Judge Mocks Public Interest Concerns About Kicking People Off Internet, Tells Cox It's Not Protected By The DMCA
from the that's-a-problem dept
This is a big, big deal. If the case goes against Cox, then it would create a massive problem for the public on the internet. Accusations of infringement could potentially lead to you totally losing access to the internet, which could really destroy people's lives, given how important the internet is for work and life these days. The details of the case look like they should favor Cox pretty easily. After all, Cox pointed out that Rightscorp only had licenses from the publishes, meaning they had no copyright in the sound recording -- yet they admitted to downloading the sound recording, suggesting that, if anything, Rightscorp was a mass infringer. On top of that there was pretty strong evidence that Rightscorp does not act in good faith in how it runs its shakedown practice, telling people that they have to take their computers to the police to prove their innocence (really).
Unfortunately, as Eriq Gardner reports, Judge O'Grady has ruled against Cox on a very key point: does its current policy grant it safe harbor under the DMCA. The judge said no, though we're still waiting for the full ruling as to why.
The bigger story is O'Grady's determination that there is "no genuine issue of material fact as to whether defendants reasonably implemented a repeat-infringer policy as is required by §512(i) of the DMCA," granting a motion that Cox is not entitled to a safe harbor defense.Now, just because you're not protected by the safe harbor it does not mean that you are automatically guilty of infringement. There are cases where sites have not qualified for the safe harbor and still prevailed. But it does make things more difficult and complicated and, much more importantly, opens the door to lots and lots of mischief by the RIAAs and MPAAs of the world to use this to kick people off the internet entirely based on accusations of copyright infringement. That's immensely worrisome.
O'Grady doesn't seem to think that kicking people off the internet is really a big deal. Earlier in the case, we've discovered, in the process of flat out rejecting an attempt by Public Knowledge and EFF to file an amicus brief, Judge O'Grady made his views clear:
I read the brief. It adds absolutely nothing helpful at all. It is a combination of describing the horrors that one endures from losing the Internet for any length of time. Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it's completely hysterical.That's his response to two well known public interest groups explaining to him the "real world harmful effects" of Rightscorp's copyright shake-down trolling business. But he didn't want to hear any of it. Because protecting the ability of Americans to not be the subjects of extortion schemes and to enable them to communicate and work is "hysterical" and no different from kids not doing their homework because of too much YouTube.
The details here matter, but I would imagine that Cox is likely to appeal. One hopes that the appeals court is more open to listening to the concerns over copyright trolling and kicking people off the internet.