RapidShare: It Ain't The Hosting, It's The Linking

from the quick,-look-over-there! dept

A few years ago, RapidShare and Megaupload were often mentioned in the same breath as the two “evils” of the internet, according to the MPAA. However, a few interesting things happened. First, Rapidshare won a series of lawsuits both in Europe and the US, that found its service to be legit. The company also went on something of a big time charm offensive, hiring a DC lobbyist to improve its image with politicians, as well as being much more proactive with the press. Finally, in the last few months, it’s made even more efforts to stop its service from being used for infringing purposes.

The latest thing, though, seems particularly silly. At a conference, the company’s Chief Legal Officer, Daniel Raimer, appears to be throwing links sites under the bus by claiming that they’re the real problem, and storage sites shouldn’t be lumped in with linking sites.

The thing is, both kinds of sites have both legal and illegal purposes, and it’s silly and counterproductive for one kind to blame the other kind. Storage sites have perfectly reasonable uses, and RapidShare has been bending over backwards to be a good player in that space. But a user-generated site that includes links to content also can have perfectly legitimate and legal uses, and it seems particularly silly to assume otherwise. From a legal standpoint, both kinds of sites should have reasonable protections against infringement (though that doesn’t always appear to be true once things get to court). But, even then, storage sites probably even have less of a reasonable claim under copyright law, because actual copies (reproduction rights) and distribution could potentially be attributed to them (though, clearly, they have reasonable claims of safe harbors). With links sites, they neither store nor transmit the content, and it’s difficult to see how they infringe on any of the key rights associated with copyright, even outside of the basic safe harbors.

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Companies: rapidshare

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Comments on “RapidShare: It Ain't The Hosting, It's The Linking”

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Ninja (profile) says:

Re: Re:

These guys business model is to profit by facilitating infringing, which is no less a crime and no less wrong.

Oh my God, they are providing a service people want and find socially acceptable! Egregious, demonic! Burn them!

They are profiting from a good service that people want. The content is generated by the users, there’s nothing wrong being done by the service itself. If the MAFIAA wasn’t too stupid to see the business opportunities, too bad, they can go die in their caves.

A crime is defined and characterized by a law. If the law has no social support then it gets discredited and mocked and the crime is no longer a crime. You can whine as much as you want but copyright infringement is not even a criminal offense. And it has very little public support as it is today. So, sorry. Linking, sharing are neither a crime nor wrong.

Anonymous Coward says:

Re: Re: Re:

If the MAFIAA wasn’t too stupid to see the business opportunities, too bad, they can go die in their caves.

I’m with you on this part, at least. I can’t imagine any other industry trying to shut down free marketing opportunities. A couple of years ago, I’d see links to Hulu and Netflix on those link aggregation sites and wonder why the networks and cable channels weren’t using them, too. These days you don’t even see Hulu and Netflix links anymore.

So, if sites like Surfthechannel make so much money off of ads, they must be getting a ton of traffic, right? Why aren’t the *IAA organizations directing that traffic to legitimate media on their customers’ sites?

Rikuo (profile) says:

Re: Re:

I’m a longtime member of a forum, that, for their own protection from the likes of you, shall go nameless. This forum has all sorts of sections for discussions about anime, games, TV shows, movies, philosophy, user generated art/poetry/fiction, etc.
The community boasts over 20,000 registered members (although only a fraction of these are like myself and regular contributors in the form of posts and threads). We discuss everything, help each other out, debate topics of interest.

There is I admit a section devoted to links. Links pointing to copyrighted material hosted on cyberlockers.

Now, I challenge you, to a debate. Should such a web-site be shut-down, because it has a section devoted to copyrighted infringement? What about the rest of the content, that is not copyrighted, but is pure speech? Unlike arguments for websites that are purely links, there are tens of thousands of posts of discussions and debates that, in the copyright cartel’s great Copyright Jihad, would be destroyed. I believe the legal term is prior restraint.

Rikuo (profile) says:

Re: Re: Re: Re:

And here is where we steer into troubled waters. While I commend you saying that no, the site shouldn’t be shut down, there is a problem saying the links section should be deleted.
Because no-one can know in this day and age if the file the link points to is truly infringing. For that to happen, you need to have a trial. More and more content is going online deliberately, often for free, on cyberlockers and torrent sites.
However, even if the content is copyrighted and not put online deliberately, it is still problematic to say “Delete the links”. The links only point to the infringing material. They are not the infringing material themselves. That material is elsewhere.

Now, I realise I have just invited copyright maximilists like bob to spew forth how we’re criminals anyway and just passing the buck back and forth between cyberlocker and link site. However, that is a fault of copyright law. There is no law saying “Directing someone to where infringing activity is taking place is in and of itself illegal”. That would be akin to me being arrested/fined for pointing you to the man two blocks over with a stall of what looks like dodgy DVDs.

Anonymous Coward says:

Re: Re: Re:2 Re:

I think a simple review of the links to see if the sites had/have received DMCA notices and complied should suffice. I actually think that the links themselves should be subject to notice-and-takedown.

The problem comes from the aggregation of a directory dedicated to facilitating infringement. You can’t simply wash your hands in the Holy Water. The guy who directs you to a dodgy dvd stand is not dedicated to facilitating infringing activity. He does not derive revenue through ads, donations or subscriptions by this activity. Presumably he does not possess an instantly available worldwide directory of dodgy dvd stands that you can be transported to by clicking a mouse. Real world analogies don’t work here.

Rikuo (profile) says:

Re: Re: Re:3 Re:

Thanks, you fell for my trap. I got you, a guy on the other side of the debate, to recognise that real world does not equal virtual world.

(By the way, bob et al…this is how a debate should be on Techdirt. He’s not using ad hominems or strawmen, he’s calmly putting forth his side of the debate in a clear, concise and logical fashion. He’s not using phrases or beliefs that fail the common sense test)

The thing about this site is…it shouldn’t fall under the DMCA, since the servers that host it aren’t in the US.

As for donations, yes, the site does run on ads and donations. However, there have been times where I’ve donated (can’t speak for anyone else obviously) even though for months, I hadn’t used a single link on the site. I feel that the donations are meant to support the site in general, and not just the links. It’s to help support an online community. I remember more than once where the site would crash, be restored from backups and whole swathes of links would be dead (especially after Megaupload was shut down)…and yet, activity on the site remained more or less the same. There were still donations, there were still postings, discussions etc.

Anonymous Coward says:

Re: Re: Re:4 Re:

Thanks, you fell for my trap. I got you, a guy on the other side of the debate, to recognise that real world does not equal virtual world.

Rather than congratulate yourself for ‘trapping’ me, we should explore this. My point was that some guy on the street being the equivalent to a linking site didn’t fly as a legitimate comparison. That is not to say laws designed to combat certain crimes in the real world have no place on line.

Just because an infringer works solely online does not mean he shouldn’t get the same treatment as a guy burning and selling infringing dvd’s out of a flea market. Enforcing IP laws online is infinitely more difficult in the real world and requires new laws and/or industry practices. But generally any new innovation in law enforcement is met with cries of censorship.

In my mind, censorship applies to expression of opinion- not entertainment. Though I am mindful of “banned” films and the implications that holds. I really believe that we have developed a generation who feels entitled to experience the copyrighted, creative output of others without compensating them. I do not believe that the cries of censorship are anything more than a smokescreen for the true agenda: freeloading.

Now since the entitled generation has found their voice and are incited and funded by corporate interests who benefit from the status quo- the enforcement aspect has moved from the legislative process to industry agreements and the application of laws that may not have been contemplated for IP enforcement. It’s too bad. You are going to get something far worse than what could have been accomplished if the SOPA debate didn’t degenerate into global thermonuclear war. So, no crying about six strikes, DMCA, ProIP, payment processors and ad network agreements. You reap what you have sown.

Rikuo (profile) says:

Re: Re: Re:5 Re:

Now here is where you’re steering into bobLand. You’re stating arguments that have no basis in reality.
When I and others here at Techdirt say stuff, we generally look at evidence and say “That’s why I say X”.

But you didn’t.
“I do not believe that the cries of censorship are anything more than a smokescreen for the true agenda: freeloading. “

What is that statement based on? Where is the proof? Whereas, those of us who WERE making the cries had proof to point to.

What are you going to say to those who don’t pirate content, but who would be adversely affected by six strikes et al? Sorry, but you’ve reaped what you’ve sown?

JMT says:

Re: Re: Re: Re:

“If the site is dedicated to infringing activity…”

This is one of the stupidest phrases associated with the war on websites, and is typical word twisting by copyright maximalists. The dictionary says the word dedicated means “wholly committed to something, as to an ideal, political cause, or personal goal”, or “set apart or reserved for a specific use or purpose”. This simply does not describe any website I’ve ever seen. Until someone launches a website that specifically bans non-infringing activity, there is no such thing as a site “dedicated to infringing activity”.

Anonymous Coward says:

Seems to me linking is not as clear cut as one would think.

Suppose a site exist where a reference is made to another site by the posting of the referred site’s URL or name with out knowledge of what is actually on the site. Clearly here linkage is not infringement.

Suppose there is another site with equal format and content with one and only one exception. On this second site a viewing window exist such that one may view infringing content, that is known to infringe, by means of a link. Does the fact that a link is used resolve the site of infringement? A positive answer here does not sound reasonable and should not be a means of evasion of responsibility.

Anonymous Coward says:

Re: Re:

And how would anyone know that there is something infringing or not?

Is there a database or visual map anywhere where people can trace back where that content originated from and if it is authorized or not?

Why waste the time to go after the people pointing to something and not go after the actual people doing the distribution?

The linking people produce nothing, host nothing and they are popup like weed.

What is the problem the people behind the content can’t find and easy way to shutdown an infringing stream?

It seems like some people want everybody else to be forced to help them or else they are guilty of something.

This is not the responsibility for the people to look at something and decide if it is legal or not, if it can be found somewhere people just should assume that it is legal and let the people interested in “protecting” that do the work of policing that stuff, not others, that have no means of knowing anything and should not be asked to be vigilantes for the private sector.

G Thompson (profile) says:

Re: Re:

There is absolutely no difference in either since infringement as a legal concept can ONLY be decided by courts and not by individuals.

Even if a link points to what any reasonable person would think to be an obvious infringement until at such time that the owner of said work actually initiates a legal action then no one (including the courts) can state that it is infringing. This initial action by the plaintiff can be as simple as a DMCA notice (which is what the DMCA was designed for initially) but it still until purely stated by a court not an infringement. Just because some owner states it doesn’t make it so.

The only difference when a DMCA notice (or other legal method) is initiated is that vicarious liability can rear its head if due diligence is not carried out by the receiver of action first (if they are a third party like ISP, content provider, etc) though it is still beholden to due process requirements and can be challenged.

The ONLY links that have absolute liability are ones to purely criminal material that a reasonable person would know at first glance, after being told and not if they have no reasonable expectation to monitor, is illegal content.

Unlawful content (infringing material) since it is civil , unless egregious enough to make it a criminal matter and even then, is ONLY up to the courts (or appropriate judicial authority) to decide if it is infringing.

Stating that link farms, or community forums, or anything are unlawful or illegal is ethical and legally wrong and smacks of tortuous interference and a stagnated business model in denial.

Zakida Paul says:

Rapidshare is a good site and the people who run it do so properly. They realise that it would be very expensive (perhaps impossible) to police every single file uploaded to their servers. They respond to complaints of illegal content by removing it in a timely manner. That is all that sites like this can do because you cannot control the will of users.

Yes, they are used by criminals for illegal activity but so are roads. Here is a newsflash, any service that makes life easier for the public will be exploited by criminals. You do NOT fight this by going after the service or the general public, but by going after ONLY the criminals.

Anonymous Coward says:

Re: Re:

Rapidshare does more than just remove content after a complaint. They have a system where they prevent that same file from being uploaded again. They also search for links to their service on the web and screen for copyrighted materials.

Rapidshare didn’t start out being so proactive. They were the largest and first file hoster to face numerous court battles. Win or loose, this process allowed Rapidshare to reinvent itself, to evolve into what it is today -which is still continuing to adapt.

What new technology doesn’t deserve a chance to evolve? YouTube wouldn’t be so great if they had been shutdown when it first started and there were competitors with YouTube that were shuttered so fast they couldn’t exist or evolve.

Yes it’s true that these sites can be used for piracy. Same with linking. But does it do society or even the creators of the material any good when technology is shut down so fast that it’s not given a chance to evolve into a legit service?

That’s what I see happened to MegaUpload. They weren’t given the chance to evolve.

Rikuo (profile) says:

Re: Re: Re:

” They have a system where they prevent that same file from being uploaded again.”

How? Off the top of my head, I can very quickly think of one very easy to defeat this.
Presuming that they match file MD5 hash tags (or other similar hashes), all you have to do is alter your file significantly enough and you’ll be able to reupload it again. If they blocked your InfringingMovie.rar file, open up the archive, throw in a few small jpegs or mp3s, and save. There, hash has been changed. To Rapidshare, it’s now a completely different file.

Anonymous Coward says:

Re: Re: Re: Re:

Yup, it’s very easy to circumvent and yet few uploaders do so. Most are just reposting another’s uploaded file, over and over and over again. I don’t know what all is involved in ripping movies but I have noticed teams that do it and there are only a handful of those. So most are just reposts of the same file. That means thousands though.

Anonymous Coward says:

Re: Re: Re:2 Re:

Another example is that most uploaders put the full name of the movie into the link. Dumb? Yeah, if you want the file to stick around for more than a few hours. But the point is that there are some VERY simple things a file storage site like Rapidshare can do to immediately weed out most of the infringing links with very little trouble or effort and without using sophisticated techniques.

The average person does not consider “sharing” to be anything than sharing like they’ve always done. The industry is trying to make average things, that average people do suddenly illegal.

Why do we still pay a tax for on recordable media then? Try and explain to my 90 year old father that what he’s doing is now considered wrong when he burns a disc instead of a cassette of music.

Anonymous Coward says:

this is nothing less than a bullshit exercise by Rapidshare to try to put the spotlight on to other areas of the Internet. the chances are Rapidshare has done a deal with the entertainment industries to help portray Linking Sites as being the really ‘bad boys’ whilst being left alone itself. given the trustworthiness of the entertainment industries, if i were Rapidshare, i would be trying to ‘cover my ass’ at every turn and expecting to be picked on again as soon as the opportunity arose. my opinion is, anything that happens to Rapidshare is well deserved. you dont condemn a site for doing the same as you and expect to continue to thrive. customers are what makes a business. shit on them and they move off!

Anonymous Coward says:

I’m really glad that those idiots are only taking down links to files instead of the actual files. A bunch of text is much easier to rehost than a bunch of RAR files.

Smart move on RapidShare’s part, too, pointing the dinosaurs at linking sites: they’re already angry about them, and now RS doesn’t have to bribe them. (e.g. pay $100m for dino-approved “filtering software” that doesn’t really do anything in exchange for a month or two of them not complaining that you’re not doing enough to “fight piracy”.)

And, as an added bonus, we’ll get further hilarity from the US! Expect ICE to roll out and start locking people up for the “crime” of illegal hyperlinks any day now. Good thing they don’t bother with warrants anymore, otherwise people would have to do something against the law before being arrested. Maybe we’ll get lucky and the director of ICE will publicly admit that he’s having people arrested for things he thinks should be crimes! Only thing funnier than that would be if he started having people arrested for complaining about him abusing his power.

Anonymous Coward says:

Actually, Rapidshare mostly seems to be going down the road of YouTube – doing JUST enough to be able to claim to be a “good citizen”, while still being quite a little cesspool of pirated material and other stuff you wouldn’t want to see.

They are very close to the line, and are likely to get sucked under as the file locker / pirate affiliate programs all get sucked under in the next 12 months or so.

GuyFromV says:

What’s funny is nowadays when you find pirated stuff on most other “linking” sites (ie the hosting and linking sites) ~50% of the time they are removed quickly with a mean page saying it was because it was illegal or something within hours or days. When you see a RapidShare link of the same material, it is almost always still there…even after weeks and months. Comedy. But they also limit DL speeds to oblivion and pause the download every minute or so to screw with impatient people and DL managers so fuck ’em.

Anonymous Coward says:

I make a copy of a movie every time I watch it that I replay in my head, is that going to be infringement next? The internet is just an extension of the collective minds of society. It’s where we store our knowledge and where our minds interact. If corporations keep trying to limit that, then we as a collective society should eliminate them. They are the real problem here, not 12 years olds sharing songs on the web.

Rikuo (profile) says:

What about ChillingEffects? I remember hearing a few weeks ago about a completely ridiculous situation. Google was sending all their DMCA notices to ChillingEffects, and in these notices, were the links that were to be blocked. So guess what happened? Google got DMCA notices…to block these DMCA notices.
So Google was getting a DMCA notice to block http://www.chillingeffects.com/RandomDMCANotice11439.html that has a link to http://www.rapidgator.com/InfringingFile12200.html. So then there were fresh DMCA notices to block the DMCA notice to block the DMCA notice that contains the original infringing link, ad infinitum.

Anonymous Coward says:

I think there is a fair contrast between Rapidshare and MegaUpload. They both were offerring very similar services. MegaUpload paid people per download which is the same promo that Rapidshare used to gain top spot in the file hosting business.

I think it was a court battle with GEMA that produced the agreement that Rapidshare would stop paying uploaders for the number of downloads (payment was a free premium account, not cash).

Rapidshare spends apx $150k on lobbying.

MegaUpload spent apx $185k on advertisments for a new service and it’s called “money laundering” and they are shut down, offline and owners are picked up with SWAT teams waiting for criminal charges.

What if Google, YouTube, Rapidshare, most new services had been treated like MegaUpload? I doubt if the world would have made it to Windows 98.

Anonymous Coward says:

Do you have a citation to a final judgement from a US court that RS was not liable for copyright infringement? I recall Perfect 10 being denied it motion for a preliminary injunction in a lawsuit it was pursuing against RS, which is not at all unusual, but do not recall if that or any other case involving RS proceeded to a full trial on the merits.

ebilrawkscientist (profile) says:

Chains to the manacles.

Links huh? Bad links? Oh hai click a link then do tracert on it Yikes… it sure has to go thru a lot of links to get to the bad link that serves up the actual NastyFile huh? Oh maybe that path it has to follow thru links “read IPs” should make each and every transport point an infringement since each one in turn links to another link (read IPs) until ultimately it arrives at the linky link thats deemed nasty bad awful no good link called infringement. Yoikes! Ma ma, O noes, teh intarwebs haz grow’d razor wire!!!

> Infringe Files BAD

If little Johnny links to a bunch of files on some server thats chock fulla infringing file, no blame, no shame. One hundred percent plus innocent.

If little Johnny uploads an infringing file to some server thats chock fulla infringementals, bad bad Johnny, shameful boy U shall get no pie.

Now, little Johnny is just one boy. Uploading one bad file. No shame no blame. We know he’ll just share ’em with his friends and fambly not entire planet.

However, if little Johnny decided to be a comercial outfit and upload thousands upon thousands of copies of nastybadfile to hundreds of servers to make a profit from direct sales of things that he did not himself make. Ut Ut Oh Oh we can haz big bad problem, M’kay? LawSharks get hungry and they like raw meats.

They still weld heavy steel ball things on the other end of the chain from the manacles amirite?

> DvorakFace vs QwertyFace next on Techdirt!

JoeCool (profile) says:

I still call it "RabidSwear"

RapidShare has NEVER been a reliable service. Anytime someone posted their free app or game to RS, I’d “politely” ask them to move it to a GOOD service like MediaFire. I haven’t been able to download ANYTHING from RabidSwear since 2010… it just quit working. I’ve googled on the problem, and it seems I’m not alone – many MANY people can no longer use RabidSwear.

In case you’re wondering, I use MediaFire for all my sharing needs – all LEGAL in case you were also wondering about that. I’m really into homebrew for old consoles.

Manfred Manfriend says:

Why should I subscribe to Rapidshare then?

That’s the thing people seem to be not seeing. Rapidshare only makes book by the willingness of its users to pay for its service. If they insist on stabbing their customers in the back this way, what incentive is there to continue supporting them?

If someone needs to move files around there are better services that work better while remaining free. If someone needs to do offsite back ups, again there are better services that are cheaper. What makes Rapidshare interesting is that “pirates” and “freeloaders” are willing to pay for access.

Piss them off and…well, when’s the last time you heard from Fileserve.com?

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