The Cyberlocker site Hotfile, which has been in Hollywood's crosshairs since February, has returned fire with a focus on one of its five adversaries. In a response and countersuit, Hotfile charges that Warner Brothers violated the DMCA by repeatedly and willfully demanding the removal of Hotfile content that it did not own.

The Hotfile battle centers on the Digital Millennium Copyright Act. Hotfile claims it's just an ordinary file hosting service that complies with the DMCA's notice-and-takedown procedure and therefore qualifies for immunity from copyright liability. Hollywood studios have objected that Hotfile's business practices disqualify the site from the safe harbor.

So Hotfile is doubtless relishing the opportunity to turn the argument around and accuse one of the major Hollywood studios of flunking the DMCA's requirements. In 2009, Hotfile gave a Warner Brothers representative access to a tool that expedited the DMCA takedown-process by allowing automatic and immediate removal of any file in the Hotfile system.

Hotfile alleges that Warner Brothers abused this tool by submitting thousands of takedown requests for files it didn't own. Hotfile suggests these requests were generated by automated crawlers without adequate human supervision. For example, Warner Brothers owns the copyright for the 2009 movie The Box. Hotfile alleges that Warner Brothers scraped websites for hotfile.com links containing the phrase "the box," which of course led to takedowns for dozens of files that were clearly not Warner Brothers content. For example, Warner Brothers sought the removal of an audiobook called "Cancer: Out Of The Box" and a BBC production of "The Box that Saved Britain."

Indeed, some of the removed files were clearly not infringing at all. Hotfile says that the most popular file removed by Warner Brothers was a free software title that had been uploaded to Hotfile by its publisher. Warner Brothers also sought the removal of the file with the URL "http://hotfile.com/contacts.html and give them the details of where the link was posted and the link and they will deal to the @sshole who posted the fake."

No, that's not a misplaced quotation mark. A scraper apparently misidentified part of a web comment as an infringing URL, and no one at the studio noticed the mistake.

Hotfile says it warned Warner Brothers to stop abusing this expedited takedown tool, but that the abuse continued. This is a serious problem because when someone files a DMCA takedown request, he is required to state under penalty of perjury that he is authorized to file that request by the copyright holder. Yet Warner Brothers couldn't possibly have done this, not only because some of the files clearly weren't Warner Brothers content, but also because "Warner had never downloaded a large proportion of files that it deleted."

Indeed, it's hard to verify ownership of files you never looked at. If Hotfile succeeds in demonstrating that Warner Brothers misrepresented the copyright status of files it sought to remove, the studio will be liable for any damages Hotfile suffered as a result of the wrongful takedown requests.

It's not clear how important this counter-accusation is to Hotfile's legal position. Even if Warner Brothers is found liable for misusing the takedown process, that wouldn't necessarily invalidate Warner Brothers's argument that Hotfile itself doesn't qualify for the Safe Harbor. And in any event, Hotfile is being sued by five Hollywood studios. Warner Brothers could drop out of the lawsuit altogether and the other four could still carry on.

Still, the counter-accusations against Warner Brothers provide Hotfile with valuable rhetorical ammunition. Hotfile can point to its decision to provide the automated takedown tool as evidence that they've gone "above and beyond" to comply with the spirit of the DMCA. And of course the accusations of misbehavior by Warner Brothers strengthens Hotfile's claim to the moral high ground. The battle is far from over, but Warner's misbehavior makes it that much easier for Hotfile to convince the judge that they're the good guys.