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Warner Brothers: Automated Takedown Notices Hit Files That Weren't Ours

timothy posted more than 2 years ago | from the let-god-sort-'em-out dept.

The Internet 157

itwbennett writes "In a court case between Hotfile.com and Hollywood studios, Warner Brothers admitted they sent takedown orders for thousands of files they didn't own or control. Using an automated takedown tool provided by Hotfile, Warner Brothers used automated software crawlers based on keywords to generate legal takedown orders. This is akin to not holding the Post Office liable for what people mail, or the phone companies liable for what people say. But the flip side is that hosters must remove files when receiving a legal takedown notice from the copyright holder — even when the copyright holders themselves don't know what material they actually own."

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fp (0, Offtopic)

Anonymous Coward | more than 2 years ago | (#38032858)

Can they take down the "Sourceforge top downloads" spam box on the front page? Seriously, what the fuck?

Re:fp (1, Insightful)

justforgetme (1814588) | more than 2 years ago | (#38033186)

Yes, what about that?
Or at least they could put it below the notifications box.

They took down my movie too (-1, Troll)

Anonymous Coward | more than 2 years ago | (#38032886)

I am a professional entertainer and I had a movie called clownsong [clownsong.com] which was taken down from hotfile.com too.

I wonder if I can countersue them back?

Re:They took down my movie too (2)

Asterisk (16357) | more than 2 years ago | (#38033072)

Tortious interference [wikipedia.org] , perhaps?

Re:They took down my movie too (5, Insightful)

Luckyo (1726890) | more than 2 years ago | (#38033520)

We need "-1 goatse" mod...

Criminal Charges (2)

mfh (56) | more than 2 years ago | (#38034388)

It is a crime to file a phony DCMA request.

If they don't own it, then it's not a legal notice (5, Insightful)

Anonymous Coward | more than 2 years ago | (#38032888)

If someone sends you a takedown notice for something that they don't own, that doesn't sound even remotely like a legal takedown notice.

Re:If they don't own it, then it's not a legal not (2)

meerling (1487879) | more than 2 years ago | (#38032924)

I seem to recall some talk of that kind of stuff before. Apparently they have to in good faith attest that they have the copyrights to those items they send takedown notices for, or else they open themselves up for a lot of potential legal issues. I really have no bloody idea what that would be, but I'm sure suing them by both the ones that received the takedown notice, and the actual owner of the copyrighted material that WB claimed to own, would both be able to sue them.

I'm not a laywer, but we've seen this stuff come up in the forums before on small takedowns.

Re:If they don't own it, then it's not a legal not (1)

stanlyb (1839382) | more than 2 years ago | (#38033054)

Yep, buy how using an automated tool gives them the "good faith" cause? If you are willing to go deeper, even the takedown notice would be considered to be taken down, and the judge posted it, liable to a law suit. Ironic, ain't so?

Re:If they don't own it, then it's not a legal not (4, Interesting)

justforgetme (1814588) | more than 2 years ago | (#38033214)

... they have to in good faith attest that they have the copyrights to those items they send takedown notices for ....

The global judicial infrastructure is not based on good faith. You can't go into a court say you own a country and be granted legislative priviledges to that without research to affirm your claims. So why should individuals be forced to follow other individuals' claims in good faith? With the same concept spamers would have to just order you to install spyware.
That doesn't seem very consistent or legit or even healthy reasoning.

Re:If they don't own it, then it's not a legal not (2)

SuricouRaven (1897204) | more than 2 years ago | (#38033390)

Because it'd be logistically impossible to enforce copyright online to any higher standard than 'that looks a bit dodgy, pull it down.' It's almost impossible to enforce it even with the evidence-free standard of the DMCA.

Re:If they don't own it, then it's not a legal not (4, Insightful)

tinkerghost (944862) | more than 2 years ago | (#38034728)

Preliminary injunctions are issued under "good faith" statements by the lawyers - essentially it happens because there hasn't been any discovery yet in the issue. It means you actually believe that what you are saying is true. The converse - "bad faith" is liable for a 601 hearing by the bar association - although you basically have to be arrested before they give a damn.

The way the DMCA is written, takedown notices are basically preliminary injunctions against the posting of that item. What I can't understand is how you can in "good faith" say you own copyright on everything with "the box" in it. At this point, I would say that they violated the rules & should be sued for slander of title by the copyright owner and tortuous interfierence by hotfile and the copyright owners.

In my own little perfect world, they would have an injunction issued against them preventing them from issuing another takedown notice for a year or more as punishment for abusing the system.

Re:If they don't own it, then it's not a legal not (0)

Anonymous Coward | more than 2 years ago | (#38032928)

I believe that it's still a legal notice, it's just in error.
Which might open up the submitter to counter-claims of some kind, possibly due to perjury.
Even if it's not perjury, it might not qualify as "good faith," since in retrospect they were obviously doing it wrong.

Re:If they don't own it, then it's not a legal not (4, Insightful)

Tuoqui (1091447) | more than 2 years ago | (#38032984)

I would argue that you cant have 'good faith' when there is no human oversight involved. Thus punching in a bunch of keywords into some automated process and having it generate automated DMCA notices in a 'spray and pray' fashion is tantamount to walking around with a loaded firearm and when it accidentally discharges and kills someone you claim it was an accident (good faith) rather than murder (FRAUDULANT CLAIM)

Re:If they don't own it, then it's not a legal not (3, Insightful)

AK Marc (707885) | more than 2 years ago | (#38033082)

Telling an untruth under oath isn't perjury, even if proven to be untrue. It must be a lie. Filing these, knowing you are using error prone methods, does not indicate that any one order is likely untrue. They paid someone else to check. They acted in "good faith", even if negligent. Unless you can prove in a court of law that they knowingly lied, I'd expect no court would ever find they weren't acting in good faith.

Thus punching in a bunch of keywords into some automated process and having it generate automated DMCA notices in a 'spray and pray' fashion is tantamount to walking around with a loaded firearm and when it accidentally discharges and kills someone you claim it was an accident (good faith) rather than murder (FRAUDULANT CLAIM)

Wow, if you are seriously presenting that as a legal theory, I'm surprised you could turn a computer on. That's so stupid, it's funny. The courts do realize that killing someone is permanent and much worst than a temporary takedown notice mistakenly issued with no permanent effects at all. If you sued because of this "fraudulent claim" you'd likely be thrown out of court on your first day. You have a recourse listed specifically in the law. Issue a counter-claim and your content goes back up. If you object to having your stuff down for a bit before the counter-claim is active, you would have to prove financial damage prior to the start of the trial, otherwise, the judge could do something like a summary judgement in your favor for $1 (since you didn't indicate any actual loss, why bother with a trial? If you win and win back all damages against you, you'd get $0, so the judge orders them to pay you $1 and you walk away both a fool and a winner). If a DMCA claim is mistakenly filed against you, what's your loss?

Re:If they don't own it, then it's not a legal not (3, Insightful)

ClimberPunk (241268) | more than 2 years ago | (#38033148)

Telling an untruth under oath isn't perjury...

And there in lies one of the fundamental flaws in take down notices under the DCMA. They could just as easily have generated the notices from a ouija board or a burning bush. So long as you can't prove they knowing lied the notice is fully valid, and the sender of the notice faces no liability.

Re:If they don't own it, then it's not a legal not (5, Insightful)

Mashiki (184564) | more than 2 years ago | (#38033152)

Good faith requires that you have reasonable grounds to believe that something is true, or that you have the claim or right, or legal right to do so. That isn't the case here. They're simply doing it because they 'feel' or 'think it might be' something based on assumptions, and guesswork. It would be the same as a cop going along and busting down someone door randomly and saying "I reasonably believed that they were smuggling 250lbs of coke" based on their gut. Doesn't fly there, it shouldn't fly here.

There is a clause in the DMCA for filing claims that are false, perhaps people should start using it?

Re:If they don't own it, then it's not a legal not (1)

AK Marc (707885) | more than 2 years ago | (#38033458)

They have a claim on "Batman Begins" or such, and have been notified by a 3rd party that their copyrighted material of "Batman Begins" was fount at some specified location. They believe it, and have no reason not to. No court would consider a PI stating "I have proof that your material is at this specific location" to be "random" as so many here claim it is. Perhaps I just don't understand "random" By how I see it used here, the sun is "random" in when and how it rises every morning, since it's possible you won't see the sun at the appointed time because of clouds or something.

It would be the same as a cop going along and busting down someone door randomly and saying "I reasonably believed that they were smuggling 250lbs of coke" based on their gut. Doesn't fly there, it shouldn't fly here.

But it does fly for that, so by your logic, it should fly here as well. I think you are misrepresenting the "gut" to fit your opinion, though, so you could redefine "gut" in such a manner as to declare me wrong, but what you said happens every day. "Reasonable suspicion" is nothing more than "gut" where "gut" is defined a little more explicitly. Probable cause is a little more rigorous, but reasonable suspicion is the lowest level of "proof" defined by law and is no more than "gut" explained in English.

There is a clause in the DMCA for filing claims that are false, perhaps people should start using it?

That's what I said. There's nothing in there for someone who negligently files a "false" claim receiving any punishment. But if you have content taken down improperly, there is an explicit means to get it restored that the organisation removing the content must follow, or they are in violation of the DMCA (not following it is essentially the same as refusing a takedown in the first place).

Re:If they don't own it, then it's not a legal not (2)

TFAFalcon (1839122) | more than 2 years ago | (#38033610)

Haven't you been listening to the media industry? Each copy they prevent you from distributing equals thousands of dollars.All you have to do is set up a website where people can wire you donations after seeing your product.

Re:If they don't own it, then it's not a legal not (1)

AK Marc (707885) | more than 2 years ago | (#38034072)

You are confusing insane statutory losses intended for professional bootleggers (whether applied to casual non-profit sharing is irrelevant) with *actual* losses, which have to be well documented to claim. Depriving someone of their place of business for a day is easy to determine a loss of, as you just open your books for the last few years and calculate a reasonable interpolation of what that day would have been if you hadn't been deprived of it. But for a "free" video you were sharing on YouTube and getting no income from, what's the actual loss you can prove in court? If it's zero, then the court should dismiss your suit at the first hearing, as if you "win" and get exactly the same result as a "loss" then there's no reason to hold the hearing. You are confusing what you'd like to have happen with what will happen.

Re:If they don't own it, then it's not a legal not (0)

Anonymous Coward | more than 2 years ago | (#38034934)

Telling an untruth under oath isn't perjury, even if proven to be untrue. It must be a lie.

An "untruth" is, by definition, a lie.

lie
1â â[lahy] Show IPA noun, verb, lied, lyÂing.
noun
1.a false statement made with deliberate intent to deceive; an intentional untruth; a falsehood.
2.something intended or serving to convey a false impression; imposture: His flashy car was a lie that deceived no one.
3.an inaccurate or false statement.

I can't say "I swear I represent the copyright holders of that work", without knowing I actually do represent the copyright holders of that work. That is a lie. A lie under oath is perjury.

Re:If they don't own it, then it's not a legal not (1)

Anonymous Coward | more than 2 years ago | (#38033300)

It's not "accidental".

Sheriff to deputy: "The suspect's wearing a stetson hat, go take him down"
Deputy: "Got it" (goes out, shoots everyone wearing a stetson hat)
Sheriff: "Well, now hat's an accident!"

Re:If they don't own it, then it's not a legal not (5, Informative)

Cyberllama (113628) | more than 2 years ago | (#38033342)

Especially since they were repeatedly warned that they were misreporting files and refused to stop and it just so happens they had a financial motive in acting improperly given that the page generated by using the removal tool had links to purchase the alleged infringing work legally--free page views on free advertisements, effectively.

Re:If they don't own it, then it's not a legal not (1)

Hatta (162192) | more than 2 years ago | (#38034418)

Sounds like racketeering to me.

Re:If they don't own it, then it's not a legal not (5, Interesting)

Secret Rabbit (914973) | more than 2 years ago | (#38033062)

Yes, it is. However, if one submits such a false take down notice, the according to the DMCA they can be charged with perjury. It's too bad that (to my knowledge) no-one has taken advantage of this...

Re:If they don't own it, then it's not a legal not (2)

tepples (727027) | more than 2 years ago | (#38034144)

if one submits such a false take down notice, the according to the DMCA they can be charged with perjury. It's too bad that (to my knowledge) no-one has taken advantage of this

Lenz v. Universal is a start.

Re:If they don't own it, then it's not a legal not (3, Informative)

Hatta (162192) | more than 2 years ago | (#38034378)

The problem is the way the DMCA is written:

`(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

See, you're not swearing that the file in question belongs to the copyright holder that you represent. You're only swearing that you allege that the file in question belongs to a copyright holder that you represent. BIG difference.

The only explanation for this kind of language is that it was deliberately written to be unenforceable.

Re:If they don't own it, then it's not a legal not (1)

Anonymous Coward | more than 2 years ago | (#38034988)

No- what your swearing is that "the complaining party is authorized to act on behalf of the owner of an exclusive right", and that said right is "allegedly infringed".

In other words: "I'm acting for the owner of the right to this work, and that right has been allegedly infringed." As you can see, everything before the comma is demonstrably false.

Re:If they don't own it, then it's not a legal not (1)

Opportunist (166417) | more than 2 years ago | (#38033938)

Didn't you get the memo? "Legal (insert buzzword)" has nothing to do with "legal" in the way a dictionary defines "legal".

Re:If they don't own it, then it's not a legal not (1)

jythie (914043) | more than 2 years ago | (#38034638)

True, and if it was challenged it would fail, but they are taking advantage of the DMCA's extra-legal methods. Since hosts that do not 'quickly' deal with such notices loose their safe harbor provision, they can utilize 3rd party's fear to do things that they could never do through a judge.

Article on Techdirt (4, Informative)

mariushm (1022195) | more than 2 years ago | (#38032910)

Techdirt has a great article about this: http://www.techdirt.com/articles/20111110/10135116708/glimpse-future-under-sopa-warner-bros-admits-it-filed-many-false-takedown-notices.shtml [techdirt.com]

It makes some interesting parallels to SOPA and E-Parasites bills and why the laws shouldn't be passed.

Reported by torrentfreak.com without bias LOL (-1)

Anonymous Coward | more than 2 years ago | (#38032914)

Yeah right..

"Recommended Articles" includes top 10 torrent sites so that you can download the shit out of all the Linux ISOs...

Re:Reported by torrentfreak.com without bias LOL (4, Insightful)

hairyfeet (841228) | more than 2 years ago | (#38033548)

Actually there are sometimes very good reasons for downloading copyrighted material. For example I have downloaded cracked versions of several games that i have bought and paid for, why? because when I switched to a 64 bit OS the fucked up DRM would no longer function and in fact IME can seriously damage the OS because some of the installers will try to jam 32bit hooks into a 64bit kernel and really make a mess. oh and their uninstaller DOES NOT WORK so once its jammed in there you are SOL. I have also found company supplied system requirements and demos are often completely full of shit, as i've bought games where I was WAY below system reqs and the demo played fine but the game simply wouldn't run at all on my system. of course there is no taking it back once opened, so there goes my money right down the shitter.

So until the game companies start removing their DRM after a year or whenever they stop supporting the game, whichever comes first, and I'm allowed to take back products that are defective frankly they can kiss my ass. If they were smart they'd embrace sites like Steam and GOG where my games "just work" but even that they are trying to fuck up by adding DRM on top of Steam, such as the shitastic GFWL bullshit I got stuck with when i bought Bioshock II. The pirate version? No jumping through GFWL constant bullshit just to play the game.

So I have to agree with Gabe from Valve when he said something along the lines of "piracy means you are offering an inferior product". Either your price is too high, the DRM too shitty, or too many hoops just to play (I'm looking at YOU Bioshock II) and you are simply not making your product as useful for the customer as the pirated version.

Re:Reported by torrentfreak.com without bias LOL (1)

TheRaven64 (641858) | more than 2 years ago | (#38034034)

of course there is no taking it back once opened, so there goes my money right down the shitter

Is this really true? In the UK, you can return it with the original packaging as not suitable for the purpose for which sold, and they are obliged to give you a refund. If they don't, then you can take them to the small claims court as long as you do so within a few (5, I think) years of the purchase.

Re:Reported by torrentfreak.com without bias LOL (1)

digitig (1056110) | more than 2 years ago | (#38034106)

Is this really true? In the UK, you can return it with the original packaging as not suitable for the purpose for which sold, and they are obliged to give you a refund. If they don't, then you can take them to the small claims court as long as you do so within a few (5, I think) years of the purchase.

I think they would point to the fine print on the box, visible before you opened it, that specified it was for a 32-bit operating system and made no claims about its suitability for a 64-bit OS, and your claim would collapse.

Takedown? (5, Insightful)

Tuoqui (1091447) | more than 2 years ago | (#38032946)

"This is akin to not holding the Post Office liable for what people mail, or the phone companies liable for what people say."

No this is akin to FRAUD. It'd be like me saying I'm Warner Brothers and going and cleaning out their bank accounts.

PS: Maybe if the DMCA included fines and penalties for takedown notices that are illegitimate they might not be as prone to using automated tools that work on a 'spray and pray' philosophy... Also if any of these people were unfairly targeted by DMCA notices should sue Warner Bros for damages and such.

Re:Takedown? (2, Interesting)

slimjim8094 (941042) | more than 2 years ago | (#38033136)

It's perjury. Which is ostensibly better than fines.

Here's hoping

Re:Takedown? (1)

Alex Belits (437) | more than 2 years ago | (#38033602)

IIRC, perjury only applies to testimony and documents presented to a court. DMCA takedown notice, just like C&D notice, is directed toward a private party, so it's "only" fraud.

On the other hand, it can be considered to be a part of intimidation-based business practice, and with some luck and sufficiently annoyed judge fall under RICO.

Re:Takedown? (5, Informative)

TheRaven64 (641858) | more than 2 years ago | (#38034038)

Nope, it's perjury. A DMCA takedown notice is (according to the DMCA itself) issued under penalty of perjury. It may also be fraud, anticompetitive behaviour, and a variety of other things, but issuing a DMCA takedown notice without being sure that it is accurate is perjury. It is not analogous to perjury, the fact that it is perjury is written into the DMCA. It's time someone started prosecuting people who send false takedown notices.

Re:Takedown? (0)

Anonymous Coward | more than 2 years ago | (#38033670)

> It's perjury.
No, it's not perjury.

The only part of a DMCA notice which is made under penalty of perjury is the statement that the person sending the notice is authorised (or has a good faith belief that they are authorised) to act on the behalf of the entity which is purported to be the copyright holder.

The claim that a particular copyright is being infringed is not (and cannot be) made under penalty of perjury as it's a claim, not a statement of fact.

Re:Takedown? (1)

TheRaven64 (641858) | more than 2 years ago | (#38034042)

The claim is that you are authorised to act on behalf of the owner of the copyright of the work being distributed. If you are authorised to work on behalf of the owner of copyrighted work A, and you file a takedown notice against work B, then you are not authorised to act on the behalf of the copyright owner.

Re:Takedown? (4, Interesting)

mandelbr0t (1015855) | more than 2 years ago | (#38033502)

"Spray and pray" indeed. I received a couple of DMCA takedown notices... and I live in Canada. They don't even know what jurisdiction they're sending these automated notices to. Maybe it is a difficult task to keep tabs on the entire Internet protecting their copyrights. I'd say that the fact that they can't do it reliably means they are going about it in the wrong way.

Re:Takedown? (1)

geekmux (1040042) | more than 2 years ago | (#38033970)

"Spray and pray" indeed. I received a couple of DMCA takedown notices... and I live in Canada. They don't even know what jurisdiction they're sending these automated notices to. Maybe it is a difficult task to keep tabs on the entire Internet protecting their copyrights. I'd say that the fact that they can't do it reliably means they are going about it in the wrong way.

Uh, "Maybe"?!? Trust me, I'm NOT siding with Warner Brothers here, but that's putting it mildly when speaking of a globally connected network with millions of nodes spread across hundreds (thousands?) of "jurisdiction" points. I agree that someone should retaliate against WB if they were targeted unfairly, but I am also curious as to what alternative WB or anyone else would have that would somehow prove more accurate when on a "seek and destroy" mission across the 'net.

This is akin to celebrities spending thousands on legal teams to try and eradicate their "leaked" cell phone pics from the interent. Even though all parties involved know they're facing what is truly an impossible task, they still go through the effort and spend the money.

So why the hell would people or organizations waste time and money on impossible tasks? The answer is fairly simple when you look at who profits the most from it. In the end, it is still all about money.

Cease and desist (1)

tepples (727027) | more than 2 years ago | (#38034148)

I received a couple of DMCA takedown notices... and I live in Canada.

"Juris-my-diction"? Canada is a Berne Convention party too. If your country doesn't have a takedown law, then I'm guessing the notice should be handled like any other cease-and-desist letter: "take down this customer's unauthorized copy of our work or I am likely to sue you as a provider." Does the law of Canada provide for any procedure that gives a legal defense to service providers against contributory or vicarious liability for copyright infringement?

Re:Cease and desist (1)

mandelbr0t (1015855) | more than 2 years ago | (#38034170)

No, but as Bill C-32 has not yet passed, the 2004 Supreme Court decision [cnet.com] is still the prevailing law with regard to P2P file sharing. Sending cease-and-desist letters to law-abiding citizens of another jurisdiction is nothing but legal intimidation.

Penalties for not implementing WIPO (1)

tepples (727027) | more than 2 years ago | (#38034794)

What I gather from the article is that P2P use is still lawful in Canada because Canada hasn't yet implemented the WIPO treaty. But does the WIPO treaty specify penalties for not transposing it into national statutes in a timely manner? Would countries with tougher copyright laws be justified in imposing trade sanctions on Canada?

Pedant (3, Informative)

anagama (611277) | more than 2 years ago | (#38032952)

trying not be pedantic, but the line:

This is akin to not holding the Post Office liable for what people mail, or the phone companies liable for what people say.

That "not" shouldn't be there. And it feels like there is something missing from this analogy. Perhaps it would be like "holding the post office responsible to stop mailing privileges for people wrongly accused of mailing fireworks."

Re:Pedant (1)

flaming error (1041742) | more than 2 years ago | (#38033422)

The "for what people" phrase is what shouldn't be there. Better analogies would be "This is akin to not holding the Post office liable for what the Postmaster mails, or the phone companies liable for what their spokesman says."

Re:Pedant (0)

Anonymous Coward | more than 2 years ago | (#38033652)

That's not the only problem. The summary reads like "sending automated takedown notices is akin to not holding the post office liable for the mail they send." That doesn't even make sense.

takedown notices are one-sided (5, Insightful)

larry bagina (561269) | more than 2 years ago | (#38032972)

If you carefully review the elements of the DMCA takedown and put-back notices [wikipedia.org] , you'll note that for the put-back notice, you must provider

a statement under penalty of perjury that [you have] a good faith belief the material was mistakenly taken down

Fair enough. But check the takedown notice:

a statement that [evil RIAA goon lawyer] has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

a statement that, under penalty of perjury, [evil RIAA goon lawyer] is authorized to act for the copyright holder

That's right -- it's a crime (perjury) to submit a take down notice if (and only if) you're not authorized by the copyright holder. It's not a crime to submit bad-fath take down notices. But disputing a bad-faith take down notice potentially is a crime and exposes you to criminal liability.

Re:takedown notices are one-sided (0)

Anonymous Coward | more than 2 years ago | (#38033004)

They are both subject to perjury, how is one not a crime and the other is? I'm not a lawyer, but perjury is perjury.

Re:takedown notices are one-sided (0)

Anonymous Coward | more than 2 years ago | (#38033044)

Larry's reading, apparently, is that "under penalty of perjury" applies to the whole counter-notice, and the part of the takedown notice where you claim you hold the rights, but *not* the part of the takedown notice where you claim the request is in good faith.

Re:takedown notices are one-sided (0)

Anonymous Coward | more than 2 years ago | (#38033222)

If, as the summary suggests, Warner Brothers actually sent takedown notices regarding files they did not own the copyrights on, then they weren't authorized to act for the copyright holders. That seems to be perjury, if your reading of the law is correct.

Re:takedown notices are one-sided (-1)

Anonymous Coward | more than 2 years ago | (#38033352)

Here's one I received recently, redacted to protect the innocent.

RE: Unauthorized Distribution of the Copyrighted Television Series Entitled
XXXXX


Dear XXXXX:

We are writing this letter on behalf of Showtime Networks Inc. ("SNI").

We have received information that an individual has utilized the below-referenced IP address at the noted date and time to offer downloads of copyrighted television programs through a "peer-to-peer" service, including such title(s) as:

XXXXX

The distribution of unauthorized copies of copyrighted television programs constitutes copyright infringement under the Copyright Act, Title 17 United States Code Section 106(3). This conduct may also violate the laws of other countries, international law, and/or treaty obligations.

Since you own this IP address (X.X.X.X), we request that you immediately do the following:

1) Remove or disable access to the individual who has engaged in the conduct described above; and

2) Take appropriate action against the account holder under your Abuse Policy/Terms of Service Agreement.

We also would request that you inform the individual who engaged in this conduct that legitimate copies of SNI content are widely available for viewing online, for example on www.sho.com , as well as iTunes, Amazon.com and Movielink.com.

On behalf of SNI, owner of the exclusive rights in the copyrighted material at issue in this notice, we hereby state that we have a good faith belief that use of the material in the manner complained of is not authorized by SNI, its respective agents, or the law.


Also, we hereby state, under penalty of perjury, that the information in this notification is accurate and that we are authorized to act on behalf of the owner of the exclusive rights being infringed as set forth in this notification.

Please direct any end user queries to the following:

CopyrightQs@mediasentry.com

Please include the Case ID XXXXX, also noted above, in the subject line of all future correspondence regarding this matter.


We appreciate your assistance and thank you for your cooperation in this matter. Your prompt response is requested.


Respectfully,

D. Brewer
Enforcement Coordinator
Peer Media Technologies, Inc.
copyrightqs@mediasentry.com

Re:takedown notices are one-sided (2)

HJED (1304957) | more than 2 years ago | (#38033802)

Except that isn't a DMCA notice

Re:takedown notices are one-sided (0)

Anonymous Coward | more than 2 years ago | (#38033368)

Except they weren't authorized to act for the copyright holder, because WB didn't own the copyright.

Re:takedown notices are one-sided (1)

grahammm (9083) | more than 2 years ago | (#38033442)

a statement that, under penalty of perjury, [evil RIAA goon lawyer] is authorized to act for the copyright holder

So as WB were NOT not acting with the authority of the copyright owner, were they not committing perjury? Unlike the other statements quoted, this one does not contain the 'goof faith' clause.

Re:takedown notices are one-sided (1)

cpghost (719344) | more than 2 years ago | (#38033600)

That's right -- it's a crime (perjury) to submit a take down notice if (and only if) you're not authorized by the copyright holder.

Right. Now suppose that I create a file with a misleading name, like $SOME_MOVIE_TITLE, and that I own the copyright on its contents (let that be some poem I wrote, or whatever). $EVIL_RIAA authorizes $EVIL_LAWYER to send a DMCA takedown notice. $EVIL_LAWYER is still NOT covered by the DMCA, because though he is authorized by $EVIL_RIAA to act on their behalf for works of which they own the copyright, he is still NOT authorized by the real copyright holder of $SOME_MOVIE_TITLE file (me). Therefore, $EVIL_LAWYER committed perjury. Or didn't he?

Re:takedown notices are one-sided (0)

Anonymous Coward | more than 2 years ago | (#38034160)

You're making things way too murky.
More pertinent to the article: Suppose WB's legal team submits take down notices for content that WB doesn't own the copyright to, and their legal team hasn't been given authority by whoever does own the copyright.
In this case, WB's legal team committed perjury.

Fun, no?

Re:takedown notices are one-sided (0)

Anonymous Coward | more than 2 years ago | (#38034338)

You couldn't use the exact same name as the movie or it would open you up to some legal action I believe, but you can have it named something close, unless it is one of them movies with a generic name that could be anything.

So you could name it something like "Shooter" and still be in the clear as it could be anything, but you couldn't name it something as specific as "Lord of the Rings"

Or you could make a parody of something and give it a similar name, you would still be in the clear legally.

Re:takedown notices are one-sided (2)

TheRaven64 (641858) | more than 2 years ago | (#38034056)

By your reading, you only have to be acting on behalf of the owner of some random copyright to be able to send takedown notices on any unrelated topic. For example, I own the copyright on the books that I've published and, more importantly, on this Slashdot post. If I authorise someone to send takedown notices to everyone who infringes the copyright on this post, and they file takedown notices with Hulu against all WB shows, then your reading would be that that is completely legal. I strongly suspect that a court would disagree and say that you have to be sure that it is your copyright that is being infringed.

Re:takedown notices are one-sided (1)

drinkypoo (153816) | more than 2 years ago | (#38034572)

More interestingly, if you authorize EVERYONE to send takedown notices to ANYONE who infringes the copyright, isn't it a totally legal DDoS if they do?

Re:takedown notices are one-sided (2)

mounthood (993037) | more than 2 years ago | (#38034842)

Even if we assume your reading of the law is correct, perjury still applies.

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

A DMCA submitter is not "authorized to act on behalf of" someone else's copyright, and therefore has issued a false statement "under penalty of perjury".

But it doesn't really matter because everyone involved in the system (eventually) loses their job if they fight the power and moneyed interests, and since they know that, they don't.

nonsense (0)

Anonymous Coward | more than 2 years ago | (#38033000)

"But the flip side is that hosters must remove files when receiving a legal takedown notice from the copyright holder"

Nonsense. Their choices area:

1) take it down,
2) tell Warner Brothers they have to use the legal process to have it taken down,
3) if the uploader agrees, Warner Brothers will have to use the legal process to have it taken down and the ISP is NOT liable regardless of the outcome.

Re:nonsense (1)

SuricouRaven (1897204) | more than 2 years ago | (#38033410)

1) Take it down, right now, no questions.
2) Become liable for a claim for damages according to the DMCA.

Unless the recipient is willing to risk great financial loss just to prove a point, it's really no contest.

Re:nonsense (3, Informative)

TheRaven64 (641858) | more than 2 years ago | (#38034068)

No, they have two choices: take it down immediately or lose their DMCA safe harbour protection. Without the safe harbour protection, they are liable for any copyright infringement that occurs on their site, so become liable for statutory fines of $7.5K or more per work that is uploaded to YouTube and infringes anyone's copyright. i.e. enough to bankrupt Google. I am not certain what happens if they don't put things back after receiving a counternotice. I would hope that this incurs the same liability.

Sending a takedown notice is using the legal process to have it taken down, so your points 1 and 2 are the same. If the uploader files a counternotice and they put it back, then it has to proceed through the courts and the host is not liable for any infringement (as long as they take it down if the court tells them to).

Re:nonsense (1)

nurb432 (527695) | more than 2 years ago | (#38034604)

4 ) Be sued and lose money defending their clients, even if they win.

Clean Hands (1)

Anonymous Coward | more than 2 years ago | (#38033018)

So how does the Clean Hands Doctrine come into play and can these sites start ignoring take-down notices from Warner Brothers because of it?

Legal terminology (5, Insightful)

Sooner Boomer (96864) | more than 2 years ago | (#38033040)

Under the law, this action is refered to as "depraved indifference" - an action, deliberate or unintentional, displaying reckless disregard and wanton carelessness. A suitable penalty would include the removal of the ability to issue takedown notices for a year (or more...).

Re:Legal terminology (1)

dbIII (701233) | more than 2 years ago | (#38033096)

Isn't there a penalty in the law for sending out false DMCA notices already? It appears to just have been used as a sweetener to help it pass because it has never been applied.

Re:Legal terminology (0)

Anonymous Coward | more than 2 years ago | (#38033200)

God is just. They just have to learn that as they puzzle life's hell.

Re:Legal terminology (4, Insightful)

advocate_one (662832) | more than 2 years ago | (#38033482)

a suitable penalty would be loss of breathing privileges for the corporation...

Re:Legal terminology (4, Insightful)

geekmux (1040042) | more than 2 years ago | (#38034022)

Under the law, this action is refered to as "depraved indifference" - an action, deliberate or unintentional, displaying reckless disregard and wanton carelessness. A suitable penalty would include the removal of the ability to issue takedown notices for a year (or more...).

Sounds like a fantastic penalty and suitable countermeasure against sue-happy orgs and their "spray and pray" tactics.

Unfortunately, this also appears to be an older law that came from our Justice system. We don't have that anymore here in the US. All we have is a Legal system, where laws go out the window in favor of cronyism and greased palms.

If that's difficult to believe, then tell me how many sue-happy orgs have been forced to "sit out" for an entire "season" of wrongful accusations.

Re:Legal terminology (1)

grahammm (9083) | more than 2 years ago | (#38034118)

Or maybe a more appropriate penalty would be , as they were claim others' copyrights as their own, to strip them of their copyrights and place into the public domain all works whose copyrights they currently own.

Reminds me of the old phone company joke... (4, Insightful)

Eggplant62 (120514) | more than 2 years ago | (#38033046)

Lilly Tomlin on SNL back in the '70s: "We don't care, we don't have to, we're the phone company... *snort*"

Re:Reminds me of the old phone company joke... (0)

Anonymous Coward | more than 2 years ago | (#38033298)

Lilly Tomlin on SNL back in the '70s: "We don't care, we don't have to, we're the phone company... *snort*"

This is so true on so many levels. Like government, like corporate. When legality trumps morality, can you really expect better?

Simple Solution (4, Insightful)

artor3 (1344997) | more than 2 years ago | (#38033068)

Copyright holders aren't responsible when their bots screw up? Okay, fine, I can buy that. Programs do occasionally make mistakes. I don't get angry at Netflix for occasionally recommending Shindler's List based on my interest in Wall-E. But if content hosters have to pull down content when they receive a notice from a company holding the copyright, then there needs to be a way for the hoster to know if the company holds the copyright.

Media companies engaging in such scattershot tactics should therefore be required to host a database listing every copyright they own. That way if they send a takedown notice for video X to YouTube, someone at YouTube can check the video, check the database, and say "yep, that shouldn't be here" or "nope, this request must have been sent in error."

If they own the copyright but don't list it in their database, then it's their own damn fault if hosters don't pull it. If they don't own the copyright and but do list it in the database, then that can no longer be dismissed as just an error in their bot's algorithm, and they should be open to lawsuits from both sites receiving takedown notices and from the actual copyright holder.

Re:Simple Solution (2)

msobkow (48369) | more than 2 years ago | (#38033130)

It should be that simple, until you try to get the copyright holders to agree on a format for the database. At a minimum, that design by committee would add a couple years of delay and excuses.

Re:Simple Solution (1)

Anonymous Coward | more than 2 years ago | (#38034128)

Not if you decide that they can't issue DMCA takedown notices until they have a database in order. The format will be decided within a week.

Re:Simple Solution (3, Interesting)

Kjella (173770) | more than 2 years ago | (#38033210)

Media companies engaging in such scattershot tactics should therefore be required to host a database listing every copyright they own. That way if they send a takedown notice for video X to YouTube, someone at YouTube can check the video, check the database, and say "yep, that shouldn't be here" or "nope, this request must have been sent in error."

So if the database lists a movie title, YouTube is supposed to know every scene in every movie and know if the content is infringing? Or did you mean to say they have to put up a movie server so YouTube can compare clip against clip? And how exactly would it limit their scattershot practice if YouTube gets all the hard work validating or dismissing everything? The part about "we own this copyright" is right there in the DMCA notice, under penalty of perjury even. The question is if the copyright they have apply to the clip they're trying to take down or not and there's no easy compare function between List<Copyright> and List<VideoClip>. Even if they put up an "original" there's a million kind of settings and clips and compilations and whatnot that don't qualify as fair use, you try to write that fuzzy matching. Quite frankly I'm not sure what you're trying to suggest, but I'm pretty sure it doesn't make any sense.

Re:Simple Solution (2)

msobkow (48369) | more than 2 years ago | (#38033284)

From the article:

In addition, the movie studio states that it removed many titles based merely on keywords and without verifying their actual content.

They're not claiming they verified the content at all. But they issued takedown orders based on title keywords that they don't own. You should be at least willing to put up a list of what you claim to own so that minimal verification at least can be done before obeying a takedown order. Takedown orders are legal documents -- it's not something the ISP can arbitrarily ignore.

Inevitable car analogy: It's like me calling the police to report that "my" car was stolen, but describing yours instead.

Re:Simple Solution (1)

MimeticLie (1866406) | more than 2 years ago | (#38033394)

Except that a service provider isn't supposed to make judgments on the legitimacy of the order. If they receive one, they take the content down and it's the responsibility of the person who posted it to issue a DMCA counter-claim. Doing otherwise risks their safe harbor status under the DMCA.

But for your proposal specifically, how is the service provider supposed to verify if a given piece of content is from something owned by the company that issued the takedown notice? The companies are using keyword searches because there is too much content to verify manually. The amount of work required to track down the actual source of a random file and then compare it to the big list of owned content is a ridiculous amount of effort for slim to no gain for the service provider. Much better then, from a legal and financial perspective just to let the users deal with counter-claims.

Re:Simple Solution (3, Insightful)

msobkow (48369) | more than 2 years ago | (#38033586)

Then the studios are going to have to manually verify things instead of relying on automated tools, at very least by going through the list of candidate matches by hand. With their billion dollar budget total, they can afford to do it if they're that concerned about piracy.

Otherwise they should be slammed in the courts for fraudulently claiming copyright on materials they don't own, and slammed hard. How much time does a citizen normally serve for lying in court? Or laying false charges through the police? Multiply accordingly... and the executives who approved the automatic searches should be the ones doing the time, not some underling.

Re:Simple Solution (1)

cheekyjohnson (1873388) | more than 2 years ago | (#38033620)

The companies are using keyword searches because there is too much content to verify manually.

That is simply too bad for them (the copyright holders). Forgive me for not caring about the fact that they might be losing potential profit enough that I would support them randomly issuing takedown orders on things that they don't even hold the copyright to.

Re:Simple Solution (2)

Kjella (173770) | more than 2 years ago | (#38033508)

But they issued takedown orders based on title keywords that they don't own. You should be at least willing to put up a list of what you claim to own so that minimal verification at least can be done before obeying a takedown order.

But that is already part of a DMCA notice. Like for example:

The movie studio admits this and confirms that while searching for âThe Box (2009)â(TM) many unrelated titles were removed. âoeWarner admits that its records indicate that URLs containing the phrases âThe Box That Changed Britainâ(TM) and âCancer Step Outsider of the Boxâ(TM) were requested for takedown through use of the SRA tool.â

This would come through as a DMCA notice saying we own the copyright to the movie "The Box". We believe the file called "The Box That Changed Britain" is an unauthorized copy of "The Box". Everything you ask for is already available but nobody actually has the time to manually do the verification you ask and a database would do absolutely nothing to change that.

Re:Simple Solution (4, Insightful)

msobkow (48369) | more than 2 years ago | (#38033588)

Funny. Torrent sites don't seem to have trouble cleaning out the periodic floods of bogus torrents, and they don't operate on anywhere near the manpower budget Hollywood does.

Re:Simple Solution (1)

Kjella (173770) | more than 2 years ago | (#38033928)

Reality is that the top 100 "users" - or rather feeds represent 75% [slashdot.org] of the posted content, you just have to check new users and if you want you can block them. All the MPAA got is a gigantic game of whack-a-mole trying to delete files at random as they show up in search results, the problem isn't even remotely comparable.

Re:Simple Solution (2, Insightful)

Anonymous Coward | more than 2 years ago | (#38033270)

Uh.. there's an even simpler solution.. If the media companies are the ones benefiting from takedown notices properly used ... then the media companies need to pony up when they issue takedown notices improperly. It does not matter one goddamn bit to me if the notices are being generated and delivered automagically. Those companies benefit when it works as intended. Thus, they need to bear the costs when it doesn't. If the costs are stupendous because the false positive rate is atrocious, then thems the breaks. Find a better automated solution. Even better.. the media companies have provided us with penalties for interfering with copyrights that they're happy to apply to others. So.. when the media companies interfere with other's copyrights, those penalties, obnoxiously inflated that they are, should apply to the media companies.

What, no (2)

atari2600a (1892574) | more than 2 years ago | (#38033206)

This is more akin to the phone company not being liable for using automated software to drop all calls that have words that sound like 'bomb'. (Fun Fact: the tech WAS implemented for international calls post-9/11)

Re:What, no (0)

Anonymous Coward | more than 2 years ago | (#38033374)

[citation needed]

Re:What, no (3, Funny)

pjt33 (739471) | more than 2 years ago | (#38033388)

That has some fairly large problems, starting with the fact that "bomba" is Spanish for bomb or for pump, and so firemen are "bomberos".

Re:What, no (2)

atari2600a (1892574) | more than 2 years ago | (#38033976)

If the computers did ALL the work then we wouldn't be paying CIA officials to screen them all.

Open Source Software? (5, Insightful)

Khith (608295) | more than 2 years ago | (#38033220)

It doesn't seem to be mentioned anywhere in the article, but does anyone know which "Open Source software" was removed? They claim that the software sped up infringing downloads, so I wondered if it was a file sharing program or download accelerator or something along those lines. This company would happily claim that the entire internet in general is bad because it helps people download infringing content.

Is this not True copyright theft? (5, Insightful)

grahammm (9083) | more than 2 years ago | (#38033304)

If, as the rights owners claim, unauthorised copying is 'copyright theft, then surely claiming to own the copyright of something which they do not. is a much more serious case of copyright theft.

Re:Is this not True copyright theft? (1)

DarkIye (875062) | more than 2 years ago | (#38034060)

I'm not a lawyer, but that logic is totally sound.

This is simple to fix (4, Insightful)

Arancaytar (966377) | more than 2 years ago | (#38033622)

Since it is now public knowledge these automated tools are unreliable, simply stop allowing its users to pretend to good faith while using them. Rights holders should not be able to pass the cost of policing their rights on to society by spamming the legal system with invalid notices.

(Not taking into account that "passing the cost of policing their rights on to society" is what they have done for decades.)

Catch 22? Twilight Zone? (3, Interesting)

oDDmON oUT (231200) | more than 2 years ago | (#38033882)

Or a preview of life in these United States in two or three years? This is precisely what will happen when those charged with conducting the business of the nation decide instead to legislate moral behavior.

To stay in the post office analogy... (4, Insightful)

Opportunist (166417) | more than 2 years ago | (#38033946)

Does that mean that's like me going to a post office and telling them to throw away various packages because I think they might be damaging one of my rights and they'd have to do it?

Anyone here thinking this sounds like it could in any way remotely be connected to the definition of "legal"?

Money for politicains (0)

Anonymous Coward | more than 2 years ago | (#38034076)

I wonder how much time it will be before there is a law that you can not name a file in a public place close to the same name as a copyrighted MPAA/RIAA title.

Analogy sucks (1)

nurb432 (527695) | more than 2 years ago | (#38034590)

That analogy in the story really sucks bad. Its nothing like the example that the post office isn't held responsible for content. Of course they aren't. they cant see the content.

If you have to use the PO, it would be more like them refusing to deliver due to the content of the magazine titles. " we think its bad "

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