Following in the footsteps of the Megaupload cyber file locker and file sharing site takedown, the Motion Picture Association of America (MPAA) is attempting to take down the popular file file-sharing site Hotfile. Now, Hotfile has gained a somewhat unexpected ally against the MPAA's demand that the company be shut down without a lengthy trial or investigation into its alleged illegal practices or business conduct: Google.
Google, in its amicus brief to the U.S. District Court in Miami (PDF Link), states that it relies heavily on the "safe-harbor" provisions of the Digital Millennium Copyright Act ( DMCA). Indeed, "Google is also a defendant in a case now pending in the Second Circuit in which the district court correctly held on summary judgment that YouTube is protected by the DMCA safe harbor, including against a claim of copyright inducement liability" in Viacom v. YouTube.
Google then argued that "Both on its own behalf, therefore, and on behalf of its millions of users, Google has an overriding interest in the proper application of the DMCA, including the particular safe harbor at issue here, which applies to "Information Residing on Systems or Networks At Direction of Users." Google is particularly concerned by some of the arguments offered by the plaintiffs, which distort the meaning of the statute and, if accepted, would unduly narrow the important protections those provisions give online service providers."
Google continued that, "in the ordinary course of their operations service providers must engage in all kinds of acts that expose them to potential copyright infringement liability" and that Congress created a series of "safe harbors" that relieve service providers from damages liability for any copyright infringement claim arising out of four different types of common online functions." These include, Google's lawyers note, "Service providers [such as Hotfile] that store information on their own systems at the direction of users."
The company also states that besides Google. Such companies as Amazon, eBay, Facebook, Twitter and Wikipedia all reply on the DMCA safe harbors in their normal course of business. It is not the job of any of Hotfile, or any other Internet company "to affirmatively monitor their services for possible infringement." In short, online businesses, contrary to what the MPAA might wish, aren't required to police their users' files for files that the MPAA might consider in violation of their copyrights.
Google also argued that Hotfile was within its right to simply remove links to files rather than the files themselves. In addition, it's not Hotfile's job to remove or blocking "other files on its system (not called out in the notice) that might have also have contained the copyrighted work at issue." Again, "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."
Will the court pay heed to Google's arguments? We'll have to wait and see. In the meantime, MegaUpload founder Kim DotCom is out on bail and he may yet reclaim his seized assets. Other file-locker/sharing sites, however, such as FileSonic and FileShare, have closed their doors. Regardless of how the Hotfile case is resolved, I don't see many Internet file sharing sites remaining open for fear of legal action.
On the other hand, I also don't see the MPAA and RIAA's legal assaults slowing down Internet piracy than any of their utter efforts over the years have. The old copyright genie is out of the bottle and can't be put back in it again.