RIAA Continues Its Legal War To Turn ISPs Into The Copyright Police: Sues Charter Communications
from the stepping-on-up dept
The RIAA's war to force internet access providers to become copyright cops has continued to move forward. The RIAA planned this strategy out years ago, in the wake of losing the SOPA fight. Back in 2012 we wrote about an internal plan to try to convince courts that Section 512(i) of the DMCA actually mean that ISPs had to completely kick users off the internet based solely on accusations of infringement. The end goal here is, as always with the RIAA, to get everyone else to try to police the internet.
Part of the issue here is the incredibly inartful drafting of the DMCA, that has lead to multiple lawsuits over how conflicting aspects of the law should be interpreted. The results over the last decade or so of cases tend to have the courts simply deciding in favor of the more sympathetic party, rather than with any consistency as to the law itself. So, in the Viacom/YouTube case, the court required "actual knowledge" rather than the "general knowledge" that Viacom sought. Yet, in the IsoHunt case (unsympathetic defendant), the court found "red flag" knowledge to be enough. In the first case testing the RIAA's theories on 512(i) and ISPs, against Cox, the RIAA won, but mainly due to Cox's own bad behavior (specifically: internal employees mocked and did not follow the company's own repeat infringer policy).
In the second case testing this theory, against Grande Communications, as was widely expected given an earlier magistrate judge's opinion, the court has said that Grande does not qualify for the DMCA's safe harbors, and therefore may be liable for infringement on its network. Once again, as with Cox, Grande's own actions appeared to doom its argument for safe harbors. The company admitted that it didn't actually have a repeat infringer policy. It had a stated one, but no effort was made to follow it internally -- and since 512(i) requires a "reasonably implemented" policy, the lack of any plan to implement it means... no safe harbors. As we noted when the magistrate judge recommended this finding, this does not mean that Grande automatically loses the case. The RIAA still will need to prove contributory infringement on the part of Grande, which might not be that easy since it will have to show that Grande actively induced people to infringe (as per the Supreme Court's standard in the Grokster case).
Either way, the RIAA is not waiting around and has moved on to an even bigger target: It is now suing Charter Communications on the same basic theory concerning 512(i). The record labels make some fairly bold claims about Charter in the case:
Charter is one of the largest Internet service providers (“ISPs”) in the country. It markets and sells high-speed Internet services to consumers nationwide. Through the provision of those services, Charter has knowingly contributed to, and reaped substantial profits from, massive copyright infringement committed by thousands of its subscribers, causing great harm to Plaintiffs, their recording artists and songwriters, and others whose livelihoods depend upon the lawful acquisition of music. Charter’s contribution to its subscribers’ infringement is both willful and extensive, and renders Charter equally liable. Indeed, for years, Charter deliberately refused to take reasonable measures to curb customers from using its Internet services to infringe on others’ copyrights, including Plaintiffs’ copyrights—even after Charter became aware of particular customers engaging in specific, repeated acts of infringement. Plaintiffs’ representatives (as well as others) sent hundreds of thousands of statutory infringement notices to Charter, under penalty of perjury. Those notices advised Charter of its subscribers’ blatant and systematic use of Charter’s Internet service to illegally download, copy, and distribute Plaintiffs’ copyrighted music through BitTorrent and other online file-sharing services. Rather than working with Plaintiffs to curb this massive infringement, Charter did nothing, choosing to prioritize its own profits over its legal obligations.
You may notice a key problem here -- as we've pointed out in other cases. The RIAA seems to think that mere accusations of infringement are proof of infringement, and thus should lead to people being disconnected from the internet. The RIAA also makes a real stretch of the requirement under the law for a "direct financial benefit" by claiming the following:
Charter has derived an obvious and direct financial benefit from its customers’ infringement. The unlimited ability to download and distribute Plaintiffs’ works through Charter’s service has served as a draw for Charter to attract, retain, and charge higher fees to subscribers. By failing to terminate the accounts of specific recidivist infringers known to Charter, Charter obtained a direct financial benefit from its subscribers’ continuing infringing activity.
But that's not how the "direct financial benefit" aspect works. The point of "financial benefit" in the DMCA is meant to apply to those services that get a financial benefit from the infringement itself and not just the general providing of services. Otherwise, that term is meaningless within the law -- which is exactly how the RIAA would like it to be.
Incredibly, the key bit of "evidence" that the RIAA puts forth to prove that Charter's behavior is so bad... is (and I kid you not), the fact that it advertises high speed internet. Really. In explaining why Colorado is the proper venue for the lawsuit, it focuses on the fact that Charter advertises high speed broadband there, and suggests that the only possible reason why anyone could want high speed internet access is infringement.
Moreover, Charter has engaged in substantial activities purposefully directed at Colorado from which Plaintiffs’ claims arise, including providing Internet service to Colorado subscribers who used Charter’s network to directly and repeatedly infringe Plaintiffs’ copyrights; continuing to provide Internet service to, and failing to suspend or terminate the accounts of, Colorado customers, even after receiving multiple notices of their infringing activity; advertising its high-speed Internet services in Colorado to serve as a draw for subscribers who sought faster download speeds to facilitate their direct and repeated infringements...
This ignores that there are tons of other reasons why people want high speed broadband including, you know, to access licensed services for content such as Netflix and Spotify. But, hey, the complaint chooses to ignore all that and insist it must be because of infringement.
Who knows how this particular lawsuit will go. As with Cox and Grande, much may depend on Charter's internal policies and processes. However, so much of the complaint is utter bullshit. It again shows how the RIAA thinks the only reason people want to go online is to consume its content.
Of course, there's a larger issue that may come up eventually. In 2017 in the Packingham case, the Supreme Court rejected a law that would kick people off the internet, saying being completely barred from the internet is unconstitutional. If the RIAA succeeds in forcing ISPs to kick people off the internet -- without any judicial due process -- then the Supreme Court may need to step in and point out that 512(i) itself is similarly unconstitutional. The RIAA's greedy, unrealistic interpretation of the law could eventually backfire badly.
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Filed Under: copyright, dmca, dmca 512, internet access, isps, repeat infringer policies
Companies: charter communications, riaa
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In this corner, the RIAA. In this corner, a cable company ISP. The RIAA brings a very bad argument, but if they succeed it could lead to judicial review invalidating a part of the DMCA!
This is one of those "I really have no idea which side to root for" cases...
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Too fast
The record labels want all broadband choked back to dialup levels, and all drives over 500 megs banned under the obvious conclusion that high-speeds and cheap storage lead to piracy.
The want to go back to pressing records again! (And punching piano rolls.)
Also - Charter is an ISP. Right there, in the court documents. :)
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Speed...
In other news, GM is being sued by the DEA because their cars can exceed the speed limit which facilitates drug-runners to transport drugs faster. /s
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Well, as an old saying goes, some of us just want to watch the world burn.
Popcorn?
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"Back in 2012 we wrote about an internal plan to try to convince courts that Section 512(i) of the DMCA actually mean that ISPs had to completely kick users off the internet based solely on accusations of infringement. "
Wrong: you mean UNCONTESTED accusations of infringement. The DMCA has a very simple counter-notification process as long as the user is willing to waive service of process in the resulting lawsuit, and identify themselves. Pirates, of course, won't do this because they'll wind up sued, so they don't contest the notices, and that is why they should be "kicked off." Anyone willing to stand their ground can file a counter-notification and the content will be returned UNLESS they wind up sued. How difficult is this to understand?
The question of direct financial benefit has also, so far, been ruled in favor of the ISPs and other intermediaries, as in the Perfect 10 cases, so that's a tough sell. Not as tough is the question of vicarious or contributory infringement, since the ISP has the power to disconnect the users. Pre-internet precedent favors the Plaintiffs but the internet rulings have been split.
If it is unconstitutional to kick someone off the internet, perhaps they'd prefer five years in Club Fed? As it is they can be sued into oblivion and not even be able to bankrupt the judgment. Would they prefer that?
The DMCA is a good alternative to the draconian penalties these users would otherwise face. ISPs can and should be held liable for contributory infringement if they refuse to put a stop to the piracy. Also, kicking someone off an ISP is not kicking them off the internet entirely. Someone can go to the public library or a shop with wifi if they really need access.
The best option is to stop stealing content, of course, but the pirates are digging in. So will the rightsholders.
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Re: Speed...
Except GM cannot remotely control the speed of its cars...um, they can't right?
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Re: Too fast
Slower speeds won't stop piracy, and hard drives cannot be controlled by their makers the way an ISP can regulate its users. False equivalence.
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Re: Re: Speed...
They could make cars that don't go over 60 mph, but choose not too.
They could put a GPS in every car that will override user settings if the car exceeds the posted limit.
They could put a radio in the car that would call the police everytime they exceeded the speed limit.
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Re:
lol
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Re:
Another day, another troll insisting that the innocent have nothing to hide, under the byline "Anonymous Coward".
Well, probably not another troll; probably the same one as all the other times.
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Re: Re: Re: Speed...
The stakes are a bit higher in those scenarios.
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Re:
Never get in the way of two of your enemies attempting to destroy each other.
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Re:
Dammit, we've been over this! Quotes from Batman movies are not old sayings!
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Re:
How about Trump-hating Nike (who signed Kaepernick) causing Trump-hating Avenatti to be busted?
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Re:
No thanks, I'd prefer to help save it. Why? Because I'm one of the idiots who lives in the world!
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Go up the chain
Why not go up the chain and sue the power company for providing electricity to the cable modem that delivers the high speed internet connection? After all, no electricity means no internet which means no piracy.
Never mind the fact that people need electricity for other things, such as lighting and heating- if they didn't want their power cut off they shouldn't have downloaded things illegally. Never mind the fact that most people get a "strike" simply by being accused of downloading something illegally without any proof.
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Re: Re: Speed...
They can. It's called OnStar, it has a feature called "stolen car slowdown", it's connected to CAN bus, and it's not optional (well, last I heard there's a fuse you can pull, but officially it's not optional). And they can control our GM cars, not just their cars.
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Re: Too fast
In some countries, they're still getting a cut of every CD-R disc sold on exactly that basis.
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They will face no consequences for this. The RIAA has only once suffered meaningful defeat, and that was about price-gouging.
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It's long past due for society to take back the limited and temporary copyright privilege granted to creators of works due to the gross abuse and attempts by license holders to turn it into permanent ownership as well turn mere accusations into criminal offenses. License holders have become a blight on the landscape.
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Re: Re:
They can get the identity anyway. If someone wants to defend their conduct, they can do so very easily. The ISP must then be neutral.
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Re: Go up the chain
No need to cut off electricity when an internet connection is all that needs to be severed.
It's not just an accusation that causes this, but the refusal of the accused to defend against it. The DMCA has a very strong counter-notification process.
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Fine, fine, but let’s all stand in a circle first.
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Re:
That returns us to a patronage model, and, unless you are willing to abolish contract law, individual contracts between publishers and their audiences, which actually might not be a bad idea, given that we now have universal literacy. This would also eliminate intermediary liability, but it would also eliminate mass distribution of original works.
Is that a fair tradeoff? I could certainly publish a book that says the reader is liable for any unauthorized distribution (each copy can have a serial number), and charge a higher rate to compensate for the smaller audience. A book for actors on how to get cast in big-budget films, for example, will attract a market, as will almost any self-help book, marketing material, college textbook, etc.
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Defense Exhibit A
RIAA's high speed internet access agreement.
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This should not be very difficult
If copyright didn't cause temporary(and occasionally permanent) brain damage this would be really easy to get laughed out of court. All a platform or ISP would need to do would be to point out that they do in fact have a repeat infringer policy, as the law demands, but what they do not have is a repeat(edly accused of being an) infringer policy, as the law does not require that.
When/if the ones bringing them to court can point to people that have been found guilty of infringement using their platform in a court of law multiple times then they'll consider applying the policy to them, and not a second before.
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Re: Re: Re: Speed...
The cost of mistakes is much higher with cars than with copyright.
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Does anyone here remember Evan Stone, a proto- copyright troll? This was literally his argument (and it was widely mocked back in 2011):
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Re:
Mike Masnick just hates it when copyright law is enforced.
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Re:
What? You don't have to waive service of process for a counter-notification to be valid.
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Oh, one more thing, did you know I was the one that told the old dingbat lawyers at the RIAA that they were conducting the wrong kind of litigation? Those dumb fucks were suing individuals. I said "Have you ever actually READ the DMCA? The repeat infringer policy is how you will neuter piracy." So they finally got down to business. But they wasted 10 years after Napster because they didn't know their ass from a hole in the ground. Good times.
At any rate, yeah, blame me for these lawsuits. Sorry, guys.
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Does AT&T sues its competitor by proxy?
Warner Brothers is owned by AT&T. And they sue its parent company's rival on a bogus premise. Go figure.
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Re: Re:
Yes, you do.
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Re: 2
i think they will face consequences only on two scenarios.
1: a miracle a age type case where someone calls bull#### in a case that would destroy the entire rely on to go after people and end them as an organization.
2:people stop trying to reason and take a “so what” apathy approach and basically declare what they do as an organization undeserving of lawful protection after all the horrible things they have done.
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Re: Re: Re:
https://help.github.com/en/articles/guide-to-submitting-a-dmca-counter-notice
Include the following statement: "I consent to the jurisdiction of Federal District Court for the judicial district in which my address is located (if in the United States, otherwise the Northern District of California where GitHub is located), and I will accept service of process from the person who provided the DMCA notification or an agent of such person."
Well not a total waiver, but you can't dodge service, so it's basically the same thing.
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Have…have you seen the Internet lately?
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Re: Re: Re:
Please indicate where it says service of process must be waived.
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Re: Re: Re: Re:
Affirming that you will accept service and waiving service are not even close to the same thing.
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Re: Re: Re: Re:
It says it must be accepted, which is different than the catch-me-if-you-can standard we usually have. Also, the counter-notification must include the legal name and address of the uploader, something pirates will never give up.
Six of one, half-dozen of the other. Service can be made by registered mail in most states, and always out of state.
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Re: Re: Re: Re: Re:
The waiver of service under Rule 4 probably also has to be accepted, and if so, service must be waived. Either way, it eliminates a key hurdle in internet lawsuits: finding and serving the right party.
As for an IP address not being proof of infringement, do people say it's not proof of defamation in libel cases?
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Re: This should not be very difficult
An uncontested DMCA notice is sufficient evidence of infringement by the preponderance standard.
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Re: Re: This should not be very difficult
By people who've suffered copyright-related brain trauma perhaps.
'Hey, some random person just accused you of copyright infringement, and if you want to contest if you'll need to give them your personal contact details.'
Yeah, no. Course, if you want to prove how easy it is and thereby show how the only possible reason someone could have for not doing so is because they're guilty of something you can do so simply by providing your personal contact information. Anything less and your argument gets tossed as hypocritical, and/or will be treated as an admission that you yourself have something nefarious to hide.
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Re:
See, this is why you don't give them ideas, the ones they have are bad enough.
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Re: Re: Too fast
Did you read the same article? The part where they claim high speeds facilitate piracy?
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Re: Re: Go up the chain
Unfortunately, there is not a counter notification process for accusations of infringement based on downloads, the kind of notification that goes to ISPs. Its not like hosted content. Seriously, the DMCA covers more than Youtube.
The DMCA take down notices that have a counter notification process are for hosted content.
Accusations of infringement going to ISPs are for accusations of infringing downloads. According to Comcast, there is no counter notice provision, I just have to take my strike (despite the fact that I have no legal requirement to police my network).
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Re:
Courts have been ambiguous about this constituting "direct financial benefit." Not sure they've even sided with this, or maybe the case settled before it was tried.
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Re: Re:
How is you self help empire going Jhon boy? If it’s anythung like the rest of your writing you declared bankruptcy about six weeks after you opened your doors. Which would explain why you have the time to post on TD all day long.
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Re: Defense Exhibit A
Riaa high speed Internet?
We just called those EMPs back in my day.
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Re: Re: Re: This should not be very difficult
I haven't been accused of infringement.
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Re: Re: Re:
Wow, someone's really fixated on their own made-up ideas about other posters here.
Article 13 passed, so I guess it's a distraction for them.
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Re: Re: Re: Go up the chain
If that's the case you could sue the ISP for a DMCA violation.
"Upon Comcast's receipt of a counter notification that satisfies the requirements of the DMCA, Comcast will provide a copy of the counter notification to the person who sent the original notification of claimed infringement and will follow the DMCA's procedures with respect to a received counter notification. All counter notifications must satisfy the requirements of Section 512(g)(3) of the U.S. Copyright Act."
(this turned up in a search)
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Re: Re: Re: Speed...
All of which would have much greater costs and much greater stakes than a DMCA notice.
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Re: Re: Re: Re:
Is it the guy who keeps ranting about pirates, thieves, and Google shills?
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To the anonymous troll named john
We will outlast you 😁
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Re: Re: Re: Too fast
Has the SCOTUS or some appellate circuit checked in on this yet?
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Re: Re: Re: Re: Speed...
Despite that, GM is still willing to take the risk (that their system will be hacked in a way that kills people, and they'll get sued), whereas the copyright lobby has shown a complete unwillingness to deal with the fallout of their takedown mistakes.
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Re: Re: Re: Re: This should not be very difficult
Not yet John not yet😈
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Re: Re: Re: Re: This should not be very difficult
Yes you have. Mike caught you copy-pasting a wall of text without attribution yesterday. Perhaps someone should contact the authors and let them know.
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Re: Re:
While I generally agree. There are some small ISPs that are doing good work. They would be caught up in this as well.
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Re: Re: Re: Re: Go up the chain
Oh he knows how to use wiki.
Do you know how to use a judge John? It’s a lot more complicated then words
You twist.
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Re: Re: Re: Re: This should not be very difficult
Hypocritical and an admission of nefarious actions it is then, thanks for clearing that up.
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An IP address is not evidence that someone wrote defamatory content. Your analogy is so far removed from reality that it belongs in a comic book.
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Re: Too fast
Water is freely available. Pirates drink water. Water leads to piracy, and must be regulated if not banned outright. I'll build a team who will regulate the distribution of water for reasonable fee.
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Re: Re: Re: Re: Go up the chain
The language you quote appears no where in the threat letter I recieved. But that is not the point. Removing a 'strike' incurred toward a repeat infringer policy is not a required as part of managing counter notifications. Therefore, following the procedures of the DMCA does not necessarily solve the issues present with the accusations of infringement being the basis of action, and so a robust counter notification process, while helpful for restoring hosted content, is less helpful for resolving repeat infringer policy notices.
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Re: So much not caring
Hey bro, how many times did you say you didn’t care about article 13? Is it equal to or greater than the number of times you’ve mentioned it’s passing when no one asked you?
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Re: Does AT&T sues its competitor by proxy?
Warner Music is not Warner Brothers. Hasn't been for a long time.
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Re: Re: Re: Re: Re: Go up the chain
Did you call the number and ASK these questions?
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Copyright is all wrong
Copyright is way too long. There need to be some reforms. It's supposed to be a limited period of time. Can anyone explain how today's copyright term is a limited period of time?
First, public performance should be fair use after 28 years (the original copyright term with one extension.) The copyright owner would still have rights over sales.
Second, derivative characters should be fair use after 28 years. If the author didn't write it, using the material in a derivative work should be fair use.
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Re:
Of course it's evidence. When has a court discounted it in a libel case?
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28 years is still too long. One five-year term with three optional renewals — each slightly more expensive than the last — would ensure a fair amount of time to monetize a work before it falls into the public domain.
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An IP address can be used to identify someone, but identifying someone is not proof that said someone wrote something defamatory. Someone using a neighbor’s router signal could post defamatory content and the IP would trace back to the router’s owner instead of the person who posted the content.
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Re: Re: Re: Re: Re: Re: Go up the chain
Give up John.
You fight a war you won’t win against people who know terrain better then your side does.
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Re: Re: Re: Re: Re: This should not be very difficult
Except the law of the land now and where I am was not violated.
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Re: Re: So much not caring
it's?
What rhymes with catastrophe?
Oh and I really don't care what politicians do, since I just adjust as needed. Strong DNA is adaptable and doesn't dwell on much.
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Re: Re:
How's that Paul Hansmeier defense fund coming along, bro? 150 months in the slammer, what a glorious day for copyright enforcement!
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Re:
I give John another couple of hours before he brings up that moronic "threats against the President means all IP addresses must be accurate" analogy.
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Re: Re: Re: Re: Re: Re: Go up the chain
Did you bro?
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Re: Re: Re: So much is not caring
One can’t help but notice you didn’t answer the question bro.
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Re: Re: Re: Re: Re: Re: This should not be very difficult
And yet, look what happened to Salman Rushdie.
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Re: How ironic
Are you saying you’ve been falsely accused of copyright infringement? It’s be real easy to fix according to you. Just post your completed copyright clearance certificate or your presumptive fair use declaration and pay the “nominal” administrative fee and you should be good to go.
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Re: Re: Re: Re: Re: Re:
On what do you base this assumption? There is nothing in 512(3)(D) that requires the Defendant to accept a waiver.
That's likely true, but pirates aren't the only ones who might not be willing to identify themselves, and a failure to provide counter-notification does not automatically mean that the uploader is a pirate.
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Re: Re: How ironic
I've not been accused under the DMCA.
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Re: Re: Re: Re: Re: Re: Re:
Of course not, but it does mean they've waived their right to counter-notify and have the content reposted.
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Re: Re: Re: Re: Re: Re: Re:
It would be for a court to decide if the language applies to the waiver of service (which, if declined, triggers reimbursement for costs of service).
It's still a practical waiver of several key rights which makes service of a lawsuit very simple.
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Re: Re: Re: How ironic
Ignorance of your accusation under the DMCA is not an excuse.
Counternotice and/or pay up or get your IP address hauled to court.
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Here's how I see it. As long as there are organizations like the riaa, etc., who are nothing but parasites, I have no issues at all with going out of my way to violate copyright. These parasites have been the one thing most responsible for limiting access to music, etc., and creating a "star" system to reward the few at the expense of the many, by excluding so many talented musicians. Fuck 'em.
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"Part of the issue here is the incredibly inartful drafting of the DMCA, that has lead to multiple lawsuits over how conflicting aspects of the law should be interpreted."
-
I have to disagree with you on the lack of artistry in drafting the dmca. It does indeed take a great deal of artistry to write legalese that allows the people who will get fucked over to believe one is bending over backwards to help them out. Who benefits from "how conflicting aspects of the law should be interpreted?" Why, it's the people with the greatest resources to hire lawers who are the most adept at skewing the arguments in favor of their their clients. Given that the average non-technical and legally challenged people are still confused or even unaware of what the dmca hath wrought apart from those who have been dinged with fraudulent lawsuits, takedown notices and the like I'd say that if anything, those who wrote it were artful and knew exactly what they were doing.
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Let us go back to 56k, that will teach those pesky pirates, and those bankers and lawyers too.
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Re: Re:
Which this lawsuit has absolutely nothing to do with other than the RIAA says it does. Or are you saying Charter committed copyright infringement?
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Re: Re: Re: Re: Re: Re: Re: Re:
Sure, but according to the person a few comments up this thread, if you get a few uncontested DMCAs on your account, you should be kicked off the internet. That's entirely unreasonable. Failure to counter could mean you realize you don't have the financial means to litigate the issue. It could mean that, for whatever reason, maintaining your anonymity is more important than putting the content back online.
When I processed DMCA notices for my old employer (a webhost), I had both of those reasons given to me in response to notifying the customer of their options.
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Amicus Curiae for Copyright Cases.
Congress has failed to provide adequate direction with laws about copyright.
False DMCA notices are supposed to be punished, but the punishment was not defined beyond perjury.
A recipient risks very clear and massive punishment for not acting fast enough to appease the sender, but even if they know the sender has sent 3 million faulty or fake notices they still have to act or else.
Even "legitimate" groups fail spectacularly, an 'anti-piracy' company in the employee of HBO demanded Google delist HBO.com from their index for offering pirated material.
Google bears all the costs & punishments in this example, firms sending non-existent links to be delisted face none.
One is left how to wonder how a law that instructs rightsholders to send notices to the site hosting the content decided that Google controls the entire internet.
While Google is a very good search engine, they have no control over the sites in question, they can only remove them from their index, after making sure they are valid, which is not a right listed in the law.
Google must deal with millions of these requests each day & when trying to provide details of how often these notices were wrong, were threatened with lawsuits.
Congress has failed to define 'repeat infringer' which has left courts confused & making rulings of questionable merit given how the law is supposed to work. As it stands now music labels are suing Internet Service Providers for not disconnecting 'repeat infringers' notice of these repeat infringers is provided by firms who actively seek to block anyone examining their methods to see if they are accurate.
All they can provide is that they 'saw' an IP address get a piece of a file. They can not say the account holder or anyone in the household was the party responsible for the download.
Trying to sue responsible parties is costly, it is much easier to flood the ISP with 'notices' then claim they didn't remove the repeat infringer & sue in court for insane damages.
I personally have seen notices from an anti-piracy company of over 100 notices for 1 alleged download of a file. These notices were generated milliseconds apart and make it appear that IP address is a 'repeat infringer' but were just to scare them with extortive threats to pay them or else.
Until Congress changes the law to clarify, no court should consider notices to be enough to prove repeat infringement. If your child knows they get a cookie for tattling, they will tell on everything in the hopes of more cookies.
Courts should not reward the system being gamed.
If an IP address is not enough to begin a copyright infringement lawsuit, as is happening in several districts nationwide, how can it be 'evidence' in any sort of legal proceeding? Why should the court keep rewarding the bad behavior of the rightsholders by allowing them to collect damages well in excess of any actual suffered harm by manufacturing 'evidence' that other courts have rejected & they are unwilling to have certified as being factual?
Courts will not convict someone based on the word of a mysterious witness no one is allowed to see, cross-examine, or investigate the motives of... yet there are several lawsuits doing just this targeting ISP's for not having a policy to deal with an undefined terminology.
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Re: Re: Re: How ironic
Yet, the accusation that was made has more evidence than most of the DMCA notices you support. So, you admit that if someone did file a DMCA notice to take down your post, that would be wrong?
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Unless someone can point out to me what I'm missing, this is the thing that gets me - it's the RIAA making these claims. The MPAA or video game industries I could maybe understand to some degree as those require larger files to pirate, and thus make the faster speeds more attractive.
But, music? MP3s are no larger when they were in the Napster heyday and most people are downloading those or streaming if they're pirating - and people were doing that happily on dial-up.
What am I missing here, other than a cash grab from people trying to claw back CD money that they'll never see again (due to legal services)?
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Re: Amicus Curiae for Copyright Cases.
Why would you see all these notices unless you were an attorney?
Just as some pretend to be an attorney online to appear credible, attorneys often pretend NOT to be attorneys in order to evade ethics rules.
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Re: Copyright is all wrong
95 years is actually quite limited in the grand scheme of things, just not to those who want to steal contemporary works.
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Re: Re: Re: Re: How ironic
I wouldn't care.
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Re: Re: Re: Re: So much is not caring
Probably because I don't answer to anyone here.
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Re: Re: Re: Re: Re: Re: Re: Go up the chain
The DMCA applies to Comcast, and I'm pretty sure Comcast knows this.
The burden of disproving that would be on the one who claimed it was not the case.
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Re: Re: Copyright is all wrong
"just not to those who want to steal contemporary works."
Also those who wish to legally enjoy and use works that were created within their lifetime that should be in the public domain and not be restricted due to works being orphaned or not being deemed commercial enough by some crap shovelling corporation.
But, your points to fall apart when you stop lying about what other people really want, don't they?
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Re: Re:
"almost any self-help book"
I wonder when you will realise that your con tricks aren't actually the entirety of valuable human creative output. That in fact you support things that destroy the livelihoods of actual creative people so you can sell your scams.
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Re: Amicus Curiae for Copyright Cases.
An IP address is evidence that shifts the burden of proof.
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Re:
It's sufficient evidence to shift the burden of proof.
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Re: Re: Amicus Curiae for Copyright Cases.
No it isn't. Prove me wrong.
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Re: Re: Re: Re: Re: So much is not caring
And thus, due to evading direct questions and refusing to back up your assertions, you convince no one and do nothing but waste time and effort.
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Re: Re:
No it isn't.
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Re: Re: Amicus Curiae for Copyright Cases.
You have heard of VPNs and IP address spoofing right?
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Re: Re: Re: Amicus Curiae for Copyright Cases.
And that is counter-evidence which might shift the burden of proof back.
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Re:
I'd be fine with a seven-year copyright term with no renewals.
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Re: Re: Re: Re: Re: This should not be very difficult
It would be up to the rightsholder to decide that, plus the publication to the internet creates an implied license to copy it, which is how search engines avoid liability.
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Re: Re: Re:
Trump is a winner to anyone who judges people financially (however wrongly in some cases).
That mentality is precisely what elected him.
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Higher Internet Speeds == More Purchased Content
The faster my internet speeds, the more content I can stream or legally purchase and download.
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Re: Re: Re: Re: Amicus Curiae for Copyright Cases.
Or, that the original evidence provided is hugely prone to error and cannot by itself identify a person.
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Re: Re: Re: Re: Re: Re: This should not be very difficult
That's not how any of that works.
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Re: Re: Re: Re:
Then how come if he hadn't taken his inheritance and invested it, he would have been better off financially?
Which means that everyone who says that Trump is a winner because of his finances are fools.
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Re: Re: Copyright is all wrong
That's an interesting turn-around from what wrote you 4 hours ago:
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Re: Re: Re: Re: Re: Amicus Curiae for Copyright Cases.
Especially in a era of Dynamic IPs and limited IPv4 addresses.
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Re: Re: Amicus Curiae for Copyright Cases.
As I said before, you couldn't reason your way out of a wet paper-bag even if your life depended on it.
Do you think only attorneys handles notices sent to a company? Perhaps there has to be a bit more people involved than just an attorney, like those who has to verify that links in the notice actually exists on the site and that the content actually is infringing?
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Re: Higher Internet Speeds == More Purchased Content
And according to some, that makes you a pirate.. Go figure.. ¯\(ツ)/¯
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Re: Re: Re: Speed...
I read that they can and have listened in to audio in a vehicle that did not have OnStar activated.
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Re:
"An IP address can be used to identify someone"
How is this done?
Do we all have IP Addresses assigned and tattooed on our foreheads at birth?
Do we all have have static IP addr?
Is the tattoo scanned as a prerequisite to operation of said computer with the offending IP Addr?
Does logging software have accurate time hacks?
Can IP Addr be spoofed?
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Re: Re: Re: Re: Re: Go up the chain
Dear Internet Customer:
We demand that you give us some money for an alleged infraction that we can not prove in a court of law or anywhere else but you should give us your money or else suffer the consequences of having your connection interrupted.
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Re: Re: Re: Re:
How does anyone lose money owning a casino?
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Apparently what some people want now is a new form of legalized extortion. No need to prove anything, just randomly accuse and laugh all the way to the bank. One might think this is opening a can of worms because now everyone will be doing it, but that has been thought of also - only certain people will be afforded the right to falsely accuse others and steal their money, the little people will be kicked to the curb as usual so no need to worry about that.
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Re: Re: Re: Re: Re: Re: Re: Re: Go up the chain
The DMCA does apply to Comcast, but it's only section 512(c) that has the whole notice/counter-notice process, and that section is regarding hosted content. In the case of ISPs, where the copyrighted material is only present on the ISPs network during transit, that's section 512(a). There is no notice/takedown/counter-notice process in 512(a) because there's no copy to take down. That said, according to 512(i), an ISP does still need a repeat infringer policy to gain the safe harbor that 512(a) grants, but if the ISP is acting on notices of alleged infringement, it could be much more difficult to fight an account termination because there is no explicit counter-claim process.
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Re: Re:
An IP address can be used to identify an account. Even if an IP is dynamically assigned, an ISP can still maintain records indicating which account had what IP assigned to it and when.
What an IP address can't do, however, is identify the person who was using the account at the time. That's what Stephen T. Stone was referring to.
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No. No, it is not.
If someone claims I defamed them, they have to prove at least two underlying premises: The content they claim to be defamatory is legit defamatory, and I wrote/published said content. Proving that the content was posted using a device linked to the IP address assigned to my connection does not prove either one of those two things; all it proves is that someone used that connection to post the content. Anyone with access to either my connection or an Internet-connected device in my home could have posted the content without me ever knowing about it.
The burden of proof still lies with the plaintiff, and an IP address is not enough to prove that I posted the content. It also does nothing to prove whether the content is defamatory, which is the far more important premise of the two.
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Re: Higher Internet Speeds == More Purchased Content
Ah, but can you watch, listen or read the all the content that your faster Internet allows you to stream and download.
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Re: Re: Re: Re:
Playing the trump card, nice diversion tactic. Political, divisive and almost sure to change the direction of the conversation away from your losing narratives.
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Re: Re: Re: Re: Re: Re: This should not be very difficult
That's very pro-piracy of you to say. Lemme go download some music videos that the labels put on YouTube and upload them elsewhere. That's OK right? After all, publication to the internet creates an implied license to copy it
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Re: Re: Copyright is all wrong
Ok, it's not like 95 years is irrelevantly different from eternity as applied to almost everyone alive today. So sounds good. I'm not pirating anything I'm sending a check (payment in full) sometime within a timeframe that "is actually quite limited in the grand scheme of things".
/sarc (or my logic, as faulty as yours.)
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can someone with money/resources please get the RIAA pulled from the internet for copyright infringement? There have been reports of them using copyrighted works without permissions... can't we shut them up/shut them off?
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Re: This should not be very difficult
This has been tried a couple of times, but the Courts won't have it. As an example, see BMG v. Cox appeal ruling pages 11-15.
The problem is that the language isn't consistent across all of copyright law, and the Court in the above case finds that there's insufficient support for the "repeat infringer" = "repeat adjudicated infringer" conclusion. I don't necessarily disagree with their logic given the problems in the wordings of the law, but it creates a contradictory situation where the Court wants the ISP to determine if activity is infringing, but Congress has explicitly stated that ISPs shouldn't have to do that (H. R. Rep. No. 551 (Part 2)):
So what is an ISP to do when one branch of government says it shouldn't have to do something, but another branch says that it should?
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Re:
Well I suppose so if you know who it is you are blocking. An isp could realistically cut internet access to them or site block access to users along or websites.
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Re: Re: Re: Re: Re: Re: This should not be very difficult
Oooo sorry John unfortunately you got banned from the internet. You don’t get to run into pirate arms after you became one yourself.
Here’s a taste of that.
“Hits flag”
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Re: Re: This should not be very difficult
This has been tried a couple of times, but the Courts won't have it. As an example, see BMG v. Cox appeal ruling pages 11-15.
Hence the 'copyright causes brain-damage' line. I mean it's not like it's a difficult concept, and you'd think a judge of all people would understand the idea of 'just because someone is accused, doesn't mean they're actually guilty', given it's their gorram job to determine guilt via a court case. As such punishing people simply because they've been accused of being guilty of copyright infringement multiple times, with no required finding that they actually are guilty at any point is a Bad Idea is really a no-brainer, or it would be if it didn't involve The Holy Copyright.
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Re: Re: Amicus Curiae for Copyright Cases.
Did your mom have any kids that lived?
Every other regular reader is rolling their eyes at you for not bothering to look at who I am.
Last people that accused me of being a lawyer are under federal indictment for their copyright trolling scheme.
People playing the home game will point out that unlike lawyers, I have ethics & stick to them.
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Re: Re: Amicus Curiae for Copyright Cases.
An IP address is not evidence.
It is a series of numbers assigned at random to users on a network.
If the clock in the detection machine is off, it can point to an entirely different subscriber.
As to 'shifting' the burden of truth, as you fscking high?
Once they have a name associated with the account, they troll facebook... oh you liked a post about 'Game of Thrones' and our super secret tracking software shows the same downloader downloaded Game of Thrones episodes!!!!
The accountholder is male, a penis means they downloaded the porn.
They didn't turn over a flash drive that was once plugged into their computer 2 years ago, this is evidence they are guilty!!!
Our expert was unable to find any evidence of our content, lack of evidence is evidence of them being smarter than our expert and having wiped the evidence away!! Make them pay us now!
We saw a blue car drive past the bank that was robbed, we do not know who was inside, who was driving, or if anyone in that car robbed the bank but we saw a blue car... let us tear his persons life apart in a CIVIL matter that at BEST is worth a few thousand dollars, not the $150K we told them we could win, & connect their name is scandalous porn titles (and until the "MASSIVE" $250 penalty stopped them child porn & beastiality films).
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Re:
Rightscorp. The labels keep pouring money into the latest snakeoil salvation (I mean a penny stock that pays its execs more than the company has taken in...) & are angry its not working out for them.
ISPs stopped forwarding the "DMCA" notices Rightscorp generated, because they were not so much a DMCA notice as a carrier for threat letters demanding the account holder pay them or be financially ruined.
Rightscorp defied a courts instructions & deleted code, to protect the super secret black box from outside review. So these untested, unvetted notices continue. ISPs get calls from accountholders who are scared by the message claiming unless they pay this random firm a few hundred/thousand they will end up in court owing $150K. Sometimes when an accountholder decides to pay up, not motivated by guilt but by fear, magically they triple the size of the list you owe for.
Rightscorp convinced the music labels the fact their returns sucked was because the ISPs stopped forwarding the letters. They then decided that since the ISPs refused to terminate service to 'repeat infringers' (as identified by a magical box) stripped their protections under the DMCA & they found a Judge who decided that 2 guys responsible for 3 different failed snakeoil setups to 'save' the music industry from piracy were good upstanding people and we can accept their magic black box output as proof positive.
The problem is Congress failed to define these terms leaving it to lifetime appointees who still own VCRs blinking 12:00 to understand that sometimes the technology isn't always right.
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Re:
Bit late the the party aren't ya?
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Re: Re: Re: Re: Re: Amicus Curiae for Copyright Cases.
Nope can;t prove that... they accidentally deleted the code for their super secret tech (violating a courts instructions) so there is STILL no outside testing of the magical black box...
So it is still you only need to send 200 notices to an ip address then sue the ISP for not disconnecting them from the internet, because a court has decided that a company who makes money from sending these notices out would NEVER EVER worry about their bottom line more than sending notices.
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Re: Re:
"No thanks, I'd prefer to help save it. Why? Because I'm one of the idiots who lives in the world!"
Well, that's nice and all, but there comes a time when it's just time to shut off the life support. The smell is usually a giveaway.
I used to think Jeffersson was pretty radical with his "The tree of liberty must be liberally watered with the blood of freedom fighters and tyrants". Sadly he may have been correct. As a society we have just about forgotten WHY human rights and basic requirements in law are necessities and we will only be reminded of that after the next time we have to get out from underneath the heel of some mad tyrant.
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Re: Too fast
"The want to go back to pressing records again! (And punching piano rolls.)"
Hmmm.
https://arstechnica.com/tech-policy/2009/10/100-years-of-big-content-fearing-tec hnologyin-its-own-words/
https://falkvinge.net/2012/01/27/the-copyright-industry-a-century-of-deceit /
Nope. The self-playing piano and the gramophone both are abominations unto the copyright industry. It has to be live music or nothing.
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Re: Re: Re:
"An IP address can be used to identify an account. Even if an IP is dynamically assigned, an ISP can still maintain records indicating which account had what IP assigned to it and when."
Unless said ip address is the entrance to an NAT in which case most bets are off.
Hence why laser printers get so many DMCA notices assigned to them.
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Re: Re: Re: Re: Re: How ironic
"I wouldn't care."
Splendid. We are in agreement that the DMCA isn't worth caring about then.
Because the overwhelming majority of DMCA notices (some 99% or more) have less relevance than the allegation PaulIT just applied to you.
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Re:
That seems where Jhon gets hung up. A smart judge wouldn't allow the process of unmasking an anonymous defamation defendant to proceed if the accusation of defamation is laughable on its face.
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Re: Re: Amicus Curiae for Copyright Cases.
"An IP address is evidence that shifts the burden of proof."
Bullshit.
There's a minimum 12% error margin just from the technology involved which means that by extension we should reverse burden of proof almost completely.
Your argument doesn't fly in any other area of law so why would it apply to copyright specifically? Try again, Baghdad Bob, but this time with less outright lying please.
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Re: Re: Re: Re:
"Unless said ip address is the entrance to an NAT in which case most bets are off"
Or the ISP mess up their internal records search and give them the wrong person (which has happened).
Anyone who takes an IP address as anything other than a lead to perform further investigation is fooling themselves... and they will get less reliable the further they're pushed as some kind of personal identifier (since the infringers will be encouraged to use obfuscation tactics they don't bother with at the moment).
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Charter HTTP Code Injection
I recently had to deal with a mess with Charter as a result of this lawsuit. What Charter started doing is to use HTTP Code Injection to replace web pages with copyright notices (in my case, they alleged that I downloaded "The Flash" when in reality I wouldn't need to since I watch it on Netflix) but the notice was sent to someone other than me (a non account holder) whereas DMCA requires the notices go to the account holder. In the past, this actually resulted in me getting a zero on a test because when I clicked the form submit it was replaced with a copyright notice.
Their basic explanation was that their lawyers considered this practice to be legally safer than the risk of being sued for not doing this, which makes sense. Even though DMCA requires that I be sent the notice they are less likely to be sued by a random customer than a consortium of big companies.
Incidentally though, this practice interfered with my ability to pay my bill. "We apologize as we seem to be experiencing some issues with our bill pay services" is all I'd get. This led to new code injection of payment reminders which didn't help anything and finally service was soft disconnected with a message requiring me to go to Charter to pay - but again, I could not pay.
I eventually tried using my Samsung S7 mobile Hotspot through T-Mobile and the modem blocked my computer from using the T-Mobile IP address as well. I emailed them a screenshot of that after I figured out that while my computer is connected via ethernet to a charter router with that lock on it I cannot use any connection via any ISP, but unplugging it immediately allowed me to pay the bill and stopped that copyright complaint.
They explained that if a 3rd notice goes out within one year the internet connection will all go out until I respond to a written notice, which is over the top. It's not the ISP's job to determine if a claim is legitimate or not, and while the copyright holder may believe based on the IP address used that I am responsible, I might not be. IP spoofing is, for example, a viable explanation. Although most ISP's now correct for that not every ISP does. Alternatively, wardrivers might brute force a WiFi password to use. These things happen all the time. Unless I am proven responsible in the court of law I should not have my work disrupted.
As it stands, I feel like I have to buy a VPN router and pay for a VPN service to protect me from copyright complaints which is stupid. All because a big company used a frivolous lawsuit to scare them.
P.S. - I sent all screenshots of the above mentioned issues to Charter and the FCC, but am willing to share proof of any claim I made on request.
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