Judge Drops Key Claim In MPAA's Case Against Hotfile: Cyberlocker Didn't Directly Infringe
from the a-good-start dept
The MPAA has recently decided that "cyberlockers" are enemy number one on its most wanted list, even though they serve perfectly legitimate purposes. As something of a test case, the MPAA sued Hotfile (and its owner, directly) with an astonishingly weak case. After reading it, we were surprised that it didn't include more detail. The case seemed full of conjecture and claims that simply didn't match with reality. While I still think the main show is whether or not Hotfile is guilty of secondary infringement via inducement, the MPAA was certainly betting on a direct infringement claim to be a key part of the argument.Thankfully, the judge wasted little time in dismissing the direct infringement claims. The judge points out, as we did in our initial post on the lawsuit, that the MPAA's weak filing fails to point out any evidence of direct infringement:
"Nothing in the complaint alleges that Hotfile or Mr. Titov took direct, volitional steps to violate the plaintiffs' infringement. There are no allegations, say, that Hotfile uploaded copyrighted material. Therefore, under the great weight of authority, the plaintiffs have failed to allege direct copyright infringement."Where this becomes really important is that it means that Hotfile may be protected by the DMCA's safe harbors. Direct infringement isn't covered by the safe harbors. Now, the case will shift (among other things) to see whether or not (like YouTube and Veoh) Hotfile has correctly met the conditions to get safe harbor protection. Of course, it's entirely likely that the MPAA, in its quixotic quest, will appeal this particular part of the ruling, but next time, they should try to provide some actual evidence of direct infringement rather than just insisting that it must be true.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, cyberlocker, direct infringement, dmca, infringement, safe harbors
Companies: hotfile, mpaa
Reader Comments
Subscribe: RSS
View by: Time | Thread
Odd Wording
Violating an infringement? Were they accused of copying porn or something?
[ link to this | view in chronology ]
Re: Odd Wording
[ link to this | view in chronology ]
Re: Odd Wording
[ link to this | view in chronology ]
Re: Odd Wording
"to violate the plaintiffs' infringement
Violating an infringement? Were they accused of copying porn or something?"
That didn't make sense to me either. I don't know whether this is just sloppy reporting or if the Court simply doesn't know what it's saying.
[ link to this | view in chronology ]
This type of poorly supported lawsuit can happen when lawyers are too close to their client and start accepting their client's world-view as reality.
[ link to this | view in chronology ]
Re:
Isn't it great, one of those "how many lights do you see?" moments.
[ link to this | view in chronology ]
Re:
Wacky wording aside (I read it three times and it still didn't make sense) at least there is now a ruling against MPAA.
[ link to this | view in chronology ]
From the same article:
"Hotfile hasn't escaped all claims, however.
Judge Jordan denied its motion to dismiss a charge of secondary, contributory infringement and refused to let Titov off the hook from being personally liable for copyright infringement on Hotfile."
[ link to this | view in chronology ]
Re:
Judge Drops Key Claim in MPAA's Case Against Hotfile
Emphasis mine.
The judge dropped a KEY claim. Mike made that quite clear to everyone except you. Sorry.
[ link to this | view in chronology ]
Re: Re:
The judge here did not grant the motion to dismiss for secondary infringement. The judge is satisfied that inducement infringement, contributory infringement, and vicarious infringement have all been sufficiently pleaded.
I wouldn't try to spin this decision too hard as a victory for Hotfile--secondary liability will be their downfall, IMO.
[ link to this | view in chronology ]
Re: Re:
The business model of turning a blind eye to what you are selling (because in the end, they are selling access to the very content that is uploaded) isn't going to work out. Randomly checking 100 lockers with files over 500k will turn up significant amounts of infringing content. I would bet the number would be very close to 100%. It isn't as if there are a few infringing files and everything else is wonderful and legal. People aren't paying extra money to be able to download that 32k text file really fast, are they?
[ link to this | view in chronology ]
Re: Re: Re:
The same can be said of every web hosting company, and of every ISP. They are "Service Providers", get it?
"Randomly checking 100 lockers with files over 500k will turn up significant amounts of infringing content."
Ahh, so file size should help us indentify infringing files. Got it. Shutterbugs like me are screwed, because all of my digital photos are larger than your "500k" threshold, and roughly the same size as a typical MP3.
"I would bet the number would be very close to 100%. It isn't as if there are a few infringing files and everything else is wonderful and legal."
I'll take that bet. So how exactly is the service provider supposed to know what is or isn't infringing? If they find a backup of someone's legally purchased MP3 collection, should they just delete it because surely that guy must be filthy pirate?
"People aren't paying extra money to be able to download that 32k text file really fast, are they?"
So just how fast is YOUR internet connection? Still on dial-up I should hope, because only a filthy pirate would need anything faster than that.
[ link to this | view in chronology ]
Re: Re: Re: Re:
First off, I didn't say "all lockers", but rather a significant number.
You said: "I'll take that bet. So how exactly is the service provider supposed to know what is or isn't infringing? If they find a backup of someone's legally purchased MP3 collection, should they just delete it because surely that guy must be filthy pirate?"
Me: All sorts of ways. Example, if it is your backup, you would be the only one wanting to access it. If someone uploads a big file and suddenly it's downloaded by a bunch of different people from all over the world, perhaps you might want to check the content. It clearly isn't a "backup".
Heck, check the files names. hollywood_movie_dvd_rip_xvid.rar is sort of a dead give away, no?
You said: "So just how fast is YOUR internet connection? Still on dial-up I should hope, because only a filthy pirate would need anything faster than that"
Me: What a bizarre conclusion. My internet speed is about 30meg a second. It allows me to stream from legal sources (such as netflix) without issues. The is not relationship between the size of the files and the internet connection. The point is only that people aren't going to pay extra to a file locker site to download small files, only large ones. It's in the file locker site's interest to have large, popular files to encourage people to pay a premium.
Many of these file lockers use scams as well, making people break larger (DVD size) packages into multiple parts, and then blocking people from download more than 1 file per hour unless they pay. It's impressive to see how big their balls are doing this sort of thing.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
No. A lot of media viewing applications (e.g. Media Browser, MediaPortal, etc) use the information in the filename as a means of scraping metadata for the movie...
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Which is why link boards increasingly encourage uploaders to use file names like "dkk343.rar" which also encrypt the names of the files inside. How do lockers counter that? By demanding no encryption? Based on what law?
Many of these file lockers use scams as well, making people break larger (DVD size) packages into multiple parts, and then blocking people from download more than 1 file per hour unless they pay.
How can it be a scam when that's a known part of their business model? If you don't register but want to download for free, you can only do x MB/hour (unless you use downloader tools that get you a new IP, of course).
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
a) be FAR better; and
b) be more cost-effective.
And that would still have onyl a 95% accuracy rate. AT BEST>
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Also, why do I care if the MPAA/RIAA don't want to make their own cyberlocker for people to profit from?
Why should I care about these middlemen stepping over legal services, merely for wild witch hunts? Great, possibly 60%+ of the market is full of infringing files. But the demand is still there. The MPAA/RIAA is not fulfilling it. In fact, those pirates are doing so because they like to share or just because they think something is worth it.
If you want money from it, do it yourself.
Otherwise, if someone in France is denied access because of Hadopi laws, it may be time to review this copyright infringement battle you're fighting.
[ link to this | view in chronology ]
Re: Re: Re:
> will turn up significant amounts of infringing content
> People aren't paying extra money to be able to download
> that 32k text file really fast, are they?
What I find funny is how the copyright maximalists say conflicting things out of both sides of their mouth.
Sometimes they say things like "you have copyright the moment you hit the record button". And they challenge people to create their own valuable content. But then if they do create content (and valuable is in the eye of the beholder) then the mere size of the content or amount of traffic must necessarily be proof of infringement.
So developers create a Linux distribution. Because it is large, it is proof of infringement. Because the very reason bittorrent was invented was to distribute this content with the express permission of the copyright owner, is still proof that bittorrent is only for piracy. Because consuming or producing content generates lot of traffic, this is proof of infringement.
It's funny that just the other evening I saw a story on CNN about new artists bypassing the traditional labels to go straight to the consumer. The story talked about the fans financing production of the work. One artist raised significantly more than needed for her first album. The story talked about how artists can end up making money instead of ending up in debt to record labels.
Next up: if you use encryption, that is proof of infringement, terrorism, or worse. Think of the children!
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
Read, then spew your comment all over the internet.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
(1) Not my friends.
(2) Um. I point that out in the post.
[ link to this | view in chronology ]
Not to worry
A Mr. Jason Klammith (formerish MPAA web admin) was recently hired by Hotfile.com as a low level programmer. The mission he chose to accept was to infiltrate this pirate company to secure evidence that they are indeed harboring pirates, and making money in the process. He has been given 2 week to fufill this mission. If he has not been able to secure the evidence by that time he has been authorized to ensure that the evidence can be found. I will keep you posted on his progress.
Office of Clandestine Operations for the MPAA.
[ link to this | view in chronology ]
Re: Not to worry
This comment will self destruct in 5...
[ link to this | view in chronology ]
Re: Not to worry
No need for the undercover op. I had Peggy in Marketing upload a bunch of our stuff last week, I'll go "find" it next week. Hey, it's worked before!
Cheers,
Head of MPAA Legal
[ link to this | view in chronology ]
Re: Not to worry
[ link to this | view in chronology ]
Don't worry...
[ link to this | view in chronology ]
Re: Don't worry...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
As the court here notes: I think at most--and at least--Hotfile is secondarily liable.
[ link to this | view in chronology ]
Re: Re: Re:
I was just surprised by it, since I hadn't read any of those other cases regarding volitional conduct and automatic copying systems.
I suppose it's sort of like Kinko's offering a copier to a user, except Kinko's sets the parameters and says "everything will be copied 5 times even if you only care about one copy."
[ link to this | view in chronology ]
Re: Re: Re: Re:
I was just surprised by it, since I hadn't read any of those other cases regarding volitional conduct and automatic copying systems.
Gotcha. I think a key case to read on this point is Netcom: http://www.law.cornell.edu/copyright/cases/907_FSupp_1361.htm
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re:
Thanks for posting that link.
[ link to this | view in chronology ]
Re: Re:
Sure thing. I'm loving the RECAP plugin and archive. Saves me a lot of dough.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Real World Analogies
I hope we can all agree that the Owner of a self storage service should Co-Operate with law enforcement if they have a search warrant. However shouldn't allow 3rd parties access to the units because they feel aggrieved with the client of the unit. And finally defiantly shouldn't be responsible for anything illegal stored in the unit.
I think that is a pretty fair comparison to what Hotfile is doing here. But the metaphor doesn't translate to the sorts of services that want to index your music files, then provide you with access to them via a streaming service where the server only holds one copy of the media.
My modified analogy is a bank. Someone turns up to store an object. The service (in this case the bank) inspects it, validates it, then keeps a record of it being stored. Then the client some time later goes to use the object they are given another one, very similar to the first but not the same one.
I feel the that essentially the locker services that run an index like that are becoming the banks of digital files, and as such we should be looking at banks for a starting point to the obligations / limitations of obligation to ensure that the data submitted to them is legitimate.
[ link to this | view in chronology ]
Re: Real World Analogies
In part, their problem comes because they don't block bots from seeing what is in each locker. They should be no-index to all bots, because the contents of a storage locker should be private. But clearly it is not.
The file lockers fail on so many levels, it is clear what their business model is, hopefully the judge comes to understand it and shuts them down, sending some of those "chilling effects" out there to the pirates.
[ link to this | view in chronology ]
Re: Re: Real World Analogies
[ link to this | view in chronology ]
Re: Re: Re: Real World Analogies
[ link to this | view in chronology ]
Re: Re: Real World Analogies
[ link to this | view in chronology ]
Re: Re: Real World Analogies
Don't confuse the two.
A locker is not a distribution service.
A service is one or the other. If it distributes, then that makes it not a file locker.
Have you ever had a locker at school or in a gym? Do you understand what a locker is?
[ link to this | view in chronology ]
minor correction
[ link to this | view in chronology ]
minor correction
[ link to this | view in chronology ]
[ link to this | view in chronology ]