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

Filing 397

Statement of: PLAINTIFFS' COUNTERSTATEMENT OF MATERIAL FACTS IN OPPOSITION TO ANTON TITOV'S MOTION FOR SUMMARY JUDGMENT (PUBLIC REDACTED VERSION) by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc. re 317 Statement, (Stetson, Karen)

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’ COUNTERSTATEMENT OF MATERIAL FACTS IN OPPOSITION TO
ANTON TITOV’S MOTION FOR SUMMARY JUDGMENT

[CONFIDENTIAL]
[FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER]

CITATION LEGEND
1.

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

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

ii

Plaintiffs hereby provide the following Counterstatement of Material Facts in opposition
to Titov’s Motion for Summary Judgment. Plaintiffs have not repeated Titov’s supporting
evidence, per Local Rule 56.
1.

UNDISPUTED, BUT IMMATERIAL.
2.

UNDISPUTED, BUT IMMATERIAL.
3.

UNDISPUTED, BUT IMMATERIAL.
4. Mr. Titov did not come up with the idea to found Hotfile.

UNDISPUTED, BUT IMMATERIAL.
5. Mr. Titov is a minority and the smallest shareholder in Hotfile.

UNDISPUTED, BUT IMMATERIAL.
6. The personnel who work on the operations of Hotfile
do not report to Mr. Titov.

DISPUTED, BUT IMMATERIAL AS FRAMED.
DISPUTED insofar as one member of Hotfile’s staff,

was not

IMMATERIAL insofar as the relevant touchstone is Titov’s personal participation,
not the formal reporting relationship.

(which Titov

exclusively owned and managed) and Titov provided direction to Hotfile staff.
Evidence Controverting Titov’s Characterization:
•

Yeh Ex. 13 at 5-7 (one member of Hotfile’s staff,

•

SUF 21(c) (Titov is the sole owner, operator and officer of Lemuria).

•

Yeh Ex. 80;

1

was not

formally making Titov the direct supervisor of the
who act as Hotfile’s staff).
•

Yeh Ex. 1 (Titov dep.) at 132:15-20;

(Titov admitting that he

has “certain authority over”

Evidentiary Objection: Citation to

deposition transcripts is hearsay

not falling within an exception. The transcripts cannot “be presented in a form that would be
admissible in evidence” in accordance with Fed. R. Civ. P. 56(c)(3) because there is no evidence
that the witnesses would travel to the United States and subject themselves to the jurisdiction of
the United States court system to provide testimony at trial. There is every reason to believe that
they would not do so, in order to avoid being served in their personal capacity for their
participation in Hotfile’s infringing conduct. Indeed, Mssrs.

refused to

even set foot in the United States for purposes of mediation in this case absent a stipulation that
they would not be served with process. See Yeh Ex. 131. Moreover, the likely non-appearance
of

at trial would preclude Hotfile from admitting their deposition

testimony under Fed. R. Civ. P. 32(a)(4), as their “absence” would be “procured by the party
offering the deposition,” i.e., defendants.
7. Mr. Titov did not make the decision to implement the Affiliate program.

DISPUTED, BUT IMMATERIAL AS FRAMED.
DISPUTED insofar as

merely testified that the program was his “idea”; Titov admits

that the decision was one made jointly (

cannot make decisions

“unilaterally” any more than Titov can). IMMATERIAL insofar as Titov’s personal
participation in the program is what is relevant and undisputed.
Evidence Controverting Titov’s Characterization:
•
•

Titov Mot. at 4-5 (Titov’s motion admits that Hotfile’s business model was one that “they
decided” to adopt together).

•

PSUF 22(e) (Titov was effectively involved in ratifying key decisions concerning

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Hotfile’s policymaking, including the creation and structure of its Affiliate program).
•

Yeh Ex. 1 (Titov dep.) at 597:11-598:1; 601:6-602:3; 604:11-13; 605:23-606:2; 608:5-8
(any proposal put forth by one of Hotfile’s shareholders would generally be approved by
the others without incident, and Titov could not recall any instance in which the
shareholders had disagreed over any decision concerning Hotfile’s business).

•

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.”)

Evidentiary Objection: Citation to

deposition transcripts is hearsay

not falling within an exception. See Opp. SUF 6 supra.
8. Mr. Titov did not design the Affiliate program’s payment criteria.

UNDISPUTED, BUT IMMATERIAL AS FRAMED.
What matters is not whether Titov “design[ed]” the payment criteria but rather his undisputed
role in agreeing to implement it, and then participating in administering it by
Evidence Controverting Titov’s Characterization:
•

Titov Mot. at 4-5 (Titov’s motion admits that Hotfile’s business model was one that “they
decided” to adopt together).

•

SUF 22(e) (Titov was effectively involved in ratifying key decisions concerning Hotfile’s
policymaking, including the creation and structure of its Affiliate program).

•

Yeh Ex. 1 at 597:11-598:1; 601:6-602:3; 604:11-13; 605:23-606:2; 608:5-8 (any proposal
put forth by one of Hotfile’s shareholders would generally be approved by the others
without incident, and Titov could not recall any instance in which the shareholders had
disagreed over any decision concerning Hotfile’s business).

Evidentiary Objection: Citation to

deposition transcript is hearsay not falling within

an exception. See Opp. SUF 6 supra.

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9. Mr. Titov has not implemented technical features to frustrate copyright owner
enforcement efforts.

DISPUTED.
Titov was responsible for a Hotfile feature that frustrated takedown notices by leaving up files
that were subject to takedown notices. Titov also failed to implement common measures for
mitigating infringement, including implementing a repeat infringer policy or available contentrecognition technology.
Evidence Controverting Titov’s Characterization:
•

SUF 22(f)(i) (as the site’s developer, Titov knew of and was responsible for Hotfile’s
earlier practice of leaving up infringing

•

SUF 2 (Titov admitted

to identify the users

who had uploaded files that were the subject of copyright owner complaints, but did not
design or implement such a system for Hotfile until after this litigation).
•

SUF 16(j) (Titov did not implement fingerprinting technology to prevent infringing files
from being uploaded to the site, even though it was readily available from Hotfile’s
founding).

10. Mr. Titov does not control Hotfile.

DISPUTED, BUT IMMATERIAL AS FRAMED.
Exclusive control over a corporation is not a legal prerequisite to personal participation or
“moving force” liability – and it is undisputed that Titov controls Hotfile in combination with

Evidence Controverting Titov’s Characterization:
•

Yeh Ex. 1 (Titov dep.) at 61:9-12; 69:24-70:2; 597:11-598:1; 601:6-602:3; 604:11-13;
605:23-606:2; 608:5-8 (Titov admitting that “it’s not impossible for [him] to make a
decision alone”; all

Hotfile shareholders participate in the operation of Hotfile and

make policy decisions collectively; any proposal put forth by one of Hotfile’s
shareholders would generally be approved by the others without incident, and Titov could

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not recall any instance in which the shareholders had disagreed over any decision
concerning Hotfile’s business).
•

•

SUF 21(a)(i)

•

Yeh Ex. 133 (Titov holds himself out as Hotfile Corp.’s manager today, and has
repeatedly signed interrogatory verifications in this litigation on behalf of the company as
its “Manager”).

•

Evidentiary Objection: Citation to

deposition transcript is hearsay not falling

within an exception. See Opp. SUF 6 supra.
11. Mr. Titov is not responsible for day-to-day operations of Hotfile; his area of
responsibility is technological matters.

DISPUTED, BUT IMMATERIAL AS FRAMED.
DISPUTED insofar as Titov’s involvement in Hotfile’s operations goes beyond technology
alone. Titov’s mere characterization of his involvement does not create a dispute of fact.
IMMATERIAL insofar as personal participation, rather than formal corporate responsibility, is
touchstone for personal liability.
Evidence Controverting Titov’s Characterization:
Titov is responsible for numerous aspects of Hotfile’s day-to-day operations through Lemuria:
•

SUF 21(c)(i) (Titov is the sole owner, operator and officer of Lemuria).

•

SUF 21(c)(ii) (Lemuria provides web-hosting services to Hotfile through
“arrangement”).

•

SUF 21(c)(iv) (Lemuria

5

•

•

Titov personally manages Hotfile’s Affiliate program:
•

SUF 21(b)(ii)

•

SUF 21(b)(i);

•

SUF 22(b)

•

Yeh Ex. 86 at 6 (Titov promotes and advertises the Affiliate program by posting to
online forums); Yeh Ex. 1 (Titov dep.) at 77:17-78:2 (testifying to use of online
screen names ‘Virus’ and ‘Virco’).

Titov is involved Hotfile’s copyright and DMCA-related affairs:
•

SUF 22(d)(ii) (Titov retained, and continues to manage, Hotfile’s appointed DMCA
agent in the United States;

•

6

•
•

Evidentiary Objection: Citation to

deposition transcript is hearsay not falling within

an exception. See Opp. SUF 6 supra.
12. Mr. Titov did not pay Hotfile’s uploading users.

UNDISPUTED, BUT IMMATERIAL AS FRAMED.
It is not disputed that Titov did not use his personal funds to pay Hotfile’s uploading users,
is immaterial – Titov’s responsibilities over the affiliate program in his role as
conclusively show
for infringing uploads.
Evidence Controverting Titov’s Characterization:
•

SUF 21(b)(ii)

•

SUF 21(b)(i);

•

SUF 22(b)

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13. The termination of Webazilla and founding of Lemuria were unrelated to
Webazilla receiving a subpoena.

DISPUTED, BUT IMMATERIAL AS FRAMED.
DISPUTED insofar as a finder of fact could decline to credit Titov’s after-the-fact explanation
for his creation of Lemuria, and draw the inference that Lemuria was created in response to one
of Hotfile’s previous ISPs receiving a subpoena to identify the operators of Hotfile, and another
one of
IMMATERIAL insofar as Titov’s participation in Hotfile’s
infringing conduct is established by the role Lemuria plays today (shielding Hotfile from the
effect of copyright owner complaints to its ISP).
Evidence Controverting Titov’s Characterization:
•

SUF 21(c)(iii) (Titov does not deny that Hotfile interposed Lemuria

•

Yeh Ex. 78 (prior to formation of Lemuria, subpoena received by Webazilla, one of
Hotfile’s previous ISPs, demanding identification of Hotfile’s operators).

•

•

Yeh Ex. 1 (Titov dep.) at 122:18-25; 126:12-23 (Lemuria serves no independent business
purpose, as its only customer besides Hotfile receives services free of charge).

14. Mr. Titov is a Russian citizen who has resided in Bulgaria for the last two decades.

UNDISPUTED FOR PURPOSES OF THIS MOTION, BUT IMMATERIAL.
Personal jurisdiction defense has been waived, and Plaintiffs did not continue to pursue
discovery on personal jurisdiction due to waiver.

8

15. Mr. Titov's wife, son, mother, and brother all reside in Bulgaria, where Mr. Titov owns a
home and a car and pays taxes.
UNDISPUTED FOR PURPOSES OF THIS MOTION, BUT IMMATERIAL.
Personal jurisdiction defense has been waived, and Plaintiffs did not continue to pursue
discovery on personal jurisdiction due to waiver.
16. Mr. Titov has not performed work in Florida on a continuous or systematic basis.
DISPUTED, BUT IMMATERIAL.
Personal jurisdiction defense has been waived, and Plaintiffs did not continue to pursue
discovery on personal jurisdiction due to waiver. Titov in any event testified that he worked
specifically for Hotfile from Florida.
Evidence Controverting Titov’s Characterization:
Titov worked for Hotfile from Lemuria’s Florida office. Yeh Ex. 128 (Titov dep.) at 64:6-65:17
(“I don’t know, but I don’t believe anybody worked, except me, from this office for Hotfile”)
(emphasis added).
17. Mr. Titov's visits to Florida have been in his capacity as a corporate officer or
director of Lemuria.
DISPUTED, BUT IMMATERIAL.
Personal jurisdiction defense has been waived, and Plaintiffs did not continue to pursue
discovery on personal jurisdiction due to waiver. Titov in any event testified that he worked
specifically for Hotfile from Florida.
Evidence Controverting Titov’s Characterization:
Titov worked for Hotfile from Lemuria’s Florida office. Yeh Ex. 128 (Titov dep.) at 64:6-65:17
(“I don’t know, but I don’t believe anybody worked, except me, from this office for Hotfile”)
(emphasis added).

9

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

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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’ Counterstatement of Material Facts in Opposition to Defendant Anton
Titov’s Motion for Summary Judgment

By: /s/ ____________________
Karen L. Stetson

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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

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