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.

[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.

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?

[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.

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?

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: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.