Warner Bros. Admits To Issuing Bogus Takedowns

An anonymous reader sends this quote from TechDirt: "One of the bizarre side notes to Hollywood's big lawsuit against the cyberlocker Hotfile was a countersuit against Warner Bros. by Hotfile, for using the easy takedown tool that Hotfile had provided, to take down a variety of content that was (a) non-infringing and (b) had nothing to do with Warner Bros. at all (i.e., the company did not hold the copyright on those files). In that case, WB admitted that it filed a bunch of false takedowns, but said it was no big deal because it was all done by a computer. Of course, it then came out that at least one work was taken down by a WB employee, and that employee had done so on purpose, annoyed that JDownloader could help possible infringers download more quickly."

Comments

Oh Okay

[TemperedAlchemist]

So if my computer just happens to download your copyrighted files by algorithm, it's okay because it was all done by a computer.

Sounds reasonable to me.

Re:Oh Okay

[dyingtolive]

I like the idea of randomly generating files that just happen to resemble songs and movies when played back through the proper software.

Re:Oh Okay

[parkinglot777]

I agree... Another loop hole in the laws and someone (big company) is abusing it...

The "penalty of perjury" language appears to only apply to the question of whether or not the person filing the takedown actually represents the party they claim to represent -- and not whether the file is infringing at all, or even whether or not the file's copyright is held by the party being represented. And, in the lawsuit, Warner Bros. is relying on that to try to avoid getting hit with a perjury claim.

Re:Oh Okay

[Anonymous Coward]

No, no, you misunderstand. This has nothing to do with algorithms or computers or anything. They're arguing that if they file bogus takedowns, it's all okay, because fuck you, that's why. It's all very simple.

Re:Oh Okay

[ggraham412]

If I had any mod points, I'd mod this up +1 Insightful.

Re:Oh Okay

[Jane Q. Public]

"I agree... Another loop hole in the laws and someone (big company) is abusing it..."

What in the world makes you think this is a "loophole"?

Loopholes are unintentional gaps in the law. The probability that this was not entirely intentional is pretty close to zero. The DMCA was crafted by lobbyists for the "big content" companies.

Re:Oh Okay

[erikkemperman]

Funny how "on a computer" works wonders for government (no expectation of privacy) and corporations (ditto plus magic patents) but has the opposite effect on common individuals, where downloading by script (violation of TOU, not even actually stealing) may well land you in more trouble than, say, jacking a car.

Re:Oh Okay

[Anonymous Coward]

I like the idea of randomly generating files that just happen to resemble songs and movies when played back through the proper software.

How would you distinguish them from "real" songs and movies these days?

Re:Oh Okay

[danceswithtrees]

Yes, if done by a computer it must be OK. Alternatively, if not OK, they should agree to a 80,000x multiplier for cost vs penalty (https://en.wikipedia.org/wiki/Capitol_v._Thomas was initially $1.92M for 24 songs or $80K/song which is a $1 on iTunes). Lets say IT and legal fees for a single request are $1000. So a single bogus take-down request should cost the label $80M. Sounds about right using RIAA math.

Re:Oh Okay

[omnichad]

I was going to say takedown notices, but apparently that won't work.

Re:Oh Okay

[Anonymous Coward]

these are actually feasible for static images.

http://rogeralsing.com/2008/12/07/genetic-programming-evolution-of-mona-lisa/

Re:Oh Okay

[Anonymous Coward]

So you pretty much have to hold some copyrights to be able to do anything, but if you do have them you can go to town.

Easy. Create a simple poem.
A-B-A-B
C-D-C-C
Thanks to the Copyright Act of 1976, a work is protected by copyright once the work is in "fixed form," no registration necessary.

Mission Control
I am coming in
Here comes the roll
I'm going to win!

Been gone so long
No one remembers me
Immortalized in song
Touchdown Hong Kong.

DDOS takedowns of all WB properties begins in 3...2...1...

Re:Oh Okay

[Charliemopps]

you're not understanding. The summary is wrong. Warner Brothers can send takedown notices at will. The only thing that's illegal is to claim you're a content owner when you're not. You could send all the takedown notices you wanted to warner brothers. But the fact of the matter is they do not host enough content for this to be a problem for them.

What they are trying to do with these weak laws and automated systems is make life very difficult for file hosting services. If they inundate them with takedowns it ends up being too expensive to actually check them. So they put up automated systems like this, which the media houses exploit to hurt these services. As far as WB is concerned, the only reason Hotbox exists is to pirate their content, so they feel justified in what they are doing.

A few years ago I work for a moderately large (fortune 500) ISP and actually handled infringement complaints against their customers. Basically the Recording and Movie industry hired companies to traul torrent sites and send takedown notices to everyone that connected to files that matched their filters. They actually didn't bother with older releases, they only really cared about things they had recently released. But still, the shear volume of complaints was impossible to deal with. Thousands per day. Many of which were duplicates. I ended up spending most of my time writing scripts to weed out the junk. We also had no idea if the complaint came from a copyright owner... no way to check... Castro could have sent them for all I know. Even if we could verify the person that sent the email, how would we know they owned the copyright? It was impossible. On this we just had to trust them per the law. Then, after I'd weed out all the garbage, I'd have to find out which customer had the DHCP lease on that IP at the time of the complaint. Sometimes it was clear... We'd get multiple complaints over a 1 to 5 day period for the same customer for the same file... they were likely hosting the movie/cd. But many times the IP hadn't been leased out... or wouldn't even be in our network! We had several organizations that sent us so much bogus info that we ended up blocking their domain.

I really dont have answers regarding how to make all of this better. Short of just doing away with copyright. The fact that the easy media transfer genie is out of the bottle really should just put the media industry on notice... their time is short, there is no way they can legislate this problem away and the whole "lets just flood them with takedown notices to annoy them" will only work for so long as well. Eventually ISP's just end up ignoring the complaints and those of us handling them move on to get paid a lot more doing things a lot more interesting ;-)

Re:Oh Okay

[Anonymous Coward]

> Loopholes are unintentional

Not back when I worked for people who worked for lawyers who worked for tax people who worked for lobbyists who worked for specific, very specific, businesses.

They (lawyers and tax people) _drafted_ the loophole language and the lobbyists made sure some congressperson got that sentence or two into the text before the final vote.

The "unintentional" language is what I hear after the fact by those who didn't notice at the time something slipped in.

What would you call a carefully crafted narrow specific exception to a fee or tax or regulation or law, if not a loophole?

Re:Oh Okay

[Shagg]

Exactly. It's not a loophole, it's a feature.

Re:Oh Okay

[camperdave]

I'm not seeing the loophole here...

No? Look at that last phrase:

(1) "A statement that the information in the notification is accurate, and"
(2) "under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."

Notice how the only thing subject to perjury is whether or not the complaining party is authorized to act. What is not subject to perjury is the statement that the information in the notification is accurate. In other words, as long as they are authorized to act on one claim, they can fish for all sorts of things. For example, Disney thinks you may have copied Cinderella, so they hire WeazelCorp to file complaints. Weazelcorp can file notifications against you for Star Trek (Paramount), Cloudy With a Chance of Meatballs II (Sony), and The Hobbit (Time Warner). They can make a statement that the notification is accurate even if they know full well it is bogus, because there's no penalty for a false list.

Re:Oh Okay

[Charliemopps]

You should check with other users on your ISP. In most cases the ISP has a policy saying you'll be cut off after so many complaints but in reality it's nearly impossible to enforce. In many places, if your ISP is the only company in the area they are very likely legally required to provide you service as long as you're paying your bill. We honestly treated it like the customers WiFi had been compromised and someone had done this from outside their home. Our letters even reflected this to the customer. If they got a LOT of complaints (like thousands) we'd even call them, concerned, because clearly their network had been hacked by some terrible software pirates. They'd play along, and the complaints would go away. Remember, your ISP is usually on your side in these cases. You clearly pay for the service so you can do this thing... and the copyright holders don't pay anything... and they're forcing you to pay staff to do something that actually drives customers away from your service. Many people, after getting a complaint, will call in and reduce the speed of their service. We had stats on this. You're getting thousands of complaints per day that if you send on to your customers have, lets say, a 20% chance of causing them to reduce their services or cancel service all together. Or in your case use a VPN and waste a lot of your bandwidth. It's ALL bad for the ISP. They hate the complaints even more than you do.

Re:Oh Okay

[suutar]

One point of TFA is that WB is claiming "being wrong about whether it infringes isn't perjury as long as we believed in good faith that it infringed, and we had faith in our computer program," and they're right. The part of the takedown saying "we represent Warner Brothers" is subject to perjury, but the rest of it is subject to 'good faith' rules. And bad faith is hard to prove unless you can find a "smoking gun" type memo or email. (Notably, the case where an actual human filed a takedown request directly is going to a jury because the judge feels that the filer could well have known the material didn't infringe on WB's stuff.)

The other point of the TFA is that while Warner Brothers is right about the law, this whole situation illustrates that the law sucks because it's slanted as hell, which I agree with fully.

Re:Oh Okay

[Frobnicator]

The thing is that the studio lawyers are gloating in the legal documents. One of the first rules of the court is: NEVER PISS OFF THE JUDGE.

You need to understand the judge's background. Judge Williams spent her first four years prosecuting money laundering and trying to break up drug cartels whose lawyers did the kind of legal garbage like WB is doing. Then she spent fifteen years defending people who were accused of bank fraud, where she was in charge of defending people, managing a group of about 100 other legal experts and helping them see through corporate and government loopholes.

She has spent almost all of her career trying to stop the corporations and the governments from abusing legal loopholes. This is one of her first cases as a judge, and even though she is going to try to be unbiased, her 30 years of experience in fighting exactly what the movie studios are doing is certainly going to be significant.

This judge knows the tricks. She has spent three decades fighting against exactly this sort of thing. Now she is a judge and it is her first big case.

Now understanding all that background, the judge has already dismissed the core of the lawsuit, the copyright infringement case. She spent 30 years fighting drug cartel financial lawyers and their loopholes, and when she sees the plaintiffs (Disney, 20th Century Fox, Universal, Columbia Pictures, and WB) I'm sure she still reads "cartel".

No, the movie cartel knows they're not going to fare well in the trial. If you read the docket on Justia you will see that they started out with broad accusations and claims and Hotfile was trying to block terms like "piracy" and "theft", and as the judge dismissed large swaths the studios became more and more defensive, and now they are doing everything they can to prevent the jury from learning the truth. Now it is the studios begging for words like "perjury" and "fraud" to not come out in trial.

My guess is that near the end of 2014, after the jury hears everything but before a penalty is assigned, the movie cartel will suddenly settle the lawsuit with undisclosed millions going to Hotfile in order to avoid a punishment.

Re:Oh Okay

[davester666]

People would like the randomly generated files more.

I didn't have sex with your wife

[sandbagger]

My wiener did. So, we're good, right?

They did it to me...

[Anonymous Coward]

They're totally guilty as charged. They attempted to take down a video that (kinda) had some of their content. The problem was, it was a lecture about fair use AND the topic was about a song that should have been a fair use of their content. The band had been sued by Island back in the early 90's and there were lots of issues with the way the whole thing went down.

Not good at all

[Tmann72]

"In that case, WB admitted that it filed a bunch of false takedowns, but said it was no big deal because it was all done by a computer." Tell that to all those people who lost their homes due to robosigning.

Re:Not good at all

[DickBreath]

If WB sends false DMCA takedowns (under penalty of perjury) but it is done by a computer, then it's no big deal.

But if Google returns search results, done by a computer, that might (but not even necessarily) lead to infringing material, it's a national emergency.

HEY! they're infringing on my business method pat

[Thud457]

PERJURY, with a computer!

Perjury?

[gstoddart]

Of course, it then came out that at least one work was taken down by a WB employee, and that employee had done so on purpose, annoyed that JDownloader could help possible infringers download more quickly.

Isn't making a false statement under the DMCA essentially like perjury? And if it is, why isn't someone being charged criminally?

It's gotten to the point where these companies ignore the letter (and intent) of the law at will, and with no penalty.

If your computer system is identifying incorrect stuff, your computer system is faulty. If your humans are illegally issuing take downs for stuff you don't own, that's a criminal act.

And don't tell me it's a civil matter, because the *AAs have gotten enforcement of this ramped up to a federal crime.

Re:The score so far

[DickBreath]

> Penalty for infringing on copyrights: uncounted billions.

Uh, excuse me, sir. It was $75 TRILLION. Not mere Billions. Google it: RIAA $75 TRILLION.

Oh, wait, but this is about movies rather than music. Nevermind. It's all okay then. :-(

This may be more than the global GDP, but music is worth it. If you FEEELTHY pirates can't pay $75 trillion because there's not enough wealth on the planet, then you shouldn't listen to the music. Better yet, all music should be locked up where nobody can ever hear it again -- to protect the artists.

Thanks for justifying my torrenting!

[Anonymous Coward]

Some days, I feel almost bad for torrenting. But then I see something like this and go back to my gleeful piracy.

Re:The score so far

[gstoddart]

I know, right?

I mean, I could have people over to my house and play music for them -- and I would be denying studio executives their huge compensation and causing the artists to have to eat their own feet in order to survive.

I could be really subversive and have people over to watch movies, and I would be robbing the studios blind.

My god, I need to go to my nearest Copyright Re-education facility and atone for my sins.

All I can say is it's a good thing we've got just and rational laws like the DMCA protecting us from people like me.

And yet most people here likely enjoy the movies

[ggraham412]

Just remember the next time you fork over $12 for a movie ticket, who are you supporting with that money.

Re:The score so far

[TheCarp]

I have a friend who has been in several not so famous bands. We worked together back when napster was still a place people went to get music.

His comment at the time was "if I found out someone had put my bands music up online for people to download, why I would hunt him down and shake his hand".

PERSPECTIVE

[AndrewOsiris]

Kill Michael Jackson: 5 years Pirate Michael Jackson music: 15 years