Perfect 10, Inc. v. Cybernet Ventures, Inc.
| Decision Date | 22 April 2002 |
| Docket Number | No. CV 01-2595LGB(SHX).,CV 01-2595LGB(SHX). |
| Citation | 213 F.Supp.2d 1146 |
| Parties | PERFECT 10, INC., Plaintiff, v. CYBERNET VENTURES, INC., et al., Defendants |
| Court | U.S. District Court — Central District of California |
Jeffrey N. Mausner, Laurence M. Berman, Berman, Mausner & Resser, Ronald L. Johnston, John J. Quinn, Sean Morris, Daniel J. Cooper, Arnold & Porter, Los Angeles, CA, for Perfect 10, Inc.
Alejandro N. Mayorkas, James P. Jenal, Elyssa M. Getreu, Dawn Sestito, O'Melveny & Myers, LLP, Los Angeles, CA, for Laith Alsarraf.
Christopher G. Caldwell, Michael J. Proctor, Kenneth J. Kao, Caldwell, Leslie, Newcombe & Pettit, Los Angeles, CA, for Cybernet Ventures, Inc.
ORDER GRANTING PERFECT 10'S MOTION FOR PRELIMINARY INJUNCTION
This action springs from Perfect 10, Inc.'s ("Perfect 10") allegations that defendant Cybernet Ventures, Inc. ("Cybernet"), a corporation running a web-service called "Adult Check," and other defendants infringe Perfect 10's copyrights, violate Perfect 10's trademark rights and otherwise engage in rampant unfair business practices.
Currently before the Court is Perfect 10's Request for a Preliminary Injunction, which requests relief against a variety of defendants. The Court has received Perfect 10's motion, defendants Cybernet and Laith Alsarraf's oppositions, and Perfect 10's reply. These briefs are supported by voluminous supporting papers (and the accompanying evidentiary objections).
In support of its motion for a preliminary injunction, Perfect 10 submitted 117 exhibits attached to the declaration of Norman Zadeh, Ph.D. ("Zadeh Decl."), 16 exhibits attached to the declaration of Daniel Farmer ("Farmer Decl.") and 13 exhibits attached to the declaration of Jeffrey Mausner ("Mausner Decl."). Perfect 10 supplemented these declarations with several others. Cybernet basically objects to every exhibit attached to the Zadeh and Farmer declarations, as well as two exhibits attached to the Mausner declaration. In addition Cybernet has raised objections to portions of declarations filed by Zadeh, Farmer, Mausner, Laurence Rudolph ("Rudolph Decl."), Selma Rubin ("Rubin Decl.") and John Baruck ("Baruck Decl.").
Perfect 10 has also raised objections to evidence submitted by Cybernet. Perfect 10 objects to a single paragraph in the declaration of Timothy Umbreit ("Umbreit Decl.") and to ten paragraphs in the declaration of Frederick Lane III ("Lane Decl."). Before the Court makes its findings of fact under Federal Rule of Procedure 65, it will address these objections. It will do so, however, only in broad strokes.
The great bulk of Cybernet's objections center on Perfect 10's exhibits printed off of the internet. See Cybernet Evidentiary Objections ("Def.Obj.") at 1-5. Cybernet argues these exhibits are insufficiently authenticated. See, e.g., id. at 1. In support, Cybernet points to two cases, United States v. Jackson, 208 F.3d 633, 637 (7th Cir.2000), cert. denied, 531 U.S. 973, 121 S.Ct. 416, 148 L.Ed.2d 321 (2000), and St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 774 (S.D.Tex.1999).
The Jackson court upheld the exclusion of certain web postings attributed to white supremacist groups because they were insufficiently authenticated. 208 F.3d at 638. As the court viewed the situation, the criminal defendant in the case had to show that the postings, in which these groups appeared to claim responsibility for a series of racist mailings, actually were posted by the groups, as opposed to being slipped on the groups' web sites by the defendant, who was a skilled computer user. Id.
The St. Clair court took a more extreme view over the admissibility of data taken from the United States Coast Guard's on-line vessel database concerning the ownership of a vessel. 76 F.Supp.2d at 774. The court viewed the internet as "one large catalyst for rumor, innuendo, and misinformation," stated that there was "no way" the plaintiff could overcome "the presumption that the information ... discovered on the Internet is inherently untrustworthy." Id. The court then excluded the information as hearsay, rather than "relying on the voodoo information taken from the Internet." Id.
Although these out-of-circuit cases are informative concerning the potential pitfalls of internet-based documents, this Court must look to the Ninth Circuit for guidance. In United States v. Tank, 200 F.3d 627, 630 (9th Cir.2000), the Ninth Circuit addressed the admissibility of certain chat room logs. In Tank, the government initiated a prosecution against a child pornography suspect after a search of another suspect's computer files revealed "recorded" online chat room discussions among members of an internet club focused on discussing, trading, and producing child pornography. 200 F.3d at 629. The recorder of these chat room discussions had deleted from his computer nonsexual conversations and extraneous material, such as date and time stamps. Id.
The Tank court observed that the foundational requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. See 200 F.3d at 630 (citing Fed.R.Evid. 901(a)). This burden is met when "sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity." Id. (citations omitted). This burden was met where the producer of the logs explained how he created the logs with his computer and stated that the printouts appeared to be accurate representations. Id. Additionally, the government established the connection between Tank and the chat room log printouts. Id.
The Court finds that Zadeh's declaration adequately establishes the prima facie case for admissibility in claiming the exhibits attached to his declaration were either:
1) true and correct copies of documents produced by Cybernet in discovery (identified by a CV prefix);
2) true and correct copies of pictures from Perfect 10 Magazine or from Perfect 10's website; or
3) true and correct copies of pages printed from the Internet that were printed by Zadeh or under his direction.
Zadeh Decl. ¶ 7. Those webpages that fall under category (3) contain the internet domain address from which the image was printed and the date on which it was printed. Id. ¶ 8.
The first category is covered by Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n. 12 (9th Cir.1996) (). See also Orr v. Bank of America, NT & SA, 285 F.3d 764, 770-71, 777 n. 20 (9th Cir. 2002) (citing to same). The second and third categories have met the prima facie burden because the declarations, particularly in combination with circumstantial indicia of authenticity (such as the dates and web addresses), would support a reasonable juror in the belief that the documents are what Perfect 10 says they are. See Tank, 200 F.3d at 630. Moreover, because computer printouts are the only practical method by which the allegations of the complaint can be brought before the Court and there is generally a reduced evidentiary standard in preliminary injunction motions,1 the Court finds that, as a general rule, Zadeh's declaration is sufficient to establish the exhibits' authenticity.2
This is particularly true with regard to e-mail communications attributed to Brad Estes. Mr. Estes's deposition testimony establishes that it is part of his duties to respond to posts in Adult Check's "webmasters lounge" and that he responds to e-mails from webmasters concerning aspects of Cybernet's "Adult Check" program. Mausner Decl., Ex. C at 94-97.
Cybernet does not object to the Court's consideration of the communications purportedly made by Cybernet's employees "if the Court were to accept Plaintiff's scanty authentication" but does object to consideration of the communications attributed to third parties on hearsay grounds. See Evid. Obj. at 3. The Court treats the communications attributable to Cybernet employees as party admissions and will accept the third party communications only insofar as they indicate notice of infringing or potentially infringing activity.3 See Fed.R.Evid. 801.
Cybernet objects to the printouts from third-party websites as a violation of the rule against hearsay. See Fed.R.Evid. 801. To the extent these images and text are being introduced to show the images and text found on the websites, they are not statements at all — and thus fall outside the ambit of the hearsay rule.4 To the extent that Perfect 10 relies on directories and the like as assertions that the links provided actually connect to the subject matter claimed in the link, the Court finds the hearsay issue to be a closer question. The Court will deal with this issue, should it arise, on a case-by-case basis. As for any asserted connection between those sites and Adult Check (Cybernet), the Court finds the evidence of Cybernet's business structure and the workings of Adult Check's age verification program combined with statements identifying the individual websites as Adult Check sites are enough to establish the sites' membership in the Adult Check program. This takes the various printouts outside the definition of hearsay, for this purpose. See Fed.R.Evid. 801(d)(2)(D).
Perfect 10 has prepared a chart ("Chart 1") outlining examples of infringing conduct it claims has been or can be found on websites affiliated with "Adult Check." Zadeh Decl., Chart 1. Cybernet argues that the Zadeh declaration has failed to adequately establish how the chart was compiled, fails to lay an adequate foundation and that its descriptions of exhibits...
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