The Details Of Why Judge O'Grady Rejected Cox's DMCA Defense: Bad Decisions By Cox May Lead To Bad Law
from the ugh dept
As we noted a couple of weeks ago, Judge Liam O'Grady rejected Cox Communication's attempt to protect itself under the DMCA's safe harbor concerning a "repeat infringer policy." At the time, he only said he would explain his reasons later, and late yesterday he released his full opinion. It, unfortunately, brings to mind the phrase "hard cases make bad law."As we explained when BMG and Round Hill Music (with the help of Rightscorp) first sued Cox Communications, the company seemed like a slightly odd choice. While it was the largest of the internet access providers not to sign onto the so-called "voluntary" six-strikes "Copyright Alert System" hammered out between the RIAA/MPAA and big ISPs, it already had a reputation for actually disconnecting those accused of repeat infringements. None of the other major ISPs do that. In fact, a key prong of the whole six strikes thing was that no one would be getting kicked off the internet.
However, the RIAA has long insisted that the DMCA's 512(i) required ISPs to kick people off the internet -- even as that theory had never really been tested until now. Many others had assumed 512(i)'s "repeat infringer" policy only really referred to service providers who actually had direct control over content -- i.e., a YouTube or SoundCloud style site. Kicking people entirely off the internet because one person who uses their account to infringe is quite draconian.
The issue here, however, gets muddied, because Cox made such a mess of its "repeat infringer policy." Yes, it alone among the major ISPs will kick people off. But (and this is the important bit), its internal policy was apparently to kick people off... and then allow them to sign right back up for new service, at which point the count on "infringements" would be reset to 0. For obvious reasons, that feels pretty sketchy, and it's the key point that Judge O'Grady focuses on. Doing something that feels sketchy will often obscure the more important legal arguments. Judge O'Grady basically tosses aside all the other issues because of this "bad behavior" by Cox, as immortalized in some internal emails.
The record conclusively establishes that before the fall of 2012 Cox did not implement its repeat infringer policy. Instead, Cox publicly purported to comply with its policy, while privately disparaging and intentionally circumventing the DMCA’s requirements. Cox employees followed an unwritten policy put in place by senior members of Cox’s abuse group by which accounts used to repeatedly infringe copyrights would be nominally terminated, only to be reactivated upon request. Once these accounts were reactivated, customers were given clean slates, meaning the next notice of infringement Cox received linked to those accounts would be considered the first in Cox’s graduate response procedure.And, based on that, the court decides that Cox does not have a "reasonably implemented" termination policy for repeat infringers. There are a bunch of other similar emails, indicating that this absolutely was Cox's policy. Of course, all of that obscures the question of whether or not 5129(i) is meant to apply to access providers, rather than online service providers.
Numerous emails in the record, portions of which are reproduced below, support these conclusions. Even viewed in the light most favorable to Cox, the Court finds the contents of the emails cannot be explained away. Cox’s attempts to recast the emails are unavailing. Nor can they be pinned on low level employees whose views had no real significance. The name that appears again and again on these emails is Jason Zabek, Cox’s Manager of Customer Abuse Operations.In 2009, Zabek sent an email titled, “DMCA Terminations,” to the abuse group that said:
As we move forward in this challenging time we want to hold on to every subscriber we can. With this in mind if a customer is terminated for DMCA, you are able to reactivate them after you give them a stern warning about violating our AUP and the DMCA. We must still terminate in order for us to be in compliance with safe harbor but once termination is complete, we have fulfilled our obligation. After you reactivate them the DMCA ‘counter’ restarts; The procedure restarts with the sending of warning letters, just like a first offense. This is to be an unwritten semi-policy . . . We do not talk about it or give the subscriber any indication that reactivating them is normal. Use your best judgment and remember to do what is right for our company and subscribers. . . . This only pertains to DMCA violations. It does not pertain to spammers, hackers, etc.
Separately, the judge buys BMG's claim that in late 2012, Cox actually stopped terminating accounts almost entirely (leaving aside, again, that no other major access provider terminates anyone). Again, some questionable internal behavior by Cox comes back to bite them. The judge highlights a case where Cox internally kept discussing a user who was frequently accused of infringing, and who they threatened to cut off... but didn't -- even admitting it's at least partly because of the large amount of money the customer pays.
In June, a senior engineer in the abuse group said this about a customer who had been given a final suspension and advised to remove all P2P file-sharing programs: “This customer will likely fail again, but let’s give him one more change [sic]. [H]e pays 317.63 a month.”The judge uses this and other examples to note that Cox knew of "repeat infringers" but didn't terminate them. Of course, the vague language of 512(i) doesn't say that you have to terminate someone as soon as you know they're repeat infringers -- just that you have a "reasonably implemented policy." However, Judge O'Grady uses these examples to suggest the policy implementation is not reasonable.
Cox's defense to that is it can't know for sure if people are infringing based solely on accusations. This is correct, but Judge O'Grady doesn't care.
Although Cox was under no duty to monitor for infringement, Cox did not have leeway to wait until an account holder was adjudicated as an infringer to find that circumstances were appropriate for termination. As explained above, the Court disagrees that a repeat infringer policy applies only to those who have been held liable in a copyright suit. Rather, an account holder must be considered an infringer, at minimum, when the service provider has actual knowledge that the account holder is using its services for infringing purposes. Nor do service providers have complete discretion to define “appropriate circumstances.” Appropriate circumstances arise when an account holder is repeatedly or flagrantly infringing copyrights. Thus, when Cox had actual knowledge of particular account holders who blatantly or repeatedly infringed, the responsibility shifted to Cox to terminate their accounts.That, alone is quite troubling. Kicking people off the internet based merely on accusations of infringement is really dangerous, especially given the number of false infringement allegations that we see.
The one good thing is that the court rejects BMG's troubling definition of "making available." This has been a fight that's been going on for ages. Copyright law says that one of the exclusive rights given to a copyright holder is the "distribution" right. What is not settled law at all is whether or not "making available" violates this distribution right, or if copyright holders have to show actual distribution. The courts are somewhat split on this, with O'Grady recognizing that merely making available is not distribution.
At the threshold, the Court questions the evidence relied on by those courts that purportedly establishes that distribution is interchangeable with publication. Those courts build upon comments in legislative history as well as an excerpt from the Supreme Court’s decision in Harper & Row Publishers, Inc. v. Nation Enterprises.... Legislative history cannot override the plain meaning of “distribution” under § 106(3), however, and Harper & Row involved a narrow discussion of first publication and not the meaning of distribution and publication generally....There's some more in the ruling, but it seems pretty clear that Cox's own internal emails and policies really sunk the company here, and out of that could come some potentially dangerous law. Some have been making a big deal over the fact that Cox's insurance company, Beazly, has filed for declaratory judgment that it's not responsible for any judgment in this case -- but again, that seems to focus on Cox's own actions, which may not apply more broadly to other providers.
Nor does the definition of “publication” support a broader reading of the distribution right. The Act defines “publication” asthe distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication....The first sentence of the definition tracks the language in § 106(3), making it clear that all distributions are publications. It does not follow from that proposition that the inverse—all publications are distributions—is also true.... In short, § 101 provides no support for BMG’s “making available” theory.
Also, important is the fact that the trial still is about to go forward. Losing the safe harbor protections does not, necessarily, mean that Cox will lose the overall case, but it's an ominous start. Judge O'Grady's rulings and statements so far certainly do not bode well for the company. It's also a little bit ridiculous that O'Grady focuses so much on Cox's bad behavior, but leaves out Rightscorp's much worse behavior -- but I can see where he's coming from.
In the end, this is unfortunate and it's certain that this case will be appealed, no matter how it turns out. But the bad behavior by Cox poisons the well a bit in terms of focusing on the rather important question of what 512(i) actually means, and whether it really applies to internet access providers. As it stands right now, however, a potentially dangerous precedent could be set, whereby people could be forced to completely lose internet access based on mere accusations of copyright infringement. It's hard to believe that Congress intended such a result, but that's how Judge O'Grady is now reading the law.
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Filed Under: 512i, copyright, dmca, liam o'grady, repeat infringer, safe harbors, termination policy, three strikes
Companies: bmg, cox, cox communications, rightscorp
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No surprises here ..
Could be worse I suppose .. AT&T DSL anyone?
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Cox knew that this is wrong and they still allowed it. If you get caught downloading files that violate someone's copyright and there are absolutely no consequences, then the company providing you services to access the internet are absolutely liable for your conduct as well.
I hope Cox gets smacked down hard in this upcoming trial.
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If someone is proven to be a repeat infringer, then boot them off.
But acusation alone is insufficient.
Also, just because an IP address is "making avaliable" others copyrighted works does not mean the subscriber is aware of this happening.
Possible explinations:
1. They have a virus/trojan that is doing the sharing, the operator of the virus is guilty not the subscriber.
2. Someone has hacked into their network, the hacker is guilty, not the subscriber.
3. The subscriber allowed someone else to use the network and that person is sharing. That other person is guilty, not the subscriber.
Being a former owner of an ISP I can assure you that #1 is a very common source of a subscriber's PC doing bad things on the Internet.
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however, i think it has gotten even further than that, like the idea that most of us probably don't get through a day without a felony or two (BECAUSE of the kriminalization of life, NOT because we are actually kriminals), most of us are *probably* 'guilty' of some ridiculously broad copyright/trademark traducing at some point or another (OR the mere ACCUSATION of such from unknown unknowns)...
again, the point is the kriminalization of EVERYONE, such that EVERYONE is subject to being jacked up for ANYTHING at ANYTIME...
then, any citizen dares bitch about anything, the KGB, er, i mean stasi, er, i mean SS, er, i mean, i mean our dearly beloved faderland superiors who are only concerned with our safety and well-being will rightfully and wisely see to our, um, re-education to the correct normality...
thank you sir, may i please have another ! ! !
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If someone misuses the DMCA, they should be sued, as the DMCA provides for stiff penalties for abusing the notice system.
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Wow. You're so full of shit my ass is jealous.
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Not sure if troll or idiot. But on the off chance that you're neither (but rather ignorant), this is completely incorrect. The DMCA provides a mechanism for rights holders to ask that a work be taken down, based on their claim that it's infringing. If the request is properly made, to the proper person, and the (alleged) infringer does take the work down within a certain timeline, the DMCA further provides that the alleged infringer cannot be held liable for the alleged infringement.
The DMCA does not confer any adjudicative powers on rights holders. All it does is provide a mechanism for them to ask that material be taken down.
I agree completely--yet we see that DMCA notices are routinely abused, but the imposition of the supposed stiff penalties is vanishingly rare.
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While the actual letter of the law may not support this you will find and oft times... it is not the law being applied in a court but instead a Judges fucked up reading of that law which is heftily contorted by lawyers on both sides.
We have long since lost the desire for truth seeking in the court room and instead act as though it is a venue of entertainment where the most snide and jackass of lawyers peacock around along with their buddy judges.
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Except for in this case where the judge rules it isn't voluntary and basically throws the whole excuse out the window. Maybe that's his plan and he's actually trying to undermine the whole thing :)
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And that is why the DMCA is bad law.
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Cox knew that this is wrong and they still allowed it. If you get caught downloading files that violate someone's copyright and there are absolutely no consequences, then the company providing you services to access the internet are absolutely liable for your conduct as well.
This isn't actually true. There's an important distinction in the DMCA between different kinds of service providers, and the court seems to be applying rules that apply to providers who deal with actions "at the direction of users" and applying it to those who are "transitory digital network" providers. Different rules for different providers, but the court is confused about this....
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(1) it must adopt and reasonably implement a policy of
terminating in appropriate circumstances the accounts of subscribers who are repeat infringers"
Game over.
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You pirates have serious reading comprehension issues.
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* how long the termination MUST last
* whether or not it can be reinstated at all
Not game over, that's for sure.
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No, not really.
Some ISP's repeat offender polices state that "appropriate circumstances" are only if a court of law has found the user guilty of infringement multiple times. DMCA notices are not a court of law.
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LOL
Post one ISP's TOS that states such.
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Here is what AT&T said about it a few years ago:
Comcast stated that repeat notifications are enough. The courts haven't clarified it for anyone, which is why this case could be important.
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(1) it must adopt and reasonably implement a policy of
terminating in appropriate circumstances the accounts of subscribers who are repeat infringers"
This is where ISPs should take a stand in their policies, and clearly state that an infringer is someone that has been convicted in an appropriate court of copyright infringment, i.e., an accusation of infringment is not proof of infringment.
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Cox is in exactly the same position as a web hosting company. They have direct power of control over the end user's connection, and can disconnect or otherwise limit that specific user's access to the web and thus their ability to continue spread the offending work or file.
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Disagree. Web hosting companies host content. ISP's do not, and no amount of spin will make that true.
Web hosting has absolutely nothing to do with having "control over the end user's connection" as web hosting companies act irrespective of where you're connecting from. (e.g. Network Solutions provides no access via a circuit).
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Actually, the traditional model of web hosting does not such thing. Rather, they lease you server space (shared, dedicated, or more recently cloud) and it's yours. They don't host the content, the provide a blank canvas for your content. Essentially, they sell you connectivity,and they lease you a computer on the end of it.
An ISP does the same thing. They sell you connectivity. They don't provide you a server. However, the connectivity is exactly the same as a hosting company. the only difference is that your IP address may change (depending on if your ISP works that way).
The thing that your ISP and your Hosting company have most in common is that they are the sole provider of the connection to the internet for your stuff. Your hosting company provides that connection within their building or data center, and your iSP provides on what is essentially a very long network cable from their building or data center. Otherwise, it's exactly, precisely the same internet connection.
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Actually, the traditional model of web hosting does not such thing. Rather, they lease you server space (shared, dedicated, or more recently cloud) and it's yours. They don't host the content, the provide a blank canvas for your content. Essentially, they sell you connectivity,and they lease you a computer on the end of it.
So then...
1. The content doesn't live at the subscriber premise
2. The subscriber has control over the content, but not the physical device itself
3. Without an Internet connection through an ISP, you will NOT be able to access 1 or 2
An ISP does the same thing. They sell you connectivity. They don't provide you a server. However, the connectivity is exactly the same as a hosting company. the only difference is that your IP address may change (depending on if your ISP works that way).
1. If there's no server, then where is the content hosted?
2. If there's no server, then exactly how is this the same?
Seriously, drop the argument. You can make good points at times, however, your Trump-esqe denial of facts is making you look foolish.
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True, but this isn't about DMCA takedown requests. This's allowing accused infingers to be repeat offenders with impunity. I happen to think the law is so badly written, Cox is perfectly in the clear here. Upon a sixth strike detected they cut off the infringer, give him a stern talking to, then reconnect them after they receive a reconnection request/acknowledgement. Job done. Oh, you don't like it done that way? Who the hell are you, and what's the law say ought to be done?
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Wrong, they buy their own connectivity from their ISP, and it's up to you to buy a connection from an ISP too. Once you have a connection to the internet, you can access the web host.
The thing that your ISP and your Hosting company have most in common is that they are the sole provider of the connection to the internet for your stuff.
Wrong again, your ISP provides you a connection to the internet, the web host provides the internet a connection to your stuff.
I suspect you knew that since you don't seem like an idiot, so I'm not sure what you were trying to accomplish here.
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That difference is critical in understanding any policy that deals with "repeat infringement".
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This is incorrect. 17 U.S. Code § 512(a) says nothing whatsoever about having "end user contact" or any other such nonsense. It defines a transitory digital network as one where the communication is initiated by someone else, routing is automatic and the content is not modified. This includes Tier 1 companies, local internet providers and possibly operators of open WiFi spots.
Congress specifically carved out liability exceptions for transitory networks on purpose and specifically spelled out that the DMCA notification requirements for a service provider who hosts user content (17 U.S. Code § 512(c)) do not apply to transitory networks with 17 U.S. Code § 512(n) which states:
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1) The government is responsible for many crimes, by providing the public roads and not banning criminals from using them.
2) The whole household should be punished for the actions of one person in the household.
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You enjoy smacking Cox hard, don't you? Hobby or lifestyle choice?
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That's not true. An ISP certainly may be liable, but it depends on the circumstances; there is certainly no rule that they are absolutely liable, and loss of the DMCA safe harbor is not the same as liability.
The opinion actually discusses this at some length: In order for Cox to be held liable for its users, Rightscorp will have to prove that Cox is either a contributory infringer, a vicarious infringer, or that it induced infringement.
In this case, Cox is pretty certainly not an inducer or vicarious infringer; contributory infringement will be the best chance that Rightscorp has got. It's possible, and Cox has done themselves no good here, but it is not going to be so easy that it would be an automatic win.
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You keep using that word...
Seems to me the person who wrote this email needs to look up the definition of "unwritten".
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Re: You keep using that word...
Unwritten as in "Shhh" and not to be found in the AUP, else the cash cow infringers might find somewhere else to send their money.
This debacle shows Cox was pretty stupid all around, to the point of actually making Rightscorp look like they had a moral leg to stand on. Lying to customers, lying to rightsholders, lying to the public, lying to the authorities, and (at least temporarily) cutting off infringers when it was unnecessary to do so. Smart. :-P
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hot spots in hot water?
Even many non/semi-public networks could potentially be in serious trouble with the law if anyone on the network were to ever file-share.
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Any decision that would force Cox to deny its customers access to the Internet without the possibility of reinstatement must be wrong as a matter of principle. That judge O'Grady would seek to turn this into law is disturbing and contrary to the spirit of the US legal system.
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If that verdict is disagreeable to you, the US judicial system has an appeals process.
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We have effectively allowed accusation to serve as a guilty verdict in many of these cases. And boy has it been really fucking abuses.
Laying in the bed we made here seems to be what is going on.
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Where's OOTB? At least he put nifty lines and numbers under his/her horseshit.
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A DMCA notice is legal notice of infringement. It has to be honored. If you disagree, then use the appeals process.
Pretending piracy isn't happening on a mass scale makes you look silly, btw.
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I was wrong.
You're not a shill.
You're a fucking idiot.
And a minute ago it was a "verdict" - now it's a "notice."
Pretending you know what you're talking about, makes you look silly, btw.
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Slight problem, the notice is served to a third party, and they are not the party who should challenge the notice. The DMCA process has an insidious part, it puts costs on a third party, who has little desire to spend money checking notices, or passing messages between the copyright owner and the alleged infringer. This is a feature, as it promoted the action desired by the copyright industry, removal of material without oversight.
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You're just a fucking dumbass at this point.
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No, it's not. It's an accusation of infringement. Just like a "cease and desist" letter. Only a court of law can determine whether infringement has actually occurred or not.
It has to be honored.
No, it actually does not have to be honored. It *can* be ignored. ISP's could face the possibility of losing their Safe Harbor protection and therefore face huge liabilities if they choose to ignore DMCA notices, but there is no law *requiring* them to honor them.
If you disagree, then use the appeals process.
It's not an "appeals process". It's a counter notice from the alleged infringer. When an ISP receives a counter notice, the ISP has to restore the content within 10 to 14 business days, unless the ISP receives notification from the original DMCA sender that they have filed an action, with the courts, seeking a court order against the alleged infringer.
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2. Unless you want to be sued out of existence, yes, it does.
3.Yes, it is exactly that: an appeals process.
You pirates are hysterical about this. I don't understand how you thought you'd get away with breaking the law forever.
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No, it's not. It's a *notice* that the copyright holder believes that a copyright infringement has occured. Hence the word "Notice" in "DMCA Notice".
2. Unless you want to be sued out of existence, yes, it does.
Which is exactly what I said.
3.Yes, it is exactly that: an appeals process.
The word "appeals" in legal jargon implies that there is some judgement to be reversed. That's not the case with a DMCA counter-notice. A counter-notice is simply a declaration from the accused infringer that they do not believe the original notice has any merit.
You pirates are hysterical about this. I don't understand how you thought you'd get away with breaking the law forever.
Yeah, that's not me. I'm just someone who finds copyright law interesting.
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"“Copyright holders know precisely what materials they own, and are thus better able to efficiently identify infringing copies"
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"“Copyright holders know precisely what materials they own, and are thus better able to efficiently identify infringing copies"
I'm not sure what you are trying to argue here. The full quote is:The court reinforced what most thought was basic common sense: that the copyright holder was better situated than the service provider to determine whether a given use was possibly infringing or not since the copyright holder would have better knowledge of who was authorized to use the work.
That ruling did not, by any means, make a DMCA notice into anything more that what it has always been: a notice that the copyright holder believes an infringement has occurred.
Interestingly, that quote was used to clarify (somewhat) what "red flag" knowledge is. The court basically said that "red flag" knowledge needed to come from the copyright holders in the form of correct DMCA notices because they are the ones with knowledge of who is authorized the use the work or not.
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You're taking that entirely out of context. Here is the full sentence:
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.
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No it is not, and no it does not.
It is an allegation of infringement, and they're often wrong.
And there is no obligation by anyone to honor them; service providers that qualify for the safe harbor honor them in order to remain within the safe harbor. If the provider is willing to chance it, they are perfectly free to disregard the notice.
Pretending piracy isn't happening on a mass scale makes you look silly, btw.
I can't answer for the previous poster, but I agree: piracy is certainly happening on a mass scale. OTOH, I have no particular problem with that, just as I have no particular problem with people using marijuana, which is also illegal, and also happens on a mass scale. I also don't give a crap about jaywalking.
Frankly, if piracy is happening on such a large scale, as we both agree is the case, the answer is clear: legalize it. Then it will still keep happening, which is perfectly acceptable, but at least it won't be piracy anymore. Problem solved!
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It empowers them to claim a work is infringing, and if that's mistaken the accused merely says so and it's up to the claimant to take it to court. I've seen thousands of reports of them claiming erroneously (127.0.0.1). See Wordpress, for example, for their rogue's gallery of bad DMCA attempts.
You're being overpaid if this's the sort of result you're capable of.
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" really dangerous" indeed
This makes all the difference. To have knowledge of infringement, or to have an obligation to disconnect someone, a provider can require proof, not merely allegations. An ISP would be justified in requiring court judgments to conclude that someone really is an infringer. Without a court judgment, the provider has knowledge only of *allegations* not of *infringements*. In fact there's no practical way that anyone could find out about the copyright **and licensing** status of any random file on the internet.
Cox should have stood on this point, which would make the whole reconnection thing moot, and other ISPs should insist on it. I have websites myself and if I receive a DMCA claim, I'll comply with the "notice and takedown" but I still won't have knowledge of any infringement, because I will have no way of knowing whether the complainer is making a true or false allegation. Only a court can decide that.
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Re: " really dangerous" indeed
Uh, no. You just made that up. Pulled it right out of your ass.
What is wrong with you people?
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Re: Re: " really dangerous" indeed
No, the previous poster is basically correct.
Under 17 USC 512(c)(3), DMCA notifications are technically "notification[s] of claimed infringement," which must identify "the copyrighted work claimed to have been infringed," and "the material that is claimed to be infringing" and that the notice is sent by a party that "is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
But under subsection (i)(1)(A), providers must have "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."
You probably should've taken the advice to read the DMCA itself before you pulled your reply out of your ass.
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Re: " really dangerous" indeed
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This is just not true. This would be if (a) people are accused of infringement, and (b) receive the DMCA notice, and (c) do not reply either with the negative (I am not sharing this file) or with the affirmative defense (I am sharing it under fair use, etc). As soon as the user replies to the DMCA notice, Cox is off the hook. They retain their safe harbor and the DMCA plaintiff would need to go to court to prove the case against the defendant.
Further, and let's be fair here, what are the chances of someone receiving three totally invalid DMCA notices if they are not file sharing? Users do have to accept at least some responsibility for their own actions here.
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People here are a little slow grasping that fundamental rule of a society.
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Someone hasn't read about the hundreds of YouTubers with thousands of followers who have been taken down for the most ridiculous of reasons....
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Says someone who apparently has never had a guest on their wireless network.
I can receive three DMCA notices and not be responsible for any file sharing. How can I be responsible for actions that I am not committing. It is an accusation made to the person who pays the bill for the connection, not to the person who may or may not be infringing. Prenda et al used to rely on that to get their trolling operations going.
But, as someone who has never received a DMCA notice, I am not sure what I would do if I did. I suspect I'd look at it, consult a lawyer, and then respond accordingly, but I am sure a lot of people would see it for what it really is, junk mail from a "legal" scam artist given the fact that many of them are junk (DMCA from someone who doesn't own what they are DMCA'ing, DMCA for something that isn't infringing, DMCA to suppress 1st Amendment, DMCA to wrong person, DMCA for items made available by a legal/non-infringing entity.)
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You are responsible for who you let use your network. Just like if you let someone borrow your car and they commit a crime with it, you have liability.
http://personal-injury.lawyers.com/auto-accidents/liability-law-and-loaning-your-car.html
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IANAL, but I don't think so. Is the city liable for making a road that bank robbers used to get to your vault? Lots of people don't lock down their routers. They like to share bandwidth. I think that's foolish (spammers, malicious hackers, &c), but that's their business.
BTW, please lose the "you pirates" BS. I'm not a pirate, I'm a boycotter. I just hate stupid laws, and this is stupid law.
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The notices sent to Cox by Rightscorp were not "DMCA" notices. They were settlement notices. Again, you are confusing the process reserved for hosting companies with those providing access. There's a specific notice process only applies to services that "resides" on their system. That's not Cox -- especially not with the Righscorp notices.
You are confused by the law (again).
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Just like a hosting company, they provide a connection to the internet for a user's computer(s). When you lease a server (or colocate one) you essentially are paying for the connection. The Hosting company has the ability and the legal obligation to disconnect your service if they receive DMCA notices and you do not remove the content and respect the notices. The hosting company is the single and sole method by which the infringing material can be reached, and thus, they have legal responsibility to remove it if no other remedy is found.
An ISP is in the same position. They hold the sole method by which the user's computer can reach the rest of the internet. When you start sharing files from your home computer (or devices) you have set up hosting. Your relationship with your ISP is not really any different from a hosting company at that point.
It is an interesting question of law as to if Cox, being the sole provider of a connection, has the content residing on the "cox network". Is there any way for Rightscorp from the outside to be able to tell if a computer on a Cox assigned IP address is at a Cox office or at a subscriber's home, without first going after Cox?
It's an interesting set of questions, and I don't think it's anywhere near as black and white as you try to paint it.
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"Cox is in exactly the same position as a web hosting company."
Disagree. Web hosting companies host content. ISP's do not, and no amount of spin will make that true.
Web hosting has absolutely nothing to do with having "control over the end user's connection" as web hosting companies act irrespective of where you're connecting from. (e.g. Network Solutions provides no access via a circuit).
Are you just being deliberately obtuse? Or is your argument so weak that you continue say the same thing, hoping that if you say it enough, people will think it's true? Because this is the second time you've incorrectly posted the same shit.
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Re: Re: Re:
There's theory, and then there's practice, and remember we're talking computers here. Users don't ordinarily know how things get done on a computer, or network. If they're just using a torrenting client to download a tune, they don't necessarily know that that thing is serving bits to others at the same time it's getting them. The original networking paradigm I grew up with was every box is a server or client. With X Window, I can tell a remote machine to execute a process and display it's interface on my local box. Users don't (or shouldn't) need to care about how it's done, as long as it gets done.
Hollywood has its own flawed interpretation of what networking is, and they're trying to fit their round peg in a square hole, to everyone's (except certain lawyers' and "rights protector" middlemen (ie. Rightscorp)) detriment.
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The moment an ISP terminates a user by continuing to download infringing content, the ISP simply cannot claim protection under the DMCA nor under Section 230 because they allowed their customers to simply sign up for a new account allowing those customers to start infringing all over again.
Cox Communications has no protection under the DMCA or the CDA. Now, if Cox had prevented users from signing up for new services or accounts, then they would have the protection. It's akin to having a bank robber continuing to promise to the courts he won't rob again for an agreement to drop charges and then he continues to repeatedly rob banks.
Cox is simply using the same move to justify why it has protections. Only, Cox has no protection because they have become a willful participant in violating the intellectual rights of the copyright holders.
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I can allege you do horrible things to stuffed animals, but that doesn't mean I can demand you be denied access to acquire them because I said it 10 times.
This is the entire basis of what is happening here.
A company who can not actually prove its allegations wants the courts to force companies to bend to their demands, with no evidence supporting the allegations. Using the law and taking legal actions requires that it actually be legal, not just some penny stock pumping idiots saying it is so.
To find someone is a repeat infringer should require that finding in a legal sense, rather than short circuiting the law by blindly accepting allegations made from those who have a financial stake in the outcome. Allowing companies like this to wield unlimited power of making accusations and demanding others take actions under penalty of the law destroys the law. What are the penalties for allegations proven wrong? What recourse does someone have to be reconnected when the super secret tech demands they be cut off?
Innocent until PROVEN guilty, and some secret tech from a company that was engaging in wholesale infringement itself misrepresenting its rights doesn't come close to that standard.
This is a case of wanting to bypass the legal system and extract money from people, guilty or not, to line their pockets and not actually do anything to solve the problem... because if they could stop piracy they would be out of business.
Now stop doing those horrible things to stuffed animals.
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Is there a law that allows you to serve me with a notice of such? Represented as bonafide legal judgement? No?
Well, then go pound sand, pirate boy.
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Oh you mean like the guy that runs Techdirt?
http://www.theregister.co.uk/2012/08/24/google_amended_shills_list/
No, I'm not a shill, or paid to write on internet propaganda sites like this one we're on now.
I just love seeing justice finally served.
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Re: Re: Re: Re: Re:
Paul Duffy's got a warm seat waiting for you where he is.
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Re: Re: Re: Re: Re:
T,FTFY.
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Re: Re: Re: Re: Re:
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Re: Re: Re:
There is no legal judgement about RightsCorps extortion letters.
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Re: Re: Re:
As explained above, a DMCA notice is not a "bonafide legal judgement" at all.
It's simply a statement of "good faith belief" that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. An actual "legal judgment" can only come from an actual court of law.
Well, then go pound sand, pirate boy.
Instead of inane attempts to insult people, perhaps your time would be better spent on actually learning about the subject you are attempting (badly) to argue. Here is a place to start:
https://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act
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Child molester!
If that was the intention, perhaps the law ought to actually say that. Oh, and where's the bit about being convicted for copyright infringement? All I see are accusations. If I accuse you of being a child molester, are you then a child molester?
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