bmg – Techdirt (original) (raw)

BMG Settles With Toymaker Over Parody Song Used To Sell Pooping Unicorn Toys

from the aw-crap dept

Back in February, a copyright case that somehow made it past me, but embedded below, was filed by BMG against MGA Entertainment over a song the latter used for one of its toys. That song was called “My Poops” and is a parody of The Blackeyed Peas’ “My Humps.” You can go hear the song, which MGA used in advertising for the toy, in the link above. There are similarities, yes, because this is a parody song.

Parody that could have fallen under fair use protections, had the suit concluded at trial. Sadly, this is yet another one of these copyright suits that ends not with any clear results on the question of parody protections, but instead in a confidential settlement.

U.S. District Judge Edgardo Ramos terminated the case in an order published on Tuesday after the two sides told him that they had resolved the dispute.

Terms of the settlement were not available, and representatives for the companies did not immediately respond to requests for comment and more information on Wednesday.

Now, the initial suit demanded $10 million in damages be paid to BMG, so you have to imagine the settlement wasn’t for that high amount. Whether any money changed hands is unclear, of course, but I don’t think it should have. Yes, the toy dances to “My Poops” when you press a button on it. Yes, the company put out a music video featuring the song as an advertisement for the toys. But the factors for a use being covered by fair use are:

The purpose of the use in this case was parody. It was turning the hit song into something ridiculous, lampooning it all the more so by taking a genuine pop song and turning it into a song about, well, pooping unicorns. The nature of the original work is indeed a creative one, so there’s that. The parody song in question, on the other hand, was something like 30 seconds, representing a small percentage of the total runtime of the original work. As to the fourth factor, well, I’d love to hear anyone argue that “My Poops” somehow has a negative impact on the potential market for the band’s 2005 song “My Humps.”

But we’ll never get to see the outcome had MGA tried a fair use defense. And that’s crappy.

Filed Under: black eyed peas, copyright, my poops, parody, pooping unicorn
Companies: bmg, mga entertainment

from the can-I-get-a-witness? dept

Readers here will not need to be reminded that BMG, a prolific music label, is also a prolific enforcer of copyright. BMG has been party to some of the most notable instances of copyright enforcement, from its lawsuit against Cox, to its use of Rightscorp to troll internet users and lie to them, up to and including taking down news videos of President Obama singing an Al Green song. There are plenty more examples after those, leaving anyone perusing them with the distinct impression that BMG super-duper respects the strictest enforcement of copyright laws, presumably in order to protect creators of content.

But that wouldn’t seem to be the case if the accusations from the Jehovah’s Witness affiliated Watch Tower Bible and Tract Society are true. See, BMG is the publisher for artist Aled Jones’ album Blessings, which is essentially a collection of religious songs from a wide variety of faiths. Jones included a Jehovah’s Witness song, kicking off a shit storm.

The problem lies in a song on the album called “Listen, Obey and Be Blessed”, a work owned by the Watch Tower Bible and Tract Society, the supervising body and publisher for the Jehovah’s Witness religious group. The appearance of this song on a commercial album immediately raised alarm bells among the religion’s followers who, through their teachings and knowledge of their faith, knew this track shouldn’t have been used in this manner.

And so a lawsuit was filed. BMG is listed as the defendant alongside various John Does, all of whom Watch Tower accuses of violating its copyrights on the song. The group has a copyright registration on the song via a song book it constructed. Watch Tower also is the only authorized entity for licensing the song, which it has only licensed to other parts of the Jehovah’s Witness organization. Watch Tower also reached out to Aled Jones prior to the album’s release informing him that he didn’t have permission to use the song. At that point, BMG responded, indicating it had a license from GEMA, the German rights society. And that, friends, is where things get really weird.

Despite the claims from both music outfits, Watch Tower insists it never approved licenses. This appears to be supported in a response from GEMA, which told the religious group that BMG UK had asked for a license but the request was denied because GEMA had no rights to license the work.

The buck was then passed to BMG in the US, who were apparently in the process of obtaining a compulsory mechanical license to use the song. However, Watch Tower says the necessary procedures weren’t followed so that licensing opportunity failed. As a result, BMG is guilty of copyright infringement and causing reputational damage to the entire religion.

I mean, if BMG published the album including the song before it had gone through the process to obtain the mechanical license then… yeah. I suppose there’s a chance that at trial BMG could come up with some kind of evidence that it had procured a proper license for the song, but it sure seems like if such evidence existed it would have been presented prior to the lawsuit being filed at all.

Which would make BMG, fervent protectors of copyright, nothing but a bunch of dirty ol’ pirates. Hypocrisy of this kind is by no means rare, but it still always amazes me how much you can rely on the most ardent enforcers of copyright eventually being found out to have violated copyright themselves.

Filed Under: aled jones, copyright, jehovah's witnesses, listen, obey and be blessed, piracy
Companies: bmg, watch tower bible and tract society, watchtower

from the rights-of-the-roundtable dept

A few years ago the Copyright Office commenced several studies on the DMCA. One, on Section 1201, resulted in a report to Congress and some improvements to the triennial rulemaking process. But for the other study, on Section 512, things had been quiet for a while. Until earlier this year, when the Copyright Office announced it was hosting an additional roundtable hearing to solicit additional input. What the Copyright Office wanted to know in particular was how recent developments in US and international law should inform the recommendations they may issue as a result of this study.

The Copia Institute had already submitted two rounds of comments, and both Mike and I had separately given testimony at the hearing held in San Francisco. This new hearing was a good chance to remind the Copyright Office of the First Amendment concerns with the DMCA we had already warned them about, many of which are just as worrying ? if not more so ? today.

One significant, overarching problem is the way the DMCA results in such severe consequences for speech, speakers, and platforms themselves based on the mere accusation of infringement. It is unique in American law for there to be such an effect like this: in most instances, sanction cannot follow unless and until a court has found there to be actual liability. In fact, when it comes to affecting speech interests it is expressly forbidden by the First Amendment to punish speakers or speech before a court has found specific instances of speech unlawful. To do otherwise ? to punish speech, or, worse, to punish a speaker before they’ve even had a chance to make wrongful speech ? is prior restraint, and not constitutional. Yet in the DMCA context, this sort of punishment happens all the time. And since the last roundtable hearing it has only gotten worse.

Several things are making it worse. One is that Section 512(f) remains toothless, thanks to the Supreme Court refusing to review the Ninth Circuit’s decision in Lenz v. Universal. Section 512(f) is the provision in the DMCA that is supposed to deter, and punish, those who send invalid takedown notices. Invalid takedown notices force the removal of speech that may be perfectly lawful because they put the platform’s safe harbor at risk if it doesn’t remove it. Unfortunately, in the wake of Lenz it has been functionally impossible for those whose speech has been removed to hold the sender of these invalid notices liable for the harm they caused. And it’s not like there are other options for affected speakers to use to try to remediate their injury.

Also, it is not only the sort of notices at issue in Lenz that have been impacting speakers and speech. An important thing to remember is that the DMCA actually provides for four different kinds of safe harbors. We most often discuss the Section 512(c) safe harbor, which is for platforms that store content “at the direction of users.” Section 512(c) describes the “takedown notices” that copyright holders need to send these platforms to get that user-stored content removed. But the service providers that instead use the safe harbor at Section 512(a) aren’t required to accept these sorts of takedown notices. Which makes sense, because there’s nothing for them to take down. These sorts of platforms are generally all-purpose ISPs, including broadband ISPs, of which there are all-too-few choices for customers to use if they are cut off from one. All the user expression they handle is inherently transient, because the sole job of these providers is to deliver it to where it’s going, not store it.

And yet, these sorts of providers are also required, like any other platform that uses any of the other safe harbors, to comply with Section 512(i) and have a policy to terminate repeat infringers. The question, of course, is how are they supposed to know if one of their users is actually a repeat infringer. And that’s where recent case law has gotten especially troubling from a First Amendment standpoint.

The issue is that, while there are plenty of problems with Section 512(c) takedown notices, the sorts of notices that are being sent to 512(a) service providers are even uglier. As was the case with the notices sent by Rightscorp in the BMG v. Cox case ? the first in an expanding line of cases pushing 512(a) service providers like Cox to lose their safe harbor for not holding these mere allegations of infringement against their users in order to terminate them from their services ? these notices are often duplicative, voluminous beyond any reasonable measure, extortionate in their demands, and reflective of completely invalid copyright claims. And yet the courts have not yet seemed to care.

As we noted at the roundtable, the court in Cox ultimately threw out all the infringement claims for an entire plaintiff because it wasn’t clear that it even owned the relevant copyrights, despite Rightscorp having sent numerous notices to Cox claiming that it did. But instead of finding that these deficiencies in the notices justified the ISP’s suspicions about the merit of the other notices it had received, the court still held it against the ISP that they hadn’t automatically credited all the other claims in all the other notices it had received, despite ample reason for being dubious about them. Worse, the court faulted the ISP for not just refusing to automatically believing the alleged infringement notices it had received but for not acting upon them to terminate people who had accumulated too many. As we and other participants flagged at the hearing, there are significant problems with this reasoning. One relates to the very idea that termination of a user is ever an appropriate or Constitutional reaction, even the user is actually infringing copyright. Since the last hearing the Supreme Court has announced in Packingham v. North Carolina that being cut off from the Internet in this day and age is unconstitutional. (As someone at the else roundtable this time pointed out, if it isn’t OK to kick someone off the Internet for being a sex offender, it is less likely that it’s OK to kick someone off the Internet for merely infringing copyright.)

Secondly, the Cox court ran square into the crux of the First Amendment problem with the DMCA: that it forces ISPs to act against their users based on unadjudicated allegations of infringement. It’s bad enough that legitimate speech gets taken down by unadjudicated claims in the 512(c) notice-and-takedown context, but to condition a platform’s safe harbor on preventing a person from ever getting to speak online ever again, simply because they’ve received too many allegations of infringement, presents an even bigger problem. Especially since, as we pointed out, it opens the door to would-be censors to game the system. Simply make as many unfounded accusations of infringement as you want against the speaker you don’t like (which no one will ever be able to effectively sanction you for doing) and the platform will have no choice but to kick them off their service in order to protect their safe harbor.

There is also yet another major problem underlying this, and every other, aspect of the DMCA’s operation: that there is no way to tell on its face whether user speech is actually infringing. Is there actually a copyright? If so, who owns it? Is there a license that permitted the use? What about fair use? Any provider that gets an infringement notice will have no way to accurately assess the answers to these questions, which is why it’s so problematic that they are forced to presume every allegation is meritorious, since so many won’t be.

But the roundtable also hit on another line of cases that also suffers from the same problem of infringement never being facially apparent. In Mavrix v. Livejournal the Ninth Circuit considered that the moderation Livejournal was doing ? as allowed (and encouraged) by CDA Section 230 ? to have potentially waived its safe harbor. The problem with the court’s decision was that it construed the way Livejournal screened user-supplied content as converting it from content stored “at the direction of users” to its own content, and several roundtable participants pointed out that this reading was not a good one. In fact, it’s terrible, if you want to ensure that platforms remain motivated ? and able ? to perform the screening functions Congress wanted them to perform when it passed Section 230. Because there’s a more general concern: if various provisions of the DMCA suddenly turn out to be gotchas that cause platforms to lose their safe harbor, if in the process of screening content they happen to see some that might be infringing, they won’t be able to keep doing it. Perhaps this is not a full-on First Amendment problem, but it still affects online expression and the ability of platforms to enable it.

Filed Under: 512h, 512i, censorship, copyright, dmca, dmca 512, free speech, takedowns
Companies: bmg, cox, rightscorp

from the and-onward dept

The long saga of the BMG v. Cox case is now over. If you don’t recall, BMG had hired the copyright trolling outfit Rightscorp to bombard ISPs with shakedown letters, based on accusations of copyright infringement. Rightscorp really wanted ISPs to pass those letters on to ISP subscribers, including the part where they demand money to leave you alone. As was revealed during the case, Rightscorp would blatantly lie to those subscribers, telling them that if they were innocent they needed to first hand their computers over the police for a forensic search. Cox, after being bombarded with these shakedown letters, started ignoring the Rightscorp letters, leading BMG to sue.

Cox pointed to the DMCA safe harbors to protect itself, but the judge, Liam O’Grady, made it pretty clear that he didn’t care much for the internet at all, and didn’t seem to mind Righscorp and BMG shaking down people for money with the threat of losing their entire internet access. Of course, it did not help at all that Cox itself had some damning emails about how they treated subscribers accused of infringement. While plenty of attention has been placed on Cox’s apparent “thirteen strikes” policy for those accused (not convicted) of copyright infringement, the real problem came down to the fact that Cox didn’t follow its own repeat infringer policy. So, in the end, Cox lost to BMG in the lower court and it was mostly upheld on appeal.

However, the case was sent back down to the lower court because O’Grady messed up with his jury instructions, providing them with the wrong standard for contributory infringement (O’Grady’s jury instructions about contributory infringement presented it as a much broader standard than it actually was). And thus, the case was supposed to go back for another trial… but that’s now over as the two sides have settled and Judge O’Grady immediately signed off on the settlement.

This isn’t all that surprising. Cox was basically in a no-win situation, since its own failure to abide by its own repeat infringer policy had already sunk it, and spending a few hundred thousand dollars more on lawyers to argue over contributory infringement in hopes of lowering the damages award probably wasn’t worth it if they could just settle the case and move on.

Oh, and of course, Cox now also has a brand new fight with all the major labels that was launched a few weeks ago in response to the results of the BMG case. And Cox is right back in Judge O’Grady’s unwelcome court room for that case. I wouldn’t be surprised if Cox tries to settle its way out of that case as well.

Filed Under: copyright, copyright trolling, dmca, liam o'grady, repeat infringer, settlement
Companies: bmg, cox, rightscorp

from the this-makes-no-sense dept

We’ve been following the BMG v. Cox lawsuit from the very beginning, through all its very odd twists and turns, including having a judge in the district court, Liam O’Grady, who made it quite clear that he didn’t much care about the internet, and didn’t see why it was a problem if people lost their internet access completely based on merely a few allegations of copyright infringement. The 4th Circuit appeals court has now overturned the lower court ruling and sent the case back to the district court for a do-over. While the initial decision was awful (as we discuss below), this new ruling makes a huge mess out of copyright law and will have serious, dangerous, and long-lasting consequences for the internet as a whole.

If you don’t recall, the case involved BMG suing Cox Communications, though much of the case really hinged on the actions of another company, Rightscorp, who has been trying (and mostly failing) to build a business model around a form of mild copyright trolling. Rather than the aggressive “sue ’em and settle,” strategy employed by others, Rightscorp would send DMCA takedowns to ISPs, with a settlement offer, and hope that the ISPs would pass those notices on to subscribers accused of infringing.

Cox Communications — a decently large broadband provider — made it quite clear to Rightscorp that it did not intend to be a part of its business model, and refused to pass on the settlement letters. Rightscorp started flooding Cox with notices… to the point that Cox decided to effectively just trash all inbound messages from Rightscorp as spam. After all this happened, Rightscorp signed BMG as a client, and then sued Cox, claiming the ISP had violated the DMCA by not kicking users off. What came out during the trial was that Cox basically had a “thirteen strike” policy (some of the earlier strikes involved stopping internet access until you read something and clicked something — or requiring the user to call in to Cox).

What is rarely noted, of course, is that Cox was basically one of the only ISPs to actually have any termination policy for people who used their connections for copyright infringement. Most ISPs (and most copyright lawyers not working for legacy industry interests) believed that the DMCA’s requirement for a “repeat infringer policy” was not directed at access providers, but at content hosts, where the issues are much clearer. However, BMG claimed here that Cox violated the DMCA’s requirement for a repeat infringer policy — and the court agreed. Cox was, partly, undone by some pretty bad behavior behind the scenes, that seemed to tar it as a “bad actor” and obscure the underlying copyright issues. Even more ridiculous was that Judge O’Grady later argued that Cox should pay the other side’s legal fees, because even bringing up the idea that it was protected by safe harbors was “objectively unreasonable.” That, itself, was crazy, since tons of copyright experts actually think Cox was correct.

On appeal there were two key issues raised by Cox. The main issue was to argue that O’Grady was incorrect and that the DMCA safe harbors covered Cox. The second pertained to the specific jury instructions given to the jurors in the case. The new ruling unfortunately upholds the ruling that Cox is not covered by the DMCA’s safe harbors, but does say that the instructions given to the jury were incorrect. Of course, it then proceeds to make a huge muddle of what copyright law says in the process. But we’ll get to that.

The Impact on Safe Harbors

Let’s start with the safe harbors part of the ruling, which is what most people are focusing on. As the court notes, Cox (correctly, in my view), pointed out that even if it was subject to a repeat infringer policy, that should cover actual infringers, not just those accused of infringing. After all, it’s not like there aren’t tons upon tons of examples of false copyright infringement accusations making the rounds, and that’s doubly true when it comes to trolling operations. If the rule is that people can lose all access to the internet based solely on unproven accusations of infringement, that seems like a huge problem. But, here, the court says that it’s the correct way to read the statute:

Cox contends that because the repeat infringer provision uses the term ?infringer? without modifiers such as ?alleged? or ?claimed? that appear elsewhere in the DMCA, ?infringer? must mean ?adjudicated infringer.? But the DMCA?s use of phrases like ?alleged infringer? in other portions of the statute indicates only that the term ?infringer? alone must mean something different than ?alleged infringer,? otherwise, the word ?alleged? would be superfluous. Using the ordinary meaning of ?infringer,? however, fully accords with this principle: someone who actually infringes a copyright differs from someone who has merely allegedly infringed a copyright, because an allegation could be false. The need to differentiate the terms ?infringer? and ?alleged infringer? thus does not mandate Cox?s proposed definition.

Moreover, other provisions of the Copyright Act use the term ?infringer? (and similar terms) to refer to all who engage in infringing activity, not just the narrow subset of those who have been so adjudicated by a court. For example, § 501(a), which creates a civil cause of action for copyright owners, states that ?[a]nyone who violates any of the exclusive rights of the copyright owner? provided for in the statute ?is an infringer of the copyright or right of the author.? 17 U.S.C. § 501(a) (emphasis added).

Similarly, the DMCA itself provides that ISPs who store copyrighted material are generally not liable for removing ?material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.? Id. § 512(g)(1) (emphases added). This provision expressly distinguishes among three categories of activity: activity merely ?claimed to be infringing,? actual ?infringing activity? (as is apparent from ?facts or circumstances?), and activity ?ultimately determined to be infringing.? The distinction between ?infringing activity? and activity ?ultimately determined to be infringing? in ? 512(g) shelters ISPs from being liable for taking down material that is ?infringing,? even if no court ?ultimately determine[s]? that it is infringing ? because, for example, the copyright holder simply does not file a lawsuit against the person who uploaded the infringing material. As this provision illustrates, Congress knew how to expressly refer to adjudicated infringement, but did not do so in the repeat infringer provision.

Again, the obvious implications of this are… insane. It means that you can potentially get people completely kicked off the internet with a series of knowingly false accusations of copyright infringement. How could anyone justify that as a reasonable policy?

The court insists that the legislative history supports this… but the only way it does is if you torture the legislative history and ignore what it says. Here’s what the court says:

The legislative history of the repeat infringer provision supports this conclusion. Both the House Commerce and Senate Judiciary Committee Reports explained that ?those who repeatedly or flagrantly abuse their access to the Internet through disrespect for the intellectual property rights of others should know that there is a realistic threat of losing that access.? H.R. Rep. No. 105-551, pt. 2, at 61 (1998); S. Rep. No. 105-190, at 52 (1998). This passage makes clear that if persons ?abuse their access to the Internet through disrespect for the intellectual property rights of others??that is, if they infringe copyrights ? they should face a ?realistic threat of losing? their Internet access.

But, again, based on the ruling here, this still applies even if the accusations are totally false and no infringement occurred. The court seems to ignore the word “abuse” in this statement and doesn’t even bother to consider that there may be abuse on the other side — in the form of copyright trolling against non-infringers (or simply trying to harm or silence the speech of a non-infringer).

Next up, the court has to determine whether or not Cox’s repeat infringer policy was “reasonable.” This, itself, is a minefield. The law provides no guidance beyond that to qualify for the safe harbor the provider has to have “adopted and reasonably implemented… a policy that provides for the termination in appropriate circumstances of subscribers… who are repeat infringers.” That seems to leave an awful lot of discretion to the provider — which the court admits… before determining that it doesn’t think Cox’s policy was reasonably implemented. And this is where a few bad actions by Cox employees comes back to haunt the company:

Here, Cox formally adopted a repeat infringer ?policy,? but, both before and after September 2012, made every effort to avoid reasonably implementing that policy. Indeed, in carrying out its thirteen-strike process, Cox very clearly determined not to terminate subscribers who in fact repeatedly violated the policy.

The words of Cox?s own employees confirm this conclusion. In a 2009 email, Jason Zabek, the executive managing the Abuse Group, a team tasked with addressing subscribers? violations of Cox?s policies, explained to his team that ?if a customer is terminated for DMCA, you are able to reactivate them,? and that ?[a]fter you reactivate them the DMCA ?counter? restarts.? The email continued, ?This is to be an unwritten semi-policy.? Zabek also advised a customer service representative asking whether she could reactivate a terminated subscriber that ?[i]f it is for DMCA you can go ahead and reactivate.? Zabek explained to another representative: ?Once the customer has been terminated for DMCA, we have fulfilled the obligation of the DMCA safe harbor and can start over.? He elaborated that this would allow Cox to ?collect a few extra weeks of payments for their account. ;-).? Another email summarized Cox?s practice more succinctly: ?DMCA = reactivate.? As a result of this practice, from the beginning of the litigated time period until September 2012, Cox never terminated a subscriber for infringement without reactivating them.

One would hope that this part of the ruling would at least, somewhat, protect other ISPs that don’t send stupid emails like that. But, you never know.

The Messed Up Jury Instructions

To fully follow the issues here, we have to take a quick tour to key copyright cases of years past. In the Betamax Case, Hollywood sued the makers of VCR devices (okay, okay, Betamax devices) for selling a product that its customers used to infringe. In 1984, the Supreme Court said that was crazy, and since the VCR had “substanitial non-infringing uses,” it was legal to sell it, even if it was used to infringe. Almost 20 years later, the Supreme Court chopped away at this standard a bit in the unfortunate (and still wrong) Grokster case, that said even if the tool had substantial non-infringing uses, if the company “induced” infringement, then it could still be liable. But there had to be fairly strong evidence of actual inducement by the company — in Grokster, the company more or less encouraged people to infringe.

Cox asked the court to use the Betamax standard in the jury instructions, saying that it’s not contributory copyright infringement if there are substantial non-infringing uses — but the lower court rejected that, and this court does too, pointing to Grokster (but not actually groking what the Grokster court said). But a second complaint about the jury instructions does win the support of the appeals court. Cox, rightly, argued that the jury instruction telling jurors that the standard for contributory infringement was if the company “knew or should have known of such infringing activity.” The big problem here is the “should have known” part. That is not the law. It’s not in the law. It’s not supported by court decisions and has been rejected by numerous court decisions. And, here, the court finally gives Cox a break and says that those jury instructions went too far. “Should have known” is a negligence standard — it suggests even if you didn’t know, you were negligent in not knowing, and therefor still liable. But copyright law demands actual knowledge. And thus, the original ruling is thrown out and sent back to the court.

But… even with the jury verdict being tossed, this discussion is… weird. And troubling. Remember, the Grokster standard is about “inducement” which involved a level of intent on the part of the service provider. That’s about taking specific actions to encourage the use for infringement. But, the court here keeps slipping into a separate question of “knowledge.” The knowledge question and the inducement/intent question are two separate questions. But it’s not clear that the court even realizes that. It keeps going back and forth between questions about inducement and questions about actual knowledge, to the point that it almost appears the court thinks these are the same things. But knowledge alone is not enough to prove a party induced others to infringe on a copyright.

See the following discussion:

First, Grokster?s recitation of the standard?that ?[o]ne infringes contributorily by intentionally inducing or encouraging direct infringement? ? is on its face difficult to reconcile with a negligence standard. See 545 U.S. at 930 (emphasis added). In addition, it would have been unnecessary for the Court to discuss in detail the situations in which intent may be presumed, and those situations, like Sony, in which it may not, if liability did not require intent at all, but merely required negligence….

Looking to patent law, as the Supreme Court did in Sony and Grokster, further counsels against a negligence standard. The Supreme Court has long held that contributory patent infringement requires knowledge of direct infringement. Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488 (1964). And in 2011, the Court held that willful blindness satisfies this knowledge requirement, but recklessness (?one who merely knows of a substantial and unjustified risk of . . . wrongdoing?) and negligence (?one who should have known of a similar risk but, in fact, did not?) do not. Global-Tech, 563 U.S. at 769?71. The Court reaffirmed this holding in 2015, stating that contributory patent infringement ?requires proof the defendant knew the acts were infringing,? and that Global-Tech ?was clear in rejecting any lesser mental state as the standard.? Commil USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920, 1928 (2015). The Court expressly rejected the possibility ?that a person, or entity, could be liable even though he did not know the acts were infringing.? Id. Thus, in the patent context, it is clear that contributory infringement cannot be based on a finding that a defendant ?should have known? of infringement.

In both Grokster and Sony, the Supreme Court adopted now-codified patent law doctrines? the staple article doctrine and the inducement rule. The Court did so because of ?the historic kinship between patent law and copyright law,? Sony, 464 U.S. at 439?42, and the similar need in both contexts to impose liability on ?culpable expression and conduct? without ?discouraging the development of technologies with lawful and unlawful potential,? Grokster, 545 U.S. at 936?37. We are persuaded that the Global-Tech rule developed in the patent law context, which held that contributory liability can be based on willful blindness but not on recklessness or negligence, is a sensible one in the copyright context. It appropriately targets culpable conduct without unduly burdening technological development.

Note that the first paragraph is about inducement, which has specific characteristics, and the latter two are about “knowledge.” But knowledge isn’t what proves the intent for inducement. So… even as it’s right to kick this back to the lower court, it feels like the 4th Circuit got twisted up by its own reasoning.

Then there’s the issue of what the court means when it talks about “specific instances of knowledge.” See this paragraph:

Selling a product with both lawful and unlawful uses suggests an intent to cause infringement only if the seller knows of specific instances of infringement, but not if the seller only generally knows of infringement. See Ludvarts, 710 F.3d at 1072 (holding that contributory copyright infringement ?requires more than a generalized knowledge . . . of the possibility of infringement?; it requires ?specific knowledge of infringement?). A seller who only generally knows of infringement is aware that ?some of [his] products will be misused? ? but critically, not which products will be misused.

This same issue came up in the Viacom v. YouTube case, in which it was found that YouTube wasn’t infringing just because it had “general knowledge” that it was hosting some infringing content. It could only be liable if it had actual knowledge of infringing content and then failed to take it down. But… how the hell do you apply that standard here? You can see how it would apply to YouTube, where YouTube can go and see the file still hosted on its servers after being notified that it’s infringing and then check to see that it is, indeed, the same material as the copyright holder claims. For an ISP, however, where the data is in motion, as opposed to at rest, all you have to go on are these often erroneous notifications from Rightscorp claiming infringement. But by the time an ISP like Cox would look at it… the transmission would be complete. So how can Cox have “actual knowledge” of infringement — absent a court ruling that the activity was infringing (bringing us all the way back around to the first point made above)?

Either way, this case is hardly over yet, as there’s still another trial to now go through. But, as it stands, it’s making a big mess out of copyright law. And that’s not good.

Filed Under: actual knowledge, copyright, dmca, dmca 512, inducement, infringement, jury instructions, knowledge, safe harbors, termination policy
Companies: bmg, cox, rightscorp

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

from the which-is-worse? dept

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

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

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

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

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

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

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

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

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

How The Supreme Court's Recent Free Speech Ruling May Destroy Hollywood's Plans To Kick People Off The Internet

from the about-that... dept

Earlier this week, we wrote about the details of the Supreme Court’s ruling in Packingham v. North Carolina — the case that said a North Carolina law that barred convicted sex offenders from using social media was unconstitutional. There were some good lines in the ruling, but this may be the most important:

Even with these assumptions about the scope of the law and the State?s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind…. By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with anInternet connection to ?become a town crier with a voice that resonates farther than it could from any soapbox.”…

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals?and in some instances especially convicted criminals?might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

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

As noted by copyright professor Annemarie Bridy, this clearly could impact those other cases following this ruling:

Packingham is relevant to this conversation because it stands quite clearly for the proposition that broadly defined state-mandated limits on access to the Internet raise serious First Amendment issues. Packingham challenged the constitutionality of a North Carolina criminal statute prohibiting registered sex offenders from accessing ?commercial social networking sites? on the Internet. In striking down the statute on First Amendment grounds, the Court emphasized the critical importance of the Internet in general, and social media platforms in particular, to everyday life in the ?Cyber Age.? While the Court recognized a significant governmental interest in preventing use of the Internet for criminal activity, it held that North Carolina?s ban on social media access swept too broadly. Interestingly, the Court elected not to decide with precision how much of the Internet the challenged statute put off limits. It declined to say?because it didn?t think it had to?whether the statute?s prohibition reached sites like Amazon.com, Washingtonpost.com, and WebMD.com in addition to ?commonly understood? social networking sites like Facebook, LinkedIn, and Twitter. The Court concluded that the statute couldn?t survive First Amendment scrutiny even if it were narrowly construed to cover only the social media platforms that everyone can agree are social media platforms. To put it another way, the statute?s prohibition was broad enough to offend the First Amendment even when narrowly construed to cover only parts of the Web.

Bridy doesn’t go so far as to argue that Packingham means 512(i) is unconstitutional — in fact, she notes that it’s more limited than the North Carolina law that was struck down. But, she notes:

Packingham?s holding should serve as a reminder to lower courts interpreting section 512(i) that termination of access to the Internet implicates core First Amendment values: ?While in the past there may have been difficulty in identifying the most important places (in the spatial sense) for the exchange of views, today the answer is clear. It is cyberspace.? Consequently, courts should consider it reasonable, and within the bounds of the DMCA safe harbor, for broadband providers to determine that ?appropriate circumstances? for terminating a user?s access to the whole Internet for infringing copyright are very rare.

Harold Feld, from Public Knowledge, goes a bit further in his own analysis, arguing that when it comes to internet access providers, it seems clear that parts of 512(i) requiring termination, should be seen as unconstitutional, while also pointing out that to argue against this might mean Hollywood arguing that copyright infringement is somehow worse that child molestation.

Granted, Hollywood lobbyists and their wholly owned subsidiaries in Congress are capable of arguing with a straight face that copyright infringement is actually worse than child molestation and therefore the government purpose is sufficiently compelling to override all First Amendment concerns. And some judges, like the district court judge in the BMG v. Cox decision, would probably agree. (Read his opinion here to see if you agree.) But I?m doubtful that the majority of appeals court judges will agree. Whether or not one treats the majority opinion?s public forum analysis of social networks as ?dicta? (which is legalese for ?stuff in an opinion I don?t like so I don?t consider binding?), all 8 Supreme Court justices agreed that subscribers have a First Amendment right to access information and speak online, and that the government cannot prohibit a person from accessing content that has nothing to do with preventing repeat offenses ? even when the repeat offense is child molestation, and the evidence arguably supported that child molesters were particularly prone to repetition.

Sorry, if molesting minors doesn?t justify permanently kicking you off the Internet, downloading 3 advance copies of Transformers: The Last Knight shouldn?t either. Congress cannot require ISPs to terminate subscribers accused of downloading pirating material (which is what Section 512(i) amounts to) anymore than it can criminalize accessing the Internet after being accused of downloading pirated material. Nor do I expect Big Content to prevail by arguing that getting you thrown off your ISP isn?t blocking you from accessing the Internet, because of all the amazing broadband options you have to replace your loss of service. While America boasted thousands of dial-up ISPs in 1998 when the DMCA was passed, most folks are lucky to have a choice of two landline providers capable of providing reliable, always on broadband of sufficient quality to allow me to engage in all my protected First Amendment online activity.

There is the separate question of whether or not this ruling would also kill off 512(i) as it applies to service providers on the network (e.g., Facebook, Twitter, Techdirt, etc…) rather than internet access providers, such as Comcast, AT&T, etc. Feld thinks there is an argument that the opinion could be read to block such rulings as well:

Whether Packingham makes Section 512(i)?s requirement that all social media sites and other ?covered entities? have termination policies for ?repeat infringers? is somewhat less clear. Taking the majority analysis as actual opinion rather than ?undisciplined dicta,? then the answer is clearly yes for major social network sites and platforms including ? wait for it ? Youtube. It?s kind of hard to argue that the largest online video platform, whose videos include some of the most important raw footage of critical events and which has become a central location for debate, doesn?t qualify as the kind of online public forum Kennedy described. Nor does it make much sense to say access to Facebook and Twitter are protected under the First Amendment while access to Youtube isn?t.

OTOH, I?m not sure the same analysis applies to cloud storage or other services that don?t share the attributes of a general public forum. And, of course, websites or services that are set up expressly to facilitate the exchange of infringing material don?t qualify for safe harbor protection anyway, so the hypothetical Doctor Evil Sing Along Piracy Exchange is already subject to liability.

Of course, none of this should apply to the platforms making decisions themselves over removing content or users from their own platforms (for which the platforms have their own First Amendment protections). Yet, I would not be at all surprised to see someone raise this issue in court, and argue that Packingham means that major social networks (Facebook, especially, but likely Twitter and YouTube as well) have no right to bar users. I think that would be a bad result, but the language in the Packingham ruling at least makes such a ruling a lot more plausible than it was last week.

The Packingham ruling is likely to have quite a lot of impact, and as predicted yesterday, I expect it to be quoted frequently in cases involving the internet over the next few years.

Filed Under: 512i, copyright, copyright trolling, dmca, first amendment, free speech, supreme court, three strikes
Companies: bmg, cox, grande communications, rightscorp

from the intended-consequences dept

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

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

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

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

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

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

On top of that, as TorrentFreak points out in its article, for all the talk of how Rightscorp is a “friendlier” copyright troll in that it only demands 20to20 to 20to30 when it finds an infringement, that’s misleading. Because, like responding to spam leading to more spam, paying Rightscorp can lead to many more demands:

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

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

Dangerous: Judge Says It Was 'Objectively Unreasonable' For Cox To Claim DMCA Safe Harbors

from the this-is-bad dept

We’ve been covering the BMG v. Cox case since the beginning, and a bad decision just got made even worse — and more dangerous. If you’ve been following the case, you know that it’s on appeal right now (and a whole bunch of amici have weighed in), but in the meantime, the judge in the district court, Judge Liam O’Grady, has doubled down on his opportunity to chop up and mock the DMCA’s safe harbors by telling Cox it must pay $8 million to BMG in legal fees because its using the DMCA safe harbors as a defense was found to be “objectively unreasonable.”

That’s crazy, for a variety of reasons, but we’ll get there. From the very beginning, this case was a joke, and it’s unfortunate that the court didn’t realize that early on. The case was filed back in 2014, and we pointed out that it was really BMG (and another publisher, Round Hill Music) acting as a proxy for copyright trolling operation Rightscorp, testing out the wacky legal theory that the DMCA requires that ISPs kick repeat infringers entirely off the internet. No one has ever interpreted the DMCA in this manner. Yes, 512(i) requires a repeat infringer policy, but it had always been widely recognized that that referred to services that hosted content, not network providers (e.g., YouTube is required to have a repeat infringer policy that kicks users off YouTube if they keep posting infringing works, but your ISP shouldn’t kick you off the internet for the same thing.)

If that interpretation of the law was legit, you’d think that someone would have tried it in court before — especially with all the whining from the MPAA and RIAA about how ISPs weren’t doing enough to stop piracy. So this was a real stretch as a legal theory.

But, somewhat amazingly — even after the legal proceedings demonstrated that the lawsuit was really about copyright trolling and exposed some heinously bad behavior by copyright troll Rightscorp — the case went against Cox and in favor of BMG (Round Hill Music was kicked out of the case early on).

O’Grady made it pretty clear in the case that he’s not a big fan of this internet thing, and doesn’t see why it’s a big deal if someone were to get kicked off the internet. At one point in the proceedings, Public Knowledge and EFF sought to file an amicus brief. Admittedly, many district court judges aren’t fans of amicus briefs (they’re more usually seen at appellate courts), but O’Grady was so dismissive of this one that it was fairly incredible:

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

So, yeah. Judge O’Grady then said that Cox wasn’t protected by the DMCA at all, which made it easy for the jury to find in favor of BMG and award it $25 million from Cox. Part of the problem was that there was some sketchy behavior by Cox (including some really dumb emails by staff who don’t understand the law, but look damning), but none of it should have directly impacted the legal issues, but that behavior clearly influenced O’Grady.

And, now, because of that, O’Grady has awarded legal fees, by arguing that Cox relying on the very same DMCA safe harbors that everyone else relies on and where Cox was the only major ISP that would kick off any user for infringement, was somehow “objectively unreasonable.” Think about that for a second. Let’s repeat it: Cox’s policy was the only one at a major ISP that kicked people off the network for repeat infringement. And every network provider regularly relies on the DMCA safe harbor to protect them from liability. And yet, Judge Liam O’Grady’s opinion says that it was “objectively unreasonable.” Oddly, O’Grady’s opinion here is again entirely focused on the bad behavior by some Cox employees, and not the overall question of whether or not the safe harbor actually works the way O’Grady (and Rightscorp and basically no one else) seems to think it works. Rather than explaining why it’s “objectively unreasonable” for Cox to rely on the DMCA’s safe harbors, O’Grady basically says that the reliance was unreasonable… because of the bad behavior. That’s conflating two separate things. Sanction them for bad behavior if you must, but don’t let that cloud the actual legal issue.

The objective reasonableness of a party’s position is an important factor in deciding whether to award fees…. In a hard-fought litigation battle such as this one, discovery disputes and fierce briefing are to be expected, and they should not be held too harshly against either party. Nonetheless, there are a few instances in which Cox’s advocacy crossed the line of objective reasonableness. In particular, both Cox’s attempts to obscure its practice of reinstating infringing customers, and its subsequent assertions of a deeply flawed DMCA defense evince a meritless litigation position that Cox vigorously defended.

[….]

…. Although Cox’s DMCA defense cannot be categorized as frivolous or in bad faith, the Court found that “[t]he record conclusively establishes that before the fall of 2012, Cox did not implement its repeat infringer policy. Instead, Cox publicly purported to comply with its policy, while privately disparaging and intentionally circumventing the requirements.”… The evidence supporting this conclusion was overwhelming, and it included “smoking gun” email conversations…. The most memorable of these contained Cox’s own abuse manager stating: “F . . . the dmca!!!”… Therefore, although Cox’s defensive arguments may have been reasonable as an abstract legal theory, when viewed in light of the actual facts of the case, they evince an objectively unreasonable litigation position that was nonetheless vigorously defended.

It’s clear that O’Grady is hung up on the bad behavior and statements by Cox employees. And, again, what they were saying was really bad. But the real question is whether or not it actually violated the DMCA. And Cox argued, quite reasonably, that it did not. The DMCA doesn’t actually require what O’Grady and BMG insist it does, and no other ISP even goes as far as Cox did (bad behavior or not). So because you have some clueless Cox employees, who were spouting off internally about how much they hate the DMCA (an opinion shared by many) and because they implemented their repeat infringer policy in a way that O’Grady felt wasn’t reasonable, suddenly arguing that the safe harbors still should apply (because they should!) is “objectively unreasonable”? That’s dangerous.

Again, the earlier parts of the case are already on appeal, so hopefully this will all get wiped out and this order won’t matter in the long run either. But if it does stand, it’s yet another serious problem that’s come out of this particular case.

Filed Under: attorney's fees, copyright, dmca, liam o'grady, objectively reasonable, repeat infringer, safe harbors
Companies: bmg, cox, rightscorp

from the about-time dept

The pointless “six strikes” plan — a hilarious “voluntary agreement” between some big ISPs and the MPAA & RIAAis no more. It’s dead. It never should have lived, and of course, the MPAA is now blaming everyone but itself for the failure — and we’ll get to that. But first, some background.

As you may remember, back in 2011, after significant direct pressure from the White House, many of the big ISPs and the MPAA & RIAA came to a (ha ha) “voluntary” agreement on a six strikes program to deal with “repeat infringers.” There was a lot of history behind this, which we won’t rehash, but the shorter version is that, for many years, the MPAA & RIAA have stupidly believed that if you could kick people off the internet (completely) if they’re caught infringing three times, that would magically make piracy go away. They got a “three strikes” law passed in a few countries, starting with France. It was a complete disaster, as basically everyone who wasn’t from the MPAA and RIAA predicted.

In the US, it became clear that there wasn’t the political appetite to push through a three strikes law, so instead parts of the government, starting with the White House, started putting tremendous pressure on ISPs to work out a deal. The negotiations took a very, very long time. There were lots of rumors about them and then radio silence — until the “six strikes” deal was announced. The “compromise” was that (1) it was six strikes instead of three and (2) after six strikes… nothing happened. The key aspect of the three strikes plans the legacy entertainment industry had pushed was that you lose your internet connection. But the ISPs, rightfully, considered that a complete dealbreaker and basically refused any deal with a cut off.

Of course, just months after the agreement was reached, the whole SOPA/PIPA thing happened, and ISPs realized that they probably could have pushed back even harder and not agreed to a crummy deal. The implementation of the plan was delayed repeatedly, and it was believed that some of the ISPs wanted to renegotiate post-SOPA.

The plan finally went into effect, and just as lots of people predicted, it had no real impact. Just as everywhere else where this plan went into effect, people who really wanted to find infringing works continued to do so. They just found ways of avoiding being spotted. It certainly didn’t magically make people want to go out and buy stuff. The organization that was set up to manage the six strikes program, the Center for Copyright Information (CCI) bravely put on its best Baghdad Bob beret and insisted that the plan was working great — even as leaked documents showed that Hollywood knew from early on that the plan was a dud.

And now it’s dead:

Major internet providers are ending a four-year-old system in which consumers received ?copyright alerts? when they viewed peer-to-peer pirated content.

The ISPs, studios, and record labels did not extend a pact that implemented the voluntary program, viewed as a way to fight piracy without the need for congressional legislation. When it debuted in 2013, it was viewed as a major new initiative to fight piracy, with Internet users subject to repeated notices if they continued to access infringing content.

But, true to form, the MPAA wants to point the finger at everyone but itself for its own failures to stop treating fans as criminals:

Although no reason was given for ending the program, the MPAA, in a statement from its general counsel, indicated frustration at the inability to stop repeat infringers.

?These repeat infringers are the ones who drive ongoing and problematic P2P piracy,? Steven Fabrizio, executive vice president and global general counsel at the MPAA, said in a statement. ?In fact, an estimated 981 million movies and TV shows were downloaded in the U.S. last year using P2P. ?

Left out of this, of course, is the fact that the movie studios had the best year ever last year in terms of US box office revenue. And that more and more people are happy to pay for services like Netflix, even as the studios have been basically pulling tons of movies from those legal services.

We’ve been saying it for nearly two decades, but piracy is not the problem. Not listening to your customers is the problem. The MPAA is so focused on punishment it never recognizes that the carrot works better than the stick (which never actually works).

Of course, the MPAA still isn’t getting this lesson. It’s doubling down, which is why the BMG v. Cox case is so important to watch. Even before the six strikes plan went into effect, the legacy entertainment industry admitted that the real goal was to force ISPs to disconnect users. They planned to lump the six strikes plan in with a total misinterpretation of the DMCA to incorrectly argue that the DMCA actually requires ISPs to kick users off their service.

This reading is plainly wrong from what was in the DMCA and the negotiations around the DMCA. The law does require a policy to terminate “repeat infringers” but that was for online services (like a YouTube or a blog hosting company) and not for access providers. Unfortunately, in the Cox case, the judge seemed to get hung up on some unfortunate emails and a bizarre lack of understanding about how important an internet connection is for many people today, and ruled that ISPs do have to kick people off the internet.

That case is now on appeal, and basically all of the usual suspects (on each side) have been filing amicus briefs to push the 4th Circuit one way or the other. But a decision on that should be coming in the not too distant future, and that’s going to be super important. If BMG’s win is upheld, then it may be seen as a requirement for ISPs to not just put in place their own three- to six-strikes type plan, but that it would need to kick people off the internet based on such accusations (not convictions) of infringement.

And none of that will make people buy a product they don’t want.

The MPAA has had a couple of decades to stop attacking its biggest fans as criminals and to actually focus on providing them what they want. And it keeps on failing to just focus on that. Instead, it keeps overreacting to piracy and getting infatuated with the idea that it must break the internet. The death of the official six strikes plan was inevitable. It was a dumb plan from the start. But the real issue here is what will happen in court. Will the court uphold a dangerous plan that will lead to innocent people being kicked completely off the internet? Or will it recognize that maybe, just maybe, Hollywood’s focus on control shouldn’t ruin people’s lives?

Filed Under: copyright, dmca, dmca 512, isps, six strikes, three strikes, voluntary agreements
Companies: bmg, cci, cox, mpaa, riaa