Cox Lies To Customers; Says DMCA Requires Disconnects For File Sharing

from the that's-flat-out-false dept

While there's been a big push among the entertainment industry to get ISPs to adopt a "three strikes" policy that would have ISPs disconnect internet access to users accused of unauthorized file sharing, with them losing their account permanently after the third time. This is highly problematic for a variety of reasons, starting with the rather flimsy evidence that the entertainment industry relies on, combined with the idea that the accused are considered guilty with no process of appeal. Furthermore, there's no clear reason why an ISP should act as a copyright cop for the entertainment industry. In fact, many ISPs trashed such proposals, and told the entertainment industry where to shove them. More recently, the EU Parliament rejected such laws mandating three strikes policies, noting that they were clear violations of individuals' freedom.

One of the reasons that the entertainment industry had been focusing on Europe, Australia and Canada for such programs was that it seemed that US ISPs had made it clear that they would never adopt such a three strikes policy. Think again. Apparently cable giant, Cox, has quietly adopted a three strikes policy and is kicking users off the internet if they're accused of file sharing.

Even worse, the company is lying to customers about it, claiming that the DMCA requires them to do so:
Under the DMCA, we have the responsibility to temporarily disable your Internet access, until such time as you take the necessary steps to remove the infringing files and to prevent further distribution of copyrighted material.
This is a complete fabrication. The DMCA has no such requirement. What's really odd is that Cox had built up a reputation as being the customer friendly broadband ISP that took customer service very seriously. Yet, here they are, cutting users off, lying to them about why and relying on the entertainment industry's weak evidence to harm its customers. It's a shame. In the meantime, we'll extend an earlier challenge to Cox. Will it accept a three strikes policy of its own? If it cuts off users three times and the evidence is shown to be false, will it provide free internet access to that user?

Filed Under: disconnects, dmca, three strikes
Companies: cox

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  1. identicon
    DanC, 2 Oct 2008 @ 6:41am

    Re: Re: Re:

    Then please enlighten me and your readers with a citation to case law holding that the DMCA establishes an initial presumption in favor of an ISP, and that the burden of proof/persuasion resides with a copyright holder to overcome the presumption.

    You're intentionally misrepresenting the issue. The statement you initially made was that

    "Without more facts than presented here, it is not possible to reasonably conclude that the ISP is protected by the 'safe harbor' provisions of the DMCA."

    While you are correct that the burden of proof resides on the ISP to show that they meet the requirements for safe harbor provisions (if a lawsuit was filed), you don't provide any real reason to assume they wouldn't meet those qualifications.

    The situation is similar to determining fair use - while it is a defense, a person can make reasonable assumptions about what would qualify as fair use based on what the law says and its intent. Likewise, it is a reasonable assumption that an ISP (especially a large provider like Cox) would be protected by the safe harbor provisions, since the whole point of the law was to protect ISPs from the infringing activities of its users.

    And a quick look at Cox's website shows that they are meeting the requirements for safe harbor protections. Unless you're also going to require proof that Cox actually follows through on the takedown notices before a "reasonable" assumption can be made.

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