San Francisco - The Electronic Frontier Foundation (EFF) urged a federal judge Monday to reject arguments from Warner Brothers Entertainment claiming that the company's automated scheme to send copyright infringement notices absolves it of responsibility for the system's major flaws.

In this case, Warner is accused of sending thousands of takedown notices for content it did not own to a cyber-locker site called Hotfile. Hotfile asked for damages under the Digital Millennium Copyright Act (DMCA), which holds copyright users accountable if they send takedown notices in bad faith. However, Warner insists that while it knew it was issuing some bad takedown requests with its semi-automated system, the errors should be excused by the court because a computer made the mistake – not a human. In an amicus brief filed Monday, EFF argues that Warner cannot wash its hands of its responsibility for the improper removal of content from Hotfile's servers.

"Hotfile's customers unfairly lost access to content because of Warner's bogus takedowns. But under Warner's theory, any company could sidestep accountability for abusing the DMCA by simply outsourcing the process to a computer," said EFF Intellectual Property Director Corynne McSherry. "In fact, the companies would have a perverse incentive to dumb down the process, removing human review. What Warner is doing here is a ploy to undermine the DMCA provisions that protect Internet users from overbroad and indiscriminate takedowns like the ones it issued."

The publicly available facts in this case indicate that Warner's system only considered the title of the work – not nearly enough information to base a good faith belief of any copyright infringement. Warner's system took down files with words in their titles like "The Box," "The Town," and "Unknown," apparently without checking to see if the file was a Warner movie or a child's book report or something else. EFF told the court Monday that Warner knew this driftnet technique would inevitably cause a substantial amount of lawful content to be removed from Hotfile.

"Cloud storage sites like Hotfile are becoming increasingly important," said EFF Staff Attorney Mitch Stoltz. "But improper takedowns like Warner's undermine their usefulness. Companies must be held responsible when their sloppy processes hurt other businesses and Internet users."

For the full amicus brief:


Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation

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