Perfect 10 Inc v. Google Inc et al

Filing 838

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 DECLARATION OF JEFFREY N. MAUSNER 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 DECLARATION OF JEFFREY N. MAUSNER RE: PERFECT 10'S MOTION FOR PRELIMINARY INJUNCTION AGAINST GOOGLE 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

Perfect 10's Response to Google, Inc.'s Evidentiary Objections to the Declaration of Jeffrey N. Mausner

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Plaintiff Perfect 10, Inc. ("Perfect 10") hereby responds to Defendant Google Inc.'s ("Google") Evidentiary Objections to the Declaration of Jeffrey N. Mausner In Support of Perfect 10's Motion for Preliminary Injunction Against Google, Docket No. 773, filed on March 3, 2010 (the "Mausner Declaration"), as follows: I. MR. MAUSNER'S STATEMENTS ARE STATEMENTS OF FACT, NOT OPINION. Google's Evidentiary Objections begin with its boilerplate paragraph setting forth general requirements for admissibility of evidence, which Google admits may not apply to the Mausner Declaration. Google then offers several unfounded specific objections to the Mausner Declaration, all of which have no merit. Google objects to Paragraphs 2-13 and Exhs. A & AA of the Mausner Declaration as "irrelevant" because Mr. Mausner allegedly is expressing his "personal opinions." Evidentiary Objections at 1. In fact, Paragraphs 2-13 of the Mausner Declaration express no opinion at all. They merely set forth, attach and authenticate correspondence between Perfect 10 and Google regarding Google's lack of cooperation in setting up a Notification System as ordered by the Court. The only statement that possibly may be considered opinion, but is also a statement of fact, is Mr. Mausner's statement that "Google's willingness to cooperate to develop such a system extended no further than its Preliminary Injunction brief." Mausner Decl., ¶4, page 1, lines 26-27. Even if the Court strikes this statement, it does not alter the remaining facts and correspondence about which Mr. Mausner testifies in Paragraphs 2-13 of the Mausner Declaration. II. MR. MAUSNER'S STATEMENTS ARE RELEVANT. Mr. Mausner's statements and authenticated exhibits are also relevant. The fact that Google could have, but failed to, set up a notification system that would have streamlined and expedited the removal of infringing material from its search results is relevant to the issue of whether Google has taken simple measures to -1Perfect 10's Response to Google, Inc.'s Evidentiary Objections to the Declaration of Jeffrey N. Mausner

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reduce the damage to the copyrighted works of Perfect 10 and other copyright owners. Perfect 10, Inc. v. Amazon.com, Inc. ,508 F.3d 1146, 1172 (9th Cir. 2007) ("Applying our test, Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10's copyrighted works, and failed to take such steps."). Mr. Mausner's testimony establishes that Google failed to set up such a notification system even when it was under an Order from this Court to do so. Google has set up a check-the-box type notification tool to report offensive images, but not one to report infringing images. Declaration of Jeffrey N. Mausner, Docket No. 571, ¶8, Exh. EE. The details of Google's refusal or failure to assist in creating a notification system are also relevant to determining whether Google has "adopted and reasonably implemented ... a policy that provides for the termination of ... repeat infringers." 17. U.S.C §512(i). If Google had set up such a notification tool, Google would now have computerized records of thousands of images allegedly infringed by websites from which it copies images, many of which are AdSense or Blogger affiliates. This tool would have given Google a straightforward method of keeping track of, and terminating, repeat infringers. It also would have given Google the ability to stop copying images for its Image Search results from known infringers. Google's failure to implement such a notification tool or maintain anything more than a fragmentary DMCA log is directly relevant to Google's eligibility for safe harbor under the DMCA. III. GOOGLE'S OTHER OBJECTIONS ARE NEGLIGIBLE AND DO NOT ALTER THE MAUSNER DECLARATION OR THE UNDERLYING FACTS. Google's remaining objections to the Mausner Declaration are without merit. First, Google's objections that certain statements of Mr. Mausner are argumentative and/or irrelevant, including Paragraphs 14-15, 21, 28 and 30 of the -2Perfect 10's Response to Google, Inc.'s Evidentiary Objections to the Declaration of Jeffrey N. Mausner

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Mausner Declaration, are unsupported and negligible. Second, Google's objections to Paragraphs 14-18, 21, 28-30 and 32-35 of the Mausner Declaration are incorrect. Mr. Mausner's statements in these paragraphs are based upon his personal knowledge, establish a sufficient foundation, are not speculative, and do not constitute improper opinion testimony. For example, in regard to paragraph 14, after litigating this case for over 5 years, Mr. Mausner has personal knowledge that the following statement made by Google in an email to him is not correct: "[T]here is nothing that Google can do to remove the offending content without the cooperation of the site administrator. . . . Only an administrator can, by including code that blocks our robots or placing a request with us, prevent his/her page from being listed. Without administrator cooperation we cannot exclude material available on the Internet from our index." Google itself does not contest the fact that its statement is incorrect. Third, Google's objections to the exhibits to the Mausner Declaration lack substance. The correspondence and letters attached as exhibits ­ all of which are authenticated by Mr. Mausner ­ lay a foundation for facts relevant to the Motion for Preliminary Injunction: Google's position on certain matters or Google's action or lack of action on certain matters. For example, Paragraph 17 of the Mausner Declaration authenticates a letter establishing Google's position that it does not have to remove or disable access to usenet sites (pay sites) upon receiving notice of infringement. Paragraph 28 of the Mausner Declaration establishes that Google stated that it will continue to publicize Perfect 10's DMCA notices on Chillingeffects.org. In short, Google's assertion that certain language in the Mausner Declaration may be argumentative does not alter the underlying facts evidenced by the correspondence that Mr. Mausner authenticates in his declaration, or their relevance. Fourth, Exhibits C, D, E, and G to the Mausner Declaration, to which Google also objects, are admissible under the standard for seeking a preliminary -3Perfect 10's Response to Google, Inc.'s Evidentiary Objections to the Declaration of Jeffrey N. Mausner

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injunction. In particular, portions of depositions in the consolidated Google/Amazon case, in which Google's attorney was present (Exhibits E and G), are clearly admissible. Exhibit E, in fact, is from the deposition of Google's own expert in this case. A portion of the deposition taken in the Microsoft case (Exhibit D) is also admissible. Exhibit C is also admissible under the less formal standard for seeking a preliminary injunction, and it shows that admissible evidence could be introduced at trial; furthermore, the evidence in Exhibit C is to some extent duplicative of clearly admissible evidence set forth in the Declarations of Margaret Jane Eden (Docket No. 778), Les Schwartz (Docket No. 779), Dean Hoffman (Docket No. 776), and C.J. Newton (Docket No. 777).1 IV. CONCLUSION. For the foregoing reasons, this Court should consider the entire Mausner Declaration and the exhibits authenticated thereby, in ruling on Perfect 10's Motion for Preliminary Injunction. Dated: March 28, 2010 Respectfully submitted, LAW OFFICES OF JEFFREY N. MAUSNER

Jeffrey N. Mausner By: __________________________________ Jeffrey N. Mausner Attorney for Plaintiff Perfect 10, Inc.
Even if this Court has questions about the admissibility of portions of the Mausner Declaration, it should still consider the Declaration 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: [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). -4Perfect 10's Response to Google, Inc.'s Evidentiary Objections to the Declaration of Jeffrey N. Mausner
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