Warner Bros admits it sends takedown notices for files it hasn't seen and doesn't own

Warner Brothers has filed a brief in its lawsuit against file-locker service Hotfile in which it admits that it sent copyright takedown notices asserting it had good faith to believe that the files named infringed its copyrights, despite the fact that it had never downloaded the files to check, and that it sometimes named files that were not under Warners's copyright, including files that were perfectly legal. Among the files that Warner asked Hotfile to remove was a file called "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" and others.

The studio also "admits that it did not (and did not need to) download every file it believed to be infringing prior to submitting the file's URL" to the Hotfile takedown tool. That's because "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 is interesting because the DMCA requires a copyright holder issuing a takedown notice to state that it has a "good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." It's hard to see how anyone at Warner Brothers could have formed any beliefs—good faith or otherwise—about files it admits that no human being at Warner had even looked at.

The recently-proposed Stop Online Piracy Act, which is backed by the major Hollywood studios, would give copyright holders new powers to cut off websites' access to payment processors and advertising networks. It even includes a new DMCA-style notice-and-takedown scheme. But 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.

Warner Bros: we issued takedowns for files we never saw, didn't own copyright to

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  1. Maybe they didn’t need to download the file because they found it linked to on one of those pirate forums stating that it contained a certain movie, with a bunch of other posters verifying that it was indeed a copy of a certain movie.  You don’t need to download the file to have a pretty good idea of what the file contains. Also if the file is called Harry.Potter.Goblet.Of.Fire.DVDRip.XCelsiorClub.rar, you can be pretty sure it contains the movie, and should be taken down, or that it should be taken down anyway so that a bunch of people don’t waste their bandwidth.

    1. In TFA it says they did not even do that, they just used a program to look for key words, even common words like The Box and then automatically send a takedown request. This led to takedown requests for a ton of things that they did not own the copyright to or were perfectly legal. I don’t think the main problem was that they did not open the files, but that no human even looked at the file names like you suggest.

      1. I guess if they just had a dumb program, then it’s not as bad as I stated, but with the number of files going up on sites like this, I’m not even sure if you could have a human doing all the verification.  Also by downloading the file, they could be held responsible for whatever it contains.  What if the file called Harry.Potter.Goblet.Of.Fire.DVDRip.XCelsiorClub.rar really contains a movie that they don’t own the rights to? Are they now breaking the law?  What if it contains something like child porn.  I’m not certain, but if they went downloading every file that went up there,  with a suspect title, I’m sure they would run into a bunch of encrypted stuff, and possibly some very illegal content. 

        1. What if the file called Harry.Potter.Goblet.Of.Fire.DVDRip.XCelsiorClub.rar really contains a movie that they don’t own the rights to? Are they now breaking the law?

          Just thinking aloud here, but I have been thinking about the DMCA lately (I actually don’t have too much issue with the way the law is written, but they way it is implemented and enforced just encourages the kinds of abuses about which the linked article speaks).

          In these thoughts, I have a fantasy of posting some of my own music files (which I’ve always released under CC licenses) with very misleading names in order to get hit by a bogus take-down request. And in this pleasant fantasy this starts the whole class-action lawsuit rolling….

          1.  Releasing under misleading names… Hmm..

            One of my co-workers plays hammer dulcimer and keyboards for an indie band called “No Strings Attached”.  They got a nice “cease and desist” letter from a record label when a certain boy group released an album of the same name, claiming their trademark was being infringed.  They sent back a reply that pointed out they’d been recording albums under that name since before the people in the boy group were born, and would be more than happy to discuss how much the label owed them for using their band’s name as the name of the boy group’s album.

            Oddly enough, they never heard back from the record label…

        2. In other news, the police suspected that the killer was in that particular house, but, fearing that one of them might get injured trying to apprehend the perpetrator, they instead firebombed the house, just to be safe. Firefighters found the bodies of three children, their disabled single mother, and several puppies, but no killer. The police defended their actions by asserting that due process is overrated.

        3. Kibbee,

          You’re making shit up as an excuse to blame the victim. That violates our Comment Policy.

        4. “What if the file called Harry.Potter.Goblet.Of.Fire.DVDRip.XCelsiorClub.rar really contains a
          movie that they don’t own the rights to? Are they now breaking the law?”

          Given that the studios *have* been known to hire companies to intentionally seed corrupted or misleading files and indexes to tick off the downloaders, just checking the filename *isn’t* due diligence.  There’s already known cases of studios hiring a company to inject fake Torrent seed info – and then another company hired by the same studio sending a DMCA takedown to the ISP of the poor person who’s IP address got forged.

        5. but with the number of files going up on sites like this, I’m not even sure if you could have a human doing all the verification.

          And this, my dear, is why “enforcing copyright” in the digital age is basically impossible.

    2. Dear Mr Kibbee,
      Our online corrections bot has determined that you are in violation, you will now be sentenced to 999,999,999.00 years in prison, sentence to be executed by our policebots now. If you believe this to be in error, too damn bad.
      Sincerely Hollywood Megaconglomerate 

    3. Let’s have your real name and contact info. We can play a game: everyone can include your name in our comments along with  a WB owned movie….let’s see what happens. 

    4. No. Think of this in a different context. If someone claims that they committed mass murder, but actually didn’t, and all it took a prosecutor was to spend 30 minutes and check (most of that time getting a cup of coffee), that person shouldn’t be executed for their “crimes” right? An extreme example but an apt one because it’s exactly corollary. IP rights “protection” have gotten so out of hand that cases like this aren’t uncommon (think back to when the RIAA was blindly issuing “settle this now by paying X amount” to random people, which they’ve stopped because it was grossly inappropriate and a legal nightmare). If something like a file improperly named is sucking up bandwidth then that’s an entirely different problem than organizations issuing lawsuits blindly.

  2. But 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.

    My God I envy Ars Technica their optimism… but not, perhaps, their naivete.

  3. the DMCA requires a copyright holder issuing a takedown notice to state that it has a “good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”

    And the penalty for issuing a takedown notice without such good faith belief is … what, exactly?

  4. From the Torrentfreak article,

    “Hotfile pointed out that this automated process resulted in the removal of many files that do not belong to Warner. The movie studio admits this and confirms that while searching for ‘The Box (2009)’ many unrelated titles were removed.

    “Warner admits that its records indicate that URLs containing the phrases ‘The Box That Changed Britain’ and ‘Cancer Step Outsider of the Box’ were requested for takedown through use of the SRA tool.”

    But not all false takedowns were unintentional. Warner also says that one of their employees deleted Open Source software from Hotfile on purpose. Their rationale for this is that the software in question could speed up infringing downloads.”

    There is a big difference between removing Harry.Potter.Goblet.Of.Fire.DVDRip.XCelsiorClub.rar without downloading it and removing every torrent that has the word “box” in the title without doing some basic research.

  5. Ah, bless their hearts, Warner Brothers has afforded me yet another opportunity to to recount the story of how they threatened The Marx Brothers with a lawsuit over the film A Night In Casablanca.

    Probably fully aware that they didn’t have a legal leg to stand on Groucho responded with a letter in which he questioned whether Warner Brothers owned the rights to the city of Casablanca and then added that he was pretty sure the Marxes had been brothers longer than the Warners.

  6. Warner has bots that do the work for them, searching the web for snippets of tunes that match their algorithms, and automatically issuing orders to cease for those who come within their fuzzy logic. 

    And fuzzy it is…in my case they took down a song by my step-son’s band Wolf Parade. I had permission from the band and their record label to use the song as background music on a YouTube video. The video was on Youtube for almost 3 years before Warner stripped off the entire sound track just last year. 

    Fortunately, they missed removing the 240p resolution version…see it at http://www.youtube.com/watch?v=iG0pzGcy4xU    

      1. What part of “due diligence” do these idiots not understand?

        Mostly the “diligence” part, but they seem to have a little trouble with the “due” part also. But apart from that…

  7. There should be some deterrent towards issuing legal notices without any substantive evidence. It should be regarded as a nuisance, and if the issuer can’t demonstrate its evidence or reasons for demanding the removal of lawful material, then there should be some comeback.

    Unfortunately, most of these materials are put up for personal (and non-economic) reasons, and so – under UK law at least – any claim for damages would be negligible, and so not particularly effective as a deterrent.

    1. There is actually a penalty.

      Up to five years in prison, and a felony conviction on your record, if found guilty of submitting a DMCA claim without a good faith belief that the content was yours and illegally there.

  8. “good faith belief” would almost certainly be satisfied by a filename matching a movie title of theirs

    1. “good faith belief” would almost certainly be satisfied by a filename matching a movie title of theirs

      … which does not explain the takedown for the BBC program “The Box That Changed Britain,” to pick an example.

  9. Warner Brothers does this a lot, not just for DMCA takedown notices.  I have a piece of public-domain sheetmusic from 1921, republished by Warner Brothers.  It contains a very scary-looking copyright notice, even though the music is public domain.  

    This is fraud, pure and simple, and their lawyers should be reported to the local Bar Association for unethical behavior.

  10. Microsoft has been doing this for over 15 years. They send letters out to “small” businesses demanding proof of Window’s licenses. If the company can’t produce, the letter stated, then a hefty fine or court action would be taken if  the company didn’t purchase new software & licenses. 

    I worked for the law firm that sent these letters out. I received one response, “We don’t use Microsoft, fuck off!”

  11. I bit into a piece of chocolate and broke a tooth. I sent Hershey’s legal department a letter. They responded with a nice form letter, “Send us the chocolate…”

    After sending the chocolate, I received a scathing cease and desist letter from them, “This isn’t a chocolate bar, it’s a cell phone,  LG Chocolate!”

    I’m still very confused, I was told it was chocolate, chocolate is in the name, it’s about the size and dimensions of a bar, so it must be a Hershey’s Chocolate Bar, therefor edible. 

  12. As soon as SOPA passes I’m sending take down notices on Warner Bros.’ webites that include the name “Freddie” ’cause they might contain infringing files of mine.

  13. One thing that has always irritated me about all of this that a few people touched on, is that all of the sites in question are generally abiding by the crazy DMCA. The “hollywood megaconglomerates” are the ones who pushed for and probably wrote the DMCA. And now when they send takedown notices and they aren’t doing it properly according to the DMCA and they try and prosecute the site because there is way too much on the internet for humans to verify. If they want to get super nitpicky about their IP rights and take that very literally, then we as consumers and site operators have every right to get nitpicky and literal about the DMCA. At least in this example while it may be unclear as to whether or not hotfile.com was actually infringing, it is very clear that WB was clearly outside their rights according to the DMCA and should therefore be held to any penalties that exist for such behavior. Of course we all know that that won’t happen. But you can’t blame a guy for wanting the megaconglomerates to be held to the same standards as the american people.

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