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

Filing 390

NOTICE by Hotfile Corp., Anton Titov Defendants' Notice of Filing the Publicly Filed Redacted Version of the Declaration of Andrew Leibnitz and Exhibits Thereto, Filed in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Exhibits Thereto (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 19

Perkins, Braxton
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER

12/16/2011

Page 1
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,
vs.
HOTFILE CORP., ANTON TITOV,
and DOES 1-10,
Defendants.
___________________________
AND RELATED CROSS-ACTION.
________________________________________________________

HIGHLY CONFIDENTIAL - PURSUANT TO PROTECTIVE ORDER
VIDEOTAPED DEPOSITION OF BRAXTON PERKINS
PURSUANT TO FEDERAL RULE 30(b)(6)
Los Angeles, California
Friday, December 16, 2011

Reported by:
LORI SCINTA, RPR
CSR No. 4811
Job No. 178935B

Electronically signed by Lori Scinta (601-264-733-0670)

5ff9ce4d-a4e8-444a-bce6-47911b25f707

Perkins, Braxton
12/16/2011
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
Page 2
1

UNITED STATES DISTRICT COURT

2

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20427-WILLIAMS-TURNOFF

3

7

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

8

Plaintiffs,

4
5
6

9
10

vs.
HOTFILE CORP., ANTON TITOV,
and DOES 1-10,

11
12
13

Defendants.
____________________________________
AND RELATED CROSS-ACTION.
______________________________________________________

14
15

HIGHLY CONFIDENTIAL - PURSUANT TO PROTECTIVE ORDER
Videotaped deposition of BRAXTON PERKINS,

16
17

pursuant to Federal Rule 30(b)(6), taken on behalf of

18

Defendants and Counterclaimant Hotfile Corp., at

19

633 West Fifth Street, Los Angeles, California,

20

beginning at 10:15 A.M. and ending at 7:16 P.M. on

21

Friday, December 16, 2011, before LORI SCINTA, RPR,

22

Certified Shorthand Reporter No. 4811.

23
24
25

Electronically signed by Lori Scinta (601-264-733-0670)

5ff9ce4d-a4e8-444a-bce6-47911b25f707

Perkins, Braxton
12/16/2011
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
Page 3
1

APPEARANCES:

2
3

For Plaintiffs:

4
5
6
7

JENNER & BLOCK LLP
BY: DUANE C. POZZA
Attorney at Law
1099 New York Avenue, NW, Suite 900
Washington, D.C. 20001-4412
202.639.6000
Email: [e-mail]

8
-- and -9
10
11
12

NBC UNIVERSAL
BY: KAREN GARVER
Senior Counsel, Anti-Piracy Legal Affairs
100 Universal City Plaza
Universal City, California 91608
818.777.2493
Email: [e-mail]

13
14
For Defendants and Counterclaimant Hotfile, Corp.:
15
16
17
18
19

FARELLA BRAUN + MARTEL LLP
BY: DEEPAK GUPTA
Attorney at Law
235 Montgomery Street
San Francisco, California 94104
415.954.4400
Email: [e-mail]

20
21

Videographer:

22
23
24

VONYARN MASON
SARNOFF COURT REPORTERS
20 Corporate Park, Suite 350
Irvine, California 92606
877.955.3855

25

Electronically signed by Lori Scinta (601-264-733-0670)

5ff9ce4d-a4e8-444a-bce6-47911b25f707

Perkins, Braxton
12/16/2011
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER

Electronically signed by Lori Scinta (601-264-733-0670)

5ff9ce4d-a4e8-444a-bce6-47911b25f707

Perkins, Braxton
12/16/2011
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER

Electronically signed by Lori Scinta (601-264-733-0670)

0

5ff9ce4d-a4e8-444a-bce6-47911b25f707

Perkins, Braxton
12/16/2011
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
Page 161
04:04

1

MR. POZZA:

04:04

2

THE WITNESS:

04:04

3

always under distribution agreements with partners and

04:04

4

usually behind a transactional apparatus or behind a

04:05

5

negotiated agreement involving advertising as associated

04:05

6

with a playback of the content.

04:05

7

04:05

8

sites or distributors to have full-length content

04:05

9

available in commercially negotiated means.

04:05 10
04:05 11

Objection.

Ambiguous.

Full-length content is almost

So, yes, Universal would create agreements with

BY MR. GUPTA:
Q

Does Universal post or allow others to post its

04:05 12

content on the Internet for free?

04:05 13

full-length content here.
MR. POZZA:

04:05 14
04:05 15
04:05 16

And I'm talking about

Objection --

BY MR. GUPTA:
Q

In other words, making it --

04:05 17

Sorry.

04:05 18

MR. POZZA:

04:05 19

I was going to object.

Ambiguous

and compound.

04:05 20

Go ahead.

BY MR. GUPTA:

04:05 21

Q

Does Universal -- I'll cure.
Does Universal permit sites other than

04:05 22
04:05 23

Universal-branded sites to host Universal full-length

04:05 24

content in a manner that users can access it for free?

04:06 25

Electronically signed by Lori Scinta (601-264-733-0670)

MR. POZZA:

Objection.

Ambiguous.

5ff9ce4d-a4e8-444a-bce6-47911b25f707

Perkins, Braxton
12/16/2011
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
Page 162
THE WITNESS:

Users accessing it for free would

04:06

1

04:06

2

to me imply that there was an advertising element to the

04:06

3

consumer access, or if the marginal cost to a person was

04:06

4

sort of zero, that there may be a subscription element

04:06

5

to the consumer.

04:06

6

04:06

7

belief on the part of Universal where free full-length

04:06

8

content would be freely made available without

04:06

9

negotiations of commercial terms regarding either

04:06 10

transactional pricing to consumers or advertising

04:07 11

revenue or subscription revenue associated with the

04:07 12

consumers accessing full-length content.

04:07 13

BY MR. GUPTA:

04:07 14

I am not aware of any instance or systematic

Q

Going back to trailers for a moment, does

04:07 15

Universal allow the downloading of trailers from the

04:07 16

Internet for some trailers?

04:07 17

MR. POZZA:

04:07 18

THE WITNESS:

04:07 19

policy on downloading trailers.

04:07 20

possible that under negotiated terms and conditions or

04:07 21

agreed-upon terms and conditions a marketing entity

04:07 22

would provide a file to a distribution partner.

04:07 23

that marketing group worked with that distribution

04:08 24

partner to enable a download, then that could be

04:08 25

happening.

Electronically signed by Lori Scinta (601-264-733-0670)

Objection.

Ambiguous.

I'm not aware of a specific
It is potentially

And if

5ff9ce4d-a4e8-444a-bce6-47911b25f707

Perkins, Braxton
12/16/2011
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
Page 163
04:08

1

I right here don't recall an example of that,

04:08

2

but I can't under oath tell you that categorically I'm

04:08

3

aware that that's never happened or -- because I'm not

04:08

4

fully aware of all the breadth of the deals that may

04:08

5

have taken place.

04:08

6

BY MR. GUPTA:

04:08

7

04:08

8

transferring a trailer owned by Universal to another

04:08

9

Internet user?

Q

MR. POZZA:

04:08 10
04:08 11

Does Universal object to an Internet user

Object as ambiguous, calling for a

legal conclusion and outside the scope of the notice.
THE WITNESS:

04:08 12

I would imagine Universal would

04:08 13

object if the terms and conditions associated with the

04:08 14

marketing materials were being violated.
Again, if the terms and conditions associated

04:08 15
04:09 16

with the distribution of the marketing materials

04:09 17

contemplated that transfer, then we wouldn't object

04:09 18

because we would have put that into the agreement.

04:09 19

BY MR. GUPTA:

04:09 20
04:09 21

Q

on this, does Universal object?
MR. POZZA:

04:09 22
04:09 23

Same objections and incomplete

hypothetical.
THE WITNESS:

04:09 24
04:09 25

But where the terms and conditions are silent

I'm not aware of them being

silent, and I think the objection would be something I

Electronically signed by Lori Scinta (601-264-733-0670)

5ff9ce4d-a4e8-444a-bce6-47911b25f707

Perkins, Braxton
12/16/2011
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
Page 164
04:09

1

would route to the law department to review.

04:09

2

I probably wouldn't be in a position to opine the full

04:09

3

legal understanding of what would be "objectable" other

04:09

4

than my general business understanding that I've tried

04:09

5

to communicate about how we distribute marketing

04:09

6

materials.

04:09

7

BY MR. GUPTA:

04:09

8

04:10

9

04:10 10

Q

Are you aware of any business arrangements in

which Universal has set up a deal such that it doesn't
object to a user transferring a trailer to another user?
MR. POZZA:

04:10 11
04:10 12

I guess --

Objection.

Ambiguous, lacks

foundation, outside the scope of the notice.
THE WITNESS:

04:10 13

I'm not aware of a specific

04:10 14

example where we -- Universal or an entity of Universal

04:10 15

created a marketing campaign that involved transfers,

04:10 16

point to point, user to user.
But, again, I can't attest that I'm fully aware

04:10 17
04:10 18

that that -- that I can confidently tell you that's

04:10 19

never happened.

04:10 20

example of when we would have.

04:10 21

there would have been terms and conditions likely put in

04:11 22

place of that campaign.

04:11 23

BY MR. GUPTA:

04:11 24
04:11 25

Q

I don't know right now or recall an
But if we did, again,

Are you aware of any business arrangements in

which Universal set up the deal such that it expressly

Electronically signed by Lori Scinta (601-264-733-0670)

5ff9ce4d-a4e8-444a-bce6-47911b25f707

Perkins, Braxton
12/16/2011
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
Page 165
04:11

1

prohibited a user from transferring a trailer to another

04:11

2

user?

04:11

3

MR. POZZA:

04:11

4

THE WITNESS:

04:11

5

agreement an express prohibition would have been written

04:11

6

or not.

04:11

7

04:11

8

terms and conditions would indicate whatever the desire

04:11

9

of the marketing group would be, and that if there was

Same set of objections.
I would not know if in the

My general business understanding is that the

04:11 10

the desire to not prohibit it, then that would be there;

04:11 11

and if the desire was to prohibit it, then it would be

04:11 12

in the agreement.

04:11 13

BY MR. GUPTA:

04:11 14

Q

So the answer is:

You are not aware of any

04:11 15

specific business arrangements set up such that users

04:11 16

were expressly prohibited from transferring?
MR. POZZA:

04:12 17
04:12 18

and answered.
THE WITNESS:

04:12 19
04:12 20

Same set of objections, and asked

I mean, I do -- I feel like

I'm -- I have answered the question.
I don't -- again, I -- I -- I'm not aware of

04:12 21
04:12 22

the full breadth of all the marketing campaigns and the

04:12 23

terms and conditions for any and all content.
It's possible that some agreements might

04:12 24
04:12 25

expressly prohibit it.

Electronically signed by Lori Scinta (601-264-733-0670)

It's possible some may expressly

5ff9ce4d-a4e8-444a-bce6-47911b25f707

Perkins, Braxton
12/16/2011
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
Page 166
04:12

1

allow it.

But I'm just -- I'm not aware of examples of

04:12

2

either of those, nor am I aware of the full breadth of

04:12

3

the deals going through.

04:12

4

BY MR. GUPTA:

04:12

5

Q

04:13

6

cyberlocker?

04:13

7

04:13

8

scope of the notice to the extent it involves sites

04:13

9

other than Hotfile.

Has Universal ever posted a file on a

MR. POZZA:

THE WITNESS:

Object as ambiguous and outside the

04:13 10

I guess you'd have to define

04:13 11

"cyberlocker" for me in order for me to accurately try

04:13 12

and answer that question.

04:13 13

BY MR. GUPTA:

04:13 14

Q

Let's start with Hotfile.

Has Universal ever posted a file on Hotfile?

04:13 15
04:13 16

Okay.

A

I am not aware of any instance where a company

04:13 17

account or an agent of the company acting at the

04:13 18

direction of the company uploaded something to Hotfile.

04:14 19
04:14 20
04:14 21

Q

What's your understanding of what is digital

fingerprinting?
A

Digital printer -- fingerprinting is a

04:14 22

technology that allows for automatic content

04:14 23

recognition.

04:14 24

Q

04:14 25

Electronically signed by Lori Scinta (601-264-733-0670)

Can you tell me what it does?
MR. POZZA:

I'll object to this -- this line of

5ff9ce4d-a4e8-444a-bce6-47911b25f707

Perkins, Braxton
12/16/2011
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
Page 257
1
I, the undersigned, a Certified Shorthand

2
3

Reporter of the State of California, do hereby certify:
That the foregoing proceedings were taken

4
5

before me at the time and place herein set forth; that

6

any witnesses in the foregoing proceedings, prior to

7

testifying, were duly sworn; that a record of the

8

proceedings was made by me using machine shorthand

9

which was thereafter transcribed under my direction;

10

that the foregoing transcript is a true record of the

11

testimony given.
Further, that if the foregoing pertains to

12
13

the original transcript of a deposition in a Federal

14

Case, before completion of the proceedings, review of

15

the transcript [ x ] was [ ] was not requested.

16

I further certify I am neither financially

17

interested in the action nor a relative or employee

18

of any attorney or party to this action.
IN WITNESS WHEREOF, I have this date

19
20

subscribed my name.

21
22

Dated: 12-20-11

23
24
25

Electronically signed by Lori Scinta (601-264-733-0670)

________________________________
LORI SCINTA, RPR
CSR No. 4811

5ff9ce4d-a4e8-444a-bce6-47911b25f707