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

Filing 81

MEMORANDUM of Law 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) Memorandum of Law of Defendants Hotfile Corporation and Anton Titov In Opposition to Plaintiffs' Motion to Compel Responses to Requests for Production and Interrogatories by Hotfile Corp., Anton Titov. (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit 2, # 18 Exhibit 3, # 19 Exhibit A)(Munn, Janet)

EXHIBIT M

Case 1:11-cv-20427-AJ Document 15-1

Entered on FLSD Docket 02/22/2011 Page 1 of 11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM
CORPORATION,
UNIVERSAL CITY STUDIOS
PRODUCTIONS LLLP,
COLUMBIA PICTURES INDUSTRIES,
INC., and WARNER BROS.
ENTERTAINMENT INC.,
Plaintiffs,

Case No. 11 -20427-CV-Ungaro/Simonton

DECLARATION OF IAN FOSTER IN
SUPPORT OF PLAINTIFFS'
EMERGENCY MOTION FOR ORDER
PROHIBITING SPOLIATION AND
PRESERVING EVIDENCE

vs.
HOTFILE CORPORATION,
ANTON TITOV, and DOES 1-10.
Defendants.

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

My name is Ian Foster and I currently hold the position of Director of the

Computation Institute at Argonne National Laboratory and the University of Chicago. I also
hold the positions of Arthur Holly Compton Distinguished Service Professor of Computer
Science at the University of Chicago, and of Argonne Distinguished Fellow at the Argonne
National Laboratory. A copy of my curriculum vitae, including lists of my previous publications
and cases in which I have given testimony, is attached hereto as Exhibit A. I make this
declaration in support of Plaintiffs' Motion for Preservation Order and for Expedited Discovery.
2.

I have been asked by the plaintiffs in this case to evaluate the functioning and

operation of the website www.hotfile.com ("Hotfile"). The observations and conclusions set
forth below are based on my own observation and use of the live Hotfile site, as informed by my

Case 1:11-cv-20427-AJ Document 15-1

Entered on FLSD Docket 02/22/2011 Page 2 of 11

specialized knowledge, education, and expertise as applied to the facts and circumstances in this
case.
Background
3.

Hotfile is a website that allows its users both to "upload" electronic files and to

"download" files uploaded by others. Hotfile provides any user who uploads a file with a "link"
(an alphanumeric string that operates as a uniform resource locator or "url"). The uploaded file
can then be downloaded by any Internet user who has access to the link. Users who download
from Hotfile find "links" to files hosted on Hotfile in a variety of ways on the Internet (such as
on other websites that host collections of such links, or via email or an online forum). They can
then follow the link to Hotfile and download from Hotfile the file referenced by the link.
4.

Entertainment content, such as music, motion pictures, television shows, and so

forth, can be represented as a digital computer file, and can easily be communicated over the
Internet in digital form. Thus, it is easy for users to upload and download entertainment content
(such as motion pictures and television shows) to and from Hotfile, as described above.
Information Maintained by Hotfile
5.

I have not yet had the opportunity to examine Hotfile's back-end computer

systems; I have reviewed and analyzed what is accessible and visible to the public. Nonetheless,
based on the features of the website, it is possible to draw certain conclusions about the types of
data that the site must necessarily be using and/or maintaining. I describe these features below.
6.

First, Flotfile must maintain copies of files uploaded by users and available for

downloading through the site. For purposes of this Declaration, I will refer to these files as
"Content Files." The effective functioning of Hotfile as a content dissemination site requires that
it be possible, by examining these files, to determine the content embodied therein (for example,

Case 1:11-cv-20427-AJ Document 15-1

Entered on FLSD Docket 02/22/2011 Page 3 of 11

if a Content File represented a particular motion picture, that fact could be determined by
examining the file itself).
7.

Second, Hotfile must maintain certain information about the Content Files. As

described below, certain features of Hotfile require it to use certain information about the
Content Files on its system. It is common for computer systems to maintain a database (or
databases) or index of files that the computer system stores, separate and apart from the files
themselves. Just as a personal computer user can use "Windows Explorer" or "Mac Finder" to
list the files on their computer, Hotfile must maintain information about the Content Files on its
system. Another analogy is a card catalog at a library, which provides information about the
books in the library, maintained separately from the books themselves. For purposes of this
Declaration, I will refer to this information about Content Files as "Content Reference Data."
8.

I expect the Content Reference Data to be separate from, and orders of magnitude

smaller than, the Content Files. Indices or databases are conventionally much smaller than the
files they index, just as a card catalog is much smaller than the library. Even if the Content Files
themselves are voluminous, it should not be a particularly difficult task to generate a copy of the
Content Reference Data. The Content Reference Data, in turn, would provide a complete list of
the Content Files available on the Hotfile system, as well as additional information about those
files as described below. Access to this list would make it possible to request specific Content
Files from Hotfile.
9.

Third, Hotfile must maintain certain information about its users. As described

below, Hotfile allows any user to upload and download files, but also allows users to become
"premium" users (in exchange for a fee); premium users enjoy certain privileges (such as the
ability to download files more quickly and conveniently). Hotfile also compensates users under

Case 1:11-cv-20427-AJ Document 15-1

Entered on FLSD Docket 02/22/2011 Page 4 of 11

a variety of conditions (for example, users who upload files are compensated based in part on
how often their files are downloaded). In order for these features to work, Hotfile must maintain
certain categories of information about users. For purposes of this Declaration, I will refer to this
as "User Data." As with the Content Reference Data described above, I would expect the User
Data to be orders of magnitude smaller than the Content Files themselves, and it should not be
difficult to generate a copy of such data. Because Hotfile would need to use such User Data as
part of its regular operation, I expect this data to be consolidated in a location from which it
could be readily copied.
10.

Hotfile must also have access to certain information about downloads of files

stored on its system. It is common practice for servers used to deliver digital content to make a
record of each incoming request and outgoing response. There are a variety of reasons that
webservers generate this information; it can be used for technical reasons (such as
troubleshooting customer problems) and/or for business reasons (such as analyzing website load
and to determine whether additional web servers are required). In addition, website operators
will typically maintain other records relating to their specific business functions (such as
information related to the billing of their customers). For purposes of this Declaration, I will
refer to these kinds of information as "Activity Data." As described below, Hotfile must be
utilizing and maintaining at least some of this information in order to operate certain features of
its website.
Information Maintained in Content Reference Data and User Data
11.

As described above, I have not yet had the opportunity to directly observe the

Content Reference Data, User Data and Activity Data maintained by Hotfile, only the features of
the site that are available and visible to the public. But based on my observation of the operation

Case 1:11-cv-20427-AJ Document 15-1

Entered on FLSD Docket 02/22/2011 Page 5 of 11

of the Hotfile system, I can draw some conclusions regarding the types of information that
Hotfile must maintain.
12.

In the discussion below, I group this information into two sections - "Content

Reference Data" and "User Data." The information I have previously described as "Activity
Data" will overlap with both categories, as Hotfile must link downloading activity both to certain
users and to the files hosted on its system. Lacking the benefit of direct observation of Hotfile's
back-end systems, I do not yet know how Hotfile has chosen to organize the information
described below. Therefore, information I list as "Content Reference Data" may in practice be
grouped with "User Data," or vice versa, depending on how Hotfile has chosen to organize its
databases. Regardless of the exact organization, as noted above, this information is likely to be
maintained separately from the Content File data and in a form in which it can be readily copied.
13.

With respect to the Content Reference Data, I have observed that a user with a

Hotfile account (a "registered user") can view, when logged in to the site, a complete list of the
Content Files they have uploaded, the link(s) associated with each Content Files they have
uploaded, the size of each Content File they have uploaded, and, within certain parameters, the
number of times each Content File they have uploaded has been downloaded. In order to
accurately render this information, Hotfile must maintain, for each Content File, the:
a. The link(s) associated with that file;
b. The size of the file;
c. The identifier associated with the user who uploaded the file; and
d. The number of times the file has been downloaded. (According to the Hotfile
website, this figure excludes duplicate downloads by premium users and
downloads from countries other than those for which Hotfile "counts"
downloads.).

Case 1:11-cv-20427-AJ Document 15-1

Entered on FLSD Docket 02/22/2011 Page 6 of 11

In addition, information on the Hotfile website suggests that Hotfile must use information
regarding each request to download a Content File. This information includes, at a minimum, (1)
the location (at least at the country level) from which each file is downloaded, in order to
determine whether each download originates from a country from which Hotfile says it "counts"
downloads; and (2) whether or not the requesting user is a "Premium" user, information that
Hotfile uses to determine both (a) the download speed to provide to the user and (b) whether to
"count" the download.
14.

With respect to the User Data, Hotfile, according to its website, operates

"Affiliates" programs that compensate registered users under certain conditions. See
http://www.hotfile.com/affiliate.html. First, under the basic "Affiliate" program, uploading users
are paid when Content Files uploaded by the user are downloaded by other users (with the
compensation generally depending on the number of such downloads and the percentage of
downloading users who upgrade to "premium" subscriptions based on those downloads).
Second, under the "Referral program[] for site owners," users are paid when a different user
accessing Hotfile via a "link" hosted on a website registered by the original user earns money
through the "Affiliates" program. Third, under the "Refer a friend" program, users are paid
when a different user referred by the original user upgrades to a premium account. In order for
these "Affiliate" programs to be operating as described, Hotfile must maintain, for each
registered user:
a. Basic account information;
b. Which Content Files the user has uploaded;
c. How many other users upgraded to a "premium" Hotfile account while
downloading a Content File the user uploaded;
d. Which of the user's Content Files other users have downloaded (and how many of
those downloaders were "premium" users);

Case 1:11-cv-20427-AJ Document 15-1

Entered on FLSD Docket 02/22/2011 Page 7 of 11

e. Which Content Files the user has downloaded (if the user is a premium user);
f.

Any websites the user has registered with Hotfile's "Affiliate" program;

g. If the user is a premium user that was referred to Hotfile under the "Refer a
Friend" program, the identity of the referring user;
h. Information associated with recent payments from the user (if the user is
premium) and pending payments to the user (if the user participates in an
"Affiliate" program).
In addition, for users who upgrade to "premium" accounts after being referred to Hotfile by a
registered "Affiliate" website, Hotfile must use information regarding the identity of the
referring website.
Information Maintained By Third Parties
15.

Some information regarding visitors to the Hotfile website is likely to be

maintained by Google. I can see, by examining the structure of the Hotfile webpages, that they
are using a service called "Google Analytics." Google Analytics is a service that allows the
owner of a website to maintain records of their website traffic at Google, and to analyze various
properties of that traffic. Part of the operation of this service involves the transmission of
information to Google and the storage of that information on Google's computers for analysis by
the website owner. A description can be found at http://www.google.com/analytics/.
Role of Lemuria
16.

Hotfile is served by an Internet Service Provider called "Lemuria

Communications, Inc." ("Lemuria"). As far as I can tell, Lemuria provides ISP functions to only
Hotfile.com's servers. Records show that Lemuria supports two "blocks" of Internet addresses
(containing 3,072 Internet addresses). This can be determined by querying any number of
publicly available online services that lookup and return information about the properties of an
Internet Service Provider. Using a method called a "Reverse DNS Lookup" shows that these

Case 1:11-cv-20427-AJ Document 15-1

Entered on FLSD Docket 02/22/2011 Page 8 of 11

addresses supported by Lemuria only resolve to Hotfile server names. Therefore, it appears that
Lemuria does not provide services to any entities except Hotfile.

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 21st day of February 2011, at Chicago, IL.

Ian Foster

Case 1:11-cv-20427-AJ Document 15-1

Entered on FLSD Docket 02/22/2011 Page 9 of 11

Exhibit A

Case 1:11-cv-20427-AJ Document 15-1

5410 S

PHONI

HARPTR

Entered on FLSD Docket 02/22/2011 Page 10 of 11

AVI

771 491 7664 . !

"CHICAGO

II

60615

M A I I EOSTI R@AN1 GOV

IAN FOSTER
NARRATIVE
I am a computer scientist whose work at the intersection of computing and the sciences has
produced both practical technologies that have seen wide adoption and concepts and
methods that have proven influential in research and education My research interests span
a range of topics in parallel, distributed, and data-intensive computing. A unifying theme is
a desire to use the power of rapid communication to accelerate discovery, whether by
linking people with remote computers and data, accelerating complex computational
processes, or enabling distributed virtual teams I pursue use-inspired basic research,
meaning that I employ challenging practical problems to motivate and focus work on hard
problems in computer science. Over the years, these practical problems have come from
such fields as environmental science, economics, high-energy physics, biomedicine, and
engineering. I often build sophisticated artifacts (software and distributed systems) in order
to apply, evaluate, and disseminate new concepts and methods. Thus, my work frequently
requires large teams of disciplinary scholars, computer scientists, and software engineers

EDUCATION
1985-1988
Imperial College
London, United Kingdom
PhD, Computer Science and Diploma of Imperial College
1977 - 1979
University of Canterbury
BSc (blons I), Computer Science

Chnstchurch, New Zealand

PROFESSIONAL EXPERIENCE
2006 -

Argonne National Laboratory
Argonne, 1L
The University of Chicago
Chicago, IL
Director, Computation Institute (CI), Argonne Distinguished Fellow, Arthur Holly Compton
Distinguished Service Professor of Computer Science
[Previously Asst. Scientist 1989 1992, Scientist 1992-1997, Senior Scientist 1997-2008, Math &
Computer Science Division, Argonne, Assoc. Professor 1996-2000, Professor 2000 2006, Dept of
Computer Science, University of Chicago]
• Lead the Computation Institute, a cross-institutional, multi-disciplinary research institute with 100
Fellows, 80 staff, many postdocs and students, and an annual budget of ~$20M
• Conduct research in distributed, parallel, and data-intensive computing, and publish technical
articles that have seen more than 50,000 citations, yielding an h index of 90"
• Pioneer new technologies that have seen wide adoption, including grid computing (technologies,
infrastructures, and applications), parallel climate models (c.g , Parallel Climate Climate Model),
and parallel programming languages (e.g., Swift)
• Establish and manage major computer science and computational science prefects, including
Earth System Grid, Grid Physics Network, International Virtual Data Grid Laboratory, Open
Science Grid, TeraGnd, Center for Enabling Distributed Petascale Science, and Center for Robust
* H-wdex is a commonly used measure of scientific impact According to http //mm cs uda edu/ -palsbergl h-number html, mine i
thefourth highest of any computer scientist in 2010

Case 1:11-cv-20427-AJ Document 15-1

Entered on FLSD Docket 02/22/2011 Page 11 of 11

Decisions on Climate and Energy Policy
• Lead the establishment of the international Globus Alliance open source community, and the
development of the Globus Toolkit, from inception to its adoption by a broad spectrum of
national and international projects
• Establish the Open Grid Forum, and play a leadership role in various other national and
international projects and organizations
• Serve on national and international advisory committees, including the US Ocean Observatory
Ininative and UK eScience Program
• Supervise the work of research staff and graduate students
• Teach graduate and undergraduate classes in computer science
1985-1998
Imperial College
London, U.K.
Research Associate, Department of Computing
• Conduct research in concurrent logic programming systems
• Develop programming language technology, commercialized as Strand

OTHER PROFESSIONAL EXPERIENCE

___

Founder, Board Member, Chief Open Source Strategist, Univa Corporation
Technical Advisory Board, EMC Corporation (2010-), IOCOM Corporation (2005-), Entropia
(2000 2004)

PUBLICATIONS AND PRESENTATIONS
More than 300 article and technical reports, and six books, in distributed and parallel computing,
computational science, and programming languages. More than 100 keynote talks and seminars
worldwide.
The Grid: Blueprintfor a New Computing Infrastructure, I. Foster and C. Kesselman (Eds), MorganKaufmann, 1999 and 2003 (2"d edition).
Designing and Building Parallel Programs- Concepts and Tools for Parallel Software Engineering, I. Foster,
Addison-Wesley, 1995.

SELECTED RHCOGN ITION
D.Sc. (Honoris Causa), CINVESTAV, Mexico, 2010; Fellow, Association for Computing
Machinery, 2009; GndWorld "Industry Leadership Award," 2006; Network World's 50 Most
Powerful People in Networking, 2005, D.Sc (Honoris Causa), University of Canterbury, NZ, 2005;
InfoWorld Innovator, 2003, 2004, 2005, Fellow, American Association for the Advancement of
Science, 2004, R&D Magazine Innovator of the Year, 2003; University of Chicago Distinguished
Service Award, 2003, MIT Technology Review, one of "Ten Technologies That Will Change the
World," 2003, British Computer Society Lovelace Medal, 2002, Fellow, British Computer Society,
2002, Federal Laboratory Consortium Technology Transfer Award, 2002, R&D100 "Most
Promising New Technology" Award, 2002, Gordon Bell Award, 2001, Global Information
Infrastructure "Next Generation" Award, 1997, Best Paper Award, 1995 Supercomputmg
Conference, British Computer Society Award for Technical Innovation, 1989.