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
. /
ANSWER AND DEFENSES OF WARNER BROS. ENTERTAINMENT, INC. TO HOTFILE CORP.’S SECOND AMENDED COUNTERCLAIM
2
ANSWER
1.
Warner admits that it is a famous and respected Hollywood studio. Warner further admits that it holds copyrights to thousands of movies and television shows; and that Warner, along with other motion picture studios, filed this action. Except as expressly admitted, Warner denies the allegations contained in Paragraph 1. 2.
Warner admits that it used a Special Rightsholder Account (“SRA”) provided by Hotfile to notify Hotfile of files hosted on the Hotfile.com website that Warner or its agents had a good faith belief were infringing. Warner lacks information sufficient to admit or deny the allegations in Paragraph 2 regarding Hotfile’s purposes for designing the SRA or its state of mind in granting Warner the ability to use the SRA, and therefore denies those allegations. Except as expressly admitted, Warner denies the allegations in Paragraph 2. 3.
Paragraph 3 states a legal conclusion to which no response is required. 4.
Paragraph 4 states a legal conclusion to which no response is required. 5.
Paragraph 5 states a legal conclusion to which no response is required. 6.
Warner admits that Hotfile Corporation is a Panamanian corporation and that it operates the Hotfile website, which permits users to share digital files. Insofar as Paragraph 6 characterizes Hotfile’s “principal place of business” as being outside the United States, it states a legal conclusion to which no response is required. Except as expressly admitted or as no response is necessary, Warner denies the allegations in Paragraph 6. 7.
Warner admits the allegations contained in Paragraph 7. 8.
Warner admits that Hotfile is a website that allows its users to upload and download digital files, including large video files. Except as expressly admitted, Warner lacks information sufficient to admit or deny the allegations in Paragraph 8 and therefore denies them. 9.
Warner denies that Hotfile has worked proactively with Warner to devise an effective notice and takedown procedure. Warner otherwise lacks information sufficient to admit or deny the allegations in Paragraph 9 and therefore denies them. 10.
Warner admits that Hotfile’s website has asserted that Hotfile is protected by Section 512(c) of the DMCA, but denies that the website contained in April 2009 the language cited in the second sentence of Paragraph 10. Upon information and belief, Hotfile did not add this language until substantially later. Except as expressly admitted, Warner lacks information sufficient to admit or deny the allegations in Paragraph 10 and therefore denies them.
3 11.
Warner admits facilitating cooperation between copyright owners and service providers to address online copyright infringement was among Congress’s reasons for passing the DMCA. Except as expressly admitted, Warner denies the allegations contained in Paragraph 11. 12.
Warner admits that Michael Bentkover is an individual employed by Warner, that his title is Manager, Forensics and Enforcement, Worldwide Anti-Piracy Operations, that he works out of Warner’s Burbank, CA offices, and that he reports to a Warner Senior Vice President & Intellectual Property Counsel. Warner further admits that Mr. Bentkover sent notifications of infringement to Hotfile on Warner’s behalf to the abuse@hotfile.com email address beginning around March 2009. The statement in Paragraph 12 that this email address was the email of a “Designated Agent” states a legal conclusion to which no response is required, however, to the extent a response is required, Warner denies that abuse@hotfile.com was the email address of a designated agent under the DMCA. Warner further admits that Mr. Bentkover requested a “takedown tool” and stated that such a tool would facilitate the takedown notice process. Except as expressly admitted, Warner denies the allegations contained in Paragraph 12. 13.
Warner admits that Hotfile provided Warner access to the SRA in August 2009, and that the account was listed under Michael Bentkover’s email address. Warner further admits that the SRA permitted Warner to provide Hotfile with URLs or a batch file containing URLs to notify Hotfile of links that Warner had a good faith belief were infringing. Except as expressly admitted, Warner lacks information sufficient to admit or deny the allegations in Paragraph 13 and therefore denies them. 14.
Warner lacks information sufficient to admit or deny Paragraph 14’s allegations regarding the internal functioning of the Hotfile system or the SRA, and therefore denies them. Warner otherwise denies the allegations in Paragraph 14. 15.
Warner admits that an effective takedown notice under the DMCA requires a “statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law” and a “statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed,” or, in the alternative, language that complies substantially with these