Cox Points Out That Rightscorp Is Either A Mass Infringer Itself... Or Admits That Downloading Songs Can Be Fair Use

from the oops dept

Remember Rightscorp? This is the company that is trying to be sort of a "light" copyright trolling operation, sending threatening letters to individuals, but letting them "settle" for lower dollar amounts than the more traditional copyright trolls (in the $10s of dollars rather than in the $1000s). The scheme hasn't been working all that well. Late last year, Righstcorp, along with two music publishing clients, BMG and Round Hill Music, decided to sue broadband ISP Cox, to test the (nutty) theory that the DMCA already requires ISPs to kick users off the internet if they receive multiple takedown notices. The whole lawsuit, beyond the questionable legal theory, appeared to be an attempt to force Cox and others to hand over subscriber info.

Either way, going after Cox may be proving to have been a serious strategic mistake. Both companies have filed motions for summary judgment and the contrast between the two is somewhat stunning. BMG/Round Hill Music's is readable here* and basically focuses on the argument that Cox is somehow unable to make use of the DMCA's safe harbors. While many of the details are redacted, the basic argument is the same as initially filed. That because Cox doesn't kick customers off its service entirely, it fails to meet the requirements of the DMCA's safe harbor:
Cox does not qualify for a safe harbor because, at least since 2010, it has never had nor implemented a policy to terminate repeat infringers in appropriate circumstances. Instead, Cox has created a notification system designed to limit the circumstances in which Cox will learn of infringement on its system. Cox has [REDACTED] more than 95% of the millions of infringement notices sent to it by copyright holders without taking any action.
Of course what it's ignoring is that what Cox was complaining about was that the policies that Rightscorp wanted here included sending blatantly misleading information to end users and sharing information back with Rightscorp. That's not required under the DMCA.

Meanwhile, the motion for summary judgment from Cox is quite a read, with the folks over at TorrentFreak posting an initial summary.

The real kicker: Rightscorp is only working with the publishers, who certainly appear to hold a legitimate copyright interest in the publishing/compositions. But that's different than the copyright in the actual sound recordings. That's held by someone else, who does not appear to be partnered with Rightscorp. And yet, Rightscorp itself claims to have downloaded the various song files to help it find infringers. Yet... if it doesn't have authorization or a license from the copyright holders of the sound recordings, that sounds like Rightscorp just engaged in massive copyright infringement.

That, alone, would be a pretty strong point -- but then Cox's lawyers twist the knife. They point out that the only way in which Rightscorp's own actions would not be infringing is if they were to claim fair use in the downloading of all those song recordings. But if that's the case, then isn't Rightscorp clearly admitting that many of the people its threatening and shaking down would also have a legitimate fair use argument?

Oh, and one final knife twist: given that courts have held that those issuing DMCA takedowns need to take into account fair use before sending those takedowns, this would act as evidence that Rightscorp failed to do that.
In its work for Plaintiffs Rightscorp downloaded files of thousands of sound recordings over the BitTorrent protocol, evidently to create evidence of infringements over Cox’s network.... But copyrights in sound recordings are separate from copyrights in musical compositions.... Rightscorp either committed massive infringements of the sound recording copyrights or must have relied on the fair use doctrine. If the latter, that fact is an admission that activity over BitTorrent may constitute fair use, but there is no evidence that Rightscorp considered the possibility of fair use in generating millions of notices of claimed infringement. Because fair use is not infringement, Rightscorp’s notices contained fraudulent misrepresentations about detections of infringement. See Lenz.... Thus, because Rightscorp acting as agent for Plaintiffs either was an infringer itself or engaged in misrepresentations, Plaintiffs have unclean hands.
Ouch. It will be fun to see these companies try to twist themselves out of that one. The rest of the filing is worth reading as well, and we may do some followup posts on other aspects included. But, in short, Cox points out that the legal theories here make no sense, that the company abused the DMCA process, there there is no evidence of actual infringement and that the publishers failed to actually mitigate any of the damages. You never know how the courts will eventually rule on these things, but from a first glance, Rightscorp's chances aren't looking too good right now.

* Correction: I originally got confused and posted the wrong document here -- but the right document has now been posted.



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  • identicon
    David, 25 Sep 2015 @ 11:52am

    Interesting.

    And much more reasoned that RightCorp "because I said so" brief. I look forward to see how it plays out.

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

  • identicon
    Anonymous Coward, 25 Sep 2015 @ 11:55am

    the thing to perhaps hope for here is that there isn't an attempt to get a settlement for Cox out of court. if it does go to court and the ruling is in Coxs favour, as it should be according to the article, it's gonna be nite nite nurse for a lot of these collection agencies and copyright trolls! that cant be anything except a good thing!
    let's face it, the entertainment industries have, with as much help as possible from politicians and law makers, been shaking people for ridiculous amounts of money, again, thanks to politicians, for doing what amounts to nothing! those industries are doing nothing themselves, making no payment towards the protection of files they claim as theirs, all the while making no payment to the artists.
    if i did something that needed the insurance company to pay out, it would put some provisions in place before giving another policy. if i was hit again in the same way, it would be difficult to get the insurance company to pay out a second time. to be in the same position a third time without having done what was stipulated, i would have no chance of getting cover payments or a new policy. with the entertainment industries, they have gotten away with doing absolutely nothing to prevent their files being downloaded, not even to the extent of offering what people want from a sensible, legitimate option! and because of that and the fact that no politician has the balls to stand up and question why, they continue screwing people over so small a matter that should never ever have been re-categorized as anything other than a civil issue! certainly never worth the stupid fines or jail sentences! those in Congress who did this 'FOR THEIR FRIENDS' should be ashamed!!

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

  • icon
    That Anonymous Coward (profile), 25 Sep 2015 @ 12:01pm

    Annnnd Snakeoil v3.0 is fully engulfed in the fire of its own making...
    So what is the over under on when they will launch SnakeOil v4 to get more investment money & stockholders who will still believe that there is a magical solution that won't require lawsuits or costs to rake in the billions of imaginary dollars they are sure they are losing?

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

    • identicon
      Lurker Keith, 26 Sep 2015 @ 1:11am

      Re:

      Isn't SnakeOil 4.0 just 3.1, but called "SnakeOil 4 L(i)TE"? Or maybe they'll skip straight to version 10?

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

      • icon
        That Anonymous Coward (profile), 26 Sep 2015 @ 1:55am

        Re: Re:

        I dunno, but then I'm not the one pulling in money by selling the salvation of content vs pirates over and over and over and still getting paid despite failing at every level.

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

  • identicon
    Anonymous Coward, 25 Sep 2015 @ 12:24pm

    Motions vs Memorandums

    BMG/Round Hill Music's is barely longer than a single page and makes basically no legal arguments at all.
    From page 2 of the the BMG/Round Hill motion that you embedded above:
    The grounds and authorities in support of this motion are set forth in the Copyright Holders’ Memorandum in Support of Their Motion for Partial Summary Judgment and the attached supporting declarations and exhibits.
    Why didn't you embed plaintiff's memorandum in support of their motion?

    Comparing plaintiff's motion to defendant's memorandum is not a meaningful comparison.

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

    • icon
      Mike Masnick (profile), 25 Sep 2015 @ 12:50pm

      Re: Motions vs Memorandums

      Comparing plaintiff's motion to defendant's memorandum is not a meaningful comparison.


      Yes, that was a mistake. I've corrected the post. Sorry about that.

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

      • identicon
        Anonymous Coward, 25 Sep 2015 @ 1:18pm

        Re: Re: Motions vs Memorandums

        Yes, that was a mistake. I've corrected the post. Sorry about that.
        Thanks. The updated hyper-link works for me.

        In the embed though, I'm seeing:
        DV.load("//www.documentcloud.org/documents/2432557-bmg-summary-judgment.js"
        and
        <noscript> ;
        <a href="https://assets.documentcloud.org/documents/2432557/bmg-summary-judgment.pdf">Bmg Summary Judgment (PDF)</a>
        <br/>
        <a href="https://assets.documentcloud.org/documents/2432557/bmg-summary-judgment.txt">Bmg Summary Judgment (Text)</a>
        </noscript>
        I've hard-refreshed my cache and am getting a page that's marked as modified "Fri 25 Sep 2015 01:14:41 PM PDT"

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

  • identicon
    Squirrels Without Boarders, 25 Sep 2015 @ 12:30pm

    The Rightscorp motions states that there is a memo of support for their motion. Has that memo not been filed?

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

  • icon
    Mason Wheeler (profile), 25 Sep 2015 @ 12:50pm

    in the $10s of dollars

    I ought to report you guys to the Department of Redundancy Department for that...

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

  • identicon
    Anonymous Coward, 25 Sep 2015 @ 1:08pm

    Copyrights best and brightest...

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

  • identicon
    Anonymous Coward, 25 Sep 2015 @ 1:37pm

    The Logic Is Impeccable

    Rightscorp is to copyright as bank robbery is to funds withdrawal.

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

    • identicon
      Anonymous Coward, 26 Sep 2015 @ 12:41am

      Re: The Logic Is Impeccable

      I mean, technically, bank robbbery is a fund withdrawal. Just not your own.

      Just like Rightscorp it technically a holder of a copyright. Just not its own.

      The comparison holds up pretty well.

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

  • icon
    MadAsASnake (profile), 25 Sep 2015 @ 2:04pm

    I don't believe Rightscorp downloads any part of the files - they just scrape IPs. Of course, admitting that would be admitting they have no evidence whatsoever.

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

    • identicon
      Anonymous Coward, 28 Sep 2015 @ 8:24am

      Re:

      They *have* to download it to prove infringement, otherwise they would be filing an illegal claim as it could be a similarly named file that is not theirs, such as a cover song.

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

  • identicon
    Anonymous Coward, 25 Sep 2015 @ 5:46pm

    Cox's brief is comically bad. What Rightscorp did at their own computers has zero bearing on the DMCA notices that Cox stupidly ignored. It's a separate issue, and Rightscorp aren't the ones being sued here. Maybe Cox can find someone that wants to sue Rightscorp for infringement and they can cheer from the sidelines. Best of luck with that.

    The idea that a judge would grant a summary judgement in favor of Cox based on this silly diversion is laughable.

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

    • identicon
      Anonymous Coward, 25 Sep 2015 @ 7:33pm

      Re:

      Anonymous shill just hates it when copyright law is enforced.

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

    • icon
      TwelveBaud (profile), 28 Sep 2015 @ 8:48am

      Re:

      What Rightscorp did at their own computers has zero bearing on the DMCA notices that Cox stupidly ignored.
      First, Cox wasn't stupid to ignore them. Would you spew wrong, legally-threatening garbage to your customers just because some moron with dollar signs in his eyes says so?

      Second, it's very relevant to the case at hand. Or have you forgotten about the unclean hands doctrine?

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

  • identicon
    Pixelation, 25 Sep 2015 @ 10:55pm

    Looks like Rightscorp is about to be reamed by Cox.

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


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