Warner Bros’ False Takedowns Stifle Free Speech, EFF Tells Court

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The EFF has filed a brief in the dispute between the cyberlocker Hotfile and Warner Bros, where the latter is accused of taking down content they don't hold the copyrights to. The EFF argues that Warner Bros. is stifling online speech by denying Hotfile users to access to legitimate content. The movie studio's claim that they are not responsible for mistakes made by a computer, but this is not a valid defense according to the group.

effSeptember last year the Florida-based file-hosting service Hotfile sued Warner Bros. for fraud and abuse.

The file-hoster alleged that after giving Warner access to its systems, the studio wrongfully took down files including games demos and Open Source software without holding the copyrights to them. The false takedowns continued even after the movie studio was repeatedly notified about the false claims.

In a response, Warner Bros. admitted the accusations. However, the movie studio argued that they are not to blame because the mistakes were made by a computer, not a person. As a result, the false takedown request were not “deliberate lies.”

The pending case has major implications for the responsibilities of copyright holders when it comes to automated takedown requests. If the court decides that Warner Bros is not guilty of copyright abuse there’s a serious risk that DMCA notices will turn into a broad and uncontrollable censorship filter.

To prevent this from happening the Electronic Frontier Foundation (EFF) has filed an amicus curiae brief siding with Hotfile.

The EFF points out that because of the false takedown requests many of Hotfile’s users were denied access to legitimate content, effectively hurting speech on the Internet. Blaming the computer for these mistakes is not a valid defense according to the group.

“Hotfile’s customers unfairly lost access to content because of Warner’s bogus takedowns. But under Warner’s theory, any company could sidestep accountability for abusing the DMCA by simply outsourcing the process to a computer,” said EFF Intellectual Property Director Corynne McSherry.

“In fact, the companies would have a perverse incentive to dumb down the process, removing human review. What Warner is doing here is a ploy to undermine the DMCA provisions that protect Internet users from overbroad and indiscriminate takedowns like the ones it issued,” she adds.

As an example of how these automated processes hurt free speech the EFF names a recent case where articles from TorrentFreak and Techdirt were censored by mistake.

The brief further argues that if copyright holders aren’t responsible for computerized takedowns, they might be inclined to abuse the system for competitive purposes.

“Imagine the potential for mischief: Let’s say that Warner does not like competition from Universal. It could set a computer to search through Universal’s online presence, with the loosest possible settings, and issue takedown after takedown to Universal’s ISP for spurious claims,” EFF writes.

The competitive angle raised by the EFF is not just hypothetical, as Google previously noted that 57% of all the DMCA notices they receive come from companies targeting competitors.

As we pointed out two days ago, Warner Bros. is not the only company to make massive mistakes through their automated takedown systems. Microsoft, for example, asked Google to take down a link to the open source operating system Kubuntu, and NBC Universal censored a free-to-share movie.

It will be interesting to see what the judge decides in this landmark case.

EFF’s brief


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