$25 Million Jury Verdict In Rightscorp Case Raises Serious Questions About Copyright Law
from the but-of-course dept
This wasn’t a huge surprise after Judge Liam O’Grady’s questionable reading of the DMCA a few weeks back (along with his general disdain for the internet), but a jury yesterday awarded BMG $25 million from Cox Communications, claiming that Cox was guilty of willful “contributory infringement” in not kicking accused file sharers off the internet. The jury found Cox not guilty of “vicarious liability,” which is at least marginally surprising, as many people who don’t spend their lives wrapped up in copyright law have difficulty distinguishing the difference between “contributory infringement” and “vicarious” (if you’re confused too, Wikipedia’s overview is a decent place to start). And based on that, the jury hit Cox with the $25 million award for BMG.
This will undoubtedly go to appeal, and it would seem that Cox has some pretty strong arguments. First up, the original decision that Cox is not subject to the DMCA’s safe harbors is a highly questionable ruling, and would go against a number of previous rulings. As noted previously, some of Cox’s actions did seem somewhat egregious, but this still involves a previously untested argument that the policy of requiring service providers to have a plan to terminate users applies to network service providers, rather than those who host content. That’s a pretty big open question — and how that issue is resolved will have a major impact on how the internet functions going forward. If Judge O’Grady’s ruling stands, then the RIAA and MPAA just got a huge golden gift: it would effectively say that the US has a “three strikes”-like law where people can be kicked off the internet entirely, based solely on accusations of copyright infringement. That’s a pretty scary result.
Even separate from that, the idea that Cox, an internet service provider, is guilty of “contributory liability” for infringement seems difficult to believe as well. The standard for contributory copyright infringement is basically one who “knowingly induces, causes or materially contributes” to copyright infringement done by someone else where that party “had knowledge, or reason to know, of infringement.” So, in this case, the argument is that based on the notifications, Cox had the necessary knowledge of the infringement, and then “materially contributed” to that infringement by continuing to provide service. But, again, that’s a huge stretch, and goes way beyond historical examples of contributory infringement, where you had things like Grokster, that actively advertised its software as being useful for infringement. In this case, all Cox did was not terminate users, and somehow that counts as “materially contributing” to infringement?
Again, if that stands, it has tremendously troubling implications for how the internet functions, and the ability of people to use copyright law to wreak havoc on the lives of others. We’re talking about opening up the possibility of going way beyond the standard DMCA takedowns of content, to it becoming a weapon for killing internet access within households.
The $25 million verdict comes out to about $18,000 per each of the 1,397 copyrights listed in the case — which is certainly less than the statutory maximum possibility of $150,000 per infringement. But, still… Either way, it’s almost certain that Cox will appeal, and that’s when the case will start to get a lot more interesting.
Filed Under: contributory infringement, copyright, copyright trolling, copyright trolls, dmca, safe harbors, secondary liability, vicarious liability
Companies: bmg, cox, cox communications, rightscorp
Comments on “$25 Million Jury Verdict In Rightscorp Case Raises Serious Questions About Copyright Law”
Ah copyright math...
The $25 million verdict comes out to about $18,000 per each of the 1,397 copyrights listed in the case — which is certainly less than the statutory maximum possibility of $150,000 per infringement.
How do you turn a song that sells for under $1, or a movie that sells for under $20 into thousands? Why, copyright infringement of course, where as if by magic, something worth under $20 is suddenly worth close to $20,000.
When this is appealed, I certainly hope that a judge who actually knows something about the internet takes up the case, rather than another judge who sees no value in what is one of the more important technologies to have access to, and nothing wrong on cutting someone’s access to it on nothing but accusation of wrongdoing.
Re: Ah copyright math...
“How do you turn a song that sells for under $1, or a movie that sells for under $20 into thousands? Why, copyright infringement of course, where as if by magic, something worth under $20 is suddenly worth close to $20,000.”
Ah, but that’s retail price. If the judgement is meant to be losses to the label/studio rather than include losses to retailers then you need to consider the wholesale price which will be significantly less. It’s even more ridiculous if they do include assumed retail markup since retailers often sell these products at a loss as loss leaders anyway.
So, it’s even more ridiculous, even if these claims were based on evidence rather than accusations.
This is just another attack in the onslaught that is legacy systems trying to twist the law into their favor, especially since other attempts failed.
Eventually, one will stick, and that one will change the internet forever.
Especially when it’s being decided by 12 very stupid Americans in the jury pool who gleefully throw their money at Disney because new “Star Wars” while being woefully ignorant of copyright law.
A recipe for disaster if I ever saw one.
Wow, Mike. Really terrible analysis. Completely off. I’d be happy to run through it point by point on the merits. But let me guess, you’re busy, right?
Re: Re:
I like how you think he’s got nothing better to do than answer the vague, unsupported and non-existent ‘counter-arguments’ from commenters such as yourself.
If you’ve got something, present it, and leave the blatantly obvious insinuations at the door.
Re: Re: Re:
I like how you think he’s got nothing better to do than answer the vague, unsupported and non-existent ‘counter-arguments’ from commenters such as yourself.
If you’ve got something, present it, and leave the blatantly obvious insinuations at the door.
I’ll mop up the floor with Mike on this anytime. I’ll take time off of work. It’ll be hilarious. Too bad he’s so “busy” that he can never defend what he writes. He’s been making excuses for years. Funny that.
Re: Re: Re: Re:
But you won’t actually post your counterpoints? The authors do come in and post info in the comments if it is relevant. You have already lost by just demanding and not actually producing.
Re: Re: Re: Re:
You’ll have time. Google brass went into full crisis mode yesterday about this decision. They have millions to throw at Cox to bankroll the appeals and try to buy off the next judge.
Re: Re:
the only thing you should be running through, is a grinder
Re: Re:
Yep. Of course he’s “busy.” What’s new?
Re: Re:
Masnick has no interest in the truth here, everyone knows that. His horrible economic theories have crashed, and it is no doubt an embarrassing time to be him.
So yes, his commentary above is a bad joke. However as unlikely as it is, I would indeed like to see Cox appeal, go “Full Jammie Thomas Retard” as I saw it described elsewhere, and watch them lose even more money. Their ridiculous behavior up to this point has been extremely entertaining.
Re: Re: Re:
“Full Jammie Thomas Retard”?? That’s hilarious! Of course Mikey doesn’t want to defend his silly “analysis.” The fact is simply that he can’t. It’s amazing how little he understands about copyright law, given how long he’s been doing this. Methinks it’s never been about getting it right, though. It’s about spreading anti-copyright FUD and hate.
Re: Re: Re: Re:
That is precisely what it’s about. And the only thing it has accomplished is that he’s been turned into the butt of jokes and an object of mockery. Whoops.
Re: Re: Re:2 Re:
Is the sky in your world a pretty pink? At least until the nice men in white give you more happy pills.
Re: Re: Re:
What horrible economic theories? The free model? I have seen multi areas of the working great. League of Legends is worldwide and it is based on a free model. In fact, that game probably wouldn’t have gotten as big otherwise since many paid models are failing.
Re: Re:
Bawk!
Re: Re: Re:
Yep. Mike’s a chicken. A big, dishonest chicken.
Re: Re: Re: Re:
Masnick has never been anything but a corporate shill. Paid to spew bullshit. Look where it has gotten him.
Accusation is not guilt
If Judge O’Grady’s ruling stands, then the RIAA and MPAA just got a huge golden gift: it would effectively say that the US has a “three strikes”-like law where people can be kicked off the internet entirely, based solely on accusations of copyright infringement. That’s a pretty scary result.
The bolded part really needs to be emphasized and pointed out any time the matter is discussed. The *AA’s aren’t just demanding the ability to force people to be kicked off the internet if they’re found guilty of copyright infringement ‘too many’ times, they want the ability to do so based upon nothing more than accusation.
They’re arguing here that the fact that they accused someone of copyright infringement, and Cox refused to cut them off as a result means that Cox is guilty of contributory infringement, but what infringement has been found to have occurred? As much as the *AA’s clearly wish otherwise, an accusation does not a guilty verdict mean, yet here Cox is being punished for not automatically assuming that every accusation is a valid finding of guilt, and acting accordingly.
Even if the judge’s ruling is sound, which I don’t think is the case, the cut-off point should only kick in after someone has been found guilty, in court, ‘enough’ times for the repeat infringer clause to take effect. Any sooner and you’re in the position where you can be punished not because you are guilty, but because someone claims you are, and that’s not even remotely just.
Re: Accusation is not guilt
If this stands, the obvious thing to do is for everyone to accuse the judges involved of copyright infringement, until they get kicked off the Internet.
After all, they said it’s just the accusation that counts, regardless of truth, right?
Re: Accusation is not guilt
“they want the ability to do so based upon nothing more than accusation”
incorrect. They make a legal statement, and the customer at that address can argue that they did not do anything, or provide proof that what they were doing was acceptable (fair use in file sharing as part of a review video, perhaps). The problem in this case appears to be that Cox took it upon themselves NOT to forward the notice and instead to ignore them, rather than take action. It’s particularly egregious in that they ignored many, many notices about the same users over a period of time.
Those notices are not an accusation, they are a legal statement of what they believe to be the truth. DMCA provides for the opportunity to counter that statement. Nobody is asking for anyone to get kicked off for a single notice, are they?
The results of this lawsuit are pretty clear. Ignoring DMCA notices is not a good idea, no matter how much you don’t want to respect the rights holders.
Re: Re: Accusation is not guilt
Try proving that nobody that used your connection has downloaded a file.
Further can you afford to take a fair use case all the way through the court system, especially as the chances of getting you costs back are almost zero.
Re: Re: Accusation is not guilt
I’m not sure I understand how “a legal statement of what they believe to be the truth” that requires the receiver to prove them wrong is different than an accusation of that person doing something wrong.
Re: Re: Accusation is not guilt
Burden of proof lies upon the accuser. An IP is not a person, so accusing an account holder of copyright infringement without actual proof that it was them is just that – an accusation.
Personal anecdote – I have internet service at my house. I share it with my neighbour, who pays me half the monthly charge. Between our two families, there are 3 laptops, 2 desktops, 4 tablets and 5 smart phones accessing the internet. Many of our friends and extended family have access to the wifi when they come over to visit. Which person is guilty of copyright infringement? Which device were they using? Am I to be charged because a friend brought over their laptop to do some work with me and forgot they had a torrent running and didn’t inform me of it? Are they not the guilty one, since it is their laptop and their software, but simply my connection that they are using at that moment?
That’s why the **AA’s shouldn’t be allowed to force people off the net just because they put forth a “legal statement”. They need to prove it first in a court of law, then they can have the judge send the declaration to the ISP.
Re: Re: Accusation is not guilt
But how exactly do you prove you didn’t do something like that?
So let’s say I get a “legal statement” stating that I downloaded a song, and I didn’t actually download the song. Someone spoofed my ip, hacked my wifi, whatever… how do I prove that? In some cases, the person on the receiving end may not even know, they’ve been spoofed or hacked. All they could do is say “No, I did not download that file”. Now what? Lets say you get a couple of more of those notices, and now your being sued. I, like many other people, don’t have the money to pay for high end legal help. Now what?
This type of system is so easy to abuse it’s crazy, and so expensive to defend yourself against, it’s almost not worth it. It’s almost like the people writing these laws are doing so in such a way as to take advantage of people’s inability to defend themselves.
Re: Re: Re: Accusation is not guilt
First and foremost, this isn’t you “downloaded a song”, it’s “you made a song available as a peer or as a seed”. The big difference here is that spoofing generally would render this impossible. You cannot as easily hide where you are when you are seeding.
For the other arguments, the “hacked wifi” and such… it’s the reason why it’s not one notice and you are done. It’s multiple notices over a period of time.
“This type of system is so easy to abuse it’s crazy, and so expensive to defend yourself against, “
Yes, it’s incredibly expensive to answer a DMCA complaint. You have to actually write something about the length of your post to explain why this is in error. At that point, the DMCA complainant either moves forward with a lawsuit, or stops because your explanation is good. Either way, your answering the DMCA notice with a defense essentially STOPS any other action required under the DMCA law. Your host / ISP would no longer have any liability.
Remember, you don’t have to go to court when you receive a DMCA notice. You only have to counter notice. Anyone who can write a post here has the needed skills to do so.
Re: Re: Re:2 Accusation is not guilt
At that point, the DMCA complainant either moves forward with a lawsuit, or stops because your explanation is good.
So then, by your explanation, ALL of the accused file sharers that were supposed to have been kicked off the Internet by Cox, have ALSO been successfully sued by the rightsholders?
Because that part is curiously missing from any arguments that I’ve seen…
Care to try again?
Re: Re: Re:2 Accusation is not guilt
You seem to believe that trawling for IP addresses is an accurate passtime. I assure you it is not. You cannot as a matter of logic prove a negative which is why laws should never place that burden on the accused – and in most places that is a requirement in drafting laws. Further, it is unlikely you will have any idea at all why you would know why you were falsely accused. If I got one of these, it would be bare denial. End of story, as it is a complete defense.
Re: Re: Re:2 Accusation is not guilt
Since you seem to be in favor of having to prove a negative, prove to me that the logo you’re using as part of your profile is NOT infringing on a copyright.
Re: Re: Re:2 Accusation is not guilt
You know very well that the person you’re replying to was referring to the cost of defending yourself in court against copyright holders who file complaints as a matter of routine, based on as little evidence as an IP address.
Re: Re: Re:2 Accusation is not guilt
“First and foremost, this isn’t you “downloaded a song”, it’s “you made a song available as a peer or as a seed”. The big difference here is that spoofing generally would render this impossible. You cannot as easily hide where you are when you are seeding.”
Fair enough, perhaps seeding can’t be spoofed and I’m mistaken.
“For the other arguments, the “hacked wifi” and such… it’s the reason why it’s not one notice and you are done. It’s multiple notices over a period of time. “
I have to disagree with you here. I constantly hear about the abuses of the DMCA system. This includes private companies sending out bulk threat letters to ISP’s attempting to extort their customers. I’ve even seen some sanctions handed out by courts for this abuse. I’ve also heard of DMCA’s being auto-generated so thousands of them can be issued at once. To my understanding, As long as they are issued “In good Faith”, it’s not abuse, even if they are regularly generated in error.
“Yes, it’s incredibly expensive to answer a DMCA complaint. You have to actually write something about the length of your post to explain why this is in error. At that point, the DMCA complainant either moves forward with a lawsuit, or stops because your explanation is good. Either way, your answering the DMCA notice with a defense essentially STOPS any other action required under the DMCA law. Your host / ISP would no longer have any liability. “
You don’t have to be sarcastic, I was trying to have a civilized conversation to both education myself, and understand your position. As I understand it; When someone received a DMCA notice, and answers it as required, it still counts as an accusation. Mike said:
” If Judge O’Grady’s ruling stands, then the RIAA and MPAA just got a huge golden gift: it would effectively say that the US has a “three strikes”-like law where people can be kicked off the internet entirely, based solely on accusations of copyright infringement. That’s a pretty scary result.”
You replied that the above statement was incorrect. A quick google search proves your wrong. I found plenty of links to stories where the ISP’s disconnect people based on accusations alone. So you get to respond to the bot that issued you a DMCA claim. That doesn’t really mean much if your disconnected by your ISP for accusations alone.
“The results of this lawsuit are pretty clear. Ignoring DMCA notices is not a good idea, no matter how much you don’t want to respect the rights holders.”
You seem to think that people don’t respect rights holders. But the law doesn’t seem to care about respect when it comes to accusations, all they seem to care about is the accusation itself. If I get 5 false DMCA notices, and I successfully challenge and beat all 5, do they then not count as accusations? How much effort am I going to have to go through to challenge all that, and can I really sue the people issuing automated DMCA’s by the thousands if they really believe each one is being issued in good faith?
Simply having the ability to defend oneself from accusations or DMCA’s does not validate the issuing of DMCA’s in error, even if done in good faith. Look at the countless abuses easily found on the internet right now.
Re: Re: Re:3 Accusation is not guilt
“I found plenty of links to stories where the ISP’s disconnect people based on accusations alone.”
yes, unanswered accusations. See, part of the problem here is that if people don’t react, the ISPs and others have little to go on except the DMCA notice. Counter notification would remove the legal burden from the ISP (they are not required to judge the validity of the DMCA or the counter notice, only to know that it is being addressed by the person who received the notice).
Where this gets complicated is if an ISP fails to forward the DMCA notices and treats them as junk mail. Then the end user is not notified, cannot defend themselves, and ends up generally included only after the legal action has started.
“Simply having the ability to defend oneself from accusations or DMCA’s does not validate the issuing of DMCA’s in error, even if done in good faith. Look at the countless abuses easily found on the internet right now.”
The problem here is that you want MORE than good faith from the DMCA claimant, which is more than the law requires. Should they care if you left your WiFi open to the point that someone is using it as a seeding point? Remember, we aren’t talking about someone downloading a file, we are talking about seeding. Since the Thomas case we know that the best legal angles aren’t about downloading, they are about actively sharing. If you are unaware that your wifi (and a big chunk of your internet connection) are being used as a seed point, perhaps you have bigger issues to deal with.
“But the law doesn’t seem to care about respect when it comes to accusations”
File sharing is based on a certain lack of respect as well. File seeders know what they are doing is against the law, but they do it anyway. That shows a lack of respect to the creator, to the rights holder(s), and to the law itself. The amount of respect here is low because the underlying act is pretty disrespectful. The law is written to define a simple standard of good faith. Perhaps if there was only a few seed boxes in the world and the rights holders could deal with them directly things would be different. The sheer volume of peering and seeding means that they have to cast a very wide net. That isn’t going to be the most respectful experience, akin to an army “line up and cough” from the 40s. It’s not pretty, but it’s effective when you have that big of a number to deal with.
Re: Re: Re:4 Accusation is not guilt
“Where this gets complicated is if an ISP fails to forward the DMCA notices and treats them as junk mail.”
I have to disagree. If it were just the DMCA’s that’s one thing, but the extortion letters and the blatant attempt to scare people into giving up money, before guilt or innocence is established, is just as wrong as what they are accusing the person of doing.
“The problem here is that you want MORE than good faith from the DMCA claimant, which is more than the law requires.”
No, I just want real “good faith”. Once these bot’s or companies are notified that they are sending out notifications in error, they should fix the problem, but they don’t. They keep sending them out until the iSP just says to hell with it and drops the customer, that is why they ignore them. The only time the people sending out the DMCA’s actually fix the errors is when they get taken to court, and then it’s just barely. That is not good faith. That is disrespecting the ISP’s customers in much the same way they are accusing people of disrespecting the content middle men.
“File sharing is based on a certain lack of respect as well. File seeders know what they are doing is against the law, but they do it anyway. That shows a lack of respect to the creator, to the rights holder(s), and to the law itself. “
Now this we agree on.
Locking up content makes as much since as locking up air when it can be copied at near zero cost. You don’t have to like it, but it is the truth. When a machine comes out that allows us to copy food, or cars, the food industry and the car industry will have to adapt. Trying to use the legal system to beat your customer into submission is the foundation of many counter culture movements. It has and will backfire tremendously.
People are moving their torrent streams to secure VPN’s that are out of the reach of the legal vultures. When that is compromised, they will find another route… and another game of whack a mole will be underway….
“If a law is unjust, a man is not only right to disobey it, he is obligated to do so.”-Thomas Jefferson?
Re: Re: Accusation is not guilt
Yeah, those ‘notices’ that they didn’t pass on were less DMCA notices of infringement and more standard copyright shakedown letters. If Cox didn’t feel like passing them on, it’s probably because they didn’t feel like being a party to Rightscorp’s ‘business’ of shaking people down for whatever money they could threaten out of them.
From a previous article:
“Rightscorp is in the business of threatening Internet users on behalf of copyright owners. Rightscorp specifically threatens subscribers of ISPs with loss of their Internet service — a punishment that is not within Rightscorp’s control — unless the subscribers pay a settlement demand,” Cox writes.
…
“Rightscorp had a history of interactions with Cox in which Rightscorp offered Cox a share of the settlement revenue stream in return for Cox’s cooperation in transmitting extortionate letters to Cox’s customers. Cox rebuffed Rightscorp’s approach,” Cox informs the court.
This was never about stopping infringement, it was always about getting easy money by scaring people, innocent and guilty alike into paying out settlements, and setting legal precedent that will allow the RIAA to force ISP’s into acting as unpaid enforcers.
Re: Re: Accusation is not guilt
FWIW, Verizon has mailed me letters 3 or 4 times claiming that they’ve received accusations that I illegally downloaded a movie.
In no case so far have the accusations been correct.
I have no idea what the error rate is on these things, but it must be high.
Re: Re: Re: Accusation is not guilt
In ACS’s case, between 30 and 50% of “detections” could not be matched to a subscriber. Given that this is a congested IPV4 pool, I would be surprised if more than 50% of the remainder are not false positives. Even if they get past that, they still have no idea of the identity of infringer. I would expect they are correct on this point less than 10% of the time.
Re: Re: Accusation is not guilt
They make a legal statement, and the customer at that address can argue that they did not do anything, or provide proof that what they were doing was acceptable
No, they don’t, and no, they can’t.
Cox is providing “Transitory Digital Network Communications” under 512(a). DMCA takedown notices explicitly do not apply to 512(a) providers.
The DMCA “notice and takedown/putback” system only applies to providers that host content or search engines: 512(c) and 512(d), respectively. They do not apply to any other kind of service provider.
DMCA provides for the opportunity to counter that statement.
No, it does not. The “putback” procedure is in 512(g), and it applies only to “material that has been removed or to which access has been disabled.” It does not apply to restoration of the entire service.
You are wrong, as a matter of black-letter law.
If this ruling stands, all it takes is accusations of infringement, and a user whose entire internet has been shut down would have absolutely no recourse whatsoever.
Re: Re: Re: Accusation is not guilt
Oh look, it’s Karl talking out his bunghole about laws that he doesn’t understand again.
“DMCA takedown notices explicitly do not apply to 512(a) providers.”
I’d call Karl a liar, but actually he’s just incredibly stupid.
Go read the DMCA, Karl.
Especially this part:
A party seeking the benefit of the limitations on liability in Title II (IOW SAFE HARBOR)must qualify as a “service provider.” For purposes of the first limitation, relating to transitory communications, “service provider” is defined in section 512(k)(1)(A) as “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” …
In addition, to be eligible for any of the limitations, a service provider must meet two overall conditions: (1) it must adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers
Re: Re: Re:2 Accusation is not guilt
Oh, look, it’s an anonymous coward who is physically incapable of arguing without slinging around ad hominems.
OK, let’s read the law. It is here: 17 USC 512.
512(a) reads:
This describes what Cox is doing.
Also, to the other AC: it doesn’t matter if Cox is a “Level 3” provider or not. DMCA immunity is defined by an ISP’s function, and since this is the function of Cox’s service, they are eligible for DMCA immunity under this section.
The “notice and takedown” provisions are not in 512(a) at all. In fact, they are defined in 512(c)(3):
It explicitly applies only to “material” that is to be “removed or disabled.” And it applies only to service providers that store that “material” on their “system or network.”
In other words, not to service providers as defined in 512(a).
There are two other functions of a service provider where the “notice and takedown” provisions must be followed – 512(b) and 512(d):
Again, these explicitly refer to “material” that is “to be removed or access to which is to be disabled.”
And again: not to service providers as defined in 512(a).
Yes, this is black-letter law. It is clear and unambiguous. But don’t just take my word for it:
This is not the only court to reach exactly the same conclusions:
It is not only black-letter law, but well-settled case law as well.
You are correct, however. There is a requirement in 512(f) to terminate repeat infringers:
But, as has been proved above, a 512(a) ISP’s definition of a “repeat infringer” is not related to a DMCA notice – since those notices do not have anything to do with that type of ISP.
Also note the phrasing: “who are repeat infringers,” rather than “who are claimed to be repeat infringers” (the language used in 512(c)(1)(C), among other places). So, without using takedown notices, and with the statutory requirement that users are actual (not accused) infringers, how is a 512(a) ISP to determine who to kick off the net?
The answer is likely found in 512(j)(1)(A). This was the section referred to in RIAA v. Verizon. And it only applies to court-ordered injunctions. Here is the relevant statutory text:
A logical reading of the DMCA would therefore suggest that a court-ordered injunction is required for an 512(a) ISP to terminate a user’s account.
Now, those are the “takedown” provisions. What about the “putback” provisions – the ones that (theoretically) give users the right to contest the claims of copyright holders? These are covered in 512(g):
Again: this applies only to “material,” and you can only contest a notice sent under 512(c)(1)(c) – which doesn’t apply to 512(a) ISP’s.
So my statement was absolutely correct. If this ruling stands, all it takes is accusations of infringement, and a user whose entire internet has been shut down would have absolutely no recourse whatsoever.
Re: Re: Re: Accusation is not guilt
cox is not a transitory network. they are an internet service provider. transitory network providers are companies like Level3. cox provides end user hosting / connectivity.
it is black letter lae.
Re: Re: Re:2 Accusation is not guilt
I actually wrote a long reply, but it’s apparently held in the spam filter (probably because of all the links to laws and cases).
But, until it shows up, I’ll just address this:
Under 512, “hosting” and “connectivity” are completely distinct.
512(a) applies to service providers who provide “connectivity.” It is not limited to providers like Level3. It includes ISP’s like Verizon or Comcast.
And, as far as I can tell, to Cox. This case was all about Cox’s immunity under 512(a). I don’t believe they were “hosting” any material.
Re: Re: Re:3 Accusation is not guilt
You’re about as sharp as a bowling ball, aren’t ya, Karl?
Re: Re: Re:4 Accusation is not guilt
You’re about as sharp as a bowling ball, aren’t ya, Karl?
When your only response is an insult, you’ve lost the argument.
Re: Accusation is not guilt
I agree with your position that the repeat infringer policy should only kick in if the user has actually been found guilty of infringement. After all, the service provider shouldn’t be expected to judge whether material is infringing. That point was specifically addressed by Congress before the law was passed. “In addition, the Committee does not intend this provision to undermine the principles of new subsection (m) or the knowledge standard of new subsection (c) by suggesting that a provider must investigate possible infringements, monitor its service, or make difficult judgments as to whether conduct is or is not infringing“
Unfortunately, there’s Disney v. Hotfile, where the idea was discussed and thrown out, oddly enough by using that same quote from Congress. The judge in that case essentially said that multiple statutorily valid DMCA notices are a reasonable indicator of repeat infringement. There’s also an implication that at some point, the service provider can’t honestly say “they didn’t know” after multiple notices targeting the same user are received.
If this ruling stands, Cox and other ISPs will have to keep very good records about anyone who receives multiple DMCA notices and isn’t terminated, so that they can justify in court why that user wasn’t considered a repeat infringer. That justification will probably end up being a discussion on how the ISP judged that no infringement occurred, which is exactly what Congress said service providers shouldn’t have to do.
Re: Re: Accusation is not guilt
Time to get a VPN, and wash your hands of the whole thing?
Re: Re: Re: Accusation is not guilt
Unfortunately, VPN’s don’t protect you from false positives
Re: Re: Re:2 Accusation is not guilt
No, but they would protect you from real ones. OOOoOo the irony.
Re: Accusation is not guilt
The DMCA Safe Harbor was granted EXPRESSLY so people would NOT have to go to court. Nice revisionist thinking there.
So yeah, we could get rid of the DMCA, get rid of the safe harbor and then we could really have some fun.
These judges are just stupid. I’m moving all my internet traffic to a VPN out of country. Maybe it won’t be the fastest ever, but with out mixed up confusing ass laws that are so one sided it’s stupid, why risk it? I don’t actually have to break the law to be found guilty, just accused. I remember Techdirt had recommended or was endorsing a VPN service a while back, anyone happen to remember what it was?
Re: Re:
I’ve been using PIA. Seems to work well so far. On an odd note…when my internet seems slow due to pages having to fetch all the 3rd party crap I can usually fire up PIA VPN and get my page loads back up to speed.
the reason, i think, that this was the result is the way the judge ‘led’ the jury. remember also that he has little knowledge or respect for the internet and it’s users. that is why he was on this case and why he is on the Dotcom case! he should be relieved of duty because as far as he is concerned, everyone who does or is accused of doing something against the entertainment industries is guilty before the trial starts!!
Replies to killing access on accusations & copyright math
“If Judge O’Grady’s ruling stands, then the RIAA and MPAA just got a huge golden gift: it would effectively say that the US has a “three strikes”-like law where people can be kicked off the internet entirely, based solely on accusations of copyright infringement. That’s a pretty scary result.”
Reply: If the copyright holders submit bad or false DMCA claims that turn out not to be true, they could 100% be counter-sued and face damages of their own. Could you imagine having your internet service terminated if it was wrong, of course you’d be super pissed off. If you’re going to submit DMCA claims around IPs, you better be damn sure you’re getting it right, so it’s not that scary knowing there are major repercussions at stake if it’s done poorly. And there will be an army of anti-copyright lawyers willing to take on these cases on contingency (for the money and PR exposure). In this regard, I don’t think what the judge ruled is all that bad because the rubber band could easily snap back the other way if the accusations are untrue. Really, for an end user, if they were erroneously terminated, it would probably be inconvenient, but work out for them really well financially on the counter-suit.
2. “How do you turn a song that sells for under $1, or a movie that sells for under $20 into thousands? Why, copyright infringement of course, where as if by magic, something worth under $20 is suddenly worth close to $20,000.”
Reply: There are actual damages and statutory/punitive damages. If you take the perspective that committing copyright infringement isn’t a crime or not the biggest deal in the world, then I can see your side. But if you take the perspective that committing copyright infringement is still against the law, and Cox (or anyone for that matter), isn’t above the law, and when given notice of people breaking the law over and over again ignored it or didn’t comply with the law, that they should be punished based on their actions, then the damages are somewhat light. They could’ve been awarded close to 10x that amount per song. Not all countries have statutory damages, but the US is one of them. The US marries stiff monetary penalties with a notice and takedown system that gives people the ability to take action without just being guilty, so if you don’t comply or take the right steps, then the stiff penalties kick in. Other countries don’t have the notice and takedown system (if the copyright infringement exists, you are just guilty – plain and simple), but then they don’t have the concept of statutory damages, you would have to prove your actual damages, or in this case, the cost of the song to the end user if he purchased it.
Re: Replies to killing access on accusations & copyright math
Nice theory, but it requires one of:
a fortune up front;
a charity prepared to fight on your behalf;
a lawyer prepared to act pro bono.
Best of luck in finding one of the last two if you do not have the many thousands needed to start your own civil action.
Re: Re: Replies to killing access on accusations & copyright math
Anyone can file a lawsuit; you don’t have to be a lawyer.
And even if you did, not everyone needs to counter-sue to provide an effective deterrent. A few big losses are sufficient.
Re: Re: Re: Replies to killing access on accusations & copyright math
1) Can you afford the time off of work to fight the suite, and will you employee keep you on?
2) How do you do the necessary research without an Internet connection? (Having to rely on libraries and free WiFi can be very limiting when trying to do research around work and home commitments).
Re: Re: Re:2 Replies to killing access on accusations & copyright math
1) Filing a lawsuit is hardly a full-time job.
2) Do you really think this would actually prevent people from getting on the Internet??
Re: Re: Re:3 Replies to killing access on accusations & copyright math
1) It becomes one when the case proceeds, and/or the corporation find reason to drag you through the courts. The copyright cartel are well versed in how to use the courts to bankrupt a weaker (that is poorer) opponent. Hint I do not see many reports of individuals risking taking the corporations on over egregious abuse of the DMCA or ContentID, and is the reason that YouTube has decided to take on some egregious abuses of the system.
2) Outside of metropolitan area, your options may be the DSL provider that has cut your connection and a mobile 2G connection that rarely makes 10k bits per second, and is subject to data caps and throttling.
Re: Re: Re:3 Replies to killing access on accusations & copyright math
1) Filing? No. Fighting the actual case? Yes.
2) You do realize that most people still only have access to one, maybe two ISPs. It can take up to three fucking weeks (perhaps even longer) to switch (assuming the second ISP even provides service where they say they do). And that’s assuming the second ISP will be willing to take on the liability. If this ruling goes without a fight, that’s exactly what’s going to happen. You get kicked off of one ISP and no others are going to be willing to risk $25,000,000 just to get one more customer.
Do you even read what you right?
Re: Re: Re: Replies to killing access on accusations & copyright math
Could you please then explain why when someone sued for copyright infringement shows that the case had no merit and was stretched out and attempts to have the court reprimand the plaintiff and get back the costs they were forced to run up defending the suit get given the shaft more often than not?
Big losses are hard to make happen, the courts seem loath to “burden” copyright holders with having to support their claims and pay the piper when they force others to waste money fighting back.
Re: Re: Replies to killing access on accusations & copyright math
You missed the most important, but also most difficult to find part: a court willing to rule in your favor.
Re: Replies to killing access on accusations & copyright math
Rossi v MPAA (9th Cir. 2004)
(Emphasis added.)
Re: Replies to killing access on accusations & copyright math
Other countries also have secret prisons where torture is the soup de jour and pervasive government surveillance.. ah, well, nevermind.
Re: Replies to killing access on accusations & copyright math
I’m guessing you haven’t been lurking on TD for long, but the penalty for filing a bogus DMCA claim, even a blatantly bogus DMCA claim is the following:
Nothing.
There is no penalty for filing bogus DMCA claims, so the idea that someone could counter-sue and get a nice chunk of money out of it isn’t going to happen. At most the accused sues the one who filed the bogus claims, the one who filed the claims says ‘Woops, looks like I made a mistake, terribly sorry about that’, and the judge hands out, at most, a minor wrist slap and a stern warning to ‘Don’t get caught doing that again.’
But if you take the perspective that committing copyright infringement is still against the law, and Cox (or anyone for that matter), isn’t above the law, and when given notice of people breaking the law over and over again ignored it or didn’t comply with the law, that they should be punished based on their actions, then the damages are somewhat light.
Cox wasn’t being told that someone was breaking the law, they were being told that someone was accused of breaking the law, there’s a significant difference. As I noted above, even if the law is read to say that repeat infringers have to be given the boot, accusation does not, and should not, meet that standard. Charge someone with copyright infringement, take it to court, find them guilty, and then take it up with the ISP, before then it’s punishment on accusation, rather than guilt.
And no, $25 million is not even remotely close to being ‘light’, even if the (insanely stupid and excessive) statutory damages allows for even higher amounts. If the labels involved ‘lost’ even a noticeable fraction of that from every single instance of copyright infringement listed in the suit combined, I would be greatly surprised.
Re: Re: Replies to killing access on accusations & copyright math
The utter lack of penalty for sending bogus infringement notices is something the entertainment industry wants to keep exactly the way it is. Likewise, they really want ISPs to not be verifying the notices, but rather just passing them all on and treating them all as legit.
So if this is what they really want, and if the ISPs start to disconnect users en masse based on unverified notices, then great! Let’s spam ISPs with infringement notices, ourselves, and get everyone disconnected. I would love to see the fallout from that.
Re: Replies to killing access on accusations & copyright math
2. The DMCA was passed back in the nineties, and the $160 K seemed an appropriate compensation when a song or a movie was placed on internet FOR THE FIRST TIME. They were meant to reflect the damage a publisher incurred from this first infringement, the damage caused by enabling thousands, even millions of copies. These days, many copies appear on the internet at roughly the same time, and those accused may have shared a handful of copies at best (torrent upload rates are a fraction of download rates, even if someone seeds for a while, it is rare for ratios to reach double, let alone triple digits.). Ever heard of someone being charged $160000 for shoplifting a piece of chewing gum, as punitive damages?
What is worse is the MAFIAAs new (?) approach of double charging: They go after the pirates, the hosters, now ISPs, and want to charge each of them $160 K. That is indeed a lot of money for virtual loss of a few cents profit they may loose if someone downloads a copy without paying.
Re: Re: Replies to killing access on accusations & copyright math
You are aware that statutory damages can only be claimed on a work once?
Re: Re: Re: Replies to killing access on accusations & copyright math
which is why nearly all of the cash collected by trolls is in settlements not court awarded damages.
One can pull in millions over 1 shitty movie, look at how much bank Prenda took in. They pulled in MILLIONS over 1 shitty porn it looks like they made available.
They want to force settlements, get DMCA notices as bills to get small payments that don’t count against the $150K number that they always mention to scare people into paying them guilty or not.
Lets Get Them Back
I want to scour their web pages looking for copy-written material they are unauthorized to use. The plan is that since a corporation counts as a person under law we can get them kicked off the internet.
Man, I just hope a nuke goes off in the good old U.S of A.
It needs some serious cleansing.
If Rightscorp gets its way and ISPs end up having to permanently disconnect users accused of infringement, the backlash against the DMCA as influential people lose access to the Internet will be spectacular.
Corporate law wins.
Why fuss and muss with the legal system when you can just send off a bunch of accusations and cut people off from the internet. No trial needed. No actual evidence needed, just a good faith basis for making the claim.
Of course one has to ask did Rightscorp fuck themselves with this stunt?
If this interpretation of the law stands, who are they going to shake down for $30? One or 2 demand notices will be enough to trigger a gun-shy ISP to terminate accounts. If they aren’t online they can’t be targeted. Will Rightscorp go back to the courts arguing that their “bills” aren’t worth cutting people off the internet, but still should be forwarded in full at the expense of the ISP to keep the model profitable.
While they think that this will stop the piracy, this means much of the back catalog they were trying to collect on will remain unheard and unsold. As more stories of people wrongly thrown off of the internet spread, public view of the clients of Rightscorp will get even worse. See the public can’t boycott Rightscorp, they can boycott the labels.
I do hope that some of the rightsholders who Rightscorp tried collecting for, but lacked the rights to do so, decide to file notices against the ISP serving Rightscorp. Rightscorp admitted to downloading the files to which they did not have the rights, and attempted to collect monies they were not entitled to. Seems like fraud and infringement on the copyrights of others for profit, which is a whole different ball of wax.
If this stands, how many bogus notices will the trolls of the internet need to send to an ISP or provider to knock people offline for the lulz? ISPs aren’t allowed to evaluate if they are legit notices, they just have to jump or face huge lawsuits… so they will jump and are protected against any fall out if it was just done for the lulz.
I guess the one good thing that will happen here is the monopoly and douoply areas will end up with needed competition as the ISPs watch their subscriber numbers plummet.
Indeed, you would think they would at least be going after the actual infringers as well. Here the courts claim they have enough evidence to convict Cox of contributing to something when they won’t attempt to claim it happened at all.
average_joe and Whatever just hate it when due process is enforced.
Half a year later, Rightscorp, Prenda Law, Malibu Media are in the shitter. What’s not in the shitter? This website! Which according to antidirt, Anonymous64, Whatever and their army of changing IP addresses, nobody ever takes seriously.