Hotfile is determined to outlast Hollywood’s ongoing crusade against file locker services. The company is defending itself against an aggressive litigation campaign that movie studios first brought against it over a year ago. Hotfile’s case may be bolstered by a recent report which shows that the two most widely-downloaded files distributed through the popular file locker service are open source software applications.

Charges against Hotfile that alleged direct copyright infringement were thrown out last year by a federal court judge. The remaining charges allege that the company is liable for inducing its users to infringe copyright. The answer to that question will hinge on whether the courts find that Hotfile has substantial non-infringing uses.

A study commissioned by the MPAA, which was based on a sampling of Hotfile downloads, seemingly showed that a majority of the site’s content was infringing. Duke University law professor James Boyle, expert witness for the defense, issued a rebuttal demonstrating the flaws in the methodology used by the Hollywood study.

Professor Boyle’s statement, which cites the results of a more comprehensive statistical analysis of the content stored on Hotfile, was included in a sealed filing that was leaked this week by TorrentFreak. Boyle’s research highlighted an extensive volume of non-infringing Hotfile usage that had been overlooked by the plaintiff’s study.

Boyle found that some of the most popular items distributed through Hotfile are open source software applications, computer programs that are made available by their creators under terms that broadly allow redistribution.

In fact, he found that the two single most widely-downloaded files on the site are sn0wbreeze and iReb, open source applications designed for iPhone jailbreaking that are deliberately published on Hotfile by their creator. Those applications are entirely legal to distribute through services such as Hotfile. In addition to the two jailbreaking applications, he also evaluated the prevalence of JDownloader, OpenOffice.org, Firefox, and Ubuntu on Hotfile’s network.

"I determined that there is a high volume of usage of the Hotfile system for distribution of free and open source software. My non-comprehensive study found more than 1.7 million downloads of the six open source programs examined," he wrote.

Open source software wasn’t the only kind of legally-distributable content that Boyle found on Hotfile. He also found that it was used to distribute literature that is in the public domain and movies that are published under Creative Commons licenses by organizations such as the Blender Foundation.

The Hollywood-commissioned study largely assumed that infringement took place any time a piece of copyright-protected content was downloaded from the site. As Boyle pointed out in his rebuttal, that’s simply a poor assumption. Looking at the licenses under which the content is released paints a very different picture. Boyle said that the Hollywood study also misrepresented the nature of some of the content that it evaluated. For example, it mistakenly treated perfectly legitimate and legal third-party game mods as if they were cracks.

Another key point raised by Boyle is that there are a large number of files uploaded to Hotfile that are never subsequently downloaded. Because the Hollywood study only looked at downloads, it failed to account for that phenomenon. Boyle’s study found that files that had never been downloaded account for over half of the total content on Hotfile, suggesting that the service is heavily used for backups and not just distribution.

Boyle, who was a founding member of the Creative Commons board, has made a strong argument that Hotfile is a legitimate distribution channel with a variety of potential uses. His arguments could pose a serious challenge for the inducement case against Hotfile, which will depend on the MPAA being able to convince a court that the site doesn’t have substantial non-infringing uses.

Listing image by Photograph by Daniel