repeat infringer – Techdirt (original) (raw)

from the they-always-hated-the-internet dept

The RIAA just won’t quit in attacking users on the internet and trying to get them banned from using the internet entirely. The latest news is that all the major record labels have sued Verizon for not kicking users the RIAA accuses (but has not litigated) of being infringers off the internet.

But, there’s a long history here that needs to be understood to see why this case is so stupid and so dangerous to the internet.

Twelve years ago, we wrote about a secret plan by the RIAA to pretend that copyright law already required that ISPs shutdown the internet accounts of users caught infringing. The relevant copyright law, DMCA 512, does have an awkwardly worded section on “termination.” Specifically, it says that to be eligible for the DMCA safe harbors, a site:

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

However, it provides no more guidance about many of the important definitions in there. What is “reasonably implemented?” What is “appropriate circumstances?” What constitutes “repeat infringers?”

While some people claim that the last question, in particular, is easy to determine, it’s not. False claims of copyright infringement are made all the time, as we’ve seen with DMCA claims (or even just YouTube’s ContentID). Sometimes, it’s for anti-competitive purposes. Sometimes it’s just to make life difficult for someone. Often, it’s because automated systems have gone haywire.

The only real way to know if someone is a “repeat infringer” is not based on a claimed copyright holder sending notices, but on a court ruling that an individual infringed on someone’s copyright. A service provider could have actual knowledge of infringement only after it has been adjudicated by a court.

However, some copyright holders disagree.

As is their wont, the RIAA has decided that all of these should be decided in the most extreme way possible, which is that if the RIAA sends a bunch of infringement notices to a service provider, that ISP should kick users off the internet entirely.

There are all sorts of problems with this. First, under the Supreme Court’s Packingham decision, it’s reasonable to argue any law that kicks people off the internet as a requirement is inherently unconstitutional. As Justice Kennedy wrote in that decision, citing Ashcroft v. Free Speech Coalition, “It is well established that, as a general rule, the Government ‘may not suppress lawful speech as the means to suppress unlawful speech.’”

Yet, as we’ve described for decades, when it comes to copyright, the courts show an uncanny willingness to ignore any First Amendment concerns and to give the industry all the power (rather than the public, who copyright law is supposed to benefit).

Given all that, the recording industry sued Cox Communications for failing to “reasonably implement” a policy to “terminate… repeat infringers.” That case was kind of a mess from the very start. It involved a firm, Rightscorp, that was famous for sending piles of questionable infringement notices based on flimsy evidence of infringement. The case ended up before a famously cranky judge, Liam O’Grady, who made it clear that he did not care about the public interest, or even the purpose of the DMCA.

It didn’t help that Cox’s own policies for handling copyright complaints were a bit of a mess, but O’Grady seemed wholly uninterested in the details and nuances and ruled against Cox. The case has bounced around for years, with the 4th Circuit Appeals court occasionally making a mess of things, occasionally fixing small parts of the lower court’s nonsense.

Earlier this year, the 4th Circuit threw out the massive $1 billion award that a jury had given the labels, saying the amount was not justified. But the case is still something of a mess, as Cox still believes (correctly, in my opinion) that it’s not violating the law at all. I believe that next month, both sides are planning to request the Supreme Court take a look. The labels will want the giant damages reinstated, while Cox will be arguing that the entire thing is ridiculous and it did nothing wrong.

Either way, the record labels apparently don’t want to wait for the Supreme Court to sort all this out. They have moved forward with a similar lawsuit against Verizon, one of the country’s largest ISPs, making the same basic arguments. The RIAA is always good about telling narratives:

The scope of repeat infringement on Verizon’s network is staggering. Thousands of Verizon subscribers were the subject of 20 or more notices from Plaintiffs, and more than 500 subscribers were the subject of 100 or more notices. One particularly egregious Verizon subscriber was single-handedly the subject of 4,450 infringement notices from Plaintiffs alone.

Verizon acknowledged that it received these notices of infringement sent by Plaintiffs’ representatives. Yet rather than taking any steps to address its customers’ illegal use of its network, Verizon deliberately chose to ignore Plaintiffs’ notices, willfully blinding itself to that information and prioritizing its own profits over its legal obligations.

It is well-established law that if a party materially assists someone it knows is engaging in copyright infringement, that party is fully liable for the infringement as if it had infringed directly. Further, when a party has a direct financial interest in the infringing activity, and the right and practical ability to stop or limit it, that party also faces liability. Flouting those basic responsibilities, Verizon deliberately turned a blind eye to its subscribers’ infringement. Verizon failed to terminate or otherwise take any meaningful action against the accounts of repeat infringers of which it was aware. Instead, Verizon routinely thumbed its nose at Plaintiffs by continuing to provide its service to subscribers it knew to be serially infringing Plaintiffs’ copyrighted sound recordings. In reality, Verizon operated its service as an attractive tool and safe haven for infringement.

And, so, of course, many of the headlines will be about that kind of narrative.

But, as always, it’s way more complicated than that. Just because someone sends notices does not mean that infringement has actually happened. I mean, this is the RIAA we’re talking about, and they have a bit of a history of sending trash, bogus DMCA notices. Or, a history of suing over songs it doesn’t hold the copyright on. Or on making totally baseless accusations about copyright infringement based on whims.

It’s only natural for a company like Verizon to choose to view RIAA notices with suspicion and not immediately assume they’re proof of infringement.

Anyway, given the status of the Cox fight and the decent chance the Supreme Court will take that issue up (not guaranteed, of course, but it wouldn’t be surprising), this case might end up sitting around while we wait for the Supreme Court to (hopefully, but unlikely) get these issues sorted out in that case first.

Either way, the RIAA is up to their usual anti-internet tricks. While they frame it as Verizon somehow ignoring notices, don’t believe that narrative. This is about the RIAA overclaiming copyright powers and trying to get people kicked off their entire internet connection (which is so necessary these days) for daring to download some songs.

Filed Under: copyright, dmca, isps, repeat infringer, termination policy
Companies: cox, riaa, sony, sony bmg, umg, universal music group, verizon

While Trump Continues To Complain About 230, It's Copyright Law That Once Again Actually Gets His Content Removed

Once again this week, the President decided to attack Section 230 because social media companies decided to highlight that he was posting dangerous misinformation (this time about the relative dangers of COVID-19, which he was downplaying). Yet, for reasons I do not understand, the President never seems to address copyright law, even though that law is what is actually forcing his and his campaign’s content to be legally removed from social media.

Over the last few months we’ve highlighted multiple times that Trump and his campaign have had posts removed from social media due to DMCA 512 takedown notices. And it happened again this week after Twitter removed a tweet from the Trump campaign on copyright grounds.

The tweet in question made use of a video clip showing the San Francisco 49ers wide receiver Brandon Aiyuk scoring a touchdown from last Sunday’s 49ers/Eagles game. The clip (somewhat ridiculously) superimposed Trump’s head over Aiyuks, and put the well known graphic of the coronavirus on Eagle’s defender Marcus Epps (whom Aiyuk leapt over in getting to the end zone). The message of the video (stupidly) is that Trump was somehow able to “avoid” the coronavirus (which, I should remind you, he did not). The video is stupid on multiple levels, including the the sickening and despicable implication that those who died from COVID-19 are somehow just not strong enough.

However, I think there’s a pretty strong argument that the video would be protected as fair use — and that the takedown issued by the copyright holder (likely the NFL) was not a legitimate takedown. In fact, it’s possible that the NFL issued the takedown for political reasons, as there’s no argument that this somehow harmed the NFL directly. It’s a short clip. It’s used in a transformative (if stupid) way.

In other words, this is an actual example of the law being used for censorship. Unlike Section 230. And yet, we don’t see Trump or his supporters calling for that aspect of copyright law to be fixed. Indeed, copyright law is even worse, because if the Trump campaign keeps getting copyright strikes like this, the law says that Twitter must shut down his account for repeat infringements. Will Trump and his supporters finally see that the real problem for censorship is copyright?

Instead they’re asking to take away Section 230, which (at best) would create a situation more like copyright in which the legal incentive is much stronger towards pulling down such content. It remains incredible to me that in all of these discussions about social media and “censorship” everyone is focused on the law that protects speech online, rather than the law that forces websites to pull down legal content.

Filed Under: censorship, content removals, copyright, dmca 512, donald trump, fair use, parody, repeat infringer, section 230, takedowns, trump campaign
Companies: twitter

from the or-are-we-still-in-a-facts-optional-world? dept

Over the last few months we’ve seen President Trump and his supporters repeatedly attack social media in general — and Twitter specifically — for apparently “arbitrary” moderation decisions. Yet, as we’ve pointed out repeatedly, it seems that the only times that Twitter has actually taken down content from Trump’s Twitter account, it’s been because they were effectively required to in response to DMCA takedown requests. It happened in early June, and then it happened to a Trump supporter, and last week it once again happened to Trump himself, when the band Linkin Park issued a takedown after Trump used their song in a video he posted to Twitter:

On Saturday night, President Trump retweeted a campaign video that featured the band’s 2002 hit song ‘In The End.’ Linkin Park swiftly took action on having the video removed and shared a message with fans on Twitter.

Once again, though, rather than recognize that the structure of DMCA 512 that effectively creates massive incentives to pull down content is the issue, clueless Trump fans, like Judicial Watch’s Tom Fitton, wanted to blame Twitter.

But, of course, it’s not Twitter that’s the issue here at all, but the structure of the DMCA. What’s stunning is no Trump supporters seem at all willing to discuss this — even as Trump-supporting Senator Thom Tillis, who heads the Intellectual Property Subcommittee, is actively working hard to make copyright law even more prone to censorship.

But here’s the thing I wonder: at what point would Twitter have to shut down Trump’s account as a repeat infringer? After all, based on the court rulings in the BMG v. Cox case, and some other related cases, courts have said that any repeat infringer policy doesn’t need to take into account if there’s actual infringement, just accusations of infringement. And, indeed, the US Copyright Office’s recent report on Section 512 of the DMCA has endorsed that viewpoint.

And the DMCA does require you to have a policy to remove the accounts of repeat infringers, though it does allow for some leeway in how a service designs such a plan, so long as it does exist. In theory, Twitter could offer more “strikes” to “newsworthy” accounts, but at some point based on the way some courts (and the Copyright Office) have read the law (incorrectly to me, but who am I?), Twitter would be required to shut down the president’s account.

And think of what a fucking mess that would be. At the very least, it might highlight why Section 512 is so problematic, and that the repeat infringer policy in particular can lead to absurd results. But, given how Trump and his supporters have responded to other DMCA issues, and the fact that his supporters in the Senate seem willing to make the law even more prone to these kinds of takedowns, it’s likely that they’ll just lie and blame Twitter for what the law itself requires.

Filed Under: 512i, content moderation, copyright, dmca, donald trump, repeat infringer
Companies: twitter

Rather Than Attacking Section 230, Why Aren't Trump Supporters Angry About The DMCA That's Actually Causing Issues?

from the you-guys-got-it-all-wrong dept

A few weeks back, we wrote about how one of Donald Trump’s tirades over Twitter “moderating” him, in which he blamed Section 230, was totally misplaced. The actual issue was about copyright and Section 512 of the DMCA. That was a case where a copyright claim took down a Trump campaign video after a copyright holder claimed it infringed.

Last week, we saw copyright again cause trouble in Trump world — and again, Trump’s fans blamed Twitter and Section 230 rather than the problems of the DMCA instead. This time, it involved a well-known Trump mememaker going by the name Carpe Donktum, who makes generally lame “MAGA memes.” Early last week, Twitter permanently shut down his account, and all the Trumpalos went nuts. A writer for the Federalist, Mollie Hemingway, laughably called it “election interference” by Twitter:

Except, as you can even see in that very screenshot that Mollie (who apparently can’t even read the screenshots she’s posting), Twitter shut down his account for repeated infringement under the DMCA. Twitter later confirmed exactly that.

?per our copyright policy, we respond to valid copyright complaints sent to us by a copyright owner or their authorized representatives. The account was permanently suspended for repeated violations of this policy.?

Donnie Jr. got similarly angry, and had an odd interpretation of what “public domain” means:

Now, we can argue whether or not the copyright claim was valid. I think for most memes, even Donktum’s incredibly stupid ones, he would have strong fair use claims. But as we’ve seen in cases like the BMG v. Cox case, courts are now saying that the repeat infringer policy is not for proven infringement, but merely alleged infringement.

Even worse? In the Copyright Office’s recent report on Section 512 of the DMCA, it supported that viewpoint, that the DMCA not only requires a repeat infringer policy, but that it should be based on repeated accusations of infringement, even if those accusations are not accurate.

Given that, Twitter has little choice but to shut down Donktum’s feed, and people blaming Twitter or Section 230 for this (or idiotically calling it “election interference”) have misplaced their blame. They should, instead, be concerned about Section 512(i) of the DMCA and the series of recent cases that say it is based on accusation, and not on any adjudication of infringement. And, similarly, they should also be asking why the Copyright Office recently supported this censorial definition in the years-long study it did on Section 512 and just released a little over a month ago. From that report:

… any definition must be consistent with the statutory criteria that repeat infringer means repeat alleged infringer, not repeat adjudicated infringer.

And then this week, we had yet another example, in which Twitter removed an image from a Trump tweet after the NY Times filed a DMCA takedown notice:

The original tweet by Trump issued on June 30, showed a meme that read ?In reality they?re not after me they?re after you I?m just in the way? with Trump?s picture in the background.

The background picture was taken by a New York Times photographer, to accompany a feature article on then presidential candidate Trump in September 2015.

Twitter now displays the message ?This image has been removed in response to a report from the copyright holder,? in place of the tweet.

You can see what it looks like now:

As I write this, the usual crew hasn’t freaked out yet, but I fully expect that when they do, they’re likely to blame Twitter or Section 230, neither of which are even remotely responsible here.

But while Trump’s fans in Congress are running around trying to change Section 230 with a new bill every other day, why aren’t any of them looking at fixing this part of the DMCA that is actually leading to censorship (unlike what’s happening with 230)?

Filed Under: carpe donktum, censorship, copyright, dmca, dmca 512, donald trump, notice and takedown, repeat infringer, section 230
Companies: twitter

AT&T Ignores Numerous Pitfalls, Begins Kicking Pirates Off Of The Internet

from the raging-over-reaction dept

Fri, Nov 9th 2018 06:39am - Karl Bode

We’ve noted for years how kicking users offline for copyright infringement is a terrible idea for a myriad of reasons. Severing access to what many deem an essential utility is not only an over-reaction to copyright infringement, but a potential violation of free speech. As France quickly learned it’s also a technical nightmare to implement. Most pirates hide their traffic behind proxies and VPNs, and even if you kick repeat offenders offline, you then need systems to somehow track them between ISPs. There’s also the fact that entertainment industry accusations of guilt are often based on flimsy to nonexistent evidence.

None of this is stopping AT&T, which this week quietly indicated they were going to start kicking some users off the internet for copyright infringement for the first time in the company’s history.

Axios was the first to break the story with a comically one-sided report that failed to raise a single concern about the practice of booting users offline for copyright infringement, nor cite any of the countless examples where such efforts haven’t worked or have gone poorly. I talked a little to AT&T about its new plan, who confirmed to me that while they’d still been sending “graduated warnings” to users after the collapse of the “six strikes” initiative, this policy of actively kicking users offline is entirely new (coming right on the heels of the company’s $89 billion acquisition of Time Warner).

Though this doesn’t make the idea any better, it’s arguably difficult to get on AT&T’s bad side under this new program. According to the company, users will need to ignore nine different warnings about copyright infringement before they lose access. AT&T repeatedly tried to make it clear that the actual users getting kicked offline (around a dozen to start) will be relatively minor.

?Based on the notices we received, we identified the customer on the account and shared with them the information we received? from copyright holders, AT&T said. ?We also reached out to the customer to educate them about copyright infringement and offer assistance to help prevent the activity from continuing.?

According to AT&T, a ?small number of customers? who keep receiving warnings ?despite our efforts to educate them? could suddenly find themselves without an internet connection.

While the actual number of users who lose their connections will be minor to start, it’s the precedent that remains the problem.

Back in 2013 you’ll recall that the entertainment and broadband industries joined forces to create the copyright alert system, or “six strikes.” Under that program, users were hit with an escalating number of warnings, and in some instances had their connections throttled or temporarily suspended until users acknowledged receipt of arguably one-sided entertainment industry “education” materials. The program was also widely criticized because users had to pay a $35 fee just to contest potentially-false accusations.

While the argument was that this program would scare users straight and dramatically reduce piracy, the data suggests it didn’t accomplish much of anything, and by early 2017 the program had died a relatively quiet death. The entertainment industry’s lesson from this adventure should have been that these efforts are a waste of time and that that this time and money should be spent on building better, cheaper alternatives to piracy. Instead, they’ve concluded the solution is to take this same system and make it even heavier-handed, a goal they’ve been steadily working toward in the years since.

The result has been numerous lawsuits against smaller ISPs like Cox and Grande Communications, insisting they should lose their safe harbor liability protections under Section 512(i) of the DMCA if they don’t follow through on threats to kick users offline. And while the entertainment industry may have had some legal success on this front thanks to several legal screw ups by Cox and a particularly confused judge who believes (in stark contrast to everyone else) that 512(i) applies to ISPs, that doesn’t magically mean kicking users off of the internet for copyright infringement actually helps anything or is a good idea.

And while larger ISPs that similarly have an eye on being broadcasters (like Verizon and Comcast) have actually occasionally stood up for users and recognized the perils of ISPs becoming speech and copyright nannies, AT&T, ever the pinacle of anti-consumer sentiment and bad behavior in telecom, clearly has no such reservations.

Filed Under: account termination, copyright, kicked off the internet, piracy, repeat infringer
Companies: at&t

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

9th Circuit Appeals Court Recognizes That DMCA Repeat Infringer Policies Must Be Flexible

from the good-to-see dept

We were concerned, last month, by the appeals court ruling in the Cox v. BMG case regarding the DMCA’s repeat infringer policy rules, though the more I’ve reread that ruling, I’ve become less bothered by it. While I’m still concerned about how bad decisions by Cox created potentially bad law, there are enough specifics in the ruling that hopefully will limit the impact to specific circumstances. In particular, whereas Cox was found to not have implemented a “reasonable” termination policy for repeat infringers, the court does acknowledge that the law means that the platforms have wide leeway in determining what their termination policy should be. The real problem for Cox was that it appeared not to actually follow its own policy, and thus did not reasonably implement it.

That was over in the 4th Circuit. Last week, the 9th Circuit ruled on a case where there were also questions about a repeat infringer policy, and the ruling is a clean ruling in defense of platforms determining their own rules for terminating repeat infringers. The case, Ventura Content v. Motherless, involves a porn producer suing a site that allowed user uploads of porn. From the description in the case, Motherless qualifies for the DMCA’s safe harbors as a site where the content is submitted by users, and the ruling goes into great detail about the steps that Motherless’s sole employee, Joshua Lange, goes through to review content uploaded to the site to make sure it doesn’t violate the site’s terms (which mostly seem aimed at blocking child porn). Motherless also appears to follow a pretty standard DMCA takedown process. Actually, the site appears to go beyond what is legally required in accepting notices that don’t even meet the DMCA notice standard, and removing much of the notified content.

While the site did not have a written out “repeat infringer policy,” Lange did have some mental metrics he used in reviewing accounts, and did shut off ones that were receiving lots of copyright takedown notices.

Motherless does not have a written policy instructing its employees on when to expel repeat infringers; there are no employees to instruct. Lange personally terminates repeat infringers; the independent contractor does not terminate repeat infringers. Termination is a matter of Lange?s judgment. He considers the following factors in deciding whether to terminate a repeat infringer: (1) the volume of complaints; (2) the amount of linked content in the complaints; (3) the timespan between notices; (4) the length of time the alleged infringer?s account had been active; (5) the amount of total content the account has; (6) whether the user is maliciously and intentionally uploading infringing content or uploading content without knowing the source; and (7) whether the takedown notices were DMCA-compliant. Between 2008 and 2011, Lange terminated over 33,000 user accounts for violating the website?s Terms of Use. Lange estimated that he terminated about 4% to 6% of these users for possible copyright infringement, which would be between 1,320 and 1,980 users.

Ventura argued that, since there’s no written policy, Motherless no longer qualifies for the DMCA’s safe harbors, which require such a policy. The court, however, points out that Lange’s “policy” is good enough.

Doubt that Motherless really does have a ?policy? of terminating repeat infringers that is ?reasonably implemented? is unavoidable in light of unsystematic and casual implementation. But doubt is not evidence. Ventura has presented no evidence to establish a genuine issue of fact as to whether Motherless failed to reasonably implement its policy. Motherless, however, has met its burden. The absence of any significant number of repeat infringers who escaped termination compels the conclusion that a trier of fact could not conclude, on the record before us, that Motherless failed to meet the repeat infringer eligibility requirement for safe harbor. Motherless and Lange are therefore entitled to claim the protection of the safe harbor.

There are some other good points in there as well, including pointing out that a repeat infringer policy need not be perfect:

Safe harbor eligibility does not require perfection, just ?reasonable? implementation of the policy ?in appropriate circumstances.? Eligibility for the safe harbor is not lost just because some repeat infringers may have slipped through the provider?s net for screening them out and terminating their access. The evidence in the record shows that Motherless terminated between 1,320 and 1,980 users for alleged copyright infringement and that only nine alleged repeat infringers had slipped through. Of those nine, only six were before Ventura filed its lawsuit, and only four of the six had been the subject of more than one DMCA notice. That suggests that less than one repeat infringer in 100,000 active users was missed. If that is the extent of failure, there could be no genuine issue of material fact as to whether Motherless ?reasonably implemented? its termination policy. Congress used the word ?reasonable? to modify ?implemented,? so the phrase cannot be construed to require perfect implementation.

And even though the “policy” was all in Lange’s head, the court says that’s good enough.

The details of the termination policy are not written down. However, the statute does not say that the policy details must be written, just that the site must inform subscribers of ?a policy? of terminating repeat infringers in appropriate circumstances. Motherless consists only of Lange and a few independent contractors, and Lange alone determines when to terminate repeat infringers. A company might need a written policy to tell its employees or independent contractors what to do if there were a significant number of them, but Motherless is not such a firm. Small operations in many industries often do not have written policies because the owners who would formulate the policies are also the ones who execute it. There might not have been a need for anything in writing. So the lack of a detailed written policy is not by itself fatal to safe harbor eligibility. Neither is the fact that Motherless did not publicize its internal criteria.

There’s a lot more in the ruling, but most of it is pretty standard DMCA stuff, including Ventura ignoring lots of other cases about what constitutes “red flag knowledge.” One other thing of note: Ventura, incredibly, tried to argue that Motherless should lose its DMCA safe harbor provisions because the site does some screening. Thankfully the court points out how silly an argument that is:

Ventura cites no authority for the unlikely proposition that screening out illegal material eliminates the safe harbor shield. Indeed, section 512(m) says that the law should not be construed to eliminate the safe harbor because a service provider monitors for infringement or disables access to material where the conduct depicted is prohibited by law.11 Motherless screens out child pornography because it is prohibited by law. It screens out bestiality because a few European countries prohibit bestiality pornography by law, and some of Lange?s European advertisers voiced concerns about this content. We find it counterintuitive, to put it mildly, to imagine that Congress intended to deprive a website of the safe harbor because it screened out child pornography and bestiality rather than displaying it. Instead, we read section 512(m) to say that Congress expressly provided that such screening does not deprive a website of safe harbor protection.

I imagine the statements concerning repeat infringer policies may come up in other cases, now that some in the legacy entertainment industry have been choosing to attack that part of the DMCA’s safe harbors. Having a nice, clean precedent like this hopefully will help block some of the more ridiculous claims concerning repeat infringer policies.

Filed Under: 9th circuit, copyright, dmca, joshua lange, repeat infringer
Companies: motherless, ventura content

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

The Details Of Why Judge O'Grady Rejected Cox's DMCA Defense: Bad Decisions By Cox May Lead To Bad Law

from the ugh dept

As we noted a couple of weeks ago, Judge Liam O’Grady rejected Cox Communication’s attempt to protect itself under the DMCA’s safe harbor concerning a “repeat infringer policy.” At the time, he only said he would explain his reasons later, and late yesterday he released his full opinion. It, unfortunately, brings to mind the phrase “hard cases make bad law.”

As we explained when BMG and Round Hill Music (with the help of Rightscorp) first sued Cox Communications, the company seemed like a slightly odd choice. While it was the largest of the internet access providers not to sign onto the so-called “voluntary” six-strikes “Copyright Alert System” hammered out between the RIAA/MPAA and big ISPs, it already had a reputation for actually disconnecting those accused of repeat infringements. None of the other major ISPs do that. In fact, a key prong of the whole six strikes thing was that no one would be getting kicked off the internet.

However, the RIAA has long insisted that the DMCA’s 512(i) required ISPs to kick people off the internet — even as that theory had never really been tested until now. Many others had assumed 512(i)’s “repeat infringer” policy only really referred to service providers who actually had direct control over content — i.e., a YouTube or SoundCloud style site. Kicking people entirely off the internet because one person who uses their account to infringe is quite draconian.

The issue here, however, gets muddied, because Cox made such a mess of its “repeat infringer policy.” Yes, it alone among the major ISPs will kick people off. But (and this is the important bit), its internal policy was apparently to kick people off… and then allow them to sign right back up for new service, at which point the count on “infringements” would be reset to 0. For obvious reasons, that feels pretty sketchy, and it’s the key point that Judge O’Grady focuses on. Doing something that feels sketchy will often obscure the more important legal arguments. Judge O’Grady basically tosses aside all the other issues because of this “bad behavior” by Cox, as immortalized in some internal emails.

The 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 DMCA?s requirements. Cox employees followed an unwritten policy put in place by senior members of Cox?s abuse group by which accounts used to repeatedly infringe copyrights would be nominally terminated, only to be reactivated upon request. Once these accounts were reactivated, customers were given clean slates, meaning the next notice of infringement Cox received linked to those accounts would be considered the first in Cox?s graduate response procedure.

Numerous emails in the record, portions of which are reproduced below, support these conclusions. Even viewed in the light most favorable to Cox, the Court finds the contents of the emails cannot be explained away. Cox?s attempts to recast the emails are unavailing. Nor can they be pinned on low level employees whose views had no real significance. The name that appears again and again on these emails is Jason Zabek, Cox?s Manager of Customer Abuse Operations.

> In 2009, Zabek sent an email titled, ?DMCA Terminations,? to the abuse group that said: > > As we move forward in this challenging time we want to hold on to every subscriber we can. With this in mind if a customer is terminated for DMCA, you are able to reactivate them after you give them a stern warning about violating our AUP and the DMCA. We must still terminate in order for us to be in compliance with safe harbor but once termination is complete, we have fulfilled our obligation. After you reactivate them the DMCA ?counter? restarts; The procedure restarts with the sending of warning letters, just like a first offense. This is to be an unwritten semi-policy . . . We do not talk about it or give the subscriber any indication that reactivating them is normal. Use your best judgment and remember to do what is right for our company and subscribers. . . . This only pertains to DMCA violations. It does not pertain to spammers, hackers, etc.

And, based on that, the court decides that Cox does not have a “reasonably implemented” termination policy for repeat infringers. There are a bunch of other similar emails, indicating that this absolutely was Cox’s policy. Of course, all of that obscures the question of whether or not 5129(i) is meant to apply to access providers, rather than online service providers.

Separately, the judge buys BMG’s claim that in late 2012, Cox actually stopped terminating accounts almost entirely (leaving aside, again, that no other major access provider terminates anyone). Again, some questionable internal behavior by Cox comes back to bite them. The judge highlights a case where Cox internally kept discussing a user who was frequently accused of infringing, and who they threatened to cut off… but didn’t — even admitting it’s at least partly because of the large amount of money the customer pays.

In June, a senior engineer in the abuse group said this about a customer who had been given a final suspension and advised to remove all P2P file-sharing programs: ?This customer will likely fail again, but let?s give him one more change [sic]. [H]e pays 317.63 a month.?

The judge uses this and other examples to note that Cox knew of “repeat infringers” but didn’t terminate them. Of course, the vague language of 512(i) doesn’t say that you have to terminate someone as soon as you know they’re repeat infringers — just that you have a “reasonably implemented policy.” However, Judge O’Grady uses these examples to suggest the policy implementation is not reasonable.

Cox’s defense to that is it can’t know for sure if people are infringing based solely on accusations. This is correct, but Judge O’Grady doesn’t care.

Although Cox was under no duty to monitor for infringement, Cox did not have leeway to wait until an account holder was adjudicated as an infringer to find that circumstances were appropriate for termination. As explained above, the Court disagrees that a repeat infringer policy applies only to those who have been held liable in a copyright suit. Rather, an account holder must be considered an infringer, at minimum, when the service provider has actual knowledge that the account holder is using its services for infringing purposes. Nor do service providers have complete discretion to define ?appropriate circumstances.? Appropriate circumstances arise when an account holder is repeatedly or flagrantly infringing copyrights. Thus, when Cox had actual knowledge of particular account holders who blatantly or repeatedly infringed, the responsibility shifted to Cox to terminate their accounts.

That, alone is quite troubling. Kicking people off the internet based merely on accusations of infringement is really dangerous, especially given the number of false infringement allegations that we see.

The one good thing is that the court rejects BMG’s troubling definition of “making available.” This has been a fight that’s been going on for ages. Copyright law says that one of the exclusive rights given to a copyright holder is the “distribution” right. What is not settled law at all is whether or not “making available” violates this distribution right, or if copyright holders have to show actual distribution. The courts are somewhat split on this, with O’Grady recognizing that merely making available is not distribution.

At the threshold, the Court questions the evidence relied on by those courts that purportedly establishes that distribution is interchangeable with publication. Those courts build upon comments in legislative history as well as an excerpt from the Supreme Court?s decision in Harper & Row Publishers, Inc. v. Nation Enterprises…. Legislative history cannot override the plain meaning of ?distribution? under § 106(3), however, and Harper & Row involved a narrow discussion of first publication and not the meaning of distribution and publication generally….

Nor does the definition of ?publication? support a broader reading of the distribution right. The Act defines ?publication? as

> the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.

…The first sentence of the definition tracks the language in § 106(3), making it clear that all distributions are publications. It does not follow from that proposition that the inverse?all publications are distributions?is also true…. In short, § 101 provides no support for BMG?s ?making available? theory.

There’s some more in the ruling, but it seems pretty clear that Cox’s own internal emails and policies really sunk the company here, and out of that could come some potentially dangerous law. Some have been making a big deal over the fact that Cox’s insurance company, Beazly, has filed for declaratory judgment that it’s not responsible for any judgment in this case — but again, that seems to focus on Cox’s own actions, which may not apply more broadly to other providers.

Also, important is the fact that the trial still is about to go forward. Losing the safe harbor protections does not, necessarily, mean that Cox will lose the overall case, but it’s an ominous start. Judge O’Grady’s rulings and statements so far certainly do not bode well for the company. It’s also a little bit ridiculous that O’Grady focuses so much on Cox’s bad behavior, but leaves out Rightscorp’s much worse behavior — but I can see where he’s coming from.

In the end, this is unfortunate and it’s certain that this case will be appealed, no matter how it turns out. But the bad behavior by Cox poisons the well a bit in terms of focusing on the rather important question of what 512(i) actually means, and whether it really applies to internet access providers. As it stands right now, however, a potentially dangerous precedent could be set, whereby people could be forced to completely lose internet access based on mere accusations of copyright infringement. It’s hard to believe that Congress intended such a result, but that’s how Judge O’Grady is now reading the law.

Filed Under: 512i, copyright, dmca, liam o'grady, repeat infringer, safe harbors, termination policy, three strikes
Companies: bmg, cox, cox communications, rightscorp