Copyright

by Mike Masnick


Filed Under:
copyright, copyright trolls, isp, riaa



RIAA Gets To Move Forward In Case That Tries To Force ISPs To Help Copyright Trolls

from the this-stuff-is-important dept

Back in February, we wrote about the details of the appeals court ruling in BMG v. Cox, a case that looked at whether or not internet access providers are required to terminate users accused of repeat infringement. The case was really a proxy for copyright trolling operation Rightscorp, which floods ISPs with claims of infringement tied to "settlement" offers that it wants the ISPs to pass on to end users. As discovery during the Cox case revealed, Rightscorp engages in incredibly sketchy practices to pressure people into paying up (such as telling them that they need to take their computers to the local police station for a search to prove they're not infringing).

However, due to a bunch of weird details in that case -- including a judge who made it clear he didn't think the internet was such a big deal -- Cox lost that case, and then again on appeal. The good thing in the appeal, however, was that the opinion mostly limited its decision to the specific facts in Cox's case, which included the fact that it had a "repeat infringer policy" but it didn't follow its own policy. That's really what sunk Cox. The court noted that an ISP should have wide latitude in designing its own repeat infringer policy, it just had to then follow its own policy. And Cox didn't.

While that case was going on, a second similar case was filed, this time by Universal Music Group against Grande Communications. Back in February, the magistrate judge on that case made recommendations to allow the case to move forward, though throwing out some of the claims. As TorrentFreak recently pointed out, the Article III judge in the case has accepted the recommendations of the magistrate, which you can see here.

Neither UMG nor Grande Communications are probably all that happy with the results (same probably goes for Rightscorp.), though UMG is probably happy that the case is at least moving forward on claims of contributory infringement. Grande's management company, Patriot Media Consulting, is dropped from the case, and the vicarious infringement claims are dropped as well. People often confuse "vicarious" infringement and "contributory" infringement as they're both forms of secondary liability for service providers. Vicarious infringement, though, requires two specific prongs: the right and ability to supervise or control the infringing activity, and the direct financial benefit from that activity. In other words, you need to be pretty damn involved and making money directly off of that specific infringement. In this case, the magistrate judge realized that clearly is not the case with an ISP:

The closest that the Complaint comes to addressing this issue is the allegation that “the availability of music —and particularly UMG’s music— acts as a powerful draw for user’s of Grande’s service, who use that service to download infringing music files using BitTorrent protocols.” ... This is not sufficient to show the “direct financial interest” necessary to support a vicarious infringement claim. There are no allegations that Grande’s actions in failing to adequately police their infringing subscribers is a draw to subscribers to purchase its services, so that they can then use those services to infringe on UMG’s (and others’) copyrights. Instead UMG only alleges that the existence of music and the BitTorrent protocol is the draw. But that would impose liability on every ISP, as the music at issue is available on the Internet generally, as is the BitTorrent protocol, and is not something exclusively available through Grande’s services. Accordingly, the Court finds that UMG has failed to plead facts showing that Grande receives a direct financial benefit from its subscribers’ infringing conduct, and that UMG’s vicarious copyright infringement claim should be dismissed for failure to state a claim.

Contributory infringement, on the other hand, is the concept that comes mainly out of the famous Grokster ruling, and basically says that if the service provider is inducing infringement, then they can also be liable for contributory infringement. Grande tried to get around this by using the Sony Betamax standard, noting that there were substantial non-infringing uses of its service, and thus it shouldn't be held liable for some infringement that does occur. The magistrate judge doesn't seem entirely won over by Universal's argument, but suggests at the motion to dismiss stage -- at which point the judge is required to treat everything the plaintiff claims as true -- there's enough in the pleadings to allow the case to move forward:

The Court acknowledges that this is not yet a well-defined area of the law, and that there are good arguments on both sides of this issue. However, at this point in the case, the Court is persuaded that UMG has pled a plausible claim of secondary infringement based on Grande’s alleged failure to act when presented with evidence of ongoing, pervasive infringement by its subscribers.

That's not exactly a strong endorsement, and if I were Universal Music's lawyers, I'd be worried about how things will go at the next stage (most likely summary judgment). Grande now gets to make the case that it did not "induce" infringement on its network, and merely failing to do what Rightscorp demands hardly reaches the level of inducement. To me, that's a pretty strong argument, but judges in copyright cases often seem to lose perspective when it comes to any kind of infringement. This will be an important case to pay attention to.

As a separate note, I'm a little surprised that the Supreme Court's Packingham decision, saying that the government can't kick people off the internet, didn't come up yet in this case. I imagine it will at some later date.


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  • identicon
    Anonymous Coward, 9 Apr 2018 @ 11:14am

    Title III judge? Never heard of that one, Mike!

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

  • identicon
    Anonymous Coward, 9 Apr 2018 @ 12:03pm

    my God! how desperate the RIAA must be to want to go down this road. it'll be opening a much bigger can of worms than i think they realise!

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

  • identicon
    Anonymous Coward, 9 Apr 2018 @ 12:07pm

    Existing file-sharing case law dealt with shared-folder type networks, not bittorrent, which operates completely differently.

    It would be interesting to see the exact methodology used to determine bittorrent infringement (such as weeding out the fake IP addresses that many trackers are known to send) as well as the various technical and legal aspects of partial files (such as if having 2 minutes of a 2 hour film counts as infringement, fair use, or something else) as well as the fact that many people use hacked bittorrent clients that disable uploading, spoof completion, and various other shenanigans.

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

  • icon
    That Anonymous Coward (profile), 9 Apr 2018 @ 1:41pm

    I'll just repeat it again...

    It finally dawned on me, the "proper" way to explain these claims to a Judge without getting a lawyers ass thrown in jail using my pedophile example.

    To explain the process without technobabble your honor...
    Someone was walking past your courtroom, the outer door was closing & they saw a glimpse of someone putting their hands on someone else. They aren't sure who the people were, but run to the nearest officer and claim someone is being beaten to death in your courtroom. As it is your courtroom, the officers put you on notice.
    This same person the next day repeats the pattern of seeing a glimpse & claiming there was a murder. The officers come to your courtroom & tell you to stop beating people to death in your courtroom. You didn't put your hands on anyone, but because your name is on the door they are holding you responsible.
    Lets say this happens 6 times & the officers just arrest you & remove your access to your courtroom, because their policy says 6 claims means you are a repeat offender.

    Would you accept this outcome?
    DMCA notices were intended to allow copyright owners to get their content removed from websites, no where does it mention downloading in the explanation given on DMCA.com.
    A majority of the companies sending these alleged DMCA notices are misusing them to carry a threat of pay us or we'll sue you to the person who's name is on the bill, with no evidence the bill-payer is the responsible party.
    When an ISP steps in to remove the obvious extortionate demands from the notice, they are sued for not disconnecting repeat infringers. This is based on a glimpse through the door, where they do not know the parties involved or what actually happened... but want to hold the only person they can try to blame responsible.
    They won't take these cases to court, because courts are becoming more loathe to force the person who pays the bill to prove the negative they didn't download it.
    In the cases in the courts now there are clear examples that those bringing the cases want it both ways. They want to turn the bill-payers life upside down, publicly shame them, dig through their computers & online accounts to find proof... and then claim a lack of proof is proof they did it & just hid they did it so well their expert can't find it.

    These DMCA extortion attempts are priced low enough so that many people might just pay them to make it stop, guilty or not. Some of the companies using this model offer to settle for a small fee, get you to give them their details & suddenly produce a long list of alleged infringement & the price to settle is now several thousand, but still priced below what it would cost to retain a lawyer... despite the simple fact they don't want to get into court.

    These notices were meant for websites & their owners, not end users. As many of the websites are outside of the reach of US law, its more profitable to force ISP's to aid them in their extortion attempts than to use the actual legal process.

    I think this is a better example.

    https://www.techdirt.com/articles/20180317/02151939441/9th-circuit-appeals-court-recognizes- that-dmca-repeat-infringer-policies-must-be-flexible.shtml#c389

    This was the replacement argument of I can call the Judge a pedophile 200 times, but that still isn't proof or a legal standard to throw him in jail without due process.

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

  • icon
    ECA (profile), 9 Apr 2018 @ 3:46pm

    lETS SEE....

    AND...
    RIAA, MPAA...And copyrights..
    PUBLIC DOMAIN??

    WHY in hell do they WANT to keep Everything that they created BEYOND a time they are willing to Show/play any of it..

    Music has a LIFE TIME Protection, PLUS 70(?) years?? 3 generations PAST their death??

    Movie?? they are TRYING to do the same thing.. WHY??

    BECAUSE IF YOU WANT IT, THEY CAN CHARGE YOU FOR IT..3-10 times OVER its value or worth.. They want CONTINUOUS MONEY from the past..
    Do you get paid for EVERYTHING you did in the past??? Over and over, (and not taxed to death for it)..

    3-5 generations PAST the making of a movie, WE STILL PAY FOR IT..

    History:
    The movie industry has a BIG FAILING of not updating the MATERIALS USED to make the films and has LOST over 1/2 of the movies/films/shorts/Everything before the 1950's.. We will never recover any of it. The old Film stocks are DYING, falling apart.. AND the movie industry WANTS YOU to pay for upgrading the OLD FORMAT to digital..
    AND when they do it, they get ANOTHER COPYRIGHT..
    Even if they didnt go Digital they would have to transfer to NEW stock material to KEEP those movies..or they would destroy themselves from TIME..

    Everything Before about 1975 SHOULD BE IN THE PUBLIC DOMAIN..and its not..
    MOST online movies are still under CR controls and Even HULU hasnt added many PD shows..
    BECAUSE, Many were BOUGHT OUT by PRIVATE GROUPS.. and THAT is another problem..

    Anyone notice that movies and Cartoons end up being sold over and over, as Cash or trade..and they end up DISAPPEARING?? you could look up hte original corp, and never find it again..or the next owner, and its not there, anymore..and Again...

    Private groups and people CAN BUY THEM..and NEVER release then EVER... Private ownership has NO END to ownership.. To WATCH IT YOU MUST PAY THEM..

    ALSO..this includes movies BOUGHT by the corps from Other nations...which Fall into out CR laws.. GREAT OLD movies and Cartoons..that are now Hiding SOMEPLACE IN THIS COUNTRY..

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

    • icon
      ECA (profile), 9 Apr 2018 @ 10:03pm

      Re: lETS SEE....

      If you dont get the idea Im suggesting..

      Older videos, Going into the Public Domain) STILL have the music Copy Written..
      They have removed the CR music and added OTHER Music..Beverly Hillbillies, Green Acres, and many others have had the Music changed or removed..

      Music is Life PLUS 75?? years??
      Movies? are at 50 years??
      BOOKS?? we are still having problems with Tarzan, Sherlock Holmes, And Edger Allen Poe..and others..

      WHO gets the money After death?? NOT ALWAYS THE FAMILY..

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

  • identicon
    Anonymous Coward, 9 Apr 2018 @ 5:26pm

    My contract ends in August. If they want to tap my line without a warrant it will go the same way as my cellphone, turned off for almost four years now. American Dream my ass. Now that these corporations are people too they think they are above the law, and with the help of the courts they may well be. Poor old dad is sure getting tired of rolling over in his grave.

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

  • identicon
    Anonymous Coward, 9 Apr 2018 @ 7:47pm

    I'm surprised the industry hasnt developed a way to make you forget what you watched so you'll feel better about paying for it over and over.

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

    • identicon
      Anonymous Coward, 9 Apr 2018 @ 10:42pm

      Re:

      Why do that when they can litigate? That's far more lucrative and far quicker. Plus they don't actually need to produce anything.

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


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