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

Filing 354

NOTICE by Hotfile Corp. Notice by Defendant/Counterclaimant Hotfile of Filing PUBLICLY FILED REDACTED Version of Declaration of Roderick M. Thompson In Support of Defendant's Opposition to Warner Bros.' Motion for Summary Judgment on Counterclaim (Attachments: # 1 Exhibit A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37)(Munn, Janet)

EXHIBIT 30

Page 1
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

DISNEY ENTERPRISES, INC., TWENTIETH
CENTURY FOX FILM CORPORATION,
UNIVERSAL CITY STUDIOS PRODUCTIONS,
LLP, COLUMBIA PICTURES INDUSTRIES,
INC., and WARNER BROTHERS
ENTERTAINMENT, INC.,

Plaintiffs,

vs.

Case No.

HOTFILE CORPORATION, ANTON TITOV

11-cv-20427-AJ

and DOES 1-20,

Defendants.
__________________________________________________
Videotaped Deposition of SCOTT A. ZEBRAK,
a witness herein, called for examination by counsel
for Defendants in the above-entitled matter, Washington,
D.C. pursuant to subpoena, the witness being duly sworn
by SUSAN L. CIMINELLI, CRR, RPR, a Notary Public in and
for the District of Columbia, taken at the offices of
Jenner & Block, LLP, 1099 New York Avenue, N.W.,
Washington, D.C., at 10:49 a.m. on Friday, January 20,
2012.

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Page 2
1 APPEARANCES:
2
3

On behalf of the Plaintiffs & Counterdefendants:

4

DUANE POZZA, ESQ.

5

STEVEN B. FABRIZIO, ESQ.

6

Jenner & Block, LLP

7

901 New York Avenue, N.W.

8

Washington, D.C. 20001

9

[phone]

10

[e-mail]

11
12

On behalf of the Defendants:

13

DEEPAK GUPTA, ESQ.

14

Farella Braun + Martel, LLP

15

235 Montgomery Street

16

San Francisco, CA 94104

17

[phone]

18

[e-mail]

19
20
21

ALSO PRESENT:
CONWAY BARKER, Videographer

22
23
24
25

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Page 55
1 available link?
2

MR. POZZA: Object as ambiguous.

3

THE WITNESS: I would kind of flip your

4 question in the other direction and say, why would we
5 need to record it every time we saw it? You know, by
6 that I mean, my recordation of data along the way,
7 whether it's retaining a link or otherwise, it was
8 just sort of notes I kept along the way. It's not
9 meant to be, you know, everything that could possibly
10 show what the file is or everything that could
11 possibly show that the file has been downloaded and
12 distributed or the authorization issues.
13

Ultimately, you know, the purpose of that

14 first project was for me to try to identify the file
15 and whether it was an infringement, and ultimately
16 what matters is my classification status. You know,
17 the recordation of links along the way since you
18 might imagine we are dealing with thousands of files.
19 There was just not a -- not necessarily a need to
20 record it in every instance, so -21
22

BY MR. GUPTA:
Q.

When you were analyzing the files in your

23 original stat study, did you review the user name for
24 the uploader of the file?
25

MR. POZZA: Object as ambiguous.

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Page 226
1 to us in our analysis. Presenting me with one
2 printout of a page in the abstract when I can't see
3 the file is -- it's hard for me to answer it in such
4 an isolated way.
5

You know, of course, as I look at this,

6 Californication is of course a show by Showtime. I'm
7 familiar with that and which is probably why Showtime
8 Networks is in the company page. Now, at the same
9 time, the analysis that I underwent here, I -- it's
10 possible that this -- you know, that my ultimate
11 conclusion is not necessarily footnoted by a link you
12 see in the notes section. That was not the goal of
13 this notes section. You have access to the same
14 files I do, and the idea in the notes section was for
15 us to keep notes along the way, not to pinpoint this
16 is how I identified the work, this is its author, you
17 know, how it's being commercialized.
18

Sometimes we would record links like that;

19 sometimes not. Sometimes, you know, you would
20 identify the file and how it was commercialized by
21 review of the file, which I don't have here. And so
22 what was most important to me was my ultimate
23 classification status on the work. What was of
24 lesser significance was this working notes section
25 and other data about -- about the work here.

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Page 227
1

Q.

Let me ask you a question. Did counsel

2 ever explain to you that you need to provide the
3 basis of your opinions in your expert report?
4

MR. POZZA: Objection. Argumentative and

5 ambiguous.
6
7

BY MR. GUPTA:
Q.

It's not intended to be argumentative.

8 It's just a genuine question.
9

A.

It is not -- if -- look, if what you're

10 asking is -- with regard to 1750 works, is it
11 possible for me to say when I reviewed the work on,
12 you know, minute 19, there is the notice indicating
13 who it is, and from there I went to this site, and it
14 helped me to identify this as the owner and, you
15 know, -- I mean these -- these works in the process I
16 applied are ready -- readily reproducible by anyone
17 else, and if there are certain works that you believe
18 I'm mistaken on ultimately about its infringement
19 assessment, I'm more than happy to examine those
20 works and, if I'm wrong, want to be the first one to
21 correct my classification status, but, you know,
22 showing me one printed page from the notes section is
23 going to be a hard way to review these files. In
24 certain instances.
25

In other instances, it may trigger it, but

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Page 287
1

MR. POZZA: I object. Lacks foundation

2 and to the extent the witness has never seen this
3 document before and that counsel is providing
4 testimony.
5

THE WITNESS: A few things. As I've

6 mentioned several times, you apparently challenging
7 my designation here makes me want to look further
8 into it, along with, of course, you know, this
9 affidavit, I would want to speak with this person,
10 but, you know, I don't know if Mr. Mackay is a lawyer
11 or not, but a nonlawyer opining on what the nonlawyer
12 considers to be an infringement, that requires legal
13 judgment.
14

He, of course, knows what at the time he

15 authorized or didn't authorize, but the point is
16 whether one of his exclusive copyright rights was
17 exercised through the unauthorized distribution of
18 the file through Hotfile, you know, him looking back
19 on it now saying what he does or doesn't have an
20 objection to, I'm not sure speaks to what was
21 authorized in the first instance. And, you know,
22 again, you know, I would want to speak further with
23 him and will presumably do so.
24
25

BY MR. GUPTA:
Q.

But don't you think that even if he hadn't

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Page 296
1 UNITED STATES OF AMERICA)
2

SS:

3 DISTRICT OF COLUMBIA

)

4
5

I, SUSAN L. CIMINELLI, the officer before whom

6 the foregoing deposition was taken, do hereby
7 certify that the witness whose testimony appears in
8 the foregoing deposition was duly sworn by me; that
9 the testimony of said witness was taken by me to the
10 best of my ability and thereafter reduced to
11 typewriting under my direction; that I am neither
12 counsel for, related to, nor employed by any of the
13 parties to the action in which this deposition was
14 taken, and further that I am not a relative or
15 employee of any attorney or counsel employed by the
16 parties thereto, nor financially or otherwise
17 interested in the outcome of the action.
18
19
20

________________________
SUSAN L. CIMINELLI

21
22 My commission expires: 11/30/2016
23
24
25

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