Hotfile Sues Warner Bros Over Abuse of Takedown Tool 155
schwit1 writes with a piece in Torrent Freak about ongoing litigation between Hotfile and a few movie studios. From the article: "Hotfile has sued Warner Bros. for fraud and abuse. Hotfile accuses the movie studio of systematically abusing its anti-piracy tool by taking down hundreds of titles they don't hold the copyrights to, including open source software. Among other things, Hotfile is looking for damages to compensate the company for the losses they suffered."
Near the end of the article it is mentioned that files taken down by the tool were replaced with links to legally procure similar works from Warner Bros.
Tool Use (Score:4, Insightful)
The use of tools was a significant early step in the development of humankind. Maybe, in as little as a couple million years, the big studios will be ready to be part of civilized society.
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The use of tools was a significant early step in the development of humankind. Maybe, in as little as a couple million years, the big studios will be ready to be part of civilized society.
Good one. It's all masturbation jokes from here on out.
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The use of tools was a significant early step in the development of humankind. Maybe, in as little as a couple million years, the big studios will be ready to be part of civilized society.
Good one. It's all masturbation jokes from here on out.
I am highly offended that you would suggest a tool of some nature, like a jack, being used as an item in a masturbation joke. WTF?
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under penalty of perjury (Score:5, Interesting)
I would really like someone to hold them to that.
Yes, copyright infringement is illegal. But, stating under penalty of perjury that you own a copyrighted work, and clearly not having checked to see if you do ... well, that should be treated with some pretty harsh legal consequences. In fact, maybe someone can spin it so that the Warner pays the statutory damages as if they pirated the work ... what's that, like 9 trillion dollars per offending file?
Hopefully Hotfile gets some traction on this one.
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well, that should be treated with some pretty harsh legal consequences.
Indeed it should, but I wouldn't hold my breath if I was you. If you really want someone to get slapped down for perjury it helps no end for them to be standing in a court, in front of a judge when they do it.
Re:under penalty of perjury (Score:5, Insightful)
Actually, it's worse then that. They then replaced the file (they didn't own) with links to purchase their own works. IMHO (IANAL, though) that is commercial infringement of copyright, and commercial infringement is a criminal offense. So is perjury, for that matter.
Also, Warner Bros should loose their rights under the DMCA to issue takedown requests at all, since they clearly cannot be trusted to issue valid requests. Make them get a court order every single time. Hopefully, this will serve as a nice precedent against automated takedown tools in the future.
Lenz v. Universal (Score:5, Interesting)
Also, Warner Bros should loose their rights under the DMCA to issue takedown requests at all, since they clearly cannot be trusted to issue valid requests.
I wonder to what extent Lenz v. Universal and the unclean hands doctrine can be extrapolated to keep a service provider's safe harbor intact when faced with takedown requests from someone suspected of perjury.
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I tried to ignore "then", but you followed it up with "loose".
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irregardless is not a word.
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Is "whooooosh"?
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Hah- you forgot to put a period at the end of your statement.
FTFY. Also "Hah- you forgot to put a period at the end of your sentence."
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you're = Conjunction (you and are)
Oh, the delicious ironing!
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irregardless is not a word.
Irregardless is a perfectly cromulent word.
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Seriously? You overlook the actual problems in his post to try to make a point that you're already 90 years too late to make?
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I didn't overlook, I figured it would be far more practical use of my time if I solved that problem first. Besides, it seems like Hotfile has the situation under control for now.
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I think you misunderestimated the parent poster's refudiation.
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Unfixed it for you.
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My kingdom for a mod point!
+1 for creative misuse of the language
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Re:under penalty of perjury (Score:4, Insightful)
Hopefully, this will serve as a nice precedent against automated takedown tools in the future.
Tools are just tools. This one was abused and should be taken from the abuser, but by no means indicates that the tool itself is bad. This is the other side of the fence of the historic ruling on VCRs that just because you can do something illegal with a tool is not reason enough to ban it.
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If there are actual infringers out there, ingringing real works in a damaging way, then the studios will probably find them. There is no need for this Draconian, too-easily-abused takedown system.
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They could remedy the situation by providing actual evidence that they own the works. If a bill collector called me up, they'd have to prove that they do indeed own debt that I'm responsible for paying. I'm not sure why that shouldn't apply to copyright notices as well.
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Except that the bill collector industry is also riddled with abusers. They can slam an entry onto all three credit reports even if it's totally bogus, and it's up to YOU, the innocent party, to clean up the mess. Sure, the entry is removed, but it can take 2-3 months and even longer for your stupid FICO score to recover. I have gone through this on more than one occasion, unfortunately. There is little recourse against the shady debt collectors either, as they can simply resell the "account" to some other b
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That's exactly why I believe the credit agencies should be subject to libel and slander charges for their repeated demonstration of reckless disregard for the truth in anything they say. In spite of many examples of debt collector abuse, they still happily pass on gossip as if they had fact checked it.
To add insult to injury, they have the nerve to then charge individual consumers a fee to even tell them when they are repeating such gossip. They should really be up for racketeering by now (that's a nice cre
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This is a not a solution, but...
Can people file complaints (or whatever they're called) against bill collector firms to screw their credit? Just a thought, I'm in a cranky mood today.
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Yes, and they can also file defamation of character suits as well.
It's just that most people in that situation don't bother to learn what their rights are.
But, the ultimate solution is regulation. Require creditors to assume that a person's credit is good unless told otherwise and to expend the resources necessary to get the information correct. Also, one free look a year is nowhere near enough, considering that the information belongs to me, not the company that compiled it. As the individual to whom the i
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Kinda odd to have one free look per year. Here the system works so that if you credit rating is changed, you must be informed about it in advance and you have couple weeks time to challenge it if the filing is erronous.
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"Kinda odd to have one free look per year. Here the system works so that if you credit rating is changed, you must be informed about it in advance and you have couple weeks time to challenge it if the filing is erronous."
I rather like that setup. Where is "here"?
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"They could remedy the situation by providing actual evidence that they own the works. If a bill collector called me up, they'd have to prove that they do indeed own debt that I'm responsible for paying. I'm not sure why that shouldn't apply to copyright notices as well."
That would probably be an improvement, but what evidence is appropriate?
With today's easy graphics editing, simply a name stamp or something of the sort on a picture isn't evidence of pretty much anything.
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Also, Warner Bros should loose their rights under the DMCA to issue takedown requests at all
Can't we just send the guy who signed the notices to jail?
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I fully expect Warner Brothers to plead "not guilty by reason of corporate insanity" - they have strong supporting evidence!
Defense: Your Honour, I ask for an adjournment on the grounds that the prosecution's lawyer is a cartoon rabbit.
Judge: I say, I say, I say, I say, that rabbit is a member in good standing of this bar!
Prosecution: [holds up sign saying "Duck Season"]
Defense: OBJECTION!
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I'm pretty sure that Warner Bros is a bigger company than Hotfile, so the spirit of DMCA has not been violated.
Re:under penalty of perjury (Score:5, Informative)
The DMCA's penalty of perjury language only applies to the statement that the author is "authorized to act on behalf of the owner of an exclusive right that is allegedly infringed." 17 USC 512(c)(3)(A)(vi) (http://www.copyright.gov/title17/92chap5.html#512 [copyright.gov]).
If I work for Consolidated Pictures, which owns the rights to the movie The Cairo Goose, and I send a DMCA takedown notice on the file MSDN_Preview_WinNT_Cairo-{g00s3}.rar, and state under penalty of perjury that I am authorized to act on behalf of the owner of the exclusive rights in The Cairo Goose, I'm fine, even though upon closer inspection the RAR file is, on its face, obviously not a copy of my employer's motion picture. (It's someone else's copyright to enforce. ;))
To be clear, I'm not saying (in a DMCA takedown) that I own the rights to that /file/, I'm identifying a work (The Cairo Goose), saying under penalty of perjury that I'm authorized to act on behalf of the rights holder of that work (The Cairo Goose), and, not under penalty of perjury, that I have a good-faith belief that the file in question is a copy of The Cairo Goose.
Note that 512(f) does provide liability "for any damages, including costs and attorneys' fees, incurred by the alleged infringer" when a DMCA notification "knowingly materially misrepresent[s]" infringement.
Also, 512(g) provides for reinstatement of content upon counter-notification where there was a "mistake or misidentification of the material..."
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Thanks for the interesting example ... but don't Warner also need to provide some actual evidence that the thing they're insisting be taken
Vexatious is one of my favorite words (Score:2)
It got me out of a bad non-compete, I think the "if you plan on continuing start saving all your emails" and the potential cost of discovery helped.
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USC17 512 (a)(3)(vi):
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The statement here is referring to the DMCA notice. Guess what, if you're filing them for things that clearly aren't the work you're claiming, then it's an act of perjury.
What exactly the punishment is for that, I do not know... I am not a lawyer, after all.
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not under penalty of perjury, that I have a good-faith belief that the file in question is a copy of The Cairo Goose.
17 USC 512(c)(3)(A)(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
Not-checking filenames and not-verifying the claimed files does not strike me as "good faith."
And I'm skeptical that "authorized to act on behalf of the owner of an exclusive right that is allegedly infringed"
can assert authority to act on infringement without also asserting that there is an infringement.
But I'm not a lawyer and grammar wasn't my favorite subject.
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You're section of stating you have an authorized right to act on behalf of the rights holder. The DMCA requires that you have looked at the file to determine that it in fact is a copyright to which you own. Thus you are saying you have the right to enforce the copyright in regards to that
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The DMCA requires that you have looked at the file to determine that it in fact is a copyright to which you own
No, it actually doesn't. See the court's opinion in Rossi v. MPAA, no. 03-16034 (December 1, 2004) (http://www.steptoe.com/assets/attachments/1740.pdf [steptoe.com]), where the proprietor of InternetMovies.com "urge[d the 9th Circuit] to adopt a rule that in order to have 'a good faith belief' of infringement, the copy- right owner is required to conduct a reasonable investigation into the allegedly offending" material. The appeals court declined Rossi's invitation. The example I chose wasn't the best, and it's obvious t
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Sounds like there should be an upper boundary threshhold for requests.
Nope, it should be more like the current "challenge" system in tournament tennis. Make it so that WB can take down as many genuine violations as they like, but three false takedowns in a month should be considered abuse of the Special Rightsholder privilege. The penalty for that should be - for a 90 day period, suspend their Special Rightsholder Account, so that they go back to proving ownership of the IP and having to get a court order for each and every violation they find. I'm sure that 90 days of has
Re:under penalty of perjury (Score:5, Informative)
The studios are using the results of simple keyword searches to trigger takedowns. As an example, while claiming to remove files that are copies of the movie "The Box", Warner removed several files related to the alternative cancer treatment book "Cancer: Out Of The Box" Another title deleted by Warner was "The Box that Saved Britain", a production of the BBC, not Warner.
If the studios want Hotfile to spend time and resources to stop aiding in the distribution of the studios' copyrighted content, then it is also the studios' responsibility to spend their own time and resources to correctly identify their copyrighted content.
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More importantly, perjury is a FELONY criminal offense while copyright infringement can a criminal or civil offense. The robosigners of the complaints should be charged as criminals. Isn't it telling that the same organizations that are pushing to increasingly criminalize copyright infringement don't feel teh need to refrain from criminal activity to "protect" their property.
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I would really like someone to hold them to that.
Either that, or make them fill out an almost unreadable captcha and make them wait at least 2 minutes before each delete, to make them prove that they actually took the time to read the full name of the file they're deleting (instead of using a stupid bot to do it).
I think we also need to (Score:1)
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What about creating content with those search terms.
Instead of "The Matrix" how about 'my' movie review of "The Matrix" and essays on Eastern philosophies in the movie.
Wait for them to robo-take-down, and then sue.
Interference with Contracts (Score:4, Interesting)
The article states loss of accounts and goodwill, but a software publisher was using hotfile to distribute his freeware app, and Warner deleted his files.
Hopefully Hotfile has the money to go the distance on this one and not settle out of court.
Hopefully the judge won't let Warner and the other four studios drop the case so no precedent can be set.
I might almost buy that Warner was using a piece of software and a script and made some mistakes, btu that the mistakes got worse after they were notified that is negligence.
Too bad they won't get fined MAFFIAA imaginary numbers. How many freeware downloads didn't happen because they deleted the file, must have been millions at $750 a piece right?
Cloning blues (Score:2)
a software publisher was using hotfile to distribute his freeware app, and Warner deleted his files.
Was it a clone of a video game published by Williams, Atari Games, Tengen, or Midway? Because Warner might be under the impression that, say, a video game with the same rules as Joust or Klax infringes Warner's copyright in Joust or Klax. I've seen other video game companies, such as The Tetris Company, aggressively pursue clones of their products even when distributed under a different name.
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their reg exps would have probably hit even dosbox.
For example, while claiming to remove files that are copies of the movie The Box, Warner removed several files related to the alternative cancer treatment book “Cancer: Out Of The Box,” by Ty M. Bollinger. Another title deleted by Warner was “The Box that Saved Britain,” a production of the BBC, not Warner.
WB bought the service to weed out those files from some lazy, lazy, lazy bastards who probably billed WB by the amount of files- lose lose for everyone except those lazy bastards.
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You can't copyright the rules of a game.
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You can't copyright the rules of a game.
I am aware of that. The Tetris Company isn't (hence Tetris v. BioSocia), and apparently neither are some other publishers of some early-1980s arcade games.
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Because Warner might be under the impression that, say, a video game with the same rules as Joust or Klax infringes Warner's copyright in Joust or Klax.
Ooh, videogame "clone" lawsuits! Ding-dong! That'll be the 1980s on the front porch, they want their... well everything actually... back.
But they say we can keep Lady Gaga.
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I bet Warner claims that because it was a freeware app, no damages can be awarded because no profit was lost.
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If that where the case, I would like to see an argument to have all of Warner's commercials removed from video based media. After all, commercials are free!
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In the Article (I know new here, etc) they state the Hotfile case is in response to 5 Studios suing Hotfile.
So I want both Hotfile to vigourously pursue their legal claim, and the 5 studios suing Hotfile to not be allowed to drop their original suit if it looks like they will lose.
Replacement Links (Score:5, Interesting)
Near the end of the article it is mentioned that files taken down by the tool were replaced with links to legally procure similar works from Warner Bros.
Just to clarify any misunderstandings about what this meant(Emphasis mine):
Hotfile suspects that the overbroad takedowns were not only an attempt to prevent copyright infringement, but also a scheme to make profits. Warner proposed to Hotfile an affiliate deal where content that was taken down would be replaced with links to movie stores where users could buy Warner movies. More takedowns thus means more potential revenue.
"Warner had an economic motive to make these misrepresentations. As noted above, in early 2010, Warner proposed a business arrangement with Hotfile whereby Warner sought to present ecommerce links to Hotfile users who might purchase a Warner file for Warner's profit in place of links that Warner had deleted using its SRA."
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The problem is on Slashdot the only weirdo who actually RTFA was Fnord666.
My hypothesis: You could post a dupe of any Slashdot story with an appropriately tweaked summary, and produce similar kneejerk response comments in the opposite direction of the first story.
A proposed solution (Score:5, Insightful)
This should happen more often! (Score:5, Insightful)
The DMCA gives copyright holders the power to take down content based on little more than their say so. It is therefore very important that making bogus DMCA claims carry penalties commensurate with the damage (both moral and monetary) suffered by those whose content is taken down by means of fraudulent or negligent copyright claims.
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On the bright side, it means you can file DMCA takedowns for content named Remotely Similarly to content that you hold the copyright for, right?
Warner Bros: too much money to care (Score:3)
A valiant effort on Hotfile's part but they'd have better luck pulling hairs out of a honeybadger's ass than getting that lawsuit to stick.
Anti-Piracy Tool and No Surprise (Score:2)
According to the complaint, Warner systematically misused the anti-piracy takedown tool (SRA) Hotfile had built for them.
So Hotfile built a tool called SRA (which stands for Special Rightsholder Account? Go figure.) that Warner uses to take down whatever it wants without Hotfile having to get involved. Is anyone surprised that Warner then took down whatever they thought might in some way, shape or form relate to something that they do hold the copyright to?
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It is surprising that Warner took down open source software that has no relations to its copyright content.
I assume that other movie studios have similar agreements with Hotfile and they seem to be following the rules fine. If the allegations are true, it is a really dumb move on Warner's part.
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The thing is, Hotfile probably considered this tool a lesser evil than the risk that Warner et al. would sue them into oblivion, arguing that the site was entirely about copyright infringement. This has clobbered a lot of Warner's legitimacy if Hotfile does decide to cut off all ties with them.
*BEEEEP* FAIL! (Score:5, Informative)
from the faq:
Q.Can I search the Hotfile server for certain files?
A. No. Hotfile protects the privacy of our users. Only the person storing a file on Hotfile gets the download link. That person decides who should have access to the link. A file can only be downloaded if the download link details are known.
it should read:
Q.Can I search the Hotfile server for certain files?
A. Yes. Hotfile do not protect the privacy of our users. All major Hollywood Companies get acces to your download link. These companys decides who should have access to the link. They can download and look at your private files as they wish. They can choose to delete your files.
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That's likely not how it happened. How many hotfile links can you find on the internet for all who visit the site?
Answer: Quite a few.
Without being explicitly told otherwise, it's not really fair to assume hotfile is sharing the info with people in ways it claims it doesn't.
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AFAIK, the copyright tool requires the studios to have the link to be able to delete it. They can't make them up or look them up, they're most probably scraping some sites and not caring what links they get.
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You're making a big assumption as to how it works, and I think you're almost certainly wrong.
I'd wager that all the tool allows the likes of Warner to do is to feed it a link and to have it take down the file at that link.
What's likely been happening is Warner has been mining the internet for Hotfile links that contain certain words and automatically submitting them to the tool.
So in other words it's not that Hotfile lets the movie industry look at everyone's hotfile links, but that if you let the movie ind
penalties (Score:4, Informative)
Section 512(f) of the DMCA creates liability for knowingly making false claims in a DMCA takedown notice or counter-notice. See 17 U.S.C. 512(f). So, if you claim in a counter-notice that your content does not infringe the complaining party's copyrighted work while knowing this to be false, then the copyright owner can win damages from you, including court costs and attorneys' fees stemming from your wrongful counter-notice. Note, however, that this provision also works against a person or company sending a wrongful takedown notice. If someone claims in a takedown notice that you are infringing their copyrighted material while knowing this to be false, then you can win damages from them in a lawsuit. In recent years, the targets of wrongful takedowns have fought back and won damages and favorable settlements from individuals and companies sending bogus takedown notices. For instance, in Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004), two students and their ISP sued voting machine manufacturer Diebold after it tried to use DMCA takedown notices to disable access to Internet postings of the company's leaked internal email archive. The court granted summary judgment to the students and ISP on their claim, finding that portions of the email archive were so clearly subject to the fair use defense that "[n]o reasonable copyright holder could have believed that [they] were protected by copyright." According to the EFF, Diebold subsequently agreed to pay $125,000 in damages and fees to settle the lawsuit. For another example, see Crook v. 10 Zen Monkeys in our legal threats database. Someone who has sent a baseless takedown notice about your content may be more inclined to back off if you remind him or her about section 512(f) of the DMCA, in addition to sending a counter-notice.
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Easy enough to find out. If any internal memo references the mere concept of accuracy being less than perfect... then they know there will be false positives in the mix. At that point, they KNOW a percentage will be baseless.
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Its worse than that Hotfile notified them they were taking down files that weren't theres and they kept doing it.
They should forget about money (Score:2)
I bet this would stop the illegal requests a lot sooner than a request for cash.
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put WB in prison? how does that work? the bozos who were working them? that would send a nice message at least..
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Exactly what I was thinking...either this was some "lone wolf" messing with Hotfiles...or there was some "collusion" to engage in willful violation of federal law... will be interesting to see how Warner handles this.
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Nope, the DMCA is more stupidly written than you think it is.
It's only perjury if you file a takedown claiming a file is something you don't have the rights to (i.e. I send a takedown request for a Disney movie, which I don't hold rights to.). There is nothing in the law as written that requires the subject of the takedown have anything to do with the work you are claiming rights to.
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in this context perjury might also be part of the existing agreement between hotfile and WB.
in the normal process WB sends notice to hotfile who then has to look at content and make a judgement to pull or counter.
in this process it looks like WB pushed hotfile and hotfile made a tool so WB could pull them at will without hotfile having to review and make a judgement, in this agreement i can see hotfile putting all of the liability for falsely pulled files on WB.
till we see what comes out no one knows.. but
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It's only perjury if you file a takedown claiming a file is something you don't have the rights to
...which is exactly what happened in this case, assuming you agree that Warner's agent knew or should have known that their automated tool was subject to error.
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It's only perjury if you file a takedown claiming a file is something you don't have the rights to
...which is exactly what happened in this case, assuming you agree that Warner's agent knew or should have known that their automated tool was subject to error.
Nope, they had the rights they claimed to have. The fact that the files they wanted taken down had nothing to do with the films they had rights to is irrelevant to the letter of the DMCA.
Though hopefully the judge will be unamused enough to interpret in your view as the spirit of the law.
*similar* works? (Score:1)
The tool replaced files with links to *similar* works, or were they the *same* works? And if they were the *same* works, does Warner have the rights to them?
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So, if I use false pretense to gain otherwise unauthorized access to a protected resource or service, and I then delete, modify and insert data while utilizing that unauthorized access...
Precedent indicates Hotfile is correct (Score:4, Informative)
Lenz_v._Universal_Music_Corp. [wikipedia.org], circumstances aren't the same, but they do establish that copyright holders must exercise good faith in determining that a copyright infringement has actually occurred before filing a takedown notice. They don't specifically set out what constitutes good faith, but clearly removing items that simply contained the words "The Box" wouldn't qualify given this "fair use" precedent actually included 29 seconds of copyrighted material and was deemed plausible enough fair use for the counterclaim to proceed.
Lenz v. Universal Music Corp. was a 2007 case in which the US District Court for the Northern District of California ruled that copyright holders must consider fair use before issuing takedown notices for content posted on the internet. Stephanie Lenz posted on YouTube a home video of her children dancing to Prince's song "Let's Go Crazy."[1] Universal Music Corporation (Universal) sent YouTube a takedown notice pursuant to the Digital Millennium Copyright Act (DMCA) claiming that Lenz's video violated their copyright in the "Let's Go Crazy" song. Lenz claimed fair use of the copyrighted material and sued Universal for misrepresentation of a DMCA claim. The court held that, in violation of the DMCA, Universal had not in good faith considered fair use when filing a takedown notice.
The court also explained that liability for misrepresentation is crucial in preventing abuse of the DMCA as a means to stifle controversial speech.
And USC 17 S512 [copyright.gov] subsection (f) establishes penalties for misrepresentation by either the copyright holder or the alleged infringer
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Lenz did more than establish that copyright holders must consider fair use, in doing so, it established that the copyright holder has an obligation to determine with some level of certainty (i.e. in good faith) that a violation has in fact occurred before issuing a takedown notice. It basically said, you can't just issue takedown notices until you have put forth good faith efforts to verify that there is actual infringement. I cite it because USC 17 s512(f) only addresses that penalties may apply for "Any p
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No, open source is used by big business to cheaply make corporate applications.
Then somewhere along the line they forget that they didn't write the open source software that builds their bottom line.
For instance, every god damned corporate web app from *cough* HP, has been a hodge podge of free software wrapped in a thin shell and pawned as enterprise.
For instance, it's apache httpd and tomcat, running on mySQL and using the ext-js ajax library along with a bunch of free java tools to comprise an enterprise
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What are the odds that he acted alone and without the knowledge of the studios?
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Oh, that's what the studios will claim. Or that it was this "small group" acting in collusion with each other. (Although if they do that, Hotfiles could theoretically claim RICO Act violations...and go after the whole org to track down this "colluding" group)