New Study Highlights How Megaupload Took Down Over 10 Million Non-Infringing Files

from the seems-like-a-problem,-no? dept

One of the common arguments against file sharing and cyberlocker sites is that there's just so much infringement going on there. Of course, when people point out that there are many non-infringing uses, copyright maximalists dismiss this as either not being important, or being such a tiny part of those sites as to not matter. However, that's not the law. Under the Supreme Court's ruling in the Sony Betamax case, the court noted that if the device was merely "capable of substantial non-infringing uses," then it was legal.
The staple article of commerce doctrine must strike a balance between a copyright holder's legitimate demand for effective -- not merely symbolic -- protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.
Furthermore, for those who argue about what "substantial" is, it's important to note that, in the early days, nearly all of the usage of these new forms of content recording and delivery were mostly for infringement. But that's due to the content industry's own slow nature to adopt these tools. Indeed, when the Betamax was found legal, less than 9% of uses were found to be non-infringing -- and that was deemed more than enough. Even the argument that all that other infringing use pulls people in was rejected in the Betamax lawsuit, where the court noted:
Unlike cameras, typewriters and Xerox machines, whose primary market is derived from non-infringing uses, there would be little, if any, market for VTRs if they could not be used for infringing purposes. Petitioners' unwillingness to devise a technological means of preventing copying of copyrighted works makes plain that without the ability to make unconsented copies of the copyrighted motion pictures owned by respondents and amici, there would be little if any market for VTRs.
But they were still found to be legal.

Fast forward to today, and TorrentFreak points our attention to a new study looking at the substantial non-infringing uses of Megaupload, and finds that, as with the Betamax, even if there was wide infringement, not only was it "capable of substantial non-infringing uses," but it was widely used that way.
For Megaupload (MU) the researchers found that 31% of all uploads were infringing, while 4.3% of uploads were clearly legitimate. This means that with an estimated 250 million uploads, 10.75 million uploads were non-infringing. For the remaining 65% the copyrighted status was either unknown, or the raters couldn’t reach consensus.

Using the most conservative estimate the findings show that the Megaupload raid took down at least 10.75 million legitimate files. In addition, the researchers found that FileFactory had a highest percentage of non-infringing uploads (14%).
Obviously, there are sample size issues here, and the fact that the majority of the files are "unknown" may be a limiting factor. But, at the very least, it appears that there were many, many, many legitimate uses of Megaupload, all shut down and destroyed without letting their owners get the data back, and without a trial to discuss those non-infringing uses, and whether or not the platform itself was legal.


Reader Comments (rss)

(Flattened / Threaded)

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    Rikuo (profile), Oct 22nd, 2013 @ 3:07pm

    Mike Mike Mike...when will you learn? There's no such thing as too much collateral damage when it comes to fighting the scourge, no, the PLAGUE that is COPYRIGHT INFRINGEMENT! So what if millions of people lost their family photos. Serves them right, they used a...gasp...PIRATE site, run by a fatso. Who cares if speech was silenced, we gotta stop people sharing movies that they didn't pay for (and even if they did pay for the discs and ripped them, using a fatso's pirate site is still the most evil sin imaginable!)

    /sarcmarc

     

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    wallow-T, Oct 22nd, 2013 @ 4:09pm

    betamax vs. grokster

    IANAL, but it seems that the courts have decided to effectively reverse the Betamax standard of "substantial noninfringing uses", which was applied to pre-internet DEVICES.

    A new standard was created under Napster and Grokster which explicitly denies the "substantial non-infringing uses" standard to BUSINESSES. Pretty much anything which endures online is, in some way or another, a business.

     

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      saulgoode (profile), Oct 22nd, 2013 @ 4:39pm

      Re: betamax vs. grokster

      A new standard was created under Napster and Grokster which explicitly denies the "substantial non-infringing uses" standard to BUSINESSES.
      That's not what those rulings found.

      When ruling on Napster, the Ninth Court of Appeals explicitly confirmed the original "Betamax" standard (i.e., that Napster was "capable of commercially significant noninfringing uses."). Napster lost because they had direct, explicit knowledge that infringement was taking place. They were asked to remove specific titles by Metallica, Dr Dre, and various other label-represented artists and they refused to take down the links.

      Similarly, in MGM vs Grokster the Supreme Court re-affirmed the validity of the Betamax finding, but ruled against Grokster because Grokster actually promoted infringing uses of their software.

       

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        JEDIDIAH, Oct 22nd, 2013 @ 6:57pm

        Re: betamax vs. grokster

        > because Grokster actually promoted infringing uses of their software.

        ...and Sony and JVC did what exactly? Given the state of the industry in those days, what else could they do really? This is a point made in the article.

        Most Internet Service Providers would likely run afoul of the same legal principle that snagged Grokster. If not now, then certainly before legal music and video streaming services became available.

        Saying your are following a certain rule and actually doing so aren't necessarily the same thing.

         

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          saulgoode (profile), Oct 22nd, 2013 @ 10:15pm

          Re: Re: betamax vs. grokster

          ...and Sony and JVC did what exactly?
          According to the court records, "Sony's advertising was silent on the subject of possible copyright infringement".

          I don't necessarily agree with the Supreme Court's finding of contributory infringement, but their ruling hinged on the conclusion that Grokster actively promoted itself as being a means for its users to engage in copyright infringement.

          This distinction between the two cases was directly addressed in the Supreme Court's ruling.

           

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            JEDIDIAH, Oct 23rd, 2013 @ 8:03am

            Re: betamax vs. grokster

            >> ...and Sony and JVC did what exactly?

            > According to the court records, "Sony's advertising was silent on the subject of possible copyright infringement".

            Like I said before. Given the state of the tech at the time, I find that pretty absurd.

            It seems more likely that a different standard is being applied. "Unknown upstarts" are being held to a higher standard than "established respectable types" regardless of what the judges try to claim.

             

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    Anonymous Coward, Oct 22nd, 2013 @ 4:35pm

    the us government is a facilitator of us business interests, from gunboat diplomacy in the nineteenth century, cia inspired coups in the twenth century or most recently, nsa industrial esponage, doj copyright ceaasure in the twentyfirst century.

    for a country that pays so much lip service to free trade, there is a massive amount of corporate welfare for big business

     

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  • This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Oct 22nd, 2013 @ 5:44pm

    Megaupload is not a device: was people knowingly providing infringed content.

    Typical Techdirt apples and planets comparison, close enough because both vaguely spherical.

    When the ratio even by this optimistic estimate is 250 to 10.75, then the 4.3 percent must suffer because of criminals. It's NOT "substantial". Try blaming the criminals instead.

    Mega-grifter Kim Dotcom got millions by hosting infringed content. That's not even capitalism, that's THEFT.

    13:43:52[o-850-7]

     

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      Zakida Paul (profile), Oct 22nd, 2013 @ 5:55pm

      Re: Megaupload is not a device: was people knowingly providing infringed content.

      Psyche Test: "Is it ever OK to sacrifice the few to save the many?"

      OOTB: "Yes, yes, yes"

      That's a fail.

       

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      Anonymous Coward, Oct 22nd, 2013 @ 6:24pm

      Re: Megaupload is not a device: was people knowingly providing infringed content.

      Are you hoping people have forgotten that Megaupload fully complied with DMCA takedown notices? Well, I, for one, have not.

      You're making the same farcical argument as Viacom in Viacom v. YouTube; that Megaupload should have magically "known" somehow which files were infringing and deleted all of them immediately, and that by not traveling back in time and hiring Merlin to divine which songs were pirated and which songs were uploaded by the singers, they were deliberately supporting some vague notion of "infringement", which is apparently enough justification to send troops to a foreign country and have them dismantle a business there.

      Perhaps Merlin could have also helped with your desire to kill off the abstract concept of "infringement", since you're apparently not going to be satisfied until Kim Dotcom has reality rewritten so that it can't happen anymore.

       

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        Chronno S. Trigger (profile), Oct 22nd, 2013 @ 8:18pm

        Re: Re: Megaupload is not a device: was people knowingly providing infringed content.

        "should have magically "known" somehow which files were infringing and deleted all of them immediately"

        This is Blue we're talking about here. He believes that if you have any doubt on the validity of the video, it's infringing and must be taken down.

         

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        Anonymous Coward, Oct 22nd, 2013 @ 11:57pm

        Re: Re: Megaupload is not a device: was people knowingly providing infringed content.

        We shall call this fallacy, "The Unicorn Doctrine".

         

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      Anonymous Coward, Oct 23rd, 2013 @ 3:40am

      Re: Megaupload is not a device: was people knowingly providing infringed content.

      Replace "megaupload" with "youtube".

       

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    Anonymous Coward, Oct 22nd, 2013 @ 6:06pm

    ten million?

    that's a lot of anomalies!

     

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    Mark Harris (profile), Oct 22nd, 2013 @ 6:33pm

    The headline is a little misleading...

    You say:

    "New Study Highlights How Megaupload Took Down Over 10 Million Non-Infringing Files"

    which sounds like an action on Megaupload's part, whereas TorrentFreak's headline is:

    "Megaupload Raid ‘Destroyed’ (Way) More Than 10,000,000 Legal Files"

    which is a whole lot more accurate ;-)

     

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      identicon
      Anonymous Coward, Oct 22nd, 2013 @ 6:37pm

      Re: The headline is a little misleading...

      If you are looking for accuracy (or objectivity), you've come to the wrong place. This is piracy apologist territory, pilgrim. We don't need no stinking accuracy.

       

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        That One Guy (profile), Oct 22nd, 2013 @ 7:08pm

        Re: Re: The headline is a little misleading...

        Just a hint but, the second you delve into petty name calling and swearing, it not only shows you have no valid argument, you reveal your lack of maturity, and will be treated as the child you act like.

         

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        Anonymous Coward, Oct 22nd, 2013 @ 7:44pm

        Re: Re: The headline is a little misleading...

        Remind me again why we have statutory monopolies for?

         

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        PaulT (profile), Oct 23rd, 2013 @ 1:20am

        Re: Re: The headline is a little misleading...

        "If you are looking for accuracy (or objectivity), you've come to the wrong place."

        Nope, I actually agree with Mark and appreciate his correction. Both are technically accurate but one implies something that MU did not do while the other places blame on the correct party. However:

        "This is piracy apologist territory, pilgrim. We don't need no stinking accuracy."

        Your obvious lies and personal attacks are still not welcome. Let me guess, you're one of the idiots who regularly claimed that MU wasn't used for non-infringing purposes and you're backtracking now that you've been proven wrong?

         

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    identicon
    Anonymous Coward, Oct 22nd, 2013 @ 6:35pm

    Oh look, the pervert website only had 96% kiddie porn and 4% adult porn and the big bad government took it down. Censorship!! Censorship!! Censorship!!

    The lengths you salad tossers will argue to continue freeloading is astonishing.

     

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      JEDIDIAH, Oct 22nd, 2013 @ 6:52pm

      Not quite Nazi's, but close.

      I guess we need a new variation of Godwin's Law to cover this kind of nonsense.

      Your insults don't alter the fact that industry hysterics have in the long run tended to be completely bogus. It's hard to take you idiots seriously when you cry wolf so consistently.

      Yesterday it was the "Boston Strangler". What's it going to be today?

       

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      Mike Brown (profile), Oct 22nd, 2013 @ 7:44pm

      Re:

      Oh look, the highway had 96% of drivers going faster than the posted speed limit, and 4% going slower and the big bad government didn't close it down. Anarchy!! Anarchy!! Anarchy!!

      The lengths you Mario Andretti disciples will argue to continue speeding is astonishing.

       

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      Mr. Gibbs, Oct 22nd, 2013 @ 10:15pm

      Re:

      Oh the big mean bad pirates are bullying you again?

      Here have a cookie to the past.

      HTTP/1.0 200 OK
      Content-type: text/html
      Set-Cookie: BackToTheFuture=yes
      Set-Cookie: TimeTravelCoordinates=01 January 1995; Expires=Wed, 09 Jun 2021 00:00:00 GMT


      :)

       

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      Ninja (profile), Oct 23rd, 2013 @ 2:59am

      Re:

      I believe it's a quite different problem here. We are talking about civil issues not criminal. One can safely say that betamax, vhs etc are used for child porn to a degree. In fact I'd say an encrypted thumb drive is much safer than the internet for such things.

      The lengths you entitled cucumber-seaters will go to justify your monopolies is astonishing.

       

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      JMT (profile), Oct 23rd, 2013 @ 3:39am

      Re:

      "The lengths you salad tossers will argue to continue freeloading is astonishing."

      Funny how you accuse TD of going to astonishing lengths, while in the same breath comparing copyright infringement to child porn, as if they're even close in terms of seriousness.

      And you need to work on your insults. 'Salad tossers' is pretty weak sauce.

       

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    PaulT (profile), Oct 23rd, 2013 @ 12:51am

    "For the remaining 65% the copyrighted status was either unknown, or the raters couldn’t reach consensus."

    Christ, if you need a perfect example of how screwed up the system is, here it is. When faced with a research project to examine a fixed number of historical files, researchers couldn't work out whether or not more than half were infringing. More than half!

    Yet, the moron brigade will insist that not only can Google scan millions of uploaded files every second, but that infringement is so obvious that an algorithm can be made to do it. Of course, this doesn't matter to the **AAs or their sycophants - as long as particular corporations get their profit, who cares whether they're shutting down legitimate content from competitors or other innocent parties?

     

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      Ninja (profile), Oct 23rd, 2013 @ 3:02am

      Re:

      I think that's the most glaring data in the study. It means 70% of Megaupload wasn't infringing at first look. And let's not forget we are talking about the files that were available publicly. There's a huge chunk that was never downloaded suggesting MU was used as a STORAGE service for PERSONAL use. I uploaded most of my mp3 to my Google Drive. Some of them are infringing. Some are not. But they are not public, they are mine and Google would have to PROVE I don't own them before taking action. I wonder why they aren't going after Google for it too...

       

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    Anonymous Coward, Oct 23rd, 2013 @ 4:12am

    surely that should read

    'How the Feds took down over 10,000,000 non-infringing files when they raided Megaupload', shouldn't it?

    Mega didn't take the files down, it fought like hell to get them put back, after the DoJ, on behalf of Hollywood and the other USA entertainment industries, took them down and did whatever it could to keep them down!

    as for the bit about the Betamax case, that only applies when the judges sitting and then ruling on these type of cases are not being pumped full of cash by the industries! Dodd has done his bit by ensuring that his buddies in Congress ignore everything except what he wants them to hear and act on, along with the courts! why else do you think he was given the job? ex-politicians make perfect front men. they can lie till it goes out of fashion, while having not a fucking clue about what the industry is they are supposedly in charge of!!

     

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    Anonymous Coward, Oct 23rd, 2013 @ 4:21am

    funny how a ruling can be ignored and or turned on it's head, depending on who and how a case is for, isn't it. yes, they lost in the Betamax issue, and thank goodness there was some sense used. what a shame the same amount of sense isn't used all the time, particularly when the 'we are better than anyone! we are the only thing needed on the planet! us entertainment industries' are involved!!

     

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    horse with no name, Oct 23rd, 2013 @ 5:34am

    Study issue

    There are a few things with this study that are a bit weak. First it isn't a study of Mega, but rather a study of other file sharing networks post-Mega, with the information extrapolated based on the size of Mega claimed by Kim Dotcom. Not particularly scientific for various reasons. It certainly does not take into account the commission system paid for people buying membership to download copyright material, nor would it have considered what potentially dozens to thousands of "copies" of a single file that were stored as a single file.

    Further, the study doesn't consider the difference in the types of file. A text file of a chat log, which is a pretty common "one click" share, is a use and forget thing. Most people just never delete them. It would be more interesting to see how many non-infringing, legit files would have had multiple access or were part of an active paid account that maintained them. Without that distinction, it's hard to tell legit and valuable files from lol cats reposts.

    Finally, their methods for determining if a file is infringing are weak. Assuming that files which have not appeared in some public forum are unlikely to be infringing is just not very logical. It's perhaps simple, but doesn't reflect the online version of a sneakernet between friends. Further, by their own admission, they couldn't quantify upwards to 60% of the uploads, so their data set selection process is not very strong. It's hard to draw any real conclusion when most of your data is unsure.

    It wouldn't be fair I guess to mention that the study is done by students and not professors.

    As for Betamax, the ruling shouldn't apply here in general because there is a level of control that can be exercised by a central file storage system that could not be done with millions of individual machines operated outside of the control of the creator. Betamax would be a good case to cite if someone was going after hard drive manufactures for allowing people to save pirated files. It's not anywhere near as relevant when the files are given to a third party for storage and distribution.

    PS: Will this post be held for moderation? Let me click the button and see!

     

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    Alt0, Oct 23rd, 2013 @ 8:24am

    Equality

    If the case is that there was SOME infringement (and that's all that was proven) shouldn't it apply equally to ALL services of that type?
    Like: Dropbox, iCloud, Google Drive or ANYWHERE online you can drop a file and supply a direct link to it?

     

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      PaulT (profile), Oct 23rd, 2013 @ 8:34am

      Re: Equality

      "ANYWHERE online you can drop a file and supply a direct link to it"

      The name for that place is "the Internet". Literally, shutting down that ability shuts down the whole thing.

       

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