Warner Bros: We issued takedowns for files we never saw | Hacker News Reader

Warner Bros: We issued takedowns for files we never saw

arstechnica.com

116 pointscodedivine46 comments

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.

In the end, is it just about making people happy or is there some sort of due process requirement too?

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.

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.....

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.

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.....

"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."

It'll probably only take a few of these, where the host was smart enough to post absurd rates like "copyright violation investigation service $90,000/hr ($500,000 minimum)" publicly ahead of time, send a bill on receiving a notice, then sue the pants off of the content owners when they don't pay to put a stop to this.

> Meanwhile, having penalties for issuing faulty takedowns means it's impractical for owners to police things fast enough ...

Automated video analytics to the rescue.

>"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?

Are you aware of the automated "content-infringement" detection systems that youtube uses? If you post a clip from a movie or tv show that youtube has in its library of "stuff not to be infringed" then your video will automatically be taken down.

Yes, and often content is misidentified there too. I posted a anti-COICA video made with Xtranormal -- it was erroneously tagged as including content from Comcast Entertainment and banned outside of the U.S. (somewhat ironic, no?)

Was it erroneous? I used a small portion of a clip from the Beatles (among other sounds), and it was flagged.

(I'm not sure if it's fair use or not).

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.

> 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.

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.

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.

You do realize a good chunk of the DMCA takedowns on YouTube are via audio fingerprinting?

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

No, what legally protects YouTube from uploaded infringing content is the safe habour part of the DMCA. YouTube is legally immune if they obey valid take down requests.

It appears that the big media companies are not fulfilling all the parts of the DMCA.

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."

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?

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

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.techdirt.com/articles/20100302/0432448359.shtml

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

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.

> Since most people using Youtube, et al, are not making that much profit, the DMCA-issuers won't face significant penalties for misusing DMCAs.

Issuing a false DMCA takedown is perjury, and the victims may have standing for a Racketeer Influenced and Corrupt Organizations civil lawsuit with substantial damages.

And those penalties are based on the cost to the other guy. So if warner falsely demands your youtube video is taken down - you lost no money so even if they lied the penalty is zero.

If you request a Warner file to be removed they will prove that they lost $billion dollars. After all, an industry that claims star wars made a loss can prove anything.

> And those penalties are based on the cost to the other guy. So if warner falsely demands your youtube video is taken down - you lost no money so even if they lied the penalty is zero.

DMCA notices include the required text "under penalty of perjury". Perjury qualifies as a criminal felony, quite aside from any financial penalties. Unfortunately, nobody has ever enforced that requirement; someone ought to. Perhaps with the parties responsible for sending such notice imprisoned for up to five years (http://www.law.cornell.edu/uscode/18/1621.html), they'd think twice about sending false takedown notices.

I read once that the 'under penalty of perjury' was 'linked' to the statement that you were an authorised representative of the company making the claim, not 'linked' to the claim itself.

Having said that, it's been a long time since I've seen a notice :)

There is a similar clause in patent applications but I have never heard of a defeated patent involving a prosecution for perjury!

I suspect the burden of proving that it was a deliberate lie to damage the other guy , in a criminal trial, is rather too high.

It specifically says "I swear, under penalty of perjury, that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."

So, if you're not the copyright owner...

See that's the thing: I read that as "I'm saying that Product X is being infringed and I swear that I am authorised to act on behalf of the owner of Product X".

It is not saying that "I swear, under penalty of perjury, that that the product I claim is being infringed actually is being infringed".

That's a pretty important difference I think.

Fair enough. Do you have any reference to indicate that as the intended reading?

I don't unfortunately. The discussion I read was so long ago that it was probably on Slashdot :) Having said that, I found a few sites with 'DMCA policies' (eg. http://www.azlyrics.com/copyright.html ). Looking at how they discuss perjury, as well as just reading that line that you quoted nothing mentions that you are claiming the infringement under perjury, just that you are allowed to represent the product that is allegedly being infringed.

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

The DMCA tale down notice requires you to swear under penalty of perjury. So, if you claim something that's not yours it's like lying under oath.

Whether or not Big Media will be held to this standard depends on how cynical you are.

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

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?

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

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

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

Simply writing, performing, and recording the songs on an album is comparatively cheap compared to:

- Polishing the album.

- Releasing the album.

- Marketing the album.

- Promoting tours, shows, ads, interviews.

- Building and supporting a fanbase through blogs, forums, and so forth

These problems have subproblems, and even the following list is grossly over-simplified:

- Polishing: Remastering is time-consuming and boring. Hiring a designer to design the album cover and CD inserts is time-consuming and boring.

- Releasing: Publishing to iTunes, Amazon, and other music distributors is peanuts compared to the actual logistics of printing, pressing, and shipping 100,000 CDs to paying customers.

- Marketing: What advertising do you want to do to promote the album? What markets exist? How will you reach them? Who will pay for it? How will you get radio stations to play your artist's music?

- Promoting tours: How will you come up with the $10,000 fee to reserve a mid/low-range venue for a single night? How can you convince the venue that you have enough fans to make it worth their trouble? Who will you hire for sound/lights/mixing duty? How on earth will you get there? How will you pay for the flights? Hotels? Bus or car rental? Do you really have time to plan all that?

- Building a fanbase: How will people promote your artist? What keeps the fans coming back? Who writes/edits your artist's blog? Does your artist have a forum? If so, who installs it? Who moderates it and keeps the spambots out? Are there any community events? Who plans and hosts those? Who reports them? Who promotes them?

- Website hosting: Who will you pay to design your website? How will you pay for hosting / sysadmin / content distribution? What happens on release day when a million people visit the website once and your bill is $100k/month? What happens the week after release day and you get 30 hits/month but your hosting bill is still $100k/month because you've upgraded all your hardware?

Not siding with "BigCorp Musicmonster Co." here, but these are unsolved problems and every single one is an obstacle. Independent artists have neither the time nor money to worry about it.

No wonder so many musicians decide to sign the recording deal and make all of these problems disappear. At what cost to their soul?

The music industry needs a reboot.

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.

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)

OTOH, if it wasn't restricted, the damage done to the rights holders would be more, right?

It seems to me that one could argue persuasively that it does make it easier for rights holders because it contains the damage.

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."

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?

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.

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