Kim Dotcom’s first TV interview: ‘I’m no piracy king’
3news.co.nz
3news.co.nz
- He complies with the DMCA. - He provides direct 'delete' access to his servers for the content companies. - The content companies that claim to be losing billions, with direct access to his servers so far have failed to file any legal complaint with his lawyers.
I'm sure as much as we want to dislike him for his previous flamboyant behaviour, he has some legitimate points and a legitimate company providing a legitimate service (and one that is similarly provided by other companies, some of which are household names).
Call me cynical, but this smells of being such a monumental set-up that it makes the farm full of cows just down the road from me seem like a breath of fresh air.
The way I heard it Megaupload was basically designed to perfunctorily comply with the DMCA while actually not deleting content and keeping it accessible.
You recieve a DMCA for one link, and do your duty and take it down. You do not take down the other 9 links, because you are in no position to know if the other 9 are infringing are not.
Well, now. It seems possible to me that, in the current legal environment, copies are infringing or not, rather than links. If that's the case, then deduping is either destroying legal copies or conducting infringement, depending on exactly what operations were performed. This seems sane as long as you believe bits have color, I suppose.
In which case what order the files were uploaded in makes all the difference...
This is why I hate the legal system sometimes. The fact that we have to "legally" define things like this which should be obvious to the most thick-headed individual concievable.
Fucking *AA groups..
What is the proper legal solution to this problem? Just "fuck 'em" and the lawyers search and write letters for each and every copy?
It's only infringing if it lacks permission. The URLs could be kept privately and while 9 of the 10 were put up by pirates, the last one might have been the copyright holder's own copy which they were doing something with privately.
And then you delete it on them. Oops.
Would it be reasonable to identify your users? Perhaps require and SMS or something to gain membership and then when there is this deduplication case why couldn't you contact them to find out if it's valid or not?
You "could", but you could be wrong and cheese off your users. Who's to say that an indie label isn't using your service for cheap file hosting? Just because $file is getting a lot of hits (and "lot" needs to be defined here) doesn't mean that those uses are necessarily infringing.
And then we're back to the links + deduping problem anyways. Let's say you've determined that 3 of the 9 non-DMCA'd links are coming from CoolHotWarez.ru (first remembering that the law doesn't require you to do this research, and second remembering that any warez site worth a crap uses an anonymizer to strip referrer URLs ANYWAYS...) - You take them down.
The 6 left don't have much traffic, so your metric kind of falls apart. And all this would result in would result in warez kiddies uploading two copies of each file, keeping one secret and sharing the other.
Big websites operate at scale. Think millions of users and thousands of new ones each day. Things like this are not compatible with manual processes. And if you look at something like YouTube, I think they get more than a week's worth of video uploaded every day.
Half of the problem is that there isn't a reasonable way to enforce this.
I would say yes, in precisely that many words, but then again, I tire of the content industry's abuses and I have a huge bias against them.
When it comes to "something potentially legal being taken down" and "something potentially infringing being left up", I'm going to fall on the side of 'leave the content up' 100% of the time. The "Better 100 guilty men...." school of law enforcement.
He claims he complies with the DMCA.
We won't know until the trial happens, but from what I've read, there appears to be plenty of emails showing the employees explicitly discussing how they actually don't take down content.
None of that is what bothers anyone. What people are up in arms about is:
a) Presumption of guilt. A company which may very well be defensible has been destroyed. If the court agrees with him over the feds he's suffered massive revenue loss at a minimum and there may be no coming back as competitors will scramble to replace him in which case he's lost an entirely legitimate livelihood.
b) Extradition on a global scale by federal authorities for what's basically a civil matter.
c) Jail time threatened for everyone involved in the company right down to the web designer when much bigger and, in the eyes of the public, "just as obvious" misdoings from wall street bankers was rewarded with slightly smaller but still massive bonuses.
It's like the FBI came in and demolished his store to take away the bricks as evidence - if he's found not guilty, I doubt they're going to rebuild it for him.
They just needed someone to make an example of - there are dozens of other sharing sites out there (hell, many of them even have "warez" in their name), and yet they chose Megaupload, one of the biggest, with a brazen in-your-face owner (last time I checked, that wasn't a crime).
It seems to have worked, though - Filesonic disabled sharing, for example, and other sites must've done something similar...
Currently, the copyright holder has to crawl the internet to make sure their copyright isn't being violated somewhere and if so - file a takedown order. This is very whack-a-mole and when it comes to cyberlockers - intractable, since many external links can resolve to the same file. Locker admins have to only remove the offending link to comply with a takedown request, as it is impossible (without knowing the internal code structure) to prove whether two links resolve to the same file or different copies thereof. The linkers can simply check periodically to make sure their links are current and update as necessary, which can be easily automated.
The copyright holders cannot automate the discovery process (not without huge resources, anyway), while the copyright infringing parties can easily automate their side. This inherent unbalance creates a difficult policing problem that copyright holders (naturally) don't want to be responsible for.
It will be interesting to see how this plays out. If UGC site admins become legally compelled to monitor what they are hosting, the overhead will kill most ad-only revenue models. If not, copyright holders will have to hire some sort of copyright police (does it already exist? if not --> startup_idea_masterlist.add() ).
Opinion question: what is the "ok/not ok" line for encouraging your users to use your (online) service for illegal activities (esp. copyright infringement)? Paying them to do it seems to be clearly "over the line", as far as US gov. is concerned. What about publicly announcing that you are not going to police their data?
E.g. if website owners are made liable for the copyright of uploaded content, a successful (illegal) attack on any site hosting copyrighted content would be for two parties secretly cooperating (secretly, because conspiring like this would almost certainly in itself be illegal):
One party operates an offline (to prevent it from showing up in Google searches or otherwise being easy for the copyright owners to identify as possibly infringing) newsletter that publishes assorted essays that might for example include responses suitable for the forum of a specific UGC site. They might be written specifically for that purpose...
The other party uploads a copy of said content to the site.
The first party sues the website.
You could do this without someone cooperating with you to write custom-written content, but it'd be easier to spot that something was off, and since you wouldn't hold the copyright on the content you wouldn't have standing to sue so you'd be dependent on making third parties pissed off. Since you'd be infringing on copyright in the first place, it might be easier to just use an accomplice.
All it takes is someone who dislikes you strongly enough, and you're potentially out of business if you depend on UGC in this kind of scenario...
If I own a copy of the DVD and want to download a dvdrip, am I commiting copyright infringement? Is the file, in and of itself, an illegal file? or is the act of downloading said file illegal?
(and to short circuit the 'you should rip your dvd yourself' discussion, it's quicker to download and the end result is the same)
(And, a sneak preview into one of my startup projects)
In this interview he strikes me as highly intelligent, metered, and well versed in the various copyright laws. It seems like he has managed to operate his business from within a legal loophole, and it will be interesting to see how that plays out in court.
Comment I read on that video page ended "Leave the poor guy and his wife alone!" They're millionaires, and there's really no way to paint this as "poor Kim" - I can very well believe that based on his knowledge and his legal advice he expected to be safe legally, and was perhaps right, but the idea that he actually didn't know what MU was being used for, or that he cared about preventing it, is laughable. Look at his track record as a person, he's always prioritised himself (money, ego etc.) over legality.
Whether he knows what his service is used for or not is surely irrelevant though. The ISPs know that piracy goes on over the internet, so why aren't they equally liable?
Computer manufacturers know that computers are used to download copyrighted content. So why not go after computer makers as well. They're enabling piracy!
His douchebagginess aside; What does being a millionaire have anything to do with the situation? If someone is wronged for some reason people aren't allowed to have pity on them because they have a lot of money? That's kind of silly...
That having been said, its hard to think that they were in compliance with 17 USC §§ 512(c)(1)(a)(ii) - (iii) in particular. Continued safe harbor protection requires that mega-upload:
(i)
does not have actual knowledge that the material
or an activity using the material on the system
or network is infringing;
(ii)
in the absence of such actual knowledge, is not
aware of facts or circumstances from which
infringing activity is apparent; or
(iii)
upon obtaining such knowledge or awareness,
acts expeditiously to remove, or disable access
to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
As for section C, obviously in the article he not only took measures himself to try to stop copyright material once reported, but he even ALLOWED companys to do it themselves.
The jury can find this more than reasonable. And it can be argued from a legal point of view, moral or immoral. The defense is based on the statues protection, not the kindness of the courts.
Cases interpreting the “knowledge disqualifier” include Perfect 10 v. CCBill, 488 F.3d 1102, 1114 (9th Cir. 2007) (noncompliant notices do not count toward knowledge, use of “illegal” or “stolen” in domain name does not create red flag knowledge for hosting service); Io Group v. Veoh Networks, 586 F.Supp.2d 1132, 1148 (N.D. Cal. 2008) (“[A]pparent knowledge requires evidence that a service provider turned a blind eye to ‘red flags’ of obvious infringement.”); Corbis v. Amazon, 351 F. Supp. 2d 1090, 1108-09 (W.D. Wash. 2004) (neither general knowledge of infringement on the site nor third party notices are not enough to constitute a “red flag”); Hendrickson v. Amazon, 298 F. Supp. 2d 914, 917 (C.D. Cal. 2003) (Amazon lacked prospective knowledge of infringing DVD sales, even after rights holder informed it that the title in question had never been released on DVD); Hendrickson v. eBay, 165 F. Supp. 2d 1082, 1093 (C.D. Cal. 2001).
That said, MU might, in fact, be liable if it can be shown that they were aware of specific acts of infringement and did nothing, which some of the emails may, in fact, establish. After that, there's some question of how broadly the loss of safe harbor applies. I'm not sure that you lose all safe harbor protections for all infringement if you fail any particular red flag test. It seems to me that you ought to lose safe harbor only for those specific acts of infringement. But IANAL, and I'm not sure that point has ever been ruled on, so maybe we'll find out.
I said he flirted with it, not that he neccesarily crossed the line into illegality.
Is that a reason to be held liable? Isn't the whole point of the DMCA that we realize that every open service that transfers bits will be used illegally by some, so as long as the service provider acts on takedown notices they cannot be held liable for the actions of their users?
> or that he cared about preventing it
They had a special tool for content creators which gave them direct delete access to everything on MU. This goes above and beyond the DMCA.
If he had knowledge of the illegal activity then DMCA doesn't protect him.
The entire point of the DMCA safe harbour provisions is that a provider should not need to act on the mere general knowledge that some people sometimes use their services for illegal purposes.
Seriously, read up on his past.
The guy has several previous convictions for fraud, insider trading and handling of stolen goods.
An Australian was extradited to USA despite having never been to USA or profited from piracy. Then was subsequently jailed, eventually finished sentence and became an illegal alien. Then deported back to Australia and banned from visiting USA.
Edit: Corrected deport-back
It's weird that something like this sets a precedent in favor of extraditing people.
Weird legal things like this sometimes prevent me from sleeping at 2 am. If you are unlucky you can just get completely screwed over by the system leaving your life in disarray. Almost as bad as a life changing illness.
Isn't really that hard to see we are living in a different world today than 10 years ago? I may be overstating, but in todays world you can setup a server in Cambodia and given enough traffic/brilliant idea/etc, make million of dollars off of US citizens, or citizens of any other nation laying on the antipodes. IF you have such an idea, it goes beyond being a web-designer, database engineer or smart businessman - you need to also be aware of the laws in the countries you're doing business with, especially if you bringing some serious income and your business idea is not the cleanest one under the sun. Heck, even Amazon itself is fighting US government on the tax issues.
http://tnreport.com/blog/2011/07/18/many-states-grappling-wi...
-e Blocked on copyright grounds, the irony http://www.youtube.com/watch?v=nxThMdJI65U
I think it's funny how Kim Dotcom's gets treated like a terrorist, but the AIG Execs get bonuses and a stern slap on the hand. Justice in this country is really bizarre. Some grand larceny is completely OK, and other "technical larceny" is punished with jailtime.
I guess the moral of the story here is that It's not the Grand Larceny that makes it a deed worth punishing, it has to do with other qualities.
Although I upvoted you, I don't get you. You seemed to be fully aware that the system in US was designed to collapse and the country is pretty much owned by offshore banking cartel with privetly owned banking system and Federal Reserve that has as much to do with "Federal" as "Federal Express", but yet you brag about "justice being bizarre".
Kim, as I read somewhere "flew too close to the sun". He was too big, grew too fast and "wasn't the part of the family". You not choose to be a part of a family because you are wise and know how to make millions, as this example shows.
This is a patent falsehood. Federal Express (now FedEx) is a private shipping company.
The Federal Reserve System is a "private" bank created by an Act of Congress and managed by a Board of Governors, all of whom are placed by the President and confirmed by Senate. Additionally, the Chairman is chosen by the President from the Governors.
The list of checks and balances between Government and our central bank is long, but it misses the biggest point: What the Congress creates, the Congress can take away. Congress could end the Fed tomorrow or dramatically change its oversight and decision making capability.
To imply that the Federal Reserve is private in the same way as FedEx is about as disingenuous as you could possibly be.
I'm going to have to assume here that you are simply woefully misinformed and not actively trying to spread disinformation...
Checks and balances you say. Like here?
http://www.opednews.com/articles/Representatives-Were-Threa-...
or here:
http://www.opednews.com/articles/1/The-Banker-s-Trick-Americ...
In any case: Some murderers are never caught/indicted (lack of reliable incriminating evidence, etc.), some murderers get to plea bargain, some murderers are cheered (say one of them kills a worse murderer).
Justice is not perfect. It probably cannot be, unless it's ever automated and people's calculus being eliminated from "judgement". But then that system would likely be labelled as "cold" and uncompassionate.
Sure, lots of it is political too. That's part of the imperfection. I'm not sure there is a significant country where politics do not enter the justice system --even in China where, while it's single party ruled, a bureaucrat can overturn any provincial "mistake". Lots of corruption occurs, never mind Italy and Japan --where all you have to do is "repent and bow" for forgiveness.
If you want people like those in AIG jailed, you'll need to have laws passed which could be applied to their behavior.
P.S. If those bankers are gone, who's going to pay for the politicians campaigns. So you see, it's mutually beneficial to each party and the citizens who didn't do anything wrong get way higher gas prices!, win win!
It's like me complaining I get a jay-walking ticket while someone else blows a red light. I mean, there is no connection between the two. Sure, my complaint is legitimate, but irrelevant to my getting a jay-walking ticket. That was my main point.
I'm sorry, but there's only 1 reason why you would remove a link to an infringing file but not the actual file. Aiding piracy.
This has been mentioned before, but I'll say it again.
If I upload Batman to my personal storage locker, and never share it with anyone else, and then a pirate uploads Batman and shares it with everyone, why should I lose my digital copy of Batman due to the actions of someone else?
Maybe I don't have a thorough understanding of now Hashes work, but if we both rip the same movie with the same software, won't that file have the same hash?
A cheap-and-nasty MD5 (for example) of the exact same film stored in different file formats will yield different hashes.
A more sophisticated hashing methodology (for example something akin to the audio-fingerprinting tech used by Shazam) might yield a match.
Could have MegaUpload have done more to prevent pirated movies from being uploaded on their servers? Maybe, maybe not.
Should they still be protected by the DCMA? IMHO, I think so.
Could MU have prevented "piracy" by blocking uploads of copyrighted material? Again, I'm inclined to agree with you and say "DMCA", there are too many privacy issues involved for sites to go jack-booting their way through everyones files (which again, Kim D-C mentioned in the video), especially when he's holding out an olive branch to the content companies by allowing them to delete millions of "illegal" files without any due-process.
There is no guarantee that another copy of the same file is infringing.
I estimate the chance of a legitimate file being deleted by this process at 1% or less.
That's not very comforting for customer who might want to pay to store files there.
Especially not given the long stream of high profile cases of mistaken takedowns at sites like Youtube.
It's barbaric.
MegaUpload was blatantly profiteering off of copyright infringing materials. DMCA take down notices affected only a single link to a file and not the file itself. Premium users could spend money to "clone" files by generating a new link without having to upload a single byte. MegaUpload paid users based on the number of times their file was downloaded. It is claimed that MegaUpload accounted for four percent of all internet traffic. They did all this to the tune of several hundred million dollars in profit.
There are numerous websites that are 100% dedicated to the streaming of copyrighted material (TV shows and movies). They stream content from MegaUpload directly to your browser with no download needed.
MegaUpload blatantly and clearly did not care about hosting and serving copyright infringing material from their servers. It does not require an IT genius to detect that the file Game.Of.Thrones.S1.E01 which has been downloaded hundreds of thousands of times may possibly be copyright infringing material.
Someone who actually cared would look at which websites are streaming content to MILLIONS of users. If that website is 100% solely dedicated to serving copyright infringing material then you should probably take down the files they are streaming.
The wiki DMCA Online Copyright Infringement Liability Limitation Act states "To qualify for the § 512(c) safe harbor, the OSP must not have actual knowledge that it is hosting infringing material or be aware of facts or circumstances from which infringing activity is apparent." IANAL but it was pretty damn apparent that MegaUpload was being used for infringing activity to me.
I seriously don't understand why this community supports Kim Dotcom and MegaUpload. I really don't.
Or, we can accept that while piracy is wrong, it's not the boogeyman that these luddites have made it out to be, and it's certainly not worth the vicious punishments doled out by Governments.
Do the creators of these wonderful cultural works deserve to be paid? Absolutely. And you'll notice that the same pirates are more than willing to crowdfund through Kickstater or directly a la Louis CK.
But as long as the organizations controlling the legal rights to these cultural works continue to actively subvert our democracy, you won't find sympathy from me or many others.
I consider it civil disobedience. YMMV.
You say that as if I said that and you're sarcastically agreeing. I don't know where you get that from my comment.
This smells all too much of a biased statement without any depth in order to influence the public opinion of MU negatively. But I'll bite anyway.
---
The thing is that you are missing the point completely:
Copyright infringement on MU was apparently only committed by third parties (aka The Internet), as is done on sites like YouTube, every other file sharing site, video, audio and similar sites.
Yet you don't see the Google bosses in jail and their houses raided and assets frozen do you? They are blatantly profiteering off of copyright infringing materials on YouTube as well, you know.
The DMCA regulates what these services have to do to protect copyrights and them selves. MU apparently did just that.
One other point I will make here is that studies have shown that pirating on the internet has no negative effect on the profits of the copyright holders. Explain to me why pirates are being hunted like the worst offenders anyway.
Now, do you still not understand why some people here seem to have a different stance on this topic than you?
However, the real reason HN cares about MegaUpload is fear that heavy-handed law enforcement can destroy tech companies. Many of us are here because we have or are interested in having tech companies.
I believe it applies to specific acts of infringement, not a general knowledge that a certain service is used for infringing activities. Otherwise, the entire internet you're using right now would be illegal.
(EDIT) More on that point here: https://ilt.eff.org/index.php/Copyright:_Digital_Millennium_...
Scroll down to "Actual or “Red Flag” Knowledge" and look at the cases interpreting it. (END EDIT)
Almost everything online is copyrighted. It only becomes copyright infringing when you lack the copyright holder's permission. Unless the copyright holder has said otherwise, you don't know what has and has not been authorized by them. You can probably guess for things like Hollywood movies, but that's why the DMCA puts the burden on them to identify data they have not authorized.
It's their property and they're the only ones who actually know what they have and have not authorized. It may be an impossible burden, but shifting that to people less able to bear it won't help anyone.
I find that allegation more troubling than the rest because I can't see a need for it, while all the other parts have substantial legitimate uses. I mean, there's nothing wrong with letting people monetize their own files or with driving traffic to MU, it's only when the content is infringing that there's a problem. But I've also never been a premium member of that (or any other) site so I've never seen that sort of clone feature before. And if there's no good use for it, it would support the claims that it was designed to skirt the DMCA.
I find the claim surprising because I read the indictment against him and I don't remember seeing it in there. But it was a very long indictment and I might have missed that part, which is why I'm going to ask for a source.
According to his recent history [1], he still has a larger than life lifestyle, even though he has a family now. He claims he's no criminal but he doesn't mention his criminal history. He mentions he didn't see any reason in his past to "wear a suit and be stuck up", yet before he made it big, this was exactly the image he gave off [2]. Also, there's the obvious illegal activity on MegaUpload, the over-the-top security at his premises [3], and his hostile reaction when the police arrived, yet this was "completely unexpected".
I agree that MegaUpload has legal uses, and that he's fighting an outdated business model, but I still don't support him.
[1]: http://www.youtube.com/user/MrKimDotcom
[2]: http://upload.wikimedia.org/wikipedia/commons/7/70/Kim_Schmi...
[3]: http://online.wsj.com/article/SB1000142405297020430140457717...
http://www.youtube.com/watch?v=ZedZ2Vw7Fqk http://www.youtube.com/watch?v=2g1xIub8wNA http://www.youtube.com/watch?v=6p3wUeraIDw
And I am not justifying what the FBI did to him. I am saying that he might be liable if he asked people for pirated content and then hosted it for others to download.
To the best of my knowledge many sites like Youtube actually go beyond the DMCA in trying to empower media companies to manage there content.