RapidShare: It Ain't The Hosting, It's The Linking
from the quick,-look-over-there! dept
A few years ago, RapidShare and Megaupload were often mentioned in the same breath as the two "evils" of the internet, according to the MPAA. However, a few interesting things happened. First, Rapidshare won a series of lawsuits both in Europe and the US, that found its service to be legit. The company also went on something of a big time charm offensive, hiring a DC lobbyist to improve its image with politicians, as well as being much more proactive with the press. Finally, in the last few months, it's made even more efforts to stop its service from being used for infringing purposes.The latest thing, though, seems particularly silly. At a conference, the company's Chief Legal Officer, Daniel Raimer, appears to be throwing links sites under the bus by claiming that they're the real problem, and storage sites shouldn't be lumped in with linking sites.
The thing is, both kinds of sites have both legal and illegal purposes, and it's silly and counterproductive for one kind to blame the other kind. Storage sites have perfectly reasonable uses, and RapidShare has been bending over backwards to be a good player in that space. But a user-generated site that includes links to content also can have perfectly legitimate and legal uses, and it seems particularly silly to assume otherwise. From a legal standpoint, both kinds of sites should have reasonable protections against infringement (though that doesn't always appear to be true once things get to court). But, even then, storage sites probably even have less of a reasonable claim under copyright law, because actual copies (reproduction rights) and distribution could potentially be attributed to them (though, clearly, they have reasonable claims of safe harbors). With links sites, they neither store nor transmit the content, and it's difficult to see how they infringe on any of the key rights associated with copyright, even outside of the basic safe harbors.
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Filed Under: copyright, cyberlockers, hosting, linking, search
Companies: rapidshare
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This government must be attempting to breed the ultimate douche.
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It's the uploader, stupid
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They all link.
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Oh my God, they are providing a service people want and find socially acceptable! Egregious, demonic! Burn them!
They are profiting from a good service that people want. The content is generated by the users, there's nothing wrong being done by the service itself. If the MAFIAA wasn't too stupid to see the business opportunities, too bad, they can go die in their caves.
A crime is defined and characterized by a law. If the law has no social support then it gets discredited and mocked and the crime is no longer a crime. You can whine as much as you want but copyright infringement is not even a criminal offense. And it has very little public support as it is today. So, sorry. Linking, sharing are neither a crime nor wrong.
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Richard O'Dwyer and his attorneys will be pleased to hear that.
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I'm with you on this part, at least. I can't imagine any other industry trying to shut down free marketing opportunities. A couple of years ago, I'd see links to Hulu and Netflix on those link aggregation sites and wonder why the networks and cable channels weren't using them, too. These days you don't even see Hulu and Netflix links anymore.
So, if sites like Surfthechannel make so much money off of ads, they must be getting a ton of traffic, right? Why aren't the *IAA organizations directing that traffic to legitimate media on their customers' sites?
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The community boasts over 20,000 registered members (although only a fraction of these are like myself and regular contributors in the form of posts and threads). We discuss everything, help each other out, debate topics of interest.
There is I admit a section devoted to links. Links pointing to copyrighted material hosted on cyberlockers.
Now, I challenge you, to a debate. Should such a web-site be shut-down, because it has a section devoted to copyrighted infringement? What about the rest of the content, that is not copyrighted, but is pure speech? Unlike arguments for websites that are purely links, there are tens of thousands of posts of discussions and debates that, in the copyright cartel's great Copyright Jihad, would be destroyed. I believe the legal term is prior restraint.
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Because no-one can know in this day and age if the file the link points to is truly infringing. For that to happen, you need to have a trial. More and more content is going online deliberately, often for free, on cyberlockers and torrent sites.
However, even if the content is copyrighted and not put online deliberately, it is still problematic to say "Delete the links". The links only point to the infringing material. They are not the infringing material themselves. That material is elsewhere.
Now, I realise I have just invited copyright maximilists like bob to spew forth how we're criminals anyway and just passing the buck back and forth between cyberlocker and link site. However, that is a fault of copyright law. There is no law saying "Directing someone to where infringing activity is taking place is in and of itself illegal". That would be akin to me being arrested/fined for pointing you to the man two blocks over with a stall of what looks like dodgy DVDs.
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The problem comes from the aggregation of a directory dedicated to facilitating infringement. You can't simply wash your hands in the Holy Water. The guy who directs you to a dodgy dvd stand is not dedicated to facilitating infringing activity. He does not derive revenue through ads, donations or subscriptions by this activity. Presumably he does not possess an instantly available worldwide directory of dodgy dvd stands that you can be transported to by clicking a mouse. Real world analogies don't work here.
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(By the way, bob et al...this is how a debate should be on Techdirt. He's not using ad hominems or strawmen, he's calmly putting forth his side of the debate in a clear, concise and logical fashion. He's not using phrases or beliefs that fail the common sense test)
The thing about this site is...it shouldn't fall under the DMCA, since the servers that host it aren't in the US.
As for donations, yes, the site does run on ads and donations. However, there have been times where I've donated (can't speak for anyone else obviously) even though for months, I hadn't used a single link on the site. I feel that the donations are meant to support the site in general, and not just the links. It's to help support an online community. I remember more than once where the site would crash, be restored from backups and whole swathes of links would be dead (especially after Megaupload was shut down)...and yet, activity on the site remained more or less the same. There were still donations, there were still postings, discussions etc.
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Rather than congratulate yourself for 'trapping' me, we should explore this. My point was that some guy on the street being the equivalent to a linking site didn't fly as a legitimate comparison. That is not to say laws designed to combat certain crimes in the real world have no place on line.
Just because an infringer works solely online does not mean he shouldn't get the same treatment as a guy burning and selling infringing dvd's out of a flea market. Enforcing IP laws online is infinitely more difficult in the real world and requires new laws and/or industry practices. But generally any new innovation in law enforcement is met with cries of censorship.
In my mind, censorship applies to expression of opinion- not entertainment. Though I am mindful of "banned" films and the implications that holds. I really believe that we have developed a generation who feels entitled to experience the copyrighted, creative output of others without compensating them. I do not believe that the cries of censorship are anything more than a smokescreen for the true agenda: freeloading.
Now since the entitled generation has found their voice and are incited and funded by corporate interests who benefit from the status quo- the enforcement aspect has moved from the legislative process to industry agreements and the application of laws that may not have been contemplated for IP enforcement. It's too bad. You are going to get something far worse than what could have been accomplished if the SOPA debate didn't degenerate into global thermonuclear war. So, no crying about six strikes, DMCA, ProIP, payment processors and ad network agreements. You reap what you have sown.
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It doesn't work that way.
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At least you come right out an admit you're biased and simply assume bad faith at the start of every argument.
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When I and others here at Techdirt say stuff, we generally look at evidence and say "That's why I say X".
But you didn't.
"I do not believe that the cries of censorship are anything more than a smokescreen for the true agenda: freeloading. "
What is that statement based on? Where is the proof? Whereas, those of us who WERE making the cries had proof to point to.
What are you going to say to those who don't pirate content, but who would be adversely affected by six strikes et al? Sorry, but you've reaped what you've sown?
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This is one of the stupidest phrases associated with the war on websites, and is typical word twisting by copyright maximalists. The dictionary says the word dedicated means "wholly committed to something, as to an ideal, political cause, or personal goal", or "set apart or reserved for a specific use or purpose". This simply does not describe any website I've ever seen. Until someone launches a website that specifically bans non-infringing activity, there is no such thing as a site "dedicated to infringing activity".
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Oh sorry...
Kill Cats! Some of them are Lynx!
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Suppose a site exist where a reference is made to another site by the posting of the referred site's URL or name with out knowledge of what is actually on the site. Clearly here linkage is not infringement.
Suppose there is another site with equal format and content with one and only one exception. On this second site a viewing window exist such that one may view infringing content, that is known to infringe, by means of a link. Does the fact that a link is used resolve the site of infringement? A positive answer here does not sound reasonable and should not be a means of evasion of responsibility.
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Is there a database or visual map anywhere where people can trace back where that content originated from and if it is authorized or not?
Why waste the time to go after the people pointing to something and not go after the actual people doing the distribution?
The linking people produce nothing, host nothing and they are popup like weed.
What is the problem the people behind the content can't find and easy way to shutdown an infringing stream?
It seems like some people want everybody else to be forced to help them or else they are guilty of something.
This is not the responsibility for the people to look at something and decide if it is legal or not, if it can be found somewhere people just should assume that it is legal and let the people interested in "protecting" that do the work of policing that stuff, not others, that have no means of knowing anything and should not be asked to be vigilantes for the private sector.
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What could go possibly wrong with that?
LoL
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Even if a link points to what any reasonable person would think to be an obvious infringement until at such time that the owner of said work actually initiates a legal action then no one (including the courts) can state that it is infringing. This initial action by the plaintiff can be as simple as a DMCA notice (which is what the DMCA was designed for initially) but it still until purely stated by a court not an infringement. Just because some owner states it doesn't make it so.
The only difference when a DMCA notice (or other legal method) is initiated is that vicarious liability can rear its head if due diligence is not carried out by the receiver of action first (if they are a third party like ISP, content provider, etc) though it is still beholden to due process requirements and can be challenged.
The ONLY links that have absolute liability are ones to purely criminal material that a reasonable person would know at first glance, after being told and not if they have no reasonable expectation to monitor, is illegal content.
Unlawful content (infringing material) since it is civil , unless egregious enough to make it a criminal matter and even then, is ONLY up to the courts (or appropriate judicial authority) to decide if it is infringing.
Stating that link farms, or community forums, or anything are unlawful or illegal is ethical and legally wrong and smacks of tortuous interference and a stagnated business model in denial.
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"Then KIDnapping requires a KID. A criminal does not commit a crime unless a KID is involved."
Was Todd Akin your teacher in grade school?
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Yes, they are used by criminals for illegal activity but so are roads. Here is a newsflash, any service that makes life easier for the public will be exploited by criminals. You do NOT fight this by going after the service or the general public, but by going after ONLY the criminals.
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What could go possibly wrong with that?
LoL
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Eh? Yeah.
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Rapidshare didn't start out being so proactive. They were the largest and first file hoster to face numerous court battles. Win or loose, this process allowed Rapidshare to reinvent itself, to evolve into what it is today -which is still continuing to adapt.
What new technology doesn't deserve a chance to evolve? YouTube wouldn't be so great if they had been shutdown when it first started and there were competitors with YouTube that were shuttered so fast they couldn't exist or evolve.
Yes it's true that these sites can be used for piracy. Same with linking. But does it do society or even the creators of the material any good when technology is shut down so fast that it's not given a chance to evolve into a legit service?
That's what I see happened to MegaUpload. They weren't given the chance to evolve.
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How? Off the top of my head, I can very quickly think of one very easy to defeat this.
Presuming that they match file MD5 hash tags (or other similar hashes), all you have to do is alter your file significantly enough and you'll be able to reupload it again. If they blocked your InfringingMovie.rar file, open up the archive, throw in a few small jpegs or mp3s, and save. There, hash has been changed. To Rapidshare, it's now a completely different file.
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The average person does not consider "sharing" to be anything than sharing like they've always done. The industry is trying to make average things, that average people do suddenly illegal.
Why do we still pay a tax for on recordable media then? Try and explain to my 90 year old father that what he's doing is now considered wrong when he burns a disc instead of a cassette of music.
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So I kind of stopped reading when you equate that kind of activity to being criminal.
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What about them?
And what if at the end of the link chain, there's a storage site?
Oh noes...conundrum...time rift...time rift...get out your cigarettes and start puffing!!
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What about them?"
That's easy: they are porn sites.
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What parts of "inter" and "net" do these clowns not understand.
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Smart move on RapidShare's part, too, pointing the dinosaurs at linking sites: they're already angry about them, and now RS doesn't have to bribe them. (e.g. pay $100m for dino-approved "filtering software" that doesn't really do anything in exchange for a month or two of them not complaining that you're not doing enough to "fight piracy".)
And, as an added bonus, we'll get further hilarity from the US! Expect ICE to roll out and start locking people up for the "crime" of illegal hyperlinks any day now. Good thing they don't bother with warrants anymore, otherwise people would have to do something against the law before being arrested. Maybe we'll get lucky and the director of ICE will publicly admit that he's having people arrested for things he thinks should be crimes! Only thing funnier than that would be if he started having people arrested for complaining about him abusing his power.
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They are very close to the line, and are likely to get sucked under as the file locker / pirate affiliate programs all get sucked under in the next 12 months or so.
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Says who? The industry execs that keep pulling numbers out of their asses?
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If Content ID is "JUST enough", we need to weed out the people defining "enough". Corporations don't need programmatic assignment of rights from individuals, they already have the "justice system" set up just for them to steal from the little guy. Beggars.
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They are very close to the line..."
These kinds of descriptions should not be enough to trigger legal action, or you'd have half the big corporations around the world in court...
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So Google was getting a DMCA notice to block www.chillingeffects.com/RandomDMCANotice11439.html that has a link to www.rapidgator.com/InfringingFile12200.html. So then there were fresh DMCA notices to block the DMCA notice to block the DMCA notice that contains the original infringing link, ad infinitum.
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https://torrentfreak.com/fox-dmca-takedowns-demand-google-to-remove-fox-dmca-takedowns-110307/? utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A%20Torrentfreak%20%28Torrentfreak% 29
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I think it was a court battle with GEMA that produced the agreement that Rapidshare would stop paying uploaders for the number of downloads (payment was a free premium account, not cash).
Rapidshare spends apx $150k on lobbying.
MegaUpload spent apx $185k on advertisments for a new service and it's called "money laundering" and they are shut down, offline and owners are picked up with SWAT teams waiting for criminal charges.
What if Google, YouTube, Rapidshare, most new services had been treated like MegaUpload? I doubt if the world would have made it to Windows 98.
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Chains to the manacles.
> IMHO Links GOOD
> Infringe Files BAD
If little Johnny links to a bunch of files on some server thats chock fulla infringing file, no blame, no shame. One hundred percent plus innocent.
If little Johnny uploads an infringing file to some server thats chock fulla infringementals, bad bad Johnny, shameful boy U shall get no pie.
Now, little Johnny is just one boy. Uploading one bad file. No shame no blame. We know he'll just share 'em with his friends and fambly not entire planet.
However, if little Johnny decided to be a comercial outfit and upload thousands upon thousands of copies of nastybadfile to hundreds of servers to make a profit from direct sales of things that he did not himself make. Ut Ut Oh Oh we can haz big bad problem, M'kay? LawSharks get hungry and they like raw meats.
They still weld heavy steel ball things on the other end of the chain from the manacles amirite?
> DvorakFace vs QwertyFace next on Techdirt!
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I still call it "RabidSwear"
In case you're wondering, I use MediaFire for all my sharing needs - all LEGAL in case you were also wondering about that. I'm really into homebrew for old consoles.
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Why should I subscribe to Rapidshare then?
If someone needs to move files around there are better services that work better while remaining free. If someone needs to do offsite back ups, again there are better services that are cheaper. What makes Rapidshare interesting is that "pirates" and "freeloaders" are willing to pay for access.
Piss them off and...well, when's the last time you heard from Fileserve.com?
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