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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 @01:38AM (#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.

    • by meerling (1487879)
      I seem to recall some talk of that kind of stuff before. Apparently they have to in good faith attest that they have the copyrights to those items they send takedown notices for, or else they open themselves up for a lot of potential legal issues. I really have no bloody idea what that would be, but I'm sure suing them by both the ones that received the takedown notice, and the actual owner of the copyrighted material that WB claimed to own, would both be able to sue them.

      I'm not a laywer, but we've seen t
      • by stanlyb (1839382)
        Yep, buy how using an automated tool gives them the "good faith" cause? If you are willing to go deeper, even the takedown notice would be considered to be taken down, and the judge posted it, liable to a law suit. Ironic, ain't so?
      • by justforgetme (1814588) on Saturday November 12, 2011 @03:17AM (#38033214) Homepage

        ... they have to in good faith attest that they have the copyrights to those items they send takedown notices for ....

        The global judicial infrastructure is not based on good faith. You can't go into a court say you own a country and be granted legislative priviledges to that without research to affirm your claims. So why should individuals be forced to follow other individuals' claims in good faith? With the same concept spamers would have to just order you to install spyware.
        That doesn't seem very consistent or legit or even healthy reasoning.

        • Because it'd be logistically impossible to enforce copyright online to any higher standard than 'that looks a bit dodgy, pull it down.' It's almost impossible to enforce it even with the evidence-free standard of the DMCA.
          • by rtb61 (674572)

            This is far worse than that. "Warner Brothers used automated software crawlers based on keywords", in this case Warner brothers were attempting to claim copyright on file names not on content. So an egregious criminal act, including fraud, misrepresentation, censorship. The extent of their criminal negligence means they should be prosecuted to the full extent of the law and then subject to a class action law suit for infringing the constitutional rights of all those whom they wrongfully accused.

        • by tinkerghost (944862) on Saturday November 12, 2011 @11:30AM (#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.

    • by Secret Rabbit (914973) on Saturday November 12, 2011 @02:27AM (#38033062) Journal

      Yes, it is. However, if one submits such a false take down notice, the according to the DMCA they can be charged with perjury. It's too bad that (to my knowledge) no-one has taken advantage of this...

      • by tepples (727027)

        if one submits such a false take down notice, the according to the DMCA they can be charged with perjury. It's too bad that (to my knowledge) no-one has taken advantage of this

        Lenz v. Universal is a start.

      • by Hatta (162192) on Saturday November 12, 2011 @10:09AM (#38034378) Journal

        The problem is the way the DMCA is written:

        `(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.

        See, you're not swearing that the file in question belongs to the copyright holder that you represent. You're only swearing that you allege that the file in question belongs to a copyright holder that you represent. BIG difference.

        The only explanation for this kind of language is that it was deliberately written to be unenforceable.

        • by deh (208195)

          In the quoted subsection (vi), the word "allegedly" is only used to modify "infringed". I see no reason to interpret it in the manner described by Hatta.

        • See, you're not swearing that the file in question belongs to the copyright holder that you represent. You're only swearing that you allege that the file in question belongs to a copyright holder that you represent. BIG difference.

          Subtly incorrect or not expressed clearly enough. In a DMCA notice you say "we found file X, and file X belongs to the copyright holder, and I am authorized to act in their behalf". If you are not authorized to act, then it is perjury. If file X doesn't belong to the copyright holder, it is perjury. But if the file in question is not file X, but a different file Y, then it is not perjury.

          The first part, "a statement that the information in the notification is accurate", would of course be false, but that

          • you say "we found file X, and file X belongs to the copyright holder, and I am authorized to act in their behalf". If you are not authorized to act, then it is perjury.

            Actually, no. If you know you are not authorized to act, that it isn't file X ou that file X belongs to the copyright holder, then it is perjury. That's his point, I believe. If you don't really know for sure that you're right, but you strongly suspect you are, then it's fair game. Remember perjury is only committed if you know for certain that you feeding false information as a lie is only a lie if you know it not to be true. So a mistake (or a "mistake") cannot be called perjury.

          • by AmiMoJo (196126)

            So it sounds like someone should start issuing takedown notices against some of Warner's videos. "Sorry, misidentified your trailer as one of mine using an automated tool, but don't worry all you have to do is re-upload or submit a counter-notice."

            I'd love to do it myself but I'm not a US citizen. I tried to get a site that violated some of my GPL code taken down using the DMCA but it doesn't work if you don't have a US postal address.

    • Didn't you get the memo? "Legal (insert buzzword)" has nothing to do with "legal" in the way a dictionary defines "legal".

    • by jythie (914043)
      True, and if it was challenged it would fail, but they are taking advantage of the DMCA's extra-legal methods. Since hosts that do not 'quickly' deal with such notices loose their safe harbor provision, they can utilize 3rd party's fear to do things that they could never do through a judge.
  • Article on Techdirt (Score:5, Informative)

    by mariushm (1022195) on Saturday November 12, 2011 @01:43AM (#38032910)

    Techdirt has a great article about this: http://www.techdirt.com/articles/20111110/10135116708/glimpse-future-under-sopa-warner-bros-admits-it-filed-many-false-takedown-notices.shtml [techdirt.com]

    It makes some interesting parallels to SOPA and E-Parasites bills and why the laws shouldn't be passed.

  • Takedown? (Score:5, Insightful)

    by Tuoqui (1091447) on Saturday November 12, 2011 @01:52AM (#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.

    • Re: (Score:3, Interesting)

      by slimjim8094 (941042)

      It's perjury. Which is ostensibly better than fines.

      Here's hoping

      • by Tuoqui (1091447)

        Problem is how do you put a company in jail for up to 7 years...

    • Re:Takedown? (Score:5, Interesting)

      by mandelbr0t (1015855) on Saturday November 12, 2011 @05:11AM (#38033502) Journal
      "Spray and pray" indeed. I received a couple of DMCA takedown notices... and I live in Canada. They don't even know what jurisdiction they're sending these automated notices to. Maybe it is a difficult task to keep tabs on the entire Internet protecting their copyrights. I'd say that the fact that they can't do it reliably means they are going about it in the wrong way.
      • by geekmux (1040042)

        "Spray and pray" indeed. I received a couple of DMCA takedown notices... and I live in Canada. They don't even know what jurisdiction they're sending these automated notices to. Maybe it is a difficult task to keep tabs on the entire Internet protecting their copyrights. I'd say that the fact that they can't do it reliably means they are going about it in the wrong way.

        Uh, "Maybe"?!? Trust me, I'm NOT siding with Warner Brothers here, but that's putting it mildly when speaking of a globally connected network with millions of nodes spread across hundreds (thousands?) of "jurisdiction" points. I agree that someone should retaliate against WB if they were targeted unfairly, but I am also curious as to what alternative WB or anyone else would have that would somehow prove more accurate when on a "seek and destroy" mission across the 'net.

        This is akin to celebrities spending

      • I received a couple of DMCA takedown notices... and I live in Canada.

        "Juris-my-diction"? Canada is a Berne Convention party too. If your country doesn't have a takedown law, then I'm guessing the notice should be handled like any other cease-and-desist letter: "take down this customer's unauthorized copy of our work or I am likely to sue you as a provider." Does the law of Canada provide for any procedure that gives a legal defense to service providers against contributory or vicarious liability for copyright infringement?

        • No, but as Bill C-32 has not yet passed, the 2004 Supreme Court decision [cnet.com] is still the prevailing law with regard to P2P file sharing. Sending cease-and-desist letters to law-abiding citizens of another jurisdiction is nothing but legal intimidation.
          • What I gather from the article is that P2P use is still lawful in Canada because Canada hasn't yet implemented the WIPO treaty. But does the WIPO treaty specify penalties for not transposing it into national statutes in a timely manner? Would countries with tougher copyright laws be justified in imposing trade sanctions on Canada?
  • Pedant (Score:4, Informative)

    by anagama (611277) <obamaisaneocon@nothingchanged.org> on Saturday November 12, 2011 @01:53AM (#38032952) Homepage
    trying not be pedantic, but the line:

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

    That "not" shouldn't be there. And it feels like there is something missing from this analogy. Perhaps it would be like "holding the post office responsible to stop mailing privileges for people wrongly accused of mailing fireworks."

    • The "for what people" phrase is what shouldn't be there. Better analogies would be "This is akin to not holding the Post office liable for what the Postmaster mails, or the phone companies liable for what their spokesman says."

  • by larry bagina (561269) on Saturday November 12, 2011 @01:57AM (#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 cpghost (719344)

      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.

      Right. Now suppose that I create a file with a misleading name, like $SOME_MOVIE_TITLE, and that I own the copyright on its contents (let that be some poem I wrote, or whatever). $EVIL_RIAA authorizes $EVIL_LAWYER to send a DMCA takedown notice. $EVIL_LAWYER is still NOT covered by the DMCA, because though he is authorized by $EVIL_RIAA to act on their behalf for works of whic

    • By your reading, you only have to be acting on behalf of the owner of some random copyright to be able to send takedown notices on any unrelated topic. For example, I own the copyright on the books that I've published and, more importantly, on this Slashdot post. If I authorise someone to send takedown notices to everyone who infringes the copyright on this post, and they file takedown notices with Hulu against all WB shows, then your reading would be that that is completely legal. I strongly suspect tha
      • by drinkypoo (153816)

        More interestingly, if you authorize EVERYONE to send takedown notices to ANYONE who infringes the copyright, isn't it a totally legal DDoS if they do?

        • Let's try. I herby authorise anyone to issue DMCA takedown notices on my behalf for any infringement of the the copyright on my Slashdot posts.
    • by mounthood (993037)
      Even if we assume your reading of the law is correct, perjury still applies.

      (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.

      A DMCA submitter is not "authorized to act on behalf of" someone else's copyright, and therefore has issued a false statement "under penalty of perjury".

      But it doesn't really matter because everyone involved in the system (eventually) loses their job if they fight the power and moneyed interests, and since they know that, they don't.

  • by Anonymous Coward

    So how does the Clean Hands Doctrine come into play and can these sites start ignoring take-down notices from Warner Brothers because of it?

  • Legal terminology (Score:5, Insightful)

    by Sooner Boomer (96864) <sooner.boomrNO@SPAMgmail.com> on Saturday November 12, 2011 @02:17AM (#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 dbIII (701233)
      Isn't there a penalty in the law for sending out false DMCA notices already? It appears to just have been used as a sweetener to help it pass because it has never been applied.
    • by advocate_one (662832) on Saturday November 12, 2011 @04:58AM (#38033482)
      a suitable penalty would be loss of breathing privileges for the corporation...
    • by geekmux (1040042) on Saturday November 12, 2011 @08:15AM (#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 Eggplant62 (120514) on Saturday November 12, 2011 @02:21AM (#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 @02:30AM (#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 msobkow (48369)

      It should be that simple, until you try to get the copyright holders to agree on a format for the database. At a minimum, that design by committee would add a couple years of delay and excuses.

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

      by Kjella (173770) on Saturday November 12, 2011 @03:16AM (#38033210) Homepage

      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."

      So if the database lists a movie title, YouTube is supposed to know every scene in every movie and know if the content is infringing? Or did you mean to say they have to put up a movie server so YouTube can compare clip against clip? And how exactly would it limit their scattershot practice if YouTube gets all the hard work validating or dismissing everything? The part about "we own this copyright" is right there in the DMCA notice, under penalty of perjury even. The question is if the copyright they have apply to the clip they're trying to take down or not and there's no easy compare function between List<Copyright> and List<VideoClip>. Even if they put up an "original" there's a million kind of settings and clips and compilations and whatnot that don't qualify as fair use, you try to write that fuzzy matching. Quite frankly I'm not sure what you're trying to suggest, but I'm pretty sure it doesn't make any sense.

      • by msobkow (48369)

        From the article:

        In addition, the movie studio states that it removed many titles based merely on keywords and without verifying their actual content.

        They're not claiming they verified the content at all. But they issued takedown orders based on title keywords that they don't own. You should be at least willing to put up a list of what you claim to own so that minimal verification at least can be done before obeying a takedown order. Takedown orders are legal documents -- it's not something the ISP can

        • Except that a service provider isn't supposed to make judgments on the legitimacy of the order. If they receive one, they take the content down and it's the responsibility of the person who posted it to issue a DMCA counter-claim. Doing otherwise risks their safe harbor status under the DMCA.

          But for your proposal specifically, how is the service provider supposed to verify if a given piece of content is from something owned by the company that issued the takedown notice? The companies are using keyword s
          • Re:Simple Solution (Score:4, Insightful)

            by msobkow (48369) on Saturday November 12, 2011 @05:46AM (#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.

          • The companies are using keyword searches because there is too much content to verify manually.

            That is simply too bad for them (the copyright holders). Forgive me for not caring about the fact that they might be losing potential profit enough that I would support them randomly issuing takedown orders on things that they don't even hold the copyright to.

        • by Kjella (173770)

          But they issued takedown orders based on title keywords that they don't own. You should be at least willing to put up a list of what you claim to own so that minimal verification at least can be done before obeying a takedown order.

          But that is already part of a DMCA notice. Like for example:

          The movie studio admits this and confirms that while searching for âThe Box (2009)â(TM) many unrelated titles were removed. âoeWarner admits that its records indicate that URLs containing the phrases âThe Box That Changed Britainâ(TM) and âCancer Step Outsider of the Boxâ(TM) were requested for takedown through use of the SRA tool.â

          This would come through as a DMCA notice saying we own the copyright to the movie "The Box". We believe the file called "The Box That Changed Britain" is an unauthorized copy of "The Box". Everything you ask for is already available but nobody actually has the time to manually do the verification you ask and a database would do absolutely nothing to change that.

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

            by msobkow (48369) on Saturday November 12, 2011 @05:48AM (#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 Kjella (173770)

              Reality is that the top 100 "users" - or rather feeds represent 75% [slashdot.org] of the posted content, you just have to check new users and if you want you can block them. All the MPAA got is a gigantic game of whack-a-mole trying to delete files at random as they show up in search results, the problem isn't even remotely comparable.

      • by Skapare (16644)

        The content producer only needs to tell the Youtube staffer what time index in the original full movie that the infringing content is from.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      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 bre

  • This is more akin to the phone company not being liable for using automated software to drop all calls that have words that sound like 'bomb'. (Fun Fact: the tech WAS implemented for international calls post-9/11)
  • by Khith (608295) on Saturday November 12, 2011 @03:19AM (#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.
  • by grahammm (9083) * <graham@gmurray.org.uk> on Saturday November 12, 2011 @03:52AM (#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 Arancaytar (966377) <arancaytar.ilyaran@gmail.com> on Saturday November 12, 2011 @06:07AM (#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 oDDmON oUT (231200) on Saturday November 12, 2011 @07:35AM (#38033882)

    Or a preview of life in these United States in two or three years? This is precisely what will happen when those charged with conducting the business of the nation decide instead to legislate moral behavior.

  • by Opportunist (166417) on Saturday November 12, 2011 @07:52AM (#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"?

  • That analogy in the story really sucks bad. Its nothing like the example that the post office isn't held responsible for content. Of course they aren't. they cant see the content.

    If you have to use the PO, it would be more like them refusing to deliver due to the content of the magazine titles. " we think its bad "

  • by Dwonis (52652) * on Saturday November 12, 2011 @12:20PM (#38035056)
    I propose two solutions:

    1. Get rid of these notice-and-takedown laws.
    2. Enact statutory liability any time this happens. That will make these folks a lot more careful about how they use the notice-and-takedown laws.

    Anyone who has their freedom of speech inappropriately restricted deserves compensation from these clowns.

  • Warner Brothers failed to even attempt due diligence in properly distinguishing real violators from innocent bystanders. Using a blanket keyword search for collecting a site list is tantamount to ripping all the pages out of a phone book between "N" and "U", then pursuing them all with the hopes and intent of nailing a single "John smith".

    There is no presumption of guilt, by going after everyone east of "Over There"... They have no legal grounds for their action and as a thank you for a draconian misuse of

  • Yesterday Warner Bros. responded to Hotfile’s allegations, admitting that it indeed removed materials for which they don’t hold the copyrights. In addition, the movie studio states that it removed many titles based merely on keywords and without verifying their actual content.

    Proof that the law is flawed! The law needs to be updated to require that content owners must either: (1) provide proof of the ownership of the content ... OR: (2) stipulate agreement to be liable for $1000 per file per calendar day, plus damages and legal fees, for all content they take down that they have no ownership of (or equivalent legal delegated rights). Missing or flawed proof constitutes electing option #2.

  • Suppose I were to find some stuff Warner Brothers put on the net. I then would take the title, make a work of the same sort with the same title (and far inferior), and register its copyright.

    Then, could I hypothetically find real, legit, Warner Brothers stuff out there with the same title, and send my own DMCA takedown requests? I would have a copyrighted work, I could swear without fear of perjury that it's my copyright, and by executing the same degree of care I could send takedown notices to sites h

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