A DMCA takedown process with was a sham and was not actaully removing anything counts as exactly that. Especially when internal mails reveal that the daily cap for takedown notices was determined by what wouldn't impact revenue.
>A DMCA takedown process with was a sham and was not actaully removing anything
As described ad nauseum elsewhere, the DMCA only requires removing infringing links.
Imagine 5 people upload a copy of a copyrighted song. 4 of those copies are for backup or personal use, one of them ends up on a file sharing site. The 1 is DMCA'd. Why would you remove the other 4?
*edit
This becomes even more crucial when you have any kind of sane deduping in place, where each link, in effect, points to a single piece of data.
The DMCA requires service providers with actual knowledge of their hosting of infringing material to act "expedititously" to remove or disable access to the material. I don't know where this argument about "links" comes from.
This whole argument seems like a bit of a red herring. What the DMCA actually says is that service providers aren't liable iff (a) they don't have actual knowledge of infringement --- and that if they themselves become aware of infringement they themselves without prompting remove infringing content, (b) don't have a financial interest in infringement, AND (c) respond to takedown notices.
It beggars belief that MegaUpload could pass (a) and (b). All three need to apply to avoid liability.
Let's try again with slightly different emphasis: The DMCA requires service providers with actual knowledge of their hosting of infringing material to act "expedititously" to remove or disable /access/ to the material.
The link to it constitutes access. Moreover, it's the link and not the data that determines infringement. The artist can upload the same data as an infringer, and the two pieces of data will be deduplicated to the same file. The difference between infringing and not is the link used to get to the blocks on disk.
Hm. Interesting. How about when MegaUpload employees themselves upload DVD rips of major motion pictures? Maybe they're friends of Luc Besson, who wanted _Taken_ on MegaUpload! I'm sure they'll manage to straighten all of this out in court.
I'm not how that is relevant to the discussion we were having. To remind you, we were discussing whether removing links is sufficient for DMCA compliance.
"Actual knowledge". The DMCA does not say that it's fine to have copyright-infringing material on your site as long as you take it down when notified by rightsholders.
You can't imply that all uploads generating links where done by people who were not licensed to do so.
This is why copyright is such a minefield. There is no way to know if someone has a license allowing them to do the things that they do.
I know the Youtube defense and all are beaten to death about this but they can easily find out that two videos are the same. If someone sends a take down for video 1 you say video 2 should also be taken down except it might very well have been uploaded by a legitimate licensee of the video.
If you were a betting person, would you bet that a jury will reasonably conclude that the terabytes and terabytes of copyrighted video on MegaUpload is or isn't properly licensed?
The DMCA shields service providers from criminal charges if and only if they pass three tests: (a) no internal knowledge of actual infringement (and, expeditious autonomous removal of infringing content without notice required), (b) no financial interest in infringement, and (c) responsiveness to takedowns.
While I guess we can noodle around about what a court is going to find in this case (although I think I have a spoiler for you on that), it's harder to argue that prosecutors don't have a case here that they are likely to win.
If I had to bet i'd bet on a mistrial due to an error by the prosecution.
Someone in a previous comment did a rough analysis of why it's not certain that 100% of the 25 petabytes of data on mega uploads servers was unlicensed material.
Depending on the defense skills they definitively can win this outright. You've seem to have already made your mind but you can't tell me that you are sure that they are criminally guilty of copyright infringement beyond reasonable doubt. If I was in the jury and you explained to me all the details such as safe harbor provision, DMCA take down requests and compliance... You bet I'd have some doubts. This stuff is not black or white.
I briefly considered making the same kind of statement, but keep in mind that a (ostensibly reasonable) jury awarded hundreds of thousands in damages to the RIAA in the Jammie Thomas case..
I have little to no faith in the jury system, especially where federal trials are concerned.
Did you read any of the backstory in the Thomas case? She lied under oath, deliberately destroyed evidence, attempted to blame her kids, and even then refused settlement offers. The best you can say about her is that she was the victim of legal malpractice by her defense attorneys.
What (a) means is that any evidence that establishes MegaUpload ever knew about and failed to act on infringing material is going to damn them in court. For instance, if they can establish a finding of fact that MegaUpload paid site members it knew to be infringers, or even that it targeted its promotional marketing towards other hubs of infringement on the Internet.
The DMCA isn't a computer program. That section (a) does not mean "here are the steps you must take when analyzing your logs". Think instead of a graph and a path through that graph that starts at "Kim Schmitz driving around NZ in a Veyron" and enda t "Kim Schmitz in a minimum security prison", where one path involves edges between vertices involving how much MegaUpload knew about, catered, promoted, or knowingly benefited from piracy.
I supposed that depends on what you mean by "knew to be infringers." I don't think having received a (or several, or...what is the number?) DMCA takedown concerning one's account earns someone the label, but in this context it appears to be what you're saying.
How about this: you operate a file locker service, and in an effort to encourage people to upload files that will be popular and serve as a magnet for ad revenue, you offer to pay people $1/1000 downloads if they join an affiliate program. Later, when reviewing affiliate payouts, you send an email to a coworker breaking down some of your top payouts, noting that you've paid (say) $100 to someone who uploaded "several popular DVD rips".
How do you think that one's going to play out in court?
Or, how about, you want to watch The Sopranos, or Seinfeld, so you send your team a blast email asking for links to those series on your locker site, since it surely must be there. Maybe you complain when the first links you find are in the wrong language. French, say.
How do you think that's going to go?
It is a mystery to me why copyfighters think that MegaUpload is a good case to make a stand on.
You're innocent until proven guilty in a court of law, but that phrase isn't a magic totem that gets you out of bad message board arguments. This is a community of nerds. Nerds are literalists and also pretty well-versed with piracy. Why are you wasting breath trying to convince them that MegaUpload wasn't a hub for piracy? It clearly was.
The link removal you're talking about did not "disable access" to the material; it only disabled access to it through that one removed link. This "linking" argument is just sophistry.
Also: comparing Rapidshare and MegaUpload to Youtube is sapping your credibility.
>Nerds are literalists and also pretty well-versed with piracy. Why are you wasting breath trying to convince them that MegaUpload wasn't a hub for piracy? It clearly was.
So? It was also a hub for legitimate file storage. And this is why I keep bringing up other file sharing sites and youtube, as every single argument you're making could equally be applied to them.
> it only disabled access to it through that one removed link
Which is kind of the whole bloody point. Look at it from a frontend/backend perspective. On the front end, access to a file is removed once a given link is killed. You, nor anybody else in the general public can access the targeted file once that link is dead. Unless the file is either re-uploaded, or another link is found, that is.
Google has an obvious interest in the legal particulars of linking to infringing content, but that doesn't mean that Google runs its business in the same fashion as MegaUpload.
Deduping, and my other thoughts are two links up. You say "sophistry", and it very well may be, but this is the legal system we're talking about here. Standard logic and definitions need not apply, unfortunately.
From internal emails within the Mega group, regarding rewards paid under their "Upload Rewards" program:
100 USD [USERNAME DELETED] 10+ Full popular DVD rips (split files), a few small porn movies, some software with keygenerators (warez)
...
100 USD [USERNAME DELETED] Popular DVD rips
100 USD [USERNAME DELETED] Some older DVD rips + unknown (Italian series?) rar files
...
Again, under the DMCA, it is not enough to simply respond to takedown notices. To qualify for safe harbor immunity to copyright liability, you have to not be aware of any infringement on your site, and if you become aware of it, you must expediently remove that content from your site.
These clowns became aware of copyright infringement and then paid people for it. They're fucked. I have no idea why you think this linking issue matters.
They've been expanding it to cover links so that they can go after link farms and search engines, instead of being limited to people actually infringing.
No, the notion is that you, as the owner of a file hosting site, cannot reasonably tell whether a given copy of $something was uploaded with permission or not (nevermind that you aren't required to do so anyways)
And go pull quotes all you like, that doesn't change the fact that deduping means you pull links, not files. Full stop. It's not your job as a site owner to police copyright for big media. And if it was, it would be a full time job and then some.
You're the one who's completely ignoring my post based on a few cherry picked instances from a single DOJ case. (The cherry picking done by the prosecution, not you, before you think I'm accusing you of something untoward)
Go reread my post and tell me how I'm wrong, please.
... and if the owners and operators of MegaUpload were using it to share DVD rips with their friends, and stated explicitly in their emails that they knew the majority of their media content was infringing, your particular group of friends would be relevant... how?
"4 of those copies are for backup or personal use"
If they're for personal use, why are the publically accessible (and actually being downloaded by hundreds or thousands of different users) and not restricted to the account that uploaded them?
>If they're for personal use, why are the publically accessible
Because it becomes "publicly accessible" the moment the link to the file is generated when the upload completes. I.e. you can access the file if you know the URL.
The law does not require you to do this kind of research, besides.
