Cox Points Out That Rightscorp Is Either A Mass Infringer Itself... Or Admits That Downloading Songs Can Be Fair Use

from the oops dept

Remember Rightscorp? This is the company that is trying to be sort of a "light" copyright trolling operation, sending threatening letters to individuals, but letting them "settle" for lower dollar amounts than the more traditional copyright trolls (in the $10s of dollars rather than in the $1000s). The scheme hasn't been working all that well. Late last year, Righstcorp, along with two music publishing clients, BMG and Round Hill Music, decided to sue broadband ISP Cox, to test the (nutty) theory that the DMCA already requires ISPs to kick users off the internet if they receive multiple takedown notices. The whole lawsuit, beyond the questionable legal theory, appeared to be an attempt to force Cox and others to hand over subscriber info.

Either way, going after Cox may be proving to have been a serious strategic mistake. Both companies have filed motions for summary judgment and the contrast between the two is somewhat stunning. BMG/Round Hill Music's is readable here* and basically focuses on the argument that Cox is somehow unable to make use of the DMCA's safe harbors. While many of the details are redacted, the basic argument is the same as initially filed. That because Cox doesn't kick customers off its service entirely, it fails to meet the requirements of the DMCA's safe harbor:

Cox does not qualify for a safe harbor because, at least since 2010, it has never had nor implemented a policy to terminate repeat infringers in appropriate circumstances. Instead, Cox has created a notification system designed to limit the circumstances in which Cox will learn of infringement on its system. Cox has [REDACTED] more than 95% of the millions of infringement notices sent to it by copyright holders without taking any action.

Of course what it's ignoring is that what Cox was complaining about was that the policies that Rightscorp wanted here included sending blatantly misleading information to end users and sharing information back with Rightscorp. That's not required under the DMCA.

Meanwhile, the motion for summary judgment from Cox is quite a read, with the folks over at TorrentFreak posting an initial summary.

The real kicker: Rightscorp is only working with the publishers, who certainly appear to hold a legitimate copyright interest in the publishing/compositions. But that's different than the copyright in the actual sound recordings. That's held by someone else, who does not appear to be partnered with Rightscorp. And yet, Rightscorp itself claims to have downloaded the various song files to help it find infringers. Yet... if it doesn't have authorization or a license from the copyright holders of the sound recordings, that sounds like Rightscorp just engaged in massive copyright infringement.

That, alone, would be a pretty strong point -- but then Cox's lawyers twist the knife. They point out that the only way in which Rightscorp's own actions would not be infringing is if they were to claim fair use in the downloading of all those song recordings. But if that's the case, then isn't Rightscorp clearly admitting that many of the people its threatening and shaking down would also have a legitimate fair use argument?

Oh, and one final knife twist: given that courts have held that those issuing DMCA takedowns need to take into account fair use before sending those takedowns, this would act as evidence that Rightscorp failed to do that.

In its work for Plaintiffs Rightscorp downloaded files of thousands of sound recordings over the BitTorrent protocol, evidently to create evidence of infringements over Cox’s network.... But copyrights in sound recordings are separate from copyrights in musical compositions.... Rightscorp either committed massive infringements of the sound recording copyrights or must have relied on the fair use doctrine. If the latter, that fact is an admission that activity over BitTorrent may constitute fair use, but there is no evidence that Rightscorp considered the possibility of fair use in generating millions of notices of claimed infringement. Because fair use is not infringement, Rightscorp’s notices contained fraudulent misrepresentations about detections of infringement. See Lenz.... Thus, because Rightscorp acting as agent for Plaintiffs either was an infringer itself or engaged in misrepresentations, Plaintiffs have unclean hands.

Ouch. It will be fun to see these companies try to twist themselves out of that one. The rest of the filing is worth reading as well, and we may do some followup posts on other aspects included. But, in short, Cox points out that the legal theories here make no sense, that the company abused the DMCA process, there there is no evidence of actual infringement and that the publishers failed to actually mitigate any of the damages. You never know how the courts will eventually rule on these things, but from a first glance, Rightscorp's chances aren't looking too good right now.

* Correction: I originally got confused and posted the wrong document here -- but the right document has now been posted.

Filed Under: bittorrent, copyright, copyright infringement, copyright trolling, fair use, sound recordings
Companies: bmg, cox, righscorp, round hill music

Cox Sues Tempe, Arizona For Its Nefarious Plan To Bring Google Fiber To Town

from the pouting-and-crying dept

Google Fiber continues to expand and bring much needed competitive pressure to (and public conversation about) duopoly-logjammed broadband markets. Most recently the company stated it was striking preliminary agreements with San Diego, Irvine, and Louisville, negotiating "fiber hut" placement, coordinating install logistics, and getting cities to sign off on franchise deals. The company also recently announced that it had struck a preliminary deal with Tempe, Arizona, laying the groundwork for the deployment of thousands of miles of new fiber in the city, bringing Google Fiber's potential footprint to sixteen cities.

Like any good incumbent broadband ISP, Cox Communications' first reaction wasn't to welcome the challenge of a new competitor, it was to whine like a petulant child about the fairness of it all:

"It's unfortunate that the Tempe City Council is willing to favor a new entrant into the market, and in doing so appears to have violated federal and state law. The waivers granted by the City also give Google Fiber a free pass on obligations that affect public safety; such as emergency alert messaging and protection of subscriber privacy."

Cox has subsequently followed up this early whining with a new lawsuit accusing the Tempe city council of violating the law. According to the suit (pdf), Tempe violated federal law "by establishing a discriminatory regulatory framework" that gives Google Fiber preference over traditional cable companies:

"Tempe’s bald assertion that Google Fiber is not a cable operator is incorrect," Cox argued. "And based on this incorrect assertion, Tempe’s regulatory scheme allows Google Fiber to provide video programming service to subscribers in Tempe under terms and conditions that are far more favorable and far less burdensome than those applicable to Cox and other cable operators, even though Cox and Google Fiber offer video services that are legally indistinguishable."

Here's the thing though: reports out of Arizona indicate that the Tempe city council's vote opened the door for companies like Cox to negotiate their own, new agreements with the city. Indeed, nothing stopped incumbent ISPs from striking new gigabit fiber deployment deals before Google Fiber, they just lacked the competitive incentive to do so. And while some mega-ISPs originally whined about these deals, they quickly quiet down once they realize these new potential deals let them cherry pick broadband deployment (read: just wire high-end developments), something that pre-Google Fiber days used to be considered a bad thing. Note these recent comments by AT&T:

"In the past if we wanted to go into a city environment, the requirement was you build out the entire city," Stephenson explained in a keynote at the J.P. Morgan Global Technology, Media and Telecom Conference. Doing that requires a huge capital investment, one that AT&T felt it couldn't make, he noted. Google's entry into Austin, in particular, enabled AT&T to ask the city for the same terms as Google Fiber received. "Google came in and was very targeted in where they wanted to deploy fiber, and they got municipal endorsement (on that). …We said we'll take the same deal that Google got. And we got the same deal that Google got," Stephenson said."

So yes, under the din of enthusiasm over Google Fiber there is a conversation nobody seems to want to have about the problem of cherry-picked next-gen broadband deployment, but that's obviously not what Cox cares about. Cox sees something in local Tempe law that will allow it to bog Google Fiber's progress in Tempe down in the courts (Google Fiber is also slated for Cox's turf in Phoenix, where it has not filed suit). Cox could simply take Google Fiber's market entry as a challenge to negotiate a new citywide deal and up its own game, but apparently the cable operator thinks that hand-wringing and wasting everybody's time with lawyers is the more sensible tactical option.

Filed Under: arizona, broadband, competition, fiber, google fiber, lawsuits, tempe
Companies: cox, google

Cox Claims Rightscorp's 'Extortionate' Lawsuit Really A Backdoor Way To Get Subscribers' Info

from the cox-blocked dept

Rightscorp (via two music publishers) has dragged Cox into court to test its novel (read: legally unsound) theory that complying with the DMCA means cutting off service to "repeat infringers." The theory itself is largely untested, but far from promising. But that isn't stopping BMG and Round Hill Music (with Rightscorp as a not-so-silent partner) from taking a flyer on a bad legal bet. Certainly, the theory would be advantageous to the shakedown efforts Rightscorp generously refers to as a "business model," but, so far, the only thing being offered as "evidence" of repeat infringement is Rightscorp's own declarations.

Those declarations are highly suspect. Cox has filed an opposition to Rightscorp's Motion to Compel that highlights the anti-piracy company's extortion-esque tactics.

In a statement that leaves little to the imagination, Cox notes that Rightscorp is “threatening” subscribers with “extortionate” letters.

“Rightscorp is in the business of threatening Internet users on behalf of copyright owners. Rightscorp specifically threatens subscribers of ISPs with loss of their Internet service — a punishment that is not within Rightscorp’s control — unless the subscribers pay a settlement demand,” Cox writes (pdf).

Cox has refused to participate in Rightscorp's quasi-legal activities. While the company is not opposed to passing on infringement allegations, it did ask Rightscorp to remove the threatening language (cutting off service, $150,000 per infringement claim) first. Rightscorp refused to do so. This impasse is obviously unacceptable to Rightscorp, which depends on the (very) occasional settlement payment to keep its business barely afloat.

As Cox points out, Rightscorp has decided the best course of action is to maintain its unsteady perch on the edge of legality. In the filing, Cox alleges that Rightscorp tried to make the ISP a "business partner" in its shakedown attempts.

“Rightscorp had a history of interactions with Cox in which Rightscorp offered Cox a share of the settlement revenue stream in return for Cox’s cooperation in transmitting extortionate letters to Cox’s customers. Cox rebuffed Rightscorp’s approach,” Cox informs the court.

But that's not the only legally-dubious tactic the "cutting edge" anti-piracy firm has deployed. It's also attempting to use this lawsuit's discovery process to sidestep subpoena limitations.

The motion lays bare one of Plaintiffs’ primary reasons for bringing this lawsuit. Plaintiffs seek to circumvent the Cable Privacy Act process and instead use discovery in this case to force Cox to reveal, en masse, PII for possibly tens of thousands of Internet subscribers who Plaintiffs speculate might be violating their copyrights. The Cable Privacy Act expressly prohibits Cox from disclosing its subscribers’ PII, for good reason: Internet subscribers have a compelling privacy interest in the confidentiality of their personal information, which can of course be vulnerable to exploitation for myriad improper purposes. If a copyright holder earnestly believes that an unnamed Internet subscriber is infringing upon its copyrights, the proper course is to bring a “John Doe” lawsuit against the subscriber and then to use third-party subpoena power to obtain identifying information from the user’s Internet Service Provider. That legitimate procedure allows notice to the subscriber and an opportunity for the subscriber to act to protect his or her rights. It also relieves the ISP of the unfair responsibility of adjudicating which of the two competing interests (the subscriber’s or the accuser’s) should trump the other.

[...]

Plaintiffs nominally (Rightscorp in reality) claim to have identified “approximately 150,000” infringers, including several hundred “egregious infringers,” among Cox’s subscribers. But Plaintiffs apparently have only IP addresses to go on. (Doc. 72, Corrected Br. at 3.) Plaintiffs have not filed any “John Doe” lawsuits against Cox customers and have not sought information from Cox by subpoena. More importantly, Plaintiffs do not seek, and have not sought, leave to add “John Doe” defendants in this case.

[...]

The practical dynamics of this motion are suspect: If there are 150,000 infringers among Cox subscribers, as Plaintiffs claim, why would they limit themselves (at least for now) to just 500 “egregious infringers”? Will Plaintiffs seek to depose or serve Rule 45 subpoenas on those 500? Will Plaintiffs now seek to add those 500 as co-defendants? Why do Plaintiffs want a blank-check “open order” to continually demand that Cox reveal more identities at later stages in this action? When tested in practical terms, Plaintiffs’ motion makes no sense, and their arguments plainly are an obvious pretext for some other motive.

"Pretext for some other motive" basically describes the entirety of Rightscorp's business model. It subpoenas ISPs for subscriber info, under the unspoken pretext that further legal action is in the offing. But instead of suing file sharers, the company instead uses the information to harass subscribers into paying "settlements" for alleged infringement.

Despite the damning claims made by Cox, the court has partially granted the questionable Motion to Compel. The ISP has been ordered to turn over the "Top 250 IP Addresses recorded to have infringed in the six months prior to filing the Complaint." This distinction is important, because as Cox points out in its opposing motion, the plaintiffs' constantly-widening net had managed to drag in alleged infringers whose infringement didn't occur until after the lawsuit was filed.

Plaintiffs’ stated justifications for their extraordinary request do not help Plaintiffs’ cause. Plaintiffs acknowledge that they “must establish direct infringement of the copyrighted works asserted in this case,” and imply that their motion serves that end. (Doc. 72, Corrected Br. at 4.) But that implication is illogical because Plaintiffs seek PII for 500 subscribers of the 150,000 supposedly implicated here. Surely Plaintiffs are not prepared to concede that their claims fail for the works that the other 149,500 subscribers allegedly infringed. Notably, of the 500 allegedly “egregious infringers” the Plaintiffs hand-picked, 250 allegedly infringed after this lawsuit was filed. (Doc. 72, Corrected Br. at 4.) Those subscribers’ alleged infringements, therefore, cannot have formed a basis for Plaintiffs’ claims in this suit. And nowhere do Plaintiffs even assert that Rightscorp sent purported DMCA notices to Cox with respect to those particular subscribers.

Cox has come out swinging in the early going, and its assertions confirm much of what has been written about Rightscorp and its tactics. This aggressive stance should help uncover plenty of damning details, none of which should have a positive effect on Rightscorp's shriveling stock price.

Filed Under: copyright, copyright trolling, extortion, lawsuits, personal information, shakedown, subpoenas
Companies: bmg, cox, rightscorp, round hill music

Music Publishers, With Help From Rightscorp, Test Legal Theory That DMCA Requires Kicking Repeat Infringers Off The Internet

from the this-ought-to-get-interesting dept

Late Wednesday evening before Thanksgiving, two music publishers, BMG and Round Hill Music, who are partners of struggling copyright trolling operation Rightscorp, sued the ISP Cox, testing out the theory that (1) the DMCA requires ISPs to kick "repeat infringers" offline entirely and (2) that notices from Rightscorp suffice to prove that one is a repeat infringer. You can read the complaint here [pdf or embedded below].

There's a lot of background here to unpack -- very little of which made it into the WSJ's initial coverage of this story. First off, it's true that the DMCA safe harbors include a requirement of a "repeat infringer" termination policy in 512(i). Furthermore, for years, the RIAA and its friends have insisted that 512(i) means that ISPs need to boot people off the internet entirely. After the RIAA, MPAA and five top ISPs agreed to the "voluntary" six strikes program, in which the ISPs insisted that it wouldn't kick anyone off the internet for file sharing, the RIAA started telling people that even when ISPs said that, 512(i) would require ISPs to kick users offline anyway.

However, that hadn't been tested in court. There had been some thinking that the RIAA and associated labels would likely wait until they had enough examples of individuals hitting all "six strikes" and still having an account before testing out this legal theory -- but it looks like Rightscorp's friends are jumping the gun. If it succeeds, then the legacy copyright players will have a massive new weapon in their arsenal: a digital guillotine that would allow them to pressure ISPs to kick people entirely off the internet for a few simple infringements.

It's interesting that the target of the lawsuit is Cox for a couple of reasons. First, years back, Cox was actually one of the first ISPs to kick people offline for file sharing, publicly stating that the DMCA required it. This argument was, and remains, incorrect, but it's unclear if Cox still follows the same practices today. The filing says that Cox says this is its policy, but it doesn't actually follow through. Second, Cox is not a partner in the "six strikes" program -- and it makes you wonder if the plaintiffs will try to use that against the company (which could pressure ISPs into joining the program to avoid liability). In other words, it's possible that part of this strategy will be to force all ISPs to join the "voluntary" six strikes program.

Either way, the legal theory is fairly questionable. As AT&T argued years ago when such a theory was floated, an ISP can't just assume that someone is a "repeat infringer" based on questionable notices -- especially when the evidence for such notices (generally IP addresses) is notoriously unreliable. Furthermore, it's worth reading the details of probably the key case on implementing a "reasonable" policy, the Perfect 10 v. CCBill case. While the situations are not analogous, that case certainly seems to suggest that service providers have pretty wide latitude in setting up a policy, so long as they're not purposely trying to interfere with efforts to respond to infringement. The fact that, at least in the past, Cox did kick users off its service, suggests that it's not ignoring these issues and has a policy, even if it's not to Rightscorp's liking. Now, that CCBill case is in the 9th Circuit, and this lawsuit was filed in Virginia (the 4th Circuit), so perhaps the plaintiffs are hoping for a friendlier view towards these theories.

In the specifics in this case, BMG and Round Hill seem to be upset that Cox won't forward Rightscorp's notices -- and, in fact, appear to treat them as spam:

Plaintiffs, through their agent, have attempted to work closely with Cox to find a workable and common sense solution to Cox's system-wide repeat infringer problem. Cox, however, has refused to engage with Plaintiffs' agent in any substantive way and instead has taken the position that repeat infringement notices provided to Cox "do not relate to matters subject to the DMCA." Incredibly, Cox's Privacy Counsel advised Plaintiffs' agent that it has implemented a "policy not to accept or to forward notices such as those sent to us by your firm." Moreover, Cox chose "to limit the number of notices that [it] can accept from many senders because of the total volume that [it] receive[s]."

By its actions. Cox has intentionally ignored and continues to ignore the overwhelming evidence that provides it with actual knowledge ofrepeat copyright infringers on its network and Cox actually has taken measures to avoid and stop receiving those notifications in direct violation of the spirit and legal requirements of the DMCA. Cox cannot have any credible, effective repeat infringer policy, let alone one that is reasonably implemented as required by 512(i), if it purposefully ignores notifications, sufficient under the DMCA, of repeat infnngers sent by copyright owners who are tracking the repeat infnngers on the Cox network and providing Cox with actual knowledge of those repeat infringers on a daily basis.

Once again, though, the publishers are exaggerating the actual law and what's happening. They seem to assume that Cox has some sort of legal obligation to pass along Rightscorp's notices, which just isn't the case. Furthermore, the lawsuit states, incorrectly, that "Cox directly profits" from repeat infringements. But that's wrong. Cox may profit from people who have used its service to infringe, but the law (and court rulings) have been fairly clear that Cox would need to profit specifically from the infringements itself, not merely because some users infringe. Users who infringe and users who don't all pay Cox the same amount, so Cox receives no special profits from infringement, blowing a big hole in the legal theory presented.

No matter what, courts sometimes come out with wacky decisions, and this one could quickly shape up to be a key case in testing this theory that's floated around for years, but has never really been tested. That makes this a clear case to follow, as it could have tremendous impact. If the publishers' theory is vindicated by the courts, it would mean that -- contrary to all the previous promises that ISPs wouldn't kick people accused of infringing offline -- the US technically might require the loss of internet service for repeat infringers. Such a policy would clearly go against stated aims of the government in encouraging internet access, but it's not impossible. I would imagine that if such a result came about, the resulting protests from internet users would be even more vocal than what happened to prevent SOPA. Kicking people entirely off their internet connection for copyright infringement has always been a non-starter in the US. Kicking that hornet's nest seems like a risky move for these publishers.

Filed Under: 512i, copyright, dmca, music publishers, repeat infringer policy, repeat infringers, six strikes, three strikes
Companies: bmg, cox, rightscorp, round hill music

Appeal Over Former RIAA Lobbyist Judge Allowing Prenda To Get Info On Over 1,000 John Does Moves Forward

from the doesn't-that-look-silly-now dept

You may recall Judge Beryl Howell, the former RIAA lobbyist who helped author the DMCA, and also went against a very large number of other judges dealing with copyright trolling lawsuits by ruling that it was perfectly fine to lump over 1,000 John Doe defendants into a single lawsuit and then get discovery on them for the purpose of shaking them down for payment. While so many other courts have ruled that such lumping together is an abuse of the legal system in misjoining unrelated parties, Howell not only stuck to her guns, but then proceeded to blame ISPs for copyright trolls, suggesting that if they just did more to crack down on infringing, trolls wouldn't be a problem.

What you may not remember is that the key case in which Howell did this happens to be a case involving... you guessed it... AF Holdings and its "law firm" Prenda Law. Oh, and the "copyright assignment" that AF Holdings is using for this case was one of those supposedly signed by... Alan Cooper. While Judge Howell may be well served to pay attention to Judge Otis Wright in California and his actual investigation into Prenda/AF Holdings/Alan Cooper, the case is out of her hands for now, as the various ISPs who have the info in this particular case have appealed Howell's ruling and the EFF, ACLU, Public Citizen and Public Knowledge have stepped in as well with additional arguments in an amicus brief.

Both briefs are well worth reading, though you might be surprised that the amicus brief is probably the more reserved of the two. The ISPs who took part include: Bright House, Cox, Verizon, AT&T and Comcast -- with most of them (Verizon and Comcast being the exceptions) not even providing service in the jurisdiction of the district court: Washington DC. Comcast joining in is interesting, given that they own NBC, but we'll leave that aside for now. To put it mildly, the ISPs think the appeals court should put an end to these kinds of cases, noting that a majority of other courts have refused to allow joinder on so many defendants, and have blocked the discovery process. It points out, of course, that these cases are almost never taken to court, but are usually just used to reveal names and then offer settlement demands. Specifically, they feel that Howell made a pretty big legal mistake, in that a showing of "good cause" is required for discovery, and Howell ignored that.

The district court’s conclusion that rules governing personal jurisdiction and venue provide no impediment to pre-Rule 26 discovery of the ISPs is legal error. A showing of “good cause,” which is required for discovery ostensibly intended to identify defendants, requires an evaluation of whether the information sought from the ISPs would be used to name and serve defendants in the forum. See, e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352-53 & n.17 (1978) (where “the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied”). The Copyright Act and the District of Columbia’s long-arm statute limit the court’s reach to defendants who reside in the district. And the uncontroverted evidence before the district court showed that few, if any, of the targeted Internet subscribers reside in the District of Columbia—as publicly available geolocation software used by Plaintiff’s counsel in other cases confirms. The district court’s decision to defer any consideration of personal jurisdiction or venue until after the subscribers’ personal information had been disclosed to Plaintiff requires reversal.

The court’s decision to permit discovery of the ISPs before deciding whether the 1,000-plus “Does” are misjoined provides an additional basis for reversal. Plaintiff, by routinely declining to name and serve defendants after obtaining the subscribers’ personal information, virtually ensures that Rule 20’s requirements for joinder will go unaddressed if not evaluated at the outset. And as a growing majority of courts have concluded, deferring a ruling on joinder deprives the courts of filing fees and encourages a proliferation of improperly coercive lawsuits. Given the groundswell of published opinions that disagree with the lower court and have severed or dismissed non-resident “Does” or all Does except for “Doe No. 1,” deferring a ruling on joinder in a suit that seeks nationwide subscriber information also encourages forum shopping—as the record here shows persuasively.

The ISPs also, quite reasonably, point out that if mass joinder and discovery is allowed in this case, the trolls will descend on the DC Circuit courts in a mass forum shopping situation:

The record reflects that Plaintiff’s counsel’s cases have migrated across the country, with the venues selected, not by the locus of the parties or situs of harm, but based on counsel’s perceptions of which forum is most likely to authorize the greatest discovery, at the lowest cost, with the least judicial oversight.

The specter of intra-district, judge-specific shopping in Plaintiff’s counsel’s cases further underscores the problem with the lower court’s approach. The ISPs raised below Plaintiff’s counsel’s practice of filing complaints and dismissing them vel non based on the judicial assignment—only to re-file in another court. When presented with the same facts, Judge Wilkins quoted with approval Judge Huvelle’s finding: “Plaintiff’s actions a[re] akin to ‘judge shopping.’… This Court could not agree more.” ...

The ISPs respectfully submit that the district courts in this Circuit should not be the destination for 1,000-plus Doe cases that are brought primarily to compile mailing lists—not to adjudicate actual cases or controversies.

The ISPs also go through, in detail, the accusations against Team Prenda, and the claims of Alan Cooper. As it notes:

AF Holdings and its counsel owe a duty of candor to the Court, and a duty of fairness to appellants.... The serious issues concerning attorney misconduct and potentially forged documents were not identified for the court below; they necessarily affect the “good cause” analysis and provide an alternative basis for reversal to address the evidence now being considered in the pending disciplinary proceedings in the Central District of California.

The EFF/ACLU/PK/PC filing is more focused on the specific errors in Howell's ruling, concerning the "good faith" standard for discovery and the mass joinder of over 1,000 people. They also point out the jurisdiction problems of the defendants who are clearly outside the jurisdiction of a DC court -- and the fact that these cases rarely end up in actual lawsuits means that the question of proper venue will not be "cured" later. Finally, the brief argues that Howell ignored key First Amendment issues concerning revealing anonymous internet users, and the higher standard for them to be revealed. This argument wasn't made by the ISPs, so we'll focus on that one here. It points to the key Dendrite standard we've discussed many times before concerning the revealing of anonymous users. This does not mean that you cannot identify those accused of copyright infringement, but rather that you can't go on a random fishing expedition to get names, as many copyright trolls have done.

Specifically, in a series of cases beginning with Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756, 760-61, 342 N.J. Super. 134 (App. Div. 2001), courts have adopted a balancing standard to assess requests for early discovery to identify anonymous online speakers that protects the right to speak anonymously while at the same time ensuring that plaintiffs who have valid claims are able to pursue them. Without such a standard, abusive plaintiffs could too easily use extrajudicial means against defendants from whom they could not, in the end, obtain judicial redress. See Levy, Litigating Civil Subpoenas to Identify Anonymous Internet Speakers, 37 Litigation No. 3 (Spring 2011).

The use of BitTorrent to select and share movies is expressive and, therefore, protected by the First Amendment. Call of the Wild Movie, 770 F. Supp. 2d at 350 (“[F]ile-sharers are engaged in expressive activity, on some level, when they share files on BitTorrent, and their First Amendment rights must be considered before the Court allows the plaintiffs to override the putative defendants’ anonymity.”).

Although the expressive aspect of the conduct alleged here – the posting of copyrighted movies to BitTorrent – is somewhat minimal, that does not mean that discovery to identify the anonymous user without adequate initial evidence that individual Doe Defendants committed the alleged infringement. The weakness of AF Holdings’ assertions of personal jurisdiction and proper joinder means that First Amendment concerns weigh more strongly here in favor of quashing the subpoenas. Certainly it was not appropriate for the district court to ignore the question altogether.

It will be interesting not only to see how the appeals court deals with it... but also Prenda's argument, since they seem to be getting more and more wacky lately.

Filed Under: appeal, beryl howell, copyright trolls, discovery, joinder
Companies: aclu, af holdings, at&t, bright house, comcast, cox, eff, prenda, prenda law, public citizen, public knowledge, riaa, verizon

Are Cable Companies Looking To 'Emulate' Web Video Sites, Or Destroy Them?

from the face-value? dept

A piece in BusinessWeek says that cable TV companies are "pushing to become more Web-like" by expanding their online video offerings and making their core TV product work more like the web than the traditional channel-delineated system. On the face of it, this is a good thing, since we've long argued that the TV channel is an outdated concept, and should be seen as being like a web bookmark more than anything. But the article largely glosses over one key point in the cable companies' push to grow their online video efforts: they want exclusivity. So instead of throwing things open and using an ad-supported model, like Hulu, they want to take TV shows and video content, and lock it up inside a walled garden for paying customers. That's not "web-like", it's exactly the same as their current business model. Of course, even if these plans don't work out, they've got another way to try and profit from online video: by introducing capped broadband plans that will charge customers based on how much traffic they use. Time Warner's CEO is quoted in BW as saying "we really need to look at what consumers want." It's hard to imagine they want capped broadband, and they want video locked up behind paywalls. The popularity of the likes of YouTube and Hulu indicate they want something very different from what the cable operators have in mind.

Filed Under: cable companies, exclusivity, web video
Companies: comcast, cox, time warner cable

Cox Gets Aggressive With Traffic Shaping

from the taunting-the-fcc dept

In a move that's basically baiting the FCC and Congress to see if they will act, Cox has announced that it's going to experiment with rather aggressive traffic shaping, granting priority to bits that it feels have a great priority. Why Cox gets to describe what gets a priority and what doesn't seems pretty questionable. Cox is also the company that implemented a three strikes policy on file sharing without telling anyone.

To be honest, this seems like a really tone deaf move by Cox -- and I'd imagine that plenty of telcos and cable companies are pissed off about Cox calling extra attention to the topic right now. There's been plenty of talk of new net neutrality regulations in Congress, and with Cox putting the issue so squarely on the table, it's as if they're begging for such regulations (or at least to be slapped down by the FCC). You would think they would at least wait until it wasn't an issue getting so much attention before drawing extra scrutiny and daring regulators to act.

Filed Under: net neutrality, regulation, traffic shaping
Companies: cox, fcc

No One Can Find ISPs Who Have Agreed To RIAA's 3 Strikes Plan

from the keep-looking dept

It's been a few weeks since the WSJ announced that the RIAA was supposedly dropping its lawsuit strategy, in favor of a backroom deal with ISPs, negotiated under dubious circumstances by NY's Attorney General Andrew Cuomo, whereby those ISPs would start cutting off connections from those accused (not found guilty) of file sharing. However, since then, we've heard from a variety of ISPs who don't like the plan, and Wired went on a wild goose chase trying to find a single major ISP that has agreed to the plan and came up empty. Of course, most of them refused to comment. The only one who said anything straight up was Verizon -- who had earlier confirmed that it had no interest in doing a deal with the RIAA. The big cable companies and AT&T have shown some interest in the past -- but now refuse to admit that an agreement has been worked out.

The big question is why?

If this is such a great deal for consumers, as Cuomo and the RIAA insist, then why wouldn't an ISP want to step right up and proudly admit to such a deal? Obviously, it's because they know that such a deal is a sham, based on no legal reasoning, that will harm their position in the market and piss off customers. The RIAA will likely claim that no deals have been announced because the details haven't been finalized -- but again, that makes no sense. We've been questioning from the beginning why these negotiations haven't been more open. And with record labels like Warner Music and EMI insisting that they want to be seen as more open and willing to hold a "conversation" with critics, the fact that no one will talk openly about this backroom deal shows what a bunch of liars they are again. They don't want an open conversation. They want the government and ISPs to protect their business model, and they've convinced Andrew Cuomo to fall for it.

Filed Under: copyright, isps, music, takedowns, three strikes
Companies: at&t, comcast, cox, riaa, time warner cable, verizon

Another Broadband Tech Exec Says There's No Bandwidth Crunch

from the move-along-now dept

We've pointed out in the past that whenever you hear warnings about a coming broadband crunch, it almost always comes from consultants and politicians. If it comes directly from companies, it's inevitably from the CEO or lobbyists. Yet, when you talk to execs who actually are technologists (even at telcos) they're quite willing to admit that the whole broadband crunch issue is something of a myth. All you need to do is regular upgrades to the network, and most recognize that there's no risk to a network getting overwhelmed. The latest to add their voice to this crew is cable company Cox's VP of technology, who admits that the company's latest upgrades mean that there shouldn't be any bandwidth problems for at least a decade. Yet, how much do you want to bet we'll be hearing that we're running out of bandwidth from a politician or a lobbyist well before a decade is up?

Filed Under: bandwidth crunch
Companies: cox

Cox To Enter The Mobile Phone Business... For Real

from the didn't-expect-that dept

It's no secret that the various cable companies have been interested in offering some sort of mobile phone service. A few years ago, the biggest cable companies (Comcast, Time Warner Cable and Cox) teamed up with Sprint to offer mobile phone service under their own brands, building on Sprint's experience in allowing others to offer their own branded mobile phone service (known in the business as being a mobile virtual network operator -- or MVNO). Of course, since then, a ton of MVNO efforts have failed (remember ESPN's own mobile phone service?) and the cable companies never actually moved forward with offering service on Sprint's network. There was some thought that the cable companies were still interested in something in the mobile space, and Comcast and Time Warner are a part of Sprint's WiMax offering, but clearly Cox had decided to go its own way by that point.

Even so, it's quite surprising to find out that Cox is entering the mobile phone business for real -- as in building its own network. The company has apparently been acquiring spectrum to serve its market, and negotiating with handset providers. The article is a little unclear, but it sounds like there may still be a roaming agreement with Sprint, since the article claims the phones will work on both Cox's network and Sprint's -- suggesting Cox is working on an EVDO network. However, the company also claims that it's looking at using LTE as its "4G" technology. LTE is the technology chosen by pretty much everyone else in the US but Sprint, which is betting on WiMax.

Cox claims that its mobile service will be highly integrated with the other aspects of its business, including letting people watch TV on their handsets, control their DVRs from the handsets and automatically synchronize phone address books with home computer address books. It's good to see them thinking about real integration between services, because that's still pretty rare, but those services are all going to need to work pretty well together to make it really convincing for most people. Either way, you could see this as the epilogue to the death of MVNOs. While we've already seen that most MVNO plans went nowhere, it's quite a statement when a company is now choosing to build its own damn network rather than just piggybacking on someone else's.

Filed Under: mobile, mvno, wireless
Companies: cox, sprint