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

Filing 315

MOTION for Leave to File Amicus Curiae Brief in Support of Hotfile's Opposition to Summary Judgment on its Counterclaim by Electronic Frontier Foundation. (Attachments: # 1 Exhibit Proposed Amicus Brief)(Wasylik, Dineen)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 1:11-cv-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.
_____________________________________________/

MOTION OF THE ELECTRONIC FRONTIER FOUNDATION FOR LEAVE TO FILE
AMICUS CURIAE BRIEF
The Electronic Frontier Foundation (“EFF”) moves the Court for leave to file a brief
amicus curiae in support of Counterclaim-Plaintiff Hotfile Corporation’s (“Hotfile’s”) opposition
to Counterclaim-Defendant Warner Brothers’ (“Warner’s”) Motion for Summary Judgment.

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MEMORANDUM OF LAW
I.

Interest of Amicus
EFF is a non-profit, member-supported civil liberties organization working to protect

rights in the digital world. EFF encourages and challenges industry, government and the courts
to support free expression, privacy, and openness in the information society. Founded in 1990,
EFF is based in San Francisco, California. EFF has members all over the United States and
maintains one of the most linked-to websites (http://www.eff.org) in the world.
EFF represents the interests of Internet users, who are not directly represented in disputes
such as this one between Internet-based businesses and copyright owners. EFF has particular
interest in the rule of law at issue in Hotfile’s counterclaim, section 512(f) of the Digital
Millennium Copyright Act of 1998, 17 U.S.C. § 512(f). EFF has represented numerous plaintiffs
in Section 512(f) cases. See e.g., Sapient v. Uri Geller and Explorologist Ltd., 3:07-cv-02478
VRW (N.D. Cal.); Showing Animals Respect and Kindness v. Professional Rodeo Cowboys
Ass’n, 1:08-cv-03314 (N.D. Ill). In particular, it represents Stephanie Lenz in Lenz v. Universal
Music Corp., 5:07-cv-03783 JF (N.D. Cal.). A central issue in that case, as in this one, is whether
the defendant formed the requisite good faith belief that material on a website was not authorized
by law before sending a takedown notice under the Digital Millennium Copyright Act.
II.

Standards for Amicus Participation
Granting leave for amicus participation is left to this Court’s discretion. However,

several courts have suggested guideposts. An amicus brief is valuable and should be accepted
when the amicus will “collect background or factual references that merit judicial notice,” when
the amicus has “particular expertise not possessed by any party to the case,” or can “argue points
deemed too far-reaching for emphasis by a party intent on winning a particular case,” or “explain
the impact a potential holding might have on an industry or other group.” Neonatology
Associates, P.A. v. C.I.R., 293 F.3d 128, 132 (3d Cir. 2002) (Alito, J.). Because of the assistance
that an amicus may provide, and the ease of simply disregarding a brief that later proves
unhelpful, “it is preferable to err on the side of granting leave.” Id. at 133. The Eleventh Circuit
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has recognized that District Courts “possess the inherent authority to appoint ‘friends of the
court’ to assist in their proceedings.” In re Bayshore Ford Truck Sales, Inc., 471 F.3d 1233,
1249 at n.34 (11th Cir. 2006).
Another court of appeals described three situations where amicus briefs will be helpful:
1) a party is not adequately represented (usually, is not represented at all); or (2)
when the would-be amicus has a direct interest in another case, and the case in
which he seeks permission to file an amicus curiae brief may, by operation of
stare decisis or res judicata, materially affect that interest; or (3) when the amicus
has a unique perspective, or information, that can assist the court of appeals
beyond what the parties are able to do.
Nat’l Org. for Women, Inc. v. Scheidler, 223 F.3d 615, 617 (7th Cir. 2000) (Posner, J.).
III.

EFF Will Provide Valuable Perspective
EFF respectfully submits that its brief will assist the Court in all of these ways. First,

EFF represents the interests of Hotfile’s users, who are not otherwise represented in this case.
As described more fully in EFF’s brief, individuals use services like Hotfile lawfully to store and
transfer large files, including creative works that they themselves own. It is for these users –
whom EFF represents here – that the economic and social costs of improper takedowns under the
Digital Millennium Copyright Act fall most directly. These users thus have a keen interest in
effective application of Section 512(f), which was intended to discourage such improper
takedowns.
In addition, as described above, EFF’s client Stephanie Lenz has a direct interest in
another pending case (Lenz v. Universal Pictures) which concerns the same statutory provision
and the duties of a copyright owner who requests takedowns of material from the Internet.
Finally, having participated as party counsel or amicus in several cases under
Section 512(f), a provision with limited judicial interpretation to date, EFF can provide a unique
perspective on the development of the law under that provision, its role in safeguarding free
expression on the Internet, and how it preserves due process in the extrajudicial self-help
mechanism of Section 512 of the DMCA. These concerns go beyond the outcome of the instant

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case, but the outcome of this case has the potential to impact them. EFF can provide a broader
perspective.
IV.

Conclusion
For the foregoing reasons, EFF respectfully requests leave to file the attached amicus

curiae brief.
Dated: March 5, 2012

ELECTRONIC FRONTIER FOUNDATION
/s/ Dineen Pashoukos Wasylik
DINEEN PASHOUKOS WASYLIK
Florida State Bar No. 191620
CONWELL KIRKPATRICK, PA
2701 N. Rocky Point Drive
Suite 1030
Tampa, Florida 33607
Telephone: [phone]
Facsimile: 813-282-8800
[e-mail]
MITCHELL L. STOLTZ (pro hac vice pending)
[e-mail]
KURT OPSAHL
[e-mail]
CORYNNE MCSHERRY
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, CA 94110
Telephone: [phone]
Facsimile: [phone]
Attorneys for Amicus Curiae

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LOCAL RULE 7.1(a)(3) CERTIFICATION
Pursuant to Local Rule 7.1(a)(3), the undersigned hereby certifies that counsel for the
movant has conferred with all parties or non-parties who may be affected by the relief sought in
this motion in a good faith effort to resolve the issues raised. Hotfile consents to the relief
sought, but following a consultation in good faith, Warner does not consent.
Dated: March 5, 2012

ELECTRONIC FRONTIER FOUNDATION
/s/ Dineen Pashoukos Wasylik
DINEEN PASHOUKOS WASYLIK
Florida State Bar No. 191620
CONWELL KIRKPATRICK, PA
2701 N. Rocky Point Drive
Suite 1030
Tampa, Florida 33607
Telephone: [phone]
Facsimile: 813-282-8800
[e-mail]
MITCHELL L. STOLTZ (pro hac vice pending)
[e-mail]
KURT OPSAHL
[e-mail]
CORYNNE MCSHERRY
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, CA 94110
Telephone: [phone]
Facsimile: [phone]
Attorneys for Amicus Curiae

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CERTIFICATE OF SERVICE
Disney Enterprises, Inc., et al. v. Hotfile Corp. et al.
Case No.: 1:11-cv-20427-KMW (Williams/Turnoff)
I HEREBY CERTIFY that a true and correct copy of the foregoing MOTION OF THE
ELECTRONIC FRONTIER FOUNDATION FOR LEAVE TO FILE AMICUS CURIAE
BRIEF was served by the Court’s ECF system on March 5, 2012, on all counsel or parties of
record on the service list.
Dated: March 5, 2012
/s/ Dineen Pashoukos Wasylik
DINEEN PASHOUKOS WASYLIK

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Disney Enterprises, Inc., et al. v. Hotfile Corp. et al.
Case No.: 1:11-cv-20427-KMW (Williams/Turnoff)
SERVICE LIST
Steven B. Fabrizio
Duane C. Pozza
Jennifer V. Yeh
Luke C. Platzer
JENNER & BLOCK
1099 New York Avenue, N.W., Suite 900
Washington, DC 10022
202-639-6094
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

Anthony P. Schoenberg
Deepak Gupta
Janel Thamkul
N. Andrew Leibnitz
Roderick M. Thompson
FARELLA BRAUN & MARTEL, LLP
235 Montgomery Street, 17th Floor
San Francisco, CA 94104
415-954-4400
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

Karen R. Thorland
Senior Content Protection Counsel
MOTION PICTURE ASSOCIATION OF
AMERICA, INC.
15301 Ventura Boulevard, Building E
Sherman Oaks, CA 91403
818-935-5812
Email: [e-mail]

Janet T. Munn
RASCO KLOCK REININGER PEREZ
ESQUENAZI VIGIL & NIETO
283 Catalonia Avenue, Suite 200
Coral Gables, FL 33134
305-476-7101
Fax: [phone]
Email: [e-mail]

Karen Linda Stetson
GRAYROBINSON P.A.
1221 Brickell Avenue, Suite 1650
Miami, FL 33131
305-416-6880
Fax: [phone]
Email: [e-mail]

Valentin Gurvits
BOSTON LAW GROUP, PC
825 Beacon Street, Suite 20
Newton Centre, MA 02459
617-928-1804
Email: [e-mail]

Attorneys for Plaintiffs/Counter-Defendants
Disney Enterprises, Inc.,
20th Century Fox Film Corporation,
Universal City Studios Productions,
Columbia Pictures Industries, Inc., and
Warner Brothers Entertainment, Inc.

Attorneys for Defendants/CounterClaimants
Hotfile Corp., Anton Titov, Does 1-10, and
Lemuria Communications, Inc.

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