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

Filing 395

MEMORANDUM in Opposition re 316 MOTION for Summary Judgment Publicly Filed Redacted Version filed by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc.. (Stetson, Karen) Modified TEXT on 3/22/2012 (lk).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-CIV-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’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT ANTON
TITOV’S MOTION FOR SUMMARY JUDGMENT
[CONFIDENTIAL]
[FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER]

TABLE OF CONTENTS
CITATION LEGEND ......................................................................................................................v
PRELIMINARY STATEMENT .....................................................................................................1
I.

TITOV IS LIABLE FOR PERSONALLY PARTICIPATING IN HOTFILE’S
INFRINGING CONDUCT. .................................................................................................3
A.
B.

Titov’s Conclusory Characterizations Of His Involvement Are Either
Unsupported Or Irrelevant. ......................................................................................5

C.

Titov’s Personal Participation in Hotfile’s Infringing Activity Was
Pervasive. .................................................................................................................7

D.
II.

Personal Participation In The Infringing Conduct – Not Exclusive Control
Of The Infringing Corporation – Is The Governing Legal Standard. ......................3

Case Law Compels A Finding That Titov Is Personal Liable. ..............................13

TITOV IS VICARIOUSLY LIABLE FOR HOTFILE’S INFRINGEMENT. ..................14
A.
B.

III.

Titov Directly Profits From Infringement on Hotfile. ...........................................14
Titov Failed to Exercise His Ability to Limit the Infringement on Hotfile. ..........16

TITOV HAS WAIVED ANY OBJECTION TO THE COURT’S JURISDICTION........18

CONCLUSION ..............................................................................................................................19

i

TABLE OF AUTHORITIES
CASES
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) .............................................16
Arista Records, Inc. v. Flea World, Inc., Civ. A. No. 03-2670 (JBS), 2006 WL 842883
(D.N.J. Mar. 31, 2006) .............................................................................................................15
Arista Records, LLC v. Lime Group, 784 F. Supp. 2d 398 (S.D.N.Y. 2011) ..........................14, 18
Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124 (S.D.N.Y. 2009) ..............14, 15, 18
Babbit Electronics, Inc. v. Dynascan Corp., 38 F.3d 1161 (11th Cir. 1994) ........................7, 8, 12
Capitol Records, Inc. v. MP3Tunes, LLC, No. 07 Civ. 9931 (WHP), 2011 WL 5104616
(S.D.N.Y. Oct. 25, 2011) ...................................................................................................15, 17
Chanel, Inc. v. Italian Activewear of Florida, Inc., 931 F.2d 1472 (11th Cir. 1991) ....................13
Columbia Pictures, Inc. v. Fung, No. CV 06-5578, 2009 WL 6355911 (C.D. Cal. Dec.
21, 2009) ............................................................................................................................14, 18
Columbia Pictures Indus. v. Redd Horne, 749 F.2d 154 (3d Cir. 1984) .....................................4, 6
CoStar Grp. v. LoopNet, 164 F. Supp. 2d 688 (D. Md. 2001) .......................................................17
Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004) .....................................................................15
Fonovisa Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996) ..............................................15
Foreign Imported Productions and Pub., Inc. v. Grupo Indus. Hotelero S.A., No. 0722066-CIV, 2008 WL 4724495 (S.D. Fla. 2008) ............................................................4, 7, 12
GamerModz, LLC v. Golubev, No. 8:10-cv-1466-T-27TGW, 2011 WL 4755026 (M.D.
Fla. August 3, 2011).................................................................................................................13
Harrell v. Eller Mar. Co., No. 8:09-cv-1400-T-27AEP, 2010 U.S. Dist. LEXIS 104826
(M.D. Fla. Sept. 30, 2010) .........................................................................................................5
Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082 (C.D. Cal. 2009) ..............................................17
Home Design Servs., Inc. v. Park Square Enters., Inc., No. 6:02-CV-637-ORL28JGG,
2005 WL 1027370 (M.D. Fla. May 2, 2005) ...........................................................................14
Innospan Corp. v. Intuit, Inc., No. C 10-04422 WHA, 2011 WL 856265 (N.D. Cal.
March 9, 2011) .........................................................................................................................13
Johnson & Johnson Consumer Cos., Inc. v. Aini, 540 F. Supp. 2d 374 (E.D.N.Y. 2008) ..............4

ii

Klein & Heuchan, Inc. v. Costar Realty Information, Inc., 707 F. Supp. 2d 1287 (M.D. Fl.
2010) ........................................................................................................................................15
Logicom Inclusive, Inc. v. W.P. Stewart & Co., No. 04 Civ. 0604 (CSH), 2004 U.S. Dist.
LEXIS 15668 (S.D.N.Y. Aug. 10, 2004) ............................................................................... 4-5
MGM Studios, Inc. v. Grokster, 545 U.S. 913 (2005) ...................................................................17
Microsoft Corp. v. Md. Micro.com, Inc., Civ. No. JFM-01-3797, 2003 U.S. Dist. LEXIS
13735 (D. Md. July 15, 2003) ..............................................................................................4, 17
Mozingo v. Correct Manufacturing Corp., 752 F.2d 168 (5th Cir. 1985) .....................................13
Neder v. United States, 527 U.S. 1 (1999) .....................................................................................17
Netbula, LLC v. Chordiant Software, Inc., No. C 08-00019JW, 2009 WL 750201 (N.D.
Cal. March 20, 2009) ...............................................................................................................15
Omega, S.A. v. Giftland Co., No. 03-Civ.-5808 (WJM), 2005 WL 1925791 (D. N.J.
August 11, 2005)......................................................................................................................13
Pardazi v. Cullman Medical Center, 896 F.2d 1313 (11th Cir. 1990) ..........................................18
Parker v. Google, 422 F. Supp. 2d 492 (E.D. Pa. 2006) ...............................................................15
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) ...........................................17
Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007) .....................................................15
Pickwick Music Corp. v. Record Productions, Inc., 292 F. Supp. 39 (S.D.N.Y. 1968) ..................4
Playboy Enters., Inc. v. Starware Publ’g Corp., 900 F. Supp. 438 (S.D. Fla. 1995) ....................14
PVC Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598 F.3d 802 (11th Cir. Fla. 2010) ........18
Qantum Communs. Corp. v. Star Broad., Inc., 473 F. Supp. 2d 1249 (S.D. Fla. 2007).............. 5-6
Seven Arts, Inc. v. Kalantzakis, 326 F. Supp. 80 (S.D. Tex. 1971) ...............................................11
Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304 (2d Cir. 1963) ..................................17
Slip-N-Slide Records, Inc. v. TVT Records, LLC, No. 05-21113-CIV, 2007 U.S. Dist.
LEXIS 9014 (S.D. Fla. Feb. 8, 2007) ........................................................................................4
Songmaker v. Forward of Kansas, Inc., No. 90-4156-SAC, 1993 WL 106833 (D. Kan.
Mar. 5, 1993)............................................................................................................................14
Southern Bell Tel. & Tel. Co. v. Associated Tel. Directory Publishers, 756 F.2d 801 (11th
Cir. 1985) ...................................................................................................................1, 3, 14, 16
iii

U.S. Media Corp., Inc. v. Edde Entertainment, Inc., No. 94 Civ. 4849(MBM)(MHMD),
1996 WL 520901 (S.D.N.Y. Sept. 12, 1996).............................................................................4
UMG Recordings v. Shelter Cap. Partners, __ F.3d __, No. 09-55902, 2011 WL 6357788
(9th Cir. 2011)..........................................................................................................................16
Viacom Int’l v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010) ..........................................17
STATUTES
17 U.S.C. § 512(c)(1)(B) ...............................................................................................................16
OTHER AUTHORITIES
5 C. Wright & A. Miller, Federal Practice and Procedure, § 1391 ................................................18
Fed. R. Civ. P. 12 ...........................................................................................................................18

iv

CITATION LEGEND
1.

“PSUF” shall refer to specific paragraph numbers of uncontroverted facts in

Plaintiffs’ Statement of Uncontroverted Facts, available publicly at Docket No. 323, submitted in
support of Plaintiffs’ Motion for Summary Judgment, dated February 17, 2012.
2.

“Yeh Ex. __,” shall refer to exhibits attached to the Declaration of Jennifer V.

Yeh in Support of Plaintiffs’ Motion for Summary Judgment, dated February 16, 2012, available
publicly at Docket No. 324-1, as well as the Declaration of Jennifer V. Yeh in Support of
Plaintiffs’ Opposition to Defendants’ Motions for Summary Judgment, filed herewith. For the
convenience of the Court, the exhibits attached to the Yeh Declarations have been consecutively
numbered, with Exhibits attached to the Yeh Declaration filed today continuing from the
numbering in the previous set of exhibits. Where appropriate, citations to such exhibits may also
include pinpoint citations to the page number(s), and paragraph or line numbers, internal to the
cited document. In some instances where individual Yeh Declaration exhibits were not
paginated, page numbers have been added manually for ease of the Court’s reference. The
parentheticals indicate the nature of the item cited – e.g., deposition transcripts (“dep.”) – or
documents produced in discovery by various parties. Thus, by way of illustration, “Yeh Ex. 1
(Titov dep.) at 200:1-10” would refer to the deposition of defendant Anton Titov, which could be
found in Exhibit 1 to the Yeh Declaration, at page 200 of the transcript pages, at lines 1 through
10. And, “Yeh Ex. 110 at 2” would refer to Exhibit 110 to the Yeh Declaration, and specifically
the page of that Exhibit found at page 2 of the numbered Exhibit pages.
3.

“Pls. Mot.” shall refer to Plaintiffs’ Motion for Summary Judgment, dated

February 17, 2012, available publicly at Docket No. 322.
4.

“Titov Mot.” shall refer to defendant Anton Titov’s Motion for Summary

Judgment, dated February 17, 2012, available publicly at Docket No. 316.
5.

“Opp. to TSUF” shall refer to Plaintiffs’ Counterstatement of Facts in Opposition

to Titov’s Statement of Undisputed Facts, filed herewith.
6.

“Foster Decl.” shall refer to the Declaration of Ian Foster, Ph.D., in Support of

Plaintiffs’ Motion for Summary Judgment, dated February 17, 2012, available publicly at Docket
No. 325-17.

v

PRELIMINARY STATEMENT
In comparable cases where courts have found Internet-based pirate services liable for
copyright infringement, including Limewire, Usenet.com and Fung, the courts have held the
relevant corporate principals liable in their individual capacity as well, and did so on motions for
summary judgment. Those decisions were compelled by firmly established common law holding
that an individual who substantially participates in the infringing conduct of a corporation, or
who profits from such infringement while failing to exercise his ability to limit it, is personally
liable for the resulting infringement. Indeed, in cases involving infringing websites such as
Hotfile – where the principals behind the infringement can simply shut down one infringing
website and go on to launch the next one – individual liability for the key corporate principals is
essential both to hold the responsible persons accountable and to ensure that any remedy against
the corporate defendants will have a meaningful effect.
There can be no real dispute that such personal liability should attach to Anton Titov
here. It is well-established that an individual is personally liable for a corporation’s copyright
infringement when the individual either “has the ability to supervise infringing activity and has a
financial interest in that activity,” or “personally participates in that activity.” Southern Bell Tel.
& Tel. Co. v. Associated Tel. Directory Publishers, 756 F.2d 801, 811 (11th Cir. 1985). Titov
independently satisfies both criteria.
Titov was a central figure in defendant Hotfile Corp.’s infringing conduct. Titov is a
manager and one of the

founders of Hotfile Corp., and the lead developer of the Hotfile

website. PSUF 21(a)(i), 22(a). As the only owner with any technical know-how, Titov has
direct, personal responsibility over the infringing features of the website, as well as features that
could have been used – but were not – to limit the rampant infringement on the site. PSUF 2-5;
PSUF 16(j). Moreover,
Thus, as co-owner and manager, Titov personally
participates in substantially all decisions related to Hotfile, including those at the center of
Hotfile’s infringing activities.
In addition,

a related entity that

handles most of Hotfile’s finances. In that capacity, Titov is responsible
Hotfile’s uploader Affiliates, whom Hotfile and Titov encourage to post infringing files to the
1

website, and to Hotfile’s website Affiliates, whom Hotfile and Titov encourage to post and
promote “download links” to those infringing files. PSUF 22(b).
Lastly, Titov is the sole owner and manager of Lemuria Communications, Inc.
(“Lemuria”), a company that Titov founded to act as Hotfile’s captive Internet Service Provider
(“ISP”) and which shields Hotfile from having its Internet service cut off by a legitimate thirdparty ISP due to Hotfile’s high volume of copyright infringement. As discussed below, Lemuria
is far more than just Hotfile’s ISP.
;
See generally PSUF 21; PSUF 22(a)(ii). Titov is responsible for
all of these Hotfile functions carried out through Lemuria.
These three companies – Hotfile Corp., Hotfile Ltd. and Lemuria – are at the heart of the
Hotfile enterprise and responsible for all Hotfile’s infringing activities.
and Lemuria. In addition, as a major
shareholder and manager of Hotfile Corp. with substantial control over both the design of
Hotfile’s website and the company more generally, Titov both personally participated in
Hotfile’s infringing activities and had the ability to mitigate the infringement, but chose instead
to profit from it.
These facts, which compel summary judgment against Titov, are not in dispute. They are
established by Titov’s own deposition testimony and contemporaneous documents with which
Titov did not take issue. Titov’s motion for summary judgment ignores the vast majority of that
evidence, instead focusing on facts that are immaterial. Principally, Titov relies on claims that
his fellow

also had pertinent

responsibilities. However, that Titov’s

business partners may share responsibility (and

personal liability) for Hotfile’s infringement does not absolve Titov.
and all

of them participate in the operation of Hotfile and

make policy decisions collectively. See Part I.C.1 infra. Contrary to Titov’s assertions,
“singular and dominant” control over a corporation is not needed to meet either the personal
participation standard or the vicarious liability standard for holding individuals responsible for
corporate conduct. Courts routinely find liability where, as here, a small group of individuals
2

participate in the infringing activity or share in the management and profits of an infringing
corporation. See Part I.A infra.
Finally, Titov argues that he is not subject to personal jurisdiction in Florida. However,
Titov long ago waived any challenge to the Court’s jurisdiction. Under Rule 12, the Court need
not (and cannot) consider that argument. See Part III infra.
Under the applicable law and undisputed facts, summary judgment should be denied to
Titov and entered in favor of plaintiffs.
ARGUMENT
I.

TITOV IS LIABLE FOR PERSONALLY PARTICIPATING IN HOTFILE’S
INFRINGING CONDUCT.
The evidence is undeniable: Titov played a central role in Hotfile’s operations and

personally participated in its infringement-promoting activities. Southern Bell, 38 F.3d at 118384. While Titov claims that his fellow shareholders also participated in Hotfile’s management
and operations, that cannot create a triable issue of fact. It is routine for more than one person to
participate in infringing corporate actions and for some or all of them be found personally liable
on that basis. The undisputed record establishes Titov’s personal liability.
A.

Personal Participation In The Infringing Conduct – Not Exclusive Control
Of The Infringing Corporation – Is The Governing Legal Standard.

Titov’s primary and oft-repeated argument against liability is that he does not have
absolute power over Hotfile’s operations, but shares in Hotfile’s ownership and management.
Titov seems to believe that he cannot be liable if he lacks the ability to direct the company’s
policies unilaterally. See, e.g., Titov Mot. at 11-12 (protesting that Titov is a “minority
…shareholder” and “does not have authority to establish general policy or make decisions about
substantial aspects of the operations of Hotfile without the approval of the other shareholders”);
Titov Dec. ¶ 39 (claiming that he cannot “make unilateral decisions affecting important aspects
of Hotfile”) (emphasis added); Titov Mot. at 12 (claiming that “courts typically reserve ‘guiding
spirit’ liability for individuals who exert singular and dominant control over a corporation and its
accused conduct”). Thus, Titov cites cases where officers with sole, exclusive control over
infringing corporations were held liable, seeking to suggest that complete, unfettered control by
one individual is the only basis for individual liability. See Titov Mot. at 12. It is not. While
singular control may be sufficient, it is not the standard for personal liability.
3

The “personal participation” or “guiding spirit” tests do not require “singular and
dominant” control over a corporation. Courts, including in this district, routinely reject any
requirement that an individual defendant be the sole or most senior corporate decision-maker:
The Eleventh Circuit’s “Southern Bell does not require ultimate authority, nor does it require
only one person to have authority.” Foreign Imported Prods. & Pub., Inc. v. Grupo Indus.
Hotelero S.A., No. 07-22066-CIV, 2008 WL 4724495, at *14 (S.D. Fla. Oct. 24, 2008); accord
U.S. Media Corp., Inc. v. Edde Entertainment, Inc., No. 94 Civ. 4849(MBM)(MHMD), 1996
WL 520901, at *5-6 (S.D.N.Y. Sept. 12, 1996) (vice president-level corporate officer personally
liable on the basis of participation in and oversight of infringing activity even though he lacked
“ultimate policy-making authority” of more senior officers). Personal liability can be imposed
even on individuals who lack any formal corporate authority if they are personally involved in
infringing activities as a practical matter. See Columbia Pictures Indus., Inc. v. Redd Horne,
Inc., 749 F.2d 154, 160-61 (3d Cir. 1984) (brother of corporate shareholder who was not a
corporate officer personally liable for corporate infringement because of participation in
infringing activities).
Nor, for that matter, are corporate principals immune from personal liability simply
because they act in a small group, with no single one of them exerting “singular” control over
corporate policy. See, e.g., Pickwick Music Corp. v. Record Productions, Inc., 292 F. Supp. 39,
40-41 (S.D.N.Y. 1968) (three corporate officers who formed corporation, ran it on a day-to-day
basis, and divided its profits among them each personally liable for corporate infringement); see
also Microsoft Corp. v. Md. Micro.com, Inc., Civ. No. JFM-01-3797, 2003 U.S. Dist. LEXIS
13735, at *13-14 (D. Md. July 15, 2003) (holding two corporate officers liable where “[b]oth
men own one-third of the company and serve as corporate officers”). It is in fact commonplace
for multiple individuals simultaneously to be liable for the same infringing corporate actions.
See, e.g., Slip-N-Slide Records, Inc. v. TVT Records, LLC, No. 05-21113-CIV, 2007 U.S. Dist.
LEXIS 9014, at *34-35 (S.D. Fla. Feb. 8, 2007) (“jury could reasonably find that [all three
defendant shareholders] directed, controlled, ratified, participated in, or were moving forces
behind [corporate defendant’s] allegedly infringing activity” and thus were all liable
individually); Johnson & Johnson Consumer Cos. v. Aini, 540 F. Supp. 2d 374, 398 (E.D.N.Y.
2008) (three individual defendants could be “moving, active conscious force[s]” behind
trademark infringement); Logicom Inclusive, Inc. v. W.P. Stewart & Co., No. 04 Civ. 0604
4

(CSH), 2004 U.S. Dist. LEXIS 15668, at *46-47 (S.D.N.Y. Aug. 10, 2004) (four individual
defendants could be “moving, active, conscious force[s] behind [the defendant corporation’s
infringement]”) (citations omitted).
The only thing proved by Titov’s attempts to shift responsibility onto
is that they would be liable as well, were they parties to this case. But
were not, and could not have been, known to plaintiffs when they brought this action.

Even to this day, Hotfile
contends that the names

are confidential and must be redacted from any

public filings. By the time plaintiffs learned of their involvement, adding them as parties to this
case (especially given their status as residents of Bulgaria) would have posed procedural
challenges and materially disrupted the schedule ordered by the Court.
absence from the case caption, however, does not mean that they would not also be
personally liable along with Titov, or that Titov can be exonerated from liability for his own
wrongful actions.
In sum, Titov’s motion is based on a misunderstanding of the governing law. As shown
below, there is no real factual dispute as to the scope of Titov’s personal involvement in Hotfile
and its infringing actions.
B.

Titov’s Conclusory Characterizations Of His Involvement Are Either
Unsupported Or Irrelevant.

Titov’s specific arguments are all variations on his mistaken formulation of the legal
standards guiding individual liability. They further rely on conclusory characterizations about
Titov’s role at Hotfile that are unsupported by the evidence and therefore cannot create a factual
dispute. E.g., Harrell v. Eller Mar. Co., No. 8:09-cv-1400-T-27AEP, 2010 U.S. Dist. LEXIS
104826, at *13-14 (M.D. Fla. Sept. 30, 2010) (“the effect, or characterization, of undisputed
facts, … does not raise a triable issue”); Qantum Commc’ns Corp. v. Star Broad., Inc., 473 F.

5

Supp. 2d 1249, 1260 (S.D. Fla. 2007), subsequent determination, 491 F. Supp. 2d 1123 (S.D.
Fla. 2007), aff’d, 290 F. App’x 324 (11th Cir. 2008).
First, Titov argues that he cannot be liable for “the decision to engage in the infringing
acts” because

claimed to have first had the idea to start Hotfile and to model its

Affiliate Program after those of other notorious download hubs. Titov Mot. at 3-4, 10, 11. But
Titov made the “decision” to join with

to implement that idea. See, e.g., Titov Mot. at

4 (after all three owners researched the market, “they decided” on Hotfile’s business plan); Opp.
to TSUF 7-8. And, once in business, Titov assumed a central role, personally participating in
nearly all of Hotfile’s infringing activities, as described below. See infra Part I.C.
Second, Titov makes the conclusory argument that he “is not responsible for…DMCA
and legal compliance at Hotfile,”

is. Titov Mot. at 11. This self-serving

characterization is again irrelevant. The touchstone is Titov’s participation, not the putative
formal division of corporate responsibilities. See Redd Horne, 749 F.2d at 160. The undisputed
record, as discussed below, shows Titov personally participating in decisions about whether or
not to terminate users, how to handle copyright owner complaints, and how to hide Hotfile’s
support for copyright infringement. See Part I.C.5 infra.
Third, Titov claims that the personnel who work for Hotfile
and do not report to” him. Titov
Mot. at 11. While perhaps nominally true, Titov’s characterization is immaterial (it is also
misleading).
The record further shows Titov personally participating in their activities and giving them
direction on matters that go to the heart of Hotfile’s infringing activities. See Part I.C.5 infra.
Finally, Titov makes the conclusory assertion that “[h]is responsibilities are limited to
technological issues.” Titov Mot. at 6-7, 11. Even if taken at face value, this is an admission,
not a defense. Hotfile is a technology company that in large measure encouraged, contributed to,
and failed to limit infringement through its technology decisions. Indeed, in this case,

s

6

Being the head technologist and lead developer for the Hotfile website put Titov at the center of
activities related to Hotfile’s infringement. See Part I.C.2 infra.
In any event, while being the head technologist in this case would be sufficient on its own
to establish Titov’s personal liability, the undisputed facts show below that Titov was personally
involved to a much greater extent. See Part I.C infra. That Titov’s business partners may also
have had some involvement cannot and does not absolve Titov. See generally Foreign Imported
Productions, 2008 WL 4724495, at *14 (standard “does not require ultimate authority, nor does
it require only one person to have authority”).
C.

Titov’s Personal Participation in Hotfile’s Infringing Activity Was Pervasive.

When the correct legal standard is applied – i.e., whether an individual “directs, controls,
ratifies, participates in, or is the moving force behind the infringing activity,” Babbit Electronics,
Inc. v. Dynascan Corp., 38 F.3d 1161, 1184 (11th Cir. 1994) – the case for Titov’s personal
liability becomes overwhelming.1
1.

Titov Manages And Co-Owns Hotfile.

Titov’s ownership stake and management role in Hotfile are both substantial. See Opp. to
TSUF 10. Hotfile Corp. has only

individual owners, and Titov’s share, at

is

significant. PSUF 21(a)(i).

Titov and the other

shareholders did not initially assign themselves formal titles.

However, when
2

Titov holds himself out as the company’s “manager” – indeed, in this very litigation, he

has repeatedly signed verifications on behalf of Hotfile as its manager. See, e.g., Yeh Ex. 133
1 Plaintiffs incorporate by reference their Motion For Summary Judgment Against Defendants
Hotfile Corp. and Anton Titov, filed February 17, 2012, available publicly at Docket No.
324, at pp. 35-40 (describing the basis for Titov’s personal liability).
2
7

(one of several Hotfile interrogatory verifications signed by Titov as “Manager” for Hotfile
Corp.).

Titov further acknowledged that “it’s not impossible for me to make a decision alone” as
long as he believed

shareholders would back the decision, but that the situation

never comes up because Hotfile’s

owners govern the company by consensus. PSUF 22(e);

Yeh Ex. 1 (Titov dep.) at 61:9-12 (“Major decisions will generally be discussed and maybe
voted, but I would say that’s too formal a word for our environment. But between the
shareholders of Hotfile. That would include me, of course.”). Proposals put forth by one of the
shareholders were generally approved by the others without incident; Titov in fact could not
recall any instance in which the shareholders had disagreed over any decision concerning
Hotfile’s business. Yeh Ex. 1 (Titov dep.) at 69:24-70:2; 597:11-598:1; 601:6-602:3; 604:11-13;
605:23-606:2; 608:5-8. Hotfile’s business model was one that “they decided” to adopt together.
Titov Mot. at 4-5. Put differently, Titov and his

business partners have discussed, agreed on,

and ratified the key decisions concerning Hotfile, including the site’s design, the creation and
structure of its Affiliate program, and (by omission) its failure to implement a repeat copyright
infringer policy or adopt other technology to lessen infringement. Babbit Electronics, 38 F.3d at
1184 (individual liability for one who, inter alia, “ratifies” infringing conduct).
2.

Titov Designed And Programmed The Hotfile System.

Titov was the “lead developer” of the Hotfile system. By his own estimate, Titov
personally wrote

of the source code (the computer operating instructions) that

controls the Hotfile site. PSUF 22(a)(i). He also played a role in the user-facing design and
functionality of the website, and had input into the design and functioning of the Affiliate
program. PSUF 22(a)(iii). As Titov’s motion candidly admits, “implementation input” for the
functionality of the Hotfile website came “from

founders.” Titov Mot. at 7. Through

his ownership and control over Lemuria – described below – Titov is further responsible for the
ongoing maintenance of Hotfile’s software and its continued development. PSUF 22(a)(ii).
As the site’s developer, Titov was responsible for Hotfile’s earlier practice of

8

Pls. Mot. at 13-14, 24, 39; PSUF 22(f)(i). In addition,
while he

Hotfile to identify users who had

uploaded infringing files identified in copyright owner notices, Titov did not implement such a
system for Hotfile until after plaintiffs initiated this litigation. PSUF 2-5. As explained in
Plaintiffs’ Motion for Summary Judgment, that omission was critical, resulting in rampant
infringement and extensive use of the site by users who under the law should have been
terminated. See Pls. Mot. 10-12. Nor did Titov implement readily-available fingerprinting
technology to prevent infringing files from being uploaded to the site, even though he personally
understood that major sites like YouTube had deployed such technology to limit the uploading of
infringing files. PSUF 16(j); Pls. Mot. at 32. Thus, Titov created Hotfile without common and
well-recognized methods for preventing infringement. See also Opp. to TSUF 9.
3.

Titov Exclusively Manages Hotfile Ltd., Which Pays Hotfile’s Affiliates
And Processes Most Of Its Incoming Payments.

As shown in plaintiffs’ motion for summary judgment, Hotfile’s so-called “Affiliates” are
overwhelmingly infringers, paid by Hotfile to seed the site with unauthorized content to attract
more users. See Pls. Mot. at 8. However,

Thus, Titov is
which at one point he did from a PayPal account in his own name.
PSUF 22(b).3 In addition, Titov also personally promoted the Affiliate program and solicited
Affiliates by posting to online forums. Yeh Ex. 86 at 6; Yeh Ex. 1 (Titov dep.) at 77:17-78:2.
And he is

which are

3

9

Hotfile’s only revenue source. See PSUF 21(b)(ii); Opp. to TSUF 12; see also Titov Decl. in
Support of Motions for Summary Judgment, available publicly at Docket No. 321-1, ¶ 7.
4.

Titov Exclusively Owns And Manages Lemuria, Which Had
Responsibility For Many Essential Hotfile Functions.

Hotfile outsourced key functions to Lemuria, a Florida corporation of which Titov is the
sole owner, operator and officer. PSUF 21(c). Through Lemuria, Titov controls substantially all
See Opp. to TSUF 11.

of Hotfile’s technical, Internet hosting, and
First, Lemuria is Hotfile’s ISP. Through an

with Hotfile

Ltd., Lemuria provided Hotfile with Internet access and webhosting, which Lemuria, in turn,
contracted from third parties. In this way, Lemuria
Indeed, Titov formed Lemuria only after one of Hotfile’s
previous ISPs had received a subpoena seeking the identity of Hotfile’s operators,
Although Titov denies that he formed Lemuria because the first of these
incidents, the reasons for initially founding the company are immaterial: because such
complaints from copyright owners now go to Lemuria, rather than a third party, Lemuria (i.e.,
Titov) ensures that Hotfile’s Internet service, which is essential to its operation, will not be
jeopardized by complaints about copyright infringement. PSUF 21(c)(ii).4
Lemuria’s services do not end with webhosting. It is Lemuria (i.e., Titov) that

And, it is Lemuria (i.e.,
Titov)
All of these central functions, which ordinarily would be
performed by Hotfile Corp., are in fact performed by Lemuria, i.e., Titov.
4 While Titov’s motion claims that Lemuria now provides services to
see Titov Mot. at 8 n.10, Titov admitted that the
hus, Lemuria has never had a business purpose other than serving Hotfile.
10

Just a few weeks ago,

As the sole owner and operator of Lemuria, Titov is ultimately responsible for all of these
essential Hotfile functions. See generally Seven Arts, Inc. v. Kalantzakis, 326 F. Supp. 80, 82
(S.D. Tex. 1971) (individual liability where individual defendant, notwithstanding claims that he
did not control corporate defendant, controlled related company and “the business operations of
these two corporations were totally intermingled”).
5.

Titov Directed Hotfile’s Staff On Infringement-Related Issues.

Titov claims that Hotfile’s staff “reported” to

and suggests that

this somehow absolves him of liability. Titov Mot. at 11. But whether the staff also reported to
others is irrelevant. The undisputed record establishes that Titov gave the Hotfile staff direction
and that,

Titov had direct authority over them. PSUF

21(c), 22(d); Yeh Ex. 80;

Titov himself admitted, “yes, I would say that I have certain authority over them.”
Yeh Ex. 1 (Titov dep.) at 132:18-20; Opp. to TSUF 6.

11

Titov also retained and manages Hotfile’s appointed DMCA agent in the United States,

6.

Titov Was Personally Aware Of And Fostered The Massive Infringement
On Hotfile.

Given his substantial and significant involvement in virtually every aspect of Hotfile’s
business, Titov fully understood the scope of Hotfile’s infringement. He

Indeed, Titov actively joined with Hotfile’s

to mislead copyright

owners regarding copyright infringement on the site and Hotfile’s responses to it. Specifically,
knowing that Hotfile needed a DMCA “repeat infringer” policy –
but also that Hotfile needed its Affiliates to upload popular content to attract users to the site (see
Pls. Mot. at 10-11) –

Consistent with the foregoing, Titov also counseled Hotfile personnel to avoid taking
actions that would make Hotfile’s tolerance of infringement obvious. For example,

Significantly,
Titov continued paying the Affiliate rather than terminating it. Foster Decl. ¶ 56.
*

*

*

*

The applicable legal standard for imposing personal liability for corporate conduct
requires plaintiffs to prove that Titov “directs, controls, ratifies, participates in, or is the moving
force behind the infringing activity.” Babbit Electronics, 38 F.3d at 1184 (emphasis added).
Titov does, and is, all of that. E.g., Foreign Imported Productions and Pub., Inc., 2008 WL
4724495, at *14 (enough that “both [defendants] have control over the content of the website” on
which infringement took place).
12

D.

Case Law Compels A Finding That Titov Is Personal Liable.

Titov is nothing like the defendants in the various cases he relies upon, whose
relationship to the infringement was remote, if not altogether nonexistent:
o

In Mozingo v. Correct Manufacturing Corp., 752 F.2d 168 (5th Cir. 1985), the personal
injury case on which Titov principally relies, see Titov Mot. at 11-12, the individual
defendant was high-ranking, but his role was “peripheral” – he “did not direct the
manufacture” of the allegedly defective product that injured the plaintiff and “indeed
appears to have had little or nothing at all to do with [its] production.” 752 F.2d at 17374. His involvement was limited to approving a single prototype eight years earlier,
which he did not know had later been manufactured. Id. at 173. The Mozingo defendant
bears no resemblance to Titov.

o

In GamerModz, LLC v. Golubev, No. 8:10-cv-1466-T-27TGW, 2011 WL 4755026 (M.D.
Fla. Aug. 3, 2011), report and recommendation adopted by 2011 WL 4753535 (M.D. Fla.
Oct. 7, 2011), see Titov Mot. at 12, the individual defendant was a passive investor who
had no knowledge of the trademark-infringing website. 2011 WL 4755026, at *18-19.
Here, Titov participated in the design of, and then technically implemented and managed,
the site where the infringing activity took place. He was anything but a passive investor.

o

In Chanel, Inc. v. Italian Activewear of Florida, Inc., 931 F.2d 1472 (11th Cir. 1991), see
Titov Mot. at 10, 12-13, the individual defendant was merely a “friend” and business
“associate” of the principal trademark infringer, and had done no more than “look after
the showroom” while the principal infringer “was out of town.” 931 F.2d at 1478.

o

In Innospan Corp. v. Intuit, Inc., No. C 10-04422 WHA, 2011 WL 856265 (N.D. Cal.
Mar. 9, 2011), see Titov Mot. at 13, the plaintiff “fail[ed] … to allege any facts
demonstrating that [the individual] defendants ‘authorized,’ ‘directed,’ or ‘participated’
in the alleged trademark infringement, “and failed to refute” evidence showing that they
were not even aware of it at all. Id. at 8.

o

And in Omega, S.A. v. Giftland Co., No. 03-Civ.-5808 (WJM), 2005 WL 1925791
(D.N.J. Aug. 11, 2005), see Titov Mot. at 13, the individual defendant – a third-party
vendor who processed payments for counterfeit goods – had no understanding of the
infringing website. 2005 WL 1925791 at *1-2, 3-4.

13

In contrast, Titov was personally involved in designing, creating and managing Hotfile,
and personally participated in nearly all Hotfile’s infringing activities. Thus, this case fits
squarely in the line of cases involving corporate figures who have been held personally liable, on
motions for summary judgment, for the infringing acts of their companies. See, e.g., Arista
Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124, 158-59 (S.D.N.Y. 2009) (principal
provided “overall strategic vision,” directed marketing materials, and “had an active role in the
corporate Defendants’ technical operations”); Arista Records, LLC v. Lime Group, 784 F. Supp.
2d 398, 438 (S.D.N.Y. 2011) (“Limewire”) (principal, inter alia, “directed and approved many
aspects of [software’s] design and development”); Columbia Pictures Indus., Inc. v. Fung, No.
CV 06-5578, 2009 WL 6355911, at *5 (C.D. Cal. Dec. 21, 2009) (similar). There is no basis for
a different outcome here.
II.

TITOV IS VICARIOUSLY LIABLE FOR HOTFILE’S INFRINGEMENT.
Titov is also liable under the common-law vicarious liability standard because he (i)

“ha[d] the ability to supervise infringing activity” and (ii) “ha[d] a financial interest in that
activity.” Southern Bell, 756 F.2d at 811. Titov’s “vicarious” liability is independent of his
“personal participation” liability discussed above. See Part I supra. In arguing against
“vicarious” personal liability, Titov simply applies the wrong law; he relies on cases about the
DMCA instead of cases applying the controlling common law test. Under the correct standard,
summary judgment should be granted for plaintiffs – not for Titov – on this theory as well.
A.

Titov Directly Profits From Infringement on Hotfile.

Titov is financially interested in Hotfile’s infringement because he has an ownership
interest in the corporation and participated in the profits Hotfile made from infringement. See
Home Design Servs., Inc. v. Park Square Enters., Inc., No. 6:02-CV-637-ORL28JGG, 2005 WL
1027370, at *4 (M.D. Fla. May 2, 2005) (“As a 3% owner of Park Square, it is clear that
[defendant] had a financial interest in the alleged infringing activities”) (internal quotation marks
omitted); Songmaker v. Forward of Kansas, Inc., No. 90-4156-SAC, 1993 WL 106833, at *6 (D.
Kan. Mar. 5, 1993) (sufficient financial interest in infringing activity where officer was
shareholder).
PSUF 23(b)(i); Playboy Enters., Inc. v.
Starware Publ’g Corp., 900 F. Supp. 438, 440 (S.D. Fla. 1995) (receipt of payments from

14

corporation in form of “distributions to shareholders” shows financial interest in infringing
activity).
There can be no question that Titov benefitted financially as a consequence of Hotfile’s
infringement – the connection between copyright infringement and Hotfile’s earnings is direct.
Hotfile is used overwhelmingly for infringement. PSUF 10(a). Defendants acknowledge that
the goal of Hotfile’s Affiliate program is to draw potential “premium” subscribers to Hotfile, and
users have confirmed that they bought premium subscriptions specifically to download copyright
infringing content. PSUF 16(e); see also PSUF 16(e)(ii) (defendants’ economist agrees).
Indeed, to confirm the direct and obvious relationship, the Court need

Titov misstates the law in arguing that Hotfile does not profit from infringement because
“infringing and non-infringing users make the ‘same kind of payment.’” Titov Mot. at 16. It is
well-established that “the relevant inquiry is whether the infringing activity constitutes a draw
for subscribers.” Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1117 (9th Cir. 2007) (internal
quotation marks omitted); Usenet.com, 633 F. Supp. 2d at 156-57 (“the ‘draw’ of infringement
need not be the primary, or even a significant draw – rather, it need only be ‘a’ draw”); Arista
Records, Inc. v. Flea World, Inc., Civ. A. No. 03-2670 (JBS), 2006 WL 842883, at *12-13
(D.N.J. Mar. 31, 2006); Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 263-64 (9th Cir.
1996).5 Indeed, Titov cites a DMCA committee report in support of his argument, Titov Mot. at
16 (citing S. Rep. No. 105-190, p. 44), but the rest of the Committee’s explanation, which Titov
5 Titov’s own cases agree. See Ellison v. Robertson, 357 F.3d 1072, 1079 (9th Cir. 2004); Klein
& Heuchan, Inc. v. Costar Realty Information, Inc., 707 F. Supp. 2d 1287, 1298 (M.D. Fla.
2010) (“increasing [a] customer base” and “attract[ing] customers” satisfies the standard),
aff’d, 425 F. App’x 833 (11th Cir. 2011); Capitol Records, Inc. v. MP3Tunes, LLC, No. 07
Civ. 9931 (WHP), __ F. Supp. 2d __, 2011 WL 5104616, at *14 (S.D.N.Y. Oct. 25, 2011)
(approving cases finding standard satisfied based on ‘draw’ where websites “promoted
infringing activity to enhance the sale of user accounts or advertising revenue”). Netbula,
LLC v. Chordiant Software, Inc., No. C 08-00019JW, 2009 WL 750201 (N.D. Cal. Mar. 20,
2009) relied upon by Titov, is not to the contrary. There, the plaintiff simply failed to “allege
a direct relationship between [defendants’] compensation” and the corporation’s
infringement. Parker v. Google, Inc., 422 F. Supp. 2d 492 (E.D. Pa. 2006), is even further
afield. There, a pro se plaintiff had “failed to allege any infringing conduct” and merely
made a “vague and conclusory” allegation that Google profited from infringement without
articulating how. Id. at 500.
15

cuts off, makes clear that, even in the case of flat fees, the financial benefit standard is satisfied
“where the value of the service lies in providing access to infringing material.” Id. (emphasis
added). That is precisely the case here. PSUF 10(a), 16.
B.

Titov Failed to Exercise His Ability to Limit the Infringement on Hotfile.

Titov also clearly had the “ability to supervise [the] infringing activity” from which he
profited. Southern Bell, 756 F.2d at 811. As discussed above, Titov was a central figure in
Hotfile’s operation. See Part I.C.1 infra. He was the lead designer for the Hotfile website. See
Part I.C.2 infra. He managed the corporate entity
and he was the sole owner and operator of the corporate entity that
provided Hotfile’s Internet connection and web services,
See Parts I.C.3 and I.C.4 infra; Opp. to TSUF 6-12.
The control element of vicarious liability is satisfied when the defendant has the right to
block users or content from the system. E.g., UMG Recordings, Inc. v. Shelter Capital Partners,
LLC, No. 09-55902, __ F.3d __, 2011 WL 6357788, at *16 (9th Cir. Dec. 20, 2011) (“the
vicarious liability standard … can be met by merely having the general ability to locate
infringing material and terminate users’ access”); A&M Records, Inc. v. Napster, Inc., 239 F.3d
1004, 1023 (9th Cir. 2001) (same). There is no question that Titov had this ability here – as
evidenced by the fact that when finally forced to do so, he did in fact terminate infringing users
and delete their files. PSUF 5(b). That satisfies the “control” element under the common law –
and as Plaintiffs have previously shown, his failure to exercise it was devastating. See Pls. Mot.
at 10-12 (showing consequences of Hotfile’s failure to terminate repeat infringers).
Titov’s arguments to the contrary – that he had no obligation to police Hotfile, and that
he could not have an “ability to supervise” unless he had actual knowledge of the specific
infringing files at issue – are founded on a series of DMCA cases that simply do not apply. See
Titov Mot. at 14-15. The DMCA incorporates parallel “right and ability to control” language as
part of one of its safe harbor tests. 17 U.S.C. § 512(c)(1)(B). Because that DMCA statutory
language mirrors the traditional statement of common law vicarious infringement, courts have
struggled with – and disagreed as to – whether the DMCA standard is the same as the common
law standard. Every case Titov cites is one in which the court refused to apply the common law
vicarious standard and instead adopted a higher DMCA statutory standard. See UMG
Recordings, 2011 WL 6357788, at *16-18 (rejecting application of vicarious liability standard to
16

DMCA); Viacom Int’l, Inc. v. YouTube, Inc., 718 F. Supp. 2d 514, 527 (S.D.N.Y. 2010) (same);
Capitol Records, 2011 WL 5104616, at *14 (“‘control of infringing activity’ under the DMCA
requires something more” than common law vicarious standard) (citing Corbis v. Amazon.com,
351 F. Supp. 2d 1090, 1110 (W.D. Wash. 2004) (same)); Hendrickson v. eBay, Inc., 165 F. Supp.
2d 1082, 1093 (C.D. Cal. 2009) (same); CoStar Grp., Inc. v. LoopNet, Inc., 164 F. Supp. 2d 688,
704 (D. Md. 2001) (same), aff’d 373 F.3d 544 (4th Cir. 2004).6
Plaintiffs do not agree that the cases cited by Titov interpret the 512(c)(1)(B) safe harbor
correctly,7 but that is immaterial, as the DMCA safe harbor is not at issue. Titov’s cases
expressly apply a different standard than the common law standard that governs Titov’s personal
vicarious liability. Titov simply argues from the wrong law. E.g., Shapiro, Bernstein & Co. v.
H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963) (vicarious liability turns on financial benefit
and control, “even in the absence of actual knowledge that the copyright monopoly is being
impaired”); MGM Studios, Inc. v. Grokster, 545 U.S. 913, 930 n.9 (2005) (“vicarious liability . . .
allows imposition of liability . . . even if the defendant initially lacks knowledge of the
infringement”).
Finally, for the same reasons discussed above, Titov’s argument that he could not make
“unilateral decisions,” or make substantial policy decisions “without the approval and vote of the
other shareholders,” Titov Dec. ¶ 39; see also Titov Mot. at 13-14, is no more determinative of
vicarious liability than of personal participation liability. No corporate officer or owner with less
than a majority interest would ever be liable if that were the law. It is not. See Part I.A supra;
see also Microsoft Corp., 2003 U.S. Dist. LEXIS 13735, at *13-14 (holding that two individuals
both had the requisite “ability to supervise,” and were personally liable under the vicarious
standard, where “[b]oth men own one-third of the company and serve as corporate officers”).8
6 Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), Titov Mot. at 15, is also
factually inapposite. That case concerned Google’s right and ability “to stop or limit the
direct infringement of third party websites” – not on its own website. 508 F.3d at 1173
(emphasis added).
See Neder v. United States, 527 U.S. 1, 21 (1999) (when “Congress uses terms that have
accumulated settled meaning under…the common law, a court must infer, unless the statute
otherwise dictates, that Congress means to incorporate the established meaning of these
terms”) (quotation marks omitted; ellipsis in original).
8 Contrary to Titov’s suggestion, see Titov Mot. at 14, individual defendants are routinely held
personally liable where the corporation is a secondary infringer and its customers or
7

17

III.

TITOV HAS WAIVED ANY OBJECTION TO THE COURT’S JURISDICTION.
As a last resort, Titov also challenges to this Court’s jurisdiction to adjudicate the claims

against him. However, Titov waived this objection when he failed to include it in his motion to
dismiss the Complaint for failure to state a claim.
A challenge to a court’s personal jurisdiction over a defendant is raised by means of a
motion under Fed. R. Civ. P. 12(b)(2). Rule 12(b) is unambiguous: “A motion asserting any of
these [Rule 12(b)] defenses must be made before pleading if a responsive pleading is allowed.”
Rule 12(h) is equally explicit: A party “waives any defense listed in Rule 12(b)(2)-(5) by
omitting it from a motion” raising any other defense in Rule 12. Fed. R. Civ. P.12(h)(1)(A); see
also Fed. R. Civ. P.12(g)(2)(“a party that makes a motion under this rule must not make another
motion under this rule raising a defense or objection that was available to the party but omitted
from its earlier motion”). It is simply hornbook law that a defendant, in a Rule 12 motion, “must
include, on penalty of waiver, the defenses set forth in subdivisions (2) through (5) of Rule
12(b),” and that defenses omitted are “permanently lost” and may not thereafter be asserted. 5
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1391, at 501 (3d ed.
2004).
Before answering the complaint, Titov filed a motion to dismiss under Rule 12(b)(6). See
Motion and Memorandum of Law of Defendants Hotfile Corporation and Anton Titov to
Dismiss Plaintiffs’ Complaint, Docket No. 50, at 17-19 (addressing claims concerning Titov’s
personal liability). His motion did not challenge personal jurisdiction under Rule 12(b)(2), thus
permanently waiving the defense. E.g., Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317,
1314 (11th Cir. 1990) (“a party is deemed to have waived any objection to personal jurisdiction
or service of process if the party makes a pre-answer motion under Rule 12 and fails to include
such objections in that motion”).9

subscribers commit the acts of direct infringement. See e.g., Limewire, 784 F. Supp. 2d at
438-39 (granting summary judgment on personal liability where corporate defendant was
secondary infringer); Fung, 2009 WL 6355911, at *18 (same); Usenet.com, 633 F. Supp. 2d
at 158-59 (same).
9 Titov’s claim that “the Court had to consider true at earlier stages of the litigation” that he was
residing in Florida as alleged in the complaint, Titov Mot. at 17, incorrectly confuses the
standard under Rule 12(b)(2) with the standard under Rule 12(b)(6). A defendant is
permitted – indeed, required – to put in his own evidence to challenge allegations relating to
18

Titov is not permitted to move on this defense now.
CONCLUSION
For the foregoing reasons, and those stated in plaintiffs’ motion for summary judgment
(available publicly at Docket No. 322), Titov’s motion for summary judgment should be denied
– and summary judgment entered for plaintiffs.
Dated: March 7, 2012

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

personal jurisdiction in a Rule 12(b)(2) motion. See, e.g., PVC Windoors, Inc. v. Babbitbay
Beach Constr., N.V., 598 F.3d 802, 807 (11th Cir. Fla. 2010).
19

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 7th Day of March, 2012, I served the following
documents on all counsel of record on the attached service list via their email address(es)
pursuant to the parties’ service agreement:
Plaintiffs’ Memorandum of Law in Opposition to Defendant Anton Titov’s Motion
for Summary Judgment

By: /s/ Karen L. Stetson

20

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]

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

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

21