>Kim was obviously thumbing his nose at US copyright law
>Kim was obviously thumbing his nose at US copyright law
Now devil's advocate: the MPAA and affiliates CANNOT possibly go over every single website which hosts content and provides different ways of inspecting that information and filter. It is just impossible. They would spend all their money 10x over just policing. Which of course begs the question: are they evolving with changes in tech or just doing everything in their power not to.
That's just one of many many instances; see up and downthread for others.
(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.
There isn't any place in the DMCA that suggests any limit to the number of notices that can be provided. On a tactical level it seems like having limits was a mistake: they should have just queued them let the bottleneck express itself as a backlog and a delay.
On a strategic level, it doesn't matter. The argument that MegaUpload wasn't aware of its status as a piracy hub is totally implausible. It thus flunks 2 of the 3 conditions for establishing immunity under the DMCA.
There is no limit on notices. The limit is only on the direct-deletion of links, without review or notice, by parties like Time Warner. In other words, in addition to handling notices, Megaupload gave "Delete" buttons to certain parties that allowed them to directly control which links were available, but that button was limited in use.
The article suggests that Megaupload gave content owners such as Warner Bros. a mechanism for directly removing infringing links (and again, without being required to handle it in that fashion--this being a massive convenience for both parties).
It would only seem natural that you'd want a way reigning in perhaps abusive usage of a delete/rm command.
On or about September 8, the [Warner] representative sent a follow-up request, and on or about September 9, the representative sent another follow-up request. On or about September 10, ORTMANN sent an e-mail to DOTCOM, stating, “They are currently removing 2500 files per day - a cursory check indicates that it’s legit takedowns of content that they own appearing in public forums.” ORTMANN also stated, “We should comply with their request - we can afford to be cooperative at current growth levels.” DOTCOM responded that the limit should be increased to 5,000 per day, but “not unlimited.”
"We should comply with their request - we can afford to be cooperative at current growth levels." Heh.
Maybe to limit the Warner and other companies' actions. They're trying to sue for obvious test files now. What are the chances that given unlimited access they wouldn't worry so much about verification of what's legal/what belongs to them?
It's a completely different thing if they reached the limit every single day, were rejected higher quotas and have a big queue of files to remove... But why didn't they say so?
Lastly, you might want to reread Sony Betamax, particularly the part about how a service capable of substantial non-infringing uses can be legal even when they know it is often used for infringement. Sure, you're probably not aware of those non-infringing uses because those people kept their files relatively private, rather than distributing them to all and sundry, but ignorance cannot be made into much of an argument. You seem to think of it as a "pirate site" and I doubt I can change your mind, no matter how many non-infringing users I could find. It's a hard point to make when the infringing uses were necessarily public and the non-infringing uses were almost all private.
Yes, I am aware that you could come back with better arguments than the statements you've made upthread that argue directly against Betamax, but I'll let you make your own. You're also entitled to think that Betamax was a bad ruling, if you like, but if that's the case I'll simply have to disagree. After the long history of hyperbolic comments from industry leaders about how every new mass-distribution technology would kill the industry, I would not like to see a future without the Betamax ruling.
[1] http://www.techdirt.com/articles/20120223/15102217856/key-te...
Check out Popehat.com for a federal prosecutor (now in private practice, I think) explaining why the DMCA safe harbor doesn't even apply in criminal cases... but, even if it did, who cares? The DMCA safe harbor is an AND construction. You have to satisfy three tests: (a) not knowing about infringement yourself, (b) not benefiting financially from piracy, and (c) responding expeditiously to takedown notices.
As soon as the DoJ got MU's email, it was all over. They themselves not only used the system repeatedly for piracy (in far, far more documented instances than just 50 Cent and Louis Armstrong) but also paid bonuses to people they knew had been uploading DVD rips to the site --- paid bonuses that tracked those very uploads.
I disagree on with the conclusions this thread has come to about the DMCA safe harbor, but really... what are we arguing about here?
I'm not saying they've done nothing illegal, just that the argument over the notices isn't a particularly strong one. Like I said, there are much better arguments.
The indictment itself is hilarious. It just goes on & on & on.
There's no question that this is an uphill battle for them.
All I'm saying is that in this regard Megaupload's actions were perfectly reasonable. The debate about whether taking down links instead of files because not all copies of the file are infringement is a completely separate issue.
"We have a funny business... modern days pirates", said one Mega- employee to another. "We're not pirates", he responded. "We're just providing shipping services to pirates."
They are also required to restore it if they receive a counter-notification and the issuer of the original takedown notice has not filed a lawsuit in 10-14 days. This implies they can not delete the file from their system and still meet their legal requirements.
>They are also required to restore it
The direct delete was not a takedown request; it was a deletion order. This is beyond MU's DMCA responsibility.
I do not have evidence of rights holders abusing this feature at MU. But we do know that the labels have made mistakes before [1]. It would be irresponsible for MU to give a third party the ability to wipe large swaths of their servers clean without oversight.
[1] http://arstechnica.com/tech-policy/news/2011/12/ice-admits-m...
This tool was limited to prevent abuse. Simple as that.
How many DMCA take down requests does a company like google/youtube get a day? Anyone know? Just out of curiosity.
It all sort of proves the point though, Megaupload had a ton of piracy and all parties involved knew it. I think that might matter more than a lot of people think, they may have complied with the literal letter of the law but can't courts deem it not enough? Napster was ordered by a court to monitor it's use and restrict illegal use and they were ultimately unable to. There are already cases on the books for that, the fact that MU gave out access to tools like direct delete just shows that they knew the extent of the problem. Still, no reason to skip due process, but I don't know what all the evidence is either.
>A DMCA takedown process with was a sham and was not actaully removing anything
Imagine 5 people upload a copy of a copyrighted song. 4 of those copies are for backup or personal use, one of them ends up on a file sharing site. The 1 is DMCA'd. Why would you remove the other 4?
*edit
This becomes even more crucial when you have any kind of sane deduping in place, where each link, in effect, points to a single piece of data.
If they're for personal use, why are the publically accessible (and actually being downloaded by hundreds or thousands of different users) and not restricted to the account that uploaded them?
Because it becomes "publicly accessible" the moment the link to the file is generated when the upload completes. I.e. you can access the file if you know the URL.
The law does not require you to do this kind of research, besides.
This whole argument seems like a bit of a red herring. What the DMCA actually says is that service providers aren't liable iff (a) they don't have actual knowledge of infringement --- and that if they themselves become aware of infringement they themselves without prompting remove infringing content, (b) don't have a financial interest in infringement, AND (c) respond to takedown notices.
It beggars belief that MegaUpload could pass (a) and (b). All three need to apply to avoid liability.
Again. Rapidshare, hotfile, youtube. Also innocent until proven guilty, etc.
Also, remove or disable access. Killing the link does precisely that.
The link removal you're talking about did not "disable access" to the material; it only disabled access to it through that one removed link. This "linking" argument is just sophistry.
Also: comparing Rapidshare and MegaUpload to Youtube is sapping your credibility.
>Nerds are literalists and also pretty well-versed with piracy. Why are you wasting breath trying to convince them that MegaUpload wasn't a hub for piracy? It clearly was.
> it only disabled access to it through that one removed link
It's being supported by Google.
100 USD [USERNAME DELETED] 10+ Full popular DVD rips (split files), a few small porn movies, some software with keygenerators (warez)
...
100 USD [USERNAME DELETED] Popular DVD rips
100 USD [USERNAME DELETED] Some older DVD rips + unknown (Italian series?) rar files
...
These clowns became aware of copyright infringement and then paid people for it. They're fucked. I have no idea why you think this linking issue matters.
You should read the indictment.
This is why copyright is such a minefield. There is no way to know if someone has a license allowing them to do the things that they do.
I know the Youtube defense and all are beaten to death about this but they can easily find out that two videos are the same. If someone sends a take down for video 1 you say video 2 should also be taken down except it might very well have been uploaded by a legitimate licensee of the video.
The DMCA shields service providers from criminal charges if and only if they pass three tests: (a) no internal knowledge of actual infringement (and, expeditious autonomous removal of infringing content without notice required), (b) no financial interest in infringement, and (c) responsiveness to takedowns.
While I guess we can noodle around about what a court is going to find in this case (although I think I have a spoiler for you on that), it's harder to argue that prosecutors don't have a case here that they are likely to win.
Someone in a previous comment did a rough analysis of why it's not certain that 100% of the 25 petabytes of data on mega uploads servers was unlicensed material.
Depending on the defense skills they definitively can win this outright. You've seem to have already made your mind but you can't tell me that you are sure that they are criminally guilty of copyright infringement beyond reasonable doubt. If I was in the jury and you explained to me all the details such as safe harbor provision, DMCA take down requests and compliance... You bet I'd have some doubts. This stuff is not black or white.
I have little to no faith in the jury system, especially where federal trials are concerned.
My email is in my profile.
The DMCA isn't a computer program. That section (a) does not mean "here are the steps you must take when analyzing your logs". Think instead of a graph and a path through that graph that starts at "Kim Schmitz driving around NZ in a Veyron" and enda t "Kim Schmitz in a minimum security prison", where one path involves edges between vertices involving how much MegaUpload knew about, catered, promoted, or knowingly benefited from piracy.
How do you think that one's going to play out in court?
Or, how about, you want to watch The Sopranos, or Seinfeld, so you send your team a blast email asking for links to those series on your locker site, since it surely must be there. Maybe you complain when the first links you find are in the wrong language. French, say.
How do you think that's going to go?
It is a mystery to me why copyfighters think that MegaUpload is a good case to make a stand on.
The link to it constitutes access. Moreover, it's the link and not the data that determines infringement. The artist can upload the same data as an infringer, and the two pieces of data will be deduplicated to the same file. The difference between infringing and not is the link used to get to the blocks on disk.
Take down the [de-dup'ed] data, and you've just removed the copyright holder's upload. Oops.
Before you answer, consider whether or not I'll just be able to pull an email quote out of the indictment to make your objection look silly.
And go pull quotes all you like, that doesn't change the fact that deduping means you pull links, not files. Full stop. It's not your job as a site owner to police copyright for big media. And if it was, it would be a full time job and then some.
Go reread my post and tell me how I'm wrong, please.
MegaUpload, at the very core of the idea behind it, really was a legit file locker service but that's not how it exactly worked in practice. MegaUpload has always been one of the go-to places for pirating media. They had ads on all the popular torrent sites that linked to the same files you'd download as a torrent. Everyone knew what MegaUpload was all about and anyone claiming they were just a poor innocent file locker service must be kidding themselves.
I have a hunting knife. I use it to hunt. No one will begrudge me my knife because I use it legitimately. If I kill a man walking down the street with it however someone is going to try to stop me and take my knife. I'll protest "but it's a hunting knife, it has a perfectly legitimate use!" but it won't matter because I crossed a line just like Mega did.
Yes you can, and most non-tech-savvy people I know actually prefer to do that, than to download their music from torrents or "download sites". Which I can imagine because they're much less likely to get a virus and they just need a firefox extension and everybody knows how to find their favourite tunes on YouTube.
What on Earth do traffic numbers have to do with whether a site is infringing copyrights on not??
> has never encouraged piracy either directly or implicitly.
What the Viacom vs YT/Google tough us is that the YT owners were fully aware of the files uploaded being pirated. There have been long emails transcriptions where YT owners talk with each other how long should they keep the files online to "help traffic numbers grow" before putting files down. Lookup the court case, I am short on time to look right now.
That was in response to "YouTube has now and has had far more infringing content than Megaupload ever did."
I believe billpatrianakos is arguing that what matters is the proportion of infringing files. YouTube could have more infringing content than MegaUpload with a much lower proportion of infringing content because they have "Google levels of traffic".
> has never encouraged piracy either directly or implicitly.
But I don't think the original YouTube is relevant to the discussion. The modern YouTube has been around for many years and has been very consistent with complying with the DMCA. YouTube doesn't encourage the uploading of infringing content directly or implicitly in a number of ways. Theyre very quick to take down infringing content considering the volume of uploads they deal with, they have disclaimers not only in their official terms but all over the place. You can't shake a stick around YouTube without seeing some kind of notice about not uploading copyrighted content you don't own and checking the little box that says you have permission to upload the content. MegaUpload on the other hand has what I call the 'plausible deniability factor'. They too have a notice in the TOS and mention that you can't upload infringing content but their actions tell a different story. They have ads on torrent sites that link to direct downloads of the very same torrents you've been searching for. The sharing feature of MegaUpload has always been, by and large, used for sharing copyrighted content publicly as opposed to with only a select group that the original user chooses.
What MegaUpload has always done is position themselves unofficially as a file sharing site for infringing content. Basically a direct download alternative to torrents. At the same time they hid behind the plausible deniability that comes from being an innocent file locker service. Everyone knows its next to impossible to police sites that let users upload content and they used that to hide behind.
It's very difficult to argue this from a strictly legal standpoint and that's precisely what MegaUpload has always counted on. That's obvious to anyone. But I'm not arguing the legalities of how they operated exactly. I'm sure any site with user uploaded content can be brought down like MegaUpload even if they really truly were doing their utmost to operate on the up and up.
What I really want to get at is the human perspective. I just want people to stop being in denial and admit that we all knew what MegaUpload was doing. MegaUpload has always had a reputation for being a place where you can download music, movies, and software for free. There's no shortage of infringing content on the site and just a quick search for anything will show you that. Their selection of pirated media rivals that of the Pirate Bay.
It's really disturbing to me to see so many people in denial about this. It's like we all root for these underdog pirate sites and want them to succeed so badly that we're blind to the obvious reality that they really do provide a popular service largely made successful by providing infringing content.
If only a few people would just admit that then I would shut my mouth and I'd probably agree with you on the legalities.
It reminds me of tobacco shops that sell "pipes". These glass pipes they sell certainly can be used for tobacco but they aren't being used that way. Stoners walk in, totally baked, buy a glass "tobacco pipe" and fill it with weed to smoke. Tobacco pipes are totally legal and when the shop gets shut down for selling drug periphenalia all the pot-heads throw a fit and make similar arguments like people are making for MegaUpload. I would love to get on board with those arguments but I feel it's disingenuous to make that kind of argument until the stoners can admit that those tobacco pipes were really bowls for smoking weed and were used for that purpose pretty much every time.
Was MegaUpload operating legally? Gray area but yeah.. for the most part. But it was being used for a different purpose, they knew it, turned a blind eye, and hid behind plausible deniability. Arguments about whether copyright should be abolished and debates about the validity of certain laws are irrelevant to this discussion as they already exist and have been enforced since before many of us were born. It's a good debate to have but is beside the point.
Oh, really? Then would you mind explaining the following pieces of software that let you download videos from YouTube?
https://addons.mozilla.org/en-US/firefox/addon/flashvideorep... http://downloadyoutubevideo.org/ http://keepvid.com/ http://saveyoutube.com/ https://addons.mozilla.org/en-US/firefox/addon/video-downloa... https://addons.mozilla.org/en-US/firefox/addon/easy-youtube-... https://addons.mozilla.org/en-US/firefox/addon/1-click-youtu...
Sure, you could say that you'd have to know about them, but all of the above can be found searching "download youtube video" from Google.
The next argument is probably going to be something like "well YouTube should stop third party services from being able to do that" but again this is beside the point and it would be damn near impossible to stop it from happening. There's always a workaround.
And yes, YouTube did implicitly encourage piracy. I'm not sure if you remember the days before the Google acquisition, but you could find most anything you wanted on there. I remember watching whole TV series' on there. Their laissez faire attitude towards infringing clips had a large role in making YouTube the dominant player in the online video space.
Sure, you can still find infringing videos on YouTube but the main difference is that today's YouTube neither encourages that sort of thing nor does it have anywhere near the reputation of MegaUpload. When you want to pirate some music or video you think of MegaUpload long before (post-Google) YouTube. MegaUpload always had that plausible deniability factor going for it which was smart but why do we keep kidding ourselves into thinking this is just a poor file locker service that gets abused like any legitimate site but is being picked on?
You can't argue this based on how the service used to be. Let me give you a weird example. I used to be a heroin addict. I did a lot of unethical and illegal things with my friends who were addicts as well. Since then I cleaned up and have consistently sober and living well for three years while one friend hasn't. Now if that friend gets arrested and put in jail over his problem is it fair to argue that I should also be in jail because back when I used I did similar or worse things than my friend? No. Of course not.
What I'm hearing is "YouTube and similar sites should be taken down too because they used to have lots of infringing content". That no longer matters. I'm sure that if YouTube continued to operate as it once did that they could be in some hot water too but arguing their past is a flimsy argument. MegaUpload had every opportunity to at least try to look like they didn't encourage infringement but they didn't. I don't see how we can compare yesterday's YouTube with today's MegaUpload.
Do you have any reference to back that up, or did you just make a wild-ass assertion?
That hasn't been proven, for one. And even if that is ever objectively proven, whither Rapidshare? YouTube? Hotfile?
These kinds of razzle-dazzle arguments don't make you sound more convincing. "MegaUpload wasn't mostly infringing content". "Youtube is just like Rapidshare". This is Hacker News, not a court of law; who's mind do you think you're changing with statements like that?
>Rapidshare, Youtube, Hotfile. Which of these things is not like the others?
>who's mind do you think you're changing with statements like that?
Google is a business partner of the content industry. Serious (high-fidelity, in-release-window, substitutable commercial product) infringing content on Youtube is a headache for Google. That same content is the reason Rapidshare and MegaUpload exist.
>That same content is the reason Rapidshare and MegaUpload exist.
How??! It's 25 petabytes. How many movies did the MPAA (Disney+Sony+Viacom+NewsCorp+NBCUniversal+Warner) produce, that need to have been uploaded as how many duplicates in what sort of quality??
According to Wikipedia there have been about 3500 titles released on BluRay in the US (which are by no means all represented by the MPAA, but it's an upper limit). Generally these hi-res movies are uploaded in 10GB versions, but even if they all used the full dual layer disc (50GB), that's still 3500x50GB = 175 terabyte = 0.175 petabyte. And this is being extremely generous just to get a ballpark estimate to show just by how much they miss the order of magnitude. It's probably about a fifth of this number.
Movies before BluRay have not been released or uploaded in this resolution, they're generally not bigger than 1GB (the vast majority being 700-800MB).
How many movies did the Big Six produce? It's quite hard to find that number, actually. But I'll do you one better:
One number I could find, is that there were 9157 movies produced in 1995-2012 (summing these numbers: http://www.the-numbers.com/market/MPAARatings/ ) which amounts to about 538 movies per year. Times 70 years of copyright is max 37660 movie titles that might still be copyrighted, times 50GB a piece cause they're all magically uploaded as raw BluRay rips even if they don't exist in that format, is 1,883,000 gigabytes of data. That's 1.9 petabytes.
So, that means that every movie that's been made that is still under copyright, must have had 13 duplicates in the absolute highest 50GB/BluRay format to make up for 25 petabytes of data on MegaUpload.
Except that's not right because even on BluRay you can't just inflate the quality like that until you fill 50GB, you need to fill it with actual minutes of video material so even on BluRay these movies can't have been that big.
Also I'm fairly sure that the number of movies produced between 1995 and 2012 is a rather high estimate of movie production in the past 70 years.
And then there's the fact that 13 duplicate different format rips of a movie is quite a rare sight, and most different format encodings are going to be much, much smaller than the BluRay version.
So really, there's just no way anything more than a few percent of the data on MegaUpload could have been infringing on the MPAA's rights. But they took it all offline, just to make sure.
And the more I try to wrap my head around these calculations (petabytes are HUGE!!) I'm not even sure if they could have filled it up with porn either ... what IS in those 25 petabytes, I'm getting rather curious now :)
IMDB lists 271,106 feature films. Even if massive numbers of those fall outside the MPAA or were pre-1942, it's still quite plausible that 38k fall within those boundaries.
The interesting thing is TV, which is certainly produced at a higher gb rate than feature films these days. I don't think you can discount those from a calculation of infringing material.
IMDB stats - http://www.imdb.com/stats
You won't even get to a terabyte if you sum those 20.
First there's the possibility that MegaUpload has no duplicate checking at all, meaning that if anyone would upload the exact same data they would just store it twice. Or thrice. That way I suppose they could get to the 25 petabyte mark.
Second, you say "majority of their video content". I can believe that too. That is, the whole "it's 25 petabyte" argument goes nowhere if we're just discussing a part of the data.
Then all I'm saying is, even if they're storing all possible MPAA protected data, in several formats and encodings, it's still a tall order to claim that involves more than a couple percent of those 25 petabytes, and taking it all offline just because a small part of it is infringing (even if that small part is rather huge), isn't quite fair. It'd be like taking the Internet offline because people are doing illegal stuff on it, right?
Jiminy.
:)