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Cox Is Liable For Pirating Subscribers, Ordered To Pay $25 Million (torrentfreak.com)
An anonymous reader writes: A federal jury reached a verdict that Cox Communications must pay $25 million to BMG Rights Management for failing to disconnect subscribers accused of online piracy. TorrentFreak reports: "During the trial hearings BMG revealed that the tracking company Rightscorp downloaded more than 150,000 copies of their copyrighted works directly from Cox subscribers. It also became apparent that Cox had received numerous copyright infringement warnings from Rightscorp which it willingly decided not to act on.The case was restricted to 1,397 copyrighted works and a six-person jury awarded $25 million in damages. The award is lower than the statutory maximum, which would have been over $200 million."
Does Cox have the Balls to just block all traffic to BMG label sites and any other commercial entities with a presence on the net that are even loosely related to BMG? Because that'd be my first move.
So these subscribers were suspect, and Cox didn't kill their connections after a private organisation told them to, so they're on the hook for the suspected cases?
The whole situation seems suspect in of itself.
If the Electric Power company is told by unofficial third parties (BMG et al) that their electricity is being used to power Cox Equipment on both the user and carrier side that is being used to download copyrighted materials, is the Electric Company also just as liable to tens of millions in damages for clearly supplying power to both the alleged perp and to the Cox internet connection utility?? It is the Same insane Logic! This is essentially a case of the gun maker being held responsible versus the person holding it and using the gun... This case will be overturned on appeal.
The massive problem here is the judicial ruling that a third, non-government party can tell an ISP to disconnect a user simply based on suspicion of copyright violations and the ISP must comply. I have never seen anything like this, where someone who suspects wrongdoing is allowed to set a punishment outside of the judicial system.
So every article I find on this is garbage. I'm reading the ruling on summary judgement from Dec 1st.
Here's my conclusion from reading the ruling:
1) Cox had an official policy to not actually terminate repeat offenders because they didn't want to lose customers.
- This means they weren't in compliance with the DMCA. I gotta agree with the court on that one.
- Side note: If someone is pirating that much, and Cox was still profiting, then why do they need to institute bandwidth caps?
2) The Supreme Court Grokster decision was the scariest blow here.
- The court says Grokster didn't limit liability to companies actually inducing or profiting from copyright violations.
- That completely changes my understanding of Grokster!
- The court says Cox is contributarily liable because they materially contributed to the copyright infringement.
That "materially contributed" thing is frightening. This is what we've all been afraid of because it seems to open-up the possibility that the maker of the modem is liable, and the company who installed the wires is liable, or the maker of the downloading software, etc. Lots of people materially contributed. We need to really limit this definition of "material contribution."
Here's my notes:
Cox limits DMCA complaint emails to 200/day from any given copyright holder.
Cox doesn't do anything with the notices until they receive 8 of them for a single user within 6 months. Termination happens at like 15+ within 6 months.
"Termination" just means the user has to call Cox and apologize, and the counter is reset.
Rightscorp auto-generates DMCA emails.
Rightscorp was sending emails with settlement notices in them.
Cox says those notices aren't within the spirit of the DMCA, so they auto-delete them.
Rightscorp responded by sending 24,000/day
Cox just outright blocked Rightscorp's emails.
The judge cited the Grokster case as the reason that ISPs can be liable for user's copyright actions. They basically rehashed the whole Grokster case, the whole "making available" theory, and all that jazz.
The DMCA says ISPs must implement a "reasonable" repeat infringer policy. The law left this *completely* open. The only way anyone figures out what it means is when they get sued for not doing a "reasonable" job. The courts then clarify the law a bit more each time. Ugh!
The courts say that ISPs are not required to actively monitor for infringement.
Rightscorp made various complaints about Cox's policy.
The court decided that Cox's account termination was too lenient.
The court didn't even really care that Cox blocked Rightscorp's emails.
Cox didn't have a repeat infringer policy before 2012. And Cox derided the intentionally circumvented the process anyway.
Cox higher-ups sent an email that basically told the abuse department not to terminate anyway, because they can't afford to lose customers.
Cox complained that BMG didn't hold copyright to lots of this stuff. Court says: Yes they did, and it doesn't matter anyway.
Cox says: this whole DMCA complaint process is a farce. Judge says: Yeah, but you knew some were real and still ignored those.
The court disregards Cox's arguments that Rightscorp are extortionists as irrelevant since they weren't extorting Cox. Sounds like the end-users might have had an argument there, but Cox doesn't.
Thomas Hesse, Sony BMG's Global Digital Business President, told reporter Neda Ulaby,
"Most people, I think, don't even know what a rootkit is, so why should they care about it?"
https://en.wikipedia.org/wiki/...
There is an important point that requires interpretation. The question is, "are complaints which Rightscorp buried in a ton pf BS emails proper complaints under the DMCA?"
The most relevant law is the DMCA, which sets out procedures that should be followed in these instances. Unfortunately, most private individuals and many small businesses don't know how the procedure works. That's unfortunate because when everyone involved knows what they are supposed to do under DMCA, it generally works better than what happened before the DMCA. Here's the procedure :
The copyright owner files a complaint which includes certain specific facts.
The ISP forwards the complaint to the accused.
If the accused doesn't respond immediately the ISP takes temporary action based on the complaint (the accused hasn't denied the complaint) .
The accused may file a counter-claim with the ISP and have the action reversed.
The complainant (copyright holder) may then file suit in federal court.
The process is far from perfect, but one good thing is that the ISP isn't put into the role of judge. The ISP never decides who is right or wrong, if you say you're not infringing, they basically take you at your word. (And if the accused doesn't deny it, they have to aft as if the complaint is true.) The ISP only has to follow the process laid out in the law, and they can't be held liable. If they choose NOT to follow the DMCA process, they can be liable to either the copyright owner or the accused.
So that's the law. Rightscorp did file complaints. Therefore, by a strict reading of the law, the ISP must take appropriate action unless the other party denies the claim.
HOWEVER, Rightscorp sent a shit-ton of very questionable emails to the ISP, many of which did not meet the requirements to be a proper complaint under DMCA. The ISP's argument is as follows:
Rightscorp flooded us with bullshit emails.
Because Rightscorp did so, the ISP couldn't reasonably read them all and determine which ones were actual DMCA complaints containing the required details.
Because Rightscorp made it so difficult to dig through and find the properly formed complaints, the court should not require the ISP to respond to them.
Instead, the court should act as if Rightscorp never sent those complaints.
The ISP's reasoning is to some extent logical and fair. Rightscorp made it nearly impossible to respond to them all, then complained to the court about the results of their own actions.
On the other hand, Rightscorp did send some proper complaints, and Cox ignored those complaints. That makes Cox liable* if you just read the law while ignoring the BS that Rightscorp pulled.
So the legitimate question that does require judgement, interpretation, is this:
Is a complaint which the complainant buried in a ton of BS a proper complaint which must be responded to under DMCA?
That's not clearly specified in the law. Therefore, it is up to the court to decide.
* Apart from the issue above, Cox also asserts that Rightscorp is misreading the law. The law seems to have somewhat different requirements for ISPs which only -carry- the data temporarily through their network vs those which provide web hosting or similar services involving storage of the material. The language of the law isn't entirely crystal clear on which requirements apply to which type of service. Cox asserts that Rightscorp is trying to apply the requirements of ISPs who -host- web sites to them, while they only -carry- the traffic. It's not crystal clear - Cox may very well be right. Because the wording and structure of the law isn't crystal clear, a court must interpret the ambiguous structure to determine what it's supposed to mean.