MPAA's Argument Against Hotfile Assumes Any Popular Content Online Must Be Infringing
from the and-for-this-they-want-summary-judgment? dept
When the MPAA filed its initial lawsuit against Hotfile, we noted that we were surprised at just how weak the argument was. Honestly, we thought that for all the talk of how evil Hotfile was, they would have a stronger argument. As expected, the MPAA has now filed for summary judgment in the case (standard behavior at this stage in a case like this). What’s interesting is how much the motion for summary judgement appears to match the US government’s indictment against Megaupload, including the questionable interpretation of perfectly reasonable behavior. Basically, the MPAA seems to think that the only possible interpretation of certain facts is that Hotfile was heavily encouraging copyright infringement. While there are some points that may cause trouble for Hotfile (its failure to set up a DMCA agent is a big one), many of the claims are ridiculous and seem to exist in bizarro world.
The more you read, the more you shake your head. The MPAA’s circular arguments can basically be summarized as “We shall prove that this tool is illegal. Exhibit A: People use this illegal tool.” Very large segments of the motion are basically this tautology over and over again. “Oh my goodness, this is illegal, and our proof is that it’s designed so people use it!”
For example, the motion focuses on Hotfile’s affiliate program for uploaders, which is quite similar to Megaupload’s. However, the MPAA interprets this in a bizarre way suggesting that it was designed to encourage infringement. Why? Because it was designed to encourage usage. Really. The affiliate program pays people more if more of their content is downloaded. According to the MPAA that alone is evidence of encouraging infringement. That seems crazy. As we pointed out, plenty of artists used such services themselves to distribute their own works free to consumers, while still getting paid for it at the same time. This is a business model that cuts out the legacy gatekeepers… but does that make it against the law? In the eyes of the MPAA, absolutely.
Hotfile’s Affiliate program affirmatively discourages users from uploading files that are not downloaded frequently, because those files consume Hotfile resources without generating premium subscriptions. SUF 16(a)(iv)-(vi); e.g., Yeh Ex. 61 at 13 (“some webmaster just . . . upload LOTS of gigabytes, but don’t promote their files. So these kind of webmasters use our server resources, upload resources, bandwidth, diskspace and at final they make our service to work slow”). Hotfile discourages unpopular files through a “ranking” system (Platinum, Gold, Silver, Bronze, and Copper), which governs how much Affiliates are paid. SUF 16(a)(iv). Hotfile assigns “rank” based in part on an Affiliate’s ratio of uploaded files to downloaded files….
Hotfile also uses its Affiliate program to encourage Affiliates to upload large files – because “free” users frustrated with downloading large files at slow download speeds are more likely to upgrade to premium accounts to get faster download speeds
Notice the implicit assumption here: encouraging people to post content that people want and is large must mean it’s infringing. But that’s a logical leap that the MPAA makes without anything to back it up. There is nothing that says a large popular file must automatically be infringing. Why would the MPAA even make such an argument?
Also, just like the Megaupload indictment, they use the lack of a search engine to suggest something damning.
Because Hotfile avoids having a search function, Hotfile depends on link sites to host, organize and promote download links to content stored on Hotfile. Hotfile’s Affiliate program encourages the development of pirate link sites that do nothing other than promote download links.
This is especially ridiculous because in earlier cases the entertainment industry has argued exactly the opposite: that having a search feature means that these file sharing services were inducing and encouraging infringement by not just being neutral content hosts. The obvious thing to do to remain in compliance with the law, then, is not to have a search engine. Yet, now, they’re claiming that not having a search engine is evidence of trying to encourage infringement. So which is it? Is having a search engine illegal or is not having a search engine illegal?
Basically, the MPAA doesn’t care. To them, either is illegal because they just can’t handle that they’re losing their position as a gatekeeper.
Similar to the Megaupload indictment, this motion assumes that encouraging the uploading of popular files and the deletion of unpopular files is proof positive of infringement — but there are perfectly legitimate reasons for those features. It’s fairly amazing to watch the MPAA interpret perfectly reasonable things like deleting files no longer being downloaded — which plenty of legitimate file transfer services do — as evidence of lawbreaking.
The MPAA then keeps pretending that if Hotfile isn’t used for “personal storage”, it must be used for infringement. But that’s ridiculous. It’s a service for distributing files — nothing says those files are automatically infringing. That’s the logical leap that the MPAA makes multiple times throughout the document.
Hotfile’s chiding of users on public forums puts to rest any suggestion that Hotfile based its business on personal storage: “To pay you just to upload? Why should we pay you then? … Why should we upload files that nobody wants to download? You may think your files are interest[ing] and most probably they are, but we must convince downloaders and convert them to premium users.”
I read this and I don’t see the nefariousness. Nowhere do they encourage infringement. They encourage popular files. I know the MPAA would rather not believe it, but there are lots of content creators who no longer go through the gatekeepers, and they produce all sorts of popular content — some of whom use services like Hotfile and Megaupload to profit from doing so. Why does the MPAA assume that encouraging legitimate activity is proof of contributory infringement?
Similarly, the MPAA jumps a over a clear logic gap by insisting that Hotfile support staff simply “knew” of infringement, because some people asked them how to download files that, according to the MPAA, were infringing. But from the examples given, it certainly sounds like the questions had little to do with the content, but merely the functionality of how you download. There’s no indication there that Hotfile’s support staff could have or should have known the content is infringing. Amazingly, the MPAA’s “we’re the center of the universe” attitude seems to assume that naturally anyone would recognize the name of some of its bad movies and immediately, magically know that it’s infringing. But, based on what? That’s not explained.
The MPAA’s “smoking gun” of sorts is the fact that a study suggested a large percentage of downloads on the site were infringing, but I don’t see how that, alone, is illegal. When the MPAA sued to kill the VCR, a large percentage of VCR usage was considered “infringing.” But the market evolved. A large percentage alone isn’t proof of anything, but the MPAA has to throw it out there.
Later, the MPAA goes so far as to pretend a part of the law that doesn’t exist. They point out that Hotfile “failed to consider” filtering technology. I can see how that’s frustrating to the MPAA, but the law here is pretty clear that there is no proactive duty to filter. So why would the MPAA even bring this up as a point?
There are redactions in the motion and perhaps the MPAA has some magic evidence — but it’s troubling that so many of these claims seem to have little connection to reality.
Also troubling, the motion tries to pin liability on the site’s main developer because he programmed the software. That seems pretty crazy. Just because you make a tool, it shouldn’t make you liable for how others misuse it.
The entire point of the motion (and the lawsuit) seems to be to prove that (1) Hotfile encourages users to use the site and (2) many users use it to infringe. For them to have a case they need to prove that Hotfile actively encourages infringement, but they can’t actually do that, so they just keep trying to prove that Hotfile encourages usage (what site doesn’t?!?) and then, entirely separately, that many users infringe… and completely and totally leave out the part where part (1) is connected to part (2). They just keep repeating part (1) and part (2) and saying See?!?!? See?!?!? as if there’s a connection there… but which they fail to actually make. It’s amazingly lacking in any direct connection.
In the end, one other thing strikes me about all of this. If the MPAA believes that it has such a slam dunk case here… why did it never sue Megaupload in federal court? Yes, Megaupload is based outside the US… but it has been sued in the US before and took part in the case. So why did the MPAA never actually sue Megaupload? If it believes this filing against Hotfile is such a slam dunk, surely we’d have heard about a similar case against Megaupload… and some details of how that effort was stifled. But that’s not what’s happened at all.
Filed Under: copyright, cyberlockers, infringement
Companies: hotfile, mpaa
Comments on “MPAA's Argument Against Hotfile Assumes Any Popular Content Online Must Be Infringing”
MPAA Point: Anything that is popularly used will be misused some point in its existence
Not sure if I can argue with that logic but then again, if I agreed with their methods then we would all go back to living in caves and bashing on stones until we figure out that stones can be used to bash on people and then downgrade to sticks. etc. etc.
The MPAA, must be hiring all the Hollywood script writers that lost their jobs to piracy. The arguments they make seem to come straight out of a low budget crime fantasy film.
I’m not sure the MPAA has much of a leg to stand on when going after file hosting sites with that kind of logic.
Let’s look at popular misuses of video and movie technology:
-Exploitation films
-Hitler’s home movies
-Osama Bin Laden’s update tapes
We can assume that all of them bought products which directly benefited at least one of the members of the MPAA. Which means major movie and video companies profited from both Hitler AND Osama Bin Laden.
I think the FBI should take a long look at who they should be targeting.
So basically, all Hotfile’s lawyer has to say is “Your Honour, the MPAA have failed to establish a clear connection between Part 1 and Part 2”.
The MPAA could be 100% correct in every single one of their accusations, but if they fail to establish evidence, then Hotfile deserves to get off scot free. Know what that’s called? Innocent until proven guilty.
Hotfile changed affiliate policy
From hotfile.com/news:
In a complementary move, Hotfile has made changes to its Affiliate Program. Affiliate payments will no longer be based on download volume or referrals from websites. An affiliate will earn a percentage of the price of premium memberships purchased by users who download the affiliate?s uploaded file(s).
The upside of this is generally changing a policy like this cannot be used as evidence of liability against Hotfile. (Subsequent Rememdial Measures – the law wants you to fix the pothole, so the fact you did can’t be used as evidence that it was negligently maintained in the first place.)
So Hotfile may be able to say their affiliate program no longer has the (nefarious) motivators cited by MPAA, but MPAA shouldn’t be able to say, “See, they fixed it so it must be illegal.”
Hrmmm
Three words: “Trial By Jury”
It barely matters what the law is in a jury trial–if you can bullshit the jury into your way of thinking, then you win.
For reference: see “The Chewbacca Defense”
why do terrorist attack normal people? why cant they go after people like this that deserve it?
Re: Re:
Yeah, after all, isn’t it Hollywood and the TV cartels that makes most of the propaganda that fuels the war on terror.
Now, if we can only get the terrorists to pay attention to this 🙂
so the MPAA should have a problem paying 25k for each legit download they blocked
If the site are so infringing and none of the legitimate uses exist. Then they really should have a problem paying the statutory damages penalty of 25k for each download they prevented.
Re:
Civil lawsuits do not have the “innocent until proven guilty” threshhold; that’s, in theory at least, present in criminal trials. Civil law allows for a verdict to be made if there’s reasonable cause to believe that something’s happened, without it being necessarily proven. As an example, this is how OJ Simpson was acquitted in his murder trial, but found liable for damages regarding wrongful death in the following civil trial. As batshit insane as it seems to us, MPAA’s argument could very well hold water in a lawsuit.
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Because, as with the MPAA, it’s not about who deserves what, it’s about fear and control.
Notice the implicit assumption here: encouraging people to post content that people want and is large must mean it’s infringing.
Are there examples of websites that encourage people to post large video files that are subsequently downloaded in volume by the masses where the content is NOT infringing? I don’t know of a lot of 90 minute HD videos that get millions of downloads that aren’t being pirated. Perhaps there are a few but certainly those are dwarfed by copyrighted content.
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You want the MPAA to be able to play the sympathy card? That would be terrible.
Cooked ROMs
I use Hotfile and many of the other storage lockers on a regular basis for downloading custom firmwares for my phone. Sometimes these downloads are up to 500Mb in size. The MPAA should take a look at places like xda-developers, the market for these non-infringing files is huge.
Actually, it’s not hard to see – the vast majority of what is popular in the download world is illegal or “questionable”. You don’t see Linux distros at the top of the torrent downloads, and what was on the Megaupload popular lists certainly didn’t look like anyone’s holiday pics.
It’s not hard to establish that, with few exceptions, that most of what is going on is not really very legal, and that file locker companies (especially those paying uploaders for content) are aware of what is making them money.
You do realize that a motion for summary judgment is made at the conclusion of discovery where parties and witnesses for both sides have been questioned under oath, requests for admissions made, and documents produced for inspection by the parties?
This is only the plaintiff’s motion. The defendant has the opportunity to do the same, as well as traverse points made in the plaintiff’s motion.
Perhaps some evening you may find it useful for future discussions about litigation to read a copy of the Federal Rules of Civil Procedure. It would help you better understand each stage of the process in a civil action, as well as the standards applied by federal courts to motions such as this.
“Later, the MPAA goes so far as to pretend a part of the law that doesn’t exist. They point out that Hotfile “failed to consider” filtering technology.”
Simple – when this part was written they assumed that SOPA would in fact be law by the time this claim was made.
Re: Response to: Anonymous Coward on Mar 9th, 2012 @ 12:07pm
DMCA
Section 512
Paragraphs (d), (g)and (h) will interest you 🙂
The MPAA has no case in the States 🙂
Re:
Actually the test in civil court is “balance of probabilities”. Which is to say that what the MPAA is trying to say is that by that test because Hotfile is popular and because it has affiliates, and because….blah, blah, blah but doesn’t draw any examples or evidence of their claims in the filing which amounts to “hey, just believe us!”.
The thing is that they don’t seem to have any REAL evidence. Until they establish a pattern of behaviour or actual evidence the tendency of both judge and jury is to fall back on innocent until proven guilty. The higher burden of proof still falls on the plaintiff and not the defendant. It’s the plaintiff that must establish that there is a “balance of probability” and not just point at Megaupload or other file lockers and yell “Megaupload did it so Hotfile must do it!”.
The case MAY hold water but only until the defendant’s lawyer starts to poke holes in it.
Re:
Are there examples of websites that encourage people to post large video files…
There you go making baseless assumptions. No one said anything about “video files”, not even in the one sentence you managed to quote. Just because your world is enveloped in Hollywood shite doesn’t mean everyone else’s is.
Re:
Where did is say anything about video files? It just mentions files, generically.
Mislead, much?
And Shareware apps can be rather large. Those are perfectly legitimate.
And by the by, the Top100 on Megaupload, for example, was all movie trailers and software packages.
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What was on the megaupload top 100 was Movie Trailers and Software packages.
Nice try though.
Re:
You do realize that you didn’t actually make a point anywhere in your whining, right?
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Yes. Youtube and Vimeo.
Re:
Perhaps you’ve never worked on a group project where everyone is offsite and needs to share all their files with each other online? Without these file lockers projects like that could not exist (or would be a pain to setup individually).
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Do tell, all knowing one. Where is this magical list you allude to? I googled “download world most popular” and it brought me to CNET. Should we take those pirate bastards down next?
The only thing “not hard to see” is that you are completely full of it. -1 trolls to you, sir.
Re:
Same reason that sharks don’t attack lawyers…professional courtesy.
Re:
The video could be home made, made by someone who isn’t in the hollywood mafia (sorry to insult the mafia there), and who uploaded it themselves for publicity or other purposes.
Just because large video files are uploaded doesn’t mean that they were made by MPAA members, that they’re automatically infringing or that they are there without the creator being aware of it and approving the upload.
Oh, and just because the content is copyrighted doesn’t mean that sharing or downloading is infringing or pirating simply because there are things like Creative Commons, explicitly putting the work in the public domain as Wikipedia does, or one of the GPL licenses or others similar in spirit if not exact language all covered by copyright.
So let’s drop the bullshit shall we, AC, without dripping it all over the rest of us here?
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Which is why the MPAA presented no evidence to back up their request for summary judgement?
Sure, sounds pretty air tight to me.
Re:
No, that was what was on their filtered list, the one with all the pirated stuff blocked off. It was part of the deceit, part of the attempt to cover up Mega’s true nature.
The real top 100 was pretty much just like a torrent site… 100% pirated from end to end.
Re:
Laws don’t apply to actions carried out prior to their drafting, so even if SOPA hadn’t been defeated, the section could only apply to actions carried out after it had gone into effect. On the fastest possible track, that still wouldn’t have happened yet, as laws typically have a few months grace period between being passed and going into effect.
This period exists to allow all affected parties time to adjust to the new law, which can’t be done pre-emptively as it still might be defeated (presumably for a good reason) in which case the adjustment shouldn’t occur.
Re:
Here, go have a look at the pirate bay:
http://thepiratebay.se/top/all
Can you find anything on that list that isn’t pirated?
How about the top 10 downloaded movies on torrents last week?
http://torrentfreak.com/top-10-most-pirated-movies-on-bittorrent-120305/
I’m not seeing Sita Sings The Blues on there.
How would you explain this?
Cooked ROMs
Since most custom firmwares are based on firmwares from HTC and Samsung and LG, it’s highly likely that they also infringe. But it’s not in the phone companies’ best interest to go around suing everyone, because they don’t “lose a sale” when someone changes their firmware.
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I think he made the point that lawyers are uninteresting…
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Quite the contrary. The body of the motion begin with a section entitled “Citation Legend”, which is a list of depositions by reps for the plaintiffs, expert witnesses, the defendants, etc. Likewise, it also refers to a filing of “Statement of Undisputed Facts”. All of these are liberally cited throughout the motion.
Re:
um seriosly thats piratebay, a whole other site that uses a differnet method all together and relates nothing with hotfire or megaupload, so you are saying since piratebay has pirated content every storage locker has file content? even though piratebay itself is not a file locker and is soley based on users uploading and downloading directly to eachother? you sir fail, fail hard
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The top 100 is irrelevant – the usage of these sites is dominated by the long tail – large numbers of files that, individually don’t get downloaded that much but collectively dwarf the “top 100”.
Your argument is pure red herring.
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Once again the fallacy that the top 10 or 100 or whtaever matters. It doesn’t.
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I believe the point being made is that the article is personal opinion borne of unfamiliarity with our legal system, and specifically civil litigation.
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cool so the MPAA should have a problem paying all the legit files 25k per lost download right.
If the numbers are so small that should be chump change.
I am sure artist like dan bull would love to know their entitled to millions in damages for all his stuff being downloaded.
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Hard to make a point when you don’t have one to make. 🙂
And if discovery was such a good way to establish a case them why bother with such time consuming nonsense as trials?
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I didn’t realize that TPB encompassed the “download world” in it’s entirety, but anyway. Since I am not the copyright holder for any of that content, and I haven’t actually reviewed any of that content, I am in no position to determine whether or not it is infringing. And neither are you. Did the copyright holder post it themselves? Is it fair use? Is it even the content that the name implies? Maybe, maybe not, I won’t make any baseless assumptions either way.
As for your TorrentFreak link, it a listing of the “top 10 most PIRATED movies on bittorrent” so DUH!! Talk about cherry-picking your data to try and prove a point.
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I understand the theoretical aspects. Yes, I understand what it could have. But, I was inquiring about the practical. I’d be shocked if infringing content didn’t make up more than 95% of all video files more than 60 minutes on this website.
Re:
And by the by, the Top100 on Megaupload, for example, was all movie trailers and software packages.
…..according to Kim Dotcom.
Hey Mike,
You keep whining about the gatekeepers, aren’t these hosting services becoming the middlemen that you bitch and moan about? You know the ones who dictate what is and is not made available by removing less popular content. Aren’t these hosting services becoming the gatekeepers by by making money off of someone elses work?
It seems to me and should be obvious to you, that these media distribution networks you keep defending are taking on the role of the gatekeeper. Everything that you bitch about regarding the MPAA and the RIAA and ASCAP is being done by these media hosting sites. They are removing unpopular content (censoring), they are making money from someone elses creative work, they are cheating the content creators out of money. In these business models you keep defending you’ve just changed who the middle man is you haven’t eliminated the middleman!
Re:
Actually, yes, there are a number of full-length movies that have been released with a CC license and have had huge numbers of downloads. And tons and tons of music. Not to mention all the non-media stuff, such as Linux distributions, etc.
Cooked ROMs
Oh, please, that’s just rank speculation.
First, “based on” does not automatically mean “infringing”. Reverse engineering and functional reconstruction using a chinese firewall (the irony of that term!) is perfectly legal and noninfringing.
Some certainly infringes, but I’d be surprised if it’s anywhere near the majority. I download quite a lot of this stuff, and haven’t come across anything infringing yet. Some stuff includes binary blobs supplied by the manufacturers specifically to be redistributed in such projects, but that also is not infringing.
Re:
Those can’t exist, you know. Anymore than Linux, the Free and Net BSD’s don’t exist because you’d have to share copyrighted files to do that.
YOU’D BE INFRINGING!!!
Worse, you’d be altering and modifying them you gosh darned thief! PIRATE!!!
Even worse, the Apache Web Server was made that way…by Piracy, theft, infringement!! So it MUST, must MUST encourage piracy!!!
The GPL, Apache and CC licenses encourage and promote piracy so they’re guilty too!! The public domain not only encourages it but plainly allows people to make copies and pass them on to others through things like Hotfile!
Yer all a bunch of gosh darned pirates! REAL creative people need to be paid for each and every download, none of this sort of junk!
If it were up to me I’d hang you from the nearest yardarm!!!!
/satire and sarcasm
Re:
Mike has stated repeatedly that he isn’t against middlemen in general. He’s against middlemen who abuse their position.
Re:
Yes there are a number of such full-length movies, but a tiny number relative to the number of copyrighted works and and even smaller number when looking at total downloads.
Re: Re:
You’re wrong. Actually the most downloaded files are software packages of some sort – games, utilities, linux distros, firmware updates…
Re:
“Are there examples of websites that encourage people to post large video files that are subsequently downloaded in volume by the masses where the content is NOT infringing?”
Nice job sneaking that extra word “video” in there, but we’re not fooled. So, ignoring that word, the answer is, yes, absolutely, LOTS of files are both large and popular.
Custom phone ROMs, Linux distributions, open-source software, software demos, movie trailers, independent music, independent videos, just to name a few.
Cooked ROMs
Those firmwares are mostly base on Free Software.
Re:
TPB doesn’t encompass the “download world”, but their top list is a pretty good indication of what is moving in the torrent world, at least on the public side.
“Did the copyright holder post it themselves? “
Umm, I seriously doubt a legit source would post up software with a keygen, or a movie in Xvid as a DVD rip.
“Is it fair use?”
Doubtful. Is there any fair use in pirating stuff?
” Is it even the content that the name implies?”
Not likely, as the users would down vote anything that is a lie, and it would disappear. These are the TOP files, not random files.
Your objections are noted, but the court finds you guilty of defending piracy. Please try harder next time!
Bad analogies...
These aren’t “middlemen” in the classic sense.
All they do is rent space. The owner of your local mall isn’t really a middle man. Apple or Sears is the middle man.
These file locker providers aren’t “middle men”. They’re the online equivalent of storage lockers.
It’s “UStorIT’ in cyberspace.
Re:
MPAA can go to hell !
MAFIAA = content I will buy only used and physical so as to make sure they will never see a dime from my wallet.
INDIE = I will pay for this brand new.
Too bad there isn't a solution for this type of anticompetitive behavior
So filtering files based on popularity is illegal, eh?
Don’t the media companies do that? I don’t see DVDs of “My Mother The Car” offered on Amazon, for example. What about us slightly off-kilter fans who actually LIKE “My Mother The Car”????
It’s too bad that someone in the government doesn’t notice that the media companies are bringing false charges against competitors, and decide to restore some balance to the market.
Perhaps Congress could pass a law stating that anti-competitive behavior is against the law, and put some teeth in the law to enforce sanctions against those companies that just don’t want to compete on their merits anymore. Then we could delegate a group of people to enforce it.
We could call it, Oh I don’t know, the Antitrust Division of the Department of Justice ?
Re:
But, I was inquiring about the practical. I’d be shocked if infringing content didn’t make up more than 95% of all video files more than 60 minutes on this website.
If you are really inquiring about the practical and you really believe that 95% figure is anywhere near the truth, why are you not then arguing for making filesharing for personal use legal? That would seem practical to me since such a large swath of the population is ignoring the law anyways.
And before you go off about content won’t get created without the incentives copyright provides, I’ll just say I don’t buy that argument whatsoever. I quick look at history prior to the Statute of Anne shows that plenty of art was created without copyright.
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You’re assuming the MPAA doesn’t have the judge already paid off, and 10 more judges lined up to take their place should there be a sudden outbreak of conscience, reason, or logic.
That’s cute.
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Actually, no, according to me, since thats what I saw with my own eyes. If you are telling me kim dotcom personally crafted the page and its results, please quote the citation stating such a fact.
Too bad there isn't a solution for this type of anticompetitive behavior
At this point you could just call it “The Justice Division of the Department of Justice”. You know, to distinguish it from the rest of the Department of Justice.
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Really, can you cite any references where this is stated as fact?
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Duh.
Torrent world != cyberlocker world.
And you can’t eradicate piracy bub.
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I did not get that from your comment, or the article, but if you say so. Tilt at windmills all you want.
Bad analogies...
Bullshit, they are taking on the role of gatekeeper, they determine what content is available, they take the bulk of the income and pass on a fraction to the uploader (notice in the case of these cyberlockers it may not be the creator), they also control the accounting with no way to ensure you are being acurately paid.
duh..
guess what mikey, MOST of the content on sites like these are infringing, in fact that’s what brings demand to these sites.
Re:
Dunno what your “popular” threshold is, but recently I’ve dl’ed more than 5gb worth of community created mod files of a game from Hotfile. I consider it “popular” as they’re considered as THE standard/bare minimum for modding the said game, and when the original upload is deleted cos of MU take down (many of the mods were uploaded to MegaUpload/FileSonic, hence the take down effected at least half of the entire community created content), there’s a host of posts requesting for re-up.
As side note, as someone at Ars mentioned, I’ve also noticed that before MU take down, Hotfile are generally un-popular within modding and/or “pirates” community cos of their speedy file take down, especially for those “infringing” materials. So I’m at loss hearing the MPAA argument of Hotfile doesn’t do s**t about piracy. Hotfile may have been one of the fastest to response about “infringing” materials uploaded to their servers. It’s only after MU take down does Hotfile again “regain” it’s popularity.
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Not to speak of Pirate Bay but you did see the that torrent freak there is ranking THE MOST PIRATED not all the other traffic that uses bittorrent. So what, exactly, did you expect to see?
Unless, of course, you want to believe that the bittorrent protocol is used for nothing but piracy. So, in that case the link you provided us is nothing but a self-fulfilling prophecy.
So there’s your explanation of that.
And bittorrent is used for much, much more that piracy.
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Fun Fact: 100% of statistics in the previous AC’s comments are made up on the spot.
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…..according to Chris Dodd.
duh..
By that you must mean the file lockers provided by Amazon and various Linux distros as well. And if you are serious that most of the demand is driven by finding files the “legitimate” gatekeepers don’t other wise provide doesn’t that tell you that RIAA and MPAA members may be doing something horribly wrong?
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Well yes, they are middlemen. I don’t think he’s ever made the point that nobody should be able to profit from distribution. If file lockers ever pull the shit that MPAA/RIAA and their ilk are getting away with we’ll be bitching about them as well.
Cooked ROMs
Some phones, including many by HTC, Samsung and LG use open source software such as Android. Also he ever said any of the fore-mentioned companies made his phone.
duh..
If by “infringing” you mean pretty much any that people want to share with their friends, but is too large to attach to an e-mail then, then you are absolutely correct in saying most of the stuff on sites like these are infringing.
Here’s the problem i’m seeing- our legislators barely know the interwebz exist, they have NO idea how large a portion of our daily lives, entertainment, news etc comes to us via the web. Convincing them that any popular file must be illegitimate is easy, because it’s the only way they understand in their gut to get media. We’re literally existing in two different worlds.
duh..
What’s your point? What difference does it make if most of the content is infringing? If most pyrex measuring cups are used for cooking crack, they don’t magically transform into something bad, they remain pyrex measuring cups. If most of some car model are used by crooks, it’s still just a car. Making tool manufacturers legally responsible for things the people who buy their tools do with them is… dumb.
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I very much doubt it, or he would have.
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You’re confusing middlemen, which Mike has explicitly stated are useful, with gatekeepers, which he has spoken against many times. I’m sure you think they should be one and the same, but they are not.
duh..
Can we have a legal, or empirical, or in some way reality-based definition of “MOST” please?
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So?
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…according to Anonymous Coward.
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Because nobody would notice and terrorism is all about the publicity
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The infamous “I doubt it” legal framework. Iron clad logic that.
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“As expected, the MPAA has now filed for summary judgment in the case (standard behavior at this stage in a case like this).”
Emphasis mine. Yeah, pretty sure Mike knows this because he said so verbatim. Did you have a point?
Bad analogies...
I agree. They and all gatekeepers should be shut down as soon as possible.
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Yeah, pretty sure Mike knows this because he said so verbatim. Did you have a point?
No, he doesn’t have a point. He never makes a point. He just makes vague (usually false) assertions that since I’m not him, I don’t understand the law. He’s wrong. But the thing is notice that he never — not once — will call out a specific factually wrong thing stated. Because he can’t.
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Are there examples of websites that encourage people to post large video files that are subsequently downloaded in volume by the masses where the content is NOT infringing? I don’t know of a lot of 90 minute HD videos that get millions of downloads that aren’t being pirated. Perhaps there are a few but certainly those are dwarfed by copyrighted content.
Internet archive has plenty of large files.
Anyway, that’s really not the point, is it? When the VCR came out, it was mainly used for infringement. But asking people to buy a VCR wasn’t seen as inducement to infringement.
Note what the real problem was: the industry was too slow and too stupid to offer legitimate content on the platform people wanted. Same here.
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Every civil and criminal suit contains a period for pre-trial discovery. This is how our legal system works so that evidence can be secured in advance of trial.
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Yes. Apparently you missed it in coming to MM’s defense.
“Why does the MPAA assume that encouraging legitimate activity is proof of contributory infringement? “
Because the MPAA/RIAA wants to be the gatekeeper of information distribution so that they can charge everyone monopoly prices (IE: forcing them to sign away their IP privileges) to get their content distributed.
and that’s why the bought U.S. government shut down megaupload. Can’t have other distribution platforms that allow content creators to get paid for their work, that hurts those who bough legislators for their monopoly privileges (bought them through the revolving door and through campaign contributions). The RIAA/MPAA paid legislators for their exclusive information distribution privileges and so they don’t want others interfering with their exclusivity.
Government established broadcasting and cableco monopolies exist for good reason, ridiculous IP laws coupled with a one sided penalty structure designed to make it too legally risky and expensive for many restaurants and other venues to host independent performers (without paying IP collection societies a fee) and for bakeries to allow children to make custom pictures on their birthday cakes exist for good reason, information distribution exclusivity was bought and paid for.
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Actually, I do have a point. Based upon your comments and “analysis”, it seems quite clear to me (in my opinion, of course) that you read the motion with a set of “bias glasses” that simply filtered out any objective consideration of the motion as a whole.
For example, nowhere are the plaintiffs making implicit/explicit assumptions that big files = infringing files. They aver to subsisting evidence currently of record that they believe support each of their allegations and arguments.
Yet another example is your focus on the site’s lack of a search function. How you could fail to mention the additional portions of the motion concerning link-sites and the contractual relatioship between such sites and the defendants escapes me.
Still further, you state “For them to have a case they need to prove that Hotfile actively encourages infringement, but they can’t actually do that…”. Once again, the motion addresses active encouragement, and does so with reference to evidence of record in the case.
These are just a sampling of examples where I believe the article is simply an opinion piece that glosses over the contents of the motion that do not fit neatly within the paramenters of the points you are making in justification of your opinion.
I have no problem with anyone who expresses opinions so long as the opinions are made in good faith and do not rely upon a highly selective reading of a document. Unfortunately, this is not the case here. Portions are taken out of context, averments to evidence of record are ignored, etc.
To be forthright, I do not know if the facts currently in evidence are sufficient to secure a summary judgement on one or more of the causes of action alleged in the complaint. I say this out of an abundance of caution because I am not privy to the evidence. Since you are likewise not privy, I can not see any principled basis for many, if not most, of the points you want your readers to take away from reading the article.
Re: Re:
You said “For example, nowhere are the plaintiffs making implicit/explicit assumptions that big files = infringing files.”
Page 15 states: “Larger files generally are more likely to be copyright infringing.” (Page 15 of 51, or page 6 within) They reference some other appendix when stating this
So, the plaintiff did, or did not, make that statement?
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Actually, I understand the point as you have made it, but I don’t know where to look at the evidence so I can’t peruse it to further review it.
(As I understand it, you are putting forth that mike is saying that they are making assumptions and your response is that they have actual evidence of this. I continue that I don’t know where to find their information that they reference in this statement so I can’t review further and make my own opinion one way or the other)
If the developer IS liable, does this mean that if you slit someone’s throat with a sharpened DVD, their family can sue the company that made the movie and sold the DVD?
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I’d be shocked if any ACs would manage to bring more than numbers pulled from their a**** to the table. Oh, well…
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And how do you know the total number of downloads given Hotfile doesn’t have a search engine?
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How would you explain this?
That torrents are a completely different matter and have no bearing whatsoever on the Hotfile case. So, we’re wondering, why you’re bringing that up.
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Please try harder next time!
Pot, meet kettle.
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Or it simply wasn’t as good as you try to make it out to be. Mmh.
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You keep whining about the gatekeepers
Nope, what you hear is just the gatekeepers whining about their lost control.
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And you can’t eradicate piracy bub.
I almost read that as “And you can’t talk about fight club.”
The logic of the MPAA is always easy to figure out…
1. Does the site result in infringement?
2. Is the site popular?
If the answer is “yes” to both questions, regardless to if any law is broken, then their goal is to destroy the site using any legal trickery and abuse possible.
Yes that is exactly why the MPAA will totally contradict itself when it is just a case of throw any crazy shit at them as is possible and hope something sticks.
Linkage
I think the links to the MegaUpload case are telling when you can bet your last dollar that the MPAA helped the DOJ to write that indictment. I doubt the DOJ and FBI could write such a stupid document on their own.
I also believe that the MPAA are playing a dangerous case here when if the Judge rejects there same arguments in this HotFile case then they will also automatically collapse against MegaUpload. Mega could just point these rulings out in their own case including the extradition hearing.
Not to forget that Mega can then show to the media that the DOJ’s claims are false making the NZ/US population further doubt the legality of the DOJ’s actions.
Then for a Judge to see the majority of their claims quickly collapse would make them question the whole case.
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“But asking people to buy a VCR wasn’t seen as inducement to infringement.”
Actually, I’d say it was, at least before the Betamax lawsuit went against Sony. But, of course, how it was “seen” by the industry and the reality of the situation are two separate things.
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“Umm, I seriously doubt a legit source would post up software with a keygen, or a movie in Xvid as a DVD rip.”
What about the torrents you didn’t cherry pick that do neither? I also love the way you people cherry pick. Oh *that* site’s top 100 is irrelevant because it doesn’t pick your self-imposed assumptions but *that* site’s top 100 does so it’s gospel and represents all sites regardless of any data that proves otherwise.
“Your objections are noted, but the court finds you guilty of defending piracy.”
Fortunately, the court of shit you pulled out of your ass only has any weight in your delusional mind.
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Oooh is this the point where we make false statements, faulty assumptions and misrepresent Mike’s positions in order to attack a strawman? I never tire of that. Snore.
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I belive you meant to say “Universal” in lieu of “Sony”.
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Just my view, but I do not believe that adoption of the name “Hotfile” was meant to emphasize and advertise the site as a file locker for personal files, especially given a business model based around downloads.
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“Umm, I seriously doubt a legit source would post up software with a keygen, or a movie in Xvid as a DVD rip.”
So I guess that you haven’t heard of several gaming companies releasing the cracks for certain PC games as “fixes” for people having problems with registering their products, right?
I believe in fact, Ubisoft did so awhile back rather recently. When a check was done on the “fix”/”patch”, people realized that the entire thing was actually a crack created by the evil “pirates”.
Also, there are a few software companies that will do the same thing if you’re having licensing/registration problems with their software.
Although, I wouldn’t expect you to be aware of any of this, or if you are I expect you glossed over such facts because they kind of shoot down what you’re saying.
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Are there examples of websites that encourage people to post large video files that are subsequently downloaded in volume by the masses where the content is NOT infringing?
You mean like Vodo, Clearbits, or Archive.org?
Also, why are you assuming that someone from the studio didn’t upload the files themselves? For an example, see YouTube v. Viacom. Viacom uploaded content to YouTube, and deliberately tried to hide that fact, to make it seem like the videos were “viral.”
those are dwarfed by copyrighted content
It’s completely meaningless to say “copyrighted content.” Unless it’s public domain, all content is copyrighted.
The question is not whether the content is copyrighted, but whether it’s infringing. It doesn’t matter if the content is a TV show, for example. It only matters if the person who uploaded that TV show infringed on copyright.
And unless a video host demands to see the licensing contract for every single video that is uploaded, then it is impossible to know that, unless they are explicitly told by the copyright holder. Hence the DMCA notice-and-takedown rules – which Hotfile followed.
Hotfile doesn’t have to have filters, they can have search capabilities (or not), they don’t need to provide tools to copyright holders, etc. Legally, no host is required to do anything more than properly follow the notice-and-takedown procedure, and they’re immune from liability for any infringement by their users.
This was made quite clear in the Congressional record:
In fact, even following the notice-and-takedown procedures is optional. The service provider may still not be liable for infringement even if they don’t (though it’s not likely).
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You keep whining about the gatekeepers, aren’t these hosting services becoming the middlemen that you bitch and moan about?
A middleman is not necessarily a gatekeeper.
Let’s take the traditional music model. Major labels were gatekeepers. Radio stations and record stores, by and large, were not. If you didn’t like the advertisements on one radio station, you could tune into a different one and hear the same music. If you didn’t like the prices at Tower Records, you could shop at Strawberry’s.
On the other hand, if you weren’t willing to pay what the label wanted, you couldn’t go to another label and get the same music for a different price. (Not just price, either; you couldn’t get it in a different format, or without DRM, etc.)
What makes someone a gatekeeper is if they have a monopoly on a certain product or service. The labels did, because they are copyright holders, and copyright is a monopoly.
Now, even so, many of the radio stations and record stores did act kind of like gatekeepers, in that they had agreements that no music that was not on a major label would be played or sold. This was easier to overcome with record stores, because if there was a demand for indie music, someone could open up a record store that catered to that crowd. (Indeed, there were plenty that did; here in Boston, we had at least a dozen, and even Midwestern college towns had at least one or two.)
Radio is a bit different, because the spectrum is regulated by the government, and there simply isn’t enough bandwidth to allow more than a dozen or so stations in any one area. This, combined with the agreements (read: payola) stations had with the labels, made the labels and stations gatekeepers. Effectively, the major labels held a monopoly on the airwaves.
Thank goodness it’s not like that anymore.
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Yes there are production companies with LEGAL popular downloads. VODO is viewer supported. Most films started with kickstarter funds offer legal downloads of their final product. There are a number of others. There are even more independent bands and software developers using file hosts as a way to go direct to their market and fans.
Where have you been for the last decade?
Cooked ROMs
Many manufacturers would like jailbreaking to be illegal. Go to EFF’s website to get the latest serious attempt. Anti-circumvention laws were the first step to making tinkering-modding-hacking your device illegal.
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Hotfile and Mega paid for popular files to be downloaded making it profitable for independents to use those services to distribute material.
Pirate Bay and torrents don’t pay = independents don’t use them. Pirate Bay and torrents are not storage sites.
It’s an apples to oranges that your using as examples.
People still have a legitimate use to upload to storage lockers personal copyrighted files for backup – and they can download that same content to another computer they are using without being illegal. The site’s usually offer unlimited storage and one backup isn’t enough anymore.
There’s lots of reasons for file storage lockers on line that are legitimate. Just because UPS can be used for illegal reasons isn’t a reason to make sending packages by UPS illegal … (I hope).
However does it even matter what legitimate uses exist or percentage of legal files hosted when the business can be closed without trial?
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Your opinion is valid based on current interpetations of the legal system. The difference is that most of the readers here have the opinion that the current law is already too broad and over reaching. This is not a court room. Those statements do sound like they assume all popular files are infringing and it wouldn’t be the first time such conclusions were made. At one time (and it may still come up again) all mp3’s were argued to be illegal.
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You might be right, but they are acting as if SOPA had passed. This is the part I’m grabbing my popcorn for.
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Ha, ha, ha – finally someone else said it. RIAA and MPAA are making money off someone else’s work but I bet they make a few less million. They also listen to what customers want and give it to them. That alone makes them “evil capitalist’s” …. when the monopolies have already paid for laws to be passed.
Too bad there isn't a solution for this type of anticompetitive behavior
Congress / DOJ were paid for enforcing these laws. I doubt if anyone at DOJ or in congress even read the indictments. Why should they? Unless the public speaks up.
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You can extend that to news organizations that won’t cover this issue or when they do, it’s “complicated” is their defense. Right. Disrupt their pipes for a couple of hours and they might have more respect.
I never read the LA Times or NYT or WaPo until the internet. That’s what made them icon’s. Not the reverse.
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Don’t you find it odd that the US took a nasty turn in enforcement after WikiLeaks and the Arab Spring? I am constantly surprised with how badly they want Assange, or the militarization of urban police against protesters.
The government is in the business of control. That’s what we elect them to do.
Re: WikiLeaks
In spite of popular belief, WikiLeaks was very dangerous. It gave out times of deligates whereabouts of not only where they’ve been, but exactly where they were going, when the ETA was, how much security detail would be there and where all the security checks would be, how long the delegate has to be there, exactly when they were leaving, scheduled gaurd shift changes at the whitehouse, endangered the lives of those who were fighting for your very freedom to have your own opinions (who ousted a certain leader in Iraq who ruled his realm with fear and killed his own people in mass genocide not to mention he was acting like he was hiding something, it wasn’t WMD NATO found, it was Hitler x 10)
The point to the above is this, WikiLeaks case was before the MPAA started lining the pockets of our law makers…..WikiLeaks was a matter of international law and threatened lives of important individuals….Megaupload and HotFile hosted harmless bits of data that people used every single day for legitimate purposes.
The MPAA is clearly abusing the DMCA….oh and for the $500,000,000,000….one movie made just over $1 billion and that was Avatar they’ve lied to Congress which is a federal offense.
Linkage
From what I’ve heard, people of NZ aren’t happy with being tools of the US either. I don’t think there is a lot of popular support for the US to be the world’s copyright cops. I’ve heard “how’d that drug war work out for ya'” way too many times to be flippant. They are using TAXPAYER funds to go after white collar “crimes” when wall street took down the economy and they got bonuses.
It doesn’t add up favorably.
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DFTT
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sorry wrong link, please ignore.
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DFTT
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RIAA and MPAA are making money off someone else’s work but I bet they make a few less million. They also listen to what customers want and give it to them.
Who are “they?” The RIAA/MPAA, or the file lockers?
Your statement only makes sense if “they” means the file lockers. Global recording industry profits in 2009 were $17 billion. I doubt that all the file lockers in the world put together could even approach that number by an order of magnitude, much less “a few less million.”
And it would be a total and complete joke to say that the RIAA/MPAA “listen to what customers want and give it to them.” If anyone is doing that, it’s the file lockers. If they weren’t, nobody would use file lockers at all.
The fact that the RIAA/MPAA clients refuse to listen to their customers, is one of the primary reasons people pirate (if not the primary reason).
Furthermore, the notion that file lockers are “gatekeepers” can only be valid if the file lockers were the only way to get certain content, and if the only way to get specific content was from one file locker exclusively. None of that is true for file lockers; it is true for the RIAA/MPAA clients.
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Quote:
Youtube: Stealth (for free, needs the plugin proxytube if you are outside the US)
vomit
Vomit inducing stuff yet again from the deluded ,wackjobs over at the MPAA , it would be comical if they were being widely ignored as they deserve to be.
But its not funny because they are getting an ear among law makers and policy makers who seem to pander to their most demented claims, desires and demands.
Until somebody with real power stands up to these goons and puts them in their place they will carry on because ‘ they can’ .
The whole piracy thing needs putting into context and what you never hear about is the upside to file sharing, and there IS an upside for the movie and music industry, they just don’t want to admit it and talk about it.
The promotional benefit from file sharing for their content and brands is gigantic and exceeds whatever it is they pretend they are losing.
Imagine a world without the MPAA,RIAA , etc,etc ,etc , it would be a better place , for everyone.These self serving parasitic organizations do no good for the industries they claim to represent or humanity as a whole.
Deletion Motion
“this motion assumes that encouraging the uploading of popular files and the deletion of unpopular files is proof positive of infringement”
Makes me wonder why they should complain since unpopular files are deleted….given the crap they have come out with over the last 3 or 4 years, I’d hazard a guess that 90% of the files deleted are their movies ;-P
Seriously though, I wish someone would sue the MPAA for the crap they are trying to pull.