RIAA Realizes It Sued Charter Over A Bunch Of Songs It Doesn't Hold The Copyrights For

from the oops? dept

It's been a year since the RIAA sued Charter Communications, using the same strategy it had used against smaller ISPs Cox and Grande Communications -- that the DMCA actually requires internet access providers to completely kick users off upon the receipt of multiple (unproven) claims of copyright infringement. The RIAA has been plotting out this strategy for the better part of a decade.

For years, we've pointed out a number of problems with this, starting (most importantly) with the fact that accusations are not actual proof of infringement. And to kick people off of their sole access to the internet based solely on accusations would represent a real problem. As first noted by TorrentFreak, Charter has finally filed its answer, defenses, and counterclaims to the complaint. There's a lot of interesting stuff in there, but a key part: the RIAA and its labels and publishing partners quietly admitted that they were suing over songs they did not hold the rights to. That's kind of a big deal. Indeed, it reminds me of the revelation in the infamous Viacom/YouTube lawsuit that Viacom was suing over songs it had uploaded itself for marketing purposes.

From the counterclaims:

On January 15, 2020, Plaintiffs amended the list of works in suit, removing over 450 works from this case (the “Dropped Works”).

The Record Company Plaintiffs dropped 272 sound recordings and the Music Publisher Plaintiffs dropped 183 music compositions.

Upon information and belief, Plaintiffs dropped at least some of these works because they do not “own and/or control in whole or in part the copyrights and/or exclusive rights” the works.

Indeed, Plaintiffs dropped these works after they were ordered to produce further documentation relating to their purported ownership or ability to assert the works in suit in this case.

Despite later dropping these works the Record Company Plaintiffs, or their agent acting on their behalf, nevertheless sent notices to Charter in connection with the Dropped Works, claiming that they “have identified a user … reproducing or distributing an unauthorized copy of a copyrighted sound recording” and that the recipient of the notice “may be liable for infringing activity occurring” on Charter’s network. The Record Company Plaintiffs further claimed in their notices that the user’s “Internet account was used to illegally copy and/or distribute copyrighted music over the Internet” and that the notice contained “the details of the illegal file-sharing, including the time, date, and a sampling of the music shared.” The Record Company Plaintiffs’ notices “assert that the information in the notice is accurate” and that they “have a good faith belief that this activity is not authorized by the copyright owner, its agent, or the law.” The notices further stated that “[u]nder penalty of perjury,” “the RIAA is authorized to act on behalf of its member companies in manners involving the infringement of their sound recordings, including enforcing their copyrights and common law rights on the Internet.”

While the Music Publisher Plaintiffs did not send any notices for the music compositions in suit to Charter, the Music Publisher Plaintiffs’ infringement claims in this case purportedly rely on notices sent by the Record Company Plaintiffs to Charter, including those for the Dropped Works.

Upon information and belief, at least in connection with the Dropped Works, the Record Company Plaintiffs sent notices to Charter with inaccurate information, including but not limited to the misrepresentation that the RIAA was authorized on behalf of Plaintiffs to send a notice relating to these allegedly infringed works, that the Record Company Plaintiff on whose behalf the notice was sent owned or controlled the work, and that the actions alleged to have been taken by Charter’s subscribers constituted infringement of the Record Company Plaintiffs’ rights

The counterclaims go on to note that many of the works that have now been dropped due to the fact that the RIAA and its partners did not hold the copyright were the same songs that were previously used in the Cox Communications case:

Many of the same record companies and music publishers that are in this case pursued damages in Sony Music Entertainment et al. v. Cox Communications, Inc. et al, Case No. 1:18-cv-950 (LO/JFA) (E.D. Va.) (“Sony”) for certain of the Dropped Works, and the jury returned a verdict for certain of the Dropped Works in an amount of nearly $100,000 per work.

Yikes.

Now, some may claim that it doesn't really matter if the RIAA and its various partners held the copyright in these works, but it absolutely does for a whole variety of reasons. Most obviously, you can't sue over copyrights where you don't hold the copyright. But, it also shows the incredible sloppiness with which the RIAA and the labels and publishers go about determining "infringement." And that's why we keep pointing out that it very much matters whether you're kicking people off based solely on "accusations." When you're carpet bombing DMCA notices with an automated system, and no one competent seems to be overseeing the process, you get a ton of mistakes. And having people lose all internet access based on mistakes should be seen as a real problem.

The filing goes on to cite numerous examples of the RIAA and its partners mis-identifying infringement (including citing Techdirt), as well as the excellent and important study on DMCA takedown mistakes by Jennifer Urban, Joe Karaganis, and Brianna Schofield.

And, thus as part of the counterclaims, Charter is making a DMCA 512(f) claim of "knowingly sending materially inaccurate notices." As we've discussed for a while, 512(f) is mostly a dead letter, but it would be nice if someone actually got called on abusive takedown notices. The fact that the RIAA and its partners here, nearly a year after filing suit, suddenly dropped hundreds of songs after being asked to show proof that they actually hold the copyright... seems like as good a target as any.

The other parts of the counterclaims are also interesting. Charter makes the (important) point that it cannot and should not be expected to spy on every action by its users, and therefore it's silly to hold Charter liable for copyright infringement by its users. It would be nice if a court actually recognized that fact, but to date, it's been a struggle.

Filed Under: copyright, dmca, lawsuits, repeat infringer policy
Companies: charter, charter communications, riaa

Magistrate Judge Says Grande Shouldn't Be Able To Use The DMCA Safe Harbors Because It Didn't Really Terminate Infringers

from the one-piece-of-the-puzzle dept

We've written a few times about a key DMCA case in Texas, involving the ISP Grande Communications and Universal Music Group (and, by proxy, the copyright trolling operation Rightscorp). The case has had a lot of up and downs, with the judge tossing UMG's "vicarious infringement" claims, while letting the "contributory infringement" claims move forward. In October, the court rejected UMG's attempt to bring back the vicarious infringement claims which had already been dismissed, with some fairly harsh words directed at UMG for attempting that.

The latest, as first noted by Torrentfreak, is that the magistrate judge has recommended rejecting Grande's use of the DMCA safe harbor defense. I still have general issues with the idea that the "repeat infringer" part of the DMCA is being accurately described in these cases (specifically: the courts are now applying it to accusations of infringement, rather than actual infringers, which requires a court adjudication). However, the magistrate basically points out that Grande can't make use of the safe harbors because... it had no repeat infringer policy at all. Or, rather, it did, but in 2010 it stopped using it, and then never had a policy through 2016.

So, without a policy, they couldn't have reasonably implemented it... and thus, no safe harbors. Given the facts of the case, that's perhaps not that surprising. The DMCA requires you to have a reasonably implemented policy (Cox lost its similar lawsuit not because it didn't have a policy, but because it didn't follow its own policy).

Of course, that doesn't necessarily mean that UMG is going to win the case. Not having the safe harbor makes it harder for Grande, but not fatal. UMG will still need to prove contributory infringement, which is going to be fairly difficult to show. Earlier in the case, the court had noted "that this is not yet a well-defined area of law, and that there are good arguments on both sides of this issue." Effectively, UMG will need to show that Grande "induced" infringement by its actions, and Grande will claim it did no such thing. But it can't just use the DMCA safe harbors to get the case dismissed, rather it will need to focus specifically on the question of whether it induced people to infringe.

Filed Under: contributory infringement, copyright, dmca, repeat infringer policy, safe harbors
Companies: grande, grande communications, riaa, rightscorp, universal music group

Sensing Blood In The Water, All Major Labels Sue Cox For 'Ignoring' Their DMCA Notices

from the copyright-trolling-showdown dept

For years, we've noted that the major record labels have been drooling over the idea that the DMCA might allow them to force ISPs to kick people entirely off the internet based on mere accusations of piracy. This is problematic for all sorts of reasons (as you might imagine). However, the record labels feared testing this idea in court, because it might not turn out the way they wanted it to. However, as we covered on Techdirt, a few years back, music publisher BMG, with the assistance of copyright trolling operation Rights Corp. went after ISP Cox, claiming that it had failed to kick people off under the DMCA.

That case was an utter mess, not helped at all by the fact that it was handled by Judge Liam O'Grady, who flat out mocked the idea that the internet was important, and made it clear he didn't see any issue at all with banning people from the internet. Here's how he responded to an attempt by the EFF to file an amicus brief pointing out the problems with kicking people off the internet:

I read the brief. It adds absolutely nothing helpful at all. It is a combination of describing the horrors that one endures from losing the Internet for any length of time. Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it's completely hysterical.

The whole case was a complete mess -- and it was made worse by some bad choices by Cox, including not really following its own stated DMCA repeat infringer policy. O'Grady's ruling was bad, and unfortunately the appeals court upheld it. However, at least the Appeals Court made it more or less clear that they weren't saying every ISP had to kick people off the internet -- but rather that Cox lost its DMCA safe harbors by not following its own DMCA policy. While much attention was paid to the claim that Cox's policy amounted to a "13 strike" policy before you might lose access, the appeals court notes it's not the number of strikes that matters, so much as whether or not the company follows its own policy -- and Cox did not.

Of course, another part that came out during the trial is that Cox was getting so completely bombarded by Rights Corp takedown notices (which doubled as demands for money), that Cox felt it needed to put in place systems to deal with the spam, which included limiting how many notices it would accept each day. Between the ruling in the original BMG case, and the revelations about Cox's own practices, the RIAA clearly sensed blood in the water, and a chance to prove its point. And, thus, it has a massive lawsuit against Cox. It's basically all of the major labels using the earlier case as evidence of some grand conspiracy to profit off of piracy.

Cox 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, however, Cox also 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. Cox’s contribution to its subscribers’ infringement is both willful and extensive, and renders Cox equally liable. Indeed, for years, Cox deliberately refused to take reasonable measures to curb its customers from using its Internet services to infringe on others’ copyrights—even once Cox 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 Cox, under penalty of perjury, advising Cox of its subscribers’ blatant and systematic use of Cox’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, Cox unilaterally imposed an arbitrary cap on the number of infringement notices it would accept from copyright holders, thereby willfully blinding itself to any of its subscribers’ infringements that exceeded its “cap.”

Cox also claimed to have implemented a “thirteen-strike policy” before terminating service of repeat infringers but, in actuality, Cox never permanently terminated any subscribers. Instead, it lobbed “soft terminations” with virtually automatic reinstatement, or it simply did nothing at all. The reason for this is simple: rather than stop its subscribers’ unlawful activity, Cox prioritized its own profits over its legal obligations. Cox’s profits increased dramatically as a result of the massive infringement that it facilitated, yet Cox publicly told copyright holders that it needed to reduce the number of staff it had dedicated to anti-piracy for budget reasons.

Given the mess of how Cox handled DMCA notices and its repeat infringer policy, this case is going to be a tough one for it to fight off. But the actual stakes are huge. The RIAA wants to be able to kick people entirely off the internet based purely on accusations -- even if they're bullshit. We should be very concerned about it.

And to increase the level of concern: this new case has been assigned to... Judge Liam O'Grady. Needless to say we'll be watching it closely.

Filed Under: copyright, dmca, isps, kicking people off the internet, liam o'grady, repeat infringer policy
Companies: cox, emi, sony music, universal music, warner music

If You're Angry About Twitter Banning Someone 'Permanently' For Sharing Olympics GIFs, Blame Copyright Law

from the bad-law-creates-bad-ideas dept

Over on LinkedIn a guy named Jim Weber wrote about how he was banned permanently from Twitter because he shared a few GIFs from the Olympics.

It all started when I saw a GIF of her sublime first pass on the floor routine two weeks ago on the front page of Reddit. Wanting to share what an awesome moment this was, I downloaded the GIF and uploaded it to Twitter with these four words: "Aly Raisman: She's good."

[To be fully transparent, I also tweeted GIFs of this awesome Japanese wrestler celebrating with her coach and this incredible Perfect 10 by a Chinese diver during the games.]

I had read that the IOC was banning the press from using GIFs but I didn't see how that applied to me. Sure, I didn't have the rights to any footage at the Olympics — just like countless blogs and users don't have rights to the NFL, NBA, MLB, NHL and NCAA footage that they create GIFs out of and profit from every day.

Weber notes that he figured the worst that would happen is that those tweets would get taken down. Instead, his account was banned. Permanently (though, as it turned out later, not really). The story has gone pretty viral (on Twitter, naturally), with lots of people expressing anger at Twitter. It also appears that soon after the story started spreading, Twitter actually changed its mind and put back his account.

Here's the thing, though: if you want to get upset about this, don't get upset at Twitter. Get furious at parts of the DMCA and how some courts have interpreted it lately (and the International Olympic Committee -- it almost always deserves the anger that is pointed in its direction for its extreme protectionist/copyright policies). But remember, not too long ago, the ISP Cox lost big time in an important DMCA case, at the key issue that swayed the judge was the lack of a competent "repeat infringer policy." And what was one of the key things in that case? The fact that Cox didn't permanently ban people.

So if you're the legal team at Twitter, and you're keeping up on the caselaw, you better believe that you're going to make sure that you have a serious "repeat infringer policy" that kicks people off permanently for sharing a few pieces of copyright-covered material. Because even as basically everyone is saying "what? you shouldn't lose your account permanently for sharing a few happy gifs from the Olympics," in court it would be spun as "Twitter has a history of failing to reasonably implement a repeat infringer policy, as required by the DMCA in Section 512(i)(1)(A)." And if the Olympics or whoever gets a judge like the one in the Cox case, who doesn't seem to care much about whether people use the internet or not, Twitter might just lose.

Yes, Twitter probably could have handled this a lot better, but if you want to get angry, get angry that copyright law is so fucked up these days.

Oh, also, this is a decent reminder to be at least somewhat careful about relying too much on anyone's platform. Weber claims to recognize that...

Not only do I not plan to start a new Twitter account, I'm hesitant to post anything to social media platforms such as Facebook, Instagram or Snapchat with the knowledge that they can and will permanently shut down your account with the snap of their fingers.

... except his post about all of this is published on LinkedIn, which is really no different than any of the other social media platforms he listed above. So there's a bit of irony in declaring that he's hesitant to post on social media platforms... on a social media platform.

Filed Under: copyright, dmca, jim weber, olympics, repeat infringer policy
Companies: twitter

Just About Everything About Twitter Suspending Deadspin And SBNation Accounts Is Ridiculous

from the copyright-law-is-ridiculous dept

Yesterday on Twitter, there was a big discussion over the fact that Twitter had disabled two well-known sports media Twitter feeds, both for supposedly infringing on copyrights by posting GIFs of sports highlights. Almost everything about this story is ridiculous and highlights just how screwed up copyright law is today. Let's count the ways:

1. The idea that these GIFs were infringing seems ridiculous. There's a very, very, very strong fair use argument here. They were showing tiny (sound-free) tidbits from college and professional football games. No one is using these in place of watching the actual games. In fact, these GIFs almost certainly act as strong advertising for getting people to actually watch games.
2. The idea that Twitter suspended these accounts is somewhat understandable, but still ridiculous. Yes, the DMCA in 512(i)(1)(A) requires service providers to implement a "repeat infringer policy," and that policy must "provide for the termination" of said repeat infringers. So, for this bit of ridiculous, we can blame the DMCA that sort of forces this on Twitter.
3. Even so, we can still blame Twitter somewhat for not standing up to the NFL and XOS Digital (which has the broadcast rights for a bunch of college football games) and saying "this is fair use."
4. Even given the requirement to terminate repeat infringers, doesn't it seem totally screwed up that a major channel for major media properties can simply be disappeared? This is, again, an example of why the Section 230 safe harbors are so much better than the DMCAs. Deadspin and SBNation weren't "pirate sites." They were doing something that tons of professional media have done for ages -- and suddenly they lost their accounts? That's ridiculous.
5. What the hell are the NFL and XOS Digital thinking? The NFL has claimed that it never asked for the accounts to be shut down -- it just wanted the tweets with the GIFs to be taken down. But, of course, that makes no sense. Under the DMCA, again, if the tweets are infringing, at some point it will hit the "repeat infringer policy" so the NFL's statement is meaningless, and suggests a lack of knowledge of copyright law. Given that this is the same sports league that flat out lies at the end of every game with its copyright message that claims you can't even repeat "accounts of the game" without "express written permission," perhaps it's not a surprise that it wouldn't understand this part of copyright law either.
6. What the hell are the NFL and XOS Digital thinking, part II. Who the hell is this helping? I'm assuming that both will make vague references to protecting their copyrights and about how valuable broadcast deals are. But, again, no one who put more than 3 seconds into thinking about this thinks that people are suddenly going to give up on their expensive cable package because they can watch GIFs on Twitter. That's not how this works. And really, if their broadcast deals are so fragile as to be undermined by GIFs on Twitter, perhaps there's a bigger problem there to address.

All in all, the whole thing is yet another example of the ridiculous things that come about because of our dopey copyright system.

Filed Under: copyright, dmca, fair use, football gifs, gifs, repeat infringer policy, takedowns
Companies: deadspin, gawker, nfl, sbnation, twitter, vox, xos digital

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