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

Filing 372

RESPONSE in Opposition re 355 MOTION for Leave to File Amicus Curiae Brief in Support of Defendant Hotfile Corp >PLAINTIFFS' OPPOSITION TO GOOGLE'S MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF< filed by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc.. (Stetson, Karen)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20427-WILLIAMS/TURNOFF

DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM CORPORATION,
UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP,
COLUMBIA PICTURES INDUSTRIES, INC., and
WARNER BROS. ENTERTAINMENT INC.,
Plaintiffs,
v.
HOTFILE CORP., ANTON TITOV, and
DOES 1-10.
Defendants.
/
HOTFILE CORP.,
Counterclaimant,
v.
WARNER BROS. ENTERTAINMENT INC.,
Counterdefendant.
/

PLAINTIFFS’ OPPOSITION TO GOOGLE’S MOTION FOR LEAVE TO FILE
AMICUS CURIAE BRIEF

The Court should deny non-party Google’s request to submit its proposed amicus brief
because it merely duplicates Hotfile’s position in its motion for summary judgment. Google’s
proposed brief appears to be part of a systematic effort by Google, itself a defendant in ongoing
copyright infringement cases, to influence the development of the law to Google’s own
advantage – as well as an effort by Hotfile (whose counsel also represent Google) to circumvent
its page limits. Google is acting as a partisan advocate for Hotfile, making arguments that
Hotfile has or could have made in its own opposition to summary judgment. The parties here are
well-represented and have the incentive and wherewithal to make all the arguments the court will
need. Although Google purports not to take a position regarding summary judgment here,
Google unmistakably seeks a ruling against plaintiffs. Google’s motion should be denied.
ARGUMENT
Where, as here, a non-party seeks to press a partisan position that serves merely to
circumvent the page limits of the parties, a district court’s “acceptance of an . . . amicus curiae
should be allowed only sparingly, unless the amicus has a special interest, or unless the Court
feels that existing counsel need assistance.” News & Sun-Sentinel Co. v. Cox, 700 F. Supp. 30,
31 (S.D. Fla. 1988) (quotation marks omitted; ellipsis in original); see also Sierra Club v. Fed.
Emergency Mgmt. Agency, Civ. A. No. H-07-0608, 2007 U.S. Dist. LEXIS 84230, at *3-4 (S. D.
Tex. Nov. 14, 2007) (same). Moreover, a district court “should…consider whether the
individual or organization seeking to file the amicus brief is an advocate for one of the parties,”
Sierra Club, 2007 U.S. Dist. LEXIS 84230, at *6, and the court should “deny permission to file
an amicus brief that essentially duplicates a party’s brief.” Voices for Choices v. Ill. Bell Tel.
Co., 339 F.3d 542, 544 (7th Cir. 2003) (Posner, J.); see also Glassroth v. Moore, 347 F.3d 916,
919 (11th Cir. 2003) (citing Voices for Choices with approval for its “susp[icion] that amicus
briefs are often used as a means of evading the page limitations on a party’s briefs”).
Here, Google’s proposed brief is improper for these very reasons. Rather than acting out
of any ‘special interest,’ Google is merely advocating for its own self-interest and that of Hotfile.
Google is hardly a dispassionate party on these issues: it itself is a frequent defendant in online
copyright infringement cases where Google’s own entitlement to invoke the DMCA safe harbors
has been called into question – including, as it admits, in cases currently pending. See, e.g.,
Viacom Int’l, Inc. v. YouTube, Inc., No. 10-3270-cv (2d Cir.) (pending claim that Google’s
subsidiary YouTube, Inc. induced and had red flag knowledge of infringement of thousands of
1

copyrighted works); Football Ass’n Premiere League Ltd. v. YouTube, Inc., No. 10-3342-cv (2d
Cir.) (same).
Furthermore, although Google claims that it seeks merely to “offer[] a more complete
perspective on the legal issues raised in [the parties’ summary judgment] motions,” and that it
“takes no position on how the Court should resolve the parties’ respective motions” (Dkt. 355 at
2), Google’s proposed amicus brief is entirely one-sided and echoes in many respects the
arguments introduced in Hotfile’s summary judgment brief. Google attacks Plaintiffs’ summary
judgment opposition as a “crabbed approach to the [DMCA],” and seeks to distinguish Plaintiffs’
legal authority. Dkt. 355-1 (proposed amicus brief) at 5 & n.7. Google also argues, inter alia,
that “[t]his Court should likewise reject any efforts by plaintiffs to deprive Hotfile of the section
512(c) safe harbor . . .” (id. at 9); and that “the Court should be not be misled” by Plaintiffs (id.
at 11). Google plainly seeks a ruling against Plaintiffs without full knowledge of the controlling
facts, many of which in this case are under seal.
There is little difference between Google’s position and Hotfile’s – which is unsurprising
given both entities’ identical interest in having courts interpret the DMCA safe harbors as
expansively as possible. For example, both Google and Hotfile assert that the DMCA safe
harbors should be construed broadly and that the “red flag” knowledge exception should be
confined to the very narrow case of specific, file-by-file knowledge. Compare, e.g., Dkt. 355-1
(proposed amicus brief) at 7-11 (“DMCA’s knowledge provisions require that a service provider
have failed to act after gaining knowledge of particular infringing material”) (emphasis added)
with Hotfile Br. at 13 (“the ‘apparent knowledge’ test – also known as the ‘red-flag’ test –
requires awareness of ‘facts or circumstances’ related to specific items”) (emphasis added).
Hotfile is well represented and entirely capable of raising these kinds of arguments on its own.
Google’s proposed filing would effectively allow Hotfile – whose lead counsel represents
Google as a defendant in other infringement-related matters1 – to circumvent the court’s page
limitations and get 17 additional pages to argue their view of the DMCA. This clearly prejudices
Plaintiffs, who have presented their arguments within the page limits imposed by the Court.

1

See E-Micro Corporation v. Google, Inc., No, 6:11-cv-00465-LED (E.D. Tex.) (two of
Hotfile’s present counsel, including its lead counsel, representing Google); Purple Leaf LLC v.
Google, Inc., No. 6:11-cv-00355 (E.D. Tex.) (same).
2

A district court in the Southern District of New York recently denied Google’s many
effort to file an amicus brief in a DMCA action on this very basis. There, copyright owner
Capitol Records had moved for a preliminary injunction seeking immediate removal of Capitol
recordings and artwork from defendant ReDigi’s website. Capitol Records, LLC v. ReDigi Inc.,
No. 12 Civ. 95 (RJS) (Dkt. #9) (S.D.N.Y. Feb. 1, 2012) (memo of law in support of preliminary
injunction). Google sought to file an amicus brief “to highlight the importance of the copyright
law questions Plaintiff’s pending preliminary injunction motion raises.” Id. (Dkt. #24) (order
denying motion for leave). The court rejected Google’s request on the basis that “the Court
believes that the parties are fully capable of raising these issues themselves - and have every
incentive to do just that.” Id. The court subsequently denied amicus filings in connection with
the parties’ summary judgment motions for the same reason. Id. (Dkt. #30); see also Sierra
Club, 2007 U.S. Dist. LEXIS 84230, at *10-11 (rejecting amicus brief where “[t]he parties are
sophisticated and ably represented by counsel,” and “[t]here is no reason to think that [the
amicus] has access to greater technical, scientific, or legal expertise than” the party); News and
Sun-Sentinel Co., 700 F. Supp. at 32 (rejecting an amicus brief because, inter alia, “[t]his Court
finds that counsel for both [parties] have done a satisfactory job in their presentations”); Voices
for Choices, 339 F.3d at 544 (the court should “deny permission to file an amicus brief that
essentially duplicates a party’s brief”). Here, Hotfile’s counsel is perfectly capable of presenting
all the arguments relevant to summary judgment and has every incentive to present all the
arguments advanced by Google.
CONCLUSION
Plaintiffs request that the Court deny Google’s Motion for Leave to File Amicus Curiae
Brief. In light of the limitations of time to respond on the current summary judgment schedule,
if the Court is to receive the Google brief, Plaintiffs request that the Court grant Plaintiffs leave
to file a response, limited to 15 pages and filed within ten Court days of the Court’s order on
Google’s motion.

Dated: March 19, 2012

Respectfully submitted,
By: /s/ Karen L. Stetson

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Karen L. Stetson
GRAY-ROBINSON, P.A.
1221 Brickell Avenue
16th Floor
Miami, Fl 33131
Telephone: [phone]
Facsimile: [phone]
MOTION PICTURE ASSOCIATION
OF AMERICA, INC.
Karen R. Thorland (Pro Hac Vice)
15301 Ventura Blvd.
Building E
Sherman Oaks, CA 91403
Phone: [phone]
Fax: [phone]

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

4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20427-WILLIAMS/TURNOFF

DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM CORPORATION,
UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP,
COLUMBIA PICTURES INDUSTRIES, INC., and
WARNER BROS. ENTERTAINMENT INC.,
Plaintiffs,
v.
HOTFILE CORP., ANTON TITOV, and
DOES 1-10.
Defendants.
/
HOTFILE CORP.,
Counterclaimant,
v.
WARNER BROS. ENTERTAINMENT INC.,
Counterdefendant.
/
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 19th Day of March, 2012, I served the following
document on all counsel of record on the attached service list via the Court’s ECF System:
Plaintiffs’ Opposition to Google’s Motion for Leave to File Amicus Curiae Brief
I further certify that I am admitted to the Southern District of Florida and that the
certification was executed on this date.
By: /s/ Karen L. Stetson
Karen L. Stetson

SERVICE LIST
Disney Enterprises, Inc., et al. v. Hotfile Corp. et al.
CASE NO. 11-CIV-20427-JORDAN
FARELLA BRAUN + MARTEL LLP
Anthony P. Schoenberg
[e-mail]
Roderick M. Thompson
[e-mail]
N. Andrew Leibnitz
[e-mail]
Deepak Gupta
[e-mail]
Janel Thamkul
[e-mail]
235 Montgomery Street
San Francisco, CA 94104
Phone: [phone]
Attorneys for Defendants Hotfile Corp. and
Anton Titov

BOSTON LAW GROUP, PC
Valentin Gurvits
[e-mail]
825 Beacon Street, Suite 20
Newton Centre, MA 02459
Phone: [phone]
Attorneys for Defendants Hotfile Corp. and
Anton Titov

RASCO KLOCK
Janet T. Munn
[e-mail]
283 Catalonia Ave., Suite 200
Coral Gables, FL 33134
Phone: [phone]
Fax: [phone]
Attorney for Defendants Hotfile Corp. and
Anton Titov