The site had millions of users. Is the allusion to "tens of thousands" of files supposed to be convincing? Why was there a limit at all? This is a site that had to deal with (say) 10,000 takedowns a day; clearly, it had a rampant piracy problem.
The DMCA process allows a right-holder to submit a takedown request that the content host will review and, if found to be correct, act on with "expeditious" timeliness.
The direct delete was not a takedown request; it was a deletion order. This is beyond MU's DMCA responsibility.
I do not have evidence of rights holders abusing this feature at MU. But we do know that the labels have made mistakes before [1]. It would be irresponsible for MU to give a third party the ability to wipe large swaths of their servers clean without oversight.
On or about April 23, 2009, DOTCOM sent an e-mail message to VANDER KOLK, ORTMANN, and BENCKO in which he complained about the deletion of URLlinks in response to infringement notices from the copyright holders. In the message, DOTCOMstated that “I told you many times not to delete links that are reported in batches of thousandsfrom insignificant sources. I would say that those infringement reports from MEXICO of “14,000” links would fall into that category. And the fact that we lost significant revenuebecause of it justifies my reaction.”
This wasn't a limit on DMCA takedown notices. This was a limit on their (not legally required) ability to directly take down files. It makes complete sense to limit this to prevent abuse.
You're missing the point. There is a DMCA process, by which someone sends a takedown notice and the website owner needs to take down infringing material. In addition to this process, Megaupload offered certain third parties the ability to directly take down files without having to go through the takedown process. It is this ability which was limited, not the ability to send takedown notices.
All I'm saying is that in this regard Megaupload's actions were perfectly reasonable. The debate about whether taking down links instead of files because not all copies of the file are infringement is a completely separate issue.
No, I think the problem here is that you haven't read the indictment. That automated process was the primary (and, according to emails subpoenaed in the investigation, apparently the only) means of issuing notices and takedowns. Schmitz at one point instructed an employee specifically not to honor takedown requests made outside that process.
"We have a funny business... modern days pirates", said one Mega- employee to another. "We're not pirates", he responded. "We're just providing shipping services to pirates."
The text of the law: "the service provider
responds expeditiously to remove, or disable access to, the
material that is claimed to be infringing upon notification
of claimed infringement as described in subsection (c)(3),"
They are also required to restore it if they receive a counter-notification and the issuer of the original takedown notice has not filed a lawsuit in 10-14 days. This implies they can not delete the file from their system and still meet their legal requirements.
Correct me if I'm wrong, but if I understand the text of DMCA correctly, they are not required to restore the content which was taken down, only that they may.
Maybe to limit the Warner and other companies' actions. They're trying to sue for obvious test files now. What are the chances that given unlimited access they wouldn't worry so much about verification of what's legal/what belongs to them?
It's a completely different thing if they reached the limit every single day, were rejected higher quotas and have a big queue of files to remove... But why didn't they say so?
First, I would note that they upped that limit when asked to. Second, you don't think they get totally careless when they have no limits on direct deletion? I have seen that carelessness. But I've also actually read through many of the mass DMCA notices that have been made public. For example, that one where someone took down the TD article on SOPA. It wasn't even hard for me to find the links that didn't belong just by skimming through the notice[1]. Or some in the Viacom v. YouTube case, where Viacom found out several times that it was taking down files it had, itself, put up. And this after Viacom's expensive lawyers were supposedly finished going over everything with a fine-toothed comb.
Lastly, you might want to reread Sony Betamax, particularly the part about how a service capable of substantial non-infringing uses can be legal even when they know it is often used for infringement. Sure, you're probably not aware of those non-infringing uses because those people kept their files relatively private, rather than distributing them to all and sundry, but ignorance cannot be made into much of an argument. You seem to think of it as a "pirate site" and I doubt I can change your mind, no matter how many non-infringing users I could find. It's a hard point to make when the infringing uses were necessarily public and the non-infringing uses were almost all private.
Yes, I am aware that you could come back with better arguments than the statements you've made upthread that argue directly against Betamax, but I'll let you make your own. You're also entitled to think that Betamax was a bad ruling, if you like, but if that's the case I'll simply have to disagree. After the long history of hyperbolic comments from industry leaders about how every new mass-distribution technology would kill the industry, I would not like to see a future without the Betamax ruling.
Check out Popehat.com for a federal prosecutor (now in private practice, I think) explaining why the DMCA safe harbor doesn't even apply in criminal cases... but, even if it did, who cares? The DMCA safe harbor is an AND construction. You have to satisfy three tests: (a) not knowing about infringement yourself, (b) not benefiting financially from piracy, and (c) responding expeditiously to takedown notices.
As soon as the DoJ got MU's email, it was all over. They themselves not only used the system repeatedly for piracy (in far, far more documented instances than just 50 Cent and Louis Armstrong) but also paid bonuses to people they knew had been uploading DVD rips to the site --- paid bonuses that tracked those very uploads.
I disagree on with the conclusions this thread has come to about the DMCA safe harbor, but really... what are we arguing about here?
I've read that. It was a very good article. Think I even commented on it when it hit HN, but I don't recall offhand. But for all that, they have to extradite him first. They probably will, mind you, but it remains to be seen. There have been enough goofs already to create at least a little doubt.
I'm not saying they've done nothing illegal, just that the argument over the notices isn't a particularly strong one. Like I said, there are much better arguments.
I read that too, though I skimmed a few sections. I think I recall a comment from a lawyer (possibly a prosecutor?) who said that if they could prove even half of those claims at trial, they'd have the MU crew down for criminal infringement many times over.
There's no question that this is an uphill battle for them.
I can only hope they kept logs of all takedown requests. Now they only need to find a reasonable sample. Honestly, I believe that even if they tried hard not to make mistakes, at this volume they would get some false-positives - and that's as good explanation as I can imagine. Now the question is - can Mega* guys prove enough of cases like that. Or maybe they have other explanation for the quotas - I don't know - I'm eager to hear more about it.
Assuming the limit was close to the average number of take down requests it's reasonable protection to prevent a buggy third party script from harming their site.
Issuing a DMCA takedown notice without having a valid claim to the questioned copyright is perjury. What MU offered was a tool for other parties to delete files directly without having to issue DMCA takedowns - in other words, it allowed them to delete files they didn't have the right to delete without facing the consequences of doing so.
This tool was limited to prevent abuse. Simple as that.
