As Predicted, Cox's Latest Appeal Points To SCOTUS' Refusal To Disconnect Sex Offenders From Social Media

from the which-is-worse? dept

Last week the Supreme Court managed to hold its nose long enough to properly assert that banning convicted sex offenders from social media was plainly an infringement on their First Amendment rights. While much of the media coverage focused on the question of sex offenders having access to these well-trafficked websites, the real implications of the ruling were always likely to be far more reaching. We specifically pointed to the reasonable question: if sex offenders can't be blocked from internet sites due to their First Amendment rights, how can we possibly require ISPs to disconnect those accused of piracy from the internet under even the most tortured reading of 512(i) of the DMCA? In that original post, Mike wrote:

I expect that to be quoted in many other cases -- and a big one may be the ongoing attempts right now by the legacy entertainment industry to force ISPs to kick people off of their service based on accusations (not convictions) of infringement. Those cases, like this Packingham case, involve using a law to claim that people should be blocked from using the internet. And based on the quotes above, it seems quite likely that parts of the DMCA are clearly unconstitutional. The lawsuits -- mainly the BMG v. Cox ruling which is currently on appeal, and the more recent UMG v. Grande Communications (which follows the same basic outlines of the Cox case) -- involve arguing that 512(i) of the DMCA requires ISPs to kick users off their service entirely based on accusations of infringement. As we've explained, this already appears to be a twisted interpretation of 512(i), but now it appears there's a very reasonable chance that the Supreme Court could find 512(i) outright unconstitutional under the First Amendment for broadly blocking internet access in a way that harms free speech rights.

It appears we're starting down the road of finding out exactly what the court's answer to this question will be, as Cox recently filed an appeal and has now referenced the SCOTUS decision in its written arguments.

Packingham is directly relevant to what constitute ‘appropriate circumstances’ to terminate Internet access to Cox’s customers. The decision emphatically establishes the centrality of Internet access to protected First Amendment activity.

As the Court recognized, Internet sources are often ‘the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge’.

The filing goes on to note that the government is not allowed to infringe on free speech in order to prohibit unlawful speech. If ever there were an example of that very thing, it certainly would be accused pirates being disconnected from what has now been cited as a speech medium in the internet. I'm genuinely looking forward to hearing oral arguments from the legal staff of the movie and record labels that those accused of piracy, typically on flimsy at best evidence, ought to be afforded less rights than convicted sex offenders. We've seen much demonizing of the internet in general and piracy in particular, but I'm having a hard time conjuring up the images of those lawyers managing to go that far. That's an argument that's going to need to be made, however, given the contention of Cox's latest filing.

And if it offends the Constitution to cut off a portion of Internet access to convicted criminals, then the district court’s erroneous interpretation of Section 512(i) of the DMCA — which effectively invokes the state’s coercive power to require ISPs to terminate all Internet access to merely accused infringers — cannot stand.

A win for Cox would mean much for the free speech rights of everyone in regards to internet access. A loss would mean this country's court system has some seriously skewed priorities for who should and should not be allowed access to the web.

Filed Under: copyright, disconnection, dmca, first amendment, free speech, internet access, packingham, rights, scotus
Companies: bmg, cox, rightscorp

Copyright Troll Rightscorp Ramps Up Its Efforts To Get ISPs To Push Its Payment Demands On Users

from the intended-consequences dept

Remember Rightscorp? This is the wannabe "friendlier" copyright troll, that sends smaller bills than the traditional copyright trolls. Over the years, it's actually struggled to make any money... and has struggled with some of its more bizarre legal theories. Unfortunately, in late 2015, one of Rightscorp's partners got a big ruling against Cox, arguing that Cox violated the DMCA by not properly terminating repeat infringers (as we noted at the time, this was based on a tortured interpretation of the law). The case is still winding its way through the appeals process, but Rightscorp and its partners have continued to push forward, using the ruling in that BMG v. Cox case to pressure others. At least one other ISP has already been sued.

And, now, the company is out claiming that it's talking with "top ISPs" to get them to incorporate Rightscorp's copyright trolling efforts directly into their own infringement mitigation procedures:

“An ISP Good Corporate Citizenship Program is what we feel will drive revenue associated with our primary revenue model. This program is an attempt to garner the attention and ultimately inspire a behavior shift in any ISP that elects to embrace our suggestions to be DMCA-compliant,” the company told shareholders yesterday.

“In this program, we ask for the ISPs to forward our notices referencing the infringement and the settlement offer. We ask that ISPs take action against repeat infringers through suspensions or a redirect screen. A redirect screen will guide the infringer to our payment screen while limiting all but essential internet access.”

In other words, Rightscorp's demand and payment processes would get included directly into how the ISP notifies a user that someone has discovered the possibility of infringing activity on the account. Of course, issuing a press release saying that they're "now beginning to have some initial and very thorough discussions with a handful of the top ISPs" is... weird. You do your press releases after you come to a deal, not as you're beginning a conversation with companies who almost certainly don't want to work with you. The reality here is likely that this press release is just an attempt to signal to ISPs to be more receptive. I highly doubt it will work on most large ISPs who are slightly more sophisticated than to be duped by something as silly as this.

However, the threat of the BMG case being seen as good law is still a huge problem for those ISPs and hopefully the case will get dumped, and we can all go back to watching Rightscorp fail to make any money from its plans. Remember, in the BMG case, it came out that Rightscorp had a phone script that told people it accused of infringing that if they wanted to prove they were "innocent" they had to hand their computers over to the local police department so they could perform a search. Really. Does anyone think that a company with that sort of ethical compass should be the official partner of any ISP?

On top of that, as TorrentFreak points out in its article, for all the talk of how Rightscorp is a "friendlier" copyright troll in that it only demands $20 to $30 when it finds an infringement, that's misleading. Because, like responding to spam leading to more spam, paying Rightscorp can lead to many more demands:

In the wake of several similar reports, this week a Reddit user reported that Rightscorp asked him to pay a single $20 fine for pirating a song. After paying up, the next day the company allegedly called the user back and demanded payment for a further 200 notices.

Filed Under: copyright, copyright trolling, disconnection, dmca
Companies: bmg, cox, rightscorp

First French File-Sharer Sentenced To Disconnection Under Hadopi; But Judgment May Be Unenforceable

from the talk-about-waste-of-time dept

As we've noted before, Hadopi has been a colossal failure on just about every metric, and now seems on the way out. But French taxpayers' money is still being wasted on the scheme, which continues to send out huge numbers of warnings. Ironically, given its imminent demise, Hadopi seems to have finally claimed its first disconnection victim, as PC Inpact reports (original in French.) The person involved has been sentenced to disconnection for 15 days, and must pay a €600 fine. Strangely, it seems that he or she shared only a couple of works, so even that brief period seems harsh. However, there is still scope for an appeal, so the sentence is not yet definite.

And as PC Inpact explains, even if it is confirmed, it may be unenforceable: although access to the Web can be cut, Hadopi's rules state that the filtering must not affect email, private messaging, telephone or any associated TV services. Since these are typically all provided together, that may be tricky, or even impossible. Hadopi says it only hands out suspensions: it doesn't concern itself about how -- or even if -- they can be implemented.

So after years of operation, all that the three-strikes approach has to show for the millions that have been spent, are a handful of convictions: one where someone was fined but innocent, and another where the person involved probably can't be disconnected anyway. Great work, Hadopi.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: copyright, disconnection, france, hadopi

Hollywood Lobbyist Hasn't Seen The TPP Text, Cannot Read The TPP Text, But Knows What's In The TPP Text?

from the fascinating dept

The Daily Dot's Kevin Collier has a detailed article about his experience as a journalist at the latest TPP negotiating round. He talks mainly about the various "stakeholder" presentations, which are the only access concerned groups have to the negotiators. As we've already noted, the USTR made sure to limit access to the stakeholder presentations, giving them 8 to 10 minutes (reduced from a promised 15) and then scheduling a bunch to run concurrently -- and during a time when many negotiators would likely be out to lunch. From Collier's report, we also learn that the rooms where these presentations were held only had about 20 seats in them -- and there are more than 400 negotiators. He attended the EFF's presentation, but also noted that "Attendees from a nearby presentation exited their conference room and loudly spoke outside the open door to [the EFF's Carolina] Rossini’s room, drowning out her message."

But, perhaps more interesting was Collier's encounter with Michael Schlesinger, a lobbyist for the IIPA (the International Intellectual Property Alliance -- a sort of "super group" of lobbying organizations, including both the RIAA and the MPAA, among others). The IIPA presentation immediately followed the EFF presentation, and involved Schlesinger promising to debunk the "myths" being spread by folks like the EFF. Key among them? That TPP would mandate disconnecting people from the internet. Myth, myth and more myth, Schlesigner declared: there are "no mandates to kick legitimate users off the Internet." Note the weasel word "legitimate."

However, Collier wasn't born yesterday. So he went and found the leaked draft of the IP section that was revealed back in February of 2011. And he noted that it does seem to include mandates for kicking people offline, such as saying that "effective action against any act of copyright infringement" would include things like "removing or disabling access... [and] terminating specified accounts." So, Collier went and found Schlesigner to bring this up, and Schlesinger made a remarkable admission: he claims he hasn't seen the text:

I asked him whether he stood by his presentation's claim that "TPP will result in 'kicking people off the Internet'" was a myth.

"It is," he said.

I showed him a printed-out copy of the section of the TPP leak that referred to "terminating specified accounts" of copyright infringers.

He visibly stiffened. "I'm not commenting on a leaked draft," he told me. "From what I know, the TPP framework would not force anyone off the Internet. I don't know anything about the TPP draft."

Had Schlesinger actually read the TPP, either the leaked chapter or the current draft? I can't say for sure. Legally, he can't have read the latter, because he's a federally registered lobbyist, which would bar him from seeing the text.

Got that? (1) He's not allowed to see the text. (2) He gets upset when someone points him to the leaked text. (3) He... also insists he knows, absolutely, what will not be in the text. How is that even remotely credible?

Filed Under: disconnection, lobbyists, michael schlesinger, three strikes, tpp
Companies: eff, iipa, mpaa, riaa

RIAA's Backdoor Plan For Using 'Six Strikes' Plan To Cut Off Internet Access For People

from the sneaky-sneaky dept

Following Torrentfreak's publication of a slide from a confidential RIAA presentation, they've now released another damning slide, showing (among other things) that the RIAA did not think that SOPA/PIPA would be effective in stopping music infringement: Of course, they also insist that the opposition was "activated by Google," which is flat out untrue, even though I know the RIAA folks believe it (I had a conversation with an RIAA person a few months ago, and nothing would shake his absolute conviction that the whole thing was a Google plot).

To be honest, this "confession" is not a huge surprise. While many people often lump the MPAA and RIAA together, SOPA/PIPA was almost entirely driven by the MPAA. The RIAA basically did the least amount required to officially show its support for the bill -- but all of the pushing for the bill was done by the MPAA. I had wondered if it was just a sign that the RIAA is simply running out of steam as its main members are dwindling, but now it seems clear that even they realized SOPA/PIPA was not an effective plan. Of course, when we explained why SOPA/PIPA wouldn't have been effective, supporters claimed we were behind a misinformation campaign. I guess the RIAA was a part of that campaign as well, huh?

But, perhaps even more interesting was another tidbit later in the TorrentFreak post, concerning how the RIAA views the six strikes plan. For some background, while various "three strikes" plans around the globe are focused on taking away internet connections after accumulating three "strikes" (based on accusations, not convictions), when the "voluntary" (with a big shove from the government) plan was put in place, part of the messaging was that disconnection was not an option.

However, according to the presentation, it appears that the RIAA has a backdoor plan to put in place a disconnection regime. Basically, they're noting (accurately) that the DMCA already requires that service providers who wish to retain safe harbors have a "termination policy" in place. That's true. But here's the sneaky part: the RIAA is ready to insist that a reasonable termination plan under the DMCA would require an ISP to terminate a user once they get to those six strikes. In other words, the plan doesn't require termination -- which was necessary from a PR standpoint -- but the RIAA is going to claim that the law already requires it. Sneaky, sneaky:

Some ISPs do indeed threaten to disconnect users for infringement based on a TOS violation. However, Sheckler says that the responsibilities of Internet companies go further and as carriers they are governed by legislation.

In order for ISPs to be eligible for safe harbor provision under the DMCA, she writes, they are required to have a “termination policy for repeat infringers” under “appropriate circumstances.”

So, although account disconnections aren’t specifically included in the list of “six strikes” mitigation measures agreed in the Memorandum of Understanding, the RIAA is clearly aware that if they’ve issued infringement notices against an account holder six times, then that user has a good chance of being viewed as a “repeat infringer” by their ISP – at least if prompted to do so by the RIAA.

This is the RIAA I'm used to. Using misdirection and sneaky language to get what it wants while claiming otherwise publicly.

For what it's worth, we've heard that some of the reasons for the delays in launching the six strikes plan has to do with the ISPs pushing back on RIAA/MPAA desire for disconnections to occur. I don't know how accurate that is, but it would fit with what's stated above -- and certainly suggests we haven't seen the last of this. If anything, it sounds like a lawsuit may eventually have to be filed to see if the RIAA can effectively force an ISP to terminate accounts over the six strikes plan...

Filed Under: disconnection, dmca, pipa, six strikes, sopa
Companies: riaa

German Politician Who Wanted Two-Strike Copyright Law Should Disconnect Himself After Multiple Infringements Found

from the do-as-i-say-not-as-i-do dept

One of the most noticeable trends in copyright law around the world is the way countries tend to adopt similar approaches. So after the "three strikes" law was introduced in France, the UK followed suit, and other nations are at various stages of doing the same. A cynic might almost suggest the whole thing was coordinated somehow.

To be fair, the copying is not always exact. For example, in the US, major ISPs have agreed to a “five/six strikes” plan, depending on how you count. More recently, a German politician called Siegfried Kauder has proposed a “two-strikes” law. After just one accusation from rightsholders, there's a warning; after two accusations, you'd be disconnected from the Internet for three weeks – without any need for a court order (link to German news story).

But this being the Internet age, a supporter of the German Pirate Party, Alexander Double, decided to check out Kauder's digital presence. To his amusement, he found several pictures on Kauder's official web site that seemed to have come from somewhere else. For example, the top right-hand picture on this page uses a picture from Panoramio, but with the EXIF data of the latter stripped out in the former.

After Double raised this issue in a blog post, those pictures were no longer visible on Kauder's site (the link above goes to an archive copy on the Wayback Machine to show the original state). In explanation, Kauder tried to turn things to his advantage, telling the German magazine Der Spiegel:

"Ich bin denen dankbar, die mir Gelegenheit gegeben haben zu zeigen, dass das Warnmodell funktionieren kann. Ich wurde auf die Verwendung von zwei Lichtbildern auf meiner Homepage aufmerksam gemacht, die urheberrechtlich geschützt sind. Die Fotos sind entfernt. Also: Das Warnmodell funktioniert."

or, roughly translated:

"I'm grateful to those who have given me the opportunity to show that the warning model can work. I was made aware of two photos on my Homepage that were protected by copyright. The photos have been removed. So the warning model works."

End of the story, you might have thought: he seems to admit that he shouldn't have used them but, as he says, the notice he received ensured that they were removed from his site.

But as people continued digging into that site, they found that some of the images were still there on the server, just not visible. Moreover, there were other photos that seemed to have come from elsewhere – for example, the left-hand part of the home page's banner image looks like it was borrowed from here. As Alexander Double pointed out, that makes *two strikes* in all: if Kauder's law had been in force, his Internet connection would be cut off for three weeks, no judge required.

This entertaining saga shows a number of things. That, once more, the politicians most keen to bring in severe laws against copyright infringement – indeed, against just alleged copyright infringement – themselves often break them. And even if this happened by accident, it goes to show just how easy it is for people to break the law without realizing it; and yet that would presumably not be admitted as a defense. It also shows that Kauder's "warning" system doesn't work: he was warned, and removed some images, but left others that appear to infringe.

Even Kauder's colleagues in the pro-copyright CDU are distancing themselves from what are being called “Kauder-Strikes” (with the follow-on scandal about the unauthorized images being dubbed “Kaudergate”). Here's what the politician Peter Altmaier tweeted:

Kauder-Strikes geht gar nicht: Wer Bücher klaut ist kriminell, aber man nimmt ihm nicht die Lesebrille weg.

That is:

Kauder-Strikes are just not on. Someone who steals a book may be a criminal, but we don't take away their reading glasses.

And yet that is precisely what the “three strike” laws and their variants around the world are trying to do.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: copyright, disconnection, germany, siegfried kauder, two strikes

Libya Disconnects From The Internet... Because That Worked So Well In Egypt

from the the-best-laid-plans dept

Late Friday, Libya followed Egypt's trailblazing in shutting off the internet for the entire country. Of course, after Egypt did this, it quickly discovered that it didn't work and only served to increase the resolve of protesters. On top of that, it was a serious economic blow to the Egyptian economy for the week it was offline. Given those lessons, you would think that other countries would know better than to do the same, but apparently that's now how various authoritarian leaders think these days.

Filed Under: disconnection, internet, libya

MPAA Threatens To Have Google Disconnected From The Internet Over File Sharing?

from the ah,-the-power-of-false-threats dept

While Homeland Security insists that Google is different than the sites whose domain names its seized lately, its agents haven't done a very good job of explaining why (beyond "in our minds, it's different.") However, at least according to the automated script the MPAA uses to warn ISPs of file sharing, perhaps Google isn't all that different. The MPAA -- who, it should be noted -- was a major driver for the domain name seizures -- sends out form letters warning people they could lose their internet access over file sharing, and over at TorrentFreak, they've noticed that Google's been on the receiving end of a bunch of these threats lately. Mostly at issue are situations where people are using Google's free WiFi that's provided mainly in Mountain View, but in some cases it appears to involve employees working from Google's headquarters. Of course, the chances of Google losing internet access over such threats is less than nil, but it's amusing to see the MPAA still include the baseless threat.

Filed Under: copyright, disconnection, file sharing, mpaa
Companies: google, mpaa

UK Gov't's Response To Petition Against Disconnections: We've Redefined Disconnection

from the it's-still-a-disconnection dept

Just as David Cameron has announced plans to review UK copyright laws (yet again) and the UK High Court announced the (somewhat surprising) news that it will do a judicial review of the Digital Economy Act, the UK government also responded to a petition that was filed by opponents of the Digital Economy Act. The petition asked for the repeal of the Digital Economy Act, claiming that it was not fair to have users disconnected from their internet connections. The government's response is a bit frustrating in its use of unsupported claims and what appears to be a willful misunderstanding of the complaint:

It is clear that online copyright infringement inflicts considerable damage on the UK's creative economy including music, TV and film, games, sports and software. Industry estimates place this harm at £400m pa.

The Digital Economy Act includes a number of measures to tackle the problem and we expect these to be successful in significantly reducing online copyright infringement. However this is an area of rapid technological change and developing consumer behaviour. The Act therefore includes a reserve power to introduce further "technical" measures if the initial measures do not succeed. These technical measures would limit or restrict an infringers' access to the internet. They do not include disconnection.

First off, that first sentence is silly. The government should never cite an industry's own stats when that industry is asking for protectionism -- especially when tons of independent studies have shown that such industry estimates are completely inaccurate. Second, pretending that "limiting or restricting infringers' access to the internet" does "not include disconnection" is playing a rather obnoxious game of semantics. If you're blocked from accessing the internet, you've lost your connection, and thus have been disconnected. This isn't the first time it's done so. During the run up to the vote on the bill, we noted that the politicians supporting it had decided to make sure not to call account suspensions disconnections. Effectively, they're trying to redefine "disconnection" to only mean a permanent disconnection. A "temporary suspension," is not a disconnection in their book of misleading propaganda.

Of course, to anyone who loses their internet connection, no matter what the length of time, it certainly is a disconnection. Calling it something different doesn't change that. It's pretty sad when the UK government officials can't even be intellectually honest on such a straightforward issue.

Filed Under: digital economy act, disconnection, petition, uk

Mandelson Gets To Choose How Long Your 'Temporary' Suspension Would Be

from the forever-minus-a-day? dept

Remember how the UK was just playing a word game by claiming that it wouldn't disconnect users from the internet via Peter Mandelson's Digital Economy Bill? That was quickly debunked, as people realized that the gov't was simply changing how it described the disconnection, calling it a "temporary account suspension" instead. Of course, that's still a disconnect. Another unresolved question, however, was how long is temporary? Turns out the answer is however long Peter Mandelson thinks is appropriate.

Filed Under: digital economy bill, disconnection, peter mandelson, temporary account suspension, three strikes