Perfect 10 Inc v. Google Inc et al

Filing 840

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 DR. NORMAN ZADA IN SUPPORT OF 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 DR. NORMAN ZADA IN SUPPORT OF 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

Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction

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TABLE OF CONTENTS INCORRECT OBJECTIONS THAT THE ZADA DECLARATION LACKS PERSONAL KNOWLEDGE, IS SPECULATIVE, AND LACKS FOUNDATION................................................................................. 2 INCORRECT OBJECTIONS THAT THE ZADA DECLARATION CONSTITUTES IMPROPER OPINION TESTIMONY AND IS ARGUMENTATIVE. ..................................................................................... 4 INCORRECT OBJECTIONS REGARDING PERFECT 10'S DMCA NOTICES. .......................................................................................... 5 INCORRECT OBJECTIONS REGARDING THE "SAMPLE" SUBMITTED BY PERFECT 10. ................................................................... 9 INCORRECT OBJECTIONS BASED ON GOOGLE'S CLAIM THAT PERFECT 10 NEVER SENT IT A VALID DMCA NOTICE. ....................................................................................................... 11 INCORRECT OBJECTIONS REGARDING DR. ZADA'S TESTIMONY THAT GOOGLE FAILED TO PROCESS PERFECT 10'S DMCA NOTICES. ............................................................................... 11

VII. INCORRECT OBJECTIONS TO DR. ZADA'S TESTIMONY THAT GOOGLE'S INSTRUCTIONS WERE UNUSABLE, UNNECESSARILY BURDENSOME, OR WERE FOLLOWED BY PERFECT 10. ......................................................................................... 12 VIII. INCORRECT OBJECTIONS TO DR. ZADA'S TESTIMONY REGARDING RAPIDSHARE.COM, GIGANEWS.COM AND THEPIRATEBAY.ORG. ................................................................................. 13 IX. X. XI. INCORRECT OBJECTIONS REGARDING DR. ZADA'S TESTIMONY CONCERNING THE FUNCTIONALITY OF ADOBE PROFESSIONAL SOFTWARE. ................................................... 14 INCORRECT OBJECTIONS TO DR. ZADA'S DESCRIPTIONS OF GOOGLE'S FRAGMENTED LOGS AND GARBLED DMCA DOCUMENTS. ............................................................................................. 15 INCORRECT OBJECTIONS THAT DR. ZADA MISCHARACTERIZED DOCUMENTS. ................................................... 15

XII. INCORRECT OBJECTIONS TO DR. ZADA'S TESTIMONY REGARDING THE INFRINGEMENT OF THOUSANDS OF P10 IMAGES IN GOOGLE'S BLOGGER PROGRAM. ................................... 16 XIII. CONCLUSION. ............................................................................................ 16

i Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction

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TABLE OF AUTHORITIES

Sierra Club, Lone Star Chapter v. FDIC, 992 F.2d 545 (5th Cir.1993) ................... 1

17 U.S.C. §512......................................................................................................... 13 Treatises 11AC. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil § 2949 (2d ed.1995)....................................................................................... 1

ii Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction

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Plaintiff Perfect 10, Inc. ("Perfect 10") hereby responds to Defendant Google Inc.'s ("Google") Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction Against Defendant Google Inc. (Docket No. 797) (the "Zada Declaration" or "Zada Decl."), submitted by Perfect 10 on March 3, 2010 in connection with Perfect 10's Motion for Preliminary Injunction against Google (Docket No. 772) (the "PI Motion"). Google's Evidentiary Objections to the Zada Declaration (Docket No. 816) are set forth in a highly repetitive, 57-page document, in which Google attempts to raise every conceivable objection, whether justified or not. To avoid burdening the Court with another unreasonably lengthy document, Perfect 10 will generally address Google's Evidentiary Objections and will not respond at this time to each of the 83 separate paragraphs of specific objections raised by Google. The discussion set forth below demonstrates that Google's Evidentiary Objections lack merit and should be overruled by the Court. 1 Nevertheless, if this Court believes the discussion set forth below insufficiently responds to Google's Evidentiary Even if this Court has questions about the admissibility of portions of the Zada Declaration, it should still consider the Zada Declaration in its entirety 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." 11AC. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil § 2949, at 216-17 (2d ed.1995).
1 Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction
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Objections, Perfect 10 is prepared, at the Court's request, to file a Supplemental Response that specifically addresses, paragraph by paragraph, each of the 83 paragraphs of objections raised by Google. I. INCORRECT OBJECTIONS THAT THE ZADA DECLARATION LACKS PERSONAL KNOWLEDGE, IS SPECULATIVE, AND LACKS FOUNDATION. Apparently aware that the Zada Declaration establishes that Perfect 10 is likely to prevail on its copyright infringement and right of publicity claims, and therefore is entitled to injunctive relief, Google asserts, without basis or support, that portions of the Zada Declaration are speculative, lack foundation, and do not appear to be based on Dr. Zada's personal knowledge. The language of the Zada Declaration itself compels this Court to reject Google's meritless contentions. First, Dr. Zada has been intimately involved in every aspect of this case. Dr. Zada has testified that he has spent "at least 2,000 hours using Google's search engine to locate infringements of Perfect 10's copyrighted works." Zada Decl. ¶1. Dr. Zada has produced Perfect 10's documents to Google, attended all of the depositions of Google employees conducted by Perfect 10, and reviewed all of the documents produced by Google, all of Google's 's discovery responses, and the declarations submitted by Google's declarants in this action. Zada Decl. ¶3. Moreover, in Paragraph 4 of the Zada Declaration, Dr. Zada testifies in detail about his personal involvement in the downloading or creation of the exhibits to his declaration: The Exhibits attached hereto, except where otherwise noted, fall into one of ten categories: (a) true and correct copies of documents that I have downloaded as Adobe PDF files from the Internet ­ I have personally downloaded each and every one of the Adobe files attached to this declaration as printed exhibits; (b) true and correct copies of snapshots of my computer screen, which I captured using the program
2 Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction

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"snagit;" (c) true and correct copies of images that I downloaded from various pay sites; (d) true and correct copies of Adobe PDF files downloaded from the Internet and print screens of web pages captured using the program "snagit" that are included in Exhibit 9. I personally downloaded or print screened each of these documents unless otherwise indicated; e) true and correct copies of DMCA notices that I sent to Google (excluding attached disks, if any); (f) true and correct copies of spreadsheets that I created, or that were created under my supervision; (g) true and correct copies of emails or other communications received from Google; (h) true and correct copies of documents produced by Google in discovery. . . . Zada Decl. ¶4. It is unlikely that there have been many cases where the president of a company has been as involved in every aspect of litigation as Dr. Zada has been involved in this action. Because of Dr. Zada's intimate involvement in every aspect of this action, the statements in the Zada Declaration are based upon Dr. Zada's personal knowledge, have sufficient foundation, and are not speculative. Dr. Zada's testimony is certainly based upon greater personal knowledge than that of Google's declarant, Shantal Rands Poovala, who testifies about how Google allegedly processed DMCA notices during years when she was not even working for Google! (See Perfect 10's Evidentiary Objections to the Declaration and Rebuttal Declaration of Shantal Rands Poovala, attached as part of Exhibit R (a disk) to the Reply Declaration of Jeffrey N. Mausner in support of the PI Motion, (Docket No. 827) ("Perfect 10's Evidentiary Objections to the Poovala Declarations"), Section II. Accordingly, for all of the reasons discussed above, this Court should overrule Google's objections that the Zada Declaration lacks foundation, lacks personal knowledge, or is speculative.
3 Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction

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II.

INCORRECT OBJECTIONS THAT THE ZADA DECLARATION CONSTITUTES IMPROPER OPINION TESTIMONY AND IS ARGUMENTATIVE. Google further objects to portions of the Zada Declaration on the grounds

that they are argumentative and constitute improper opinion testimony. In fact, the Zada Declaration sets forth the necessary qualifications for Dr. Zada to render the opinions set forth in his declaration. Dr. Zada: (i) received a Ph.D. in Operations Research from the University of California at Berkeley; (ii) worked as a research staff member in the main computer science department at IBM; (iii) taught as a visiting professor of applied mathematics at Stanford University, UCLA, Columbia University, and UC Irvine; (iv) has programmed computers for more than 20 years; and (v) based upon his experience, is qualified to testify about search engines and their ability to block search results. Zada Decl. ¶3. Because the Zada Declaration demonstrates that Dr. Zada possesses the necessary qualifications and expertise to testify about the matters set forth in his declaration, Google's unsupported objections that the Zada Declaration includes improper opinion testimony and is argumentative lack merit. In particular, Dr. Zada's testimony regarding Google's inadequate response to the DMCA notices submitted by him to Google on behalf of Perfect 10 is relevant to the PI Motion. Moreover, Google has not submitted any testimony from technically competent witnesses which contradicts Dr. Zada's testimony that it moves to strike. In contrast, Perfect 10 has submitted corroborating evidence, from three technically competent witnesses, Sean Chumura (Docket No. 780), David O'Connor (Docket No. 781), and Bennett McPhatter (Docket No. 782). Accordingly, this Court should overrule Google's objections that Dr. Zada's testimony is argumentative and constitutes improper opinion testimony.

4 Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction

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III.

INCORRECT OBJECTIONS REGARDING PERFECT 10'S DMCA NOTICES. Google incorrectly states that the Zada Declaration selectively excerpts

portions of the DMCA notices sent by Perfect 10 to Google. Google's Evidentiary Objections at 3. This claim is incorrect for several reasons. First, Perfect 10 submitted the entirety of at least 138 DMCA notices in its PI Motion. It provided every one of its 43 spreadsheet style notices, and it provided every one of its 95 shorter Adobe Style notices. Zada Decl. Exh. 9 (Docket No. 790), "DMCA notices" folder. Therefore, Google has no basis to object to any of those notices. Second, Perfect 10 attached the full versions of the remaining 11 larger Adobe Style notices in Exhibit 86 (the hard drive) to the Reply Declaration of Dr. Norman Zada in support of the PI Motion ("Zada Reply Decl.") (Docket No. 826) ¶3. Google had also previously attached those notices to its DMCA motions. Therefore, the Court has the ability to look at the complete versions of those notices if it wishes to do so. Third, Perfect 10 has had to continue to send notices to Google, because Google has failed properly process such notices and rid its system of infringement. In fact, the infringement on Google's system is now hundreds of times what it was in 2004. Zada Decl. ¶17, Exh. 10. Perfect 10 should not be penalized for Google's inaction. Google has forced Perfect 10 to identify so many thousands of infringing images on Google's system, that it is not possible for any Court to completely examine all of Perfect 10's notices. As a result, there is no alternative other than to examine a sample of notices. Fourth, because Perfect 10 created its spreadsheet style notices by following Google's instructions, there should be no dispute as to the sufficiency of those notices. So whether Perfect 10 used a few notices as samples should be irrelevant. It is only because Google took so long to remove the links that Perfect 10
5 Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction

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identified from Google's Web Search results (in some cases seventeen months), and never removed those same links from Google's Image Search results, that Google has tried to claim that all of Perfect 10's spreadsheet style notices are deficient. But Google has never explained why such notices are deficient, or provided an example of what it believes would constitute a compliant spreadsheet style notice. Zada Decl. ¶¶25-36, Exhs. 14-22. Fifth, Perfect 10's Adobe Style notices were all created using the same general principle: Perfect 10 made a copy of the infringing webpage showing the full URL, identified the infringing P10 Images on that page, and then sent that page to Google as an attachment to a DMCA notice. Because Google has never presented Perfect 10 with an actual example of what Google would consider to be a compliant notice, Perfect 10 has sent Google several different types of Adobe Style notices. But once the Court examines a sample of each type, it should not be necessary for the Court to examine all other notices of the same type. For example, to identify infringing thumbnails in Google's Image Search results, one technique that Perfect 10 used was to do a Google Image Search, cross out the non-P10 thumbnails, and send a copy of that web page to Google as part of the DMCA notice. (See for example, Zada Decl. ¶68, Exh. 48.) Perfect 10 stated in its notice that all of the thumbnails that were not crossed out were copyrighted by Perfect 10. A full version of this same type of notice was included among the 95 shorter Adobe Style DMCA notices included in Exhibit 9 (the disk) to the Zada Declaration. (See for example, the notice in Exhibit 9 (the disk) determined by the path \DMCA notices\95 smaller DMCA notices\110809 notices\1.) The Court can determine, by examining either the excerpt from the larger notice, or the complete version of one of the smaller notices, whether that type of notice provided by Perfect 10 is sufficient for Google to locate the infringing material. The Court need not examine every other similar notice. Google has refused to process this type of notice, even though it can obviously locate its own web page when given a
6 Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction

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copy of that page, particularly when the URL of the page is shown at the bottom and the search term used to obtain the page is clearly indicated. Zada Decl. ¶69, Exh. 49. Perfect 10 also identified infringing P10 thumbnails using a "check the infringing image" program created by Perfect 10, whereby Perfect 10 provided a copy of the infringing Google created P10 thumbnail along with each of the three URLs that Google provided with that thumbnail (the Image URL, the Web page URL, and the thumbnail URL). See, for example, Zada Decl. ¶67. Exh. 47. Perfect 10 provided similar types of complete notices in Exhibit 9 (the disk). See for example, the notice in Exhibit 9 determined by the path \DMCA notices\95 smaller DMCA notices\110409 notices\4. Once again, the Court need only examine one such notice to see if it provides Google with sufficient information to locate the infringing material. Also, in this case, Google processed the notice that Perfect 10 sent to it on November 4, 2009 but did not process the earlier similar notice shown in Exhibit 47 to the Zada Declaration. The fact that Google processed one of the notices indicates that it provided Google with sufficient information to locate the infringing material. Sixth, Google appears to be complaining that Perfect 10 did not attach a full Adobe Style notice as a printed exhibit. However, such notices are so large (because of all the infringement on Google's system) that it would not be practical to do so. Perfect 10 did include full copies of such notices in Exhibit 86 (the hard drive), should the Court wish to examine them. Seventh, Perfect 10 provided Google and the Court with an excel spreadsheet which contained more than 32,000 URLs of the infringing web pages identified in Perfect 10's Adobe Style notices, along with roughly 8,000 URLs identified in Perfect 10's spreadsheet style notices. Zada Decl. ¶97, Exh. 9 "Identified infringing URLs" folder. This spreadsheet identified most of the infringing URLs identified by Perfect 10 in its 167 DMCA notices to Google.
7 Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction

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Eighth, Perfect 10 provided Google and the Court with copies of at least 3,800 full-size P10 Images stored on Google's blogger.com servers, that were contained in Perfect 10's Adobe Style notices, along with an excel spreadsheet listing those URLs. Zada Decl. ¶¶54, 60, Exh. 9 (the "Blogger up 2010" folder.) Ninth, the safe harbor provisions of the DMCA are an affirmative defense for which Google bears the burden. Therefore, in order to show that Google is not likely to succeed on this affirmative defense, Perfect 10 only needs to show that it submitted one or more substantially compliant DMCA notices to Google, which Google failed to expeditiously process. Accordingly, it is both reasonable and appropriate for Perfect 10 to demonstrate the sufficiency of a sample of its DMCA notices which Google failed to expeditiously process. By contrast, in order to demonstrate that it is likely to prevail on its DMCA safe harbor affirmative defense, Google must affirmatively demonstrate that all of Perfect 10's DMCA notices that Google failed to expeditiously process were substantially non-compliant. To satisfy this burden, Google must, at a minimum, demonstrate that each and every one of the DMCA notices contained in Perfect 10's moving papers in support of the PI Motion was substantially non-compliant or was expeditiously and completely processed. Here, however, Google has failed even to discuss Perfect 10's sample notices, let alone establish that any are deficient. Its lone technical expert, Paul Haahr, does not testify that any of Perfect 10's notices are deficient. Google has not selected its own sample of Perfect 10 notices and demonstrated that each such notice is substantially non-compliant. Instead, Google improperly seeks to rely solely upon blanket statements made by Shantal Rands Poovala that all of Perfect 10's DMCA notices are deficient, even though Ms. Poovala: (i) has no technical qualifications; (ii) was not involved in the processing of many of Perfect 10's notices; and (iii) testified at deposition that she essentially knew nothing about Perfect 10's DMCA notices. See Perfect 10's Evidentiary Objections to the
8 Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction

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Poovala Declarations, Sections I-V, Docket No. 587, a copy of which is contained on Exhibit R (a disk) to the Mausner Reply Declaration (Docket No. 827). For all of these reasons, the Court should overrule Google's objections to Dr. Zada's testimony regarding Perfect 10's DMCA notices found in the Zada Declaration. IV. INCORRECT OBJECTIONS REGARDING THE "SAMPLE" SUBMITTED BY PERFECT 10 Google mistakenly contends that the sample of 12 images submitted by Perfect 10 in support of Perfect 10's PI Motion (the "Sample"), described both in the Zada Declaration and the Declaration of Melanie Poblete, is irrelevant because "this miniscule subset of 12 images cannot establish probable success on the merits of P10's claims ..." Google's Evidentiary Objections at 4. Perfect 10 used a sample to make this motion less complicated and less time consuming. Perfect 10 understands that the Court has advocated using a sample to simplify the case. In fact, even though "The Sample" only consists of 12 images, because Google has infringed those images so many times in so many different ways, those 12 images should be sufficient to demonstrate how Google has infringed P10 Images, as well as Google's failure to remove or disable access to such infringements.2 For example, Perfect 10 provides evidence in its PI Motion that the sample image of Vibe Sorenson was identified to Google at least 80 separate times in Perfect 10's DMCA notices. Zada Decl. ¶2, Exh. 9, (the "Vibe DMCA notices" folder). In order for Google to succeed in its DMCA defense, it must show why all of those notices are deficient. However, Google has not shown why any of those notices are deficient. As a second example, Perfect 10 also provided in its PI Motion copies of Other images are included in the PI Motion as well for which Perfect 10 has provided evidence that it owns the copyrights. Zada Reply Decl. ¶6.
9 Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction
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infringing blogspot.com and blogger.com web pages attached to Perfect 10's July 2, 2007 DMCA notice that infringed "The Sample" image of Zita Gorocs. Zada Decl. ¶50, Exh. 34, pages 5, 11. Perfect 10 also showed that Google still has not removed those identified infringing full-size P10 Images from its own servers as of March 2010. Zada Decl. ¶55, Exh. 36; Zada Reply Decl. Exh. 86 (the folder entitled "Not removed or suppressed"). Perfect 10 also provided evidence that Google displayed the same sample image of Vibe Sorenson at least 40 times in Google's Image Search results, and that Google placed ads around that image at least 28 times. Zada Decl. Exhibit 9, ("Vibe Sorenson Image Search" folder and "Vibe ads" folder). In fact, in the 20,000 P10 Thumbnails that Perfect 10 included in Exhibit 9 (the disk), there are hundreds of examples of Google's infringement of the 12 P10 Images from "The Sample." Zada Decl. Exh. 9 ("20,000 P10 Thumbnails" folder). Accordingly, Google's objections to the Sample are incorrect; the discussion of the Sample in the Zada Declaration establishes that Google did not expeditiously and completely process a sample of Perfect 10's DMCA notices which identified infringements of those 12 images. Consequently, Google is not likely to prevail on its safe harbor affirmative defense. Finally, the fact that the Zada Declaration focuses on the Sample does not make such testimony inadmissible or irrelevant to the issues raised by the PI Motion. This is especially true here, where Perfect 10 has submitted the copyright certificates and deposit materials covering tens of thousands of images, and demonstrating Perfect 10's ownership of all (or virtually all) of the images attached to the Zada Decl., that are the subject of the PI Motion, either as part of Exhibit 9 to the Zada Declaration (a disk) or as part of the hard drive (Exhibit 86) submitted with Dr. Zada's Reply Declaration in support of the PI Motion. Zada Reply Decl. ¶6, Exh. 86. Accordingly, for all of these reasons, Google's objections to Dr. Zada's testimony regarding the Sample lack merit and should be overruled.
10 Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction

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V.

INCORRECT OBJECTIONS BASED ON GOOGLE'S CLAIM THAT PERFECT 10 NEVER SENT IT A VALID DMCA NOTICE. Google objects to portions of the Zada Declaration as irrelevant, on the

ground that Perfect 10 allegedly never sent Google a valid DMCA notice. See, e.g., Google's Evidentiary Objections, ¶21. This is not a legitimate evidentiary objection. Rather, whether Perfect 10 sent valid DMCA notices to Google is a disputed issue in the case. Moreover, Google has failed to provide any support for this objection. Indeed, Google has failed to explain why any of Perfect 10's sample notices do not comply with the DMCA. Furthermore, Google has not refuted any of the testimony of Perfect 10's technical experts ­ Sean Chumura, David O'Connor, and Bennett McPhatter (Docket Nos. 780, 781, 782) ­ that Perfect 10's notices allowed Google to readily locate the infringing material. Finally, Google has never provided Perfect 10 or this Court with a single example of what it believes constitutes a valid DMCA notice. For all of these reasons, Google's relevance objection lacks any basis, and this Court should overrule all such objections to the Zada Declaration. VI. INCORRECT OBJECTIONS REGARDING DR. ZADA'S TESTIMONY THAT GOOGLE FAILED TO PROCESS PERFECT 10'S DMCA NOTICES. Google objects to certain testimony in the Zada Declaration that Google failed to process Perfect 10's DMCA notices, on the grounds that such testimony is speculative and lacks foundation. Once again, these objections are baseless. Dr. Zada certainly has the personal knowledge and the foundation sufficient to testify that emails that Google sent to Perfect 10 did not mention any deficiencies in the actual URLs included in Perfect 10's DMCA notices. These emails are found at Exhibits 12, 14, 16, 58 to the Zada Declaration. Dr. Zada also has the personal knowledge sufficient to testify that Google did not suppress an image or a URL that contained infringing material identified by
11 Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction

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Perfect 10 in its DMCA notices. Dr. Zada himself checked to see if the infringing material was removed after he sent the DMCA notice. In the Zada Declaration, Dr. Zada specifically demonstrates Google's lack of action by comparing the contents of Perfect 10's DMCA notices with screen captures of the same identified infringements taken months or years later. See Zada Decl., ¶¶29-36, 39, 47-81, Exhs.17-22, 25, 31-60. For these reasons, Dr. Zada's testimony regarding Google's failure to process Perfect 10's DMCA notices is neither speculative nor lacks foundation. Accordingly, this Court should overrule Google's objections to Dr. Zada's testimony in the Zada Declaration concerning this issue. VII. INCORRECT OBJECTIONS TO DR. ZADA'S TESTIMONY THAT GOOGLE'S INSTRUCTIONS WERE UNUSABLE, UNNECESSARILY BURDENSOME, OR WERE FOLLOWED BY PERFECT 10. Google objects to Dr. Zada's testimony regarding Google's DMCA instructions on the grounds that it is irrelevant and speculative, lacks foundation, and lacks personal knowledge. These objections lack merit. First, Dr. Zada's testimony that Google's "instructions" regarding Blogger are not usable is neither irrelevant nor speculative. Dr. Zada testifies that, although Google requires the identification of a "post URL" in DMCA notices, such URLs do not exist on thousands of blogger.com web pages that infringe full-size Perfect 10 images. This testimony has sufficient foundation because Dr. Zada provides actual examples of blogger.com web pages that do not have post URLs. Zada Decl. Exhs. 34-40, 44. Google did not submit any evidence that contradicts Dr. Zada's statements. Moreover, Dr. Zada's testimony regarding this issue is supported by the Declarations of Sheena Chou and Sean Chumura in support of the PI Motion. See Declaration of Sheena Chou in support of Perfect 10's PI Motion (Docket No. 774) ("Chou Decl."), ¶¶13-14; Declaration of Sean Chumura in
12 Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction

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support of Perfect 10's PI Motion (Docket No. 780) ("Chumura Decl."), ¶7 and Exh. 2. Second, Dr. Zada's testimony that Google's DMCA instructions are incompatible with the DMCA itself is neither irrelevant nor speculative. Dr. Zada properly states that: (i) Google cannot require that DMCA notices be submitted to it only by fax or mail, when the DMCA statute itself requires that an agent provide a street address, fax number, and email address (see Zada Decl., Exh. 14, page 1); and (ii) Google cannot require that users send their DMCA notices to a fax number that is not listed at the Copyright Office, or to the attention of a department not listed at the Copyright Office (see id., Exh. 14, page 1). In any case, Google does not dispute the fact that it received Perfect 10's DMCA notices. Third, Dr. Zada's testimony that Google keeps changing its DMCA instructions clearly is relevant. Google has cited to its 2009 instructions in a misleading attempt to claim that DMCA notices sent by Perfect 10 to Google in 2004 are deficient. See, e.g., Defendant Google's Reply In Support Of Motion for Summary Judgment Re: Google's Entitlement to Safe Harbor Under 17 U.S.C. §512(d) for Web and Image Search (Docket No. 529), page 12, lines 17-18. In fact, as Dr. Zada explains, Perfect 10's notices sent to Google in 2004 followed Google's 2004 instructions. Dr. Zada's testimony has sufficient foundation because he submits a copy of Google's 2004 DMCA instructions as evidence. Zada Decl. ¶25, Exh. 14, pages 1-2. Accordingly, this Court should overrule Google's objections to Dr. Zada's testimony regarding its DMCA instructions. VIII. INCORRECT OBJECTIONS TO DR. ZADA'S TESTIMONY REGARDING RAPIDSHARE.COM, GIGANEWS.COM AND THEPIRATEBAY.ORG. Google asserts that Dr. Zada's testimony regarding massive infringing paysites such as rapidshare.com, giganews.com, and thepiratebay.org is "irrelevant." Google is incorrect. Perfect 10 alleges that Google improperly links
13 Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction

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to, receives payments from, places ads on, and/or hosts websites that provide download links for these infringing websites. See Zada Decl. ¶17, Exh. 10. Google must prove that it expeditiously ended business dealings with, and disabled access to, these infringing websites upon receiving knowledge of their infringing conduct. Thus, evidence that Google failed to so act is clearly relevant. Accordingly, this Court should overrule Google's objections to Dr. Zada's testimony about such massive infringing paysites. IX. INCORRECT OBJECTIONS REGARDING DR. ZADA'S TESTIMONY CONCERNING THE FUNCTIONALITY OF ADOBE PROFESSIONAL SOFTWARE. Google also raises baseless objections to Dr. Zada's testimony regarding the functionality of Adobe Professional software. During the course of this action, Google has advanced the completely unsupported assertion that DMCA notices sent by Perfect 10 using Adobe Professional software are necessarily deficient and unreasonably burdensome. Dr. Zada's testimony rebuts this mistaken contention. Dr. Zada provides evidence that Adobe files are searchable, that URLs can be extracted, and that infringing images can be check marked. These features, as well as many others, make a DMCA notice submitted using Adobe vastly superior to handwritten DMCA notices sent by mail, which nevertheless are acceptable under the DMCA. Zada Decl. ¶94. Moreover, Dr. Zada's testimony regarding the superiority of using Adobe Professional to create DMCA notices, is supported by the Declarations of Sheena Chou and Sean Chumura. See Chou Decl. (Docket No. 774) ¶¶7-8, Exh. 9; Chumura Decl. (Docket No. 780) ¶¶4-5, Exh. 1. Accordingly, this Court should overrule Google's objections to Dr. Zada's testimony, regarding the functionality of Adobe Professional software.

14 Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction

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X.

INCORRECT OBJECTIONS TO DR. ZADA'S DESCRIPTIONS OF GOOGLE'S FRAGMENTED LOGS AND GARBLED DMCA DOCUMENTS. Google mistakenly objects to certain testimony by Dr. Zada regarding

Google's fragmented DMCA "logs" and garbled DMCA documents. Dr. Zada specifically testifies that he has reviewed all of the documents produced by both Perfect 10 and Google in this action. See Zada Decl. ¶3. Under these circumstances, Dr. Zada certainly has the capability to testify regarding the contents of a particular "log" fragment -- that the log fragment does not contain dates, identify the infringer, contain URLs identified by Perfect 10, identify who processed the notice, or when it was processed. Dr. Zada can also testify that DMCA notices that Google produced to Perfect 10 in discovery as part of its "DMCA log" were hopelessly garbled. Finally, Dr. Zada can testify regarding the number of rows in Google's Adsense "log" that was produced to Perfect 10 in discovery. The documents that Dr. Zada was testifying about were attached as exhibits to his declaration, or to the declaration of Shantal Rands Poovala, and all of his statements can be verified. Google did not submit any evidence to contradict these statements. Accordingly, this Court should overrule Google's objections to Dr. Zada's testimony regarding these matters. XI. INCORRECT OBJECTIONS THAT DR. ZADA MISCHARACTERIZED DOCUMENTS. Google repeatedly objects, without any explanation at all, to large portions of the Zada Declaration on the ground that Dr. Zada mischaracterizes documents. For example, Google objects to Paragraphs 50-60 and Exhibits 9 and 34-40 of the Zada Declaration on the basis that Dr. Zada "mischaracterizes the documents," without even indicating which documents were mischaracterized or why. Because Google fails to establish that Dr. Zada has mischaracterized any documents, this Court should overrule Google's objections on this ground.
15 Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction

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XII. INCORRECT OBJECTIONS TO DR. ZADA'S TESTIMONY REGARDING THE INFRINGEMENT OF THOUSANDS OF P10 IMAGES IN GOOGLE'S BLOGGER PROGRAM. Google objects, in a scatter-shot fashion, to Dr. Zada's testimony, set forth at various points in the Zada Declaration, that Google has hosted at least 565 websites in Google's blogspot.com program, that have infringed, in total, more than 11,000 P10 Images, and that more than 4,000 of those infringing P10 Images were on blogspot.com sites that displayed Google AdSense ads. Google also objects to Dr. Zada's testimony that Google is storing at least 3,837 full-size P10 Images on its blogger.com servers. See, e.g., Zada Decl. ¶¶60-64, Exhs. 41-44, 9. Perfect 10 provides evidence of such infringement in Exhibit 9, including copies of all 3,837 full-size P10 Images on Google's servers. Exhibit 9 (Docket No. 790), folder entitled "Blogger up 2010." Google does not refute this evidence. There is no basis for Google's scatter-shot type of objections. Dr. Zada's testimony regarding the infringement of P10 Images in Google's Blogger program is based upon his own personal knowledge and actual copies of such infringing images which were included with the PI Motion. Accordingly, Google has no legitimate basis to strike this testimony and this Court should overrule Google's objections. XIII. CONCLUSION. For all of the foregoing reasons, this Court should disregard Google's objections to the Zada Declaration and the exhibits thereto and should consider the Zada Declaration in its entirety. Dated: March 28, 2010 Respectfully submitted, LAW OFFICES OF JEFFREY N. MAUSNER By: __________________________________ Jeffrey N. Mausner Attorney for Plaintiff Perfect 10, Inc.
16 Response of Plaintiff Perfect 10, Inc. to Defendant Google Inc.'s Evidentiary Objections to the Declaration of Dr. Norman Zada in Support of Perfect 10's Motion for Preliminary Injunction

Jeffrey N. Mausner