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Piracy Your Rights Online

Hotfile Sues Warner Bros Over Abuse of Takedown Tool 155

Posted by Unknown Lamer
from the dmca-makes-life-entertaining dept.
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.
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Hotfile Sues Warner Bros Over Abuse of Takedown Tool

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  • by crankyspice (63953) on Tuesday September 13, 2011 @02:58PM (#37390388)

    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..."

  • *BEEEEP* FAIL! (Score:5, Informative)

    by snugge (229110) on Tuesday September 13, 2011 @03:04PM (#37390456)

    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.

  • by prakslash (681585) on Tuesday September 13, 2011 @03:04PM (#37390462)
    It is apparent what is happening.

    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.
  • penalties (Score:4, Informative)

    by meglon (1001833) on Tuesday September 13, 2011 @03:07PM (#37390504)
    from: http://www.citmedialaw.org/legal-guide/responding-dmca-takedown-notice-targeting-your-content,br.,br [citmedialaw.org]. The highlighted part:

    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.
  • by gstrickler (920733) on Tuesday September 13, 2011 @05:51PM (#37392192)

    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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