What Warner’s Recklessness Says About SOPA
What Warner’s Recklessness Says About SOPA
What Warner’s Recklessness Says About SOPA

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    Warner Bros. on Monday admitted to removing content from Hotfile.com that
    Warner never even looked at and didn’t actually own.  The
    Stop Online Piracy Act (SOPA), currently pending in the House of
    Representatives, give companies like Warner incredible new levels of power that
    they have never had under the DMCA. 
    If Warner’s recklessness under the current legal framework shows us
    anything, it’s that Congress’ proposition to give these kinds of companies even
    greater power is about as sensible as parents giving to their teenager the keys
    to the brand new family car after he just got a DUI crashing the old one. 

    In September, I posted
    about the legal battle between Hotfile and Warner.  Basically, Warner sued Hotfile for copyright
    infringement.  Hotfile then
    countersued Warner for abusing a custom-made takedown tool that allowed Warner
    to take down anything that infringed their content, which Warner used to take
    down things that it clearly did not own.

    In Warner’s response they admit to taking
    down things they didn’t own.  But,
    according to Warner, that’s totally fine, because it’s unreasonable to expect them
    to go through everything their admittedly
    searches turn up: “Warner could not practically download and
    view the contents of each file prior to requesting that it be taken down
    through use of the SRA tool.”  Apparently, checking files before permanently deleting them
    is just too hard.

    Putting aside the major
    with this from a DMCA perspective, Warner’s admission should raise
    serious red flags on the proposed Stop Online Piracy Act (SOPA).  SOPA, as Public Knowledge has discussed, would create a
    new private cause of action that allows a person or company to sue a website
    that is “dedicated to the theft of U.S. property.”  The bill defines such dedication as a website that “is
    taking, or has taken, deliberate actions to avoid confirming a high probability
    of the use of the website” to commit copyright infringement.

    As Sherwin Siy has already pointed
    , there is no definition of what constitutes a “high probability,” or
    what it takes to “avoid confirming” that high probability.  Rashmi Rangnath has also discussed
    in detail how SOPA’s new private right of action undermines the DMCA’s balance
    between innovation and the protection of intellectual property.  Under SOPA, cloud services like Hotfile
    could be liable even if they did all that was required of them under the
    DMCA.  They would be liable under
    SOPA simply because they didn’t do enough to find out whether there was a “high
    probability” of their site being used for infringing purposes.

    As if those problems are not enough, SOPA puts the initial
    decision as to whether or not Hotfile has done enough into the hands of companies
    like Warner—who has now proven that they simply cannot be trusted to make these
    kinds of decisions.  Under SOPA, once
    someone has decided that a website is “dedicated to the theft of U.S.
    property,” that website gets their advertising yanked, and access to payment
    systems blocked.  Then it’s up to the
    website to prove that they in fact were not “dedicated to the theft of U.S.
    property.”  In the meantime, their
    advertising and payment systems can remain suspended, and a judge can issue a
    temporary restraining order, preliminary injunction, or injunction, effectively
    shutting down the website until they can prove their case.

    SOPA gives companies like Warner the ability to shut down a
    business on mere suspicion that that business has “avoid[ed] confirming a high
    probability” of infringing use; far more power than they ever had under the
    DMCA.  Warner has shown that they
    cannot be trusted even with the power given to them by the DMCA when they
    “cannot practically download and view the contents of each file” before they
    remove it.

    Effectively, Congress is proposing to give Warner and
    companies like it a hugely destructive weapon.  Warner’s official position?  “We don’t have to aim if it’s too hard.”  When it comes to businesses online, the
    stakes are simply too high to allow for this kind of carelessness.