Magistrate Judge Says Grande Shouldn't Be Able To Use The DMCA Safe Harbors Because It Didn't Really Terminate Infringers
from the one-piece-of-the-puzzle dept
We’ve written a few times about a key DMCA case in Texas, involving the ISP Grande Communications and Universal Music Group (and, by proxy, the copyright trolling operation Rightscorp). The case has had a lot of up and downs, with the judge tossing UMG’s “vicarious infringement” claims, while letting the “contributory infringement” claims move forward. In October, the court rejected UMG’s attempt to bring back the vicarious infringement claims which had already been dismissed, with some fairly harsh words directed at UMG for attempting that.
The latest, as first noted by Torrentfreak, is that the magistrate judge has recommended rejecting Grande’s use of the DMCA safe harbor defense. I still have general issues with the idea that the “repeat infringer” part of the DMCA is being accurately described in these cases (specifically: the courts are now applying it to accusations of infringement, rather than actual infringers, which requires a court adjudication). However, the magistrate basically points out that Grande can’t make use of the safe harbors because… it had no repeat infringer policy at all. Or, rather, it did, but in 2010 it stopped using it, and then never had a policy through 2016.
So, without a policy, they couldn’t have reasonably implemented it… and thus, no safe harbors. Given the facts of the case, that’s perhaps not that surprising. The DMCA requires you to have a reasonably implemented policy (Cox lost its similar lawsuit not because it didn’t have a policy, but because it didn’t follow its own policy).
Of course, that doesn’t necessarily mean that UMG is going to win the case. Not having the safe harbor makes it harder for Grande, but not fatal. UMG will still need to prove contributory infringement, which is going to be fairly difficult to show. Earlier in the case, the court had noted “that this is not yet a well-defined area of law, and that there are good arguments on both sides of this issue.” Effectively, UMG will need to show that Grande “induced” infringement by its actions, and Grande will claim it did no such thing. But it can’t just use the DMCA safe harbors to get the case dismissed, rather it will need to focus specifically on the question of whether it induced people to infringe.
Filed Under: contributory infringement, copyright, dmca, repeat infringer policy, safe harbors
Companies: grande, grande communications, riaa, rightscorp, universal music group
Comments on “Magistrate Judge Says Grande Shouldn't Be Able To Use The DMCA Safe Harbors Because It Didn't Really Terminate Infringers”
Not a minor sticking point
I still have general issues with the idea that the "repeat infringer" part of the DMCA is being accurately described in these cases (specifically: the courts are now applying it to accusations of infringement, rather than actual infringers, which requires a court adjudication).
This point should be utterly lethal to any and all lawsuits like this, as mere accusation should never be treated as a finding of guilt in court, something you’d think a judge would get quite well. If a company/person wants to go after a platform because someone has been proven to be engaged in copyright infringement multiple times then that should be treated much differently than if they’ve merely been accused of copyright infringement several times(or hell, any amount of times).
By all means take the first seriously in court when considering whether or not a platform does or does not get safe harbor protections, but the second should carry no weight whatsoever, and certainly not enough to be considered as valid evidence in court.
The fact that this isn’t the case shows in yet another way just how insane things get when The Holy Copyright is discussed in law and in courts, with sanity being thrown out the window at the first opportunity and stuff like this replacing it.
NO! See the very Cox case that you mention!
In that case, ONLY accusations were required for subscribers to be deemed an "infringer". You have missed the KEY point, as usual. Cox lost because followed your notions that those weren’t "real" infringements and so the accusations could be ignored.
NO policy is even worse than not following it! Corporations are REQUIRED to have a policy AND to ACTUALLY kick infringers off — even if merely "accused"! ISPs MUST take those accusations as accurate. They do NOT require adjudication, especially since ISPs can simply look at their own logs and SEE whether likely.
Administrative law. You are either trying to salvage the shreds of assertions that pirates get full criminal level of due process or sheerly unable to understand. (Well, actually, I bet BOTH.) I think you’re approaching giving out advice so wrong that it may be actionable.
Your inimitable characteristically WRONG way to wind up lame week. I’m set ’til Monday, when will handily refute whatever silly assertions you kids have made that land me on the front page again; my views seen is all that I need, so THANKS in advance.
Re: NO! See the very Cox case that you mention!
“NO policy is even worse than not following it! Corporations are REQUIRED to have a policy AND to ACTUALLY kick infringers off — even if merely “accused”! ISPs MUST take those accusations as accurate. They do NOT require adjudication, especially since ISPs can simply look at their own logs and SEE whether likely.”
This is an insane paragraph.
Re: Re: When all you have is a (crazy) hammer
Well, consider the source.
Re: Re: Re: When all you have is a (crazy) hammer
I wish Masnick had a kick the troll policy.
Re: Re: Re:2 When all you have is a (crazy) hammer
Eh, there’s the flag system, and as TD has noted such systems are absurdly easy to game and bypass, so it would almost certainly do more bad than good.
Re: Re: Re:3 When all you have is a (crazy) hammer
True, though it’d be nice for one time to have the trolls hoisted upon their petard.
Re: Re: Re:4 When all you have is a (crazy) hammer
Oh they already get that from the flag system, as can be seen when they whine about how they’re being ‘censored’ and complaining that people keep flagging their posts instead of just leaving them up.
For people who support systems and rules that result in removal of content on accusation they get remarkably(and tellingly) upset when their content is not even removed but merely hidden, something that I at least find provides endless entertainment.
Re: Re: Re:5 When all you have is a (crazy) hammer
The hammer would be to disallow unregistered comments, something Mike has avoided. Despite Blue’s Lies, Ad-Hom attacks, and grevious insults to the english language.
I don’t know of a single website with such a policy still in place.
It’d be a click of a button to shut Blue down and change the settings.
Re: Re: Re:6 When all you have is a (crazy) hammer
soylent.
Re:
You have a massive grudge against due process, don’t you, Squidward?
Re: NO! You promised to leave forever
Of course you’re a coxsucker.
Inducing Infringement
It’s worth noting that if merely providing internet connectivity is inducing infringement, then almost every town and city in the country is guilty of inducement as well.
After all, if the internet service installer couldn’t drive to the primary infringer’s house, and the local utility district didn’t authorize electrical service…
Re: Inducing Infringement
Without content, there would be nothing to infringe. The major music and movie studios induce infringement more than anyone by producing the content covered by copyright in the first place.
It is so nice to see the courts throwing out the legal concepts & just falling into lockstep with our corporate masters.
This blog stole our music!
Seized without due process, sat locked away waiting for ‘evidence’ that they didn’t actually have or could provide, returned in a petulant fashion.
This website stole Hollywood!
Well he has no actual contacts with the US, so lets just rule he isn’t coming here so he is fleeing prosecution, lets take everyones stuff & even the people who had content Hollywood had nothing to do with can’t have it unless Hollywood can make the accused pay. Lets threaten to destroy innocent peoples stuff, because it would be messy to bear the burden of returning innocent peoples stuff. Lets violate our laws & force other nations to violate their laws because US law is all that matters.
Because we said so.
I guess the labels got sad that copyright trolls were making millions by getting the courts to accept everything they claim without any question. Lets ignore the case law supporting that an IP isn’t a person & that 1 milisecond isn’t really evidence & force the accused to turn their entire lives upside down to prove a negative & just smile & nod when the report comes back and says we didn’t find anything but that is proof they deleted it in a way our expert couldn’t detect.
The Magistrate is on the take.The Magistrate is on the take.The Magistrate is on the take.The Magistrate is on the take.
4 accusations, the Judicial Tenure board needs to relieve him of duty.
The Magistrate would scream bloody murder about being punished on accusations of questionable veracity, but has no problem doing it to citizens. One can’t even claim the notices are 100% accurate, b/c they hide the source code, how it is run, and look at the millions of bogus takedown notices hitting Google on the average day… but magically because they said so is all it takes for another corporation to fire a client or face millions in damages for looking at a notice that says we know you stole from us but give us $300 and we’ll call it good & not forwarding it means the company is part of the evil cabal stealing billions from them.
Re: Re:
Lets violate our laws & force other nations to violate their laws because US copyright is all that matters.
FTFY
Re: Re: Re:
Hollywood is throwing a temper tantrum again.
Condolences to those affected by the government shutdown
Way off topic, I know, but I would just like to pass on my condolences. The workers are never the winners when politicians bicker. It seems like a schizophrenic sideshow and this is definitely not a good time of the year for those who will suffer the effects most.
Amazing ...
… how much smoke the judicial system can create from a tiny fire.
If you blow all the smoke away, “copyright infringement” tends to be about kids downloading .mp3-songs. Digital copies with a retail value of a few cents.
The real world equivalent being the theft of chewing gum. A single piece, not a whole package or even a box. A single chewing gum worth 50 cents.
In the real world, would anybody think about suing cities (contributory infringement, for not policing the side walks enough). Taxi and bus drivers (contributory infringement, for helping the thieves to escape). Schools and churches (contributory infringement, for not educating the kids enough about schools being wrong). Clothes manufactures (contributory infringement, for sewing pockets into jeans used for hiding the loot)?
Anyone trying to bring those charges would be laughed out of the building. Possibly institutionalized. If shopkeepers want to protect their goods, they do it themselves.
Why can’t we do the same in the brave new virtual world?
Re: Amazing ...
And in the real world if someone wanted to ascertain what other people’s medical, business, and social records and diary thought they would have to commit a criminal offense by physically breaking into one’s home which is also covered by the fourth amendment but in the virtual world all that can be done with no republications. Law has not cough up with reality.
Re: Re: Amazing ...
Why bother with B&E when people willfully decorate their homes with listening devices and cameras, most of which are easily hacked. If the voyeurs were more patient their marks would gleefully divulge all their personal information for free. But no .. they gotta steal it – bloody pirates!
Re: Amazing real world
… in the ‘real world’ — commerce and society are now controlled by politicians and their hired enforcers in court rooms.
The painful practical effects of our dystopian political system are the real source of your amazement.
Re: Re: Amazing real world
“commerce and society are now controlled by politicians and their hired enforcers”
Not entirely, and they never will – even though they think they can and will continue to try no matter how many times they fail.
They’re just impatient to get to the part where judges let them terminate “infringers” with T-1000s.
Re: Re:
“I’ll Be BAAK”
Re: Re:
Orrin Hatch once said he thought it would be perfectly fine for a copyright holder to blow up an fringer’s computer.
No details were provided as to how this might be accomplished or implemented but does provide insight into his thoughts on the matter. Sounds like what a terrorist might say.
Re: Re: Re:
His thoughts, his priorities, and who’s property he considers more important and worth protecting.
Download a song/book/movie/program, causing the potential for a lost sale and the associated money from it? Have your computer destroyed, causing demonstrable monetary loss, to the tune of hundreds if not thousands in damage.
Even if someone were proven, in court and beyond a reasonable doubt to have engaged in copyright infringement that would still be an incredibly excessive fine, but as I’ve noted time and time again people get more than a little crazy when The Holy Copyright comes up, so it’s not that surprising even if it is insane.
Abolish Copyright
Or it will only get worse.
The article is disingenuous, since the DMCA has a counter-notification system that would neutralize these allegations. Most don’t use counter notices, however, since they have to identify themselves and waive service of a copyright lawsuit.
It seems many take issue with copyright protection itself rather than the DMCA per se. Since we have already lost protection for all intents and purposes in many arenas, we can see the results of this. Cheap culture (easy-to-produce viral videos) and a patronage model are emerging but this is not the economic engine that was the entertainment industry, America’s top source of exports, btw.
Real jobs and real tax dollars are being lost to this theft, which is why governments are on the side of the creators. It is also disingenuous to portray all rightsholders as big, evil corporations, since many are indies who definitely miss the money they lose to infringement not just of their works, but of competing works, which devalues the industry as a whole to the point of becoming a hobby.
I doubt lawyers would accept having the practice of law reduced to a hobby by those with a “passion” for the law. Heck, even “free speech nonprofits” that get student-loan forgiveness and pay high salaries through tax-exempt donations don’t want their 501(c)(3) status removed, despite many being “passionate” about protecting free speech. The ACLU is basically a nonprofit law firm. Should these even be allowed to exist?
Re: Re:
And we all know how that goes, the corporation insist that it is infringing unless they lose all the appeals possible in the legal system, and that is too costly for an individual to contemplate paying for.
Re: Re:
If a business model can be destroyed by the Internet, it deserves to be destroyed by the Internet. If so-called “cheap culture” can kill the business model surrounding multi-million dollar movies (which “cheap culture” is not doing), that business model deserves to die.
Incidentally: Neither “cheap culture” nor patronage-centric business models came about as a result of disfavorable attitudes about copyright.
Please provide proof of your claim and the necessary citations required for verifying your evidence.
The major media corporations are the most powerful rightsholders, though. They can afford to defend their copyrights in ways that regular jackoffs like you and I could never match. And the power they wield also makes them the rightsholders who have the most sway in re: making changes to copyright law. Of course “not all rightsholders”; that said, they are the rightsholders that “matter” to lawmakers.
Potential income is not actual income. If you can prove otherwise, I would love to see you pull that living Tyrannosaurus Rex out of your top hat.
I doubt that could ever happen, but please, explain how it might.
Give me one good reason—and it better be a goddamned good one—to deny any law firm the right to become a non-profit organization if the Powers That Be want their firm to be a non-profit and run it in accordance with the rules and regulations that govern non-profits.
Re: Re: Re:
Just let nonattorneys represent people in court. Make admission to the Bar a guarantee of the right to practice, but the lack of it doesn’t bar someone from practicing if admitted pro hac vice. Online legal and medical sites already take revenue.
Do taxis deserve to be destroyed by Lyft and Uber? We regularted them because of overcrowding during the Depression.
Copyright law also doesn’t car about the value of a work or who holds the rights. It provides for statutory damages. The “legacy” business model cannot be destroyed by an internet where copyright is properly enforced.
Indies make up a much larger share of rightsholders than people realize. Even the corporations have a right to be paid by those who consume their work. Many want to turn creative arts into a hobby. Many more do not.
It’s a very tough sell to defend the “rights” of those who consume work without paying those who produce it. Ultimately, the corporations don’t decide the market value, but the audience does. If the audience mindlessly follows gatekeepers that has nothing to do with the legitimacy of copyright protection.
Re: Re: Re:
You may as well ask everyone to represent themselves from arrest to conviction.
If they can destroy a specific business model by offering a better service than lawyers, doctors, etc.? Yes, that business model deserves to be destroyed.
If Lyft and Uber can provide a better service than taxis? Yes.
The most powerful copyright holders, however, do care—which is why they keep fighting to tighten copyright in favor of themsel…excuse me, in favor of rightsholders.
As soon as you can create a global communications system where copyright law can be “properly enforced” in every possible legal context around the world (e.g., a given site automatically conforms to every copyright law in the world such that anyone who visits the site will not break their country’s copyright law even by accident), you let me know, champ.
What they have is a legal right to control distribution (as best they can). If I happen to watch a friend’s Blu-ray copy of Thor: Ragnarok at their house, does Disney deserve to yank money from my wallet?
I have no issue with people trying to monetize their work. I have little issue with people using copyright to protect their work from piracy (so long as they do not go nuclear with their attempts). What I take issue with is those people who act as if all piracy—in any context whatsoever—is a sin and anyone who commits an act of copyright infringement is a heretic who must be struck down so copyright dogma may be upheld.
It is a tough sell because society and culture have changed such that copyright has become a hindrance—and a weapon—to more than enough people who happen to encounter it. Speaking of which…
…those who want to create as a hobby can be hindered by copyright. Remixes of all kinds—audible, visual, textual—can be struck down by copyright. Fan art of all kinds are technically illegal thanks to the “derivative works” part of copyright.
And even if creative arts were to become a hobby for a lot of people, so what? People post their own short films—including fan films(!)—on YouTube and such, and audiences still go watch big-budged blockbusters in theatres. Entire books’ worth of fiction and non-fiction alike written as a “hobby” are available across the Internet, yet we still have a New York Times bestseller list for physical books. The existence of creative-as-a-hobby works does not negate the existence (nor the value) of creative-as-a-career works.
It does if those gatekeepers use copyright as a cudgel to kill all their indie/“hobbyist” competition.
Re: Re: Re: Re:
The "legacy" business model cannot be destroyed by an internet where copyright is properly enforced.
Too bad you’re fucking terrible at the latter.
Re: Re: Re: Re:
How do reach that conclusion, as perfectly legal self publishing could become the normal method of publication, leaving the legacy industry with little or nothing new to publish. Indeed the existential threat to the legacy industry is not piracy, but rather self publishing hubs like YouTube, Jamendo etc.
Re: Re: Re:
Lawyers shouldn’t be owning anything other than their law practices and their primary residences.
Nonprofit law firms are not necessary when they can just do pro bono work and the public pays a lot of money to subsidize all the tax and student loan breaks the nonprofit lawyers get. They also refer cases to and from for-profit attorneys and it creates a mess of self-dealing and charity fraud, though I doubt it’ll ever be enforced that way…or will it?
There are some striking examples of self-dealing from “nonprofit” law firms in fact.
Re: Re: Re: Re:
…fucking what
Re: Re:
So in your world view, corporations should decide which few creators get published, for the profit of corporations. Those not chosen end up wasting their time, regardless of the quality of their work. Besides which there are more people making a living from their creativity than ever before, and you wish to deny the majority of those the opportunity to do so, so that corporations can stay profitable.
Not relevant, as mistakes in law practice, like medicine, can have serious consequences for peoples lives. Wasting a few dollars on bad content is not is the same category as losing ones life savings from bad legal advice.
Re: Re: Re:
We already let nonattorneys and nurses perform functions which were once only allowed by doctors and lawyers. Mexican paralegals use the internet to devalue law degrees.
Doctors and lawyers overcharge and make many mistakes. one could attack them just as easily as they attack rightsholders who are corporations.
In fact, since there is no harm in NOT infringing on copyright, there’s little justification for doing so. A nurse might save a life.
Re: Re: Re: Re:
And we “let” those people perform those functions in an official capacity because they have been trained to perform those functions. We call that “delegation”.
Other than commercial infringement, there is no provable, tangible harm in infringing on copyright. Warner Bros. does not lose money if I watch some rando’s montage of clips from Batman: The Animated Series.
There is also little justification for using copyright as a tool for censoring free speech, and yet…
Re: Re: Re:2 Re:
Other than commercial infringement, there is no provable, tangible harm in infringing on copyright. Warner Bros. does not lose money if I watch some rando’s montage of clips from Batman: The Animated Series.
More than a lack of demonstrable harm because of copyright infringement, there is actually a harm for not infringing, in the sense that if society in general actually did care about copyright it would cause serious harm to culture in that vast amounts would simply not exist.
Mash-ups, fanfic/pics, the simple act of people sharing a pieces of culture in the form of a song, video or pic with a friend or family member… vast amounts of social interaction and creativity would be negatively impacted if copyright infringement were to be avoided entirely by society, making it all the more obvious, and good, that for the most part people simple don’t care about whether or not an act violates copyright.
There is also little justification for using copyright as a tool for censoring free speech, and yet…
That depends on how you define ‘justification’. ‘It’s very effective at it and carries little to no risk to use for that goal’ for example would seem to provide plenty of justification to use that particular tool towards that particular end.
Re: Re: Re: Re:
Now we know how John Smith spends his Christmas. He worries about copyright! Not surprising, people singing public domain carols makes him shit himself since he doesn’t believe in the public domain.
Re: Re: Re:2 Re:
When he’s not claiming Russian raped his house and emptied his sister.
Re: Re:
Based on the judge’s and your logic, the DMCA should be terminated since they didn’t actually punish false notice filers, right?