Details Of The Rapidshare Decision: No Search Engine, Plus Efforts To Takedown Copyright Material Helped

from the but-it's-not-a-complete-win dept

Fri, May 21st 2010 2:22pm — Mike Masnick

Earlier, we wrote about the ruling against Perfect 10 in its attempt to get a temporary restraining order on Rapidshare. As we mentioned at the time, the only details we had were based on Rapidshare's press release, that obviously presented it in the best possible light to Rapidshare. Thankfully, Christopher Harbin alerted us in the comments that he's posted a copy of the ruling and written up his own analysis. First, here's the ruling:

From the initial statements about the ruling from Rapidshare, saying that it could not be infringing since it was just the host, I had naturally assumed that the court found that Rapidshare was protected by the DMCA's safe harbors. But that is not the case. In fact, the court basically tosses out Rapidshare's safe harbor claim, because Rapidshare (bizarrely) has never set up an official DMCA agent -- which is necessary to qualify for the safe harbors. I would guess that Rapidshare's excuse for not doing so is that it's not based in the US, but if it's going to deal with lawsuits in the US, it's crazy not to have set up a DMCA agent (a very simple process).

That said, there are some interesting things (not all good) in the ruling. There were a few things that helped Rapidshare here. First, is that it does do things to takedown content it believes to be infringing. Second (and perhaps most interesting) is the fact that it does not index or promote the content stored on its service by itself. Since most file sharing services include a search engine aspect, the court concludes that this is a key element of suggesting that Rapidshare is not liable for direct infringement. That's an interesting ruling that could answer the question I've asked before about whether or not it actually is possible to create a site that allows for sharing of files that does not run afoul of the Grokster inducement rules.

The other thing that helps Rapidshare is that, despite being involved in a whole bunch of copyright cases, it still appears that Perfect 10 is somewhat incompetent in understanding copyright law and availing itself of tools to deal with infringement. In this case, Perfect 10 didn't send Rapidshare the specific links where infringing content existed. It just sent the company a bunch of files, but Rapidshare had no way to match those files to ones hosted in users' lockers. Even then Rapidshare still did try to find as many of the images as possible, even going so far as to do Google searches, and delete them. On top of that, Rapidshare has a tool that lets content owners indicate if certain files are infringing. Perfect 10 chose not to use that.

The one part of the ruling that I found troubling, however, is that the court did say that, even without being alerted to what's infringing, Rapidshare did have "specific knowledge" of infringing works on the site. This is a key point of dispute in the Viacom/YouTube case, where Google makes the argument that there's no way for it to know which works are really infringing and which are there on purpose. Yet, in this case, the court says that the service provider does have specific knowledge:

Thus, it appears that specific knowledge of direct infringement may exist even where an operator does not have information that would allow it to search its contents and distinguish infringing from non-infringing materials. Here, RapidShare received notice of hundreds of copyrighted Perfect 10 images that were found on its servers. The Court therefore concludes that RapidShare had actual, specific knowledge of direct infringement.

Basically, it says that because Perfect 10 alerted Rapidshare to infringing content, then Rapidshare has "specific knowledge." That wasn't enough to meet the full inducement standard, so isn't a huge issue here, but that logic seems wrong to me. If that's all it takes to create "specific knowledge," then lots of user-generated content sites could be in trouble. So, if you want to cause trouble for any UGC site, you just upload content, and then alert the site that there is infringing content on the site, but don't tell them where it is or how to find it. I don't see how that's "specific knowledge" at all, but the court felt otherwise.

Finally, while I appreciate Christopher's analysis of the ruling, I have to disagree with his first two points. He doesn't understand why not having a search engine matters:

Although Rapidshare does not index its files, it basically punts indexing to third-party websites. It’s trivial to find infringing material hosted on Rapidshare and other file-hosting sites and I’m not sure why dicing up storage and indexing into separate entities which obviously have a symbiotic relationship should be able to avoid liability.

I think that's a slight misread of the ruling. It's not saying that Rapidshare gets to avoid all liability. It's just that it takes away Rapidshare's direct infringement liability, because it is not, in fact, setup to make it easy for people to find that content. The fact that others have made it easier to find that content should not be blamed on Rapidshare.

Second, Christopher notes:

I'm not at all convinced that in all cases plaintiffs should be forced to ferret out all infringement on a defendant's website. As the law stands right now, copyright holders have to employ an army of people to constantly monitor defendant's site for infringement.

To which the obvious response is, why should that burden fall on the defendants? If it takes plaintiffs "an army of people," it would actually take the defendants significantly more than that, complicated by the fact that the defendant has no way of knowing if the content has been uploaded legitimately or is an infringing copy.

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Filed Under: copryight, dmca, infringement, liability
Companies: perfect 10, rapidshare

20 Comments

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Rex, 21 May 2010 @ 2:34pm

Why the screwy display of the ruling?
Why not the PDF, exactly as issued, without the nasty wrapper? Why not a link to the PDF on some public site? Why?
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- Mike Masnick (profile), 21 May 2010 @ 2:51pm
  
  Re: Why the screwy display of the ruling?
  Why not the PDF, exactly as issued, without the nasty wrapper? Why not a link to the PDF on some public site? Why?
  
  Um. Blue link that says "posted a copy of the ruling" is, in fact, the PDF. Also, the DocStoc setup has a link that clearly says "download." So it's there twice.
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  - Anonymous Coward, 21 May 2010 @ 3:09pm
    
    Re: Re: Why the screwy display of the ruling?
    I think he was making a joke that you should have hosted the doc on rapidshare.
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- paperbag (profile), 21 May 2010 @ 2:56pm
  
  Re: Why the screwy display of the ruling?
  I also don't get what is 'screwy'. It looks like any other document viewer online to me. The document is easy to read without needing any other software.
  
  Tho, after Mike's response, I'm guessing you wish you didn't even say anything at all?
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  - Chargone (profile), 21 May 2010 @ 9:49pm
    
    Re: Re: Why the screwy display of the ruling?
    actually, the document viewer is just a brown box for me, so obviously that one's not working for everyone.
    
    not that i mind, i tend to skip over the documents myself...
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Anonymous Coward, 21 May 2010 @ 3:07pm

I thought the terms "specific knowledge" and "general knowledge" arose directly from previous rulings in which those terms were unambiguously defined, but this ruling suggests otherwise. It does seem very troubling.

It also seems like an easy way to force companies to waste money and resources money by making them look for items among their own content that may not even exist. I could see media companies uploading as much data as possible through shills, subtly obfuscating it in a number of ways, then sending mass notices without any location info simply to tie up the hosting company in court, force them to waste money, and exert pressure to capitulate to legal agreements.

What? Viacom's already doing this? My bad...

Official Notice: Some of your bits are infringing. Which bits? That's for you to find out! Change them or we'll see you in court.

Have a nice day
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Anonymous Coward, 21 May 2010 @ 3:13pm

waitwaitwait
So the party that's asserting the presence of infringing material should not itself have to demonstrate both what and where it is, just because it's such hard woooooooooooork?
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- Anonymous Coward, 21 May 2010 @ 3:21pm
  
  Re: waitwaitwait
  It's just a district court, it doesn't really matter in common law.
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Darryl, 21 May 2010 @ 5:44pm

Reporters are not experts, very true.
"And, many people also recognize that most reporters themselves are often not experts in the field they're reporting on "

Perfect, and many examples of this effect can be found on this web site !

The difference is most take the time to get familiar with the subject matter, or do the necessary research prior to writing.

But Mike, for you it's an impressive introspection :)

And some, well,,,, dont..
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- Anonymous Coward, 21 May 2010 @ 6:01pm
  
  Re: Reporters are not experts, very true.
  Yes indeed. That's what the community is for - to identify the inconsistencies and to inform Mike of details that were not included in his write-ups.
  
  Of course, many people prefer to be generic, and wildly throw accusations around without any specific details.
  [ link to this | view in chronology ]
- Anonymous Coward, 21 May 2010 @ 9:21pm
  
  Re: Reporters are not experts, very true.
  It helps to actually be relevant/specific when trolling.
  [ link to this | view in chronology ]
PiGuy314, 22 May 2010 @ 11:51pm

It's patently ridiculous for the court to suggest that rapidshare is ineligible for safe harbor protections under DMCA because they don't have a "DMCA agent" registered with the copyright office. It's obvious that rapidshare provides reasonable and appropriate information on how to contact their abuse department. It would be one thing if they intentionally obfuscated the process and made it difficult to find this information but it took me all of 3 seconds to find this page: http://rapidshare.com/abuse.html

To be fair the court did not actually rule one way or the other on the DMCA issue, they simply said they felt rapidshare was "unlikely to succeed" in using the safe harbor affirmative defense, but still very worrisome.

As to the issue of "specific knowledge" this too seems like a stretch. Being notified that there "is infringing content on your network" seems much more akin to GENERAL KNOWLEDGE to me, specific knowledge would be more along the lines of LOCATION of the infringing content on your network. In this matter the court seems to contradict itself since they find that rapidshare is not guilty of distribution or direct infringement because they do not know or make available the locations of specific files yet despite this fact finds them to have specific knowledge of infringing activity.

Thankfully the court did NOT find that they were guilty of contributory infringement (of which the specific knowledge of infringement was a pertinent fact) because rapidshare had taken "simple measures" to prevent infringement:

Considering the evidence submitted by the parties thus far, the Court concludes that Plaintiff has not shown that RapidShare is failing to take simple measures to prevent further damage to Plaintiff’s copyrighted works. Rather, the evidence suggests that RapidShare is using information provided by Plaintiff to locate and remove infringing materials, and is also taking independent steps to identify, locate, and remove infringing files. Accordingly, the Court concludes that Plaintiff has not shown that RapidShare is contributorily liable for copyright infringement under the standard announced in Amazon.com,

So if rapidshare had known there were infringing files on their service, even if they did not know the specific locations of those files, and had failed to take any measures they likely WOULD have been found to be guilty of contributory infringement.
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crimping tools, 23 May 2010 @ 2:05am

crimping tools
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Manufacture crimping tools, wire stripper, cable cutter and hydraulic tools.
http://www.fivestar-tools.com
Manufacture hydraulic crimping tools, gear puller, cylinders, pipe bender, hole digger, busbar processing machine, hydraulic pumps,wire stripping machine and hydraulic hose crimping machines.
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Anonymous Coward, 23 May 2010 @ 9:29am

If one can go to a third party site and search for hosted files that clearly comprise illegally uploaded content, I have to wonder just how difficult it would be for RapidShare to have an internal search engine not available to the public, but useful for RapidShare to itself find such content.

One can easily search the net and find RapidShare generated URL's associated with files that only one intellectually challenged to the point of having the IQ of a rock would fail to realize is illegal content. Seriously, a URL having in its title "Adobe Photoshop CS5 plus keygen, crack, and working serial number" is much more likely than not to actually have such a file being hosted. Could it be a phony title? Perhaps. Is it likely a phony title? Probably not. A simple download of such files tends to demonstrate time and time again that such titles are almost universaly reflective of the associated work.

RapidShare does appear to follow practices responsive to notices that identify such files with sufficient specificity that they can be found and examined, but this alone does not necessarily address RapidShares "Achilles' Heel".

Yes, RapidShare does follow an approach that serves to reduce its exposure to legal claims associated with copyright infringement, but its approach if far from bullet proof.

If copyright holders do in fact have the ability to scour the internet for infringing material hosted on RapidShare, as well as a the presence of a take down tool, it is hardly a stretch that the site employ an automated system performing both these functions without human intervention.

What I find particularly sad it that sites like RapidShare and a few of the myriad of torrent search engines constantly find themselves in the "copyright bulls-eye" precisely because so many persons using them seem unable or unwilling to conform their conduct to the requirements of law.
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- PaulT (profile), 24 May 2010 @ 5:55am
  
  Re:
  I think the problem isn't the ease of finding files. The problem is that doing this manually would be an extremely time-consuming and expensive process and you'd never be able to remove every single infringing file - anything removed would be quickly re-uploaded with a fake filename. If the process was done automatically, you'd still never find everything, and the risk of removing false positives would be huge (and cause legitimate users to quit using it).
  
  On top of that, having such a process in place would make the company a prime target for lawsuits regarding anything not found and removed, and they would probably have a less compelling defence than they have now.
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Anonymous Coward, 23 May 2010 @ 10:44am

'To which the obvious response is, why should that burden fall on the defendants? If it takes plaintiffs "an army of people," it would actually take the defendants significantly more than that, complicated by the fact that the defendant has no way of knowing if the content has been uploaded legitimately or is an infringing copy. ' - this is where you always tie yourself in a knot mike, because you dont see the obvious:

who is running a business based on infringement? it isnt the copyright holder. it is the file share site, which profits from the sharing of content. who else should be responsible? if they want to be in the file sharing business, the risk of illegal content being shared is part of the business, and the costs related to stopping it part of that business.
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- romeosidvicious (profile), 24 May 2010 @ 9:02am
  
  Re:
  The law doesn't agree with you. In fact the law provides safe harbors for those who provide spaces for users to put up content. Rapdishare is not run like any of the other businesses who have been sued for copyright infringement. By the current measures they are not inducing infringement. They even take down copyrighted content when notified and do so in a timely manner. They are providing a service and nothing more. Rapidshare's business is not based on infringement regardless of what you might think. There is legal and infringing content on the site and the site operators do not even offer a way to search the site nor do they promote any of the content available. They provide a service and the law says that they don't have to take on the burden of policing content.
  
  They may not have DMCA agent registered, I don't doubt they will soon, but they do respond quickly to being notified of infringing content.
  
  Here's the point you miss: They don't know what is infringing and what is not. They don't know who works for company X and is authorized to post their content or who doesn't. It is not possible for them to police infringement based on that alone which is why the legal burden, outside of inducing infringement, is not on the service provider but rather the rights holder. The service provider simply has no way of knowing. And since Rapidshare isn't inducing infringement they win. The risk of illegal content is a factor in the file hosting business but since they host cannot know what is infringing and what is not then they cannot be required to police it. As long as they remove content when notified, a morally questionable practice in my opinion since it steps around due process, they are not liable.
  
  Guess you missed how the law actually works.
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Anonymous Coward, 23 May 2010 @ 12:28pm

Hilarious!
To which the obvious response is, why should that [unauthorized content policing] burden fall on the defendants

BECAUSE THEY ARE THE ONES MAKING MONEY FROM IT!

Rapidshare wants all of the benefits and none of the responsibility.

And as usual, you take on the role of their tin pot mouthpiece.
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Anonymous Coward, 24 May 2010 @ 2:10pm

Rapidshare's business is not based on infringement regardless of what you might think.

LOL!
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David Weiskopf (profile), 28 May 2010 @ 9:17pm

Is RapidShare Really Different? US and German Courts Seem to Think So
See http://weiskopf-iplaw.blogspot.com/ for more.
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