Perfect 10 Inc v. Google Inc et al

Filing 938

SUPPLEMENTAL MEMORANDUM OF LAW OF PLAINTIFF PERFECT 10, INC. IN OPPOSITION TO DEFENDANT GOOGLE INC.'S MOTION TO QUASH SUBPOENAS DIRECTED TO SHANTAL RANDS POOVALA AND FOR A PROTECTIVE ORDER re: MOTION to Quash Subpoena served by Perfect 10, Inc. on Ms. Shantal Rands Poovala and for a Protective Order #904 filed by Plaintiff Perfect 10 Inc. (Attachments: #1 Declaration of David N. Schultz in Opposition to Defendant Google Inc.'s Motion to Quash Subpoenas Directed to Shantal Rands Poovala and for a Protective Order)(Mausner, Jeffrey)

Perfect 10 Inc v. Google Inc et al

Doc. 938 Att. 1

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Jeffrey N. Mausner (State Bar No. 122385) [e-mail] David N. Schultz (State Bar No. 123094) [e-mail] Law Offices of Jeffrey N. Mausner Warner Center Towers 21800 Oxnard Street, Suite 910 Woodland Hills, California 91367 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff Perfect 10, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PERFECT 10, INC., a California corporation, v. Plaintiff, Case No. CV 04-9484 AHM (SHx) Before Judge Stephen J. Hillman DECLARATION OF DAVID N. SCHULTZ IN OPPOSITION TO DEFENDANT GOOGLE INC.'S MOTION TO QUASH SUBPOENAS DIRECTED TO SHANTAL RANDS POOVALA AND FOR A PROTECTIVE ORDER [SUPPLEMENTAL MEMORANDUM OF LAW IN OPPOSITION TO THE MOTION SUBMITTED SEPARATELY HEREWITH] Date: August 9, 2010 Time: 2:00 p.m. Place: Courtroom 550, Courtroom of the Honorable Stephen J. Hillman Discovery Cut-Off Date: None Set Pretrial Conference Date: None Set Trial Date: None Set

GOOGLE INC., a corporation, Defendants.

Declaration Of David N. Schultz In Opposition To Defendant Google Inc.'s Motion To Quash Subpoenas Directed To Shantal Rands Poovala And For A Protective Order
Dockets.Justia.com

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DECLARATION OF DAVID N. SCHULTZ I, David N. Schultz, declare as follows: I am a member of the State Bar of California and admitted to practice before this Court. I am counsel of record for Plaintiff Perfect 10, Inc. ("Perfect 10") in this action. All of the matters stated herein are of my own personal knowledge, except where otherwise stated, and if called as a witness, I could and would testify competently thereto. I make this declaration in connection with Perfect 10's Opposition to Defendant Google Inc.'s Motion To Quash Subpoenas Directed To Shantal Rands Poovala and For A Protective Order. 2. 3. Attached hereto as Exhibit A is a true and correct copy of a Minute Attached hereto as Exhibit B is a true and correct copy of Plaintiff Order issued by Judge Matz on July 21, 2010 (Docket No. 931). Perfect 10, Inc.'s Response To Minute Order Dated July 21, 2010 Regarding Google's Motion For Safe Harbor Under 17 U.S.C. § 512(b) (Docket No. 932), filed by Perfect 10 on July 22, 2010 in response to Judge Matz's Minute Order attached hereto as Exhibit A (without the exhibits thereto) ("Perfect 10's Response"). Portions of Perfect 10's Response are highlighted in yellow. As may be seen by a review of Exhibit B, Perfect 10's Response relied in large part on the Declaration of Shantal Rands Poovala In Support Of Defendant Google's Motions For Summary Judgment Re: Google' s Entitlement To Safe Harbor Under 17 U.S.C. § 512 (Docket No. 433, public redacted version) (the "Poovala Declaration"), In particular, Perfect 10's Response quoted all of Paragraph 10 of the Poovala Declaration, which states as follows: Google's Web Search policy covers its caching feature as well. When Google suppresses a live web page URL from appearing in Web Search results pursuant to its Web Search DMCA procedure, it automatically prevents all cached links to that page from appearing in Web Search results as well.
Declaration Of David N. Schultz In Opposition To Defendant Google Inc.'s Motion To Quash Subpoenas Directed To Shantal Rands Poovala And For A Protective Order

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Perfect 10's Response also noted that the Poovala Declaration was the primary declaration submitted by Google in support of its pending DMCA summary judgment motions. 4. Attached hereto as Exhibit C are true and correct copies of emails between me and Andrea Pallios Roberts of Quinn Emanuel Urquhart & Sullivan, LLP, counsel of record for Defendant Google Inc. ("Google"), dated May 6, 2010, agreeing to continue the deposition of Shantal Rands Poovala from May 20, 2010, the date originally set forth in the deposition subpoena served upon Ms. Poovala, until June 24, 2010. 5. 17, 2005. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge. Executed on July 26, 2010 in Los Angeles County, California. Attached hereto as Exhibit D is a true and correct copy of Defendant Google Inc.'s Initial Disclosures Pursuant To Fed. R. Civ. P. 26(a)(1), dated March

__________________________________ David N. Schultz

Declaration Of David N. Schultz In Opposition To Defendant Google Inc.'s Motion To Quash Subpoenas Directed To Shantal Rands Poovala And For A Protective Order

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Exhibit A

Case 2:04-cv-09484-AHM-SH Document 931

Filed 07/21/10 Page 1 of 1 Page ID #:18219

O UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL Case No. Title CV 04-9484 AHM (SHx) PERFECT 10, INC. v. GOOGLE, INC., et al. Date July 21, 2010

Present: The Honorable Stephen Montes Deputy Clerk

A. HOWARD MATZ, U.S. DISTRICT JUDGE Not Reported Court Reporter / Recorder Tape No. Attorneys NOT Present for Defendants:

Attorneys NOT Present for Plaintiffs:

Proceedings:

IN CHAMBERS (No Proceedings Held)

The Court ORDERS the parties by noon tomorrow, July 22, 2010, to identify where in the existing briefs on Google's motion for safe harbor under 17 U.S.C. § 512(b)1 there is any reference in any of the"Group B" "spreadsheet" notices sent between May 31, 2004 and April 24, 2007 (Poovala Decl. ¶ 41, Exhs. L1-L48) identifying any specific material on Google's cache as infringing.

: Initials of Preparer SMO

1

Docket No. 458 and related filings.
CIVIL MINUTES - GENERAL Page 1 of 1

CV-90 (06/04)

Exhibit B

Case 2:04-cv-09484-AHM-SH Document 932 Filed 07/22/10 Page 1 of 22 Page ID #:18220

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Jeffrey N. Mausner (State Bar No. 122385) David N. Schultz (State Bar No. 123094) Law Offices of Jeffrey N. Mausner 21800 Oxnard Street, Suite 910 Woodland Hills, California 91367-3640 E-mail: [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, Defendant. ______________________________ Date: None set Time: None set 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 Case No. CV 04-9484 AHM (SHx) Before Judge A. Howard Matz PLAINTIFF PERFECT 10, INC.'S RESPONSE TO MINUTE ORDER DATED JULY 21, 2010 REGARDING GOOGLE'S MOTION FOR SAFE HARBOR UNDER 17 U.S.C. § 512(b)

Plaintiff Perfect 10, Inc.'s Response To Minute Order Dated July 21, 2010 Regarding Google's Motion For Safe Harbor Under 17 U.S.C. § 512(b)

Case 2:04-cv-09484-AHM-SH Document 932 Filed 07/22/10 Page 2 of 22 Page ID #:18221

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Plaintiff Perfect 10, Inc. ("Perfect 10") hereby responds to this Court's Minute Order dated July 21, 2010 (Docket No. 931) (the "Order"). The Order asks the parties "to identify" references in any of the "Group B" "spreadsheet" notices sent by Perfect 10 to Defendant Google Inc. ("Google") between May 31, 2004 and April 24, 2007 "identifying any specific material on Google's cache as infringing." As explained below, Perfect 10's Group B spreadsheet notices identify specific material on Google's cache as infringing for several reasons. First, the material on Google's cache is simply a Google copy of a third party web page, with exactly the same URL. Therefore, all of Perfect 10's Group B spreadsheet notices necessarily identify "specific material on Google's cache as infringing" when they identify any infringing web page. In other words, for purposes of identifying specific infringing material, identifying a web page link and identifying a cache link are effectively one and the same. Google's own DMCA agent, Shantal Rands Poovala, concedes as much in her declaration in support of Google's motion for safe harbor under 17 U.S.C. §512(b) (the "DMCA Motion"). Ms. Poovala states that Google's Web Search policy covers its caching feature as well, and that when Google suppresses a web page URL, it automatically suppresses the related cache link [see Section I, below]. Second, even though it was not necessary for Perfect 10 to do so under Google's policy as set forth in Ms. Poovala's declaration, Perfect 10 at times specifically used the terminology "cache links" in connection with infringing material, both in its Group B spreadsheet notices and in its pleadings in opposition to the DMCA Motion. Examples of these references are discussed in Section II, below. I. GOOGLE'S STATED POLICY IS THAT IDENTIFYING A WEB PAGE AS INFRINGING NECESSARILY IDENTIFIES GOOGLE'S CACHE COPY OF THAT WEB PAGE AS INFRINGING. The material that appears on Google's cache page is simply a copy made
1 Plaintiff Perfect 10, Inc.'s Response To Minute Order Dated July 21, 2010 Regarding Google's Motion For Safe Harbor Under 17 U.S.C. § 512(b)

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by Google of a third party web page, with the exact same URL. Consequently, when one of Perfect 10's Group B spreadsheet notices identified a web page as infringing, that notice necessarily identified the corresponding Google cache page as being infringing as well. Google's DMCA agent, Shantal Rands Poovala ("Ms. Poovala"), concedes this point. Ms. Poovala submitted the primary declaration in support of Google's DMCA Motion. Paragraph 10 of that declaration states, in its entirety, as follows: Google's Web Search policy covers its caching feature as well. When Google suppresses a live web page URL from appearing in Web Search results pursuant to its Web Search DMCA procedure, it automatically prevents all cached links to that page from appearing in Web Search results as well. Declaration of Shantal Rands Poovala In Support Of Defendant Google's Motions For Summary Judgment Re: Google' s Entitlement To Safe Harbor Under 17 U.S.C. § 512 (Docket No. 433, public redacted version) (the "Poovala Declaration"), ¶10 (emphasis added). For the Court's convenience, Paragraph 10 of the Poovala Declaration, taken from the public redacted version of the document, is attached hereto as Exhibit 1.1 Accordingly, under Google's own Web Search policy, when Perfect 10 identified an infringing web page in its Group B spreadsheet notices, it
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Perhaps because of Google's policy, described in Paragraph 10 of the Poovala Declaration, of automatically removing the related cache link when Google removes an indentified infringing web page link, there is no mention of the word "cache" in the instructions for creating DMCA notices which Google sent to Perfect 10 in 2004, or in Google's current DMCA instructions. Nor is there any mention in either Google's 2004 instructions or Google's current instructions of the need for a party submitting a DMCA notice to take any additional steps to identify cache links. Google's 2004 instructions to Perfect 10 were attached as part of Exhibit 12 to the Declaration of Dr. Norman Zada Submitted in Opposition to Google's Three Motions for Summary Judgment Re DMCA Safe Harbor (Docket No. 491) (the "Zada Declaration"). For the convenience of the Court, those instructions are attached hereto as Exhibit 2. Perfect 10 followed those instructions when it created its Group B spreadsheet notices.
2 Plaintiff Perfect 10, Inc.'s Response To Minute Order Dated July 21, 2010 Regarding Google's Motion For Safe Harbor Under 17 U.S.C. § 512(b)

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necessarily identified that same material on Google's cache page as infringing. As Dr. Zada stated in his declaration in opposition to the DMCA Motions, "The Google cache link matches the full URL of the infringing web page ..." Zada Declaration, ¶39 (emphasis added).2 Furthermore, under Google's own policy, when Perfect 10 provided a web page link in its Group B spreadsheet notices, that was sufficient for Google to remove the cache link as well. Because every web page URL in Perfect 10's Group B spreadsheet notices is a URL for Google's cache as well, and because the majority of the URLs on Perfect 10's Group B spreadsheet notices are web page URLs, Perfect 10's Group B spreadsheet notices identify a significant amount of specific material on Google's cache as infringing. For example, because Perfect 10's February 17, 2005 notice consists primarily of web page URLs, most of that notice identifies specific infringing material on Google's cache. See Poovala Declaration, Exh. L29. II. PERFECT 10'S NOTICES AND PLEADINGS CONTAIN REFERENCES TO SPECIFIC INFRINGING MATERIAL ON GOOGLE'S CACHE. Under Google's policy set forth in Paragraph 10 of the Poovala Declaration, every reference to a web page URL is a reference to specific infringing material on Google's cache. Therefore, it was not necessary for Perfect 10 to specifically use the term "cache" in its DMCA notices. See Section I, above. Nevertheless, Perfect 10's Group B spreadsheet notices occasionally used that terminology and referred to material on Google's cache as infringing. For example, Perfect 10 referred to infringements on Google's cache links in the January 3, 2005 Group B spreadsheet notice it sent to Google. That notice states as follows: "Jerkengine has thousands of Perfect 10 infringements available by clicking on the Google cache link . . . " (emphasis added). Infringing URLs for For the convenience of the Court, Paragraph 39 of the Zada Declaration is attached hereto as part of Exhibit 3.
3 Plaintiff Perfect 10, Inc.'s Response To Minute Order Dated July 21, 2010 Regarding Google's Motion For Safe Harbor Under 17 U.S.C. § 512(b)
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jerkengine.com are listed in the spreadsheet portion of the notice. Perfect 10's January 3, 2005 notice is attached as Exhibit L22 to the Poovala Declaration. Portions of this notice are also attached as Exhibit 13 to the Zada Declaration. Perfect 10 also refers to Group B spreadsheet notices that identify specific material on Google's cache as infringing in its pleadings in opposition to Google's pending DMCA summary judgment motions. For example, in its Opposition to Google's Motion For Summary Judgment Re: Safe Harbor For Web And Image Search (Docket No. 498) (the "Opposition"), Perfect 10 contends that Google has not removed identified infringing cache pages. See Opposition at 16:3-9. One of the documents cited by Perfect 10 in support of this contention is a chart entitled "GOOGLE DELAY IN REMOVING IDENTIFIED INFRINGING CACHE LINKS," found at page 1 of Exhibit 44 to the Zada Declaration. This chart, which was also discussed in Paragraph 59 of the Zada Declaration, describes Google's delay in removing four cache links identified by Perfect 10 in Group B spreadsheet notices that were sent to Amazon in 2005 and forwarded to Google that year. For the convenience of the Court, this chart is attached hereto as the first page of Exhibit 3. Also attached as part of Exhibit 3 are pages from two of those notices and portions of the Zada Declaration that describe the "Google Delay In Removing Identified Infringing Cache Links" chart. The four entries of "4/8/05" which are highlighted in yellow in the chart refer to URLs identified by Group B spreadsheet notices. In other words, Perfect 10 specifically referred to infringing cache links which were identified by its Group B spreadsheet notices in Paragraph 59 of the Zada Declaration and page 1 of Exhibit 44 to the Zada Declaration. The chart found at page 1 of Exhibit 44 to the Zada Declaration and attached hereto as the first page of Exhibit 3 also refers to certain pages from Group C notices sent by Perfect 10 to