Perfect 10 Inc v. Google Inc et al

Filing 863

TRANSCRIPT for proceedings held on 4/5/10 10:15 am. Court Reporter: Cindy Nirenberg, www.cindynirenberg.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter or the Court Reporter or PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 5/21/2010. Redacted Transcript Deadline set for 6/1/2010. Release of Transcript Restriction set for 7/29/2010. (Nirenberg, Cindy)

Perfect 10 Inc v. Google Inc et al

Doc. 863

1 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 _____________________________________ CINDY L. NIRENBERG, CSR 5059 U.S. Official Court Reporter 312 North Spring Street, #438 Los Angeles, California 90012
www.cindynirenberg.com

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION HONORABLE A. HOWARD MATZ, U.S. DISTRICT JUDGE ---

) PERFECT 10, INC., A CALIFORNIA ) CORPORATION, ) ) PLAINTIFF, ) ) vs. ) No. CV04-09484-AHM(SHx) ) GOOGLE, INC., ET AL., ) ) DEFENDANTS. ) ___________________________________)

REPORTER'S TRANSCRIPT OF PROCEEDINGS LOS ANGELES, CALIFORNIA MONDAY, APRIL 5, 2010

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

Dockets.Justia.com

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UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

APPEARANCES OF COUNSEL:

FOR THE PLAINTIFF: LAW OFFICES OF JEFFREY N. MAUSNER BY: JEFFREY N. MAUSNER, ATTORNEY AT LAW 21800 OXNARD STREET SUITE 910 WOODLAND HILLS, CA 91367 818-992-7500

FOR THE DEFENDANTS: QUINN EMANUEL URQUHART OLIVER & HEDGES BY: MICHAEL T. ZELLER, ATTORNEY AT LAW 865 SOUTH FIGUEROA STREET 10TH FLOOR LOS ANGELES, CA 90017 213-443-3180 QUINN EMANUEL URQUHART OLIVER & HEDGES BY: BRADLEY R. LOVE, ATTORNEY AT LAW 50 CALIFORNIA STREET 22ND FLOOR SAN FRANCISCO, CA 94111 415-875-6330

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UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

INDEX

COMMENTS BY:

PAGE

4 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 well. Perfect 10 has moved for a preliminary injunction, and I'm not in a position to grant it or deny it, and I'm not in a position to go over all of the questions, but I will go over some of the materials that I made available to counsel, and I'm referring to 12 pages of questions for the parties. I'm aware of the fact that there's summary adjudication and summary judgment motions that are outstanding, and I'm aware of Google's contention that this is an end run around it.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

LOS ANGELES, CALIFORNIA; MONDAY, APRIL 5, 2010 10:15 A.M. ----THE CLERK: Calling Item Number 1, CV04-9484, Perfect

10, Inc. versus Google, Inc., et al. Counsel, state your appearances, please. MR. MAUSNER: Good morning, Your Honor. Jeff Mausner

for the plaintiff Perfect 10. And may Ms. Poblete -- she's a legal assistant, she's not an attorney -- may she sit up here to assist me? THE COURT: MR. MAUSNER: MR. ZELLER: Yes. Thank you. Good morning, Your Honor. Mike Zeller

and Brad Love for Google. THE COURT: Okay. Good morning to both of you as

5 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 I don't see it that way, but this case and all of the Perfect 10 cases have captured a huge amount of my time -- and sometimes I think an inordinate amount -- and I'm just going to do them when I can in light of all of the other matters on the calendar and assignments and responsibilities I undertake, so don't expect a ruling on this overnight by any means. The part of the case that I think is most timely may be Chilling Effects, so I'll ask questions as reflected in parts of this memorandum. And to do it efficiently, I'll just

go not in the sequence that the questions are put, but by parties. So you go to the lectern, please, Mr. Mausner. MR. MAUSNER: THE COURT: Yes, sir. Okay. And look at Page 1 and answer the

first question that's directed to Perfect 10. MR. MAUSNER: Okay. The reproduction takes place

when Google makes a copy of it to send to Chilling Effects. As far as display, that would be contributory infringement rather than direct, and the Group B notices would be contributory infringement as well, but there is reproduction when a copy is made to send to Chilling Effects. THE COURT: So you're changing the theory of some of

your contentions, am I correct? MR. MAUSNER: If we made that claim, I guess so. I

don't recall that we made that.
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6 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 The direct is reproducing it and distributing it to Chilling Effects. Contributory would be displaying it, in

other words, assisting Chilling Effects in displaying it by providing the images to them and also linking to them. THE COURT: Now answer Number 4, please.

In order to make this transcript comprehensible -because sometimes I may have a need to refer to it -- I intend to file the document that is entitled Memorandum to Parties, and it will be an attachment to a minute order reflecting that this hearing was held. That way, the transcript references to

questions will be accompanied by the questions themselves. Now please answer Number 4. MR. MAUSNER: I don't think that it's necessarily

true that Google has to send notices to Chilling Effects, but even if it does, they do not have to send the notices in such a way that it allows users to locate infringing material. For the Adobe-style notices, they certainly do not have to send all of the images, including full-size images, without any attempt at all to block them out, put x's over them, disable the links in those images. Basically, what they're doing is they're just giving copyright images -- copyrighted images to another entity for that entity to post on the internet. If the purpose of this is truly to allow people to do research on DMCA notices, they could send the textual part of
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7 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 it, which has the 512(c) information in there, and they could take a few sample notices, put some x's over them so you can't use the images for viewing, and black out the links in there. There is no reason that they have to send thousands of copyrighted images to Chilling Effects for posting. And what this does is it really prevents Perfect 10 from sending notices to Google, because every time we send a notice, it gets posted. THE COURT: Yes, I understand that. If Perfect 10

wanted to prevent Chilling Effects from providing access to the full-size images or to the material that contains the copyrighted content, why couldn't it send notices to Chilling Effects and why hasn't it? MR. MAUSNER: You mean for Perfect 10 to send another

DMCA notice saying, "Don't publish our first DMCA notice"? THE COURT: Yes. I mean, if the question is you are

being indirectly back-doored by what Google is doing vis-a-vis Chilling Effects and that is preventing you from providing notice to Google, isn't there an alternative way to address that situation? MR. MAUSNER: Well, they received the DMCA notice. If we send them another DMCA They may publish that

That's what they're publishing.

notice, I don't know what they will do. notice as well. THE COURT:

You don't know because you haven't done

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8 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 it. MR. MAUSNER: THE COURT: Yeah. And I know that it's not feasible,

realistic or even fair to expect every single claimed infringement to be the subject of an immediate or separate DMCA notice, but you could send a notice to Chilling Effects that doesn't contain the contents; simply say, "Don't publish the content that was transmitted to you along with our DMCA notice that we sent to Google," couldn't you? MR. MAUSNER: THE COURT: MR. MAUSNER: Well -Yes or no, could you do that? We could, but we have sent that to

Google, and we've also stated in -- in the DMCA notices themselves, we stated, "Don't publish this DMCA notice," so, you know, I think they know. They know that we don't want them There are a lot of

published, but, sure, we can do that. things we can do.

By the way, there is evidence in the record -- there was one of those four third-party witnesses who was complaining about their notices being sent to Chilling Effects, testified that they tried to get Chilling Effects not to publish them, and Chilling Effects would not -- would not stop. THE COURT: MR. MAUSNER: THE COURT: Which witness was that? I don't remember who that was. All right. I'll look it up. You can sit

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9 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 down for a moment. Your turn, Mr. Zeller. First of all, you don't have a duty -- there is no legal obligation on Google's part to send anything to Chilling Effects, correct? MR. ZELLER: I believe that's -- in terms of a pure We do believe that it is

legal obligation, that's correct.

furtherance of the DMCA, but I don't think we take the position that the DMCA mandates it. THE COURT: Okay. And the DMCA not only doesn't

mandate that anything be sent to Chilling Effects, but doesn't mandate that the actual claimed copyrighted images be included in the notice that is sent to Chilling Effects, correct? MR. ZELLER: THE COURT: It is not mandated, but, again, we -So answer the question, too, please, why

couldn't you cooperate with Chilling Effects or promote its functions by providing it only with core information identifying the website that was taken down, the copyright owner and the content without it actually publishing the content? That's doable, isn't it? MR. ZELLER: It would not achieve the same purposes,

Your Honor, and it would not achieve the same purposes as forwarding the actual notice they would receive from Perfect 10 in terms of notifying webmasters and other persons who do control these websites in notifying them of the fact that it
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10 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 Honor. was a Perfect 10 DMCA notice that was the cause of that take-down, and that allows for counter-notification, so we don't agree with just simply trying to revamp it. And also -THE COURT: Wait a minute. Wait a minute. If the

idea is to inform the bad guy why the infringing website was taken down, you can't accomplish that unless you actually include the copyrighted material that was infringed. MR. ZELLER: Well, we're sending the notices, Your

We're not sending the copyrighted materials for the We are sending the

purpose of sending the copyright materials.

take-down notice that we receive, and we are under no obligation from our perspective to revamp it. And it's particularly inappropriate from our perspective that this should be the subject of an injunction for the simple fact that, as Perfect 10 concedes, it could simply send us the Group B spreadsheet-style notices in the first place, which is what Google asked for. It can then just provide the URLs, and it can do the supression that way. Those can be forwarded to Chilling

Effects without any of the arguments that they have made here about the other kinds of notices. THE COURT: That may well be true -- and I understand

the fundamental distinction between the various groups that you've created classification for. What do you do with the

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11 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 notices? MR. ZELLER: Google also forwarded the Group B Group B notices vis-a-vis Chilling Effects? MR. ZELLER: THE COURT: I'm sorry? Group B?

What does Google do with the Group B

notices to Chilling Effects and has for years, which is exactly our point as to why there is this delay. I mean, to the extent that it is now Perfect 10's theory that the Group B notices also, I think he said, were contributory infringement as well, I mean, that is a practice that -- as Perfect 10 has known full well, that has been going on for years. I actually find it inconceivable that it could be an argument of contributory infringement, but that is certainly a new argument here, but it only underscores the delay. There is no question Google was sending the Group B notices to Chilling Effects. have been for a long time. THE COURT: Is there anything in the record that Those are on Chilling Effects and

establishes whether it's Google's practice without exception every time it has complied with the DMCA notice and taken down some infringing material to send notice of that conduct, of that action to Chilling Effects? MR. ZELLER: I would have to look up the cite but

it's my recollection that the Shantal Poovala declaration says
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12 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 that that is, in fact, Google's policy and practice. THE COURT: No matter who the complainant is or

copyright owner or sender of the DMCA notice? MR. ZELLER: That's correct.

And I would just point out as a further -- because this is in rebuttal to what Perfect 10 says, which is, it's claiming that, for example, notices from other organizations haven't shown up. I would also point out that this appears to be just a backlog on Chilling Effects' part because there is also a number of Perfect 10 notices that have been sent by Google to Chilling Effects that also don't yet appear on Chilling Effects, so it appears that that's a backlog by Chilling Effects, not because Google is picking and choosing who to send these notices or whose notices to send. THE COURT: Does Google -- is there any counterpart

to Chilling Effects to whom Google sends DMCA notices that resulted in takedowns? MR. ZELLER: understanding is no. no. THE COURT: So if I were to consider entering a I would have to investigate that, but my Based on what I know now, the answer is

preliminary injunction as to the Chilling Effects' side of this go-around, tell me what would be the policy implications in terms of the broad use of the internet and what's in the
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13 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 Honor. interests of our evolving economy? MR. ZELLER: I think they would be enormous, Your

I think the Court would be -- the injunction, rather,

would be impairing a research function of Chilling Effects of this academic collaboration that is ongoing. I don't think it

would have any countervailing benefit for Perfect 10, particularly since Perfect 10 understands this is completely avoidable. I would also point out that one linchpin of Perfect 10's argument here is is that the DMCA notices are, quote, confidential, end quote. their briefs. That is a word used over and over in

Judge Hillman already rejected that and held

that they could not be designated under the protective order. I would also note that Perfect 10 itself has disseminated the DMCA notices, including by filing them publically in this court, so the notion that somehow a particular academic research organization should be denied that information, that Google shouldn't be allowed to send it, would, in fact, strike me as a serious impairment of free speech rights of the fair use doctrine, which I'll get to in a moment, with really no benefit whatsoever to Perfect 10. I mean, anyone can go onto Pacer and find the same notices because Perfect 10 at various times has put them into the record. THE COURT: Is there anything before me on this

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14 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 record -- because I haven't had time to look at it in excruciating detail -- that was submitted by or purportedly on behalf of Chilling Effects itself? MR. ZELLER: THE COURT: MR. ZELLER: THE COURT: No, Your Honor. Declarations? Any materials?

No, not that I know of, Your Honor. So if I thought it were relevant and a

factor to consider -- and the public interest is always a factor in determining the propriety of a request to enjoin something or someone -- you would have no objection to my issuing an order inviting Chilling Effects to weigh in? MR. ZELLER: THE COURT: the fair use analysis. to Question 5? MR. ZELLER: Yes, Your Honor, as well as on its way No objection, Your Honor. Okay. Now, you adverted a moment ago to

I take it you were about to respond now

to Question 3, which is, wouldn't the linking of copies be contributory infringement. And we don't think so because, of course, Chilling Effects is itself a fair user of these materials, so that in itself would defeat any possibility of contributory infringement for that reason alone. With respect to Question 5, Your Honor, I see how the Court has posed the question. factors differently.
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We obviously would weigh these

15 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 that? MR. ZELLER: I would certainly cite by analogy the because -THE COURT: Is there any authority you could cite for With respect to Number 4, in particular, as the Court is aware, where there is a highly transformative use, which I think is undisputable here, market harm cannot be -THE COURT: MR. ZELLER: Which use is highly transformative? The use of the notices that are

forwarded to Chilling Effects, and as they are posted, they are on Chilling Effects. THE COURT: And you would say that's transformative

even if the notices and the posting includes full-size images? MR. ZELLER: Correct. It's highly transformative

Ninth Circuit decision in this case which is that this is being put to an academic research purpose. That is undisputed. Just

as Google uses, in terms of the thumbnails -- you know, puts it to a highly transformative use because of the fact that it's being used for information location. But this is -- as far as I'm concerned, this is the very heart of fair use and a highly transformative use. There is absolutely no argument here that what Chilling Effects does is for any purpose other than academic research and in particular to protect free speech on the internet. And I would be challenged to identify something even

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16 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 None. more highly transformative than that differentiation and use. Perfect 10 is not even remotely in that market. And my point on Factor Number 4, the effect on the marketplace, is that where you do have a transformative use, as the Ninth Circuit has held, harm cannot be presumed. And there is no evidence at all here of market harm. And it certainly cannot be presumed. We do think that Factor 3 weighs in our favor because of the fact that -- and there are certainly a number of Ninth Circuit cases where even if full-sized images and full-sized reproductions of something is used where that is something that is necessary and appropriate for the purpose -- for the transformative purpose, then it is still considered to be a fair use. I mean, there certainly has historically -Are you talking about Kelly and Arriba? MR. ZELLER: Well, there, it's a little different

because obviously it's the thumbnail size that were being dealt with, but I would harken back to other cases, such as the Walking Mountain case and a line of Ninth Circuit authority in more recent years that moved away from the old notion that it was almost never a fair use if the whole work was used. That doctrine and those cases really are no longer the law in the Ninth Circuit. And there's a number of cases

where once something is used for a different transformative use, it's re-characterized and it's appropriate for that
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17 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 particular use, then the amount of the work, even if it's the entirety of the work, does not weigh against a fair use finding. And that's what, we would submit, is here. And particularly, again, with -- we're dealing in the context here of a preliminary injunction, and, of course, that is to prevent great, irreparable immediate harm. All Perfect 10 has to do is comply with the instructions that Google provides for compliant notices, which is to give a spreadsheet-style list of the URLs, the actual specific location of where the infringing material is located. THE COURT: And you would characterize Group B as

examples of just that, correct? MR. ZELLER: THE COURT: Correct. And what is your representation to me, as

an officer of the Court, as to how Google has responded to each of those Group B notices? MR. ZELLER: The evidence that we put in the record,

Your Honor, is that overwhelmingly those Group B notices were responded to within two weeks in terms of actually taking down the URLs, the specific URLs that were identified in those spreadsheet-style notices. declaration as well. In some instances, it was as short as two days where it was actually provided in a compliant -- remotely compliant, I should say, with at least identifying the URLs.
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That's in the Shantal Poovala

18 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 Zeller. MR. ZELLER: THE COURT: Thank you. Anything you wish to respond to what he There are other defects in some of these notices, but at least the URLs were there, and so they could be used readily. two days. And I would also mention that -- also, as the record reflects, that time period, a lot of it was done over the holidays. Google hired extra people over Thanksgiving, over And so in some cases, that was done in as little as

other holidays in order to actually process those as quickly as possible. So there is no question that -- you know, again, while there were other defects in those notices for a whole host of reasons, including that Perfect 10 has really never identified exactly what the infringed work is -- usually, it's citing to a -- the entire Perfect 10 website or a collection of 15,000 images and the like, so they're not DMCA compliant. At least where we have the specific web URLs and the image URLs, Google can at least go above and beyond the call of duty and do it, and that's what Google did with the Group B notices. THE COURT: Okay. Have a seat for a moment, Mr.

said before I move on to a different topic? MR. MAUSNER: Yes, Your Honor.

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19 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 to? MR. MAUSNER: Yes. When we submit full notices to They are not available on Hoffman. The witness -- the third-party witness is Dean It's Docket Number 776, Page 2, Lines 3 through 6. As far as we can determine -- and the only evidence is Google does not send all DMCA notices to Chilling Effects. We gave evidence of notices that they did not send, and, you know, to just speculate that there is a backlog is not -- you know, doesn't overcome that evidence. THE COURT: You haven't established that, to the

extent that the process is not exactly a hundred percent comprehensive, there is a discriminatory or invidious selection process that Google relies on to your detriment, have you? MR. MAUSNER: They have not submitted a very large And, in fact,

number of notices from the RIAA and the MPAA.

there haven't been any that have shown up on Chilling Effects, I think, for a couple of years. For the MPAA, there were 90 notices that we know of that we got from the MPAA that aren't on Chilling Effects and none have been published since April of 2007. THE COURT: Okay. Anything else you want to respond

the Court, we file those under seal.

Pacer, the large, full notices that have full-size images and so on. Google did not process Group B notices in two days.
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20 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 They did not -- let's put it this way. They did not remove or

disable access to Group B notices in two days. For a very large number of the URLs that are on Group B notices, those URLs are still up. down. For ones that they did process -- first of all, they didn't do anything at all with the Group B notices for about four months until Perfect 10 threatened to file a lawsuit. Then what they did is they took down some links in web search results. Some, but not nearly all. They have never taken them

They did not take down any links in image search results based on the Group B notices for a very long period of time, and they did not remove ads on the web pages that were shown by these links. They still haven't removed them.

Now, the reason that Perfect 10 didn't continue with the Group B spreadsheet-style notices is because Google was not disabling access, you know, by removing web search links, image search links and ads on the URLs that we were identifying. May I hand something up to the Court? We have a collection of the types of notices that have been sent by Perfect 10 to Google which gives a very good summary of when notices were sent and what information was provided in each of those types of notices. about 18, 19 pages. THE COURT: This is not something that you chose to That handout is

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21 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 Zeller? MR. MAUSNER: THE COURT: MR. MAUSNER: We have a copy for them. What are you saying this is? It is a collection -- a summary of the include in the record so far, right? MR. MAUSNER: It is. Everything in there are

exhibits, but we just took some pages out to make it easier for the Court to see exactly what we did. THE COURT: Have you shown this document to Mr.

types of notices that Perfect 10 has sent to Google. It has like a page from each of the types of notices that shows exactly what information is contained and how it's contained. THE COURT: I'll let you hand it to the clerk, but it

should have been done before, and I'm not likely to -- whatever is in this chamber's copy binder that says "Plaintiff Perfect 10, Inc.'s Handouts," do you say where it is in the record? Like Handout 1 -- you're telling me that everything in Handout 1 -MR. MAUSNER: THE COURT: Yes. -- and everything in Handout 2 is in the

record on this preliminary injunction, right? MR. MAUSNER: Yeah, everything in Handout 1 is.

There's one page in Handout 2 which is an updated version of an earlier exhibit that had been in.
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22 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 on Page 6. THE COURT: MR. MAUSNER: So what is this handout supposed to be? Okay. Page 1 is from a Group C notice, Page 1. If you take a look at Page 1, Your Honor -THE COURT: MR. MAUSNER: THE COURT: MR. MAUSNER: Of what? Of Handout 1. Yes. -- it says at the bottom Exhibit 47, It came from Dr. Zada's

That's where it came from.

declaration in support of the P.I. motion, Exhibit 47, Page 1. THE COURT: Okay. So I don't have time to go through But, basically, what you

all these and to hear a lot about it.

are trying to establish is that these handouts reflect samples of things for which there was no timely or no actual response to a Group B DMCA notice? MR. MAUSNER: Is that the crux of it? Well, a Group B notice is shown

Okay.

you know, the Adobe-style notices. THE COURT: MR. MAUSNER: THE COURT: every page is. MR. MAUSNER: THE COURT: Okay. I just want you to tell me what you think I see that. Page 2 is also -But I don't want you to tell me what

this compilation is supposed to do for me. MR. MAUSNER: Yes, Your Honor.

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23 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 thumbnail. THE COURT: I see it has the image, it has the web It contains samples of the types of notices that Perfect 10 sent. Perfect 10 started with the spreadsheet-type

notices which contained the exact information that Google asked for, the URL and the search term. 6. THE COURT: MR. MAUSNER: Right. And Google said that's deficient. They An example is shown on Page

did not remove or disable access for a very large number of the URLs that we were providing in the Group B notices, and they never, from the Group B notices, disabled access, you know, in image search results. They just -- when they did do something,

they just did it for web search results; never did it for image search results at all and never removed the ads that were on that web page. So what we started doing is we started giving them notices like those on Pages 1 and 2, which contain everything you could possibly want or need to completely process a notice, to remove it from web search, to remove it from image search, to remove the ads. Like Page 1, it has the image. It has the actual

page, and it has the thumbnail. MR. MAUSNER: THE COURT: Right. And all of this is in the papers?

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24 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 Hillman. THE COURT: No, but isn't it supposed to be worked MR. MAUSNER: THE COURT: Yes. You're just trying to make my task

simpler by giving me a selected composite, right? MR. MAUSNER: THE COURT: MR. MAUSNER: Yes. And what about Handout 2? Handout 2 deals with repeat infringer, There's

and it takes information that's already in the motion.

one page that was in the motion, but we did an updated version of it so the Court could see. That's page 13.

And the only difference on Page 13 is that the mouse was taken and put over one of the images so you could see all the information that you could get from the actual notice, because when we gave them the notice, it had the links in there; you could just put your mouse over the image, and you would get all the information that's shown in that pop-up box there. We submitted Exhibit 13 without the pop-up box. This is what it looks like with the pop-up box (indicating). THE COURT: All right. What's the status of your

discovery disputes over obtaining the DMCA notices? MR. MAUSNER: It's still pending before Judge

out in good faith between the two sides?
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25 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 with us. MR. MAUSNER: We've asked them to meet and confer

We want to have a telephone conversation with them,

and we have not been able to have a telephone conversation with them yet. THE COURT: MR. MAUSNER: telephone, basically. Because of why? Because they won't talk to us on the They keep sending e-mails. They

canceled a telephone conference we set up.

We tried to call

them, left messages and never got a call back. THE COURT: Well, let me just put it this way. Judge

Hillman will be very pleased to hear that. MR. MAUSNER: Yeah, we submitted -- as one of the

exhibits, I've submitted the correspondence that's taken place between us regarding this. THE COURT: a seat, please. MR. MAUSNER: THE COURT: Thank you. Mr. Zeller, I want you to go to the Do you want me to get you that? I don't. All right. Have

No, I don't.

lectern, and I want to talk to you about Blogger and Blogspot. MR. ZELLER: If Mr. Love may address that. I think

he can better address those questions. THE COURT: All right. A little unusual.

What's your name? MR. LOVE: THE COURT: Brad Love, Your Honor. Love, L-O-V-E?

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26 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 Honor. The server test looks at the actual requirement of copying for the infringement, whereas the volitional requirement had been adopted to basically protect the sorts of automatic copying. It was paralleled to copying machine makers and sort of the device manufacturers, and it was courts looking at the structure of the internet and saying these services basically are acting like you just sat a copying machine out in the hallway and let people use it, and only if you had knowledge of what they were doing were you liable for the copyright infringement that was going on. And it said you have to look at this as a contributory infringement; you can't have direct infringement based on these automatic, passive -- I mean, passive uses. THE COURT: Well, are you aware of any authority that right? MR. LOVE: Yes. Both Blogger and Blogspot are almost MR. LOVE: THE COURT: L-O-V-E. Okay. So Blogger.com uses your server,

entirely on servers that Google owns. THE COURT: Okay. So how do you square the citations

that you gave us to those two cases with the Ninth Circuit's adoption to the server test in this case? MR. LOVE: It's a completely separate issue, Your

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27 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 automatic? MR. LOVE: It is, Your Honor. extends that analogy of Xerox machines to ISPs and ones whose servers contain the infringing material? MR. LOVE: NetComm, Your Honor -- and it's been

adopted by a couple of cases in the Fourth Circuit -- Costar, and also the Field case in Nevada. THE COURT: So you would say that if it got to the

Ninth Circuit, it would say, "Notwithstanding that the content appears on your server, because it's not content that you generated, you can't be held liable for direct infringement"? MR. LOVE: THE COURT: MR. LOVE: in Ellison. Yes, they already -That's what it comes down to? Yeah, they already implicitly adopted it

The District Court had dismissed the direct

infringement claims basically on that theory, and the Ninth Circuit affirmed that decision. And the DMCA statute itself endorses NetComm. NetComm is specifically cited in the legislative history and the committee report that was filed with the DMCA, and they endorse that approach. They wanted to basically enshrine it in

the structure of the DMCA and make that protection statutory as well as common law. THE COURT: How does Blogger work? Is the copying

Google has created this service that is widely
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28 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 sources. THE COURT: That's what I had in mind. is no. address. THE COURT: That's fine. All right. He answered my questions. here. MR. ZELLER: That was the only issue he was going to accessible. It's very much like a video uploading site in the

Veogh cases where a user comes on, selects whatever material from their hard drive or their computer, be it text or photos, that they want to post on their web blog, and then Google allows them to just click a button and Google's automatic back-end processing posts that on the Blogspot servers. THE COURT: MR. LOVE: THE COURT: MR. ZELLER: THE COURT: All right. Thank you, Mr. Love.

Thank you, Your Honor. Are you going to address Item C as well? I will address that. All right. We have tag team wrestling

I'm not upset.

So answer C-1. MR. ZELLER: In our view, the answer to that question CCBill says very clearly

CC -- well, a qualified no.

it has to be -- that it has to be a compliant DMCA notice, and if it's not a compliant DMCA notice, it cannot provide knowledge. Now, of course, one could obtain knowledge from other

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29 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 here. MR. ZELLER: Right, but there is no evidence of that

And the only basis that Perfect 10 is relying upon, as I

understand it from their papers, is the noncompliant DMCA notices which CCBill unequivocally says cannot stand for that proposition. And also I would say, as a practical matter, Your Honor -- particularly looking at the Group C notices. I mean,

how they could provide actual notice of anything to anyone considering the tens of thousands of files and nested folders and the -- the mess, frankly, that was provided to Google, how that could constitute notice would be fairly remarkable. THE COURT: Well, you know, I've cited CCBill and I'm

you've mentioned -- or Mr. Love did -- the Veogh cases.

familiar with it, but, you know, don't you think it's possible that the Ninth Circuit is going to sooner or later directly confront the problems that copyright owners of massive amounts of content have in complying with the DMCA and doing so consistent with the language of CCBill, which didn't involve such a mass array of claimed ownership? MR. ZELLER: Well, in some ways -- and I would

think -- and I obviously am not as close to CCBill as others, but there, see, the Court actually pointed out it was, I think, 10,000 pages that Perfect 10 had provided. I mean, Google isn't the only one who is receiving these kinds of just scattershot notices that we're supposed to
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30 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 applied. cobble together in order to figure out what it is that either is the infringed work or what the actual URL is of either the web page or the image that Perfect 10 has asked them to take down. So I don't think that just because Perfect 10 has chosen to take this path that that suggests there is anything wrong with either the DMCA or with what the Ninth Circuit has decided on this. I think it's only proper and just, because the fact is, out of complete fairness, Perfect 10 could provide to Google and any other ISP comprehensible DMCA notices that identify what's statutory required. And it's not that

difficult, it really isn't, for Perfect 10 to do that. The cases make very clear that it is the obligation -- the burden is on the copyright owner to compile that information. THE COURT: That is true. That is a principle I've

I'm not unaware of that, but I am trying to be

practical in terms of protecting competing interests here, and it's one of the interesting challenges of dealing with these kinds of cases. And I don't know what it takes in terms of time and effort to set up a Group B kind of notice when you are a small company and you may rely on very few people the way Perfect 10 claims to.
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31 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 That could be a pretty disruptive task, couldn't it? MR. ZELLER: isn't the record here. Well, perhaps, in some cases, but that And, in fact, Perfect 10 has hired

vendors to allow them to do these sort of things, has hired employees to do these sort of things. They appear to have

absolutely no problem in obtaining that information. And, in fact, discovery showed that while Google was asking for an electronic form, as is consistent with its policy, of the Group B notices so it can actually just cut and paste and go into the browser and actually go directly as opposed to having to manually retype it and Perfect 10 wouldn't provide it, that, in fact, Perfect 10 had its own vendors create exactly those kind of spreadsheets. So whatever hypothetical realm, you know, there may be with other companies and the like, that is not the case with Perfect 10. Perfect 10 has certainly done over the years -- and it made an effort to portray itself as a small, abused company in a whole variety of cases. It has not been successful, and

one reason why is because it's just not factually correct. It's business is litigation. That is what it does. That is

what it hires its employees to do. THE COURT:

That is how they --

I may have invited you to do so, but I

realize where you're heading, but I don't need that kind of characterization. It doesn't get to what I'm driving at here.

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32 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 Is it correct that you haven't provided Perfect 10 with a list of the links that have been removed by Google? MR. ZELLER: Your Honor. My understanding is is that we have done that with the '97 notices and, in fact, Perfect 10 attached some of those e-mails showing it. I don't know that it was that much of a I don't believe that that is correct,

issue previously, but there is some evidence in the record that, in fact, Google did send the list of the links. THE COURT: would always do so? MR. ZELLER: I would have to double-check to make Is Google prepared to represent that it

sure about the historical accuracy in terms of every single one of them. My understanding is that it has, and, certainly,

that's something that I can -- I feel comfortable saying that Google would do so. But that is something that we have done,

so I don't see any reason why we wouldn't continue to do it. THE COURT: Okay. Now answer Number 4 on Page 5 What about

because that, of course, dealt with Audible Magic. "find similar images"? MR. ZELLER: THE COURT:

I don't know exactly how it works. Well, Number 4, it's -Why can't that be imposed as a standard

to measure Google's good faith or lack of good faith compliance with the DMCA? MR. ZELLER: Well, I think there's the legal

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33 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 component to this and the factual one. The legal component is that the DMCA is very clear where it says that it has to be -- you have to provide the specific location. And I would also note that images are not infringing, uses are, and that's the language of the statute. cannot and is not the case. It simply

And this gets me into the factual

point that every single use of every single Perfect 10 image on the internet is unlawful. It is an impossible proposition.

Not only are some of them fair uses, which is a determination that courts and the DMCA put on the copyright owner, not on Google, but there is evidence in the record that, in fact, there are licensees, and there are other right holders to these same images. And, in particular, there is evidence in

the record that, in fact, Perfect 10 acknowledged that. There is a -THE COURT: But it represented that every link that

it is warning you about is to a display of an image that is not authorized and to a use that is not authorized without exception. Doesn't that remove your argument? MR. ZELLER: No, I don't think so, because, again, as

a matter of law, one cannot make the representation that it can never be proper because there is the fair use doctrine. why it's there. If, say, for example, the New York Times were to
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That's

34 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 publish a Perfect 10 image, would Perfect 10 be in a position to say that Google just needs to police the internet and take it down? I mean, that would -THE COURT: But that's not what I asked.

I think the answer to that is clear, but if it sent you a notice that was sweeping and represented as to each and every item in that notice -- none of the particular displays, none of the particular uses of those images was authorized -and it didn't include the New York Times, why doesn't that impose the duty to search the web using "find similar images" to take down the others? MR. ZELLER: Well, Number 1, that would effectively

run afoul of the principle that the service provider is not required to police the internet. That would be Number 1.

Number 2 is is that it would not be compatible with the language of the DMCA itself and the obligations that are placed on the copyright owner of the -- or, excuse me, on the copyright owner under the DMCA. And also I would, Your Honor, point out that it would be impossible -- my factual point -- for Perfect 10 to make that representation. There was, for example -- and this is an e-mail from Norm Zada to the outside vendor who he had searching the internet for so-called infringing images. And he said that --

you know, that, "Some of these images were purchased from other
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35 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 please? MR. ZELLER: declaration. Yeah, I'm sorry. the DMCA motions. THE COURT: MR. ZELLER: THE COURT: MR. ZELLER: Meaning the summary judgment motions? Correct. Now, what were you about to say? There's also evidence of record that Kassabian declaration in support of It's Exhibit J to the Kassabian photographers and may be legitimately used by a number of sites on the internet." THE COURT: What is the record citation to that,

even the models -- for example, some of the models who we have been able to depose so far, they use those images on their website. They, in fact, control those images, and so there are

any number of instances where Perfect 10 could not make that blanket statement. THE COURT: Even this is a factual matter. Okay. Now, your turn, Mr. Mausner.

Answer Question 5 on Page 5, please. MR. MAUSNER: I'm not aware of a case that says that,

but I think under the DMCA that -- you know, that would be the applicable way to remove access to infringing content. Either

you cut the links to the website or the website has to remove the infringing content that's there. THE COURT: And which particular language or

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36 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 provision of the DMCA would warrant that kind of advocation? MR. MAUSNER: The language that says that the service

provider is to remove or disable access to the infringing material. If you have a link to a website, then you are providing access to the -THE COURT: MR. MAUSNER: That's supposedly in 512(d)? It's in various places in the statute.

It's either in (d) itself or it's incorporated from (c) into (d). THE COURT: Okay. Now, turn to vicarious

infringement and answer the first question which carries over to Page 6. I don't know if you have the Ninth Circuit's

opinion before you. MR. MAUSNER: Well, I do think that it's clear under

the Ninth Circuit's test for contributory infringement that providing regular links -- sponsored links and AdSense advertisements to these sites is contributory. THE COURT: MR. MAUSNER: THE COURT: But I am asking about -Vicarious -- yeah. So -- I don't have unlimited time here.

Try to answer the questions I've put to you. MR. MAUSNER: Well, Google has a tremendous amount of

control over the internet, what appears on the internet and what people can find on the internet.
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37 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 to? MR. MAUSNER: haven't given it to us. THE COURT: MR. MAUSNER: compel this or not. Well, we've asked for it, and they We have not -The Ninth Circuit talked about the fact that image recognition was not available as one of its bases for saying that there is not vicarious liability. I think now it's clear that the image recognition is available, but I think contributory is probably a stronger grounds for this than vicarious. THE COURT: MR. MAUSNER: And answer Number 4, please. We have not been able to get discovery We do have evidence of

from Google regarding click revenue. downloads from these sites. THE COURT:

What do you mean by you haven't been able

Have you moved to compel it? I don't know if we've actually moved to

There's been a lot that we've moved to And I realize you are

compel, and we've put damages stuff off.

asking about this regarding vicarious, but I think if the ads are there and they're around an image, I think there can be an assumption, at least for a preliminary injunction, that Google is making money off of this. They wouldn't be doing it if they

weren't making money off of this. THE COURT: I find it curious that you can't assure

me as an officer of the court that you've actually sought a
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38 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 ruling entitling you to this kind of information. MR. MAUSNER: We have sought it, but I don't think

that we have moved to compel that. THE COURT: Okay. Let me see if there is something

else I wanted to ask you. MR. MAUSNER: that Mr. Zeller said? THE COURT: MR. MAUSNER: Very selective and very briefly. Regarding the notices being large or May I respond to some of the things

difficult to understand, Your Honor, what these notices were were they -THE COURT: MR. MAUSNER: I have seen them. Yeah, okay. And we have continually They have stated,

asked them, "What's deficient about this?"

"This is deficient" -- everything that we've sent to them, they said it's deficient, but they have not told us what exactly is deficient and what to do to make it so that they won't say it's deficient anymore. And we have tried, as you'll see in this -THE COURT: You are standing here and you're telling

me you don't have a clue what Google's problems are with the Group C notices? MR. MAUSNER: Yes. Yeah, other than that they're The reason they

large, they contain a lot of infringements. contain a lot of infringements --

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39 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 2 -THE COURT: MR. MAUSNER: Of what? -- of the first handout. THE COURT: They contain a lot of steps that Google Don't you acknowledge that?

would have to go through. MR. MAUSNER: letter and attachments? THE COURT: MR. MAUSNER: you supposed to take -THE COURT:

Are you saying because there's a cover

Yeah, that's part of it. How else can you do it?

Yes. I mean, are

Well, you can do it by the methodology in

Group B, which they say they will respond to in good faith and already have. MR. MAUSNER: Well, the spreadsheet was also an

attachment, and they have not removed or disabled access to the vast majority of what's in Group B. The spreadsheet -- the spreadsheet notices contain the cover letter and the spreadsheet. The Group C notices contained the cover letter, and they contained the attachments, which had not only the URLs, but the images themselves as well. And like for some of these, Your Honor, like Page

Google search results contain a group of images there, okay. Now, how are you supposed to tell them, for this

page, "Everything is on there except for the one in the lower
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40 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 thing? right-hand corner"? When they do the search themselves, it could change the order of these things. How do you describe which are Perfect 10 images and which are not Perfect 10 images other than by giving them this web page and crossing out the image that is not a Perfect 10 image? That's certainly the easiest way to do it and possibly the only way to do it. If you take a look at Page 8 -THE COURT: Okay. A lot of that is in your briefs

and some of it may be responsive to what I want to get to now. MR. MAUSNER: Your Honor, may I just say one more You've gotten a

You're looking at these things.

hundred-and-sixty-seven DMCA notices, and you're saying, "Wow, this is really a lot of stuff," and it is, but that's not the way Google got it. Google got these things at certain periods in time. They are technologically probably, you know, the best company in the world or one of the best companies in the world. get a letter saying, "These are all Perfect 10 images. They We

don't want you linking to them in either web search, image search. We don't want ads on them," okay, and for them, it

wasn't such a big, hard thing to do them if they had done them as they came in.
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41 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 And they're not -- you know, I'm kind of sensing that you're thinking, wow, there's so much here that how can Google handle it. First of all, this is over many years. THE COURT: Okay. Okay. You've made that point. And we're on

Now, look at the outline I gave you.

Item E, the DMCA Safe Harbor, which we've been bouncing around anyway. Answer Number 2 on Page 7. MR. MAUSNER: The earlier Adobe-style notices were

not the same size, and the reason for that is because there was much more infringement on Google than there was on Yahoo or InterServer. And what happened is InterServer and Yahoo processed these notices and removed and disabled access so that we did not have to keep sending them notices containing the same material again. Google did not do that.

First of all, Google does have more -- a lot more infringements, so the ones for Google were larger. The '95 notices probably were about the same size, but the earlier Adobe-style notices were larger because they had to be larger. THE COURT: MR. MAUSNER: Now answer Number 4, Pages 7 and 8. Well, for certain repeat infringers,

they're also -- they're AdSense customers, so those are clearly subscribers or account holders. They have an AdSense account

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42 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 with Google. For those repeat infringers that are not AdSense customers, our argument is that they should be treated as account holders and subscribers because for search engines, the websites that they link to are basically tantamount to account holders or subscribers. But another argument regarding that,

Your Honor, is even if they're not treated as account holders and subscribers, removing repeat infringers is a simple measure that Google could take to reduce damage to copyrighted works under the Ninth Circuit's test. They should not continually be

linking to the same websites that they get notice after notice from on under the Ninth Circuit's simple measures test. THE COURT: Is there any authority that you can cite

to that establishes that a repeat infringer which posts a lot of material that is not infringing and a lot that is can be taken down altogether or must be? MR. MAUSNER: Well, the service providers boasted to There

say block or disable access to the infringing material. are some cites where that can be more pinpointed.

There are

other sites where it can't be, where the only way to remove or disable access is to cut links that basically cover everything on the site. At that point, the website can make the choice as to whether to remove the infringing material or not. Now, in reality, what's going on here is these pay
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43 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 sites have lots and lots of material besides infringing Perfect 10 material, but what -- it turns out that what that material is is infringements of other copyright holders' materials, so if Your Honor ordered Google to cut access to those sites, if they tried to remove the Perfect 10 material, that may, you know, be sufficient, and then they could go up. But if the

other copyright holders came along also and said, "Wait a minute. It's not just Perfect 10, it's our stuff, too, that's

on there," then -THE COURT: MR. MAUSNER: Then what? They may not go back up again because

everything on there is infringing somebody's copyright. But the basis -- the authority for doing that is in the DMCA itself, which says you have to remove or disable access to the infringing material, and the service provider has to figure out how to do that. If there aren't links to the individual pages that contain the images, then they've got to cut the other links that allow you to get to those pages that contain the infringing material. THE COURT: MR. MAUSNER: THE COURT: MR. MAUSNER: Okay. Now answer Number 7.

On Page 8? Yes. That is partially covered by my

previous answer, which is we gave the URL that is available to
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44 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 image. the infringing material. For some websites, that goes right to an infringing For other websites, it does not go right to an

infringing image. For the pay sites, it goes to the home page, it goes to the sign-up page, other types of pages in there where once you get there, you do a couple clicks and then you get to the infringing image. The URLs don't exist for the material and you can't get to the infringing material unless you pay for it. the point of those pay sites. So we gave whatever URL was available. The service That's

provider has the obligation to remove or disable access to the infringing material. If the way you get to that material is you go to the home page and then from the home page, you click on the name of the model and that's the only way you can get to the pictures, to remove or disable access, you have to remove or disable access to the link to the home page, okay, and then it's up to the service provider to remove the infringing material if they want to get put back in. But whatever URL is available, that's what we gave to Google, and then it's up to the service provider to determine how to remove or disable access to the infringing material. And think of this, Your Honor. If Your Honor held

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45 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 answer. that there has to be a direct link to the infringing picture, every website in the world is going to start having a spacer page in between the actual infringing image and the -- you won't be able to go to the infringing image directly by putting in the URL. You'll have to go to a page that says the name of

the model first, and then it has a little word "enter" there and you click on the word "enter" to get to the pictures, because that way, you know, the service provider could claim, "We're not providing a direct link to the image. providing a direct link to the spacer page." THE COURT: Okay. Let me hear from you, Mr. Zeller, We are going to go through it We're

about a whole host of things. quickly. questions. Go ahead, Mr. Zeller.

I'm not going to ask -- hardly going to ask any more

Here's what I want you to

First answer E-1 on Pages 6 and 7. MR. ZELLER: THE COURT: MR. ZELLER: Page 13? No, 6 and 7, Item E-1. E-1. This is about Yahoo.

The short answer is is that, as Mr. Mausner has acknowledged, that they were not the same notices. Number 2, there is no evidence in the record as to what additional assistance or notification or discussions there were between Yahoo and Perfect 10. The record in our case is quite clear that there was
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46 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 not cooperation. There were multiple communications where we

did notify Perfect 10 as to what was required, and in many instances -- or at least in some instances, I should say, Perfect 10 affirmatively stated it didn't think it was necessary and, therefore, would not cooperate. So we don't know what the additional back and forth was between Yahoo or InterServer and Perfect 10 as to really know whether this is an apples-to-apples kind of comparison. And, furthermore, of course, we have no foundation whatsoever for believing that their back end or their processing or the ease by which they can process whatever it is that Perfect 10 actually provided to them is comparable to what occurred with Google. THE COURT: Okay. Now, Mr. Zeller, on Page 7, Item

3 -- and what I really should have -- the way I should have put it, because I don't want an open-ended narrative answer, is can you tell me -- and maybe one of your aides could come up with the cite -- where in the record before me there's evidence that you have tried to implement an effective notification system. MR. ZELLER: Well, there are, I think, two different

answers to that, and one is is, Your Honor, there is -- and I'd have to get the exact citation, but in the interim, Google has put up a Blogger DMCA web form, which I believe is in the record. So that's part one to the answer. That has been made available to all internet users,
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47 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 including Perfect 10, and all claimed copyright owners, including Perfect 10. The second part of the answer is is that we believe that what we've already done is compliant, and that we've taken the reasonable steps, and the statute specifically says that where you receive a deficient notice, you contact the sender and tell them, which we do, and we give them direction as to what needs to be done, which we have done. So that's how we believe we have complied with that statutory provision. But as a factual matter, we have put up,

as I mentioned, the Blogger web form. THE COURT: Now turn to Page 9, please. What in the

record demonstrates that the processing of the Group B notices was expeditious? MR. ZELLER: cited previously. That was the Poovala declaration that I

It's in the record on the DMCA summary

judgment motions, and she has a heading where it talks about the processing of the Group B notices. And that's, of course, also where it talks about some of the other efforts that were made with respect to other notices and sort of a comparison between some of those notices. THE COURT: do with the CDA. MR. ZELLER: THE COURT: Right. Item 2. Okay. Now turn to Page 11. This has to

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48 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 CDA. MR. ZELLER: Question 2, Your Honor, what I would

cite is the CCBill case again. And this is specifically in the page dealing with the And the language here, the Court makes it clear. It

says, "The majority of federal circuits have interpreted the CDA to establish broad federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." Here, Google is not the creator of the content, which is why it provides that kind of immunity, but the Courts have interpreted it so that the immunity isn't just simply for the removal. It's that the immunity doesn't apply to

non-service-provider generated content. THE COURT: And when you say "courts," you are

referring to CCBill and what other court? MR. ZELLER: Well, they also cite here a number of

cases including one of the Amazon cases, the America Online case, the MetroSplash case. THE COURT: MR. ZELLER: 1118 and following. THE COURT: MR. ZELLER: THE COURT: from your brief.
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What page are you referring to? Let's see, this is specifically Page

1118 of CCBill? Correct. Oh, okay. I thought you were reading

49 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 servers? MR. MAUSNER: I don't know whether it's on Google's MR. ZELLER: from CCBill. THE COURT: Okay. All right. Thank you, Mr. Zeller. No, no. I'm sorry. I'm reading right

Is there something you feel compelled to respond to what Mr. Mausner said before I excuse you? MR. ZELLER: THE COURT: No, Your Honor. All right. Mr. Mausner, turn to Page 12.

I don't understand what you are asking me to consider doing on RapidShare. What's that all about?

What do you mean that I would preclude and enjoin Google from powering it? MR. MAUSNER: Google provides the search tag. I

believe -- and I don't know that much about this -- Google provides the search technology for RapidShare. It says on the RapidShare websites and websites that allow searching through RapidShare "Search Powered by Google," so -THE COURT: You construe that to mean by Google's

servers, but another thing that Google does is it provides a specific browser that allows people to find material from RapidShare. THE COURT: doing that?
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And you want me to enjoin Google from

50 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 MR. MAUSNER: From cooperating with RapidShare to

allow people to find infringing materials. RapidShare is basically a hundred percent infringing. It's one of the most -THE COURT: You keep telling me. MR. MAUSNER: THE COURT: time, but questions. Tell me, though, Mr. Zeller, what does Google do for RapidShare? MR. ZELLER: Well, the short answer is I'd have to Yes. Okay. I think I've run out of not only Yes, I know. The German court so said.

investigate to know the specifics of like what's on whose server and the like. Google does provide, as an open-source matter, technology, so just because of the fact that RapidShare is doing certain things does not mean that Google participates in it. But I would also add, of course, that -THE COURT: When you say open-share or open-market

technology, does Google get compensated for that? MR. ZELLER: Not that I'm aware of, Your Honor. I

believe it makes tools available for all manner of people. I mean, I am sure there are different segments but, again, I don't know enough about RapidShare or, frankly, even understand enough about what Perfect 10's complaints have been
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

51 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 about it. To date, it has been apparently just simply that Google has any kind of links whatsoever to what they call these massively infringing websites, which, of course, runs directly counter to the Court's holdings that you