Dangerous: Judge Says It Was 'Objectively Unreasonable' For Cox To Claim DMCA Safe Harbors

from the this-is-bad dept

We've been covering the BMG v. Cox case since the beginning, and a bad decision just got made even worse -- and more dangerous. If you've been following the case, you know that it's on appeal right now (and a whole bunch of amici have weighed in), but in the meantime, the judge in the district court, Judge Liam O'Grady, has doubled down on his opportunity to chop up and mock the DMCA's safe harbors by telling Cox it must pay $8 million to BMG in legal fees because its using the DMCA safe harbors as a defense was found to be "objectively unreasonable."

That's crazy, for a variety of reasons, but we'll get there. From the very beginning, this case was a joke, and it's unfortunate that the court didn't realize that early on. The case was filed back in 2014, and we pointed out that it was really BMG (and another publisher, Round Hill Music) acting as a proxy for copyright trolling operation Rightscorp, testing out the wacky legal theory that the DMCA requires that ISPs kick repeat infringers entirely off the internet. No one has ever interpreted the DMCA in this manner. Yes, 512(i) requires a repeat infringer policy, but it had always been widely recognized that that referred to services that hosted content, not network providers (e.g., YouTube is required to have a repeat infringer policy that kicks users off YouTube if they keep posting infringing works, but your ISP shouldn't kick you off the internet for the same thing.)

If that interpretation of the law was legit, you'd think that someone would have tried it in court before -- especially with all the whining from the MPAA and RIAA about how ISPs weren't doing enough to stop piracy. So this was a real stretch as a legal theory.

But, somewhat amazingly -- even after the legal proceedings demonstrated that the lawsuit was really about copyright trolling and exposed some heinously bad behavior by copyright troll Rightscorp -- the case went against Cox and in favor of BMG (Round Hill Music was kicked out of the case early on).

O'Grady made it pretty clear in the case that he's not a big fan of this internet thing, and doesn't see why it's a big deal if someone were to get kicked off the internet. At one point in the proceedings, Public Knowledge and EFF sought to file an amicus brief. Admittedly, many district court judges aren't fans of amicus briefs (they're more usually seen at appellate courts), but O'Grady was so dismissive of this one that it was fairly incredible:

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.

So, yeah. Judge O'Grady then said that Cox wasn't protected by the DMCA at all, which made it easy for the jury to find in favor of BMG and award it $25 million from Cox. Part of the problem was that there was some sketchy behavior by Cox (including some really dumb emails by staff who don't understand the law, but look damning), but none of it should have directly impacted the legal issues, but that behavior clearly influenced O'Grady.

And, now, because of that, O'Grady has awarded legal fees, by arguing that Cox relying on the very same DMCA safe harbors that everyone else relies on and where Cox was the only major ISP that would kick off any user for infringement, was somehow "objectively unreasonable." Think about that for a second. Let's repeat it: Cox's policy was the only one at a major ISP that kicked people off the network for repeat infringement. And every network provider regularly relies on the DMCA safe harbor to protect them from liability. And yet, Judge Liam O'Grady's opinion says that it was "objectively unreasonable." Oddly, O'Grady's opinion here is again entirely focused on the bad behavior by some Cox employees, and not the overall question of whether or not the safe harbor actually works the way O'Grady (and Rightscorp and basically no one else) seems to think it works. Rather than explaining why it's "objectively unreasonable" for Cox to rely on the DMCA's safe harbors, O'Grady basically says that the reliance was unreasonable... because of the bad behavior. That's conflating two separate things. Sanction them for bad behavior if you must, but don't let that cloud the actual legal issue.

The objective reasonableness of a party's position is an important factor in deciding whether to award fees.... In a hard-fought litigation battle such as this one, discovery disputes and fierce briefing are to be expected, and they should not be held too harshly against either party. Nonetheless, there are a few instances in which Cox's advocacy crossed the line of objective reasonableness. In particular, both Cox's attempts to obscure its practice of reinstating infringing customers, and its subsequent assertions of a deeply flawed DMCA defense evince a meritless litigation position that Cox vigorously defended.

[....]

.... Although Cox's DMCA defense cannot be categorized as frivolous or in bad faith, the Court found that "[t]he record conclusively establishes that before the fall of 2012, Cox did not implement its repeat infringer policy. Instead, Cox publicly purported to comply with its policy, while privately disparaging and intentionally circumventing the requirements."... The evidence supporting this conclusion was overwhelming, and it included "smoking gun" email conversations.... The most memorable of these contained Cox's own abuse manager stating: "F . . . the dmca!!!"... Therefore, although Cox's defensive arguments may have been reasonable as an abstract legal theory, when viewed in light of the actual facts of the case, they evince an objectively unreasonable litigation position that was nonetheless vigorously defended.

It's clear that O'Grady is hung up on the bad behavior and statements by Cox employees. And, again, what they were saying was really bad. But the real question is whether or not it actually violated the DMCA. And Cox argued, quite reasonably, that it did not. The DMCA doesn't actually require what O'Grady and BMG insist it does, and no other ISP even goes as far as Cox did (bad behavior or not). So because you have some clueless Cox employees, who were spouting off internally about how much they hate the DMCA (an opinion shared by many) and because they implemented their repeat infringer policy in a way that O'Grady felt wasn't reasonable, suddenly arguing that the safe harbors still should apply (because they should!) is "objectively unreasonable"? That's dangerous.

Again, the earlier parts of the case are already on appeal, so hopefully this will all get wiped out and this order won't matter in the long run either. But if it does stand, it's yet another serious problem that's come out of this particular case.


Reader Comments

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  • icon
    That Anonymous Coward (profile), 16 Feb 2017 @ 11:02am

    Wow, a Judge who has decided that an accusation is basis enough to invoke punishment on a citizen.

    Repeat infringer my ass. They sent a ton of paper & somehow this is to force a 3rd party to kick them off the internet because they said so.

    But then this is the Judge who thinks that Kim Dotcom living in another country was him fleeing prosecution in the US where he didn't live.

    This old man is yelling at the kids to get off his lawn, I think its past time we tell him to get out of the courts.

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

    • identicon
      Anonymous Coward, 16 Feb 2017 @ 11:11am

      Re:

      "Repeat infringer my ass. They sent a ton of paper & somehow this is to force a 3rd party to kick them off the internet because they said so."

      And all the while the alleged/accused person still hasn't been proved in a court and ruled by a Judge that they are guilty of the copyright infringement or even guilty of being a repeat copyright infringement offender at all in the first place.

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

      • icon
        Roger Strong (profile), 16 Feb 2017 @ 11:54am

        Re: Re:

        I know a senior in a retirement home whose ISP forwarded copyright threats to him one night under Canada's Notice on Notice scheme. (He had never heard of BitTorrent, let alone The Shannara Chronicles.)

        Under American rules, that one-time overnight burst of a dozen or copyright notices all at once, would probably have made him a "repeat offender."

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

    • identicon
      Anonymous Coward, 16 Feb 2017 @ 11:15am

      Re:

      "Wow, a Judge who has decided that an accusation is basis enough to invoke punishment on a citizen."

      ha ha ha... huh what???

      Which planet do you live on? This is humanity. Have you not seen the loads of innocent people going to jail over things like this? I have read more than enough judges to know that objectivity is about the last thing that makes it into a court room, and even less so, from the words of a Judges mouth.

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

      • icon
        Anonymous Anonymous Coward (profile), 16 Feb 2017 @ 11:22am

        Re: Re:

        Or not. See Prenda

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

        • identicon
          Anonymous Coward, 16 Feb 2017 @ 11:27am

          Re: Re: Re:

          I did not say that it was impossible, but how many times did those clowns have a go with the system before the system took care of them?

          How many times does a regular Joe have a go before the system crushed them?

          "Or Not." my ass!

          So take the sheepskin off... if I was wrong, a Prenda or others like it never would have been! USA did not earn the reputation as being the most litigious nation for nothing.

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

      • icon
        That Anonymous Coward (profile), 16 Feb 2017 @ 1:46pm

        Re: Re:

        Nope, its a civil matter, jail time isn't on the table.

        I've seen plenty of people dragged into court on nothing more than an IP address.
        I've seen Judges allow them total access to the accused life, then listen intently when lack of evidence is shown as proof of wrong doing.

        What I have not seen ever is a court declaring someone a repeat infringer without hearing a case.

        This Judge doesn't care about technology and has assumed corporations are always right because IP is super duper valuable, and accusations without any evidence is perfectly fine to rule against the accused.

        Using this logic, you only need to call the Judge a pedophile several times to force him to register on the sex offender registry...

        Perhaps he assumes that the "penalty of perjury" actually means something on a DMCA notice, not understanding nothing ever comes from it.

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

        • identicon
          Anonymous Coward, 16 Feb 2017 @ 2:17pm

          Re: Re: Re:

          I said things like this. Which means they do not have to match up.

          Yes in this case since it is a Civil One the punishment will be directly different, but the "process used to judge" is still the same.

          And yes, Judges are human just like everyone else. Accuse them of being a pedophile several times and people will start to believe it and possibly a few other judges too.

          An that "under penalty of perjury" is not likely to be enforced. Just look at the extensive number of false DMCA shotgun organizations there are out there completely getting by with it.


          "What I have not seen ever is a court declaring someone a repeat infringer without hearing a case."

          Every seen any of those cases where people are tried in absentia? though I am not certain this is supposed to be possible within a civil court, but hell why the fuck not... just about every other manor of corruption is working its way through the inJustice System lately anyways... so what is one more?

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

          • icon
            That Anonymous Coward (profile), 17 Feb 2017 @ 6:31am

            Re: Re: Re: Re:

            They are not tried in absentia.
            They default on the case.
            By ignoring the court orders to appear & offer any defense the court is allowed to rule against them.
            They were given ample opportunity to plead their case & failed to do so.
            There are cases where default is set aside, but it is very uncommon. The main reason defaults in copyright cases get overturned are because the letters sent look like a scam or they fail to serve the person. We followed a case once where it appeared the person who defaulted had been dead for a few years, but the name was still on a bill.

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

    • identicon
      Anonymous Coward, 16 Feb 2017 @ 11:58am

      Re:

      Wow, a Judge who has decided that an accusation is basis enough to invoke punishment on a citizen.

      Obviously bought by the MPAA and RIAA, as that is exactly what they want the law to allow them to do.

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

      • icon
        That Anonymous Coward (profile), 16 Feb 2017 @ 1:38pm

        Re: Re:

        He's made some 'unique' rulings in the MegaUpload case.

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

        • identicon
          Anonymous Coward, 16 Feb 2017 @ 2:00pm

          Re: Re: Re:

          If you mean unique as in crazy and never going to hold up yes he did.

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

          • icon
            That Anonymous Coward (profile), 17 Feb 2017 @ 6:34am

            Re: Re: Re: Re:

            The problem is it will hold up until a bunch of time & effort is wasted challenging someone who ruled without any concept of the underlying details.

            Many of these Judges are to old to to grasp these technical issues, and Congress has created a quagmire of laws that literally are like telling a dog to stay & fetch at the same time.

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

  • identicon
    My_Name_Here, 16 Feb 2017 @ 12:39pm

    You guys tend to miss the point here. Cox was apparently not forwarding any notices, and was ignoring repeated notices against any particular individual.

    DMCA by definition is a notice / counter notice situation. Someone gets a notice, and they say "I didn't do that" and then the original claimant can take the case to court if they so desire. Cox has the same obligation that any other hosting company has, which is to deal with repeated infringement or to accept responsibility for it. Not forwarding notices or not helping people to counter notice is their fault.

    Cox failed massively.

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

  • identicon
    Anonymous Coward, 16 Feb 2017 @ 1:59pm

    the judge needs to learn the law, then get sacked, fucking idiot!!

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

  • icon
    That One Guy (profile), 16 Feb 2017 @ 5:29pm

    A match made in (Bizzaro) heaven

    So we've got a judge that clearly holds the internet as little more than an insignificant toy making incredibly important rulings regarding the internet and the laws that allow it to work in it's present form.

    What next, shall we have a judge who doesn't see what the big deal is with those newfangled 'cars'('If walking is good enough for me, it's good enough for anyone!') ruling on whether or not people can have a licence?

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

    • icon
      That One Guy (profile), 16 Feb 2017 @ 6:20pm

      Re: A match made in (Bizzaro) heaven

      What next, shall we have a judge who doesn't see what the big deal is with those newfangled 'cars'('If walking is good enough for me, it's good enough for anyone!') ruling on whether or not people can have a licence revoked from mere accusations of wrongdoing by third-parties?

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

  • icon
    PaulT (profile), 17 Feb 2017 @ 12:36am

    "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."

    If I lost internet access, I'd lose my job pretty quickly. It would also severely hamper my ability to find a new one, since most job postings in my area are online, and remote on call is the nature of my industry. In addition, I'd have to cancel the streaming services that this idiot's preferred side gets my money from, and stop buying additional goods and services that I regularly buy from those industries to literally the tune of thousands of dollars a year (concerts, film festivals, etc). All potentially because someone found a way into my router without my knowledge.

    You can go screw yourself, judge.

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

    • icon
      That One Guy (profile), 17 Feb 2017 @ 11:58pm

      Re:

      All potentially because someone found a way into my router without my knowledge.

      Oh it's even more absurd than that. It doesn't even need to reach the level of 'Someone else used your connection to infringe on copyrights', a third-party merely needs to assert that it happened and far too many judges will just take them at their word.

      Less 'Someone else drove your car and broke the law, so you're going to be held responsible' and more 'Someone else claims that a car that looks like the one they claim is yours broke the law, and we're not going to check whether or not you even own a car, and if so whether or not it was your car, we're just going to make you responsible for the crime anyway'.

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

  • icon
    Mononymous Tim (profile), 17 Feb 2017 @ 8:56am

    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.

    There's a phrase I have for people like this. He's clueless as to how clueless he is. And with that much power, he's dangerous to people's livelihoods. He needs ejected from the game if he's that out of touch with reality.

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

  • icon
    kenbe (profile), 27 May 2017 @ 6:23pm

    Need some real advice please

    I'm a 67 year old guy that stupidly downloaded music for my private listening. Got caught last week. Paid the $20 and now they are coming back for more downloads but NOT all that I downloaded. Do I pay them again for the six additional downloads or does this open me up to trouble because there are more that I did download. My landlord has the account but has not given them my personal information. What can I do to save my landlords connection and end all of this? I hate to admit but I'm scared and don't make that kind of money at my age. Help please. thank you

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


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