Appeals Court Makes A Mess Of Copyright Law Concerning ISPs And Safe Harbors

from the this-makes-no-sense dept

We've been following the BMG v. Cox lawsuit from the very beginning, through all its very odd twists and turns, including having a judge in the district court, Liam O'Grady, who made it quite clear that he didn't much care about the internet, and didn't see why it was a problem if people lost their internet access completely based on merely a few allegations of copyright infringement. The 4th Circuit appeals court has now overturned the lower court ruling and sent the case back to the district court for a do-over. While the initial decision was awful (as we discuss below), this new ruling makes a huge mess out of copyright law and will have serious, dangerous, and long-lasting consequences for the internet as a whole.

If you don't recall, the case involved BMG suing Cox Communications, though much of the case really hinged on the actions of another company, Rightscorp, who has been trying (and mostly failing) to build a business model around a form of mild copyright trolling. Rather than the aggressive "sue 'em and settle," strategy employed by others, Rightscorp would send DMCA takedowns to ISPs, with a settlement offer, and hope that the ISPs would pass those notices on to subscribers accused of infringing.

Cox Communications -- a decently large broadband provider -- made it quite clear to Rightscorp that it did not intend to be a part of its business model, and refused to pass on the settlement letters. Rightscorp started flooding Cox with notices... to the point that Cox decided to effectively just trash all inbound messages from Rightscorp as spam. After all this happened, Rightscorp signed BMG as a client, and then sued Cox, claiming the ISP had violated the DMCA by not kicking users off. What came out during the trial was that Cox basically had a "thirteen strike" policy (some of the earlier strikes involved stopping internet access until you read something and clicked something -- or requiring the user to call in to Cox).

What is rarely noted, of course, is that Cox was basically one of the only ISPs to actually have any termination policy for people who used their connections for copyright infringement. Most ISPs (and most copyright lawyers not working for legacy industry interests) believed that the DMCA's requirement for a "repeat infringer policy" was not directed at access providers, but at content hosts, where the issues are much clearer. However, BMG claimed here that Cox violated the DMCA's requirement for a repeat infringer policy -- and the court agreed. Cox was, partly, undone by some pretty bad behavior behind the scenes, that seemed to tar it as a "bad actor" and obscure the underlying copyright issues. Even more ridiculous was that Judge O'Grady later argued that Cox should pay the other side's legal fees, because even bringing up the idea that it was protected by safe harbors was "objectively unreasonable." That, itself, was crazy, since tons of copyright experts actually think Cox was correct.

On appeal there were two key issues raised by Cox. The main issue was to argue that O'Grady was incorrect and that the DMCA safe harbors covered Cox. The second pertained to the specific jury instructions given to the jurors in the case. The new ruling unfortunately upholds the ruling that Cox is not covered by the DMCA's safe harbors, but does say that the instructions given to the jury were incorrect. Of course, it then proceeds to make a huge muddle of what copyright law says in the process. But we'll get to that.

The Impact on Safe Harbors

Let's start with the safe harbors part of the ruling, which is what most people are focusing on. As the court notes, Cox (correctly, in my view), pointed out that even if it was subject to a repeat infringer policy, that should cover actual infringers, not just those accused of infringing. After all, it's not like there aren't tons upon tons of examples of false copyright infringement accusations making the rounds, and that's doubly true when it comes to trolling operations. If the rule is that people can lose all access to the internet based solely on unproven accusations of infringement, that seems like a huge problem. But, here, the court says that it's the correct way to read the statute:

Cox contends that because the repeat infringer provision uses the term “infringer” without modifiers such as “alleged” or “claimed” that appear elsewhere in the DMCA, “infringer” must mean “adjudicated infringer.” But the DMCA’s use of phrases like “alleged infringer” in other portions of the statute indicates only that the term “infringer” alone must mean something different than “alleged infringer,” otherwise, the word “alleged” would be superfluous. Using the ordinary meaning of “infringer,” however, fully accords with this principle: someone who actually infringes a copyright differs from someone who has merely allegedly infringed a copyright, because an allegation could be false. The need to differentiate the terms “infringer” and “alleged infringer” thus does not mandate Cox’s proposed definition.

Moreover, other provisions of the Copyright Act use the term “infringer” (and similar terms) to refer to all who engage in infringing activity, not just the narrow subset of those who have been so adjudicated by a court. For example, § 501(a), which creates a civil cause of action for copyright owners, states that “[a]nyone who violates any of the exclusive rights of the copyright owner” provided for in the statute “is an infringer of the copyright or right of the author.” 17 U.S.C. § 501(a) (emphasis added).

Similarly, the DMCA itself provides that ISPs who store copyrighted material are generally not liable for removing “material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.” Id. § 512(g)(1) (emphases added). This provision expressly distinguishes among three categories of activity: activity merely “claimed to be infringing,” actual “infringing activity” (as is apparent from “facts or circumstances”), and activity “ultimately determined to be infringing.” The distinction between “infringing activity” and activity “ultimately determined to be infringing” in § 512(g) shelters ISPs from being liable for taking down material that is “infringing,” even if no court “ultimately determine[s]” that it is infringing — because, for example, the copyright holder simply does not file a lawsuit against the person who uploaded the infringing material. As this provision illustrates, Congress knew how to expressly refer to adjudicated infringement, but did not do so in the repeat infringer provision.

Again, the obvious implications of this are... insane. It means that you can potentially get people completely kicked off the internet with a series of knowingly false accusations of copyright infringement. How could anyone justify that as a reasonable policy?

The court insists that the legislative history supports this... but the only way it does is if you torture the legislative history and ignore what it says. Here's what the court says:

The legislative history of the repeat infringer provision supports this conclusion. Both the House Commerce and Senate Judiciary Committee Reports explained that “those who repeatedly or flagrantly abuse their access to the Internet through disrespect for the intellectual property rights of others should know that there is a realistic threat of losing that access.” H.R. Rep. No. 105-551, pt. 2, at 61 (1998); S. Rep. No. 105-190, at 52 (1998). This passage makes clear that if persons “abuse their access to the Internet through disrespect for the intellectual property rights of others”—that is, if they infringe copyrights — they should face a “realistic threat of losing” their Internet access.

But, again, based on the ruling here, this still applies even if the accusations are totally false and no infringement occurred. The court seems to ignore the word "abuse" in this statement and doesn't even bother to consider that there may be abuse on the other side -- in the form of copyright trolling against non-infringers (or simply trying to harm or silence the speech of a non-infringer).

Next up, the court has to determine whether or not Cox's repeat infringer policy was "reasonable." This, itself, is a minefield. The law provides no guidance beyond that to qualify for the safe harbor the provider has to have "adopted and reasonably implemented... a policy that provides for the termination in appropriate circumstances of subscribers... who are repeat infringers." That seems to leave an awful lot of discretion to the provider -- which the court admits... before determining that it doesn't think Cox's policy was reasonably implemented. And this is where a few bad actions by Cox employees comes back to haunt the company:

Here, Cox formally adopted a repeat infringer “policy,” but, both before and after September 2012, made every effort to avoid reasonably implementing that policy. Indeed, in carrying out its thirteen-strike process, Cox very clearly determined not to terminate subscribers who in fact repeatedly violated the policy.

The words of Cox’s own employees confirm this conclusion. In a 2009 email, Jason Zabek, the executive managing the Abuse Group, a team tasked with addressing subscribers’ violations of Cox’s policies, explained to his team that “if a customer is terminated for DMCA, you are able to reactivate them,” and that “[a]fter you reactivate them the DMCA ‘counter’ restarts.” The email continued, “This is to be an unwritten semi-policy.” Zabek also advised a customer service representative asking whether she could reactivate a terminated subscriber that “[i]f it is for DMCA you can go ahead and reactivate.” Zabek explained to another representative: “Once the customer has been terminated for DMCA, we have fulfilled the obligation of the DMCA safe harbor and can start over.” He elaborated that this would allow Cox to “collect a few extra weeks of payments for their account. ;-).” Another email summarized Cox’s practice more succinctly: “DMCA = reactivate.” As a result of this practice, from the beginning of the litigated time period until September 2012, Cox never terminated a subscriber for infringement without reactivating them.

One would hope that this part of the ruling would at least, somewhat, protect other ISPs that don't send stupid emails like that. But, you never know.

The Messed Up Jury Instructions

To fully follow the issues here, we have to take a quick tour to key copyright cases of years past. In the Betamax Case, Hollywood sued the makers of VCR devices (okay, okay, Betamax devices) for selling a product that its customers used to infringe. In 1984, the Supreme Court said that was crazy, and since the VCR had "substanitial non-infringing uses," it was legal to sell it, even if it was used to infringe. Almost 20 years later, the Supreme Court chopped away at this standard a bit in the unfortunate (and still wrong) Grokster case, that said even if the tool had substantial non-infringing uses, if the company "induced" infringement, then it could still be liable. But there had to be fairly strong evidence of actual inducement by the company -- in Grokster, the company more or less encouraged people to infringe.

Cox asked the court to use the Betamax standard in the jury instructions, saying that it's not contributory copyright infringement if there are substantial non-infringing uses -- but the lower court rejected that, and this court does too, pointing to Grokster (but not actually groking what the Grokster court said). But a second complaint about the jury instructions does win the support of the appeals court. Cox, rightly, argued that the jury instruction telling jurors that the standard for contributory infringement was if the company "knew or should have known of such infringing activity." The big problem here is the "should have known" part. That is not the law. It's not in the law. It's not supported by court decisions and has been rejected by numerous court decisions. And, here, the court finally gives Cox a break and says that those jury instructions went too far. "Should have known" is a negligence standard -- it suggests even if you didn't know, you were negligent in not knowing, and therefor still liable. But copyright law demands actual knowledge. And thus, the original ruling is thrown out and sent back to the court.

But... even with the jury verdict being tossed, this discussion is... weird. And troubling. Remember, the Grokster standard is about "inducement" which involved a level of intent on the part of the service provider. That's about taking specific actions to encourage the use for infringement. But, the court here keeps slipping into a separate question of "knowledge." The knowledge question and the inducement/intent question are two separate questions. But it's not clear that the court even realizes that. It keeps going back and forth between questions about inducement and questions about actual knowledge, to the point that it almost appears the court thinks these are the same things. But knowledge alone is not enough to prove a party induced others to infringe on a copyright.

See the following discussion:

First, Grokster’s recitation of the standard—that “[o]ne infringes contributorily by intentionally inducing or encouraging direct infringement” — is on its face difficult to reconcile with a negligence standard. See 545 U.S. at 930 (emphasis added). In addition, it would have been unnecessary for the Court to discuss in detail the situations in which intent may be presumed, and those situations, like Sony, in which it may not, if liability did not require intent at all, but merely required negligence....

Looking to patent law, as the Supreme Court did in Sony and Grokster, further counsels against a negligence standard. The Supreme Court has long held that contributory patent infringement requires knowledge of direct infringement. Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488 (1964). And in 2011, the Court held that willful blindness satisfies this knowledge requirement, but recklessness (“one who merely knows of a substantial and unjustified risk of . . . wrongdoing”) and negligence (“one who should have known of a similar risk but, in fact, did not”) do not. Global-Tech, 563 U.S. at 769–71. The Court reaffirmed this holding in 2015, stating that contributory patent infringement “requires proof the defendant knew the acts were infringing,” and that Global-Tech “was clear in rejecting any lesser mental state as the standard.” Commil USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920, 1928 (2015). The Court expressly rejected the possibility “that a person, or entity, could be liable even though he did not know the acts were infringing.” Id. Thus, in the patent context, it is clear that contributory infringement cannot be based on a finding that a defendant “should have known” of infringement.

In both Grokster and Sony, the Supreme Court adopted now-codified patent law doctrines— the staple article doctrine and the inducement rule. The Court did so because of “the historic kinship between patent law and copyright law,” Sony, 464 U.S. at 439–42, and the similar need in both contexts to impose liability on “culpable expression and conduct” without “discouraging the development of technologies with lawful and unlawful potential,” Grokster, 545 U.S. at 936–37. We are persuaded that the Global-Tech rule developed in the patent law context, which held that contributory liability can be based on willful blindness but not on recklessness or negligence, is a sensible one in the copyright context. It appropriately targets culpable conduct without unduly burdening technological development.

Note that the first paragraph is about inducement, which has specific characteristics, and the latter two are about "knowledge." But knowledge isn't what proves the intent for inducement. So... even as it's right to kick this back to the lower court, it feels like the 4th Circuit got twisted up by its own reasoning.

Then there's the issue of what the court means when it talks about "specific instances of knowledge." See this paragraph:

Selling a product with both lawful and unlawful uses suggests an intent to cause infringement only if the seller knows of specific instances of infringement, but not if the seller only generally knows of infringement. See Ludvarts, 710 F.3d at 1072 (holding that contributory copyright infringement “requires more than a generalized knowledge . . . of the possibility of infringement”; it requires “specific knowledge of infringement”). A seller who only generally knows of infringement is aware that “some of [his] products will be misused” — but critically, not which products will be misused.

This same issue came up in the Viacom v. YouTube case, in which it was found that YouTube wasn't infringing just because it had "general knowledge" that it was hosting some infringing content. It could only be liable if it had actual knowledge of infringing content and then failed to take it down. But... how the hell do you apply that standard here? You can see how it would apply to YouTube, where YouTube can go and see the file still hosted on its servers after being notified that it's infringing and then check to see that it is, indeed, the same material as the copyright holder claims. For an ISP, however, where the data is in motion, as opposed to at rest, all you have to go on are these often erroneous notifications from Rightscorp claiming infringement. But by the time an ISP like Cox would look at it... the transmission would be complete. So how can Cox have "actual knowledge" of infringement -- absent a court ruling that the activity was infringing (bringing us all the way back around to the first point made above)?

Either way, this case is hardly over yet, as there's still another trial to now go through. But, as it stands, it's making a big mess out of copyright law. And that's not good.


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  • identicon
    Anonymous Coward, 2 Feb 2018 @ 9:39am

    Mike says: "Most ISPs (and most copyright lawyers not working for legacy industry interests) believed that the DMCA's requirement for a "repeat infringer policy" was not directed at access providers, but at content hosts, where the issues are much clearer."

    Name one lawyer who says this. It makes no sense. There is disagreement about whether takedown notices apply to access providers, but there is no doubt that the repeat infringer requirement applies to access providers. You're confused.

    Read the statute: "The limitations on liability established by this section shall apply to a service provider only if the service provider . . . has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers"

    "This section" refers to all of Section 512.

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

    • identicon
      Anonymous Coward #2, 2 Feb 2018 @ 11:21am

      Re:

      Dear Mike at Techdirt,
      I believe that the Anonymous Coward in post #1 infringed my copyrights repeatedly in that post. Please ban him.
      Thank you,
      Anonymous Coward #2

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

    • icon
      Cdaragorn (profile), 2 Feb 2018 @ 11:38am

      Re:

      It makes perfect sense, you just don't want to accept it.

      Making the access providers responsible would be like making the city responsible for someone using its streets to transport drugs. The drugs are never kept on the streets or anywhere that the city has access to, yet we're claiming they should be able to tell that there were drugs in that car? That's the line of reasoning that makes no sense.

      The repeat infringement policy has never been applied to access providers in the past, so what makes you say there's no doubt it should apply to them? It applies to those actually hosting (or holding onto) the infringing material. Trying to apply it to anyone else is just looking for a cheap/easy way to get around having to punish those who actually did something wrong.

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

  • identicon
    Anonymous Coward, 2 Feb 2018 @ 9:49am

    haaaa shit!

    "The court insists that the legislative history supports this... but the only way it does is if you torture the legislative history and ignore what it says."

    Pot... meet kettle.

    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, 2 Feb 2018 @ 9:56am

    If all courts and society held to "actual knowledge" standard way you want, it'd be impossible to convict unless every person in a jury witnessed first-hand.

    First, again, this is CIVIL PROCEDURE, it is not criminal level of standard. Get that out of your heads. 50.01% is GUILTY.

    2nd, Cox had/has a party TELLING it -- or would be if didn't dodge being served with process, which I guess is only a flaw if you're James Woods -- that infringements have occurred. That's a fully legal representation which Cox MUST credit under DMCA. That's the abridged procedure -- specified in holy statute, and yet you still argue with it!

    Skipping other points: I don't like setting aside the "should have known" standard, especially because Cox refused to know, but it's reasonable.

    Cox is going to be found guilty again. Plaintiff is now practiced and can fill in points missed before, while Cox still has same problems.

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    • icon
      Anonymous Anonymous Coward (profile), 2 Feb 2018 @ 10:10am

      Re: If all courts and society held to "actual knowledge" standard way you want, it'd be impossible to convict unless every person in a jury witnessed first-hand.

      You are hereby accused of copyright infringement. Why do you need evidence, you have been accused?

      Please report to your ISP and have yourself disconnected from the Internet. Then notify all other ISP's that you have been accused and deserve no Internet connection. Then tell all the libraries and coffee shops and other public Internet connections within a 300 mile radius of your residence that you have been banned from the Internet. Don't forget to notify your friends and neighbors that you cannot use their Internet connections either. Maybe you should notify your enemies as well.

      Sound reasonable?

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      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 2 Feb 2018 @ 10:15am

        Re: Re: If all courts and society held to "actual knowledge" standard way you want, it'd be impossible to convict unless every person in a jury witnessed first-hand.

        > "You are hereby accused of copyright infringement. Why do you need evidence, you have been accused?

        Good! You pirates just continue to ignore / deny / evade the law, and argue with a silly hypothetical.

        You do not even contradict what I state, because can't.

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

        • identicon
          Anonymous Coward, 2 Feb 2018 @ 10:46am

          Re: Re: Re: If all courts and society held to "actual knowledge" standard way you want, it'd be impossible to convict unless every person in a jury witnessed first-hand.

          Completely agree. Guilty until proven innocent!!!!

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

        • icon
          Ryunosuke (profile), 2 Feb 2018 @ 11:24am

          Re: Re: Re: If all courts and society held to "actual knowledge" standard way you want, it'd be impossible to convict unless every person in a jury witnessed first-hand.

          there will be lawsuits about this. You would sue cox for monetary losses and to find out who told cox to kick you off the internet. Then you would turn around and sue Rightscorp/RIAA/MPAA for false accusations. And to top it all off, it wastes EVERYONE'S time.

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          • identicon
            Anonymous Coward, 3 Feb 2018 @ 10:03am

            Re: Re: Re: Re: If all courts and society held to "actual knowledge" standard way you want, it'd be impossible to convict unless every person in a jury witnessed first-hand.

            there will be lawsuits about this. You would sue cox for monetary losses and to find out who told cox to kick you off the internet. Then you would turn around and sue Rightscorp/RIAA/MPAA for false accusations. And to top it all off, it wastes EVERYONE'S time.

            Which is exactly what Rightscorp wants. Because arguing over it, instead of discarding it out of hand, legitimizes their claims. That some random copyright holder can deny you access to an increasingly mandatory communication system and potentially ruin your life if you irk them in any way. It cements the copyright holders positions as the gatekeepers of modern society, a role they have been losing for some time now, and gives them veto power over anything that may threaten them, by making it difficult for others to collaborate, work, and earn a living.

            Even better, it takes the spotlight off of them, and grants them victim status. So they can now say that "We're just trying to uphold our rights." Never mind that their so called "rights" have expanded far beyond their original intended purpose, have caused society undue harm, and desperately needs reforms. The unwashed masses will happily accept it for a few people, and as long as Rightscorp and friends don't kick too many people off of the internet, they get the world order that they want: Everyone is beholden to the rights holders, we all owe them for eternity, and you will be blacklisted from society if you dare question it.

            Quite the well played move by them. The real question for the rest of us is: What's our next move?

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    • identicon
      Anonymous Coward, 2 Feb 2018 @ 10:10am

      Re: If all courts and society held to "actual knowledge" standard way you want, it'd be impossible to convict unless every person in a jury witnessed first-hand.

      "50.01% is GUILTY."

      CITATION needed.

      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, 2 Feb 2018 @ 10:16am

        Re: Re: If all courts and society held to "actual knowledge" standard way you want, it'd be impossible to convict unless every person in a jury witnessed first-hand.

        > "50.01% is GUILTY."

        > CITATION needed.

        Gee, I thought that FACT of civil suits was common knowledge, but evidently I've way over-estimated Techdirt fanboys. You don't even suspect nothin'.

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

        • identicon
          Anonymous Coward, 2 Feb 2018 @ 1:04pm

          Re: Re: Re: If all courts and society held to "actual knowledge" standard way you want, it'd be impossible to convict unless every person in a jury witnessed first-hand.

          "Preponderence of evidence" does not necessarily mean 50.0001% of evidence. The actual meaning is subjective.

          For instance, in some cases, preponderence of evidence may be more than a 2/3 chance. This is different from "beyond a reasonable doubt" which most agree relates to a level of significance of 1% in statistics parlance.

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

    • icon
      Gwiz (profile), 2 Feb 2018 @ 1:58pm

      Re:

      If all courts and society held to "actual knowledge" standard way you want, it'd be impossible to convict unless every person in a jury witnessed first-hand.

      Where does Mike ever say "actual knowledge" should be required across the board in every legal proceeding? That's just a straw-man you've built.

      Copyright law does require "actual knowledge" in case of contributory infringement. This ruling even reinforces that.

       

      Cox had/has a party TELLING it [...] that infringements have occurred. That's a fully legal representation which Cox MUST credit under DMCA.

      You seem to be laboring under the false notion that DMCA notices are proof of something. They are not. They are unsubstantiated accusations of infringement, that is all. They are exactly the same as what you labeled a "silly hypothetical" from Anonymous Anonymous Coward.

      Only a court of law can rule an actual copyright infringement has occurred and until that time the only "actual knowledge" an ISP has is that someone has made an unsubstantiated claim of copyright infringement.

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

    • identicon
      Anonymous Coward, 2 Feb 2018 @ 7:18pm

      Re: If all courts and society held to "actual knowledge" standard way you want, it'd be impossible to convict unless every person in a jury witnessed first-hand.

      Nonsense like the garbage you posted is exactly why the courts are fucking swamped with copyright trolls the like of John Steele, who you love to support but can't bear the sight of Techdirt calling them out on their rubbish.

      Chew on that DMCA vote.

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

  • identicon
    Anonymous Coward, 2 Feb 2018 @ 10:21am

    I think you're misreading the decision. False accusations aren't enough - they have to be true accusations. They just don't have to be adjudicated as true by a court prior to a copyright infringment lawsuit against the ISP.

    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, 2 Feb 2018 @ 10:22am

      Re:

      Yep. That's what the opinion explicitly says. Mike is confused, which is amusing considering the post is supposedly him explaining why the court is confused. Good times at TD.

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      • icon
        Cdaragorn (profile), 2 Feb 2018 @ 11:48am

        Re: Re:

        Please point to where the court actually made an effort to find out if there was any truth at all in the accusations. So far it just looks like you're claiming courts should just declare all defendants in all civil suits guilty because someone said they did something wrong, which even if you think is ok I think most of the rest of us consider absurd.

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        • identicon
          Anonymous Coward, 2 Feb 2018 @ 1:22pm

          Re: Re: Re:

          People can be infringing the copyright or not, regardless of whether a court's made that decision. The court said Cox had to disconnect people who were infringing. It didn't (yet) say they there was anything wrong with disconnecting the falsely accused, so that's one "solution". Or Cox could try to judge people itself. (This is why Mike called it "a mess". It'll be more of a mess if courts decide subscribers have free-speech of due-process rights.)

          So far it just looks like you're claiming courts should just declare all defendants in all civil suits guilty because someone said they did something wrong

          (1) The term "guilty" doesn't apply to civil suits. (2) The "infringers" were not declared guilty or liable. Cox was.

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    • icon
      Anonymous Anonymous Coward (profile), 2 Feb 2018 @ 10:31am

      Re:

      Sure, I accuse you, I swear it. No need for evidence, I swear it.

      Seem satisfactory?

      Without adjudication, and even sometimes with adjudication, the truth of an accusation has no meaning. After all, Prenda got away with accusations...until they didn't. Now some of them are in jail.

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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 2 Feb 2018 @ 10:48am

    Mike Masnick just hates it when copyright law is enforced.

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

  • icon
    Uriel-238 (profile), 2 Feb 2018 @ 11:00am

    I've only had one cup of coffee this morning, so I may not be clear...

    It looks like the DMCA was sloppily written and so the court is stuck in the quagmire of what it actually means.

    Is this normal?

    If this is the state of law and justice in this land -- that we have imprecise codes and yet are trying to enforce them -- it's no wonder our legal system fails to dispense justice.

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    • icon
      Uriel-238 (profile), 2 Feb 2018 @ 11:03am

      This is to say...

      We should be writing law like we write security code. Because half the eyes looking for bugs are looking to exploit them to maliciously hack society.

      And it's terrifying that we do not.

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

      • identicon
        Anonymous Coward, 2 Feb 2018 @ 11:14am

        Re: This is to say...

        half the eyes looking for bugs are looking to exploit them to maliciously hack society.

        So... we're writing laws like the NSA writes cryptographic algorithms?

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

        • icon
          Uriel-238 (profile), 2 Feb 2018 @ 11:48am

          "writing laws like the NSA writes cryptographic algorithms"

          I'd like to say that's what we do already, but we're not even that clever. The unintelligible handwriting of the new tax code serves as a recent example of the state of competence in the US legislature.

          It'd be nice if we wrote laws the way the NSA is supposed to write cryptographic algorithms, the way the public trusted the NSA to write crypto. That they betrayed that trust only highlights the problem with opaque processes.

          No, I don't have a clear model of how we should construct language for our laws, but am point out a problem. I imagine some system of crowdsourcing / open-sourcing language is what might work, where legal / logical experts and ordinary citizens alike can discuss the language and debate how to fix exploitable flaws and circumstantial conundrums (conundra?).

          Of course that might attract trolls and adversarial interests.

          The EFF has tried its hand at ironclad net-neutrality language. So it is possible.

          But all this is a far cry from the shit-sandwich law-writing that is done in our legislatures. It seems any forethought at all would be an improvement.

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

          • identicon
            Anonymous Coward, 2 Feb 2018 @ 1:32pm

            Re: "writing laws like the NSA writes cryptographic algorithms"

            The unintelligible handwriting of the new tax code serves as a recent example

            As in computer security, complexity is a huge part of the problem.

            I imagine some system of crowdsourcing / open-sourcing language is what might work, where legal / logical experts and ordinary citizens alike can discuss the language and debate how to fix exploitable flaws and circumstantial conundrums (conundra?).

            A.k.a. "democracy" (but better than the kind we have now).

            For better or worse, the imprecision is a feature and not a bug. If laws were black and white they'd be software... which programmers can't write securely now, and I can't expect the lawmakers to do better.

            It'd be nice if we wrote laws the way the NSA is supposed to write cryptographic algorithms

            • Keep it simple.
            • Compose it from proven pieces.
            • Mathematically prove as much as you can.

            (We don't "prove" crypto exactly, but we try to prove a cipher is secure given certain assumptions; then that protocols are secure if the ciphers are secure. And if everything's implemented correctly.)

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

    • icon
      Stephen T. Stone (profile), 2 Feb 2018 @ 11:53am

      Re: I've only had one cup of coffee this morning, so I may not be clear...

      It looks like the DMCA was sloppily written and so the court is stuck in the quagmire of what it actually means. Is this normal?

      Yes, it is exactly what it looks like, and yes, when it comes the DMCA, this is normal.

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

  • identicon
    Christenson, 2 Feb 2018 @ 2:24pm

    What I wish Cox had brought up...

    Somewhere, there's a sex offender who went after the order from the judge banishing him from the internet, and won, with words about the internet being "essential to modern life".

    This should have been brought to the circuit's attention.

    And yes, there's *got* to be a better standard than "rightscorp's computer mistakenly sent a DMCA notice"...especially if there's an open wireless involved.

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

  • identicon
    John Smith, 4 Feb 2018 @ 6:43am

    Piracy turns art into junk, books into advertisements for high-priced consulting, and the merit system breaks down as the best artists leave for greener pastures, including day jobs.

    The entertainers who used to enrich the lives of teachers, first responders, etc. stopped providing quality entertainment, and then the public wonders why there's no good much out there. The purpose of copyright was to avoid the need for individualized IP protection which is way more draconian in that you never see the work you are missing because it was never released or even created in the first place.

    Given what quality information is worth, that value hasn't gone anywhere, but the anti-copyright "trolls" are shooting themselves in the foot and cutting off the very information they claim "wants to be free."

    Books which would save money, save lives, and improve lives are now not reaching those they would have helped, because the authors are no longer reliably getting paid. Opt-out copyright (which is what piracy effectively is if you think people will pay for what they like) is not a valid legal concept in this country.

    You get what you pay for.

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

    • identicon
      Anonymous Coward, 4 Feb 2018 @ 7:40am

      Re:

      I think we found MyNameHere, guys!

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

    • identicon
      Anonymous Coward, 4 Feb 2018 @ 7:48am

      Re:

      What are you talking about, as there is more content being published per minute, some of it of high quality, that ever made it past the old industry gate keepers in a year.

      Knowledge that improves lives etc. is freely available to anybody with an Internet connection, and usually comes with the support that is obtainable via the various social media channels of the Internet.

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

      • identicon
        Anonymous Coward, 4 Feb 2018 @ 6:43pm

        Re: Re:

        There's also the fact that books and information that would save and improve lives wouldn't get to the people who need the help because the people who actually need the help can't afford it. Especially if it's behind several paywalls. Antipiracy wouldn't solve that issue.

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

    • icon
      Uriel-238 (profile), 4 Feb 2018 @ 7:27pm

      "Piracy turns art into junk"

      I'd argue piracy turns art into culture. Art usually is culture, but it has to be received by the public. Putting a paywall that reception of art specifically inhibits it from getting seen (observed, consumed, digested, what have you) by those who have to triage their expenses and choose between necessities and going to a show. Anytime someone is choosing not to view art because other things cost to much (even if they're choosing to pay for some art before other art), that's art not becoming culture. That's the price of capitalism.

      The only argument that might be made is the 18-19th century notion that artists need to be able to sustain themselves by their art. It presumes that art and the artist must be sustained by the public, rather than by patrons, or by other means. The thing is the art of the people (as Beethoven tried to make it) only works when ordinary dudes can afford the ticket. In this economy, they can't. At best, they have to chance it choosing one show over another, and when one ends up watching Batman v. Superman: Dawn of Justice because he's a fan of the Nolan films, he gets no mercy when he's disappointed. And you should expect he should then give no mercy when Hollywood tries to woo him with another piece of schlock.

      In fact, this model: pay to play, is a factor in reducing art to the lowest common denominator. The artist has to seek out what would appeal popularly, rather than to the interests of patrons or -- this is where I think we get our best art -- the artist's own interests. Otherwise what we do get is wrestlemania monster-truck click-bait schlock. Hollywood not only counts on each film appealing to the public, but each film being a blockbuster. And as a result, they have identical plot beats, are all teal and orange, and are consistently about white bros smashing things. None of this is because of piracy.

      Amusingly AAA games have the same problem, but now with microtransaction lootboxes.

      Piracy didn't build the age-of-risk-adversion. Piracy is incidental to the age-of-risk-adversion. And as Game-of-Thrones has showed us (to cite one example) piracy is art becoming culture in spite of its artificial-scarcity business model.

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

      • identicon
        Anonymous Coward, 5 Feb 2018 @ 1:54am

        Re: "Piracy turns art into junk"

        This is something antipiracy fans have never been able to explain. If piracy disappeared tomorrow it doesn't mean that executives will suddenly be willing to fund the next Amanda Palmer or Dan Bull over the next Miley Cyrus or Ariana Grande. Executives will just move on to the next threadbare excuse why they can't, just can't move away from the lowest common denominator.

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


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