
Warner Bros: We issued takedowns for files we never saw - codedivine
http://arstechnica.com/tech-policy/news/2011/11/warner-admits-it-issues-takedowns-for-files-it-hasnt-looked-at.ars
======
Groxx
This is a fun problem.

Issuing takedowns for things you don't control is wrong, and it's easy to
verify that it costs the host time and money to resolve their mistakes. Suing
material, basically.

Meanwhile, having penalties for issuing faulty takedowns means it's
impractical for owners to police things fast enough - the uploaders can always
out-pace them. So it's essentially the same situation, in reverse.

I side with the hosts on this, especially as issuing a takedown seems
equivalent to a company claiming ownership of something that's definitively
not theirs - a bit of a no-no, I hear. And since issuing the takedowns is
easily poorly-automated, but not actually performing the takedowns or dealing
with unhappy paying customers, it seems (completely) unfairly weighted against
hosts unless they're explicitly protected.

But really, there's _absolutely_ no way to make everyone happy in this, unless
illegal sharing goes away entirely on its own. Hosts can't catch everything,
owners can't watch everything, and removing user-uploaded content sites would
massively cripple the internet.

~~~
Natsu
I would be willing to grant that they had a good-faith belief that something
was infringing if someone had mislabeled or ambiguously labeled it such that
it could reasonably refer to something they hold the copyright on, even if the
content in question was not infringing.

I would not be willing to grant them that much credit for all the examples
cited in the article where they simply didn't bother to check the output of
their search programs and stop them from returning garbage.

I simply don't believe that the good faith requirement means anything if they
can get away with requesting a takedown of the file
"<http://hotfile.com/contacts.html> and give them the details of where the
link was posted and the link and they will deal to the @sshole who posted the
fake." _repeatedly_ and get away with it.

God help us if some RIAA artist decides to get clever and name their next
album something like "THE." I can only imagine what sort of takedowns they
might issue.

~~~
einhverfr
So suppose I write a script that removes Cascading Stylesheet tags from web
pages, and replaces them with inline style tags. Suppose I call it DeCSS.pl

What right would the MPAA have for believing this has anything to do with
Content Scrambling System? You know, they _could_ download and look at the
file before assuming it is infringing.....

~~~
Natsu
If I were allowed to decide how the law should be, I would still allow actual
damages against them, if any, in such a case. And I'd only allow their
confusion as a concession, rather than allowing the good faith requirement to
be meaningless.

They'd be much better off if they accepted the inevitable and learned how to
provide value to their customers (like Steam, for example). I just don't
actually expect them to do that.

~~~
einhverfr
As long as actual damage includes: 1) Attorney fees 2) Business disruption
costs 3) The time I have to spend away from work to carry the suit forward (in
other words, the longer they drag it out, the more the damages are)... 4)
Interest on all the foregoing.....

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zinkem
>"given the volume and pace of new infringements on Hotfile, Warner could not
practically download and view the contents of each file prior to requesting
that it be taken down."

This seems to be the same line of reasoning that protects YouTube from legal
responsibility for users' content.

YouTube won't (and doesn't have to) police everyone's uploads, because there
are so many. Well now the media companies can spam DMCA takedown notices, but
"there are too many to verify"... putting the costs of verification/validation
of content back on the hosting sites?

~~~
jerf
Solution for the companies: Recognize that infringements are not uniformly
distributed and resign yourself to the fact that enforcement can never be
perfect and that you can only knock over the big, confirmed cases.

Solution for society: Recognize that bending the law over backwards to provide
perfect security for big content companies has costs in excess of benefits and
isn't worth it, especially given the availability of the previous solution.

~~~
JoshTriplett
> Solution for society: Recognize that bending the law over backwards to
> provide perfect security for big content companies has costs in excess of
> benefits and isn't worth it, especially given the availability of the
> previous solution.

To the extent society has any opinion on that whatsoever, it already agrees
with everything you just said, if not going further. But society doesn't
determine the laws in question; if it did we wouldn't have them.

~~~
loup-vaillant
I'm not sure. For any given subject, the society has a majority of people
largely ignorant of that subject.

Here, since BigContent managed to call some types of state-granted monopolies
"Intellectual Property" and "Protection", the vast majority of people tend to
agree with them by default (at least on principle, before they actually
download something). Property and protection sound like good things, right?

Now if you meant "society" to exclude people who are totally ignorant of the
subject (which would be reasonable if we found a fair, reliable way to exclude
people from voting on subjects they don't know enough about), then of course I
agree with you.

~~~
JoshTriplett
Hence why I said "To the extent society has any opinion on that whatsoever". I
meant that society either doesn't know about the issue or tends to agree; very
few people would disagree with you.

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josscrowcroft
Re: the 'Stop Online Piracy Act': _"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."_

Should read: "They _should_ be reluctant to expand those powers even further
... but they probably won't."

------
Joakal
A company can send non-legally binding notices to copyrighted content it does
not own?

What legally stops me from filing it against all of Warner Bros' legitimate
content like trailers then?

~~~
drivebyacct2
That's the point of the suit. The DMCA leaves you open to penalty if you
submit false claims.

~~~
Joakal
I looked around for costs; basically the original copyright holder has to
prove damages. Since most people using Youtube, et al, are not making that
much profit, the DMCA-issuers won't face significant penalties for misusing
DMCAs.

Seems like I won't get much penalties for taking down the trailers because
it's hard to prove damages.

[http://www.hyperorg.com/blogger/2010/02/27/the-economics-
of-...](http://www.hyperorg.com/blogger/2010/02/27/the-economics-of-
accusation-penalty-for-false-dmca-claims-is-low/)

<http://www.techdirt.com/articles/20100302/0432448359.shtml>

~~~
politician
"Hard to prove damages" hasn't stopped the RIAA and Sony from claiming $750
per song _and winning_.

~~~
Natsu
They have statutory damages for that, so they do not need to prove actual
damages most of the time. I say "most of the time" because I think there are a
few cases where statutory damages can become unavailable. I don't remember the
details, but I think I heard once that someone mucked up registering their
copyright and was unable to claim statutory damages because of that.

------
beedogs
It'll really be fantastic when media companies like WB are just a bad memory.

~~~
VMG
What exactly do you mean by "companies like WB"?

Companies pursuing aggressive strategies against copyright infringement?

Companies with multi-million-dollar budgets funding expensive projects like
movies or records?

~~~
zizee
I think records are only "expensive" to make when using creative accounting to
screw over artists...

~~~
cbr
This sounds unlikely. Can't we divide the expenses of a recording studio by
the number of albums issued to get average costs?

~~~
gcr
I don't think that's representative. The costs of printing the first CD far
outweigh the costs of printing all the rest.

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duskwuff
Just as if the whole situation weren't complex enough already, a lot of online
"file locker" services _deliberately_ make it difficult to mass-download
content -- one common practice, for instance, is to throttle users to one
download per IP per hour or so unless they've registered and/or paid. While
this is ostensibly to encourage users to register/pay/not download
excessively, I can't imagine it makes things any easier for rights holders.

~~~
shabble
Given the enormous "lost value" claims cited by the content owners, the cost
of subscribing to make their takedown tools work faster/better is surely lost
in the noise. (Unless they're paying per-file, in which case it might be
reasonable to offer a refund for files they download which they confirm
infringing status of, but that still encourages them to takedown as much stuff
as they can get away with, if not more so)

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larrik
In defense of Warner Bros., I've had a few iOS apps receive takedown letters,
and WB was the only company to actually work with me and let me make the app
non-infringing.

The other companies went along the lines of "you can try changing your app,
and you'll know if it wasn't good enough when we file the lawsuit."

------
rmc
Surely this is a simple legal problem? Don't you have to swear under penalty
of perjury that you've done it in good faith, etc.? Is WB essentially
admitting to perjury? Don't the courts know how to deal with this?

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maeon3
I found my document/textfile/video/data on your hard drive, and you didn't pay
me a ridiculous amount of money for it. So I'm going to sue you for
compensation.

Seems like a terrific profit model. Spread your data files far and wide, get
millions of people to download it, then make profit doing takedown and
settlements. This problem isn't going to be fixed, because if you were to fix
it, the people making profits would cease making profits, because then they
would be unable to sue anybody for profit, and nobody would buy their lame
content for their ridiculous price. Corruption makes me sick.

