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MPAA Sues Hotfile for 'Staggering' Copyright Infringement
The lawsuit, filed by the MPAA against Hotfile, is on behalf of 20th Century Fox, Universal Studios, Columbia Pictures, and Warner Brothers. "The MPAA argues that Hotfile not only encourages its users to upload illegal content, but actively discourages them from uploading files for personal use, because the site offers incentives for users to upload the most popular files (which invariably end up being copyrighted movies). And because the site charges membership fees before people can download the content uploaded by others, the MPAA says Hotfile 'profits richly while paying nothing to the studios' for the bootleg files."
I don't want to support what you're doing but, charging to download other people's IP that you have no rights to is so horribly stupid.
What the hell was HotFile thinking? At least no one's profiting off of P2P(well, as far as I know, the developers behind Bittorrent and clients aren't) of IP.
Non impediti ratione cogitationus.
Then I guess they need to go after the users sharing the copyrighted materials not everyone who is using the service. When a bank robber drives to the bank he is going to stick up no one suggests banning driving or suing the road designer; how is this any different?
"Maybe this world is another planet's hell"
Aldous Huxley
the site offers incentives for users to upload the most popular files (which invariably end up being copyrighted movies).
I don't think Hotfile should be held liable for its users' poor taste.
It's one of the few, perhaps the first plausible claim I've heard from the MAFIAA. They've still got a lot of work to do to prove it, but it's at least a plausible claim.
make imaginary.friends COUNT=100 VISIBLE=false
/etc/cron.weekly: ;
y=`tail -1 file_containing_every_existing_company_or_service_or_individual`
for x in RI MP; do
echo "${x}AA sues ${y} for `/dev/random` stupid reason.";
done;
i dont know these people who use words like 'staggering', 'shocking', 'outrageous' etc while describing things like these think that they can fool the public into buying their word through that wordage still.
its 21st century. not 19th. pretty much everyone knows that the only one 'staggered' with situations like these, are private interests or governments catering to them.
so its pointless to attempt portraying a self-interest, public-enemy move as something positive and socially acceptable. they should just cut to the chase.
Read radical news here
"actively discourages them from uploading files for personal use, because the site offers incentives for users to upload the most popular files (which invariably end up being copyrighted movies)" Seems like just a little bit of a stretch!
When a bank robber drives to the bank he is going to stick up no one suggests banning driving or suing the road designer; how is this any different?
The difference is that the site's incentive structure actively discourages noninfringing use, unlike roads and automobiles whose design generally does not discourage noncriminal use. Copyright has a long-established doctrine of secondary liability. If the maker of a product or service knows that infringement is occurring using the product or service, and the product or service has no substantial noninfringing use, the maker of the product or service is a contributory infringer. If the maker of a product or service profits from infringing use that it has power to prevent, the maker of the product or service is a vicarious infringer.
private interests or governments catering to them
Of course governments cater to the private interests that control the means by which legislators are elected. MPAA studios' parent companies own the major TV news outlets.
Well, this is more like the government filing charges against the owner of the bank for allowing the crime to occur on their premises, simply by not actively preventing the robber from entering the bank and taking the currency, which is the "property" of the government, in a legal tender kind of sense. The government in this analogy, much like the MPAA, didn't directly lose anything, but something happened to something they have copyright over. It's clearly the banks fault...
I am government man, come from the government. The government has sent me. -- G.I.R.
I thought they meant that Hotfile infringed on copyright in stages or something. The hyperbolic meaning didn't even occur to me; and now that it has, I really wish all those MBA marketing types would go fall down a well somewhere.
Meh.
"What in the name of Fats Waller is that?"
"A four-foot prune."
Title says it all.
Bittorrent sites do generate profit. The Pirate Bay has made a fantastical amount of money over the years from advertising, while Demonoid takes donations. I don't mind that, as these Bittorrent community has tried to get the public to requestion copyright law. It's rather unsavory when a faceless corporation who doesn't have that social mission makes loads of money off of our P2P activities, though.
They have a DMCA form for copyright holders to use. If the MPAA doesn't wanna use it, tough shit. It's why the safe harbor clause exists. They have a way to get the files taken down, and are choosing not use it and instead are doing an end run around the law plain and simple.
I think because their business model does not get them enough recurring revenue they are jealous? Why not use Hotfile business model?
#MPAA fails! As usual...
Did they somehow miss what has happened to every other site that has attempted to use that same business model over the the past several years? Am I missing something or is this kind of like jumping off a boat to go for a swim after a shark has just devoured every other member of your party that got in before you?
Road builders rarely build roads that lead right into Bank Vaults.
Just saying.
Eh, isn't your ISP profiting off P2P, especially if you have some form of usage-based billing, or are paying extra for higher speed and/or transfer cap?
As for the "must pay to download", it's blatant bullshit -- all these sites (hotfile, rapidshare, megaupload, and a host of others) offer basic service for free and charge more for premium -- typically free users get something like 1 download at a time, 30-60 seconds staring at ads before you can start a download, and maybe a 1GB/hour download limit. If you pay for a membership, you get fewer or no ads, no delays, and greatly relaxed limits on downloading.
Using bittorrent, where your download bandwidth is provided by some other bittorrent user's upload bandwidth, everyone only sees bandwidth on the order of one file. Here you're downloading from a server farm, which sees the aggregate load of all downloaders -- and that has to be paid for somehow. You're not paying for the content, you're paying for (or watching ads to pay for) transport -- all the "xxxx should be treated like a common carrier" arguments apply here.
And, like bittorrent, there are legitimate uses -- I've seen some open-source software distributed this way (little scripts where the author didn't have a web server), and one Android tablet has even got official firmware updates from the manufacturer via rapidshare.
This is the first case like this where I can honestly say I'm on the MPAA's side. Though I have seen some like rapidshare that get used for legitimate purposes, the vast majority exist simply to shuffle around pirated crap. When its a pay for use scheme like this it cant be more blatant, in fact i'd put it on the same level of piracy as running a disk duplication shop. I dont really care what people do on their own time and can even deal with the "information wants to be free" crowd, but it takes alot of nerve to basically put up a warez site and then have a toll gate leading to it.
I think you'll find the incentive structure encourages popular files.
There is no law of the universe dictating that the most popular files will be ones infringing MPAA copyrights.
By that logic, the **AA should sue Google for secondary liability as well. The service (Google search) has no substantial noninfringing use yet the maker knows that infringement is occurring using the product or service (their recent attempts to take The Pirate Bay out of auto-complete). Therefore the maker (Google) is a contributory infringer. Heck you can go even further and sue Google Videos for copyright infringing videos and Google Images for copyright infringing images.
You have to draw a line somewhere when it comes to charging/suing people for indirectly contributing to crimes.
"the site charges membership fees before people can download the content uploaded by others" I got to call bullsh*t on that... Without registering, I could download Ubuntu Maverick Meerkat from hotfile.com: http://www.google.com/search?q=http://hotfile.com/dl/65769082/cd84b25/Ubuntu.10.10.i386.part1.rar.html
The MPAA has found the solution to all kinds of crime!
Instead of going after individual perpetrators we should instead go after the post office because the post office allows people to exchange everything from child porn to music discs and does nothing to discourage it!
The incentive structure does not discourage noninfringing use, it encourages infringing use. I am not saying that's much better, but it's different. I mean, if I want to use the service to upload my own stuff, I don't see what would discourage me.
MPAA tried this on Rapdishare a few years ago. As a result, Rapidshare simply dropped its "Rapidpoints" incentive system. Looks like MPAA is going after fresh meat; Rapidshare already has a crapton of experienced lawyers and has largely pre-emptively guarded itself against convoluted "they're trying to help people infringe" arguments.
I think you're confusing profit with income. Dealing with the volume of traffic they get is very expensive, and while the website has ads, the tracker doesn't, so I doubt they see much profit, if any.
Dilbert RSS feed
A lot of times you can type in the name of a game and instead of getting the game company's website, amazon, or gamestop, you'll get something like "starcraft 2 crack" "starcraft 2 mods" "starcraft 2 torrent" etc etc... All you want to do is find it legitimately (especially since you want to play on battlenet) but google keeps suggesting that you pirate it instead so I can see how the temptation is hard to resist by some xD
As far as I can tell, the DMCA does not protect Hotfile with the safe harbor clause. The safe harbor clause gets voided when you directly profit off of the infringement.
http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act#Direct_Financial_Benefit
Clearly they were hoping that reverse psychology would work.
Well, this is a little more like suing a limo company that specialises in clients who walk out of banks with bags of money, wearing masks and waving guns around...
If you're going to throw about the word clearly, then clearly this is like a landlord being held liable for criminal activities committed by tenants. A landlord who gives incentive to said criminal activities.
your argument is not even remotely on center. Hotfile is a storage locker. They are paying for the bandwidth in advance and just charging users to use it.
This has nothing to do with IP or even copyright infringement for that matter. Additionally, the lawsuit here is another of MPAA's "we hope the judge is a technology moron" lawsuit.
It's not Hotfile's job to give two shits what is on their website, and it's also not their job to watch or monitor it for illegal or other activities. Section 230 among others covers them from that in it's entirety.
So Pirate Bay is registered as a non-profit and has open books that are freely auditable?
Back when they were on trial, there were plenty of reports that the founders of TPB had become rather wealthy from the site. Certainly they could pay the immense costs of their legal defence.
... except when they do go after the users, everyone screams foul on that too.
No matter what they do to protect their content, whether it be technical means (DRM), going after the people breaking the law (users), or going after the companies facilitating the breaking of the law (services), everyone screams that they're evil. It's a really shitty situation to be in - people are constantly stealing their content and then slamming them for protecting it.
To say that: ... they are not responsible for what people upload to their service.
"the site charges membership fees before people can download the content uploaded by others"
is completely inaccurate as you can download links as a free user just as on other filehosting sites such as Rapidshare, Fileserve, Megaupload etc. Hotfile is not a unique service to encourage uploaders by giving rewards for the the number of times a file is downloaded.
In fact their rewards system is not as highly paying as some other sites.
The result of the lawsuit should be the same as when Rapidshare got sued
There is no law of the universe dictating that the most popular files will be ones infringing MPAA copyrights.
Can you name any files that might be more popular than those infringing the copyrights of the MPAA studios, the major porn studios, the big four record labels, or the major video game publishers?
"The Pirate Bay has made a fantastical amount of money over the years from advertising..."
While this may be true (I don't know), the difference is that Hotfile charges the USERS for access, users that receive files in exchange for money. The Pirate pay makes no money as result of the files being shared--from neither uploader or downloader, but rather from advertisers who themselves have nothing to do with the files.
You're making a connection between money and goods, as well as between provider and receiver, that simply doesn't exist on The Pirate Bay, but does exist on Hotfile.
I've also seen more than one open source software distributed this way, but it's not really relevant, unless they only make a profit on open-source software.
My ISP isn't directly profiting by this, any more than AT&T, my telephone provider (protected monopolist) is. Any use that I might have for Hotfile is indirect, in respect to my ISP, or AT&T. If I download a movie (I won't and wouldn't) any profits or the phone company or my ISP are distinctly indirect. Hotfile, however, is making a direct profit, assuming that they're profitable.
When a bank robber drives to the bank he is going to stick up no one suggests banning driving or suing the road designer; how is this any different?
The difference is that the site's incentive structure actively discourages noninfringing use, unlike roads and automobiles whose design generally does not discourage noncriminal use. Copyright has a long-established doctrine of secondary liability. If the maker of a product or service knows that infringement is occurring using the product or service, and the product or service has no substantial noninfringing use, the maker of the product or service is a contributory infringer. If the maker of a product or service profits from infringing use that it has power to prevent, the maker of the product or service is a vicarious infringer.
Remember when Sony was sued for helping people infringe copyright by selling Betamax VCRs?
The "Beta can be used to make illegal copies" lawsuit alerted more people that such could be done and Sony sold a bit more units because of this newly publicised use-case.
Lets not kid ourselves, Betamax cassettes were primarily used to "pirate" TV or other cassettes; Sony knew this hence: double cassette "duplication" models, models with timed recording settings, etc.
So, Universal sues Sony -- Sony Inc. v Universal Studios:
The Court's 5-4 ruling to reverse the Ninth Circuit in favor of Sony hinged on the possibility that the technology in question had significant non-infringing uses, and that the plaintiffs were unable to prove otherwise.
On the question of whether Sony could be described as "contributing" to copyright infringement, the Court stated:
[There must be] a balance between a copyright holder's legitimate demand for effective - not merely symbolic - protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses....
(emphasis mine)
So, WTF, file sharing services meet the qualification of merely being capable of substantial noninfringing uses.
It's amazing how X on a Computer or X on the Internet somehow requires a whole new legal precedent rather than just X on a cassette or CD.
Ignorant judges and jurors are the main cause of my copyright rage today... It's quite simple to understand, yet blows my mind on a regular basis just how ignorant the general public (including courts) are about such things.
File sharing technology much like Sony, has made available something that could help people infringe copyright; In neither case does the file sharing site or Sony's Betamax cassettes require that the users infringe copyright. If someone does infringe copyright using a file sharing service, Bittorrent search site, or a Betamax cassette then you don't hold the creator of the tools in use responsible.
Hint: Betamax cassettes, blank CDs, blank DVDs, Flash USB drives, magnetic hard drives, the Internet, file sharing protocols & websites -- All these things havesubstantial noninfringing uses. The DMCA exists, if the MPAA issuing take-down notices and the hosts are not removing the content, they lose safe harbor and may be culpable. Simply charging for a service (or for Betamax cassettes) which can be used to commit copyright infringement, does not imply contributory infringement.
As far as I can tell, the DMCA does not protect Hotfile with the safe harbor clause. The safe harbor clause gets voided when you directly profit off of the infringement.
Hotfile doesn't directly profit from the infringement -- i.e., they aren't selling you copies of movies. They charge you for access to their system. What you do with that access is none of their concern. If people are uploading improper content then send Hotfile a DMCA takedown notice.
Hotfile is no more "directly profiting" than Youtube, which makes many millions of dollars every year. When Viacom tried to sue Youtube they lost because Youtube demonstrated that they have a policy in place to properly deal with DMCA takedown notices. As long as Hotfile takes stuff down when notified of infringement then I see no difference between them and Youtube.
So Pirate Bay is registered as a non-profit and has open books that are freely auditable?
What difference does that make? I don't have to register as a non-profit to not make money.
Sure, it's all speculation, but I agree with the GP that between operating the site and paying lawyers and other professionals, there's probably not a lot of profit in running the Pirate Bay.
Breakfast served all day!
The service (Google search) has no substantial noninfringing use
For one thing, Google Search and Google Image Search don't have an incentive structure with the effect of deterring noninfringing use. I use Google every day to search for documents on the web that aren't obvious infringements, as do millions of other U.S. residents. For another, Google can claim safe harbor because it responds swiftly to OCILLA notices from copyright owners.
Heck you can go even further and sue Google Videos for copyright infringing video
MPAA member Viacom tried that and lost due to Google's OCILLA safe harbor.
Hi MR AC! While I agree with most of what you are saying, the big "uh oh" that Hotfile did was this: they reward popular uploaders which kinda blows all your other arguments out of the water. Because by doing that they aren't just "charging for the bandwidth" they are actively encouraging people to upload...well...hot files.
Because doing so gets them bonuses they otherwise wouldn't get if they uploaded legal files because those Linux ISO or tunes of your band will NEVER get even a fiftieth of the hits say the latest HD Rip will get. It's just common sense.
So I'd say THAT is the line where they screwed up and will probably get bit in the ass. With the others IIRC the only "rewards" are for buying a membership which just as you say pays for more bandwidth and can be easily explained as such. But by rewarding those that upload popular files simply for that reason? Well THAT was some kind of stupid.
ACs don't waste your time replying, your posts are never seen by me.
hotfile isn't any different from any other file site out there. and no you do not need to even subcribe to the site to get the files people uploaded. they also actively delete copyrighted works. in fact most groups have aruldy moved away from hotfile to a faster site ill leave unnamed. but i guess they got sick of trying to take down pirate bay and decided they had smaller fish to fry lol. if they where to win a suit agenst any of these sites say goodby to any sort of http hosting of anything. being any hosting site you make its bound to have users upload copyrighted works on it.
ISPs make money selling bandwidth, file hosts make money from advertising, most usenet servers charge a subscription fee. There's nothing inherently wrong about offering a commercial service, even if you know a significant portion of your users will pirate.
What you don't get to do is cater specifically to that use or encourage piracy, which is what they may run afoul of here. That said the arguments aren't exactly watertight. For example imagine if YouTube had a profit split model where the uploaders got part of the ad revenue. You might say that'd encourage piracy, but you might also argue it's an incentive to create popular content. That people upload pirated material is not as such a fault of the model.
No doubt they're in the gray area of the law, but as long as there's money in it companies will test those limits. What we do know is that RapidShare is legal and Grokster was illegal. Hotfile is floating somewhere in between, either way we're likely to see another precision of what you can do and not.
Live today, because you never know what tomorrow brings
Clearly a MPAA operative started Hotfile -- designed it to fail spectacularly and prove who the good guys are.
"Eh, isn't your ISP profiting off P2P, especially if you have some form of usage-based billing, or are paying extra for higher speed and/or transfer cap?"
This also occurred to me. I discount this theory for one reason--my own P2P tracking.
While I am sure there is some bias as a result of language, the vast majority of torrents I download have a high quantity of peers from Comcast, my own ISP. It is not unusual to see as much as 40%-50% of my peers resolve to Comcast. And, very surprisingly, they also seem to be the peers that are uploading to me at high rates, often accounting for 80%-90% of the total data per torrent.
How the hell does Comcast make money from this? I have never reached my 250GB cap on Comcast and I consider myself a "frequent" torrent client. While they did, not so long ago, throttle P2P, I regularly get 1.5-2.0MB sustained download speeds these days (provided the seeds are up to it). If I remember correctly, the vast majority of Comcast customers are not "usage-based" but rather simply capped (reasonably so, IMHO).
Trust me, I am not a big fan of Comcast (their private data-sharing policies suck), but for the life of me I cannot see how they are making any money here except by having...well, satisfied customers.
I think it's more like renting out rooms to people for cash and then giving them a discount if you find human blood on the walls when they're done. You didn't actually tell them to break the law, but you encouraged it and profited by it.
Note I am not saying copyright infringement is the same as murder.
Sure, it's all speculation
That's entirely the point. The fact is they are getting revenue from ads. Bandwidth and servers have been cheap for a very long time, and many sites make money via advertising.
It's rather naive to assume they aren't making a decent amount of profit out of it, or even if they aren't, that they aren't trying. Do you think if they were making a lot of money they would just give it all back? It's the whole reason why non-profits and open books are put in place.
MPAA has a problem that people are PAYING (membership fees) to download movies.
Seriously, if pirates want to see videos online so badly that they're actually PAYING for them, isn't that a good thing? MPAA should look at starting their own online video service (something in the neighborhood of Netflix) and take advantage of this consumer demand. The war is over. Pirates are now itching to spend money for products as long as they're delivered in the correct fashion.
The reality however is that unless something's changed recently, there isn't a requirement to pay a membership fee to download. You just get more, simultaneous, faster downloads with the premium subscription, just like most of the other file sharing sites. There are plenty of legitimate uses - if you need to send a whole whack of home videos to your family somewhere else in the world, compress 'em, encrypt the archive, and you can use hotfile to send it rather than having to break it up into a million pieces through e-mail. If you do it periodically, the free service will work just fine. If you're sending your kitten videos on a daily basis, you might want to look into the paid service.
If they're going to base their claim on hotfile being used primarily for pirated stuff, then fine. I don't agree with it (why do we have to put up with the DMCA if it doesn't apply to both sides), and I hope they lose because of the DMCA, but fine.
Talking about the profits from a paid membership just makes it look like the MPAA is inept when it comes to monetizing video products.
Didn't anybody else read the title and figure the site was forcing a delay in the copyright infringements, so they didn't all occur at once?
I'm obviously going against the mob here, but i think Hotfile.com is just a GENERAL service provider... No more responsible for "copyright infringement" than your ISP.
I personally don't think they deliberately set out to achieve "staggering copyright infringement", just like I don't think the guys who hacked together the first BitTorrent client and tracker, the first Gnutella servent, and the first 'Internet' were "out-and-out" encouraging copyright infringement (well, at least publicly... I certainly can't speak for their personal views.) I think the coolness of these technologies speaks for itself, and I for one have used ALL of them for copyright-irrelevant tasks, Hotfile included, and was glad to have them. I don't think anyone would sue the inventors of the Internet for "staggering copyright infringement" because of the irrefutable FACT that a LARGE portion of the content available on it infringes someones's copyright. But maybe I'm wrong... Maybe that's the next step. (Heads up guys...)
FWIW, Hotfile.com has a usage policy forbidding illegal uses (of course), INCLUDING copyright infringement (of course), and an easy-to-find DMCA-takedown page (of course; 2 clicks in, at http://hotfile.com/reportabuse.html). How else is the Internet supposed to work?
The truth of the matter is that the people USING Hotfile.com are uploading copy-written content, not (to my knowledge) the operators. This fact stands in stark contrast to the general consensus here, and the obvious paradox leads (me at least) to some interesting conclusions. One is that people (here, there, and everywhere) are incredibly two-faced about the whole situation, and another is that people are glad to have a commercial scapegoat to take the heat.
Looked in a mirror lately?
people are constantly stealing their content and then slamming them for protecting it.
The movie studios are notorious for taking from the commons without giving back. Walt Disney Pictures especially is known for adapting films, often right after they go out of copyright (such as Pinocchio and The Jungle Book), and then closing the barn door behind it by not only successfully lobbying for successive legislative extensions of the term of copyright in all works published during the existence of the company but also acting like it owns the original work and harassing smaller studios that make their own adaptations. Case in point: Disney owns a trademark on "Pinocchio" for dolls, so good luck selling toys based on your own film adaptation of Collodi's novel. Disney has also sued GoodTimes Entertainment over "trade dress" rights in the packaging of its direct-to-video adaptations of the same stories that Disney had adapted.
Publishers of proprietary computer programs such as Apple also own copyrights. But some Slashdot users have a better view of Apple and tolerate its action to defend its copyright in Mac OS X (Apple v. Psystar) in part because Apple does charitable work by contributing to Darwin, WebKit, and select other free software projects. If the major record labels and major motion picture studios were to do some analogous pro bono work* by releasing some of their back catalog under a license for free cultural works, Slashdot users might have a better opinion of them.
* That's pro bono, not pro-Bono.
You can in fact download without paying, just like the other eight thousand sites like this (rapidshare, megashare, megaupload, duckload, etc etc etc)
And just like all those other sites, hotfile removes offending files as soon as they get reported (often within minutes of the files being posted!)
So really this site (and the others like it) are just like youtube or any other place you can post things - as long as they remove offending files can they be considered guilty of infringement? Granted these kinds of sites are huge piracy magnets - its how things spread before torrents even - but does that alone make them different?
It may seem different but if hotfile can be sued, there are staggering(!) implications for the rest of the internet.
Well, this is a little more like suing a limo company that specialises in clients who walk out of banks with bags of money, wearing masks and waving guns around...
Why not go for a more realistic example. Most car manufacturers sell vehicles capable of travelling well over the maximum speed limit on public roads and yet I have yet to see one of them being successfully sued for encouraging drivers to speed. Of course technically you could use them to drive at high speeds on private roads but the overwhelming use of the vehicles is on public roads where they cannot exceed $LEGAL_MAX m/s.
It seems that this is exactly like Hotfile: you can use the service to share legal files but the overwhelming use is to share illegal files. The only difference is that big corporations gain from selling fast cars but lose when people share files.
Question: What does a service provider have to do in order to qualify for safe harbor protection?
Answer: In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures (discussed above) and also meet several other requirements in order to qualify for exemption under the safe harbor provisions. ...
Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)].
If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)].
The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)].
Question: What is third-party liability, also known as "secondary liability"?
Answer: The concept of third party liability refers, as the name implies, to situations in which responsibility for harm can be placed on a party in addition to the one that actually caused the injury. The most common example comes from tort law: a customer in a grocery store drops a bottle of wine and another customer slips on the puddle and injures himself; he may bring an action for negligence against the customer who dropped the bottle and against the owner of the grocery store. Under the common law doctrine of third-party liability, a plaintiff must show not only that an injury actually occurred, but also (in most cases) that some sort of connection existed between the third party and the person who actually caused the injury.
As such the concept of third-party liability is often divided into two different types: contributory infringement and vicarious liability.
Typically, contributory infringement exists when the third party either assists in the commission of the act which causes the injury, or simply induces the primary party to do so commit the act which caused the injury.
Vicarious liability often requires the third party to have exerted some form of control over the primary party's actions.
In copyright law, vicarious liability may be established if the third party had the "right and ability to control" the infringer's activities, and if the third party received some financial benefit from the acts of infringement.
Frequently Asked Questions (And Answers) about DMCA Safe Harbor
If you know you are hosting infringing content and do nothing about it you are dead.
You can't let things slide until someone rats you out.
If you are aiding the infringer in any way - or rewarding him for posting infringing content - you are dead. If you penalize the legitimate content provider you are dead.
If you are making money on the infringement you are dead.
What's your definition of "direct" and "indirect" profit, exactly? they certainly aren't selling you the files or access to them, so that definition goes right out the window.
No problem is insoluble in all conceivable circumstances.
the MPAA says Hotfile "profits richly while paying nothing to the studios"
Funny thing for the MPAA to say. How much money will the musicians, actors, composers, directors, etc. (you know, the people with talent) make if/when the MPAA wins this case?
As I've said numerous times before, if you don't like what the MPAA and RIAA do, buy nothing that has the slightest taint from them. Do not vote for politicians that support them.
I have not been to a MPAA associated movie in 16 years (even getting a rating from the MPAA is enough for me to boycott it). I do not buy RIAA artist's work. I write letters telling the producers and artists why I won't buy their works. I haven't bought any IP from Sony in more than twenty years for personal use. I try not to buy computers chips copyrighted by Sony at my work.
I stopped buying television in March 2009. If I can't get it for free over the air or on the Internet, I don't watch it. (I do not approve of IP Infringement and do not view things I know to be infringing.)
If you want to see someone doing IP right, go to www.baen.com/library and read Eric Flint's thoughts.
"There was a school of thought, which seemed to be picking up steam, that the way to handle the problem was with handcuffs and brass knucks. Enforcement! Regulation! New regulations! Tighter regulations! All out for the campaign against piracy! No quarter! Build more prisons! Harsher sentences!
Alles in ordnung!
I, ah, disagreed. Rather vociferously and belligerently, in fact."
Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.
No, they make money selling contracts. They make profit when people use a lot less bandwidth than they're paying for. ISP's don't make more money when their users use up more bandwidth, they make less.
They hope all their users pay the maximum and use the minimum. That's how all "free markets" work: by getting people to pay more than the product is worth.
(posting anon because I'm modding)
Is Hotfile complying with DMCA takedown requests?
No, but we have numbers from a police investigation (who I regard as less biased than anti-piracy orgs), which say their income is around $170,000/year. Considering it's on of the top-100 websites in terms of traffic, doesn't seem like profit to me.
Dilbert RSS feed
Without registering, I could download Ubuntu Maverick Meerkat from hotfile.com
Now tell me what files you can download after your "membership fee " clears through your bank card or PayPal.
huh? Direct access is certainly what Hotfile is selling. Neither my ISP, nor AT&T (my monopolist phone provider) are selling that (direct) access, so their interests are certainly indirect.
Depends on how many people have a faster plan just to speed P2P up.
Dilbert RSS feed
your argument is not even remotely on center. Hotfile is a storage locker. They are paying for the bandwidth in advance and just charging users to use it.
This has nothing to do with IP or even copyright infringement for that matter. Additionally, the lawsuit here is another of MPAA's "we hope the judge is a technology moron" lawsuit.
It's not Hotfile's job to give two shits what is on their website, and it's also not their job to watch or monitor it for illegal or other activities. Section 230 among others covers them from that in it's entirety.
That's a point of view (or several). Saying that there is no reasonable other views possible, just shows your own narrow-mindedness.
Those "reasonable other views" as you put it should carry a high burden of proof (of their own validity) when they want to ruin peoples' livelihood with big lawsuits. The "point of view" that doesn't want to do that is not trying to force anyone to adhere to it, and thus needs to meet no such burden of proof.
You relativist bastard.
I agree, charging fees to download content sounds like selling IP. But as far as I could tell from the HotFile FAQ, you pay to host files so non-paying users can download them.
It seems like the same issue any web host faces. Your service allows people to put things on the internet and you're responsible for what they put on your servers, to some degree. Child porn, copyrighted material, scams, government secrets, whatever; you need to make a reasonable effort to stop illegal activity.
I'm not sure if HotFile has acted responsibly or not, but it's not the new, emerging threat described in the summary.
hotfile is selling additional bandwidth & less hassle to access any content on their servers. this includes the plethora of legitimate software on their servers. they aren't selling access to the files (which are freely available on their servers with a small wait) any more than your isp is selling you access to the files by giving you higher broadband speeds.
I just want to say that I'm sooooooooo sick and tired of people on the internet making whatever sketchy analogy supports whatever view they want to advance. Considering how often analogies are used to re-write the situation into something different, I propose making analogies the equivalent of invoking Nazis.
Yes but betamax cassettes don't have the capability to see exactly what you are copying and determine if it should be allowed or not. There's a difference between the willful ignorance perpetrated by file sharing sites and a machine that is incapable of telling the difference between a home video and a movie rental. Likewise, if the only thing betamax could be used for was copying someone else's work, then I don't think the court would had ruled the way they did.
Hotfile "profits richly while paying nothing to the studios" for the bootleg files.
Sort of like how the studio profits richly while paying nothing to the employees...
Reading the brief they've filed, it's pretty apparent that they're stretching quite a ways. The only evidence of HotFile encouraging users to upload pirated content to their servers is that HotFile encourages users to upload files which are a) heavily downloaded by others and b) large. The MPAA is asking the courts to assume that large, heavily-downloaded files must be illegal content. They make a big deal in their brief of being scandalized by the fact that HotFile is not a service for people to store their own files, as if that's the only legal thing that a website which allows people to upload files can be. That might somehow bolster their case if HotFile was claiming to be an on-line locker service, but there's no reason to believe that they will make any such claim. The MPAA also accuse HotFile of having, prepare to be shocked, an affiliate program.
It's not just that the brief they've filed doesn't contain a smoking gun: it doesn't even assert that one exists. They're accusing HotFile of being what it is: a site which facilitates the distribution of large files to a wide audience and asking the courts to declare any site which does that to automatically be illegal despite full compliance with the DMCA and no evidence that they induced users to engage in piracy. I certainly hope that the courts don't do that because it would set a terrible precedent and effectively rewrite the law to amend the safe harbor clause of the DMCA to say "except for big files which a lot of people download because those must be pirated".
Mostly, though, what all this shows is that the *AA groups are going to have to reach farther and farther. They pretty much got to write the DMCA, but now it turns out that even it doesn't go far enough for them. The problem is that they didn't foresee that sites like HotFile (ad/subscription-supported large-file distribution sites which are completely content-ignorant and have no search or index mechanism) could exist. Now that they do, they want them gone. The reason that these sites can exist and be profitable is that bandwidth and storage costs have fallen so low that a peer-to-peer model is no longer necessary. As bandwidth and storage gets cheaper and cheaper, newer types of sites will be used for piracy too. Next will probably be sites which allow you to host your own blog or other website. As storage becomes cheaper, their maximum allowed file size will reach a point where you can slap a movie up on your blog without violating the maximum file size. Once that happens, the MPAA is going to want those sites gone too. Any site or program which allows ordinary, anonymous users to host and distribute large files (for some definition of large), is going to be on their hit list.
I'm no particular fan of piracy, but you can't remove the sites which allow people to distribute pirated files for free without also removing the sites which allow artists to distribute their own albums and music videos for free because those are the same sites. The long-range eventuality of the plan the MPAA is following will be a total lock-down on any means of widely distributing large files. That's too high a price to pay for stamping out piracy.
Linux ISOs. No, wait....
But seriously, this is where the difference between per se and per quod comes in. Giving bonuses for illegal movie downloads is infringement per se, but giving bonuses for popular downloads that turn out to be illegal downloads is infringement per quod. It isn't illegal on the face, but it might be illegal in light of extrinsic information---specifically the fact that the vast majority of popular downloads are illegal. The MPAA should have a hard time proving this, or at least one would hope so. That said, it's not remotely airtight.
I'd expect there to be at least some popular downloads that are non-infringing. That said, most of those are likely to be flash-in-the-pan popular---a bright flash, then squat. For example, if someone posts a game mod through that service, it could be non-infringing (depending on whether the "derivative works" issue bites the author, and on whether the original game publisher cares enough to press the issue), but that traffic would rapidly die down after the few dozen hardcore gamers on a particular site have all downloaded it.
To that end, long-term popular downloads should be treated as suspect, and I have a hard time believing that any sysadmin would be so naive that he or she wouldn't realize this. That's why the MPAA might actually have a case.
Check out my sci-fi/humor trilogy at PatriotsBooks.
"The MPAA argues that Hotfile not only encourages its users to upload illegal content, but actively discourages them from uploading files for personal use, because the site offers incentives for users to upload the most popular files (which invariably end up being copyrighted movies)."
Since when does popular equal pirated?
Please show me where on the site HotFile "encourages its users to upload illegal content"? Just please show me one link where HotFile says, "Please, upload illegal content! Do not upload legal content; we don't want that here."
I see no abuse of this. Youtube is using a similar advertising model as HotFile. Let's compare:
- Youtube allows advertising sharing with prominent users.
- Hotfile allows profit sharing with prominent users.
- Youtube rewards people with popular content.
- Hotfile rewards people with popular content.
- Youtube destroys people with illegal content.
- Hotfile destroys people with illegal content.
So why is it that when Youtube does it that the business model is fine but when Hotfile does it the business model is wrong and bad?
Hi MR AC!
It's MRS you insensitive clod!
Perhaps I can.
It really doesn't seem to be so hard.
I mean, really: Did you even stop to look around at the world before you wrote that?
Because, frankly, I think the concept that you're attempting to quantify is bullshit.
Really, I do.
Peace.
Kid-proof tablet..
You can download files off their servers without having a paying account. With Hotfile what you are paying for, is an adfree, non delayed downloading of files. What you get for signing up is no delay on download, or having to wait 15minutes in between files, Ad free, Direct downloads, and full speed. You can still use the system without the paid accounts, and because of that, you can't make the claim they are directly profiting off illegal services, what they sign up and pay for, is a higher quality service, not to access illegal files.
betamax cassettes don't have the capability to see exactly what you are copying and determine if it should be allowed or not.
Nor does a file sharing service. Without a database of every non-free copyrighted work ever published, it can't determine whether the VP8 frames and Vorbis MDCTs of the .webm video that you uploaded represent a non-free copyrighted work. Relying on title matching leads to the Usher debacle. An automated process currently can't detect nonliteral copying either, such as adaptation of a non-free copyrighted book into a film. And even if an automated process could reliably identify all non-free copyrighted works used in a given work, no automated process can make judgments about the purpose and character of a particular use. That's why the law relies largely on takedown notices.
No doubt they're in the gray area of the law, but as long as there's money in it companies will test those limits. What we do know is that RapidShare is legal and Grokster was illegal. Hotfile is floating somewhere in between, either way we're likely to see another precision of what you can do and not.
I've used the free versions of both RapidShare and Hotfiles and they seemed pretty much the same to me. Are the paid versions so different that Hotfiles is breaking the law but RapidShare isn't? I just assumed that all of these sites operated the same way...
I see your point: freeware application installers are as popular as infringing copies of films. But why would one upload these installers to Hotfile instead of just linking to the latest version on the official web site?
considering that it's where I get my porn flicks from(via links from a different "free porn" aggregator site)
none of the stuff I download is legitimately free, many are blatant dvd->vcd rips.
now, for regular movies, I've never used hotfile. I don't really download regular movies on the internet, outside of netflix instant streaming. but for porn, hotfile has been my go-to supplier for the past 6-10 months.
So what would a win sight do? Or a win taste? A win smell? How about a win touch?
> Hi MR AC! While I agree with most of what you are saying, the big "uh oh" that Hotfile did was this: they reward popular uploaders which kinda blows all your other arguments out of the water.
Why? Because you think that copyright infringing files are the only popular content out there? They're rewarding popularity, not infringement.
Also, I'm pretty sure they don't reward you if your file gets DMCA'd, which hurts your argument even more.
Yes but betamax cassettes don't have the capability to see exactly what you are copying and determine if it should be allowed or not.
The Betamax VCR by definition must have the capability to see exactly what you are copying. USA TV broadcasts are all copyrighted. Even this post is automatically granted a copyright to me as soon as I press "submit". The Betamax VCR was capable of recording live ( copyrighted ) TV -- the VCR was specifically designed with full knowledge that it would lead to recording of copyrighted content. Yet, because Betamax can also be used to produce/copy your own videos (camcorder + VCR = noninfringing works; Fileshare + my BSD & Creative Commons licensed videogames == noninfringing)
No technology currently exists to reliably determine if a media is copyright infringing or not. Even a quoted reply to my post would include a portion of my copyrighted post content. Whether or not the quote is an infringement or falls under fair use provisions is up to a court to decide were I to sue. Fortunately, I can issue a DMCA take-down notice to Slashdot If I believe fair use does not apply. I may not sue Slashdot for infringement due your act of unlicensed verbatim duplication of my copyrighted post content under the Safe Harbor provision of the DMCA.
Even if all "copyright protected" Betamax cassettes or file downloads had a marking that the VCR or computer could detect in order to prevent copying it could be circumvented via Screen-recorder software or Camcorder aimed at the screen.
Aside from the ridiculously flawed "build a database of known copyrighted works" or other such nonsense, I'd like you to consider two commonly used technologies which may be applied to any arbitrary file transfer system: Transcoding, and Encryption.
Now, If you understand those three principals (Automatic Copyright, Transcoding, and Encryption) then you must agree: No technology currently exists that can determine if a media contains copyright infringing material with even a minimal degree of certainty.
There's a reason why DMCA relies on take-down notices in this matter -- That's really the only way to handle this. Note: after the media is removed via DMCA take-down notice, the alleged infringer may request that the media be replaced and accept the burden of liability.
I think they'll keep going after sites until they find one that won't fight back. Once that's done, they can then use that caselaw for their future endeavors.
Didn't Rapidshare or Megaupload or one of their recent targets counter-sue?
Just in case the above loses some people, here's an analogy:
Hotfile is like a club owner who charges an entrance fee to get in his club where he knows that illegal drug trades are taking place, but he gives the drug traders free drinks because he knows they bring in more customers (people who pay the entrance fee). Technically, the owner's not trading drugs, but they are fostering a climate that lends to drug deals, and profiting off that climate.
TPB is like a billboard owner who puts up an electric eye (IR beam) to measure traffic flow and puts up billboards in the area, charging based on the pedestrian traffic. Who knows what the pedestrians are doing? Maybe it's illegal, maybe it's legal. That's between them and the cops. The billboard owner makes money from the advertisers.
Uh, no.
Hotfile offers storage and transport of arbitrary files, without monitoring what's in them. (What they are _selling_ per se is the faster, less ad-splattered version of the same storage and transport they offer for free.)
Your ISP offers transport of arbitrary packets, without monitoring what's in them.
In neither case are you paying the company for content, nor is the company representing the content as their own -- they're both indirect, and you're full of bullshit.
> To that end, long-term popular downloads should be treated as suspect
Rapidshare, Hotfile, Megaupload & Co provide a very general, content-independent data transfer service, which is, in principle, no different from what a ISP does.
In order to prevent monitoring, users usually share non-identifiable and encrypted archive files. When you suggest data transfer providers should treat files as "suspect" merely because of their popularity, what _exactly_ are they supposed to do, when they see, that a file named 75x493q5xq9n8475.rar is "suspiciously" popular?
When you then extend such responsibilities to internet service providers, because their kind of service does not substantially differ from that of data transfer providers, should they similarly be required to:
Summarized, your argument goes like this: MPAA might have a case (against Hotfile or against basically any ISP or any kind of human communication) because a large part of data transferred over _any_ kind of anonymous data transfer service is copyright infringement. They should either ban encryption or outright delete any more popular file because it is highly probable that it is infringing.
Same MR. AC here.
Common sense isn't a legal argument; rewarding people for popular files is distinct from rewarding them for illegal files. That's like saying that the grocery store encouraged me to rob a bank, because they sold stuff I could buy with money, and it's common sense that working 9 to 5 will never get even a fiftieth of the money robbing a bank will.
You may be right; maybe the MAFIAA will win this in court with that line of argument, but if so I think it's legally the wrong ruling.
What the rewards program _does_ mean is that they are offering a mass-distribution service, rather than a private storage (upload files at home, download them at the office, maybe e-mail a link around to friends) which just happens to be usable for mass distribution, as some other services have more-or-less represented themselves. But I can't see that as a legal problem, because there's nothing inherently illegal about mass-distribution; going clear back to the betamax case, for a product or service to dodge contributory infringement, "it need merely be capable of substantial noninfringing uses".-- and while most people may have less legitimate use for a mass-distribution service than a private service, it's still capable of substantial noninfringing uses.
Never seen a 2 digit UID post before. :)
I'll get off your lawn.
Legal defence in Sweden is paid by the state, and in the parts it wouldn't be, the TPB guys have been without counsel.
Only one defendant in the case, Carl Lundström, has any money and he inherited that money. As his only involvement with TPB seems to have been the donation of some rackspace and bandwidth, it appears likely that the only reason he's been included in the lawsuit at all has been that nobody else has any money.
Maybe we should sell linux as a top secret new operating system and make it illegal to distribute. That should make it popular for upload.
It is bad that illegal stuff is more popular, but that isn't the fault of the person hosting the market, providing the streets or whatever. It might help if you look what your most profitable tax payer is doing, but the government uses the same policy. If the return is big enough it doesn't matter how it is earned unless the public outrage is too big.
Of course, they can easily turn the reward argument around. Simply suggest that the uploaders they are encouraging are say, indie film makers or dj's wanting to spread their work. Make a good indie film, get it popular, get some benefits from the site as well as benefits from all the people talking about your project, and with luck you can see profit. And as of yet, such an indie film maker hasn't done anything illegal.
Code softly but carry a big magnet.
Yes indeed. There's fair use, there's blatant copyright violation, and then there's just taking the piss. This falls squarely into the latter camp.
Maybe if the **AA concentrated on things like this instead of taking 9-year-olds and 90-year-olds to court, we'd take them more seriously.
Traffic in terms of what... page views or data? TPB has a very low bandwidth requirement -- there are very few images on their pages and the tracker files that are their raison d'être are smaller than most jpeg images, so it really isn't an expensive site to run per user. I don't know whether this means they're profitting or not, and I wouldn't like to claim either way.
HAL.
Got them moderator blues I blieve I walk out the do', With these mod-points I been gettin', I 'most never post no mo'
Exactly. There are lots of legal ways and motives to download or share files. It just happens that the most popular files at the moment are copyrighted. It doesn't mean that other files should not be downloadable just because this also allows copyrighted works to be downloaded.
As for the MPAA, if they have evidence that copyrighted files were posted, they can file a take-down notice and send it to Hotfile who will then remove the files. So why are the MPAA trying to shut down Hotfile anyway?
Easy: they know the Internet is their doom. Not because of infringement but because ultimately this makes labels and publishers useless. They already started suing downloaders in order to discourage people from downloading free indie films and free music from emerging artists (i.e. when people fear being sued for thousands if they download a copyrighted work by mistake, they don't want to try to download free media).
For example imagine if YouTube had a profit split model where the uploaders got part of the ad revenue.
They do.
Youtube does have a profit split model - it's called the Youtube Partner Program aka YPP.
They incentivise the uploading of popular material in exactly the same way as Hotfile. The only difference seems to be one of scale.
It appears from your description that Comcast is prioritising their own 'local' users on P2P protocols - which may be a technique for saving money.
Comcast got in trouble for throttling P2P before, so now regard it as a 'necessary evil'; a service that costs them bandwidth (and thus money) but that their users demand.
As such it's potentially cheaper for them to keep P2P traffic on their own network rather than pay the interconnect fees for traffic to external ISP's.
Any network engineers care to comment on the practice?
No, but we have numbers from a police investigation (who I regard as less biased than anti-piracy orgs), which say their income is around $170,000/year.
The police investigation number could be missing lots of income. They can only report what they found. If these guys are smart, they'd make sure any income they showed was near operating expenses, and keep the rest in secret accounts.
Considering it's on of the top-100 websites in terms of traffic, doesn't seem like profit to me.
Are you seriously claiming that a top-100 website can't make money off of advertising, and likely isn't? It's extremely naive.
The court also found them guilty of commercially profiting off of piracy, which is why the Wikipedia article infobox shows them as "commercial".
These guys never claimed to be operating as a non-profit. They just claimed that they weren't making a lot of money or were operating at a loss. Do you really think if they were generating a ton of money in ads they'd just donate the money to charity? Whatever profit they earned, they were going to keep for themselves. It's foolish to think otherwise.
As I understand it, most countries classify child pr0n as illegal content. What other content that is "illegal" is the MPAA talking about, that makes them "hot" files? Do the MPAA members make illegal content now?
Take Nobody's Word For It.
Yes but betamax cassettes don't have the capability to see exactly what you are copying and determine if it should be allowed or not.
More often than not, neither does the storage locker site. The files are increasingly encrypted zips or rars. The password to decrypt them is given out in forum threads or other out-of-band means.
Actually, no speculation is needed. Over the years large monetary offers of cash have been tossed around for obtaining Pirate Bay. If Pirate Bay was not generating a profit, its extremely unlikely such offers would exist. But, one could assume they intended to monetize the services, which is certainly possible.
Furthermore, its extremely unlikely they would operate Pirate Bay at a loss for such a long duration. And its even more unlikely that Pirate Bay would exactly break even, thusly not providing for profit. As such, the ONLY reasonable assumption is they were making money left and right. And unless pirates have figures which contradict such extremely reasonable assumptions, any statement to the contrary is borderline bullshit.
In short, you are absolutely correct.
The Pirate pay makes no money as result of the files being shared
Factually incorrect. They are generating revenue from content. That's how EVERYONE generates revenue from ads. You MUST have content. In their case, content is usually someone else's property. That means they absolutely are making money as a result of files being shared; as that's the content. In short, there is no difference. They are making their money from the trade of someone else's property. The only real distinction is who is paying them (end users verses advertisers).
this isn't the road designer. Its the guy in the getaway car, the same guy who drove that same bank robber the last 934 times he robbed a bank.
get real.
Hotfile could require accounts to upload, and ban or report to the authorities the details of anyone who was found to upload copyrighted content.
They clearly make a deliberate decision to allow anonymous uploads so as to encourage copyright ifnringement. Sue the fuckers into oblivion, they deserve it.
I don't want to support what you're doing but, charging to download other people's IP that you have no rights to is so horribly stupid.
What the hell was HotFile thinking? At least no one's profiting off of P2P(well, as far as I know, the developers behind Bittorrent and clients aren't) of IP.
Hotfile doesn't charge you to download. They are just like other hosts where you can either pay for a "premium, high-speed" download, or use the crappy "low-speed" but Free option.
And the 'crappy' option isn't all that crappy most of the time, either. I would actually be surprised if the paid version was really any faster, but I'm not going to pay them to find out.
Yeah, the government doesn't have totally open books, and they are losing money hand over fist!
Yes it's an anecdote! Were you expecting original research in a Slashdot comment?
Just in case the above loses some people, here's an analogy:
Points for not using a car analogy, but still, analogies prove nothing, and usually just illustrate the prejudices of the speaker (comparing drug dealing with file sharing, as in this case, is pretty prejudicial).
when did I ever say there were no other reasonable views? The only one that has said that is you, and just shows your post makes no sense. Again, hotfile doesn't charge to download people's IP, this is a gross misstatement and subverts focus on actual facts of the situation. If you look at the rapidshare lawsuit I believe it was (or was it megaupload), there's plenty of precedence in my comments.
There are plenty of reasonable views, the OP just doesn't happen to be one of them.
You're not directly profiting off of the IP though because someone could upload something that isn't copyrighted or belongs to them. The point of "digital lockers" is it can be any file which means that they should be protected provided they comply with DCMA notices in a timely manner.
Hardly surprising your post was troll moderated. Factually, pirates love censorship so long as they, themselves, are not the ones being censored. When it comes to piracy, pro-slashdot pirates have never been more in favor of censorship.
You know you are on the losing side of the debate when the only way your argument can withstand debate or criticism is to censor the opposing argument. And yet that's EXACTLY what happens every time here.
Notice how quickly these posts are censored. Pirates are scared shitless that people may actually understand both sides of the coin. But nope...they can only grow in numbers so long as their tyranny of censorship is allowed to persist.
Its pretty disgusting when pirates supposedly claim this is about freedom and yet they'll stand in lines to censor the facts which completely undermine their pervasive ignorance and collectively incorrect "facts."
what are the firefox addons you're talking about?
Are you seriously claiming that a top-100 website can't make money off of advertising, and likely isn't? It's extremely naive.
I'm saying that, believing the police report, they don't have enough income to have real profit. $170000 isn't much to run a big site.
The court also found them guilty of commercially profiting off of piracy, which is why the Wikipedia article infobox shows them as "commercial".
Yes, based on the police numbers.
These guys never claimed to be operating as a non-profit.
Nor did I say that. I just said I doubt they're making much profit, not that they don't try to.
Do you really think if they were generating a ton of money in ads they'd just donate the money to charity?
No, nor did I say that.
Dilbert RSS feed
I'm saying that, believing the police report, they don't have enough income to have real profit.
Which is why I think the police report just scratched the surface. They get far too much traffic to make so little in advertising. The Swedish newspaper estimate, where they quote sales numbers from a sales manager purportedly handling ads for the Pirate Bay, seem much more believable.
Nor did I say that. I just said I doubt they're making much profit, not that they don't try to.
Fair enough.
As such, the ONLY reasonable assumption is they were making money left and right.
Actually, isn't it equally reasonable to assume that the revenue they made sometimes covered their costs and sometimes didn't? So that some months they may have made a small profit and others they may have had a loss, in such a way that it averages out to essentially no profit? Or maybe just very little profit? It's very possible seeing as their revenue via ads is tied directly to their traffic which is of course the direct driver of their costs.
More traffic = higher costs. Also, more traffic = higher ad revenues. Considering what was said on the stands during their trials, the most likely scenario is that the revenue they made on average covered their costs and maybe made them a very small amount of profit, but that's it.
Actually, the distinction is that they are making money by providing a service. The Pirate Bay has advertisers who pay to be seen by those who use the service. The service allows users to upload and download files at no cost whatever those files may be.
The difference with HotFile is they charge the users. A free service vs a pay-to-use service is a big difference.
Likewise, if the only thing betamax could be used for was copying someone else's work, then I don't think the court would had ruled the way they did.
Which falls in line with the ruling they made. Sony was not infringing because the betamax had substantial non-infringing uses. What you are saying is no different.
So allowing anonymity is equivalent to encouraging the breaking of the law? Wow. That's news to me....
Using an ad-supported service to distribute firmware for your commercial device doesn't exactly scream professionality.
That said, I've never quite figured out how rapidshare, hotfile, megaupload etc make enough money to keep themselves afloat, much less profit. Installing JDownloader is the only thing that stands between the user and functionally unlimited ad-free downloads, provided he has a modicum of patience.
The only explanation I can find is that people DON'T have any patience to speak of and want their files NOW NOW NOW, but it seems a bit of a stretch to think that enough people are that impatient.
That's not what was happening. Hotfile sells a tiered cyberlocker service. Most use it for free. Only when you want more do you have to purchase a better plan. Not an uncommon business practice. It's like Yahoo.com's mail. You can use their mail service for free but if you want more space or the ability to connect via 3rd party mail clients you pay a fee. If you send emails with copyrighted content that's not Yahoo's business. The same goes for the online cloud storage. You generally get a few gigs free but if you want more space you pay more. If you store copyrighted material and publish that for your friends that's not the cloud storage company's business until a legal DMCA takedown notice is filed.
In the case of Rrapidshare they were sued multiple times and found innocent though they were doing similar things. Their users were/are storing copyrighted material that people can download. Rapidshare has a DMCA notice policy and they enforce it.
Hotfile is the same. It sells a service to those asking for more. If their users store copyrighted information that others can download may be illegal, but the DMCA is there to help protect the copyright owner. They can file a DMCA notice with hotfile.com and hotfile will honor it to the letter of the law.
The lawsuit filed against hotfile is extremely weak because 1) there are all sorts of pay as you go locker services, and 2) hotfile honors legal DMCA notices. What the company suing hotfile is claiming is that they are different in that they sell space that can be used to store copyrighted material. But hotfile doesn't sell space to do that. They sell space. If it is used improperly hotfile isn't responsible unless they ignore legal DMCA takedown notices.
Their claim is basically that Hotfile's cyberlocker service couldn't have a legitimate purpose. This practice of charging for premium service, contrary to the MPAA's implication, doesn't mean that Hotfile is inducing infringement. The MPAA tries to claim that Hotfile doesn't use any copyright filters, but there's no law that requires anyone to do that. This is simply an attempt by the MPAA to bully the upstart and to cost them money in an attempt to bankrupt them.
You can lead a man with reason but you can't make him think.
a very small amount of profit, but that's it.
There is no basis for that statement. With your logic, as web traffic grows for any site, all ad revenue is just enough to cover growth. Realistically we know such a notion is idiotic and it simply doesn't work that way.
As I originally said, contrary to your wild and completely unreasonable guesses, the only reasonable assumption is they were making a fair bit of profit and have an encouraging growth outlook.
Unless you have hard numbers, you assumptions not only don't add up, but fly in the face of back of the napkin math.
I do believe he is referring to SkipScreen. It's pretty awesome.
Using your logic, it is unreasonable to suggest that any site ever isn't making enough money from ad revenue and as such if the site continues to exist they must be making a fair amount of profit. That's unreasonable itself. It depends on whether the ad revenue is enough to cover the traffic to begin with. If your ad revenue is barely enough to cover your traffic, then as your traffic grows your ad revenue is going to grow in a similar fashion (since ad revenue is driven by traffic). Ad revenue is not, usually, going to grow faster than your traffic. So if your site is already making a profit from ad revenue alone, then it's reasonable to assume that as web traffic grows, so will your profit. If your site is barely covering its traffic from ad revenue, it's completely reasonable to assume that the ad revenue will just cover the growth. Since we don't know the numbers both situations are equally reasonable.
There is no evidence to suggest they were making a fair bit of profit, and the only thing you cite as evidence is that they continued to operate and you don't believe it's likely that they operated it at a loss for a long time. You also don't believe, for reasons you don't provide, that it's likely they were breaking about even or only making a small amount of profit. Considering there is no evidence either way, I don't see how you can say my suggestion is unreasonable but yours isn't.
The "Beta can be used to make illegal copies" lawsuit alerted more people that such could be done and Sony sold a bit more units because of this newly publicised use-case.
Lets not kid ourselves, Betamax cassettes were primarily used to "pirate" TV or other cassettes; Sony knew this hence: double cassette "duplication" models, models with timed recording settings, etc.
So, Universal sues Sony -- Sony Inc. v Universal Studios:
The item you included in your example list of features Sony included to help Copyright infringement, "timed recording settings", very much does not belong there. Timed recording is primarily useful for time-shifting (recording shows you were unable to be present to watch, so you can see them later) this is the most commonly cited fair-use case.
As such, the ONLY reasonable assumption is they were making money left and right.
Except that the Pirate Bay has flatly denied that it makes "huge profits," and in fact they suspect that they operate at a loss overall.
Breakfast served all day!
There is no basis for that statement. With your logic, as web traffic grows for any site, all ad revenue is just enough to cover growth. Realistically we know such a notion is idiotic and it simply doesn't work that way.
So how does it work? What do we "know"? Based on your comments, I'd venture it's a lot more difficult to make good money selling banner ads than you think it is -- especially when governments around the world claim your site is involved in criminal activity.
Do you see McDonald's advertising on The Pirate Bay? Or Sony? Or Pepsi? Or Ford? Just who are all these deep-pockets sponsors whom you imagine are shoveling money to the Pirate Bay, hand over fist? Do you really think the medical technician trade school in Oakland, CA that keeps popping up when I access the site has the millions to spend that you claim The Pirate Bay is earning?
Breakfast served all day!
Hi Kalidor! It sounds like you and the others are jumping through some serious logic hoops trying to justify piracy which i doubt will fly in court anymore than the "You can use it for Linux ISOs" did for grokster.
Look, personally I think its ALL bullshit, the founding fathers never intended "forever minus a single day" copyrights and if anything thanks to fast and easy distribution I believe it should be less than what they originally set it, say 10 years tops. But that don't change the fact that the law as it is ain't on your side, and all the *.A.A will have to do is trot out a list (which they'll get during discovery) showing that not a single rewarded uploader was sharing legal content to have it shot all to shit.
Look, its like that guy that read all the laws on automatic machine guns and found they were all based on trigger pull so he built a Sten without a trigger and tried selling it. Sure by one interpretation of the law he was legal since there was no trigger pull involved, but that didn't keep the courts from shutting down his doors. I honestly doubt you believe the average judge is gonna buy your argument anymore than I do when they see how much content is being posted on Hotfile daily. DMCA notices don't mean shit if three seconds after "Inception 1080p rip" is taken down they simply allow someone to put up "Inception 1080p rip LOL!".
And I'm sure that through discovery they'll find that groups like Rapidshare and Hotfile and making all their money off of hot content which be honest...you KNOW this. You know it, I know it, it ain't some big secret here. They have just been able to skirt based on grey areas which I'm sure the courts will be closing but quick. All they have to do is see that 90%+ of the content that goes through their network is illegal to rule that there is no significant non infringing use. But again we all know this, so you want to snatch? Cool, I couldn't care less. but lets call a spade a spade, okay? Be honest, that's all I ask.
ACs don't waste your time replying, your posts are never seen by me.
This is not correct. It isn't a matter of law that they are discouraging non-infringing use. It is a matter of fact that is in dispute. If they choose to pursue this then a jury gets to decide. It may be thrown out long before, as Hotfile has a history of honoring DMCA notices. That provides them with safe harbors.
Not all lawsuits are valid, some are filed to irritate and to increase expenses. That's what the MPAA is doing. In fact, the MPAA is making so much money (just look at the net from the movies) that they can afford to attempt to wreak havoc on anyone they don't favor.
You can lead a man with reason but you can't make him think.
Again, this is a matter of fact that's in dispute. There's plenty of case law concerning safe harbors. In fact, Rapidshare has been sued multiple times and found to be legal. If Rapidshare can't make money off their cyberlocker that's their fault. And, I would suspect that it would be IMPOSSIBLE for you to prove that they aren't making money, for it takes a huge amount of money to pay for the bandwidth and to purchase and maintain their equipment and salaries. So, don't go trying to feed us that shit.
Rapidshare has won every time it has been taken to court and has challenged anyone that spreads falsities about them being illegal. Hotfile is the same. Maybe their business plan is a bit different. But the bottom line is that they pay for their bandwidth, their manpower, and equipment. Because their users violate copyright law it doesn't mean that Hotfile (and the other legitimate users of the site) should have to pay. The DMCA provides the mechanism that the MPAA can use to get the infringing material removed. I find it hard to believe they will prevail in court if they chose not comply with the law. Hotfile is immune with safe harbor protections unless they knowingly encourage infringement. Proving that would require a trial.
You can lead a man with reason but you can't make him think.
Just as a point of fact, deleting non-infringing content that you think is infringing makes you liable to lawsuits.
Say you buy space from a company called Rapidshare. Someone then files a takedown for one file. Rapidshare then removes 20 files because they think those might be illegal. That puts them at risk. The DMCA process allows for counter notices, so the Rapidshare can't technically delete the content, they can only move it to a secure place, because if a counter notice is filed they are required to put it back up within a very specific period of time.
The DMCA takdown process is there to protect all parties. If a counter notice is filed and the cyberlocker puts it back up then the party filing the takedown notice must file their lawsuit to pursue it further. The cyberlocker is not required to be the policeman for the MPAA or anyone else.
You can lead a man with reason but you can't make him think.
It's not the cyberlocker's job to police the content. That's why the safe harbors portion of the DMCA was created, in fact, specifically because of that. It provided a mechanism where the content could be challenged and addressed by all parties without requiring the ISP or other service provider to become the policing agency for the alleged aggrieved.
You can lead a man with reason but you can't make him think.
Yeah, the owner that buys property in a bad neighborhood and rents it out must be liable as they know crimes occur in that neighborhood. They must be guilty of contributory crimes, because they didn't filter out the bad tenant (mainly due to the fact that the courts that told them they can't discriminate).
Certainly this is an extreme, but that is essentially what the MPAA is claiming.
The difference is that the MPAA can search through Hotfile on their own, they can identify content they believe is infringing and they can address that. It isn't up to Hotfile to act as the policeman for the MPAA or anyone else.
You can lead a man with reason but you can't make him think.
Road builders build roads directly to banks, and the vaults they maintain. The road builders didn't build the roads to empower bank robbers. That's what you mean.
What is at stake here is: are the DMCA safe harbors pertinent to Hotfile? The answer is yes, if they didn't encourage infringement. The courts require that the MPAA prove that Hotfile's service is intended to promote infringement instead of legitimate use.
You can lead a man with reason but you can't make him think.
Unfortunately the easy answer is that maybe you shouldn't go on the internet. For me, I'm impressed with the creativity people use in making their analogies.
You can lead a man with reason but you can't make him think.
Just as he posted as an anonymous coward.
You can lead a man with reason but you can't make him think.
I never said they weren't, and I never really said anything to support either said. Just that they weren't exactly being truthful.
Do I know how the money is being made? Sure. They use a legal sidestep that has been used by hundreds of times before, in the US and outside the US. Heck, it's a side step University student groups use all the time to avoid copyright issues and still make money for their coffers. It's an argument fair and clear and a good lawyer might be able to point out inconsistencies in previous rulings, which could paint any arbiter, judicial or otherwise into a corner.
Personally, I don't care what happens to hotfile or whatever. I only figured it out by following the trail and looking at the webpage cause the accusations sounded too clean and accusations that clean and easy to negotiate don't exist outside of pulp fiction novels.
Code softly but carry a big magnet.
No, that's not my argument at all. My argument is that the MPAA's argument is not entirely without merit because rewarding people for having exceptionally popular downloads, even though it may not always be rewarding infringement, does so with a high degree of probability, and any reasonable tech person should know that. Therefore, the argument that rewarding popular downloads is tantamount to rewarding infringement is not that much of a stretch.
As for your argument about encrypted files, if I were running a service like this, you can bet I'd be covering my you-know-what with a series of "hot file" rules (no pun intended) to detect unusual spikes in traffic for a single file. If a single download suddenly appeared and quickly saw tens of thousands of downloads, I'd be Googling the checksums and the URL to see what I found. If I found a decryption key posted publicly, I'd use it to do due diligence.
Is that required for DMCA safe harbor? No. Is a pattern of failing to notice obvious infringement sufficient to get your safe harbor status revoked? Maybe.
Why would you assume that someone transferring large amounts of data is infringing copyright? That's a naive assumption. Lots of people transfer large amounts of data from legal services---iTunes Store movies, Amazon Unbox, Netflix streaming, YouTube, etc. A user getting content from lots of different places is not implicitly a sign of infringement.
A single piece of content being sent to lots of different places, by contrast, is probably infringing better than ninety-nine times out of a hundred, and that remaining one out of a hundred is rarely encrypted. People storing and distributing encrypted files that are not infringing are largely corporate users, and those sorts of files tend to be downloaded by only a handful of people. Therefore, the presence of a high volume (hundreds of downloads) file that is encrypted should be a red flag the size of Tennessee.
Now you're just being silly. If encrypted content is infringing, then the key is somewhere. If it is only in the hands of a handful of people, then it's small time infringement, which is generally not even worth bothering to track down (and the movie studios could not prove that it was infringement anyway, in all likelihood). If it is in the hands of hundreds or thousands of people, then odds are good that it is posted on a web page somewhere (or some distributed tracker or something), in which case the ISP could find it if they bothered to do so.
Yes, sure. Because the only reason for encryption is piracy. Come on. Get real. You can't possibly equate banning encryption with asking ISPs to do the most basic of due diligence when they see content with unusual download rates. Such an extreme slippery slope is pretty clearly a fallacy sine dubitatio. (Apologies if I got the Latin wrong here.)
Check out my sci-fi/humor trilogy at PatriotsBooks.
It certainly doesn't seem like Hotfile is encouraging pirating:
" ... It is Hotfile's policy to: (1) accommodate and not interfere with standard technical measures (as defined by the DMCA) used to identify and protect copyrighted works; (2) disable access to or remove content that it believes in good faith may infringe the copyrights of third parties; and (3) discontinue service to users who repeatedly make such content available or otherwise violate HotFile’s Terms of Service. ..."
I asked what legitimate purpose a cyberlocker with Hotfile's reward structure might have, and adolf gave a great answer: freeware published by a company that subsequently goes breasts-up.
Hotfile has a history of honoring DMCA notices. That provides them with safe harbors.
Good point. Watch for Hotfile to drag out the opinion in Viacom v. YouTube as nonbinding precedent.
That's what the MPAA is doing. In fact, the MPAA is making so much money (just look at the net from the movies)
What net from the movies? Haven't you heard that most movies lose money when you subtract the part of gross that the theater keeps and the cost of marketing?
Points for not using a car analogy, but still, analogies prove nothing, and usually just illustrate the prejudices of the speaker (comparing drug dealing with file sharing, as in this case, is pretty prejudicial).
You stopped reading at that point, didn't you? Please read the whole post and determine my prejudice again.
You stopped reading at that point, didn't you? Please read the whole post and determine my prejudice again.
You equated Hotfile with a drug dealer. Yes, at that point people really should stop reading, though I soldiered on to the end.
It's just stupid, people are making money in poor parts of the world to feed their families this is a good thing. Why do big media/mpaa think they should own the web? They opened pandoras box when they made music and movies digital. Now any service which helps you do stuff with digital assets can be accused of facilitating/encouraging piracy. Why? This is stopping progress of the cloud a paradigm shift where people won't need a hard drive and will be able to do things with their content in the cloud that they never could before. These services are used to send files to large to email and online storage and back up. And why not offer rewards for popular content Charlie bit my finger's more popular than inception so it doesn't have to be illegal. This is exactly like the Betamax case, extensive non infringing uses! They are really looking to set a precident that could be used to stop progress in cloud storage, or paying people for legal activities both of which would be terribly sad. For anyone in this sector, progress and the Internet. What's really happening is mpaa riaa can't control the cloud, so they're saying give me the Internet or seize the domains or sue the cloud out of existence.
Actually, no speculation is needed. Over the years large monetary offers of cash have been tossed around for obtaining Pirate Bay. If Pirate Bay was not generating a profit, its extremely unlikely such offers would exist.
Yep - that's why Google waited for Youtube to turn a profit before buying them ;-)
The other possibility, of course, is that someone thought they could make a profit from the organisation, even if it wasn't already...
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