Have you ever wondered how a massive Hollywood studio like Warner Bros. combats online piracy? (A team of ninjas with computer science degrees, perhaps?) Well, if Warner Bros. has their way, you won’t be finding out anytime soon. Warner Brothers is fighting the Electronic Frontier Foundation’s (“EFF”) motion asking a Florida federal court to unseal documents from Disney v. Hotfile (S.D. Fla., Jul. 8, 2011) that describe Warner Brothers’ anti-piracy practices.
The EFF is looking to unseal information about Warner Bros.’ system for sending takedown notices to websites following the Digital Millennium Copyright Act (“DMCA”) notice-and-takedown system. In light of Congressional requests for input about the notice-and-takedown system established under the DMCA, the EFF feels that information about the practices of large copyright holders is critical for meaningful public dialogue about the DMCA. In particular, the EFF hopes the documents in question will reveal which of Warner Bros. actions might have been in violation of 512(f) of the DMCA, which prohibits copyright holders from sending takedown notices absent a basis for believing the material is infringing.
Warner Bros., filing in opposition to EFF’s motion, asserts that if the court releases information about its DMCA enforcement practices to the public the information will enable those committing online piracy to “evade detection.” In a declaration in support of Warner Bros.’ request to keep the documents sealed, Warner Bros.’ Senior Vice President of Anti-Piracy operations David Kaplan stated that those familiar with Warner Bros.’ piracy detection practices could “infringe without fear of detection.” Warner further asserts that EFF’s claim that the records should be unsealed for the public interest are a “thinly-veiled effort to gain…tactical advantage in private litigation that EFF regularly brings against copyright owners.”
The decision regarding whether or not to unseal the documents is now in the hands of Judge Kathleen Williams, who must balance the respective interests of the EFF and Warner Bros. Her decision could have serious implications for the future of litigation under the DMCA and, potentially, the future of the DMCA itself. If she elects to keep the records sealed, the specifics of Warner Bros. anti-piracy practices under the DMCA will remain private. But if you still want to know the details, consider the saying “If you can’t beat them, join them.”