I generally despise hosting services, with their pages crammed full of ads, obnoxious waiting times, and constant attempts to get you to pay them that all just scream "we hate every last damn one of you so much that we're going to make it as annoying as possible for you to get this file".
Despite all that it's nice to see someone stand up to the content czars.
They make it that annoying so you'll pay for a premium account that removes all the annoying crap (and improves speed, removes download caps).
And anyway, they provide a valuable service: illegal file sharing using only Google and HTTP. I've long since abandoned networks like gnutella, edonkey, bittorrent, etc in favor of a good blog search engine and file-downloading sites. Similarly there's hundreds of streaming video sites to watch TV series on without the need to download. I can ignore an ad here or there for the convenience of pirating media from any web browser in the world.
Bandwidth costs money. Hosting costs money. They can't just let hundreds of thousands of people download gigabytes at a time at >5Mbps for free. Peer to peer networks don't have huge resource drains on anything but the bandwidth of ISPs.
"Warner proposed to Hotfile an affiliate deal where content that was taken down would be replaced with links to movie stores where users could buy Warner movies."
wow... I thought they were focused on removing the 1-click-hosting-sites, but no, those sites are actually means of driving revenues.
Pirates are destroying the movie industry. They are also our best customers. We are suing file-sharing sites out of existence. Also, we'd like to be business partners with them.
For 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," by Ty M. Bollinger. Another title deleted by Warner was "The Box that Saved Britain," a production of the BBC, not Warner.
This is really bizarre. Hotfile might technically be right in suing Warner Bros. for pulling content they don't own the rights to, but it's not as if Hotfile had a legitimate claim to having those files on its servers. Those files are copyrighted by someone, and surely the real rights holders would want their intellectual property removed from Hotfile if they knew about it. And now that Hotfile admits knowledge of these files, aren't they compelled to remove them anyway?
[edit]
Perhaps I should have said ironic instead of bizarre. I don't disagree that there's a legal case here.
The suit alleges fraud and abuse, not copyright infringement. I.e., Hotfile bemoans WB filed fraudlent takedown notices on content it did not own, harming the company and their users. If you asked me, this is theft of the copyright itself, as opposed to `plain' copyright infringement.
(...) and surely the real rights holders would want their intellectual property removed from Hotfile if they knew about it.
You don't know if the uploader of the books has license to publish them, and you cannot act under assumption they lack one.
Fair enough, the real rights owner may have uploaded the books and videos themselves. I just think there's some irony here that Hotfile suddenly cares about copyright.
They care about protecting their own content and using the law to do so where possible - you can not logically infer from that fact that they care about copyright or the law more generally.
I was questioning the assumption that because they use the law this way they are necessarily bothered one way or the other about the laws and regulations as they apply in contexts other than this one.
This is half of the harm WB did: people like me and you started believing Hotfile is somehow evil, disregarding the law and whatnot. We don't know that, we just subscribe to the black propaganda.
Behind WB's ham-fisted tactics may well be conflict of interests: if WB are to distribute multimedia themselves, they sure would consider Hotfile competitors and want to slow them down.
There's no suddenly about it. Did you read the article? Hotfile created the tool WB is using to remove content. Hotfile is not responsible for their users. They are a hoster and under relevant law, DMCA, have specific responsibilities, which they seemed to have complied with.
Some of the files that WB removed were uploaded to Hotfile by the copyright owners:
"The software publisher that uploaded the file used Hotfile.com as a means for distribution of its open source software. Warner was not authorized by the software publisher to delete the file"
1. It was an automated script from Warner Bros responsible for the abuse of the taketown tool and filing requests for content they don't hold the copyright to.
2. The taketown tool built by Hotfile doesn't require any sort of manual review from any human before the file is taken down.
IANAL, but (2) seems pretty standard in terms of DMCA compliance. As a service provider hoping to remain in the "safe harbor", you generally fulfill all takedown requests and you leave contesting the takedowns on the grounds of error or fair use or whatever to the guy whose video got taken down. Applying editorial discretion or undue delay to takedown requests involves taking on some level of legal risk. So the smart thing to do is automate them. It screws over your legit uploaders if they get DMCA'd, but most companies find that better than picking expensive legal fights.
I'd say you are correct. The problem I see in this situation is that Hotfile alleges WB has an incentive to remove content: the removed content seems to get replaced with a link of WB's choosing in an effort to sell media.
Keep the automatic "take down" (which should be flipping a bit in your database that hides the content) and flag the replacement content for human review. Without a thumbs up from the human, WB gets no referral link.
P.S. The human reviewer really can't put things back up even if they notice it's Linux kernel source code. That puts Hotfile back in the legal hot seat.
I can understand why hotfile wouldn't be able to double-check. But you'd think they could at least put a CAPTCHA on the takedown request, so that an RIAA bot can't rip off a million complaints.
Nope, any request that fulfills DMCA requirements has to be obeyed. Any exceptions risks losing safe harbor, and that means you're responsible for all content on your servers.
You're responsible for all content, if you blink at one DMCA takedown? I dunno, that seems a bit extreme.
Is this for real, or is this just a lawyerly, overly cautious opinion? Are there cases where this has happened? Does the DMCA itself have wording to this effect?
Normally, you would have to take responsibility for the data on your servers. Legally, there is an exception if you disclaim responsibility for all user-generated content, then you just take the content down and whoever has a problem has to work it out with the user directly. This exception is known as "safe harbor", and there are very specific rules about who gets to claim it. https://secure.wikimedia.org/wikipedia/en/wiki/Online_Copyri...
Basically, as soon as you take responsibility for any of the user-generated content, you can be held liable for all of it. Either you're responsible for the content on your servers or you're not, you can't really pick and choose.
(1) seems nearly universal, either via full automation or automation plus a cursory manual check that amounts to a rubber stamp. Either way, it seems contrary to the "on penalty of perjury" language in the DMCA and the notices, and I'd love to see someone enforce that.
This case seems very simple: whoever at the media companies set up these automated tools without adequate checks on the validity of the claims is guilty of perjury and should be punished accordingly.
Likewise, anyone who instructed that this be done or was otherwise responsible for the conduct of those people should be treated the same as someone who had told an employee to lie under oath in court.
Perhaps I'm missing something, but there doesn't seem to be any scope for interpretation here at all. I think that was rather the point of requiring that declaration as part of the DMCA.
If I remember correctly a DMCA requires you say you are the legal entity or represent the legal entity that is holding the copyright. So a lawsuit would have to be placed against Warner, unless Warner can prove that they did not authorize the person writing the script to act on their behalf. If Warner wants to make the person who wrote the script liable or not would be up to Warner, not this lawsuit.
You're missing something very important: these laws were tailor-made for the companies currently using them to send these notices, and any issue like this may simply be interpreted as a bug. Courts also frequently suffer from ad-hominem problems, and may choose to ignore the claims of a site they think exists only to infringe copyright, whether it does or not.
They probably built the tool specifically so that they could pin the manual review on Warner. Many copyright holders have a reputation for spamming takedown notices without reviewing even the filenames they want taken down, because the initial burden of proof lies on the hosting service.
Except that DMCA notices include language like this:
"I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is(are) allegedly infringed by the aforementioned content."
That doesn't include any exceptions for "my automated script screwed up" or "we didn't check carefully enough", nor should it.
Uh... those are for the party making the infringement claim. Point #2 was about Hotfile, the party receiving the claim. I was saying that it doesn't seem surprising that they didn't bother to check the incoming claims very carefully before pulling the content down.
Despite all that it's nice to see someone stand up to the content czars.