EFF Argues 'If Not Overturned, a Bad Copyright Decision Will Lead Many Americans to Lose Internet Access' (eff.org) 89
The EFF's senior staff attorney and their legal intern are warning that a bad copyright decision by a district court judge could lead many Americans to lose their internet access.
"In going after ISPs for the actions of just a few of their users, Sony Music, other major record labels, and music publishing companies have found a way to cut people off of the internet based on mere accusations of copyright infringement." When these music companies sued Cox Communications, an ISP, the court got the law wrong. It effectively decided that the only way for an ISP to avoid being liable for infringement by its users is to terminate a household or business's account after a small number of accusations — perhaps only two. The court also allowed a damages formula that can lead to nearly unlimited damages, with no relationship to any actual harm suffered.
If not overturned, this decision will lead to an untold number of people losing vital internet access as ISPs start to cut off more and more customers to avoid massive damages...
The district court agreed with Sony that Cox is responsible when its subscribers — home and business internet users — infringe the copyright in music recordings by sharing them on peer-to-peer networks. It effectively found that Cox didn't terminate accounts of supposedly infringing subscribers aggressively enough. An earlier lawsuit found that Cox wasn't protected by the Digital Millennium Copyright Act's (DMCA) safe harbor provisions that protect certain internet intermediaries, including ISPs, if they comply with the DMCA's requirements. One of those requirements is implementing a policy of terminating "subscribers and account holders... who are repeat infringers" in "appropriate circumstances." The court ruled in that earlier case that Cox didn't terminate enough customers who had been accused of infringement by the music companies.
In this case, the same court found that Cox was on the hook for the copyright infringement of its customers and upheld the jury verdict of $1 billion in damages — by far the largest amount ever awarded in a copyright case.
The District Court got the law wrong... An ISP can be contributorily liable if it knew that a customer infringed on someone else's copyright but didn't take "simple measures" available to it to stop further infringement. Judge O'Grady's jury instructions wrongly implied that because Cox didn't terminate infringing users' accounts, it failed to take "simple measures." But the law doesn't require ISPs to terminate accounts to avoid liability. The district court improperly imported a termination requirement from the DMCA's safe harbor provision (which was already knocked out earlier in the case). In fact, the steps Cox took short of termination actually stopped most copyright infringement — a fact the district court simply ignored.
The district court also got it wrong on vicarious liability... [T]he court decided that because Cox could terminate accounts accused of copyright infringement, it had the ability to supervise those accounts. But that's not how other courts have ruled. For example, the Ninth Circuit decided in 2019 that Zillow was not responsible when some of its users uploaded copyrighted photos to real estate listings, even though Zillow could have terminated those users' accounts. In reality, ISPs don't supervise the Internet activity of their users. That would require a level of surveillance and control that users won't tolerate, and that EFF fights against every day.
The consequence of getting the law wrong on secondary liability here, combined with the $1 billion damage award, is that ISPs will terminate accounts more frequently to avoid massive damages, and cut many more people off from the internet than is necessary to actually address copyright infringement...
They also argue that the termination of accounts is "overly harsh in the case of most copyright infringers" — especially in a country where millions have only one choice for broadband internet access. "Being effectively cut off from society when an ISP terminates your account is excessive, given the actual costs of non-commercial copyright infringement to large corporations like Sony Music." It's clear that Judge O'Grady misunderstood the impact of losing Internet access. In a hearing on Cox's earlier infringement case in 2015, he called concerns about losing access "completely hysterical," and compared them to "my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework."
"In going after ISPs for the actions of just a few of their users, Sony Music, other major record labels, and music publishing companies have found a way to cut people off of the internet based on mere accusations of copyright infringement." When these music companies sued Cox Communications, an ISP, the court got the law wrong. It effectively decided that the only way for an ISP to avoid being liable for infringement by its users is to terminate a household or business's account after a small number of accusations — perhaps only two. The court also allowed a damages formula that can lead to nearly unlimited damages, with no relationship to any actual harm suffered.
If not overturned, this decision will lead to an untold number of people losing vital internet access as ISPs start to cut off more and more customers to avoid massive damages...
The district court agreed with Sony that Cox is responsible when its subscribers — home and business internet users — infringe the copyright in music recordings by sharing them on peer-to-peer networks. It effectively found that Cox didn't terminate accounts of supposedly infringing subscribers aggressively enough. An earlier lawsuit found that Cox wasn't protected by the Digital Millennium Copyright Act's (DMCA) safe harbor provisions that protect certain internet intermediaries, including ISPs, if they comply with the DMCA's requirements. One of those requirements is implementing a policy of terminating "subscribers and account holders... who are repeat infringers" in "appropriate circumstances." The court ruled in that earlier case that Cox didn't terminate enough customers who had been accused of infringement by the music companies.
In this case, the same court found that Cox was on the hook for the copyright infringement of its customers and upheld the jury verdict of $1 billion in damages — by far the largest amount ever awarded in a copyright case.
The District Court got the law wrong... An ISP can be contributorily liable if it knew that a customer infringed on someone else's copyright but didn't take "simple measures" available to it to stop further infringement. Judge O'Grady's jury instructions wrongly implied that because Cox didn't terminate infringing users' accounts, it failed to take "simple measures." But the law doesn't require ISPs to terminate accounts to avoid liability. The district court improperly imported a termination requirement from the DMCA's safe harbor provision (which was already knocked out earlier in the case). In fact, the steps Cox took short of termination actually stopped most copyright infringement — a fact the district court simply ignored.
The district court also got it wrong on vicarious liability... [T]he court decided that because Cox could terminate accounts accused of copyright infringement, it had the ability to supervise those accounts. But that's not how other courts have ruled. For example, the Ninth Circuit decided in 2019 that Zillow was not responsible when some of its users uploaded copyrighted photos to real estate listings, even though Zillow could have terminated those users' accounts. In reality, ISPs don't supervise the Internet activity of their users. That would require a level of surveillance and control that users won't tolerate, and that EFF fights against every day.
The consequence of getting the law wrong on secondary liability here, combined with the $1 billion damage award, is that ISPs will terminate accounts more frequently to avoid massive damages, and cut many more people off from the internet than is necessary to actually address copyright infringement...
They also argue that the termination of accounts is "overly harsh in the case of most copyright infringers" — especially in a country where millions have only one choice for broadband internet access. "Being effectively cut off from society when an ISP terminates your account is excessive, given the actual costs of non-commercial copyright infringement to large corporations like Sony Music." It's clear that Judge O'Grady misunderstood the impact of losing Internet access. In a hearing on Cox's earlier infringement case in 2015, he called concerns about losing access "completely hysterical," and compared them to "my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework."
welcome to the US (Score:5, Interesting)
Re:welcome to the US (Score:5, Insightful)
Re:welcome to the US (Score:5, Interesting)
So not a deterrent. Like how a multi-billion dollar corporation gets a $100 million fine for doing something wrong and people complain that's a rounding error for them.
So, if multi-billion dollar corporations are getting away with it, why shouldn't the general public?
Re: (Score:3, Insightful)
Re: (Score:1, Flamebait)
Re:welcome to the US (Score:5, Insightful)
What if someone downloads 1,000 movies? That's a crime worth, say, $25,000. Something they might award actual jail time for over here, plus a stiff fine (up to another $20k). But that's it. Couple of months of jail, in extreme cases a couple of years... but not life-long financial ruin for you and your family, just because you downloaded a couple of movies.
Re:welcome to the US (Score:5, Informative)
Being sent to jail actually can be financially ruinous. You'd be gone from your job for a few months and chances are wouldn't have a job when you got out. Then, as you applied for a new job, prospective employers would find out that you were in jail which would dissuade them from hiring you. There's a huge stigma towards people who have been sent to jail which makes it harder for them to find legitimate work even if they're trying to go straight.
Re: (Score:2)
Re:welcome to the US (Score:5, Informative)
Downloading 1,000 movies did not cost anyone $25,000.
1,000 free downloads doesn't mean you could have sold 1,000 DVDs at full retail price.
The MAFIIA had to make up imagined losses, like that time the RIAA claimed Limewire owed them $72 trillion, more than the global GDP at the time.
Re: (Score:2)
It shouldn't be a crime. Copyright covers the entire medium of audio and video with few exceptions. 100 years of culture only available to those who can pay money.
Many people have lived, assimilated the content, and died, and nobody can use it in anything new unless they're making enough money to pay for it and unless they are saying something approved of by the copyright holders.
The only mitigation is that Copyright is ignored. Copyright is a gaping hole in the freedom of speech, and it's not clear that
Re:welcome to the US (Score:5, Insightful)
The main complaint with corporate fines is that they are barely enough to count as a tax on the much larger profit they made by doing the bad thing.
That would be like shoplifting a $20 movie and you get fined $2 and get to keep the movie.
With the copyright thing, it's like being fined because the store THINKS you or someone who looks similar to you may have cleverly made a copy of the movie and put it back on the shelf unharmed.
Re: (Score:2)
Re: (Score:2)
Can be, but isn't.
Re: (Score:3)
That's because copyright laws were written for an age when copyright infringement meant commercial infringement, not home infringement without a profit motive. If I was copying hundreds of DVDs to sell on street corners for $1 each, then the fines involved would make sense. They would be designed to bankrupt my operation and to make similar illegal operations think twice before launching. The problem was that these same laws were deployed against people who downloaded software they thought would give them f
Re: (Score:2)
The issue is not the size of the fine, it's the shoddy evidence and imbalance of power.
One day you randomly get accused of copyright infringement based on someone claiming to have downloaded part of a file from "your" IP address. They have a team of lawyers working on suing hundreds, maybe thousands of people, you have a guy who charges $250/hour just to talk to you.
If you don't fight it you could end up owing large sums of money and losing your internet connection. These days that could result in unemploym
Re: (Score:2)
True. That's the other part of it. If a movie studio stole my novel and produced it into a movie, thinly veiling the theft by changing the character names and that's it, they would have a team of lawyers ready to battle me in court. As a normal person, I wouldn't be able to afford a big legal fight. Maybe some lawyers, smelling the payday, would do their work "for free" while the court was in session, taking a chunk of any settlement or judgement. Still, I'd need to devote a big chunk of my life to this fig
Re: (Score:2)
I agree in general.
But there is also a punitive element, and loss reconciliation in penalty formulas.
Take parking fines for example. If parking is $2, and you know the fine is the same, nobody would pay the meters. Especially when you are caught 10% of the time,
However if the fine is $25, one would easily prefer to pay the meter instead.
Re: (Score:1)
Re: (Score:2)
Re: (Score:1)
Use a VPN people (Score:3)
Re: (Score:2)
Re: (Score:1)
Re: (Score:3, Informative)
Russia simply banned VPNs altogether in order to resolve that conundrum. At a certain point the law needs to actually protect you or you don't have any protection.
Re: (Score:3, Informative)
Another bad ruling got me to set it up.
The one that said ISPs can push click baits into my html stream of web page views in order to push advertising.
Ok the real problem was Clinton [I'm a D] and he was wrong to hand over control of the internet to the cooperate money grubers [ca. 1995].
This is just as bad as YouTube, after being bought up by Alphabet, to start garbling the voice to get you to subscribe for $65us/month.
Re: (Score:2)
The thing is, nobody cares if you leave the internet.
When ISPs and Amazon start wondering how they've lost 5% of their customers due to enforced deprivation of Internet then we'll see some real legislative traction.
The Clintons were always about third-way neolibralism. They're not the radical far-left but a corporate-friendly center right with a warhawk streak that would have been at home in the Nixon administration. They're kind is not the worst possible choice, combined with the big tent policies of the D
Re: (Score:1)
Re: (Score:2)
Another advantage of leaving the Internet has been covered by President Trump, "To end cybercrime we must stop using computers." [boingboing.net] Seems like such an obvious solution I don't know how we could have missed it. :-P
Re: (Score:2)
Long-term planning has not been our strong suit. We are repeatedly surprised by the consequences of our own actions. From gun control to global warming, on this we're a thickheaded lot.
Re: (Score:1)
Similarly, I can't think of a more effective way to incite a lasting and deep hate from your potential customers, and ensure that they never spend another cent on copyrighted material of any sort. Likewise for the absurd "restitution"; most people copying are doing so because they have no better option. Disconnecting and suing those without money, or those with strong anti-IP principles, will turn harmless people into a real threat to society.
Re: (Score:3)
> As far as anyone can tell I'm sitting in the Netherlands right now. :-)
So where are you sitting?
> Netherlands. But that's the last place they'll expect.
Re: (Score:2)
But America is Home of Democracy (Score:3)
Re:But America is Home of Democracy (Score:5, Insightful)
They don't exist. America is so vast it's got lots of talent but the masses do not value education (not to be confused with job training) and as religionists they're delusional mental defectives.
Re: (Score:3)
Bernie Sanders fits the bill nicely. https://feelthebern.org/bernie... [feelthebern.org] Unfortunately the democratic party really doesn't like him.
Re: (Score:2)
Re: (Score:2)
We can, but most prefer sweet little lies told by the incumbents, and try to vote themselves preferential treatment. The politician is a reflection.
Re: (Score:1)
Yes, but it means voting in your primary (Score:2)
Re: (Score:1)
Can't you vote in better politicians
are you form earth? No country on this planet has politicians who are truly elected by the people. If you think something as important as deciding on the country leader is left to the idiot-masses I have a bridge to sell you. People work better if they think they have a say, so governments let them think they have a say.
Re: (Score:2)
Can't you vote in better politicians
are you form earth? No country on this planet has politicians who are truly elected by the people. If you think something as important as deciding on the country leader is left to the idiot-masses I have a bridge to sell you. People work better if they think they have a say, so governments let them think they have a say.
This is a story that's told to us to keep us compliant. You will regularly find situations in democracies where some group or other gets together, gets enough people to support their cause, replaces the current politicians with ones who are willing to do what they want. Sure enough, the new politicians will gradually become corrupt, the old politicians will worm their way back into power and so on. However, the group that pushed its demand will get to keep that and never be troubled again. A partial exa
Re: (Score:1)
Theoretically, but usually they just get bought off too.
Re:But America is Home of Democracy (Score:5, Insightful)
Yeah, maybe I'm using a bit of hyperbole, or maybe I'm not? I actually know people who believe each of the things I've listed above. And sadly, they all vote.
Re: (Score:3)
The voters don't understand the laws. (Score:2)
You can't vote away code bloat.
Re: (Score:3)
Tech-illiterates are dangerous (Score:1)
Tech-illiterates are, other things being equal, inferior to tech-literates and should be regarded as "socially illiterate".
They cannot understand tech issues. Without years of study only prodigies can. Couple that with cognitive decline (to which jurists are not immune) this makes their opinions unworthy of consideration except for the fact they were empowered by politicians to judge the rest of us.
Re: (Score:3)
Re: (Score:1)
O'Grady in particular is a luddite.
This isn't even a technical issue. He is just a moron.
In a hearing on Cox's earlier infringement case in 2015, he called concerns about losing access "completely hysterical," and compared them to "my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework."
His judgement requires taking away his sons electronics when *any random person* claims his son didn't do his homework, despite his son having done his homework.
This moron would choose to believe the kno
Re: (Score:1)
The US Judicial Scam Further Unfolds (Score:5, Informative)
Nearly 100% of consumer lawsuit victories are reduced by the courts as they protect their corporate masters. It makes you wonder why the have jury trials at all. The whole thing is an illusion.
“ The court also allowed a damages formula that can lead to nearly unlimited damages, with no relationship to any actual harm suffered.”
The court gives you exactly the opposite. They require said relationship.
Oh, Only one of you ever risks jail time for taking too much from the other. Can you guys which one? There’s criminal law for one of you, and civil law for the other. I don’t want to spoil the surprise.
Want a good real-life random number generator? Call the feds and tell them that a company knowingly overcharged your credit card, and explain that you’d like their CEO arrested for theft. Then, count how many seconds it takes them to stop laughing.
If a company bars class-actions makes its customers go to court individually, and a thousand customers take them to court, the court just consolidates the cases anyway. In effect, there is no risk for the company in creating the clauses.
That way, it’s super easy to steal millions by defrauding lots of people relatively small amounts. You’d be a bad businessman in American if you didn’t do this. After all, what kind of manic goes to court over a dollar or two?
Cha
Motherfucking
Ching
Re: (Score:3)
I guess it's time (Score:3)
to start filing complaints about Sony, and terminating their business connections.
It is just setting the scene (Score:1)
Demand common carrier (Score:1)
Then we can squash this bullshit. Otherwise the internet will just get a little darker.
*sigh* Very little hope in this Mad Max world of high finance
Re: (Score:2)
Then we can squash this bullshit. Otherwise the internet will just get a little darker.
*sigh* Very little hope in this Mad Max world of high finance
The organization that provides the pipe to your home should be a common carrier. They carry bits and don't care what they mean, the same way the telephone company carries voice and doesn't care what you say.
You can then choose an internet provider to connect your bits to the internet. Depending on what services they provide, they might also be a common carrier. They would certainly provide an IP address (or more than one) and might also provide a firewall which you can configure. If they also provide co
Re: (Score:2)
Why should the ISP have to only provide an internet service to get the common carrier status? (is in Australia for context)
It would be like saying a store could only provide fruit or books or vegetables. Or a car dealer who sells cars can't service them.
(For context here in Australia every ISP/NSP has always offered email as part of the package)
Re: (Score:2)
Why should the ISP have to only provide an internet service to get the common carrier status? (is in Australia for context)
It would be like saying a store could only provide fruit or books or vegetables. Or a car dealer who sells cars can't service them.
(For context here in Australia every ISP/NSP has always offered email as part of the package)
There are special rules in US law protecting "common carriers" who only carry something from one place to antoher. They are not liable if the stuff they carry is illegal. This allows a package delivery service, for example, to pick up, transport and deliver a package without having to open it to determine if it is illegal. A company who provides services beyond simple carriage is not protected.
To take advantage of common carrier status a company which offers internet access and e-mail would have to divid
This will go great with municipal broadband (Score:2)
Re: (Score:2)
Re: (Score:1)
Re: (Score:2)
5th amendment (Score:5, Insightful)
"nor be deprived of life, liberty, or property, without due process of law;"
I must have simply failed to notice the "Unless a couple of randos file DMCA requests against my account to my ISP" exemption stipulated in the 5th amendment.
Re:5th amendment (Score:4, Insightful)
sony Japan not satisfied (Score:1)
until all the pesky americans are cut off from the internet.
Re: (Score:1)
Lost access? (Score:3, Informative)
Re:Lost access? (Score:4, Informative)
And what if he is falsely accused of copyright infringement because he was downloading a linux iso using bittorrent or something similar? There is no shortage of such cases, and this could cause real serious harm to people.
Re: (Score:3)
Re: (Score:1)
Get enough of them and that is indeed what happens in UK. You do get to drive again after a certain period has elapsed, but you might have to retake the driving test first.
Re: (Score:1)
Judges at all levels today are (Score:2)
Yoiu know this little legal oops (Score:2)
Just think
but (lawyers target) didn't take "simple measures" available to it to stop further (fill in the blank) Bang! (lawyers target) is guilty and must pay.
Money for nothing, the legal dream.
Deprived of the internet? In Eu it's a right now! (Score:3)
The European Courts have ruled that people have a right to the internet because it is so crucial to life - so much so that even sex offenders can't be deprived of it!
Afford good lawyers (Score:2)
A telling quote: He's saying Sony has more rights and everyone else needs to spend their time and money protecting them.
With this ruling under their belt, Sony and friends will go for the ISPs who can afford good lawyers. In that case, I suspect the "more rights" ruling will quickly be kicked-out and the traditional rules re-instated.