As Predicted, Cox's Latest Appeal Points To SCOTUS' Refusal To Disconnect Sex Offenders From Social Media

from the which-is-worse? dept

Last week the Supreme Court managed to hold its nose long enough to properly assert that banning convicted sex offenders from social media was plainly an infringement on their First Amendment rights. While much of the media coverage focused on the question of sex offenders having access to these well-trafficked websites, the real implications of the ruling were always likely to be far more reaching. We specifically pointed to the reasonable question: if sex offenders can't be blocked from internet sites due to their First Amendment rights, how can we possibly require ISPs to disconnect those accused of piracy from the internet under even the most tortured reading of 512(i) of the DMCA? In that original post, Mike wrote:

I expect that to be quoted in many other cases -- and a big one may be the ongoing attempts right now by the legacy entertainment industry to force ISPs to kick people off of their service based on accusations (not convictions) of infringement. Those cases, like this Packingham case, involve using a law to claim that people should be blocked from using the internet. And based on the quotes above, it seems quite likely that parts of the DMCA are clearly unconstitutional. The lawsuits -- mainly the BMG v. Cox ruling which is currently on appeal, and the more recent UMG v. Grande Communications (which follows the same basic outlines of the Cox case) -- involve arguing that 512(i) of the DMCA requires ISPs to kick users off their service entirely based on accusations of infringement. As we've explained, this already appears to be a twisted interpretation of 512(i), but now it appears there's a very reasonable chance that the Supreme Court could find 512(i) outright unconstitutional under the First Amendment for broadly blocking internet access in a way that harms free speech rights.

It appears we're starting down the road of finding out exactly what the court's answer to this question will be, as Cox recently filed an appeal and has now referenced the SCOTUS decision in its written arguments.

Packingham is directly relevant to what constitute ‘appropriate circumstances’ to terminate Internet access to Cox’s customers. The decision emphatically establishes the centrality of Internet access to protected First Amendment activity.

As the Court recognized, Internet sources are often ‘the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge’.

The filing goes on to note that the government is not allowed to infringe on free speech in order to prohibit unlawful speech. If ever there were an example of that very thing, it certainly would be accused pirates being disconnected from what has now been cited as a speech medium in the internet. I'm genuinely looking forward to hearing oral arguments from the legal staff of the movie and record labels that those accused of piracy, typically on flimsy at best evidence, ought to be afforded less rights than convicted sex offenders. We've seen much demonizing of the internet in general and piracy in particular, but I'm having a hard time conjuring up the images of those lawyers managing to go that far. That's an argument that's going to need to be made, however, given the contention of Cox's latest filing.

And if it offends the Constitution to cut off a portion of Internet access to convicted criminals, then the district court’s erroneous interpretation of Section 512(i) of the DMCA — which effectively invokes the state’s coercive power to require ISPs to terminate all Internet access to merely accused infringers — cannot stand.

A win for Cox would mean much for the free speech rights of everyone in regards to internet access. A loss would mean this country's court system has some seriously skewed priorities for who should and should not be allowed access to the web.


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  • icon
    Mason Wheeler (profile), 28 Jun 2017 @ 1:50pm

    TIL Cox's legal team reads Techdirt. :P

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

    • icon
      Mike Masnick (profile), 28 Jun 2017 @ 3:11pm

      Re:

      TIL Cox's legal team reads Techdirt. :P

      They actually do! Though I'm also 100% sure that they came up with this idea independently of us suggesting it.

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

      • identicon
        Anonymous Coward, 28 Jun 2017 @ 3:35pm

        Re: Re:

        Hey Mike, could you pass along my complaint, as one of their subscribers, about moving to bandwidth caps?

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

        • identicon
          Thad, 28 Jun 2017 @ 3:54pm

          Re: Re: Re:

          Ugh. Yeah, I got that email too.

          I'm not happy, but of course there's not a fuck of a lot I can do about it, since my choices for broadband Internet are (1) Cox and (2) just don't use the Internet.

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

  • identicon
    Anonymous Coward, 28 Jun 2017 @ 2:01pm

    but preying on little kids, trying to do all sorts of nasty things to them and turning them into pedophile playthings is nowhere near as bad as downloading music and/or movies or trying to copy them! you just ask the RIAA and MPAA!!

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

    • identicon
      Baron von Robber, 28 Jun 2017 @ 2:06pm

      Re:

      Of course! One ruins the life of a young one, bringing their psyche to tatters and leaving a stigma till they pass from this world!

      The other is about pedos.

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

      • identicon
        Anonymous Coward, 28 Jun 2017 @ 5:09pm

        Re: Re:

        I fully agree with ruining the lives of idiot teens, we need more people that are willing to ruin lives to save lives.

        After all, if the punishment for cyberbullying was to be publicly executed 12 hours after being caught bullying someone; and it was actively enforced, no one would cyberbully other people.

        If the punishment for shoplifting was that you'd have your right hand chopped off within 5 min of passing the threshold, teens wouldn't shop lift.

        This is the only way to get stupid people to behave themselves, and because we reward stupid people who procreate with more money; and we allow criminally stupid people (such as the Trump family) to procreate... we're a society of idiots which means we need these draconian punishments because we're not enlightened enough to simply stop doing that.

        *And that you seem to be supporting pedos by trying to claim that pedophilia isn't as bad to a young child as being caught stealing... well... we clearly know where you fall on the IQ scale... a nice solid 100, where all the idiots are ;p (IQ jokes! Only people who know what IQ is can understand them.)

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

  • icon
    stderric (profile), 28 Jun 2017 @ 2:22pm

    A loss would mean this country's court system has some seriously skewed priorities for who should and should not be allowed access to the web.

    Mr., um, Geigner is it? Welcome to TechDirt!

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

  • icon
    Vidiot (profile), 28 Jun 2017 @ 2:47pm

    Cox is the white hat?

    I... uhhh... just give me a minute. Trying to associate the word "Cox" with something positive, and it's not working.

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

  • identicon
    Anonymous Coward, 28 Jun 2017 @ 3:01pm

    "I'm genuinely looking forward to hearing oral arguments from the legal staff of the movie and record labels that those accused of piracy, typically on flimsy at best evidence, ought to be afforded less rights than convicted sex offenders."

    I wonder if they pull the "Piracy funds terrorists and terrorism" card out and therefore terrorists and those that fund it should have no right to access the internet.

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

  • icon
    That One Guy (profile), 28 Jun 2017 @ 3:05pm

    "It's a matter of scale you see..."

    I'm genuinely looking forward to hearing oral arguments from the legal staff of the movie and record labels that those accused of piracy, typically on flimsy at best evidence, ought to be afforded less rights than convicted sex offenders.

    "While convicted sex offenders might have caused grievous harm to individual children, copyright, The Most Important Thing Ever Upon Rests The Entire World Economy has far wider influence, and is capable of sinking the economy of entire countries if threatened.

    As such there mere accusation of copyright infringement is ultimately a far more dangerous threat to the well-being of all, including children, as copyright infringement stands to utterly destroy the economy, leaving millions of children destitute and in dire straights.

    It is on these grounds that we affirm our previous position, that of asserting that copyright infringement is such a vastly more harmful crime such that accusations should be treated as valid justification for revoking the ability for the accused to access the internet."

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

    • icon
      Bergman (profile), 28 Jun 2017 @ 4:21pm

      Re: "It's a matter of scale you see..."

      With the simple solution of accusing the MAFIAA of copyright infringement. And then no one will ever hear from them again.

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

  • identicon
    Anonmylous, 28 Jun 2017 @ 4:21pm

    Doubt it.

    While I want them to win, I doubt the SC decision is going to be considered relevant due to competition. ISPs are not compelled to maintain lists of banned subscribers or share said lists with each other. So, in this specific instance, the likely finding will be that the Termination Clause does not violate the 1st Amendment as the accused are free to avail themselves of competing ISPs.

    It sucks, cause as the article points out, this is accusation, not proof and conviction. Now, does it violate the 4th Amendment? Hell yeah it does, obviously. But they don't seem to be arguing that. Yet, at least. Combine the Supreme decision in Packingham with an argument that violation of the 1st is not the only issue, but that violation of 4th is the very basis of the termination clause, and you might have yourself a decent argument.

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

  • identicon
    Anonymous Coward, 28 Jun 2017 @ 4:49pm

    Where is no_name_numbnuts to tell us how pirates are worse than pedos? And I eat paint chips

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

  • identicon
    Anonymous Coward, 28 Jun 2017 @ 4:50pm

    Where is no_name_numbnuts to tell us how pirates are worse than pedos?

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

  • identicon
    Anonymous Coward, 28 Jun 2017 @ 5:41pm

    Only two points needed to differentiate: 1) with piracy, Rights are IN CONFLICT, Copyright "Exclusive Right" versus First Amendment.

    Latter right will have to be reduced, as ALREADY IS in many areas of copyright, else you pirates could simply claim whole works are your "free speech". Also, persons are actively committing crime, the internet is the means itself, and there's no other remedy.

    2) You're forgetting is already okayed if narrowed, and it will be. Don't jump for joy, pirates, because approaches certainty that SC won't see it your way: lawyers can split hairs down to atoms. The whole DMCA area isn't settled.

    Besides that, some technical limit, throttling or day-time windows, on pirates can be found and ordered on ISPs. It's easy to spot torrenting, for instance, by up/down ratio.

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

  • identicon
    Anonymous Coward, 28 Jun 2017 @ 5:41pm

    Only two points needed to differentiate: 1) with piracy, Rights are IN CONFLICT, Copyright "Exclusive Right" versus First Amendment.

    Latter right will have to be reduced, as ALREADY IS in many areas of copyright, else you pirates could simply claim whole works are your "free speech". Also, persons are actively committing crime, the internet is the means itself, and there's no other remedy.

    2) You're forgetting is already okayed if narrowed, and it will be. Don't jump for joy, pirates, because approaches certainty that SC won't see it your way: lawyers can split hairs down to atoms. The whole DMCA area isn't settled.

    Besides that, some technical limit, throttling or day-time windows, on pirates can be found and ordered on ISPs. It's easy to spot torrenting, for instance, by up/down ratio.

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

    • identicon
      Anonymous Coward, 28 Jun 2017 @ 7:20pm

      Re: Only two points needed to differentiate: 1) with piracy, Rights are IN CONFLICT, Copyright "Exclusive Right" versus First Amendment.

      I hate to think that a Microsoft OneDrive or other backup system that would skew someones up/down ratio would EVER be mistaken as a person torrenting.

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

    • icon
      orbitalinsertion (profile), 28 Jun 2017 @ 8:22pm

      Re: Only two points needed to differentiate: 1) with piracy, Rights are IN CONFLICT, Copyright "Exclusive Right" versus First Amendment.

      You are forgetting the flimsy accusation bit.

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

    • identicon
      Anonymous Coward, 28 Jun 2017 @ 8:31pm

      Re: Only two points needed to differentiate: 1) with piracy, Rights are IN CONFLICT, Copyright "Exclusive Right" versus First Amendment.

      How bout people who use TOR? Can we just have isps disconnect them on the spot? As there is no legitimate use for a VPN right? You've said is yourself in the past.

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

    • identicon
      Anonymous Coward, 29 Jun 2017 @ 1:02am

      Re: Only two points needed to differentiate: 1) with piracy, Rights are IN CONFLICT, Copyright "Exclusive Right" versus First Amendment.

      Your bias against people helping themselves without paying the corporations money is showing, as there are many legal uses for torrents, especially when individuals or small projects have a large file they want to distribute,

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

    • icon
      Mat (profile), 29 Jun 2017 @ 7:47am

      Re: Only two points needed to differentiate: 1) with piracy, Rights are IN CONFLICT, Copyright "Exclusive Right" versus First Amendment.

      So in other words you want it so those who work from home, those who schedule their machines to download content (legal or otherwise) while they are out, and everyone who plays WoW (or a half dozen other modern games) that uses BitTorrent for its updater to be marked as a potential pirate? Oh, add in that Windows 10 now -also- by default can do bit-torrent like traffic for its updates... and telling me you can spot it just by the up down bandwidth usage ratio makes me just want to head-desk, and I do networking for a living. (While there are other ways to detect torrenting, this is not one of them... and anyone -using- that deep of packet inspection would be a terrific reason to start using a VPN because ye gods and little fishes a little privacy is nice!)

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 28 Jun 2017 @ 5:50pm

    Only two points needed to differentiate: 1) with piracy, Rights are IN CONFLICT, Copyright "Exclusive Right" versus First Amendment.

    Latter right will have to be reduced, as ALREADY IS in many areas of copyright, else you pirates could simply claim whole works are your "free speech". Also, persons are actively committing crime, the internet is the means itself, and there's no other remedy.

    2) You're forgetting is already okayed if narrowed, and it will be. Don't jump for joy, pirates, because approaches certainty that SC won't see it your way: lawyers can split hairs down to atoms. The whole DMCA area isn't settled.

    Besides that, some technical limit, throttling or day-time windows, on pirates can be found and ordered on ISPs. It's easy to spot torrenting, for instance, by up/down ratio.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 28 Jun 2017 @ 5:50pm

    ZOMBIE ATTACK CONFIRMED! Techdirt has ANCIENT ZOMBIES resurrecting!

    Noticed on 27 June: https://www.techdirt.com/user/andrewlduane -- On May 1st, 2017 @ 9:27am pops up after prior nearly SEVEN years before on Nov 23rd, 2010 @ 11:09am.

    Another Wednesday 28 June: https://www.techdirt.com/user/slowgreenturtle Dec 15th, 2016 @ 3:18pm, again nearly SEVEN year gap to Jul 13th, 2009 @ 8:47am.

    You DOUBLY can't explain that. TWO people after SEVEN years suddenly recall this minor little site on which made a FEW comments, user name, AND password? Baloney! -- Even if is a way to renew forgotten password, the urge to comment after so long is inexplicable.

    Here's one yet more odd, merely very sparse, 12 comments since Dec 15th, 2010: https://www.techdirt.com/user/bobmorning

    My guess is old accounts are taken over for astro-turfing, but whether by "administrators" or "AI" is open because they're bland -- which is quite helpful to TD by presenting the illusion that reasonable persons habit the site.

    Wth TWO nailed down, this isn't just odd, it's ODD SQUARED! So just watch for names you don't recognize and check date at bottom on first page of history.

    Once is happenstance.
    Twice is coincidence.
    Third time is enemy action. (I'm sure have seen a third and more. I'll keep watch. There's so much hidden FUN on inexplicable Techdirt!)

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

    • icon
      Gwiz (profile), 29 Jun 2017 @ 6:11am

      Re:

      Speaking of crazy conspiracy theories.... I heard that Techdirt is sheltering Bigfoot and Elvis in a Buddha statue near their office.

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

    • identicon
      Thad, 29 Jun 2017 @ 7:56am

      Re:

      I recently started using my Slashdot account again. It only had a single post on it from 2008.

      https://slashdot.org/~Thad+Boyd

      I'm morbidly curious about how I fit into your insane ramblings. Please enlighten me as to my part in the conspiracy.

      Or you could, you know, go the fuck away and never come back. That's an option too.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 28 Jun 2017 @ 5:51pm

    Sure seems to work more often if leave off the subject line!

    Took me eight tries to get MY free speech in here. Why do you bother with measures that don't work, often enough?

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

  • icon
    orbitalinsertion (profile), 28 Jun 2017 @ 8:28pm

    _It appears we're starting down the road of finding out exactly what the court's answer to this question will be,_

    I don't know, they always seem to be winners at punt, pass, and kick.

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

  • icon
    MyNameHere (profile), 29 Jun 2017 @ 1:42am

    The infringers would be sued if the ISP wasn't also willing to hide their personal information. Cox stand here is very too faced, it's only based on merely accused infringers, but we are going to make it impossible for you to find out who they are as well.

    They want it both ways. They better be careful, because a win one way could mean they get regulated into divulging customer information for lawsuits.

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

    • icon
      That One Guy (profile), 29 Jun 2017 @ 2:12am

      Re:

      The infringers would be sued if the ISP wasn't also willing to hide their personal information. Cox stand here is very too faced, it's only based on merely accused infringers, but we are going to make it impossible for you to find out who they are as well.

      I'd be interested to see the stats as to how many times, and regarding how many people a lawsuit actually followed the handing over of that sort of information, and wasn't dropped as soon as it looked like the accused was willing to fight back.

      Because after reading story after story where the result of ISP's handing over that sort of information resulted in threats designed to scare people into 'settlements' rather than actual lawsuits where the goal wasn't to make a quick buck but to actually demonstrate guilt and punish the guilty, I suspect that the number is probably fairly low, with the ratio of extortion/legitimate legal action probably leaning pretty heavily towards the former.

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

      • icon
        MyNameHere (profile), 29 Jun 2017 @ 4:57am

        Re: Re:

        I agree with you on this, but the number of ISPs that are willing to turn data over is pretty small, it seems. Most of the stories you read here are about ISPs giving lawyers and such the middle finger when they come calling.

        There will always be someone who will abuse the system. They are the ones that getting written up and as a result the stories you read. But like patents, there are literally millions of patents and a small handful used by trolls. The trolls get written up, the rest are not reported. If you go only by the extreme examples you see written up, it's easy to get mislead.

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

        • identicon
          Anonymous Coward, 29 Jun 2017 @ 8:05am

          Re: Re: Re:

          Have you considered that the lawyers who demand such information have not had the best of reputations, and the ISPs reacted in kind?

          Let's say that this supposed majority of unreported cases that punish actual infringements. If they exist, how are these cases not used for evidence and precedent in other suits? Why are lawyers for plaintiffs running away as soon as the judge wants to look at their evidence?

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

        • identicon
          Anonymous Coward, 29 Jun 2017 @ 10:42am

          Re: Re: Re:

          Most of the stories you read here are about ISPs giving lawyers and such the middle finger when they come calling.

          Then the lawyers have the right to bring their case to court against "John Doe" and if they have enough evidence to win the courts will compel the ISP to turn over identifying information on each "John Doe."

          Of course, that would require that said lawyers have enough evidence to win in in court...which seems unlikely considering that IP addresses are not considered enough to identify people, much less prove their responsibility. Which is, of course, why the lawyers are insistent that they should be able to go directly to ISPs carrying only accusations.

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

  • identicon
    David, 29 Jun 2017 @ 2:42am

    Oh come on.

    We specifically pointed to the reasonable question: if sex offenders can't be blocked from internet sites due to their First Amendment rights, how can we possibly require ISPs to disconnect those accused of piracy from the internet

    Are you seriously comparing sex offenders who harm just single people with copyright infringers who endanger the fabric of information society by messing with the content metering of the copyright groups, the beacons of the free world, tasked with making creators survive on their contributions to the world?

    This is such a non-sequitur. I think you need to watch more DVD educational prepended segments to get your values aligned with the world you are living in.

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

  • identicon
    Anonymous Coward, 29 Jun 2017 @ 4:12am

    Being as Judges have ruled that an IP address does not equal a person then how can an ISP be forced to disconnect someone with someone telling them that IP address x.x.x.x. downloaded copyright material without permission from the rightsholder when Judges have ruled that an IP address does not equal a person?

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

  • icon
    Ninja (profile), 29 Jun 2017 @ 6:44am

    Well, Canada gave a helping hand so they could get a ruling elsewhere to block Americans because piracy, no?

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

  • identicon
    Anonymous Coward, 29 Jun 2017 @ 11:11am

    Lots of angry pirates here today trying to argue piracy isn't actually happening. Definitely convincing. Uh huh.

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

    • identicon
      Thad, 29 Jun 2017 @ 1:59pm

      Re:

      I count zero. I guess your definition of "lots" is different from mine. And the dictionary's. And everyone else's.

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

    • identicon
      Anonymous Coward, 29 Jun 2017 @ 6:50pm

      Re:

      If it was actually happening John Steele would have found some. Turns out he was so bad at finding any he got the IRS on his ass. Don't you just love it when copyright law is enforced?

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


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