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

Filing 73

NOTICE by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc. re 72 Plaintiff's MOTION to Compel RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS AND INTERROGATORIES (Public Redacted Version)Plaintiff's MOTION to Compel RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS AND INTERROGATORIES (Public Redacted Version) NOTICE OF FILING DECLARATION OF IAN FOSTER IN SUPPORT OF MOTION TO COMPEL (Attachments: # 1 Affidavit DECLARATION OF IAN FOSTER IN SUPPORT OF PLAINTIFFS' MOTION TO COMPEL)(Stetson, Karen)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20427-JORDAN

DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM CORPORATION,
UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP,
COLUMBIA PICTURES INDUSTRIES, INC., and
WARNER BROS. ENTERTAINMENT INC.,
Plaintiffs,

HOTFILE CORP., ANTON TITOV, and
DOES 1-10.
Defendants.
/

I, Ian Foster, hereby declare as follows:
1.

My name is Ian Foster. I have previously submitted two declarations in this case,

including a February 21, 2011 Declaration in support of Plaintiffs' Motion for Preservation
Order and for Expedited Discovery and a February 28, 2011 Reply Declaration in support of the
same motion. My qualifications and CV are provided in the February 21, 2011 Declaration.
2.

I understand that the Plaintiffs in this litigation are seeking discovery of the

"source code" for the Hotfile Website. The first purpose of this declaration is to explain what
"source code" is and why it is relevant to understanding the computer system used to operate the
Hotfile Website.
3.

I also understand that the Defendants in this litigation have taken the position that

it would be unduly burdensome to produce the Content Reference Data and Activity Data (which
I have previously described in my initial declaration in this matter) for the Hotfile system. The

second purpose of this declaration is to offer my thoughts regarding the relative ease of copying
and producing this data.
4.

The observations and conclusions set forth below are based on my own

observation and use of the live Hotfile site, as informed by my specialized knowledge, education,
and expertise as applied to the facts and circumstances in this case.
BACKGROUND ON SOURCE CODE
5.

Computers operate by executing sequences of instructions contained in computer

programs. The "source code" for a computer program is a representation of those instructions in
a human-readable form. Given the source code for any computer program, one can typically
determine, in great detail, and with certainty, exactly what the program is telling the computer to
do and therefore how the computer program works.
6.

Source code can also include, in addition to executable instructions, "comments,"

which are text provided by the programmer that is not interpreted by the computer, but can
provide explanations of why a particular approach was taken by the programmer to
implementing a particular task.
7.

Source code is useful for understanding computer programs because it provides a

precise and objective representation of what a computer program does. Although it is possible to
describe a computer program using means other than source code, such as documentation or
narrative descriptions by the author(s) of the program, any such description of a computer
program would always be a human interpretation of the program, and therefore subject to
potential omissions, inaccuracies, and ambiguities. The source code itself, on the other hand, is
the computer program - nothing more and nothing less.

IMPORTANCE OF SOURCE CODE IN THIS CASE
8.

My previous declarations have been based in part on external observations of the

Hotfile system, combined with statements that the Defendants have made about how the system
works. However, the Defendants' own public statements may be incomplete, incorrect, or
ambiguous, and external observation and use of the system will not permit analysis of functions
that are invisible to the user. Access to source code would permit one to determine, without
uncertainty or ambiguity, how the Hotfile system works, and how it performs the functions
described on the Hotfile Website. It will also allow one to resolve any uncertainties regarding
the details of its operations, and to verify the correctness of any statements made about the
operation of the Hotfile system by Hotfile in its own online materials, website, and declarations.
In addition, access to Hotfile's source code would also allow for clarification of details regarding
the operation of the Hotfile System that are not clear from the materials provided.
9.

Access to Hotfile's source code would allow for a precise understanding of the

details of various features of Hotfile's features and operations that may not be apparent from
external observation. For instance, consider the Hotfile feature that allows for the creation of
multiple URLs for the same Content File. From external observation, it is not apparent whether
this feature involves the creation of multiple URLs that each resolve to the same copy of the
Content File, or whether it involves the creation of multiple copies of the same Content File.
Access to the source code would unambiguously answer this question. Likewise, it is not
apparent from external observation which steps Hotfile takes when it responds to a takedown
notice that names one of multiple URLs created using this feature - whether it removes only the
identified link (leaving other copies of the file or links to the file active) or removes others as
well. In addition, when responding to notices of infringement more broadly, it is not apparent

from external observation alone whether Hotfile removes the underlying Content File(s) or
merely disables the URL(s) that direct to those files, while retaining copies. Analysis of the
source code would clearly answer these types of questions.
10.

Hotfile's source code would also clearly show the circumstances under which

copies of Content Files are made by the Hotfile system and the events or instructions that trigger
the creation of such copies. It is not clear from external observation whether the Hotfile system
retains and uses a single copy of a Content File uploaded by the uploading user, or whether it
also creates additional copies under certain circumstances, and, if so, what those circumstances
are (e.g. whether the system makes additional copies of all files, or only some subset). The
source code for Hotfile's system would readily demonstrate the circumstances under which the
system makes copies of Content Files and how the system uses those copies. It would make
clear what "triggers" the creation of any additional copies of each Content File - for instance,
whether Hotfile automatically creates backup copies of Content Files to guard against loss, or
whether it creates copies of only a subset of Content Files in response to high download demand
for those files. It is not uncommon for computer systems that distribute large numbers of
electronic files to create additional copies of the files in order to facilitate the distribution. The
source code for Hotfile's system would readily answer these questions with certainty.
11.

Hotfile's source code would also help elucidate what information Hotfile

maintains about the Content Files on the Hotfile system, how Hotfile utilizes such information in
its everyday operations, and what abilities Hotfile has to search or query information regarding
those files. I understand that the Defendants in this action have made various claims regarding
their inability to monitor the nature of the Content Files hosted on their system, as well as
claimed that they have a "filtering" system. Access to Hotfile's source code would show how

files are organized on Hotfile's system, how Hotfile uses that information, and precisely what
steps Hotfile takes (or declines to take) to "filter" files designated for removal or blocking. This
information, in turn, would show the extent to which Hotfile's system permits searching for
particular content, what steps it takes to remove or block content designated for removal or
blocking (or has declined to take), and how readily such functions could be implemented if they
do not exist already.
12.

Source code can also show the design choices and design history of a computer

system. It is good engineering practice to maintain source code in source code management
systems, and I therefore believe that it is likely that Defendants use such a source code
management system for the Hotfile Website. A source code management system maintains the
history of changes to the source code for a computer system. Therefore, access to Hotfile's
source code would show when particular features were introduced and any changes that Hotfile
made to its system over time.
SOURCE CODE IS THE BEST EVIDENCE OF HOW HOTFILE'S SYSTEMS WORK
13.

I understand that Defendants in this Action have suggested that Plaintiffs obtain

information about how Hotfile's system works from sources other than source code, such as
taking the testimony of Hotfile's engineers. While other sources may be useful, they are
ultimately only a proxy for the ultimate truth captured in the source code. Even with the best
intentions, testimony by an engineer about the workings of a computer program may be incorrect
or ambiguous, and is likely to be incomplete. Moreover, there is also the possibility that an
engineer could deliberately misrepresent or mischaracterize how a computer program works.
Some features of a computer program, for instance, might be "hidden" from external observation

and a person describing the program could simply decline to identify the feature. Because the
source code is the computer program, it is not subject to these potential errors.
COMPETITIVE SENSITITY OF HOTFILE'S SOURCE CODE
14.

I also understand that Defendants in this Action have taken the position that

Hotfile's source code represents a trade secret that must be kept confidential. While I do not
discount the possibility that some elements of Hotfile's source code may be competitively
sensitive, it is important that such claims not be exaggerated.
15.

There are numerous companies that operate online content hosting and

distribution services, and several do so on a scale similar to Hotfile. The methods required to
organize large numbers of Content Files and deliver them for download, therefore, are widely
implemented. In general, from external observation the capabilities of the Hotfile system appear
relatively straightforward and it appears unlikely that any particular innovations are necessary to
implement them. Thus, while it may well be that there are some minor innovations in how the
Hotfile system is implemented, these innovations are unlikely to have particularly substantial
competitive value.
16.

By analogy, the Hotfile system can be analogized to an automobile that is well-

built but still uses a conventional combustion engine. It appears to have been built by combining
existing ideas, probably with some minor innovations, but without involving any radically new
approaches. To continue the automotive analogy, its value derives from good engineering
overall, and not from an entirely new type of engine. Thus, while examining the design could be
instructive to a competitor, it would be unlikely to provide any entirely new ideas.
LOGISTICS OF COPYING HOTFILE'S SOURCE CODE
17.

Source code, by its very nature of being written by humans, is not enormous in

scale. Based on my review of the Hotfile system and its relative complexity, I believe that the
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source code for the Hotfile system is likely to be no larger than a few hundred megabytes and
therefore fit easily on a single USB key drive, which commonly have capacities of several
gigabytes (i.e. thousands of megabytes). In addition, source code is generally maintained at a
single location, or very small number of locations, from which it can be readily copied. The use
of a source code control system, which I believe it is likely that Hotfile uses, makes it a trivial
task to obtain a copy of the current source code for the Hotfile system, as well as past/historical
versions of the same.
LOGISTICS OF COPYING HOTFILE'S CONTENT REFERENCE AND ACTIVITY
DATA
18.

I understand that Defendants have taken the position in this litigation that it would

be difficult to create and produce a copy of the Content Reference Data for the Hotfile System
(as defined in my previous declarations), as well as server logs indicating uploading and
downloading activity. I offer the Court my following observations regarding the relative ease of
copying and producing such data.
19.

I understand that Hotfile uses a MySQL database (a common database

management system) to maintain its content reference data. This database system makes it
straightforward to create a copy of the database's contents by using a "mysqldump" command,
which is also routinely used to create backups of databases for administrative purposes or
business continuity purposes.
20.

I would expect the size of this database to be relatively manageable. Based on the

types of data about each Content File that I expect Hotfile to maintain as described in my
previous declarations, I would expect the Reference Data for each Content File to be no larger
than a kilobyte. Therefore, if Hotfile had one hundred million files on its system, the Content
Reference Database would be no larger than 100 Gigabytes (Hotfile appears to use a consecutive

numbering system, from which it appears that approximately a hundred million files have been
uploaded to the system at some point in the site's history). By contrast, one can readily purchase
consumer-grade hard drives with capacities as high as three terabytes at consumer electronic
stores (such as Best Buy) for around one hundred and fifty dollars. Using a consumer-grade
connection, such as USB 2.0, one hundred gigabytes of data should take only about forty minutes
to transfer, and even a full terabyte of data should take no longer than seven hours. I would
expect Hotfile to have access to commercial-grade connections that could accomplish such
transfers much faster than consumer-grade connections.
21.

Logging data reflecting uploading and downloading activity should be similarly

manageable. A typical server log entry contains information such as the time of the request, the
IP address of the request,1 the nature of the request, the requested URL, and the name of the
object to which the request refers. Even if Hotfile were logging some additional information in
addition to these types of typical fields, I would not expect each log entry reflecting an upload or
download to be any larger than two kilobytes. Based on publicly available reports regarding web
traffic, Hotfile appears to receive roughly one hundred million pageviews per month (without
access to Hotfile's own web traffic data, this figure is approximate, as there is some variation
from month to month and among publicly available reports). Even if one half of those
pageviews corresponded to uploads or downloads, then that is just fifty million uploads and
downloads per month. Thus, the total logging data is unlikely to be any more than one hundred
gigabytes per month, and I would not expect the total size of the data since mid-February 2011 to
be any greater than 500 gigabytes (half a terabyte). In generating these estimates, moreover, I
have used very conservative assumptions, and would expect the actual numbers to be yet smaller.
A computer's IP address can generally be used to identify the geographic location of the
computer.
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22.

In the context of Hotfile's regular daily operations, copying one or even two

terabytes of data (which can readily fit on a consumer-grade hard drive) should not represent a
substantial effort. Based on publicly available data regarding Hotfile's web traffic, the site
receives around 100 million pageviews per month, or about three million pageviews per day.
Assuming very conservatively that only one in ten pageviews represents a download, around
three hundred thousand files are being downloaded from Hotfile every day. Assuming
conservatively that the average size of a file downloaded from Hotfile is around twenty
megabytes (which assumes a mix of audio, video, and other kinds offiles),that would still
represent around six terabytes of data downloaded from the site on a daily basis. Without access
to Hotfile's logging or content reference data these are, by necessity, very rough estimates.
However, it is clear from the general scope of its operations that copying one or two terabytes of
data, for a site like Hotfile, should not represent an extraordinary effort.

I declare under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct.
Executed on this 31st day of May 2011, at Chica: