(a) Transitory Digital Network Communications. - A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections[...]
This describes what Cox is doing.
Also, to the other AC: it doesn't matter if Cox is a "Level 3" provider or not. DMCA immunity is defined by an ISP's function, and since this is the function of Cox's service, they are eligible for DMCA immunity under this section.
The "notice and takedown" provisions are not in 512(a) at all. In fact, they are defined in 512(c)(3):
(c) Information Residing on Systems or Networks At Direction of Users. -
(1)In general. - A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider - [...]
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity. [...]
(3) Elements of notification. - (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following: [...]
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
It explicitly applies only to "material" that is to be "removed or disabled." And it applies only to service providers that store that "material" on their "system or network."
In other words, not to service providers as defined in 512(a).
There are two other functions of a service provider where the "notice and takedown" provisions must be followed - 512(b) and 512(d):
(b) System Caching. -
(1)Limitation on liability. - A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider [...]
(2)Conditions. - The conditions referred to in paragraph (1) are that - [...]
(E) if the person described in paragraph (1)(A) makes that material available online without the authorization of the copyright owner of the material, the service provider responds expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed infringement as described in subsection (c)(3) [...]
(d)Information Location Tools. - A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the service provider - [...]
(3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link.
Again, these explicitly refer to "material" that is "to be removed or access to which is to be disabled."
And again: not to service providers as defined in 512(a).
Yes, this is black-letter law. It is clear and unambiguous. But don't just take my word for it:
On July 24, 2002 the RIAA served Verizon with a subpoena issued pursuant to 512(h), seeking the identity of a subscriber whom the RIAA believed to be engaged in infringing activity. The subpoena was for "information sufficient to identify the alleged infringer of the sound recordings described in the attached notification." The "notification of claimed infringement" identified the IP address of the subscriber and about 800 sound files he offered for trading; [...] and asked for Verizon's "immediate assistance in stopping this unauthorized activity." "Specifically, we request that you remove or disable access to the infringing sound files via your system." [...]
Notably present in 512(b)-(d), and notably absent from 512(a), is the so-called notice and take-down provision. It makes a condition of the ISP's protection from liability for copyright infringement that "upon notification of claimed infringement as described in (c)(3)," the ISP "responds expeditiously to remove, or disable access to, the material that is claimed to be infringing." [...]
Verizon maintains the two subpoenas obtained by the RIAA fail to meet the requirements of 512(c)(3)(A)(iii) in that they do not – because Verizon is not storing the infringing material on its server – and can not, identify material "to be removed or access to which is to be disabled" by Verizon. [...]
No matter what information the copyright owner may provide, the ISP can neither "remove" nor "disable access to" the infringing material because that material is not stored on the ISP's servers. Verizon can not remove or disable one user's access to infringing material resident on another user's computer because Verizon does not control the content on its subscribers' computers.
The RIAA contends an ISP can indeed "disable access" to infringing material by terminating the offending subscriber's internet account. This argument is undone by the terms of the Act, however. As Verizon notes, the Congress considered disabling an individual's access to infringing material and disabling access to the internet to be different remedies for the protection of copyright owners, the former blocking access to the infringing material on the offender's computer and the latter more broadly blocking the offender's access to the internet (at least via his chosen ISP). Compare 17 U.S.C. 512(j)(1)(A)(i) (authorizing injunction restraining ISP "from providing access to infringing material") with 17 U.S.C. 512(j)(1)(A)(ii) (authorizing injunction restraining ISP "from providing access to a subscriber or account holder ... who is engaging in infringing activity ... by terminating the accounts of the subscriber or account holder"). [...]
Finally, the RIAA argues the definition of "[internet] service provider" in 512(k)(1)(B) makes 512(h) applicable to an ISP regardless what function it performs with respect to infringing material – transmitting it per 512(a), caching it per 512(b), hosting it per 512(c), or locating it per 512(d).
This argument borders upon the silly. The details of this argument need not burden the Federal Reporter, for the specific provisions of 512(h), which we have just rehearsed, make clear that however broadly "[internet] service provider" is defined in 512(k)(1)(B), a subpoena may issue to an ISP only under the prescribed conditions regarding notification. Define all the world as an ISP if you like, the validity of a 512(h) subpoena still depends upon the copyright holder having given the ISP, however defined, a notification effective under 512(c)(3)(A). And as we have seen, any notice to an ISP concerning its activity as a mere conduit does not satisfy the condition of 512(c)(3)(A)(iii) and is therefore ineffective. [...]
III. Conclusion For the foregoing reasons, we remand this case to the district court to vacate its order enforcing the February 4 subpoena and to grant Verizon's motion to quash the July 24 subpoena.
This is not the only court to reach exactly the same conclusions:
The dispute arose when the Recording Industry Association of America (RIAA) requested the clerk of the district court to issue subpoenas under 512(h) to Charter Communications, Inc. (Charter),1 in its capacity as an ISP, requiring Charter to turn over the identities of persons believed to be engaging in unlawful copyright infringement. The district court issued the subpoenas and denied Charter's motion to quash. We reverse. [...]
As stated above, the notification provision is found within 512(c), or the storage-at-the-direction-of-users safe harbor.5 The notification provision is also referenced, however, in two other safe harbors - subsections (b) and (d) - the "system caching" and "linking" safe harbors. Each of these three subsections protect an ISP from liability if the ISP "responds expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed infringement as described in (c)(3)." 17 U.S.C. 512(b)(2)(E), 512(c)(1)(C), and 512(d)(3) (emphasis added). In other words, a specific purpose of the notification provision is to allow an ISP, after notification, the opportunity to remove or disable access to infringing material and thereby protect itself from liability for copyright infringement. Therefore, as one might expect, each safe harbor which covers an ISP function allowing the ISP to remove or disable access to infringing material (i.e., the storage, caching, and linking functions) refers to the notification provision and contains a remove-or-disable-access provision. [...]
Section 512(a) does not reference the notification provision of 512(c)(3)(A), nor does it contain the remove-or-disable-access provision found in the three safe harbors created for the storage, caching, and linking functions of an ISP. The absence of the remove-or-disable-access provision (and the concomitant notification provision) makes sense where an ISP merely acts as a conduit for infringing material - rather than directly storing, caching, or linking to infringing material - because the ISP has no ability to remove the infringing material from its system or disable access to the infringing material.
On September 19, 2014, Rightscorp obtained from the United States District Court for the Central District of California a subpoena (the "Subpoena"), pursuant to the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. 512. 3 The Subpoena seeks the "name, address, telephone number, and email address sufficient to identify the alleged infringers of copyrighted sound recordings identified by [Internet Protocol ("IP")] addresses in the notices attached to ... th[e] Subpoena." ([1.1] at 2). The notices attached to the Subpoena detail 1,326 separate instances of alleged copyright infringement by CBeyond customers using 71 unique IP addresses.
On October 17, 2014, CBeyond filed its Motion to Quash. CBeyond argues, among others, that Section 512(h) authorizes issuance of a subpoena only to an ISP that performs a storage function, and because CBeyond does not store or host the allegedly infringing materials referenced in the Subpoena, the Subpoena is not valid. [...]
A notification that satisfies Section 512(c)(3)(A) is thus a mandatory part of the subpoena request and a condition precedent to issuance of, and compliance with, a subpoena under Section 512(h). [...]
Section 512(a), on the other hand, does not reference Section 512(c)(3) and does not contain a requirement that the ISP remove or disable access to allegedly infringing material. This is likely because Section 512(a) applies "where an ISP merely acts as a conduit for infringing material - rather than directly storing, caching, or linking to infringing material - [and thus] the ISP has no ability to remove the infringing material from its system or disable access to the infringing material." [...]
That Section 512(c)(3)(A) notice is referenced in Sections 512(b)-(d), but not in Section 512(a), supports that the notice requirement is related to an ISP’s participation in the storage of allegedly infringing materials. [...]
IT IS FURTHER ORDERED CBeyond’s Motion to Quash is GRANTED.
It is not only black-letter law, but well-settled case law as well.
You are correct, however. There is a requirement in 512(f) to terminate repeat infringers:
(i) Conditions for Eligibility. -
(1)Accommodation of technology. - The limitations on liability established by this section shall apply to a service provider only if the service provider -
(A) 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 [...]
But, as has been proved above, a 512(a) ISP's definition of a "repeat infringer" is not related to a DMCA notice - since those notices do not have anything to do with that type of ISP.
Also note the phrasing: "who are repeat infringers," rather than "who are claimed to be repeat infringers" (the language used in 512(c)(1)(C), among other places). So, without using takedown notices, and with the statutory requirement that users are actual (not accused) infringers, how is a 512(a) ISP to determine who to kick off the net?
The answer is likely found in 512(j)(1)(A). This was the section referred to in RIAA v. Verizon. And it only applies to court-ordered injunctions. Here is the relevant statutory text:
(j)Injunctions. - The following rules shall apply in the case of any application for an injunction under section 502 against a service provider that is not subject to monetary remedies under this section:
(1)Scope of relief. [...]
(B) If the service provider qualifies for the limitation on remedies described in subsection (a), the court may only grant injunctive relief in one or both of the following forms:
(i) An order restraining the service provider from providing access to a subscriber or account holder of the service provider's system or network who is using the provider's service to engage in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order.
A logical reading of the DMCA would therefore suggest that a court-ordered injunction is required for an 512(a) ISP to terminate a user's account.
Now, those are the "takedown" provisions. What about the "putback" provisions - the ones that (theoretically) give users the right to contest the claims of copyright holders? These are covered in 512(g):
(g) Replacement of Removed or Disabled Material and Limitation on Other Liability. -
(1)No liability for taking down generally. - Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, 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.
(2)Exception. - Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider - [...]
(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; [...]
(3)Contents of counter notification. - To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following: [...]
(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
Again: this applies only to "material," and you can only contest a notice sent under 512(c)(1)(c) - which doesn't apply to 512(a) ISP's.
So my statement was absolutely correct. If this ruling stands, all it takes is accusations of infringement, and a user whose entire internet has been shut down would have absolutely no recourse whatsoever.
They make a legal statement, and the customer at that address can argue that they did not do anything, or provide proof that what they were doing was acceptable
No, they don't, and no, they can't.
Cox is providing "Transitory Digital Network Communications" under 512(a). DMCA takedown notices explicitly do not apply to 512(a) providers.
The DMCA "notice and takedown/putback" system only applies to providers that host content or search engines: 512(c) and 512(d), respectively. They do not apply to any other kind of service provider.
DMCA provides for the opportunity to counter that statement.
No, it does not. The "putback" procedure is in 512(g), and it applies only to "material that has been removed or to which access has been disabled." It does not apply to restoration of the entire service.
You are wrong, as a matter of black-letter law.
If this ruling stands, all it takes is accusations of infringement, and a user whose entire internet has been shut down would have absolutely no recourse whatsoever.
this is precisely how the conspiracy theorists turn lawsuits against a company, into being controlled by the company they're suing. According to nutjobs like Orlowski, any "cy press" settlement is nothing more than Google giving money to Google shills, rather than to the actual "victims" of Google.
So if the EFF wins a suit against Google, they're getting money, and if they're getting money, they're obviously in bed with the people who gave it to them. Therefore, EFF is a shill for Google. Quod erat stupidus.
First, copyright is not property under the Constitution: it is a right. That's why it is called copyright.
No, it is not.
Actually, in the legal sense, it is a right. It is the type of "right" that is usually called a "claim right" (a right that creates obligations in others to actively support that right, e.g. the right to a public education) rather than a "liberty right" (a right to act without interference, e.g. the right to free speech).
It is simply not a "right" under the colloquial definition. Colloqually, we say that something is a "privilege" if it is created by an authority (like a government, school, or employer), but a "right" is innate and inviolable, held by the virtue of being a person (e.g. "human right").
So, copyright is a "privilege" in the colloquial sense, and a "right" (specifically a "claim right") in the legal sense. And, the things you mentioned - free speech, privacy, freedom of/from religion - are "rights" in the colloquial sense, and "liberties" in the legal sense.
No, he wasn't. True, Assange was criticizing the EFF, but he never said they received "more than half of its annual income" from Google. (In fact, he said "The EFF is a great group, and they’ve done good things for us, but nonetheless it is significantly funded by Google, or people who work at Google.")
And, yeah, this is precisely how the conspiracy theorists turn lawsuits against a company, into being controlled by the company they're suing. According to nutjobs like Orlowski, any "cy press" settlement is nothing more than Google giving money to Google shills, rather than to the actual "victims" of Google.
So if the EFF wins a suit against Google, they're getting money, and if they're getting money, they're obviously in bed with the people who gave it to them. Therefore, EFF is a shill for Google. Quod erat stupidus.
You're taking that entirely out of context. Here is the full sentence:
Copyright holders know precisely what materials they own, and are thus better able to efficiently identify infringing copies than service providers like Veoh, who cannot readily ascertain what material is copyrighted and what is not.
No court of law has ever said that it is a "legal notice of infringement." It is not. It is an extrajudicial notice of belief of infringement.
Nor is the "putback" requirement an "appeals process." It is an extrajudicial notice of belief of non-infringement.
A use of a copyrighted work is not infringing until it is found to be so in a court of law.
Interestingly, the poster missed the point entirely. I didn't say they have the same opinion, only that they both hold extreme opinions, ones that leave little space for anyone or anything else.
First, "the poster" has a name: it's Karl.
Second, you did literally say that they have the same opinion: "two people who have convinced themselves of a truly extreme viewpoint on copyright." Two people, one viewpoint.
That may have been a simple grammar mistake, but you also lumped them in together, without differentiating between their viewpoints, their methods, or how they were convinced that their viewpoints are valid. All of these things are different, but you lumped them together as if they were completely the same.
There was clearly no misunderstanding here, and you're obviously trying to dredge up reasons to ignore the actual arguments I made.
When you do this, it's hard to take the rest seriously. Nonetheless, I will.
Third, their viewpoints are not "extreme." Lessig's views come from his years as a copyright scholar, represented the legal mainstream as it was before the 1990's, and are not far from the legal mainstream today. Paley's view on re-using others' material when creating art, is pretty much the view of the general public (despite the "educational" campaigns from copyright maximalists).
If you want to look at someone with "extreme" viewpoints, relative to the historical legal view or the current popular view, then you need to look in a mirror.
Third, it's simply a lie that they "leave little space for anyone or anything else." Lessig, for example, is one of the founders of Creative Commons, which offers a huge variety of licenses (commercial and noncommercial). It is the very epitome of "leaving space" for everyone.
Paley, on the other hand, is simply advocating personal "civil disobedience," and mainly talks about it as a private mental choice. Everyone else is completely free to think differently.
In fact, it would be more accurate to say that copyright laws "leave little space for anyone or anything else." Copyright laws are forced upon artists and the public through the power of state-sponsored force; Paley's and Lessig's views are not.
I meant. like JL, as in neither Np or JL will go down as great minds.
She's trying to be a crying rip-off artist (and succeeding).
She's not "crying," she's coming up with solutions that work for her.
Also, she produced a feature-length film that Roger Ebert rated 4 stars: " I was enchanted. I was swept away. I was smiling from one end of the film to the other. It is astonishingly original. It brings together four entirely separate elements and combines them into a great whimsical chord."
If she is a "rip-off artist," then the world needs more rip-off artists.
She is not going down as one of the great minds of the early 21st century intellectual property debate. (like Jarrod Lanier)
I hope you're joking. Lanier may have had some good ideas once, but now he's essentially a technophobe. Many people have woken up to the fact that he's been wrong about pretty much everything since 2006.
I think that Nina Paley sort of is on par with Larry Leesig [sic], two people who have convinced themselves of a truly extreme viewpoint on copyright.
First of all: the viewpoints of Nina Paley and Larry Lessig are not the same at all. Lessig is not a copyright abolitionist (no matter what copyright maximalists would have you believe).
Second of all: Paley, at least, is convinced of her view, because copyright has directly interfered with her creation of artistic works. She didn't "convince herself," she was convinced because working within the copyright system convinced her that it was wrong. It was the copyright system itself that convinced her.
Does copyright stop the flow of information? Generally no, because we still discuss what is copyright anyway (did you see the blahblach movie or did you real the new so-and-so book?).
Copyright law absolutely interferes with people who are trying to utilize copyrighted works for their own creation, and/or people who are trying to utilize copyrighted works for the purpose of general dissemination to the public. And since this sort of "collective conversation" is much of which drives culture, yes, it does stop the flow of information (or at the very least, the flow of expression).
It doesn't stop ordinary humans from talking about the works, that is true; it does stop ordinary humans from using the actual expressive works (by e.g. sharing a sample on YouTube). Or it would, if anyone cared whether they were infringing or not.
Except in exceptional cases, nobody wants to use copyright to stop distribution, they want to use it as a legal basis under which distribution can occur.
Plenty of people want to use copyright to stop distribution. There are plenty of copyright holders who outright state, often by writing Congress, that they should have the right to stop distribution for content-based reasons. Here's just one example:
Artists can, and should continue to be able to, deny a use that they do not agree with. For one, an artist should be able to turn down uses in connection with messages that the artist finds objectionable. [...]
For example, Melissa Etheridge is a known lesbian and animal rights activist. A compulsory license would allow someone to remix or sample her music into a new work filled with homophobic epithets, and she could not say "no". In the same way, a compulsory license would allow someone to remix or sample music by Ted Nugent, noted gun ownership advocate, for a song promoting stricter gun control without Nugent's pelmission.
Were this done directly by the government, this would be called "content-based censorship."
Also, the mere fact that copyright can only be licensed by those who can afford the license (however much it may be) means that copyright stops distribution. It doesn't stop all distribution, of course - but it does limit distribution to those with enough money to enter into deals with corporate rights holders.
It would be incredibly difficult (if not impossible) for artists to be able to get compensation for their works if they had no legal standing.
"Legal standing" does not mean "copyright." There are plenty of ways for artists to get compensated without holding the copyright to their works. Obviously, crowdfunding is one example, but even historically, the vast majority of artists did not hold the copyright to their works - think people who are work-for-hire, like graphic designers, actors, studio artists, etc. In fact, most artists have always been paid more if they were work-for-hire than if they signed away their copyrights for a commission (a.k.a. royalties).
The idea that copyright gives creators a legal right to leverage against publishers is a good one, in theory, but in practice it's not as significant as people think. For one thing, even without copyright, artists would always have "first publication" rights, and those can be (and usually are) more important than their post-publication monopoly rights.
For another thing, the fact that publishers (including labels, studios, etc.) are assigned the copyrights to thousands or millions of works, mean that they tend to have collective monopolies over entire markets. Aside from being destructive to artistic markets in general, this significantly reduces the bargaining power of creators within those markets.
So, while copyright may give creators rights, in order to bargain with copyright assignees, it eventually makes those barganing rights nearly inconsequential.
The result is what you see in the modern piracy economy, the only artists thriving are those who are willing to forego the creation process and instead work on the cult of celebrity, which pays far more. It's a stupid system where people pay more for a "personal appearance" of celebutards like a Kardashian than they do for a musician or writer.
This is exactly what has been happening since celberety existed. It has zero to do with a "modern piracy economy," whatever that is supposed to be.
Nina's problem I think is that she has never been on the other side with a product people widely pirate
Nina has, and does, encourage people to pirate her product. And they do - widely.
If there's anyone who has "been on the other side," it's her.
If all that effort went instead into artistic creation... opportunity costs, right?
Ironically, you're making her point for her. She - like many, many artists (especially professional creators) - spent far too much time considering if her use of a work is allowed under copyright law. The self-censorship, plus the multi-year legal wrangling with copyright holders, the hundreds of thousands of dollars required to license songs from the 20's and 30's, etc... all of these created "opportunity costs" that she didn't choose.
It was only by completely ignoring copyright law that she was able to put that effort into artistic creation.
She went over this later in the video, especially the part before she showed "This Land Is Mine." I suppose you didn't make it that far.
You very specifically mentioned bars, restaurants, and live venues.
All of which can be sued by the sound recording copyright holders, just like terrestrial radio stations are here. (Like terrestrial radio, they don't pay anyone but songwriter PRO's like ASCAP or BMI for the music they play.)
These aren't the people who have been suing at all, those people were Flo and Eddie, these people are ABS Entertainment.
Flo and Eddie are not (just) songwriters, and they are not suing as songwriters. They are (also) the copyright holders of the recordings (the "masters").
The basis of their suits, like the basis of ABS Entertainment's suits, is that they (as sound recording copyright holders) have public performance rights under state statutes or common laws. (Laws which are preempted by Federal copyright statutes for post-1972 sound recordings.)
(by the way 'mechanicals' ONLY refer to the copyright that is held in the sound recording, it is paid to the OWNER OF THE MASTER TAPE . They are never paid to the songwriter unless the songwriter is also the owner of the master tapes.)
That's not how the term is usually used. See e.g. this FAQ by HFA:
A mechanical license grants the rights to reproduce and distribute copyrighted musical compositions (songs) on CDs, records, tapes, ringtones, permanent digital downloads, interactive streams and other digital configurations[...]
A mechanical license DOES NOT grant the right to:
- Reproduce sound recordings, also known as “master use rights”.
Master use rights are required for previously recorded material that you don’t own or control. HFA doesn’t issue master use licenses. Master use rights can only be obtained from the owner of the master recording, usually a record company.