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Piracy The Courts The Internet

Cox Is Liable For Pirating Subscribers, Ordered To Pay $25 Million (torrentfreak.com) 166

An anonymous reader writes: A federal jury reached a verdict that Cox Communications must pay $25 million to BMG Rights Management for failing to disconnect subscribers accused of online piracy. TorrentFreak reports: "During the trial hearings BMG revealed that the tracking company Rightscorp downloaded more than 150,000 copies of their copyrighted works directly from Cox subscribers. It also became apparent that Cox had received numerous copyright infringement warnings from Rightscorp which it willingly decided not to act on.The case was restricted to 1,397 copyrighted works and a six-person jury awarded $25 million in damages. The award is lower than the statutory maximum, which would have been over $200 million."
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Cox Is Liable For Pirating Subscribers, Ordered To Pay $25 Million

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  • Your move, Cox (Score:5, Interesting)

    by clonehappy ( 655530 ) on Thursday December 17, 2015 @08:20PM (#51140729)

    Does Cox have the Balls to just block all traffic to BMG label sites and any other commercial entities with a presence on the net that are even loosely related to BMG? Because that'd be my first move.

    • by Anonymous Coward

      And that would open them to a new lawsuit. Their best move would be to play ball with the EFF.

      • Re:Your move, Cox (Score:5, Interesting)

        by drunk_punk ( 2841507 ) on Thursday December 17, 2015 @09:31PM (#51141045)

        Really? I would think they would use this as the EXACT excuse! "Due to our ongoing lawsuit with BMG we are not forwarding any traffic that may be used against us in a court of law, i.e. any proprietary information that BMG may have rights to."

        • What about the FCC'S net neutrality rules?

          • Re: Your move, Cox (Score:4, Interesting)

            by billcopc ( 196330 ) <vrillco@yahoo.com> on Friday December 18, 2015 @12:30AM (#51141633) Homepage

            Net neutrality does not come into play if they word it as a "network security" tactic. If I start spamming from my IP address, my upstream provider might null me until the problem is addressed. Why can't Cox null traffic to/from known copyright trolls who are spying on their users and presumably making an unusually large and suspicious number of connections (for evidence) ?

            It would be like that old "PeerBlock", but at a network level. Hardly any different than checking mail relays against blacklists

          • What about it? What case do you have that suggests this would have anything to do with net neutrality? BMG is concerned about us making their content available on the internet. "The only way we can truly be sure that we are complying with their wishes is to block anything BMG"
      • Re:Your move, Cox (Score:5, Interesting)

        by MobileTatsu-NJG ( 946591 ) on Thursday December 17, 2015 @10:22PM (#51141217)

        Would it? I mean, if they're supposed to be the content police and they're being punished for not upholding that, then don't they get a say in what they will or will not let pass through their pipes?

        • Re:Your move, Cox (Score:5, Insightful)

          by Shortguy881 ( 2883333 ) on Friday December 18, 2015 @09:12AM (#51142593)
          They are not supposed to be the content police. Do you not see the obvious problem with this kind of logic? If they are liable for not blocking pirating users, then they are liable for not blocking pedophile users, and liable for not blocking ISIS users. All of a sudden, COX is now financially responsible for what each of its users does. This is a terrible precedent to set.
          • No. This is a GREAT precedent to set!

            All of these ISP jerks lobbied HARD to reclassify themselves away from being Common Carriers so they could pull net neutrality shenanigans. This is just them getting their just desserts. Don't want to be a common carrier? Fine. You're now liable for what goes over your lines!

            I hope this is the tip of an awesome iceberg. If this takes off, and it will, the carriers will be CRYING for common carrier status in short order.

            This is THEIR OWN FAULT.

      • The only people who could potentially sue are the customers. All they would have to do is block it with an opt-in that allows the customer to over-ride the block after reading an appeal to keep the block in place for each account. This would have to be a one time only, or very limited opportunity count thing, not something you had to deal with every time you connect and disconnect from the net IMNSHO to keep it from being too obnoxious. My guess is most customers would gladly keep the block in place onc
    • Re:Your move, Cox (Score:5, Insightful)

      by currently_awake ( 1248758 ) on Thursday December 17, 2015 @08:27PM (#51140757)
      The cable companies need to pick a side in this fight. Either fight for the customers (end to end encryption so they don't see anything, no logging anything without a court order) or they support the copyright cartel (active monitoring for IP, log everything, cut off subscribers upon accusation). So the question is, who pays the most?
      • by bmo ( 77928 )

        The rights holders are an expense. The cable companies pay to carry their content.

        >telecoms fighting net neutrality/common carrier status

        I would say that this will change because of this lawsuit, but Comcast also is a media company with deep pockets for lobbying. so... I dunno.

        --
        BMO

      • by Anonymous Coward

        Given that Comcast, Time Warner and Verizon have major involvement with the copyright cartel, I'm thinking the they will push hard for the latter and everyone else will just follow their lead.

      • Cartels are cartels. *plata o plomo*.

      • Re:Your move, Cox (Score:4, Informative)

        by BradleyUffner ( 103496 ) on Thursday December 17, 2015 @10:40PM (#51141309) Homepage

        The cable companies need to pick a side in this fight. Either fight for the customers (end to end encryption so they don't see anything, no logging anything without a court order) or they support the copyright cartel (active monitoring for IP, log everything, cut off subscribers upon accusation). So the question is, who pays the most?

        They have picked a side; their own. They will do whatever they feel is in their own financial interest.

        • That's right.

          It will now be up to Cox to decide whether to pay up or try and get the case to the US Supreme Court (through the appellate process first). If and only, then it will be decided whether what Congress wrote into law actually means what it says as written in the law.

          Gotta love these justices who add their own interpretation into statutory law.

          • by raymorris ( 2726007 ) on Friday December 18, 2015 @12:04AM (#51141567) Journal

            There is an important point that requires interpretation. The question is, "are complaints which Rightscorp buried in a ton pf BS emails proper complaints under the DMCA?"

            The most relevant law is the DMCA, which sets out procedures that should be followed in these instances. Unfortunately, most private individuals and many small businesses don't know how the procedure works. That's unfortunate because when everyone involved knows what they are supposed to do under DMCA, it generally works better than what happened before the DMCA. Here's the procedure :

            The copyright owner files a complaint which includes certain specific facts.
            The ISP forwards the complaint to the accused.
            If the accused doesn't respond immediately the ISP takes temporary action based on the complaint (the accused hasn't denied the complaint) .
            The accused may file a counter-claim with the ISP and have the action reversed.
            The complainant (copyright holder) may then file suit in federal court.

            The process is far from perfect, but one good thing is that the ISP isn't put into the role of judge. The ISP never decides who is right or wrong, if you say you're not infringing, they basically take you at your word. (And if the accused doesn't deny it, they have to aft as if the complaint is true.) The ISP only has to follow the process laid out in the law, and they can't be held liable. If they choose NOT to follow the DMCA process, they can be liable to either the copyright owner or the accused.

            So that's the law. Rightscorp did file complaints. Therefore, by a strict reading of the law, the ISP must take appropriate action unless the other party denies the claim.

            HOWEVER, Rightscorp sent a shit-ton of very questionable emails to the ISP, many of which did not meet the requirements to be a proper complaint under DMCA. The ISP's argument is as follows:
            Rightscorp flooded us with bullshit emails.
            Because Rightscorp did so, the ISP couldn't reasonably read them all and determine which ones were actual DMCA complaints containing the required details.
            Because Rightscorp made it so difficult to dig through and find the properly formed complaints, the court should not require the ISP to respond to them.
            Instead, the court should act as if Rightscorp never sent those complaints.

            The ISP's reasoning is to some extent logical and fair. Rightscorp made it nearly impossible to respond to them all, then complained to the court about the results of their own actions.

            On the other hand, Rightscorp did send some proper complaints, and Cox ignored those complaints. That makes Cox liable* if you just read the law while ignoring the BS that Rightscorp pulled.

            So the legitimate question that does require judgement, interpretation, is this:
            Is a complaint which the complainant buried in a ton of BS a proper complaint which must be responded to under DMCA?

            That's not clearly specified in the law. Therefore, it is up to the court to decide.

            * Apart from the issue above, Cox also asserts that Rightscorp is misreading the law. The law seems to have somewhat different requirements for ISPs which only -carry- the data temporarily through their network vs those which provide web hosting or similar services involving storage of the material. The language of the law isn't entirely crystal clear on which requirements apply to which type of service. Cox asserts that Rightscorp is trying to apply the requirements of ISPs who -host- web sites to them, while they only -carry- the traffic. It's not crystal clear - Cox may very well be right. Because the wording and structure of the law isn't crystal clear, a court must interpret the ambiguous structure to determine what it's supposed to mean.

            • by Matt.Battey ( 1741550 ) on Friday December 18, 2015 @01:04AM (#51141735)

              IMHO, it's really about a dying industry attempting to extract all of the liquidity from a market before it takes its last breath. Or if its anything like the BSA, its about a company that is "hired" as an enforcer that gets to keep anything it kills.

              Riddle me this, if Rightscorp is setup like the BSA, then it may keep 100% of any claims it is able to prosecute. In the case of the BSA, they were initially funded by a consortium of software houses. But their business model is now funded 100% by their ability to prosecute incorrect licensing. The BSA is not required to turn over any of it's winnings to the partners. That means that if you installed Adobe Acrobat too many times, the BSA profits but Adobe does not.

              Is Rightscorp setup the same way? A tool of the music industry that can hound it's own income with out paying those who stand to loose?

              • Rightscorp does a 50/50 split with their clients. They've often been accused of being overzealous in their attempts to collect. On the other hand, they ask for a settlement of $10-$20, which is quite reasonable if the person was in fact unlawfully copying the work.

                • On the other hand, they ask for a settlement of $10-$20

                  If that settlement offer is open to all, then let's everybody pirate movies and TV shows that were released decades ago but never made available on DVD, such as Song of the South, Pinocchio and the Emperor of the Night, and Spartakus and the Sun Beneath the Sea.

      • Either fight for the customers (end to end encryption so they don't see anything,

        Exactly what do any of the ISPs have to fight about regarding end-to-end encryption? That's an issue for the ends, not the middle. I have SSH tunnels that have end-to-end encryption and my ISP has nothing to say about it.

      • by Anonymous Coward

        The cable companies need to pick a side in this fight. Either fight for the customers (end to end encryption so they don't see anything, no logging anything without a court order) or they support the copyright cartel (active monitoring for IP, log everything, cut off subscribers upon accusation). So the question is, who pays the most?

        and it REALLY seems like the former is the easiest from a technology perspective AND a business perspective

      • Actually, the question the cable companies should examine is "who would make the cable companies pay the least?"

        Before, the content owners seemed content to demand names and three strikes policies. Now, they might demand cash from ISPs for each alleged pirate on the ISP's systems. Just for purely selfish reasons, the cable companies should support the customers so that the ISPs can't get money from anyone and everyone based on mere allegations.

        Of course, if allegations equals conviction now, I'd like to a

      • Pick a side based on what? The outcome of this case? Done, customer loses. Fear of prosecution? Done, customer loses.

        Very few businesses are customer privacy advocates, and when the legal system roundhouse kicks their skull, like LavaBit, the options are further limited.

        If a business is not explicitly for due process, then assume they are not. They have already chosen sides, unless they follow the letter and spirit of the law. Currently, because of the lopsided DMCA, that means anti consumer.

        They may have b

    • This whole case is the broken system, Cox said give us proof and we will, they said we have proof listen to us well provide it later or gave generic proof that it could have been anyone.... If someone crashed a blue rental car would arrest everyone that drove it? Nope you'd have to figure out who had it at the time...
    • Re:Your move, Cox (Score:5, Insightful)

      by Obfuscant ( 592200 ) on Thursday December 17, 2015 @11:02PM (#51141389)

      Does Cox have the Balls to just block all traffic to BMG label sites and any other commercial entities with a presence on the net that are even loosely related to BMG?

      Uhhh. If you were a Cox customer legally accessing content from a BMG site, wouldn't you be a bit pissed at that kind of blocking? I'm going to make a wild-ass guess without checking that Amazon is one large source of BMG content, and I don't think you'd have a lot of happy customers if you blocked access to Amazon.com.

      More important, it might be possible for Cox to determine what sites are official BMG "label sites", but how the hell would they identify all the "loosely related" sites? Remember, Rightscorp could be accessing the torrents from just about any address on the net. They could be coming out of the Amazon or Google cloud, or from a DSL line in Swampy Bottom, AL.

      But most important, the issue wasn't that Cox users were downloading content from BMG sites illegally, but that they were running torrents DISTRIBUTING BMG content without authorization. Cox would have to block all torrent traffic or have some way of identifying a torrent that was distributing BMG content for carpet blocking to have any relevance here.

      A much more appropriate response would have been to verify that the customer was running a bittorrent with what looked like BMG content, and then gently remind them that their contract (almost certainly) prohibits operating servers using Cox residential internet service. And then, if the server stayed up, put a block on torrent connections to it. The customer could still access torrent feeds, but nobody would be able to connect to his server to pull content.

      • remind them that their contract (almost certainly) prohibits operating servers using Cox residential internet service.

        Completely unconscionable terms in any Internet contract, even if they're omnipresent. The Internet's a two-way street (like telephone, common carrier). Let's not have people on Slashdot advocating truly turning the Internet into a consumption-only medium.

        The main reason that no-server rule should ever be a clause in the contract is to allow them to take actions against spammers. Any other action taken on that is abuse. For one, you could be running a "server" just because you ran software that does UDP

        • Completely unconscionable terms in any Internet contract, even if they're omnipresent.

          No, actually, it isn't. Cox is offering you a service that is designed for residential and not commercial or server use. They're pricing that service based on costs, and if everyone started running file servers and such on their home systems the the costs go up.

          And if you don't like the terms, don't agree. Nobody is holding a gun to your head.

          The Internet's a two-way street (like telephone, common carrier). Let's not have people on Slashdot advocating truly turning the Internet into a consumption-only medium.

          Oh, please. I said nothing of the sort. I'm talking specifically about residential cable internet service. If you want to be a content provider, do it by paying the c

          • The Internet is NOT just "content providers" and "consumers". That's like saying that telephone systems are only for placing calls (consumers) and receiving calls (businesses). Since you completely fail to understand that, I don't have much to say.

            deliberately running bittorrent feeds of BMG licensed content, not a newb who plugs his PC in and doesn't know better

            For an inexperienced user, if you download from a BitTorrent feed, you are seeding a BitTorrent feed. That's just how BitTorrent works. And if your router is in it's default configuration, a lot of BitTorrent clients will open a port using UPnP.

            All personal services that won't consume much, and operating at a different level than someone trying to run a public file or data server on that residential line.

            That doesn't ch

            • The Internet is NOT just "content providers" and "consumers".

              I didn't say it was, so I'm not going to waste time responding to the rest of your rant about something I never said.

              • Yes you did with your narrowly defined definition of server:

                I'm talking specifically about residential cable internet service. If you want to be a content provider, do it by paying the costs of the bandwidth

                Downloading a torrent, while not always legal since it involves seeding, does not make you a "content provider."

                • Yes you did with your narrowly defined definition of server:

                  I'm talking specifically about residential cable internet service. If you want to be a content provider, do it by paying the costs of the bandwidth

                  No, I did not. I did not in any way, shape or form claim that if you were a content provider you could not also be a consumer. You can be one, the other, or both at the same time. (I am currently both right at this moment, which proves that it isn't an either/or proposition.)

                  What I said, once you understand the concept, is that "if you want to be a content provider" -- IN ADDITION TO ANYTHING ELSE YOU MIGHT BE, since being a content provider doesn't rule out any other function -- you should pay for the ser

                  • Did you not think of the fact that plenty of people have non-commercial reasons for sharing "content" on a small scale? I run my personal web site on port 80 on my home Internet connection. I'm not running a business. I do run it through Cloudflare as a proxy, but that really doesn't give me much at my scale.

                    • Did you not think of the fact that plenty of people have non-commercial reasons for sharing "content" on a small scale?

                      Have you not read a single word I've said where I've clearly differentiated between public data servers and small-scale private ones?

                      I run my personal web site on port 80 on my home Internet connection.

                      Good for you. I run an Icecast server along with SSH on mine. When you start serving media content on a large scale to anyone who wanders by, we'll talk.

                    • Did you forget your original point?

                      A much more appropriate response would have been to verify that the customer was running a bittorrent with what looked like BMG content, and then gently remind them that their contract (almost certainly) prohibits operating servers using Cox residential internet service.

                      You say that simply seeding a torrent = running a server. Even though seeding if an automatic part of downloading. And that this is at a scale worthy of having service disconnected. A complete disconnect from what you're saying now.

      • A much more appropriate response would have been to verify that the customer was running a bittorrent with what looked like BMG content, and then gently remind them that their contract (almost certainly) prohibits operating servers using Cox residential internet service.

        In the bittorrent protocol they aren't running a server, they're running a peer so the ISP can suck it..

    • by Revek ( 133289 )

      Every time I've contacted one of these companies about payment to deliver those copyright messages to our customers they are refused or hung up the phone. It cost money to roll a truck or to have a CSR call the accused customer. These guys basically expect a ISP to be their process sever in their civil suit for free. Its been a lose-lose situation for everyone but them. I think COX would be better off to start billing them for every truck roll and put these shysters on the defensive.

      Along another line o

  • by Rick in China ( 2934527 ) on Thursday December 17, 2015 @08:24PM (#51140745)

    So these subscribers were suspect, and Cox didn't kill their connections after a private organisation told them to, so they're on the hook for the suspected cases?

    The whole situation seems suspect in of itself.

    • So these subscribers were suspect, and Cox didn't kill their connections after a private organisation told them to, so they're on the hook for the suspected cases?

      The whole situation seems suspect in of itself.

      No.

      The jury held that BMG had *proved* the users violated copyright. (By a preponderance of the evidence, because it is a civil case--you don't have to prove it beyond reasonable doubt.)

      The jury also held that Cox had contributed the infringement, probably by "materially contributing" to the infringement. I didn't see the jury instructions so I'm not sure offhand. It's probably a bad extension of the Grokster case that should get overturned on appeal, although it might or might not. If it isn't, it turn

      • The jury held that BMG had *proved* the users violated copyright. (By a preponderance of the evidence, because it is a civil case--you don't have to prove it beyond reasonable doubt.)

        Were BMG's claims contested, or did they get a default judgement?

        At this point, I wouldn't be surprised if the situation were so fucked up that BMG could somehow manage to hold Cox responsible for notifying the alleged infringers of the suit, meaning that Cox's decision not to identify them caused the "proof" of the claim in th

      • The jury also held that Cox had contributed the infringement, probably by "materially contributing" to the infringement.

        The issue is that this is all pretty cut & dry under the DMCA. BMG filed DMCA complaints against Cox, and Cox didn't take what the court found to be "expeditious" efforts to resolve the infringement.

        As an ISP, Cox only gets safe harbor protection if they're reasonably handling complaints. As the court records show, they were essentially doing nothing even to stop the more egregious of

        • Say an agent for a copyright owner sends you a thousand messages, three of which are valid DMCA notices and nine hundred ninety-seven of which are messages that look like DMCA notices but are not in fact valid. What's the efficient method to distinguish the valid DMCA notices from the spam?

    • by Anonymous Coward on Thursday December 17, 2015 @09:20PM (#51141003)

      Cox should attain common carrier status. Then they would be immune to this. And their customers would benefit significantly.

      • Is that something they can just do? Sign some forms, and be a common carrier?

      • The phone company still has to positively deal with illegal or nuisance behaviour on its lines, even if they are a common carrier - wouldnt help in this instance.

    • by dywolf ( 2673597 )

      seems like the Safe Harbor concept could end up in the supreme court.

      Probably a bad thing if the Robert's court handles it.

      But if it doesn't get there until after Obama is on the court (you know he's a constitution law scholar right? and the perfect choice for Hillary to nominate when Scalia steps down), then it could be a good thing.

      • But if it doesn't get there until after Obama is on the court (you know he's a constitution law scholar right? and the perfect choice for Hillary to nominate when Scalia steps down)

        I seriously hope not. Obama seems to think the constitution is just a piece of paper, and has forgotten that it is what dictates the whole structure of the government.

  • Awful precedent (Score:2, Insightful)

    by Anonymous Coward

    FCC just made them common carriers, but now court says they're responsible for what goes over their network? Can't have it both ways...

  • by Anonymous Coward

    At $166.66 per download, it looks like suing has a better profit margin than actually selling the DVD!

    • Perhaps not when you consider that the lawyers and the useless "tracking company" get almost all of that money.

  • by Zymergy ( 803632 ) on Thursday December 17, 2015 @08:34PM (#51140799)
    If the Electric Power company is told by unofficial third parties (BMG et al) that their electricity is being used to power Cox Equipment on both the user and carrier side that is being used to download copyrighted materials, is the Electric Company also just as liable to tens of millions in damages for clearly supplying power to both the alleged perp and to the Cox internet connection utility?? It is the Same insane Logic! This is essentially a case of the gun maker being held responsible versus the person holding it and using the gun... This case will be overturned on appeal.
    • by rsmith-mac ( 639075 ) on Thursday December 17, 2015 @09:53PM (#51141111)

      is the Electric Company also just as liable to tens of millions in damages for clearly supplying power to both the alleged perp and to the Cox internet connection utility?

      I know this is meant to be rhetorical/alarmist, but the answer is no.

      The DMCA - specifically, the Online Copyright Infringement Liability Limitation Act [wikipedia.org] - deals with communications, not power. There is nothing on the books about electric companies being responsible for infringement.

    • Re: (Score:1, Flamebait)

      You and the four idiots who moderated you up should take a break from the internet and learn things. I can't even start tocorrect you, and thank goodness someone else tried. Please read that reply, and consider how wrong your idealistic and ignorant reply might be, before posting anywhere in the future.

      Trying to help, tough love and all that.

  • Canada is great ... (Score:2, Interesting)

    by Anonymous Coward

    We actually passed laws that prevent the big label from suing the ISPs or the people, for more than a "very small" amount, which wouldn't even be worth going to court for.
    Because lets face it... You didn't lose MILLIONS of dollars just because this one dude downloaded your $1 song.

    • You didn't lose MILLIONS of dollars just because this one dude downloaded your $1 song.

      The case was not about one dude downloading one $1 song. It was about one company downloading "more than 150,000 copies of their copyrighted works" from Cox subs, but they only sued over 1397 of those.

  • The articles didn't say where this case was tried. East Texas? If so, the final appeal may change things.
  • by Anonymous Coward

    Rightscorp committed the copyright infringement NOT Cox users...it was Rightscorp that downloaded & made the illegal copies where's the evidence that Cox's customers actually copied anything rather than making the files available? If BMG doesn't sue Rightscorp Cox should do it as the evidence in this case makes it clear that Rightscorp is the infringer & as such they need to pay the judgement in this suit.

    • Rightscorp works for BMG to look for people who infringe on the copyright by making it available for download. It would be kind of silly to sue the company that you've hired. It is the act of making the files available that is the infringement. Even if you buy a CD it doesn't give you the rights to make it available for anyone and everyone to download.

    • It's called a sting operation. Not sure how ethical/legal it is, since they're not law enforcement, but it's not entrapment because the Cox user would have shared the file with any connecting IP and not just RC. And sting operations by corporations haven't been challenged on that basis (of not being law enforcement).

  • Bad Precedent (Score:5, Interesting)

    by Joe Gillian ( 3683399 ) on Thursday December 17, 2015 @09:31PM (#51141049)

    The massive problem here is the judicial ruling that a third, non-government party can tell an ISP to disconnect a user simply based on suspicion of copyright violations and the ISP must comply. I have never seen anything like this, where someone who suspects wrongdoing is allowed to set a punishment outside of the judicial system.

    • Re:Bad Precedent (Score:4, Interesting)

      by CanadianMacFan ( 1900244 ) on Thursday December 17, 2015 @09:46PM (#51141085)

      Wait until TPP comes into effect. Someone could get a copyright infringement ruling in one country for content hosted in another country in which it doesn't violate copyright and still have the content provider take down the material.

    • by Anonymous Coward

      This sounds alot like sopa all over again, where a non judge can censor someone off the Internet. That is taking away someone's freedom of speech arbitrarily. It is totally illegal under the constitution, but don't try and stop the sue happy record companies. They only keep suing because they keep getting rulings in their favor.

    • I have never seen anything like this, where someone who suspects wrongdoing is allowed to set a punishment outside of the judicial system.

      I have been a webmaster for twenty years and I have absolutely no limitations on who I can block from accessing my servers based on nothing more than a suspicion that they might be up to some wrongdoing. The University where I work can "trespass" someone from the campus (legally prohibit them from setting foot on site) for reasons no more specific than suspected wrongdoing. I can tell you to get off my front lawn with even less cause. Stuff like this goes on all the time.

      The DMCA has been around for years.

      • Re:Bad Precedent (Score:5, Informative)

        by DarkTempes ( 822722 ) on Friday December 18, 2015 @07:03AM (#51142331)

        TLDR;
        Cox does cut customers loose but, for a time, Cox allowed disconnected users to sign up for service again. Judge rules before trial that this makes them not a common carrier.
        Cox explains during trial that they blocked/dropped all Rightscorp emails for abusing Cox's abuse process by a) soliciting $10-20 settlement payments with their complaints and b) sending extreme volumes of complaints when Cox told them they couldn't do that.
        BMG/Rightscorp argue that Cox is still liable for complaints that it never received. Judge agrees, asks Jury for verdict.
        Cox owes $25 million because it didn't let Rightscorp milk money from its subscribers with no due process. And possibly because Cox didn't join the Copyright Alert System (time frame fits but conjecture on my part.)

        POTUS has said that "the Internet has become an essential part of everyday communication and everyday life" and asked the FCC to reclassify it as a "utility."

        And then the FCC basically made ISPs Common Carriers but without some of the drawbacks (they selectively applied Title II.)

        Your website(s) and your college are not ISPs nor Common Carries nor even utilities (well, arguably the college could be to students living in dorms.) I don't think university dorms count as landlord-tenant relationships (though IMO they should.)

        The DMCA has been around for forever and been broken for forever.

        Consider that Rightscorp is blindly downloading torrents in search of its client's copyrighted material.
        Ok, so they download every torrent that matches ABC.mp3 because one of their clients has a songs named that and then they download the full file to verify. Obviously they're not just using file hashes or that would be way too easy for pirates to circumvent.

        What happens when Rightscorp downloads an ABC.mp3 file that is actually copyrighted by another entity? Rightscorp has just blindly committed a copyright violation!
        Of course, Rightscorp's competitors, who are doing the same thing, aren't going to file an infringement notice on Rightscorp because that would be mutually assured destruction.

        And so you can see how this scheme is broken by design.

        If I send 5,000,000 infringement notifications to Cox but only one is legitimate then is Cox required to go through all 5,000,000 to verify which are bogus and which are not? And how is Cox supposed to manage handling the requests of others if I do that?

        What Cox does is it automatically parses emails to abuse@cox.net and puts them into a ticket system. Multiple complaints about the same subscriber (in a day) get put into the same ticket.
        They have a hard, but negotiable, limit of 200 complaints per day per source. This is not blind. They send an email back notifying the source that they have hit the limit that Cox can handle.

        Cox has a "180 day" (6 month) abuse cycle where they: ignore the first ticket, notify the subscriber on the second to seventh complaints (sic), and soft-suspend the account on the eighth to ninth, requiring user action to unsuspend service.

        Tenth to fourteenth complaints (sic) suspend service and require various levels of increasing manual communication with higher and higher levels of Cox management to continue service. At fourteen they do a full review of the account and decide if they permanently disconnect the user or not.

        And thus Cox actually was cutting off service to users. It's just that they were also letting users sign up for service again (and when they resigned onto the service then they had a clean copyright infringement slate) for a brief period of time (until sometime 2012.)

        Rightscorp's complaints include a link allowing people to pay $10 to $20 for an "automatic settlement" that gives the user a "legal release" (Can anyone say, FEAR SCAM? IRS phone scammers work the same way!)
        Cox has a policy of ignoring complaints with settlement offers because it considers them improper and falling outside of the spirit of the DMCA.

        Cox replies to such complaints askin

        • You spend a huge amount of time arguing something I didn't comment on. I simply pointed out that taking action against someone for nothing more than suspicion of wrongdoing was hardly a new activity, as opposed to the sudden appearance of a new phenomena that the GP claimed. I used the examples I did to show that this isn't even new based on the "-- on the internet!" rule being applied to many patent claims. That's all.

          As for your argument that Rightscorp was violating other people's copyrights, well. Coul

          • Yeah, I kind of got distracted reading the memorandum and digesting it as the news I've been reading about the topic was way different from the memorandum.

            Anyway, I would say that copyright on the internet is different from copyright elsewhere because of how easy digital information is to copy.

            VHS tapes were kind of a big deal but it was eventually allowed that you could record something on your TV and view it later (or even share it with your friend down the street and no one really cared.) At that point,

            • But see, it's bittorrent so they are distributing the material.

              I have not used bittorrent for a long time, but I remember that I could download without being a torrent server. While it may be the default to do both, it is certainly not a given that one requires the other.

              And the "no way of knowing the legality" isn't a valid defense

              I didn't say it was. I said it was a better way of dealing with the issue if you go after the people who knowingly distribute material illegally and not go after those who have a reasonable assumption that they are getting a legal copy. Or even just no knowledge that what they are downloading is an il

              • I have not used bittorrent for a long time, but I remember that I could download without being a torrent server.

                This is technologically possible with custom clients such as BitThief but using any client that follows the spec you pretty much have to upload to download.
                In the spec, peers choke peers that don't upload and prefer peers that upload more.
                In hindsight, I suppose it's probable that Rightscorp is using something like BitThief but having it masquerade as a common client and thus potentially not uploading any content.
                I haven't torrented in years so I don't really know if popular clients do anything to try to pr

    • The third party can't tell the ISP to disconnect a user. The third-party informs the ISP of what they suspect to be illegal activity. The ISP then has to follow a procedure of notifying the user. The user can claim that their activity isn't infringing and then the ISP forwards the user's and third-parties contact information to each other and the ISP is done. If the user fails to respond, the ISP is supposed to disconnect. What Cox did was to ignore the claims entirely. They had good reason. They wer
  • by fahrbot-bot ( 874524 ) on Thursday December 17, 2015 @09:33PM (#51141051)

    ... for failing to disconnect subscribers accused of online piracy.

    Yes, because "accused" means "guilty" to the likes of BMG and Rightscorp and, apparently, the courts support this sort of no-due-process process.

    Why oh why can't ISIS go after BMG and Rightscorp and do *everyone* a favor? [ Heh, Just kidding NSA - it was a joke ... really, I swear. ]

  • by Anonymous Coward

    The bottom line is this shit needs to be nuked from orbit. The DMCA blatantly violates rights of ownership and the solution is for the dumb fucks in congress to make internet access a basic human right (like water and electricity) that cannot be shut off for shits and giggles, only extended non payment or felony criminal activity. Period. Beyond that, the fines (thats right, fines, money that goes to the government, not BMG or anyone else) should be limited to the the dollar value of the content shared p

  • Clearly rightscorp is downloading enough music every day to justify cutting off their service.

    • Clearly rightscorp is downloading enough music every day to justify cutting off their service.

      And just as clearly Rightscorp has a contract with the copyright holder authorizing that action. Do you want to get people's service cut off for legal downloading of content?

  • The real story (Score:5, Insightful)

    by MobyDisk ( 75490 ) on Thursday December 17, 2015 @11:19PM (#51141439) Homepage

    So every article I find on this is garbage. I'm reading the ruling on summary judgement from Dec 1st.

    Here's my conclusion from reading the ruling:
    1) Cox had an official policy to not actually terminate repeat offenders because they didn't want to lose customers.
    - This means they weren't in compliance with the DMCA. I gotta agree with the court on that one.
    - Side note: If someone is pirating that much, and Cox was still profiting, then why do they need to institute bandwidth caps?
    2) The Supreme Court Grokster decision was the scariest blow here.
    - The court says Grokster didn't limit liability to companies actually inducing or profiting from copyright violations.
    - That completely changes my understanding of Grokster!
    - The court says Cox is contributarily liable because they materially contributed to the copyright infringement.

    That "materially contributed" thing is frightening. This is what we've all been afraid of because it seems to open-up the possibility that the maker of the modem is liable, and the company who installed the wires is liable, or the maker of the downloading software, etc. Lots of people materially contributed. We need to really limit this definition of "material contribution."

    Here's my notes:
    Cox limits DMCA complaint emails to 200/day from any given copyright holder.
    Cox doesn't do anything with the notices until they receive 8 of them for a single user within 6 months. Termination happens at like 15+ within 6 months.
    "Termination" just means the user has to call Cox and apologize, and the counter is reset.
    Rightscorp auto-generates DMCA emails.
    Rightscorp was sending emails with settlement notices in them.
    Cox says those notices aren't within the spirit of the DMCA, so they auto-delete them.
    Rightscorp responded by sending 24,000/day
    Cox just outright blocked Rightscorp's emails.
    The judge cited the Grokster case as the reason that ISPs can be liable for user's copyright actions. They basically rehashed the whole Grokster case, the whole "making available" theory, and all that jazz.
    The DMCA says ISPs must implement a "reasonable" repeat infringer policy. The law left this *completely* open. The only way anyone figures out what it means is when they get sued for not doing a "reasonable" job. The courts then clarify the law a bit more each time. Ugh!
    The courts say that ISPs are not required to actively monitor for infringement.
    Rightscorp made various complaints about Cox's policy.
    The court decided that Cox's account termination was too lenient.
    The court didn't even really care that Cox blocked Rightscorp's emails.
    Cox didn't have a repeat infringer policy before 2012. And Cox derided the intentionally circumvented the process anyway.
    Cox higher-ups sent an email that basically told the abuse department not to terminate anyway, because they can't afford to lose customers.
    Cox complained that BMG didn't hold copyright to lots of this stuff. Court says: Yes they did, and it doesn't matter anyway.
    Cox says: this whole DMCA complaint process is a farce. Judge says: Yeah, but you knew some were real and still ignored those.
    The court disregards Cox's arguments that Rightscorp are extortionists as irrelevant since they weren't extorting Cox. Sounds like the end-users might have had an argument there, but Cox doesn't.

    • This is what we've all been afraid of because it seems to open-up the possibility that the maker of the modem is liable,

      Hardly. The maker of the modem does not retain control of that modem such that they could prohibit the illegal use. To have them be liable, they'd have to have a backdoor into it so they could monitor and then disable it.

      We need to really limit this definition of "material contribution."

      We need to limit our imaginations as to what could potentially be called "material contribution" to actual, material contributions based on a reasonable expectation of control over those contributions. Saying that the modem manufacturer is a "material contributor" in this case is like sayin

      • This is what we've all been afraid of because it seems to open-up the possibility that the maker of the modem is liable,

        Hardly. The maker of the modem does not retain control of that modem such that they could prohibit the illegal use. To have them be liable, they'd have to have a backdoor into it so they could monitor and then disable it.

        Which, very soon, they all may have. That is, if those "anti-terrorism" laws requiring backdoors everywhere are indeed put in place. Of course these backdoors are meant for the NSA et.al., but the manufacturers can also use them (after all, they build the backdoor so they have the keys as well), and then it's a little step to get to the point where the court says "you have the keys, you have the access, you have been notified but didn't do anything so you're liable."

      • by MobyDisk ( 75490 )

        Great points. The ruling does go into how Cox both knew about the infringement and could have stopped it, prior to talking about material contribution. This reduces my fears somewhat.

    • by Anonymous Coward

      The problem is that Rightscorp had "NO" proof. Period.

      IP address does not equal person. In many cases a single ip address hides dozens if not hundreds of users.

      Cox was in the right to basically tell Rightscorp to go fuck themselves.

      • by MobyDisk ( 75490 )

        The problem is that Rightscorp had "NO" proof. Period.

        Aha! So the key question then is: proof of what? What were they seeking to prove?

        Suppose the case was BMG versus John Doe, where BMG+Rightscorp were trying to prove that John Doe committed copyright infringement. Then Rightscorp would have had to prove that the IP address was in use by that John Doe, and that the modem wasn't hacked, and that it wasn't someone else using their Wifi, etc.

        But that isn't what this case was. It was BMG versus Cox, where BMG+Rightscorp were trying to prove that Cox was willf

        • It was BMG versus Cox, where BMG+Rightscorp were trying to prove that Cox was willfully negligent in their handling of DMCA complaints. So all of this stuff about IP address, hacked computers and modems, etc - doesn't matter.

          Except that the DMCA says [congress.gov] that ISPs have no liability regarding copyright infringement by their users, provided they are not actively involved in the infringement and do not modify the data passing through their network:

          ``Sec. 512. Limitations on liability relating to material online

          ``(a) Transitory Digital Network Communications.--A service provider
          shall not be liable for monetary relief, or, except as provided in
          subsection ( j), for injunctive or other equitable relief,
          for infringement of copyright by

          • by MobyDisk ( 75490 )

            There was no takedown notice filed against Cox. That's not the issue.

            • There was no takedown notice filed against Cox. That's not the issue.

              And yet the case was about the DMCA's safe harbour provisions for ISPs. You'll note that there is nothing in there about requiring ISPs to disconnect anyone, short of a court order. It says that ISPs are not liable for infringement merely for carrying traffic on behalf of their users. In other words, the original order claiming that Cox was not protected by the safe harbour provisions was itself in violation of the DMCA.

              • by MobyDisk ( 75490 )

                You'll note that there is nothing in there about requiring ISPs to disconnect anyone, short of a court order

                Yes there is. That was the crux of the case actually. Either read my notes, or read the court order.

      • The problem is that Rightscorp had "NO" proof. Period.

        Uhh, what? They downloaded 150,000 copies of material from places that had no authority to distribute that material.

        IP address does not equal person. In many cases a single ip address hides dozens if not hundreds of users.

        Two problems with that argument. We're talking about residential cable internet service. "Dozens" is a stretch; hundreds is pretty ludicrous. Most cities have zoning laws that limit the number of people who can live in a residence.

        But more important, BMG doesn't need to know the name of the specific person running the server. They have the IP address. Cox is providing service for that IP add

  • by Anonymous Coward on Thursday December 17, 2015 @11:50PM (#51141529)

    Thomas Hesse, Sony BMG's Global Digital Business President, told reporter Neda Ulaby,

    "Most people, I think, don't even know what a rootkit is, so why should they care about it?"

    https://en.wikipedia.org/wiki/... [wikipedia.org]

  • by stealth_finger ( 1809752 ) on Friday December 18, 2015 @05:00AM (#51142155)
    "for failing to disconnect subscribers accused of online piracy." So what happened to the whole innocent until proven guilty and all that? Why do they expect to be able to take action against people based on accusations?
  • This really is a shame as of them all, Cox is by far the most level-headed and hands-off national ISP. I am still thankful I have them instead of the harrowing nightmares that are Time-Warner, Comcast, et al.
  • IMHO, this is like blaming the Port Authority when bank robbers use one of their bridges for their getaway route.

  • the tracking company Rightscorp downloaded more than 150,000 copies of their copyrighted works directly from Cox subscribers.

    Here's the biggest offender! BMG should be suing this company, which is blatantly and egregiously violating their copyright!

  • All the ISPs lobbied HARD to get themselves reclassified away from Common Carrier status. They WERE common carrier, and that made them immune to this... I hope this is the tip of an AWESOME iceberg in suing the ISPs. Don't be merciful, they ASKED for this.

    If this takes off, and why wouldn't it, it's basically free money for Rights Holders, the carriers will be begging to be reclassified as common carriers... As they SHOULD be.

    Sue on! Hey, I've put my copyrighted works on the internet. I bet some of you

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