MPAA Files Surprisingly Weak Billion Dollar Lawsuit Against Hotfile
from the you'd-think-there'd-be-a-bit-more-'there'-there dept
Hotfile, one of a number of cyberlockers out there, has been in the news increasingly lately, as various entertainment industry firms have been attacking it as one of the more popular cyberlockers. It appears that the MPAA and its whole content protection staff finally decided to go beyond complaining and actually sue Hotfile, asking (of course) for the maximum $150,000 in statutory damages for each infringing file it found on Hotfile.The full lawsuit is embedded below, but what shocks me is how weak the case appears to be. Nearly the entire lawsuit is based on innuendo and insistence that perfectly reasonable practices couldn't possibly have legitimate purposes. Hotfile acts as a cyberlocker -- a service that has perfectly legitimate purposes for sharing large files. The MPAA tries to spin the fact that Hotfile charges subscription fees for premium services as nefarious, but that's ridiculous. Hotfile -- like other cyberlockers -- is offering a service in which it pays for all of the bandwidth and storage costs upfront. Offering premium accounts for faster/better service is the very basis of the whole "freemium" model. It does not automatically imply, as the lawsuit suggests, that the company is inducing infringement. The MPAA also tries to make it sound nefarious that Hotfile encourages people to upload stuff that is downloaded more widely, but again that's the whole point of the service. No one ever said that cyberlockers are for personal backup, but they're designed to act as a service for distributing content. And, of course, encouraging people to use it in a way that gets more attention makes perfect sense, but does not automatically imply inducement to infringe.
The most ridiculous section, of course, is where the MPAA lists out all the things that Hotfile could do to reduce infringement -- such as only letting people with accounts download. But the MPAA ignores how that would defeat the legitimate purpose of a service that allows anyone to distribute legal content quickly and easily. It also notes that Hotfile does not use any copyright filters, but there is no law requiring that it has to.
And that's really the biggest problem with the lawsuit. Basically, the MPAA and the big studios it represents have decided they don't like the fact that Hotfile isn't protecting their business model and have decided that, therefore, it must be illegal. But that's not how the law works. It's entirely possible that a court will get blinded by the "but... but... piracy" aspect of this lawsuit. But looking through the details, I'm really shocked at the lack of any actual evidence for direct or contributory infringement. Instead, the crux of the entire lawsuit seems to be: (a) Hotfile makes money (b) people use Hotfile for infringement (c) Hotfile doesn't do the things we want it to do to stop infringement. What the MPAA glosses over is the fact that it appears that Hotfile does, in fact, respond to DMCA takedowns and removes the files in question.
Frankly, I'm surprised. I knew that the entertainment industry would get around to filing lawsuits against cyberlockers, at some point, but I figured they'd have at least something more compelling than "but... but... piracy."
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Filed Under: copyright, cyberlockers, filesharing, hollywood
Companies: hotfile, mpaa
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And it does seem that Hotfile responds to take-down notices as it's getting harder to find "working links" and, therefore, "stopping piracy".
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Does that make them "but" pirates?
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The complaint is actually very strong, and rather damning.
The exact opposite of what Masnick writes above.
Why is that Mike tries to spin it otherwise?
Because he's the biggest piracy defender on the net.
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- But but we can't, no matter what we do they will just work around it
Well we can try goddamit.
Someone play the national anthem while I go down with the ship.
- You could just get in the lifeboats and go over to that bigger ship over there.
- I see no ship.
Are you serious? there's bands, fireworks and a free buffet!
Just there, aw come on just look.
- Free is morally bankrupt
At least let the rest of the crew and passengers go.
- No, and shoot those who try to use the lifeboats.
Oh bother
- Gurgle
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... to screw it up!
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Nor do they have to. The DMCA does not apply in Panama, but yet they do comply with the takedown notices anyway.
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counter slapp lawsuit in 5...4...3..
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Damn those
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Re: Damn those
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Sounds a bit familiar.
"We're gonna rip your balls off, so you cannot contaminate the rest of the world!!!"
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Does it really have to be strong at this point?
As weak or even frivolous as the lawsuit may seem to you, I suspect it'll turn out to be adequate for getting such a subpoena, and the ultimate strength of the suit will depend on what the subpoena turns up.
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Re: Does it really have to be strong at this point?
Hotfile Corp.
34-20 Calle 34
Panama City, 5 PA
The MPAA's jurisdictional claims may not be as strong as they wish them to be.
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Re: Does it really have to be strong at this point?
As weak or even frivolous as the lawsuit may seem to you, I suspect it'll turn out to be adequate for getting such a subpoena, and the ultimate strength of the suit will depend on what the subpoena turns up.
I just read through the complaint and did some surfing to check out the Hotfile search sites, and two words popped into my mind: willful blindness. I don't think the complaint is weak at all, despite our pirate-apologist host's claims otherwise, and I fully expect Hotfile will lose this case no matter their emails say. Hotfile knows damn well that their site is all about piracy. The court will know that too. I'm actually LOL at Mike's attempt to defend these people. Good grief, Mike!
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Re: Re: Does it really have to be strong at this point?
This will go down much like the Rapidshare case with a big LOL on you, the MPAA, and that other AC shill.
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Hosting a file is about providing access. If I pay for an account at host X and put up a website, I am the one paying for the content to be delivered. What Hotfile is doing is charging to received the file. That implies value in the received file (because you would have to know what you are getting before you pay for it, right?). The only reason people would pay for a download is if there is something of value to them.
(oh yes, before anyone goes there, I know a video of Grandma on vacation can have value... but then again, you would just email that).
Hotfile's business model is entirely based on the content uploaded to be valuable enough for people to pay to get. The most valuable content is what cannot be had any other way, or cannot be had for that price.
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Think of it as a VIP pass to the download line. You pay the fee, you get to go to the front of the line. Since they have an infinite supply, as long as you're patient, you'll get your copy.
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That seems pretty much like profiting from piracy to me. :)
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hotfile (and other locker companies) specifically profit on download. It is against their economic benefit to be strict in checking files for copyright material. In fact, if they have tons and tons of copyright material that people really want, they will get a ton of traffic to it. So there is little to make them want to control what is on their servers.
An ISP provides only the connectivity to the internet cloud. They don't profit specifically from holding copyright files and charging you to get them. You may do so (using P2P, example), but it isn't the main thrust of their business.
I am sure that hotfile (and megaupload, and others) know which files are getting many downloads, and could easily check them (grandma's video isn't going to get 5000 downloads... but a copyright movie posted on a chat board might).
Willful ignorance is like consent, turning a blind eye while you rake in the cash.
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As Judge Posner explains:In re Aimster Copyright Litig., 334 F.3d 643, 650 (7th Cir. 2003)
Once they knowledge and do nothing about it, they lose their safe harbors under section 512(c)(1)(a). Without the safe harbor, liability is practically certain.
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http://homepages.law.asu.edu/~dkarjala/cyberlaw/inreaimster(9c6-30-03).htm#Document1z zHN_B9
Completely different situation. From Veoh:
http://docs.justia.com/cases/federal/district-courts/california/cacdce/2:2007cv05744/395693/57 5/
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Frankly, Hotfile sucks if you're not a paying member. The downloads are pathetically slow, to the point where a file you should be able to download in just a few minutes can take an hour or more. Then there's the long wait times between downloads, the fact that you can't resume broken transfers, etc. Unless it's the absolute only place to get something I really want, I avoid Hotfile like the plague.
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But we'll still count it in bogus piracy stats
*pick your adjective based on the service and your personal prejudices.
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Re: But we'll still count it in bogus piracy stats
http://documents.envisional.com/docs/Envisional-Internet_Usage-Jan2011.pdf
Hardly surprising that they're being sued.
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Re: Re: But we'll still count it in bogus piracy stats
Hardly surprising that an industry commissioned study would support the same industry's claims.
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That's why they're being sued.
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Uh huh...
A pirate trying to pretend piracy isn't happening. Very amusing. Thanks.
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Re: Re: Re: Re: Re: Re: But we'll still count it in bogus piracy stats
Please quote me where I say "I'm a pirate". Then quote me where I say piracy isn't happening. All I said is the study's numbers are likely bogus, like typical Hollywood accounting.
I run a perfectly legitimate business doing live video shoots for bands at reasonable prices, usually for smaller bands that can't afford a full production video shoot. Often they are bands that are just passing through and I use these services to pass the edited/finished video to them. These files are never indexed or posted publicly, so obviously there's no chance of them being accounted for in some ridiculous sample like that. I've also used them to send personal videos to family and friends. So who the fuck are you to judge me?
Now again... Since file hosters don't provide an index to what files they all host, where exactly did these "random" samples come from and how can anyone reasonably accept these numbers as fact? In fact they couldn't be very random at all if all they did was go to some 3rd party site designed for infringing purposes and pull samples from there. Then of course the numbers would be skewed to reflect the numbers they desire.
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start there. Enjoy yourself. 14.8 million results. You can just take the first 2000 if you want to try to figure it out yourself.
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If it's meant to prove the claim that "3/4 of cyberlocker files were found to be infringing" it failed big time. Just a quick glimpse, er random sample, at the first ten pages and I'd say the number the MPAA could make a claim on would very significantly lower than that.
In a blanket sense, the number would still be wrong the way the law stands now, because if I make a recording of some 10 yr old banging on some pots and pans, I own the copyright on that. So then 100% of everything is copyrighted.
If your just trying to prove there's a way to use a 3rd party site to provide a list of files... between user uploads, user deletions, DMCA takedowns, files that may expire due to inactivity at any given moment... the list means nothing. It changes by the minute and between the time Google loads the page and you try to download the file it may be gone. How often is it updated? Real time? Hourly? Daily? Weekly?
You've proved nothing.
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Oh right, you won't be satisfied until the internet just goes away.
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Sites whose activity is mostly illegal? Screw them.
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Maybe they are trying the "extortion" route?
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Desperate house lawyers ...
The one reason I failed to mention was the glut of lawyers and a simple comparison between the real estate bubble and the lawyers involved. Since the failure of the real estate market, and much like a plague of locusts, lawyers are descending on the IP industry to make an easy buck. During the real estate bubble they created elaborate legal contracts, and schemes to generate wealth. It ultimately got to complex and failed.
Much like the real estate bubble, this bubble is getting over extended in its complexity. It is destined to fail.
Failure is 2-4 years away.
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Similar to how Viacom is suing YouTube.
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But then I remembered who you are.
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My explaination is that their business model is such that they are attempting to grow their users base exponentially and infringement happens to be a side effect.
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You must be new here. Not to worry, you will soon find that Mike Masnick defends all piracy, whatever the circumstances are. Whatever the enforcement scenario, he'll find some delusional reason for thinking it's wrong.
He's the biggest piracy apologist on the net.
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Having read your comment, I am a bit confused why the author of this comment failed to read beyond the title and then bitched about it.
Try reading the post next time. It helps.
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There is not the slightest bitching in the post. The article provides little substance addressing each of the fact contained in the complaint. They are far from being based upon inuendo based upon inuendo.
What I found most surprising of all is the business model adopted by the site, and the rejoinder here that in essence states "but the site does have legitimate uses". Of course it does, but the manner by which the site is allegedly structured appears to demonstrate that those who engage in legitimate uses almost certainly are overwhelmed in number by those engaged in illegitimate uses.
Fortunately, courts tend to align themselves with what is actually going on versus musings about how it might be legitimately used.
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So there you have it. How does the US have jurisdiction? How do they plan on enforcing any judgment rendered on a foreign national?
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There is not the slightest bitching in the post. The article provides little substance addressing each of the fact contained in the complaint. They are far from being based upon inuendo based upon inuendo.
What I found most surprising of all is the business model adopted by the site, and the rejoinder here that in essence states "but the site does have legitimate uses". Of course it does, but the manner by which the site is allegedly structured appears to demonstrate that those who engage in legitimate uses almost certainly are overwhelmed in number by those engaged in illegitimate uses.
Fortunately, courts tend to align themselves with what is actually going on versus musings about how it might be legitimately used.
Exactly! This is the thread-winner. What's this article lacks in substance, it makes up for in unintentional humor.
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Should have read "...as thoughtfully prepared and mindful of the all too predictable response under FRCP 12(b)(6)...
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As many have noted in the Slashdot thread on this lawsuit, where Hotfile may have issues is that they give "rewards" to the uploaders with more downloads of their files.
This means that people who upload the most desired content will get things like premium access for downloading. Since the most broadly desired content does tend to be "big company media", if Hotfile in any way admits that MPAA-copyrighted content is "very desirable", they might have an issue with contributory infringement.
Also, since the daily download limit for free accounts is very small compared to the size of most movie or music files, and if infringing files make up the majority of "files too large to download with a free account", Hotfile might be seen as requiring people to pay for access to these files.
I don't think the MPAA will get anywhere with this suit, but Hotfile has some policies that makes it a little different from some of the other "digital lockers" which do seem to encourage the upload of infringing content.
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Outlawing Farms
Someone comes and plants some marijuana in a farmers corn field, the farmer didn't know.. according to you all of the farmers crops should be burned. Just because it CAN be used for bad, doesn't make it bad.
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Re: Outlawing Farms
No?
Then your analogy is fucking retarded.
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see how far that MPAA can harras , or MPAA just wipe their butts and knees down and pray
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Re: Re: Outlawing Farms
Just like your 3/4 claim.
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DMCA
To deny hotfile's ONLY defense: that it is protected by the safe harbors of the DMCA.
Every one of those points is aimed at proactively cornering Hotfile and slamming them up against a wall when they claim they are protected by the DMCA.
No repeat infringer policy, affiliate program which encourages infringement AND through these affiliate uploaders enables Hotfile to make more money: Another big no no as per DMCA. Legitimate Use: the basic requirement of being considered an ISP.
This was not weak...it just needs to be read by a lawyer and you will understand.
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Re: DMCA
Of course, many who may provide rejoinders here will proclaim "but it does not provide proof", which not only ignores notice pleading (plus at least some modicum of relevant factual allegations), but manifests a fundamental misunderstanding of the role played by a complaint under our rules of federal and state civil procedure.
Quite frankly, and as I noted above, 12(b)(6) will likely prove to be a very difficult defense to successfully assert.
This complaint was certainly not prepared casually, is certainly not weak as the author states, and the basis for the court to exercise in personam jurisdiction against all of the named defendants is well presented.
I believe the same can be said for each of the stated causes of action.
I find it unfortunate a site that examines an affidavit by and ICE agent to secure a seizure order in exacting detail has chosen to forego a similar analysis of the allegations in the complaint. Instead, it resorts to broad hand waving almost entirely. If anything is weak, it is the statement here by the author that the complaint is weak. This hardly seems to be the case.
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changing format
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