After months of delay, Warner has finally released documents detailing its notice and takedown practices. The documents were filed under seal in the now-defunct Hotfile litigation until a federal court (prompted by a motion from EFF) ordered Warner to produce them for the public.
These documents confirm the movie studio’s abuse of the DMCA takedown process. They describe Warner “robots” sending thousands of infringement accusations to sites like the now-closed Hotfile without human review, based primarily on filenames and metadata rather than inspection of the files’ contents. They also show that Warner knew its automated searches were too broad and that its system was taking down content in which Warner had no rights – likely a violation of the DMCA.
EFF has posted the documents on its Disney v. Hotfile case page, with the newly unsealed text highlighted in yellow. Although much of the record remains sealed for now, the newly released portions shed some light on Warner’s robo-takedowns and practices that may have crossed the line of legality.
Notably, Warner’s system for sending DMCA takedown notices to Hotfile and similar sites appears to have been entirely automated, with no human review before notices are sent. Oddly, in its original court filings on the public docket, Warner had blacked out every use of the word “robots,” and other references to automation. The new, un-redacted filings reveal that Warner drew a distinction between its own system, which used “robots,” and the system used by a third-party copyright enforcement company that “does use a human screening process.” Judge Williams was skeptical that Warner’s “minimal and swift” approach complied with the DMCA’s requirements:
“Indeed, its search process relied on computer automation to execute programs and did not involve human review of the file titles, page names or other overt characteristics before issuing a takedown notice. And because the files were not reviewed, neither Warner's robots nor its employees made a determination whether there were Iegal uses for the files.”
Although Warner described its “robots” as “highly sophisticated” and able to “effectively mimic the search a human would conduct, except faster,” it appears that the system didn’t look at the contents of files uploaded to Hotfile, but only “titles and superficial attributes of files.” In fact, according to Hotfile’s briefs, “Warner subjectively knew that its [robots] were consistently misidentifying small single files [under 200 megabytes] as Warner movies, but it continued to delete those files anyway.”
The documents also reveal that Warner used its takedown system to limit access to software that it didn’t want the public to have. Hotfile accused Warner of using its system to take down copies of a free and open source download manager called JDownloader, which was not owned by Warner. Newly released testimony from a Warner executive suggests that, in the words of Judge Williams, “Warner knew that its robots were systematically deleting copies of JDownloader . . . and refrained from correcting the error because Warner thought that eliminating JDownloader would serve its ‘anti-piracy’ purposes.”
EFF asked the court to make these records public so that we can all better understand the content industry’s takedown practices. What we have discovered so far is not reassuring. The law requires takedown notices to be based on a “good faith belief” that the material identified actually infringes a copyright held by the notice-sender. That requirement is crucial because overzealous robo-takedowns create collateral damage for lawful speech. That’s why the facts and reasoning of the Hotfile case are important. As EFF wrote in its brief for the Lenz v. Universal Music case, “nothing — nothing at all — in the DMCA suggests that Congress intended to sacrifice lawful speech of innocent bystanders . . . so that [copyright holders] could shoot first and ask questions later.” While the judge in the Hotfile case did not rule on whether Warner violated the DMCA, these document raise troubling questions about whether Hollywood recognizes any limits to its use of takedowns. We look forward to seeing the rest of the Hotfile record, and we’ll be watching to make sure Warner releases it in a timely way.
