Cox Claims Rightscorp's 'Extortionate' Lawsuit Really A Backdoor Way To Get Subscribers' Info

from the cox-blocked dept

Rightscorp (via two music publishers) has dragged Cox into court to test its novel (read: legally unsound) theory that complying with the DMCA means cutting off service to "repeat infringers." The theory itself is largely untested, but far from promising. But that isn't stopping BMG and Round Hill Music (with Rightscorp as a not-so-silent partner) from taking a flyer on a bad legal bet. Certainly, the theory would be advantageous to the shakedown efforts Rightscorp generously refers to as a "business model," but, so far, the only thing being offered as "evidence" of repeat infringement is Rightscorp's own declarations.

Those declarations are highly suspect. Cox has filed an opposition to Rightscorp's Motion to Compel that highlights the anti-piracy company's extortion-esque tactics.

In a statement that leaves little to the imagination, Cox notes that Rightscorp is “threatening” subscribers with “extortionate” letters.

“Rightscorp is in the business of threatening Internet users on behalf of copyright owners. Rightscorp specifically threatens subscribers of ISPs with loss of their Internet service — a punishment that is not within Rightscorp’s control — unless the subscribers pay a settlement demand,” Cox writes (pdf).
Cox has refused to participate in Rightscorp's quasi-legal activities. While the company is not opposed to passing on infringement allegations, it did ask Rightscorp to remove the threatening language (cutting off service, $150,000 per infringement claim) first. Rightscorp refused to do so. This impasse is obviously unacceptable to Rightscorp, which depends on the (very) occasional settlement payment to keep its business barely afloat.

As Cox points out, Rightscorp has decided the best course of action is to maintain its unsteady perch on the edge of legality. In the filing, Cox alleges that Rightscorp tried to make the ISP a "business partner" in its shakedown attempts.
“Rightscorp had a history of interactions with Cox in which Rightscorp offered Cox a share of the settlement revenue stream in return for Cox’s cooperation in transmitting extortionate letters to Cox’s customers. Cox rebuffed Rightscorp’s approach,” Cox informs the court.
But that's not the only legally-dubious tactic the "cutting edge" anti-piracy firm has deployed. It's also attempting to use this lawsuit's discovery process to sidestep subpoena limitations.
The motion lays bare one of Plaintiffs’ primary reasons for bringing this lawsuit. Plaintiffs seek to circumvent the Cable Privacy Act process and instead use discovery in this case to force Cox to reveal, en masse, PII for possibly tens of thousands of Internet subscribers who Plaintiffs speculate might be violating their copyrights. The Cable Privacy Act expressly prohibits Cox from disclosing its subscribers’ PII, for good reason: Internet subscribers have a compelling privacy interest in the confidentiality of their personal information, which can of course be vulnerable to exploitation for myriad improper purposes. If a copyright holder earnestly believes that an unnamed Internet subscriber is infringing upon its copyrights, the proper course is to bring a “John Doe” lawsuit against the subscriber and then to use third-party subpoena power to obtain identifying information from the user’s Internet Service Provider. That legitimate procedure allows notice to the subscriber and an opportunity for the subscriber to act to protect his or her rights. It also relieves the ISP of the unfair responsibility of adjudicating which of the two competing interests (the subscriber’s or the accuser’s) should trump the other.

[...]

Plaintiffs nominally (Rightscorp in reality) claim to have identified “approximately 150,000” infringers, including several hundred “egregious infringers,” among Cox’s subscribers. But Plaintiffs apparently have only IP addresses to go on. (Doc. 72, Corrected Br. at 3.) Plaintiffs have not filed any “John Doe” lawsuits against Cox customers and have not sought information from Cox by subpoena. More importantly, Plaintiffs do not seek, and have not sought, leave to add “John Doe” defendants in this case.

[...]

The practical dynamics of this motion are suspect: If there are 150,000 infringers among Cox subscribers, as Plaintiffs claim, why would they limit themselves (at least for now) to just 500 “egregious infringers”? Will Plaintiffs seek to depose or serve Rule 45 subpoenas on those 500? Will Plaintiffs now seek to add those 500 as co-defendants? Why do Plaintiffs want a blank-check “open order” to continually demand that Cox reveal more identities at later stages in this action? When tested in practical terms, Plaintiffs’ motion makes no sense, and their arguments plainly are an obvious pretext for some other motive.
"Pretext for some other motive" basically describes the entirety of Rightscorp's business model. It subpoenas ISPs for subscriber info, under the unspoken pretext that further legal action is in the offing. But instead of suing file sharers, the company instead uses the information to harass subscribers into paying "settlements" for alleged infringement.

Despite the damning claims made by Cox, the court has partially granted the questionable Motion to Compel. The ISP has been ordered to turn over the "Top 250 IP Addresses recorded to have infringed in the six months prior to filing the Complaint." This distinction is important, because as Cox points out in its opposing motion, the plaintiffs' constantly-widening net had managed to drag in alleged infringers whose infringement didn't occur until after the lawsuit was filed.
Plaintiffs’ stated justifications for their extraordinary request do not help Plaintiffs’ cause. Plaintiffs acknowledge that they “must establish direct infringement of the copyrighted works asserted in this case,” and imply that their motion serves that end. (Doc. 72, Corrected Br. at 4.) But that implication is illogical because Plaintiffs seek PII for 500 subscribers of the 150,000 supposedly implicated here. Surely Plaintiffs are not prepared to concede that their claims fail for the works that the other 149,500 subscribers allegedly infringed. Notably, of the 500 allegedly “egregious infringers” the Plaintiffs hand-picked, 250 allegedly infringed after this lawsuit was filed. (Doc. 72, Corrected Br. at 4.) Those subscribers’ alleged infringements, therefore, cannot have formed a basis for Plaintiffs’ claims in this suit. And nowhere do Plaintiffs even assert that Rightscorp sent purported DMCA notices to Cox with respect to those particular subscribers.
Cox has come out swinging in the early going, and its assertions confirm much of what has been written about Rightscorp and its tactics. This aggressive stance should help uncover plenty of damning details, none of which should have a positive effect on Rightscorp's shriveling stock price.




Reader Comments

The First Word

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  • icon
    sophisticatedjanedoe (profile), 26 May 2015 @ 11:25am

    Seems like a tip of the iceberg to me. How many small and big ISPs silently sell their customers to copyright extortionists?

    reply to this | link to this | view in chronology ]

  • icon
    MadAsASnake (profile), 26 May 2015 @ 12:07pm

    I'm wondering here, how can RightsCorp possibly figure out who is an "egregious" downloader? While I don't know Cox's IP management strategy, I would be surprised if it was static. The only possible thing RightsCorp can be doing is counting up infringements per IP - which, given the accuracy of the detection method (appalling) and the movement of IP's among Cox' customers, can't tell you much... and that is before considering who in a household (or elsewhere) might be the infringer - that they cannot know.

    reply to this | link to this | view in chronology ]

    • icon
      TKnarr (profile), 26 May 2015 @ 12:33pm

      Re:

      Cox's IP assignments are relatively static. I've had the same IP address for several years now. As far as I can tell they associate a DHCP lease with the cable modem's serial number and check whether an address is in use before handing it out, so the only times it'll assign a new address is if you replace your modem, your router's off-line long enough for the lease to expire and then for someone else to request a new lease while your router's unable to respond to the head-end's in-use test, or your router's off-line when they reset the head-end (clearing the lease database) and stays off-line long enough for the head-end to hand out your address to someone else.

      And even if IP addresses changed regularly, the DHCP servers log the assignments so given an address and a timestamp you can determine from the logs which subscriber had that address at that time. At least as long as the logs haven't aged out, anyway.

      reply to this | link to this | view in chronology ]

      • icon
        MadAsASnake (profile), 26 May 2015 @ 12:48pm

        Re: Re:

        Your last paragraph is the point: Cox would have to do that, Rightscorp can't, and Cox haven't... according to the article. So RightsCorp cannot know...

        reply to this | link to this | view in chronology ]

    • icon
      ltlw0lf (profile), 26 May 2015 @ 12:42pm

      Re:

      While I don't know Cox's IP management strategy, I would be surprised if it was static.

      Home users are not static. Business users pay three times as much for slower bandwidth and the same restrictions as home users, but get a static IP address. Home users get DHCP, but the IPs, once issued, stay pretty static until they are offline for a period of time, in which they get assigned a new dynamic address. I've figured that the timeout for the reassignment appears to be about 30 minutes or so. I've had power outages or network outages that have lasted less than 30 minutes where I am reissued the same IP address, but anything longer than 30 minutes usually (though not always) results in a new IP address. Change your MAC address on your device, and you will be issued a new IP address (if it even works, sometimes I have to call them and have them reprovision the line if the MAC address of my router changes, but usually I just get a new IP address.)

      The only possible thing RightsCorp can be doing is counting up infringements per IP - which, given the accuracy of the detection method (appalling) and the movement of IP's among Cox' customers, can't tell you much... and that is before considering who in a household (or elsewhere) might be the infringer - that they cannot know.

      Cox does appear to be logging their assignments (as any DHCP server should do,) though their clocks must be accurate in order to determine who has any IP address at any time. However, I did hear from a friend that they received an infringement notice for an IP address that they had, but had been reassigned to someone else, but they called Cox Technical Support and complained that nobody was home during the time of the infringement and the only computer attached directly to the cable modem was off, so they couldn't be the infringers, and they heard no further from Cox on the issue. So it is likely that they might not be all that careful in making sure their logs have the proper timestamps and may be a little iffy on the windows.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 May 2015 @ 2:39pm

      Re:

      As a current subscriber, it's not static, unless you have a business account and pay for a static. They rotate through IP's every few months it seems.

      reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 26 May 2015 @ 12:18pm

    COX would cut off repeat infringers

    COX would cut off repeat infringers if ordered by a court to do so.

    A court would order COX to cut off service to a repeat infringer if a copyright owner sued the infringer in court and proved that
    * they were in the right venue
    * that the plaintiff actually owned a work under copyright
    * that the copyright was infringed
    * that the defendant was the infringer
    * defendant's arguments can be successfully rebutted

    Rightscorp, BMG and Round Hill Music simply don't want to go through due process.

    Why should COX arbitrarily cut off service of one of its customers on the say so of a source that is clearly untrustworthy?

    Guilty as accused, with no due process! Off with their heads!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 May 2015 @ 12:33pm

    I have to be the one person in the US who does not hate their ISP.

    reply to this | link to this | view in chronology ]

    • icon
      ltlw0lf (profile), 26 May 2015 @ 12:59pm

      Re:

      I have to be the one person in the US who does not hate their ISP.

      I don't hate Cox. I despise them, but I don't hate them. They have been marginally better at doing their job than others I've had the privilege of dealing with. They keep their network up (usually, though far less than 99% of the time, and they have no system in place to notify users if the network outage they are experiencing is known about or not, so I am forced to call them to find out whether they are aware their network is down or not,) and they don't complain about my usage that much (I am a "power user" but still usually am well below their caps even as a Netflix/Steam/GoG/Linux Updates user.) Their caps are livable, even-though unnecessary and potentially illegal, and up until recently (unless you live in Cleveland,) they were "soft-caps" in which you were warned if you went over them, but weren't charged for the difference or weren't throttled. And for the most part, they've actually maintained their network and upgraded with the times instead of being overly greedy and pocketing your monthly fee while letting their network decay.

      My problem with Cox is that they are capricious and tend to be greedy and anti-consumer in their attitudes (just enough to keep you around and not turn you away, but not enough to make you happy about having them as your only option for cable internet.) They don't go out of their way to get me to like them, because they don't have to...they are the only game in town and I should like the service they are providing.

      But it is stories like this that make me feel just a tiny bit better about my ISP.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 May 2015 @ 1:50pm

        Re: Re: (ltlw0lf @1259)

        I'm with Cox too, and I agree with most everything you say.

        My beef with them is that they keep raising their rates - I only have internet with them - ever 2-3 years. I'm now paying twice what I paid 10 years ago and no noticeable difference in speed. I don't have caps but everything else you said is spot on.

        reply to this | link to this | view in chronology ]

        • icon
          ltlw0lf (profile), 26 May 2015 @ 3:26pm

          Re: Re: Re: (ltlw0lf @1259)

          I don't have caps but everything else you said is spot on.

          Stay tuned. They're coming.

          reply to this | link to this | view in chronology ]

          • icon
            Village Idiot (profile), 27 May 2015 @ 6:52am

            Re: Re: Re: Re: (ltlw0lf @1259)

            "Note: Unused data does not carry over to the next month."

            I love how they try to have it both ways. Limiting me to 700GB/mo should mean they are selling me 700GB. If they are not selling me data, but bandwidth, then I should get that bandwidth for the entire month (regardless of data usage). These usage caps really are absurd and obviously nothing more than a cash grab.

            reply to this | link to this | view in chronology ]

            • icon
              ltlw0lf (profile), 27 May 2015 @ 9:07am

              Re: Re: Re: Re: Re: (ltlw0lf @1259)

              I love how they try to have it both ways. Limiting me to 700GB/mo should mean they are selling me 700GB.

              I think what they want is a "timeshare" agreement where you agree to rent a line, but then have all sorts of stipulations on how you can use the rented line and how much of the line you can use.

              Timeshares are evil no matter how it is done, the consumer always gets sold a shabby set of goods where the rules change on the whims of the owner and they never really get to own what they paid for. Like pyramid schemes and get-rich-quick schemes, timeshares should be outlawed since they are, in practice, get-rich-quick schemes where the owner doesn't actually have to maintain the property and can just pocket the fees without providing what they are contracted to provide.

              These usage caps really are absurd and obviously nothing more than a cash grab.

              Exactly. Which is why I despise Cox, but don't really hate them. Like AC says below, they are a choice between a Giant Douche and a Turd Sandwich, neither choice is any good, but they are best of a bad choice.

              reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 May 2015 @ 2:47pm

        Re: Re:

        I agree with your assessment of Cox. that's my only complaint as well. For the most part they have your back when it comes to dmca / "infringement" type activities. In the end they know that most often times you have 1 other viable option and most often times they have a worse service record than Cox does and aren't a real option. My only other option is Century Link and I wouldn't ever dream of going back to them. They are beyond incompetent for so many reasons, they'd have to pay me to put up with their "service".
        Unfortunately the cable market is just like the cell market and you have no choice but the least worst. I feel like no matter who I choose I still lose. Giant Douche or Turd Sammich?

        reply to this | link to this | view in chronology ]

    • icon
      miatajim (profile), 26 May 2015 @ 2:42pm

      Re:

      Came here to say the same thing.

      reply to this | link to this | view in chronology ]

  • icon
    Village Idiot (profile), 26 May 2015 @ 1:32pm

    First word because why not

    The idea that copyright holders (or their thugs) think it is reasonable to have someone's internet access turned off because of infringement is insane. Internet access is just as important as many other utilities.

    Would Gatorade demand that the courts order your water service turned off if you were using it to make and consume your own Gatorade? ...no. But their proprietary formula!

    Copyright infringement is not theft. No resources are removed from the copyright holder. The whole concept is based on the idea that an infringer cost them a sale that would have otherwise happened. Couldn't the infringer clear up that issue?

    "Would you have purchased the song if you had not pirated it?"

    "No."

    No infringement should be legally actionable without the alleged infringer distributing the work for profit.

    Just like no individual making use of a patented technology, in their own home through their own creation, should be found to infringe on any patent. The courts and industry need to stop trying to regulate private usage as if it were a competing company. They are fundamentally different.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 May 2015 @ 9:10pm

      Re: First word because why not

      "Internet access is just as important as many other utilities."

      I'm willing to bet that their computer used electricity, so turn off their electricity too. That'll make 'em pay up!

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 26 May 2015 @ 3:10pm

    "You did WHAT?!"

    “Rightscorp had a history of interactions with Cox in which Rightscorp offered Cox a share of the settlement revenue stream in return for Cox’s cooperation in transmitting extortionate letters to Cox’s customers. Cox rebuffed Rightscorp’s approach,” Cox informs the court.

    That, right there, should have been a huge red flag for the judge, and made it abundantly clear that Rightscorp isn't in it for the 'protection of copyrights', but only for the money. "We'll give you a cut of the profits if you cooperate" makes it abundantly clear that their goal is to get paid, not stop infringement(if anything they would want more infringement to occur, not less, as it means more chances to shake people down).

    Not to mention, buying customer information like that? Yeah, that too should have set off warning signals left and right, which makes it all the more disappointing that the judge seems to have at least partially bought their crap argument in the hilariously mistaken belief that Rightscorp has any interest whatsoever in bringing anyone to court with the information they receive.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 May 2015 @ 6:13pm

    Settlement revenue stream? What settlement revenue stream? Rightscorp has been losing money ever since they started. What were they planning to pay the ISPs in? Farts and rainbows?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 May 2015 @ 6:24pm

    Like a license plate, an IP address is not a person. Heaven help you if you or your systems get hacked, or you let someone borrow your car and they run every red light in town. Making we the people responsible for the security of your product is a load of crap, and I for one and getting tired of the smell. It is like the neighbor who walks his dog so it can shit in your yard, and then does not even bother to clean it up. Then on top of that expects you to thank him for the free fertilizer.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 May 2015 @ 9:15pm

      Re:

      "Like a license plate, an IP address is not a person. Heaven help you if you or your systems get hacked, or you let someone borrow your car and they run every red light in town."

      Unfortunately, that's actually the way it is with cars. You can be held responsible for parking tickets and tolls even if someone else was driving your car. Due process is too hard.

      reply to this | link to this | view in chronology ]

      • icon
        ltlw0lf (profile), 27 May 2015 @ 8:55am

        Re: Re:

        You can be held responsible for parking tickets and tolls even if someone else was driving your car.

        Not likely.

        This was tried in California with red-light cameras and "snitch tickets" and it ended up so poorly for the cities involved that most just dumped their cases. The city would say that they got a good picture of the driver, and in cases where the picture didn't match the license of the owner, they would send out a snitch ticket that said "tell us who the driver was or we'll prosecute you for their crime" and in most of the cases that went to court, they were dismissed. Extortion is extortion, regardless to whether it is the state or an individual.

        You can be held responsible for parking tickets, since your car *is* parked illegally regardless to who parked it, but I am not aware of any cases where the owner ended up having to pay a fine for a vehicle illegally parked after it was stolen (though I do know of cases where the owner was on the hook to pay impound fees when their car was recovered...those guys are crooks no matter what due process is in place.) Borrowed is a different situation, but a police report of a stolen vehicle is usually all that is required to have a ticket for illegal parking dismissed.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 27 May 2015 @ 4:00pm

          Re: Re: Re:

          First you say "Not likely", then you say "You can be held responsible for parking tickets..."


          It seems to me that you can't even convince with yourself.

          reply to this | link to this | view in chronology ]

        • icon
          John Fenderson (profile), 28 May 2015 @ 7:52am

          Re: Re: Re:

          "You can be held responsible for parking tickets, since your car *is* parked illegally regardless to who parked it"

          This is true, but it's more a matter of practicality than legal philosophy. When a car is illegally parked, there's no way for the cops to know who did it (unlike with moving violations), so the ticket goes to the registered owner.

          But really, the person who did the parking is ultimately responsible -- the difference is that the cops place the job of getting the right person to pay the fine onto the registered owner. The registered owner is expected to get reimbursed by whoever parked the car illegally. If they won't pay, then the owner can take them to small claims to recover the money.

          reply to this | link to this | view in chronology ]


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