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

Filing 424

NOTICE by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc. re 423 Plaintiff's MOTION to Strike >PLAINTIFFS' MOTION AND MEMORANDUM OF LAW TO STRIKE PORTIONS OF DECLARATIONS OF PROFESSOR JAMES BOYLE, DR. ANDREW CROMARTY AND ANTON TIVO IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTIO >NOTICE OF FILING PUBLIC REDACTED VERSION OF DECLARATION OF JENNIFER V. YEH IN SUPPORTT OF PLAINTIFFS' MOTION TO STRIKE< (Attachments: # 1 Affidavit Declaration of Jennifer V. Yeh in Support of Plaintiffs' Motion to Strike, # 2 Exhibit 1 to Declaration of J. Yeh, # 3 Exhibit 2 to Declaration of J. Yeh, # 4 Exhibit 3 to Declaration of J. Yeh, # 5 Exhibit 4 to Declaration of J. Yeh)(Stetson, Karen)

SCOTT A. ZEBRAK, ESQUIRE - 12/20/2011

Page 1
1

UNITED STATES DISTRICT COURT

2

SOUTHERN DISTRICT OF FLORIDA

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4

------------------------------------x
DISNEY ENTERPRISES, INC., et al.,

5
6
7

Plaintiffs,

10

) 11-20427-

HOTFILE CORP., et al.,

13

) TURNOFF

------------------------------------x
HOTFILE CORP.,

)
Counterclaimant,

)

v.

)

WARNER BROS. ENTERTAINMENT, INC.,

14
15

) WILLIAMS/

Defendants.

11
12

) Case No.

v.

8
9

)

Counterdefendant.

)
)

------------------------------------x

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17

VIDEOTAPED DEPOSITION OF SCOTT A. ZEBRAK, ESQUIRE

18

Washington, D.C.

19

Tuesday, December 20, 2011

20

9:43 a.m.

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22
23

Job No.:

24

Pages 1 - 370

25

Reported By:

800-869-9132

439702

Joan V. Cain
Merrill Corporation - San Francisco

www.merrillcorp.com/law

SCOTT A. ZEBRAK, ESQUIRE - 12/20/2011

Page 2
1
2

Videotaped Deposition of SCOTT A. ZEBRAK,
ESQUIRE, held at the law offices of:

3
4

STRADLEY RONON STEVENS & YOUNG, LLP

5

Suite 500

6

1250 Connecticut Avenue, Northwest

7

Washington, D.C. 20036

8

[phone]

9
10

Pursuant to Notice, before Joan V. Cain, Court

11

Reporter and Notary Public in and for the District of

12

Columbia.

13
14
15
16
17
18
19
20
21
22
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800-869-9132

Merrill Corporation - San Francisco

www.merrillcorp.com/law

SCOTT A. ZEBRAK, ESQUIRE - 12/20/2011

Page 3
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A P P E A R A N C E S

2
3

ON BEHALF OF PLAINTIFFS:

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STEVEN B. FABRIZIO, ESQUIRE

5

JENNER & BLOCK, LLP

6

Suite 900

7

1099 New York Avenue, Northwest

8

Washington, D.C. 20001

9

Telephone:

10

E-mail:

[phone]

[e-mail]

11
12

ON BEHALF OF DEFENDANTS AND COUNTERCLAIMANT:

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ANDREW LEIBNITZ, ESQUIRE

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FARELLA BRAUN & MARTEL, LLP

15

Russ Building

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235 Montgomery Street

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San Francisco, California 94104

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Telephone:

19

E-mail:

[phone]

[e-mail]

20
21
22

ALSO PRESENT:
Terry Michael King, Videographer

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24
25

800-869-9132

Merrill Corporation - San Francisco

www.merrillcorp.com/law

SCOTT A. ZEBRAK, ESQUIRE - 12/20/2011

Page 128
12:23:08

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For purposes of my report, the content I'm

12:23:11

2

dealing with, you know, one thing I attempted to do

12:23:14

3

was determine was this some fan-based or user-based

12:23:19

4

material or the original work as created and

12:23:24

5

commercialized by the content provider.

12:23:27

6

determine that it was in that latter category of, you

12:23:30

7

know, the work created by the copyright owner and

12:23:33

8

being commercialized by the copyright owner, it would

12:23:36

9

have ended up being in an unknowable category, or if

12:23:40

10

12:23:45

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12:23:47

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but also applied it to -- to the work that I've done

12:23:49

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here.

12:23:50

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BY MR. LEIBNITZ:

12:23:50

15

12:23:52

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12:23:54

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A

Not that I'm aware of.

12:24:00

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Q

Do you hold a legal degree from any foreign

12:24:03

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12:24:03

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A

No, I do not.

12:24:04

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Q

Do you have any specialized training,

12:24:05

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knowledge, or experience in the law of any foreign

12:24:09

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jurisdiction?

12:24:09

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800-869-9132

If I couldn't

it was noninfringing, in a noninfringing category.
But -- so I think I answered your question

Q

Are you admitted to practice law in any

foreign jurisdictions?

jurisdiction?

MR. FABRIZIO:

Objection, asked and

Merrill Corporation - San Francisco

www.merrillcorp.com/law

SCOTT A. ZEBRAK, ESQUIRE - 12/20/2011

Page 168
14:18:31

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it's the third column.

14:18:39

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URL.

14:18:41

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would -- you know, it's in the column next to that.

14:18:43

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BY MR. LEIBNITZ:

14:18:43

5

14:18:46

6

given other than the content file, if it existed,

14:18:56

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and --

14:18:56

8

A

14:18:57

9

Q

14:19:02

12

14:19:02

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Hotfile files.

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of data about the name of the file or consisting of

14:19:07

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the name of the file along with the Hotfile URL.

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would have that information along with -- in certain

14:19:14

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instances I would have information about takedown

14:19:16

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notices or special right holder takedowns, and then we

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actively went about viewing and doing searching and

14:19:29

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investigation based on all this information which led

14:19:31

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us to other information that we would -- I say we --

14:19:34

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folks would help me gather this information, but then

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I then considered this information as I attempted to

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reach my determination.

14:19:40

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BY MR. LEIBNITZ:

800-869-9132

It would say file and then

You know, that would be the file name, and URL

Q

Okay.

So was there anything else you were

The URL?

THE WITNESS:

So I would have the, you know,

I would have the name of -- the file

Merrill Corporation - San Francisco

So I

www.merrillcorp.com/law

SCOTT A. ZEBRAK, ESQUIRE - 12/20/2011

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14:19:42

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14:19:44

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14:19:46

3

14:19:48

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14:19:51

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14:19:52

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variety of things.

14:19:55

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haven't -- we haven't really sort of completely walked

14:19:56

8

through the process yet today.

14:19:59

9

was -- it was an investigation.

14:20:00

10

information made available to us, being the content

14:20:06

11

files, the metadata about -- that included the name of

14:20:10

12

the file as long -- as well as the Hotfile URL.

14:20:13

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had information about takedown notices.

14:20:16

14

14:20:22

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searching of the link and of the file name and -- and

14:20:25

16

do other information to identify what the file is,

14:20:28

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identify how the copyright owner or its agent were

14:20:30

18

commercializing the work, review associated terms of

14:20:33

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use, licensing arrangements.

14:20:37

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the term "quilt" before, but there's a whole range,

14:20:40

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whole spectrum of information that we attempted to

14:20:42

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build and consider.

14:20:43

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BY MR. LEIBNITZ:

14:20:43

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Q

And that's the web search reflected in the

notes and elsewhere in Exhibit 101?
MR. FABRIZIO:

Objection, mischaracterizes

his testimony.
THE WITNESS:

It -- it -- it consists of a

I'm happy to walk through.

We

But, you know, it
We started with the

We

And then we actively review the files, do

Q

It's a whole -- I used

In terms of what you were given, though,

14:20:45

800-869-9132

Merrill Corporation - San Francisco

www.merrillcorp.com/law

SCOTT A. ZEBRAK, ESQUIRE - 12/20/2011

Page 206
15:17:51

1

certain examples.

15:17:55

2

be selling a work for download through iTunes or -- or

15:18:04

3

purchase of a CD in a store, and on their web site

15:18:07

4

they may allow individuals to stream and listen to a

15:18:13

5

copy of it.

15:18:17

6

that -- that I've seen.

15:18:19

7

of a light temporary version of video game software

15:18:26

8

that's then used for someone to see a lighter version

15:18:32

9

of the work that they then choose to purchase at a

15:18:35

10

15:18:38

11

15:18:57

12

of course I'm not doing this in the abstract.

15:18:59

13

I've, you know, attempted for these files and I've

15:19:04

14

gone file by file looking to see where and how and

15:19:07

15

under what terms it was being commercialized.

15:19:14

16

15:19:15

17

they didn't authorize the free and unrestricted

15:19:18

18

distribution on Hotfile of these files?

15:19:21

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15:19:24

20

15:19:25

21

Q

What did you do?

15:19:29

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A

We asked the plaintiffs to confirm for us,

15:19:32

23

once I identified what the works were, whether they've

15:19:35

24

authorized those works to be distributed to the

For example, record companies may

That's the sort of promotional activity
I've given the example before

The -- you know, that's my experience.

Q

A

And
I've --

How did you confirm with plaintiffs that

You're asking about the logistics of how we

confirmed with them?

15:19:37

800-869-9132

Merrill Corporation - San Francisco

www.merrillcorp.com/law

SCOTT A. ZEBRAK, ESQUIRE - 12/20/2011

Page 277
17:13:34

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question for not allowing the witness to see the

17:13:36
17:13:44

3

17:13:45

4

went through included reviewing the content file to

17:13:50

5

identify what was there, perhaps to identify the

17:13:55

6

artist to see what song or songs would have been there

17:13:58

7

if this is a music album including, you know, other

17:14:03

8

promotional material.

17:14:07

9

cover.

17:14:11

10

see.

17:14:16

11

used to compress a whole bunch of files often.

17:14:17

12

17:14:19

13

figure out what the work was, and then I would do some

17:14:21

14

research to identify what -- you know, who the

17:14:24

15

copyright owner or its licensee was.

17:14:28

16

record industry that would be the record label, and

17:14:35

17

then I would look to see how the work was being

17:14:37

18

commercialized, and if it was a professional artist

17:14:40

19

that was commercializing its work in a way that that

17:14:50

20

business model would be -- you know, really where the

17:14:53

21

antithesis of that is free and unrestricted

17:14:58

22

distribution of its music through the internet for --

17:15:01

23

for viral copy and distribution, that -- that would

17:15:03

24

form the basis of my highly likely infringing

17:15:06

25

designation and -- and the other legwork would have

800-869-9132

THE WITNESS:

Again, you know, the process I

I might have even seen an album

You know, that's the type of thing I might
Especially in a .rar file, which is a -- a tool

So I would look at the file, attempt to

Merrill Corporation - San Francisco

Typically in the

www.merrillcorp.com/law

SCOTT A. ZEBRAK, ESQUIRE - 12/20/2011

Page 278
17:15:08

1

included seeing, for example, that it was being -- it

17:15:11

2

was an assumption that it was being distributed, but

17:15:13

3

that was borne out here presumably by seeing the URL

17:15:16

4

in the Hotfile search -- I mean, reference in the

17:15:24

5

notes section along with looking at other web pages

17:15:26

6

about the artist and where the web -- you know, where

17:15:28

7

the URL may have been posted, and -- and of course the

17:15:31

8

label.

800-869-9132

Merrill Corporation - San Francisco

www.merrillcorp.com/law

SCOTT A. ZEBRAK, ESQUIRE - 12/20/2011

Page 370
1

CERTIFICATE OF SHORTHAND REPORTER-NOTARY PUBLIC

2

I, Joan V. Cain, Court Reporter, the officer

3

before whom the foregoing deposition was taken, do

4

hereby certify that the foregoing transcript is a true

5

and correct record of the testimony given; that said

6

testimony was taken by me stenographically and

7

thereafter reduced to typewriting under my direction

8

and that I am neither counsel for, related to, nor

9

employed by any of the parties to this case and have

10

no interest, financial or otherwise, in its outcome.

11

IN WITNESS WHEREOF, I have hereunto set my

12

hand and affixed my notarial seal this 29th day of

13

December 2011.

14
15

My commission expires:

16

June 14, 2014

17

____________________________

18

NOTARY PUBLIC IN AND FOR THE

19

DISTRICT OF COLUMBIA

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21
22
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25

800-869-9132

Merrill Corporation - San Francisco

www.merrillcorp.com/law

Page Line
Change:
Change:

Change:
Change:

Change:
Change:

Change:
Change:

t to the above changesi I certify that the transcript is true and correct.

L

No changes have been made. I certify that the transcript is true and correct.

~
Print Name /' / _

) Gß ¿/brèAK

;z Ú /;o(c?
(date) (

1

IN THE UNITED STATES DISTRICT COURT

2

SOUTHERN DISTRICT OF FLORIDA

3
4

DISNEY ENTERPRISES, INC., TWENTIETH

5

CENTURY FOX FILM CORPORATION,

6

UNIVERSAL CITY STUDIOS PRODUCTIONS,

7

LLP, COLUMBIA PICTURES INDUSTRIES,

8

INC., and WARNER BROTHERS

9

ENTERTAINMENT, INC.,

10
11

Plaintiffs,

12
13

vs.

Case No.

14
15

HOTFILE CORPORATION, ANTON TITOV

16

11-cv-20427-AJ

and DOES 1-20,

17
18
19

Defendants.
__________________________________________________

20

Videotaped Deposition of SCOTT A. ZEBRAK,
a witness herein, called for examination by counsel

21

for Defendants in the above-entitled matter, Washington,
D.C. pursuant to subpoena, the witness being duly sworn

22

by SUSAN L. CIMINELLI, CRR, RPR, a Notary Public in and
for the District of Columbia, taken at the offices of

23

Jenner & Block, LLP, 1099 New York Avenue, N.W.,

24

Washington, D.C., at 10:49 a.m. on Friday, January 20,

25

2012.
Page 1
Sarnoff, A VERITEXT COMPANY
877-955-3855

1

APPEARANCES:

2
3

On behalf of the Plaintiffs & Counterdefendants:

4

DUANE POZZA, ESQ.

5

STEVEN B. FABRIZIO, ESQ.

6

Jenner & Block, LLP

7

901 New York Avenue, N.W.

8

Washington, D.C.

9

[phone]

10

20001

[e-mail]

11
12

On behalf of the Defendants:

13

DEEPAK GUPTA, ESQ.

14

Farella Braun + Martel, LLP

15

235 Montgomery Street

16

San Francisco, CA

17

[phone]

18

[e-mail]

94104

19
20
21

ALSO PRESENT:
CONWAY BARKER, Videographer

22
23
24
25
Page 2
Sarnoff, A VERITEXT COMPANY
877-955-3855

3

A.

See, Professor Boyle -- and this is a flaw

4

across his report, and I believe it's a very serious

5

one.

6

legal scholar.

7

in theory, rather than focus on those issues

8

implicated by the facts and actually review the

9

facts.

He -- he approached this, as he put it, as a
He largely wanted to discuss issues

And, in this instance, I did review the

10

facts, including for the pornographic works that I

11

examined in the course of the study, and I reviewed

12

the terms of use and the conditions under which these

13

companies allowed for use of their works.

14

had my own background knowledge on that industry, as

15

well as further spoke with a representative from that

16

industry to test my background and understanding on

17

how their works are created and distributed.

18

they all supported my -- my conclusions.

19

And I also

And

As I mentioned earlier, of course a

20

company is free to authorize distribution of its own

21

works and how it sees fit but the works I -- I ran

22

across and concluded were highly likely infringing

23

were commercial works that were taken from sites that

24

charged for access to that material and were of a

25

length inconsistent with any sort of promotional
Page 220
Sarnoff, A VERITEXT COMPANY
877-955-3855

1

distribution of the type that you hypothesized over a

2

moment ago as inspired by Professor Boyle.

3
4
5

BY MR. GUPTA:
Q.

inconsistent with promotional distribution?

6
7

MR. POZZA:

Objection.

Incomplete

hypothetical and ambiguous.

8
9

So what do you consider to be a length

THE WITNESS:
of factors.

Well, I looked at a variety

As with regard to my classification of

10

works, for the most part, the works I examined were

11

all full-length long commercial works.

12

works were short such as 30 seconds, a minute, two

13

minutes, something of that ilk, those tended not to

14

be works, especially within the pornographic content

15

we're talking about now, that were included in my

16

highly likely infringing assessment.

17

To the extent

The hypothetical example you gave and

18

Professor Boyle's -- to my knowledge, I'm not sure if

19

Professor Boyle reviewed any of the files that I

20

reviewed in this category of pornography.

21

expresses some sweeping conclusions about the adult

22

entertainment industry based on from what I can tell

23

is a review of three articles.

24

terms of the length of the works, those were the

25

works of that period or shorter that I tended not to

He -- he

But I would -- so in

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Sarnoff, A VERITEXT COMPANY
877-955-3855

1

have in the infringing category.

2

BY MR. GUPTA:

3

Q.

Okay.

Mr. -- Professor Boyle also

4

criticized your analysis as to fair use.

5

reaction to that?

6
7

MR. POZZA:

Same standing objection.

Lack

of --

8
9

What's your

THE WITNESS:

Yeah, I mean, again, if you

show me his report, I can go example by example, but

10

Professor Boyle, again, throughout his report wants

11

to talk about theoretical issues rather than a review

12

of given files and whether those -- the distribution

13

of those files is an infringement or not.

14

report, talks about fair use.

15

personal storage.

16

one downloads.

17

facts show that those considerations for the files

18

that I've examined are -- are just largely not

19

present.

20

He, in his

He talks about

He likes talking about zero and

Yet, a review of the actual files and

Professor Boyle, were he inclined to do

21

so, could have reviewed these files to see that they

22

were full length commercial works being distributed,

23

and when I say distributed, as opposed to personal

24

storage, these were -- these were works where he

25

could merely take the Hotfile URL, paste it into his
Page 222
Sarnoff, A VERITEXT COMPANY
877-955-3855

1

Google search bar, and find those links online, as I

2

did and as my data includes, along with my deposition

3

testimony.

4

and home taping and fair use and personal use, but

5

the download data and the distribution data and the

6

actual files I reviewed really undermine the way he

7

attempts to raise these issues and attempts to sort

8

of cast them across a great number of files.

9

think factually he's -- he's off base about its

10

So, you know, he discusses the Sony case

I just

relevance.

Page 223
Sarnoff, A VERITEXT COMPANY
877-955-3855

1

UNITED STATES OF AMERICA)

2
3

SS:
DISTRICT OF COLUMBIA

)

4
5

I, SUSAN L. CIMINELLI, the officer before whom

6

the foregoing deposition was taken, do hereby

7

certify that the witness whose testimony appears in

8

the foregoing deposition was duly sworn by me; that

9

the testimony of said witness was taken by me to the

10

best of my ability and thereafter reduced to

11

typewriting under my direction; that I am neither

12

counsel for, related to, nor employed by any of the

13

parties to the action in which this deposition was

14

taken, and further that I am not a relative or

15

employee of any attorney or counsel employed by the

16

parties thereto, nor financially or otherwise

17

interested in the outcome of the action.

18
19

________________________

20

SUSAN L. CIMINELLI

21
22

My commission expires:

11/30/2016

23
24
25
Page 296
Sarnoff, A VERITEXT COMPANY
877-955-3855

1

2
3

4

I have read the foregoing

transcript

of my deposition

5

6

and find it to be true and accurate

to the best of my

7
8

knowledge

and belief.

9

10
11

12
13

SCOTT A.

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Page
Sarnoff, A VERITEXT COMPANY
877-955-3855

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Deposition of Scott Zebrak – Day 2 (rebuttal)
January 20, 2012
Errata
Location
Correction
163:2 change "highly unlikely infringing category" to "highly likely infringing category"