Digital Legal MegaUpload Timeline

Google sticks up for Hotfile

By | Published on Tuesday 20 March 2012


Google has stepped in to speak up for file-transfer service Hotfile, which is fighting a legal battle with the American movie studios.

As previously reported, earlier this month the Motion Picture Association Of America requested a summary judgement in its year long legal battle with the Panama-based file-transfer company, drawing parallels between what Hotfile does and the MegaUpload service that is subject to criminal proceedings in the US. The film studios’ legal papers claimed 90% of the content distributed via Hotfile is unlicensed, that the company operates a deliberately shoddy takedown system in a bid to get protection under US copyright law without losing the all important unlicensed music, movie and TV show files that generate most traffic, and that the company had overtly assisted customers to infringe copyright.

But in a “hey Mr judge, listen to what we’ve got to say” filing, or amicus brief if you prefer, Google says the film companies’ claims are misleading, and that Hotfile’s business is indeed protected from copyright infringement claims under the safe harbour provisions of America’s Digital Millennium Copyright Act (which is where the takedown system principle is set out).

Case law on the DMCA, Google argues, says only a basic takedown system is required, that high levels of infringement by customers is not in itself relevant, and that a filtering system that blocks copyright material is not mandatory to gain DMCA protection. And of course Google should know, given that one of the landmark cases in this domain was Viacom’s unsuccessful copyright infringement litigation against its YouTube platform.

Moreover, the web giant says that if the courts rule in the MPAA’s favour on this one, it will set a dangerous precedent that could impact on other online services that rely on safe harbour protection under the DMCA, including YouTube, Facebook, Twitter, and Wikipedia, and any similar such ventures still in development.

Says Google: “Without the protections afforded by the safe harbors, those services might have been forced to fundamentally alter their operations or might never have launched in the first place”. It adds: “The court should not be misled. It should resist any effort to shift the investigatory burden that Congress deliberately allocated to copyright owners or to impose on Hotfile policing obligations of which it is specifically relieved by the DMCA”.

The MPAA has already asked the judge hearing its Hotfile case to not consider Google’s submission as part of his deliberations, claiming the web giant’s claims are biased and only give one side of the story.

Whether the judge concurs remains to be seen, though in terms of case law interpretation on DMCA takedown systems, Google’s summary does seem to be more or less correct. Though – as previously reported – the American content industries reckon the US courts have set the bar for the effectiveness of takedown procedures far too low, and are starting to lobby in Congress for some sort of legislative clarification on the obligations of digital service providers, especially those in the file-transfer and video-sharing domain.

In the meantime, given the similarities between Hotfile and MegaUpload’s businesses, you could say Google’s amicus brief in defence of the former in essence means the web giant is also speaking out in support of the Mega empire, as the American authorities go through the motions of extraditing its management to the US to face criminal charges. Will Team Mega be calling Team Google as defence witnesses if and when their case goes to court? Given Mega’s video-sharing service competed head on with YouTube, not to mention the direct infringement, money laundering and racketeering charges, perhaps Google will be less keen to help there.