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Electronic Frontier Foundation The Courts The Internet The Media Your Rights Online

Judge Wipes Out Safe Harbor Provision In DMCA, Makes Cox Accomplice of Piracy (arstechnica.com) 223

SysKoll writes: The DMCA is well-known for giving exorbitant powers to copyright holders, such as taking down a page or a whole web site without a court order. Media companies buy services from vendors like Rightscorp, a shake-down outfit that issues thousands of robot-generated take-down notices and issues threats against ISPs and sites ignoring them. Cox, like a lot of ISPs, is inundated with abusive take-down notices, in particular from Rightscorp. Now, BMG Rights Management and Round Hill Music are suing Cox for refusing to shut off the Internet access of subscribers that Rightscorp accused of downloading music via BitTorrent. Cox argues that as an ISP, they benefit from the Safe Harbor provision that shields access providers from subscribers' misbehavior. Not so, says U.S. District Judge Liam O'Grady. The judge sided with the media companies ahead of trial, saying Cox should have terminated the repeat offenders accused by Rightscorp. Cox's response is quite entertaining for a legal document (PDF): its description of Rightscorp includes the terms "shady," "shake-down," and "pay no attention to the facts." O'Grady also derided the Electronic Frontier Foundation's attempt to file an amicus brief supporting Cox, calling them hysterical crybabies.
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Judge Wipes Out Safe Harbor Provision In DMCA, Makes Cox Accomplice of Piracy

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  • by Anonymous Coward on Tuesday November 24, 2015 @02:26PM (#50995829)

    If ISPs want to function in a way that disregards their common-carrier status, then they should be responsible for what's on their networks. Let's see how they feel about common carrier status when they're legally liable for child porn transmitted by third parties over their networks.

    • Re: (Score:2, Interesting)

      by Anonymous Coward
      That should also means that regular phone companies would be liable because two terrorists planned a bomb attack over the phones...
      • by Anonymous Coward on Tuesday November 24, 2015 @02:36PM (#50995915)

        You've missed the point.

        ISP's have been trying to get out of the FCC imposing Title II common-carrier status upon them. They're whining and crying and pitching toys out of their crib left and right.

        Now, they've just lost DMCA Safe Harbor. The *AA's are going to tear the ISP's a new asshole unless they kowtow to the FCC and beg to get under common-carrier Right Fucking Now(tm).

        Once they're common-carriers, everyone wins. Except the *AA's, but nobody likes them anyway. Fuck 'em.

        • Re: (Score:2, Informative)

          by Holi ( 250190 )
          Actually they have lost nothing yet as this has not gone to trial. I am sure this judge's comments will be used either to force his recusal or to get a pretty instantaneous appeal.
          • Actually they have lost nothing yet as this has not gone to trial. I am sure this judge's comments will be used either to force his recusal or to get a pretty instantaneous appeal.

            Wrong. I haven't looked at the actual case, but based on the summary, the judge must have issued a ruling overriding a request for dismissal of one or more counts that were predicated on the protections of the DMCA, and to do this, the judge would have to state his reasoning why. This ruling and its reasoning can then be used by other litigants in their lawsuits as precedent. The problem with this ruling is that judges don't like making new case law so they always prefer to find some other judge who has

        • It looked to me like Rightscorp wants the ISPs to forward their $20 a song settlement demands, and that once the ISP does that they're off the hook again. The ISPs didn't want to hand over their customers for a variety of reasons. But from what I can tell these two (very large) businesses will work something out without the messiness of title II
      • by prunus.avium ( 4301083 ) on Tuesday November 24, 2015 @03:07PM (#50996163)

        No, because regular phone companies fall under the "common carrier" laws. This basically means that they can't be held liable for what goes over their lines but they have to abide by the FCC regulations.

        ISPs - the big ones, anyway - are trying to have it both ways. They want the protection of being a common carrier - no lawsuits for content - but without the annoying FCC regulations like net neutrality.

        They're basically trying to say, "We don't know what's in the packets but we want to throttle the data based on what's in the packets."

        • Re: (Score:2, Interesting)

          by Anonymous Coward

          Cox however, which is who the defendant is in this case is not one of those providers trying to have it both ways. They do not throttle or cap like Comcast or TW. Cox has been a supported of customer privacy which is why they shut off Internet rather than handing over customer data like Comcast. This means that the RIAA and MPAA cannot sue the customer and this is why Cox is a target.

          Cox has always practiced net neutrality, it is a shame they get lumped in with the rest of the crap.

      • And cell phone ones are liable for cell bombs as well.

      • by MrLint ( 519792 )

        Did you willfully ignore the first part of that post "If ISPs want to function in a way that disregards their common-carrier status,"

        If you don't disregard your common carrier status then... etc.

        The phone companies have common carrier status, and for the exact hypothetical you posted, keep it that way. Its the ISPs that don't want to be covered under common carrier (for some reason [cough monopolies])

    • by Holi ( 250190 )
      Considering that ISP's have only been classified as Title 2 since this year (something they fought tooth and nail against) your comment rings somewhat false and naive. You want to know how they feel about common carrier status, then read about the FCC decision. It's all out there. Why do you think the DMCA had the safe harbor provision, because ISP's were not common carriers. Also I am not sure how not working with Rightscorp is somehow disregarding common carrier, wouldn't it be embracing their common carr
    • Carriers aren't responsible. Try suing a telco because terrorists used mobile phones. Also, am I the only one disturbed that the judge sided with one side BEFORE the trial?! That should be grounds for an instant judge-replacement and suspension pending investigation!
    • ISPs aren't common carriers and have never been common carriers. The FCC doesn't classify them as common carriers either. Really that's of no relevance though.

      The DMCA allows that the ISP (if it is not the creator of the content) has a safe-harbor... which unfortunately has meant dick. See for example Viacom v. YouTube where Viacom sued Youtube and it took YEARS and MILLIONS OF DOLLARS for Youtube to prevail using that "safe harbor". That's not a safe harbor.

      The DMCA is a piece of crap, written by idiot

      • Re: (Score:3, Informative)

        by Letophoro ( 1417231 )

        ISPs aren't common carriers and have never been common carriers. The FCC doesn't classify them as common carriers either. Really that's of no relevance though.

        Actually, ISPs are classified by the FCC as common carriers [arstechnica.com] and are actively fighting to not be classified as such.

        Other than that, I am in agreement with you.

  • by Anonymous Coward

    Everyone with some kind of registered copyright should file a DMCA complaint against anything the judge has online.

  • by zAPPzAPP ( 1207370 ) on Tuesday November 24, 2015 @02:31PM (#50995877)

    If the judge is clearly siding with one party ahead of trial, shouldn't they be able to get him off this case on grounds of being biased?
    Or is this also not a thing in the funky US justice system?

    • Re: (Score:2, Funny)

      by Anonymous Coward

      But we don't want that just yet.

      After all, then cox couldn't return with the statement:
      "We discovered the IP information provided by RightsCorp identifies one U.S. District Judge Liam O'Grady, who's service was terminated now in compliance with U.S. District Judge Liam O'Grady's interpretation of US law."

      • Nothing would be sweeter than if this judge were kicked off the Internet at his home because of his IP matching a Rightscorp complaint. He's literally taking the position that this should be the law of the land, so why not?
    • by Ubi_NL ( 313657 )

      At least know we know who contributed to his election campaign =)

      • by Martin Blank ( 154261 ) on Tuesday November 24, 2015 @03:10PM (#50996199) Homepage Journal

        He's a federal judge. He was appointed, not elected.

        • And if the assertion he used to be a lawyer for Disney is true, he was bought and paid for long ago, and has no business covering these kinds of trials since he's already drank the koolaid of the copyright lobby.

          One has to wonder if he's still getting any financial considerations, or if he's doing this shit for free.

          Either way, if he's saying unsubstantiated accusations by an entity like Rightscorp should have any legal standing to be used as proof of anything, he's a terrible judge.

          • Liam O'Grady [wikipedia.org] is also the judge presiding over the extradition proceedings against Kim Dotcom. Cox was t-u the moment the case entered his courtroom. If I was Cox, I'd spin off whatever the portion of the company is that does business in the Eastern District of Virginia (having it lease the hardware infrastructure from a separate, spun-off child) and let it go belly up. Once life becomes inconvenient for all those people who live in that district and commute to DC, other forms of corruption will prevail.
        • And you assume that a closed-to-the-public appointment process means there's no campaigning? I'm quite certain that many if not most appointees vie fiercely for their nomination and approval, just not among the rabble who get no say in the matter.

    • Re: (Score:2, Informative)

      by geekmux ( 1040042 )

      If the judge is clearly siding with one party ahead of trial, shouldn't they be able to get him off this case on grounds of being biased? Or is this also not a thing in the funky US justice system?

      Bias being grounds for removal? Hell no. Not even when it's blatant.

      Sorry, perhaps I should clarify first.

      Our legal system has fuck-all to do with "justice" anymore.

    • by gstoddart ( 321705 ) on Tuesday November 24, 2015 @02:47PM (#50996015) Homepage

      the funky US 'justice' system?

      When 'justice' is defined by corporate interests, it's time to stop pretending 'justice' has anything to do with it.

      This is about corporations demanding the right to have 3rd party actors make unsubstantiated accusations, and without proof force ISPs to kick people off the internet because corporations say so.

      Because they keep buying more badly written laws which basically lets them do anything they want without oversight or penalty by simply claiming copyright infringement.

      But somehow I bet the people who claim about 'activist judges' will say this is perfectly OK, because it's in the interests of corporations.

      This shit has to stop.

      • Re: (Score:2, Informative)

        by JackieBrown ( 987087 )

        When 'justice' is defined by corporate interests, it's time to stop pretending 'justice' has anything to do with it

        Both sides are large corps on this case.

        But somehow I bet the people who claim about 'activist judges' will say this is perfectly OK, because it's in the interests of corporations.

        This shit has to stop.

        I really doubt this. Even Rush Limbaugh has come out on the side of ad blockers and fair use.

        • by lgw ( 121541 ) on Tuesday November 24, 2015 @06:10PM (#50997707) Journal

          There are three parties in the US now:
          * The Left, not materially represented in Congress, but Bernie Sanders is an example of a Left politician.
          * The Right, not materially represented in Congress, but Ben Carson is an example of a Right politician.
          * The Donor Party, which includes the vast majority of Democrats and Republicans in government (at least at the federal level), and which gets great and responsive representation.

          Our government is very attentive and responsive to the best interest of the constituents who sent them to office. The problem is those constituents are the big money donors, not the people who are voting Democrat or Republican.

          It's structurally possible to fix this though primary elections, and by "primary-ing out" incumbents. But we, the voters, need to start caring more about evicting the Donor Party guys than about whether Left or Right win. The Donor Party games us every year by calling the non-Donor Party guys "extremists" for daring to represent what the people actually want. Can we stop caring about how the mainstream media describes candidates? I'm doubtful, but it's possible.

          • If we had scaled representation as the population of the nation grew, it would be much more difficult to buy representatives.

            Representation at levels we had when the country was founded would result in over 9,000 representatives today-- over 500 from LA and New York city each.

            Likewise- Senators are grossly unrepresentative with some citizens having one senator per 280,000 citizens while other states have one senator per 19,000,000 citizens.

            If states had been kept smaller and were divided by roughly equal po

      • That is the problem what happens when they issue a notice that turns out to be without merit, the subscriber's account is suspended, the ISP looses reputation and money for allowing it, and the outsourced dmca engine just keep auto generating more notices. Does the ISP get to say to them these are the subscribers who's services where suspended without cause these are the ones that left and here is bill for that lost revenue? does the subscriber get to charge them for hook up fees when they move to a new ser

        • Does the ISP get to say to them these are the subscribers who's services where suspended without cause these are the ones that left and here is bill for that lost revenue? does the subscriber get to charge them for hook up fees when they move to a new service or damages when their accounts are suspended?

          No, because the only penalty in the DMCA levied against the accuser is for falsely stating who you are. So if I claim that I'm Steven Tyler and you violated "my" copyrights by sharing "my" songs, I could ge

          • Just a thought that if they are complicit because the traffic passed over their network do they now have monitor all traffic for copyright infringing content including decrypting encrypted communications. How does this work in the current legal framework and still allow the business to exist?
               

        • The subscriber could always sue them for issuing a baseless DMCA takedown request - there is after all hypotherical legal repercussions to doing so. You just have to be willing to spend a lot of legal fees to (maybe) subject them to a slap on the wrist.
          *sigh*

          • by gstoddart ( 321705 ) on Tuesday November 24, 2015 @04:42PM (#50996983) Homepage

            Well, the hypothetical penalty was written by the same people who paid for the law ... it basically allows them to say "ooops, we really believed that but we were wrong".

            With a wink and a nudge they can simply claim incompetence, and magically everything is OK.

            ALL of these laws bought and paid for by the copyright lobby basically give them huge amounts of leeway to do anything, and ultimately they have no penalties. They can misuse those laws all day long, and nothing will happen to them -- because that was designed into it to allow them to do shit like this.

            They have no actual burden of proof, and want to reduce that even further to the point of "we've accused this guy of downloading, you need to cut him off from the internet to stop him"; they want to be able to have innuendo count as proof to save them the trouble. And they want no repercussions when they misuse it.

            Welcome to the oligarchy, they've stacked the laws so heavily in their favor we can't win, and they've passed on the cost of policing their "rights" to everyone else.

            • Well, the hypothetical penalty was written by the same people who paid for the law ... it basically allows them to say "ooops, we really believed that but we were wrong".

              The "hypothetical penalty" in the DMCA may be toothless, but there are other things the subscriber could sue for. There is libel, where the takedown was sent to a third party causing harm to the subscriber's reputation. Depending on what the takedown was for, there could be tortious interference with contract or business expectancy, if the takedown was for anything affecting the financial condition of the subscriber. There is civil extortion, AKA fraud, if the subscriber can show the takedown was issued

    • by bws111 ( 1216812 )

      No, it is not a 'thing', because if it was a 'thing' nothing would ever procede. It is not unusual for there to be lots of pre-trial motions filed, etc. Remember the SCO v IBM case? All that stuff was pre-trail, and it went on for years. And in every one of those motions, someone is going to win and someone is going to lose. That in no way indicates bias on the part of the judge, even if every ruling goes one way. His job is, after all, to judge.

      Bias would be if the judge had some reason to favor one

      • RTFA: "...the judge wouldn't allow the Electronic Frontier Foundation and Public Knowledge to file an amicus brief supporting Cox. In fact, O'Grady went out of his way to slam that brief."

        So yes there's evidence of bias. Judge probably thinks the internet is a series of tubes....
    • by Etherwalk ( 681268 ) on Tuesday November 24, 2015 @03:16PM (#50996261)

      If the judge is clearly siding with one party ahead of trial, shouldn't they be able to get him off this case on grounds of being biased?
      Or is this also not a thing in the funky US justice system?

      Law suits happen in stages which are established largely by procedural rules. Deciding against one party on a motion isn't enough of an indicator of bias to get a judge removed.

      Decisions about a conflict in the facts claimed by either side are made by a jury; decisions about the law are made by a judge. Sometimes you can get rid of some questions before the trial goes to a jury by just looking at the law. Like if both parties agree that I was really mean to you, but the law says being really mean isn't something you can sue over, then it doesn't have to go to a jury. Here, both sides agree Cox didn't cut off access, but Cox is claiming the safe harbor applies so it shouldn't even have to go to a jury.

      Summary judgment motions are controlled by Rule 56 of the Federal Rules of Civil Procedure.

      https://www.law.cornell.edu/ru... [cornell.edu]

    • If the judge is clearly siding with one party ahead of trial, shouldn't they be able to get him off this case on grounds of being biased?

      The judge issued a verdict on one aspect of the case. She will probably issue several rulings in favor of both sides over the course of the lawsuit.

      These sorts of copyright cases go very slowly. One party will file a motion, then 60 days later the parties will meet in court for maybe 15 minutes, as the judge issues her ruling (in California, the judge often issues a tentative ruling the day before, and the losing side can optionally argue the case in court to change her mind). Then more time passes until

      • She will probably issue several rulings in favor of both sides over the course of the lawsuit.

        US District Court Judge Liam O'Grady is a he.

    • Nowhere does the article say he issued a "verdict," just that he had "sided with the media companies." In this case, he sided with them against a challenge to the legitimacy of their complaint, ruling that if Cox wants to get out of this they're going to have to go with a different defense.

      A preliminary ruling like this can be very helpful to both parties involved. The judge has basically told Cox's legal team, "Based on the information I have available to me right now, here is how I would rule, and why." T

  • by DigiShaman ( 671371 ) on Tuesday November 24, 2015 @02:36PM (#50995905) Homepage

    What, you didn't actually think having a full manned staff department inside your ISP wasn't going to cost them, and thus you, any extra. Right?

  • Holy crap ... (Score:2, Insightful)

    by Anonymous Coward

    Sorry, judge Liam O'Grady, but you're a moron.

    Rightscorp has been found to be making fraudulent claims, misrepresenting themselves, and doing little more than running a shakedown racket.

    If accusations by an incompetent shady organization are enough to cut off access, that's a terrible precedent.

    How does someone clearly too stupid to be a judge get appointed as one? Or is he merely on the payroll of the media companies?

    What a fucking useless asshat.

    • Re: (Score:2, Informative)

      by Passman ( 6129 )

      How does someone clearly too stupid to be a judge get appointed as one? Or is he merely on the payroll of the media companies?

      What a fucking useless asshat.

      Well, he was appointed by George W. Bush.

      • Re:Holy crap ... (Score:4, Insightful)

        by JackieBrown ( 987087 ) <dbroome@gmail.com> on Tuesday November 24, 2015 @02:55PM (#50996063)

        Enforcing a law by Bill Clinton whose wife is now running for president.

        It's an ugly cycle we have here.

      • Re:Holy crap ... (Score:5, Insightful)

        by JackieBrown ( 987087 ) <dbroome@gmail.com> on Tuesday November 24, 2015 @03:00PM (#50996101)

        Let me rephrase my previous post...

        The Judge who is supporting a law passed by Clinton (whose wife is running for president) was appointed by Bush (whose brother is running for president).

        I really hope our choices for president next year involve neither of these two families.

        • Clinton is almost a lock. Something hugely catastrophic would need to happen for her to fail to get the nomination.

          Jeb Bush is another story. He's faltering, but he may also be waiting for others to tear down Trump and Carson before trying to mount a serious comeback. Still, Rubio seems to be slowly becoming the Establishment favorite, and that counts for a lot.

          • The Republican situation is hard to call - the lead has changed hands a few times now.

            • The Republican situation is hard to call - the lead has changed hands a few times now.

              I've been following the republican nomination thing with great interest for several months now, mostly as an exercise in insight and analysis.

              Surprisingly, the republican lead has *not* changed hands a few times, and depending on your definition of "lead" it hasn't changed hands at all. Carson pulled ahead of Trump in one poll one time, but in the overall average and in the national polls he's consistently been in the lead, for the last 6 months [realclearpolitics.com].

              Look at the link in the last paragraph, and look at the right-

              • I prefer FiveThirtyEight [fivethirtyeight.com] to Real Clear Politics. As they point out frequently, national polls mean little or nothing in the primary race because primary elections don't work the way polls do. The rules are also malleable right up to the moment before the actual selection takes place at the convention.

                FiveThirtyEight places a great deal of weight on what it calls the Endorsement Primary. [fivethirtyeight.com] This is a points system where each endorsement of a candidate by a member of the House of Representatives is worth one p

            • Re:Holy crap ... (Score:4, Insightful)

              by ColdWetDog ( 752185 ) on Tuesday November 24, 2015 @05:01PM (#50997147) Homepage

              It's not a horse race. It's a pig run. Those tend to be messy.

    • Some Judge apparentlyhas family members that needed and/or got cushy jobs from Rightscorp or one of its associated companies...

  • by Jason Levine ( 196982 ) on Tuesday November 24, 2015 @02:37PM (#50995929)

    So the judge is saying that Cox should shut off customers based on repeated allegations? As in, the proof isn't in yet and they've just been accused of something. Why even bother with trials or checking for proof then? Just fire a few dozen DMCA reports against random IP addresses and watch as people get taken offline. No proof required.

    If this makes it into precedent/law, how long until many people accuse Rightscorp of copyright violations and take them offline? Or does the "guilty-and-taken-offline-before-proven-innocent" rule only apply if a company is accusing an individual. (To quote Animal Farm: "All animals are equal, but some animals are more equal than others.")

    • Say goodbye to youtube, ebay, public wifi, and maybe more.

      • Certainly not YouTube. Google is able and willing to defend users who are falsely accused. The problem for companies like Cox is that they don't know which accusations are real. Youtube has different issues with DMCA takedowns, but the situation isn't analogous.
    • I'm not sure if you are in the US, but you may not understand how bad our so called justice system is. An interesting article today shows that in the last couple years, Just the Federal "Civil Forfeiture" has taken over 5 times as much money and property as crime. This is where there is no trial, no charge, not even an allegation. Police just take your stuff by simply claiming that it was connected to a crime or.. get this.. a Potential crime.

      If you already knew this you know how bad things are. Since t

    • If this makes it into precedent/law, how long until many people accuse Rightscorp of copyright violations and take them offline?

      You would need to have standing to accuse Rightscorp of copyright violations......which would probably mean you'd need to own the copyright.

      • Oh, there are plenty of people here that own copyrights to things. Did you ever take a photo with your smartphone? Congrats, you own a copyright! Now if a hundred of us were to claim that RightsCorp violated our copyrights (whether or not they did is immaterial since RightsCorp is claiming that the mere accusation counts), RightsCorp's ISP would have no choice but to kick them offline.

    • The DMCA is a bad law, but the judge is only doing his job interpreting it. Basically the DMCA gives information providers two choices. Throw their customers under the bus at the most frivolous allegation. Or stand up for their customers and become jointly liable for the behavior. I think that part of the goal was to force information providers (and, apparently, ISPS to do) is to police their own networks. When a customer is accused, they have to already know whether the person is guilty and how to res
      • The actual DMCA process (when not abused) isn't so bad:

        1) Copyright holder claims that John Doe violated his copyright.
        2) Copyright holder takes ISP to court to prove this actually happened.
        3a) Copyright holder's case doesn't convince the judge to issue a subpoena. End here.
        3b) The judge is convinced and issues a subpoena.
        4) The ISP gives the copyright holder the user's information.
        5) The copyright holder sues the user.

        Overall, the process is relatively fair. The ISP can't be expected to be the judge of w

    • by Aryden ( 1872756 )
      2 words: Civil Forfeiture
  • Accused? (Score:2, Insightful)

    by YrWrstNtmr ( 564987 )
    "suing Cox for refusing to shut off the Internet access of subscribers that Rightscorp accused of downloading music via BitTorrent."

    And I 'accuse' the CEO and entire board of RightsCorp of doing exactly the same. I have given no actual evidence, but the simple accusation should be enough, right?
  • by Morgon ( 27979 ) <jmy@NOSPAm.morgontech.com> on Tuesday November 24, 2015 @02:50PM (#50996027) Homepage

    Apparently Judge O'Grady was a former Disney lawyer. Wouldn't/Shouldn't he be required to recuse himself from a case like this?

    • They're not "required" to recuse themselves. And most judges consider themselves above bias, all evidence to the contrary, so they don't recuse themselves. See Antonin Scalia for a prime example.
    • Well, maybe, maybe not.

      Of course he used to be paid to fight for increased copyright protection for a big company (Disney). That's against him.

      On the other hand, having had a solid career in copyright protection, means he knows all the ins and outs of copyright law. Now assuming he's been a very good lawyer (fair assumption considering he made it into a high ranking judge) he'll know the arguments for both sides just as well: that's after all the job of a lawyer. You have to know how to argue your side well

  • I wonder just how much he'd be able to do if he suddenly found himself with no internet access, thanks to accusations of piracy.
  • by Pseudonymous Powers ( 4097097 ) on Tuesday November 24, 2015 @03:00PM (#50996103)

    In light of this interesting news, I have started my own rights-protection company.

    Here at RighterKorp, we employ state-of-the-art technologies to track down copyright violations and identify the violators with 100% precision. Either that, or we just make shit up. In either case, under the DMCA ISPs are required by law to immediately comply with our outrageous and hugely disproportionate demands, immediately depriving their customers the benefit of essential services they have bought and paid for, despite the fact that we provide no conclusive evidence of wrongdoing.

    Otherwise, we sue. Our industry-leading "judicial partnership" program helps us to achieve a high percentage of favorable rulings, in many cases before the actual trial.

    We are now accepting new clients, especially those who made a series of pornos on VHS tape in the nineties, and then put them on YouTube under an alias and want to sue Google over it.

    • I want to take down all of Taylor Swift's songs and videos from the web. Can I, by any chance, hire you to force the internet to take them all down until she proves that I *don't* own the copyright?

      • I want to take down all of Taylor Swift's songs and videos from the web. Can I, by any chance, hire you to force the internet to take them all down until she proves that I *don't* own the copyright?

        I have already dispatched a letter to Mr. Tyler Swift on your behalf. It reads: "Dear T-Swiff, it is a matter of public record that my client, Doctor Who, in fact wrote all your shit, especially that one about the poker face. Please send me one million dollars and stop singing forever. It has also come to my attention that at no time did you in fact poker any faces, so I will likely be suing you for false advertising as well.. Yours very truly, etc., etc., esq."

        I anticipate a prompt response from the In

    • You really need to understand the DCA. IT has the following steps.
      1. A rights holder submits a DMCA takedown notice to an ISP.
      2. The ISP takes takes the material down and informs the poster.
      3. The poster has two options. They can do nothing and the link stays down. Or they can file counter claim with the ISP.
      4. The ISP forwards that counter clam to the right holder and stars a clock.
      5. If within a certain period of time the rights holder has not filed a lawsuit against the poster the material goes back up.

      • I wish I could mod you up. This is how the DMCA was sold and I wish it was operating this way. The problem is that the takedown notices place so little burden on the person sending them that the false positive rates are obscene. I'm not sure what a good solution would be. A judge could issue an injunction against an organization that has too high of an FP rate, but this just might be a game of whack-a-mole. Of course that's how the rights holders probably feel about the infringers. I'll get modded int
      • There are two major problems though. The first is with step 2. All that's happened at that point is an accusation. There's no proof and no due process at this point. Just an accusation and a jump immediately to punishment. This is a huge problem.

        Also, the "under penalty of perjury" needs to be re-written to have some teeth. If attorneys were disbarred and executives imprisoned for perjury when the subject of takedowns turns out to be fair use, not actually owned by the takedown claimant, or otherwise

  • by NotDrWho ( 3543773 ) on Tuesday November 24, 2015 @03:07PM (#50996167)

    "Innocent until proven guilty is for liberal pussies!" said the judge.

  • I'm siding with this judge. In related news news, I'm issuing a DMCA takedown of all of YOUTUBE.

  • It's in the law (Score:5, Interesting)

    by Kjella ( 173770 ) on Tuesday November 24, 2015 @03:17PM (#50996265) Homepage

    USC 17512 [copyright.gov] Limitations on liability relating to material online

    (i) Conditions for Eligibility.â"

    (1) Accommodation of technology. â" The limitations on liability established by this section shall apply to a service provider only if the service provider â"

    (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider's system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers; and

    Nobody has dared poke this part of the law with a stick, what the heck does "reasonably implemented", "appropriate circumstances" and "repeat infringers" mean? None of it is defined any closer. I'd go for the simple two-pronged defense:

    1) The policy is clearly spelled out in our terms of service [cox.com], where we may terminate your contract:

    By using the Service, you agree to abide by, and require others using the Service via your account to abide by the terms of this AUP. The AUP will be updated from time to time, so you should consult this document regularly to ensure that your activities conform to the most recent version. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD IMMEDIATELY STOP THE USE OF THE SERVICES AND NOTIFY THE COX CUSTOMER SERVICE DEPARTMENT SO THAT YOUR ACCOUNT MAY BE CLOSED.

    1. Prohibited Activities. You may not use the Service in a manner that violates any applicable local, state, federal or international law, order or regulation. Additionally, you may not use the Service to:
    (...)
    Breach of Agreement: If You breach this Agreement, or any other agreement referenced herein, Cox has the right to terminate this Agreement and retrieve its equipment.

    2) Our customers are innocent until proven guilty in a court of law.

    Something tells me this is going to get overturned on appeal.

    • For someone to be a repeat infringer, wouldn't the multiple allegations need to be proven in court?

  • by MobyDisk ( 75490 ) on Tuesday November 24, 2015 @03:27PM (#50996349) Homepage

    The DMCA gives Safe Harbor to ISPs who implement the rules. If Cox never implemented the "repeat offender" policy then they are no longer entitled to the safe harbor provisions. Since the trial has not yet begun, it remains to be seen if they actually did so. We also don't know anything about the DMCA filings that Cox received.

    The EFF has an article on what the DMCA repeat infringer [eff.org] policy means.

    • you can be a repeat offender with out a trail or even Proof that the DCMA claim is good.

    • by Anonymous Coward on Tuesday November 24, 2015 @03:43PM (#50996471)

      Read TFA closer. They do have a repeat offender policy. They specifically blocked Rightscorp noticed due to the overwhelming volume given their frivolous nature, including over 24000 in one day at one point. We also know TONS about the DMCA filings that Cox received. Click the second link there in the summary and there are PAGES of examples as to why their infringement notices are either frivolous, incorrect, or based in inadequate information.

      What you are saying we don't know is effectively everything that Cox's response explains in detail.

      • by MobyDisk ( 75490 )

        Read TFA closer. They do have a repeat offender policy.

        I never said they didn't.

        (I'm glad it got someone to read the article. teehee!)

        The article shows Cox's stance, which is that they have a repeat offender a policy. The judge, for reasons we don't know yet, thinks that their policy is inconsistent. For all we know, Cox has no actual policy, and merely drafted up something right now on the fly, then used previous cases of banning users to support the claim that they had a policy all along. Cox claims that their policy it is not inconsistent, it is discretio

  • Does anyone remember when music was about the music and the artists who created it?

    Fuck the DMCA and the gluttonous profiteering record companies.

    And fuck the ISP's who get in bed with them.

    Rock on.

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