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

Filing 400

RESPONSE in Opposition re 318 MOTION for Partial Summary Judgment PUBLICLY FILED VERSION >PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT HOTFILE CORPORATION'S MOTION FOR PARTIL SUMMARY JUDGMENT BASED ON DIGITAL MILLENIUM COPYRIGHT ACT (AND ATTACHED DECLARATION OF JENNIFER V. YEH IN OPPOSITION TO HOTFILE CORP.'S MPSJ AND TITOV'S MSJ) (PUBLIC REDACTED VERSION) filed by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc.. (Attachments: # 1 Exhibit Exhibits 125-129 to Declaration of Jennifer Yeh, # 2 Exhibit Exhibits 130-134 to Declaration of Jennifer Yeh, # 3 Exhibit Exhibits 135-139 to Declaration of Jennifer Yeh, # 4 Exhibit 140 to J. Yeh Declaration, # 5 Exhibit 141 to J. Yeh Declaration, # 6 Exhibit 142 to J. Yeh Declaration, # 7 Exhibit 143 to J. Yeh Declaration, # 8 Exhibit 144 to J. Yeh Declaration, # 9 Exhibit 145 to J. Yeh Declaration, # 10 Exhibit 146 to J. Yeh Declaration, # 11 Exhibit 147 to J. Yeh Declaration, # 12 Exhibit 148 to J. Yeh Declaration, # 13 Exhibit 149 to J. Yeh Declaration, # 14 Exhibit 150 to J. Yeh Declaration)(Stetson, Karen)

Yeh Exhibit 135

REDACTED

Yeh Exhibit 136

REDACTED

Yeh Exhibit 137

REDACTED

Yeh Exhibit 138

REDACTED

Yeh Exhibit 139

Case 1:11-cv-20427-KMW Document 151 Entered on FLSD Docket 09/22/2011 Page 1 of 5

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.
/

JOINT MOTION AND MEMORANDUM OF LAW OF THE PARTIES FOR
VOLUNTARY DISMISSAL OF SECOND AND THIRD COUNTS OF HOTFILE’S
FIRST AMENDED COUNTERCLAIM AND FOR AMENDMENT OF FIRST COUNT
In order to avoid unnecessary motion practice, Plaintiff Warner Bros. Entertainment Inc.
(“Warner”) and Defendant Hotfile Corp. (“Hotfile”) jointly move pursuant to Federal Rule of
Civil Procedure 41 for voluntary dismissal without prejudice of the Second Count (“Intentional
Interference With a Contractual of Business Relationship”) and Third Count (“Negligence”) of
Defendant Hotfile Corp.’s First Amended Counterclaim (collectively, the “state law

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CASE NO. 11-20427-WILLIAMS-TURNOFF

counterclaims”), which is contained in Hotfile’s First Amended Answer, Affirmative Defenses
and Counterclaim [D.E. #144]. Warner and Hotfile further stipulate that Hotfile may amend the
First Amended Counterclaim with respect to the First Count (“Violation of the DMCA, 17
U.S.C. § 512(f)”) (the “DMCA Counterclaim”), and that Warner’s time to answer the First Count
shall be extended, as described below.
Warner has informed Hotfile that it intends to move to dismiss the state law
counterclaims as preempted by the Copyright Act, and that, for purposes of this action, Warner
will not dispute that the Digital Millennium Copyright Act, 17 U.S.C. § 512 et seq. (“DMCA”)
governs the conduct alleged in the First Amended Counterclaim. Warner has further informed
Hotfile that it intends to move to strike in part and dismiss in part the allegations underlying
Hotfile’s DMCA Counterclaim under Federal Rule of Civil Procedure 9(b) insofar as the DMCA
Counterclaim alleges misrepresentations by Warner other than those specifically identified in the
counterclaim itself. To avoid unnecessary motion practice on these issues, for purposes of this
litigation only, Warner and Hotfile both agree, by and through their undersigned counsel, to be
bound by the following stipulations:
STIPULATION AND MEMORANDUM OF LAW
1. Warner has used a tool made available by Hotfile, called a Special Rightsholder
Account (“SRA”), to notify Hotfile of material on the Hotfile system that Warner
claims infringes its copyrights.
2. Warner’s notifications by means of Hotfile’s SRA are (and have the effect of)
notifications of claimed infringement to Hotfile’s designated agent under 17
U.S.C. § 512(c)(3)(A), and are therefore subject to 17 U.S.C. § 512(f).
3. Hotfile’s state law counterclaims set forth in the Second Count (“Intentional
Interference With a Contractual of Business Relationship”) and Third Count
(“Negligence”) of Defendant Hotfile Corp.’s First Amended Counterclaim are
hereby voluntarily dismissed by Hotfile without prejudice. This Court has

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CASE NO. 11-20427-WILLIAMS-TURNOFF

authority pursuant to Rule 41 of the Federal Rules of Civil Procedure to grant the
dismissal of Hotfile’s state law counterclaims.
4. Hotfile shall file, and Warner consents to Hotfile’s filing of, a Second Amended
Counterclaim amending Hotfile’s DMCA Counterclaim. The Second Amended
Counterclaim will specify each use of the SRA by Warner, including the date and
the specific URL taken down as a result, that Hotfile alleges to be a violation by
Warner of Section 512(f) of the DMCA. The files so identified in the exhibits to
Hotfile’s Second Amended Counterclaim shall constitute a definitive list of
deleted files that will make up Hotfile’s First Count under Section 512(f) of the
DMCA. In the Second Amended Counterclaim, the First Count shall expressly
state that the files so identified in the exhibits constitute such a “definitive list.”
Hotfile shall not make further substantive amendments to the First Amended
Counterclaim. Hotfile may file such Second Amended Counterclaim no later than
fourteen days after the completion of one day of Hotfile’s Rule 30(b)(6)
deposition of Warner.
5. Warner shall answer Hotfile’s Second Amended Counterclaim and will not seek
dismissal pursuant to Rule 12(b)(6) or move to strike. Warner’s time to answer
shall be extended until ten calendar days after the date on which Hotfile files its
Second Amended Counterclaim described in Paragraph 4 above; Warner shall not
be required to file a separate answer to the First Amended Counterclaim before
that date.
CONCLUSION
On the basis of the foregoing, the Parties respectfully request that the Court grant their
Joint Motion for Voluntary Dismissal of Second and Third Counts of Hotfile’s First Amended
Counterclaim and for Amendment of First Count. A proposed Order is attached hereto as
Exhibit “A.”

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Case 1:11-cv-20427-KMW Document 151 Entered on FLSD Docket 09/22/2011 Page 4 of 5
CASE NO. 11-20427-WILLIAMS-TURNOFF
Dated September 22, 2011

Respectfully submitted,

By:s/ Steven B. Fabrizio
Steven B. Fabrizio, Esq. (pro hac vice)
Email: [e-mail]
Duane C. Pozza, Esq. (pro hac vice)
Email: [e-mail]
Luke C. Platzer, Esq. (pro hac vice)
Email: [e-mail]
JENNER AND BLOCK, LLP
1099 New York Avenue, N.W.
Suite 900
Washington, D.C. 20001
Telephone: [phone]
Telecopy: 202.639.6066

By:s/ Roderick M. Thompson
Roderick M. Thompson (admitted pro hac vice)
Email: [e-mail]
Andrew Leibnitz (admitted pro hac vice)
Email: [e-mail]
Anthony P. Schoenberg (admitted pro hac vice)
Email: [e-mail]
Deepak Gupta (admitted pro hac vice)
Email: [e-mail]
Janel Thamkul (admitted pro hac vice)
Email: [e-mail]
FARELLA BRAUN + MARTEL LLP
235 Montgomery St.
San Francisco, CA 94104
Telephone: [phone]
Telecopy: 415.954.4480

By: s/ Karen L. Stetson
Karen L. Stetson, Esq.
Florida Bar No. 742937
Email: [e-mail]
GRAY-ROBINSON, P.A.
1211 Brickell Avenue
Suite 1600
Miami, FL 33131
Telephone: [phone]
Telecopy: 305.416.6887

By: Janet T. Munn
Janet T. Munn
Florida Bar No. 501281
Email: [e-mail]
RASCO KLOCK
283 Catalonia Avenue, Suite 200
Coral Gables, Fl 33134
Telephone: [phone]
Telecopy: 305.476.7102

And

And

Karen R. Thorland, Esq. (pro hac vice)
Email: [e-mail]
15301 Ventura Boulevard
Building E
Sherman Oaks, CA 91403
Telephone: [phone]
Telecopy: 818.285.4403

Valentin Gurvits (Admitted pro hac vice)
Email: [e-mail]
BOSTON LAW GROUP
825 Beacon Street, Suite 20
Newton Center, MA 02459
Telephone: [phone]
Telecopy: 617.928.1802

Counsel for Plaintiffs

Counsel for Defendants Hotfile Corp. and Anton Titov

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CASE NO. 11-20427-WILLIAMS-TURNOFF
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document was served
this 22nd day of September, 2011, on all counsel of record or pro se parties identified below
either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other
authorized manner for those counsel or parties who are not authorized to receive electronically
Notices of Electronic Filing.
By: s/Janet T. Munn
Janet T. Munn
Steven B. Fabrizio (Pro Hac Vice )
Email: [e-mail]
Duane C. Pozza (Pro Hac Vice )
Email: [e-mail]
Luke C. Platzer (Pro Hac Vice )
Email: [e-mail]
JENNER AND BLOCK, LLP
1099 New York Ave, N.W.
Suite 900
Washington, DC 20001
Telephone: [phone]
Telecopy: 202.639.6066
Karen L. Stetson, Fla. Bar No.: 742937
Email: [e-mail]
GRAY-ROBINSON, P.A.
1211 Brickell Avenue
Suite 1600
Miami, FL 33131
Telephone: [phone]
Telecopy: 305.416.6887
Karen R. Thorland, Esq. (pro hac vice)
Email: [e-mail]
15301 Ventura Boulevard
Building E
Sherman Oaks, CA 91403
Telephone: [phone]
Telecopy: 818.285.4403

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