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

Posted by timothy on from the you-knew-what-you-were-doing dept.

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.

6 of 223 comments (clear)

  1. I think this is fair. by Anonymous Coward · · Score: 5, Interesting

    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.

    1. Re:I think this is fair. by Anonymous Coward · · Score: 5, Interesting

      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.

    2. Re:I think this is fair. by prunus.avium · · Score: 5, Insightful

      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."

  2. What do you expect from an ex-Disney lawyer? by Morgon · · Score: 5, Interesting

    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.]
  3. Motion for Summary Judgment by Etherwalk · · Score: 5, Informative

    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...

  4. Re:Stop whining and RTFA by Anonymous Coward · · Score: 5, Interesting

    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.