EFF Wins Release of Warner Bros. Documents On Robo-Takedown System

A federal judge in Florida ruled Thursday that Warner Brothers Entertainment must release key information about its automated scheme to send copyright infringement notices to websites. The documents will give the public a better look into robo-takedowns and their potential for abuse as Congress considers changes to the Digital Millennium Copyright Act (DMCA).

The ruling comes in response to EFF’s request to release records from the Disney v. Hotfile lawsuit, in which several movie studios accused the cyberlocker site Hotfile of copyright infringement based on Hotfile users’ sharing of movie files.

Hotfile countersued Warner for abusing the DMCA’s takedown procedure, which allows copyright holders to have user-posted material taken down from many sites based only on an accusation of copyright infringement. Hotfile accused Warner of repeatedly sending notices about material that was not Warner’s, including files that shared common words like “box” and “fringe” with the titles of Warner films, and even copies of a software program called JDownloader that Warner had no rights in but didn’t want the public to have.

A judge found that Warner might be liable under Section 512(f) of the DMCA, which prohibits sending takedowns without having a basis for believing the content is actually infringing a copyright owned by the person initiating the takedown. The judge ruled that Hotfile had presented enough evidence of abuse that a jury could decide the issue. But before the case could be heard by a jury, the parties settled, and Hotfile shut down. So there was evidence that Warner may have crossed the line, but the details have been held under seal, inaccessible to the public. In February, EFF asked the court to release the sealed records that explain the court’s decision, including aspects of Warner’s robo-takedown system that Hotfile had challenged.

At an oral hearing in the Miami federal courthouse on Thursday, attorney Dineen Pashoukos Wasylik argued for EFF. Noting that court records are normally supposed to be open to the public, Judge Kathleen Williams ordered Warner to release certain information within ten days of Thursday’s ruling, and to propose a schedule for releasing the rest.

This ruling couldn’t come at a better time for the public.  Throughout the year the Patent and Trademark Office has conducted a series of public events on the DMCA’s takedown process, and the U.S. House Judiciary Committee has held a hearing.  More information about how the DMCA process has been abused – particularly through automated takedown systems with inadequate human review – will help us improve it, and hold people responsible when they use this powerful tool of censorship abusively or without caution. The sealed documents from the Hotfile case will help.  We’re pleased that Judge Williams preserved the public’s right to open court proceedings here, and we are looking forward to a close analysis of the Warner documents when they are released.