Recognizing It Had No Chance, Cox Settles BMG Copyright Trolling Case

from the and-onward dept

The long saga of the BMG v. Cox case is now over. If you don’t recall, BMG had hired the copyright trolling outfit Rightscorp to bombard ISPs with shakedown letters, based on accusations of copyright infringement. Rightscorp really wanted ISPs to pass those letters on to ISP subscribers, including the part where they demand money to leave you alone. As was revealed during the case, Rightscorp would blatantly lie to those subscribers, telling them that if they were innocent they needed to first hand their computers over the police for a forensic search. Cox, after being bombarded with these shakedown letters, started ignoring the Rightscorp letters, leading BMG to sue.

Cox pointed to the DMCA safe harbors to protect itself, but the judge, Liam O’Grady, made it pretty clear that he didn’t care much for the internet at all, and didn’t seem to mind Righscorp and BMG shaking down people for money with the threat of losing their entire internet access. Of course, it did not help at all that Cox itself had some damning emails about how they treated subscribers accused of infringement. While plenty of attention has been placed on Cox’s apparent “thirteen strikes” policy for those accused (not convicted) of copyright infringement, the real problem came down to the fact that Cox didn’t follow its own repeat infringer policy. So, in the end, Cox lost to BMG in the lower court and it was mostly upheld on appeal.

However, the case was sent back down to the lower court because O’Grady messed up with his jury instructions, providing them with the wrong standard for contributory infringement (O’Grady’s jury instructions about contributory infringement presented it as a much broader standard than it actually was). And thus, the case was supposed to go back for another trial… but that’s now over as the two sides have settled and Judge O’Grady immediately signed off on the settlement.

This isn’t all that surprising. Cox was basically in a no-win situation, since its own failure to abide by its own repeat infringer policy had already sunk it, and spending a few hundred thousand dollars more on lawyers to argue over contributory infringement in hopes of lowering the damages award probably wasn’t worth it if they could just settle the case and move on.

Oh, and of course, Cox now also has a brand new fight with all the major labels that was launched a few weeks ago in response to the results of the BMG case. And Cox is right back in Judge O’Grady’s unwelcome court room for that case. I wouldn’t be surprised if Cox tries to settle its way out of that case as well.

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Companies: bmg, cox, rightscorp

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Comments on “Recognizing It Had No Chance, Cox Settles BMG Copyright Trolling Case”

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78 Comments
Anonymous Coward says:

There is a lesson here that is beyond IP

If you happen to find yourself working at a company and have any input on policy creation or modification, if you say your company is going to do something in an official policy… you have to actually do it. So many companies I have worked for, worked with or audited are quick to adopt a policy because it sounds good or makes sense but do not actually enforce the policy. You will get bit eventually 😉

That One Guy (profile) says:

Re: Re: Re:2 There is a lesson here that is beyond IP

It’s not too difficult once you know the coding and how to get it to work, mostly just a matter of memorizing which tags do what. For a link, make sure to check the ‘Use markdown…’ option below the text box, and then simply use the following:

[name of article or other description goes here](Address goes here).

And if you ever want to make use of the various formatting options like links, italics or whatnot, I find this page pretty useful.

Christenson says:

Re: Re: Re:2 There is a lesson here that is beyond IP

https://www.digitalmusicnews.com/2018/08/24/bmg-settlement-cox-communications/

Word in this article is that with judge allowing conflation of “infringement” with “stealing”, a loss for Cox was written on the wall, and the settlement might be “go away” money. (Lawsuits are plenty distracting, cost those involved way more than just what the lawyers get)

https://www.digitalmusicnews.com/2018/08/24/supreme-court-review-dmca-porn/

Ventura got no damages in court because the site where it’s porn was being uploaded complied with DMCA takedown notices. Ventura feels that the site was deliberately and willfully infringing it’s material, did not act until it received the takedown notices, and therefore should have to pay damages.

My opinion:
Cox folding is a strategic decision to move out of a no-win forum, Ventura did not change the calculus. Ventura’s case will be denied review or lose and be told to petition the congress for redress. Possibly Ventura will be remanded, required to make a strong showing that the infringing site was indeed playing “chicken” with the DMCA to avoid being like sci-hub.

That One Guy (profile) says:

Re: Re: Re:3 There is a lesson here that is beyond IP

Ventura feels that the site was deliberately and willfully infringing it’s material

If they can prove that the ones who ran the site uploaded, or actively encouraged the uploading of said material, then I’m pretty sure that the DMCA would not in any way shield them, much like 230 protections don’t shield a site from actions those running the site do themselves. If they can’t prove that and merely accuse the site of doing so then that assertion is likely to fall flat on it’s face as unsupported.

did not act until it received the takedown notices

Which they are not required to do, so that strikes me as a complaint not that they violated the law, but rather that the law itself isn’t what they wanted it to be or think it is.

and therefore should have to pay damages.

Yeah, unless they manage to get a judge like Grady who’s not a fan of that new-fangled ‘internet’ thing, guessing that’s not going to go over so well for them.

Christenson says:

Re: Re: Re:4 There is a lesson here that is beyond IP

TOG, agreed. It feels like Ventura and Digital Music News has RIAA/MPAA support. Ventura’s reaction feels, well, childish. CDA230 is entirely constitutional in the sense that it implements the part where the congress may give authors and inventors exclusive rights for limited periods. That also implies that copyright could be abolished by the congress.

Due process and the first amendment and perjury problems are different matters, they should have taken them up with Lenz.

Christenson says:

Re: So what does this mean?

If money didn’t change hands, then it sounds like a hatchet got buried…because what’s about to go down is actually very shady and might not be very ethical. MPAA doesn’t need the huge public relations loss. Cox doesn’t need to fight a protracted battle any longer, and doesn’t want to be seen betraying its customers. The legal landscape will probably clarify with the very similar Grande Communications lawsuit.

In my reading of the tea leaves, Cox agreed to a new “repeat infringer” policy, and they agreed to follow it. I think the names of some of their more prolific file sharers will find their way to Rightscorp as part of it.

Christenson says:

Re: Re: So what does this mean?

On further thought, there’s a strong public interest in finding out what the stipulation was — there’s been several articles about it and I’m sure there’s quite a bit of interest from some related cases.

So, with a little bit of luck, one of Mike Masnick’s friends will pry the actual stipulation out of the court with a motion.

That One Guy (profile) says:

Re: Re: "We wrote up a new policy, but I guarantee you won't like it."

In my reading of the tea leaves, Cox agreed to a new "repeat infringer" policy, and they agreed to follow it. I think the names of some of their more prolific file sharers will find their way to Rightscorp as part of it.

It seems to me COX or any other company has an easy way to turn this ‘loss’ into a ‘win’ and stick it to Rightscorp and the other parasites at the same time.

"In order to comply with the settlement terms we will be implementing and making use of a ‘repeat infringer’ policy for our customers. It is important to note at this point that it will be a ‘repeat infringer‘ policy, not a ‘repeatedly accused of being an infringer’ policy. As such accusations against our customers will not be considered sufficient to trigger the penalties of this policy, and only a legal finding of guilt will be sufficient to trigger it."

Do that and the ‘win’ the parasites scored would turn to ashes over night, and you’d have the entertainment of watching them flail about and try (yet again) to claim that accusation is equivalent to guilt when it comes to copyright violations.

That One Guy (profile) says:

Re: Re: Re:2 "We wrote up a new policy, but I guarantee you won't like it."

"Hey, we said we’d set up a limit where our customers could be kicked off after a certain number of reports, we didn’t say it would be a low number. Just because we may have to set up the system doesn’t mean we have to make it easy for you to use against the people paying us for service, something they can’t do after being kicked off."

John Smith says:

This was a correct ruling. ISPs can “control the infringing activity” and that’s the standard for contributory or vicarious infringement. Oddly, though, Visa beat Peffect 10 when a California judge ruled that payment processors were not material to infringement of pictures since they could have been sold elsewhere. Google has also ducked liability since its search engine has noninfringing uses and since they don’t “controL’ the infringement.

A webhost or ISP, however, has clear control and the files pass through their pipes.

As I’ve noted previously, a better option would be to treat it as an ASCAP violation and limite the damages to ASCAP fees.

Bruce C. says:

Re: "A webhost or ISP, however, has clear control..."

“A webhost or ISP, however, has clear control and the files pass through their pipes.”

Yes, but is it desirable to allow the ISPs to block traffic based on content? Among other things, this is a back-door to circumvent net neutrality in places where that law still applies. AT&T, Comcast etc. blocking competitive streaming sites based on “content” concerns when they really want to drive traffic to their partners/subsidiaries is totally plausible in my mind.

John Smitn says:

Re: Re: "A webhost or ISP, however, has clear control..."

Illegal traffic should be blocked. Same for defamation and death threats. Piracy harms copyright holders, many of whom are individuals.

The threshold for liability is actually quite high: an ISP would have to first be put on notice before they would be liable.

They have to monitor and stop child porn as well, and seem to do fine. Same for the major UGC sites, which manage to prevent it from being on their systems as well.

Anonymous Coward says:

Re: Re: Re: "A webhost or ISP, however, has clear control..."

And who gets to decide it’s illegal? Are you going to trust the judgment of the ISP? Are you going to let the ISP deep packet inspect all your communications? Are you then going to let the government go on a fishing expedition using all the stored communication from your ISP after they claim the 3rd party doctrine holds?

As for monitoring and stopping child porn that burden is not on the ISP who like to act as dumb pipes when it benefits them and more on the edge providers (UGC) who store the data.

Stephen T. Stone (profile) says:

Re: Re: Re:

Illegal traffic should be blocked.

Say you go to YouTube and watch a clip of a movie that, unbeknownst to you, was not uploaded by an authorized party. That would technically be copyright infringement—after all, you would have technically downloaded a copy of the infringing video into your computer’s memory. What do you think should happen to you for committing that single act of copyright infringement, even if it were wholly accidental?

I could likely think of other ways people unwittingly breach copyright every day (such as looking at pics on/uploading pics to imageboards), though I figure the hypothetical above is good enough for this thought experiment.

Christenson says:

Re: Re: Re:2 Re:

Mr Stone:
You are way too lenient with Mr Smith. By the mere loading of techdirt’s web page, he’s got an illegal copy of your copyrighted post and mine. Should I sue?

And by the way, your hypothetical happened to me: Guy posted a link to a book..so I downloaded. Then I perused it, found out it was (C), deleted it, and reported the guy. The platform banned him.

Dewey Process says:

So I was right about dat. And WHO was not?

You can read my accurate and censored (boy is that redundant here!) comment where I predicted Cox would LOSE entirely, as clearly their lawyers decided:

https://www.techdirt.com/articles/20180802/17420540355/sensing-blood-water-all-major-labels-sue-cox-ignoring-their-dmca-notices.shtml#c66

Now, from my position of victory (except for lack of precedent), I condescend to clarify points that you KIDS clearly don’t grasp:

1) Corporations are NOT persons. They are SUBJECT to corporatized procedures. This is relevant because:

2) DMCA is a DEAL: companies get "safe harbor" provisions ONLY IF FOLLOW SPECIFIED PROCEDURE TO ENFORCE THE RIGHTS of both "natural" and corporate persons. Cox did not, deliberately, over long period.

3) This is ADMINISTRATIVE LAW. — But is not contradictory for me to agree with it: This I support because simplifies the mass enforcement of an actual Constitutional Right of controlling copies.

4) Corporations running ISPs are required to accept the (mere but doubtless true given level of piracy) statements of other corporations.

The sum is: Copyright holders are NOT required to go through full criminal level court process. This is the STREAMLINED process that can and will deal with your mass infringement, now nearly nailed down.

Killercool (profile) says:

Re: So I was right about dat. And WHO was not?

The people you are cheering for are corporations. The sheer idiocy and hypocrisy of you cheering for a "win" given to one, then saying in your next breath that "ALL CORPORATIONS are EEEE-VIL" makes everyone bored enough to read your tripe dismiss any valid argument you would ever have.

Reported as troll.

Dewey Process says:

OH, and Mansick as usual both wrong and futile.

Heh, heh.

But there’s yet WORSE in store for you, kids!

When EVIL — and I FULLY MEAN that even though agree with the administrative process above: corporations are ALL inherently EVIL and must be closely watched, even your precious GOOGLE — which is what I try to WARN YOU of — and Masnick does NOT! Anyhoo, when EVIL corporations begin using GOOGLE’s tracking of and identifying of you pirates (with javascript browser fingerprints, recaptcha, and other "services"), combined with ISP level help, then be glad if ONLY have your ISP cut off, instead of first billed, then prosecuted if don’t pay up.

THIS is Teh Internets working as intended. — That’s why DMCA has those provisions!

But all you have to do to go free is keep your filthy piratey paws off other people’s property! — Is that too difficult for you? — I’ll just HOOT as you’re billed for five or six or seven figures.


Now, kids: continue to refuse to understand plain law, and especially censor away my accurate comments in your tiny little netwit fury, because that’s True Techdirt!

Stephen T. Stone (profile) says:

Re:

Why are you like this? Why are you so adamant about proving this one man wrong that you will wage a years-long personal bitchfest comment war on his blog? Why are you so confrontational when you could easily tone back the aggressive bullshit and get an actual discussion going? Why do you act like Mike is literally trying to kill you and you have to puff out your chest to assert dominance?

…are you an incel, Blueballs?

Anonymous Coward says:

Re: Re: OH, and Mansick as usual both wrong and futile.

Why are you like this?

You mean accurate, honest, well enough versed in law, against theft even of intellectual content, against a frat boy weenie who’s rarely right, and who supports mega-corporations against The Public?

Too difficutl for you to see? Hmm.

Stephen T. Stone (profile) says:

Re: Re: Re:

You mean

…insulting, aggressive, aggrieved, arrogant, and infinitely angry because of a comment from years ago to the point where you try to play the victim of “censorship” even though all your flagged posts can be read with a simple mouse-click? Yes, I do mean that. Even pro wrestlers don’t hold grudges as long as you have, child.

Dewey Process 3 says:

Re: Re: Re:2 OH, and Mansick as usual both wrong and futile.

(BMG is a corporation)

Yes, if you’ll read mine, I included that fact in stating that the DMCA process protest the copyrights of both "natural" persons AND corporations. — I don’t really LIKE the latter as "persons", but it’s a semi-useful FICTION. Corporations USED TO BE acceptable before let run wild, what I’m saying. Get ’em back into CAGES.

Thank you, though, for at least on-topic.

Stephen T. Stone (profile) says:

Re: Re: Re:3

I don’t really LIKE the latter as "persons", but it’s a semi-useful FICTION.

So you dislike the idea of corporations as “persons” until a corporation—a thing you explicitly say you dislike—manages to prove you “right” in some way, then they’re “semi-useful”? And you call us hypocrites…

"natural" persons

Are you the person or the individual known as Out of the Blue? (Also, bad choice of usernames. Seriously, a Debbie Gibson song? You should’ve at least used something from New Kids on the Block.)

Dewey Process 3 says:

Re: Re: Re:4 OH, and Mansick as usual both wrong and futile.

So you dislike the idea of corporations as “persons” until a corporation—a thing you explicitly say you dislike—manages to prove you “right” in some way, then they’re “semi-useful”? And you call us hypocrites…

You have as usual paraphrased what I wrote, to twist it into an attack.

My answer is up there, needs no more.

Dewey Process 3 says:

Re: Re: AND I WAS CENSORED AFTER ONLY TWENTY MINUTES!

AND that one too was blocked within a minute!

By the way, kids, I’m nailing down in every way that it’s **viewpoint discrimination*, not an alleged community finding my comments so outre and outside of common law that require a warning. All your actions are useful to my case. Legislation is in the works.

Anonymous Coward says:

Re: Re: Re:2 AND I WAS CENSORED AFTER ONLY TWENTY MINUTES!

U mad, bro? Sue me for flagging your shit, then.

You’re the worst troll here, and that’s an
accomplishment.

You are of course off-topic, without substance.

I’m just complaining of unfairness from the site,
and that’s American as apple pie.

Dewey Process 3 says:

It's too much to ask here at "free speech" Techdirt, for my text

to be seen. They can’t stand it.

Real tough guys.

The site won’t state any details about how many alleged clicks are required, out of how many readers, cause that’d totally expose that it’s maybe one fanboy and okayed by Administrator (who may be same person). They can’t just ignore, are apparently compelled by nerd rage to clutter the site with responses.

So the site deprives potential readers who’d be no more troubled than to glance over and if don’t like my opinion, to hit "page down" and go on.

And then the site wonders why loses readers! It’s not ME, kids, it’s YOU. Just leave my comments visible, and IGNORE.

In Aug-Sep of last year, I had you argued to that for a while, which proved that it IS administrator action.

Anonymous Coward says:

Re: Re: It's too much to ask here at "free speech" Techdirt, for my text

Which sites publish their anti-spam techniques for spammers to read?

I don’t know! But what’s that got to do with a site that advertises "comment is open to all", talks up "free speech", claims way is to answer with MORE speech, provides HTML form so that public can comment, and then censors viewpoints? — That’s what I complain of, and it’s FRAUD.

YOU are committing another sort of fraud in mis-casting my comments as spam. LIAR.

Stephen T. Stone (profile) says:

Re: Re: Re:

I don’t know!

Then quit acting like an expert when you are no better than the homeless guy who lives in a van down by the river.

YOU are committing another sort of fraud in mis-casting my comments as spam.

Have me arrested and sue me for flagging your shit, Blue Light Special. Go on. You want to talk like you’re some badass who knows everything and can do anything to us, so go call the cops on me and file a lawsuit against me. Go on, I dare you. I double dare you. I TRIPLE DOG DARE YOU.

Dewey Process 3 says:

Re: Re: Re:2 It's too much to ask here at "free speech" Techdirt,

The diverting question was one of mechanically listing sites, not expertise, to which I honestly answer:

I don’t know!

And then you attack with yet another topic:

Then quit acting like an expert when you are no better than the homeless guy who lives in a van down by the river.

Then do one of your characteristic berserker
attacks:

Have me arrested and sue me for flagging your shit, Blue Light Special.

I’m just stating my opinions, kid. The site is hampering me against its stated principles. That’s FRAUD.

YOU are just a netwit doing EASY ad hom. YOU are the one needs to tone down.

I DO TRY! In my feeble way to express my views. Give me credit for trying.

Stephen T. Stone (profile) says:

Re: Re: Re:3

The site is hampering me against its stated principles.

Then go find a platform that will not “hamper you” and whine about how evil Mike Masnick is killing you softly with his flags (killing you softly with his flags, ruining your whole life with his words, killing you softly…with his flags) over there so the rest of us can comment on articles in relative peace.

YOU are just a netwit doing EASY ad hom.

I consider it a challenge to find new ways of insulting you that do not involve something as base as yo’ momma jokes. That you make this hobby easier for me by being the loudmouth asshole that you are is not lost on me, and for that, you have my appreciation.

I DO TRY! In my feeble way to express my views. Give me credit for trying.

I will give you credit for continuing to hold this grudge against a guy you have likely never even seen in real life, much less met face-to-face, for years after the original “offense”. I will give you credit for repeatedly acting like a victim because the commenter community here is tired of your bullshit. (And if they are tired of mine, they are welcomed and encouraged to plant the red flag in my metaphorical ass.) I will even give you credit for the persistence in thinking you know everything about the law because you are a SovCit. (Hint: You know nothing, Blue Snow.)

I will not, however, give you credit for expressing views that boil down to “Techdirt is wrong and I’m right, so Mike needs to get on his knees and blow me for being a genius demigod”. For doing that, you get flagged. If you want to be treated better, treat us better than you treat yourself—and you obviously treat yourself pretty poorly, given how your continued presence here comes off like a desperate form of self-harm.

Anonymous Coward says:

Re: Re: Re:4 It's too much to ask here at "free speech" Techdirt,

I will not, however, give you credit for expressing views that boil down to “Techdirt is wrong and I’m right, so Mike needs to get on his knees and blow me for being a genius demigod”.

You simply but obliquely state that no one can "disagree" by actually disagreeing. In your view, one must agree with Masnick, then carp a bit around the edges, typos and such.

That’s not discussion, kid. I get a say. All you need do is hit "page down", and then say what you want, ON-TOPIC.

Now, the TOPIC is COX versus RIAA. You’ve done nothing but rant off-topic. Thank you for proving me right there too about you.

Dewey Process 3 says:

Re: Re: Re:2 I It's too much to ask here at "free speech" Tec

Flagging your comments is speech, it is other saying that you speech is trollish.

To be answered with MORE speech, not the site by SNEAKY censoring. (I’m always within common law.)

>So avoiding being flagged is your problem to solve,

Yes, I HAD IT SOLVED AFTER LONG EFFORTS last Aug-Sep. That proves an Administrator has final control. That it’s “the community” is a LIE. I’m protesting LIES.

> by making the way you put you point across more acceptable to people, and not by demanding that people listen

Nah, it’s **viewpoint discrimination by Techdirt. I’ve been at this for YEARS! Literally thousands of my comments censored. Doesn’t matter how, it’s WHAT.

Notice that Techdirt never officially responds to serious accusations, doesn’t want to give me any more evidence. — Let alone prove me right. LACK OF RESPONSE is simply one more indication of bad faith from Techdirt.

Dewey Process 3 says:

Re: Re: Re:3 I It's too much to ask here at "free speech" Tec

By the way, I note that as usual when I dig in and stay on the site, that my comments are NOT so quickly hidden. I usually make my one comment and leave the topic, not even reviewed.

That to me is more evidence that an Administrator makes a decision, as for sure the fanboys aren’t NOW less upset, and I don’t see my recent censored.

Anonymous Coward says:

Re: Re: Re: It's too much to ask here at "free speech" Techdirt, for my text

As always, your conspiracy makes absolutely no sense.

There is no secret administrator cabal trying to silence your inane screeds by hiding your comments behind a single click.

I’ll give you a hint. Administrators could simply delete your comments outright, or edit them into nothingness, or shadowban you, or any number of other actions (blocking you would be a wonderful start, for example).

That One Guy (profile) says:

Re: Re: Re:2 'Biting the hand that clears your comments.'

What makes the paranoid conspiracy they’ve cooked up extra funny is that if the admins of the site really did have it out for them then any comments of their’s caught in the spam filter would be deleted, not cleared.

They are accusing the people that allow their comments to be posted of silencing them, such that if they were right then they actually would have their comments blocked from being posted rather than just hidden by the community.

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