Warner Brothers Admits Bogus DMCA Filings in Hotfile Lawsuit

FLORIDA—In Disney v. Hotfile, the copyright infringement case brought against the Florida-based file-hosting service this February, Warner Brothers, a plaintiff, has admitted in a court filing that in addition to sending correct takedown notices to Hotfile to have its copyrighted content removed from the site, it also had material removed for which it did not own the copyright. For some, the admission underscores why they are against the passage of the Stop Online Privacy Act (SOPA), the House of Representatives' version of the Senate's Protect IP Act, both of which are currently being considered in their respective committees.

The irony of the situation is that Hotfile provided the technical means by which Warner Brothers requested the bogus takedowns for movie titles, video games and software. In a September filing, according to Ars Technica, Hotfile told the court it had "provided Warner Brothers with an automated takedown tool to enable the studio to rapidly remove content it believed to be infringing."

Unfortunately, according to the filing, the studio failed to monitor the program, but left the identification of allegedly illegally uploaded content to automated spidering without employing any human supervision. That lack of oversight is problematic for Ars Technica's Timothy B. Lee, who wrote of Warner's failure to know what it was requesting to have taken down, "This is interesting because the DMCA requires a copyright holder issuing a takedown notice to state that it has a 'good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.' It's hard to see how anyone at Warner Brothers could have formed any beliefs—good faith or otherwise—about files it admits that no human being at Warner had even looked at."

Warner Brothers also admitted to purposefully requesting the take down of software for which it did not hold a copyright, saying in the filing, "Warner admits that a file requested to be removed by Warner was software that had been posted alongside infringing Warner content in order to facilitate the rapid downloading of the infringing Warner content, and that Warner was not the owner of the software itself."

According to TorrentFreak, which also has a copy of Warner Brothers filing available, "This purposeful removal of third party Open Source software is a bold move, and it will be interesting to see how the court reviews these and the other false takedowns."

Hotfile has also been targeted by the adult industry for essentially the same reasons the major motion picture studios brought their action. As reported by AVN in January, Corbin Fisher filed a copyright infringement action against Hotfile, Anton Titov, Lemuria Communications, PayPal and 1-1000 John Does, alleging 800 known instances of Corbin Fisher content illegally uploaded to the site.

In its complaint, Corbin's attorneys stated, "Defendant Hotfile.com, like Grokster before it, has a theoretically legitimate use. Certainly there are large files that users might want to share with other users with no illegal content. Defendant Hotfile’s practical and overwhelmingly popular application, however, is singular and transparent: To profit from the illegal sharing of copyrighted materials, many of which are the intellectual property of Liberty.” The case was dismissed in May.

Disney continues, however, but whoever prevails the admissions made Monday by Warner Brothers will be, and already have been, used by opponents of the digital piracy-killing bills being considered by Congress to drive home the argument that handing increased legal authority to copyright holders would be a massive over-correction of the current (and equally imbalanced) state of affairs.

"The recently proposed Stop Online Piracy Act, which is backed by the major Hollywood studios, would give copyright holders new powers to cut off websites' access to payment processors and advertising networks," states Lee for Ars Technica. "It even includes a new DMCA-style notice-and-takedown scheme. But given the cavalier way that Warner Brothers has used the powers it already has under the DMCA, policymakers may be reluctant to expand those powers even further."