One likely beneficiary of the entertainment industry’s war on P2P file-sharing will be the cyberlockers. The MPAA and RIAA are currently fighting for the right to obtain the details of individual infringers from the ISPs, and to either sue or disconnect them. They are slowly winning, with the HADOPI law in France and the private arrangement with US ISPs.
But as P2P becomes more ‘dangerous’ to file sharers, they are likely to turn from P2P downloading to cyberlocker downloading. Cyberlockers allow the user to upload and download freely (although usually with terms and conditions that preclude copyrighted works).
To counter the cyberlocker copyright threat, the rightsholders tend to seek the complete takedown of the whole site – but this is not always easy. It was done with Megaupload – but that case is far from over. It is currently being sought by the MPAA against cyberlocker Hotfile; but it is not all going MPAA’s way. MPAA used an expert witness report, who claimed that more than 90% of all downloads on the site are copyright infringing. Hotfile responded with its own expert report by Dr Daniel Levy discrediting the scientific statistical basis of the MPAA report.
Last month Google joined the affray. Taking care not to take sides on the specific copyright infringement (or otherwise) of individual files, it filed an amicus curiae brief (‘friend of the court’) seeking to persuade the court that Hotfile is protected by the DMCA’s safe harbor exemptions. Google has obvious concerns. If whole sites can be shut down because of individually infringing files, where does that leave YouTube? Or Google itself?
Now TorrentFreak reports that it has “obtained a confidential report where Duke University law professor James Boyle presents some revealing facts about the non-infringing use of Hotfile. The document was filed under seal last month and reveals that sharing of non-infringing content is widespread on the cyberlocker.” This report states that “15 of the Top 25 and 32 of the Top 100 were uploaded by affiliates Jdownloader and ih8snow... nearly one-third of the 100 most downloaded files are uploaded by these two developers alone and are open source software programs that it is entirely legal to share and copy. It would also mean that, focusing only on these two developers, we could say that in the history of Hotfile, one-third of the 100 most downloaded files are uploaded by developers and copyright owners who use the Affiliate program to receive indirect compensation for their own creative efforts.”
The implication here is that Hotfile is not merely engaged in legal activity itself, it is also an essential part of the legal business of some, if not many, of its users. This will only make it more difficult to order the wholesale takedown of cyberlockers because of the illegal activity of some users.