Case 2:06-cv-05578-SVW-JC Document 673 Filed 10/08/13 Page 1 of 5 Page ID #:7912 1 2 3 4 5 6 7 8 9 Winston & Strawn LLP 333 S. Grand Avenue Los Angeles, CA 90071-1543 10 11 12 13 14 15 16 Michael S. Elkin (admitted pro hac vice) melkin@winston.com Thomas Patrick Lane (admitted pro hac vice) tlane@winston.com WINSTON & STRAWN LLP 200 Park Avenue New York, New York 10166 Telephone: (212) 294-6700 Facsimile: (212) 294-4700 Ira P. Rothken (SBN: 160029) ira@techfirm.net Jared R. Smith (SBN: 130343) jared@techfirm.net ROTHKEN LAW FIRM 3 Hamilton Landing, Suite 280 Novato, CA 94949 Telephone: (415) 924-4250 Facsimile: (415) 924-2905 Erin R. Ranahan (SBN: 235286) eranahan@winston.com WINSTON & STRAWN LLP 333 South Grand Avenue, Suite 3800 Los Angeles, CA 90071-1543 Telephone: (213) 615-1700 Facsimile: (213) 615-1750 Jennifer A. Golinveaux (SBN: 203056) jgolinveaux@winston.com Thomas J. Kearney (SBN: 267087) tkearney@winston.com WINSTON & STRAWN LLP 101 California Street San Francisco, CA 94111-5802 Telephone: (415) 591-1000 Facsimile: (415) 591-1400 Attorneys for Defendants, GARY FUNG and ISOHUNT WEB TECHNOLOGIES, INC. 17 UNITED STATES DISTRICT COURT 18 CENTRAL DISTRICT OF CALIFORNIA 19 20 21 22 23 24 25 26 27 COLUMBIA PICTURES INDUSTRIES, INC., et al., Plaintiffs, v. GARY FUNG, et al., Defendants. Case No. CV 06-5578-SVW (JCx) DECLARATION OF THOMAS KEARNEY IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT ON COPYRIGHT OWNERSHIP, CAUSATION, AND DIRECT INFRINGEMENT Hearing Date: Time: Pretrial Conference: Trial Date: October 28, 2013 1:30 p.m. October 28, 2013 November 5, 2013 28 DECLARATION OF THOMAS KEARNEY IN SUPPORT OF DEFENDANTS' OPP TO MSJ Case 2:06-cv-05578-SVW-JC Document 673 Filed 10/08/13 Page 2 of 5 Page ID #:7913 DECLARATION OF THOMAS KEARNEY 1 2 3 I, Thomas Kearney, declare as follows: 1. I am an associate attorney with the law firm of Winston & Strawn LLP. I 4 am a member in good standing of the Bar of the State of California, and am admitted 5 to the bar of this Court. I make this declaration in support of Defendants Gary Fung 6 and Isohunt Web Technologies, Inc.'s ("Defendants") Opposition to Plaintiffs' 7 Motion for Summary Judgment on Copyright Ownership, Causation, and Direct 8 Infringement ("Opposition"). I have personal knowledge of the facts set forth herein 9 and am fully competent to testify thereto. Winston & Strawn LLP 333 S. Grand Avenue Los Angeles, CA 90071-1543 10 2. Despite repeated representations that they would produce documents on 11 September 19, 2013, Plaintiffs produced copyright registrations and recordation 12 documents for only about half of the 4,145 alleged works on that date. 13 3. On September 29, 2013, Plaintiffs produced a number of documents that 14 they represented were additional chain of title documents, many of which were 15 heavily redacted. On September 30, 2013, I sent an email to Plaintiffs' counsel 16 requesting that Plaintiffs provide unredacted versions of these documents, but 17 Plaintiffs have ignored that request. Plaintiffs still have refused to produce, or even 18 confirm whether they would produce, unredacted documents. 19 4. Defendants requested discovery concerning Plaintiffs' allegations of 20 direct infringement, including identification of incidences of direct infringement and 21 information that would permit Defendants to determine whether particular dot-torrent 22 files were uploaded to Defendants' websites by Plaintiffs' agents, or whether 23 particular download events were performed by Plaintiffs or their agents. However, 24 despite Plaintiffs' representation that they would provide documents on September 19, 25 2013, Plaintiffs failed to identify any direct infringements of their works until the day 26 they filed the instant Motion. 27 28 5. On September 19, 2013, Plaintiffs provided a hard drive containing copies of dot-torrent files and purportedly corresponding downloaded content files to 1 DECLARATION OF THOMAS KEARNEY IN SUPPORT OF DEFENDANTS' OPP TO MSJ Case 2:06-cv-05578-SVW-JC Document 673 Filed 10/08/13 Page 3 of 5 Page ID #:7914 each dot-torrent file could be matched to one or more content files by comparing the 3 name of the dot-torrent file (its "BitTorrent ID" or "BT_ID") to the name of a 4 corresponding folder on the hard drive. For example, the first folder listed on the hard 5 drive's directory was named "2224", which contained a .avi video file; the hard drive 6 also contained a dot-torrent file named "2224.torrent." The second folder on the hard 7 drive's directory was named "3630", which also contained a .avi video file; the hard 8 drive also contained a dot-torrent file named "3630.torrent". Some of the folders on 9 the hard drive contained sub-folders, in which case the relevant content file or files 10 Winston & Strawn LLP Defendants. At a subsequent meet-and-confer, Plaintiffs' counsel informed me that 2 333 S. Grand Avenue Los Angeles, CA 90071-1543 1 would be contained in a subfolder. For example, the sixth folder on the hard drive's 11 directory was named "13261", which in turn contained a sub-folder named "Hercules 12 movies", which contained several .avi video files; the hard drive also contained a dot- 13 torrent file named "13261.torrent." 14 6. Not until 11:52 pm on September 29, 2013--the night before they filed 15 the instant Motion--did Plaintiffs produce a list of the BitTorrent IDs that they 16 claimed corresponded to the titles of their alleged works (Plaintiffs' "BT_ID List"). 17 18 19 7. Plaintiffs' BT_ID List identifies dot-torrent file 2224 as corresponding to Plaintiffs' work "Legends of the Fall." 8. Plaintiffs produced a copy of a dot-torrent file named "2224.torrent" on 20 September 19, 2013. But opening the dot-torrent file "2224.torrent" in a BitTorrent 21 client causes it to begin attempting to download a copy of a work entitled "Buddha 22 Bar - Vol 4." 23 9. The target file of the 2224.torrent file could not be downloaded. 24 10. Plaintiffs' BT_ID List identifies dot-torrent file 3630 as corresponding to 25 26 Plaintiffs' work "Seven Years in Tibet." 11. Plaintiffs produced a copy of a dot-torrent file named "3630.torrent" on 27 September 19, 2013. But opening that dot-torrent file in a BitTorrent client causes it to 28 begin attempting to download a copy of a work entitled "Transformers." 2 DECLARATION OF THOMAS KEARNEY IN SUPPORT OF DEFENDANTS' OPP TO MSJ Case 2:06-cv-05578-SVW-JC Document 673 Filed 10/08/13 Page 4 of 5 Page ID #:7915 1 12. The target file of the 3630.torrent file could not be downloaded. 2 13. Plaintiffs' BT_ID List identifies dot-torrent file 16170 as corresponding 3 4 to Plaintiffs' work "Lords of Dogtown." 14. On September 28, 2013, I launched the dot-torrent file "16170.torrent" 5 using the BitTorrent client uTorrent, which downloaded eighteen files from the 6 Internet. I reviewed each of the files and determined that none of them is the movie 7 "Lords of Dogtown." Indeed, none of the files is a video file. Rather, the downloaded 8 files comprise sixteen mp3 audio files, an m3u file (which when opened plays each of 9 the sixteen audio files in sequence), a .sfv file (which I understand contains Winston & Strawn LLP 333 S. Grand Avenue Los Angeles, CA 90071-1543 10 information to verify that files are uncorrupted), and a .nfo file that contains textual 11 information about the audio files. Launching the 16170.torrent file using a BitTorrent 12 client results in a download of audio files identical to the content files Plaintiffs 13 actually produced on their hard drive on September 19, 2013. 14 15 16 15. Plaintiffs' BT_ID List identifies dot-torrent file 13261 as corresponding the Disney movie "Hercules." 16. I reviewed each of the movies that Plaintiffs provided on their hard drive 17 in the folder named "13261" and determined that each has a copyright notice stating 18 that it is "Copyright (c) 1994 by Universal City Studios, Inc." 19 17. Even if Plaintiffs had produced documents sufficient to accurately 20 identify their works--which they have not--Defendants would still have to review all 21 of Plaintiffs' tens of thousands of content files, and over 2,000 dot-torrent files, to 22 determine whether there exist other discrepancies similar to those described above, 23 and whether each of Plaintiffs' nearly 4,000 alleged works is actually accounted for in 24 Plaintiffs' list of purported infringements. 25 18. Plaintiffs produced additional documents, including additional dot- 26 torrent files and allegedly corresponding content files, the day after they filed their 27 Motion, leaving Defendants less than a week to analyze and respond to Plaintiffs' 28 claims. 3 DECLARATION OF THOMAS KEARNEY IN SUPPORT OF DEFENDANTS' OPP TO MSJ Case 2:06-cv-05578-SVW-JC Document 673 Filed 10/08/13 Page 5 of 5 Page ID #:7916 1 I declare under penalty of perjury that the foregoing is true and correct. 2 3 Dated: October 7, 2013 Thomas J. Kearney 4 5 /s/ Thomas J. Kearney SF:362821.2 6 7 8 9 Winston & Strawn LLP 333 S. Grand Avenue Los Angeles, CA 90071-1543 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DECLARATION OF THOMAS KEARNEY IN SUPPORT OF DEFENDANTS' OPP TO MSJ