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 4

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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 BROS.
ENTERTAINMENT, INC.,
Plaintiffs,
vs.
HOTFILE CORP., ANTON TITOV,
AND DOES 1-10,
Defendants.

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)No. 11-20427-Jordan
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HIGHLY CONFIDENTIAL
30(b)(6) Deposition of Warner Bros.
Entertainment, Inc.
by and through DAVID KAPLAN
WEDNESDAY, OCTOBER 12, 2011
LOS ANGELES, CALIFORNIA

ATKINSON-BAKER, INC.
COURT REPORTERS
[phone]
www.depo.com
REPORTED BY:

JEANINE CURCIONE
CSR NO. 10223, RPR

FILE NO.: A505CAB

Electronically signed by Jeanine Curcione (601-181-089-2662)

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Deposition of DAVID KAPLAN, taken on

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behalf of Defendant, at 9:37 A.M., Wednesday,

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October 12, 2011, at 633 West Fifth Street, Suite

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3500, Los Angeles, California, before Jeanine

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Curcione, C.S.R. No. 10223, RPR, pursuant to

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notice.

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APPEARANCES OF COUNSEL:

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FOR THE PLAINTIFFS:

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JENNER & BLOCK, LLP
BY: STEVEN FABRIZIO, ESQ.
633 West Fifth Street
Suite 3500
Los Angeles, California 90071
AND

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MOTION PICTURE ASSOCIATION OF AMERICA, INC.
BY: KRISTA S. COONS, ESQ.
15301 Ventura Boulevard
Building E
Sherman Oaks, California 91403
FOR THE DEFENDANTS:
FARELLA BRAUN & MARTEL, LLP
BY: RODERICK M. THOMPSON, ESQ.
235 Montgomery Street
17th Floor Russ Building
San Francisco, California 94104
ALSO PRESENT:

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EVAN M. ENGSTROM, ESQ.

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DAN ACKLEY, VIDEOGRAPHER

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25

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09:50:36 10

Q.

Was there also a project within your

09:50:39 11

department whereby Warner would load content onto

09:50:46 12

Hotfile with the purpose of directing potential

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customers to iTunes?

09:50:54 14

A.

I'm not sure I'd call it a project.

09:50:58 15

But there was a one time test done in I think

09:51:05 16

May 2010 or around April, May 2010 in connection

09:51:11 17

with an effort to put iTunes -- make Vampire

09:51:20 18

Diaries' episodes available on iTunes in the UK in

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advance of their terrestrial broadcasts in the UK,

09:51:34 20

free television broadcast in the UK.

09:51:37 21
09:51:42 22

Q.

And that included loading content from

Vampire Diaries into Hotfile?

09:51:45 23

MR. FABRIZIO:

09:51:46 24

Q.

BY MR. THOMPSON:

09:51:47 25

A.

Not exactly.

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Objection.

Vague.

Is that right?

It included loading

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portions of episodes of -- I think four episodes

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of Vampire Diaries onto a couple of different

09:51:58

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cyberlockers, Hotfile being one of them, for about

09:51:58

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a three-week period of time.

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A.

On the subject of premium accounts?

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Q.

And verifying files more quickly with

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premium accounts.

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A.

I think so.

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Q.

Now, it's true, is it not, that with

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respect to the Hotfile takedown removal tool that

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is referenced in Exhibit 1 that Warner, in fact,

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did not verify content before using that tool?

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10:24:42 10

MR. FABRIZIO:

Objection.

Lacks

foundation.

10:24:43 11

THE WITNESS:

10:24:46 12

Q.

That's not correct.

BY MR. THOMPSON:

Did Warner ever view

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the content on Hotfile, the actual content, not

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the words in the URL, before utilizing the Hotfile

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takedown tool?

10:25:04 16

A.

I'm going to say no because I'm unaware

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of any instance.

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Q.

Fair enough.

And Warner's practice and

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procedure is not to have any human being view the

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content before using the tool?

10:25:16 21

A.

I'm going to amend my answer a little

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bit only because there were instances where we did

10:25:22 23

use these premium accounts for the reasons I just

10:25:25 24

described, so we would have seen in those

10:25:27 25

instances that there was a pirated version of

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Q.

It was Warner's practice and procedure

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not to have any human review of the content on

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Hotfile before utilizing the Hotfile takedown

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removal tool?

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A.

By human review you mean downloading

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the content before the tool was used to send a

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notice?

10:26:02 12
10:26:04 13
10:26:04 14

Q.

Downloading or otherwise viewing the

content?
A.

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That's correct.

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THE WITNESS:

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Q.

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more complicated than I needed to.

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for Warner just to take a fingerprint from a file

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in Hotfile and confirm by use of that fingerprint

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that the content is Warner's property?

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A.

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MR. FABRIZIO:

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and been asked and answered.

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BY MR. THOMPSON:

And maybe I made that
It's possible

No.
Objection.

Lacks foundation

Just pause and let

me object.

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THE WITNESS:

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Q.

10:28:55 13

Yes.

No.

BY MR. THOMPSON:

Does Warner have to

download the file in order to check a fingerprint?

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A.

Yes.

10:29:02 15

Q.

And, in fact, Warner's practice and

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procedure was not to download any file before

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using the Hotfile takedown tool to delete the

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file?

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10:29:14 20

MR. FABRIZIO:

Objection.

Asked and

answered.

10:29:14 21

THE WITNESS:

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MR. THOMPSON:

That's correct.
I'm going to have another

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document marked now, and I think this one may

10:29:26 24

be -- we'll hit a few other questions first and

10:29:37 25

come back to that.

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this is a screen shot from the Hotfile website and

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what I wanted you to focus on is the little check

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box under -- there's a large blank box in the

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middle, do you see that?

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(Exhibit 6 was marked for

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identification by the Reporter.)

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THE WITNESS:

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Q.

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Yes.

BY MR. THOMPSON:

And underneath

there's a check box and it states, "I certify

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under penalty -- penalty of perjury that I am the

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owner or authorized legal representative of the

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owner of the copyrights to this material.

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a good faith belief that use of this material is

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not authorized by the copyright owner, the

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copyright owners agent or by law.

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information is accurate as to this material."

I have

The foregoing

Isn't it true that Warner made this

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representation to Hotfile every time it used the

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Hotfile SRA?

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A.

Well, I'm sorry.

Are you asking

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whether or not the -- the robot clicked the box as

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part of getting access to the SRA tool?

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12:03:19 24
12:03:21 25

Q.

It would have to click the box to use

the SRA tool?
A.

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I think so, yes.

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Q.

And Warner knew that was the case;

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12:03:23

2

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A.

Yes.

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Q.

So Warner knew that every time the

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robot was using the SRA tool, that representation

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was being made to Hotfile?

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A.

The robot was clicking the box.

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Q.

And by clicking the box, making the

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12:03:41 10
12:03:42 11
12:03:43 12
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correct?

representation I just read?
A.

The robot was making the

representation, yes.
Q.

The robot was making the representation

on behalf of Warner; correct?

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A.

Yes.

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Q.

Now, going back to the two deposition

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notices, Exhibits 2 and 3 I believe, let's take a

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look at 2 first if you can.

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Exhibit -- sorry -- Attachment A to Exhibit 2,

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this is the list of URLs we referred to earlier.

And turning to

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A.

Yes.

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Q.

Isn't it true, Mr. Kaplan, that with

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respect to the URLs listed on Attachment A to

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by the Warner robot was not accurate?

12:04:46 25

MR. FABRIZIO:

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THE WITNESS:

Well, I think I would put it

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this way.

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faith of the overall system that we developed.

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Errors are made in any system that's being

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developed.

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we discovered and used them to improve the system

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I think further gave us confidence that the system

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was one that was the best one that we could

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The -- the statement is based on our

The fact that we took any errors that

create.

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Q.

BY MR. THOMPSON:

Is it Warner's

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position that the representation it made with

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respect to the SRA tool that we've just read

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cannot be evaluated on a link-by-link basis but

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must be looked at in the overall picture that you

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just described?

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12:07:27 25

MR. FABRIZIO:

Objection.

Lacks

foundation.

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Q.

BY MR. THOMPSON:

12:07:29

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A.

Yes.

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Is that right?

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Q.

BY MR. THOMPSON:

Okay.

But there were

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a lot more than four or five times where Warner

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personnel had concluded that a particular file had

12:29:19 17

been taken down in error in all likelihood?

12:29:22 18
12:29:23 19
12:29:24 20

MR. FABRIZIO:

Objection.

Lacks

foundation.
THE WITNESS:

12:29:25 21

five times, yes.

12:29:26 22

Q.

Probably more than four or

BY MR. THOMPSON:

In those times, did

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Warner take any steps to notify the content owner

12:29:32 24

of Warner's mistake?

12:29:36 25

A.

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No.

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should not have taken down -- if we did -- the

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A.

The good faith belief as to any

16:58:41 20

particular file comes from our belief that the

16:58:44 21

system that we're using is one of the best ones

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that's -- that's available.

It's a robust system

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that is capable of scaling.

I've answered this

16:59:08 24

question a couple of different times.

16:59:09 25

know, I'm trying not to come up with different

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But I don't

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REPORTER'S CERTIFICATE

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2
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I, JEANINE CURCIONE, C.S.R. NO. 10223, RPR, in and

4

for the State of California, do hereby certify:

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That prior to being examined, the witness

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named in the foregoing deposition was by me duly

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sworn to testify the truth, the whole truth and

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nothing but the truth.
That said deposition was taken down by me

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10

in shorthand at the time and place therein named,

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and thereafter reduced to typewriting under my

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direction, and the same is a true, correct and

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complete transcript of said proceedings.
That the witness, before examination, was

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15

by me duly sworn to testify the truth, the whole

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truth, and nothing but the truth, and that the

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witness reserved the right of signature;
I further certify that I am not interested

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in the event of the action.
Witness my hand this 26th day of October,

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2011.

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Electronically signed by Jeanine Curcione (601-181-089-2662)

_________________________
Certified Shorthand
Reporter for the
State of California

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