Megaupload could spawn caselaw more destructive than SOPA

Written by David Banham

It's very early days in the case against Megaupload, and the Americans haven't fully revealed their strategy as yet. There is one part of their rhetoric that really worries me, however.

The full text of the indictment is available here.

The argument is that Megaupload are not eligible for the safe harbour provisions in the DMCA because they knew about infringing content, yet did not remove it. The evidence tendered is as follows:

On or about August 15, 2007, BENCKO sent VAN DER KOLK an e-mail message indicating “the sopranos is in French :((( fuck.. can u pls find me some again ?

So they knew they were hosting The Sopranos and they did not delete it. What they did not know, was that that copy of The Sopranos was not sanctioned by HBO or their French affiliate. It would, in this case, be a fairly reasonable assumption that it wasn't and that's why this example has been chosen. If this becomes precedent, however, we are in very dangerous territory.

The decision as to what is "obviously infringing" and what is not is incredibly murky. What if, for example, the French dialogue was a fansub. Is that sufficiently transformative that it would be considered fair use?

Say a book is uploaded. Who published it? Is it still within copyright? In what region was it created? It might have different lengths of applicable copyright. It might well have been uploaded by an independent author who wishes to gain exposure.

We recently had a video created for Pinion. When the final render was done, the artist placed it on Megaupload as it allowed files greater than 300mb with no hassle. This is the standard way he distributed completed work to clients. We went to download it on the day the raid was completed and got nothing.

This was a video on which we assert copyright. It is, by all definitions, a copyrighted work. And yet, it was placed on Megaupload and we were very annoyed when it was not available via Megaupload.

It is easy to generalise, in the vein of SOPA, that all these smart people working in tech should just make sure that no-one uploads copyrighted material to their services. It's easy right? If someone uploads a Hollywood movie just delete it! In reality, though, every time any file was uploaded, an extensive search would need to be conducted to determine whether, where, how, and by whom it was copyrighted. The rightsholder would then need to be contacted to determine whether or not the use was permitted. In the case of transformative or derivative works, the decision would have to be made (and the associated risk assumed!) by the service.

That burden can never be placed on those shoulders. It would be crippling for Google. It would be completely impossible for any startup out there and would stifle a massive amount of innovation.

SOPA merely (merely!) required that every link be checked against a blacklist provided by the US government. If the allegations in this indictment are allowed to stand, industry will not only have to enforce that blacklist, but create and curate it.

The Internet has taken up arms against SOPA/PIPA, but the fight is not just on that front. I am confident the EFF will file an amicus brief in this case. I fervently hope that it is enough.