Search giant Google filed an amicus brief this week in support of HotFile.com, a cyber locker website that hosts user-uploaded content, saying that potential legal sanctions against the site endanger the entire social Internet. Responding to the brief, America’s largest film studios objected, saying the court should ignore Google’s analysis.
The film studios that sued HotFile last year claim the site is a haven for media piracy because it allows for blind hosting, which gives users the ability upload and share any file. HotFile, like the site MegaUpload.com recently taken down by U.S. authorities, claims it is protected by U.S. copyright laws which place the burden of investigating infringement upon the copyright holder, meaning they cannot be required to police their users and may only take down files after receiving a lawful request.
Turns out, Google agrees, and that’s driving the movie studios up a wall. After Google filed a brief with a Florida court earlier this week explaining why it supports HotFile’s right to exist, companies suing HotFile insisted that the court ignore the search giant’s analysis of their allegations because HotFile’s attorneys had already made similar claims.
In their brief, Google’s lawyers explain that the studios are attempting to mislead the courts by claiming that the Digital Milinneium Copyright Act requires blind hosts like HotFile to actively police their users’ activities. They instead say that it is incumbent upon copyright holders to search out infringing activities and report them to the hosting company, which would then be required to remove links to those files.
“The Court… should resist any effort to shift the investigatory burden that Congress deliberately allocated to copyright owners or to impose on Hotfile policing obligations of which it is specifically relieved by the DMCA,” Google’s attorneys write.
They add that another of the studios’ claims — that HotFile knowingly participated in media piracy by not removing the files themselves from the servers, but merely restraining access to them — is simply bogus.
“In this respect, Hotfile did exactly what the DMCA demands, and plaintiffs’ takedown notices cannot be used to charge the service with knowledge of allegedly infringing material that those notices did not specifically identify,” Google explained.
This claim is interesting because not only does it indicate that Google is supportive of HotFile, the company’s argument would also seemingly apply to charges against MegaUpload. Both companies provided a similar service, and both were targeted by media pirates as an easy way of sharing infringing content. But since MegaUpload and HotFile both claim they actively restricted access to these files upon receipt of a takedown notice, Google is essentially saying that they’re entitled to the same protections as Facebook, Twitter, Wikipedia and other major user-created websites.
Google’s attorneys also suggest that should the courts destroy that protection, it could have dire effects for the rest of the social Internet. At least two companies, FileSonic and FileServe, closed their doors following a police enforcement action against New Zealand-based MegaUpload. The nation’s highest court has since ruled that MegaUpload’s founder had his property and assets seized on a bogus warrant, and that police had acted unlawfully by filing for the proper warrant, seeking to make it retroactive, after the raid had already happened.
“Other mainstays of the modern Internet, such as Facebook, Twitter, and Wikipedia, likewise rely on the DMCA safe harbors in their everyday operations,” Google’s attorneys write. “These services have become vital to democratic participation in this country andaround the world. They have transformed the way people access information, buy goods andservices, forge social relationships, and discuss matters of public and private concern. Without the protections afforded by the safe harbors, those services might have been forced to fundamentally alter their operations or might never have launched in the first place.”
In their response to Google’s analysis, film industry attorneys offered no reasons for the court to reject it other than listing similarities to HotFile’s claims and pointing at a recent case in which a Google brief was ignored because of its similarity to the defense’s arguments. The attorneys further requested an additional 15 days to come up with a more thorough rebuttal, should the court accept Google’s brief.
It’s not yet clear what the court may do in the case, but Google has been successful with this argument in the past. After being sued by Viacom for $1 billion in damages over tens of thousands of copyrighted videos published to YouTube, a court threw the case out because the law protects Google so long as they were responsive to takedown requests.
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