RIAA Continues Its Legal War To Turn ISPs Into The Copyright Police: Sues Charter Communications

from the stepping-on-up dept

The RIAA’s war to force internet access providers to become copyright cops has continued to move forward. The RIAA planned this strategy out years ago, in the wake of losing the SOPA fight. Back in 2012 we wrote about an internal plan to try to convince courts that Section 512(i) of the DMCA actually mean that ISPs had to completely kick users off the internet based solely on accusations of infringement. The end goal here is, as always with the RIAA, to get everyone else to try to police the internet.

Part of the issue here is the incredibly inartful drafting of the DMCA, that has lead to multiple lawsuits over how conflicting aspects of the law should be interpreted. The results over the last decade or so of cases tend to have the courts simply deciding in favor of the more sympathetic party, rather than with any consistency as to the law itself. So, in the Viacom/YouTube case, the court required “actual knowledge” rather than the “general knowledge” that Viacom sought. Yet, in the IsoHunt case (unsympathetic defendant), the court found “red flag” knowledge to be enough. In the first case testing the RIAA’s theories on 512(i) and ISPs, against Cox, the RIAA won, but mainly due to Cox’s own bad behavior (specifically: internal employees mocked and did not follow the company’s own repeat infringer policy).

In the second case testing this theory, against Grande Communications, as was widely expected given an earlier magistrate judge’s opinion, the court has said that Grande does not qualify for the DMCA’s safe harbors, and therefore may be liable for infringement on its network. Once again, as with Cox, Grande’s own actions appeared to doom its argument for safe harbors. The company admitted that it didn’t actually have a repeat infringer policy. It had a stated one, but no effort was made to follow it internally — and since 512(i) requires a “reasonably implemented” policy, the lack of any plan to implement it means… no safe harbors. As we noted when the magistrate judge recommended this finding, this does not mean that Grande automatically loses the case. The RIAA still will need to prove contributory infringement on the part of Grande, which might not be that easy since it will have to show that Grande actively induced people to infringe (as per the Supreme Court’s standard in the Grokster case).

Either way, the RIAA is not waiting around and has moved on to an even bigger target: It is now suing Charter Communications on the same basic theory concerning 512(i). The record labels make some fairly bold claims about Charter in the case:

Charter 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, Charter 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. Charter?s contribution to its subscribers? infringement is both willful and extensive, and renders Charter equally liable. Indeed, for years, Charter deliberately refused to take reasonable measures to curb customers from using its Internet services to infringe on others? copyrights, including Plaintiffs? copyrights?even after Charter 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 Charter, under penalty of perjury. Those notices advised Charter of its subscribers? blatant and systematic use of Charter?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, Charter did nothing, choosing to prioritize its own profits over its legal obligations.

You may notice a key problem here — as we’ve pointed out in other cases. The RIAA seems to think that mere accusations of infringement are proof of infringement, and thus should lead to people being disconnected from the internet. The RIAA also makes a real stretch of the requirement under the law for a “direct financial benefit” by claiming the following:

Charter has derived an obvious and direct financial benefit from its customers? infringement. The unlimited ability to download and distribute Plaintiffs? works through Charter?s service has served as a draw for Charter to attract, retain, and charge higher fees to subscribers. By failing to terminate the accounts of specific recidivist infringers known to Charter, Charter obtained a direct financial benefit from its subscribers? continuing infringing activity.

But that’s not how the “direct financial benefit” aspect works. The point of “financial benefit” in the DMCA is meant to apply to those services that get a financial benefit from the infringement itself and not just the general providing of services. Otherwise, that term is meaningless within the law — which is exactly how the RIAA would like it to be.

Incredibly, the key bit of “evidence” that the RIAA puts forth to prove that Charter’s behavior is so bad… is (and I kid you not), the fact that it advertises high speed internet. Really. In explaining why Colorado is the proper venue for the lawsuit, it focuses on the fact that Charter advertises high speed broadband there, and suggests that the only possible reason why anyone could want high speed internet access is infringement.

Moreover, Charter has engaged in substantial activities purposefully directed at Colorado from which Plaintiffs? claims arise, including providing Internet service to Colorado subscribers who used Charter?s network to directly and repeatedly infringe Plaintiffs? copyrights; continuing to provide Internet service to, and failing to suspend or terminate the accounts of, Colorado customers, even after receiving multiple notices of their infringing activity; advertising its high-speed Internet services in Colorado to serve as a draw for subscribers who sought faster download speeds to facilitate their direct and repeated infringements…

This ignores that there are tons of other reasons why people want high speed broadband including, you know, to access licensed services for content such as Netflix and Spotify. But, hey, the complaint chooses to ignore all that and insist it must be because of infringement.

Who knows how this particular lawsuit will go. As with Cox and Grande, much may depend on Charter’s internal policies and processes. However, so much of the complaint is utter bullshit. It again shows how the RIAA thinks the only reason people want to go online is to consume its content.

Of course, there’s a larger issue that may come up eventually. In 2017 in the Packingham case, the Supreme Court rejected a law that would kick people off the internet, saying being completely barred from the internet is unconstitutional. If the RIAA succeeds in forcing ISPs to kick people off the internet — without any judicial due process — then the Supreme Court may need to step in and point out that 512(i) itself is similarly unconstitutional. The RIAA’s greedy, unrealistic interpretation of the law could eventually backfire badly.

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Companies: charter communications, riaa

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Comments on “RIAA Continues Its Legal War To Turn ISPs Into The Copyright Police: Sues Charter Communications”

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148 Comments
Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"No thanks, I’d prefer to help save it. Why? Because I’m one of the idiots who lives in the world!"

Well, that’s nice and all, but there comes a time when it’s just time to shut off the life support. The smell is usually a giveaway.

I used to think Jeffersson was pretty radical with his "The tree of liberty must be liberally watered with the blood of freedom fighters and tyrants". Sadly he may have been correct. As a society we have just about forgotten WHY human rights and basic requirements in law are necessities and we will only be reminded of that after the next time we have to get out from underneath the heel of some mad tyrant.

Scary Devil Monastery (profile) says:

Re: Too fast

"The want to go back to pressing records again! (And punching piano rolls.)"

Hmmm.

https://arstechnica.com/tech-policy/2009/10/100-years-of-big-content-fearing-technologyin-its-own-words/

https://falkvinge.net/2012/01/27/the-copyright-industry-a-century-of-deceit/

Nope. The self-playing piano and the gramophone both are abominations unto the copyright industry. It has to be live music or nothing.

Rocky says:

Speed...

Incredibly, the key bit of "evidence" that the RIAA puts forth to prove that Charter’s behavior is so bad… is (and I kid you not), the fact that it advertises high speed internet.

In other news, GM is being sued by the DEA because their cars can exceed the speed limit which facilitates drug-runners to transport drugs faster. /s

Anonymous Coward says:

Re: Re: Speed...

Except GM cannot remotely control the speed of its cars…um, they can’t right?

They can. It’s called OnStar, it has a feature called "stolen car slowdown", it’s connected to CAN bus, and it’s not optional (well, last I heard there’s a fuse you can pull, but officially it’s not optional). And they can control our GM cars, not just their cars.

Anonymous Coward says:

"Back in 2012 we wrote about an internal plan to try to convince courts that Section 512(i) of the DMCA actually mean that ISPs had to completely kick users off the internet based solely on accusations of infringement. "

Wrong: you mean UNCONTESTED accusations of infringement. The DMCA has a very simple counter-notification process as long as the user is willing to waive service of process in the resulting lawsuit, and identify themselves. Pirates, of course, won’t do this because they’ll wind up sued, so they don’t contest the notices, and that is why they should be "kicked off." Anyone willing to stand their ground can file a counter-notification and the content will be returned UNLESS they wind up sued. How difficult is this to understand?

The question of direct financial benefit has also, so far, been ruled in favor of the ISPs and other intermediaries, as in the Perfect 10 cases, so that’s a tough sell. Not as tough is the question of vicarious or contributory infringement, since the ISP has the power to disconnect the users. Pre-internet precedent favors the Plaintiffs but the internet rulings have been split.

If it is unconstitutional to kick someone off the internet, perhaps they’d prefer five years in Club Fed? As it is they can be sued into oblivion and not even be able to bankrupt the judgment. Would they prefer that?

The DMCA is a good alternative to the draconian penalties these users would otherwise face. ISPs can and should be held liable for contributory infringement if they refuse to put a stop to the piracy. Also, kicking someone off an ISP is not kicking them off the internet entirely. Someone can go to the public library or a shop with wifi if they really need access.

The best option is to stop stealing content, of course, but the pirates are digging in. So will the rightsholders.

Thad (profile) says:

Re: Re:

Wrong: you mean UNCONTESTED accusations of infringement. The DMCA has a very simple counter-notification process as long as the user is willing to waive service of process in the resulting lawsuit, and identify themselves. Pirates, of course, won’t do this because they’ll wind up sued, so they don’t contest the notices, and that is why they should be "kicked off." Anyone willing to stand their ground can file a counter-notification and the content will be returned UNLESS they wind up sued. How difficult is this to understand?

Another day, another troll insisting that the innocent have nothing to hide, under the byline "Anonymous Coward".

Well, probably not another troll; probably the same one as all the other times.

Anonymous Coward says:

Re: Re: Re: Re:

https://help.github.com/en/articles/guide-to-submitting-a-dmca-counter-notice

Include the following statement: "I consent to the jurisdiction of Federal District Court for the judicial district in which my address is located (if in the United States, otherwise the Northern District of California where GitHub is located), and I will accept service of process from the person who provided the DMCA notification or an agent of such person."

Well not a total waiver, but you can’t dodge service, so it’s basically the same thing.

Anonymous Coward says:

Re: Re: Re: Re:

17 USC 512(3) Contents of counter notification.—To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following:
(A) A physical or electronic signature of the subscriber.
(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

Please indicate where it says service of process must be waived.

Anonymous Coward says:

Re: Re: Re:2 Re:

It says it must be accepted, which is different than the catch-me-if-you-can standard we usually have. Also, the counter-notification must include the legal name and address of the uploader, something pirates will never give up.

Six of one, half-dozen of the other. Service can be made by registered mail in most states, and always out of state.

Anonymous Coward says:

Re: Re: Re:3 Re:

The waiver of service under Rule 4 probably also has to be accepted, and if so, service must be waived. Either way, it eliminates a key hurdle in internet lawsuits: finding and serving the right party.

As for an IP address not being proof of infringement, do people say it’s not proof of defamation in libel cases?

Stephen T. Stone (profile) says:

Re: Re: Re:8

No. No, it is not.

If someone claims I defamed them, they have to prove at least two underlying premises: The content they claim to be defamatory is legit defamatory, and I wrote/published said content. Proving that the content was posted using a device linked to the IP address assigned to my connection does not prove either one of those two things; all it proves is that someone used that connection to post the content. Anyone with access to either my connection or an Internet-connected device in my home could have posted the content without me ever knowing about it.

The burden of proof still lies with the plaintiff, and an IP address is not enough to prove that I posted the content. It also does nothing to prove whether the content is defamatory, which is the far more important premise of the two.

Anonymous Coward says:

Re: Re: Re:7 Re:

"An IP address can be used to identify someone"

How is this done?

Do we all have IP Addresses assigned and tattooed on our foreheads at birth?

Do we all have have static IP addr?

Is the tattoo scanned as a prerequisite to operation of said computer with the offending IP Addr?

Does logging software have accurate time hacks?

Can IP Addr be spoofed?

Anonymous Coward says:

Re: Re: Re:8 Re:

An IP address can be used to identify an account. Even if an IP is dynamically assigned, an ISP can still maintain records indicating which account had what IP assigned to it and when.

What an IP address can’t do, however, is identify the person who was using the account at the time. That’s what Stephen T. Stone was referring to.

Scary Devil Monastery (profile) says:

Re: Re: Re:9 Re:

"An IP address can be used to identify an account. Even if an IP is dynamically assigned, an ISP can still maintain records indicating which account had what IP assigned to it and when."

Unless said ip address is the entrance to an NAT in which case most bets are off.

Hence why laser printers get so many DMCA notices assigned to them.

PaulT (profile) says:

Re: Re: Re:10 Re:

"Unless said ip address is the entrance to an NAT in which case most bets are off"

Or the ISP mess up their internal records search and give them the wrong person (which has happened).

Anyone who takes an IP address as anything other than a lead to perform further investigation is fooling themselves… and they will get less reliable the further they’re pushed as some kind of personal identifier (since the infringers will be encouraged to use obfuscation tactics they don’t bother with at the moment).

Anonymous Coward says:

Re: Re: Re:4 Re:

The waiver of service under Rule 4 probably also has to be accepted, and if so, service must be waived.

On what do you base this assumption? There is nothing in 512(3)(D) that requires the Defendant to accept a waiver.

the counter-notification must include the legal name and address of the uploader, something pirates will never give up

That’s likely true, but pirates aren’t the only ones who might not be willing to identify themselves, and a failure to provide counter-notification does not automatically mean that the uploader is a pirate.

Anonymous Coward says:

Re: Re: Re:6 Re:

Sure, but according to the person a few comments up this thread, if you get a few uncontested DMCAs on your account, you should be kicked off the internet. That’s entirely unreasonable. Failure to counter could mean you realize you don’t have the financial means to litigate the issue. It could mean that, for whatever reason, maintaining your anonymity is more important than putting the content back online.

When I processed DMCA notices for my old employer (a webhost), I had both of those reasons given to me in response to notifying the customer of their options.

John85851 (profile) says:

Go up the chain

Why not go up the chain and sue the power company for providing electricity to the cable modem that delivers the high speed internet connection? After all, no electricity means no internet which means no piracy.

Never mind the fact that people need electricity for other things, such as lighting and heating- if they didn’t want their power cut off they shouldn’t have downloaded things illegally. Never mind the fact that most people get a "strike" simply by being accused of downloading something illegally without any proof.

James Burkhardt (profile) says:

Re: Re: Go up the chain

Unfortunately, there is not a counter notification process for accusations of infringement based on downloads, the kind of notification that goes to ISPs. Its not like hosted content. Seriously, the DMCA covers more than Youtube.

The DMCA take down notices that have a counter notification process are for hosted content.

Accusations of infringement going to ISPs are for accusations of infringing downloads. According to Comcast, there is no counter notice provision, I just have to take my strike (despite the fact that I have no legal requirement to police my network).

Anonymous Coward says:

Re: Re: Re: Go up the chain

If that’s the case you could sue the ISP for a DMCA violation.

"Upon Comcast’s receipt of a counter notification that satisfies the requirements of the DMCA, Comcast will provide a copy of the counter notification to the person who sent the original notification of claimed infringement and will follow the DMCA’s procedures with respect to a received counter notification. All counter notifications must satisfy the requirements of Section 512(g)(3) of the U.S. Copyright Act."

(this turned up in a search)

James Burkhardt (profile) says:

Re: Re: Re:2 Go up the chain

Dear Internet Customer:

Comcast has received a notification by a copyright owner, or its authorized agent, reporting an alleged infringement of one or more copyrighted works made on or over Comcast’s Xfinity Internet or Business-Class Internet service (the “Service”). The copyright owner has identified the Internet Protocol (“IP”) address associated with your Service account at the time as the source of the infringing works. The works identified by the copyright owner in its notification are listed below. Comcast reminds you that use of the Service (or any part of the Service) in any manner that constitutes an infringement of any copyrighted work is a violation of Comcast’s Acceptable Use Policy and may result in the suspension or termination of your Service account.

If you have any questions regarding this notice, you may direct them to Comcast in one of the following formats:
Comcast Customer Security Assurance
Comcast Cable Communications, LLC
141 Woodcrest Road
Cherry Hill, NJ 08003 U.S.A.
Phone: (877) 842-2112
Fax: (856) 324-2940

For more information regarding Comcast’s copyright infringement policy, procedures, and contact information, please read our Acceptable Use Policy for XFINITY Internet for residential customers, or our Acceptable Use Policy for High-Speed Internet Services for business customers.

Sincerely,
Comcast Customer Security Assurance

The language you quote appears no where in the threat letter I recieved. But that is not the point. Removing a ‘strike’ incurred toward a repeat infringer policy is not a required as part of managing counter notifications. Therefore, following the procedures of the DMCA does not necessarily solve the issues present with the accusations of infringement being the basis of action, and so a robust counter notification process, while helpful for restoring hosted content, is less helpful for resolving repeat infringer policy notices.

Anonymous Coward says:

Re: Re: Re:6 Go up the chain

The DMCA does apply to Comcast, but it’s only section 512(c) that has the whole notice/counter-notice process, and that section is regarding hosted content. In the case of ISPs, where the copyrighted material is only present on the ISPs network during transit, that’s section 512(a). There is no notice/takedown/counter-notice process in 512(a) because there’s no copy to take down. That said, according to 512(i), an ISP does still need a repeat infringer policy to gain the safe harbor that 512(a) grants, but if the ISP is acting on notices of alleged infringement, it could be much more difficult to fight an account termination because there is no explicit counter-claim process.

Anonymous Coward says:

Re: 2

i think they will face consequences only on two scenarios.

1: a miracle a age type case where someone calls bull#### in a case that would destroy the entire rely on to go after people and end them as an organization.
2:people stop trying to reason and take a “so what” apathy approach and basically declare what they do as an organization undeserving of lawful protection after all the horrible things they have done.

Glenn says:

It’s long past due for society to take back the limited and temporary copyright privilege granted to creators of works due to the gross abuse and attempts by license holders to turn it into permanent ownership as well turn mere accusations into criminal offenses. License holders have become a blight on the landscape.

Anonymous Coward says:

Re: Re:

That returns us to a patronage model, and, unless you are willing to abolish contract law, individual contracts between publishers and their audiences, which actually might not be a bad idea, given that we now have universal literacy. This would also eliminate intermediary liability, but it would also eliminate mass distribution of original works.

Is that a fair tradeoff? I could certainly publish a book that says the reader is liable for any unauthorized distribution (each copy can have a serial number), and charge a higher rate to compensate for the smaller audience. A book for actors on how to get cast in big-budget films, for example, will attract a market, as will almost any self-help book, marketing material, college textbook, etc.

That One Guy (profile) says:

This should not be very difficult

If copyright didn’t cause temporary(and occasionally permanent) brain damage this would be really easy to get laughed out of court. All a platform or ISP would need to do would be to point out that they do in fact have a repeat infringer policy, as the law demands, but what they do not have is a repeat(edly accused of being an) infringer policy, as the law does not require that.

When/if the ones bringing them to court can point to people that have been found guilty of infringement using their platform in a court of law multiple times then they’ll consider applying the policy to them, and not a second before.

That One Guy (profile) says:

Re: Re: This should not be very difficult

By people who’ve suffered copyright-related brain trauma perhaps.

‘Hey, some random person just accused you of copyright infringement, and if you want to contest if you’ll need to give them your personal contact details.’

Yeah, no. Course, if you want to prove how easy it is and thereby show how the only possible reason someone could have for not doing so is because they’re guilty of something you can do so simply by providing your personal contact information. Anything less and your argument gets tossed as hypocritical, and/or will be treated as an admission that you yourself have something nefarious to hide.

Anonymous Coward says:

Re: Re: Re:4 How ironic

Are you saying you’ve been falsely accused of copyright infringement? It’s be real easy to fix according to you. Just post your completed copyright clearance certificate or your presumptive fair use declaration and pay the “nominal” administrative fee and you should be good to go.

Anonymous Coward says:

Re: Re: Re:4 This should not be very difficult

publication to the internet creates an implied license to copy it

That’s very pro-piracy of you to say. Lemme go download some music videos that the labels put on YouTube and upload them elsewhere. That’s OK right? After all, publication to the internet creates an implied license to copy it

Anonymous Coward says:

Re: This should not be very difficult

All a platform or ISP would need to do would be to point out that they do in fact have a repeat infringer policy, as the law demands, but what they do not have is a repeat(edly accused of being an) infringer policy, as the law does not require that.

This has been tried a couple of times, but the Courts won’t have it. As an example, see BMG v. Cox appeal ruling pages 11-15.

The problem is that the language isn’t consistent across all of copyright law, and the Court in the above case finds that there’s insufficient support for the "repeat infringer" = "repeat adjudicated infringer" conclusion. I don’t necessarily disagree with their logic given the problems in the wordings of the law, but it creates a contradictory situation where the Court wants the ISP to determine if activity is infringing, but Congress has explicitly stated that ISPs shouldn’t have to do that (H. R. Rep. No. 551 (Part 2)):

In addition, the Committee does not intend this provision [Section 512(i)] 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.

So what is an ISP to do when one branch of government says it shouldn’t have to do something, but another branch says that it should?

That One Guy (profile) says:

Re: Re: This should not be very difficult

This has been tried a couple of times, but the Courts won’t have it. As an example, see BMG v. Cox appeal ruling pages 11-15.

Hence the ‘copyright causes brain-damage’ line. I mean it’s not like it’s a difficult concept, and you’d think a judge of all people would understand the idea of ‘just because someone is accused, doesn’t mean they’re actually guilty’, given it’s their gorram job to determine guilt via a court case. As such punishing people simply because they’ve been accused of being guilty of copyright infringement multiple times, with no required finding that they actually are guilty at any point is a Bad Idea is really a no-brainer, or it would be if it didn’t involve The Holy Copyright.

sophisticatedjanedoe (profile) says:

Does anyone here remember Evan Stone, a proto- copyright troll? This was literally his argument (and it was widely mocked back in 2011):

They don’t want their subscribers to think that they can get sued, because how many people are still gonna pay 53 bucks a month for broadband if they know they’re restricted to 100% legitimate activity? That’s kind of how I look at it. I mean, most people will. I think roughly 5-10% of their users would say "look, if I can’t pirate movies and music, there’s no way I’m going to pay fifty bucks." They don’t want to lose customers, they don’t want their customers sued.

Anonymous Coward says:

Oh, one more thing, did you know I was the one that told the old dingbat lawyers at the RIAA that they were conducting the wrong kind of litigation? Those dumb fucks were suing individuals. I said "Have you ever actually READ the DMCA? The repeat infringer policy is how you will neuter piracy." So they finally got down to business. But they wasted 10 years after Napster because they didn’t know their ass from a hole in the ground. Good times.
At any rate, yeah, blame me for these lawsuits. Sorry, guys.

Anonymous Coward says:

Copyright is all wrong

Copyright is way too long. There need to be some reforms. It’s supposed to be a limited period of time. Can anyone explain how today’s copyright term is a limited period of time?

First, public performance should be fair use after 28 years (the original copyright term with one extension.) The copyright owner would still have rights over sales.

Second, derivative characters should be fair use after 28 years. If the author didn’t write it, using the material in a derivative work should be fair use.

PaulT (profile) says:

Re: Re: Copyright is all wrong

"just not to those who want to steal contemporary works."

Also those who wish to legally enjoy and use works that were created within their lifetime that should be in the public domain and not be restricted due to works being orphaned or not being deemed commercial enough by some crap shovelling corporation.

But, your points to fall apart when you stop lying about what other people really want, don’t they?

Anonymous Coward says:

Re: Re: Copyright is all wrong

Ok, it’s not like 95 years is irrelevantly different from eternity as applied to almost everyone alive today. So sounds good. I’m not pirating anything I’m sending a check (payment in full) sometime within a timeframe that "is actually quite limited in the grand scheme of things".

/sarc (or my logic, as faulty as yours.)

bobob says:

Here’s how I see it. As long as there are organizations like the riaa, etc., who are nothing but parasites, I have no issues at all with going out of my way to violate copyright. These parasites have been the one thing most responsible for limiting access to music, etc., and creating a "star" system to reward the few at the expense of the many, by excluding so many talented musicians. Fuck ’em.

Anonymous Coward says:

"Part of the issue here is the incredibly inartful drafting of the DMCA, that has lead to multiple lawsuits over how conflicting aspects of the law should be interpreted."


I have to disagree with you on the lack of artistry in drafting the dmca. It does indeed take a great deal of artistry to write legalese that allows the people who will get fucked over to believe one is bending over backwards to help them out. Who benefits from "how conflicting aspects of the law should be interpreted?" Why, it’s the people with the greatest resources to hire lawers who are the most adept at skewing the arguments in favor of their their clients. Given that the average non-technical and legally challenged people are still confused or even unaware of what the dmca hath wrought apart from those who have been dinged with fraudulent lawsuits, takedown notices and the like I’d say that if anything, those who wrote it were artful and knew exactly what they were doing.

That Anonymous Coward (profile) says:

Amicus Curiae for Copyright Cases.

Congress has failed to provide adequate direction with laws about copyright.
False DMCA notices are supposed to be punished, but the punishment was not defined beyond perjury.
A recipient risks very clear and massive punishment for not acting fast enough to appease the sender, but even if they know the sender has sent 3 million faulty or fake notices they still have to act or else.
Even "legitimate" groups fail spectacularly, an ‘anti-piracy’ company in the employee of HBO demanded Google delist HBO.com from their index for offering pirated material.
Google bears all the costs & punishments in this example, firms sending non-existent links to be delisted face none.

One is left how to wonder how a law that instructs rightsholders to send notices to the site hosting the content decided that Google controls the entire internet.
While Google is a very good search engine, they have no control over the sites in question, they can only remove them from their index, after making sure they are valid, which is not a right listed in the law.

Google must deal with millions of these requests each day & when trying to provide details of how often these notices were wrong, were threatened with lawsuits.

Congress has failed to define ‘repeat infringer’ which has left courts confused & making rulings of questionable merit given how the law is supposed to work. As it stands now music labels are suing Internet Service Providers for not disconnecting ‘repeat infringers’ notice of these repeat infringers is provided by firms who actively seek to block anyone examining their methods to see if they are accurate.

All they can provide is that they ‘saw’ an IP address get a piece of a file. They can not say the account holder or anyone in the household was the party responsible for the download.

Trying to sue responsible parties is costly, it is much easier to flood the ISP with ‘notices’ then claim they didn’t remove the repeat infringer & sue in court for insane damages.

I personally have seen notices from an anti-piracy company of over 100 notices for 1 alleged download of a file. These notices were generated milliseconds apart and make it appear that IP address is a ‘repeat infringer’ but were just to scare them with extortive threats to pay them or else.

Until Congress changes the law to clarify, no court should consider notices to be enough to prove repeat infringement. If your child knows they get a cookie for tattling, they will tell on everything in the hopes of more cookies.

Courts should not reward the system being gamed.

If an IP address is not enough to begin a copyright infringement lawsuit, as is happening in several districts nationwide, how can it be ‘evidence’ in any sort of legal proceeding? Why should the court keep rewarding the bad behavior of the rightsholders by allowing them to collect damages well in excess of any actual suffered harm by manufacturing ‘evidence’ that other courts have rejected & they are unwilling to have certified as being factual?

Courts will not convict someone based on the word of a mysterious witness no one is allowed to see, cross-examine, or investigate the motives of… yet there are several lawsuits doing just this targeting ISP’s for not having a policy to deal with an undefined terminology.

Rocky says:

Re: Re: Amicus Curiae for Copyright Cases.

Why would you see all these notices unless you were an attorney?

As I said before, you couldn’t reason your way out of a wet paper-bag even if your life depended on it.

Do you think only attorneys handles notices sent to a company? Perhaps there has to be a bit more people involved than just an attorney, like those who has to verify that links in the notice actually exists on the site and that the content actually is infringing?

That Anonymous Coward (profile) says:

Re: Re: Amicus Curiae for Copyright Cases.

Did your mom have any kids that lived?

Every other regular reader is rolling their eyes at you for not bothering to look at who I am.

Last people that accused me of being a lawyer are under federal indictment for their copyright trolling scheme.

People playing the home game will point out that unlike lawyers, I have ethics & stick to them.

That Anonymous Coward (profile) says:

Re: Re: Re:3 Amicus Curiae for Copyright Cases.

Nope can;t prove that… they accidentally deleted the code for their super secret tech (violating a courts instructions) so there is STILL no outside testing of the magical black box…

So it is still you only need to send 200 notices to an ip address then sue the ISP for not disconnecting them from the internet, because a court has decided that a company who makes money from sending these notices out would NEVER EVER worry about their bottom line more than sending notices.

That Anonymous Coward (profile) says:

Re: Re: Amicus Curiae for Copyright Cases.

An IP address is not evidence.
It is a series of numbers assigned at random to users on a network.
If the clock in the detection machine is off, it can point to an entirely different subscriber.

As to ‘shifting’ the burden of truth, as you fscking high?
Once they have a name associated with the account, they troll facebook… oh you liked a post about ‘Game of Thrones’ and our super secret tracking software shows the same downloader downloaded Game of Thrones episodes!!!!
The accountholder is male, a penis means they downloaded the porn.
They didn’t turn over a flash drive that was once plugged into their computer 2 years ago, this is evidence they are guilty!!!
Our expert was unable to find any evidence of our content, lack of evidence is evidence of them being smarter than our expert and having wiped the evidence away!! Make them pay us now!

We saw a blue car drive past the bank that was robbed, we do not know who was inside, who was driving, or if anyone in that car robbed the bank but we saw a blue car… let us tear his persons life apart in a CIVIL matter that at BEST is worth a few thousand dollars, not the $150K we told them we could win, & connect their name is scandalous porn titles (and until the "MASSIVE" $250 penalty stopped them child porn & beastiality films).

Scary Devil Monastery (profile) says:

Re: Re: Amicus Curiae for Copyright Cases.

"An IP address is evidence that shifts the burden of proof."

Bullshit.

There’s a minimum 12% error margin just from the technology involved which means that by extension we should reverse burden of proof almost completely.

Your argument doesn’t fly in any other area of law so why would it apply to copyright specifically? Try again, Baghdad Bob, but this time with less outright lying please.

PaulT (profile) says:

Unless someone can point out to me what I’m missing, this is the thing that gets me – it’s the RIAA making these claims. The MPAA or video game industries I could maybe understand to some degree as those require larger files to pirate, and thus make the faster speeds more attractive.

But, music? MP3s are no larger when they were in the Napster heyday and most people are downloading those or streaming if they’re pirating – and people were doing that happily on dial-up.

What am I missing here, other than a cash grab from people trying to claw back CD money that they’ll never see again (due to legal services)?

That Anonymous Coward (profile) says:

Re: Re:

Rightscorp. The labels keep pouring money into the latest snakeoil salvation (I mean a penny stock that pays its execs more than the company has taken in…) & are angry its not working out for them.

ISPs stopped forwarding the "DMCA" notices Rightscorp generated, because they were not so much a DMCA notice as a carrier for threat letters demanding the account holder pay them or be financially ruined.

Rightscorp defied a courts instructions & deleted code, to protect the super secret black box from outside review. So these untested, unvetted notices continue. ISPs get calls from accountholders who are scared by the message claiming unless they pay this random firm a few hundred/thousand they will end up in court owing $150K. Sometimes when an accountholder decides to pay up, not motivated by guilt but by fear, magically they triple the size of the list you owe for.

Rightscorp convinced the music labels the fact their returns sucked was because the ISPs stopped forwarding the letters. They then decided that since the ISPs refused to terminate service to ‘repeat infringers’ (as identified by a magical box) stripped their protections under the DMCA & they found a Judge who decided that 2 guys responsible for 3 different failed snakeoil setups to ‘save’ the music industry from piracy were good upstanding people and we can accept their magic black box output as proof positive.

The problem is Congress failed to define these terms leaving it to lifetime appointees who still own VCRs blinking 12:00 to understand that sometimes the technology isn’t always right.

Anonymous Coward says:

Apparently what some people want now is a new form of legalized extortion. No need to prove anything, just randomly accuse and laugh all the way to the bank. One might think this is opening a can of worms because now everyone will be doing it, but that has been thought of also – only certain people will be afforded the right to falsely accuse others and steal their money, the little people will be kicked to the curb as usual so no need to worry about that.

Elliander Eldridge says:

Charter HTTP Code Injection

I recently had to deal with a mess with Charter as a result of this lawsuit. What Charter started doing is to use HTTP Code Injection to replace web pages with copyright notices (in my case, they alleged that I downloaded "The Flash" when in reality I wouldn’t need to since I watch it on Netflix) but the notice was sent to someone other than me (a non account holder) whereas DMCA requires the notices go to the account holder. In the past, this actually resulted in me getting a zero on a test because when I clicked the form submit it was replaced with a copyright notice.

Their basic explanation was that their lawyers considered this practice to be legally safer than the risk of being sued for not doing this, which makes sense. Even though DMCA requires that I be sent the notice they are less likely to be sued by a random customer than a consortium of big companies.

Incidentally though, this practice interfered with my ability to pay my bill. "We apologize as we seem to be experiencing some issues with our bill pay services" is all I’d get. This led to new code injection of payment reminders which didn’t help anything and finally service was soft disconnected with a message requiring me to go to Charter to pay – but again, I could not pay.

I eventually tried using my Samsung S7 mobile Hotspot through T-Mobile and the modem blocked my computer from using the T-Mobile IP address as well. I emailed them a screenshot of that after I figured out that while my computer is connected via ethernet to a charter router with that lock on it I cannot use any connection via any ISP, but unplugging it immediately allowed me to pay the bill and stopped that copyright complaint.

They explained that if a 3rd notice goes out within one year the internet connection will all go out until I respond to a written notice, which is over the top. It’s not the ISP’s job to determine if a claim is legitimate or not, and while the copyright holder may believe based on the IP address used that I am responsible, I might not be. IP spoofing is, for example, a viable explanation. Although most ISP’s now correct for that not every ISP does. Alternatively, wardrivers might brute force a WiFi password to use. These things happen all the time. Unless I am proven responsible in the court of law I should not have my work disrupted.

As it stands, I feel like I have to buy a VPN router and pay for a VPN service to protect me from copyright complaints which is stupid. All because a big company used a frivolous lawsuit to scare them.

P.S. – I sent all screenshots of the above mentioned issues to Charter and the FCC, but am willing to share proof of any claim I made on request.

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