Google Defends Hotfile’s Right To ‘Safe Harbour’ Under DMCA


Search giant claims MPAA misled the court in summary judgement filing

Google has declared an “overriding interest” in the Motion Picture Association of America’s (MPAA) summary judgement request to shut down the file-hosting site Hotfile.

In an amicus brief filed at a district court in Florida, the search giant expressed concern that film studios misled the court over the proper application of ‘safe harbour’ protections provided by the Digital Millenium Copyright Act (DCMA).

Legal entanglements

Earlier this month, in the aftermath of Megaupload’s closure, the MPAA filed to have the cyberlocker shut down for allegedly profiting and promoting copyright infringement. In a strongly-worded filing, the organisation claimed DMCA protections could not apply due to repeated noncompliance with the act.

“Hotfile did not identify or keep track of infringers, did not assign ‘strikes’ to infringing users and did not terminate those repeat infringing Hotfile users who received multiple strikes,” the MPAA said. “Defendants took no action against repeat infringers because Hotfile’s business model depended on repeat copyright infringers.”

Google’s amicus filing disputes the studios’ suggestions by explaining how the intricacies of the DMCA helped promote the growth of some of the internet’s leading services, including YouTube, Wikipedia and Twitter, by defending them from constant barrages of copyright claimants.

One of Google’s arguments raises the point that under the DMCA service-providing sites are relieved of policing copyright due to the mass of content they regularly have to deal with. That responsibility lies with the copyright owner, according to the Act. Additionally, the search giant points out that Hotfile, or any other such service provider, does not need to actively check for infringements to qualify for safe harbour protection.

“Section 512 (m) [of the DMCA] expressly provides that safe harbour eligibility shall not be conditioned on a service provider monitoring its service or affirmatively seeking facts indicating infringing activity.”

Google’s position in the argument comes from its experience in similar lawsuits with YouTube. The company wants to highlight the difference between promoting piracy and merely serving as a broad platform base.

Another of the MPAA’s arguments against Hotfile’s safe harbour claims related to the site retaining the files while only deleting the links after copyright complaints were made. Google said that such action conformed to DMCA requirements.

In the brief’s conclusion, Google called for the MPAA’s summary judgement to be dismissed for undermining the DMCA’s protections.

However, the film studios responded soon after, saying that rather than being an impartial party to proceedings, Google’s brief “appears to be part of a systematic attempt…to influence the development of the law to Google’s own advantage”.

As both Google and Hotfile are represented by the same lead counsel, the film studios requested that Google’s filing should be thrown out as it indicates partisan motivations to expand the safe harbour offered by the DMCA.

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