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Report Shows MPAA 'Experts' Seriously Misrepresented The Uses Of Hotfile

from the substantial-non-infringing-uses dept

We've been following the surprisingly weak case that the MPAA filed against Hotfile for some time -- and, in some ways it's become even more important lately as a sort of "civil analog" to the criminal case against Megaupload. Hotfile and Megaupload have many similarities, and the arguments against both seem to make the same highly questionable assumptions -- taking perfectly legitimate actions and insisting that they must have been done for nefarious purposes. For example, in both cases, the fact that the companies offered "affiliate programs" that allowed users to make some revenue on frequently downloaded works was used as evidence that they were inducing infringement. But what the facts are showing is that this was quite often used to create legitimate and lucrative new business models for creators themselves. When Megaupload was taken down, for example, hip hop superstar Busta Rhymes argued vociferously that it was a fantastic way to make money -- with much, much better terms than major labels. That's because he (and lots of other artists) could release their own content through these platforms, allow consumers to get them for free, and get a large cut of the ad and subscription revenue.

It appears that this was also a popular use on Hotfile. TorrentFreak obtained a filing from copyright expert and law professor James Boyle, in which he points out that open source developers were using Hotfile's affiliate program as a business model, and, in fact that open source downloads were incredibly popular on the platform, very likely representing one-third of the top 100 downloads, adding up to millions of downloads.

The standard for infringement under the Betamax ruling is supposed to be if there are substantial non-infringing uses of the technology, and that certainly appears to be the case here.

Boyle also points out other ridiculous problems with Hollywood's "expert" report trying to claim that Hotfile was almost always used for infringement. For example, he notes that the report appears to have purposely excluded approximately 60% of the files on Hotfile. Hollywood's experts ignored files that were never downloaded or only downloaded once. Yet, as Boyle points out, the point of a cyberlocker is to store files -- and many people likely put files up so that they could be stored in case they were ever needed. Thus ignoring the 60% of files that were never downloaded or only downloaded once, excludes the fact that many of those may have been for perfectly reasonable and legitimate purposes of backup, storage or place/time-shifting. Basically, it looks like the MPAA's "experts" ignored anything that was inconvenient.

And it gets worse. The so-called "experts" that the MPAA found seemed to classify works as "highly likely infringing" despite there being significant evidence that they were perfectly legitimate works to be shared. Perhaps the most egregious example was a copy of a Russian book on embroidery published in 1871. No matter how you look at it, a book published in 1871 is in the public domain. But the MPAA's expert listed it as highly likely infringing. Then, when called out on that, the expert said that maybe there were new works in the book and would only downgrade his classification to "unknowable" rather than admitting it was public domain.
Mr. Zebrak’s classification here was inexplicable tome in my rebuttal report and remains so now. He argues that there could be copyrightable selection and arrangement in the illustrations of this work, even though both the original work and the illustrations are clearly in the public domain. I dealt with and dismissed this possibility in my rebuttal report – indeed the site to which he cites in his original argument for infringing status explicitly identifies this exact book, in unchanged order and arrangement, as being published in 1871 in St. Petersburg. This book is at the most conservative possible classification,“highly likely in the public domain.” Mr. Zebrak will not concede even this, though he does at least change his classification to “Unknowable.” Again, I think the refusal to admit evenoverwhelming evidence like this indicates a predisposition to find infringement that is worryingly strong – and that predisposition appears to be a general one, which therefore has significance far beyond the files I was able to examine in the time available to me.
Similarly troubling, the MPAA's experts took a freely distributable podcast, and insisted that, too, was "highly likely infringing." Podcasts are usually distributed for free, and since bandwidth costs are expensive, many podcast creators love using cyberlockers like Hotfile or Megaupload as a free storage and distribution platform. But the MPAA's "expert" insists that it's highly likely infringing. And it gets worse: even after the creator of the podcast said he was happy with its free redistribution, the MPAA's expert used iTunes terms of service to argue that it was still infringing. Except iTunes terms of service have nothing to do with the podcast:
Photography 101 Podcast: This podcast is an example, again, of the same theme .As I pointed out in my rebuttal report, the podcast is in fact offered for free download online and its author confirms that he does not object to its redistribution. Mr. Zebrak – somewhat puzzlingly – introduces the iTunes terms of service into the picture, apparently imagining that iTunes has the ability to affect the copyright status of a work in which it holds no copyright. It does not. Mr. Wittenburg holds the copyright in his podcasts. He allows people to download them freely and to repost them and says so explicitly in his affidavit. There is no evidence that the version of the podcast posted on Hotfile even came from iTunes. Mr. Wittenburg refers to the podcasts being available in multiple locations online. Even if it did, the iTunes terms of service are a red herring. I may give a lecture which I record and post online, posting it also on iTunes. I hold the copyright and I may choose to allow posting and reposting as I wish. Copyright law gives iTunes no rights over the program and no rights to circumscribe what I allow with my own podcast – they have no copyright to infringe – and thus the claim that the file is "highly likely infringing" cannot be supported on this basis.
Reports like this raise significant concerns about the claims against Hotfile (and similar sites).

Reader Comments

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  1. icon
    PaulT (profile), 14 Apr 2012 @ 2:57am

    Re: Re: Re: Re: Re: Re:

    "Umm, can you upload to Itunes?"

    Yes, either personally or through a service like Tunecore.

    90% of your comment is whining like a 2 year old who just discovered how to swear, and you still can't get your facts right...

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