`#:13229
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`Jean-Paul Ciardullo (CA Bar No. 284170)
`E-mail: jciardullo@foley.com
`FOLEY & LARDNER LLP
`555 South Flower Street, Suite 3500
`Los Angeles, CA 90071-2411
`Telephone: (213) 972-4500
`Facsimile:
`(213) 486-0065
`Jonathan E. Moskin (pro hac vice)
`E-mail: jmoskin@foley.com
`FOLEY & LARDNER LLP
`90 Park Avenue
`New York, NY 10016-1314
`Telephone: (212) 682-7474
`Facsimile:
`(212) 687-2329
`Attorneys for Defendant-Counterclaimant
`KAYAK SOFTWARE CORPORATION
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`WESTERN DIVISION
`
`EVOX PRODUCTIONS LLC,
`a Delaware limited liability company,
`Plaintiff,
`
`v.
`KAYAK SOFTWARE CORPORATION,
`a Delaware corporation; and DOES 1-10,
`Defendants.
`KAYAK SOFTWARE CORPORATION,
`a Delaware corporation,
`Counterclaimant,
`
`v.
`EVOX PRODUCTIONS LLC,
`a Delaware limited liability company,
`Counterdefendant.
`
`Case No: CV15-05053-PSG-AGR
`
`RESPONSES TO PLAINTIFF AND
`COUNTERDEFENDANT EVOX
`PRODUCTIONS LLC’S FIRST SET
`OF REQUESTS FOR ADMISSION
`TO DEFENDANT AND
`COUNTERCLAIMANT KAYAK
`SOFTWARE CORPORATION
`The Honorable Philip Gutierrez
`
`Trial Date: January 31, 2017
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`Case 2:15-cv-05053-PSG-AGR Document 167-15 Filed 03/01/17 Page 2 of 7 Page ID
`#:13230
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`KAYAK Software Corporation (“KAYAK”) hereby responds as set forth below to
`EVOX Productions LLC’s First Set of Requests for Admission, Numbers 1 through 11.
`KAYAK expressly reserves its right to supplement these responses as more information
`becomes available to it.
`RESPONSES TO REQUESTS FOR ADMISSION
`REQUEST FOR ADMISSION NO. 1:
`Admit that KAYAK does not own any of the COPYRIGHTED PHOTOGRAPHS.
`RESPONSE TO REQUEST FOR ADMISSION NO. 1:
`KAYAK admits that it makes no claim to ownership of the stock photographs at
`issue in this case.
`REQUEST FOR ADMISSION NO. 2:
`Admit that EVOX owns the COPYRIGHTED PHOTOGRAPHS.
`RESPONSE TO REQUEST FOR ADMISSION NO. 2:
`After reasonable inquiry, KAYAK is unable to admit or deny this request pending
`receipt of discovery from Evox and pending determination whether the stock photographs
`are copyrightable. KAYAK therefore denies the same.
`REQUEST FOR ADMISSION NO. 3:
`Admit that the COPYRIGHTED PHOTOGRAPHS are entitled to protection under
`United States copyright law.
`RESPONSE TO REQUEST FOR ADMISSION NO. 3:
`KAYAK denies this request.
`REQUEST FOR ADMISSION NO. 4:
`Admit that KAYAK may use the COPYRIGHT PHOTOGRAPHS only as provided
`for by the LICENSE AGREEMENT.
`RESPONSE TO REQUEST FOR ADMISSION NO. 4:
`KAYAK admits that its understanding of the license agreement is that it is
`permitted to use the stock photographs on its mobile app as well as its internet site. After
`reasonable inquiry, KAYAK is unable to admit or deny this request pending receipt of
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`Case 2:15-cv-05053-PSG-AGR Document 167-15 Filed 03/01/17 Page 3 of 7 Page ID
`#:13231
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`discovery from Evox and pending determination whether the stock photographs are
`copyrightable. KAYAK therefore denies the same.
`
`REQUEST FOR ADMISSION NO. 5:
`Admit that the LICENSE AGREEMENT granted KAYAK a license to use the
`COPYRIGHTED PHOTOGRAPHS only within the SCOPE OF USE of the LICENSE
`AGREEMENT.
`RESPONSE TO REQUEST FOR ADMISSION NO. 5:
`KAYAK objects that this request calls for a legal conclusion as to the scope of use
`contemplated by the License Agreement.
`KAYAK admits that its understanding of the scope of use in the license agreement
`is that it is permitted to use the stock photographs on its mobile app as well as its internet
`site. KAYAK otherwise denies this request.
`
`REQUEST FOR ADMISSION NO. 6:
`Admit that the SCOPE OPF USE of the LICENSE AGREEMENT is limited to “(a)
`Use in a research application on a single Portal Website; (b) Use as Accent Graphics on
`a single Portal Website.”
`RESPONSE TO REQUEST FOR ADMISSION NO. 6:
`KAYAK objects that this request calls for a legal conclusion as to the scope of use
`contemplated by the License Agreement. The request is also vague and ambiguous given
`that the License Agreement provides no definition of “portal.”
`KAYAK admits that its understanding of the scope of use in the license agreement
`is that it is permitted to use the stock photographs on its mobile app as well as its internet
`site. KAYAK otherwise denies this request.
`
`REQUEST FOR ADMISSION NO. 7:
`Admit that KAYAK used the COPYRIGHTED PHOTOGRAPHS on KAYAK’s
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`Case 2:15-cv-05053-PSG-AGR Document 167-15 Filed 03/01/17 Page 4 of 7 Page ID
`#:13232
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`MOBILE APPLICATION.
`RESPONSE TO REQUEST FOR ADMISSION NO. 7:
`KAYAK admits that it used at least some of the subject stock photos on its mobile
`app pursuant to the License Agreement and the parties’ express understanding in entering
`the License Agreement, which permitted all uses at issue in this action.
`
`REQUEST FOR ADMISSION NO. 8:
`Admit that KAYAK’s MOBILE APPLICATION is a separate PLATFORM from
`KAYAK’s WEBSITE.
`RESPONSE TO REQUEST FOR ADMISSION NO. 8:
`Denied.
`REQUEST FOR ADMISSION NO. 9:
`Admit
`that KAYAK
`infringed EVOX’s
`PHOTOGRAPHS.
`RESPONSE TO REQUEST FOR ADMISSION NO. 9:
`Denied.
`REQUEST FOR ADMISSION NO. 10:
`Admit that KAYAK removed COPYRIGHT MANAGEMENT INFORMATION from
`EVOX’s COPYRIGHTED PHOTOGRAPHS.
`RESPONSE TO REQUEST FOR ADMISSION NO. 10:
`Admit that Evox consented to KAYAK’s use of the subject stock photos under a
`page-attribution method without the original copyright management information
`accompanying each image separately and otherwise denies this request.
`
`rights
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`in
`
`the COPYRIGHTED
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`REQUEST FOR ADMISSION NO. 11:
`the COPYRIGHT MANAGEMENT
`Admit
`that, other
`than
`removing
`INFORMATION, KAYAK did not alter the COPYRIGHTED PHOTOGRAPHS for use on
`its MOBILE APPLICATION.
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`4851-9306-0654.1
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`Case 2:15-cv-05053-PSG-AGR Document 167-15 Filed 03/01/17 Page 5 of 7 Page ID
`#:13233
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`RESPONSE TO REQUEST FOR ADMISSION NO. 11:
`Admit that Evox consented to KAYAK’s use of the subject stock photos under a
`page-attribution method without the original copyright management information
`accompanying each image separately; admit that KAYAK made no changes to the photos
`other than with Evox’s consent, and otherwise deny this request.
`
`DATED: March 23, 2016
`
`
`
`FOLEY & LARDNER LLP
`
`By: /s/ Jean-Paul Ciardullo
` Jean-Paul Ciardullo
`
`Attorneys for Defendant-Counterclaimant,
`KAYAK SOFTWARE CORPORATION
`
`Jonathan E. Moskin, Esq. (pro hac vice)
`FOLEY & LARDNER LLP
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`Case 2:15-cv-05053-PSG-AGR Document 167-15 Filed 03/01/17 Page 6 of 7 Page ID
`#:13234
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`PROOF OF SERVICE
`
`STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
`At the time of service, I was over 18 years of age and not a party to this action. I
`am employed in the County of Los Angeles, State of California. My business address is
`555 South Flower Street, Suite 3500, Los Angeles, CA 90071-2411.
`
`On March 23, 2016, I served true copies of the following document(s) described as
`RESPONSES TO PLAINTIFF AND COUNTERDEFENDANT EVOX
`PRODUCTIONS LLC’S FIRST SET OF REQUESTS FOR ADMISSION TO
`DEFENDANT AND COUNTERCLAIMANT KAYAK SOFTWARE
`CORPORATION on the interested parties in this action as follows:
`SEE ATTACHED SERVICE LIST
`BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or
`an agreement of the parties to accept service by e-mail or electronic transmission, I
`caused the document(s) to be set from e-mail address jciardullo@foley.com to the
`persons at the e-mail addresses listed in the Service List. I did not receive, within a
`reasonable time after the transmission, any electronic message or other indication that the
`transmission was unsuccessful.
`
`Executed on March 23, 2016, at Los Angeles, California.
`
`/s/ Jean-Paul Ciardullo
`Jean-Paul Ciardullo
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`Case 2:15-cv-05053-PSG-AGR Document 167-15 Filed 03/01/17 Page 7 of 7 Page ID
`#:13235
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`SERVICE LIST
`EVOX Productions LLC v. KAYAK Software Corporation
`CV15-05053-SS
`
`Attorneys for Plaintiff and
`Counterdefendant EVOX Productions LLC
`
`Robyn C. Crowther, Esq.
`Caldwell Leslie & Proctor, PC
`725 South Figueroa Street, 31st Floor
`Los Angeles, CA 90017-5524
`Telephone: (213) 629-9040
`Facsimile: (213) 629-9022
`E-mail: crowther@caldwell-leslie.com
`(by e-mail only)
`
`Craig H. Bessenger, Esq.
`Caldwell Leslie & Proctor, PC
`725 South Figueroa Street, 31st Floor
`Los Angeles, CA 90017-5524
`Telephone: (213) 629-9040
`Facsimile: (213) 629-9022
`E-mail: bessenger@caldwell-leslie.com
`(by e-mail only)
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