In the wake of the MegaUpload shutdown many of the site’s users complained that their personal files had been lost due to collateral damage.

Behind the scenes Megaupload has been negotiating with the Department of Justice to allow these users to temporarily access their files.

“Megaupload’s legal team is working hard to reunite our users with their data. We are negotiating with the Department of Justice to allow all Mega users to retrieve their data,” Kim Dotcom told TorrentFreak previously.

However, weeks have passed by and thus far no workable solution has been found.

Tired of waiting, one Megaupload user has now asked a court to find a way to return his files. Through his attorneys, Kyle Goodwin, owner of the sports news site OhioSportsNet, filed a brief at a federal court in Virginia.

“It is one thing to take legal action against an alleged copyright infringer. It is quite another to do so at the expense of entirely innocent third parties, with no attempt to prevent or even mitigate the collateral damage,” the brief starts.

The attorneys explain that Goodwin signed up for a premium Megaupload account that he used to store raw footage of games, player and coach interviews, and promotional materials for his business. This Megaupload account served as an online backup of the files he stored on his hard drive, in case that crashed.

Unfortunately for Goodwin the hard drive did indeed crash in January, right after Megaupload was shutdown. However, when he attempted to download the backup files, he noticed that Megaupload was no longer operational. As a result, the sports reporter claims to have suffered significant losses.

“The loss of my files has made doing the business of OhioSportsNet difficult,” Goodwin explains in his testimony. “For example, at least four parents had inquired about paying me to put together highlight reels of their children’s sporting events to send to colleges for recruiting purposes. Without my files, I have been unable to do that.”

The attorneys argue that the Government is responsible for this loss, and claim that Goodwin’s Fourth Amendment protection against unreasonable search and seizure has been violated.

“The government cannot just execute its search warrant and wipe its hands of any responsibility for the property incidental to that warrant, especially when the government’s actions have the direct effect of impermissibly denying innocent third parties of their property,” they write.

They further argue that Goodwin and many others have become victims of an overbroad takedown.

“Perhaps in an attempt to avoid responsibility for its seizure, the government has alleged that some data on the servers consists of infringing copies of copyrighted works. However, the potential presence of others’ infringing files does not diminish the Court’s responsibility to safeguard customers’ lawful and noninfringing files and provide for their return,” the brief reads.

Goodwin hopes that the court will ensure that the matter is resolved, and demands the return of his files, and the files of others who are in the same position as himself.

Source: Sports Reporter Demands Return of Megaupload Files

Following his arrest in January, Megaupload founder Kim Dotcom was immediately deprived of his freedom.

On February 22nd, just over a month later, he was released on bail but heavy restrictions meant that life would not be getting back to normal.

In addition to general limits placed on his movements and activities, Dotcom – someone who lives and breathes the Internet – was banned from going online or even having a cellphone with Internet capability.

Today, Dotcom and his three New Zealand-based co-defendants – Mathias Ortmann, Bram van der Kolk and Finn Batato – appeared in the North Shore District Court with requests to have their bail conditions modified.

Dotcom’s legal team told the Court that the 38-year-old needed Internet access reinstated so that he can properly mount his defense. Along with his co-accused, Dotcom faces charges in the United States of racketeering, money-laundering and various copyright infringement offenses.

To assist with a back complaint, Dotcom also sought permission to use a swimming pool at the mansion where he and his family were living at the time of the raid. They currently live nearby.

Dotcom’s fortune was seized by authorities so the former multi-millionaire is now looking to generate revenue wherever he can, as is his human right. To that end Dotcom, who has been honing his skills as a musician for some time, requested permission to finish an album he has been working on.

The prosecution naturally objected to Dotcom continuing his work and said that his album, a collaboration with several international artists, was unlikely to succeed. TorrentFreak was given a sneak preview of the upcoming release late last year and we liked what we heard.

Despite the complaints, Judge David Harvey said that Dotcom and his associates had behaved commendably whilst on bail. He subsequently granted Dotcom access to the Internet, 90 minutes access to the swimming pool and two trips each week to Roundhead Studios in Auckland to finish his album.

The Judge also granted Batato, Ortmann and Van der Kolk permission to travel to Dotcom’s home once a week for a maximum of six hours so that they can work on their defense.

An extradition hearing is planned for August this year and in the meantime Dotcom is staying strong in the belief that he can successfully defend the US charges against him.

Source: Kim Dotcom Back Online, Prepares To Release Music Album

A month before its shutdown Megaupload pulled off one of the biggest file-sharing related marketing coups in recent memory.

The file-hoster released a pro-Megaupload song featuring stars such as P Diddy, Will.i.am, Alicia Keys, Kanye West, Snoop Dogg, Mary J Blige, Kim Kardashian and even boxer Floyd Mayweather all publicly endorsing the site.

Within hours the ‘Mega Song’ was watched by hundreds of thousand of people, but the fun stopped when Universal Music Group (UMG) took down the video from YouTube. In response, Megaupload filed a lawsuit against UMG and after several days YouTube finally reinstated the video.

Why the video was taken down has never been made clear. However, UMG did reveal that it had a deal with YouTube to take down content even if it doesn’t infringe their rights, which raised the eyebrows of many legal experts.

The lawsuit had the potential to turn into a landmark case, but it was quickly overshadowed by the criminal indictment against Megaupload. This is one of the reasons why Megaupload’s legal team has now decided to voluntarily dismiss the case.

“The sham takedown notice case will be dismissed without prejudice,” Megaupload attorney Ira Rothken told TorrentFreak. “Megaupload will be permitted to refile the case if it chooses to do so,” he added.

Megaupload still believes the Mega Song takedown was illegitimate, but its legal team needs to direct all of its resources towards defending Megaupload against the criminal charges of the United States Government, as well as the troll lawsuits currently being filed.

“Megaupload is shifting its litigation resources to defending against recent US copyright related actions across the world and opportunistic copycat civil suits,” Rothken told us.

The current priority for Mega is to file a motion in response to the US indictment. Earlier this week Megaupload’s Kim Dotcom exclusively revealed some of the evidence they will use to refute the allegations that they were operating a piracy haven, including friendly partnership requests from major entertainment industry companies.

But there is much more to present, according to Dotcom.

“These are just a few hints,” he told TorrentFreak. “Our upcoming court filings will reveal the full nonsense dimension of the indictment.”

The Mega Song (uncensored)

Source: Megaupload Drops Mega Song Lawsuit to Focus on “Nonsense” US Charges

For a man who’s the main defendant in one of the biggest criminal cases ever brought in the US, Kim Dotcom is surprisingly composed.

The Megaupload founder is convinced of his innocence, and instead of letting fear or anger get to him, he is excited. Deep into the night, Dotcom digs through heaps of paperwork, collecting evidence that shows how he was framed by the US Government.

Talking to TorrentFreak by phone, he gives example after example of why he thinks the indictment twists the truth. While Megaupload’s lawyers are still working on the first motion in response to the indictment, he agreed to exclusively share the first details with us.

Stealing from 50 Cent?

One of the claims of the US Government is that Kim Dotcom personally shared copyrighted files on Megaupload, so-called ‘direct infringement’. He supposedly shared a link to a 50 Cent song, but the indictment fails to include the necessary context.

“A link distributed on December 3, 2006 by defendant DOTCOM links to a musical recording by U.S. recording artist ’50 Cent’. A single click on the link accesses a Megaupload.com download page that allows any Internet user to download a copy of the file from a computer server that is controlled by the Mega Conspiracy,” the indictment reads.

Dotcom told TorrentFreak that the file in question wasn’t infringing at all. He explained that he actually bought that song legally, and that he uploaded the file in private to test a new upload feature. He quickly picked a random file from his computer, which turned out to be this song.

“The link to the song was sent using the private link-email-feature of Megaupload to our CTO with the file description ‘test’. I was merely testing the new upload feature,” Dotcom said.

“The URL to this song had zero downloads. This was a ‘private link’ and it has never been published,” he added.

Aside from the above, Dotcom told us that the US may not even have jurisdiction over the issue. The song was uploaded from a Philippine IP-address to a European server. Also, since the upload occurred in 2006, the statute of limitations renders the evidence unusable.

Dotcom further said that the Louis Armstrong song mentioned in the indictment wasn’t an infringement either.

“I also bought the Louis Armstrong song that was sent to me by a co-defendant via the private link-email-feature of Megaupload. According to the Department of Justice I am an infringer, and this is all they got? One song?”

Warner’s Mass Deletions

In addition to direct infringements, the indictment also suggests that Mega was actively preventing copyright holders from taking down content. An example given in the indictment is that Warner Bros. at one point was unable to delete content through the abuse tool, because they had hit the limit.

Warner Bros. contacted Megaupload about the issue, and an email quoted in the indictment shows that Dotcom refused to raise the limit above 5,000 deleted per day. However, according to Dotcom this version of the truth leaves out some crucial facts.

“First of all, Mega’s direct delete feature was provided to content owners voluntary and was not a legal requirement,” Dotcom says. But there is more.

“The indictment contained an email in which I suggested to provide Warner Bros. with a limited number of deletes per day. In fact, days later Warner Bros. got the maximum quota of 100,000 deletes per day.”

With the limit of 100,000 links per day Warner Bros was certainly not limited anymore. This is also apparent from takedown statistics provided to TorrentFreak. In total they show that Warner removed 1,933,882 links from Mega sites, making it by far the largest deleter of all copyright holders.

To provide some context, Disney removed 127,934 links in total, the RIAA removed 17,108 links, Sony removed just 3,003 links in total and the BBC was least bothered with just 132 removals.

Google to the Rescue

Another controversial part in the indictment is that Mega should not be eligible for DMCA safe harbor protection because it only removed links, and not the actual files. The indictment describes this issue as follows.

“During the course of the Conspiracy, the Mega Conspiracy has received many millions of requests to remove infringing copies of copyrighted works and yet the Conspiracy has, at best, only deleted the particular URL of which the copyright holder complained, and purposefully left the actual infringing copy of the copyrighted work on the Mega Conspiracy-controlled server and any other access links completely intact.”

The indictment suggests that not removing the actual file is wrong, but as Google pointed out in the Hotfile lawsuit recently, this is exactly what a content provider is supposed to do under the DMCA. Removing the actual file is not standard procedure at all, and could lead to all sorts of problems.

The above examples are just the tip of the iceberg. According to Dotcom he can refute pretty much each and every claim in the indictment. Also, Dotcom can do much more than that, and he was willing to share more details with us that shows how Megaupload and Megavideo were not the big bad pirate sites the indictment claims they are.

Big Content & US Soldiers Loved Mega

Megaupload’s founder shared five emails with TorrentFreak that were sent by representatives from big media companies including Disney, Warner Bros. and Fox. Instead of requesting Mega to take down content, they suggested various partnerships.

Warner Bros., for example, asked Megavideo if they could provide a tool to automatically upload content from the movie studio. “We would like to upload our content all at once instead of one video at a time,” Warner’s Joshua Carver wrote.

More details on these partnership emails are published in a separate article here.

And then there’s the issue of the millions of site users that didn’t use it as a pirate haven. US Government workers had many accounts at Megaupload, as did those at MPAA member companies and those employed by the US Military.

Many of these users paid for a premium account and uploaded a variety of content. Talking to TorrentFreak, Kim Dotcom suggested that of the 15,634 soldiers that used Megaupload, many were probably using it to share pictures and videos with their loved ones at home.

More details on the government, MPAA and military users are published in a separate article here.

A Political Scandal?

Having digested the above, it does indeed seem that the US indictment doesn’t tell the whole story, or that it’s one-sided to say the least. This raises the question of why Mega was so aggressively targeted.

What we do know is that the copyright lobby, headed by the MPAA, has been one of the main facilitators of the criminal investigation. It’s also not a secret that the MPAA and other lobby groups hire former high ranked Government officials and vice versa.

The current head of the MPAA for example is former Senator Chris Dodd, and in recent months alone the MPAA also hired former employees from the Justice Department, the White House staff and the Senate Judiciary Committee. Needless to say, the movie industry group is well-connected in Washington.

On the other hand we see that Neil MacBride, the U.S attorney who filed the Mega indictment, has connections to the copyright lobby as well. In fact, he served as the Vice President for Anti-Piracy and General Counsel of the Business Software Alliance (BSA), MPAA’s software counterpart.

It wouldn’t be a huge surprise if the Mega investigation was somewhat of a ‘gift’ to Hollywood, a theory which Megaupload’s founder subscribes to.

“Mega has become a re-election pawn in the White House / MPAA affair. If I was a Republican presidential candidate I would investigate this,” Dotcom says.

However, this gift isn’t as free as it may seem. Dotcom says that the witch hunt against his company is putting the US technology sector at a disadvantage.

“The MPAA / White House corruption has weakened US technology leadership. Internet businesses, hosting, cloud, payment processors, ad networks, etc. are going to avoid the US,” Dotcom told TorrentFreak.

“There is an opportunity for liberal countries to welcome those businesses with better laws,” he predicts. “The loss of IT business & jobs in the US will substantially outweigh the inflated losses claimed by the MPAA & their billionaire club.”

For now, however, Dotcom is mainly concerned with taking the criminal indictment apart. He is confident that he and his legal team will succeed in this and promises fireworks when the complete motion is published.

“We did nothing wrong. Watch out for our first motion in response to the MPAA-sponsored Department of Justice indictment. It will be enlightening and maybe entertaining,” Dotcom concludes.

Source: Kim Dotcom: The US Government is Wrong, Here’s Why

“By all estimates, Megaupload.com is the largest and most active criminally operated website targeting creative content in the world,” said the MPAA in a statement issued immediately after Mega was shutdown in January.

As statements go, they don’t get much more harsh than that, so one might think that hostilities between Megaupload and the member companies of the MPAA are a long-standing thing.

But as we know, despite all the rhetoric the likes of the usually-aggressive Disney never sued the Hong Kong based file-hosting service, and instead opted to let the FBI do their work for them.

While this government-financed approach will have proven substantially cheaper than dragging Megaupload through civil court, some potentially embarrassing things would have inevitably come out in such a case – such as this selection of emails just obtained by TorrentFreak.

In an eyebrow-raising email penned by Disney attorney Gregg Pendola, the counsel contacts Megaupload not to threaten or sue the company, but to set up a deal to have Disney content posted on the Megavideo site.

Subject: Posting on Megavideo.com
From: “Pendola, Gregg”
Date: 8/13/2008 10:06 AM
To: love@megavideo.com

My name is Gregg Pendola. I am Executive Counsel for The Walt Disney Company. Certain properties of The Walt Disney Company have content that they would like to post on your site.

However, we are uncomfortable with a couple of the provisions of your Terms of Use that we feel may jeopardize our rights in our content. We were hoping that you would be amenable to reviewing a 1-page agreement we have drafted that we would like to use in place of your Terms of Use.

Is there someone I can contact to discuss this? Or someone I can email the Agreement to for review?

Thanks. Gregg

Gregg Pendola
Executive Counsel
The Walt Disney Company

In another email, Shelina Sayani, Digital Marketing Coordinator for Warner Bros, offers a deal to syndicate “exciting” Warner content to Megaupload’s Megavideo site.

Subject: Warner Bros. – Looking for Content Manager
Date: Wed, 14 Jan 2009 08:55:50 -0800
From: Sayani, Shelina
To: demand@megavideo.com

Dear Megavideo,

I’m writing from Warner Bros., offering opportunities to syndicate our exciting entertainment content (e.g. Dark Knight, Harry Potter, Sex and the City clips and trailer) for your users. Could you please pass on my information to the appropriate content manager or forward me to them? Thanks so much for your time.

Shelina Sayani
WB Advanced Digital Services
3300 W Olive Ave, Bldg 168 Room 4-023
Burbank, CA 91505
818.977.4668

In a later email, Joshua Carver from Warner’s Advanced Digital Services department made inquiries as to how the company could save time by using RSS “to upload our content all at once.”

Subject: Media RSS Feed from Warner Brothers
Date: Fri, 19 Nov 2010 09:38:49 -0800
From: Carver, Joshua
To: idea@megavideo.com

Hello Megavideo,

My name is Joshua from the Warner Bros. Advanced Digital Services department.
I would like to know if your site can take a Media RSS feed for our syndications.
We would like to upload our content all at once instead of one video at a time.

Thank you for your time and funny content,

Joshua D. Carver
Associate Marketing Services Specialist
WB Advanced Digital Services

Jonathan Karron, Director of Marketing at Turner Broadcasting System, contacted Megaupload suggesting a partnership to “promote some of Turner’s great properties” and “original programming.”

Subject: Promotion of Turner Broadcasting videos on Megavideo
From: “Karron, Jonathan”
Date: 5/7/2009 9:29 AM
To: sales@megavideo.com

Hi

My name is Jonathan Karron and I oversee digital marketing for tbs.com, TNT.tv and TCM.com. I’d like to talk to someone in editorial/marketing about your site and how we might be able to work together to promote some of Turner’s great properties and lineup of on Megavideo. I’ve attached some basic information on our websites for your review.

I’m unable to find any contact info you your site so can someone please email me or call me at the # below to start the conversation?

Best,
Jonathan Karron
VP/Digital Marketing
TBS/TCM/TNT
404-575-6855

For Fox, the interest in Megaupload wasn’t necessarily aimed at spreading studio content, but to utilize Megaupload’s considerable reach by setting up an advertising deal. In this email former Senior Director Matt Barash touts FAN, the Fox Audience Network.

Subject: Fox Ad Partnership
Date: Mon, 23 Feb 2009 08:09:14 -0800
From: Matt Barash
To: sales@megaupload.com

I’m reaching out to see if you have a few minutes to discuss the recently launched Fox Audience Network.

FAN is now up and running and fully operational, utilizing best of breed optimization technology to bring cutting edge relevancy to the ad network landscape.
We are scaling rapidly and seeking the right 3rd party publishers to add as partners to our portfolio.

Please let me know if you have some time to chat this week about how we can work together to better monetize your inventory.

Best,
Matt

Matt Barash
Director, Publisher Development
Fox Audience Network

So as we can see, as recently as November 2010 member companies of the MPAA were making contact with Megaupload and trying to do business with the company. According to the authorities the investigation into Megaupload took two years, meaning that these contacts and the start of a criminal investigation could have been just weeks apart.

More on Kim Dotcom’s response to the US indictment is published in our feature article.

Source: Entertainment Industry Was Eager to Work With Megaupload

Ever since Megaupload was dismantled in January there have been concerns about data being held on the site’s servers.

While the MPAA and RIAA insist that the site was simply a huge piracy hub, the facts point to a much bigger picture of people using the site for countless legitimate transfers of files simply too big to email.

As mentioned earlier this month, Megaupload’s legal team is working hard to reunite site users with their data, an aim also shared by the Electronic Frontier Foundation (EFF) with their MegaRetrieval campaign.

As part of this process, Megaupload discovered that a large number of Mega accounts are held by US government officials. Today, thanks to fresh information provided to TorrentFreak by Kim Dotcom, we can reveal more details.

From domains including dhs.gov, doe.gov, fbi.gov, hhs.gov, nasa.gov, senate.gov, treas.gov and uscourts.gov, the number of accounts held at Megaupload total 1058. Of these, 344 users went the extra mile and paid for premium access. Between them they uploaded 15,242 files – a total of 1,851,791 MB.

While a couple of million megabytes of lost data is bad enough, another group – the ladies and gentlemen of the US Military – stands to lose much, much more.

From domains including af.mil, army.mil, centcom.mil, navy.mil and osd.mil etc, a total of 15,634 are registered with Megaupload. Of these an impressive 10,223 people paid to upgrade to a premium Megaupload account and between them they uploaded 340,983 files – a total of 96,507,779 MB.

There is no suggestion that any of these military operatives or government employees were using Megaupload for infringing uses but it is almost guaranteed that documents, photographs and videos are now at serious risk of deletion.

More on Kim Dotcom’s response to the US indictment is published in our feature article.

Source: Kim Dotcom: US Military Had 15,634 Megaupload Accounts

A month after Kim Dotcom was released from prison on bail, his wife Mona has given birth to healthy twin girls. The twins were born in the National Women’s Hospital in Auckland weighing 2.4kg and 2.8kg.

Dotcom and Mona already had three children - Kimmo, Kaylo and Kobi.

The Megaupload founder was delighted to report the news and the now five-time father proudly posed with the new Dotcoms.

“Two healthy Kiwis were born yesterday. All good,” Dotcom texted TorrentFreak on Friday.

“When they asked me if I would like to keep the placenta (weird question) I said yes, and please send it to the FBI for forensic analysis so they can verify there is no pirate DNA ;-),” he added.

Kim Dotcom and his twin daughters

No names have been mentioned for the latest additions to the Dotcom household, but it’s a safe bet those on the shortlist begin with ‘K’.

Dotcom is currently preparing his defense against the indictment of the US Government, which he says will be “enlightening and maybe entertaining.” More news on this will arrive during the coming week.

Source: Kim Dotcom Becomes Proud Dad Of Twin Girls

The Federal shut down of Megaupload did more than jail its founders, scare its competitors and worry its users -- it also left Carpathia Hosting footing a $9,000 a day bill. The outfit previously agreed to preserve Megaupload's frozen data, but now that the service's unpaid bills are piling up, it's ready to change its tune. In a emergency motion filed with the U.S. Federal Court in Virginia, Carpathia asked the court to either take the data off its hands, pay it for retaining the data or else allow it to delete the data altogether after allowing users to reclaim their files. The hosting service won't take action on its own, it says, as that might "risk a claim by a party with an interest in the data," such as the Motion Picture Association of America. With any luck, the matter will be settled in a court hearing next month. If not? Well, we'll just take it as a lesson: back up locally, you never know when your files might get wrapped up in the legal system.

Carpathia wants to delete orphaned Megaupload data, pay the bills originally appeared on Engadget on Fri, 23 Mar 2012 08:11:00 EDT. Please see our terms for use of feeds.

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Schemes which require alleged copyright infringers to pay cash settlements to make lawsuits disappear are nothing new.

Those describing these revenue-generating projects often do so using the word ‘scam’, but while the schemes are questionable, in many cases the companies carrying them out are genuine rightsholders supported by real lawfirms.

Over the past couple of days a pair of cast-iron scams have been targeting file-sharers, one mimicking the model used by so-called ‘pay-up-or-else’ lawfirms and another with a more technical approach.

The first targets users of the now-defunct cyberlocker service Megaupload. Playing on the fears of people who may have used the site for infringing purposes, the documents supporting the scam claim to be from legitimate-sounding German lawfirm “Dr. Kroner & Kollegen” of Munich.

As can be seen from the screenshot below, the fake lawfirm claims to be acting on behalf of rightsholders such as Universal, Sony, EMI, Warner and Dreamworks.

Supported by fake IP addresses and timestamps, the scam ‘lawfirm’ lays out its case. Since the user has downloaded unauthorized copyrighted material from Megaupload they are now liable for fines of 10,000 euros should the case not be dealt with effectively. But for a payment of just 147 euros the whole thing can be made to go away.

Other suspicious elements aside, no specific copyright works are named and the claim is missing the usual ‘cease and desist’ element common to these schemes. Furthermore, according to a OnlineKosten, any cash payments made would end up at an address in Slovakia.

Separately, GVU, an anti-piracy group responsible for the takedown of many file-sharing sites, has been targeted in a more sophisticated scam. According to the group, which was central to the huge operation that closed down Kino.to last year, a piece of malware is doing the rounds which tries to scam file-sharers out of cash settlements using GVU’s name.

As can be seen from the screenshot above, infected users find their browsers hijacked and redirected to a page which displays a warning, claiming to be from GVU, that the computer in question has been detected sharing copyright works.

In a clear indication that this is definitely a scam, settlement of just 50 euros is requested via PaySafeCard to make a potential claim go away.

“The sender of this message is not GVU and we clearly distance ourselves from such criminal activities,” the anti-piracy group said in a statement.

Source: Criminals Target Megaupload Users With Fake Settlement Demands

In February 2011, the MPAA announced a lawsuit against Hotfile, one of the Internet’s most popular cyberlocker services.

The site’s popularity is “a direct result of the massive digital theft that Hotfile promotes,” the movie industry group said.

Two weeks ago the movie studios asked the court to issue a summary judgment against Hotfile and shut the site down. The MPAA argues that Hotfile is a piracy haven that should not be eligible for DMCA safe harbor protection.

This request didn’t go unnoticed by Google, who have now filed an amicus brief in support of the file-hosting site. According to Google, the movie studios are misleading the court by wrongfully suggesting that Hotfile is not protected by the DMCA.

What makes this even more interesting is that many of the arguments made by Google are also relevant to the criminal indictment against Megaupload.

In their brief, Google points out that YouTube, Facebook, Twitter, and Wikipedia are able to thrive because they are protected by the DMCA. But, if the MPAA has its way, these and other services will be in serious trouble.

“Without the protections afforded by the safe harbors, those services might have been forced to fundamentally alter their operations or might never have launched in the first place,” Google writes in the brief.

The MPAA has argued that Hotfile has no right to exist because it’s used predominantly for copyright-infringing purposes. Google replies to this by arguing that it’s irrelevant how many infringements there are. Under the DMCA it would only be problematic if Hotfile is aware of each and every individual pirated file on its systems.

“The case-law uniformly rejects efforts to deprive service providers of the safe harbor based on generalized awareness that unspecified (or even ‘rampant’) infringement is occurring on their services,” Google writes.

Google continues to say that the DMCA specifically states that service providers such as Hotfile can’t lose their safe harbor protection because they refuse to filter content upon request from the movie companies.

“It guards against any claim that a service provider loses the safe harbor by failing to ‘adopt specific filtering technology’ or any other technique suggested by copyright owners for affirmatively seeking out possible infringement occurring on its service.”

Google stresses that the burden to report and identify pirated material lies with the copyright holder, not Hotfile, and suggests that the MPAA tried to mislead the court to believe otherwise.

“The Court should not be misled. It should resist any effort to shift the investigatory burden that Congress deliberately allocated to copyright owners or to impose on Hotfile policing obligations of which it is specifically relieved by the DMCA,” Google writes.

Moving on to another issue, one that’s also key in the criminal case against Megaupload, Google says that there’s nothing wrong with only removing links to files.

Both the MPAA and the US Government claim that it’s wrong for Hotfile to delete links but keep the actual files on their servers, but Google disagrees.

“Plaintiffs make much of the fact that Hotfile, at least for a time, apparently removed only the specific download link identified as infringing in a given DMCA takedown notice, and did not take the additional step of blocking other files on its system (not called out in the notice) that might have also have contained the copyrighted work at issue,” they write.

“But, in this respect, Hotfile did exactly what the DMCA demands, and plaintiffs’ takedown notices cannot be used to charge the service with knowledge of allegedly infringing material that those notices did not specifically identify.”

This is an interesting observation that does indeed make sense. While Google doesn’t mention it, removing the actual files would indeed be overbroad and wrong. For example, if an artist stores his files on Hotfile but wants to take unauthorized copies offline, he or she would not want Hotfile to delete the original as well. The same is true for YouTube videos and a variety of other content.

At the end of the brief Google asks the court to “reject plaintiffs’ efforts to undermine the protections provided by the statute’s safe harbors” and dismiss the motion for default judgment against Hotfile.

While Google’s interest in the Hotfile case is no surprise (they rely heavily on the DMCA themselves), it is intriguing to see that Google is fiercely defending Hotfile and in part Megaupload.

After all the attacks on cyberlocker sites in recent months Google’s support will be welcomed with open arms by the file-hosting industry. Whether the MPAA will be very happy is a different story.

Source: Google Defends Hotfile (and Megaupload) in Court