While entertainment industry execs still continue to pretend that it's obvious
when things are infringing, they continually ignore the very real concerns raised by many of us about SOPA/PROTECT IP/ICE seizures. The concern isn't about taking down the infringing content. It's about the overreach of these efforts, and how it can and will be used to take down other, legal content. This is not some hypothetical scenario. We hear about bogus DMCA notices being issued all the time, and now we have a perfect example of what a future under SOPA would be like, as Warner Bros. has admitted in court that it issued a bunch of takedowns for content it had no copyright over
-- including over some software that it just didn't like.
As you may recall, Warner Bros. was among those who sued the cyberlocker Hotfile for infringement. Hotfile hit back, pointing out that it had worked with Warner Bros., and even created a tool to make it easier to issue takedowns. And Warner Bros.'s response was to takedown tons of content
that it had no right to. In responding to these countercharges, Warner Bros. flat out admits that it did exactly that. It says that sometimes it just did basic keyword matching, which caught all sorts of other content it had no right to, admitting that it never checked the actual file to make sure it was infringing.
Warner admits that, as one component of its takedown process, Warner utilizes
automated software to assist in locating files on the Internet believed to contain unauthorized
Warner content. Warner admits that it scans and issues takedowns for The Box (2009), a movie
in which Warner owns the copyrights. Warner admits that its records indicate that URLs
containing the phrases “The Box That Changed Britain” and “Cancer Step Outsider of the Box”
were requested for takedown through use of the SRA tool.
It also issued a takedown over some open source software, simply because a Warner Bros. employee didn't like it (the software was a download manager that the WB employee thought could be used to infringe.) It also admits that it took down some software that it distributed, but over which it had no copyrights and no rights to issue a takedown.
Even more hilarious, is that Warner Bros., in its response to the Hotfile countercharges, seems to suggest that it's preposterous to think that it should have to actually check to make sure files are actually infringing... even as it appears to be making the argument that service providers should do exactly that:
Warner further admits that,
given the volume and pace of new infringements on Hotfile, Warner could not practically
download and view the contents of each file prior to requesting that it be taken down through use
of the SRA tool.
And yet, we're regularly told that YouTube should be responsible for checking the content of every video uploaded. Among the other mistaken downloads were the text of a Harry Potter book, which may be infringing, but Warner only has the copyright on the movies, not the books.
After all of this, Warner Bros. tries to brush this off by saying it doesn't really matter, since most (though not all) of the content it took down was infringing anyway, so I guess it thinks it was doing other copyright holders a favor. Of course, that's not how the law works. The fact is, some copyright holders want
to give their works away for free, and don't need or want some Hollywood giant taking it down for them.
Either way, this once again undermines so many of the arguments of the copyright players:
- That it's "easy" or "obvious" to determine what is and what is not infringing. Since Warner Bros., (like Viacom before it) can't seem to get this right themselves, why do they continue to insist that it's so easy.
- That it's "easy" or "obvious" for service providers to monitor and stop infringement directly. If even the copyright holders themselves -- who have less content to review and more knowledge of what's actually infringing -- can't get it right, why do they claim that service providers can do this?
- That laws like SOPA won't be used to take down non-infringing speech. Once again, the evidence shows that they did exactly that. It's just that under SOPA, Warner Bros. would have been able to completely kill off Hotfile prior to its ability to make its case in court.
Think of this as a preview of what we'd get under SOPA, with companies like Warner Bros. and Viacom, with their history of bogus takedowns, continuing to do so, but rather than just blocking content they have no rights over, they'd actively shut down sites and companies. In what world does that make sense?