The record labels not only generally pay (based on their contracts) but also provide huge sums of money UP FRONT, pre-paying artists to record for them.
This bullshit has been debunked so many times, it's a bad joke.
The "huges sums of money UP FRONT" (the advances) are not used for "pre-paying artists to record for them." They are used to pay for the costs of recording the album.
Equipment, recording studio payments, payments to record producers, studio musicians' wages, and so on, all come out of that advance. And often it is the labels, not the artists, who determine these things (they bring producers on board, choose the recording studio, etc). Whatever is left over goes to the artists - and their representatives (managers, publicists, assistants, whatever).
And the "pay" (royalties) doesn't accrue until after that advance is paid back out of the artist's royalty share. This varies by contract, but a good round number is 15% of the profits.
So, if you have a $200K advance - nearly all of which goes into recording the album - then artist's royalties won't accrue until the album has made about $1.3 million dollars. At that point, the label has earned over a million dollars, and the artist has earned nothing in royalties. And this doesn't count other "recoupables," such as the album artwork, music video costs, tour support, and so forth, that also must be paid back in full before the artists earn royalties.
Incorrect. Natural right says that if I create something, it's mine. Copyright only helps to more clearly define that in legal terms.
This is completely false. U.S. copyright law is not, and was never, based on the natural rights of authors:
The enactment of copyright legislation by Congress under the terms of the Constitution is not based on any natural right that the author has in his writings, for the Supreme Court has held that such rights as he has are purely statutory rights, but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive right to their writings. The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policty is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention, to give some bonus to authors and inventors.
In enacting a copyright law, Congress must consider two questions: First, how much will the legislation stimulate the producer and so benefit the public; and second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights under the proper terms and conditions, cofers a benefit upon the public that outweighs the evils of the temporary monopoly.
- H.R. Rep. No. 60-2222
It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme."... It is, rather, "the essence of copyright," ... and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "to promote the Progress of Science and useful Arts."
First and foremost, if you follow the DMCA and remove the content, the infringement is stopped. At that moment, the very basis of a copyright infringement lawsuits has shrunk considerably, the "harm" has stopped and thus any lawsuit is based solely on the harm done before the DMCA notice. It makes the case much harder to make.
Not really. All that a rights holder has to do is show that infringement occurred, and they're eligible to collect statutory damages. And, as we saw in the Thomas-Rasset and Tenenbaum cases, statutory damages bear little to no relation to the harm done.
Second, you would also have to show that the site owner was in fact the one that posted the content.
What are you talking about? The one that posted the content can get sued, regardless of whether it was the site owner or not. (And if it is the site owner, there goes its DMCA protection.) Rights holders don't have to show it was the site owner in order to sue the user.
Third, even if they did post the content in question, a rights holder would have to prove that use in a court of law
As I said: they'd have to actually follow the law. The fact that the DMCA makes it easy to not follow the law is an argument against the DMCA.
The costs related to doing so past the costs of a DMCA notice are such that few rights holders are willing to take anyone to court.
As I said.
Sort of normal. It's US law, and generally the notices are sent by US companies or sent to US addresses.
There is no parallel requirement for rights holders. Someone can send Wordpress a takedown notice from Brazil or wherever, and they aren't required to agree to be sued in the U.S.
But, "normal" or not, it does show that the DMCA isn't designed to protect users, which was your entire point.
Of course, there is no obligation to send a counter notice. You can remove the content and call it even.
You mean, "even though you don't think you're infringing, you can shut up when the service provider removes your content, and live with the strike on your account." Yeah, that's totally fair.
almost all infringement is done ANONYMOUSLY. Youtube, instagram, and so on accounts that all point anonymous email accounts. [...] Without DMCA, service providers would not accept anonymous postings, and if sued, they would quickly give up the user information and involve them in any lawsuit. "Anonymous User sourced content" would not be a valid business model, and with end users properly identified, it's very likely that infringement would drop dramatically because few would want to take the risks.
So, you're basically saying that the Web as we know it would not exist. Bye-bye Wordpress, Reddit, YouTube, Facebook, and so forth. Bye-bye Amazon reviews, eBay listings, or comments on news sites.
Bye-bye, our First Amendment right to speak anonymously.
And bye-bye Whatever, since you're "anonymous" in that sense (I doubt "Whatever" is your legal name).
If your point was that the DMCA liability protections are absolutely essential and vital for society, then well done. If you're actually advocating against "Anonymous User sourced content," then you're pro-censorship.
I'll take that over an F- for not reading anything, which is your grade at this point in the semester.
Notice Automattic says " more than 25% of notices fail to meet those requirements" and then doesn't use an actual number or percentage when it comes to " in many cases people simply don’t have a colorable claim that infringement is taking place". It's a clear indication that this isn't the case for all of the 25%, and not even a number big enough for them to specifically mention.
You are totally full of shit, and here's why.
Obviously, Automattic can't know who actually has "a colorable claim" to infringement, and neither can you or I. But "a colorable claim" is legal-speak for "not utterly full of shit," so when Automattic says that these DMCA notices do not represent even "a colorable claim" to infringement, you can be reasonably certain that they're utterly bogus.
Notice again that they don't seem to provide much detail as to why they don't consider these claims valid.
That's detailed in the DMCA. Remember that service providers have to work with DMCA notice senders, by law, if:
ii. they provide "identification of the copyrighted work claimed to have been infringed;"
iii. they provide "identification of the material that is claimed to be infringing," and "information reasonably sufficient to permit the service provider to locate the material;"
iv. they provide "information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted."
The "reasonably sufficient" language makes it clear that you don't have to dot your i's and cross your t's; you just have to provide something sane and rational. It's easier and more straightforward than signing up for Facebook, with even less sanity checks.
And 25% of DMCA notice senders couldn't even do that. Despite the fact that Automattic provides a page where everything is laid out, in plain English, in addition to their DMCA contact email.
It is pretty much impossible to send an invalid DMCA notice in this case. Yet 25% of senders do it.
Like many service providers, Automattic provides an online form that guides a claimant in submitting a 512(c)(3)-complaint notification (https://automattic.com/dmca-notice/) - and even so, a quarter of the notices simply don’t include the necessary information.
If you go to that page, everything is laid out in plain, non-lawyerly language.
If you apply the rules to the nth degree (and Automattic apparently does) it's very easy to find fault in almost every DMCA Notice in some form or another. Those made by individual rights holders who are not familiar with the exact wording required could fail every time.
I guess you didn't bother to read Automattic's filing:
As discussed below with respect to Subject No. 30, our statistics show that more than 25% of notices fail to meet those requirements, and it is our belief that the failure comes not from overly burdensome requirements, but because in many cases people simply don’t have a colorable claim that infringement is taking place.
In a case in which the notification that is provided to the service provider’s designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).
DMCA actually gives huge advantage to infringers and general use of copyright material, because the penalty for misuse is getting the content removed, end of discussion.
You keep saying this, and it is completely false.
The DMCA safe harbors protect service providers. Nothing in the DMCA gives any more protection to users who upload infringing content. If you upload infringing content, it doesn't matter if it's removed or not, you can still be sued if the copyright holder chooses to do so.
In fact, the DMCA makes it easier to sue infringing users.
In order to send a counter-notice, you have to agree to be sued in the U.S. It's in 512(g)(3)(D):
(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: [...]
(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
And if you send a counter-notice, and the content is ultimately found to be infringing, you are not only on the hook for damages to the copyright holder, but also to the service provider, and you automatically have to pay attorney's fees:
(f)Misrepresentations. - Any person who knowingly materially misrepresents under this section - (1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
True, this section also ostensibly protects those whose content is taken down. But as we've seen in the Lenz case, it's pretty much impossible to show that a copyright holder "knowingly materially misrepresents" that something was infringing.
So the DMCA is heavily weighted against sending counter-notices, even if the DMCA notice is utterly and completely bogus.
Additionally, the DMCA grants subpoena rights to identify infringers under 512(h). Without the DMCA, this would have to go through a judge.
Imagine if every DMCA against a YouTube video was replaced with a lawsuit
YouTube is a bad example. They have ContentID, so copyright holders don't send DMCA notices, they simply claim the content and take all the money it generates. But for the sake of argument, let's assume that wasn't an option.
As I shoed above, there is absolutely no reason that a DMCA against a YouTube video can't involve a lawsuit.
So, why aren't users getting sued left and right?
There are a bunch of answers:
1. As you said earlier: "Such a legal action would incur incredible costs". It is simply not economically feasible for rights holders to go after users through the court system. And even if they did get judgements that "cripple [infringing users] financially for the rest of their lives", those judgements still wouldn't end up paying for the legal fees.
(But they probably will be, as soon as the Rightscorps or Righthavens of the world figure out how to do it.)
2. Simply put, a single YouTube video doesn't cause enough economic damage to be worth the lawsuit. The monetary incentive for copyright holders to prevent infringement by a single user simply isn't there.
3. Copyright holders would have to actually obey the law. The DMCA makes it so easy to take down content that copyright holders even suspect to be infringing, that they simply send DMCA notices without a second thought. The penalties for doing so are trivial, if they are even enforced at all.
If they had to go through the court system, they not only have the chance of losing, but of setting precedents that they don't want, or of reiterating existing precedents that they like to pretend don't exist.
So, if the DMCA didn't exist, I doubt we'd see any more lawsuits against users than we do now. We'd only see a lot more lawsuits against service providers.
Don't pretend any of this benefits users (infringing or not). It doesn't.
According to Slater's (original) account, he was not the photographer. The monkey (presumably Naruto) was the photographer. But monkeys can't hold a copyright, so this work is in the public domain.
But even if Slater were the photographer, acknowledgement has nothing to do with copyright infringement. People who upload a Metallica song to the Pirate Bay "acknowledge" that Metallica is the author. Do you think that they're not infringing?
And, even if this were the case, pretty much every single story about this saga has "acknowledged" Slater. So, you're simply wrong.
use of the whole works
Even assuming the copyright goes to Slater (which it doesn't), use of an entire image does not mean it's not fair use.
detrimental to the financial effectiveness for the photographer
Copyright does not arise from the exertion of labor. See e.g. Feist v. Rural.
no element of Fair Use.
Every element of fair use. The photo was used for commentary and news reporting, both of which are explicit examples of fair use in the statutes.
Mike Masnick is an infringer, willfully so, and because of this he is also liable for criminal prosecution.
Willfully displaying a picture is not the same as willful infringement. Even if it were (which it's not), and even if this were not fair use (which it is), it violates only the display right. That is at most a misdemeanor under criminal copyright law.
You really have no idea what you're talking about.
Digital phonorecord deliveries implicate the public distribution rightn under Section 106(3). It's silly to argue otherwise.
The issue is whether this applies only to digital downloads (a la iTunes), which everyone agrees it does, or whether it also applies to digital streams. For example, streaming video sites are generally considered to implicate the performance right, but not the reproduction right.
I agree that it does, but only because of the definitions section in 115 itself. (I quoted it below.)
The whole situation is even more complicated than the article describes. Unsurprisingly, Lowery's lawsuit doesn't bring these complications up, either, since they both favor Spotify.
First of all, it doesn't consider the case where there are multiple songwriters. I'll let the FMC explain it:
There are pros and cons for licensees and licensors with regard to the compulsory mechanical. On the positive side, it can help streamline the process of obtaining licenses, which is not only important to services that offer expansive catalogs, but also labels who release recordings that embody compositions with an often staggering number of co-writers and co-publishers. [...] Publishers' list of negatives may can include rates that they belive do not reflect market value, the hassles of monthly accounting and the fact that a user needs only to serve one publisher, even if there are multiple parties who own a portion of the work. It’s up to the publisher who was served notice to pay any co-publishers.
Given that many songs have two authors (including most pop songs), and other songs have many many more, this almost certainly accounts for the majority of unlocated songwriters.
Second of all, it doesn't go into the contracts between Spotify, the Harry Fox Agency (HFA), and the publishers/songwriters they represent (HFA calls them "affiliates").
HFA offers a standard license for streaming in limited quantities. And, as a licencee, you are explicitly exempt from sending NOI's:
Upon issuance of this license, you shall have all the rights which are granted to, and all the obligations which are imposed upon, users of said musical work under the compulsory license provision of the Copyright Act, after phonorecords of the copyrighted work have been distributed to the public in the United States under the authority of the copyright owner by another person, except that with respect to Interactive Streams thereof made and distributed hereunder: [...]
3. You need not serve or file the notice of intention to obtain a compulsory license required by the Copyright Act.
HFA also takes over this duty if you sign up with their Slingshot service. In that case, I don't know if the songwriter even needs to be licensed by HFA; HFA might send out the NOI's on your behalf.
Larger streaming services (like Spotify) must sign direct deals with HFA, but I would be utterly shocked if there wasn't similar language in their contract. So, if Spotify is using any songs that are licenced by HFA, they almost certainly don't have to file NOI's.
Of course, that only applies to songs that are licenced by HFA. True, HFA does administer the licenses for the vast, vast majority of commercial songs, but not all of them. (In fact, if your song isn't published by a record label, you can't become an affiliate.) There is certainly going to be a factual issue as to whether HFA represented that they could license songs (or did in fact issue license for songs) where they didn't administer 100% of the rights.
It should also be noted that the HFA contract also specifies that HFA has a right to audit their licensees. So, it's not like they weren't aware of what songs Spotify was playing.
I'm guessing that there was some sort of problem on HFA's end, since Spotify is building their own database, and negotiating with the NMPA, instead of relying on HFA like they previously were. (But who knows, it could also be because HFA was recently bought by SESAC.) Whatever the issue, if this does become a class-action lawsuit, this is going to be a pretty tiny class. It would be a class composed of songwriters who are played on Spotify but not represented by HFA.
Does any of this apply to Lowery's songs? Perhaps, perhaps not. The particular songs in the lawsuit, at least, do not come up if you do a public search for them in HFA Songfile. (Unlike his Camper Van Beethoven songs.)
Regardless, I don't think he has a snowball's chance in Hell of proving "willful" infringement.
Also, this is the first I've heard the theory that non-interactive streams were not covered by statutory mechanicals. HFA explicitly says they are, and most industry folks seem to believe that as well. It also seems pretty clear in the statutes:
[(c)(3)](C) Proceedings under chapter 8 shall determine reasonable rates and terms of royalty payments [...]. Such terms and rates shall distinguish between (i) digital phonorecord deliveries where the reproduction or distribution of a phonorecord is incidental to the transmission which constitutes the digital phonorecord delivery, and (ii) digital phonorecord deliveries in general. [...]
(d)Definition. - As used in this section, the following term has the following meaning: A "digital phonorecord delivery" is each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein. A digital phonorecord delivery does not result from a real-time, non-interactive subscription transmission of a sound recording where no reproduction of the sound recording or the musical work embodied therein is made from the inception of the transmission through to its receipt by the transmission recipient in order to make the sound recording audible.
(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.