by Mike Masnick
Tue, Dec 3rd 2013 7:53pm
by Mike Masnick
Mon, Dec 2nd 2013 5:34am
from the a-bit-of-good-news dept
In the present case, there is no evidence that the Defendants (or Hotfile’s founders) are ‘pirates’ or ‘thieves,’ nor is there evidence that they were ‘stealing’ or engaged in ‘piracy’ or ‘theft.’ Even if the Defendants had been found to have directly infringed on the Plaintiffs’ copyrights, such derogatory terms would add nothing to the Plaintiffs’ case, but would serve to improperly inflame the jury.The MPAA tried to argue that these were commonly used, but apparently the judge realized that using these misleading words really would be unfair. Hopefully other courts follow suit.
by Mike Masnick
Mon, Nov 18th 2013 10:45am
Warner Bros. Admits To Issuing Bogus Takedowns; Gloats To Court How There's Nothing Anyone Can Do About That
from the too-bad,-suckers dept
As we've noted many times in the past, there is almost no real punishment for filing false takedowns. The "penalty of perjury" language appears to only apply to the question of whether or not the person filing the takedown actually represents the party they claim to represent -- and not whether the file is infringing at all, or even whether or not the file's copyright is held by the party being represented. And, in the lawsuit, Warner Bros. is relying on that to try to avoid getting hit with a perjury claim. Basically, the company is saying: sure, sure, we lied and pulled down content we had no right to pull down, but the law is so laughably weak and in our favor that screw you all, it doesn't matter what we take down. While WB actually did "agree" to a more strict perjury clause in agreeing to Hotfile's terms, it's now arguing that the terms it agreed to don't count because they're different from the DMCA:
Hotfile first argues that the language on its website substantially complied with the DMCA and because Warner “was not the owner or authorized by the owner of the materials to issue the takedown notices,” its takedown notices contained false statements under penalty of perjury. Opp. at 3. But Hotfile’s argument is a sleight of hand that would transform every mistaken notice sent to Hotfile into a false statement under penalty of perjury. The sender of a takedown notice who mistakes a file for an infringing copy of its work is never the “owner or authorized by the owner” of what the file actually is. But the DMCA expressly does not require the sender of a notice to certify under penalty of perjury that they have correctly identified the complained-of file as one of their works. A takedown notice’s “[i]dentification of the copyrighted work claimed to have been infringed” is not made under penalty of perjury. 17 U.S.C. § 512(c)(3)(A)(ii). A statement under penalty of perjury, under the DMCA, applies only to the claim to represent the copyright owner of the specific right alleged to be infringed, i.e. instances in which a copyrighted work is identified by a notice and the issuer falsely claims to be the representative entitled to take down the work so identified. See 17 U.S.C. § 512(c)(3)(A)(vi). Hotfile makes no accusation, and has no evidence, that Warner ever falsely claimed to be acting on behalf of the true copyright owners of the files it accidentally took down (e.g., that Warner, instead of misidentifying files as its own, ever identified them as the works of other copyright owners, but then claimed to represent those other owners).On the legal analysis, Warner Bros. may actually be correct here -- but it only serves to highlight how weak and ineffectual the DMCA 512(f) is, in that it's basically impossible to punish anyone who ever takes down legitimate content with a bogus takedown. As you read the filing, WB appears to be almost gloating that the way copyright law is written, it can take down whatever it wants, and if you don't like it, well, go shove the DMCA up your... and good luck.
If ever there was evidence that there needs to be real teeth behind punishment for filing bogus DMCA notices, it seems like this case should be exhibit number one.
by Mike Masnick
Wed, Aug 28th 2013 3:13pm
from the secondary-liability:-watch-out dept
The specific details of the ruling will be important, because it's very important to see on what basis Judge Kathleen Williams found as she did, but the risk of massive harm to innovation and the safe harbor protections under the DMCA is very, very real. Stupidly, the MPAA is cheering on this decision, despite the fact it will likely create chilling effects that will harm the kind of innovation the movie industry needs the most these days.
I know that some people will, undoubtedly, argue that Hotfile was used for a lot of infringement -- and there's evidence to suggest that's true. But, copyright owners have always had a remedy there: go after the actual infringers. Putting liability on the cyberlocker itself now puts just about any online cloud provider at risk of getting sued. Dropbox, Box.net, Flickr, YouTube, Google and many others need to pay close attention to what comes out of this case, because pinning liability on a third party storage company will make it much more expensive for any such service to be in business. This is sad, and stupidly counterproductive for the MPAA, because what it should be doing these days is embracing services that help fans access the kind of content they want when they want it. Instead, they're actively trying to shut down innovations via copyright law.
I'm sure we'll have a more thorough analysis of the full details of the ruling once they're out.
by Mike Masnick
Fri, Apr 13th 2012 11:33am
from the substantial-non-infringing-uses dept
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).
by Mike Masnick
Wed, Mar 21st 2012 2:14pm
Google Defends The DMCA's Safe Harbors Against The MPAA's Attempts To Reinterpret Them In Hotfile Case
from the reasonable-brief dept
At issue is the standard used to judge whether or not the DMCA's safe harbors apply. Obviously, Google has a vested interest in having previous court rulings on the DMCA's safe harbor followed in this case, not just because those rulings protect Google, but because they're the only way the DMCA actually makes any sense. Google's argument is pretty clear and well-argued: as the DMCA safe harbors themselves, the massive DMCA caselaw and the Congressional history of the DMCA all show in pretty great detail, to lose the DMCA's safe harbors, a company has to have specific knowledge of infringement, not just general knowledge that its tool is used for infringement. The MPAA's argument is effectively the opposite -- and is completely nonsensical: that if it can show that enough people infringed, then it should be assumed that Hotfile could have stopped the infringement. As the Google argument explains simply, that's a clear distortion of the law. In fact, they point out that the MPAA is so far off the reservation on this one that it can't even find DMCA cases to support its position, instead choosing two cases that have nothing to do with the DMCA.
Amusingly (and ridiculously), the MPAA is so freaked out about Google explaining the law on this one key point that it's asking the judge not to allow the brief, suggesting that rather than providing a separate third party view, Google's brief is really just re-arguing Hotfile's position. That's an argument that makes little sense, though. Google's brief is pretty narrowly focused on just one key issue in the much larger case surrounding Hotfile: it's merely asking the court to make sure it follows the same standard used in most other courts in the country. It makes no specific statements concerning Hotfile's actions at all. The issue Google raises is important because this court and this Circuit have not specifically ruled on the DMCA safe harbors -- a fact you can bet the MPAA knows well. No doubt, the MPAA is hoping that a different ruling in this case can lead to split that would (it hopes) lead to all of those many other DMCA rulings protecting safe harbors being overturned.
I'm sure that some simplistic commenters may try to summarize this case as Google defending Hotfile, but the specifics of the filing make it pretty clear that's not what's going on at all. It merely points out the well accepted standards and practices for removing DMCA safe harbor protections -- which are quite different than the interpretation of the safe harbors that the MPAA gave the court in its motion for summary judgment.
by Mike Masnick
Fri, Mar 9th 2012 10:55am
from the and-for-this-they-want-summary-judgment? dept
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....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?
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
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.
by Mike Masnick
Thu, Nov 10th 2011 10:40am
from the is-this-what-we-want? dept
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.
by Mike Masnick
Tue, Sep 13th 2011 3:07pm
from the now-this-starts-to-get-interesting dept
Most of the response from Hotfile seems focused on proving that it's protected by the DMCA's safe harbors, but there are a few other interesting tidbits, including this one:
On information and belief, Plaintiffs have been investigating Hotfile for over a year in which time they were aware of particular URLs of files that they believed to be infringing and had decided to contend that Hotfile’s content protection policies were inadequate. Rather than diligently and promptly bringing suit, however, Plaintiffs and their content protection agents delayed in seeking any remedy. Not only did Plaintiffs inexplicably fail to bring suit or otherwise give Hotfile notice of their allegations during this period, to the contrary, they repeatedly complimented Hotfile’s content protection efforts, offered for Hotfile to become a business affiliate, and refrained from using their Special Rightsholder Accounts to takedown the files they believed were infringing. Plaintiffs thereby perpetuated the very infringement they now allege in this case. Plaintiffs’ unreasonable delay resulted in prejudice by causing Hotfile to leave up the files that are now alleged to infringe, inducing Hotfile to maintain the very content protection policies Plaintiffs now impugn, and causing potentially helpful evidence to be lost....It also notes that due to the compliments from studios and the questions about business relationships, Hotfile "relied on these representations believing that the Studios found Hotfile’s content protection policies to be more than adequate." The specifics here seem to be that Warner Bros. asked for and received a specific tool made by Hotfile to make deletions easier, and then regularly thanked Hotfile for its actions taking down content. Again, that looks bad for WB.
Other than that, the part that's getting attention is the claim that Warner Bros. issued takedowns on content for which it did not hold the copyright. That certainly looks bad for Warner Bros., and at the very least raises significant questions about how Hotfile could be expected to know who held which copyrights when even one of the plaintiffs appears not to know.
Warner has acted unscrupulously and dishonestly. Not only has Warner (along with four other major motion picture studios) filed this unfounded and contrived litigation against Hotfile employing overly aggressive tactics, Warner has made repeated, reckless and irresponsible misrepresentations to Hotfile falsely claiming to own copyrights in (or to have the owners’ authorization to delete) material from Hotfile.com. Worse, Warner continued to make these misrepresentations even after Hotfile explicitly brought this rampant abuse to Warner’s attention, ruling out any possibility that its wrongful actions were accidental or unknowing. Thus, Warner has knowingly made misrepresentations and it has engaged in DMCA abuse on an unprecedented scale by grossly misusing the powerful anti-piracy software tool that Hotfile specially created at Warner’s request.The details suggest that Warner started taking down more and more content, even taking down some very popular freeware software that had been purposely uploaded to Hotfile for distribution by its creators. It also appears to have used very questionable simple phrase matching, such as deleting all files that had "the box" in the file name, even if they were totally unrelated to the WB movie "The Box." So that, too, doesn't look good for Warner Bros.
The only thing I'm not sure about here, though, is whether or not Hotfile actually has standing to bring such a claim. I would have thought that it had to be done by the actual copyright holder of the content taken down (or someone else injured by such a takedown). I'm not sure that Hotfile can make such a claim.
Separately, some of these defense and counterclaims are really just directed at Warner Bros., which is only one of the five studios suing -- so Hotfile may still have some issues with the other four. Separately, I just noticed that Paramount is missing from the suing studios. There are six major studios, and all of them except Paramount are involved. That's a bit surprising, since Paramount execs have been some of the most vocal execs speaking out against cyberlockers. Anyone know why they chose not to join in on this one?
by Mike Masnick
Thu, Jul 28th 2011 1:17am
from the uh-ohs dept