Sensing Blood In The Water, All Major Labels Sue Cox For 'Ignoring' Their DMCA Notices

from the copyright-trolling-showdown dept

For years, we’ve noted that the major record labels have been drooling over the idea that the DMCA might allow them to force ISPs to kick people entirely off the internet based on mere accusations of piracy. This is problematic for all sorts of reasons (as you might imagine). However, the record labels feared testing this idea in court, because it might not turn out the way they wanted it to. However, as we covered on Techdirt, a few years back, music publisher BMG, with the assistance of copyright trolling operation Rights Corp. went after ISP Cox, claiming that it had failed to kick people off under the DMCA.

That case was an utter mess, not helped at all by the fact that it was handled by Judge Liam O’Grady, who flat out mocked the idea that the internet was important, and made it clear he didn’t see any issue at all with banning people from the internet. Here’s how he responded to an attempt by the EFF to file an amicus brief pointing out the problems with kicking people off the internet:

I read the brief. It adds absolutely nothing helpful at all. It is a combination of describing the horrors that one endures from losing the Internet for any length of time. Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it’s completely hysterical.

The whole case was a complete mess — and it was made worse by some bad choices by Cox, including not really following its own stated DMCA repeat infringer policy. O’Grady’s ruling was bad, and unfortunately the appeals court upheld it. However, at least the Appeals Court made it more or less clear that they weren’t saying every ISP had to kick people off the internet — but rather that Cox lost its DMCA safe harbors by not following its own DMCA policy. While much attention was paid to the claim that Cox’s policy amounted to a “13 strike” policy before you might lose access, the appeals court notes it’s not the number of strikes that matters, so much as whether or not the company follows its own policy — and Cox did not.

Of course, another part that came out during the trial is that Cox was getting so completely bombarded by Rights Corp takedown notices (which doubled as demands for money), that Cox felt it needed to put in place systems to deal with the spam, which included limiting how many notices it would accept each day. Between the ruling in the original BMG case, and the revelations about Cox’s own practices, the RIAA clearly sensed blood in the water, and a chance to prove its point. And, thus, it has a massive lawsuit against Cox. It’s basically all of the major labels using the earlier case as evidence of some grand conspiracy to profit off of piracy.

Cox is one of the largest Internet service providers (?ISPs?) in the country. It markets and sells high-speed Internet services to consumers nationwide. Through the provision of those services, however, Cox also has knowingly contributed to, and reaped substantial profits from, massive copyright infringement committed by thousands of its subscribers, causing great harm to Plaintiffs, their recording artists and songwriters, and others whose livelihoods depend upon the lawful acquisition of music. Cox?s contribution to its subscribers? infringement is both willful and extensive, and renders Cox equally liable. Indeed, for years, Cox deliberately refused to take reasonable measures to curb its customers from using its Internet services to infringe on others? copyrights?even once Cox became aware of particular customers engaging in specific, repeated acts of infringement. Plaintiffs? representatives (as well as others) sent hundreds of thousands of statutory infringement notices to Cox, under penalty of perjury, advising Cox of its subscribers? blatant and systematic use of Cox?s Internet service to illegally download, copy, and distribute Plaintiffs? copyrighted music through BitTorrent and other online file-sharing services. Rather than working with Plaintiffs to curb this massive infringement, Cox unilaterally imposed an arbitrary cap on the number of infringement notices it would accept from copyright holders, thereby willfully blinding itself to any of its subscribers? infringements that exceeded its ?cap.?

Cox also claimed to have implemented a ?thirteen-strike policy? before terminating service of repeat infringers but, in actuality, Cox never permanently terminated any subscribers. Instead, it lobbed ?soft terminations? with virtually automatic reinstatement, or it simply did nothing at all. The reason for this is simple: rather than stop its subscribers? unlawful activity, Cox prioritized its own profits over its legal obligations. Cox?s profits increased dramatically as a result of the massive infringement that it facilitated, yet Cox publicly told copyright holders that it needed to reduce the number of staff it had dedicated to anti-piracy for budget reasons.

Given the mess of how Cox handled DMCA notices and its repeat infringer policy, this case is going to be a tough one for it to fight off. But the actual stakes are huge. The RIAA wants to be able to kick people entirely off the internet based purely on accusations — even if they’re bullshit. We should be very concerned about it.

And to increase the level of concern: this new case has been assigned to… Judge Liam O’Grady. Needless to say we’ll be watching it closely.

Filed Under: , , , , ,
Companies: cox, emi, sony music, universal music, warner music

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Comments on “Sensing Blood In The Water, All Major Labels Sue Cox For 'Ignoring' Their DMCA Notices”

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63 Comments
Ninja (profile) says:

“Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework.”

Because his son needed the internet to fill his tax stuff, to do virtually everything bank and govt related, to manage his medical data, to communicate with his/her colleagues at work, customers, to study etc etc.

Yep, just like his son.

Bergman (profile) says:

Re: Re:

I wonder — would His Dishonor consider an injunction against a person posting handbills on the town bulletin board in the town square to be a prior restraint of free speech?

I suspect not. How on Earth does someone graduate from law school — to say nothing of passing the bar or becoming a judge — without even being aware that the Constitution exists?

Uriel-238 (profile) says:

Re: That's a disturbing coincidence.

I don’t know how judge selection works in Virginia. Does someone pay off someone else in order to choose a judge who’s biased in their favor?

Fortunately, the Dotcom case was such a quagmire that O’grady may never get an opportunity to adjudicate. Appropriate since it was way out of the jurisdiction of Virginia.

Diffy Runt says:

Blood! Cox willingly ran into the buzz-saw!

That they built over course of years, cutting off hunks and dangling them for bait.

Read the filing, kids. With an open mind. I dare you to just this once read actual charges and then try to pooh-pooh.

Cox has ALREADY LOST on major point of DMCA protection because FAILED to act in compliance with informings that they MUST have a plan for and actually take action on.

By the way, that reads EXACTLY like I’d write it up if using my formal style, pointing out that businesses have responsibility and so on. — As I’ve said several times: businesses are NOT persons, NOT free to do as wish without regard to law, which includes ENFORCEMENT. That’s the deal laid out in DMCA, which Cox blatantly and intentionally dodged.

Of course, Masnick’s notion to save his feeble piratey face is that the courts yet again got it all wrong.

Gary (profile) says:

Re: Blood! Cox willingly ran into the buzz-saw!

I’m clearly not understanding your post since you seem to be repeated what Mike wrote, while chastising him (or us?) for not reading it?
COX screwed up their application of their internal process.
How does this relate to them being a (or not being) a person?
Are You a person, or are you a Sovereign Citizen?

Stephen T. Stone (profile) says:

Re:

businesses have responsibility and so on

What responsibility does a business have in regards to filing multiple DMCA claims at a pace that the party receiving those claims cannot answer at a similar pace? What responsibility does a business have in regards to filing false DMCA claims, knowingly or accidentally? What responsibility does a business have in regards to determining if usage of a copyrighted work falls under Fair Use before filing a DMCA claim?

You do a lot of talking about businesses and corporations having responsibilities in answering DMCA claims. Perhaps, then, you can enlighten us as to the responsibilities they have in filing those claims.

Anonymous Coward says:

Re: Re: Blood! Cox willingly ran into the buzz-saw!

If it’s OK to kick someone off the internet due to allegations, then it should be OK to kick corporations off the internet due to a single person’s allegations, shouldn’t it?

So I should be allowed to get Rightscorp kicked off the internet by alleging they repeatedly violated my copyrights, right?

Methinks the issue has nothing to do with kicking people off the internet and everything to do with uneven compulsion by the courts based on the speaker, outside due process.

Anonymous Coward says:

Re: Re: Blood! Cox willingly ran into the buzz-saw!

It is worse than kicking a person off of the Internet, it is kicking the whole household off the Internet because one person has been accused of piracy. The copyright holders are trying to terrorize people into not using the Internet for entertainment, less they be accused of piracy and get kicked off.

Christenson says:

Re: Re: What would a workable repeat infringer policy be???

This is a serious question:
Rightscorp/Prenda spamming DMCAs….
No, you can’t kick even child molesters off the net….nor iOT devices!
If you just turn over names, you’ve allowed a spammer to get names for free…
I think the answer might be a letter:

Dear Subscriber: Your account seems to be ripe for a copyright lawsuit, and this is a serious possiblity.

If there is a lawsuit alleging you are infringing, you will need to respond to a subpoena requesting your details.

In the meantime, we recommend you stop the infringing activity on your account, which includes:
<list>
Measures you might take include:
<list>

The Wanderer (profile) says:

Re: Re:

Got a link to that ruling? It rings a faint bell, but I can’t dredge up any specifics…

I’m interested in the reasoning, because of the possibility that it might line up with a chain of logic I noticed recently based on the First Amendment.

When the First Amendment prohibits restrictions on “the freedom… of the press”, the “press” it refers to is not “people engaged in the business of reporting the news”, but “the means of publication” – which, at the time, meant access to a literal, physical printing press.

Over the course of time, new means of publication have become available, and it is my understanding that jurisprudence has accepted them as being covered by the “freedom of the press” clause of the First Amendment.

In the modern day, the most meaningful and prevalent means of publication – to an even greater extent than the physical printing press ever was – is the Internet.

On that basis, any law prohibiting someone from accessing the Internet would seem to be unconstitutional.

At the very least, that argument could be made in court, with some chance of success – unless it’s already been shot down by existing precedent, of course.

If the ruling you cite is based on similar logic, that would seem to strengthen the position. If it’s not, that would be interesting as well.

DannyB (profile) says:

A Letter from 2020

This might be a good time to point out once again, A Letter from 2020.

I found this about two decades ago, 9/18,2000 on Slashdot. I did not write it. It seems to have disappeared from the intarweb tubes.

Here it is as a previous TechDirt post:

https://www.techdirt.com/articles/20140917/06061528548/only-surviving-recording-very-first-superbowl-is-because-fan-recorded-it-you-cant-see-it-because-copyright.shtml#c545

stephen.hutcheson@gmail.com says:

Re: Re: A Letter from 2020

>old works are supposed to disappear completely to give room for fresh new works in the market.

That’s just sick. Root-of-all-evil ninth-level-infernal. Rabid-mink-in-heat pathological. Chthulhu-adulating soul-sucking nililistic. Ugly and funny-dressing, too.

In the last month I’ve watched performances of “King John” and “Love’s Labour’s Lost”, read translations of the “Iliad” and “Enuma Elish”, sung songs from 16th-century France and 18th-century New England–and they want to suck my culture dry for the sake of money that will perish with them! (May their deaths be as quick as is compatible with a long, painful, socially-abhorrent fatal decline.)

John Smith says:

Re: Re: Re:

The RIAA may have outsmarted itself here. Even without the DMCA, cases involving dance halls playing pirated music were decided in favor of the “host.”

Even without the DMCA, they still have to prove that Cox met a standard they simply do not meet, that even Visa did not meet (and it was put on notice). The underlying notion is that Cox is not able to stop the piracy since there are other ways to reach it.

By flooding Cox with DMCA notices, the RIAA greatly expanded what could be considered a “reasonable” response.

I expect Cox to prevail here.

John Smith says:

Even without the safe harbor, they should still be okay, since they don’t meet the definition of vicarious or contributory infringement, at least as set forth in the cases against Visa (now made irrelevant by Bitcoin).

Cox does not market itself as a piracy ISP. There are much worse actors out there who have escaped liability. While I think these users should be banned, and the ISPs held liable, that is not the law.

James Burkhardt (profile) says:

Re: Re:

The problem at issue (at least in the original case) is that the DMCA requires an ISP to have a repeat infringe policy. Cox was one of the few companies to explicitly state a policy with an explicit sequence of events that would explicitly end in termination of an account. Then they failed to follow that explicit policy, and so were sued as violating the law in regards to having a policy. That case lost in court and on appeal. This lawsuit intends to sue on the same grounds. If you don’t argue that set of facts, and understand the basis of the previous lawsuit, you likely shouldn’t be trying to adjudicate the merits of the case.

Anonymous Coward says:

Sigh, can they ( copyright/’AAs ) get any more repressive? It does not work, never has never will. First there was sneaker net, then IRC and Usenet, BBSs. OMG reel to reel tape recorders, cassette tapes, VHS, DVRs. EVERYTHING is a threat to their outdated business model. Go to the theater and spend a wad of money for some POS movie. Fork over your 1st born for that DVD that may have 1 or 2 decent cuts on it. Of course there are so many titles print/video/music that “aren’t available” any more.

The only reason they are after Cox is…….$$$$$. Big surprise there. They know that even if they get a judgement they will not collect enough to pay for the legal work. Unless someone owns their house or car free and clear there are no assets most people would have worth enough money to attach.

They have a remedy under law. They can go to court and prove their case. They just want Cox and the other ISPs to do their work for them

I am predicting that the next move is going to be a hard effort to ban all VPNs because someone MIGHT be d/l their “owned” property. You may need a letter from your employer to your ISP to justify using a VPN.

tp (profile) says:

Re: Re:

EVERYTHING is a threat to their outdated business model.

Where else would these mansions come from? If these people are busy creating copyrighted works, they need to have enonugh money to buy the mansion with the money that is gathered while selling copyrighted works. If the mansion isn’t appearing after all the hard work, then the rightsowners need to sue the people who they think caused the problem. This includes people who use VHS casettes, DVR’s, pirates who freeload the content without paying for it, IRC, BBS’s, tape recorders.

You have to understand that if people spend their whole life doing something, there must be mansion or two as a result. You cannot declare that some work is less valuable than other works, simply because you don’t like their business model.

Anonymous Coward says:

Re: Re:

The rest of the household can still drive, assuming that they have licenses, whereas if the Internet is cut off, the rest of the household suffers. Beside they accuse the account holder, while the infringer may have been a friend of one of their children, and the household still ends up without the Internet.

Anonymous Coward says:

Re: Re:

The internet has become a utility – the sooner you admit it the better you will feel.

Your motor vehicle is not a utility – Duh.

The internet is not the same as your motor vehicle – this should be obvious.

Users should not be required to have a license in order to “operate” the internet. (snicker) Just like you do not need an ID to purchase groceries, you do not need an ID to use the internet.

Get real

Anonymous Coward says:

Re: Re: Re:

you do not need an ID to use the internet.

Oh, but you’re going to need an ID Soon(TM).

That’s the easiest way to track everyone, disenfranchise people that the powers that be dislike, and charge you rent for everything forever. You can bet that real ID will be impelemented, and made mandatory. It’s the simple solution to controlling ~95% of the population. The remaining ~5% are much more manageable when you can accuse them of felonous internet security tampering, and the other ~95% lose interest in their case.

Get real

You’re the delusional one for believing that the general public is going to care enough about this issue to stop it. As long as they can access Facebook and watch Youtube, they won’t lift a finger. Which is why those sites will be the last ones they choke to death.

That One Guy (profile) says:

Re: Re:

If you want to keep your internet, don’t steal stuff. It’s really not that hard.

So maybe you should stop doing it then. I mean clearly you’ve been engaged in massive copyright infringement, and as such it’s only a matter of time until you yourself are rightly cut off from the internet and all that that entails, so perhaps you shouldn’t advocate for a policy that stands to hurt you?

Now I know what you might say, ‘I’m not engaged in any copyright infringement!’, to which my response is ‘Too bad, if accusation equals guilt is the standard you are willing to accept, then mere accusation is enough to kick you off for what you are clearly doing.’

The parasites are not demanding that actual infringers be given the boot because they almost never get to that point, they are demanding that accused infringers lose access, and if that is seen as acceptable to you that says a lot more about you and what you considered acceptable collateral damage in the ‘war’ to ‘protect copyright’ than it does any accused infringer.

That One Guy (profile) says:

"Tell you what..."

I suspect there would be a deafening silence if an ISP told them they’d be happy to consider kicking people off of their service if the labels can provide court rulings establishing guilt of the alleged infringer. You know, evidence of guilt rather than merely accusation.

(Well, deafening silence as far as what was presented to the ISP, the labels would undoubtedly run to their pet legislators to whine about how unreasonable the ISP was being, demanding evidence of guilt rather than just taking their word as fact.)

If they actually had to do some work themselves rather than just flinging accusations with the accuracy of a drunk coke-fiend it would likely be a lot less fun for them, and as such not something they’d be terribly interested in.

tp (profile) says:

Re: "Tell you what..."

You know, evidence of guilt rather than merely accusation.

If gathering proper evidence takes half year per customer, and cox has 2 million customers, the operation is going to take half year * 2 million, which is 1 million years of hard work. Since you can’t expect cox customers to gather the evidence, how are you planning to do the actual work for the operation you propose?

That Anonymous Coward (profile) says:

Perhaps it is time to stop pretending that age gives wisdom.
He doesn’t understand the internet, refuses to learn, and this should preclude him from ruling in cases about it.

Imagine what would happen if Judges who heard cases about police brutality had themselves been on the receiving end of their gentle ministrations & flat out lying on reports & in testimony.

Jono793 (profile) says:

It's worth pointing out:

…Cox really didn’t help itself in this case.

The “thirteen strike” policy was a rule on paper only, as pointed out by the article.

But in addition to that, the appeal court pointed out that Cox wasn’t processing __Any__ of the notices that Rights Corp sent to it. They apparently took umbrage with the wording of the notices (which included “settlement agreements”). Rights Corp continued to send them unaltered. So Cox started filing all their notices straight to the recycling bin!

I might have issues with a lawyer. But if I get a valid legal notice from said lawyer, and decided to ignore it because they’re an asshole, or they don’t wash, I shouldn’t be surprised if the court to takes a dim view.

That One Guy (profile) says:

Re: 'Fetch me the atomic microscope, I need the violin!'

They apparently took umbrage with the wording of the notices (which included "settlement agreements"). Rights Corp continued to send them unaltered. So Cox started filing all their notices straight to the recycling bin!

So Cox refused to be complicit in a good old extor- I mean ‘copyright enforcement’ system run by parasitic liars with a history involving a novel interpretation of the first amendment and a willingness to lie in the ‘settlement offers’ they send out?

I’m sorry, what part of that was Cox supposed to be blamed rather than praised for?

Christenson says:

Re: It's worth pointing out:

Starts auto-generating “legal” infringement notices at almost no cost to me…from my hacked Techdirt logs, the expensive part!

Now Cox is supposed to respond to every one of them??? At what cost to them???

The part cox screwed up is not thinking through what to write in their policy for when the facts aren’t clear and the sources are SPAM, or to adapt the written policy when their actions got out of synch with it. Classic, normal corporate behavior.

The policy should have demanded that a lawsuit actually be filed before they lifted a finger. (Well, they could have forwarded a form letter they wrote with the SPAM filings). And they should have demanded a settlement that included termination before they did any termination.

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