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

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

Comments

I think this is fair.

[Anonymous Coward]

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

Re:I think this is fair.

[Anonymous Coward]

That should also means that regular phone companies would be liable because two terrorists planned a bomb attack over the phones...

Re:I think this is fair.

[Anonymous Coward]

You've missed the point.

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

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

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

Re:I think this is fair.

[prunus.avium]

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

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

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

Re:I think this is fair.

[Martin Blank]

Al-Qaeda affiliates and ISIS actually do fight each other. ISIS and al-Nusra Front have been at opposition for a while. Remember that ISIS came out of what was al-Qaeda in Iraq, and announced a merger with al-Nusra without discussing it with anyone else. Al-Nusra told them to get bent, AQI declared they were going ahead with it, Zawahiri told everyone to chill out, and AQI announced it was breaking from al-Qaeda. Al-Nusra has remained allied with al-Qaeda, and sometimes coordinates with the Free Syrian Army and other rebel groups, especially when fighting ISIS.

This is one of the weirdest things about ISIS: even al-Qaeda is against them, says they go too far, and thinks they're more extreme than the Quran allows. They have basically the entire world--including most terrorists--against them.

Re:I think this is fair.

[Anonymous Coward]

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

This is exactly the opposite of what common-carrier status provides. The information they carry is "common" in the "communal" and "commodity" sense; the way this worked with phone companies is that they each had to interoperate, be able to carry each others signals (i.e. a call from an AT&T customer is legally obligated to be able to be routed to the phone of a Sprint customer). The fact that you're legally required to carry the traffic of would-be competitors and of anyone who has access to your infrastructure is precisely _why_ you are not liable for the content. It's not your content, and in general, except for basic information required to make the communication work, you're not entitled to know what's on it -- you can't snoop. If you can't snoop, you can't police, and you can't be held responsible for what other people (who you are now obligated to accommodate) "carry" over your infrastructure.

So, no... not fair. You could argue it's wrong, but it's not the way common-carrier is set up.

Re:I think this is fair.

[Anonymous Coward]

Do you fucking assholes absolutely have to bring the fucking assholes in the middle-east into every gods-be-damned conversation!? Fucking give it a rest!

Re:I think this is fair.

[bigfinger76]

I think you misread the quoted comment. You are apparently in agreement.

Re:I think this is fair.

[MrLint]

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

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

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

Re:I think this is fair.

[Anonymous Coward]

"We don't know what's in the packets but we want to throttle the data based on what's in the packets."

I don't think that's accurate. I think it's more "We don't know whats in the packets but we want to throttle the data based on the protocol being utilized".

It's a subtle difference but it makes a huge difference...

Re:I think this is fair.

[Holi]

Considering that ISP's have only been classified as Title 2 since this year (something they fought tooth and nail against) your comment rings somewhat false and naive. You want to know how they feel about common carrier status, then read about the FCC decision. It's all out there. Why do you think the DMCA had the safe harbor provision, because ISP's were not common carriers. Also I am not sure how not working with Rightscorp is somehow disregarding common carrier, wouldn't it be embracing their common carrier status?

Re:I think this is fair.

[Holi]

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

Re:I think this is fair.

[Anonymous Coward]

Ooh, he means it, it's in bold! Get used to slashdot, buddy.

I

t's no different than when any country anywhere in the world is criticized for any reason whatsoever, the discussion immediately swings around to point to the US. Every. Time. C'est la vie.

Re:I think this is fair.

[Anonymous Coward]

This^ clearly showing bias even before the trail starts sounds like O'Grady doesn't want the case himself.

Re:I think this is fair.

[Anonymous Coward]

The "war on two fronts" comment wasn't about a pairing of AQ with ISIS. It was about the (silly) pairing of AQ with the RIAA or ISIS with MPAA, and the GP's comment about how to turn AQ and ISIS on the *AA's.

Re:I think this is fair.

[Anonymous Coward]

but we want to throttle the data based on the protocol being utilized".

Which in turn means you have to know what's in the packets.

Re:I think this is fair.

[prunus.avium]

I think it's more "We don't know whats in the packets but we want to throttle the data based on the protocol being utilized".

It's a subtle difference but it makes a huge difference...

It's a subtle difference that is impossible to reliably determine without reading the packet. And by packet, I mean an IP packet.

In IP only source and destination addresses are available while TCP and UDP adds the source and destination ports (source port is optional on UDP). So to even determine the port number which can quite often be used to guess the protocol (eg. 80 is HTTP) you have to read part of the IP packet contents.

For something like streaming media which could be using HTTP as the transport, you have to read even more of the packet to determine what is being transferred and how.

All of this poking around in the packets means that you are no longer a "common carrier" because you are actively investigating what is inside the message instead of simply sending it along based on the source and destination addresses.

Re:I think this is fair.

[dunkindave]

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

Wrong. I haven't looked at the actual case, but based on the summary, the judge must have issued a ruling overriding a request for dismissal of one or more counts that were predicated on the protections of the DMCA, and to do this, the judge would have to state his reasoning why. This ruling and its reasoning can then be used by other litigants in their lawsuits as precedent. The problem with this ruling is that judges don't like making new case law so they always prefer to find some other judge who has already ruled on a similar situation and use that judge's decision to then justify theirs, since it would then be the other judge who was wrong if that point is later overturned on appeal. Judges really don't like being overturned and told THEIR decision was wrong, but it is OK, or at least better, if it was the other judge that made a bad ruling.

Re:I think this is fair.

[Anonymous Coward]

Even the common model is 4 layers. Common carriers are concerned only with the layer responsible for directing the connection from sender to receiver. Digging into any deeper layers is, by definition, content inspection. Common carriers are not allowed content inspection. Anyone who knows the content is liable for the content.

That means that common carriers are limited to the non-content portions of the packets at the IP layer. Not TCP. Not HTTP/FTP/RTP/SMTP/whatever. If they cease to be limited, then they cease to be shielded against being an accessory to any crimes that are noticeable in the content they've inspected but not reported.

They have 3 choices.
1) Don't inspect, accept no liability, stay profitable, but maybe have to spend some cash on network upgrades from time to time, which will attract more and better-paying customers.
2) Inspect, don't report crimes, get fined out of existence.
3) Inspect, report crimes, lose customers but maybe keep enough dumb, expensive, hard-to-support customers that they're not totally insolvent when they attempt a "merger" with a competitor that chose option #1.

There is only one survivable choice.

Re:I think this is fair.

[Anonymous Coward]

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

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

Re:I think this is fair.

[Anonymous Coward]

Pretty sure ATT, Verizon, Sprint, and to a lesser extent t-mobile all do exactly the same stuff when it comes to mobile data. They have the NSA in their datacenters monitoring everything though so they are probably automatically in compliance. They sure as crap don't behave like common carriers. The rule of law doesn't apply in this country though if you have enough money.

I can't believe affluenza is really a thing now.

Re: I think this is fair.

[Anonymous Coward]

Looks like Cox caps data now...

https://www.google.com/url?q=http: //m.cox.com/residential/support/internet/article.cox%3FarticleId%3D2fd6ccb0-b13a-11df-4be3-000000000000&sa=U&ved=0ahUKEwiEsavysarJAhXLWj4KHWxpCe4QFggfMAA&usg=AFQjCNHv-jESlTn2BKqfZ5S2f54ohum8HQ

Re:I think this is fair.

[Anonymous Coward]

https://en.wikipedia.org/wiki/Liam_O'Grady

On January 9, 2007, O'Grady was nominated by President George W. Bush to a seat on the United States District Court for the Eastern District of Virginia

Liam O'Grady (born 1950) ... suffice it to say somebody had to explain protocols to him. It would be hard to believe that he is an active federal judge as well as literate on specific internet protocols, ports, etc. Were Slashdot readers (many of you) given the opportunity to explain his misunderstanding to him, he wouldn't be saying what he said.

https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act

Passed on October 12, 1998, by an anonymous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998

https://www.eff.org/deeplinks/2015/10/europes-court-justice-nsa-surveilance

Re:I think this is fair.

[Anonymous Coward]

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

They want to throttle based on what types of packets, not precisely their contents. Say they detect it's a BitTorrent packet, then they throttle it down. They know it's a BitTorrent packet, but they don't know if it is some greatest hits mp3 or the new version of LibreOffice.

It's like a car ferry. They have a fixed space to place the cars, which mean to get sort of the same money for each run, they charge more the longer the car is. They can see the car and act on what they can see, no more and no less. Charging extra for a car with a trailer will not make them responsible for theft if it turns out the trailer is reported stolen. Particularly not if they aren't informed that it's stolen at the time they transport the car+trailer.

Re:I think this is fair.

[FirephoxRising]

Carriers aren't responsible. Try suing a telco because terrorists used mobile phones. Also, am I the only one disturbed that the judge sided with one side BEFORE the trial?! That should be grounds for an instant judge-replacement and suspension pending investigation!

Re:I think this is fair.

[Anonymous Coward]

...They do not throttle or cap like Comcast or TW...

I beg to differ, as a COX customer I was capped and throttled when getting close to and going over said cap.

Switched to COX Business and am no longer throttled or capped.

Re:I think this is fair.

[CeasedCaring]

I think the RIAA is an arm of Al Qaeda, and the MPAA is a division of ISIS.

It's hard to turn your enemies on each other when you're really just fighting a war on two fronts.

You're incorrect. The MAFIAA (Music And Film Industry Associations of America) have Sicilian origins.

Re: I think this is fair.

[Anonymous Coward]

A judge who insults a very legitimate organization in the manner this one insulted the EFF with no provocation should not only not get the case, but should be impeached and removed from office. Disbarment wouldn't hurt either.

Re:I think this is fair.

[KingMotley]

The packet header is quite easy to see, and your analogy is like saying the Post office can't be a common carrier because they read the envelope to get the address, so the are already inspecting the mail. There is a huge difference between reading an IP or TCP/UP header and trying to piece together a stream of packets in order to determine the content.

Re:I think this is fair.

[KingMotley]

Common carriers are concerned only with the layer responsible for directing the connection from sender to receiver.

Well, sort of, but port addresess are typically considered part of the address, which is in the TCP/UDP header. I don't know many network analysts that consider that part of the "content". Today's "common carriers" do in fact concern themselves with more than just the layer responsible for directing the connection from sender to receiver. They also check the priority (Also in the headers for IP), and they ask for signatures, they can ask for payment, they can redirect, etc etc. Your simplistic view is simply unfounded in the other common carriers as well.

Re: I think this is fair.

[garyebickford]

No, that's the common carrier thing that the cable guys have tried to avoid. Common carriers are not liable in most circumstances. But information providers can be without the safe harbor provided by common carrier status. They've been trying for years to get it both ways.

Re:I think this is fair.

[Jane Q. Public]

I haven't looked at the actual case, but based on the summary, the judge must have issued a ruling overriding a request for dismissal of one or more counts that were predicated on the protections of the DMCA, and to do this, the judge would have to state his reasoning why.

How does that make GP wrong? If this judge does make a bad call on the dismissal, then indeed Cox could use that as grounds for appeal. Sure, that does mean the case must be tried first.

I suppose you may have meant GP was wrong about recusal or "instant appeal". It doesn't work that way. But the decision will certainly be an influential one in the following procedures.

Re:I think this is fair.

[Calydor]

Well, you have to know what's in SOME of the packets, anyway.

Re:I think this is fair.

[Jane Q. Public]

The packet header is quite easy to see, and your analogy is like saying the Post office can't be a common carrier because they read the envelope to get the address, so the are already inspecting the mail.

Nonsense. All the information an ISP needs are in the link and internet layers. Any deeper information is none of their business. The source and destination IPs are in the internet layer, and are similar to the destination and return addresses on the snail-mail envelope.

Doing any deeper packet inspection is akin to steaming open the envelope to see whether the letter is actually intended for the addressee or her kids (transport layer, application layer, etc.), or the content of the actual message. That's absolutely none of the ISP's business as a common carrier.

There is a huge difference between reading an IP or TCP/UP header and trying to piece together a stream of packets in order to determine the content.

No. There is a huge difference between reading an IP header, and reading a TCP header. As a common carrier, an ISP has no legitimate reason to do the latter. No more than the post office has any business opening the envelope to see whether the message starts with "Dear John," or ends with "Love always".

Re:I think this is fair.

[Jane Q. Public]

Port addresses are not part of the ISP's business, either. That is an internal matter for the networks/routers at source and destination, not in between.

My ISP, for example, has absolutely no business knowing (or caring) whether I am doing SSH over port 22 or port 23456. It's just plain not their affair and should have absolutely nothing to do with how my packets are routed by ISPs.

Today's "common carriers" do in fact concern themselves with more than just the layer responsible for directing the connection from sender to receiver.

But they should not. That is the whole point being discussed here. It isn't essential for their services and it's private information.

Further, if they intentionally redirect my packets, in any way that wasn't essential for internet routing, they're interfering with a private communication, which is illegal for a common carrier to do.

Re:I think this is fair.

[dunkindave]

How does that make GP wrong?

The fact that Cox has not yet lost this case does not mean "they have lost nothing".

The judge has set a precedent that, unless overturned by an appeal, has damaged Cox's ability to conduct business as they have been, and has now opened them up to a substantial liability, so yes, they have already lost something. It also means that Cox will now have to spend more time and money to appeal this ruling. And this precedent remains valid even if Cox wins this case. What this article was about was how that same precedent can cause harm to more than just Cox since it can now be cited in other lawsuits, putting other judges in the uncomfortable position of either accepting this ruling as valid, or giving a different ruling which would require them to state why they came to a different conclusion, and judges try very hard to avoid that.

So Cox and other ISPs, and by consequence also their customers, have already lost something.

Re:I think this is fair.

[DEN_GUY]

That should also means that regular phone companies would be liable because two terrorists planned a bomb attack over the phones...

No that doesn't mean that. In fact it means exactly the opposite. The comment was that deviation from common carrier behavior forfeits the protections for common carriers. Phone companies are common carriers. So they are protected. Cable/Internet Companies are not, by their own designs, so they should not have common carrier protections.

Re:I think this is fair.

[Obfuscant]

Port addresses are not part of the ISP's business, either. That is an internal matter for the networks/routers at source and destination, not in between.

If the ISP is doing NAT for customer traffic, they need to know the port addresses. The source and destination routers are not the only routers in the network. And if they are providing outbound connections only, they need to know what outbound ports are in use so they can allow the responses to get back while blocking the rest.

My ISP, for example, has absolutely no business knowing (or caring) whether I am doing SSH over port 22 or port 23456.

Knowing what ports are in use does not tell the ISP what kind of traffic is going over the connection. You would have a valid point had you said "whether I'm doing SSH or FTP" and stopped there.

It isn't essential for their services and it's private information.

How is what port you are using "private information"? It is in every outgoing packet you send. And it is essential for some kinds of service.

Further, if they intentionally redirect my packets, in any way that wasn't essential for internet routing, they're interfering with a private communication, which is illegal for a common carrier to do.

Ummm, so if they use a longer route for your packets because it is cheaper for them, it's illegal?

Re:I think this is fair.

[Anonymous Coward]

No. There is a huge difference between reading an IP header, and reading a TCP header. As a common carrier, an ISP has no legitimate reason to do the latter.

Quality of Service is a very legitimate reason.

Re: I think this is fair.

[Anonymous Coward]

The article says "O'Grady also derided the Electronic Frontier Foundation's attempt to file an amicus brief supporting Cox, calling them hysterical crybabies."

But he didn't call them hysterical crybabies. The slash dog article author needs to correct this lie.

Re:I think this is fair.

[hucker75]

He's not missing your point, your point is simply wrong. You can't grasp the difference between committing a crime, and not preventing a crime. The police stop crimes. Members of the public and private companies shouldn't have to. If Mr Smith pirates something, then the police can track down Mr Smith. But the ISP, the phone company, the postal service, the electricity company, the supermarket where he buys his food, are all nothing whatsoever to do with his crime, yet any of them could have stopped him.

Re:I think this is fair.

[Jane Q. Public]

You do have a point about NAT. But that should no longer be necessary with IPv6... if and when they all get switched over.

You would have a valid point had you said "whether I'm doing SSH or FTP" and stopped there.

I do have a valid point. It's still none of "their business", even if it's necessary for NAT. So I would say that's a necessary evil... today. And I didn't say anything about "what kind of traffic" it is.

Ummm, so if they use a longer route for your packets because it is cheaper for them, it's illegal?

That's not what I meant. If it's really necessary for routing or doing business, obviously it would be okay. That was an over-generalization but I thought you'd get my meaning.

Who wants to be the first?

[Anonymous Coward]

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

I wonder how that judge would feel...

[Anonymous Coward]

If someone took away his right to be courthouse, because someone accused him of reading the wrong book? I'm sure he wouldn't be so cavalier about this if he had respect for the people who have jobs relying on the Internet, but then this particular judge doesn't seem to have respect for anything but himself.

The judge issued a verdict ahead of trial?

[zAPPzAPP]

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

Re:The judge issued a verdict ahead of trial?

[Anonymous Coward]

But we don't want that just yet.

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

Re:The judge issued a verdict ahead of trial?

[Ubi_NL]

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

Re:The judge issued a verdict ahead of trial?

[geekmux]

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

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

Sorry, perhaps I should clarify first.

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

Re:The judge issued a verdict ahead of trial?

[gstoddart]

the funky US 'justice' system?

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

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

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

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

This shit has to stop.

Re:The judge issued a verdict ahead of trial?

[JackieBrown]

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

Both sides are large corps on this case.

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

This shit has to stop.

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

Re:The judge issued a verdict ahead of trial?

[bws111]

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

Bias would be if the judge had some reason to favor one party over the other, and that reason had nothing to do with what is presented. There is no evidence of bias here, except that he issued a ruling some people don't like. According to those people, the only possible reason anyone could disagree with them is if they were biased, paid off, etc.

Re:The judge issued a verdict ahead of trial?

[Martin Blank]

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

Re:The judge issued a verdict ahead of trial?

[pr0fessor]

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

Re:The judge issued a verdict ahead of trial?

[phantomfive]

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

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

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

Eventually there will be a final judgement, and maybe more hearings after that. But this is not a final judgement, it is a judgement on one technical aspect of the law. Litigation will continue.

Re:The judge issued a verdict ahead of trial?

[gstoddart]

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

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

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

Re:The judge issued a verdict ahead of trial?

[oh_my_080980980]

But it's definitely one point in an appeal.

Re:The judge issued a verdict ahead of trial?

[Immerman]

And you assume that a closed-to-the-public appointment process means there's no campaigning? I'm quite certain that many if not most appointees vie fiercely for their nomination and approval, just not among the rabble who get no say in the matter.

Re:The judge issued a verdict ahead of trial?

[Jason Levine]

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

No, because the only penalty in the DMCA levied against the accuser is for falsely stating who you are. So if I claim that I'm Steven Tyler and you violated "my" copyrights by sharing "my" songs, I could get fined. However, if I claim that you violated copyright on songs that I actually do own the copyright to, I won't be fined even if you never even knew such songs existed - much less downloaded/uploaded them.

This means a rights holder could toss DMCA claims against everyone, demand settlement fees, quickly drop the cases where the user is going to fight back (without any penalty to the rights holder), and collect settlements from the rest. Pure profit!

Re:The judge issued a verdict ahead of trial?

[oh_my_080980980]

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

So yes there's evidence of bias. Judge probably thinks the internet is a series of tubes....

Re:The judge issued a verdict ahead of trial?

[Immerman]

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

Re:The judge issued a verdict ahead of trial?

[bws111]

Nope, no evidence of bias. Here is what he said about the EFF's brief:

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.

See that bit about 'adds absolutely nothing helpful at all'? That is why it was rejected, which is a perfectly valid reason. An amicus brief is supposed to provide some HELPFUL legal information, not just be a bunch of whining about why someone does not like a law.

Judge probably thinks the internet is a series of tubes....

In other words, there is plenty of evidence of YOU being biased.

Re:The judge issued a verdict ahead of trial?

[pr0fessor]

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

Re:The judge issued a verdict ahead of trial?

[gstoddart]

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

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

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

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

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

Re:The judge issued a verdict ahead of trial?

[renderhead]

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

A preliminary ruling like this can be very helpful to both parties involved. The judge has basically told Cox's legal team, "Based on the information I have available to me right now, here is how I would rule, and why." That gives them the opportunity to build their case based on how the judge is leaning.

Judge's are not the same as jurors. They aren't sequestered, and there's no requirement that they only consider information presented at trial. At this point, the judge has read tons of material about the case. If he said he had no opinion at this time, I'd assume he was lying. Better to know where he stands, so that all parties involved can form meaningful legal strategies.

Re:The judge issued a verdict ahead of trial?

[Anonymous Coward]

You might want to read the article. Or even the summary. I know you haven't read either because either Liam O'Grady had very cruel parents, or Liam is a he, and not a she.

Re:The judge issued a verdict ahead of trial?

[nctritech]

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

Re:The judge issued a verdict ahead of trial?

[dunkindave]

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

The "hypothetical penalty" in the DMCA may be toothless, but there are other things the subscriber could sue for. There is libel, where the takedown was sent to a third party causing harm to the subscriber's reputation. Depending on what the takedown was for, there could be tortious interference with contract or business expectancy, if the takedown was for anything affecting the financial condition of the subscriber. There is civil extortion, AKA fraud, if the subscriber can show the takedown was issued with the intent of generating revenue even though the issuer knew or should have known it was invalid. And so on. And remember civil cases are based on preponderance, so you only have to make your side seem more likely to be true than the other side in order to win. As always, please check with your lawyer about which laws are applicable in your particular case if you are faced with this.

Re:The judge issued a verdict ahead of trial?

[dunkindave]

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

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

Re:The judge issued a verdict ahead of trial?

[phantomfive]

I've really, really stopped caring about the gender of pronouns

Re:The judge issued a verdict ahead of trial?

[lgw]

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

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

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

Re:The judge issued a verdict ahead of trial?

[Anonymous Coward]

I've really, really stopped caring about the gender of pronouns

If someone in a group makes a reference to you using the wrong pronoun gender, do you care then? How about if they use a non-gender pronoun, like "it"?

Re:The judge issued a verdict ahead of trial?

[Anonymous Coward]

Oh yeah! Just wait till Anonymous hears about this guy.

Re:The judge issued a verdict ahead of trial?

[phantomfive]

If someone in a group makes a reference to you using the wrong pronoun gender, do you care then?

No.

How about if they use a non-gender pronoun, like "it"?

I would think they are weird, but it wouldn't bother me. I'm too old to care about stuff like that.

Re:The judge issued a verdict ahead of trial?

[Maxo-Texas]

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

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

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

If states had been kept smaller and were divided by roughly equal populations, we would have over 600 senators.

It would be very tough to buy half of them. Votes would matter more. And as a voter, you'd know your representative better.

Re:The judge issued a verdict ahead of trial?

[Anonymous Coward]

Nobody in the US government oligarchy is actually elected.

Re:The judge issued a verdict ahead of trial?

[dcollins117]

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

It never did. The legal system only deals with conflict resolution. Ideals such as "justice" are tangential to the law. Just like integrity is tangential to Judge Liam O'Grady's character.

Re:The judge issued a verdict ahead of trial?

[dryeo]

There is a proposed amendment to keep the House of Representatives more representative, something that was considered important enough that it was the 1st proposed amendment and should have caused a representative for every 50,000 people. Needs another 27 States to ratify. Just as possible as the original 2nd which finally passed in 1992 as the 27th.
Wikipedia had a good article under "Article the First" which unluckily seems to have been dumbed down and redirected to make it hard to find the history. https://en.wikipedia.org/wiki/...

Re:The judge issued a verdict ahead of trial?

[Anonymous Coward]

I wouldn't call this siding with either side over the trial itself so much as looking at the laws as written.

As it stands, they are not considered common-carriers which does make them liable for the content going over their lines and as such, was responsible for doing something about it when it was brought to their attention that something illegal was going over their lines.

Technically, they could have sued them outright without even giving them that warning.

Now, were Cox labelled as a Common-Carrier, than this would be a moot point as they would not be liable for any of it.

It is a case of the ISPs trying to have their cake and eat it too, except this judge is forcing them to live under the designation they have been trying to hide under instead of trying to have all the benefits of 2 designations with the downside of neither like they have been.

Re:The judge issued a verdict ahead of trial?

[John.Banister]

Liam O'Grady is also the judge presiding over the extradition proceedings against Kim Dotcom. Cox was t-u the moment the case entered his courtroom. If I was Cox, I'd spin off whatever the portion of the company is that does business in the Eastern District of Virginia (having it lease the hardware infrastructure from a separate, spun-off child) and let it go belly up. Once life becomes inconvenient for all those people who live in that district and commute to DC, other forms of corruption will prevail.

Re: The judge issued a verdict ahead of trial?

[Anonymous Coward]

I stopped reading at "corporate interests". The idea of corporations is a legal shorthand for "groups of Individuals working together for a common/shared purpose". Please ditch Your apparent cynicism.

Re:The judge issued a verdict ahead of trial?

[Anonymous Coward]

appointed by Bush, and with a history of decisions favoring media corporations even in the face of actual law and precedent.

Re:The judge issued a verdict ahead of trial?

[Anonymous Coward]

Senators were never supposed to represent the people. Their original purpose was to be the state governments voice at the federal level, that is why they were originally appointed by the state governments and not popularly elected. Making the senate an elected house rather than appointed deprived the state governments of their voice in the federal government, to the detriment of the whole system.

Re: The judge issued a verdict ahead of trial?

[phocion]

Why do we never hear about term limits anymore? It'll take a constitutional amendment to make it happen, and since we know the donor party won't vote to make it happen it'll have to come from the states. My guess is that a) it's going to be quite hard to do against the entrenched opposition and b) everyone supports term limits for the other guys, but their guy is just fine. That's the only hope of really making a difference against the influence of donors in politics.

Re:The judge issued a verdict ahead of trial?

[Maxo-Texas]

Very interesting. It wouldn't fix the problem since it says to limit to at least 200 representatives and at most 1 representative per 40/60 k citizens (they'd probably resolve the senate and house versions to something like 50k.

But thanks a lot. I'd never heard of this odd corner of the u.s.a.'s history and constitution.

Re:The judge issued a verdict ahead of trial?

[Imrik]

What about those of us that are to the left on social issues and to the right on financial ones?

Re:The judge issued a verdict ahead of trial?

[Maxo-Texas]

States are people.

Allowing the creation of states with 38 million people 2 senators while other states with 560,000 people also got 2 senators warps government tremendously.

If the founding fathers had any idea this was possible, they would have probably set limits on how big a state would be and we would have 200 to 400 states.

Re:The judge issued a verdict ahead of trial?

[dryeo]

My understanding is that a clerk changed a "less" to a "more" which kind of ruined the intent. Still as written I believe the math can come out to close to 6000 representatives for the current population. The minimum back in the days of 18 million population was 200.
The main point is that Congress has already OKed it so it can still pass.
BTW, I'm in Canada where with 1/10th the population we have about 3/5ths the representatives and as recently as last month that number increased by close to 10%

Re:The judge issued a verdict ahead of trial?

[Anonymous Coward]

I wouldn't call this siding with either side over the trial itself so much as looking at the laws as written.

Unfortunately, that's not the case. The highest "law as written" is the Bill of Rights. In providing for unspecified rights "retained by the people" (9th Amendment), and "reserved to the people" (10th Amendment), James Madison made the highest law in the land an open-ended document. The idea that any finite list of rights would be incomplete is one of the most important elements of the US Bill of Rights (and seemingly one of the most hated by the US legal profession).

The DMCA violates a number of such rights (the reasoning that proves this has been gone into in detail in other discussions). It is an illegal law. Treating it in any other fashion is already a violation of the laws as written. All legal professionals have an individual and personal responsibility to recognize this, as a consequence of their oaths to upholds the Bill of Rights. In other words, as a consequence of the 9th Amendment, the Nuremberg Precedent applies to the legal profession: that precedent is applicable to individuals in any government or legal hierarchy, not just those in a military hierarchy.

A number of things Rightscorp has been accused of doing also violate the Bill of Rights. This, in turn, means the lawyers representing Rightscorp and associates - should they fail to address these issues - become accessories after the fact to these violations, in the eyes of the 9th Amendment (a consequence of the 9th Amendment right to ethical practice of law: taking money from an employer engaged in ongoing violations of the Bill of Rights is a violation of a legal professional's oath to uphold the Bill of Rights).

The claim that "There is no genuine issue of material fact as to whether defendants reasonably implemented a repeat-infringer policy as is required", is, of course, complete nonsense. Since it appears both the judge and the plaintiff's attorneys have already violated their oaths, we don't need to really address this claim, but let's do it for sake of discussion.

One starting point is to note that the safe harbor provision includes terms such as "reasonably implemented", "appropriate circumstances", and "repeat infringers". All of these are poorly defined terms. For example, how do we determined whether a policy is "reasonably implemented"? Further, how does the provider determine that somebody is a repeat infringer? Given that RightsCorp is alleged to be routinely engaged in violating the law, we certainly can't take their word for anything, so how does Cox make this determination? Clearly, they are in fact killing some accounts - both parties acknowledged this - so it is not as if Cox is completely ignoring this provision. Hence, figuring out whether the policy is reasonably implemented is certainly an issue of material fact.

Further, Cox, like everybody else, is bound by the open-ended Bill of Rights, hence bound by any rights the people might choose to assert as being "retained by" or "reserved to" them (these right supersede acts of Congress: the Bill of Rights, not Congress, is the highest law in the land). Cox can not take any action in violation of such rights without themselves being in violation of the law. How then does Cox determine infringement, let alone repeat infringement?

To make matters more complicated, "fair use" is certainly a consequence of rights arising under the 9th Amendment, as is repeated "fair use". Whether or not the legal profession chooses to call this an 'infringement' (technically they can't, as a consequence of the 9th Amendment right to ethical practice of law, which hasn't prevented them from doing that just), fair use or repeated fair use certainly can not be interfered with by Cox.

There's also the ugly issue that the DMCA defines 'standard technical measures' as those that "have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-i

Censored documents?

[Anonymous Coward]

What's in the blacked out parts of the Cox's opposition to the motion?

Your ISP bill is about to get more expensive

[DigiShaman]

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

Re:Your ISP bill is about to get more expensive

[Anonymous Coward]

First duties: Monitor the courthouse and judge's Internet. If anyone at the courthouse or the judge himself/herself look at a YouTube video which has unlicensed background music (for example), cut 'em off. Granted, some older judges may not care about not having Internet, but I'm sure they have underlings who do. Guess who you start to monitor/disconnect next? Rightscorp! Surely they "investigate" someone's claims by visiting the "infringing" site. And even if they don't, I'm sure their e-mails from the *AA contain *gasp* LINKS to the offending material to prove their court case. That should be good enough to cut 'em off, right *AA?

Now for the discrimination part of the ruling - who says that ISPs need to monitor everyone equally and take action equally?

Re: Your ISP bill is about to get more expensive

[DigiShaman]

The fact that the ISP didn't self censor means they're now an accessory to a crime??

Holy crap ...

[Anonymous Coward]

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

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

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

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

What a fucking useless asshat.

Re:Holy crap ...

[Passman]

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

What a fucking useless asshat.

Well, he was appointed by George W. Bush.

Re:Holy crap ...

[MitchDev]

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

Re:Holy crap ...

[JackieBrown]

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

It's an ugly cycle we have here.

Re:Holy crap ...

[JackieBrown]

Let me rephrase my previous post...

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

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

Re:Holy crap ...

[Martin Blank]

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

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

Re:Holy crap ...

[SuricouRaven]

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

Re:Holy crap ...

[Anonymous Coward]

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

 
Bernie Sanders.

Re:Holy crap ...

[Anonymous Coward]

The UK bookies have Marco Rubio at about 40% for taking the R mantel.

H. Clinton on the other hand is trading at 54% to take the presidency.

https://primary.guide/

Re:Holy crap ...

[ColdWetDog]

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

Re:Holy crap ...

[Anonymous Coward]

Maybe Obama's wife could run this time?

Re:Holy crap ...

[Anonymous Coward]

Trump, then Carson, now Trump again.

http://elections.huffingtonpost.com/pollster/2016-national-gop-primary

Lead hasn't changed in a while WTH are you talking about.

Re: Holy crap ...

[Anonymous Coward]

Judging People by Their Relatives is bigoted at best. Do You have a klanhood to go with Your comment?

Terminated Based on Accusations?

[Jason Levine]

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

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

Re:Terminated Based on Accusations?

[phantomfive]

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

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

Re:Terminated Based on Accusations?

[edtice1559]

The DMCA is a bad law, but the judge is only doing his job interpreting it. Basically the DMCA gives information providers two choices. Throw their customers under the bus at the most frivolous allegation. Or stand up for their customers and become jointly liable for the behavior. I think that part of the goal was to force information providers (and, apparently, ISPS to do) is to police their own networks. When a customer is accused, they have to already know whether the person is guilty and how to respond. Or better yet, proactively take action. Cox took neither of these actions and now they're in a bind just like everybody else. I hope that this law is thrown out on constitutional grounds but that doesn't seem to be the place of a trial judge. It's not clear that the argument has even been raised.

Re:Terminated Based on Accusations?

[Anonymous Coward]

Good time to be in the VPN business!

Re:Terminated Based on Accusations?

[Jason Levine]

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

Re:Terminated Based on Accusations?

[Jason Levine]

The actual DMCA process (when not abused) isn't so bad:

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

Overall, the process is relatively fair. The ISP can't be expected to be the judge of whether something is a copyright violation. That's for the courts. There are definitely improvements that can be made like in penalty amounts, but it's a decent process.

The problem here is that RightsCorp and the judge are saying that the process should be:

1) Copyright holder makes a few accusations against a user.
2) ISP kicks user off.

No court involved. No burden of proof. Nothing. Just "X did this wrong" followed by punishment.

Re:Terminated Based on Accusations?

[Aryden]

2 words: Civil Forfeiture

Re:Terminated Based on Accusations?

[edtice1559]

Except that you have missed the point of the takedown notices. The time between when the copyright holder notices the infringement and the time that they get in front of a judge can be quite long. Especially if the person has attempted to mask their identity (Harder to do with residential Internet, but not impossible.) Given the prevalence of infringement this would also overwhelm the courts. The issue is what happens during that time. The DMCA provides a provision that, once notified, the ISP of the alleged infringer has to take down the infringing content and also notify the subscriber. At that point, the subscriber can file counter-notice that they are not infringing and this will be passed to the copyright claimant along with the subscribers identity. At that point the ISP reinstates the content. This is an optional procedure. But by participating, the ISP gains "safe harbor" and can't be held liable for contributory infringement. ISPs don't have to do this. At the time of authorship the thought was that almost all takedown claims would be legitimate so the counterclaim process would not be burdensome. This hasn't worked out well because a notice takes almost no effort to generate but puts a heavy burden on the ISPs. The vast majority of claims seem to be false positives which means there needs to be some revision.

Re:Terminated Based on Accusations?

[TechnoJoe]

So the judge is saying that Cox should shut off customers based on repeated allegations?

I would be very interested in knowing if the Judge has Cox Internet and if the Judge's IP address showed up on any of the frivolous complaints. If so and I were Cox, I'd shut him off. Turnabout is fair play.

Sure it will tick him off, but he wasn't going to rule in Cox's favor anyway. This way Cox can embarrass him on appeal. Judges hate it when their rulings get overturned.

Accused?

[YrWrstNtmr]

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

And I 'accuse' the CEO and entire board of RightsCorp of doing exactly the same. I have given no actual evidence, but the simple accusation should be enough, right?

Re:Accused?

[Anonymous Coward]

No. You aren't a wealthy corporation, so your accusations don't mean very much at all, especially when they are against wealthy corporations.

Why we need to vet judges

[Anonymous Coward]

Remember, this is a guy who was nominated by a republican, not by the Hollywood-owned Democrats. All federal judges, most certainly, need to be strongly vetted, and filibustering is a very good thing for judges with a sketchy history.

Re:Why we need to vet judges

[YrWrstNtmr]

And the DMCA was signed into being by a Democrat. Your point?

Good Lord

[Anonymous Coward]

What I wouldn't give to see the redacted portion regarding BMG.

Blocking everything is hysterical overreaction

[Anonymous Coward]

His comment:
"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."

Cox is not a parent with parental powers over subscribers. It simply provides a connection to the Internet, and should not be monitoring or managing third party copyrights at all. They're not your daddy to monitor your bedtime or homework.

Note that there is an attempt via treaties to put this provision (remove internet and force hand over of warning letters) into law by the backdoor process of TPP negotiation.

https://www.techdirt.com/articles/20150328/07314930468/how-tpp-agreement-could-be-used-to-undermine-free-speech-fair-use-us.shtml

Re:Blocking everything is hysterical overreaction

[Anonymous Coward]

"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."

Let's take away Hizonnor's secretary, dictation machine, telephone, FAX, and Rolodex, and see how well he does when it's time to draft his next ruling.

Frankly, I think he'll sound like my grandfather complaining when I took his obsolete Model T hand crank away when he tried to start his hoveround with it. And it was completely hysterical.

Re: Blocking everything is hysterical overreaction

[hackwrench]

More importantly he doesn't have a job where access to the internet is a requierment, which most jobs (not apparently being a judge) requires. Many companies (maybe mainly temp agencies and aides) require that a time sheet be filed over the net.

Re: Blocking everything is hysterical overreaction

[Fire_Wraith]

Oh, I'm pretty sure he does use it for work (even if not in a critical capacity), he just doesn't realize it because he takes it for granted. He thinks it's something frivolous for entertainment, and equates it to TV/Video Game privileges for his kid. He probably wouldn't understand just how huge of an impact it would have on his and his family's lives if it was suddenly cut off due to spurious copyright claims - or even non-spurious.

Let's say his kid has been torrenting movies - what happens then? Apparently he seems to think that the entire household should be immediately cut off, or that maybe **AA lawyers ought to be able to directly extort money from him claiming that he has been torrenting porn or such.

What do you expect from an ex-Disney lawyer?

[Morgon]

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

Re:What do you expect from an ex-Disney lawyer?

[Anonymous Coward]

Comcast or AT&T (Cox's rival) probably bribed him with free cable and adult programming for life.

Re:What do you expect from an ex-Disney lawyer?

[shillbot]

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

Re:What do you expect from an ex-Disney lawyer?

[wvmarle]

Well, maybe, maybe not.

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

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

As a judge he's supposed to be neutral and unbiased (as much as a human can be - they may be judges, they're humans, too). As long as he remains neutral and unbiased, he should make a fine judge for copyright cases.

However coming with remarks of who's on the side of the law before the trial even has started, that's bad, and an indication of a biased or prejudiced judge.

Re:What do you expect from an ex-Disney lawyer?

[Anonymous Coward]

"Former" Disney lawyer? I bet he's still on the payroll.

Well...

[MitchDev]

U.S. District Judge Liam O'Grady just declared himself a traitor to the USA...hopefully he'll be treated appropriately.

Nice to the know the judge doesn't believe the accused need a trial, or even PROOF before being punished...

Re:Well...

[amicusNYCL]

U.S. District Judge Liam O'Grady just declared himself a traitor to the USA...hopefully he'll be treated appropriately.

You think so? Let's see what Article 3 of the Constitution says about that:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Congress created the offense in 18 USC section 2381:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

So, what's an enemy:

ENEMY, international law. By this term is understood the whole body of a nation at war with another. It also signifies a citizen or subject of such a nation, as when we say an alien enemy. In a still more extended sense, the word includes any of the subjects or citizens of a state in amity with the United States, who, have commenced, or have made preparations for commencing hostilities against the United States; and also the citizens or subjects of a state in amity with the United States, who are in the service of a state at war with them.

You could also look to the Bush-era definition of "enemy combatant", to include non-state actors:

'Enemy combatant' shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed belligerent act or has directly supported hostilities in aid of enemy armed forces.

So, noted law scholar MitchDev, how is the judge in this case a traitor to the US?

Re:Well...

[ChrisMaple]

You wrote a great deal without understanding that MitchDev wrote "traitor", not "treason". Though similar, the words don't mean exactly the same thing.

Re:Well...

[Anonymous Coward]

You got yourself all wound up over something when you misunderstood.

This judge is a traitor because he is ignoring constitutional protections.

This judge has not committed treason.
Just like your best friend could sleep with your wife and both of them are traitors for betraying you, neither of them committed treason against you though.

Re:Well...

[renderhead]

They do when you call someone a traitor against a country, as in "a traitor of the USA."
One of the official definitions of "traitor" is "one who commits treason." It's reasonable to apply that definition when dealing with nations, as that is the most common meaning in those situations.

If the poster had wanted to be clear that they weren't implying treason, they could have said something like "a traitor to the principles of the USA."

Re:Well...

[Anonymous Coward]

Traitor
Definition: a person who commits treason by betraying his or her country

Re:Well...

[MitchDev]

The "lawyer" above proving his kind are also enemies of the American people and the constitution...

Re:Well...

[amicusNYCL]

Now, Mitch. Neither of us are lawyers. I hope. But I'm glad that we've got people like you here to point out who all of the enemies are.

Re:Well...

[Anonymous Coward]

... declared himself a traitor to the USA ...

He betrayed the 'citizens', except the corporate citizens who will benefit from this, but is not a traitor. Treason is an entirely political/military beast. Even with this 'corporations have rights' stance, he still has reasons to rule against them, mostly on grounds of due process and equitable outcome, and possibly even on the intent of the law: How often are those principles protected by US courts?

Re:Well...

[Anonymous Coward]

traitor: one who commits treason

Internet Access

[Fire_Wraith]

I wonder just how much he'd be able to do if he suddenly found himself with no internet access, thanks to accusations of piracy.

Re:Internet Access

[Anonymous Coward]

If I were COX, I would make sure that both the judge, and his department, as well as all Rightscorp offices/locations, were identified and their providers sent DMCA notices. Continously, until there are no providers left for them to use. If done through a third party "shakedown firm", which also sends out massive numbers of take down notices to competitor ISPs, would it get noticed? Hrm...

How DARE you apply the Rule of Law in this court?

[Pseudonymous Powers]

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

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

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

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

Screw all that "innocent until proven guilty" shit

[NotDrWho]

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

Re:How DARE you apply the Rule of Law in this cour

[NotDrWho]

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

A matter for the state

[Anonymous Coward]

If an ISP is legally compelled to make determinations of guilt based on third party assertions AND take punitive action in response then the ISP is acting as an agent of the state where the accused is entitled to "due process of law".

Ignoring third party demands to shut off customers without due process of law is the only lawful course of action.

Re:A matter for the state

[edtice1559]

The ISP does not make a determination. They take down the content and then the accuses can file a counter-claim. Whether this is a good process or not, its what we have.

Re:A matter for the state

[Anonymous Coward]

The ISP does not make a determination. They take down the content and then the accuses can file a counter-claim. Whether this is a good process or not, its what we have.

You are confused. Cox is an eyeball network not a content network. ISPs are being spammed with DMCA notifications due overwhelmingly to bit torrent usage. There are no information services operated by the ISP it is able to take down. Those who want to go after an ISPs customers for breaking the law have the ability to do so with a court order.

Re: Blocking everything is hysterical overreactio

[hackwrench]

*maybe most jobs someone with an internet connection that would run afoul of this would have?

Excellent!

[tekrat]

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

Motion for Summary Judgment

[Etherwalk]

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

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

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

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

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

Re:Motion for Summary Judgment

[ChrisMaple]

The Fully Informed Jury Association would like a word with you.

Re:Motion for Summary Judgment

[Anonymous Coward]

Wondered how long it'd take for the Jury Nullification Nutters to show up...

Re: Motion for Summary Judgment

[Anonymous Coward]

yea those nutters protecting Quakers even when thrown in prison.

It's in the law

[Kjella]

USC 17512 Limitations on liability relating to material online

(i) Conditions for Eligibility.â"

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

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

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

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

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

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

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

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

Re:It's in the law

[viperidaenz]

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

Re:It's in the law

[Etherwalk]

Probably. It depends on what "appropriate circumstances" means. There can be a fight about that. That's what courts are for.

Re:It's in the law

[viperidaenz]

Well it doesn't say "repeat alleged infringers" in the legislation. Else where the term "infringer" is specifically prefixed with "alleged" where there has been no court ruling on the infringement.

It appears the rights holder doesn't even know who the infringer is. They should have asked a court for a subpoena to make Cox disclose their identity, but that would be following due process.

And cell phone ones are liable for cell bombs

[Joe_Dragon]

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

Say goodbye to youtube, ebay, public wifi, and ma

[Joe_Dragon]

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

Stop whining and RTFA

[MobyDisk]

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

The EFF has an article on what the DMCA repeat infringer policy means.

Re:Stop whining and RTFA

[Anonymous Coward]

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

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

Re:Stop whining and RTFA

[Anonymous Coward]

Stop talking and read the fucking constitution. If you don't believe in the rule of law then just post your address so some internet troll can SWAT you fuckstick.

Re:Stop whining and RTFA

[Anonymous Coward]

This is the new slashdot nobody reads TFA.

Re:Stop whining and RTFA

[MobyDisk]

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

I never said they didn't.

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

The article shows Cox's stance, which is that they have a repeat offender a policy. The judge, for reasons we don't know yet, thinks that their policy is inconsistent. For all we know, Cox has no actual policy, and merely drafted up something right now on the fly, then used previous cases of banning users to support the claim that they had a policy all along. Cox claims that their policy it is not inconsistent, it is discretionary. Is their policy sufficient to meet the criteria for a repeat offender policy as described in the DMCA? *shrugs* We don't know. The judge will decide that. DMCA itself isn't super clear on the topic, which is why I looked it up and linked to the EFF's opinion on those policies.

IMHO, Cox is right. Those copyright trolls send a gzillion notices with little to no supporting evidence. Neither the ISPs, nor the individuals, should be obligated to respond to them. The trolls should have their errant and unsupported DMCA claims discarded, and they should be held liable for damages. Hopefully that is what will happen here. Even if Cox's repeat offender policy was not sufficient, it does not make the DMCA claims valid. But if Cox didn't follow the DMCA rules than it puts a wrinkle in things and makes this a bad case and increases the chance for the trolls to succeed. This is a lesson to other ISPs: Get your repeat offender policy in alignment with the law, or fear losing your safe harbor status. That would be a huge ball of suck.

My post was not a criticism or a defense of Cox. It was to point out that there is a lot more nuance than the overzealous Slashdot summary would have us believe. The summary implies that the judge threw-out safe harbor for arbitrary reasons. The article indicates otherwise.

Re:Stop whining and RTFA

[Anonymous Coward]

Ok, here's the repeat infringer portion of that article:

Specifically, courts have found that service providers do not comply with the DMCA’s repeat infringer policy requirement when they:
                * Change the contact email addresses for content owners to send DMCA notices without informing content owners of that change;
                * Encrypt or otherwise program a site making it impossible for a content owner to determine which users were transferring or uploading specific files; and
                * Fail to respond appropriately when presented with "actual knowledge" of repeated infringement.

Which part of this policy did they violate or otherwise fail to implement, and how?

Re:Stop whining and RTFA

[MobyDisk]

Which part of this policy did they violate or otherwise fail to implement, and how?

Good question. I guess we will found out as the case unfolds.

The second bullet point is interesting. It means that truly anonymous sites can't meet the safe harbor provision. But my guess is that #3 is their complaint. Cox is saying the copyright holders are spamming them with DMCA requests, so it seems like Cox could be considered to be not responding. This is part of the problem with the DMCA. I wonder what "actual knowledge" means since many of these requests are completely automated.

"Impartial" judge?

[Anonymous Coward]

Is this guy a judge or a lawyer for Rightscorp? It sounds like he's going out of his way to give them every break and ignore any viewpoint that doesn't reinforce their case. He referred to the EFF's brief as "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."

I think you are on to something

[s.petry]

I'm not sure if you are in the US, but you may not understand how bad our so called justice system is. An interesting article today shows that in the last couple years, Just the Federal "Civil Forfeiture" has taken over 5 times as much money and property as crime. This is where there is no trial, no charge, not even an allegation. Police just take your stuff by simply claiming that it was connected to a crime or.. get this.. a Potential crime.

If you already knew this you know how bad things are. Since the burden of proof, allegations, and fair trials are gone what would make you believe that a Copyright claim would be different?

But you hint at something, which is a tactic not often considered "fair" but since that's gone anyway... Turn the claim on the plaintiff and start having people flood their ISPs with bogus claims of copyright infringement, trademark abuse, or hell even patent infringement. While you are probably right that it would only work against individuals as a real action, it would still start to cost money. And how about everyone going and filing small claims charges against them for damages related to an increase in their ISP billing due to frivolous lawsuits?

I'm really not sure how to oust an appointed judge either. Impeach them and the guys that appointed them?

Re:I think you are on to something

[Anonymous Coward]

The tourist offices in Europe are warning tourist going to the U.S.A. to not visit small towns, as it is a regular occurrence that tourist have everything taken from them by the local police with "Civil Forfeiture".

These local police count upon that the tourist will not spend several years going into federal court suing the local police to get their stuff back.

Re:I think you are on to something

[jedidiah]

On the other hand, tourists going to Germany are warned to have cash on hand to pay for any speeding tickets you might get in a rural speed trap. Your car might be confiscated otherwise.

That sh*t is just normal over there. Over here it's at least considered scandalous.

Re:I think you are on to something

[Anonymous Coward]

An interesting article today shows that in the last couple years, Just the Federal "Civil Forfeiture" has taken over 5 times as much money and property as crime.

And I saw an interesting article that said there have been more deaths in the US at secret labor camps than by police shootings. So? Where is the proof of the assertion, or is it considered true just because someone said it? Civil Forfeiture is a real problem and being abused, but many pundits have been exaggerating figures to make for better stories and articles, and claiming it is five times the dollar amount as lost in all criminal activity just strains belief.

Re:I think you are on to something

[HiThere]

I'm not convinced that there's a reasonable chance that you would EVER get your stuff back, no matter how much time and effort you spent on it. And I've heard things that cause me to believe that it's not only tourists that suffer.

It's not so much power that corrupts, as lack of consequences. Admittedly, the two are often closely intertwined.

Re:I think you are on to something

[Anonymous Coward]

That's called:

a) having speed limits that are actually enforced
b) having a culture where cash is rather common

The first would be a godsend to establishing law and order in the US. The second is just culture.

Re:How DARE you apply the Rule of Law in this cour

[Pseudonymous Powers]

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

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

I anticipate a prompt response from the Internet Company in this matter. Thank you for your business. You will be billed in monthly installments for the next forty-eight months. Cancel at any time--it won't make any difference. No CODs. Offer void in Mexico.

Re:How DARE you apply the Rule of Law in this cour

[jklovanc]

You really need to understand the DCA. IT has the following steps.
1. A rights holder submits a DMCA takedown notice to an ISP.
2. The ISP takes takes the material down and informs the poster.
3. The poster has two options. They can do nothing and the link stays down. Or they can file counter claim with the ISP.
4. The ISP forwards that counter clam to the right holder and stars a clock.
5. If within a certain period of time the rights holder has not filed a lawsuit against the poster the material goes back up.
The whole reason for DMCA takedown, and I think it is a good one, is to be able to stop infringement while waiting trial. If this did not happen the IP may not have any worth left by the time courts deal with it.

I agree that there are way too many notices and more should be done about false one but lets no throw the baby out with the bath water.

you can be a repeat offender with out a trail

[Joe_Dragon]

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

Re:you can be a repeat offender with out a trail

[edtice1559]

Only if you don't file counter-notice for any of the accusations. A form letter will do.

Effem All!

[MagickalMyst]

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

Fuck the DMCA and the gluttonous profiteering record companies.

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

Rock on.

Re:Effem All!

[Anonymous Coward]

No one alive remembers. That all stopped the day audio recording turned music into a product rather than the simple service it was previously.

DMCA is for cows.

[Anonymous Coward]

You are all cows. Cows say moo. MOOOO! MOOOO! Moo cows MOOOO! Moo say the cows. YOU COPYRIGHT COWS!!

Not the way I read it

[rsilvergun]

It looked to me like Rightscorp wants the ISPs to forward their $20 a song settlement demands, and that once the ISP does that they're off the hook again. The ISPs didn't want to hand over their customers for a variety of reasons. But from what I can tell these two (very large) businesses will work something out without the messiness of title II

Re:Say goodbye to youtube, ebay, public wifi, and

[edtice1559]

Certainly not YouTube. Google is able and willing to defend users who are falsely accused. The problem for companies like Cox is that they don't know which accusations are real. Youtube has different issues with DMCA takedowns, but the situation isn't analogous.

Re:How DARE you apply the Rule of Law in this cour

[edtice1559]

I wish I could mod you up. This is how the DMCA was sold and I wish it was operating this way. The problem is that the takedown notices place so little burden on the person sending them that the false positive rates are obscene. I'm not sure what a good solution would be. A judge could issue an injunction against an organization that has too high of an FP rate, but this just might be a game of whack-a-mole. Of course that's how the rights holders probably feel about the infringers. I'll get modded into oblivion, but monthly fee streaming services (rental) are probably the way of the future. The revenue stream is smaller for the creators but it's super-convenient for the customer and only the poorest people or those who have some sort of digital hoarding syndrome will really want to build huge offline collections.

Re:Screw all that "innocent until proven guilty" s

[Anonymous Coward]

It is already gone. All men are guilty until proven innocent in family violence or sexual assault cases. Ask any sheriffs department.

I found that out the hard way.

Captcha:maternal

Up for reelection?

[Anonymous Coward]

Is this judge up for reelection soon and looking for campaign contributions?

Two reasons

[Okian Warrior]

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

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

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

Look at the link in the last paragraph, and look at the right-hand column and count the number of times it reads "Trump".

This informative graphic from RealClearPolitics shows the overview situation.

But if this is true, then why was the MSM hyping "Carson pulls ahead of Trump" all the time?

Two reasons.

As an exercise to the readership, can you identify the two reasons?

Comparing news reports with actual data has been an eye-opening experience. There's really a lot of shenanigans going on in this election. Applying Bayesian priors of "of all reasons causing *this*, choose the most likely" paints a surprising, infuriating, and depressing picture of American politics.

Re:Two reasons

[Martin Blank]

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

FiveThirtyEight places a great deal of weight on what it calls the Endorsement Primary. This is a points system where each endorsement of a candidate by a member of the House of Representatives is worth one point, each Senator's endorsement is worth five points, and each governor's is worth 10 points. By this scale, there are theoretically up to 1435 points to award, though members of one party are unlikely to endorse someone from another party. In any case, Clinton leads the Endorsement Primary for Democrats by 447 to Sanders's mere 2 points (and O'Malley has one point). Republicans are a much more mixed bag with Bush at 41, Rubio at 29, Christie at 25, and Huckabee at 24. Everyone else is at 15 or fewer points (Trump and Carson have zero), and only 168 points worth of endorsements have even been made among candidates still in the race, so there's still a lot of wait-and-see going on.

I expect the party will push for some of the others to drop out to make the Iowa slate a little cleaner, but Iowa and New Hampshire are worthless as predictors of the nation, doing little better than chance at predicting the actual nominee. They act as filters: if you can't make a halfway decent showing there, you're probably not going to do it elsewhere. But ultimately, the party has a great deal of control by pushing superdelegates to vote in a certain way, and even a seemingly close match-up going into the convention could turn out to be a nearly runaway victory for whomever the Establishment prefers.

Cool. let's test that with Cloudflare next.

[Anonymous Coward]

Cloudflare refuses to cancel subscribers to their service no matter how or what their customers are engaged in. Piracy, child porn, etc. No wonder their the number one choice to hide behind. They may say they pass on their abuse complaints to upstream ISP's, but doing so doesn't absolve them of the crimes since they are still in control of the DNS and it's within their power to shut them down.

Judge paid off by big media

[Anonymous Coward]

Or they are related someone working in big media?

Plan

[Anonymous Coward]

1. Create copyrighted works with the similar names as ones being downloaded by the media companies.
2. When they download your files, file DMCA complaints with their ISP.
3. Demand that as repeat offenders they lose their internet access.

Re:Plan

[Locke2005]

Flaw is obvious: the "lawsuits" are for distributing copyrighted material, not for downloading it. Bittorrent is designed so that all while you are downloading, you are also seeding those same files, but it is possible to prevent it from seeding, which I assume the RIAA/MPAA goons do.

Seems bogus

[Anonymous Coward]

I'm not sure what the judge is thinking.
    The rules for DCMA protection for transient data providers appear to exist, but they are different than the usual DCMA takedown applying to content providers. (512 a below)

The law uses words like reasonable attempt and appropriate circumstances to define when the ISP has to do something.
    Those words seem optimal for funding lawyers indefinitely.
      Perhaps those sort of words are what is causing the initial ruling.

It does seem like that is reasonable is limited in section 512 i (below)

Disconnecting a user's Internet service is much more draconian than just taking down a web page from your own content server.
It seems reasonable to me that some sort of proof would be reasonable to ask for before doing this.
Did Rightscorp provide clear consistent evidence that a specific customer was doing something wrong?
Was the evidence something that Cox could verify?
Was the evidence something that would not cause an undue burden on Cox?

FROM http://www.copyright.gov/title17/92chap5.html#512

  512. Limitations on liability relating to material online11

(a) Transitory Digital Network Communications. — A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if —

(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;

(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;

(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;

(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and

(5) the material is transmitted through the system or network without modification of its content.

(i) Conditions for Eligibility.—

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

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

(B) accommodates and does not interfere with standard technical measures.

(2) Definition. — As used in this subsection, the term “standard technical measures” means technical measures that are used by copyright owners to identify or protect copyrighted works and—

(A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process;

(B) are available to any person on reasonable and nondiscriminatory terms; and

(C) do not impose substantial costs on service providers or substantial burdens on their systems or networks.

Re:How DARE you apply the Rule of Law in this cour

[SvnLyrBrto]

There are two major problems though. The first is with step 2. All that's happened at that point is an accusation. There's no proof and no due process at this point. Just an accusation and a jump immediately to punishment. This is a huge problem.

Also, the "under penalty of perjury" needs to be re-written to have some teeth. If attorneys were disbarred and executives imprisoned for perjury when the subject of takedowns turns out to be fair use, not actually owned by the takedown claimant, or otherwise non-infringing; I think we'd see a lot few fraudulent claims.

As a corollary to point two, all automatic and electronic submission of DMCA takedown claims need to go away as well. Supposed infringements should have to be submitted by an actual person; who will review the content and issue a sworn, notarized, and delivered by registered mail or other trackable courier, statement in writing and on the hook for perjury; that the content is, in fact, his (or his client's) and that it is, in fact, infringing.

Re:How DARE you apply the Rule of Law in this cour

[Anonymous Coward]

So if I and a bunch of other people send DMCA takedown noticea to someone's ISP that we don't like (send one, wait until the one on 5th step is about to run out, someone else sends another DMCA notice), we could pretty much deny their internet connectivity for eternity legally? As long as we claim they are violating our copyright of course (like the photo I took few years ago).

Not so political

[Etherwalk]

Let me rephrase my previous post...

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

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

It doesn't really work like this. Good Judges "support" all laws regardless of whether they are drafted by a Republican or a Democrat. They may approach their legal analysis a little differently, but fundamentally they're interested in applying the law to a given case. Occasionally (and more frequently as you move up through appeals) they are also interested in making sure that the way they interpret the law applies correctly to all related cases. When they're trial judges, if they get it wrong they can be overturned by appellate judges. When they're appellate judges, they also have to forge a consensus with colleagues, who may be either Democratic or Republican appointees. Either way, they're interested in getting it right.

Incidentally, Federal Judges are, for the most part, pretty much the bomb. The judge you met in traffic court or family court or judge Judy or whatever else you think when you think of a judge, federal judges are a lot more thoughtful and deliberative and on average a lot smarter.

as a cox customer gott say they do warn/threaten

[Anonymous Coward]

years ago Cox sent me, as account holder, notices regarding copyright infringement from my ip. I had 6 people with connected computers and wireless for guests. Someone was sharing a harry potter something and JK's lawyers sent the complaint. I had to go tell everyone to stop it. I called Cox and they said they didn't expect me to be sued and how I could block people from running the file sharing software when the infringing party didn't care if I got in trouble. And yes I used physical means to make sure it stopped.

If they are getting 24000 requests per day they can't deal with it. There should be a penalty for each BS request. Like 30 dollars per bogus request. If the rightsholder scumbags would take the time to find real examples, ISPs would again be more helpful in stopping the infringement.

Read the ruling only on /.

[Anonymous Coward]

https://www.unitedstatescourts.org/doc/?a=9c086322bd07aabc9042132f05d38659b49b0b06&dl=1

Court grants Cox's safe harbor defense.
Court confirmed Rightscorp doesn't have copyright to BMG's works.

The case is continuing along toward "swift justice"

The rest of this is just FUD being thrown up and a biased article.

Re:Read the ruling only on /.

[Anonymous Coward]

The court didn't "Grant Cox's Safe Harbor Defense"

The court partially granted a summary judgement motion by the plaintiff, and one of the parts that was granted was the part where the plaintiffs asked the court to rule that "Cox has not met the requirements for safe harbor under the DMCA, and thus Cox cannot assert or claim their safe harbor defense" - with the judge stating "There is no genuine issue of material fact as to whether defendants reasonably implemented a repeat-infringer policy" in the order

That is basically the opposite of the words "Court grants Cox's safe harbor defense".

I hope they appeal this and it gets slapped down, the fact that they had /some process/ makes me think that whether or not that process is reasonable ought to be up to a jury.

DMCA Safe Harbor certified

[dave562]

I offer some perspective on how DMCA Safe Harbor is used outside of the ISP realm.

The organization that I work for maintains DMCA Safe Harbor status. We are a legal technology service provider, which in English means that we collect data involved in litigation and process it so that it can be entered into evidence as part of a legal proceeding. We have Safe Harbor protection in case we happen to collect copyrighted media during the course of doing forensics collections on systems that we do not own. In order to maintain our status, we have to take reasonable measures to ensure that we are not facilitating copyright infringement. What that means in practice is the security team monitors the network to make sure that people are not running bitTorrent, hosting FTP sites or otherwise actively sharing copyrighted content.

We have never once been served with a take down notice or had to remove content from our systems.

Regarding the article and the DMCA, it seems to me that all Cox has to do is provide subscriber information. It is up to the content holders to go after the individual infringers and make them remove the content from their systems, one lawsuit at a time. Cox and the ISPs are simply providing transit services. They are not actually hosting the content and do not own the systems hosting the content. While I applaud Cox for trying to shield their customers from frivolous lawsuits, I think they are being stupid here. We all know that the large majority of bitTorrent traffic is piracy. If the pirates are too cheap / stupid to spend $10 a month on a VPN or proxy service to obfuscate their connections, they deserve to go down.

Re: DMCA Safe Harbor certified

[Anonymous Coward]

Having to provide private customer details to shady third parties without a courts involvment in not a good thing

Re:DMCA Safe Harbor certified

[Anonymous Coward]

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

Re:How DARE you apply the Rule of Law in this cour

[jklovanc]

There's no proof and no due process at this point.

I agree that there is no due process but laws must balance opposing interests. It would be great if a court would hear a copyright infringement case immediately but that will never happen. If an item is not taken out in a timely manner the value of that item can be so diluted by copying that it is worthless by the time it gets to court. You might think that the copyright holder could sue the poster but how much money do you think could be gained by suing some college student who has no money and posted the item for free.

A proper take down is a short term automatic order that is in place until a court can rule on the case. At that time, if the poster is found to not have infringed, they can counter sue for damages. What is your solution that would protect the value of the posted item until the matter can get to court? As far as I can tell this is the best one.

As for the rest of your post, I agree completely. There really needs to be a re-vamp if how take downs are submitted and the way fraudulent ones are dealt with.

Re: How DARE you apply the Rule of Law in this cou

[Anonymous Coward]

This ignores that the accused's buisness may just as negatively affected. Also it would only be for very time sensitive copyright would be in danger of being worthless or that was worthless to start with. The first point alone shows that the law in this case is unreasonably biased towards one side and this should only be applied after consideration by a judge, the second that even the justufication used is seriously flawed.

Re:How DARE you apply the Rule of Law in this cour

[SvnLyrBrto]

You're assuming that every takedown is, in fact, valid and that the material should be taken down. I maintain that plenty are filed that are not legit. There are ample documented cases of DMCA takedowns where this turns out not to be the case, fair use, not actually subject to copyright, not filed by the legit owner; these have all happened. In these cases you propose that it's a-okay to arbitrarily and summarily punish an innocent person. I don't hold to that. I'm solidly and irrevocably on the side of due process, the presumption of innocence until guilt is proved, and that it's better for 1000 offenders to go unpunished than for one innocent to be made to suffer.

Frankly, when we're talking about fundamental human rights vs. the hypothetical value of some record labels latest 4-minutes of autotune, I say to hell with the value of the copyrighted item. People come before quarterly profits and share price.

Where's the order?

[Anonymous Coward]

The article links to this:
http://ia801407.us.archive.org/30/items/gov.uscourts.vaed.310858/gov.uscourts.vaed.310858.310.0.pdf

That looks more like the request for for an order from the troll, not the order from the judge.

Not all corruption is money

[Anonymous Coward]

Safe harbour is a part of the DMCA, even judges can't simply ignore sections of the law because they feel like it. Cox should immediately petition the court system for an unbiased judge who will try the case based on its merits and not on their personal feelings.

Five years from now

[Anonymous Coward]

John Snyder, the last person with an Internet connection, received his third strike letter from the Riaa today, and had his internet connection removed.
In other news google reported ad revenue up 15%. A spokesperson said "Who knew that trading ads with other commercial web sites could be a successful business model?"

Sue the judge/us court

[Anonymous Coward]

So sue the judge for not doing his job

Re:How DARE you apply the Rule of Law in this cour

[jklovanc]

You're assuming that every takedown is, in fact, valid

No, I am assuming that at least some of them are valid and taking a couple of weeks to sort things out is not an undue burden on the person posting the item. Yes DMCA has been misused and the process needs to be fixed not thrown away.

Frankly, when we're talking about fundamental human rights vs. the hypothetical value of some record labels latest 4-minutes of autotune,

I never knew that copying other people's work was a fundamental right. What about the album put out by the band the poured all their money into making it just to get no return and go bankrupt. What about the movie that cost millions to film? Don't the people who invested deserve to be compensated?

People come before quarterly profits

There are people that created those items and own the rights to them. What about them?

It not so much you are against DMCA but copyright in general.

Ahhhh The Schrodinger's packet paradox

[SillyBrit]

"We don't know what's in the packets but we want to throttle the data based on what's in the packets."

Schrodinger and his cat would be proud!

Re:Say goodbye to youtube, ebay, public wifi, and

[Anonymous Coward]

*Some* users. And this only started just now. And they'll still block the videos everywhere except in the US because they only want to defend Fair use there.

The judge

[Anonymous Coward]

The judge is not from East Texas, but from Virginia. He was appointed by George W. Bush. When a judge rants like this (See U.S. government vs. Microsoft monopoly c. 2000) the ruling is automatically overturned because the judge is shown to be a nutter for having shown bias. In this case, the judge is showing bias. He isn't following the statute (letter) of the law nor the spirit (intent) of the law. The DMCA and the content people are and have been over reaching. The DMCA needs to be repealed. Its a horror that the TPP tries to make all countries attached to the TPP under the same draconian law that the DMCA is to the US. Its there because its "a billion dollars a year for free" to the US (ok, not the American people, but to the large multinational corporations that are collectively known as RIAA/MPAA). Ultimately its a billion dollars per year to about two dozen people.

That's not how this works...

[gavron]

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

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

The DMCA is a piece of crap, written by idiots trying to compromise with an MPAA/RIAA hellbent on destroying rights to protect their "intellectual" property. The safe-harbor provisions including nothing for early termination of a lawsuit (like SLAPP laws) or fee shifting to make the loser pay the winner. Instead it's all about the "IP rights".

The MPAA and the RIAA and the BSA and... (MAFIAA for short) bastardized property law and trademark law and copyright law in an attempt to get the best of all worlds in one. As a result ALL OF US lose.

Please don't make your argument about child porn. It's like bringing up Nazis and ending the discussion. if you can't make your point without "think of the children" or "the Nazis win" you didn't have one to make to begin with.

E

Re:That's not how this works...

[Letophoro]

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

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

Other than that, I am in agreement with you.

Re:That's not how this works...

[gavron]

I love Arstechnica and read it all the time but that article's headline is misleading.
BROADBAND CARRIERS [who also provide Internet access] are classified as
common carriers.

To rephrase if the carrier provides the broadband service then they are now considered
a common carrier.

That is NOT an ISP. That is a broadband service provider. (Layer 1/Layer 2 but not
Layer 3).

ISPs are layer 3 (IP) providers.

CABLE COMPANIES that provide Internet access are now common carriers.
DSL PROVIDERS that provide Internet access are now common carriers.
MOBILE companies that provide Internet access are now common carriers.

ISPs that do not provide the physical-layer access are NOT common carriers.

Examples:
Cox, Comcast, Verizon Wireless, etc.: carriers
Earthlink, AOL, Net10, etc.: not carriers

Ehud

Re:That's not how this works...

[steveg]

That's a pretty narrow definition of ISP.

I suspect that most people would consider ISP=Broadband provider. The others that you list? *Maybe* ISPs in a distant sort of way, but hardly anyone is going to point to them and say "that's my ISP." Anyone who talks about "my ISP" is going to be pointing to whichever company provides their physical access.

For the purposes of this discussion, Cox is the litigant in the story that is being considered an ISP.

If you want to use your own definition of ISP, that's fine, but the rest of us are probably going to ignore you.

Huge point missed

[Bengie]

The judge sided with the media companies ahead of trial, saying Cox should have terminated the repeat offenders accused by Rightscorp

The judge seems to think that someone should be able to be kicked off the Internet by accusations alone. Assumed guilty much?

Re:How DARE you apply the Rule of Law in this cour

[Anonymous Coward]

A proper take down is a short term automatic order that is in place until a court can rule on the case. At that time, if the poster is found to not have infringed, they can counter sue for damages. What is your solution that would protect the value of the posted item until the matter can get to court? As far as I can tell this is the best one.

You are correct that injunctions until a verdict is reached are common practice in the legal system. That is, when a trial is pending, it's common for a judge to prohibit the defendant from doing the thing that they're being sued for, even before an official guilty/not guilty verdict is reached.

For a standard injunction, the injunction is not the sole purview of the prosecution/plaintiff. Instead, the prosecution/plaintiff presents the argument for an injunction to a neutral third party (the judge) who then reviews it to determine if a) the plaintiff's case has a likely chance of success b) how much additional harm will the plaintiff suffer if the case is successful and the injunction is not issued and b) how much harm the defendant will suffer if the injunction is issued, but the case is judged in the defendant's favor. The judge weighs the relative harms to both parties and the chance of success, and issues an injunction or not depending on the balance of harms.

The big difference here is that DMCA circumvents that very key part of the injunction process: the independent review by a neutral third party (i.e., the judge). Instead, the control of the injunction is *solely* in the hands of the accuser. There's no independent review of the claims, no assessment of the likelihood of success, no judgement of the balance of harm. Nope, if the accuser is stubborn, even an obviously innocent defendant will suffer harm from the process. That's why there's so much abuse of the process: there's no independent check on the process.

But, you say, how will you deal with the issue in a timely manner? The key here is that the independent review need not take all that long - again, this is a balance of evidence thing, not an absolute judgement. It shouldn't take too long for people on both sides to prepare a (short) legal brief outlining their position (why is/isn't this copyright infringement?) - heck, that's basically already in the process: the notice of infringement and the counter claim of non-infringement *should* be sufficient for the purpose. (What, your claim of infringement doesn't lay out sufficient evidence for your copyright claim? That's probably another reason for so much abuse.) Then a judge (or even a panel of retired judges) can review the claims and decide on relative merit whether to issue the injunction. If the injunction stands, the material is taken down until the case is decided, by its normal, slow, ponderous legal process. If not, it stays up until the case is decided.

If you give the panel some teeth to deal with obviously frivolous claims and counter claims, I'm guessing you'll cut down a bunch of the workload, because 1) the plaintiffs will make sure they have their ducks in a row before sending out the claims and 2) fewer counter claims will be filed because a) the actual claims will be less nebulous and sweeping and b) the defendants will make sure they have their ducks in a row before sending out the counter-claim. And, of course, if no counter claim is filed, then the injunction can be automatically granted.

Re:How DARE you apply the Rule of Law in this cour

[SvnLyrBrto]

No, I'm not against copyright in general. Though I do believe that the current legal climate favors the copyright industry far too heavily over individuals and even other industries (I wonder just how time, money, and engineering effort that could have been put to good use tech companies have been forced to waste in order to appease the copyright crowd, for example?).

But what I am completely against is the notion that it's okay to punish the innocent, in any number or capacity whatsoever, just to make it a little bit easier to punish the guilty. ANY punishment, even your "couple of weeks" of takedown, is an unacceptable, abusive, and undue burden if the accused has not, in fact, committed the infringement. Due process and the presumption of innocence are the fundamental rights I'm talking about; not a free copy or the latest Rebecca Black song.

Obviously, we're arguing in circles here. I don't think it's ok to jump straight to punishing the accused without proof or due process under any circumstance. You think that there should be an exception to that for the DMCA. We're just going to have to disagree on that. But I hope I've clarified my position. I'm not opposed to the notion of copyright in general; or even the DMCA in principle. I just believe that both need to be reformed. They have been misused and abused. That's happened far too much. And it needs to be out to a stop.

Re:How DARE you apply the Rule of Law in this cour

[jklovanc]

But what I am completely against is the notion that it's okay to punish the innocent, in any number or capacity whatsoever, just to make it a little bit easier to punish the guilty.

Do you even look at it from the other side? If it takes a couple of years to come to trial the value of the posted item will be zero at that point as it will have been widely distributed and widely available. Without things like DMCA take down creators will have little viable property rights on digital media.

I just believe that both need to be reformed

You seem to have no better solution to balance the rights of creators and posters. There are two conflicting rights; the property rights of the creator and the speech rights of the poster. Balancing those two can be difficult. It is very easy to point at something and say it is wrong but it is much harder to come up with a better idea. You have done the easy work. How about trying the hard work. What reform would you like to see? (Hint throwing it out and not replacing it is not a reform)

RIAA has discovered a viable business model!

[Locke2005]

1) Hire people to "pirate" content from themselves 2) Sue carriers for facilitating the "piracy" (they've got deep pockets!) 3) Profit!