Have you ever put a home video up on YouTube or come across content that has been taken down for apparent copyright infringement? This is typically the result of a copyright holder (usually a studio) issuing a DMCA takedown order to the site hosting the content. This order is usually a first step in a process that allows content owners to protect their property through the assertion of their rights to control where and how the content is made available.

Virtually every site on the Web that is in the business of hosting content contributed by third parties (YouTube, Flickr, Facebook, etc.) has a system in place that allows content creators to file claims of copyright infringement against data uploaded by third party users. On the surface, this looks like a very fair and reasonable method of keeping everyone happy. Unfortunately, the process itself is flawed, especially when there are so many different sites that host third party content. Content creators are turning to automated scripts and recognition software to crawl through the seemingly endless sea of sites in search of their intellectual property.

Warner Bros. has come under fire for apparently issuing takedown orders for content they neither saw nor owned. This revelation came in the wake of an ongoing legal battle between Hotfile and the MPAA. In a recent court filing, Warner Bros. admitted to many of the allegations made though Hotfile’s claims. Below is a copy of the latest court filing from Warner Bros.

Warner

To break this down, Warner Bros. used an automated software to detect copies of its content on various file hosting (locker) sites that allow users to upload large files for others to download. The intention behind these sites is to help individuals who don’t have their own hosting to send large files, be they media or software, to another.

Once the software detected a match, a human team filed DMCA takedown requests, which resulted in the removal of several items to which Warner Bros. didn’t own the copyright. Unfortunately, the team at Warner Bros. didn’t have the time and/or resources to download and test every file in order to confirm copyright infringement had even taken place. In some instances, these files were actually completely unrelated to Warner Bros. media. Open source software, audiobooks, and even an old BBC production were among the content removed due in part to Warner Bros. not checking to see if the content in the file matched its property. Doing a search for the 2009 movie “The Box” resulted in a large array of various files that used the common term in their titles.

This accidental misidentification wasn’t restricted to file names or descriptions. One instance, noted in the complaint, involved a comment that contained a keyword the software had been searching for.

If this activity doesn’t have you scratching your head at just how these production companies get as much power as they do, a new piece of legislation currently making the rounds is set to extend those powers even higher. Instead of just removing the file itself, the MPAA could even go so far as to restrict the websites’ access to income through advertising and subscription plans. The Stop Online Piracy Act (SOPA) is currently in committee. If passed, it would greatly increase the powers given to copyright holders including bodies such as the MPAA and RIAA. If the MPAA had the increased powers outlined in the current version of the bill, it would have had the ability to virtually cripple Hotfile’s ability to make money through its legitimate business. For that matter, imagine that power being used against a website that merely has a similar name or a legitimate fair use (whether you agree with the term or not) reason for having the content on the site. A news or review organization that gives a damaging or otherwise negative review of a movie might be in jeopardy of having its financial well-being jeopardized without trial or due process simply because it has B-Roll of a movie trailer running in the background.

That sounds extreme, right? The Digital Millennium Copyright Act (DMCA) has been in place for some time. Sites like YouTube, Facebook, Twitter, Instagram, and others depend on the protections provided by the DMCA to safeguard them from legal ramifications should one of their users infringe on copyright. With SOPA, there’s no legal process necessary before the copyright holder makes a claim against a site’s financial support. For example, if you own a site that allows users to upload audio files and one of your users has a file that is (or possibly isn’t) in violation of copyright, the RIAA could contact PayPal and have it freeze your income within five days. (This is according to the Electronic Frontier Foundation.)

We’ve all heard the stories of little old ladies and eight-year-olds being prosecuted and sued for tens of thousands of dollars over a handful of copyrighted content shared through popular peer-to-peer networks such as Kazaa. If these legal Goliaths are willing to put someone into debt prior to their teens, imagine how quickly they would pull the trigger on reporting you to Visa.

The world of copyright law is a complex mishmash of various policies, laws, and countermeasures. The presumption of innocence is one of the fundamental principals of the US legal system. Unfortunately, this core right is jeopardized by an increasing amount of power handed to a select few copyright holders. The MPAA and RIAA have taken taken drastic measures to counter online piracy, and perhaps rightly so. The question facing legislators today is whether or not we should trust a for-profit entity to determine guilt or innocence, especially when its track record is admittedly as sketchy as it is.