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

Filing 348

RESPONSE in Opposition re 315 MOTION for Leave to File Amicus Curiae Brief in Support of Hotfile's Opposition to Summary Judgment on its Counterclaim >WARNER BROS. ENTERTAINMENT INC.'S OPPOSITION TO THE ELECTRONIC FRONTIER FOUNDATION'S MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF< filed by Warner Bros. Entertainment Inc.. (Attachments: # 1 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.
/

WARNER BROS. ENTERTAINMENT INC.’S OPPOSITION TO THE
ELECTRONIC FRONTIER FOUNDATION’S MOTION FOR LEAVE TO
FILE AMICUS CURIAE BRIEF

The Court should deny non-party Electronic Frontier Foundation’s (“EFF”) request to
submit its proposed amicus brief regarding summary judgment on Hotfile’s counterclaim.
Courts have squarely held that amicus briefs like those submitted by EFF here are improper,
particularly at the district court level. First, the EFF is merely applying its view of the law to
what it believes to be the facts of the case, rather than providing any unique assistance to the
Court. That is not the proper role of an amicus, and it is particularly misguided here because
EFF lacks access to much of the confidential factual record. In fact, EFF repeatedly makes
mistaken assertions about the operation of Warner’s takedown processes. Second, EFF’s brief
should be rejected because it is acting as a one-sided advocate for Hotfile, making arguments that
Hotfile has or could have made in its opposition to summary judgment. EFF’s brief essentially
expands the page limits on Hotfile’s opposition, to the prejudice of Warner. EFF’s motion
should be denied.
ARGUMENT
Courts routinely reject amicus participation to argue the facts of a case when the party is
fully capable of presenting its arguments in the district court. A district court’s “acceptance of
an . . . amicus curiae should be allowed only sparingly, unless the amicus has a special interest,
or unless the Court feels that existing counsel need assistance.” News and Sun-Sentinel Co. v.
Cox, 700 F. Supp. 30, 31 (S.D. Fla. 1988) (quotation and citation omitted); see also Sierra Club
v. Fed. Emergency Mgmt. Agency, No. H-07-0608, 2007 U.S. Dist. LEXIS 84230, at *3 (S. D.
Tex. Nov. 14, 2007) (“[A] district court lacking joint consent of the parties should go slow in
accepting . . . an amicus brief unless . . . the amicus has a special interest that justifies his having
a say, or unless the court feels that existing counsel may need supplementing assistance.”).
Thus, courts hold that “[a]n amicus who argues facts should rarely be welcomed.” Sierra Club,
2007 U.S. Dist. LEXIS 84230, at *4. Moreover, a district court “should also consider whether
the individual or organization seeking to file the amicus brief is an advocate for one of the
parties,” Id. at *6, and the court should “deny permission to file an amicus brief that essentially
duplicates a party’s brief.” Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542 (7th Cir.
2003) (Posner, J.); see also Glassroth v. Moore, 347 F.3d 916, 919 (11th Cir. 2003) (citing
Voices for Choices with approval for its “susp[icion] that amicus briefs are often used as a means
of evading the page limitations on a party’s briefs”).

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Here, EFF’s proposed brief is improper for these very reasons. First, EFF merely
purports to apply its view of the law to what it believes to be the facts of the case, rather than
provide any unique assistance to the Court. That is not the proper role of an amicus. See Sierra
Club, 2007 U.S. Dist. LEXIS 84230, at *4; Yip v. Pagano, 606 F. Supp. 1566, 1568 (D.N.J.
1985). Moreover, EFF’s brief would be misleading in this case because EFF does not have
access to the factual record about Warner’s highly confidential anti-piracy methods. While EFF
acknowledges its lack of key information (EFF Br. at 1), it repeatedly bases its arguments on
assumed facts that are not accurate. See EFF Br. at 7 (“On the public facts, Warner could not
have considered fair use”); id. (“it appears that [Warner’s] algorithm only considered the title of
the work”); id at 5 (“Warner concedes that it knew that it was issuing takedown requests for files
that did not contain any infringing copies of Warner’s works”). None of those quoted statements
are accurate. The Court would not be assisted by a brief that purports to apply the law to an
inaccurate and incomplete statement of the factual record.
Further, the “assistance” to the Court that EFF purports to provide, outside of attempting
to litigate the facts, is limited and misleading. For example, EFF asserts that there are broader
issues with wrongful DMCA takedown notices in other circumstances, citing a handful of cases
over a dozen years since the DMCA was adopted. EFF Br. at 4. EFF does not come close to
showing that such occurrences are common or systemic under any evidentiary standards that
would apply had Hotfile, for example, offered such evidence via expert testimony. Nor does
EFF show that such occurrences have anything to do with how Warner’s takedown processes
operates in this case. In its misplaced zeal to link unrelated examples to what it believes to be
the facts of this case, EFF even asserts, inaccurately, that “Warner itself has a sorry track record
when it comes to overbroad takedown,” EFF Br. at 5 n.3. However, EFF cites to a 2009
incident involving a different company altogether – Warner Music, not Warner Bros.
Entertainment Inc., which is the plaintiff here. The two entities have no corporate relationship.
EFF’s arguments are not helpful for the Court’s consideration, and it is fundamentally unfair to
require Warner to defend against an amicus brief that is not bound by the factual record or actual
evidence.
Second, EFF’s proposed brief is improper in that it is entirely one-sided and essentially
duplicates Hotfile’s brief. Compare Hotfile Opp. at 7-12 (arguing that Warner did not have a
sufficient basis to form the requisite good faith belief under Section 512) with EFF Br. at 5-8
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(same). As Judge Posner explained in Voices for Choices, “an amicus brief that essentially
duplicates a party’s brief” should be rejected because, inter alia, “amicus briefs, often solicited
by parties, may be used to make an end run around court-imposed limitations on the length of
parties’ briefs.” 339 F.3d at 544; see id. at 545 (rejecting briefs that “essentially . . . cover the
same ground the appellants, in whose support they wish to file, do”). For this reason, a district
court in the Southern District of New York recently denied Google’s efforts to file an amicus
brief in a copyright infringement action “[b]ecause the Court believes that the parties are fully
capable of raising these issues themselves - and have every incentive to do just that.” Capitol
Records, LLC v. ReDigi Inc., No. 12 Civ. 95 (RJS) (Dkt. #24) (S.D.N.Y. Feb. 1, 2012) (order
denying motion for leave); see also Sierra Club, 2007 U.S. Dist. LEXIS 84230, at *10-11
(rejecting amicus brief where “[t]he parties are sophisticated and ably represented by counsel,”
and “[t]here is no reason to think that [the amicus] has access to greater technical, scientific, or
legal expertise than” the party); News and Sun-Sentinel Co., 700 F. Supp. at 32 (rejecting an
amicus brief because, inter alia, “[t]his Court finds that counsel for both [parties] have done a
satisfactory job in their presentations”).
Hotfile’s counsel is perfectly capable of presenting all the arguments relevant to summary
judgment and has every incentive to present all the arguments advanced by EFF. Hotfile’s and
EFF’s positions align in this litigation and EFF presents no unique facts or arguments
unavailable to Hotfile.1 EFF’s one-sided brief effectively allows Hotfile to circumvent the page
limitations on its own brief, and should be rejected.
CONCLUSION
Warner requests that the Court deny EFF’s Motion for Leave to File Amicus Curiae
Brief. In light of the limitations of time to respond on the current summary judgment schedule,
if the Court is to receive the EFF brief, Warner requests that the Court grant Warner leave to file
a response to EFF’s brief, limited to ten pages and filed within ten Court days of the Court’s
order on EFF’s motion.

EFF claims that it also represents “the interests of Hotfile’s users.” Mot. at 3. However, EFF
does not identify any substantive argument that it makes purportedly on behalf of those users that
Hotfile does not make in its opposition. Nor is there any reason that Hotfile cannot provide the
“broader perspective,” Mot. at 4, that EFF purports to provide by relying on publicly available
information about takedowns in other cases.
1

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Dated: March 9, 2012

Respectfully submitted,
By: /s/ Karen L. Stetson
Karen L. Stetson
GRAY-ROBINSON, P.A.
1221 Brickell Avenue
16th Floor
Miami, Fl 33131
Telephone: [phone]
Facsimile: [phone]

MOTION PICTURE ASSOCIATION
OF AMERICA, INC.
Karen R. Thorland (Pro Hac Vice)
15301 Ventura Blvd.
Building E
Sherman Oaks, CA 91403
Phone: [phone]
Fax: [phone]

JENNER & BLOCK LLP
Steven B. Fabrizio (Pro Hac Vice)
Duane C. Pozza (Pro Hac Vice)
Luke C. Platzer (Pro Hac Vice)
1099 New York Ave., N.W.
Suite 900
Washington, DC 20001
Facsimile: [phone]
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY on this 9th day of March, 2012, I served the following document on all
counsel of record on the attached service list via the Court’s CM/ECF filing system:
WARNER BROS. ENTERTAINMENT INC.’S OPPOSITION TO THE ELECTRONIC
FRONTIER FOUNDATION’S MOTION FOR LEAVE TO FILE AMICUS CURIAE
BRIEF
I further certify that I am admitted to the United States Court for the Southern District of Florida
and certify that this Certificate of Service was executed on this date.
By: /s/ Karen L. Stetson
Karen L. Stetson

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SERVICE LIST
Disney Enterprises, Inc., et al. v. Hotfile Corp. et al.
CASE NO. 11-CIV-20427-WILLIAMS-TURNOFF

RASCO KLOCK
Janet T. Munn
[e-mail]
283 Catalonia Ave., Suite 200
Coral Gables, FL 33134
Phone: [phone]
Fax: [phone]

FARELLA BRAUN + MARTEL LLP
Anthony P. Schoenberg
[e-mail]
Roderick M. Thompson
[e-mail]
N. Andrew Leibnitz
[e-mail]
Deepak Gupta
[e-mail]
Janel Thamkul
[e-mail]
235 Montgomery Street
San Francisco, CA 94104
Phone: [phone]

Attorney for Defendants Hotfile Corp. and
Anton Titov

Dineen Pashoukos Wasylik
Conwell Sukhia & Kirkpatrick
[e-mail]
2701 N Rocky Point Drive
Suite 1200
Tampa, FL 33607
Phone: [phone]
Fax: [phone]

Attorneys for Defendants Hotfile Corp. and
Anton Titov

BOSTON LAW GROUP, PC
Valentin Gurvits
[e-mail]
825 Beacon Street, Suite 20
Newton Centre, MA 02459
Phone: [phone]

Attorney for Electronic Frontier Foundation

Attorneys for Defendants Hotfile Corp. and
Anton Titov

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