Judge Mocks Public Interest Concerns About Kicking People Off Internet, Tells Cox It's Not Protected By The DMCA
from the that's-a-problem dept
Judge Liam O'Grady -- the same guy who helped the US government take all of Kim Dotcom's stuff, is the judge handling the wacky Rightscorp-by-proxy lawsuit against Cox Communications. The key issue: Rightscorp, on behalf of BMG and Round Hill Music flooded Cox Communications with infringement notices, trying to shake loose IP addresses as part of its shake down. Cox wasn't very happy about cooperating, and in response BMG and Round Hill sued Cox, claiming that 512(i) of the DMCA requires ISPs to kick people off the internet if they're found to be "repeat infringers." Historically, it has long been believed that 512(i) does not apply to internet access/broadband providers like Cox, but rather to online service providers who are providing a direct service on the internet (like YouTube or Medium or whatever). However, the RIAA and its friends have hinted for a while that they'd like a court to interpret 512(i) to apply to internet access providers, creating a defacto "three strikes and you lose all internet access" policy. Rightscorp (with help from BMG and Round Hill Music) have decided to put that to the test.This is a big, big deal. If the case goes against Cox, then it would create a massive problem for the public on the internet. Accusations of infringement could potentially lead to you totally losing access to the internet, which could really destroy people's lives, given how important the internet is for work and life these days. The details of the case look like they should favor Cox pretty easily. After all, Cox pointed out that Rightscorp only had licenses from the publishes, meaning they had no copyright in the sound recording -- yet they admitted to downloading the sound recording, suggesting that, if anything, Rightscorp was a mass infringer. On top of that there was pretty strong evidence that Rightscorp does not act in good faith in how it runs its shakedown practice, telling people that they have to take their computers to the police to prove their innocence (really).
Unfortunately, as Eriq Gardner reports, Judge O'Grady has ruled against Cox on a very key point: does its current policy grant it safe harbor under the DMCA. The judge said no, though we're still waiting for the full ruling as to why.
The bigger story is O'Grady's determination that there is "no genuine issue of material fact as to whether defendants reasonably implemented a repeat-infringer policy as is required by §512(i) of the DMCA," granting a motion that Cox is not entitled to a safe harbor defense.Now, just because you're not protected by the safe harbor it does not mean that you are automatically guilty of infringement. There are cases where sites have not qualified for the safe harbor and still prevailed. But it does make things more difficult and complicated and, much more importantly, opens the door to lots and lots of mischief by the RIAAs and MPAAs of the world to use this to kick people off the internet entirely based on accusations of copyright infringement. That's immensely worrisome.
O'Grady doesn't seem to think that kicking people off the internet is really a big deal. Earlier in the case, we've discovered, in the process of flat out rejecting an attempt by Public Knowledge and EFF to file an amicus brief, Judge O'Grady made his views clear:
I read the brief. It adds absolutely nothing helpful at all. It is a combination of describing the horrors that one endures from losing the Internet for any length of time. Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it's completely hysterical.That's his response to two well known public interest groups explaining to him the "real world harmful effects" of Rightscorp's copyright shake-down trolling business. But he didn't want to hear any of it. Because protecting the ability of Americans to not be the subjects of extortion schemes and to enable them to communicate and work is "hysterical" and no different from kids not doing their homework because of too much YouTube.
The details here matter, but I would imagine that Cox is likely to appeal. One hopes that the appeals court is more open to listening to the concerns over copyright trolling and kicking people off the internet.
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Filed Under: 512i, copyright, dmca, liam o'grady, safe harbors, three strikes
Companies: bmg, cox communications, rightscorp, round hill music
Reader Comments
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"I see no problem barring someone from using the phone on accusations alone, they can always write."
Lovely.
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Re: "I see no problem barring someone from using the phone on accusations alone, they can always write."
I would literally lose my job if I didn't have internet access at home.
You can't viably pretend that the internet is just a social medium or a computer nerd/hobbyist's interest anymore.
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Re: Re: "I see no problem barring someone from using the phone on accusations alone, they can always write."
In the US there is supposed to be a presumption of innocence not guilt. Copyright law turns this presumption around, one is presumed guilty until proven innocent.
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Re: Re: Re: "I see no problem barring someone from using the phone on accusations alone, they can always write."
many jobs (except fast food?) require internet. Taxi cabs and police get next assignment via internet...most office people have email....even pubic sanitation workers use internet to track their truck
going to the dr in the 21st century requires your profile on the internet...and then the dr has to transmit...via internet...your prescriptions. some of those same dr's have online scheduling
applying for ACA/Obamacare, loans, education admissions, professional certifications all require you to use the internet.
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Re: Re: Re: Re: "I see no problem barring someone from using the phone on accusations alone, they can always write."
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Re: Re: "I see no problem barring someone from using the phone on accusations alone, they can always write."
you can when you are a brain dead judge that is out of touch with reality.
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Re: Re: Re: "I see no problem barring someone from using the phone on accusations alone, they can always write."
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Re: Re: "I see no problem barring someone from using the phone on accusations alone, they can always write."
thank you, pretty much exactly my situation, except i work in the office most of the time...
however, my job is predicated on inertnet access where we have a lot of stuff on google's cloud, proprietary s/w *only* accessible over the tubes, email as the blood of our company and getting deliverables to customers...
our bidness is pretty much dead in the water without internet, and -needless to say- anyone working there had better be 'allowed' to access it, or wave buh-bye...
not only that, while my job could *theoretically* NOT need inertnet access, it almost always does, the way things practically work...
and so, not only unemployable, BUT ALSO unable to FIND employment in the first place, since 90%+ of your job search activities involve the net...
i'm guessing the judge is simply fascinated by the iridescent bubble he lives it...
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Re: Re: Re: "I see no problem barring someone from using the phone on accusations alone, they can always write."
If all the completely tech illiterate people that speak no English and are practically illiterate that come here illegally can find jobs often without the Internet I guess that shows it's still possible.
But still, I completely agree, a ban on the Internet is ridiculous.
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Re: Re: Re: Re: "I see no problem barring someone from using the phone on accusations alone, they can always write."
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Re: "I see no problem barring someone from using the phone on accusations alone, they can always write."
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Re: "I see no problem barring someone from using the phone on accusations alone, they can always write."
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It's from the transcript from a recent hearing.
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It's completely hysterical.
How did that turn out?
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Re: It's completely hysterical.
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Yeah, "selective enforcement", ain't it great?
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If I lost my internet
My children could not do their homework because it's in the 'cloud'
I could not do my job where I am responsible for keeping elearning websites online 24/7
This asshole cares about HIS son getting an education and doing his homework but not anyone else.
Close minded, lack of critical thinking jackasses like this should not be allowed to sit on the bench.
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Re: If I lost my internet
Also, taking his son's electronics away for watching videos instead of doing homework?
If he can spare the time and effort to pack up the PlayStation or Wii or computer or whatever so his kid can't have it,
he has time to sit down and actually HELP with homework.
I question Mr. O'Grady's commitment to actually caring for his children.
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Re: Re: If I lost my internet
This judge seems to be a bully looking for excuses to "punish" people. "Caring" doesn't really go well with that.
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Re: Re: Re: If I lost my internet
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Re: If I lost my internet
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How much of the worlds commerce transformed into e-commerce when the internet became part of our daily lives? How many internet bans would it take to seriously impact the economy I wonder? It would, eventually.
Plus there are the hundreds of other important uses. People rely on internet access for all kinds of things, some of which have already been pointed out here as I scroll through the comments.
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Interesting
But then legislators indulge in all sorts of stupid things like the sizes of nuts on sale and he probably has no qualms about benchslapping somebody for parading insufficiently sized nuts as long as there is a law to cite for it.
So if they hand him a DMCA, he might as well acknowledge its existence even if in his opinion it does not amount to a hill of beans.
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Re: Interesting
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no surprise here
Slate had the full story (about supreme court justices) a while ago. Fascincating reading that explains a lot: http://www.slate.com/blogs/future_tense/2013/08/20/elena_kagan_supreme_court_justices_haven_t_gotten _to_email_use_paper_memos.html
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He's comparing disconnecting people from the internet based upon accusations to him taking away his kid's toys because he's watching YT vids instead of doing homework. That shows a glaring indifference and/or ignorance of just what all the internet is used for currently beyond just 'watching videos'.
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Probably quite accurate - except the 'good' part.
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Yes. He is.
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Judge shopping. As is the case with Megaupload as well.
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They are both rights guaranteed by the constitution. See the american declaration on duties and rights of man and the universal declaration of human rights.
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This does not seem to be the type of judge to be hindered in his thinking by quaint ideas like "rights".
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Copyrights are not guaranteed by the Constitution. It only states that Congress has the authority to implement a copyright regime. There is no requirement that Congress actually do so -- just as Congress is not required to legalize privateering even though the Constitution empowers them to.
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Just sue the Judge from a foreign Nation
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Re: Just sue the Judge from a foreign Nation
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They have no bread
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It is nice to see yet another glaring example of where special interests have not only captured the legislative but also have a good grip on the judicial. 'Merika the best justice if you can afford to buy what you want it to be.
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Some people are berated and pressured for still using snail mail to pay bills, perhaps these folks realize the internet is unreliable and therefore unsuitable for all their financial transactions. Something something eggs in a basket.
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Then I remembered this sentence:
Now, I suspect he'd just rather not be confused by the facts, his mind being made up and all.
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It is a convenience of being a judge,
For this we invented term limits. Perhaps it is time to revisit that notion.
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Re: It is a convenience of being a judge,
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Electricity
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Rightscorp is just trying to leverage Cox into releasing info, and they're hoping that the increased legal costs that Cox will face as a result of the loss of Safe Harbor will be enough of a push. What they should really be doing to get the subscriber information is applying for subpoenas under 512(h), but since that went over SO well when the RIAA tried it, they don't want to go that route.
Although, since 512(j) already provides for the ability for someone to be "kicked off the internet" by court order, Rightscorp should have gone that way instead. However, 512(j) only applies to providers with Safe Harbor, so this recent decision might actually be a setback for them.
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Re:
A secret blackbox spitting out random demands (sometimes multiples for the same alleged event) being lifted to being actual evidence of wrongdoing and demanding others act upon them bypasses the actual law.
These are allegations, and even the Judge has seen that Rightscorp will not turn over the source code, with unproveable foundations. They are supposed to be taken as absolutely true and actions taken based upon them with nothing backing them other than a shitty pennystock traded company doing PR to boost share value.
There is a repeat infringer piece to the law, to use it shouldn't the law actually decide if someone is an infringer and not a company trying to keep afloat as they burn several dollars for every dollar they take in?
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No No, Judge O'Grady, its like your wife and everybody else in the house complaining because you took all the electronics in the house away to get your son to do his homework.
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First and foremost, Cox really should have a repeat infringer policy. They also not clear that they are forwarding DMCA notice to their customers or taking action to end reported infringement on their network. The DMCA law is pretty clear that a hosting company or other can and should take action where possible to stop reported infringement, or potentially become liable for it. Without a proper repeat infringer policy (and application of this policy) they seem to be out of compliance with the law, with potentially costs them any safe harbor they might have.
The judge clearly realizes there is a problem, when an ISP can essentially ignore a DMCA notice,not deal with the infringement in any meaningful way, and obstruct all efforts to be able to legally serve the infringing directly. It seems that the law should (and potentially does0 not allow them to have it both ways.
Moreover, I think the judge is correct. Internet access is nice, but much like a license to drive a car it's not a right, it's a privilege. It's always very common for courts to order people not to do certain things that they have problems with, such as make phone calls, visit certain places, or enter a given geographical area. Restricting their access to the internet by allowing an ISP to disconnect repeat offenders isn't outrageous, it's actually a pretty normal concept.
Oh, and for what it's worth, they are not being removed on "accusations alone". Failure to answer a DMCA complaint is in itself an admission of being in violation. If someone is getting multiple DMCA notices that are not valid and doing nothing about it, it's really not different any other legal notice that you may receive. The lack of a response is and admission that the content of the notice is correct, and it would take multiple such notices for an ISP to have to act. If you wanted to protect your connection at home to "work" (aka watch porn and chat on twitter), then you may want to consider turning off the torrent client and not seeding stuff - remember, this isn't about downloading, it's about seeding / sharing.
You may stop waving your arms now.
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The user what_ever (https://www.techdirt.com/user/what_ever) violated my copyright with the above post. Please terminate his account based on this accusation.
Thank you,
The Accuser
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Re: Re:
The Accuser has filed a false DMCA notice. Please support me as I move to have his intentionally false DMCA claim prosecuted to it's fullest.
Thank You.
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Get in line, loser. Why should we care about yours when we've never cared about any others'?
Hoser. Whiner. Self-entitled idiot moron. What turnip truck did you just fall off of? Sheesh. You're not Hollywierd. You expect us to listen to you?!? Or anybody? Obviously, you're just ignorant of how the law works, fool.
People! :-O
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HAHAHAHAHAHAHAHAHAHAHAHAHA -
Oh wait, you were serious?
HAHAHAHAHAHAHAHAHAHAHAHAHAHA
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Let's see... their claim may or may not be valid, but it looks like they haven't fraudulently claimed to be someone that they're not, which is the only thing that matters under the DMCA with regards to bogus claims, so the punishment will be... nothing.
Absolutely nothing.
Court adjourned, enjoy your justice.
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The banning you support is based on accusations alone, regardless of merit. Of course, like most hypocrites, you seem to think that should only apply to other people. (you being so special, and all)
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If someone is getting harassed by a powerful entity, they should take time out of their schedule, devote their own resources, and possibly risk more money than their grandchildrens grandchildren would ever hope to see by treating the notices as valid and seeing the company with virtually infinate resources in court to challenge this harassment, taking responsibility for every single person who has ever walked within a mile of their wifi and their traffic.
Its really not any different from any other legal process, such as being drawn into court for truthfully posting a negative review in violation of a terms of service, being arrested for carrying a camera within 50 ft of an active robbery, or having your life savings confiscated by law enforcement because 'normal people don't carry this much cash'.
If you wanted to protect your connection at home to 'life', perhaps you should consider being poor, never complaining about a company abusing you, and ensure to always avert your eyes from law enforcement and keep your distance from any officer in blue lest you be suspicious.
Remember, this isn't about violating the law, it's about slightly annoying someone with the power to destroy your life.
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Which is how torrenting works. You know, multiple streams coming/going to/from multiple systems sharing the load, minimizing the stress on all involved? If you idiots weren't such luddites (or dogs in a manger) you'd see the value in it and might even learn to use it profitably. But no, you don't understand any of it so you hate it.
You're just butt hurt that Congress is so incompetent they couldn't write the law you paid for. You should demand your money back until they cough up the one you wanted.
Boycott MafiAA!
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Re: Re:
As for "Which is how torrenting works.", well DUH! It's the point of the whole exercise, which is that if you value your internet connection (ie you need it for work) perhaps you should refrain from also using your precious work tool as a download station.
" If you idiots weren't such luddites"
What can I say? Personal attacks, insults... classic!
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Shouldn't you be busy looking for the PaulTs under your bed so you can shake your fist at them?
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The UN disagrees with you: https://en.wikipedia.org/wiki/Right_to_Internet_access.
" Restricting their access to the internet by allowing an ISP to disconnect repeat offenders isn't outrageous, it's actually a pretty normal concept."
If someone gets charged with assault for kicking someone else, they don't cut his legs off. If someone is accused of harassment, they don't cut out his vocal cords.
"Failure to answer a DMCA complaint is in itself an admission of being in violation."
Bullshit. Feel free to cite the relevant law and case law that proves this to be true. The US justice system is not built in anyway on a concept that silence equals admission of guilt. If you refused to speak or communicate while you were on trial, the prosecutor would still have to bring a case against you and prove you.
You seem oblivious to the irony that you're using the internet to communicate to others that the internet isn't important in anyone's daily lives. Fine. Prove it. Get off the internet. Come back in a year (or more if you like) and let us know how much easier things were for you. We can set up a Whatever bot to automatically toll the comments while you're gone. It's not difficult to write a script that just disagrees with anything Mike and company says.
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Spot on. It is being seen as a right, because in the modern world, it is increasingly necessary to participate in other human right (the right to free speech, the right to political assembly, etc).
It should also be mentioned that copyright, unlike the right to an Internet connection (according to the U.N.), is not a human right:
http://www.ip-watch.org/weblog/wp-content/uploads/2015/03/Statement-SR-cultural-rights-11-Marc h.pdf
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Wow, that is awesome to know!! Give me a throwaway e-mail address that you used to buy something back in 2009 and never checked again, and let me spam that e-mail address with DMCA complaints, and when you don't answer them, I will gladly sue you for millions in copyright violations, and you're completely on the hook since you "admitted" to them! By the way, thank you for agreeing to this, I really appreciate it. I can really, really use the $10 million I am about to extract from your bank account.
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How can there be a problem? Would there be a problem if an ISP completely ignored a fishing limit complaint?
But fishing limits don't apply to an ISP because an ISP DOESN'T FISH.
And so long as an ISP doesn't host websites, an ISP can, and should, ignore DMCA notices.
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Wrong. If I'm sitting at home seeding torrents of movies and music off of my desktop computer, the proper target of the DMCA notice is the ISP. not that the ISP will be able to "remove or disable content" as it isn't hosting any, but for other reasons. There are two purposes for sending the notice (assuming that there is no abuse of process): One, to make the ISP aware of the infringement claim in case the repeat infringer policy ever needs to be invoked; and Two, to initiate the process of obtaining a subpoena under section 512(h) so that the rightsholder can identify the infringer (in this example, me) and pursue action against them directly.
If they ignore the notice, the ISP loses safe harbor and possibly faces contributory liability for my torrent seeding.
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ISPs have the ability to remove the offending content from the net, and as such, the DMCA should clearly apply to them. Ignoring the notices (or even more so, getting all agro about them) puts them legally in the position of accepting responsibility for the clients they choose to provide connectivity for.
The legal action has merit (way more merit than say arguing copyright is a violation of the 1st amendment) and may be a significant game changer. When users can no longer hide being the ISP and finger their noses at rights holders, you can expect torrenting to end pretty shortly after.
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You're lazy twits, always blaming others for not fixing your problem. It's like you're blaming whoever built the roadways for letting bank robbers get to your vault! Go after the infringer who's putting it on the net, not the ISPs that are just doing their job.
You're a whining crybaby. Quit your whining and fix your problem. We shouldn't have to care about your problem, and *our* elected representatives shouldn't be mangling whole countries' judicial systems just to satisfy your witch hunting perversions!
Boycott MafiAA! Starve the bastards into oblivion!
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Don't care, I doubt I ever will, and never heard of her. What's she get out of it? Ten bucks, or is she still trying to pay off her marketing, promotion, and recording expenses debts to her label? Poor Adele, a sucker born every minute.
It's already dead for me. You'll never see a penny of mine, and every day there'll be more people thinking like me. There's plenty of artists out there doing great stuff who aren't signing their lives away to legacy gatekeepers who're trying to corrupt democracy in their death throes. Artists don't need to sell their souls to labels anymore thanks to the net. Of course, that's why the MafiAA wants to kill the Internet. You don't have a clue how to compete against them.
"The time for honoring yourself will soon be at an end, highness." -- Gladiator.
Die screaming in a fire. You won't be missed.
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I don't understand this statement. All you've done is whack yet another mole no? People just move their torrent traffic to secure proxies outside the U.S. and it's laws. If your on a private torrent site, and/or your using a secure proxy service that doesn't keep logs and is outside the U.S., your perfectly safe as user.
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Nope. Something like this would go well beyond a meaningless gesture, as it would make torrenting significantly more difficult, slow, and expensive. How much would people be willing to spend to avoid spending for content?
Torrents work when there is a critical mass of peers to work from. If you remove a big chunk of users from the torrent world (because they are unwilling or unable to pay for a proxy), and if you make the overall delivery speeds significantly lower (because using a proxy generally reduces download and upload speeds)... you make using torrents to share way less desirable.
If it's whacking a mole, it's whacking the queen mole.
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Of course, none of this actually makes Hollywood any money, but copyright fanboys seem to believe that if torrenting disappeared it would suddenly equate to more money to fund more Hollywood luxuries.
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You misspelled "looser".
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Wrong. If YOU are violating the law, then YOU are the proper target, not someone else. Not your ISP, not your electric provider, not your computer provider, not your landlord, not your employer, but YOU.
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Try reading the article, my little apologist friend. (Or maybe you did and you're trying to pretend it's about something else) It's about kicking people off the internet without due process, not about initiating it.
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I look at DMCA notices all day long. Most of them are petty and stupid, if not outright abusive or false. Generally, the larger the rights-management company, the worse they abuse the process.
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Which spun off from a article titled (wait for it)...
"Judge Mocks Public Interest Concerns About Kicking People Off Internet, Tells Cox It's Not Protected By The DMCA."
you'll also see that I said "assuming no abuse of process."
What you're supporting ~is~ an abuse of process.
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its that time again!
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wAITING
Can you see Rights corp, BMG, and all the others having restricted or Dropped internet access..
It would solve lots of problems..
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and have a bad reputation with the general public
wait until people established cities for life without internet.
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Same old same old
Here's are questions that should be considered and haven't.
What happens if the judge rules in favour of Rightscorp?
Does Rightscorp get the names and whatever else they are after?
Does Rightscorp get injunctions to deny internet service to 1 million or more people based on their accusations?
What happens if these people are fired/forced to resign etc because their job is done over the internet?
What alternatives are there if you or others are denied access to the internet?
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Re: Same old same old
Then they're unemployed, and the pool of alternative jobs available to them is significantly reduced. For a stupid reason.
The public library and Starbuck's go from simple conveniences to vital resources. For a stupid reason.
The "stupid reason" is the fun part here. There will be many more updates on this story in the future, and we will ridicule the judge some more. With luck, it'll eventually cause him to spontaneously combust. Until then, it's just cathartic venting.
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Re: Re: Same old same old
The otaku have to trot down to the local mangakissa to get their fix, the trolls likewise and whoever was profitably employed working remotely for a company is now out a job.
You Americans are hopeless. It7s no wonder the Chinese are taking over your country.
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Re: Same old same old
See Beryl Howell and her ruling on Prenda. It eventually got overruled and the latter are deep in a shit pit of their own making.
Rightscorp is bleeding out four bucks for every dollar they scare out of someone. If a judge wants to go down a sinking ship, sure. It won't stop the ship from sinking.
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Some people seem to have the wrong scope of things...
This is not about the ability to use Facebook or watch youtube as this judge seems to think the whole internet consists of, but the destruction of this guys education and current/future jobs. You run the possiblity of ruining his whole future here.
There are not many jobs that would hire anyone that couldn't use a computer... even all the production workers in the company, where I work, needs to be able to use a computer.
This judge(an other technological incompetent) should get a little homework: go to google.com and look up how big the internet really is and how it is used in society because they clearly don't know how the real world works when you don't have clerks.
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Re: Some people seem to have the wrong scope of things...
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Worse, we're making idiots (or ignorant nobodies) judges now. You'd think if he didn't actually know anything about the Internet or tech. (as in, ever use it or see any point in learning about what it is beyond it interrupting his kid doing his homework), he should recuse himself. He thinks the EFF and ACLU are just babbling about tangentials? Really? Shouldn't something be done about that? I think so.
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Characterizing a billion dollar industry as fap-media
The Internet is significant percentage of the national GDP. Calling it a toy for nerds stopped being funny around 1994. Please renew the prescription for your senility meds.
Thanks in advance,
The rest of the country.
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Re: Characterizing a billion dollar industry as fap-media
However, you strike a vein. Think math. Isn't that easy? There's no heavy lifting. There's no "things trying to kill you." It's just thinking, and learning concepts and stuff that's been figgered (okay, figured) out (long ago) then using it. So, why isn't the planet drowning in math geniuses? It should be, if what I said above is correct.
Aside, I would never think to go to Google to find pr0n. Does that actually work?
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Re: Re: Characterizing a billion dollar industry as fap-media
Yes.
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Kick him off the bench
We REALLY, REALLY, REALLY need to start making these people pass tests. If they don't understand technology, then they can't vote on legislation about technology, preside over cases about technology and half the times or prosecute cases involving technology unless they are "certified" and the certification standards should come from the industry... NOT from the government.
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