Perfect 10 Inc v. Google Inc et al

Filing 955

PLAINTIFF PERFECT 10, INC.'S OPPOSITION TO GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. 512(b) FOR ITS CACHING FEATURE - PUBLIC REDACTED VERSION Opposition to re: MOTION for Partial Summary Judgment as to Defendant Google Inc.'s Entitlement to Safe Harbor Under 17 U.S.C. 512(b) For Its Caching Feature [Public Redacted] MOTION for Partial Summary Judgment as to Defendant Google Inc.'s Entitlement to Safe Harbor Under 17 U.S.C. 512(b) For Its Caching Feature [Public Redacted] #426 filed by Plaintiff Perfect 10 Inc. (Mausner, Jeffrey)

1 Jeffrey N. Mausner (State Bar No. 122385) Law Offices of Jeffrey N. Mausner 2 Warner Center Towers 3 21800 Oxnard Street, Suite 910 Woodland Hills, California 91367-3640 4 Email: [e-mail] Telephone: [phone] Facsimile: [phone] 6 Attorneys for Plaintiff, Perfect 10, Inc. 7 8 9 10 11 PERFECT 10, INC., a California 12 corporation, 13 14 v. Plaintiff, Case No.: CV 04-9484 AHM (SHx) Consolidated with Case No. CV 05-4753 AHM (SHx) PLAINTIFF PERFECT 10, INC.'S OPPOSITION TO GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. §512(b) FOR ITS CACHING FEATURE PUBLIC REDACTED VERSION BEFORE JUDGE A. HOWARD MATZ Date: October 5, 2009 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 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

GOOGLE INC., a corporation; and 15 DOES 1 through 100, inclusive, 16 Defendants. 17 _______________________________ 18 19 20 21 22 23 24 25 26 27 28 AND CONSOLIDATED CASE.

Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(b) for Its Caching Feature

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Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(b) for Its Caching Feature

Filed Concurrently Herewith: 1) PERFECT 10'S STATEMENT OF GENUINE ISSUES IN OPPOSITION TO GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(b) FOR ITS CACHING FEATURE (FILED UNDER SEAL); 2) DECLARATIONS OF DEAN HOFFMAN, C.J. NEWTON, LES SCHWARTZ, MARGARET JANE EDEN, DR. NORMAN ZADA (UNDER SEAL, WITH EXHIBIT 9, A DISK), JEFFREY N. MAUSNER (EXHIBITS G, H, K, N, AND P FILED UNDER SEAL), SEAN CHUMURA, DAVID O'CONNOR, BENNET MCPHATTER, SHEENA CHOU, AND MELANIE POBLETE SUBMITTED IN OPPOSITION TO GOOGLE'S THREE MOTIONS FOR SUMMARY JUDGMENT RE DMCA SAFE HARBOR FOR ITS WEB AND IMAGE SEARCH, BLOGGER SERVICE, AND CACHING FEATURE (DOCKET NOS. 428, 427, AND 426) 3) PLAINTIFF PERFECT 10, INC.'S OPPOSITION TO GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. §512(c) FOR ITS BLOGGER SERVICE; AND PERFECT 10'S STATEMENT OF GENUINE ISSUES IN OPPOSITION TO GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(c) FOR ITS BLOGGER SERVICE; AND 4) PLAINTIFF PERFECT 10, INC.'S OPPOSITION TO GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. §512(d) FOR WEB AND IMAGE SEARCH; AND PERFECT 10'S STATEMENT OF GENUINE ISSUES IN OPPOSITION TO GOOGLE'S MOTION FOR SUMMARY JUDGMENT RE: SAFE HARBOR UNDER 17 U.S.C. § 512(d) FOR WEB AND IMAGE SEARCH

1 2 I. 3 II. 4 5 III. 6 IV. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. 6. 5. 4. 2. 3. B.

TABLE OF CONTENTS INTRODUCTION AND SUMMARY OF ARGUMENT .............................. 1 GOOGLE'S STORING OF WEB PAGES IN ITS CACHE FOR UP TO FOURTEEN MONTHS IS NOT TEMPORARY STORAGE.................. 1 PERFECT 10'S NOTICES FROM 2001 ARE NOT TIME BARRED .......... 3 REFUTATION OF GOOGLE'S EXAMPLES OF ALLEGED DEFICIENCIES ............................................................................................... 4 A. Incorrect Complaints About Notices From 2001 ("A" Notices). .......... 4 1. Google's Incorrect Assertion: "[The 2001 notices] suffer from a myriad of defects, including failing to identify the copyrighted works at issue, or the URLs of the infringing material." (Search Brief, pg. 8, lns. 23-24) ............... 4

Incorrect Complaints About Spreadsheet Style Notices ("B" Notices).......................................................................................... 6 1. Incorrect Assertion: Perfect 10 failed to email its notices, and Google had to manually type in all the URLs. Pgs. 11-13, 22 .............................................................................. 6 Incorrect Assertion: P10's notices were repetitive. Pgs. 1, 15, 22................................................................................ 7 Incorrect Assertion: Perfect 10's notices were burdensome and abusive. Pg. 1 ........................................................................ 7 Incorrect Assertion: Perfect 10's notices failed to identify the URLs of infringing material or the copyrighted works at issue. Pgs. 8-9, 11-12, 21. ............................................ 7 Incorrect Assertion: Google had to go through 15,000 images on perfect10.com to find the infringed image. Pgs. 10, 13, 21. ................................................................. 9 Incorrect Assertion: Identified URLs Did Not Link Directly To Infringing Content or Contained Ellipses. Pgs. 5, 23. .......... 9

Incorrect Complaints Regarding Perfect 10's Adobe Style Notices ("C Notices") .......................................................................... 10

i Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(b) for Its Caching Feature

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 26 27 28 F. D. E.

1. 2.

Examples Of Perfect 10 Adobe Style (Group "C") Notices ....................................................................................... 11 Incorrect Assertion: "Without exception, they fail to identify the `copyrighted work claimed to have been infringed' or the `material that is claimed to be infringing.'" Pgs. 20:4-6; 22. .......................................................................... 17 Incorrect Assertion: Google Could Not Determine Which Image Was Infringing. Pg. 11. ...................................... 17 Incorrect Assertion: None of P10's Notices was Actually Directed to a Google Service with Account Holders or Subscribers. Pg. 16. .................................................................. 18

3. 4.

Incorrect Complaints About Screen Shots ........................................... 19 Incorrect Complaints About Perfect 10's Usenet/Paysite Notices. Pgs. 9-11. .............................................................................. 19 1. 2. 3. Incorrect Assertion: P10's Notices Regarding Usenet Sites Were Burdensome. Pg. 11. .............................................. 19 Incorrect Assertion: None of the Raw Data Files Displayed A Web Page or Image URL. Pgs. 10-11. ................ 19 Incorrect Assertion: Many Raw Image Files Displayed Other Companies' Copyright Notices (Such As Playboy), And May Not Have Even Belonged To P10. Pg. 10. ............... 20

Incorrect Complaints About Perfect 10's Blogger Notices ................. 20 1. 2. Incorrect Assertion: Not One of P10's Notices Contained A Post URL. Pg. 4. ................................................................... 20 Incorrect Assertion: "Perfect 10's notices identifying Blogger URLs were `buried among Web Search and Image Search notices'" Pg. 5..................................................... 20 Incorrect Assertion: "Not A Single One of P10's Notices Was Directed to Blogger Pursuant to Google's Published Policy For That Service." Blogger Brief, Pg. 8. ....................... 21 Incorrect Assertion: Google's Processing Efforts for Blogger Were Expeditious. Pg. 10. .......................................... 21

3.

4.

ii Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(b) for Its Caching Feature

1 V. 2 VI. 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

COUNTERNOTIFICATIONS....................................................................... 22 PERFECT 10'S NOTICES SUBSTANTIALLY COMPLIED WITH DMCA REQUIREMENTS ............................................................... 23

4 VII. CONCLUSION .............................................................................................. 25

iii Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(b) for Its Caching Feature

1 2 Cases

TABLE OF AUTHORITIES

3 Field v. Google, 412 F. Supp. 2d 1106 (D. Nev. 2006) .......................................... 1-2 4 5 Statutes 6 17 U.S.C. § 512(c) ............................................................................................. passim 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
iv Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(b) for Its Caching Feature

1 I. 2

INTRODUCTION AND SUMMARY OF ARGUMENT Defendant Google, Inc. ("Google") has filed three separate motions arguing

3 that it should receive a DMCA safe harbor. Those motions will be referred to as 4 Google's Search Motion, Google's Blogger Motion, and Google's Cache Motion. 5 This opposition will deal primarily with Google's Cache Motion. It will also refute 6 Google's various arguments concerning the alleged deficiencies in Perfect 10's 7 notices, which are set forth in Google's Search Motion and incorporated into 8 Google's Cache Motion. This brief provides actual examples of portions of Perfect 9 10's 2001 (Group A) notices, spreadsheet (Group B) notices, and Adobe style 10 (Group C) notices, which demonstrate their sufficiency. 11 This Court should deny Google's Cache Motion for a variety of reasons, 12 including that Google's cache is not "temporary storage." In Field v. Google, 13 Google asserted that it temporarily stored material in its cache for 14 to 20 days. In 14 fact, Google has cached infringing web pages for up to fourteen months. 15 Declaration of Dr. Norman Zada ("Zada Decl.) ¶39, Exh. 26, pages 11-15. That is 16 not "temporary storage." Furthermore, even after many months, Google simply 17 refreshes these web pages, it does not remove them. See Section II below. 18 II. 19 20 GOOGLE'S STORING OF WEB PAGES IN ITS CACHE FOR UP TO FOURTEEN MONTHS IS NOT TEMPORARY STORAGE The safe harbor in 17 U.S.C. §512(b) is only applicable for "intermediate and

21 temporary storage of material on a system or network controlled or operated by or 22 for the service provider." Google incorrectly claims that its storage of the 23 infringing web pages in its cache is "intermediate and temporary." Google relies on 24 the holding of the District Court of Nevada, in Field v. Google, 412 F. Supp. 2d 25 1106 (D. Nev. 2006) for this proposition. The court in Field held that storage by 26 Google in its cache for 14 to 20 days was temporary under Section 512(b) of the 27 DMCA. The Field court based its ruling on testimony by Google's Mr. Brougher 28 that the copy of Web pages that Google stores in its cache is present for
1 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

1 approximately 14 to 20 days.1 In our case, Mr. Brougher testified that "[i]n the vast 2 majority of cases, the cache will be refreshed approximately every few weeks." 3 Brougher Decl. ¶6. 4 However, Perfect 10 has found a large number of infringing web pages 5 containing full-size P10 Images that Google has cached for eleven to fourteen 6 months. Zada Decl. ¶39, Exh. 26, pages 11-15, Exh. 9. Even if the District Court 7 in Nevada were correct that caching for 14 to 20 days is "intermediate and 8 temporary storage," caching for 11 to 14 months or more is certainly not. 9 10 Furthermore, Google does not meet other conditions of Section 512(b)(1): As for Subsection (A), Google's cache is not a situation where the material is

11 temporarily stored en route while being transmitted from a website to an end user, 12 as contemplated by Section 512(b). Google affirmatively finds and provides the 13 material itself. 14 As for Subsection (B), Google's cache is not involved in the facilitation of 15 communications between two individuals. Google goes on the Internet, determines 16 which cache links to create, and then stores a "snapshot" of web pages on its 17 servers. When a Google user requests the material, Google transmits it to its user. 18 As for Subsection (C), the users aren't requesting the material from the 19 person in subparagraph A; they are requesting it from Google. Furthermore, 20 Google makes modifications to the material, as it creates its own page which 21 incorporates that material. Google puts its own logo and text on the cache page. 22 23 24 25 26 27 28
1

In Field v.Google, the Court held: Like AOL's repository of Usenet postings in Ellison which operated between the individuals posting information and the users requesting it, Google's cache is a repository of material that operates between the individual posting the information, and the end-user requesting it. Further, the copy of Web pages that Google stores in its cache is present for approximately 14 to 20 days. See Brougher Dep. at 68:19-69:2 (Google caches information for approximately 14 to 20 days). The Court finds that Google's cache for approximately 14 to 20 days-like the 14 days deemed "transient storage" in Ellison-is "temporary" under Section 512(b) of the DMCA. The Court thus concludes that Google makes "intermediate and temporary storage" of the material stored in its cache, within the meaning of the DMCA. Id. at 1124 (emphasis added).
2 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

1 Zada Decl. ¶39, Exh. 26. 2 Google's cache is not a repository of material that operates between the 3 individual posting the information and the end-user requesting it, another 4 requirement for Section 512(b) safe harbor. The third-party website does not post 5 the infringing material in Google's cache ­ Google goes out and gets it itself 6 through Google's web crawl. 7 9 III. 10 For these reasons, and particularly because Google stores the material for 11 PERFECT 10'S NOTICES FROM 2001 ARE NOT TIME BARRED Google incorrectly claims that its failure to process any of Perfect 10's 8 to 14 months or more, Google is not entitled to the Section 512(b) safe harbor.

11 notices from 2001 is "irrelevant" and that "Perfect 10 has conceded that its suit is 12 not based on these alleged notices." Perfect 10 has conceded nothing of the kind 13 regarding its 2001 notices, and what Google refers to as "evidence" is a 14 typographical error which does not even say what Google claims. See Declaration 15 of Jeffrey N. Mausner Submitted in Opposition to Google's Three Motions for 16 Summary Judgment Re DMCA Safe Harbor ("Mausner Decl.") ¶¶14-16. 17 Google's failure to process Perfect 10's 2001 notices, and anyone else's 18 notices for that matter, is very relevant as to whether Google can argue that it 19 expeditiously processed notices and that it suitably implemented a policy against 20 repeat infringement. 21 , let alone Google cannot argue that Perfect 10's 2001 notices

22 were deficient when it did not attempt to cure any allegedly deficiencies and would 23 not process any notices, even if compliant. 24 Perfect 10's notices from 2001 are not time barred because Google was 25 continuing to link to the infringing material set forth in those notices well after that. 26 For example, Google was still linking to the identified infringing URL 27 http://www.celebritypictures.com/ MayaRubin/ maya1.htm as late as September 10, 28 2004, well within three years of Perfect 10's filing of its complaint on November
3 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

1 10, 2004. Google also displayed the same Maya Rubin images in its Image Search 2 results in November of 2005, adjacent to Google sponsored links. Zada Decl. ¶16, 3 Exh. 8. The date of notice to Google is not determinative because Google was 4 linking to that infringing web page within three years of the filing of the lawsuit. 5 IV. 6 7 REFUTATION OF GOOGLE'S EXAMPLES OF ALLEGED DEFICIENCIES Google should be estopped from contending that Perfect 10's notices are

8 deficient because Perfect 10 followed Google's instructions, and because Google 9 has not provided any concrete examples of compliant notices to compare to Perfect 10 10's notices. Google's criticisms may be broken into five main categories: 11 12 A. Incorrect Complaints About Notices From 2001 ("A" Notices). In 2001, Google never claimed that any of the notices sent by Perfect 10 were

13 deficient. However, Google refused to process any of those notices, claiming at 14 that time that it could not suppress URLs. Google's failure to process anyone's 15 notices from 2001 , and possibly beyond, creates a 16 triable issue of fact as to whether Google is eligible for any safe harbor, and if so, 17 starting as of what date. Zada Decl. ¶¶15-17, 19, Exhs. 8, 10. 18 19 20 21 22 1. Google's Incorrect Assertion: "[The 2001 notices] suffer from a myriad of defects, including failing to identify the copyrighted works at issue, or the URLs of the infringing material." (Search Brief, pg. 8, lns. 23-24) Perfect 10's 2001 notices identified the URLs of the infringing material.

23 They also in many cases showed a copy of the infringing image on the infringing 24 web page. Included below as Example 1 is a page from one such notice. Zada Decl. 25 ¶16, Exh. 8, page 4. The identified web page URL is checkmarked on the left of the 26 page. Perfect 10 also provided an image URL for the large Perfect 10 cover on the 27 upper right, which is check marked as well. Google has not explained what would 28 constitute a compliant notice for this example and should be required to do so.
4 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

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5 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

1

Because Google was still linking to the infringing web page,

2 http://www.celebritypictures.com/MayaRubin /maya1.htm, identified by this notice, 3 as late as September 10, 2004, it should have liability for its failure to act. 4 5 B. Incorrect Complaints About Spreadsheet Style Notices ("B" Notices). Perfect 10's spreadsheet style notices followed Google's instructions and

6 provided more information than Google requested. Yahoo! was able to process 7 such notices in three days, and Google was able to process such notices as well. 8 Zada Decl. ¶¶23-24, 62-63, Exhs. 12-13, 46-47, 9. So Google has no basis for its 9 allegations, as explained below. 10 11 12 1. Incorrect Assertion: Perfect 10 failed to email its notices, and Google had to manually type in all the URLs. Pgs. 11-13, 22 Google's instructions require that the notice be sent "by fax or regular mail,

13 not by email." Zada Decl. ¶23, Exh. 12, page 1. So Google has no basis for its 14 complaints. Furthermore, there is no DMCA requirement that notices be sent by 15 email. However, when Google asked Perfect 10 to send its notices by email, 16 Perfect 10 complied and sent most of its notices by email. Zada Decl. ¶26, Exh. 9. 17 Perfect 10 sent all fourteen notices in 2001 by email. However, Google 18 refused to process any of those notices. Zada Decl. ¶¶15-17, Exhs. 8, 10. 19 In 2004, Perfect 10's first notice to Google was sent by email. Google then 20 instructed Perfect 10 to send its notices by fax or mail, not by email. However, 21 Google subsequently requested that Perfect 10 resend the notices that it had faxed, 22 by email. So on July 19, 2004, at Google's request, Perfect 10 sent an excel 23 spreadsheet to Google by email which contained all of the URLs in Perfect 10's 24 first seven notices sent in 2004. Nevertheless, Google still did not suppress any of 25 the identified URLs until October 11, 2004, after it received a draft complaint from 26 Perfect 10. Because Google received Perfect 10's notices in excel format, it did not 27 need to manually type them in, as it claims. Zada Decl. ¶26, Exh. 14, page 32. 28 Perfect 10 sent a total of 24 notices to Google in 2004 through April of 2007 by
6 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

1 email, which contained thousands of identified URLs. Id. Exh. 9. 2 3 2. Incorrect Assertion: P10's notices were repetitive. Pgs. 1, 15, 22 Any repetition was due to the fact that Google did not process prior notices. it would have

4 Zada Decl. ¶¶26, 61, Exhs. 14, 45. If Google had 6 of the previous notice. 7 8 9

5 realized that the URL was repeated because it had not been suppressed at the time 3. Incorrect Assertion: Perfect 10's notices were burdensome and abusive. Pg. 1 Most of Perfect 10's initial notices were short. For example, Perfect 10's

10 2001 notices were typically five pages in length. They contained the complete URL 11 of the infringing web page, as well as, in many cases, a copy of the infringing web 12 page. Google never claimed those notices were deficient, as required by 17 U.S.C. 13 §512(c)(3)(B)(ii). Instead, Google simply incorrectly claimed it could not suppress 14 URLs. Zada Decl. ¶¶15-17, Exhs. 8-10; Mausner Decl. ¶16, Exh. M. 15 16 17 18 4. Incorrect Assertion: Perfect 10's notices failed to identify the URLs of infringing material or the copyrighted works at issue. Pgs. 8-9, 11-12, 21. Such complaints are unjustified because a) Perfect 10 followed Google's

19 instructions, and b) Google admittedly processed thousands of Perfect 10 identified 20 URLs. 21 Perfect 10 put the URL Google requested in the left column of its 22 spreadsheets, and placed the search term Google requested in the center column. 23 That search term was also almost always the name of the model whose image was 24 infringed. In addition, on the right side of Perfect 10's spreadsheet, Perfect 10 25 specified the Volume and Issue number of Perfect 10 Magazine that the infringed 26 image(s) appeared in, as well as the page range, for example, Volume 1, Number 2, 27 pages 6-11. That is more than Google requires, which is just the title of the 28 publication. Zada Decl. ¶¶23, Exh. 12, page 3.
7 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

1

In response to Perfect 10's initial notices, Google never complained about

2 any deficiency of which it now complains. Yahoo! was able to process such 3 notices, and Google belatedly did also. Zada Decl. ¶¶25-26, 61-3, Exhs. 14, 45-47. 4 Google's claims of deficiency now center around Google's assertion that 5 Perfect 10 failed to provide Image URLs with its Group B notices. However, 6 Google has never asked for Image URLs in its published Web Search 7 instructions, and there is good reason. When a web page is infringing, Google's 8 own policy calls for it to remove all direct links to that web page, independent of 9 which images on the page are infringing. To do this, Google only needs the web 10 page URL, which it must disable. By removing all direct links to an infringing web 11 page, Google must necessarily remove all thumbnails from its Image Search results 12 that link to that web page. Thus, if an infringing web page contained 500 P10 13 thumbnails, by specifying that single web page URL, Perfect 10 could get all 500 14 P10 thumbnails removed from Google Image Search, and there is little if any reason 15 to require P10 to identify 500 separate Image URLs. In other words, Google's 16 separate Image Search instructions are largely unnecessary as well as unnecessarily 17 burdensome, and there is no reason to require Perfect 10 or anyone else to specify 18 image URLs to remove infringing web page links. Declaration of Sheena Chou 19 ("Chou Decl.") ¶12; Declaration of Sean Chumura ("Chumura Decl.") ¶8; Zada 20 Decl. ¶54. If Google had wanted to find the identified infringing P10 Image(s), it 21 could have done so with the URL and model name that Perfect 10 provided by 22 searching the identified web page for images with that model name. 23 Even when Perfect 10 did provide hundreds of Image URLs in its July 19, 24 2004 notice, Google did not process them. Zada Decl. ¶26, Exh. 14, pages 28-30. 25 Nor did Google process Image URLs from Perfect 10's "check the box" style 26 notices. Google also did not expeditiously process other identified Image URLs. 27 Zada Decl. ¶¶53-55, Exhs. 38-40. 28 Because Perfect 10 followed Google's Image Search instructions, Google
8 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

1 should be estopped from asserting that Perfect 10's notices are deficient. 2 In the alternative, Google should be required to provide a concrete example 3 of what a compliant type "B" notice would be for the web page that appears as page 4 9 of Exhibit 41 to the Zada Decl. This web page contains 16 images, of which 13 5 (the ones without the red X's) are copyrighted by Perfect 10. 6 7 8 5. Incorrect Assertion: Google had to go through 15,000 images on perfect10.com to find the infringed image. Pgs. 10, 13, 21. This is not correct. The images on perfect10.com are arranged alphabetically

9 by model name to allow the user to readily find images of a particular model. Zada 10 Decl. ¶5. 11 Google has not provided any documents in discovery which suggest that it 12 has ever actually compared an allegedly infringing image to any other image. In 13 fact, Google's directions for image search require only the Image URL, and do not 14 require information regarding the infringed image. Zada Decl. ¶¶19, 54, Exh. 39. 15 This means Google just simply blocks image URLs without ever verifying whether 16 or not the allegedly infringed image matches anything. Dr. Zada has stated under 17 penalty of perjury that to the best of his belief, Perfect 10 owns the copyright. 18 Furthermore, infringing P10 Images frequently display a Perfect 10 copyright 19 notice. Google could have easily compared an allegedly infringing image to the 20 one on perfect10.com if it had wanted to do so. It is clear that Google's complaints 21 in this regard are just another after-the fact excuse for its inaction. 22 23 24 6. Incorrect Assertion: Identified URLs Did Not Link Directly To Infringing Content or Contained Ellipses. Pgs. 5, 23. There is no DMCA requirement that an identified URL must link directly to

25 an infringing image, or to an infringing movie or song. Perfect 10 is clearly entitled 26 to identify (1) a page displaying perfect10.com passwords; or (2) a page with a 27 menu of Perfect 10 model names, which when clicked on, display P10 Images; or 28 (3) a page of rapidshare.com links, which when clicked on, allow the downloading
9 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

1 of large quantities of P10 Images. So even in the few cases2 where the URL which 2 Perfect 10 identified might not have led directly to an infringing image, the notice 3 was not defective. The link that Perfect 10 identified was involved in the 4 infringement of P10 Images. 5 6 . Perfect 10 simply cut and pasted whatever URL 7 Google had listed in its search results, which is exactly what Google stated to do in 8 its instructions. Google could have located the full URL by simply doing a 9 combination Google search on the base URL and some other portion of the URL, or 10 in several other ways. Zada Decl. ¶41, Exh. 28; Chumura Decl. ¶6; Declaration of 11 David O'Connor ("O'Connor Decl."), submitted herewith, ¶6, Exh. 1. A URL 12 cannot be deemed "deficient" when it is the same URL that Google uses to identify 13 the web page or image in its own search results. Google also never suggested that 14 any URLs provided by Perfect 10 with ellipses were deficient, until after Perfect 10 15 had sent to Google 29 DMCA notices and had filed a lawsuit. Zada Decl. ¶25. 16 17 18 C. Incorrect Complaints Regarding Perfect 10's Adobe Style Notices ("C Notices") The DMCA only requires that the copyright holder provide information

19 reasonably sufficient to locate the infringing material. Perfect 10 complied with 20 this requirement by providing Google with all of the URLs that Google asked for in 21 its instructions for Web Search, Image Search, and AdSense. Perfect 10 provided 22 not only the URLs requested by Google, but also provided a copy of the infringing 23 web page as well, on which the infringing/infringed images were clearly identified 24 by a check mark or in another manner. 25 26 Perfect 10's notices were clearly sufficient to locate the infringing material,
2

This issue comes up again in the important context of the massive infringing paysites (usenet sites), for which the infringing images are not contained on web 27 pages. In those instances, involving hundreds of thousands of infringing copies, Perfect 10 provided the home page URL and instructions for locating the infringing 28 P10 images from there. See Search Opposition pages 20-22.
10 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

1 because Google admits that it suppressed approximately 3

URLs using Perfect

2 10's Adobe-style notices and then choose not to continue. Google states that it in the URLs from Perfect 10's Adobe folders when Google could 4 have rapidly extracted them using Adobe's URL extraction feature, at the rate of at 5 least 300 URLs an hour. Zada Decl. ¶9, Exh. 2, pages 6-8; Chou Decl. ¶7. Google 6 not only suppressed at least 2,300 URLs from Perfect 10's June 28, 2007 and July 7 2, 2007 notices, it also nearly or completely processed Perfect 10's November 27, 8 2008, June 4, 2008, and June 13 notices. Zada Decl. ¶61, Exh. 45. So Google has 9 no basis whatsoever to claim that Perfect 10's Adobe style notices were deficient. 10 11 1. Examples of Perfect 10 Adobe Style (Group "C") Notices Examples of various types of Perfect 10 notices are included below. In each

12 case, all images were stated as being copyrighted by Perfect 10. If the Court has 13 difficulty seeing any of the URLs in the reduced size reproductions below, the full 14 size exhibit is attached to the Zada Declaration, as noted. 15 Example 2, below, is taken from Exh. 26, page 9 to the Zada Decl. Perfect 16 10 sent Google that copy of a Google cache page and stated that all images were 17 copyrighted by Perfect 10 other than images in advertising banners. Example 2 18 gives the complete URL of the infringing web page (see highlighted link) as well as 19 a copy of the infringing/infringed image, and the search term (which was not really 20 necessary for this example). Google could have simply extracted the highlighted 21 link using Adobe's URL Extraction feature. Zada Decl. ¶9, Exh. 2, Pages 6-8; 22 Chou. Decl. ¶7. Google has no basis to claim that it cannot find its own web page 23 when given a copy of that web page. 24 ///////////// 25 ///////////// 26 ///////////// 27 ///////////// 28 /////////////
11 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

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 26 27 Example 3, below, was contained in Perfect 10's March 17, 2008 DMCA
12 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

28 notice, regarding Image Search. Zada Decl.¶¶55, 2, Exh. 40, page 1. Perfect 10

1 provided the URL Google requires (highlighted in yellow) along with a copy of the 2 actual infringing web page. Google's Image Search instructions do not ask for the 3 identification of the infringed image, but it was provided. Id. ¶¶54-55, Exs.39-40. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
13 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

1

Example 4, below, is an example from Perfect 10's January 24, 2008 DMCA

2 notice to Google. This example comes from an "ALL ARE P10" folder, which 3 means that both images were P10 Images. Green check marks have been added to 4 the original notice to show that both the Image URL and the Web page URL in this 5 example are complete. Google ads are clearly visible. Nevertheless, Google did 6 nothing in response, even though it could have obviously found its own web page 7 given a copy of that page. Zada Decl. ¶53, Exh. 38, page 1. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Example 5, below, is an example from Perfect 10's April 24, 2009 DMCA 26 notice to Google showing infringing P10 thumbnails. Perfect 10 stated that all the 27 images, other than those that are crossed out, were copyrighted by Perfect 10. The 28 search used to obtain this page is highlighted at the upper left of the page. Zada
14 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

1 Decl. ¶72, Exh. 54, page 1. Google could have performed that same search to find 2 the images shown in Exhibit 5. Instead, Google refused to process this notice, and 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
15 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature
Exh. 54, Pg. 1

1 others like it, even though it could have obviously found its own search results, 2 given a copy of those results. Zada Decl. ¶72, Exh. 54; O'Connor Decl. ¶5, Exh. 1. 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
16 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

Example 6, below, was sent to Google as part of Perfect 10's July 9, 2008

4 DMCA notice. It is an example of another kind of Perfect 10 check the box type

1 notice for identifying infringing P10 thumbnails. Zada Decl. ¶53, Exh. 38 page 7. 2 Perfect 10 stated that all of the images were copyrighted by Perfect 10. Perfect 10 3 also gave all three URLs that could be obtained from Google's Image Search 4 results. The top link is the "See full-size image" link, which is what Google 5 requests to identify images in its Image Search results. Perfect 10 also provided the 6 web search link (shown in blue) and the thumbnail URL (at the bottom). Google 7 refused to process such notices, which Microsoft did process, and which were 8 clearly sufficient. Zada Decl. ¶¶53-54, Exhs. 38-39; Chumura Decl. ¶¶4-5, Exh. 1; 9 O'Connor Decl. ¶¶4-6, Exh. 1; Bennett McPhatter Decl. ¶¶4-6. 10 11 12 13 2. Incorrect Assertion: "Without exception, they fail to identify the `copyrighted work claimed to have been infringed' or the `material that is claimed to be infringing.'" Pgs. 20:4-6; 22. This statement is incorrect because Perfect 10 sent Google a copy of the

14 infringing web page, as shown by Examples 2-6 above, showing the complete URL 15 of that web page, as well as the infringing/infringed image. In some cases those 16 images even displayed a Perfect 10 copyright notice. Since the infringing image 17 was the same as the infringed image, Google had 1) the location of the 18 infringement, as well as 2) a copy of the infringing and infringed image. And if 19 Google really wanted to compare the copy of the infringing/infringed work Perfect 20 10 sent with what was on perfect10.com, it could have done so. 21 Perfect 10 also followed Google's instructions for AdSense, Image Search, 22 and Web Search. Google has incorrectly claimed in its blogger brief that Perfect 10 23 did not provide post URLs. In fact, Perfect 10 provided at least 329 of them. Zada 24 Decl. ¶¶8, 41, 61, Exhs. 1, 28, 45; Chou Decl. ¶9. So Google has no basis 25 whatsoever for its claims regarding alleged deficiencies in Perfect 10's notices. 26 27 28 3. Incorrect Assertion: Google Could Not Determine Which Image Was Infringing. Pg. 11. Although Google claims that it couldn't figure out which image was
17 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

1 infringing, that was actually very easy. In the folders labeled "ALL ARE P10," 2 Perfect 10 edited out all the non-P10 images so that every model image in those 3 folders was infringing. Most of Perfect 10's Adobe style notices were of that type. 4 In the folders labeled "ALL LARGE ARE P10," Perfect 10 edited the attachments 5 so that every large image in the files was a P10 Image. Zada Decl. ¶¶38, 61. If 6 there were only a few P10 Images out of many, Perfect 10 put check marks next to 7 them. If there were a few non-P10 Images, Perfect 10 crossed them out. This was 8 all explained in the cover letter. It was actually very easy to see which images were 9 P10, as is apparent from Example 5 above, and other exhibits to the Zada Decl. 10 11 12 13 4. Incorrect Assertion: None of P10's Notices was Actually Directed to a Google Service with Account Holders or Subscribers. Pg. 16. The only formal instructions which Perfect 10 has ever received from Google

14 were sent to Perfect 10 on June 1, 2004. Those instructions did not mention any 15 Google products other than Web Search and Google Groups. Google has never 16 formally supplemented those instructions. Google only has one agent listed at the 17 Copyright Office and cannot object to Perfect 10 sending its notices to that agent. 18 Perfect 10 does not even know what different programs a particular infringing 19 website may be involved in. For example, a website can be a Google AdSense site 20 without showing "ads by Google." Zada Decl. ¶¶12, 71, Exh. 5, page 15. Given 21 the size of Perfect 10's notices, it is completely unreasonable for Google to suggest 22 that Perfect 10 must go through thousands of images, try to figure out which Google 23 programs are infringing those images, and then somehow break its notices down so 24 as to send various pieces to different Google departments, especially when none of 25 those departments are listed at the Copyright Office. This is just another example 26 of Google trying to make it as difficult as it can for the copyright holder. See 27 Declarations of C.J. Newton, Dean Hoffman, Margaret Jane Eden, and Les 28 Schwartz, submitted herewith; Mausner Decl. Exh. C.
18 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

1 2

D. Incorrect Complaints About Screen Shots Google complains that "Some of the screen shots failed to include a complete

3 URL of the page depicted. Other screen shots appear to have been manipulated 4 such that the image depicted could not be found at the URL depicted." Perfect 10 5 did not "manipulate" anything. It simply took a screen shot of what was on 6 Google's web page, showing whatever Google was providing to its users. Zada 7 Decl. ¶75. Perfect 10 could only provide a complete URL in those screen shots if 8 Google was. But either way, Google can find its own web page, given a copy of it. 9 10 11 E. Incorrect Complaints About Perfect 10's Usenet/Paysite Notices. Pgs. 9-11. After claiming for years that Perfect 10's notices were deficient, Google

12 finally admitted that it won't process usenet notices under any circumstances. 13 Mausner Decl. Exh. B. However, Perfect 10's Notices, which provided copies of 14 thousands of infringing images and directions for finding those images, gave 15 Google sufficient knowledge of the infringement on its system to take action. 16 17 18 1. Incorrect Assertion: P10's Notices Regarding Usenet Sites Were Burdensome. Pg. 11. When Google received thousands of copies of P10 Images infringed by one

19 of its affiliates, it did not need to look at all of them, It merely needed to look at 20 enough of them to conclude that there was massive infringement and that Google 21 should stop linking to or doing business with such infringers. 22 23 24 2. Incorrect Assertion: None of the Raw Data Files Displayed A Web Page or Image URL. Pgs. 10-11. Google's statement is not correct. Most of the images that Perfect 10

25 included in its notices to Google did display image URLs that could be used to 26 search for that particular image in the infringing paysite. Zada Decl. ¶35, Exh. 23. 27 28
19 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

1 2 3 4

3. Incorrect Assertion: Many Raw Image Files Displayed Other Companies' Copyright Notices (Such As Playboy), And May Not Have Even Belonged To P10. Pg. 10. Perfect 10 made clear that the images identified by its usenet notices were

5 those images that displayed Perfect 10 copyright notices and which were contained 6 in a file labeled "P10." In other folders, labeled "unfair competition," there were 7 examples of hundreds of full-length movies and songs to show Google the scope of 8 the infringement. Zada Decl. ¶34 , Exh. 22. 9 10 12 13 14 F. Incorrect Complaints About Perfect 10's Blogger Notices Google makes a number of complaints about Perfect 10's blogger related 1. Incorrect Assertion: Not One of P10's Notices Contained A Post URL. Pg. 4. This is demonstrably incorrect. Perfect 10 identified to Google at least 329

11 notices that are demonstrably incorrect.

15 "post URLs," at least 201 of which Google did not expeditiously suppress. Zada 16 Decl. ¶61, Exhs. 45, 9; Chou Decl. ¶9. Furthermore, there are no "post URLs" on 17 full-size blogger.com infringing web pages, so Google's instructions are not even 18 correct. Chou Decl. ¶10. Finally, the post URL requested by Google is just one of 19 the URLs that could be used to identify the location of the infringing material. 20 Perfect 10 also provided Google with the infringing web page URL (per Google's 21 web search and AdSense instructions), and the infringing Image URL (per Google's 22 Image Search instructions), any of which were sufficient. Zada Decl. ¶61, Exh. 45; 23 O'Connor Decl. ¶¶4-6, Exh. 1; Chumura Decl. ¶¶3-5, 7, Exhs. 1-2; McPhatter Decl. 24 25 26 27 2. Incorrect Assertion: "Perfect 10's notices identifying Blogger URLs were `buried among Web Search and Image Search notices'" Pg. 5. Google's agent was supposed to go through Perfect 10's notices, so the
20 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

28 location of various infringing web pages should have been irrelevant, as well as

1 apparent. Furthermore, using Adobe's search feature, Google could have found all 2 blogger and blogspot URLs by simply doing an Adobe search on blogger.com and 3 blogspot, and then extracting those URLS using the Adobe URL Extraction feature. 4 Zada Decl. ¶¶9, 12, Exh. 2, pages 6-8, Exh. 5, pages 13-14; Chou Decl. ¶7. Adobe 5 also has a "bookmark" feature which lists all the URLs contained in each file. 6 Zada Decl. ¶12, Exh. 5, page 13. Had Google employed that Adobe feature, it 7 would have seen thousands of blogger URLs listed in Perfect 10's Adobe notices. 8 9 10 11 3. Incorrect Assertion: "Not A Single One of P10's Notices Was Directed to Blogger Pursuant to Google's Published Policy For That Service." Blogger Brief, Pg. 8. Perfect 10 has never received any instructions from Google asking it to send

12 notices care of blogger. Zada Decl. ¶70. Perfect 10 is only required to send notices 13 to the agent which Google has listed at the Copyright Office, which is exactly what 14 Perfect 10 did. Id. ¶21, Exh. 11. Given the size of Perfect 10's notices, and the fact 15 that each image may be infringed by multiple Google programs, it would have been 16 extremely burdensome, and completely unnecessary, for Perfect 10 to attempt to 17 break its notices into various pieces, based on which combination of Google 18 programs may have been infringing a particular image. That is not required by 17 19 U.S.C. §512(c). Furthermore, in contrast to the burden this would place on Perfect 20 10, it was not burdensome for Google to simply remove or disable access to web 21 and image links, and remove ads, all for the same URL. This is just another 22 example of Google attempting to make it as difficult as possible for copyright 23 holders to protect their rights. 24 25 26 4. Incorrect Assertion: Google's Processing Efforts for Blogger Were Expeditious. Pg. 10. Google has admittedly suppressed at least blogger URLs and at least

27 blogspot.com URLs as a result of Perfect 10's June 28, 2007 and July 2, 2007 28 notices, but has not explained why it waited at least ten months to do so. Google
21 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

1 also failed to suppress at least 201 blogspot.com post URLs, and at least 3737 2 blogger URLs that were identified in the same fashion as the URLs which it did 3 suppress. Zada Decl. ¶61, Exhs. 45, 9. Chou Decl. ¶¶8-10, Exh. 9. Such delay and 4 inaction precludes a safe harbor. 5 V. 6 COUNTERNOTIFICATIONS Perfect 10 has identified to Google at least 30,000 infringing URLs from free

7 sites in its notices, along with at least 1.2 million infringing images from more than 8 3,000 infringing websites. Zada Decl. ¶¶19, 74. Meanwhile, Google has found 9 almost no errors on the part of Perfect 10. In fact, most of the "counternotifications" 10 are simply admissions of infringement. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
22 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

1 2 3 4 VI. 5 6 PERFECT 10'S NOTICES SUBSTANTIALLY COMPLIED WITH DMCA REQUIREMENTS The relevant statutory requirements for DMCA notices are set forth in 17

7 U.S.C. § 512(c)(3). The notices sent by Perfect 10 to Google substantially 8 complied with these requirements, for at least eight separate reasons. 9 First, there is no dispute that Perfect 10's notices satisfied subsections (i), 10 (iv), (v), and (vi) of Section 512(c)(3) because they contained: (i) a physical or 11 electronic signature of Dr. Zada; (iv) information reasonably sufficient to permit 12 Google to contact Dr. Zada; (v) a statement that Dr. Zada, on behalf of Perfect 10, 13 had a good faith belief that use of the material in the manner complained of was not 14 authorized; and (vi) a statement that the information in each notice was accurate, 15 and under penalty of perjury, that Dr. Zada is authorized to act on behalf of Perfect 16 10. See Zada Decl., ¶¶24, 34, 40, 53, 56, Exhs. 13, 22, 27, 37, 41, 9. 17 Second, to satisfy the remaining two subsections, (ii) and (iii), Perfect 10 sent 18 notices to Google in 2004 based on Google's own instructions. Perfect 10 19 complied with subsection (ii) by providing: (a) the name of the model in the 20 infringed image(s) and (b) either the volume, issue, and page numbers of the Perfect 21 10 Magazine containing those infringed images, or a reference to perfect10.com 22 sufficient to allow Google to locate those images on perfect10.com. 23 Later, beginning in June 2007, Perfect 10 satisfied subsection (ii) by sending 24 actual copies of the infringed/infringing images, meticulously edited to exclude 25 non-P10 Images. Zada Decl. ¶¶33-39, Exhs. 22-26. 26 Third, to satisfy subsection (iii), Perfect 10 initially provided the infringing 27 URLs from Google's Web Search results, as instructed by Google. Later, starting 28 in June 2007, Perfect 10 sent Google copies, using Adobe, of the infringing web
23 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

1 pages which contained the full URL of the infringing web page, as well as a copy of 2 the infringed/infringing image. Google cannot argue that it could not find its own 3 web page when provided with a copy of that page. Id. ¶¶33-57, Exhs. 22-42, 9. 4 6 Fourth, Google admittedly suppressed thousands of URLs based on Perfect Fifth, it cannot be disputed that Perfect 10's Adobe (Group C) notices URLs from Perfect 10's June 28. 2007 and 5 10's notices, so they could not be deficient.. Id. ¶¶26-28, 61, Exhs. 14-17, 45. 7 provided Google with sufficient information to locate and remove infringing links. 8 Google has admittedly suppressed 10 11 9 July 2, 2007 Adobe style notices, and completely, or nearly completely, processed additional Perfect 10 Adobe style notices in June of 2009. Id. ¶61, Exh. 45. Sixth, Google sent emails to Perfect 10 dated May 13, 2005, August 1, 2005,

12 and August 9, 2005, which did not suggest any deficiencies in Perfect 10's notices. 13 Zada Decl. ¶61, Exh. 45. 14 Seventh, Google has stated that if a notice were deficient, Google would 15 contact the copyright holder. Google did not do that in 2001. In 2004, the letters 16 that Google sent to Perfect 10 in response to Perfect 10's first seven notices did not 17 ask for image URLs, complete URLs, or suggest that Perfect 10's notices did not 18 identify the location of the infringing material or the copyrighted work allegedly 19 infringed. Instead, Google stated that it had nearly processed, or had processed, 20 Perfect 10's notices. Zada Decl. ¶25. To the extent that there were any deficiencies 21 in Perfect 10's notices, Google was required, under §512(c)(3)(B)(ii), to contact 22 Perfect 10 to cure any such deficiencies. Google not only failed to work with 23 Perfect 10 in any meaningful way, it refused repeated requests by Perfect 10 to 24 provide Perfect 10 with concrete examples of compliant notices, which Perfect 10 25 could then use as a template. Zada Decl. ¶70, Exh. 53. 26 28
24 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature

Eighth, Yahoo! was able to process Perfect 10's notices in three days. Zada

27 Decl. ¶¶62-63, Exhs. 46-47.

1 VII. CONCLUSION 2 Google has admittedly processed thousands of URLs identified by Perfect 10, 3 and failed to process thousands of others. It cannot claim that Perfect 10's notices 4 are deficient when a) the notices were created following Google's instructions; b) 5 Google has suppressed 6 8 9 Google cannot prove that it has suitably implemented a policy against repeat 10 infringers because it has not acted in response to most of Perfect 10's notices 11 regarding its blogger and AdSense account holders, and because it has not 12 13 Google has continued to misuse massive quantities of Perfect 10's 14 intellectual property for its own commercial gain, despite receiving 68 Perfect 10 15 DMCA notices, beginning in 2001. The thousands of P10 Images which Google 16 continues to display in its Image Search results and place Google ads around, for 17 which Google has received repeated notice and which display P10 copyright 18 notices, by themselves create a triable issue of fact as to whether Google is entitled 19 to a safe harbor. 20 Perfect 10 respectfully requests that this Court deny each of Google's 21 motions for summary judgment. Because of the amount of information and number 22 of arguments that Perfect 10 has had to respond to, Perfect 10 requests that it be 23 allowed to submit a surreply brief if the Court contemplates granting Google's 24 motions, or Perfect 10 be given the opportunity to present oral argument. 25 Dated: August 9, 2009 26 27 28 Respectfully submitted, Law Offices of Jeffrey N. Mausner 7 similar notices in three days; and d) URLs identified by such notices, but of other URLs identified in the same manner; c) Yahoo! has processed

/s/ Jeffrey N. Mausner By: __________________________________ Jeffrey N. Mausner, Attorney for Perfect 10, Inc.
25 Plaintiff Perfect 10, Inc.'s Opposition to Google's Motion For Summary Judgment Re: Safe Harbor Under 17 U.S.C. §512(B) for Its Caching Feature