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)

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.,
Plaintiffs,
v.
HOTFILE CORP., ANTON TITOV, and
DOES 1-10.
Defendants.

/

HOTFILE CORP.,
Counterclaimant,
v.
WARNER BROS. ENTERTAINMENT INC.,
Counterdefendant.

/

DECLARATION OF DAVID KAPLAN IN SUPPORT OF WARNER BROS.
ENTERTAINMENT’S MOTION FOR SUMMARY JUDGMENT

PUBLIC REDACTED VERSION

I, DAVID KAPLAN, declare as follows:
1.

I hold the position of Senior Vice President, Intellectual Property Counsel,

Worldwide Antipiracy Operations at Warner Bros. Entertainment Inc. (“Warner”). In that
capacity, I oversee Warner’s antipiracy efforts worldwide, including with respect to so-called
“locker” and “linking” sites, including Hotfile. I make this declaration in support of Warner’s
Motion for Summary Judgment. Unless otherwise indicated, I have personal knowledge of all of
the procedures and events described herein.
Warner’s Locker Site Enforcement System
2.

One of the many tasks performed by Warner’s Worldwide Antipiracy Operations

Group to protect Warner’s content online is to identify and respond to infringement on so-called
“locker sites” (sites that host and provide access to infringing content). Hotfile is an example of
a locker site, as is MegaUpload.
3.

Many locker sites, including Hotfile, provide no mechanism for a copyright

owner to search the site directly to detect unauthorized copies of files hosted on the system.
Warner therefore must search other sites in order to locate “links” to copies of infringing Warner
content hosted on locker sites, and to then issue notifications of infringement to the locker sites
on which the infringing files are hosted. Specifically, there are a large number of so-called
“linking sites” whose purpose is to organize information and links regarding infringing files
hosted on locker sites. Warner searches link sites using a highly sophisticated system in which it
has invested substantial time and resources over the years, and which I describe below.
4.

The scale of infringement of Warner’s works on the Internet generally – and on

locker sites, including Hotfile – is vast. New infringing copies of Warner’s motion pictures and
television programs are continuously being uploaded to Hotfile and other sites like it. Warner,

on its own and through vendors, detects and sends out takedown notices to Hotfile and sites like
it on millions of infringing files every year, and has sent something on the order of a million
notices to Hotfile alone since early 2009. To keep up with this massive volume of infringement,
Warner employs

employees who are substantially or entirely devoted to addressing online

infringement of Warner’s works, including but not limited to operating the antipiracy system I
describe below. In addition, as noted above, Warner also augments its in-house capabilities by
working with third-party vendors to assist with locating infringing copies of Warner’s content
online and issuing takedown notices.
5.

Due to the volume of infringement on link and locker sites, it is common for

many copyright owners and antipiracy vendors to use automated systems to scan link sites and to
issue notifications of infringement to locker sites when infringing content is detected. That is the
case not only in the motion picture industry, but in other copyright industries (such as the video
game and music industries) as well. Warner follows this common practice.
6.

Warner does not scan all linking sites (of which there are thousands) that host

links to content on locker sites. Rather, to ensure the reliability and accuracy of its search
results, Warner only searches specific link sites that Warner personnel have hand-selected based
on a determination that the linking site is either devoted to infringing content or has discrete
sections of the site (such as a dedicated “Movies” section) devoted to infringing content. Even
though there are many sites that might link to Warner files hosted on locker sites, Warner limits
its searching to the most notorious linking sites (currently,

. To augment its

antipiracy enforcement efforts beyond

as discussed

above, Warner retains vendors with expertise in searching for infringing content, including
content linked to from other linking sites.

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7.

These hand-selected linking sites are then searched using sophisticated, dedicated

software,

9.

Many link sites enable searching by genre of content (such as movies, music,

games, software, etc.). Warner’s system also takes advantage of this additional information
whenever available.

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Link sites
are typically organized by “post pages” that contain specific links and describe the content being
offered. A post page for a movie, for instance, typically contains the title of the movie and links
to download the movie.

There are often several links on a postpage, both because movies and television
programs are often broken up into several files when hosted on locker sites, and because linking
sites will often link to copies of a movie or television program on more than one locker site.
11.

Again, however, Warner has designed
its system to err on the side of conservatism, even if that results in fewer infringing files being
identified, in order to avoid errors.
12.

Once Warner has identified and collected links to infringing files using the

process described above, Warner sends notices on those files, either through emails or (for some
sites) web-based takedown tools offered by many locker sites, including Hotfile. (Hotfile, in its
Counterclaim, calls its interface its “Special Rightsholder Account” or “SRA”).

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13.

The net result of this process is a complex search algorithm for each title and each

linking site that is designed to minimize the risk that unintended files will be identified. As
described, Warner takes care to ensure, as much as possible, that its system only identifies and
sends notices on infringing Warner content. At several places in the process, Warner makes
decisions that result in

s excluding (not sending notices on) potentially infringing

Warner content so as to avoid sending notices on misidentified content. The cumulative effect of
these decisions is a system that, by design, favors excluding files rather than potentially
misidentifying files.
Accuracy of Warner’s Enforcement System
14.

Warner believes its system for locating links to infringing content on linking sites

(and then issuing notifications of infringement to locker sites hosting the content) to be highly
accurate and reliable, and Warner has great confidence in the system. Prior to bringing its
lawsuit against Hotfile, for instance, Warner had issued something on the order of four hundred
thousand takedown notices to Hotfile using the system described above, but had not received any

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counternotices from Hotfile users notifying Warner that the takedown had been sent in error;
Warner has received only a handful of such notices subsequent to filing this case.
15.

Warner’s system is not perfect; Warner has become aware at points in the past of

instances in which Warner has sent out notices in error. As a matter of regular practice, when
Warner has learned of an error, it has investigated it and has taken corrective action, such as
to prevent recurrence of the error. If
an error was of the sort that cannot be readily corrected by Warner – for instance, if a linking
site’s search feature was malfunctioning and is returning incorrect results
– Warner’s practice has been to suspend its searching of the site
entirely until the issue can be resolved.
16.

Warner’s personnel also regularly review reports of past takedowns to identify

errors, learn from them, and prevent their recurrence. Over time, Warner has refined and
improved those processes. In fact, when Warner learned of Hotfile’s counterclaim, it took its
entire system offline

it brought the system back online

and only after satisfying itself that the system was reliably identifying
Warner content.
17.

I understand that Hotfile is suggesting in this case that Warner should have

downloaded every file before issuing a takedown notice. Given the scale of the online
infringement of Warner’s content on locker sites, as well as the sizes of the files typically used to
commit such infringement on locker sites, it would not be practicable for Warner to download
files prior to issuing a notification of infringement. (Remember that Hotfile is only one of many
locker sites that host infringing Warner content and to which Warner sends notices in the manner
described). The computing resources and Internet bandwidth that would be required to do so

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would be immense. Because of these facts, it is extremely unusual for copyright owners or their
vendors who send notices to locker sites in large quantities to download files prior to sending a
notice. As described above, however, Warner’s system can reliably and accurately identify
content without downloading the file itself.
Notices in Hotfile’s Counterclaim
18.

Hotfile’s counterclaim identifies a number of takedown notices that Warner

appears to have sent in error. As described in the following section, many of these were in fact
works for which Warner was searching on behalf of Electronic Arts, Inc., but had not intended to
send notices on, and several other files identified by Hotfile are, in fact, works owned by Warner
notwithstanding their inclusion in Hotfile’s counterclaim.
19.

Nonetheless, the balance of the counterclaim appears to reflect cases in which

Warner misidentified the file and sent a mistaken takedown notice. Warner promptly
investigated the mistakes identified by Hotfile and has taken corrective action, including shutting
down its system entirely when it became aware of Hotfile’s counterclaim and reviewing
to improve the accuracy of the system and prevent
the recurrence of the errors identified by Hotfile’s counterclaim. The mistakes identified by
Hotfile are just that – unintended mistakes. In none of the cases identified by Hotfile did Warner
know or believe, at the time it sent the notice in question, that the notice was not accurate.
20.

I understand that Hotfile is also suggesting in this case that Warner’s process was

deficient because Warner

. I

note that many of the files in Hotfile’s Counterclaim were actually not generated by Warner’s
robots described above, but rather were located by one of Warner’s vendors, a French company
called LeakID, whose process differs from Warner’s and

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. As with takedowns generated entirely by Warner’s internal process, Warner has
confidence in the accuracy of Warner’s system for issuing takedown notices based on infringing
links found by LeakID. Nonetheless, human processes can also make mistakes, as occurred in
the case of the LeakID links complained of by Hotfile. Again, these errors were entirely
unintentional and were unknown to Warner until Hotfile notified Warner of the errors through its
counterclaim. And again, Warner promptly investigated the cause of the error with LeakID and
reassured itself that steps were in place to prevent the same mistake from recurring.
Warner’s Antipiracy Work with Electronic Arts
21.

Warner is not solely an owner of motion picture and television programming

rights; it also has a substantial business in video games. This includes a business arrangement
with Electronic Arts, Inc. (“EA”), whereby Warner holds the rights to distribute EA works in
Brazil. As part of this business relationship, the two companies also coordinate some of their
online antipiracy activity. In early 2011, Warner and EA were working together on a plan to
leverage Warner’s antipiracy system to locate infringing copies of EA files on locker sites, which
Warner would then supply to EA so that EA could issue takedown notices on those files.
Unknown to Warner, at the beginning of this process, when Warner first began scanning for EA
works

Warner inadvertently sent takedown notices on those

EA titles to Hotfile. The issue was resolved quickly (within approximately a week) when the
revisions to Warner’s system to search for EA titles were completed. Indeed, Warner did not
even know that it had sent notices on EA works back in February 2011 until Hotfile complained
about it months later as part of this litigation.

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Warner Works in Counterclaim
22. I understand that Hotfi1e's Counterclaim includes the allegation that Warner

wrongfully took down nineteen fies that represent a video game, F.E.A.R. 2 Project Origin.
Rights in F.E.A.R. 2 Project Origin are in fact owned Warner and distributed by a Warner
affiliate, Warner Bros. Interactive Entertainment, and are not authorized to be distributed through
Hotfile.

I declare under penalty of perjury that the foregoing is true and correct.

Executed in the State of California this ? ¡/~ay of fêbruary, 2012.
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David Kaplan

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