Google Defends The DMCA's Safe Harbors Against The MPAA's Attempts To Reinterpret Them In Hotfile Case
from the reasonable-brief dept
We've noted that the MPAA's case against Hotfile is surprisingly weak, and seems to be arguing that usage alone is proof of Hotfile's complicity in any infringement done by users. This is a strange argument, which is more smoke and mirrors than anything legit. It's as if the MPAA believes that if it just screams "but... but... piracy!" loud enough, the judge will forget to look at the actual law. However, in a bit of a surprising move, Google is trying to step in and inform the judge on one key piece of the case, with an amicus brief.At issue is the standard used to judge whether or not the DMCA's safe harbors apply. Obviously, Google has a vested interest in having previous court rulings on the DMCA's safe harbor followed in this case, not just because those rulings protect Google, but because they're the only way the DMCA actually makes any sense. Google's argument is pretty clear and well-argued: as the DMCA safe harbors themselves, the massive DMCA caselaw and the Congressional history of the DMCA all show in pretty great detail, to lose the DMCA's safe harbors, a company has to have specific knowledge of infringement, not just general knowledge that its tool is used for infringement. The MPAA's argument is effectively the opposite -- and is completely nonsensical: that if it can show that enough people infringed, then it should be assumed that Hotfile could have stopped the infringement. As the Google argument explains simply, that's a clear distortion of the law. In fact, they point out that the MPAA is so far off the reservation on this one that it can't even find DMCA cases to support its position, instead choosing two cases that have nothing to do with the DMCA.
Amusingly (and ridiculously), the MPAA is so freaked out about Google explaining the law on this one key point that it's asking the judge not to allow the brief, suggesting that rather than providing a separate third party view, Google's brief is really just re-arguing Hotfile's position. That's an argument that makes little sense, though. Google's brief is pretty narrowly focused on just one key issue in the much larger case surrounding Hotfile: it's merely asking the court to make sure it follows the same standard used in most other courts in the country. It makes no specific statements concerning Hotfile's actions at all. The issue Google raises is important because this court and this Circuit have not specifically ruled on the DMCA safe harbors -- a fact you can bet the MPAA knows well. No doubt, the MPAA is hoping that a different ruling in this case can lead to split that would (it hopes) lead to all of those many other DMCA rulings protecting safe harbors being overturned.
I'm sure that some simplistic commenters may try to summarize this case as Google defending Hotfile, but the specifics of the filing make it pretty clear that's not what's going on at all. It merely points out the well accepted standards and practices for removing DMCA safe harbor protections -- which are quite different than the interpretation of the safe harbors that the MPAA gave the court in its motion for summary judgment.
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Filed Under: actual knowledge, dmca, red flags, safe harbors
Companies: google, hotfile, megaupload, mpaa
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Someone trying to educate the MPAA.
Let's watch it go right over their heads faster than the speed of light.
I'll get my spedometer!
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If, by shit-storming you mean the resurrection of lunacy such as SOPA and PIPA I'd suggest to you that a move like that is radioactive at least until after the November US elections. Even then, the "content" industry and the politicians made a serious mistake in under-estimating the power if the Internet when it comes to wake up grass roots movements. The "content" industry may make that mistake again but I doubt the politicians will particularly if it costs one or two of them their seats.
If the amicus brief, and I haven't read it yet, is as narrow as Torrent Freak and Mike say it is and it isn't accepted on the grounds that it's too broad or essentially re-argues Hotfile's case for them then I can see the grassroots movement firing up again. Either way, I see no political storm building until after November and maybe not even then.
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They also could use their ad-tracking system to ensure that artists actually get paid fairly for signing with them and revolutionize the industry.
This seems a lot easier than what they are currently doing.
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I was actually hoping Google would buy EMI, for exactly those reasons. Alas, it was not to be.
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Google buying Viacom
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If they're "aware" of this, it's because media giants like Chris Dodd and Rupert Murdoch are deliberately pushing this particular talking point, in a smear campaign against anyone who threatens their anti-internet stance.
Never mind that it's a load of bullshit. Take AdSense. None of the major "pirate sites" (Megaupload, Pirate Bay, etc) use AdSense. Google's policies specifically disallow placing ads around unlawful content. And rights holders can issue DMCA complaints for AdSense ads on pages with infringing content.
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Admit it, the *AAs couldn't organise a piss-up in a brewery, especially not without needing separate, conflicting licences to enter, take part, watch others taking part, actually imbibe, actually imbibe alcohol, get tipsy, get drunk, with added licences for throwing up and going to the bathroom, not to mention suing people for having hangovers the next day. Then you'll need to pay a licencing fee for the memories, plus additional charges if you 'lost' yours. And woe betide you if you 'pirate' your memories (i.e. share) them with anyone...
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That shit is getting hurled at them whether they have anything to do with the Hotfile case or not.
I mean, haven't you heard? They're the evil masterminds behind Big Search. They're trying to destroy copyright protection. They are only interested in protecting the current state of piracy, because piracy is a major revenue raiser for them.
And we all know that everyone who opposed SOPA and PROTECT IP only did so because of Google's hyperbolic mistruths and abuse of power.
All of these things are nearly direct quotes from the MPAA, RIAA, and those who defend them.
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You may not work for the MPAA or RIAA, but you've certainly swallowed their propaganda. All of those statements are laughably false, especially the last one.
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Oh, right you can't, because you're lying.
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Go on, then, cite some numerous articles.
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None of those statements are demonstrably true. The statement about Google masterminding the SOPA protests is demonstrably false. The blackout idea originated on Reddit, was talked about extensively by Facebook users, and was joined by Wikipedia (through a public consensus) long before Google decided to participate.
Most of the "numerous articles" published after the SOPA grassroots protests were just quoting liars like Chris Dodd and Rupert Murdoch; they weren't "proving" anything, and weren't claiming to. A few raised concerns about Google's increased lobbying presence (still nowhere near the RIAA's or MPAA's), but none of those articles even suggested that Google masterminded the protests.
You are either a liar, or a sucker.
In any case, none of this has fuck-all to do with the Hotfile case or the MPAA's twisting of the DMCA, so I'm going to drop it.
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You're a funny guy, Karl.
No, it didn't. It originated at Google. Just like the phrase "break the internet" did. Google came up with that one way before SOPA, when they were looking for a manipulative phrase to influence an earlier situation that didn't work with their twisted agenda.
You zombie google stooges are quite an amusing bunch. You're willing to defend whatever action they take no matter how perverted it is.
Good thing the Scientologists didn't get to you first...
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That's the strength of your argument? "How dare Google oppose us, we can buy laws and congressmen/senators with impunity, but if they lobby even a little it's TEH EBBIL!!1!."
How is organising a public protest involving a lot of people uninterested in piracy (like security experts) as well as large amounts of the public in a democratic and visible manner "perverted"?
Enough with the sour grapes.
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I can say, with direct and first hand knowledge, that you have NO FREAKING CLUE what you are talking about.
Seriously. You are delusional.
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http://copyrightblog.co.uk/2012/03/15/breaking-the-internet-one-absurd-claim-at-a-time /
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And as proof, you present a personal anecdote from a former executive and IP director for a bunch of news organizations - including Fox News?
Yeah, good one.
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It might help you look slightly less delusional to learn the difference between actual fact, and an uninformed anecdotal rant by someone who even admits he doesn't know what he's talking about.
Anyway, I wasn't even talking about the "break the internet" claim which is being misinterpreted in that ridiculous article. No one is saying that means that it makes the internet no longer work -- but that it creates a significant change with massive consequences.
But what I was talking about was the idea that the blackout originated with Google. It did not. In fact, I know that Google people were actually *against* a blackout -- and especially against a SOPA one and even more against one on the date it happened.
But you're going to insist that they were behind the whole thing. Because you're totally misinformed and delusional.
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Citation? Of course not.
There's one person in this equation that is ridiculous, and that, as everyone is so painfully aware, is you.
As far as your claim that Google was against the protest, you're a liar.
A liar.
I know what happened.
But thanks for admitting your relationship with the most evil mega-corporation on earth. And speaking of Google, maybe next you'll explain how you make a living from the one ad on this site...
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Citation? Of course not.
Are you even actually reading this thread?
Why in the would would anyone need a citation when responding directly to the comment with the link that's being discussed?
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You really are not that smart, are you? The "citation" is a link that you provided -- to a ridiculous anecdotal story that shows no knowledge of what actually happened.
As far as your claim that Google was against the protest, you're a liar.
A liar.
I know what happened.
Um. You don't. But it's fun to watch you lash out idiotically.
But thanks for admitting your relationship with the most evil mega-corporation on earth.
My "relationship" was with the folks who helped organize the actual blackout and being present in discussions with folks who were fighting SOPA. That's not a secret. My knowledge of what Google was thinking was because the people who DID organize the blackout *then* approached Google about participating, and got the brush off/suggestion that the blackout wasn't a good idea.
But you "know" what happened, when I know for a fact you know fuck all about what actually happened.
And speaking of Google, maybe next you'll explain how you make a living from the one ad on this site...
That one ad pays nicely pretty nicely, actually. You can contact SAY Media and try to buy ads and find out a bit of information about the rate -- but let's just say that you probably can't afford it. As SAY has noted in its own press announcements, it's focused on selling premium placement on sites -- and part of that is in offering a single above the fold ad placement, because that's how you can charge a very large premium.
Plus, as much as it pains you to realize this, we're recognized as a premium property, such that the rates for that ad are pretty nice.
Either way, advertising is only a part of our revenue stream, as we've explained to you before. But, one thing that's not true is the idea that Google is the company funding this site. Your delusions know no bounds. We have some Google adwords on the site, but honestly if I took you out for dinner, we could spend the entire month's Google income in an evening if we went to a decently nice restaurant.
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A "citation" would be a link to the original article... which you already posted.
Perhaps you mean "quote." I think I can get one for you. Here's the very first sentence in the article:
I’m not much of a geek, so I can’t pretend to understand the technical minutae of the internet intimately.
What it comes down to, really, is this. The only thing you've shown is that a former newpaper executive (who, incidentally, believes the DMCA safe harbors are "dumb laws") claimed, without citations or direct quotes, that the first time he heard the phrase was when he was talking with "a lesser species at Google" who was quoting (unnamed) engineers.
Uh huh.
Even he does not say that Google came up with the phrase.
And he is not claiming that people used it in the SOPA debate because Google told them to. In fact, nobody is. Because they didn't.
I know what happened.
You "know" no such thing. You weren't there, obviously, and have shown absolutely no evidence whatsoever to back up your smear campaign.
But thanks for admitting your relationship with the most evil mega-corporation on earth.
Mike's already gone into his "business relationship" with Google, which is pretty much non-existent. (If you want to see who his clients actually are, there's a link to Floor24 at the top of the page.)
But, seriously, "the most evil mega-corporation on earth?" Really? Worse than BP, Exxon-Mobil, Union Carbide, R.J. Reynolds, Monsanto, or the banks responsible for the economic crisis?
Give me a fucking break. Google isn't perfect by any stretch of the imagination, but society benefits from their presence more than most corporations'. They're certainly better for society than, say, the RIAA or MPAA.
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This is a lie. It originated on Reddit, as you can plainly see from their blog post and SOPA FAQ. You can see that they decided to do it after asking the Reddit community. Notice what is missing from all that? Even the remotest chance that it originated from Google. In fact, most of the community didn't even think Google would get on board.
Just like the phrase "break the internet" did.
Another lie. The "break the internet" phrase may have been hyperbolic, but it didn't originate with Google. As far as I can tell, it originated with an article in the Stanford Law Review by Mark Lemley, David Levine, and David Post.
Their concern about the technical problems with DNS blocking was based on
a paper by Steve Crocker et al (PDF). But there are more, including a letter from Sandia National Laboratories (PDF), the concerns of 83 engineers who helped create the internet (PDF), and many, many others.
Claiming that Google was behind it is totally, completely, absolutely 100% false.
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The amazing thing to me is just how delusional the people who believe this claim are. They simply refuse to let go of the myth. And I know for a fact that it's a myth. But they can't let go. Because they can't believe that internet users actually rose up against their plans.
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Oh, I'm pretty sure they know that this is exactly what happened.
Google is big enough to be a threat to their monopoly on politicians when it comes to "piracy" and the internet. That's why they're consistently, and repeatedly, using smear tactics against them.
If they can spin the SOPA protests as the result machinations by Google, they kill two birds with one stone. They present the protesters as misinformed patsies, and encouraging politicians to take their word over the public's. And they present their latest Big Enemy as a threat to the public: vampiric, all-powerful, and hiding in the shadows.
It's pretty much the same tactic as McCarthyism, except now instead of "communism" you have "piracy," and instead of the "red menace" you have "Google." And it's just as cynical, just as motivated by political gain.
Or perhaps I'm just too cynical myself, or too incredulous that anyone could be that unbelievably stupid. Who knows.
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you mean this one ... ;)
"All of these things are nearly direct quotes from the MPAA, RIAA, and those who defend them."
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Ha, oops, I meant the one about Google being the mastermind behind the SOPA protests.
I actually did take the other sentences, pretty much word-for-word, from what the MPAA/RIAA and their supporters said.
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Buzzword: "Google"
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Re: Buzzword: "Google"
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Time to round up a few ACs!
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Far Reaching
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Isn't it obvious?
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Silliness.
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But... But.. Google!
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That's just the way pols behave. Nothing new about that.
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Wow its getting difficult...
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Google may find that arguing this point comes back to haunt them later, if the judge rules against Hotfile (very possible). They could be painting Youtube into a bit of a corner.
The real risk for Google is that the judge wakes up and realizes that "service providers" that profit from the content and not from the service are not really service providers as defined in DMCA. How is that possible? Well, consider that a file locker doesn't profit from selling hosting (which would be a "service") but rather in selling access after the fact to the content (which is a content distribution business). This is unlike a normal hosting company or ISP, which makes it's money on selling an actual service, not a product.
Google could find itself in a world of hurt if the judge goes down these lines, and a good lawyer could certainly argue that the terms of a "service provider" are null when their income doesn't come from providing the service, but from in fact reselling access (even in an ad supported model).
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That doesn't really follow, since the file locker doesn't "offer" any content itself. Everything on there is posted by users, not anyone associated with the company.
But, no matter what you call it, it's still protected by the DMCA, and if they followed that, then they're not liable at any level.
That's really all the Google brief said. I read the whole thing, and it's rock-solid. The case law is entirely consistent, and explicit in saying that you have to have actual knowledge that specific content is infringing, and that it is solely the duty of rights holders to police the content. As far as the DMCA is concerned, the MPAA simply has no case.
Now, if Hotfile did have actual knowledge of specific URL's and failed to act, that's another story. But if that's the case, it wouldn't affect Google anyway. No skin of their nose.
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Google's motion has little to do with the rest of the details of Hotfile. It's specific to the DMCA safe harbor standards. Which you would know if you actually read the post.
Google may find that arguing this point comes back to haunt them later, if the judge rules against Hotfile (very possible). They could be painting Youtube into a bit of a corner.
I don't see how arguing the point hurts them any more than not arguing the point.
The real risk for Google is that the judge wakes up and realizes that "service providers" that profit from the content and not from the service are not really service providers as defined in DMCA. How is that possible?
It's not possible. This is well established case law up to the Supreme Court, as well as in the Congressional record. No one thinks that these kinds of service providers are not covered by the DMCA. You clearly don't know what you're talking about.
Google could find itself in a world of hurt if the judge goes down these lines, and a good lawyer could certainly argue that the terms of a "service provider" are null when their income doesn't come from providing the service, but from in fact reselling access (even in an ad supported model).
Again, I'd suggest you don't have the foggiest idea of what you're talking about.
Try to come back again in a new form where you actually don't look totally and completely uninformed.
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No, it isn't.
You're lying.
You shouldn't do that.
Your blind apologism for piracy just begs for your favorite sites to pony up proof they have a repeat infringer policy.
Do you really want to go there, smart boy?
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2) [Citation needed] Despite all the evidence to the contrary?
3) People shouldn't lie, especially not blatantly, without evidence and without reason. Shiny mirror is shiny.
4) [Citation needed] See 2). Stop fapping to the thought of someone maybe being a piracy apologist.
5) At least you admit he is smarter than you, but then, so is the average lichen...
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You shills are a class act.
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Do you really want to go there, smart boy?
The repeat infringer policy issue *is* a key point that Hotfile and others will have to deal with. It is also totally irrelevant to Google's filing in this case, as that has nothing to do with the specific points that Google is raising. If you understood the law, you'd know that.
As for "my favorite sites," you continue to pretend that I make use of these types of sites for obtaining infringing works. I do not. It makes you look silly and childish to continue to accuse me of things that are simply not true.
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"Nuh-huh!"
"Liar liar pants on fire!"
"You're a meanie!"
"You're just being a smartass!"
"Nerd!"
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You're lying.
He's absolutely right.
And in 2010, the District Court of the Southern District of California ruled that as a file-hosting company, RapidShare cannot be accused of copyright infringement, only its users can. (I could not find the actual order, but there are plenty of articles about it around the 'net.)
Maybe you should actually know what you're talking about before you call someone a liar.
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I think this is that ruling:
http://ia700404.us.archive.org/18/items/gov.uscourts.casd.310420/gov.uscourts.casd.310420 .71.0.pdf
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YES, Google is only dealing with a narrow part of the safe harbors, but you have to remember that much of Google's business hinges on them. If Hotfile loses their case, it opens up a can of worms for any business that may not be considered a pure "service provider" or that may have knowledge of infringement but doesn't take full action.
Google knows this can blow up and make them look bad, that is why they are there.
"I don't see how arguing the point hurts them any more than not arguing the point."
Arguing the point puts them on record, and on record in a case that may be decided AGAINST what Google was supporting. Sometimes it's just better to shut up and wait your turn.
"It's not possible. This is well established case law up to the Supreme Court, as well as in the Congressional record. No one thinks that these kinds of service providers are not covered by the DMCA. You clearly don't know what you're talking about."
You need to talk to more lawyers. I have seen plenty of discussion on this level, thinking that the term "service provider" has been interpreted in a much to wide fashion, and is used to cover actions that have nothing to do with "service". We would not tolerate a print newspaper with stories ripped from other media, submitted by anonymous reporters, so why would we accept copyright material to be published and distributed by online services under the same pretense?
"Again, I'd suggest you don't have the foggiest idea of what you're talking about."
Do you have any personal real world experience with DMCA, except to issue snarky posts when people call you out? Have you run a qualifying service? Or are you like every other big mouth on the internet, someone who doesn't do, just talks about it?
"Try to come back again in a new form where you actually don't look totally and completely uninformed."
Sorry you feel that way. At least I am not a snarky asshole about it.
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http://www.techdirt.com/articles/20120223/15102217856/key-techdirt-sopapipa-post-censored-bo gus-dmca-takedown-notice.shtml
Yeah, if you've actually been paying attention you'd know that Mike has personal real world experience with DMCA.
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Off the reservation
http://absolutewrite.com/forums/archive/index.php/t-200887.html
I've noticed over the last couple of years seeming intelligent people using the term "off the reservation." I hear it a lot by news reporters, and even writers here.
Now maybe I'm sensitive to it because I have several NA friends who live on reservations, and get inside scoop on a lot of how they feel about the phrase, living conditions, etc..
Have you ever stopped to think what that sounds like? What if I said:
"I don't know Bob, I think he's gone too far off the plantation on that one."
OR
"I can't believe she did that. Seems a bit outside the concentration camp to me."
Can you imagine the backlash if someone said that on cable TV news?
All three cases you are talking about people who were forcefully put somewhere they didn't want to be. As if it's a bad thing to want to leave.
When someone uses the term "off the reservation" it implies they did something out of control, or not within bounds of where we expect them to be with their decision. It's just a modern way of saying, "I think he's acting like a wild Indian," which is equally derogatory.
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mwa... The SOPA/PIPA protests didn't originate on Reddit, they started on the Googles. Because the MAFIAA said so. See? mwa...
[/20sgangstervoice]
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Funny (and off topic) ... okay just a little funny
The page you are looking for is cannot be found.
Please try again later.
No I did not miss type that - I cut and pasted it.
So 1. why is their site down? and 2. who the heck are they getting to build it?
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