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

Filing 401

REPLY to Response to Motion re 355 MOTION for Leave to File Amicus Curiae Brief in Support of Defendant Hotfile Corp filed by Google Inc.. (Moscowitz, Jane)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 11-20427-Civ (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.

/

HOTFILE CORP.,
Counterplaintiff,
vs.
WARNER BROS. ENTERTAINMENT INC.,
Counterdefendant.

/

REPLY OF GOOGLE INC. TO PLAINTIFFS’ OPPOSITION TO GOOGLE’S MOTION
FOR LEAVE TO FILE AMICUS CURIAE BRIEF
Pursuant to Local Rule 7.1(c), Google Inc. (“Google”) submits this Reply to Plaintiffs’
Opposition to Google’s motion for leave to file an amicus curiae brief in this case. (Docket No.
372). Google’s proposed amicus brief seeks to aid the Court by addressing important issues of
law and policy not addressed by the parties in their summary judgment pleadings. Google’s
submission does just what amicus briefs are supposed to do, and Plaintiffs offer no valid reason
for rejecting it out of hand. Therefore, as explained below and in Google’s opening motion,
Google respectfully requests that the Court allow the filing of Google’s proposed brief.
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ARGUMENT
For all the rhetoric in Plaintiffs’ Opposition, they fail to respond to or rebut the points
made in Google’s original motion for leave. Instead, Plaintiffs make a variety of arguments that
ignore the actual brief that Google proposes to file and that are at odds with the standards for
allowing amicus participation in cases of broad public importance like this one.
Trumpeting Google’s (necessarily) limited knowledge of the factual record (Pls.’ Mot.
in Opp. at 2), Plaintiffs say that “Hotfile’s counsel is perfectly capable of presenting all the
arguments relevant to summary judgment.” (Id. at 3). But that misunderstands the role of an
amicus and the purpose of Google’s proposed brief. As then-Judge Alito has explained:
Even when a party is very well represented, an amicus may provide important
assistance to the court. “Some amicus briefs collect background or factual
references that merit judicial notice. Some friends of the court are entities with
particular expertise not possessed by any party to the case. Others argue points
deemed too far-reaching for emphasis by a party intent on winning a particular
case. Still others explain the impact a potential holding might have on an industry
or other group.”
Neonatology Assocs., P.A. v. C.I.R., 293 F.3d 128, 132 (3d Cir. 2002) (quoting Luther T.
Munford, When Does the Curiae Need An Amicus?, 1 J.App. Prac. & Process 279 (1999)). That
is exactly what Google proposes to do. As spelled out in the brief itself, Google’s amicus brief
offers a broader perspective on the legal and policy issues raised by this case. Google is an
entity with experience not possessed by any of the parties, and it seeks to explain the impact of a
potential holding to an industry in a way that the parties have not even attempted to do.
Google’s lack of access to the full summary-judgment record underscores that it is not
acting (and could not act) as a surrogate for Defendants, and is not simply duplicating their
arguments. Indeed, Google’s brief expressly disclaims any interest in persuading the court to
rule one way or another on the parties’ cross-motions for summary judgment. The brief instead
tries to highlight the importance of the DMCA safe harbors and the broad consensus that has
developed among courts called upon to apply those provisions. To that end, Google makes any
number of arguments about the DMCA’s background, purpose, and proper interpretation that are
nowhere to be found in any of the parties’ submissions to this Court. In short, far from acting as
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a partisan for Defendants or in service of its own narrow self-interest (Pls.’ Mot. in Opp. at 1-2),
Google’s aim in seeking to participate in this case is to underscore the importance of the Court’s
decision to a wide array of legitimate and socially beneficial Internet services, and to the overall
climate of free expression online. Cf. Miller-Wohl Co., Inc. v. Comm’r of Labor and Indus.,
State of Mont., 694 F.2d 203, 204 (9th Cir. 1982) (describing “the classic role of amicus curiae”
as “assisting in a case of general public interest, supplementing the efforts of counsel, and
drawing the court’s attention to law that escaped consideration”).
Google’s presentation of those points is clearly distinct from the parties’ more factintensive and self-focused summary judgment pleadings. To the extent that Google’s legal
arguments at times resemble those made by Defendants (Pls.’ Mot. in Opp. at 2), that is indeed
“unsurprising” (id.), as in those instances both Google and Defendants have faithfully described
the state of the law. If plaintiffs are somehow “prejudiced” (id.) by this consistency, that is
attributable not to some conspiracy between Google and Hotfile,1 but instead to the fact that
Plaintiffs’ legal positions are at odds with the DMCA and its case-law. It is telling in that regard
that Plaintiffs’ Opposition does nothing to refute the actual legal and policy arguments in
Google’s proposed brief. Rather than oppose Google’s arguments on the merits, Plaintiffs try to
silence Google. But the fact that Plaintiffs may not like what Google has to say, or that Google’s
analysis may make it harder for Plaintiffs to prevail, is no reason for this Court to shut its ears.
Plaintiffs assert that “Google is hardly a dispassionate party on these issues” (Pls.’ Mot.
in Opp. at 1), but being dispassionate is not prerequisite to filing an amicus brief. The
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Plaintiffs point out that some of the lawyers representing Defendants happen to
represent Google in two cases pending in the Eastern District of Texas, but their characterization
of those cases as “infringement-related” (Pls.’ Mot. in Opp. at 2) glosses over the fact that those
are both patent-infringement cases, which have nothing to do with copyright law, the DMCA, or
any of the issues raised in this case. See E-Micro Corp. v. Google Inc., No. 11-cv-465-LED
(E.D. Tex.); Purple Leaf LLC v. Google Inc., No. 11-cv-355-LED (E.D. Tex.). That
representation has no bearing on the propriety of Google filing an amicus brief here. Equally
baseless is Plaintiffs’ suggestion that Defendants’ counsel somehow ghostwrote Google’s brief
in an effort to circumvent the Court’s page limitations. The first time Defendants or their
lawyers ever saw Google’s amicus brief was when it was filed.
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description of an amicus curiae as an “impartial individual” “became outdated long ago.”
Neonatology Assocs., 293 F.3d at 131 (Alito, J.) (observing that the “argument that an amicus
must be ‘impartial’ is difficult to square with th[e] requirement” of FRAP 29 that an amicus must
have an “interest” in the case); see also Funbus Sys., Inc. v. Cal. Pub. Utils. Comm’n, 801 F.2d
1120, 1125 (9th Cir. 1986) (“[T]here is no rule that amici must be totally disinterested.”).
Plaintiffs and their entertainment-industry colleagues know that well, as they are passionately
interested in these issues, yet they often ask for and receive permission to participate as amici
curiae—including in DMCA cases (like Viacom v. YouTube) in which Google is a party.2 For
the movie-studio Plaintiffs to argue here that Google should not be permitted to serve as an
amicus because it is not “dispassionate” is inconsistent to say the least. It also ignores that
Google’s amicus briefs are routinely accepted by courts across the country.3
Plaintiffs note that one court in the Southern District of New York recently declined to
accept Google’s proposed amicus brief in a copyright case. (Pls.’ Mot. in Opp. at 3). That is of
little moment here. The Southern District of New York has extensive experience in similar
2

See Google Mot. for Leave at 3; see also, e.g., Br. of Amici Curiae the Recording
Industry Association of America et al. in Support of Plaintiffs-Appellants’ Appeal Seeking
Reversal of the District Court’s Orders, UMG Recordings, Inc. v. Veoh Networks, Inc., No. 0956777 (9th Cir. Apr. 27, 2010) (amicus brief filed by NBC Universal, Inc.); Br. of Amicus
Curiae Motion Picture Association of America, Inc. in Support of Plaintiff-Appellee, Salinger v.
Colting, No. 09-2878-cv (2d Cir. Aug. 22, 2009) (entertainment industry association amicus
brief addressing scope of fair-use defense).
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See, e.g., Br. for Google Inc. as Amicus Curiae in Support of Petitioners, Golan v.
Holder, No. 10-545 (S. Ct. June 21, 2011); Br. of Amicus Curiae Google Inc. in Support of
Petitioners, Global-Tech Appliances, Inc. v. SEB S.A., No. 10-6 (S. Ct. Dec. 6, 2010); Br. of
eBay Inc., et al. as Amici Curiae in Support of Petitioner, Costco Wholesale Corp. v. Omega S.A.,
No. 08-1423 (S. Ct. June 17, 2009) (Google on brief); Br. of Amicus Curiae Google Inc. in
Support of Appellees Center for Intercultural Organizing and Kayse Jama, Righthaven LLC v.
Ctr. for Intercultural Organizing, No. 11-16358 (9th Cir. Jan. 13, 2012); Br. of Amici Curiae
Google Inc. and Facebook, Inc. in Support of Neither Party, Flava Works, Inc. v. Gunter, No. 113190 (7th Cir. Nov. 30, 2011); Br. of Amicus Curiae Google Inc. in Support of Neither Party,
Cariou v. Prince, No. 11-1197-cv (2d Cir. Nov. 2, 2011); Br. of Google Inc. as Amicus Curiae in
Support of Affirmance, Columbia Pictures Indus., Inc. v. Fung, No. 10-55946 (9th Cir. Feb. 8,
2011); Br. of Amicus Curiae Google Inc. in Support of Defendants, Capitol Records, Inc. v.
MP3tunes, LLC, No. 07-cv-9931-WHP-FM (S.D.N.Y. Jan. 3, 2011).
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cases. See, e.g., Wolk v. Kodak Imaging Network, Inc., __ F. Supp. 2d __, 2012 WL 11270
(S.D.N.Y. Jan. 3, 2012); Capitol Records, Inc v. MP3tunes, LLC, ___ F. Supp. 2d ___, 2011
WL 5104616 (S.D.N.Y. Oct. 25, 2011); Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514
(S.D.N.Y. 2010). By contrast, DMCA safe harbor issues are relatively novel in this Court and
in the Eleventh Circuit. That is why Google’s proposed brief is particularly appropriate in this
case: it provides guidance from a perspective not offered by the parties to aid the Court as it
considers legal issues that, while perhaps unfamiliar, are crucial to the continued success of
open communication and innovation on the Internet.
CONCLUSION
For these reasons, and those given in Google’s opening motion, Google respectfully
requests that the Court allow the filing of Google’s proposed amicus curiae brief.
Dated: March 21, 2012

Respectfully submitted,
/s/ Jane W. Moscowitz
JANE W. MOSCOWITZ
Fla. Bar No. 586498
[e-mail]
MOSCOWITZ & MOSCOWITZ, P.A.
1111 Brickell Ave. # 2050
Miami, FL 33131
Telephone: [phone]
Facsimile : [phone]
Counsel for Amicus Curiae Google Inc.

Of Counsel
David H. Kramer
[e-mail]
Maura L. Rees
[e-mail]
WILSON SONSINI GOODRICH & ROSATI, P.C.
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: [phone]
Facsimile: [phone]
Brian M. Willen (pro hac vice pending)
[e-mail]
5

WILSON SONSINI GOODRICH & ROSATI, P.C.
1301 Avenue of the Americas, 40th Floor
New York, NY 10019
Telephone: [phone]
Facsimile: [phone]

6

CERTIFICATE OF SERVICE
Disney Enterprises, Inc., et al. v. Hotfile Corp., et al.
Case No. 11-20427-Civ (WILLIAMS/TURNOFF)
I HEREBY CERTIFY that a true and correct copy of the foregoing REPLY OF
GOOGLE INC. TO PLAINTIFFS’ OPPOSITION TO GOOGLE’S MOTION FOR LEAVE TO
FILE AMICUS CURIAE BRIEF was served by the Court’s ECF system on March 21, 2012, on
all counsel or parties of record on the service list.
Dated: March 21, 2012
/s/ Jane W. Moscowitz
JANE W. MOSCOWITZ
Fla. Bar No. 586498
[e-mail]
MOSCOWITZ & MOSCOWITZ, P.A.
1111 Brickell Ave. # 2050
Miami, FL 33131
Telephone: [phone]
Facsimile : [phone]
Counsel for Amicus Curiae Google Inc.

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Disney Enterprises, Inc., et al. v. Hotfile Corp., et al.
Case No. 11-20427-Civ (WILLIAMS/TURNOFF)
SERVICE LIST
Steven B. Fabrizio
Email: [e-mail]
Luke C. Platzer
Email: [e-mail]
Duane C. Pozza
Email: [e-mail]
Jennifer V. Yeh
Email: [e-mail]
JENNER & BLOCK
1099 New York Avenue, N.W., Suite 900
Suite 900
Washington, DC
Tel.: [phone]

Anthony P. Schoenberg
Email: [e-mail]
Deepak Gupta
Email: [e-mail]
Janel Thamkul
Email: [e-mail]
N. Andrew Leibnitz
Email: [e-mail]
Roderick M. Thompson
Email: [e-mail]
FARELLA BRAUN & MARTEL, LLP
235 Montgomery Street
17th Floor
San Francisco, CA
Tel.: [phone]

Karen R. Thorland
Email: [e-mail]
Senior Content Protection Counsel
MOTION PICTURE ASSOCIATION OF
AMERICA, INC.
15301 Ventura Boulevard, Building E
Sherman Oaks, CA
Tel.: [phone]

Valentin Gurvits
Email: [e-mail]
BOSTON LAW GROUP, PC
825 Beacon Street, Suite 20
Newton Centre, MA 02459
Tel.: [phone]

Karen Linda Stetson
Email: [e-mail]
GRAYROBINSON P.A.
1221 Brickell Avenue, Suite 1650
Miami, FL 33131
Tel.: [phone]
Fax: [phone]

Janet T. Munn
Email: [e-mail]
RASCO KLOCK REININGER PEREZ
ESQUENAZI VIGIL & NIETO
283 Catalonia Ave., Suite 200
Coral Gables, FL 33134
Tel.: [phone]
Fax: [phone]

Attorneys for Plaintiffs/Counterdefendants
Disney Enterprises, Inc., Twentieth Century Fox
Film Corp., Universal City Studios Productions
LLLP, Columbia Pictures Industries, Inc.,
and Warner Bros. Entertainment Inc.

Attorneys for Defendants/Counterplaintiffs
Hotfile Corp., Anton Titov, Does 1-10,
and Lemuria Communications, Inc.

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