MPAA's Lawsuit Against Megaupload Is Yet Another Broadside Attack On The Internet
from the collateral-damage dept
Earlier this week, we wrote about the MPAA's announced plans to sue Megaupload in a civil lawsuit to pile on to the criminal charges the company is already facing. As we noted, there's no legitimate reason for such a lawsuit, given the criminal lawsuit already underway, other than as a way to try to get a favorable court ruling it can use against others. Having now read the full complaint against Megaupload, it's quite clear that this is exactly what the MPAA is doing. The lawsuit is incredibly dangerous for the internet, even if you think that Megaupload itself was a bad actor. Even the LA Times -- Hollywood's hometown paper -- has called out the lawsuit for how it may have negative consequences felt broadly across the internet.That's because the lawsuit makes a whole bunch of claims about Megaupload that are perfectly reasonable activities for tons of user-generated content and/or cloud computing companies. But, because Hollywood has spent years demonizing Kim Dotcom as a movie-style villain a la "Dr. Evil", it seems to be hoping that the courts won't notice that it's basically making up what they want copyright law to be, rather than what it is.
First, it describes the fact that when you upload a file to Megaupload, the service would then give you a link that you could share. The MPAA paints this as if it's some nefarious scheme to encourage infringement. But it's actually how pretty much any cloud or user-generated content site works.
When the upload was completed, Megaupload reproduced the file on at least one computer server it controlled and provided the user with a Uniform Resource Locator ("URL") "link" beginning with "megaupload.com." The uploader could then propagate the link broadly over the Internet, so that anyone interested in downloading or otherwise accessing a copy of the file could easily find it on Megaupload's servers.But, of course, Dropbox or YouTube do the same exact thing. Then, they call out the fact that Megaupload did not provide its own search engine, as if that's something nefarious:
To conceal the scope of infringennent occurring on the Megaupload website, defendants did not provide users with a searchable index of files available for download from the Megaupload website (although defendants themselves had access to such an index). Instead, defendants relied on numerous third party "linking" sites to host, organize, and promote URL links to Megaupload-hosted infringing content, including plaintiffs' copyrighted works.Except, cloud storage companies from Dropbox to Box to Google Drive don't supply a searchable index of files available on their services either. And that's for a very good reason. Because they're not promoting their services as a place to go to search for infringing works. In fact, you just have to go back to the RIAA's lawsuit against Napster, to see where the exact opposite claim was made. In that case, the court found that Napster was, in part, liable because it had a search feature:
Napster is not an Internet service provider that acts as a mere conduit for the transfer of files.... Rather, it offers search and directory functions specifically designed to allow users to locate music, the majority of which is copyrighted.Yet, now, the MPAA seems to be arguing that not having a search engine means you're trying to hide copyright infringement. Damned if you do, damned if you don't -- just how the RIAA and MPAA like it. If you have a search engine, you're enabling infringement, if you don't have a search engine, you're "concealing" infringement.
The MPAA also tries to paint other perfectly reasonable business model choices as nefarious. Offering premium paid-for services for faster downloads, or access to larger files, is painted as some evil plan to profit off of infringement. But it also makes perfect business sense for a company like Megaupload seeking to cover its bandwidth bills. Similarly, the famed "financial incentives for premium users" is treated as if this is actually paying people to post infringing works. But that makes little sense. It's actually an incentive to get people to post good content. It's the same reason that YouTube today pays top YouTubers who bring in lots of visitors. Is the MPAA really arguing that such an incentive program is illegal?
To ensure a vast and ever-growing supply of popular copyrighted content to which they could sell premium access, defendants paid users to upload popular content to Megaupload's servers. Defendants' Uploader Rewards program promised premium subscribers cash and other financial incentives if they uploaded popular works, primarily copyrighted works, to Megaupload's servers. The rewards program also encouraged users to publicly promote links to that content, so that the content would be widely downloaded.Except, nothing in this program appeared to be about encouraging people to post infringing works. In fact, it would seem like a pretty stupid program for encouraging infringement, as Megaupload would likely be able to bring in a lot more attention and revenue for authorized legitimate content. Such a program, in actuality, appears to be the perfect way for artists to go direct to their fans, offering them ways to get the content for free, while still earning money. In fact, that's why artists like Busta Rhymes spoke out in favor of Megaupload after it was shut down. He pointed out that he could make a lot more money releasing his own music directly via Megaupload, than in going the old record label system.
Furthermore, since this lawsuit is from the movie studios, they list out a number of specific movies that they claim were on the site. However, Megaupload says that the uploader rewards program only applied to files smaller than 100MB, meaning it likely didn't apply to any films that were uploaded. Assuming that's accurate, the studios are going to have quite a difficult time proving that the rewards program induced infringement of movies.
On top of that, even if the program was used by some to make money from sharing infringing works, the program itself is clearly content neutral, and not about encouraging sharing of infringing works. For the MPAA to allege otherwise threatens all kinds of incentive programs on pretty much any user-generated content site.
Next, the MPAA complains that when they sent takedowns to Megaupload, it only removed the specific URL they sent, and not all copies of the content. But, uh, that's all that the law requires. As the court in the YouTube/Viacom case ruled, under the DMCA, the service provider needs to be made aware of specific locations where infringing content is. They can't just be given a single URL and told to "block all copies of that." Nor would such a request be reasonable either, as infringement depends on context, not content. In the YouTube/Viacom case, Viacom initially sued over files that its own employees had uploaded, meaning they were licensed -- yet it argued those were infringing. You run into the same problem here in that the MPAA is arguing that if you know that a particular file is infringing, all similar content must be removed. But the law does not say that. Though, clearly, the MPAA is seeking to change the interpretation of the law.
Next, the MPAA argues that because Megaupload could have used filtering tools to prevent new uploads of works previously claimed as infringing, and did not do so, that proves it's liable. However, that's completely bogus. Many, many, many copyright cases have all said over and over again that nothing in the DMCA creates a duty for service to proactively filter new uploads. In fact, the industry itself admits that this is true, because they're currently asking Congress to change the law to make this a new legal requirement. Yet, in the Megaupload complaint, they pretend it is already the law:
Megaupload could also have implemented various readily available and effective technological solutions (including, without limitation, automated filtering using digital fingerprinting-based content-identification technology) to identify and prevent infringement of copyrighted content. Megaupload chose not to do so.But there is no legal reason why it had to do so. In fact, considering that others have spent tens to hundreds of millions of dollars on such systems, there are perfectly good business reasons not to have spent such money. Here, the MPAA is using this lawsuit to try to get a court to suggest there's a legal duty to filter. This would have a huge negative impact on startups who couldn't afford the tens of millions of dollars entry fee.
You can argue that Megaupload was widely used for infringement. You can even argue that Megaupload management were awful people who didn't care that much about copyright. But if you read this lawsuit objectively, you have to admit that it is a straight up attack on the basic principles of cloud computing and user-generated content, while seeking to change settled law and reinterpret the DMCA in a way the MPAA fantasizes it should be, rather than the way the law is today. That's incredible dangerous.
It's no surprise that they're doing this against Megaupload, a company based halfway around the globe, with all its assets seized, and which is fighting a massive criminal complaint at the same time. That will, obviously, lead to limited resources to fight this civil suit, making it easier for the MPAA to sneak through dangerous changes to the law, via potential court rulings. These are changes that it's been unable to get written into the law for the past few years, so now it's using the courts to try to do its dirty work.
No matter what you think of Megaupload, this is a very dangerous lawsuit.
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: cloud computing, copyright, movies, user generated content
Companies: megaupload, mpaa
Reader Comments
The First Word
“Re: Re: Re: Megaupload
"To suggest Megaupload was primarily used for legal traffic is ludicrous."Suggesting the VCR was primarily used for legal purposes was also considered ludicrous by the MPAA, and yet looked how that worked out.
It's clear to anyone with half a brain that MU and other cloud storage sites have "substantial non-infringing uses", so I don't understand why you think the end result should be different this time around.
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
Re:
By throwing around lots of money until politicians did what they wanted.
[ link to this | view in chronology ]
Well put, Mini-me.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
The unfulfilled demand isn't new.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
Note an important difference: Rapidshare hired some lobbyists in DC. No joke.
https://www.opensecrets.org/lobby/clientsum.php?id=D000065023&year=2013
They recently stopped however, so... watch out Rapidshare.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
I wouldn't be surprised if Rapidshare finds it way on the USTR 301 special report (if it hasn't already done so) now that Rapidshare has stopped the lobbying.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re:
RTFA
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
as for the dangerous side of the law suit, it is definitely being don intentionally now and like it is because of the way various Trade Negotiations are being rebuffed by different countries. the main aim of those negotiations is to give certain USA industries rights over just about every country in the world. with those now falling by the wayside, the industries are coming in with these accusations hoping to get the win here which they will most definitely try to push everywhere else! people, industries countries need to be very aware of what these fuckers are up to. they will not stop until they have complete control of the Internet, that is what they have been striving for and wont quit until they get it. that's also why the various US law enforcement agencies keep grabbing ankles to help as much and as often as they can, hence the initial fucked up seizure of Dotcom and bits in NZ!!
[ link to this | view in chronology ]
The prosecution also stated in the recent trial of the director of mp3.com that the infringing files were never removed from the server when a DMCA notice was sent to them but only the infringing url links were removed and that wasn't good enough as the infringing files should also be removed when a DMCA notice was issued. Although the director was found guilty on other things it was ruled by the court that although the infringing url links were only removed and not the infringing files on the server when the DMCA was received by the company then it was sufficient to remove the infringing url links only and that it would be going to far to remove the infringing files from the infringing file as well.
So according to this ruling Megaupload is in the right to only delete the url links in the DMCA notice and not the actual file that is on the server as the file in question could also be a file that someone else could have as a personal backup (which is legal). There is no way that Megaupload or any other company can tell if a file is infringing or not until a DMCA is issued but then other people could have the same file which is not infringing or illegal or anyway so removing the actual infringing link is sufficient.
[ link to this | view in chronology ]
Re:
Seems perfectly reasonable to me.
[ link to this | view in chronology ]
Jurisdiction
[ link to this | view in chronology ]
Re: Jurisdiction
They think their laws are valid everywhere in the world.
But try to sue someone in the US for braking a foreign law...
[ link to this | view in chronology ]
Re: Jurisdiction
[ link to this | view in chronology ]
Re: Jurisdiction
[ link to this | view in chronology ]
[ link to this | view in chronology ]
After that case, suddenly everyone was doing decentralized because the court ruled in favor of control by a centralized setup.
Because a search engine was provided, it was enabling infringement. So all the file sharing systems went to no search engine to remain legal.
This is how the law works. The court rules something as making you liable, then companies figure a way that respects that while still doing what they are doing.
These copyright cartels have been doing the trying in public long before the case starts, which should be highly illegal until after the case is over. Just like talking about a case before court is not a good idea. But the whole purpose is nefarious in that they hope to change the public's opinion and poison it to the case before it is heard.
While various courts have ruled on various things being illegal, for the most part they are not yet uniform in their judgements. I still have a hard time recognizing that a hyperlink by itself is infringing. It contains no information beyond locator service.
Here we have the MPAA complaining that a previous court ruling which changed the way hosting services operated is somehow aiding. You can't have your cake and eat it too. Either Napster is not guilty on this one charge or Megaupload is not guilty.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
They don't, they only look at $$$$.
[ link to this | view in chronology ]
Re: Re:
Dotcom didn't change my mind. His opponents did.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Hoping for default judgement
[ link to this | view in chronology ]
Re: Hoping for default judgement
[ link to this | view in chronology ]
Re: Re: Hoping for default judgement
[ link to this | view in chronology ]
Re: Re: Re: Hoping for default judgement
Neither Kim DotCom nor Megaupload are going to get a fair trial in the U.S.
OK, so that's not 100% certain —yeah, they might possibly get a fair trial— it's pretty good odds.
Otoh, the precedential value of a default judgment is close to nil.
[ link to this | view in chronology ]
Re: Re: Re: Re: Hoping for default judgement
[ link to this | view in chronology ]
Re: Re: Re: Re: Hoping for default judgement
[ link to this | view in chronology ]
Re: Re: Re: Hoping for default judgement
[ link to this | view in chronology ]
Re: Re: Re: Re: Hoping for default judgement
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Hoping for default judgement
It's not like they have anything to win.
You have to be realistic.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Hoping for default judgement
Now, you may be right that precedent in a default judgement may not be worth much in other courts, but it will be on paper should that happen, and making sure the *AA's don't have yet another weapon they can use seems like a pretty good idea.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Hoping for default judgement
Go look it up.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Hoping for default judgement
Recommended: “Legal Theory Lexicon 005: Holdings”, Lawrence B. Solum, Legal Theory Blog
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Hoping for default judgement
Thing is though, it may be my cynicism, it may be tin-foil hat territory, but quite obviously the *AA's believe that this case will help them if they're willing to throw money at it, so whether or not they're banking on somehow using the default judgement elsewhere, or some other facet, the fact that they are willing to throw money at it means that it's worth putting up a fight against them, even if the 'goal' isn't obvious at the time.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Hoping for default judgement
That isn't quite exactly accurate. There is one particular, specific call that the judge does finally make when one of the parties doesn't show: The judge declares “Winner” and “Loser”.
(See res judicata and collateral estoppel for more on that. Note especially that those doctrines only bind the parties.)
Bu, the general rule that the defaulting party loses is so well-settled that there's not much of a point citing any particular case for that holding.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Hoping for default judgement
I believe that if for some strange reason no amicus briefs are submitted from Dropbin, Google, OneDrive etc, and no one shows up to the case and they get a default judgement of damages that realistically will never be paid (default judgements from US courts normally will not sway another court to allow comity to occur esp in NZ) they instead will use the judgement as a tactical victory (they will call it a Pyrrhic one) that will allow them to bully others into doing there bidding. Also with the current push to change the DMCA if they lose a default judgement they can show how hard done by they are by the bad courts to congress to. To the MPAA this is a win-win.
[ link to this | view in chronology ]
Re: Re: Re: Hoping for default judgement
[ link to this | view in chronology ]
Re: Hoping for default judgement
[ link to this | view in chronology ]
Re: Re: Hoping for default judgement
[ link to this | view in chronology ]
Precedent
[ link to this | view in chronology ]
Megaupload
[ link to this | view in chronology ]
Re: Megaupload
You could try and ban stuff longer than 22 minutes but that would likely generate too many false positives and eliminate genuine user generated content.
[ link to this | view in chronology ]
Re: Megaupload
[ link to this | view in chronology ]
Re: Megaupload
[ link to this | view in chronology ]
Re: Re: Megaupload
Megaupload was ranked the 75th most popular website in the world, higher than Dropbox ranks today. To suggest Megaupload was primarily used for legal traffic is ludicrous.
[ link to this | view in chronology ]
Re: Re: Re: Megaupload
Point two - even if they are infringing files, that's not Megaupload's problem, it's the uploader's problem. It's the user that's infringing, not Megaupload.
[ link to this | view in chronology ]
Re: Re: Re: Re: Megaupload
Seriously. Both internally and externally, content industries and their representatives refuse to acknowledge individual accountability.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Megaupload
FIFY
[ link to this | view in chronology ]
Re: Re: Re: Megaupload
Wikipedia, according to Alexa in February, was the 6th most popular site in the world. Are you going to scream "pirate!" at that site?
[ link to this | view in chronology ]
Re: Re: Re: Megaupload
Youtube is used for piracy but the majority of files on their is perfectly legal and yet Youtube hasn't been shutdown for people using it for piracy even though that the majority of people using it and the majority of files on their is perfectly legal just like the majority of people and the files on Megaupload were perfectly legal compared to the number of files that were being illegal shared.
So by your own words it would be ludicrous to suggest that youtube was primarily used for legal traffic.
[ link to this | view in chronology ]
Re: Re: Re: Megaupload
[ link to this | view in chronology ]
Re: Re: Re: Megaupload
Which means that your logic is not sound.
[ link to this | view in chronology ]
Re: Re: Re: Re: Megaupload
[ link to this | view in chronology ]
Re: Re: Re: Megaupload
[ link to this | view in chronology ]
Re: Re: Re: Megaupload
Suggesting the VCR was primarily used for legal purposes was also considered ludicrous by the MPAA, and yet looked how that worked out.
It's clear to anyone with half a brain that MU and other cloud storage sites have "substantial non-infringing uses", so I don't understand why you think the end result should be different this time around.
[ link to this | view in chronology ]
Re: Re: Re: Megaupload
So why didn't they go after the first six? Because Dotcom appeared to be enough of an easy target. And not only do you guys still NOT have him behind bars like you want, you managed to make a perceived douche into a victim, if not a hero.
How do you fuck that shit up? If you're the MPAA, I suppose.
[ link to this | view in chronology ]
Re: Megaupload
[ link to this | view in chronology ]
Re: Megaupload
If I understand the way Megavideo worked, that 72 minutes was per day, not per video.
So, watching five 15-minute videos would put you over the limit as well.
In any case, the length of a video tells us nothing about whether or not the video is pirated. A 20-minute video of (say) Archer is probably infringing; a 72-minute video of a video game playthrough is probably not.
[ link to this | view in chronology ]
Re: Megaupload
That's a poor argument and you know it. However, let's look at some >72 minute videos that one might legally upload:
The Little Shop of Horrors (1960): 72 minutes and 30 seconds
Sita Sings the Blues: 81 minutes
Night of the Living Dead: 95 minutes
All of them public domain and completely legal to upload and make money from. All completely legal to remix to create a new work.
[ link to this | view in chronology ]
Re: Re: Megaupload
This is one of the reasons why these arguments never go anywhere - their assumptions take place in a fantasy world that depends on the idea that their beloved corporations are the only content creators.
[ link to this | view in chronology ]
Re: Megaupload
No, in fact, we don't all know it. Can you support that claim?
[ link to this | view in chronology ]
Re: Re: Megaupload
[ link to this | view in chronology ]
Re: Megaupload
I suggest you drop by twitch.tv sometime in the near future, and start looking around the video files for some of the most popular users. It's not all that uncommon for various marathons and tournaments to have 72+ hours of video, conveniently broken into chunks 120 minutes long.
The only difference between then and now is that things have had a chance to scale up.
[ link to this | view in chronology ]
Re: Megaupload
Unless you've somehow gained access to Megaupload's logs, you have no reason whatsoever to claim anything of the sort. What you think is not the same as what you know, and you don't really know as much as you think.
It's also irrelevant. A legal service doesn't suddenly become illegal because the number of users obeying the law suddenly drops from 51% to 49%.
[ link to this | view in chronology ]
Re: Re: Megaupload
[ link to this | view in chronology ]
Re: Re: Re: Megaupload
[ link to this | view in chronology ]
Re: Re: Re: Megaupload
[ link to this | view in chronology ]
Re: Megaupload
Still waiting for one of you people to offer a valid citation for that assumption.
"As if legally uploaded videos are 72+ minutes long."
Yes, they are. Not all of them, but such a thing not only exists but is popular. That's just inconvenient to your corporate bootlicking, though.
[ link to this | view in chronology ]
#onepercentproblems
[ link to this | view in chronology ]
The MPAA here wants to make it so that the only legal way to create and distribute creative works is through them, the RIAA, publishers, or other middleman assigned to your particular form of media. This is *not* about the rights of artists, this is about the "rights" of the middlemen who get to decide who and what gets published, where and how they get distributed, how much to charge for it, and how little to pay the artist (if anything).
[ link to this | view in chronology ]
HOW to kill this argument
nohting else , thus your a search engine and one that as they can see isnt infringing...
haha
call this engine lazypeoplesearch
[ link to this | view in chronology ]
Correction: The copyright industry is incredibly dangerous for the internet.
[ link to this | view in chronology ]
Imbalance of Power
What's needed is for the Internet to have a lobbying group of its own to represent its interests in government. I despise lobbyists and special interests, but let's face it: that's how our government works. If you want to be listened to, you have to either be rich or be part of a large lobbying group.
It's time to form a lobbying group for the Internet that's big enough to take on the RIAA/MPAA head-on and have a decent chance at beating them at their own game.
[ link to this | view in chronology ]
Cause that worked so well for Viacom.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Time for tort reform perhaps? yes I know its a dirty phrase for some attorneys in the USA.. since reform might make them work for a living
[ link to this | view in chronology ]