Slashdot Mirror
Warner Brothers: Automated Takedown Notices Hit Files That Weren't Ours
itwbennett writes "In a court case between Hotfile.com and Hollywood studios, Warner Brothers admitted they sent takedown orders for thousands of files they didn't own or control. Using an automated takedown tool provided by Hotfile, Warner Brothers used automated software crawlers based on keywords to generate legal takedown orders. This is akin to not holding the Post Office liable for what people mail, or the phone companies liable for what people say. But the flip side is that hosters must remove files when receiving a legal takedown notice from the copyright holder — even when the copyright holders themselves don't know what material they actually own."
If someone sends you a takedown notice for something that they don't own, that doesn't sound even remotely like a legal takedown notice.
Techdirt has a great article about this: http://www.techdirt.com/articles/20111110/10135116708/glimpse-future-under-sopa-warner-bros-admits-it-filed-many-false-takedown-notices.shtml
It makes some interesting parallels to SOPA and E-Parasites bills and why the laws shouldn't be passed.
I seem to recall some talk of that kind of stuff before. Apparently they have to in good faith attest that they have the copyrights to those items they send takedown notices for, or else they open themselves up for a lot of potential legal issues. I really have no bloody idea what that would be, but I'm sure suing them by both the ones that received the takedown notice, and the actual owner of the copyrighted material that WB claimed to own, would both be able to sue them.
I'm not a laywer, but we've seen this stuff come up in the forums before on small takedowns.
"This is akin to not holding the Post Office liable for what people mail, or the phone companies liable for what people say."
No this is akin to FRAUD. It'd be like me saying I'm Warner Brothers and going and cleaning out their bank accounts.
PS: Maybe if the DMCA included fines and penalties for takedown notices that are illegitimate they might not be as prone to using automated tools that work on a 'spray and pray' philosophy... Also if any of these people were unfairly targeted by DMCA notices should sue Warner Bros for damages and such.
09F911029D74E35BD84156C5635688C0
+2 Troll is Slashdot's way of saying groupthink is confused
That "not" shouldn't be there. And it feels like there is something missing from this analogy. Perhaps it would be like "holding the post office responsible to stop mailing privileges for people wrongly accused of mailing fireworks."
What changed under Obama? Nothing Good
If you carefully review the elements of the DMCA takedown and put-back notices, you'll note that for the put-back notice, you must provider
a statement under penalty of perjury that [you have] a good faith belief the material was mistakenly taken down
Fair enough. But check the takedown notice:
a statement that [evil RIAA goon lawyer] has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
a statement that, under penalty of perjury, [evil RIAA goon lawyer] is authorized to act for the copyright holder
That's right -- it's a crime (perjury) to submit a take down notice if (and only if) you're not authorized by the copyright holder. It's not a crime to submit bad-fath take down notices. But disputing a bad-faith take down notice potentially is a crime and exposes you to criminal liability.
Do you even lift?
These aren't the 'roids you're looking for.
I would argue that you cant have 'good faith' when there is no human oversight involved. Thus punching in a bunch of keywords into some automated process and having it generate automated DMCA notices in a 'spray and pray' fashion is tantamount to walking around with a loaded firearm and when it accidentally discharges and kills someone you claim it was an accident (good faith) rather than murder (FRAUDULANT CLAIM)
09F911029D74E35BD84156C5635688C0
+2 Troll is Slashdot's way of saying groupthink is confused
Under the law, this action is refered to as "depraved indifference" - an action, deliberate or unintentional, displaying reckless disregard and wanton carelessness. A suitable penalty would include the removal of the ability to issue takedown notices for a year (or more...).
Chaos maximizes locally around me.
Lilly Tomlin on SNL back in the '70s: "We don't care, we don't have to, we're the phone company... *snort*"
Yes, it is. However, if one submits such a false take down notice, the according to the DMCA they can be charged with perjury. It's too bad that (to my knowledge) no-one has taken advantage of this...
Copyright holders aren't responsible when their bots screw up? Okay, fine, I can buy that. Programs do occasionally make mistakes. I don't get angry at Netflix for occasionally recommending Shindler's List based on my interest in Wall-E. But if content hosters have to pull down content when they receive a notice from a company holding the copyright, then there needs to be a way for the hoster to know if the company holds the copyright.
Media companies engaging in such scattershot tactics should therefore be required to host a database listing every copyright they own. That way if they send a takedown notice for video X to YouTube, someone at YouTube can check the video, check the database, and say "yep, that shouldn't be here" or "nope, this request must have been sent in error."
If they own the copyright but don't list it in their database, then it's their own damn fault if hosters don't pull it. If they don't own the copyright and but do list it in the database, then that can no longer be dismissed as just an error in their bot's algorithm, and they should be open to lawsuits from both sites receiving takedown notices and from the actual copyright holder.
Tortious interference, perhaps?
Thus punching in a bunch of keywords into some automated process and having it generate automated DMCA notices in a 'spray and pray' fashion is tantamount to walking around with a loaded firearm and when it accidentally discharges and kills someone you claim it was an accident (good faith) rather than murder (FRAUDULANT CLAIM)
Wow, if you are seriously presenting that as a legal theory, I'm surprised you could turn a computer on. That's so stupid, it's funny. The courts do realize that killing someone is permanent and much worst than a temporary takedown notice mistakenly issued with no permanent effects at all. If you sued because of this "fraudulent claim" you'd likely be thrown out of court on your first day. You have a recourse listed specifically in the law. Issue a counter-claim and your content goes back up. If you object to having your stuff down for a bit before the counter-claim is active, you would have to prove financial damage prior to the start of the trial, otherwise, the judge could do something like a summary judgement in your favor for $1 (since you didn't indicate any actual loss, why bother with a trial? If you win and win back all damages against you, you'd get $0, so the judge orders them to pay you $1 and you walk away both a fool and a winner). If a DMCA claim is mistakenly filed against you, what's your loss?
Learn to love Alaska
Telling an untruth under oath isn't perjury...
And there in lies one of the fundamental flaws in take down notices under the DCMA. They could just as easily have generated the notices from a ouija board or a burning bush. So long as you can't prove they knowing lied the notice is fully valid, and the sender of the notice faces no liability.
Good faith requires that you have reasonable grounds to believe that something is true, or that you have the claim or right, or legal right to do so. That isn't the case here. They're simply doing it because they 'feel' or 'think it might be' something based on assumptions, and guesswork. It would be the same as a cop going along and busting down someone door randomly and saying "I reasonably believed that they were smuggling 250lbs of coke" based on their gut. Doesn't fly there, it shouldn't fly here.
There is a clause in the DMCA for filing claims that are false, perhaps people should start using it?
Om, nomnomnom...
This is more akin to the phone company not being liable for using automated software to drop all calls that have words that sound like 'bomb'. (Fun Fact: the tech WAS implemented for international calls post-9/11)
... they have to in good faith attest that they have the copyrights to those items they send takedown notices for ....
The global judicial infrastructure is not based on good faith. You can't go into a court say you own a country and be granted legislative priviledges to that without research to affirm your claims. So why should individuals be forced to follow other individuals' claims in good faith? With the same concept spamers would have to just order you to install spyware.
That doesn't seem very consistent or legit or even healthy reasoning.
-- no sig today
It doesn't seem to be mentioned anywhere in the article, but does anyone know which "Open Source software" was removed? They claim that the software sped up infringing downloads, so I wondered if it was a file sharing program or download accelerator or something along those lines. This company would happily claim that the entire internet in general is bad because it helps people download infringing content.
If, as the rights owners claim, unauthorised copying is 'copyright theft, then surely claiming to own the copyright of something which they do not. is a much more serious case of copyright theft.
Especially since they were repeatedly warned that they were misreporting files and refused to stop and it just so happens they had a financial motive in acting improperly given that the page generated by using the removal tool had links to purchase the alleged infringing work legally--free page views on free advertisements, effectively.
Because it'd be logistically impossible to enforce copyright online to any higher standard than 'that looks a bit dodgy, pull it down.' It's almost impossible to enforce it even with the evidence-free standard of the DMCA.
We need "-1 goatse" mod...
Actually there are sometimes very good reasons for downloading copyrighted material. For example I have downloaded cracked versions of several games that i have bought and paid for, why? because when I switched to a 64 bit OS the fucked up DRM would no longer function and in fact IME can seriously damage the OS because some of the installers will try to jam 32bit hooks into a 64bit kernel and really make a mess. oh and their uninstaller DOES NOT WORK so once its jammed in there you are SOL. I have also found company supplied system requirements and demos are often completely full of shit, as i've bought games where I was WAY below system reqs and the demo played fine but the game simply wouldn't run at all on my system. of course there is no taking it back once opened, so there goes my money right down the shitter.
So until the game companies start removing their DRM after a year or whenever they stop supporting the game, whichever comes first, and I'm allowed to take back products that are defective frankly they can kiss my ass. If they were smart they'd embrace sites like Steam and GOG where my games "just work" but even that they are trying to fuck up by adding DRM on top of Steam, such as the shitastic GFWL bullshit I got stuck with when i bought Bioshock II. The pirate version? No jumping through GFWL constant bullshit just to play the game.
So I have to agree with Gabe from Valve when he said something along the lines of "piracy means you are offering an inferior product". Either your price is too high, the DRM too shitty, or too many hoops just to play (I'm looking at YOU Bioshock II) and you are simply not making your product as useful for the customer as the pirated version.
ACs don't waste your time replying, your posts are never seen by me.
Haven't you been listening to the media industry? Each copy they prevent you from distributing equals thousands of dollars.All you have to do is set up a website where people can wire you donations after seeing your product.
Since it is now public knowledge these automated tools are unreliable, simply stop allowing its users to pretend to good faith while using them. Rights holders should not be able to pass the cost of policing their rights on to society by spamming the legal system with invalid notices.
(Not taking into account that "passing the cost of policing their rights on to society" is what they have done for decades.)
Or a preview of life in these United States in two or three years? This is precisely what will happen when those charged with conducting the business of the nation decide instead to legislate moral behavior.
Some days it's just not worth
chewing through my restraints.
Does that mean that's like me going to a post office and telling them to throw away various packages because I think they might be damaging one of my rights and they'd have to do it?
Anyone here thinking this sounds like it could in any way remotely be connected to the definition of "legal"?
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
No, they have two choices: take it down immediately or lose their DMCA safe harbour protection. Without the safe harbour protection, they are liable for any copyright infringement that occurs on their site, so become liable for statutory fines of $7.5K or more per work that is uploaded to YouTube and infringes anyone's copyright. i.e. enough to bankrupt Google. I am not certain what happens if they don't put things back after receiving a counternotice. I would hope that this incurs the same liability.
Sending a takedown notice is using the legal process to have it taken down, so your points 1 and 2 are the same. If the uploader files a counternotice and they put it back, then it has to proceed through the courts and the host is not liable for any infringement (as long as they take it down if the court tells them to).
I am TheRaven on Soylent News
if one submits such a false take down notice, the according to the DMCA they can be charged with perjury. It's too bad that (to my knowledge) no-one has taken advantage of this
Lenz v. Universal is a start.
The problem is the way the DMCA is written:
See, you're not swearing that the file in question belongs to the copyright holder that you represent. You're only swearing that you allege that the file in question belongs to a copyright holder that you represent. BIG difference.
The only explanation for this kind of language is that it was deliberately written to be unenforceable.
Give me Classic Slashdot or give me death!
It is a crime to file a phony DCMA request.
The dangers of knowledge trigger emotional distress in human beings.
The way the DMCA is written, takedown notices are basically preliminary injunctions against the posting of that item. What I can't understand is how you can in "good faith" say you own copyright on everything with "the box" in it. At this point, I would say that they violated the rules & should be sued for slander of title by the copyright owner and tortuous interfierence by hotfile and the copyright owners.
In my own little perfect world, they would have an injunction issued against them preventing them from issuing another takedown notice for a year or more as punishment for abusing the system.
In the quoted subsection (vi), the word "allegedly" is only used to modify "infringed". I see no reason to interpret it in the manner described by Hatta.
1. Get rid of these notice-and-takedown laws.
2. Enact statutory liability any time this happens. That will make these folks a lot more careful about how they use the notice-and-takedown laws.
Anyone who has their freedom of speech inappropriately restricted deserves compensation from these clowns.
Uhhh...dude? When my PC is way above system reqs (which BTW if one would support your argument then they would have to accept that THERE ARE NO GAMES FOR 64BIT OS since I have yet to see 64 bit on a single box) there is NO damned reason why it shouldn't 'just work" except for their code being unsuitable for purpose. I have also found their demos to be absolutely worthless as they will bust their ass to make sure the demo code works well while the rest of the game runs like absolute ass. for examples Max Payne, Vamp:Bloodlines (which was such shit that I couldn't play the game until a fan made patch came out a year and a half later, by which time the game was in the $10 bin instead of the $50 i paid) Titan Quest (where I actually had a developer tell me i must have pirated the demo, WTF?) hell I could go on all day.
It does not change the fact that software is the ONLY item that I'm aware of where you can sell a completely broken product and get to keep the money. All they have to do is getting working on ONE config and then shove it out the door. can you imagine if they sold cars that would only run on a particular brand of gas that wasn't sold in your area and once you found this out got told "tough shit we gots your money now bitch!".
ACs don't waste your time replying, your posts are never seen by me.
See, you're not swearing that the file in question belongs to the copyright holder that you represent. You're only swearing that you allege that the file in question belongs to a copyright holder that you represent. BIG difference.
Subtly incorrect or not expressed clearly enough. In a DMCA notice you say "we found file X, and file X belongs to the copyright holder, and I am authorized to act in their behalf". If you are not authorized to act, then it is perjury. If file X doesn't belong to the copyright holder, it is perjury. But if the file in question is not file X, but a different file Y, then it is not perjury.
The first part, "a statement that the information in the notification is accurate", would of course be false, but that doesn't fall under perjury.
That said, I would be _very_ careful with my choice of words if I wrote a DMCA takedown notice.
This is far worse than that. "Warner Brothers used automated software crawlers based on keywords", in this case Warner brothers were attempting to claim copyright on file names not on content. So an egregious criminal act, including fraud, misrepresentation, censorship. The extent of their criminal negligence means they should be prosecuted to the full extent of the law and then subject to a class action law suit for infringing the constitutional rights of all those whom they wrongfully accused.
Chaos - everything, everywhere, everywhen