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What Warner’s Recklessness Says About SOPA

November 11, 2011 ,

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
overbroad
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
problems
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
out
, 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.