Warner Bros. Admits To Issuing Bogus Takedowns; Gloats To Court How There's Nothing Anyone Can Do About That

from the too-bad,-suckers dept

One of the bizarre side notes to Hollywood’s big lawsuit against the cyberlocker Hotfile was a countersuit against Warner Bros. by Hotfile, for using the easy takedown tool that Hotfile had provided, to take down a variety of content that was (a) non-infringing and (b) had nothing to do with Warner Bros. at all (i.e., the company did not hold the copyright on those files). In that case, WB admitted that it filed a bunch of false takedowns, but said it was no big deal because it was all done by a computer. Of course, it then came out that at least one work was taken down by a WB employee, and that employee had done so on purpose, annoyed that JDownloader could help possible infringers download more quickly.

As we’ve noted many times in the past, there is almost no real punishment for filing false takedowns. The “penalty of perjury” language appears to only apply to the question of whether or not the person filing the takedown actually represents the party they claim to represent — and not whether the file is infringing at all, or even whether or not the file’s copyright is held by the party being represented. And, in the lawsuit, Warner Bros. is relying on that to try to avoid getting hit with a perjury claim. Basically, the company is saying: sure, sure, we lied and pulled down content we had no right to pull down, but the law is so laughably weak and in our favor that screw you all, it doesn’t matter what we take down. While WB actually did “agree” to a more strict perjury clause in agreeing to Hotfile’s terms, it’s now arguing that the terms it agreed to don’t count because they’re different from the DMCA:

Hotfile first argues that the language on its website substantially complied with the DMCA and because Warner “was not the owner or authorized by the owner of the materials to issue the takedown notices,” its takedown notices contained false statements under penalty of perjury. Opp. at 3. But Hotfile’s argument is a sleight of hand that would transform every mistaken notice sent to Hotfile into a false statement under penalty of perjury. The sender of a takedown notice who mistakes a file for an infringing copy of its work is never the “owner or authorized by the owner” of what the file actually is. But the DMCA expressly does not require the sender of a notice to certify under penalty of perjury that they have correctly identified the complained-of file as one of their works. A takedown notice’s “[i]dentification of the copyrighted work claimed to have been infringed” is not made under penalty of perjury. 17 U.S.C. § 512(c)(3)(A)(ii). A statement under penalty of perjury, under the DMCA, applies only to the claim to represent the copyright owner of the specific right alleged to be infringed, i.e. instances in which a copyrighted work is identified by a notice and the issuer falsely claims to be the representative entitled to take down the work so identified. See 17 U.S.C. § 512(c)(3)(A)(vi). Hotfile makes no accusation, and has no evidence, that Warner ever falsely claimed to be acting on behalf of the true copyright owners of the files it accidentally took down (e.g., that Warner, instead of misidentifying files as its own, ever identified them as the works of other copyright owners, but then claimed to represent those other owners).

On the legal analysis, Warner Bros. may actually be correct here — but it only serves to highlight how weak and ineffectual the DMCA 512(f) is, in that it’s basically impossible to punish anyone who ever takes down legitimate content with a bogus takedown. As you read the filing, WB appears to be almost gloating that the way copyright law is written, it can take down whatever it wants, and if you don’t like it, well, go shove the DMCA up your… and good luck.

If ever there was evidence that there needs to be real teeth behind punishment for filing bogus DMCA notices, it seems like this case should be exhibit number one.

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Companies: hotfile, warner bros.

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Comments on “Warner Bros. Admits To Issuing Bogus Takedowns; Gloats To Court How There's Nothing Anyone Can Do About That”

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Rikuo (profile) says:

“A statement under penalty of perjury, under the DMCA, applies only to the claim to represent the copyright owner of the specific right alleged to be infringed, i.e. instances in which a copyrighted work is identified by a notice and the issuer falsely claims to be the representative entitled to take down the work so identified”

Someone tell me if my understanding of it is correct? The perjury only kicks in if I identify a copyrighted work and send a notice to whoever’s hosting it saying that I am Corporation XYZ when I know I’m not, and that that is “my” work on their servers. So basically, WB are arguing that the perjury clause (lying in the legal world) only counts when you lie about who you are, not when you say you’ve correctly identified a work as your own…which is still a problem WB! In order to back up your demand to Hotfile that they take down files, you asserted you were the copyright holder. You did commit perjury, no way out of it.

Bergman (profile) says:

Re: Re:

It occurs to me you could have some fun with that, if WB’s argument about the nature of perjury is true.

Step 1: Hypnotize a guy to believe he owns WB copyrights.

Step 2: Have him issue DMCA notices to the backbone provider that supplies WB’s net connection.

Step 3: When WB complains, point to the fact that the guy who issued the DMCA notices actually believed in good faith he had the right to do so…

Step 4: Watch WB get nowhere since 512 (f) is so weak…

out_of_the_blue says:

Warner Bros. actually IS correct here.

If there’s no penalty in the law then there’s no penalty!

You can only cite TWO instances of abuse compared to the daily MILLIONS of knowing infringements, so even if one is egregious and intended, BIG DEAL. It’s not even a pattern for WB: they’ve apparently agreed to watch it in future. But how many pirates have agreed to stop stealing?

If Mike supports copyright, why are the pirates here? They take him same as I do: PRO-PIRACY!

silverscarcat (profile) says:

Re: Warner Bros. IS *NOT* correct here.

Tell me something, blue, if I pirate something, who am I hurting?

WB commits fraud using the DMCA, stuff gets taken down, stuff gets removed, content and comments are removed.

Seems to me that the “only two incidents” causes WAY more harm than the “Millions of knowing infringements” does.

Anonymous Coward says:

Re: Warner Bros. actually IS correct here.

If you support the artist, you would be against this as it means the publishers can take down any self published work without penalty; at least that is what What Warner are arguing. If their attitude stands, the publisher can control every bit of culture by using DMCA notices, because only people with money could try to fight them.

Gwiz (profile) says:

Re: Warner Bros. actually IS correct here.

If there’s no penalty in the law then there’s no penalty!

Now wait a minute Blue, I thought it was your belief that Common Law trumps statutes (I don’t believe this is true, but apparently you do) and that only the actual creators have inalienable rights to their own creations based on your (faulty) interpretation of Common Law.

But in this instance your are saying that the statute is the upmost authority and it’s OK for any third party to exercise rights on creations that don’t belong to them.

It’s amazing how your arguments change depending on the subject. Apparently your hypocrisy knows no bounds.

Anonymous Coward says:

Re: Warner Bros. actually IS correct here.

” If there’s no penalty in the law then there’s no penalty!”

except for the fact they dmca’d jdownloader which is noninfringing and not copyrighted by WB, so they did commit perjury under dmca. in order to send a valid dmca takedown you claim to be the copyright holder under penalty of perjury.

” You can only cite TWO instances of abuse compared to the daily MILLIONS of knowing infringements”,

techdirt has far more than just two examples of abuse, and it’s absurd to think that a small number of abuses mean it’s somehow not a problem.

if only a few big corporations are using dmca to censor what they don’t like that could still affect a lot of people

you of all people with with your big corporate is evil stance should understand that

Anonymous Coward says:

Re: Re: Warner Bros. actually IS correct here.

“except for the fact they dmca’d jdownloader which is noninfringing and not copyrighted by WB, so they did commit perjury under dmca. in order to send a valid dmca takedown you claim to be the copyright holder under penalty of perjury.”

Now if it had been Google that sent a DMCA notice to some owner of website to have something of theirs removed and something of Warner Bros. was removed (accidently) by mistake then you can sure bet that OOTB (knowing his dislike for Google) will be calling for Google to be astronimcally fined for committing perjury for exactly the same incident that has occurred here with Warner Bros. that he is defending.

Wally says:

Hotfile has a case...

Read this article from 2010…


It even mentions how it was basically ruled that punishment from a bogus takedowns mentioned in that case were punished because the issuer of the DMCA takedown notices knowingly violated Section 512 (f)….and no evidence was needed to assess it….

Warner just admitted that they did in fact knowingly did violate 512 (f)…so that gloating they did may just have shot themselves in the foot.

Anonymous Coward says:

It could be argued that after being notified repeatedly that they were not the owners of such material and still sending takedowns constituted implied claim of representation.

This is not a case of misidentified content, this was done on purpose, the WB employe removed JDownloader purposefully because “it might help piracy”, he knew he didn’t own the rights or was representing anybody who represent the owner of that content and still issued the takedowns, that is implied there that they claimed something by the actions taken.

Anonymous Coward says:

i thought that there was a ruling that just because something COULD be used to infringe copyright, didn’t mean it WOULD ONLY be used for that purpose, and was therefore not illegal? that being the case, the WB employee was definitely in the wrong, just as WB themselves are in bringing the whole damned case!
problem is, the courts, the politicians and the law makers have been so outrageously encouraged to back the entertainment industries, any ruling against one or more of them would be met with total aghast and threats of some sort or other, detrimental to which ever person or party concerned. things should never have been allowed to get to this stage! it’s exactly the same scenario as the NSA etc and what they have been doing. they weren’t stopped on something, so they stretched it further and further until the powers they have given themselves are almost unstoppable! now we are in shit streets over all manner of things, and as usual, the greedy USA is the cause of it all!

alternatives() says:

Re: Re: Isn't there a right to an honest and fair trial?

Most states don’t allow for a civil action for perjury.

But there is the violation of rights – a right to a fair and honest proceeding.

Thus – the people wacked by a wrong DMCA would have a civil rights violation. Because why would the right to a fair trial not exist for civil issues?

Anonymous Coward says:

Re: Do I understand this?

Here’s the wording of the statute:

(vi) 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.

Their argument is that the penalty of perjury only applies in the statement that the person filing the complaint is authorized by the legitimate holder of the copyright on the file that is allegedly infringed on. The statement that all of the information is accurate only has to be there. So if I claim to be authorized by WB to have their trailers removed via the DMCA, and I am not then when I send the DMCA complaint, I would be committing perjury. However if I am authorized to do this and I submit a complaint made that results in a different file being taken down by mistake (perhaps because the file was named the same and no one looked to see if it was or not or the company accidentally took down one file when they were supposed to take down the other or a typo in the url in submitting the complaint or something like that) since the statement of accuracy although it is required is not subject to perjury, no perjury has occurred.

So issuing take down complaints on their trailers would constitute perjury as you would have to claim that you were authorized to issue those complaints by them.

Anonymous Coward says:

Re: Re: Do I understand this?

I understand WHY it is worded this way but it’s still faulty logic. In drafting this section, they wanted to make intentionally issuing a bogus DMCA complaint to censor content by impersonating an authorized person a crime, however they didn’t want to make honest mistakes a crime inviting every complaint being made to be scrutinized for typos and such claiming that the person committed perjury by error. However the legal definition of perjury already covers this…


n. the crime of intentionally lying after being duly sworn (to tell the truth) by a notary public, court clerk or other official. This false statement may be made in testimony in court, administrative hearings, depositions, answers to interrogatories, as well as by signing or acknowledging a written legal document (such as affidavit, declaration under penalty of perjury, deed, license application, tax return) known to contain false information. Although it is a crime, prosecutions for perjury are rare, because a defendant will argue he/she merely made a mistake or misunderstood.


In other words, unless you submit the document under penalty of perjury knowing that it is incorrect (even if it is indeed incorrect) you haven’t committed perjury. Honest mistakes by definition cannot be perjury.

Anonymous Coward says:

Re: Re: Re:2 Do I understand this?

My point was that I could see the reason they separated the statement of accuracy from what was covered as being under penalty of perjury. That is so that people wouldn’t claim that just because something was mistyped or had some other miniscule accidental mistake, that the submitter committed perjury. However, by the very legal definition of perjury, a person has to KNOW there is a mistake when the submit it so the statement of accuracy COULD have been (and SHOULD have been) included in that even though that’s not how the law is currently written.

MrWilson says:

Re: Re: Re:3 Do I understand this?

I am of the opinion that the act of automating the process is already itself perjury. Programs can’t make legal claims and humans can’t make legal claims to the actions of programs.

“I swear under penalty of perjury that this program was designed with the the best of intentions and it is programmed to believe that to the best of its knowledge, we are in fact the owners of the copyrighted work in question…”

That One Guy (profile) says:

Re: Re: Re:4 Do I understand this?

Agreed, the fact that you can automate a process that’s supposed to involve legally stating that something is true(In this case ‘I am the copyright owner and file X infringes on my copyright’) shows just how weak the law itself is, as well as providing the perfect scapegoat if someone hits back on a bogus claim.

‘No really, it’s not my fault the program flagged a bunch of your stuff as infringing, it’s the program, I didn’t have anything to do with it other than setting the search terms!’

Anonymous Coward says:

Re: Re: Re: Do I understand this?

I would say that the counter argument to theirs would have to be that you cannot swear under penalty of perjury that you are authorized for something until you first positively identify what exactly that something relates to. In other words saying that I swear I am authorized to act on behalf of the content holder of a work I would first have to accurately determine what the work is and who the content holder is otherwise the second part has no meaning.

DannyB (profile) says:

Done by a computer

So if Warner Bros sends false DMCA takedowns under oath, but they are done by a computer, it’s no big deal.

But Google’s search results, done by a computer, are an issue of major national importance. Google’s evil search results must be recognized as the tool of Satan(tm) that they are, and Google must be stopped from providing information that might be embarrassing, or hinder our obsolete business model.

One of the two above things is evil. The other is innocent and for the benefit of all.

Anonymous Coward says:

So Warner Bros. issues a DCMA takedown for something it claims to own (but knowingly doesn’t) and they aren’t doing anything wrong?

At the very least, you’d think the owner of the content would be able to charge them with theft of ownership rights. I mean if it’s “theft” of someone’s rights to copy it without permission, it should unquestionably be “theft” by claiming to own that right when you know you don’t… right?

Mark Wing (user link) says:

Seems like if the bar only has to be set at plausible deniability, then they may be playing with fire. Because what is then to stop someone with the money from spamming these same companies with DMCA takedowns for their content? Seems like some of the content companies are fighting for the weapons that will ultimately be used against them. “Oops, I accidentally sent 4 billion takedown notices for every piece of content that contained the word ‘the’. Honest mistake, I swear under penalty of perjury!”

Anonymous Coward says:

Re: Re:

As I explained earlier, they are claiming this was a “mistake” (ie. not willful) and for that to happen the courts would have to determine that it was willful. Based on the current wording of the statute, they have a point about the claims that it was perjury. What needs to happen is that the law needs to be fixed such that the statement of accuracy is put under the penalty of perjury.

anonymouse says:

Intent of the law

I believe that in many case people have been jailed becasue they did something that was against the intent of the law and not what was actually written down as the law. Surely in a court case where there are 12 jury members they will recognize this and the Judge should also inform them that this is the case.

The intent of the perjury sentence in the DMCA was to prevent people from requesting content be removed that did not belong to them or that they did not have the authorization from the copyright holder to take it down.

In many cases individuals have fallen foul of the law becasue they think because they managed to find a way to twist what the words say that they could win.Intent of the laws is what is relevant here and I hope that any lawyer would use that to show the Jury how Hollywood is playing games and not interested in doing the right thing, but using a loophole they have created to get away with doing something that the DMCA was explicitly designed to deny.

Hollywood seems to be very excited about the fact that they can twist the DMCA to only support what they want from it. But if this case is successful and i believe there is a slight chance it could be if the lawyers are clever enough, this could stop Hollywood in its tracks, Google could find relief in their DMCA department as organizations stop sending DMCA requests, as the millions of DMCA request received after this case is settled could be setting Hollywood up for one massive settlement bid by Google and others in the future.

Michael W. Perry (user link) says:

This isn’t, as some are claiming, a reason to eliminate copyright. Most copyrights are issued to authors who have trouble meeting their monthly bills. They desperately need copyright to prevent what happened often in the 19th century, when big publishers would simply steal books of little authors if those books became popular.

What we’re talking about here are several things:

1. Abuse of copyright by the big and powerful, particularly in that bastion of greed and corruption–Hollywood.

2. The gutlessness of various web-based distributors, who buckle under the slightest pressure. A good illustration of that is Cafe Press. I placed on their website a t-shirt with the cover of my book Untangling Tolkien. At least three statutory provisions of trademark law specifically protect that. Yet when a jerk-lawyer in San Francisco sent them a letter, they not only yanked by t-shirt, they were so gutless they wouldn’t even supply me with that lawyer’s letter. Never forget that for every bully, there’s at least one coward.

3. Unimaginative judges and the general corruption of the legal profession. Both the courts and the legal profession should come down on these abuses like a ton of bricks. They don’t.

There’s a lot more to be said. I would offer some suggestions.

1.Every state has a professional body that’s supposed to rule on unethical conduct by lawyers. When this sort of behavior happens, file a grievance with that body. Of course, we know that they’ll do nothing. In a case where I filed a grievance–I kid you not–their rejection of my claims was literally rubber stamped with the signature. But file anyway, because it’d take time for the legal system to process your complaint and for that lawyer to defend himself. And when it fails, as it inevitably will, see if there’s an appeal process and go with it. Make trouble.

2. Even more important, when you file that grievance, you’ve created a public event. Give it publicity. Post the story to websites, contact the press, perhaps even send a copy of your grievance to other law firms, soliciting their support. Yes, it will at times seem to have no more effect that water dripping on stone, but overtime even that will wear down the stone. The legal profession care nothing about unethical behavior–most lawyers will even admit that to you. But it cares a lot about bad press. Create that bad press.

3. Finally, point out just how hypocritical the legal profession is. Lawyers will claim that they can give little or no advice without you being their client and thus paying them. And yet lawyers, through their cease and desist letters, are constantly offering very bad, nasty and threatening legal advice. Why isn’t that unethical?

The solution is quite simple. May it a crime for a lawyer whose not your lawyer to make any threatening statement to you that is not virtually 100% certain of holding up in court. For anything else, our laws should be such that all you need to is forward that letter to a new and much-needed branch of law that’d be able to sue that nasty lawyer both for their fees and for harm that has come to you, including lost time, lost business and emotional upset.

Remember, the criteria for that is that this bad lawyer cannot make threats to a non-lawyer that are virtually certain of being upheld by a court. At most, this lawyer can only suggest that their might be some problem and ‘could you please supply me with the name of your lawyer.” No threats and no nastiness directed in legal language at the general public. None. Doing so is an automatic grounds for a lawsuit that can pay off legal fees and damages.

I sometimes summarize that needed legal reform by stating that lawyers must always deal with non-lawyers displaying the uttermost politeness, while at the same time lawyers can do anything they want, since the other lawyer is likely to know what they’re claiming is nonsense and recognize that typically, the louder the threat, the weaker the case.

–Michael W. Perry, author of Untangling Tolkien, a book that was the center of a 15-month copyright dispute, ultimately settled by the federal court judge dismissed the case ‘with prejudice.’

Ryan Bach says:

Re: Warner Bros is incorrect as a matter of law

Oops, accidentally submitted and can’t edit since I don’t have an account. Anyway… Warner Bros is correct that 512(c) explicitly does not require that the submitter of a takedown notice verify under penalty of perjury that the content in question is, in fact, their copyrighted work. This has widely been interpreted as protecting parties who file takedowns in error, even if they generate large numbers of erroneous takedowns by using automated software.

HOWEVER, Hotfile seems to be making a damages argument under 512(f), which applies to “[a]ny person who knowingly materially misrepresents … (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification” is subject to damages, including attorneys’ fees. Courts have interpreted that language “knowingly materially misrepresents” pretty strictly, but Warner Bros’ seems to have reached even that very high bar on both counts. From this article, at least, it sounds like a WB agent issued at least one takedown notice despite knowing that the claim was false, and that WB later lied about this and claimed that all of the false takedowns were the result of a mistake made by automated software. The second one might not be knowing material misrepresentation if the person who said it didn’t actually know it was untrue, but the takedown itself seems to have been a knowing material misrepresentation that JDownload contained anything that was even potentially infringing a WB copyright.

TL;DR: 17 USC 512 stacks the deck in favor of the party filing takedown notices if they can claim it was a mistake, but it does NOT protect knowingly false takedown notices. Proving the “knowingly” part isn’t easy, but this may be one of the rare cases where it can be proven.

Google ’17 USC 512′ and look for a Cornell Law result if you want to read the statute yourself. Not sure if links in comments are kosher here.

Anonymous Coward says:

so wb competitors can legally wipe every WB movie from Google by simply paying $25 and registering a 1 page script.

interesting world WB wants to live in.

I wonder if they would support that argument if hotfiles lawyers explictly pointed that out.

doesn’t hot file( access give them way more rights then the standard DMCA and therefore don’t they (hot file) have a right to extend the penalty for abusing their service (super DMCA).

If WB wanted to just be bound by the conditions of the DMCA only and make the argument they are making shouldn’t they NOT use the extra features governed by the extended licencing agreement.

Smashmouth says:

This nation has lost its moral fiber

It was the willingness to use sledgehammers on the pretty faces and ornate trinkets of the aristocrats that got Americans most of the rights they’re losing today — the history of a century ago ably illustrates as much, plus the use of foreign war as a cover for steamrolling over the class war and bringing in the Gilded Age. Would gamifying sledgehammers make a better, more durable outcome more likely?

Kidding aside, Americans have to learn to not like licking aristocrat ass, REALLY not like it rather than mere affected nose-wrinkling and whining while strongly promoting and defending the system of ass-licking in the laughable faith-based crack-addled fantasy that maybe, someday, it’ll be their ass that gets licked. Tools.

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