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

Filing 355

MOTION for Leave to File Amicus Curiae Brief in Support of Defendant Hotfile Corp by Google Inc.. (Attachments: # 1 Exhibit Amicus Brief)(Moscowitz, Jane)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 11-20427-Civ (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,
vs.
HOTFILE CORP., ANTON TITOV, and
DOES 1-10,
Defendants.

/

HOTFILE CORP.,
Counterplaintiff,
vs.
WARNER BROS. ENTERTAINMENT INC.,
Counterdefendant.

/

MOTION OF GOOGLE INC. FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN
SUPPORT OF DEFENDANT HOTFILE CORPORATION
Google Inc. (“Google”) respectfully requests the Court’s permission to submit the
accompanying amicus curiae brief in connection with the parties’ respective motions for
summary judgment. Google has advised the parties of its intent to file this motion. Defendants
have consented to the filing of Google’s proposed brief, but plaintiffs have objected and
indicated that they intend to oppose.

1

MEMORANDUM OF POINTS AND AUTHORITIES
Google is a leading Internet search engine and online service provider, which millions of
people around the world depend on for information and communication services. Like countless
other online service providers, including Internet mainstays like Wikipedia, Facebook, Twitter,
Amazon, and eBay, Google relies on the “safe-harbor” provisions of the Digital Millennium
Copyright Act, 17 U.S.C. § 512 et seq. (“DMCA”), for its ability to provide useful and legitimate
services to Internet users. Google is also a defendant in a closely watched case now pending in
the Second Circuit in which the district court correctly held on summary judgment that Google’s
subsidiary YouTube is protected by the DMCA safe harbor. Viacom Int’l Inc. v. YouTube, Inc.,
718 F. Supp. 2d 514 (S.D.N.Y. 2010). Both on its own behalf, and on behalf of its millions of
users, Google has an overriding interest in the proper application of the DMCA, including the
particular safe harbor at issue here, which applies to “Information Residing on Systems or
Networks at Direction of Users.” 17 U.S.C. § 512(c). This raises important issues about the
interpretation of that provision, which have not yet been addressed by this Court or by the
Eleventh Circuit.
To assist the Court in resolving those issues, Google seeks leave to file the attached
amicus curiae brief. While Google does not have access to the full summary-judgment record,
and thus takes no position on how the Court should resolve the parties’ respective motions,
Google’s proposed brief offers a more complete perspective on the legal issues raised in those
motions. In particular, Google is concerned by some of the arguments offered by the plaintiffs,
which distort the meaning of the statute and, if adopted, would compromise the protections that
Congress intended to give to Internet businesses that provide innovative and socially beneficial
services to the public.
This Court “has the inherent authority to appoint amici curiae, or ‘friends of the court,’ to
assist it in a proceeding.” Resort Timeshare Resales, Inc. v. Stuart, 764 F. Supp. 1495, 1500-01
(S.D. Fla. 1991) (citation and footnote omitted). The role of an amicus is to ‘“participate[] only
for the benefit of the court.”’ News and Sun-Sentinel Co. v. Cox, 700 F. Supp. 30, 31 (S.D. Fla.
2

1988) (citations omitted). A court may grant leave to file an amicus brief where “the information
offered is ‘timely and useful.’” Waste Mgmt. of Penn., Inc. v. City of York, 162 F.R.D. 34, 36
(M.D. Pa. 1995) (citations omitted). Google’s proposed brief meets that standard. Google offers
a timely amicus submission in the midst of the parties’ respective motions for summary
judgment. Its brief provides useful information to the Court about the background, purpose, and
scope of the DMCA safe harbors, the standards and the burdens of proof the statute imposes, and
recent on-point decisions from other jurisdictions with well-developed DMCA safe harbor
jurisprudence. In short, allowing Google to participate as an amicus curiae ‘“will alert the court
to the legal contentions of concerned bystanders”’ while ‘“leav[ing] the parties free to run their
own case.”’ Resort Timeshare Resales, Inc., 764 F. Supp. at 1501 (citation omitted).
We note that plaintiffs and their colleagues in the motion picture and television industry
have regularly asked and been permitted to file amicus curiae briefs in similar cases. See, e.g.,
Br. of Amici Curiae American Society of Composers, Authors and Publishers et al. in Support of
Plaintiffs, Viacom Int’l, Inc. v. YouTube, Inc., No. 07-cv-02103-LLS (S.D.N.Y. 2010) (plaintiffs
Disney Enterprises, Inc., Warner Bros. Entertainment Inc.); Br. of Amicus Curiae NBC
Universal, Inc. in Support of Plaintiff’s Opposition to YouTube, Inc.’s Motion for Partial
Summary Judgment, Tur v. YouTube, Inc., No. 06-04436-FMC-AJW (C.D. Cal. June 20, 2007).
For the foregoing reasons, Google respectfully requests that the Court allow the filing of
the accompanying amicus curiae brief.
Dated: March 12, 2012

Respectfully submitted,
/s/ Jane W. Moscowitz
JANE W. MOSCOWITZ
Fla. Bar No. 586498
[e-mail]
MOSCOWITZ & MOSCOWITZ, P.A.
1111 Brickell Ave. # 2050
Miami, FL 33131
Telephone: [phone]
Facsimile : [phone]
Counsel for Amicus Curiae Google Inc.
3

Of Counsel
David H. Kramer
[e-mail]
Maura L. Rees
[e-mail]
WILSON SONSINI GOODRICH & ROSATI, P.C.
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: [phone]
Facsimile: [phone]
Brian M. Willen
[e-mail]
WILSON SONSINI GOODRICH & ROSATI, P.C.
1301 Avenue of the Americas, 40th Floor
New York, NY 10019
Telephone: [phone]
Facsimile: [phone]

4

CERTIFICATE OF GOOD FAITH CONFERENCE; CONFERRED BUT UNABLE TO
RESOLVE ISSUES PRESENTED IN THE MOTION
Pursuant to Local Rule 7.1(a)(3), I hereby certify that counsel for the movant has
conferred with all parties or non-parties who may be affected by the relief sought in this motion
in a good faith effort to resolve the issues but has been unable to resolve the issues. Defendants
have consented to the filing of Google’s proposed brief, but plaintiffs have objected and
indicated that they intend to oppose.
Dated: March 12, 2012
/s/ Jane W. Moscowitz
JANE W. MOSCOWITZ
Fla. Bar No. 586498
[e-mail]
MOSCOWITZ & MOSCOWITZ, P.A.
1111 Brickell Ave. # 2050
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]
Counsel for Amicus Curiae Google Inc.
Of Counsel
David H. Kramer
[e-mail]
Maura L. Rees
[e-mail]
WILSON SONSINI GOODRICH & ROSATI, P.C.
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: [phone]
Facsimile: [phone]
Brian M. Willen
[e-mail]
WILSON SONSINI GOODRICH & ROSATI, P.C.
1301 Avenue of the Americas, 40th Floor
New York, NY 10019
Telephone: [phone]
Facsimile: [phone]

1

CERTIFICATE OF SERVICE
Disney Enterprises, Inc., et al. v. Hotfile Corp., et al.
Case No. 11-20427-Civ (WILLIAMS/TURNOFF)
I HEREBY CERTIFY that a true and correct copy of the foregoing MOTION OF
GOOGLE INC. FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF
DEFENDANT HOTFILE CORPORATION, was served by the Court’s ECF system on March
12, 2012, on all counsel or parties of record on the service list.
Dated: March 12, 2012
/s/ Jane W. Moscowitz
JANE W. MOSCOWITZ
Fla. Bar No. 586498
[e-mail]
MOSCOWITZ & MOSCOWITZ, P.A.
1111 Brickell Ave. # 2050
Miami, FL 33131
Telephone: [phone]
Facsimile : [phone]
Counsel for Amicus Curiae Google Inc.

1

Disney Enterprises, Inc., et al. v. Hotfile Corp., et al.
Case No. 11-20427-Civ (WILLIAMS/TURNOFF)
SERVICE LIST
Steven B. Fabrizio
Email: [e-mail]
Luke C. Platzer
Email: [e-mail]
Duane C. Pozza
Email: [e-mail]
Jennifer V. Yeh
Email: [e-mail]
JENNER & BLOCK
1099 New York Avenue, N.W., Suite 900
Suite 900
Washington, DC
Tel.: [phone]

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

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

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

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

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

Attorneys for Plaintiffs/Counterdefendants
Disney Enterprises, Inc., Twentieth Century Fox
Film Corp., Universal City Studios Productions
LLLP, Columbia Pictures Industries, Inc.,
and Warner Bros. Entertainment Inc.

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

2