Warner Bros. Not Playing Fair: Abuse of the Take-Down System against Hotfile
Hotfile, a top player in the file-sharing arena, is risking the fate of Megaupload if the MPAA wins the lawsuit that has been filed in 2011
Unlike Megaupload’s Kim Dotcom who currently resides in New Zealand, thus making it difficult for US authorities to apprehend and prosecute him, Anton Titov – Hotfile’s main man – is living in Florida. While Kim Dotcom barricaded himself inside his house during the raid, Mr. Anton is decided to fight back, claiming that Warner Bros. is allegedly abusing its anti-piracy tool.
On that note, the movie studio has sent no less than one million notices to Hotfile starting with 2009, but made the takedown system unavailable after Hotfile accused the company of abusing the website’s anti-piracy tool. A rather suspicious move which is explained by the company as you can read further in this article.
In response, Warner Bros. filed a motion last Monday to have Hotfile’s accusations dismissed. Both Titov’s and David Kaplan’s statements reveal new details about anti-piracy efforts, and how the movie studio and Hotfile reacted after being dragged into this mess.
Kaplan, also a senior VP of worldwide antipiracy operation at Warner, underlined that Hotfile’s mechanism does not allow copyright owners to search the website for infringed materials, thus forcing the studio to invest a lot of time, money and manpower to pin-point other sites that “link” to locker sites. To make an idea of how big this operation is, the movie studio said that it has sent one million notices to Hotfile since 2009.
On the other side, Hotfile claims that Warner Brothers had sent takedown notices on materials that they didn’t even own, a fact admitted by the movie studio who added that errors do occur, but that they shouldn’t be relevant in the case. Furthermore, the company is already investigating the glitches, and even shut down the whole system.
Warner’s aforementioned motion explains that Hotfile’s counterclaims should be disregarded for several reasons. Here are some of them:
“Hotfile cannot present evidence establishing that Warner had actual subjective knowledge that, at the time it sent any takedown notice…the notice contained a material error.”
“Hotfile cannot present evidence establishing that any takedown notice…resulted in any cognizable injury to Hotfile.”
“Hotfile is not injured by removing a file that is infringing, even if the takedown notice is sent by the wrong copyright owner.”
“Warner is not the cause of the termination of a Hotfile user who had ‘three strikes’ from infringement notices without counting the notices sent by Warner.”
The studio also points to deposition testimony by Titov, in which he admits that errors can occur in the take-down process. In addition, he acknowledged that the locker site reacted to the take-down orders only after the MPAA commenced this lawsuit. While stating that the website took no advantage from having pirates on board, Titov argued that he’s not aware of any user who made a complaint on Warner’s faulty notices.
“Hotfile doesn’t consider [itself] to be entitled for income from repeated copyright infringers,” reads his deposition.
To make a strong case, Warner did some background research, revealing the following: 24 takedown notices were alleged duplicates, 19 were supposedly Warner-produced, 271 allegedly belonged to Electronic Arts, leaving 477 alleged copyright infringement notices that do not belong to Warner.
Moreover, regarding the EA-owned files, Warner explains an interesting fact. In his statement Kaplan says that the movie studio has an agreement signed with EA to distribute their works in Brazil. Starting with early 2011, both companies worked on a plan to help the movie studio track EA files hosted on locker sites. As such, EA has “retroactively authorized” Warner to send these takedown notices, although at first the studio admitted that these notices were an error, a contradiction that makes the case more complicated than it already is.
Last but not least, Hotfile is accusing the studio of breaking a judge’s protective order on recovered work-product documents. A hearing on summary judgment is expected soon.
Megaupload’s demise was a hard hit taken by the file-sharing community, but if Hotfile falls as well we may witness a battle of epic proportions between those who still fight against the system and the system itself.