Legal cases often evolve, or degenerate, into a tit-for-tat battleground. The latest development in this case is that Hotfile has employed its own expert to refute the evidence of Warner’s expert. The MPAA’s earlier expert analysis concluded that Hotfile is ‘used overwhelmingly for copyright infringement,’ and its motion for summary judgement claimed, “Dr. Richard Waterman measured the proportion of downloads from Hotfile that are copyright infringing using data from the month before this litigation. That analysis demonstrates that over 90% of the download activity from the Hotfile website is copyright infringing.”
Hotfile has responded with its own ‘expert’ report. It commissioned Daniel Levy, managing director and founder of Advanced Analytical Consulting Group, to evaluate Waterman’s report; and he is not enthralled. He concludes, “Dr. Waterman has not provided a scientifically reliable estimate of the incidence of allegedly-infringing behavior through the Hotfile website.”
Underlying this case are serious and far-reaching issues. The Electronic Frontier Foundation (EFF), siding with Hotfile, claims that Warner’s takedown notices are bogus because they use an inaccurate computer program to detect infringement. Warner has responded that since a computer program cannot purposely lie, Warner cannot be held responsible for the program’s mistakes.
EFF sees a danger here. Reported in Courthouse News, EFF claimed, “Any company could sidestep accountability for improper takedowns by simply outsourcing the process to a computer. What is worse, copyrights owners would have a perverse incentive to dumb-down the process, removing human review so as to avoid the possibility of any form of subjective belief. The tragic consequences for lawful uses are obvious: untold numbers of legal videos would be taken down, whether or not the uses were fair or even licensed.”