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

Filing 350

NOTICE by Hotfile Corp. Notice by Defendant/Counterclaimant Hotfile Corporation of Filing the Publicly Redacted Version of Hotfile's Memorandum of Law in Opposition to the Motion for Summary Judgment on Hotfile's Counterclaim Filed by Plaintiff/Counter-Defendant Warner Bros. Entertainment Inc. (Attachments: # 1 Exhibit A)(Munn, Janet)

EXHIBIT A

PUBLIC VERSION
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 11-CIV-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.,
Counter-Defendant.
____________________________________/
[REDACTED] MEMORANDUM OF LAW OF DEFENDANT/COUNTERCLAIMANT
HOTFILE CORPORATION IN OPPOSITION TO THE MOTION FOR SUMMARY
JUDGMENT ON HOTFILE’S COUNTERCLAIM FILED BY PLAINTIFF/COUNTERDEFENDANT WARNER BROS. ENTERTAINMENT INC.

26501\2972069.1

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TABLE OF CONTENTS

I.

INTRODUCTION ............................................................................................................. 1

II.

FACTUAL BACKGROUND ............................................................................................ 2
A.

Hotfile's SRA Tool Created for Warner's Use For DMCA Takedowns ............... 2

B.

Warner's Flawed Automated System For Locating Alleged Infringing
Files ........................................................................................................................ 3

C.

Hotfile' s Business Model ....................................................................................... 4

D.

The Admitted Wrongful Deletions of JDownloader Reduced Hotfile's
Revenues ................................................................................................................ 5

III.

LEGAL STANDARD ........................................................................................................ 6

IV.

ARGUMENT ..................................................................................................................... 6
A.

Warner Is Not Entitled To Summary Judgment Regarding Its Knowing
Material Misrepresentations.: ................................................................................. 6
1.

2.

Even If A Generalized Confidence In An Automated System
Could Constitute A "Good Faith Belief," There Would Still Be
Questions of Material Fact Regarding Warner's Knowledge Oflts
Misrepresentations ................................................................................... 10

3.

There Is Evidence Suggesting That Warner "Deliberately" Deleted
Files- Though Such Intent Is Not Necessary for§ 512(f) Liability ....... 12

4.
B.

Warner Had Actual Knowledge of Its Misrepresentations And Did
Not Have A Sufficient Basis To Form A "Good Faith Belief' That
The Files In Hotfile's Counterclaim Were Infringing ............................... 7

Warner's Claimed Reliance On Human Review Of Files By Its
Vendor LeakiD At Best Raises Further Questions Of Material Fact ...... 12

There is Ample Evidence That Hotfile's Injury Was Proximately Caused
by Warner ............................................................................................................. 14
1.

Though Hotfile Can Show Economic Damages, They Are Not
Required Under The Statute ..................................................................... 14

2.

Hotfile Is Not Precluded From Seeking Damages For The
Improper Deletion Of Files That Warner's Copyright Lawyer
"Expert" Speculates Were Infringing Or Uploaded By Infringing
Users ........................................................................................................ 15
a.

Whether a given work is subject to copyright protection
does not mean its presence on Hotfile is infringing ..................... 15

b.

The Expert Declaration of Scott Zebrak Is Inadmissible To
Establish Copyright Infringement For Purposes Of
Summary Judgment ..................................................................... 16

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c.

d.

V.

Even If Admissible, Mr. Zebrak's Opinion Does Not
Eliminate Questions Of Material Fact As To The Infringing
Status Of The Files In Hotfile's Counterclaim ............................ 18
Even Accepting The Unsupported Legal Speculations Of
Warner's "Expert," Hotfile Has Plainly Suffered
Cognizable Injury Due To Warner's Misrepresentations ............ 19

CONCLUSION ................................................................................................................ 20

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TABLE OF AUTHORITIES

FEDERAL CASES
AXA Global Risks (UK) Ltd v. Pierre,
2001 WL 1825853 (S.D. Fla. Nov. 8, 2001) ........................................................................... 17
Anderson v. Liberty Lobby, Inc.,
477 u.s. 242 (1986) ................................................................................................................... 6
Clark v. Coats & Clark, Inc.,
929 F.2d 604 (11th Cir. 1991) ................................................................................................... 6
Dudnikov v. MGA Entm 't, Inc.,
410 F. Supp. 2d 1010 (D. Colo. 2005) ....................................................................................... 7
Evers v. General Motors Corp.,
770 F.2d 984 (11th Cir.l985) .................................................................................................. 17
Ground Zero Museum Workshop v. Wilson,
2011 WL 3758582 (D. Md. Aug. 24, 2011) .............................................................................. 7
Kendall Lakes Towers Condominium Ass 'n, Inc. v. Pacific Ins. Co., Ltd,
2012 WL 266438 (S.D. Fla. Jan. 30, 2012) ............................................................................... 6
Lenz v. Universal Music Corp.,
572 F. Supp. 2d 1150 (N.D. Cal. 2008) ..................................................................................... 8
Lenz v. Universal Music Corp.,
2010 WL 702466 (N.D. Cal. Feb. 25, 2010) ........................................................................... 14
Montgomery v. Aetna Casualty & Surety Co.,
898 F.2d 1537 (lith Cir. 1990) ............................................................................................... 18
Online Policy Group v. Diebold, Inc.,
337 F. Supp. 2d 1195 (N.D. Cal. 2004) ............................................................................... 7, 16
Ringgold v. Black Entm 't Television, Inc.,
126 F.3d 70 (2nd Cir. 1997) .................................................................................................... 18
Rogers v. Evans,
792 F.2d 1052 (11th Cir. 1986) ............................................................................................... 17
Rossi v. Motion Picture Ass 'n ofAmerica Inc.,
391 F.3d 1000 (9th Cir. 2004) .......................................................................................... 7, 8, 9
Tipton v. Bergrohr GMBH-Siegen,
965 F.2d 994 (lith Cir. 1992) ................................................................................................... 6
UMG Recordings, Inc. v. Shelter Capital Partners LLC,
2011 WL 6357788 (9th Cir. Dec. 20, 2011) ............................................................................ 15

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FEDERAL STATUTES
17 u.s.c.
17 U.S.C.
17U.S.C.
17 U.S.C.

§ 106 ............................................................................................................................. 15
§512(c) ......................................................................................................................... 15
§512(c)(3) ...................................................................................................................... 8
§ 512(f) .................................................................................................................. passim

STATE RULES AND REGULATIONS
Fed. R. Civ. P.56(e) ...................................................................................................................... 17

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I. INTRODUCTION

Consistent with the cooperation encouraged by the Digital MilleMium Copyright Act
("DMCA"), Hotfile Corp. ("Hotfile") provided Warner Bros. Entertainment, Inc. c·warner")
with a powerful "Special Rightsholder Account" ("SRA") that allowed Warner direct access to
remove unauthorized Warner content from Hotfile. Using its SRA account, Warner knowingly
and systematically deleted thousands of files it was not in fact authorized to remove, falsely
representing each time under penalty of perjury that it had such authorization. Hotfile' s
counterclaim covers only a small subset of the improper deletions, because Hotple (unlike
Warner'~ examined the content of the files listed before filing the counterclaim.

Warner admits it did not own and was not authorized to delete all but 19 of the 890 files
identified in· the Counterc1aim. Nevertheless, Warner claims "mistakes happen," and _relies on a
partisan industry lawyer as its "expert" to opine that some of the files wrongfully taken down
allegedly are infringing someone else's copyrights. Even accepting its expert's conclusions as
true-and Warner fails to support such conclusions with facts-it could not absolve Warner.
Discovery has provided ample evidence to conclude that Warner's actions were not iMocent
mistakes. Rather, they were a product of an automated system that deleted files without .
Warner knew it was regularly and repeatedly deleting files it did not ownas many as lllllofthe files it-

deleted were "false positives"-but Warner continued to

use the flawed system. This raises a material issue as to whether Warner could have a suffi cient
basis to misrepresent under penalty of perjury that it is the owner of the files the system located
and had a "good faith belief' that they were infringing, as is required under the DMCA.
Hotfile's business relies on the bargain struck by the DMCA, including the wellestablished "notice and takedown" regime that allows copyright owners to have their work-and

only their work-removed quickly from websites. To ensure that content owners do not abuse
this power~ the DMCA imposes liability for misrepresenting that material is infringing and
allows the injured part!' to recover any damages incurred as a result. There is substantial support
in the record to conclude that Warner knowingly made the admittedly false and material
representations that resulted in the wrongful deletions of over 800 files listed in the counterclaim.
There can be no real dispute that a substantial number of those misrepresentations proximately
caused harm to Hotf1le. A reasonable juror could certainly conclude that Warner should be liable
for its repeated and egregious violations of§ 512(f).

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II. FACTUAL BACKGROUND
The following facts are supported by the pleadings, discovery responses, and expert
reports provided by the parties and summarized in the accompanying Counter-Statement of
Facts.

A.

Hotfile's SRA Tool Created for Warner's Use For DMCA Takedowns
A few months after Hotfile's launch, in late Apri12009, Warner asked Hotfile for a

special "takedown tool" to allow Warner to delete files "immediately and hence more efficiently
... rather than sending an official takedown abuse notice every time URL's are identified."
(Declaration of Roderick Thompson (attached hereto as Exhibit A), Ex. 1). Consistent with
Hotfile's desire to cooperate with Warner under the DMCA, Hotfi1e specially engineered the
SRA tool to have the capability that Warner requested. Hotfi1e provided Warner with the SRA
tool, which was activated in August 2009. Thompson Dec!. Ex. 2. The account allows Warner
to directly command Hotfile's servers. It can enter one or more URLs for files stored on
Hotfile's systems, and immediately block access to them. Once a file is requested to be deleted
via the SRA tool, the Hotfile system automatically blocks uploading of the same file or any other
copy of the file with the same hash value. (Declaration of Anton Titov (attached hereto as
Exhibit B), 'If 2). Thus, if the SRA tool is misused to delete a file that is not infringing any
Warner copyright, all copies of the same file are nevertheless blocked from being uploaded again
regardless of the fact that the file was wrongfully deleted.
Every time Warner used the SRA tool it certified "under penalty of perjury" that [1] it is
"the owner or an authorized legal representative of the owner of copyrights" and [2] it has "a
good faith belief that use of this material is not authorized by the copyright owner, the copyright
owner's agent, or the law" as to each URL or file it deleted from Hotfile.com. CSUF 'If 2;
Answer to Counterclaim, [D.E. #163] 'If 15 (admitting making such statements for each URL).
"Warner's notifications by means ofHotfile's SRA are ... subject to 17 U.S.C. § 512(f)," which
imposes liability for knowingly material misrepresentations. CSUF 'If 1. Also at Warner's
request, Hotfile provided Warner with complimentary premium accounts to allow it to "verify"
that its copyrighted material was in fact displayed in suspected files before using the SRA tool to
delete them. Thompson Dec!. Ex. 3. Despite these representations, Warner did not use the
premium accounts to verify the content of the thousands it deleted but did not own by using the
powerful SRA. CSUF 'If 4.

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B.

ll~CIV-20427-WILLIAMS/TURNOFF

CASE NO.:

Wotrner,s Flawed Automated System For Locating Alleged Infringing Files
No human being at Warner reviews the content of the files, -

of the files, or even

it deletes with Hotfile's SRA.
Thompson Decl. Ex. 4 (Kaplan Depo. 44:5-14; 85:2-6; 181 :2-9). Rather, to locate allegedly
infringing material, Warner designed

that scour websites suspected

by Warner to facilitate piracy, looking for
Warner works. Kaplan Dec!. at~ 5-11 . More accurately, the

IIIII search for Wamer's

I l l are trying to find.

-

If, for example, a Warner

In searching for files of-

is scanning webpage -

Wamer's -

in fact made such obvious errors.

Thompson Decl: Ex. 5.
Warner has testified that its representation under penalty of perjury that it had a good
faith belief that the material it was deleting was infringing was made by a . ., not any .
individual. Thompson Dec!. Ex. 4 (Kaplan Depo. 102:4~11). Further, because ofthe automated
nature of its system, Warner admits it does not form a good faith belief that any individual link
that its

I l l found was infringing; rather, Warner's representations are based on an abstract

confidence in the efficacy of i t s - Jd. at 104:18-105:2; 103:2-10; 245:19-32.
Just because a webpage contains -

associated with a Warner movie on the page

does not mean that only. links to' that particular movie are posted on that page. Wruner's generally do not

Thompson Decl. Ex. 6. Yet Warner did not
inform Hotfile of the wrongful deletions at that or any other time. Thompson DecI. Ex. 4
(Kaplan Depo.l l9:14-25). Nor did Warner alert Hotfile in the Spring of2010, when Warner

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uploaded clips of its television program "Vampire Diaries" to Hotfile to encourage sales of the
program through iTunes
Thompson Decl. Ex. 4 (Kaplan Depo. 16:10-17:4). Even though Warner itselfuploaded the

Thompson Decl. Ex. 8. Despite
knowing that its methods for locating material on Hotfile to delete through its SRA were
overbroad, Warner knowingly and deliberately continued to use the same flawed methods for
selecting files to delete.
In early April 2011, Hotfile provided Warner with a listing of some of these suspicious
deletions made on ·February 7 and 8- the day Warner filed this lawsuit. Thompson Dec!. Ex. 9
But Warner's deletions continued. The records of SRA deletions show that tens of thousands of
URLs with titles indicative of content other than Warner content were being taken down
wholesale by Warner without regard to whether the posting had been authorized by its owner or
was fair use for other reasons. 1 Warner has admitted that it did not own the copyright in nor, at
the tiine of deletion, was it authorized to delete 871 of the files identified in Hotfile's
counterclaim. Thompson Decl. Ex. 10; CSUF ~ 3.

C.

Hotfile's Business Mode)
Hotfile earns its revenue through users who purchase "Premium" accounts, which allows

a user to download files at faster speeds and store files permanently on Hotfile's system. Titov
Declaration In Support OfHotfile's Motion For Summary Judgment~ 7. Users are encouraged
to sign up for (or "convert to") Premium accounts when downloading files posted on Hotfile.
Hotfile offers a rewards program to share some of its revenue with the up loader of a file that

1

Pursuant to a stipulation between the parties, Hotfile is claiming damages for only the files
identified in Exhibits A-D of its Second Amended Counterclaim. (See Joint Motion and
Memorandum of Law re voluntary dismissal [D.E. # 151]; CSU.F ,[ 1). However, Hotfile does
not admit, as Warner suggests, that those file represent the only files Warner improperly deleted.
To the contrary, the spreadsheets produced by Warner suggest thousands of other files were
improperly deleted.

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produced a conversion. Hotfile therefore maintains data on which files result in the conversion
of Premium users. Thompson Decl. Ex. 11 (Boyle Rebuttal Rep01i

D.

~53).

The Admitted Wrongful Deletions of JDownloader Reduced Hotfile's Revenues
JDownloader is a software application that simplifies the process of downloading.

Thompson Decl. Ex. 12 (Boyle Report, 20). Hotfile records show that this freeware open
source program is frequently dovvnloaded. from Hotfile, representing 17 of the top 100 most
downloaded files. !d.; Titov Declaration In Support Of Hotfile's Motion For Summary
Judgment

13.

The software publisher that uploaded the file used Hotfile.com as a means for

distribution of its open source software. ld. Warner has wrongfully and repeatedly deleted
JDownloader files. Eight such improper \Vamer deletions of JDownloader are identified in the
Counterclaim alone. One of those files was uploaded by JDownloader's owner itself, Appwork

-

GmbH. Thompson Decl. Ex. 10 (row 798)~ Ex. 13. Warner explained it made the deletions

Thompson Decl. Ex. 4
(Kaplan Depo. 225:13-226: 12).

-strongly suggests that Warner knew all along how JDownloader was being distributed.
Moreover, since Warner .has testified that its anti-piracy personnel review lists of files i t s have already deleted, it·is.likely that Warner knew that i t s - were regularly deleting
JDownloader. !d. at 87:20-88:4. The earliest deletioil of JDownloader identified in Hottile's
counterclaim dates from October 2009. See Thompson Decl. Ex. 10 (row 798). -

CSUF ~ 8. Despite being aware

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that its ~ere - d e l e t i n g JDownloader software in their ordinary functioning,
Warner did not do anything to prevent such deletions.
Those wrongful deletions undeniably caused Hottile to lose revenue. The eight
JDownloader files inHotfile's counterclaim alone were downloaded- times and resulted
in.remium user subscriptions. CSUF ~~ 9-10. All the files uploaded by JDownloader's
owner were downloaded- times and resulted in

IIIII premium user subseriptions.

CSUF ~~ 14-15.

III. LEGAL STANDARD ·
A party seeking summary judgment bears "the initial burden to show the district court, by
reference to' materials on file, that there are no genuine issues of material fact that should be
decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
Once the moving party has satisfied its responsibility, the burden shifts to the non-movant
to show the existence of a genuine issue of material fact. Id. In opposing summary judgrnent, the
nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a
whole. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992). In reviewing
whether the nonmoving party has met its burden, the court must stop short of weighing the
evidence and making credibility determinations of the truth of the matter. Jd. at 998-999.
"Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor." !d. "Summary judgment can only be entered if no rational jury could find
for the non-movant ... despite drawing all reasonable inferences in its favor." Kendall Lakes

Towers Condominium Ass'n, Inc. v. Pacific Ins. Co., Ltd., 2012 WL 266438, at *6 (S.D. Fla. Jan.
30, 2012). Where a non-movant presents direct evidence that creates a genuine issue of material
fact, the only issue is one of credibility, and summary judgment is inappropriate. Anderson v.

Liberty Lobby, Inc., 477 U.S . 242, 253-55 (1986).
IV. ARGUMENT
A.

Warner Is Not Entitled To Summary Judgment Regarding Its Knowing Material
Misrepresentations.
Liability attaches under 17 U.S .C. § 512(f) to Warner if it "knowingly materially

misrepresent[ed]" that it had a "good faith" belief that the use of the material complained is not
authorized by the owner. A party is liable under § 512(f) if it misrepresented that material was
infringing and subjectively had a "good faith belief' that material was infringing, even if that

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belief was unreasonable. Rossi v. Motion Picture Ass'n ofAmerica Inc., 391 F.3d 1000, 1004
(9th Cir. 2004). 2 If a party does not have a "sufficient basis to form the required good faith
belief' its misrepresentation is "knowing" and actionable under§ 512(f). Rossi, 391 F.3d at
1002 (emphasis added).

1.

Warner Had Actual Knowledge oflts Misrepresentations And Did Not Have
A Sufficient Basis To Form A "Good Faith Belier' That The Files In Hotfile's
Counterclaim Were Infringing.

Wamer misstates the applicable standard as requiring a showing that it acted
"deliberately" or tha~ the "falsehood was intentional." (Opp. at 8). That is not what section
512(f) or the cases interpreting it say. Specifically, Rossi, the case on which Warner principally
relies, states that "there must be a demonstration of some actual knowledge of
misrepresentation on the part of the copyright owner." Rossi, 391 F.3d at 1005. Warner had
"actual knowledge" that it~ were finding false positives and, therefore, that Warner was
making misrepresentations in using the SRA. Warner was aware of the problem for years before
. the cotmterclaim was filed but continued to use the SRA. It admits it was "aware at points in the
past of instances in which Warner has send out notices in error." Declaration of David Kaplan In
Support of Warner's Motion for Summary Judgment,~ 15. Yet it knowingly continued to use
th~, which resulted in still more knowing misrepresentations.

Warner also ignores its own cited precedent holding that in "order to properly support [a]
Motion for Summary Judgment [on 512(£) liability], [the defendant is] required to show that it
had a sufficient basis to fotm the required good faith belief that the Plaintiffs' [material]
infringed on its rights." Dudnikov v. AfGA Entm 't, Inc., 4 10 F. Supp. 2d 1010, 1013 (D. Colo.
2005) (emphasis added); see also Rossi, 39 1 F.3d at 1002. While a "sufficient basis" does not
involve "a full investigation to verify the accuracy of a claim of infringement," a copyright
2

There is no Eleventh Circuit precedent on point. The seminal § 512(f) case put the standard in
more objective terms, requiring a showing that the defendant "knew, should have known if it
acted with reasonable care or diligence, or would have had no substantial doubt had it been
acting in good faith, that it was making misrepresentations." Online Policy Group v. Diebold,
Inc., 337 F. Supp. 2d 1195, 1204 (N.D. Cal. 2004)(emphasis added). The most recent court to
address the issue agreed with Diebold's ruticulation. See Ground Zero Museum Workshop v.
Wilson, 2011 WL 3758582, at *19 (D. Md. Aug. 24, 2011). Although Warner inaccurately
represents that every case since Rossi has required "subjective knowledge" (Opp. at 8), to the
extent the standards may differ is not significant to this motion. Whether Warner knowingly
made its misrepresentations raises a genuine issue of fact under either articulation.

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owner can only form a good faith belief if it "make[s] an initial review ofthe potentially
inftinging material prior to sending a takedown notice." Lenz v. Universal Music Corp .• 572 F.
Supp. 2d 1150, 1155-56 (N.D. Cal. 2008) (emphasis in original). As a part of this "initial
review," the copyright O\v:ner must make "a consideration of the applicability of the fair use
doctrine" to the allegedly infringing material.Jd. at 1155. Without such a review, "it would be
impossible to meet any ofthe requirements of Section 512(c)." ld.
Since an automated system that searches for material based on text matching "cannot
distinguish between infringing content and content that merely contains words that suggest
infringement," the court in Rossi noted the argument that "computers conducting automated
searches cannot form a belief consistent with the language of the DMCA," and a human review
of the material gathered by such a program is necessary to form even a good faith belief under
the statute. See Rossi, 391 F.3d at 1007 n.7 ("Even though the MPAA uses the ' Ranger' program
to initially identify potentially infringing websites> the MP AA employs three to fom employees
who actually review the identified sites. It is these employees, rather than 'Ranger,' who

ultimately decide whether a website contains infringing matet·ial.") (emphasis added).
There is more than enough evidence to show that Warner did not have a sufficient basis
to form a good faith belief that the files in Hotfile's counterclaim were infringing. First, Warner
admits that when it deleted material through Hotfile's SRA account, it did not form any
individual belief as to the infringing status of any specific file; rather, the only "belief' Warner
formed about the material it deleted was a generalized confidence that the automated system it
devised was good at finding and deleting mostly Warner content. See Thompson Decl. Ex. 4
(Kaplan Depo. 104:18-105:2; 103:2-10). Wamer did not have much "faith"~ good or any other

Thompson Decl. Exs. 6 and 8. Given that Warner
acknowledges that. of the files located by its

I l l were false positives, Warner cannot

cJaim that--with respect to any individual file-it has a good faith basis to assert that the file
contained Warner content. Warner may not simply treat these "errors" as collateral damage. 17
U.S.C. § 512(c)(3) plainly limits content owners to taking down their own works. To hold
otherwise would eviscerate the DMCA.
Second, Warner unquestionably failed to satisfy the basic human review requirements
necessary to form a good faith belief under § 512(±). After inputting the

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intb Warner's

CASENO.: ll-CIV-20427-WILLIAMS!fURNOFF

IIIII,no human at Warner ever reviewed

No human at made any attempt whatsoever to determine whether any
individual file was subject to a fair use defense.

4

Mr. Kaplan even admitted that allllll-not

anyone at Warner-represents to Hotfile that it has a good faith belief that the material is
infringing when . iles are deleted through the SR.A. Thompson Decl. Ex. 4 (Kaplan Depo. 101:8f
102:14). Since a . . cannot form a "good faith belief' about anything, much less make a
determination that a given file is or is not protected by the doctrine of fair use as required by

Lenz, Warner's reliance on- t o locate and delete material without
precludes a finding that Warner had a "good faith belief' as to its misrepresentations.
Given the requirement that a human must undertake some initia1 review of a particular
file-including an analysis of whether it is subject to a fair use defense- in order to form a good
faith belief that material is infringing, Warner's misrepresentations were plainly "lmowing." The
court must evaluate whether the defendanf had a sufficient basis grounded in the particular facts
of the specific material that was deleted in order to form a good faith belief regarding that
material. See Rossi, 391 F.3d at 1002, 1006 (sufficient basis to form belief where site stated it
had MPAA movies available for download). Here, there is no dispute that Warner lacked the
necessary factual basis to form any specific belief as to the identity, infringing status, or potential
fair uses of the particular files it~ selected and deleted.
Warner's total failure to conduct even the most basic review necessary to form any kind
of good faith belief is demonstrated most clearly by Wamer's
-

Thompson Decl. Ex. 7.

~ow Warner could have a subjective good faith belief in the accuracy ofthat statement

is beyond comprehension.

3

According to Warner, the files at issue in this counterclaim that were located by a Warner
vendor, LeakiD, deletions of those files are addressed in section IV(A)(4) irifra.
4
Warner even deleted a file of an adult video called "This Ain't Avatar XXX," apparently
contending that it had a "good faith" belief that "Ain't Avatar" infringed Warner's rights in the
movie "Avatar." Thompson Dec1. Ex. 10 (row 657.)

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Having unquestionably failed to take the steps necessary to form a good faith belief that
material is infringing on Hotfile, Warner cannot show that it is entitled to summary judgment as
to its "knowing" misrepresentations under§ 512(f).
2.

Even If A Generalized Confidence In An Automated System Could
Constitute A "Good Faith Belief," There Would Still Be Questions of
Material Fact Regarding Warner's Knowledge Of Its Misrepresentations

Assuming arguendo that the law does not require a human to review any of the facts
supporting representations under penalty of perjury- including an evaluation of potential fair
uses, a question clearly not suited for automation- in order to form a good faith belief under the
DMCA, there would still be a question of fact whether Warner formed such a belief as to the
files in Hotfile's counterclaim.
Warner claims that it has a sophisticated system for determining
n.U~/1(4U Decl., 8.)

Warner's

In reality,

system isn't sophisticated at all. It doesn't really even search for

~ather, it appears to search

There is clearly a
question of material fact as to whether Warner had a sufficient basis to contend that

IIIII file on

a page titled "Hot Girls In Shorts HD Wallpapers Widescreen" was unauthorized Warner
content, knowing only the identity of the main website
·honrmscm Decl. Ex. 16.
Warner's kno~ledge of its absurdly o v e r b r o a d - is not speculative. For one, it
can be inferred that Warner knew how its automated

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111.

5

Not surprisingly, Warner

incorrectly deleted a significant amount of material this way. Thompson Decl. Ex. 19. -

Wamer cannot credibly assert that it did not know it was making
misrepresentations when it deleted such files. Even if Warner's failure to conduct any human
review of the files doesn't disqualifY it from claiming to have a good faith belief that these files
were infringing, there is at least a question of material fact that they had a sufficient basis to
believe that
Regardless ofwhich -

Warner content.
Warner'~ used, there is evidence to show that

Warner knew that its practice o

-

including copies of a file called "Toukou Ura King" that even Warner now admits

wasn't violating anyone's copyrights. Thompson Dec!. Ex. 21; Ex. 10 (ro.ws 834-836.) -

raises questions of material fact as to
whether it subjectively knew of its errors.

Thompson Decl.
Ex. 22. Of the 847 incorrectly identified files in Hotfile's counterclaim, 164 are single links
smaller than 200mb. Titov Decl. ~ 11 . Warner su~jectively knew that its ~ere

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consistently misidentifying- files as Wamer movies, but it continued to delete those
fi1es anyway. As such, there is a question of fact as to whether Warner's misrepresentations of
infringement as to those files were knowing under any standard.
that copies of a non-infringing software program,
JDownloader,

Thompson Decl. Ex. 4 (Kaplan Depo. 232: 13~ 16). Also,
since Warner claims to, as a matter of practice, review lists of files it had previously deleted,
there is a question of fact as to whether Warner knew that it had been systematically deleting
copies of JDownloader since 2009. Jd. at 87:20-88:4.

3.

There Is Evidence Suggesting That Warner "Deliberately" Deleted Files Though Such Intent Is Not Necessary for§ 512(f) Liability.

Thompson Decl. Ex. ·14. Tellingly, though Warner had absolutely no authorization to delete
JDownloader,

4.

Warner1s Claimed Reliance On Human Review Of Files By Its Vendor
LeakiD At Best Raises Further Questions Of Material Fact.

Wamer attempts to avoid liability for improper deletions made by its automated system
by noting that many of the files identified in Hotfile' s counterclaim were located by one of its
vendors, LeakiD, whose process for locating files purportedly

of the

links, though there is no evidence in the record regarding where or how LeakiD found those
files. (Kaplan Decl. ~ 20); see also Thompson Decl. Ex. 23. At deposition, Warner testified that
Warner's "system" for processing LeakiD-provided links involved a Warner employee named
manually reviewing and approving the text of the URLs of all such links before
having Warner's- send notices on those files. CSUF, 5. As such, the only factual basis in

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the record for Warner's purported good faith belief in misrepresenting that the files identified in
Hotfile's counterclaim located by Leakll) infringed Warner's copyrights consists of 1) Warner's
ambiguous "confidence" in the accuracy ofLeakiD's methods (though Warner has provided no
indication of what LeakiD actually did to find the files) and 2)

review and

approval of the titles ofthe files LeakiD provided to him.
First, there is a question of material fact as to whether LeakJD had a "good faith belief'
that the material it misidentified as Wamer content was infringing. The files identified as noninfringing in rows 811-817 of Scott Zebrak's declaration were located by Leak.ID, misidentified
as copies of the Warner movie "Cop Out," and deleted on February 9, 2011. Thompson Decl.
Ex. 23. That same day, Herve Lemaire, CEO ofLeakiD sent a takedown notice to Hotfile on
behalf of "Metropolitan," identifying those exact same files as copies of a movie "La nuit nous
appartient." Thompson Decl. Ex. 24. The day before, Herve Lemaire sent another takedown
notice to Hotfile for those exact same files, this time identifying them as ihfringing Microsoft's
copyright in "sharepoint portal server 2001 ." Thompson Decl. Ex. 25. Apparently, in the span of
48 hours, LeakiD had a "good faith belief' that those six non-infringing files were copies of two
different movies and a piece of software. This is simply not credible.
Moreover, a simple look at the URLs that

reviewed and determined were

infringing Warner's copyrights demonstrates the lack of any plausible basis for forming a good
faith belief as to Warner's authorization to delete them.

apparently had a good

faith to believe that:
•

A file titled "amateur couple motel [XXX]" was the movie "Inception"

•

A file titled "Premium Link Generator" was the movie "Due Date"

•

A file titled "Emma Mae- Foot Fetish Daily 4" was the movie "Cop Out"

The fist goes on and on. TI1ompson Decl. Ex. 23. It stretches credulity to the breaking point for
d the fact that they were generated

Warner to assert that, based only on -

by Leak:ID's opaque process, Warner had a good faith basis to state under penalty of perjury that
they infringed Warner's copyrights. 6 There is a clear question of fact as to whether Warner had a

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sufficient basis to misrepresent under penalty of pe1jury that it believed it was authorized to
delete these files.
Because there is significant evidence that Warner did not and could not have had a
subjective good faith belief that it properly deleted the files identified in Hotfile's counterclaim,
Warner's motion for summary judgment regarding its "knowing" misrepresentations under§
512(f) must be rejected.

B.

There is Ample Evidence That Hotfile's Injury Was Proximately Caused by Warner
1.

Though Hotfile Can Show Economic Damages, They Are Not Required
Under The Statute

Warner incorrectly claims that Hotfile must show "actual and economic" injury to prevail
on its§ 512(f) claim. (Opp. at 11). The case Warner cites for this proposition (the only
published case squarely addressing the scope of actionable§ 512(f) damages) actually says the
opposite: "actual expenses or economic losses of some minimum value are not necessary

under the statute." Lenz v. Universal Music Corp., 2010 WL 702466, at* 12 (N.D. Cal. Feb.
25, 2010) (emphasis added). In Lenz, the court rejected the Defendant's argument that damages
under § 512(f) "must be more-than-marginal economic damage," and granted summary judgment
in favor of the Plaintiff regarding the affirmative defense that the Plaintiff had suffered no
damages even though the Plaintiff did not clearly demonstrate specific economic damages. Id at
*9, 12 ("no genuine issue of material fact as to whether Lenz incurred some damages as defined
under the statute," [where claimed injury was] "time spent reviewing counternotice procedures,
seeking the assistance of counsel, and responding to the takedown notice.") The Court
recognized that requiring a party to show actual economic harm in addition to a knowing
misrepresentation would make § 512(f) ineffective: "Requiring a plaintiff who can make such a
showing [of a knowing misrepresentation] to demonstrate in addition not only that she suffered
damages but also that those damages were economic and substantial would vitiate the deterrent
effect of the statute." !d. at *11. Though not required, the facts demonstrate that Hotfile has
suffered demonstrable economic injury even accepting Warner's inadmissible evidence. 7

7

There is also ample evidence that Hotfile has suffered reputational and goodwill harm because
of Warner's deletions. Thompson Dec!. Ex. 26. This by itself would be enough to present a jury
issue.

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2.

CASE NO.: ll-CIV-20427-WILLIAMS/TURNOFF

Hotfile Is Not P1·ecluded From Seeking Damages For The Improper Deletion
Of Files That Warner's Copyright Lawyer "Expert" Speculates Were

Infringing Or Uploaded By Infringing Users.
Under the DMCA oitly the owner of a given piece of content (or that owner's agent) is
authorized to have material removed from a particular website. 17 U.S.C. § 512(c). Warner's
interpretation of the DMCA, however, would vest Wamer with private attorney general power to
determine."copyright status" and delete whatever material it wanted to, without the actual
copyright owner's consent or even prior notification. Quite simply, the DMCA strictly precludes
Wamer from playing the role a copyright vigilante "robocop" on behalf of other content owners.

a.

Whether a given work is subject to copyright protection does not
mean its presence on Hotfile is infringing.

Warner claims that the non-Warner files that it deleted did not injure Hotfile because
Hotfile, through its 30(b)(6) deponent and its damages expert, "admitted" that Hot:file is not
injured by the deletion of infringing files sent by the "wrong copyright owner." (Cite brief at 1415). This argument misapprehends what "infringing" means. A file is not infringing if the
copyright owner authorized its distribution on Hot:file. 17 U.S.C. § 106 ("the owner of
copyright under this title has the exclusive rights to do and to authorize any of the
following ... )(emphasis added). A takedown notice sent by a third party without authorization by
the owner cannot suppol1 the conclusion that a given file is infringing. There is simply "no
assurance that a third party who does not hold the copyright in question could know whether the
material wa<; infringing." UMG Recordings, Inc. v. Shelter Capital Partners LLC, 2011 WL
6357788, at *22 n.14 (9th Cir. Dec. 20, 2011). While Hotfile would not be injured by the
removal of a file by the copyright owner (or with its authorization), Hotfile may well have been
damaged by Warner's unauthorized deletion of files because the copyright owner may have
chosen to leave the file on Hotfile, posted it himself, or authorized its posting. g

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Warner's motion ignores the seminal §512(f) case-- Online Policy Group v. Diebold,

Inc. , 337 F. Supp. 2d 1195, 1204 (N.D. Cal. 2004)-which is factua1ly closest to the present
situation. There, the defendant requested the ISP to take down an entire email archive that had
been posted on its site. Diebold, Inc., 337 F. Supp. 2d 1195. The court acknowledged that some
of the thousands of email messages may have been "subject to copyright protection," but held
that "Diebold knowingly materially misrepresented that Plaintiffs infringed Diebold's copyright
interest, at least with respect to the portions of the email archive clearly subject to the fair use
exception." !d. at 1204, n.l4. Here, Warner used the SRA to delete dozens- sometimes
hundreds-of files in a day, automatically and indiscriminately making the same blanket
representations under penalty of perjury for each file. If some of Warner's mistakes happened to
take down non-Warner copyrighted materials, a jury would still be entitled to consider whether
the use of such materials on Hotfile constituted a fair use or was authorized by the true owner,
and thus, whether Hotfile has been injured by the deletion of such material.9

b.

The Expert Declaration of Scott Zebrak Is Inadmissible To Estab1ish
Copyright Infringement For Purposes Of Summary Judgment

To support its claim that Hotfile is not entitled to damages for the works in the
counterclaim> Warner submits the "expert" declaration of industry copyright lawyer Scott
Zebral<> who opines that nearly all of the files in Hotfile's counterclaim are "highly likely
infringing." 10 Thompson Decl. Ex. 10. Preliminarily, Mr. Zebral< is hardly a neutral expert. He
has spent his career advocating for one side of the issue, including a stint in charge of litigation
9

Hotfile 's latest information suggests that less than 5% of all uploads are "matched" as possible
copyright infringement by Vobile's VCloud9 fingerprinting technology. (Titov Dec!.~ 12; Titov
Decl. Ex. 1.) This suggests that the chance that a random file wrongfully taken down by
Wamer'- contains copyrighted material is much lower than indicated by Mr. Zebrak's
sreculative opinions.
1
Warner has conceded that it was not authorized by the owner to delete the remaining files in
the counterclaim at the time it deleted them. Warner claims that in preparing its summary
judgment motion it asked for and received after-the-fact authorization to delete the files owned
by Electronic Arts ("EA''), but presents no legal support that § 512(f) liability to the ISP can be
avoided by checking with the copyright owner after the misrepresentation is made. If this were
the law Warner would be
to more misre
tations.
. Thompson
amer now
post
ective knowledge
Decl.
that it made material misrepresentations for all of the files i.n Hotfile's counterclaim and has
failed to seek authorization fi·om the owner.

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for the Recording Industry of Association of America. His resume (Thompson Dec!. Ex. 28)
lists two publications, both critiques of leading DMCA cases, YouTube and Veoh. The latter
article criticized the Veoh district court decision, which has since been affirmed by the Ninth
Circuit, as taking seriously '"false positives,' and other vague concepts that enable an online
service provider to avoid taking responsibility for its own actions." Thompson Dec!. Ex. 29 at I.
Putting aside his credibility issues (inappropriate for resolution on summary judgment), Mr.
Zebrak's opinions are inadmissible conclusory suppositions without any basis in the factual
record.
It is well-established in the Eleventh Circuit that a party may not support a motion for
summary judgment "on the basis of an expert's opinion that fails to provide specific facts from
the record to support its conclusory allegations." Evers v. General Motors Corp., 770 F.2d 984,

986 (11th Cir.1985) (emphasis added); see also Rogers v. Evans, 792 F.2d 1052 (11th Cir. 1986)
(approving grant of motion to strike affidavit for failure to meet requirements ofFRCP 56(e)
where "affidavit did not specifically identify the records examined nor attach any copies.")
(emphasis added). Similarly, a "conclusory statement directed at eliminating a genuine issue of
material fact, as in the present case, is not sufficient to warrant the entry of summary judgment."
AXA Global Risks (UK) Ltd. v. Pierre, 2001 WL 1825853, at *5 (S.D. Fla. Nov. 8, 2001)
In Evers, the court rejected an affidavit submitted by an otherwise qualified expert in a
car accident case who opined that, based on his review of the car, the collision scene, the
witnesses, and the car design specifications, the collision would have been less severe if the car
employed an airbag. Evers, 770 F.2d at 896. The court rejected the declaration for failure to
actually cite any specific facts in support of the expert's conclusion: "Thelin's affidavit, though it
purports to be based upon a review of the evidence, fails to provide specific facts to back up its
conclusory allegations."/d.
Mr. Zebrak provides no facts in support of his legal conclusion that the files in Hotfile's
counterclaim are infringing. He did not even record the factual basis for his opinions: "[M]y
recordation of data along the way, whether it's retaining a link or otherwise, it was just sort of
notes I kept along the way. It's not meant to be, you know, everything that could possibly show
what the file is or everything that could possibly show that the file has been downloaded and
distributed or the authorization issues." Thompson Dec!. Ex. 30 (Zebrak Rebuttal Depo. 55:320). The closest thing to "facts" Mr. Zebrak disclosed are a few unspecified URLs in the "notes"

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CASE NO.: 11-CIV-20427-WILLIAMS/TURNOFF

column of a spreadsheet he provided. Thompson Dec!. Ex. 31 (Zebrak disclosure counterclaim
files). But Mr. Zebrak admitted that these URLs were not the basis for his infringement
contentions: "the idea in the notes section was for us to keep notes along the way, not to pinpoint
this is how I identified the work, this is the author, you know, how it's being commercialized."
Thompson Dec!. Ex. 30 (Zebrak Rebuttal Depo. at 226: 12-25). When asked directly to provide
the factual basis for his opinions, Mr. Zebrak scoffed: "These works in the process I applied
are ... readily reproducible by anyone else." Id. at 227:9-25.
An admissible expert opinion cannot be based on a nebulous "methodology" and "quilt of
information" never disclosed or cited. Thompson Dec!. Ex. 32 (Zebrak Depo. 237:6-238:3).
Since Mr. Zebrak has provided absolutely no facts to support his opinion that the files on Hotfile
were "highly likely infringing," his opinion is insufficient to eliminate a question of material fact
as to whether Hotfile can claim damages for those files. II

c.

Even If Admissible, Mr. Zebrak's Opinion Does Not Eliminate
Questions Of Material Fact As To The Infringing Status Of The Files
In Hotfile's Counterclaim.

Even if Mr. Zebrak's opinion were admissible, myriad errors in his methodology and
results raise questions of material fact as to whether his conclusions are accurate for any of the
files. For one, Mr. Zebrak never bothered to ask the actual copyright owners whether or not a
file was authorized for posting on Hotfile. Thompson Dec!. Ex. 32 (Zebrak Depo. 319:3-22).
Instead, he made the speculative assumption that files were not authorized for distribution
Hotfile if the content owner was otherwise "commercializing [a file] and selling it ... [because] it
would be entirely inconsistent ... for them to have authorized that content to be reproduced and
distributed across the web on a viral basis." Id. at 126:11-127:5. This is sheer speculation and, at
least for some content owners, demonstrably false. Hotfile contacted the owner of one file Mr.
Zebrak identified as "highly likely infringing" who provided an affidavit explaining that he was
perfectly fine with it being distributed for free on Hotfile. Thompson Dec!. Ex. 33. And yet, Mr.
Zebrak refused to accept the owner's testimony. Contradicting his "methodology" (under which
speaking with the actual content owner is unnecessary), Mr. Zebrak insisted that he "speak with
Mr. Zebrak's opinion is also inadmissible as an inappropriate expert legal conclusion. An
expert may not testify regarding legal conclusions and "also may not testify to the legal
implications of conduct." Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir.
1990). It is a "legal conclusion [whether] infringement (actionable copying) has occurred."
Ringgold v. Black Entm 't Television, Inc., 126 F.3d 70, 75 (2nd Cir. 1997).
II

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ll~CIV-20427-WILLIAMSffURNOFF

this person [before making a determination as to authorization] .... He, of course, knows what at
the time he authorized or didn't authorize." Thompson DecL Ex. 30 (Zebrak Rebuttal Depo.
287:5-23.) Apparently, speaking with the copyright owner is only relevant when a sworn
statement contradicts Mr. Zebrak's bald speculation. Even assuming Mr. Zebrak's opinions
were admissible, they still would raise multiple question of material fact as to whether Hotfile is
entitled to damages from Warner's deletion of over 800 files, some of which are allegedly
"infringing."

d.

Even Accepting The Unsupported Legal Speculations Of Warner's
"Expert," Hotfile Has Plainly Suffered Cognizable In,jury Due To
Warner's Misrepresentations

Even accepting Mr. Zebrak's "conclusions" as to which files and users for which Hotfile
should be precluded from claiming injury, the injury to Hotfile is still obvious and well-founded.
Warner focuses on user deletions, notfile deletions, ignoring the obvious damage
incurred when Warner improperly deletes popular material from Hotfile. The improper deletion
of non-infringing files-particularly popular ones--damages Hotfile>s business model, which is
predicated on the availability of popular, non-infringing content.

evidence that Hotfile suffered injury because of such deletions is undisputed. Thompson Decl.
Ex. 34 (Lynde Expert Report~ 27). Even assuming that Hotfile cannot recover damages for files
Warner's "expert" claims are "highly likely infringing," Hotfile has suffered significant injury.
The files Warner's ''expert" deemed not "highly likely infringing" were downloaded-

time~ and resulted in

I

premium account subscriptions. Titov Decl. ,, 5-6. Obviously, the

improper deletion of these files has injured Hotfile. See Declaration of Dr. Matthew Lynde
(attached hereto as Ex. C), hereinafter "Lynde Decl." Warner's motion for summary judgment
on the question of injury to Hotfile should fail on this evidence alone.
To illustrate the damage Hotfile has suffered, the court need consider just one of the files
Warner improperly deleted: the open source software program, JDownloader. Hotfile's
counterclaim identifies eight individual files that Plaintiffs' "expert" identifies as copies of
JDownloader. One of those files, http://hotfile.com/dl/25231712/b99b376/JDo\mloaderSetup
.exe.html, was uploaded by the owner of JDownloader, Appwork GmbH. Thompson Decl. Ex.
I 0 (row 798; Thompson Decl. Ex. 13. The files uploaded by the Hotfile Appwork user account
have been downloaded a total of at l e a s t - times and resulted in ~remium account

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CASE NO.: 1 J-CIV-20427-WILLIAMS/TURNOFF

subscriptions. There is significant evidence that the deletion of nine JDownloader files alone
cause Hotfile significant economic injury. Lynde Decl. ~ 6.
Finally, Mr. Zebrak's attempt to preclude Hotfile from obtaining damages stemming
from users who "should" otherwise have been deleted for copyright infringing conduct and/or
were not suspended as a result of Warner's improper deletions does not, as Mr. Zebrak suggests,
prove that Hotfile suffered no damage by Warner's deletions. Mr. Zebrak admits that two users
deleted as a direct result of Warner's misrepresentations did not upload any otherwise infringing
material. See Declaration of Scott Zebrak In Support of Motion For Summary Judgment~ 20;
CSUF, 20; Thompson Decl. Ex. 10. According to Warner, because these users were not
premium subscribers themselves, Hotfile suffered no damage from their improper termination.
Warner again ignores the files deleted because of Warner's conduct. Those two users alone,
identified in the spreadsheet as downloaded a combined -

and - · uploaded files to Hotfile that were
times and directly resulted in

premium user subscriptions.

Titov Dec!.~ 9. The deletion of admittedly non-infringing files uploaded by those two users
. resulted in their termination. That action alone resulted in significant economic injury to Hotfile.
Lynde DecI. ~ 4. Thus e~en if Hotfile were limited to seeking damages for the deletion of files

Mr. Zebrak has admitted are non-infringing by the users he concedes should not have been
terminated, the damage from those deletions alone are more than sufficient to demonstrate injury

for pl,lrposes of a § 512(f) claim.
V. CONCLUSION
Section 512(f) imposes liability for Warner's misrepresentations because "[i]t is only just
to hold individuals responsible for their own erroneous claims made under penalty ofpetjury."

See 3 Melville B . Nimmer & David Nimmer, Nimmer on Copyright§ 12.B.08[A]. Warner
cannot dodge liability by offering purported expert opinions and after-the-fact excuses. A jury is
entitled to consider and decide the many material issues of fact raised by Warner's 800 knowing
misrepresentations; Hotfile respectfully submits that Warner's motion should be denied.

DATED: February 27, 20 12

Respectfully submitted,

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Ja et T. Munn, Esq. Fla. Bar No. 501281
mail: [e-mail]

RASCO KLOCK
283 Catalonia Avenue, Suite 200
Coral Gables, Fl33134
Telephone: [phone]
Telecopy: 305.476.7102

~ ~odmM t-1.~~

erick M. Thompson, Esq. (admitted pro hac vice)
Email: [e-mail]
Andrew Leibnitz, Esq. (admitted pro hac vice)
Email: [e-mail]
Anthony P. Schoenberg, Esq. (admitted pro hac vice)
Email: [e-mail]
Deepak Gupta, Esq. (admitted pro hac vice)
Email: [e-mail]
Janel Thamkul, Esq. (admitted pro hac vice)
Email: [e-mail]
FARELLA BRAUN + MARTEL LLP
23 5 Montgomery St.
San Francisco, CA 94104
Telephone: [phone]
Telecopy: 415.954.4480
And

ALYta~~ V~ud4-

(%ientin Gurvits, Esq. ( tlmitted pro hac vice)
Email: [e-mail]
BOSTON LAW GROUP
825 Beacon Street, Suite 20
Newton Center, MA 02459
Telephone: [phone]
Telecopy: 617.928.1802

Counsel for Defendants Hotfile Cmporation
and Anton Titov

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CERTIFICATE OF SERVICE
I hereby certify that on February 27, 2012, a true and correct copy of the foregoing
document, was filed conventionally and served on all counsel of record identified below via email and by Federal Express.
Karen R. Thorland, Esq. (admitted pro hac vice)
Senior Content Protection Counsel
Email: Karen [e-mail]
Motion Picture Association of America, Inc.
15301 Ventura Boulevard, Building E
Sherman Oaks, CA 91403-5885
Telephone: [phone]

Karen L. Stetson, Esq.
GRAY-ROBINSON, P.A.
Email: [e-mail]
1221 Brickell Avenue
Suite 1600
Miami, FL 33131
Telephone: [phone]
Telecopy: 305.416.6887
Steven B. Fabrizio, Esq. (admitted pro hac vice)
Email: [e-mail]
Duane C. Pozza, Esq. (admitted pro hac vice)
Email: [e-mail]
Luke C. Platzer, Esq. (admitted pro hac vice)
Email: [e-mail]
JENNER AND BLOCK, LLP
1099 New York Avenue, N.W.
Suite 900
Washington, DC 20001
Telephone: [phone]
Telecopy: 202.639.6066

By:

(rna.~

J

T. Muun

4840.3276·9550, V. I

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