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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.
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.
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.")
My sci-fi novel, Ghost Thief, is now available from Amazon.com.
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.
Lost at C:>. Found at C.
Apparently Judge O'Grady was a former Disney lawyer. Wouldn't/Shouldn't he be required to recuse himself from a case like this?
[DISCLAIMER: This post is a work of satire and should not be misconstrued as a holy text upon which to base a religion.]
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.
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?
"Our two-party system is like a bowl of shit looking at itself in a mirror." - Lewis Black
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...
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.
Live today, because you never know what tomorrow brings
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.
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.
Lost at C:>. Found at C.