Perfect 10 Inc v. Google Inc et al

Filing 839

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 MELANIE POBLETE 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 MELANIE POBLETE RE: PERFECT 10'S MOTION FOR PRELIMINARY INJUNCTION AGAINST GOOGLE Date: April 5, 2010 Time: 10:00 a.m. Place: Courtroom 14, Courtroom of Judge 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 Melanie Poblete

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Plaintiff Perfect 10, Inc. ("Perfect 10") hereby responds to Defendant Google Inc.'s ("Google") Evidentiary Objections to the Declaration of Melanie Poblete submitted by Perfect 10 in connection with Perfect 10's Motion for Preliminary Injunction Against Defendant Google, Inc. (the "Poblete Declaration") (Docket 775) as follows: I. PERFECT 10'S "SAMPLE" OF IMAGES FROM ITS DMCA NOTICES IS RELEVANT TO CLAIMS IN PERFECT 10'S MOTION FOR PRELIMINARY INJUNCTION. Google's primary objection to the Poblete Declaration is that the declaration is irrelevant because it discusses the "Sample" of Perfect 10 images included in Exhibit 9 to the Declaration of Dr. Norman Zada, submitted by Perfect 10 in support of Perfect 10's Motion for Preliminary Injunction Against Defendant Google, Inc. (the "Zada Declaration"), Docket 790. In order to simplify the motion and save time and the Court's resources, Perfect 10 selected a sample of 12 images from its full image library (the "Sample"). The Court has favored a sampling approach with regard to Perfect 10's images. See December 2, 2008 Order Setting Status Conference Re Case Management, Perfect 10 v. Microsoft, Inc., Case No. 07-5156 AHM (SHx), Docket No. 51. However, Perfect 10 also submitted evidence of copyrights for all of the images in all of Perfect 10's magazines and for its website, perfect10.com. The United States Copyright Registration Certificates submitted by Perfect 10 cover tens of thousands of images, and are prima facie evidence of ownership of the copyrights. See, e.g., Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp. 2d 1146, 1166-67 (C.D. Cal. 2002): [T]he Court finds that Perfect 10 is entitled to treat the copyright registrations as prima facie evidence that the individual pictures are copyrighted. ... The Court concludes this is sufficient to raise the presumption of validity, particularly where Cybernet has made no -1Perfect 10's Response to Google, Inc.'s Evidentiary Objections to the Declaration of Melanie Poblete

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sustained argument to the contrary. Perfect 10 has shown a strong likelihood that it owns a valid copyright in the identified images. See also Perfect 10 v. Google, Inc., 416 F.Supp.2d 828, 832 (C.D.Cal. 2006) ("P10 has obtained registered copyrights for its photographs from the United States Copyright Office."), aff'd in part and reversed in part on other grounds, Perfect 10, Inc. v. Google.com, Inc., 508 F.3d 1146 (9th Cir. 2007); Michaels v. Internet Entertainment Group, Inc., 5 F.Supp. 2d 823, 830 (1998) ("Registration certificates are prima facie evidence that the plaintiff owns a valid copyright. 17 U.S.C. § 410(c). Presentation of the certificates shifts the burden to the defendants to overcome the presumption of validity.") Exhibit 9 to the Zada Declaration (Docket 790, a disk), contains the Copyright Registration Certificates from the United States Copyright Office and deposit materials for the 12 images in The Sample. Eleven images are contained in 10 issues of Perfect 10 Magazine and the image of Amy Weber is contained in a Group Registration. Both the deposit materials for those registrations and the copyright certificates for those registrations are contained in Exhibit 9, in the folder labeled "The Sample." The deposit materials for 11 of the sample images consisted of 10 complete copies of Perfect 10 Magazine, which are contained in Exhibit 9, and which covered hundreds of other P10 Images, many of which were attached to the Zada Declaration as having been infringed. Google has not contested the copyrights for those 12 sample images, or for any of the other hundreds of images in those issues of the magazine. Exhibit 9 to the Zada Declaration also contained other Copyright Registration Certificates from the United States Copyright Office in "The Sample" folder in a sub-folder labeled "Other Copyright Certificates." Those other certificates were for all of the other issues of Perfect 10 Magazine, as well as the last registration of Perfect 10's website, and at least 50 other registrations. Most if not all of the P10 Images mentioned in the Zada Declaration are covered by -2Perfect 10's Response to Google, Inc.'s Evidentiary Objections to the Declaration of Melanie Poblete

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those copyrights. Furthermore, Exhibit 86 to the Zada Reply Declaration (a hard drive) contains a folder entitled "Deposit Materials." That folder contains true and correct copies of all Deposit Materials for all Perfect 10 Magazine issues, and for the last registration of the perfect10.com website, that were not previously included in Exhibit 9 to the Zada Declaration. See Zada Reply Declaration (Docket No. 826) ¶6. See also Mausner Reply Declaration (Docket No. 820), ¶3: Contained on Exhibit 9 to the Declaration of Dr. Norman Zada in support of Perfect 10's PI Motion (Docket No. 790) (the "Zada Declaration"), and on the hard drive submitted as Exhibit 86 with the Reply Declaration of Dr. Norman Zada in support of Perfect 10's PI Motion, submitted concurrently herewith, are true and correct copies of all United States Copyright Registration Certificates and all deposit materials for all Perfect 10 Magazine issues, and for the last registration of the perfect10.com website. I submitted all of these copyright applications to the United States Copyright Office, and the Copyright Office granted the applications and issued those Copyright Registration Certificates. The statements made in the Poblete Declaration regarding the Sample images are relevant and are a part of the proof regarding Perfect 10's ownership of the copyrights. For example, the Poblete declaration states which Copyright Registration Certificate covers each of the images in the Sample. Ms. Poblete's declaration is meant to make it easier for the Court to see that Perfect 10 owns the copyright for each of the images in the sample. For example, she states: 4. Page 1 of Exhibit 28 to the Zada Declaration contains an image of Anna Tarson that appears in Perfect 10 Magazine, Vol. 5, No. 2, and has been registered at the Copyright Office under Registration No. TX 5-452-254. That image also appears on Page 2 -3Perfect 10's Response to Google, Inc.'s Evidentiary Objections to the Declaration of Melanie Poblete

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of Exhibit 64. 5. Page 3 of Exhibit 45 to the Zada Declaration contains an image of Ashley Degenford that appears in Perfect 10 Magazine, Vol. 1, No. 5, and has been registered at the Copyright Office under Registration No. TX 4-556-475. This image also appears on Pages 1-2 of Exhibit 45. Etc. Google's objections to this is merely frivolous boilerplate, consistent with its policy of objecting to everything and making everything as difficult as possible. Google has submitted no evidence to refute the testimony of Ms. Poblete, Dr. Zada, Mr. Mausner, or the Copyright Certificates themselves, that Perfect 10's copyrights are valid. II. THE POBLETE DECLARATION IS OTHERWISE ADMISSIBLE. Google's remaining objections to the Poblete Declaration lack merit. The Poblete Declaration deals mainly with the registration certificates and deposit materials for the 12 sample images referenced in the Zada Declaration. Ms. Poblete is an experienced legal assistant with extensive knowledge of the images, copyright registrations, and deposit materials relevant to Perfect 10's copyright infringement claims. She personally examined all the images and deposit materials referenced in her declaration. Poblete Decl. ¶¶1-15. Therefore, Ms. Poblete's testimony regarding the images, certificates, and deposit materials is based upon her personal knowledge. Furthermore, based upon her legal experience, Ms. Poblete unquestionably is qualified to examine Copyright Office materials and testify about the documents she reviewed. Finally, the documents referenced in the Poblete Declaration were provided to the Court and all parties as exhibits to the PI Motion. III. PERRECT 10'S RESPONSES TO GOOGLE'S SPECIFIC OBJECTIONS. As explained below, this Court should disregard Google's specific -4Perfect 10's Response to Google, Inc.'s Evidentiary Objections to the Declaration of Melanie Poblete

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objections to the Poblete Declaration: Proffered Evidence & Objection 1. Poblete Decl., at ¶ 2 ("I have verified that Perfect 10 has in its deposit material for copyright registrations filed with the U.S. Copyright Office, over 45,000 unique images.") Perfect 10's Response

As explained above, Ms. Poblete's statement is based upon her personal knowledge and has sufficient foundation, based upon her years of working as a legal assistant on this lawsuit and with Perfect 10's copyrights. Additionally, Google Fed. R. Evid. 401, 403, 602, 1002 implies that the deposit materials have not been submitted. However, the The statement is irrelevant, conclusory, lacks foundation, and does deposit materials have been submitted in Exhibit 9 (the disk) and Exhibit 86 not appear to be within the witness's (the hard drive), so there is no basis personal knowledge. The statement for this objection. also violates the Best Evidence Rule, because copies of the deposit material for P10's copyright registrations (which P10 claims to have records of) are the best evidence of the contents of those deposit materials. IV. CONCLUSION. For the foregoing reasons, this Court should disregard Google's evidentiary objections and consider the Declaration of Melanie Poblete in its entirety. 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.

Perfect 10's Response to Google, Inc.'s Evidentiary Objections to the Declaration of Melanie Poblete

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