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Inc. v. Giganews, Inc.

United States District Court, C.D. California, Western Division

January 29, 2014

PERFECT 10, INC., Plaintiff,
v.
GIGANEWS, INC., et al., Defendants

For Perfect 10, Inc., a California corporation, Plaintiff: Eric J Benink, LEAD ATTORNEY, Krause Kalfayan Benink and Slavens LLP, San Diego, CA; Lynell Diondra Davis, Natalie H Locke, LEAD ATTORNEYS, Perfect 10 Inc, Los Angeles, CA; David Nathan Schultz, Law Offices of David N. Schultz, Los Angeles, CA; Mary Kathleen Wyman, Krause Kalfayan Benink & Slavens, San Diego, CA.

For Giganews, Inc., a Texas corporation, Livewire Services, Inc., a Nevada corporation, Defendants: Andrew P Bridges, LEAD ATTORNEY, Jennifer Lloyd Kelly, Kathleen Lu, Todd Richard Gregorian, Fenwick and West LLP, San Francisco, CA; Ilana S Rubel, Fenwick and West, San Francisco, CA.

For Livewire Services, Inc., a Nevada corporation, Giganews, Inc., a Texas corporation, Counter Claimants: Andrew P Bridges, LEAD ATTORNEY, Jennifer Lloyd Kelly, Kathleen Lu, Fenwick and West LLP, San Francisco, CA.

For Perfect 10, Inc., a California corporation, Counter Defendant: Eric J Benink, LEAD ATTORNEY, Krause Kalfayan Benink and Slavens LLP, San Diego, CA; Lynell Diondra Davis, Natalie H Locke, LEAD ATTORNEYS, Perfect 10 Inc, Los Angeles, CA; Mary Kathleen Wyman, Krause Kalfayan Benink & Slavens, San Diego, CA.

OPINION

Page 1193

AUDREY B. COLLINS, UNITED STATES DISTRICT JUDGE.

ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Pending before the Court is Plaintiff Perfect 10, Inc.'s (" Plaintiff" ) Motion for Partial Summary Judgment Re: (i) DMCA Compliance of Samples Notices; and (ii) Ineligibility of Defendants for DMCA Safe Harbor Defense (" Motion," docket no. 142), filed on Nocember 4, 2013. Defendants Giganews, Inc. (" Giganews" ) and Livewire Services, Inc. (" Livewire" ) (together, " Defendants" ) filed an Opposition and Plaintiff filed a Reply. Plaintiff and Defendants also filed additional materials. See docket nos. 159-161, 165, 175. The Court finds the Motion appropriate for resolution without oral argument and therefore VACATES the hearing set for February 24, 2014. See Fed.R.Civ.P. 78, Local Rule 7-15. For the following reasons, the Court DENIES the Motion in its entirety.

I. BACKGROUND

This Order assumes familiarity with the prior Orders issued in this case, in particular with the Order granting in part and denying in part Defendants' Motion to Dismiss Complaint. See March 8, 2013 Order (J. Matz) (docket no. 97) (" March 8 Order" ).

Page 1194

In summary, Plaintiff owns the copyrights to thousands of adult images and several trademarks derivative of its name. Giganews is a Usenet service provider. The Usenet is a global network of servers that host online bulletin boards or newsgroups to which users can post " messages." As a service provider, Giganews operates servers that store this user-generated content. Livewire claims it does not store infringing materials, but instead resells access to Giganews's servers. Yokubaitis Decl. ¶ ¶ 12-16. Plaintiff alleges that Usenet users have posted messages containing thousands of Plaintiff's copyrighted images, and, broadly speaking, Plaintiff seeks to hold Defendants liable for hosting those images on their servers and/or providing access to those images.

Following motions to dismiss, the claims remaining in the case are: for direct, contributory, and vicarious copyright infringement against Giganews; and for direct copyright infringement against Livewire. Plaintiff now seeks summary adjudication of issues relating to Defendants' affirmative defenses, in particular, relating to Defendants' assertions that they are eligible for certain safe harbors established by the Digital Millenium Copyright Act (" DMCA" ), 17 U.S.C. § 512. A party that satisfies the conditions of the safe harbor provisions is protected from liability for copyright infringement.

Although Plaintiff has not organized its Motion in the most logical way and fails to distinguish between Giganews and Livewire, Defendants have helpfully parsed the Motion, and summarize it as seeking adjudication of the following issues as to Giganews: (1) whether five notices Plaintiff sent to Giganews meet the requirements of 17 U.S.C. § 512(c)(3)(A); (2) whether Giganews has reasonably implemented a repeat infringer termination policy as required by § 512(i); and (3) whether Giganews is eligible for the safe harbor protections of § § 512(a)-(d). As to Livewire, Plaintiff appears to make only one argument: that Livewire " purchases infringing materials from Giganews and resells those infringing materials to third parties," conduct that Plaintiff claims excludes Livewire from any safe harbor. See Motion at 24:3-8.

Giganews argues that Plaintiff's five sample notices do not comply with 17 U.S.C. § 512(c)(3)(A); that it has reasonably implemented a repeat infringer termination policy; and that it is eligible for safe harbor protection under § § 512(a), (c), and (d). Livewire also contends that it is eligible for safe harbor protection under § § 512(a), (c), and (d).

II. LEGAL STANDARD

" The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Once the moving party satisfies its initial burden, the adverse party must set forth specific facts showing that there is a genuine issue for trial. S. Cal. Gas Co., 336 F.3d at 888 (" [The non-moving party] can defeat summary judgment by demonstrating the evidence, taken as a whole, could lead a rational trier of fact to find in its favor." ) (citations omitted).

Both the moving party and the adverse party must support their factual positions by " citing to particular parts of materials in the record . . . or . . . showing that the materials cited do not establish the absence or presence of a genuine dispute, or

Page 1195

that an adverse party cannot product admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A), (B).

An issue of fact is genuine if it reasonably can be resolved in favor of either party. Anderson, 477 U.S. at 250-51. " [A] district court is not entitled to weigh the evidence and resolve disputed underlying factual issues." Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992). Rather, " the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). However, the court must view the evidence presented " through the prism of the substantive evidentiary burden." Anderson, 477 U.S. at 254. Yet " mere disagreement or the bald assertion that a genuine issue of material fact exists" does not preclude summary judgment. Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989). The " existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported summary judgment motion; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48. The " opponent must do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III. ANALYSIS

A. Preliminary Evidentiary Issues

The Court has reviewed the parties' voluminous evidentiary objections. Plaintiff's objections to the Declarations of Ronald Yokubaitis (docket no. 149-6) and Philip Molter (docket no. 149-11) are substantially meritless. By contrast, Defendants do raise serious questions about whether the Declarations of Norman Zada (docket nos. 142-3, 150-1) are admissible. Of particular concern is whether some of Zada's statements are tantamount to expert testimony that Zada is not qualified to give. However, the Court will not rule on these objections because even if Zada's testimony is admitted, Plaintiff's Motion still fails.

The Court overrules Plaintiff's objections to the Declarations of William Rosenblatt (docket no. 149-2) and John Levine (docket no. 149-4). Plaintiff argues that Defendants failed to disclose Rosenblatt and Levine in their Rule 26 initial disclosures and therefore should not be permitted to rely on their declarations to oppose the Motion. However, Rosenblatt and Levine are offered as experts, and as such Defendants were not required to disclose them in their Rule 26 initial disclosures. Rather, the deadline for disclosing experts is June 2, 2014. See Scheduling Order (docket no. 139). As such, Defendants have not run afoul of the deadline for disclosing Rosenblatt and Levine. The Court also overrules Plaintiff's objection that the Yokubaitis Declaration should not be considered because Defendants did not produce him for deposition. It appears that Yokubaitis was ill and the parties were working to find a convenient deposition date when Plaintiff decided to file its Motion. Notably, Plaintiff ...


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