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Default Google Defends Hotfile (and Megaupload) in Court

Google Defends Hotfile (and Megaupload) in Court

Posted: 19 Mar 2012 Tech Week

In February 2011, the MPAA announced a lawsuit against Hotfile, one of the Internet’s most popular cyberlocker services.

The site’s popularity is “a direct result of the massive digital theft that Hotfile promotes,” the movie industry group said.

Two weeks ago the movie studios asked the court to issue a summary judgment against Hotfile and shut the site down. The MPAA argues that Hotfile is a piracy haven that should not be eligible for DMCA safe harbor protection.

This request didn’t go unnoticed by Google, who have now filed an amicus brief in support of the file-hosting site. According to Google, the movie studios are misleading the court by wrongfully suggesting that Hotfile is not protected by the DMCA.

What makes this even more interesting is that many of the arguments made by Google are also relevant to the criminal indictment against Megaupload.

In their brief, Google points out that YouTube, Facebook, Twitter, and Wikipedia are able to thrive because they are protected by the DMCA. But, if the MPAA has its way, these and other services will be in serious trouble.

“Without the protections afforded by the safe harbors, those services might have been forced to fundamentally alter their operations or might never have launched in the first place,” Google writes in the brief.

The MPAA has argued that Hotfile has no right to exist because it’s used predominantly for copyright-infringing purposes. Google replies to this by arguing that it’s irrelevant how many infringements there are. Under the DMCA it would only be problematic if Hotfile is aware of each and every individual pirated file on its systems.

“The case-law uniformly rejects efforts to deprive service providers of the safe harbor based on generalized awareness that unspecified (or even ‘rampant’) infringement is occurring on their services,” Google writes.

Google continues to say that the DMCA specifically states that service providers such as Hotfile can’t lose their safe harbor protection because they refuse to filter content upon request from the movie companies.

“It guards against any claim that a service provider loses the safe harbor by failing to ‘adopt specific filtering technology’ or any other technique suggested by copyright owners for affirmatively seeking out possible infringement occurring on its service.”

Google stresses that the burden to report and identify pirated material lies with the copyright holder, not Hotfile, and suggests that the MPAA tried to mislead the court to believe otherwise.

“The Court should not be misled. It should resist any effort to shift the investigatory burden that Congress deliberately allocated to copyright owners or to impose on Hotfile policing obligations of which it is specifically relieved by the DMCA,” Google writes.

megaupload logoMoving on to another issue, one that’s also key in the criminal case against Megaupload, Google says that there’s nothing wrong with only removing links to files.

Both the MPAA and the US Government claim that it’s wrong for Hotfile to delete links but keep the actual files on their servers, but Google disagrees.

“Plaintiffs make much of the fact that Hotfile, at least for a time, apparently removed only the specific download link identified as infringing in a given DMCA takedown notice, and did not take the additional step of blocking other files on its system (not called out in the notice) that might have also have contained the copyrighted work at issue,” they write.

“But, in this respect, Hotfile did exactly what the DMCA demands, and plaintiffs’ takedown notices cannot be used to charge the service with knowledge of allegedly infringing material that those notices did not specifically identify.”

This is an interesting observation that does indeed make sense. While Google doesn’t mention it, removing the actual files would indeed be overbroad and wrong. For example, if an artist stores his files on Hotfile but wants to take unauthorized copies offline, he or she would not want Hotfile to delete the original as well. The same is true for YouTube videos and a variety of other content.

At the end of the brief Google asks the court to “reject plaintiffs’ efforts to undermine the protections provided by the statute’s safe harbors” and dismiss the motion for default judgment against Hotfile.

While Google’s interest in the Hotfile case is no surprise (they rely heavily on the DMCA themselves), it is intriguing to see that Google is fiercely defending Hotfile and in part Megaupload.

After all the attacks on cyberlocker sites in recent months Google’s support will be welcomed with open arms by the file-hosting industry. Whether the MPAA will be very happy is a different story.

Update: MPAA just asked the court to deny Google’s amicus brief. They argue that Google’s perspective is one-sided and that the company acts as a partisan advocate for Hotfile.
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