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Comment by e1ven | Hacker News Reader

I'm more upset with the precedent than I am with the particular site.

I've never made a DMCA request against them, but my understanding from the DoJ presser was that they did comply with the letter- They removed the links that were sent. They just didn't necessarily remove all other links to the same file.

When you filed yours, did you follow legal procedure, and go through their registered DMCA agent with paper mail, etc? (I'm not implying you didn't, I'm trying to understand this whole mess)

Let's say for the sake of discussion that these were "Bad Guys", and the site was used for infringing purposes.

If they're following the US law, they still ought to be safe. You can arrest people for breaking laws, but not for being assholes.

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I followed the procedure to the letter - that was the whole point of the experiment. Do you honestly think they have a whole team of people diligently working through DMCA requests? Of course not - it's the foundation of their whole business.

Now proving this is no-doubt going to be difficult. And prosecuting in front of a jury who have been pummelled with anti-SOPA sentiment for months is a nightmare. So I think they've a very good chance of getting away with it.

I'm interested in reading the data and procedures for your experiment. Where can I access it? I hate to say this, but until you provide your work; it's really difficult to believe anything you just wrote. Not to mention it's pretty impossible for the people at Megaupload to defend themselves. How do we know that you actually followed procedure? What do you define as proper procedure? What were the items in question?

You have to own the copyright to issue a takedown request under the DMCA, no? What did you issue the takedown request for and who uploaded it?

Regardless of precedent or merits on this case, the fact that it exists at all makes it harder to justify the existence of SOPA or PIPA.

They didn't need either act to be passed to arrest a bunch of people in New Zealand, after all.

It is an extradition proceeding, not charges under New Zealand law (according to http://www.stuff.co.nz/technology/digital-living/6288082/NZ-...).

For the request to go ahead, the alleged offence need to be an extradition offence (http://www.legislation.govt.nz/act/public/1999/0055/latest/D...) - which means that the alleged conduct of the defendants would be a crime in New Zealand if it was done here, and would be a crime punishable by 12 or more months imprisonment in the US.

New Zealand has a bar to Internet provider copyright liability (http://www.legislation.govt.nz/act/public/1994/0143/latest/D...), defined as follows: " Internet service provider means a person who does either or both of the following things: (a) offers the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing: (b) hosts material on websites or other electronic retrieval systems that can be accessed by a user " However, ISPs have to forward notices from rights holders to the user, and after the third notice, to the copyright tribunal, allowing proceedings to be filed.

If MegaUpload did nothing more than offer a file upload service, and complied with the applicable procedures for responding to rights owner requests, it seems unlikely that that particular allegation would amount to a crime in New Zealand. However, the article lists a number of charges, and the extradition law doesn't allow them to challenge the alleged facts, only whether they amount to a crime in New Zealand and the country they are being extradited to.

Presumably this is why Universal have been talking of "conspiracy", they'll have tried to find some sort of loophole to avoid NZ from applying a local "safe harbour" law. Not that NZ probably have a choice about it all ...

This sounds like a somewhat clever loophole around DMCA requirements. Host the same/duplicate file at an approximately infinite number of different URLs and take them down one by one as DMCA requests come in for specific links. This seems like a someone complicated loophole to write around because even if the DMCA was changed to allow takedowns of media and it's duplicates (if it doesn't already) you could combinatorially add random junk into the stream and circumvent that as well.

That's not how the DMCA works - you can notify the site of the content and require them to remove the content and/or any links to it.

Read some samples from ChillingEffects: http://www.chillingeffects.org/dmca512/notice.cgi

A more nuanced version of the system newhouseb is proposing would be one in which, for every 'upload' of the file that receives a DMCA takedown notice, the associated download link could be deleted (i.e. complying with the notice as far as the rights holder is aware) but another one almost immediately created, linking to the same content.

The host could simply claim another user uploaded it after the DMCA notice was received and the original link removed.

Presumably DMCA notices don't apply to future uploads as well? That would be almost completely unenforceable for a service like Megaupload.

Edit: Just a couple more proposals for such a system. First, the link re-creation could be conducted randomly at different times after deletion for different uploads, giving the impression that it is not the result of an automated process.

Second, a host could publish all the DMCA notices they receive, providing a plausible explanation for why all the content is 're-uploaded' soon after being taken down. Surely a host can't be held responsible if its 'users' take it upon themselves to almost immediately re-upload any content taken down by DMCA notices?

DMAA safe harbor only applies if you are not aware of the infringing content. If you have a bunch of links to the same file and only take down one then you have no protection under DMCA and the standard 'greater-than $3k damages then go to jail' applies.

There is also a red flags test. If a reasonable person would be aware that the site is hosting files that infringe then it's not protected. And also you can't get direct financial benefit from it, you have to close accounts of repeat offenders, and some other restrictions.

Basically everybody knew Megaupload hosted warez, there were red flags, megaupload didn't take down links they knew were warez, and they made money off of it. Case closed. There may have also been legitimate use of megaupload, but they weren't covered by safe harbor and them being shut down is the law working as intended.

> you could combinatorially add random junk into the stream and circumvent that as well.

One could, like how people flip/speed up/record tv to get around youtube blocking, but it would take a lot of work and dedication to keep uploading your 500+ MiB movie rips over and over again.

> If you have a bunch of links to the same file and only take down one then you have no protection

But the existence of a copy does not tell you whether the uploader had the appropriate license from the copyright holder, or is the copyright holder, of that copy. Files do not fit into "legal" and "illegal" bins by the order of the bits alone.

Let's say I create and sell a software package. I upload it to my Megaupload account so I can easily access it later at another location.

Someone else uploads a copy they bought with a stolen credit card so they can share it on a warez forum. I send a DMCA notice of infringement requesting this copy be removed from Megaupload.

Should Megaupload now also locate all links to that file and remove them, including mine, which is entirely legal for them to host? Is Megaupload required to breach its contract with me as a paying user of their service, in good faith and violating no laws, in order to meet the DMCA safe harbor requirements? I think not.

This is exactly the sort of clever hackery that coders think is a loophole but judges think is contempt of court and obstruction of justice.

If you have half an hour left watch the following video: http://www.youtube.com/watch?v=xLEe496IS1o Errol Morris interviews the notorious NYC lawyer Murray Richman. In the end you will realize, that it is all about the "asshole" factor and very little about actual laws.

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