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

Judge Liam O'Grady -- the same guy who helped the US government take all of Kim Dotcom's stuff, is the judge handling the wacky Rightscorp-by-proxy lawsuit against Cox Communications. The key issue: Rightscorp, on behalf of BMG and Round Hill Music flooded Cox Communications with infringement notices, trying to shake loose IP addresses as part of its shake down. Cox wasn't very happy about cooperating, and in response BMG and Round Hill sued Cox, claiming that 512(i) of the DMCA requires ISPs to kick people off the internet if they're found to be "repeat infringers." Historically, it has long been believed that 512(i) does not apply to internet access/broadband providers like Cox, but rather to online service providers who are providing a direct service on the internet (like YouTube or Medium or whatever). However, the RIAA and its friends have hinted for a while that they'd like a court to interpret 512(i) to apply to internet access providers, creating a defacto "three strikes and you lose all internet access" policy. Rightscorp (with help from BMG and Round Hill Music) have decided to put that to the test.

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.

Filed Under: 512i, copyright, dmca, liam o'grady, safe harbors, three strikes
Companies: bmg, cox communications, rightscorp, round hill music


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  1. This comment has been flagged by the community. Click here to show it
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    Whatever (profile), 21 Nov 2015 @ 10:26am

    You have to love it when a judge sees through all the bullshit and calls out a major ISP for being, well, arrogant.

    First and foremost, Cox really should have a repeat infringer policy. They also not clear that they are forwarding DMCA notice to their customers or taking action to end reported infringement on their network. The DMCA law is pretty clear that a hosting company or other can and should take action where possible to stop reported infringement, or potentially become liable for it. Without a proper repeat infringer policy (and application of this policy) they seem to be out of compliance with the law, with potentially costs them any safe harbor they might have.

    The judge clearly realizes there is a problem, when an ISP can essentially ignore a DMCA notice,not deal with the infringement in any meaningful way, and obstruct all efforts to be able to legally serve the infringing directly. It seems that the law should (and potentially does0 not allow them to have it both ways.

    Moreover, I think the judge is correct. Internet access is nice, but much like a license to drive a car it's not a right, it's a privilege. It's always very common for courts to order people not to do certain things that they have problems with, such as make phone calls, visit certain places, or enter a given geographical area. Restricting their access to the internet by allowing an ISP to disconnect repeat offenders isn't outrageous, it's actually a pretty normal concept.

    Oh, and for what it's worth, they are not being removed on "accusations alone". Failure to answer a DMCA complaint is in itself an admission of being in violation. If someone is getting multiple DMCA notices that are not valid and doing nothing about it, it's really not different any other legal notice that you may receive. The lack of a response is and admission that the content of the notice is correct, and it would take multiple such notices for an ISP to have to act. If you wanted to protect your connection at home to "work" (aka watch porn and chat on twitter), then you may want to consider turning off the torrent client and not seeding stuff - remember, this isn't about downloading, it's about seeding / sharing.

    You may stop waving your arms now.

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