Warner Bros. Has To Reveal The Process By Which It Sends Automated DMCA Takedowns

Copyright

from the good-to-see dept

We covered the movie studio’s lawsuit against cyberlocker Hotfile, which ended in a settlement, but there was an interesting side story involving a countersuit against Warner Bros. for abusing the copyright takedown process. From Hotfile’s filing at the time:

Warner has acted unscrupulously and dishonestly. Not only has Warner (along with four other major motion picture studios) filed this unfounded and contrived litigation against Hotfile employing overly aggressive tactics, Warner has made repeated, reckless and irresponsible misrepresentations to Hotfile falsely claiming to own copyrights in (or to have the owners’ authorization to delete) material from Hotfile.com. Worse, Warner continued to make these misrepresentations even after Hotfile explicitly brought this rampant abuse to Warner’s attention, ruling out any possibility that its wrongful actions were accidental or unknowing. Thus, Warner has knowingly made misrepresentations and it has engaged in DMCA abuse on an unprecedented scale by grossly misusing the powerful anti-piracy software tool that Hotfile specially created at Warner’s request.

Among the works taken down by WB’s bogus requests were open source software. WB admitted to sending bogus takedowns, but basically said there’s nothing illegal about that and there’s nothing anyone can do about it. Basically, WB says that you can take down the wrong files all day long and that’s fine. The only thing you’re not allowed to do in a DMCA notice is misrepresent that you’re authorized by the copyright holder to file a takedown (even if the takedown is bogus).

In settling, it seemed as though the issue of WB’s abuse of the takedown process might fade away, but the EFF picked up that ball and ran with it, and now the court has ruled that Warner Bros. has to reveal the details of its automated takedown system to see if it’s in violation of the DMCA’s 512(f) clause regarding “misrepresentations” under the law. As we’ve described for years, 512(f) has basically been shown to be almost entirely toothless. However, there have been a number of attempts to change that. Here’s EFF’s summary of the judge’s ruling here:

A judge found that Warner might be liable under Section 512(f) of the DMCA, which prohibits sending takedowns without having a basis for believing the content is actually infringing a copyright owned by the person initiating the takedown. The judge ruled that Hotfile had presented enough evidence of abuse that a jury could decide the issue. But before the case could be heard by a jury, the parties settled, and Hotfile shut down. So there was evidence that Warner may have crossed the line, but the details have been held under seal, inaccessible to the public. In February, EFF asked the court to release the sealed records that explain the court?s decision, including aspects of Warner?s robo-takedown system that Hotfile had challenged.

At an oral hearing in the Miami federal courthouse on Thursday, attorney Dineen Pashoukos Wasylik argued for EFF. Noting that court records are normally supposed to be open to the public, Judge Kathleen Williams ordered Warner to release certain information within ten days of Thursday?s ruling, and to propose a schedule for releasing the rest.

While it’s unlikely that anything will happen directly here, at the very least, the details here could be useful given that copyright law is up for reform, and that could (finally) include putting some teeth into punishments for abusing the DMCA takedown process to take down perfectly legitimate content.

Filed Under: automated takedowns, dmca, takedowns
Companies: eff, hotfile, warner bros.