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Two things seem odd about this: 1. It was an automated script from Warner Bros responsible for the abuse of the taketown tool and filing requests for content t

Two things seem odd about this: 1. It was an automated script from Warner Bros responsible for the abuse of the taketown tool and filing requests for content they don't hold the copyright to. 2. The taketown tool built by Hotfile doesn't require any sort of manual review from any human before the file is taken down. edit: by "odd" I mean "unexpected"

ianferrel 15y ago
#2 doesn't seem surprising. I'm sure they don't want to spend the manpower on it. Better to just take it down and let the original uploader re-up it.
- JoshTriplett 15y ago
  Except that DMCA notices include language like this: "I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is(are) allegedly infringed by the aforementioned content." That doesn't include any exceptions for "my automated script screwed up" or "we didn't check carefully enough", nor should it.
  - ianferrel 15y ago
    Uh... those are for the party making the infringement claim. Point #2 was about Hotfile, the party receiving the claim. I was saying that it doesn't seem surprising that they didn't bother to check the incoming claims very carefully before pulling the content down.
    - JoshTriplett 15y ago
      I was talking about point 1.
ZachPruckowski 15y ago
IANAL, but (2) seems pretty standard in terms of DMCA compliance. As a service provider hoping to remain in the "safe harbor", you generally fulfill all takedown requests and you leave contesting the takedowns on the grounds of error or fair use or whatever to the guy whose video got taken down. Applying editorial discretion or undue delay to takedown requests involves taking on some level of legal risk. So the smart thing to do is automate them. It screws over your legit uploaders if they get DMCA'd, but most companies find that better than picking expensive legal fights.
- CWuestefeld 15y ago
  I can understand why hotfile wouldn't be able to double-check. But you'd think they could at least put a CAPTCHA on the takedown request, so that an RIAA bot can't rip off a million complaints.
  - sp332 15y ago
    Nope, any request that fulfills DMCA requirements has to be obeyed. Any exceptions risks losing safe harbor, and that means you're responsible for all content on your servers.
    - bediger 15y ago
      You're responsible for all content, if you blink at one DMCA takedown? I dunno, that seems a bit extreme. Is this for real, or is this just a lawyerly, overly cautious opinion? Are there cases where this has happened? Does the DMCA itself have wording to this effect?
      - sp332 15y ago
        Normally, you would have to take responsibility for the data on your servers. Legally, there is an exception if you disclaim responsibility for all user-generated content, then you just take the content down and whoever has a problem has to work it out with the user directly. This exception is known as "safe harbor", and there are very specific rules about who gets to claim it. https://secure.wikimedia.org/wikipedia/en/wiki/Online_Copyright_Infringement_Liability_Limitation_Act#Safe_Harbor_Provision_for_Online_Storage_-_.C2.A7_512.28c.29 https://secure.wikimedia.org/wikipedia/en/wiki/Online_Copyri... Basically, as soon as you take responsibility for any of the user-generated content, you can be held liable for all of it. Either you're responsible for the content on your servers or you're not, you can't really pick and choose.
deleted 15y ago
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JoshTriplett 15y ago
(1) seems nearly universal, either via full automation or automation plus a cursory manual check that amounts to a rubber stamp. Either way, it seems contrary to the "on penalty of perjury" language in the DMCA and the notices, and I'd love to see someone enforce that.
- Silhouette 15y ago
  This case seems very simple: whoever at the media companies set up these automated tools without adequate checks on the validity of the claims is guilty of perjury and should be punished accordingly. Likewise, anyone who instructed that this be done or was otherwise responsible for the conduct of those people should be treated the same as someone who had told an employee to lie under oath in court. Perhaps I'm missing something, but there doesn't seem to be any scope for interpretation here at all. I think that was rather the point of requiring that declaration as part of the DMCA.
  - JoshTriplett 15y ago
    You're missing something very important: these laws were tailor-made for the companies currently using them to send these notices, and any issue like this may simply be interpreted as a bug. Courts also frequently suffer from ad-hominem problems, and may choose to ignore the claims of a site they think exists only to infringe copyright, whether it does or not.
  - hmottestad 15y ago
    If I remember correctly a DMCA requires you say you are the legal entity or represent the legal entity that is holding the copyright. So a lawsuit would have to be placed against Warner, unless Warner can prove that they did not authorize the person writing the script to act on their behalf. If Warner wants to make the person who wrote the script liable or not would be up to Warner, not this lawsuit.
sesqu 15y ago
They probably built the tool specifically so that they could pin the manual review on Warner. Many copyright holders have a reputation for spamming takedown notices without reviewing even the filenames they want taken down, because the initial burden of proof lies on the hosting service.

ianferrel 15y ago

#2 doesn't seem surprising. I'm sure they don't want to spend the manpower on it. Better to just take it down and let the original uploader re-up it.

JoshTriplett 15y ago
Except that DMCA notices include language like this: "I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is(are) allegedly infringed by the aforementioned content." That doesn't include any exceptions for "my automated script screwed up" or "we didn't check carefully enough", nor should it.
- ianferrel 15y ago
  Uh... those are for the party making the infringement claim. Point #2 was about Hotfile, the party receiving the claim. I was saying that it doesn't seem surprising that they didn't bother to check the incoming claims very carefully before pulling the content down.
  - JoshTriplett 15y ago
    I was talking about point 1.

ZachPruckowski 15y ago

IANAL, but (2) seems pretty standard in terms of DMCA compliance. As a service provider hoping to remain in the "safe harbor", you generally fulfill all takedown requests and you leave contesting the takedowns on the grounds of error or fair use or whatever to the guy whose video got taken down. Applying editorial discretion or undue delay to takedown requests involves taking on some level of legal risk. So the smart thing to do is automate them. It screws over your legit uploaders if they get DMCA'd, but most companies find that better than picking expensive legal fights.

CWuestefeld 15y ago
I can understand why hotfile wouldn't be able to double-check. But you'd think they could at least put a CAPTCHA on the takedown request, so that an RIAA bot can't rip off a million complaints.
- sp332 15y ago
  Nope, any request that fulfills DMCA requirements has to be obeyed. Any exceptions risks losing safe harbor, and that means you're responsible for all content on your servers.
  - bediger 15y ago
    You're responsible for all content, if you blink at one DMCA takedown? I dunno, that seems a bit extreme. Is this for real, or is this just a lawyerly, overly cautious opinion? Are there cases where this has happened? Does the DMCA itself have wording to this effect?
    - sp332 15y ago
      Normally, you would have to take responsibility for the data on your servers. Legally, there is an exception if you disclaim responsibility for all user-generated content, then you just take the content down and whoever has a problem has to work it out with the user directly. This exception is known as "safe harbor", and there are very specific rules about who gets to claim it. https://secure.wikimedia.org/wikipedia/en/wiki/Online_Copyright_Infringement_Liability_Limitation_Act#Safe_Harbor_Provision_for_Online_Storage_-_.C2.A7_512.28c.29 https://secure.wikimedia.org/wikipedia/en/wiki/Online_Copyri... Basically, as soon as you take responsibility for any of the user-generated content, you can be held liable for all of it. Either you're responsible for the content on your servers or you're not, you can't really pick and choose.

deleted 15y ago

[deleted]

JoshTriplett 15y ago

(1) seems nearly universal, either via full automation or automation plus a cursory manual check that amounts to a rubber stamp. Either way, it seems contrary to the "on penalty of perjury" language in the DMCA and the notices, and I'd love to see someone enforce that.

Silhouette 15y ago
This case seems very simple: whoever at the media companies set up these automated tools without adequate checks on the validity of the claims is guilty of perjury and should be punished accordingly. Likewise, anyone who instructed that this be done or was otherwise responsible for the conduct of those people should be treated the same as someone who had told an employee to lie under oath in court. Perhaps I'm missing something, but there doesn't seem to be any scope for interpretation here at all. I think that was rather the point of requiring that declaration as part of the DMCA.
- JoshTriplett 15y ago
  You're missing something very important: these laws were tailor-made for the companies currently using them to send these notices, and any issue like this may simply be interpreted as a bug. Courts also frequently suffer from ad-hominem problems, and may choose to ignore the claims of a site they think exists only to infringe copyright, whether it does or not.
- hmottestad 15y ago
  If I remember correctly a DMCA requires you say you are the legal entity or represent the legal entity that is holding the copyright. So a lawsuit would have to be placed against Warner, unless Warner can prove that they did not authorize the person writing the script to act on their behalf. If Warner wants to make the person who wrote the script liable or not would be up to Warner, not this lawsuit.

sesqu 15y ago

They probably built the tool specifically so that they could pin the manual review on Warner. Many copyright holders have a reputation for spamming takedown notices without reviewing even the filenames they want taken down, because the initial burden of proof lies on the hosting service.