Disney Enterprises, Inc. et al v. Hotfile Corp. et al

Filing 301

MOTION for Summary Judgment >WARNER BROS. ENTERTAINMENT INC.'S MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT OF MOTION (PUBLIC REDACTED VERSION)< by Warner Bros. Entertainment Inc.. Responses due by 3/15/2012 (Attachments: # 1 Affidavit Declaration of Scott A. Zebrak in Support of Warner's Motion for Summary Judgment (public redacted version), # 2 Exhibit A to Declaration of S. Zebrak, # 3 Exhibit B to Declaration of S. Zebrak, # 4 Affidavit Declaration of Dr. Ian Foster in Support of Warner's Motion for Summary Judgment (public redacted version), # 5 Exhibit A to Declaration of I. Foster, # 6 Affidavit Declaration of david Kaplan in Support of Warner's Motion for Summary Judgment (public redacted version), # 7 Affidavit Declaration of Kerry Hopkins in Support of Warner's Motion for Summary Judgment (public redacted version), # 8 Exhibit A to Declaration of K. Hopkins, # 9 Affidavit Declaration of Jennifer Yeh in Support of Warner's Motion for Summary Judgment (public redacted version), # 10 Exhibit A to Declaration of J. Yeh, # 11 Exhibit B to Declaration of J. Yeh, # 12 Exhibit C to Declaration of J. Yeh, # 13 Exhibit D to Declaration of J. Yeh, # 14 Exhibit E to Declaration of J. Yeh, # 15 Exhibit F to Declaration of J. Yeh, # 16 Exhibit G to Declaration of J. Yeh, # 17 Exhibit H to Declaration of J. Yeh, # 18 Exhibit I to Declaration of J. Yeh, # 19 Exhibit J to Declaration of J. Yeh, # 20 Exhibit K to Declaration of J. Yeh, # 21 Exhibit L to Declaration of J. yeh, # 22 Exhibit M to Declaraton of J. Yeh, # 23 Exhibit N to Declaration of J. Yeh, # 24 Exhibit O to Declaration of J. Yeh, # 25 Exhibit P to declaration of J. Yeh, # 26 Exhibit Q to Declaration of J. Yeh, # 27 Text of Proposed Order)(Stetson, Karen)

EXHIBIT B

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20427-WILLIAMS/TURNOFF
- - - - - - - - - - - - - - - - - - - - - - - - - DISNEY ENTERPRISES,
INC., TWENTIETH CENTURY
FOX FILM CORPORATION,
UNIVERSAL CITY STUDIOS
PRODUCTIONS LLLP,
COLUMBIA PICTURES
INDUSTRIES, INC., and
WARNER BROS.
ENTERTAINMENT, INC.,
Plaintiff,

v.
HOTFILE CORP., ANTON
TITOV, and DOES 1-10,
Defendants.
HOTFILE CORP.,
Counterclaimant,
v.
WARNER BROS ENTERTAINMENT
INC.,
Counterdefendant.
- - - - - - - - - - - - - - - - - - - - - - - - VOLUME I
H I G H L Y C O N F I D E N T I A L
(Pursuant to protective order, the following
transcript has been designated highly confidential)
30(b)(6) DEPOSITION OF ANTON TITOV
Radisson Blu Hotel
Sofia, Bulgaria
Monday, December 5, 2011
Job Number: 44174
TSG Reporting - Worldwide

800-702-9580

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A P P E A R A N C E S
ATTORNEY FOR THE PLAINTIFFS:
JENNER & BLOCK
BY: STEVEN B. FABRIZIO, ESQ.
1099 New York Avenue, NW
Washington, DC 20001

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ATTORNEY FOR THE DEFENDANTS HOTFILE CORP.,
AND ANTON TITOV:
FARELLA, BRAUN & MARTEL
BY: RODERICK M. THOMPSON, ESQ.
235 Montgomery Street
San Francisco, California 94104

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BOSTON LAW GROUP
VALENTIN GURVITS
825 Beacon Street
Newton Center, MA 02459

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Also present:

Court reporter:

Fiona Farson

TSG Reporting
Videographer:

Simon Rutson

TSG Reporting
Interpreter:

Assist. Prof. Boris Naimushin, Ph.D.

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A.

The counterclaim against Warner reflects the fact that

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we've given Warner a powerful tool to be able to take

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down and block content on the Hotfile website, and that

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this tool, in our opinion, was misused to take down

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files for which Warner doesn't hold the copyright.

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That's the substance, without the legal part.

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BY MR. FABRIZIO:

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Q.

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And do you believe Warner took down material that it
didn't own on purpose?

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MR. THOMPSON:

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A.

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BY MR. FABRIZIO:

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Q.

Objection, vague.

I don't know about the motives of Warner doing so.
Would you believe Warner saw a file, recognized that it

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wasn't one of their properties, but sent a notice

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through the special rights holder's account, knowing

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that it wasn't their property?

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MR. THOMPSON:

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Objection.

Hypothetical, calls for

speculation.
A.

I don't know what was Warner's goal or policy, so
I don't know.

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process to send DMCA notices?
A.

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4

I am not ruling out this possibility, but I don't have
any proof of this, I guess.

Q.

Okay.

So do you have any knowledge of the process

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Warner uses to identify content it believes to be

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infringing and to send notices about that content to

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Hotfile?

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A.

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lawyers may know more, because some of the information

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11

I know -- I don't know the actual process, and my
is classified in a way that I don't have access to.

Q.

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Fair enough.

Hotfile, in its operations, uses processes

that are fully automated, do they not?

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MR. THOMPSON:

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A.

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BY MR. FABRIZIO:

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Q.

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Objection.

Vague and overbroad.

Yes, it does.
Okay.

Is it Hotfile's position that -- that an

automated system of sending notices is never acceptable?

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MR. THOMPSON:

22

Q.

Okay.

Objection.

As someone who helps operate a very large-scale

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system, do you agree that any system will yield some

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errors?

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MR. THOMPSON:

Objection.

Overbroad and vague.

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A.

I don't want to say that, and probably somebody

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operating an online banking account won't agree to you,

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but mistakes happen.

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BY MR. FABRIZIO:

5

Q.

But mistakes do happen?

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A.

Yes, they do.

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a large scale?

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MR. THOMPSON:

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A.

I don't know.

6

Q.

Is it true, is it not, that Hotfile began looking for

Objection, calls for a legal conclusion.

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a basis for a counterclaim almost immediately upon being

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sued by plaintiffs?

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MR. THOMPSON:

Objection, assumes facts.

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A.

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BY MR. FABRIZIO:

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Q.

Yes, I think so.
And prior to the filing of the complaint in this action,

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Hotfile never investigated any Warner takedown notices

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before that?

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MR. THOMPSON:

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A.

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MR. FABRIZIO:

Objection, overbroad and vague.

I'm not aware of such an investigation.
I don't believe this needs to be marked,

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since it's a pleading in the case, but I just want to

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make sure the witness has in front of him the second

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amended answer and counterclaim.

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Do you believe it needs to be marked?

I'm happy to

do whatever you like.
MR. THOMPSON:

If you're representing that it's filed,

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BY MR. FABRIZIO:

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Q.

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MR. THOMPSON:

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Q.

I realize -Excuse me for interrupting.

Mr. Titov, you personally participated in the process of

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Hotfile looking for mistakes among the takedown notices

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Warner sent, correct?

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A.

That is correct.

9

Q.

Okay.

And do you understand the files listed on

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exhibits A through D of the counterclaim to reflect

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files that Hotfile located that they believed to have

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been sent in error?

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A.

Hotfile itself identified a small number of files, and

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further research was performed by counsels and experts.

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I -- I don't really know.

16

Q.

Okay.

And all of the files that are identified on

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exhibits A through D, is it fair to say that the first

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time Hotfile formed the belief that these files were

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sent in error was after the complaint in this case had

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been filed?

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A.

Yes, I believe so.

22

Q.

And is it also fair to say that within Hotfile, the

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process of identifying potential mistaken takedowns sent

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by Warner was a high priority?

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MR. THOMPSON:

Objection, vague.
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A.

I don't know.

It might be, for a certain period of

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time.

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of three pages:

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translation, and the certification of the translator.

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9

(Titov exhibit 26 marked for identification.)
MR. FABRIZIO:

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A Bulgarian original, an English

This is off the record.
(Discussion off the record.)

MR. THOMPSON:

Mr. Fabrizio, just from looking at this, it

doesn't appear to me to match.
MR. FABRIZIO:

May I see?

That may explain something else

I'm looking at.

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16

I was looking at.

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going to adjust this exhibit; my apologies.

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I'll take this exhibit back, so we're

And now I will impress you all with my mastery of

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Bulgarian.

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the exhibit 26 that had been previously marked, and I'm

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going to re-mark as exhibit 26 -- is that acceptable?

All right.

So we have withdrawn exhibit --

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MR. THOMPSON:

Sure.

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MR. FABRIZIO:

A one-page document -- darn, hold on

24

a second.

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A one-page document bearing Bates number HF02303232.
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(Exhibit Titov 26 re-marked for identification.)

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BY MR. FABRIZIO:

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Q.

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Mr. Titov, I take it that you have no issues reading
this document in Bulgarian?

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A.

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MR. THOMPSON:

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No, I don't.
His counsel does.

Mr. Fabrizio, let me also just state while he's

8

reading that, we have become aware in the last week or

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two or some inadvertent produced documents that were

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written in Bulgarian that contained work product

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information.

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return.

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being able to read the Bulgarian.

And I'd ask -- have asked for their

I don't know if this is among them or not, not

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MR. FABRIZIO:

Well, then, we can deal with that afterwards.

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MR. THOMPSON:

And I'd just like to -- I'll allow this to

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continue, but I want to reserve a potential objection to

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the extent this has any work product.

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MR. FABRIZIO:

Okay.

Fair enough.

19

objection.

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You preserve the

say whether we agree or not.

Obviously, until we see what it is, I can't

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to "mistakenly" as vague and ambiguous.

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You can answer.

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3

A.

To my belief, Hotfile doesn't have information about

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each and every file and part of information about each

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and every file is classified to a level of

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confidentiality that won't allow Hotfile access to it.
(Reporter clarification.)

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Confidentiality that won't allow Hotfile access to

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it.

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10

BY MR. FABRIZIO:

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Q.

Well, I'm asking about your contention, not information

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that's confidential.

And I don't know how this would

13

qualify anyway, but is it Hotfile's belief that the

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files on which it is suing Warner were mistakenly taken

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down by Warner?

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MR. THOMPSON:

Objection, vague and ambiguous.

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A.

To the extent we believe everybody who worked on

Q.

Did you assign the users that uploaded those files on

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21
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exhibits A through D a strike pursuant to your post

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complaint repeat infringer policy?

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MR. THOMPSON:

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A.

Objection.

Vague and overbroad.

I don't know about every and each file, but it is my
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belief that there were strikes assigned with --

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connected to these deletions.

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BY MR. FABRIZIO:

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Q.

So my question is, why did you assign a strike to the

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users who uploaded those files if you believed that

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Warner's notices were in error?

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MR. THOMPSON:

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A.

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Objection, overbroad.

The strike was probably assigned quite earlier in time
quite earlier in time than Hotfile became -- Hotfile

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started to believe that these files are mistakenly

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removed.

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BY MR. FABRIZIO:

13

Q.

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When did you start assigning strikes?

It was only after

the complaint was filed, correct?

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A.

Correct.

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Q.

Okay.

And shortly after the complaint was filed, you

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began investigating filing a claim against Warner,

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correct?

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MR. THOMPSON:

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A.

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BY MR. FABRIZIO:

22

Q.

Objection.

Vague, asked and answered.

Correct.
So I believe it's the case that every single one of the

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files on exhibits A through D are -- were taken down

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after the filing of this, or -- I shouldn't say that;

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either within a week of or -- the filing or after the
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filing of this complaint, but you didn't start assigning

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it strikes until afterwards -- let me do this

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a different way.

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I'm going to stop.

Strike that.

At some point before you were assigning strikes, you

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believe that Warner -- some of the Warner notices were

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mistaken, correct?

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MR. THOMPSON:

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A.

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BY MR. FABRIZIO:

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Q.

Objection, misstates prior testimony.

I don't know about the exact timeline.
All right.

Let me just ask it this way:

Why didn't you

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just go back and remove the strikes you had given the

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users that uploaded the files on exhibits A through D of

13

the counterclaim, if you believed that those files were

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taken down in error?

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MR. THOMPSON:

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A.

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BY MR. FABRIZIO:

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Q.

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Objection.

Overbroad, and vague as to time.

I don't know.
There's no technical reason why you couldn't have
removed a strike, is there?

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MR. THOMPSON:

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A.

Same objections.

Yeah, there is no technical reason not to remove

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a strike, but it might be too late after months or --

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generally, this investigation, it takes time.

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BY MR. FABRIZIO:

25

Q.

Did you go back and remove any strikes?
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A.

I did not.

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Q.

Did anyone in Hotfile, to your knowledge?

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A.

To my knowledge, no.

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Q.

Why not?

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A.

I don't know.

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MR. THOMPSON:

Are we ready for -- to stop?

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MR. FABRIZIO:

Unless you're prepared to indulge me starting

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on a new line of questions, which I imagine not.

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MR. THOMPSON:

I think we should start in the morning.

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MR. FABRIZIO:

Okay.

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MR. THOMPSON:

At the right location.

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MR. FABRIZIO:

I was going to say:

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Here, in this very room.

It will be easier for you guys.

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MR. THOMPSON:

Next time please give us notice; that's all.

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MR. FABRIZIO:

Off the record.

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VIDEOGRAPHER:

Off the record.

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HIGHLY CONFIDENTIAL
CERTIFICATE OF COURT REPORTER

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I, Fiona Farson, with TSG Reporting, hereby certify that the
testimony of the witness Anton Titov in the foregoing
transcript, taken on Monday, December 5, 2011 was reported
by me in machine shorthand and was thereafter transcribed by
me; and that the foregoing transcript is a true and accurate
verbatim record of the said testimony.
I further certify that I am not a relative, employee,
counsel or financially involved with any of the parties to
the within cause, nor am I an employee or relative of any
counsel for the parties, nor am I in any way interested in
the outcome of the within cause.

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Signed:

........................

Fiona Farson
Dated:

December 15th, 2011

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20427-WILLIAMS/TURNOFF
- - - - - - - - - - - - - - - - - - - - - - - - - DISNEY ENTERPRISES,
INC., TWENTIETH CENTURY
FOX FILM CORPORATION,
UNIVERSAL CITY STUDIOS
PRODUCTIONS LLLP,
COLUMBIA PICTURES
INDUSTRIES, INC., and
WARNER BROS.
ENTERTAINMENT, INC.,
Plaintiff,
v.
HOTFILE CORP., ANTON
TITOV, and DOES 1-10,
Defendants.
HOTFILE CORP.,
Counterclaimant,
v.
WARNER BROS ENTERTAINMENT
INC.,
Counterdefendant.
- - - - - - - - - - - - - - - - - - - - - - - - VOLUME II
H I G H L Y C O N F I D E N T I A L
(Pursuant to protective order, the following
transcript has been designated highly confidential)
30(b)(6) DEPOSITION OF ANTON TITOV
Radisson Blu Hotel
Sofia, Bulgaria
Tuesday, December 6, 2011
AT: 9:10 a.m.
Job No: 44175
TSG Reporting - Worldwide

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A P P E A R A N C E S
ATTORNEY FOR THE PLAINTIFFS:
JENNER & BLOCK
BY: STEVEN B. FABRIZIO, ESQ.
1099 New York Avenue, NW
Washington, DC 20001

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ATTORNEY FOR THE DEFENDANTS HOTFILE CORP.,
AND ANTON TITOV:
FARELLA, BRAUN & MARTEL
BY: RODERICK M. THOMPSON, ESQ.
235 Montgomery Street
San Francisco, California 94104
BOSTON LAW GROUP
VALENTIN GURVITS
825 Beacon Street
Newton Center, MA 02459

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Also present:

Court reporter:

Fiona Farson

TSG Reporting
Videographer:

Simon Rutson

TSG Reporting
Interpreter:

Assist. Prof. Boris Naimushin, Ph.D.

Technical expert:

Kelly Truelove

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notices; is that correct?
MR. THOMPSON:

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5

Objection, vague.

Just so -- are you asking

him if that's what he said, or if that's the policy?
Q.

Is it the case that currently Hotfile terminates users

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who have received three strikes based on Hotfile's

7

receipt of DMCA notices?

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A.

That is correct, to my knowledge, yes.

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A.

I don't know.

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BY MR. FABRIZIO:

17

Q.

You don't know?

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A.

It's a very broad topic.

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20

I don't have any factual

information.
Q.

Okay.

Let me ask it this way:

Does Hotfile consider

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itself entitled to revenue from users who are repeat

22

copyright infringers by Hotfile's own standard?

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MR. THOMPSON:

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25

Objection.

Vague and ambiguous, calls for

a legal conclusion, and argumentative.
A.

I don't think so.
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BY MR. FABRIZIO:

2

Q.

Okay, let me make sure I understand your answer.

3

Is it correct that Hotfile does not consider itself

4

entitled to revenue from users who are repeat copyright

5

infringers by Hotfile's own standard?

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MR. THOMPSON:

7

A.

Same objections, and also it's overbroad.

Well, I've said that our standards expect, of course,

8

copyright owners to co-operate; it means to issue right

9

and correct taking-down notices.

So I don't think

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Hotfile considers income from confirmed copyright

11

infringers -- Hotfile doesn't consider to be entitled

12

for income from repeated copyright infringers.

13

Q.

In Hotfile's counterclaim against Warner, does Hotfile

14

claim damages based on users who were properly

15

terminated by Hotfile's repeat infringer policy pursuant

16

to Hotfile's own three-strikes policy?

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MR. THOMPSON:

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Objection.

Calls for a legal conclusion,

vague and ambiguous as to "properly."
A.

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My belief is that we called for damages that are
for users that terminated based on wrongful takedown.

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BY MR. FABRIZIO:

22

Q.

23

MR. THOMPSON:

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25

Okay, let me put it a different way.
Excuse me, the last word, I think the

reporter didn't hear him correctly.
MR. FABRIZIO:

It's a rough, but I'm sure she'll correct it.
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It says "wrongful data"; it should say "wrongful

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takedowns."

3

MR. THOMPSON:

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BY MR. FABRIZIO:

5

Q.

Thank you.

Hotfile's current policy is that users who are the

6

subject of three DMCA notices from copyright owners

7

should be terminated, correct?

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A.

Yes.

9

Q.

Okay.

To my belief, it's the current policy.
If a user had received more than three notices

10

before a Warner notice that was in error, should that

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user have been terminated irrespective of the Warner

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notice?

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MR. THOMPSON:

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15

Objection.

Vague and ambiguous, incomplete

hypothetical.
A.

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If you assume that other notices were correct, then
I believe so.

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BY MR. FABRIZIO:

18

Q.

Okay.

So in that case, if Warner was -- if the Warner

19

notice that was in error was the fourth, fifth, sixth or

20

tenth strike, Hotfile would not consider that Warner

21

notice to be the cause of that user termination because

22

the user already should have been terminated based on

23

having three previous strikes.

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25

MR. THOMPSON:

Objection.

Is that correct?

Hypothetical, calls for

speculation.
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A.

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BY MR. FABRIZIO:

3

Q.

Yeah, you may say so.
And so we are clear, Hotfile does not know whether any

4

users were terminated as a result of an erroneous Warner

5

takedown; is that correct?

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MR. THOMPSON:

7

revealing attorney work product information.

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I instruct you not to reveal any attorney work

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10

Objection, to the extent it calls for

product information in answering.
A.

Again, I will repeat that Hotfile didn't perform --

11

I believe that Hotfile didn't ever perform such an

12

investigation for its own use.

13

BY MR. FABRIZIO:

14

Q.

All right, I want to draw a distinction between

15

a takedown of a file and a termination of a user.

16

understand that those are two distinct concepts,

17

correct?

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MR. THOMPSON:

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A.

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BY MR. FABRIZIO:

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Q.

You

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23
24

Objection, vague.

They are two different actions, I would say.
Okay.

I just want to make sure we understand the

distinction.
Has Hotfile ever received a complaint from a user
about a mistaken takedown of a file?

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A.

2

My understanding is that you are asking for any file,
and with that in mind, I'm aware of such situations.

3

BY MR. FABRIZIO:

4

Q.

5

Do such complaints by users typically get forwarded to
you?

6

MR. THOMPSON:

7

A.

8
9
10

Objection, vague.

I remember seeing some of those, but I can't say whether
it's typically or occasionally.

BY MR. FABRIZIO:
Q.

Okay.

So has Hotfile ever received a complaint from

11

a user based on the takedowns of the files listed on

12

exhibits A through D of your counterclaim?

13

MR. THOMPSON:

14

Objection, vague.

Again I instruct the

witness not to reveal any work product information.

15

MR. FABRIZIO:

I don't think that's possible.

16

MR. THOMPSON:

I don't really care what you think is

17

possible.

18

MR. FABRIZIO:

23

Q.

That's the instruction.
But your instructions are -- can confuse

Has Hotfile ever received a complaint from a Hotfile

24

user regarding one of the files in exhibits A through D

25

of the counterclaim that Hotfile contends were wrongly
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taken down?

1
2

MR. THOMPSON:

I'm instructing Mr. Titov not to reveal the

3

results of any work product investigation.

4

extent he can answer without doing so, he's free to do

5

so.

6

A.

7

BY MR. FABRIZIO:

8

Q.

To the

A.

No, I -- I don't know if Hotfile ever received such
a complaint.

11
12

You don't know whether Hotfile has ever received such
a complaint?

9
10

I don't know.

Q.

So as you sit here today, you are unaware of any

13

complaint Hotfile received from a user based on the

14

Warner takedowns in exhibits A through D of the

15

counterclaim, correct?

16

A.

Yes, that is correct.

17

Q.

Have you had any communications with anyone outside of

18

Hotfile, excluding your counsel, regarding any of the

19

Warner Brothers takedowns that you consider to be

20

mistaken?

21

MR. THOMPSON:

Mr. Fabrizio would include by that any

working for counsel.

22
23

MR. FABRIZIO:

24

A.

Yes, of course.

Nothing that I can remember particularly.

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Q.

Okay, let me be more specific:

Have you had discussions

2

or communications with any Hotfile affiliates about

3

Warner takedowns that Hotfile believes to be erroneous?

4

A.

I'm not aware of any.

5

Q.

Have you had discussions or communications with any site

6

operator regarding Warner takedowns that Hotfile

7

believes to be erroneous?

8

A.

As I sit here today, I can't think of any.

9

Q.

Are you aware that anyone else at Hotfile having had

10

such conversations or discussions?

11

A.

No, I'm not.

12

Q.

Have you had communications with any user who was

I don't think so.

13

terminated by Hotfile about any Warner takedowns that

14

Hotfile believes to have been erroneously made?

15

A.

I don't know.

16

Q.

Have you identified a single Hotfile user who was

17

terminated where a Warner takedown was that user's third

18

strike?

19

MR. THOMPSON:

Again, Mr. Titov I instruct you to exclude

20

the results from any attorney work product

21

investigation.

If you can answer and do that, you're

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Q.

I didn't ask you whether it was possible to do.

I asked

4

you whether, as you sit here today, you can identify

5

a single user who terminated a premium account as

6

a result of a Warner notice that Hotfile beliefs was

7

mistakenly sent.

8

MR. THOMPSON:

9

A.

Objection, asked and answered.

No, I believe I cannot.

10

BY MR. FABRIZIO:

11

Q.

Can you identify a single user who failed to sign up for

12

a premium account because of a Warner notice that

13

Hotfile believes was mistakenly sent?

14

A.

15

No, I don't think I can, but I'm not an expert in lost
revenues.

16

(Reporter clarification.)

19

revenues.

20

you can identify any user who failed to sign up for a

21

premium account because of a Warner Brothers takedown

22

notice that you believe was mistakenly sent.

23

MR. THOMPSON:

24
25

I'm asking you, as a factual matter, whether

Objection.

Asked and answered,

argumentative.
A.

I don't believe I can.
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BY MR. FABRIZIO:

2

Q.

3

If you look back at paragraph 38, Mr. Titov, under
subparagraph 3, it refers to "damage to its reputation

4

6

Q.

Can you explain to us what damage to Hotfile's

7

reputation and goodwill you believe resulted from

8

Warner's sending the takedown notices on exhibits A

9

through D of the counterclaim?

10

A.

Users had their files suspended, or even received

11

strikes, and been terminated without a reason for that.

12

That -- normally that will -- it's my opinion that that

13

will damage the reputation.

14

Q.

That's your opinion?

15

A.

It is.

16

Q.

But you previously testified that you can't identify any

17

user who complained about having one of their files

18

taken down as a result of one of the exhibit A through D

19

takedowns, correct?

20

MR. THOMPSON:

21

Objection.

The testimony speaks for itself.

Asked and answered.

22

A.

23

BY MR. FABRIZIO:

24

Q.

25

I'm currently not aware of any.
Okay.

And you also testified that you're not aware of a

single user who was terminated as a result of one of the
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takedown notices sent by Warner that are on exhibits A

2

through D of your counterclaim, correct?

3

MR. THOMPSON:

4

A.

5

Same objections.

I think my testimony was that Hotfile never performed
such analysis for its own use and enjoyment.

6

BY MR. FABRIZIO:

7

Q.

Is there any other basis for the contention that

8

Hotfile's reputation and goodwill was injured, other

9

than what you perceived to be wrongly taken down files

10

and wrongly terminated users?

11

MR. THOMPSON:

12

A.

13

Objection.

Misstates prior testimony.

As of now, I can't think of any, but there might be
others.

14

BY MR. FABRIZIO:

15

Q.

16
17

Hotfile's reputation and goodwill?
MR. THOMPSON:

18
19

In what way does having a user's file removed impact

removed?
A.

Objection, vague.

Do you mean wrongfully

Overbroad.

I think that when user receives -- a user -- user's file

20

are being wrongfully take down, he will lose trust and

21

respect for the company who he expected to host him --

22

his file.

23

BY MR. FABRIZIO:

24

Q.

Anything else?

25

A.

Nothing that I think of -- can think of now.
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Q.

Does Hotfile, in your view, lose the trust and respect

2

of its users when it takes down a file that is in fact

3

copyright infringing?

4

A.

I don't believe so.

5

Q.

Why not?

6

A.

Because the user is infringing.

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hypothetical.

1
2

A.

If the strikes are based on wrongful takedowns, I think
so, can lose trust.

3
4

BY MR. FABRIZIO:

5

Q.

absolutely correct notices?

6
7

11

And what if at least three of the strikes are based on

MR. THOMPSON:

Q.

And does Hotfile, in your view, lose the trust and

12

respect of its users when it terminates a user who is

13

a repeat infringer under Hotfile's post complaint

14

policies?

15

MR. THOMPSON:

16

A.

17

BY MR. FABRIZIO:

18

Q.

19

MR. THOMPSON:

20

A.

Objection, overbroad.

I don't know if Hotfile is concerned about this.
What do you mean by that?
Objection, vague.

I mean that if the user is confirmed as copyright

21

infringer, it's not Hotfile's concern what the user

22

thinks about Hotfile.

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2

question, when excluding what we know from our counsel.
MR. FABRIZIO:

Okay.

Rod, if -- I'm trying to figure out

3

how you're conveying to your client a fact that I

4

conveyed to you or Warner conveyed to you, but you're

5

telling him to exclude that knowledge from his answer.

6

MR. THOMPSON:

Because our selection of what facts to -- or

7

information we know to share with our client is

8

obviously attorney/client communication.

9

MR. FABRIZIO:

Well, you're just conveying what I told you.

10

MR. THOMPSON:

Whether or not I choose to convey that to the

11

client is my subjective work product and attorney/client

12

communications.

13

MR. FABRIZIO:

17

Q.

All right.

Mr. Titov, I will tell you that all or substantially all

18

of the files listed in exhibit A consist of works for

19

which the games maker EA owns the copyright, and EA has

20

authorized Warner to issue the takedown notices that

21

resulted in their takedown upon learning after the fact,

22

after Warner -- after Warner learned of this instance.

23
24
25

Does Hotfile still contend that the exhibit A works
are wrongful takedowns?
MR. THOMPSON:

Objection, to the extent the preamble is
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2

confusing and incomplete.
A.

Also incomplete hypothetical.

Since you are presenting me the facts and I don't have

3

the opportunity to confer with anybody else at Hotfile

4

now, I can only ask -- answer for myself, but I won't --

5

I don't think I would consider takedowns of the games

6

you mentioned wrongful.

7

BY MR. FABRIZIO:

8

Q.

9

Is there -- you and I may refer to this differently, so
let me just say how I refer to it:

10

Is there something

that -- on Hotfile that you refer to as "list pages"?

11

A.

Yeah, I believe so.

12

Q.

Can you describe what they are?

13

A.

It is a page that consists of a number of links, to cut

14
15

Hotfile down on pages.
Q.

16

And is a list page a page that is hosted on the
hotfile.com servers?

17

A.

Yes, it's fair to say that.

18

Q.

For what purpose does Hotfile offer users list pages, or

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address to prevent that user from continuing to download

2

files from hotfile.com?

3

MR. THOMPSON:

4

A.

5

BY MR. FABRIZIO:

6

Q.

Same objection.

No, it does not.
All right.

At what specific point in the processing of

7

a notice, whether it's an email notice or an SRA notice,

8

is a strike recorded?

9

A.

When the notice is processed.

10

Q.

Is the strike recorded when the processing begins, or

11
12

only when the processing has completed?
A.

I would say completed.

Q.

And forgive me, we may have covered this last time,

13

15
16

but -- I know it was following the filing of this

17

action, but when after the filing of this action did

18

Hotfile adopt the strike system?

19

A.

I think it was towards the end of February.

20

Q.

If a user uploads an item that is -- that has already

21

been blocked -- well, strike that.

22

Currently, if Hotfile gets a notice about a file, in

23

addition to deleting the file, Hotfile take the MB5 hash

24

and prevents -- prevents other users from uploading

25

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HIGHLY CONFIDENTIAL
CERTIFICATE OF COURT REPORTER

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9
10

I, Fiona Farson, with TSG Reporting, hereby certify that the
testimony of the witness Anton Titov in the foregoing
transcript, taken on Tuesday, December 6, 2011 was reported
by me in machine shorthand and was thereafter transcribed by
me; and that the foregoing transcript is a true and accurate
verbatim record of the said testimony.
I further certify that I am not a relative, employee,
counsel or financially involved with any of the parties to
the within cause, nor am I an employee or relative of any
counsel for the parties, nor am I in any way interested in
the outcome of the within cause.

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17

Signed:

........................

Fiona Farson
Dated: 12/17/2011

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