Post What Warner’s Recklessness Says About SOPA

Warner Bros. on Monday admitted to removing content from Hotfile.com that

Warner never even looked at and didn’t actually own. The

Stop Online Piracy Act (SOPA), currently pending in the House of

Representatives, give companies like Warner incredible new levels of power that

they have never had under the DMCA.

If Warner’s recklessness under the current legal framework shows us

anything, it’s that Congress’ proposition to give these kinds of companies even

greater power is about as sensible as parents giving to their teenager the keys

to the brand new family car after he just got a DUI crashing the old one.

In September, I posted

about the legal battle between Hotfile and Warner. Basically, Warner sued Hotfile for copyright

infringement. Hotfile then

countersued Warner for abusing a custom-made takedown tool that allowed Warner

to take down anything that infringed their content, which Warner used to take

down things that it clearly did not own.

In Warner’s response they admit to taking

down things they didn’t own. But,

according to Warner, that’s totally fine, because it’s unreasonable to expect them

to go through everything their admittedly

overbroad searches turn up: “Warner could not practically download and

view the contents of each file prior to requesting that it be taken down

through use of the SRA tool.” Apparently, checking files before permanently deleting them

is just too hard.

Putting aside the major

problems with this from a DMCA perspective, Warner’s admission should raise

serious red flags on the proposed Stop Online Piracy Act (SOPA). SOPA, as Public Knowledge has discussed, would create a

new private cause of action that allows a person or company to sue a website

that is “dedicated to the theft of U.S. property.” The bill defines such dedication as a website that “is

taking, or has taken, deliberate actions to avoid confirming a high probability

of the use of the website” to commit copyright infringement.

As Sherwin Siy has already pointed

out, there is no definition of what constitutes a “high probability,” or

what it takes to “avoid confirming” that high probability. Rashmi Rangnath has also discussed

in detail how SOPA’s new private right of action undermines the DMCA’s balance

between innovation and the protection of intellectual property. Under SOPA, cloud services like Hotfile

could be liable even if they did all that was required of them under the

DMCA. They would be liable under

SOPA simply because they didn’t do enough to find out whether there was a “high

probability” of their site being used for infringing purposes.

As if those problems are not enough, SOPA puts the initial

decision as to whether or not Hotfile has done enough into the hands of companies

like Warner—who has now proven that they simply cannot be trusted to make these

kinds of decisions. Under SOPA, once

someone has decided that a website is “dedicated to the theft of U.S.

property,” that website gets their advertising yanked, and access to payment

systems blocked. Then it’s up to the

website to prove that they in fact were not “dedicated to the theft of U.S.

property.” In the meantime, their

advertising and payment systems can remain suspended, and a judge can issue a

temporary restraining order, preliminary injunction, or injunction, effectively

shutting down the website until they can prove their case.

SOPA gives companies like Warner the ability to shut down a

business on mere suspicion that that business has “avoid[ed] confirming a high

probability” of infringing use; far more power than they ever had under the

DMCA. Warner has shown that they

cannot be trusted even with the power given to them by the DMCA when they

“cannot practically download and view the contents of each file” before they

remove it.

Effectively, Congress is proposing to give Warner and

companies like it a hugely destructive weapon. Warner’s official position? “We don’t have to aim if it’s too hard.” When it comes to businesses online, the

stakes are simply too high to allow for this kind of carelessness.