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Old 10-03-12, 00:50   #1
 
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Default Hotfile v Warner Bros Court Case-DOCs & Update

Warner Bros’ False Takedowns Stifle Free Speech, EFF Tells Court

Posted by Ernesto 08 Mar 2012 11:20 AM PST

The EFF has filed a brief in the dispute between the cyberlocker Hotfile and Warner Bros, where the latter is accused of taking down content they don’t hold the copyrights to. The EFF argues that Warner Bros. is stifling online speech by denying Hotfile users to access to legitimate content. The movie studio’s claim that they are not responsible for mistakes made by a computer, but this is not a valid defense according to the group.



In September last year the Florida-based file-hosting service Hotfile sued Warner Bros. for fraud and abuse.

The file-hoster alleged that after giving Warner access to its systems, the studio wrongfully took down files including games demos and Open Source software without holding the copyrights to them. The false takedowns continued even after the movie studio was repeatedly notified about the false claims.

In a response, Warner Bros. admitted the accusations. However, the movie studio argued that they are not to blame because the mistakes were made by a computer, not a person. As a result, the false takedown request were not “deliberate lies.”

The pending case has major implications for the responsibilities of copyright holders when it comes to automated takedown requests. If the court decides that Warner Bros is not guilty of copyright abuse there’s a serious risk that DMCA notices will turn into a broad and uncontrollable censorship filter.

To prevent this from happening the Electronic Frontier Foundation (EFF) has filed an amicus curiae brief siding with Hotfile.

The EFF points out that because of the false takedown requests many of Hotfile’s users were denied access to legitimate content, effectively hurting speech on the Internet. Blaming the computer for these mistakes is not a valid defense according to the group.

“Hotfile’s customers unfairly lost access to content because of Warner’s bogus takedowns. But under Warner’s theory, any company could sidestep accountability for abusing the DMCA by simply outsourcing the process to a computer,” said EFF Intellectual Property Director Corynne McSherry.

“In fact, the companies would have a perverse incentive to dumb down the process, removing human review. What Warner is doing here is a ploy to undermine the DMCA provisions that protect Internet users from overbroad and indiscriminate takedowns like the ones it issued,” she adds.

As an example of how these automated processes hurt free speech the EFF names a recent case where articles from TorrentFreak and Techdirt were censored by mistake.

The brief further argues that if copyright holders aren’t responsible for computerized takedowns, they might be inclined to abuse the system for competitive purposes.

“Imagine the potential for mischief: Let’s say that Warner does not like competition from Universal. It could set a computer to search through Universal’s online presence, with the loosest possible settings, and issue takedown after takedown to Universal’s ISP for spurious claims,” EFF writes.

The competitive angle raised by the EFF is not just hypothetical, as Google previously noted that 57% of all the DMCA notices they receive come from companies targeting competitors.

As we pointed out two days ago, Warner Bros. is not the only company to make massive mistakes through their automated takedown systems. Microsoft, for example, asked Google to take down a link to the open source operating system Kubuntu, and NBC Universal censored a free-to-share movie.

It will be interesting to see what the judge decides in this landmark case.

EFF BRIEF

Clik here to view the court docs;

Eff Hotfile2">Eff Hotfile2
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Old 10-03-12, 00:56   #2
 
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Default Re: Hotfile v Warner Bros Court Case-DOCs & Update

Related;

Hotfile As Bad As Megaupload, MPAA Tells Court

* Ernesto
* March 7, 2012


The MPAA is moving full steam ahead in their ongoing battle with file-hosting service Hotfile. Pointing to the criminal investigation against Megaupload, the movie studios are asking for a summary judgement against Hotfile, a development which would effectively shut down the site. The MPAA argues that Hotfile is a piracy haven where more than 90% of all downloads are copyright infringing.

As one of the ten largest file-sharing sites on the Internet, Hotfile has become a prime target for Hollywood.

February last year the inevitable happened when the MPAA filed a lawsuit against the file-hosting service. Since then there have been dozens of court filings and Hotfile even sued MPAA member Warner Bros. right back for allegedly abusing its copyright takedown tools.

This week the MPAA took an important step by filing a motion for summary judgment at a US District Court in Florida. With this move the movie studios hope to avoid a lengthy trial and have Hotfile shut down as quickly as possible.

In court papers Hotfile is described as a service built around copyright infringement. The movie studios use the recent indictment against Megaupload as leverage and argue that both services are identical.

“Hotfile’s business model is indistinguishable from that of the website Megaupload, which recently was indicted criminally for engaging in the very same conduct as Hotfile. Defendants even admit that they formed Hotfile ‘to compete with’ Megaupload.”

The MPAA further highlights similarities with other file-sharing services that have lost legal battles in US courts.

“Hotfile is responsible for billions of infringing downloads of copyrighted works, including plaintiffs’ valuable motion picture and television properties. As with other adjudicated pirate services that came before it, from Napster and Grokster to Isohunt and Limewire, Hotfile exists to profit from copyright infringement,” they write.

“More than 90% of the files downloaded from Hotfile are copyright infringing, and nearly every Hotfile user is engaged in copyright infringement.”

The latter statistic comes from research conducted by University of Pennsylvania professor Richard Waterman on behalf of the movie studios. Waterman concluded that 90.2% of all daily downloads on Hotfile are infringing, opposed to 5.3% that are clearly non-infringing.

Aside from pointing out the massive infringement on Hotfile, the crux of the case is whether the file-hoster is protected under the DMCA’s safe-harbor provision. According to the MPAA this is not the case.

Among other things, the studios point out that Hotfile previously failed to disconnect repeat infringers and that Hotfile employees actively induced copyright infringement. Not meeting these requirements means they have no right to safe-harbor protection.

The MPAA’s motion is supported by a slew of exhibits ranging from internal emails where Hotfile staff assist users with downloading infringing files, to forum discussions about the affiliate program, and testimonies from anti-piracy chiefs at the movie studios.

When combined, all evidence leads the MPAA to conclude that Hotfile should be shut down and the studios awarded damages.

Whatever the outcome, the case is expected to set an important precedent for the future of similar cloud hosting services that operate in the United States.
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