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The Internet Piracy Technology

Warner Brothers: Automated Takedown Notices Hit Files That Weren't Ours 157

Posted by timothy
from the let-god-sort-'em-out dept.
itwbennett writes "In a court case between Hotfile.com and Hollywood studios, Warner Brothers admitted they sent takedown orders for thousands of files they didn't own or control. Using an automated takedown tool provided by Hotfile, Warner Brothers used automated software crawlers based on keywords to generate legal takedown orders. This is akin to not holding the Post Office liable for what people mail, or the phone companies liable for what people say. But the flip side is that hosters must remove files when receiving a legal takedown notice from the copyright holder — even when the copyright holders themselves don't know what material they actually own."
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Warner Brothers: Automated Takedown Notices Hit Files That Weren't Ours

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  • by Anonymous Coward on Saturday November 12, 2011 @12:38AM (#38032888)

    If someone sends you a takedown notice for something that they don't own, that doesn't sound even remotely like a legal takedown notice.

  • Takedown? (Score:5, Insightful)

    by Tuoqui (1091447) on Saturday November 12, 2011 @12:52AM (#38032946) Journal

    "This is akin to not holding the Post Office liable for what people mail, or the phone companies liable for what people say."

    No this is akin to FRAUD. It'd be like me saying I'm Warner Brothers and going and cleaning out their bank accounts.

    PS: Maybe if the DMCA included fines and penalties for takedown notices that are illegitimate they might not be as prone to using automated tools that work on a 'spray and pray' philosophy... Also if any of these people were unfairly targeted by DMCA notices should sue Warner Bros for damages and such.

  • by larry bagina (561269) on Saturday November 12, 2011 @12:57AM (#38032972) Journal

    If you carefully review the elements of the DMCA takedown and put-back notices [wikipedia.org], you'll note that for the put-back notice, you must provider

    a statement under penalty of perjury that [you have] a good faith belief the material was mistakenly taken down

    Fair enough. But check the takedown notice:

    a statement that [evil RIAA goon lawyer] 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.

    a statement that, under penalty of perjury, [evil RIAA goon lawyer] is authorized to act for the copyright holder

    That's right -- it's a crime (perjury) to submit a take down notice if (and only if) you're not authorized by the copyright holder. It's not a crime to submit bad-fath take down notices. But disputing a bad-faith take down notice potentially is a crime and exposes you to criminal liability.

  • by Tuoqui (1091447) on Saturday November 12, 2011 @01:00AM (#38032984) Journal

    I would argue that you cant have 'good faith' when there is no human oversight involved. Thus punching in a bunch of keywords into some automated process and having it generate automated DMCA notices in a 'spray and pray' fashion is tantamount to walking around with a loaded firearm and when it accidentally discharges and kills someone you claim it was an accident (good faith) rather than murder (FRAUDULANT CLAIM)

  • Legal terminology (Score:5, Insightful)

    by Sooner Boomer (96864) <sooner@boomr.gmail@com> on Saturday November 12, 2011 @01:17AM (#38033040) Journal

    Under the law, this action is refered to as "depraved indifference" - an action, deliberate or unintentional, displaying reckless disregard and wanton carelessness. A suitable penalty would include the removal of the ability to issue takedown notices for a year (or more...).

  • by Eggplant62 (120514) on Saturday November 12, 2011 @01:21AM (#38033046)

    Lilly Tomlin on SNL back in the '70s: "We don't care, we don't have to, we're the phone company... *snort*"

  • Simple Solution (Score:5, Insightful)

    by artor3 (1344997) on Saturday November 12, 2011 @01:30AM (#38033068)

    Copyright holders aren't responsible when their bots screw up? Okay, fine, I can buy that. Programs do occasionally make mistakes. I don't get angry at Netflix for occasionally recommending Shindler's List based on my interest in Wall-E. But if content hosters have to pull down content when they receive a notice from a company holding the copyright, then there needs to be a way for the hoster to know if the company holds the copyright.

    Media companies engaging in such scattershot tactics should therefore be required to host a database listing every copyright they own. That way if they send a takedown notice for video X to YouTube, someone at YouTube can check the video, check the database, and say "yep, that shouldn't be here" or "nope, this request must have been sent in error."

    If they own the copyright but don't list it in their database, then it's their own damn fault if hosters don't pull it. If they don't own the copyright and but do list it in the database, then that can no longer be dismissed as just an error in their bot's algorithm, and they should be open to lawsuits from both sites receiving takedown notices and from the actual copyright holder.

  • by AK Marc (707885) on Saturday November 12, 2011 @01:34AM (#38033082)
    Telling an untruth under oath isn't perjury, even if proven to be untrue. It must be a lie. Filing these, knowing you are using error prone methods, does not indicate that any one order is likely untrue. They paid someone else to check. They acted in "good faith", even if negligent. Unless you can prove in a court of law that they knowingly lied, I'd expect no court would ever find they weren't acting in good faith.

    Thus punching in a bunch of keywords into some automated process and having it generate automated DMCA notices in a 'spray and pray' fashion is tantamount to walking around with a loaded firearm and when it accidentally discharges and kills someone you claim it was an accident (good faith) rather than murder (FRAUDULANT CLAIM)

    Wow, if you are seriously presenting that as a legal theory, I'm surprised you could turn a computer on. That's so stupid, it's funny. The courts do realize that killing someone is permanent and much worst than a temporary takedown notice mistakenly issued with no permanent effects at all. If you sued because of this "fraudulent claim" you'd likely be thrown out of court on your first day. You have a recourse listed specifically in the law. Issue a counter-claim and your content goes back up. If you object to having your stuff down for a bit before the counter-claim is active, you would have to prove financial damage prior to the start of the trial, otherwise, the judge could do something like a summary judgement in your favor for $1 (since you didn't indicate any actual loss, why bother with a trial? If you win and win back all damages against you, you'd get $0, so the judge orders them to pay you $1 and you walk away both a fool and a winner). If a DMCA claim is mistakenly filed against you, what's your loss?

  • by ClimberPunk (241268) on Saturday November 12, 2011 @01:55AM (#38033148)

    Telling an untruth under oath isn't perjury...

    And there in lies one of the fundamental flaws in take down notices under the DCMA. They could just as easily have generated the notices from a ouija board or a burning bush. So long as you can't prove they knowing lied the notice is fully valid, and the sender of the notice faces no liability.

  • by Mashiki (184564) <mashiki&gmail,com> on Saturday November 12, 2011 @01:57AM (#38033152) Homepage

    Good faith requires that you have reasonable grounds to believe that something is true, or that you have the claim or right, or legal right to do so. That isn't the case here. They're simply doing it because they 'feel' or 'think it might be' something based on assumptions, and guesswork. It would be the same as a cop going along and busting down someone door randomly and saying "I reasonably believed that they were smuggling 250lbs of coke" based on their gut. Doesn't fly there, it shouldn't fly here.

    There is a clause in the DMCA for filing claims that are false, perhaps people should start using it?

  • Re:fp (Score:1, Insightful)

    by justforgetme (1814588) on Saturday November 12, 2011 @02:10AM (#38033186) Homepage

    Yes, what about that?
    Or at least they could put it below the notifications box.

  • by Khith (608295) on Saturday November 12, 2011 @02:19AM (#38033220)
    It doesn't seem to be mentioned anywhere in the article, but does anyone know which "Open Source software" was removed? They claim that the software sped up infringing downloads, so I wondered if it was a file sharing program or download accelerator or something along those lines. This company would happily claim that the entire internet in general is bad because it helps people download infringing content.
  • Re:Simple Solution (Score:2, Insightful)

    by Anonymous Coward on Saturday November 12, 2011 @02:35AM (#38033270)

    Uh.. there's an even simpler solution.. If the media companies are the ones benefiting from takedown notices properly used ... then the media companies need to pony up when they issue takedown notices improperly. It does not matter one goddamn bit to me if the notices are being generated and delivered automagically. Those companies benefit when it works as intended. Thus, they need to bear the costs when it doesn't. If the costs are stupendous because the false positive rate is atrocious, then thems the breaks. Find a better automated solution. Even better.. the media companies have provided us with penalties for interfering with copyrights that they're happy to apply to others. So.. when the media companies interfere with other's copyrights, those penalties, obnoxiously inflated that they are, should apply to the media companies.

  • by grahammm (9083) * <graham@gmurray.org.uk> on Saturday November 12, 2011 @02:52AM (#38033304)

    If, as the rights owners claim, unauthorised copying is 'copyright theft, then surely claiming to own the copyright of something which they do not. is a much more serious case of copyright theft.

  • by advocate_one (662832) on Saturday November 12, 2011 @03:58AM (#38033482)
    a suitable penalty would be loss of breathing privileges for the corporation...
  • by Luckyo (1726890) on Saturday November 12, 2011 @04:16AM (#38033520)

    We need "-1 goatse" mod...

  • Actually there are sometimes very good reasons for downloading copyrighted material. For example I have downloaded cracked versions of several games that i have bought and paid for, why? because when I switched to a 64 bit OS the fucked up DRM would no longer function and in fact IME can seriously damage the OS because some of the installers will try to jam 32bit hooks into a 64bit kernel and really make a mess. oh and their uninstaller DOES NOT WORK so once its jammed in there you are SOL. I have also found company supplied system requirements and demos are often completely full of shit, as i've bought games where I was WAY below system reqs and the demo played fine but the game simply wouldn't run at all on my system. of course there is no taking it back once opened, so there goes my money right down the shitter.

    So until the game companies start removing their DRM after a year or whenever they stop supporting the game, whichever comes first, and I'm allowed to take back products that are defective frankly they can kiss my ass. If they were smart they'd embrace sites like Steam and GOG where my games "just work" but even that they are trying to fuck up by adding DRM on top of Steam, such as the shitastic GFWL bullshit I got stuck with when i bought Bioshock II. The pirate version? No jumping through GFWL constant bullshit just to play the game.

    So I have to agree with Gabe from Valve when he said something along the lines of "piracy means you are offering an inferior product". Either your price is too high, the DRM too shitty, or too many hoops just to play (I'm looking at YOU Bioshock II) and you are simply not making your product as useful for the customer as the pirated version.

  • Re:Simple Solution (Score:4, Insightful)

    by msobkow (48369) on Saturday November 12, 2011 @04:46AM (#38033586) Homepage Journal

    Then the studios are going to have to manually verify things instead of relying on automated tools, at very least by going through the list of candidate matches by hand. With their billion dollar budget total, they can afford to do it if they're that concerned about piracy.

    Otherwise they should be slammed in the courts for fraudulently claiming copyright on materials they don't own, and slammed hard. How much time does a citizen normally serve for lying in court? Or laying false charges through the police? Multiply accordingly... and the executives who approved the automatic searches should be the ones doing the time, not some underling.

  • Re:Simple Solution (Score:5, Insightful)

    by msobkow (48369) on Saturday November 12, 2011 @04:48AM (#38033588) Homepage Journal

    Funny. Torrent sites don't seem to have trouble cleaning out the periodic floods of bogus torrents, and they don't operate on anywhere near the manpower budget Hollywood does.

  • by Arancaytar (966377) <arancaytar.ilyaran@gmail.com> on Saturday November 12, 2011 @05:07AM (#38033622) Homepage

    Since it is now public knowledge these automated tools are unreliable, simply stop allowing its users to pretend to good faith while using them. Rights holders should not be able to pass the cost of policing their rights on to society by spamming the legal system with invalid notices.

    (Not taking into account that "passing the cost of policing their rights on to society" is what they have done for decades.)

  • by Opportunist (166417) on Saturday November 12, 2011 @06:52AM (#38033946)

    Does that mean that's like me going to a post office and telling them to throw away various packages because I think they might be damaging one of my rights and they'd have to do it?

    Anyone here thinking this sounds like it could in any way remotely be connected to the definition of "legal"?

  • by geekmux (1040042) on Saturday November 12, 2011 @07:15AM (#38034022)

    Under the law, this action is refered to as "depraved indifference" - an action, deliberate or unintentional, displaying reckless disregard and wanton carelessness. A suitable penalty would include the removal of the ability to issue takedown notices for a year (or more...).

    Sounds like a fantastic penalty and suitable countermeasure against sue-happy orgs and their "spray and pray" tactics.

    Unfortunately, this also appears to be an older law that came from our Justice system. We don't have that anymore here in the US. All we have is a Legal system, where laws go out the window in favor of cronyism and greased palms.

    If that's difficult to believe, then tell me how many sue-happy orgs have been forced to "sit out" for an entire "season" of wrongful accusations.

  • by tinkerghost (944862) on Saturday November 12, 2011 @10:30AM (#38034728) Homepage
    Preliminary injunctions are issued under "good faith" statements by the lawyers - essentially it happens because there hasn't been any discovery yet in the issue. It means you actually believe that what you are saying is true. The converse - "bad faith" is liable for a 601 hearing by the bar association - although you basically have to be arrested before they give a damn.

    The way the DMCA is written, takedown notices are basically preliminary injunctions against the posting of that item. What I can't understand is how you can in "good faith" say you own copyright on everything with "the box" in it. At this point, I would say that they violated the rules & should be sued for slander of title by the copyright owner and tortuous interfierence by hotfile and the copyright owners.

    In my own little perfect world, they would have an injunction issued against them preventing them from issuing another takedown notice for a year or more as punishment for abusing the system.

We warn the reader in advance that the proof presented here depends on a clever but highly unmotivated trick. -- Howard Anton, "Elementary Linear Algebra"

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