaration on other unrelated grounds. 4
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Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declarations of Sean Chumura, Bennett McPhatter and David O'Connor

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Declaration and Page 3 of Exhibit 32 to the Zada Declaration. Page 5 of Exhibit 1 is the same style of notice that appears on Page 1 of Exhibit 50 to the Zada Declaration. Page 4 of Exhibit 1 is similar to Perfect 10's Web Search Group C Adobe-style notices. Page 6 of Exhibit 1 was contained in Perfect 10's July 2, 2007 DMCA notice and identifies an infringing blogger.com URL. It is the same image that appears on Page 3 of Exhibit 39 to the Zada Declaration. Page 7 of Exhibit 1 is similar to Perfect 10's blogspot.com notices that were created by following Google's Web Search instructions. Page 11 of Exhibit 1 to the McPhatter and O'Connor Declarations is an example of Perfect 10's Group B notices, and is similar to the notice attached as Exhibit 15 to the Zada Declaration. Page 8 of Exhibit 1 to the McPhatter and O'Connor Declarations is the same as the Sample Notice which appears on Page 4 of Exhibit 11 to the Zada Declaration. Messrs. Chumura, McPhatter, and O'Connor all testify that each and every one of Perfect 10's DMCA notices attached as part of Exhibit 1 to their respective declarations provided Google with sufficient information to locate the infringing material. See Chumura Decl. ¶¶3-5; McPhatter Decl. ¶¶3-6; O'Connor Decl. ¶¶3-6. This testimony is relevant because it supports Perfect 10's claims that Perfect 10's DMCA notices were compliant and it undermines Google's assertion that it is entitled to a DMCA safe harbor affirmative defense that bars Perfect 10 from obtaining injunctive relief. B. The Chumura, McPhatter, and O'Connor Declarations Refute The Testimony Of Shantal Rands Poovala. The Chumura, McPhatter, and O'Connor Declarations are relevant for the additional reason that they refute the testimony of Shantal Rands Poovala, the key witness on whom Google relies in opposing Perfect 10's PI Motion. Google's Opposition to the PI Motion largely depends on Ms. Poovala's declaration, in which she claims that all of Perfect 10's DMCA notices were 5

Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declarations of Sean Chumura, Bennett McPhatter and David O'Connor

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deficient. See Declaration of Shantal Rands Poovala in support of Defendant Google's Motions for Summary Judgment Re: Google's Entitlement to Safe Harbor Under 17 U.S.C.§ 512 (the "Poovala Declaration"). (Google submitted the Poovala Declaration as part of Exhibit A to the Declaration of Rachel Herrick Kassabian in opposition to the PI Motion. Ms. Kassabian's declaration also improperly included every pleading that Google had previously submitted in connection with the three DMCA Motions Google filed in July 2009). Ms. Poovala admittedly has no technical background, however, and even refused to answer questions in her deposition regarding the sufficiency of DMCA notices, claiming that "I'm not an engineer." See, e.g., Poovala Deposition, page 57 lines 18-21, page 58 lines 8-10, page 60 lines 2-4, which is contained in Exhibit AA to Docket No. 588 (filed under seal), entitled Exhibits AA and BB to the Declaration of Jeffrey N. Mausner in Support of Perfect 10'S Evidentiary Objections and Response to Google's Evidentiary Objections, and included in Exhibit R, a disk, to the Reply Declaration of Jeffrey N. Mausner in Support of Perfect 10's Motion for Preliminary Injunction, Docket No. 827). Ms. Poovala makes various extremely important, completely unsupported, and wholly incorrect claims in her declaration, including the assertion that "[t]he Group C Notices also failed to identify the location of any allegedly infringing material." Poovala Decl. ¶51. The Chumura, McPhatter, and O'Connor Declarations completely refute such testimony. For example, Mr. Chumura explains in detail why each of Perfect 10's sample notices included in Exhibit 1 to the Chumura Declaration are sufficient to locate the infringing material. Chumura Decl. ¶¶4-5. Then, Mr. Chumura explains how URLs with ellipses can still be used to find full URLs. Id. ¶6. Next, Mr. Chumura testifies that post URLs are not present on blogger.com web pages. Mr. Chumura's testimony demonstrates that Ms. Poovala's claim that the copyright holder must provide a post URL to identify infringing blogger.com 6

Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declarations of Sean Chumura, Bennett McPhatter and David O'Connor

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web pages makes no sense. The testimony further establishes that Google's insistence that a copyright holder provide a post URL when none exists is just another example of Google's unreasonable restrictions regarding the content of DMCA notices. Such restrictions are not compatible with the DMCA.6 Compare Poovala Decl. ¶93 with Chumura Decl. ¶¶6-7. Mr. Chumura further testifies that the URL on the blogger.com web page that Perfect 10 provided was sufficient to locate the infringing material. Chumura Decl. ¶7. Finally, Mr. Chumura explains why Google's separate instructions for Image Search are generally not "necessary or helpful in the vast majority of situations." Id. ¶8. He also explains why Perfect 10's Web Search notices were sufficient to remove images from Google's Image Search results. Id. ¶8. The testimony of both Mr. McPhatter and Mr. O'Connor likewise confirms the sufficiency of Perfect 10's sample notices set forth in Exhibit 1 to their declarations. See McPhatter Decl. ¶¶3-6; O'Connor Decl. ¶¶3-6. Accordingly, because the testimony of Messrs. Chumura, McPhatter, and O'Connor directly refutes Ms. Poovala's testimony regarding the alleged deficiency of Perfect 10's notices, the Chumura, McPhatter, and O'Connor Declarations are clearly relevant to the issues raised by Perfect 10's PI Motion. C. Google Fails To Provide Any Technical Declarations To Refute The Chumura, McPhatter, or O'Connor Declarations. Google fails to provide a single technical declaration in connection with its Opposition to Perfect 10's PI Motion that contradicts the testimony given by Messrs. Chumura, McPhatter, or O'Connor. If it was possible to contradict the Section 512(c)(3) of the DMCA requires either: (i) identification of the reference or link, to material or activity claimed to be infringing, which Perfect 10 provided in its Group A, B, and C style notices; or (ii) in the case of hosting or AdSense, identification of the material that is claimed to be infringing or the subject of infringing activity, which Perfect 10 also provided when it submitted a copy of the infringing web page to Google with the infringing P10 Images on that page clearly identified. Zada Decl. ¶¶25-26, 49-84, 93, Exhs. 14-15, 33-63. 68. There is no requirement in the DMCA that the copyright holder specifically provide a post URL, particularly when none exists. 7
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Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declarations of Sean Chumura, Bennett McPhatter and David O'Connor

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Chumura, McPhatter and O'Connor Declarations, it should have been easy for Google, a technological powerhouse, to provide declarations to refute the testimony of these three witnesses. Instead, Google has provided nothing. In fact, Google has not even explained why any of the copies of infringing web pages contained in Exhibit 1 to the Chumura, McPhatter, and O'Connor Declarations were not sufficient for Google to locate the infringing material. Google also does not provide any technical declarations to contest the fact that URLs could have been readily extracted from Perfect 10's Adobe-style notices, at the rate of at least 300 per hour. IV. MESSRS. CHUMURA, MCPHATTER, AND O'CONNOR HAVE SUFFICIENT EXPERTISE TO TESTIFY ABOUT THE MATTERS IN THEIR DECLARATIONS. Google asserts, without further explanation or discussion, that Messrs. Chumura, McPhatter, and O'Connor appear to lack the necessary qualifications to support their testimony. Evidentiary Objections to McPhatter and O'Connor Declarations at 3, 4; Evidentiary Objections to Chumura Declaration at 3, 5. Google is mistaken as to each of these three witnesses. First, Mr. McPhatter and Mr. O'Connor are computer experts and own a company called Visual Analytics, which offers the ability to search databases, documents, e-mail archives and web sites all at once. McPhatter Decl. ¶1; O'Connor Decl. ¶1; Mausner Evidentiary Objections Decl. Exh. DD. Second, both Mr. McPhatter and Mr. O'Connor are experts in the area of search and if asked to testify at trial, they will be called as experts as to the sufficiency of Perfect 10's notices. Mr. McPhatter has over "12 years of experience developing large scale distributed systems, federated search, and information sharing technologies" and created "DIG®", the "standard information sharing application at a number of State, local and city law enforcement agencies." McPhatter Decl., ¶¶1, 2 (emphasis added). Mr. 8

Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declarations of Sean Chumura, Bennett McPhatter and David O'Connor

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O'Connor is the co-founder, President, and Chief Technical Officer of Visual Analytics, and has a B.S. in Computer Science and over 15 years experience developing large scale distributed systems, data mining, visualization, and artificial intelligence technologies. O'Connor Decl. ¶¶1, 2. Third, both Mr. McPhatter and Mr. O'Connor testify that they have "sufficient expertise in computer science and the Internet to determine whether the various portions of notices attached as Exhibit 1 would provide a search engine such as Google with enough information to locate the infringing images(s) or link(s)." McPhatter Decl. ¶3; O'Connor Decl. ¶3. Fourth, Mr. Chumura has sufficient expertise and qualifications to provide the testimony in his declaration. Mr. Chumura has demonstrated that expertise by writing a program which allowed Perfect 10 to provide to Google, in Perfect 10's DMCA notices, a copy of each infringing Google P10 thumbnail, along with the Google Image URL, the URL of the web page containing the image, and the Google thumbnail URL for that image. Chumura Decl. ¶3, Exh. 1. Moreover, Mr. Chumura has "spent over a thousand hours using and analyzing how the Google search engine functions" and has done much research and study regarding search engine operation. Chumura Decl. ¶¶1-3. For all of these reasons, the Chumura Declaration establishes that Mr. Chumura has a level of knowledge far beyond what is needed to testify that Perfect 10's notices were sufficient to enable Google to locate the infringing material identified by P10.7 Even if this Court has questions about the admissibility of portions of the Chumura, McPhatter, or O'Connor Declarations, it should still consider these declarations when ruling upon the PI Motion. Because a preliminary injunction is not a trial, both appellate courts and leading treatises have stated that the rules of evidence may be relaxed. See, e.g., Sierra Club, Lone Star Chapter v. FDIC, 992 F.2d 545, 551 (5th Cir.1993) ("at the preliminary injunction stage, the procedures in the district court are less formal, and the district court may rely on otherwise inadmissible evidence, including hearsay evidence"). As a leading treatise has noted:
Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declarations of Sean Chumura, Bennett McPhatter and David O'Connor
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In contrast to Messrs. Chumura, McPhatter, and O'Connor, Ms. Poovala has no technical expertise at all. In her deposition, Ms. Poovala even refused to answer questions as to whether notices were sufficient, stating that she is "not an engineer." See Docket No. 587 (filed under seal), Perfect 10's Evidentiary Objections To: Declaration And Rebuttal Declaration Of Shantal Rands Poovala In Support Of Google's Motions For Summary Judgment Re Google's Entitlement To Safe Harbor, Sections I-III, which is also contained on Exhibit R, a disk, to the Reply Declaration of Jeffrey N. Mausner in Support of Perfect 10's Motion for Preliminary Injunction, Docket No. 827. Under these circumstances, there is no basis whatsoever for Google to argue that the Chumura, McPhatter, and O'Connor Declarations should be stricken, while the Poovala Declaration should not. VI. CONCLUSION. For all of the foregoing reasons, this Court should disregard Google's objections to the Chumura, McPhatter, and O'Connor Declarations, and should consider these Declarations in their entirety in connection with Perfect 10's Motion for Preliminary Injunction against Google. Dated: March 24, 2010 Respectfully submitted, Law Offices of Jeffrey N. Mausner

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

[I]nasmuch as the grant of a preliminary injunction is discretionary, the trial court should be allowed to give even inadmissible evidence some weight when it is thought advisable to do so in order to serve the primary purpose of preventing irreparable harm before a trial can be had. 11A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil § 2949, at 216-17 (2d ed.1995).
Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declarations of Sean Chumura, Bennett McPhatter and David O'Connor

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