Google files "friend of the court" brief to support Hotfile's, and potentially Megaupload's, argument that their business model should be protected under the DMCA, while RapidShare may face a court ruling that forces it to spy on all user uploads
Google has filed an amicus brief to help struggling file hosting website Hotfile in a lawsuit launched against the website by Hollywood's largest movie studios.
Google's desperate intervention comes after the MPAA, the Hollywood studios' copyright lobby group, requested a summary judgement, citing the recent Megaupload seizures as evidence of the seriousness of Hotfile's similar activities. Google, fearing an attack on the "Save Harbor" provision of the DMCA, a provision that has protected Google's own web interests from massive copyright claims.
The "Safe Harbor" provision grants protection to service providers against actions of their website's users. As long as the service provider has a working DMCA take-down process, and as long as they take action on obvious cases of infringement (assuming they are aware of it in the first place), then they are not liable for the actions of their users. Google has already used "Safe Harbor" successfully to protect its YouTube property from a lawsuit launched by media conglomerate Viacom.
Despite being the bodies behind writing of the controversial DMCA legislation, content holders such as the MPAA and the music industry equivalent, the RIAA, have been fighting hard recently to reduce the protection offered to Internet service providers under "Safe Harbor".
But Google says not only is "Safe Harbor" an essential component of copyright law that helps innovation, that many services "might never have launched in the first place" without this protection, it also says that "Safe Harbor" applies to Hotfile, despite the volume of infringing content the website helped to host.
On the argument that Hotfile does not deserve protection due to the rampant nature of piracy that occurs on its network, Google writes "The case-law uniformly rejects efforts to deprive service providers of the safe harbor based on generalized awareness that unspecified (or even ‘rampant’) infringement is occurring on their services."
And on the argument made by the MPAA that Hotfile refused to comply with studio demands to provide a specific type of filtering mechanism, Google responds: "It guards against any claim that a service provider loses the safe harbor by failing to ‘adopt specific filtering technology’ or any other technique suggested by copyright owners for affirmatively seeking out possible infringement occurring on its service."
But perhaps the most interesting argument Google makes is one that could potentially help fellow file hosting firm Megaupload, who is facing more serious criminal charges. One charge against both Hotfile and Megaupload is that take-downs were only performed on specific files mentioned by content holders, and not on similar or even the same files that the websites continued to host. But Google says that this is the way it is supposed to work, as only the rights holders can determine which files need to be removed, and which should be kept (for promotional purposes, for example), an issue that Google's YouTube faces daily with original, authorised uploads, and re-uploads.
"Plaintiffs make much of the fact that Hotfile, at least for a time, apparently removed only the specific download link identified as infringing in a given DMCA takedown notice, and did not take the additional step of blocking other files on its system (not called out in the notice) that might have also have contained the copyrighted work at issue. But, 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."
The MPAA has reacted to the amicus brief by asking the judge to throw it out, accusing Google of being impartial and acting as a partisan advocate for Hotfile.
In other news, fellow file hosting firm RapidShare is also under the legal spotlight, despite the legal status of the website now given the "all clear" by the likes of the MPAA/RIAA in the United States. In Hamburg, a coalition of book publishers and the music rights group, GEMA, have had at least a partial victory in the Higher Regional Court that may force RapidShare to filter and monitor all file uploads. GEMA is also currently involved in a lawsuit against YouTube, and is forcing YouTube to block legal YouTube music videos from being viewed by German citizens.
This is despite a European Court of Justice ruling in February that makes it illegal for service providers to monitor and filter user generated content, due to privacy and freedom of speech issues.
Due to this, RapidShare may very well file an appeal to the verdict, although depending on the reasons for the judgement, it may still present as a small victory for the Swiss based file hosting firm, compared to the earlier judgement made by a lower court.