What Warner’s Recklessness Says About SOPA

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.

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