Some of you may recall the resounding victory scored by BMG Rights against Cox Communications challenging the gaping holes in Cox’s alleged repeat infringer policy as documented by Rightscorp. (Read the hilarious transcript from BMG v. Cox case denying EFF’s amicus brief as quoted in the Supreme Court amicus brief filed by David Lowery, Blake Morgan, East Bay Ray and Guy Forsyth in the current cy pres case brought by Ted Frank.)
In a follow on from the BMG Rights case, a group of record companies are essentially drafting behind BMG on the sound recording side in their own lawsuit against Cox. This, of course, was to be expected since the evidence unearthed by BMG reflected such a cavalier disregard for the company’s repeat infringer policy and what infringes the song also infringes the sound recording.
Why is that repeat infringer policy so important? In an oversimplified (but accurate) interpretation, no repeat infringer policy, no safe harbor. That is enough to send the shredders humming all over the world and explains why the EFF was so interested in trying to influence the outcome of the case. It also explains why Rightsflow’s investigative services are so important to rights holders as they were instrumental in proving the basic case (although Cox did a very good job of measuring the rope and testing their own noose all by themselves).
It also must be said that Cox never participated in the Copyright Alert System (to my knowledge) which could have gone a long way to helping them getting their repeat infringer policy in line with something that existed in the known universe. They had a chance. One final point is that it is an odd thing that BMG is to date the only publisher to enforce their rights against an ISP that I know of, although I’m happy to be educated otherwise.
If you think lions are lying down with lambs, think again.
The plaintiffs allege in their suit that Cox is not effectively policing their subscribers who are violating copyrights, even when those alleged violators are brought to their attention by rights holders.
Per the lawsuit:
“Cox deliberately refused to take reasonable measures to curb its customers from using its Internet services to infringe on others’ copyrights—even once Cox became aware of particular customers engaging in specific, repeated acts of infringement. Plaintiffs’ representatives (as well as others) sent hundreds of thousands of statutory infringement notices to Cox, under penalty of perjury, advising Cox of its subscribers’ blatant and systematic use of Cox’s Internet service to illegally download, copy, and distribute Plaintiffs’ copyrighted music through BitTorrent and other online file-sharing services.”
The lawsuit takes issue with a provision of the DMCA, a law passed in 1998 that creates a safe harbor for online service providers such as Cox against copyright infringement liability, provided that they have an effective plan in place to deal with infringers.
The lawsuit cites a previous suit brought against Cox by a group of labels led by BMG. In that case, BMG Rights Mgmt. LLC v. Cox Communications, Inc. and CoxCom, LLC, BMG made substantially similar accusations against Cox, claiming that the company did little to deter rampant copyright infringement taking place via its service.
In 2015, a jury agreed with BMG Et Al. and awarded them a $25 million dollar judgment in that case. The judgment was later overturned on appeal, but the appeals court largely sided with the label’s challenge to Cox’s implementation of the DCMA rules.
[Editor Charlie sez: Scott Cleland takes an excellent deep dive into the “leechonomics” of the safe harbors afforded to the special people who are members of the Internet Association and the Digital Media Association. This corporate welfare was most recently replicated in the punitive Music Modernization Act retroactive safe harbor bolstering profits from copyright infringement for the special people which passed the House Judiciary Committee on the same day that the Congress cut back the CDA 230 safe harbor for the same special companies and cut their profits from sex trafficking.]
This post introduces a new white paper here with a first-of-its-kind, cost-estimation model of the cumulative hidden public costs of U.S. Internet industrial policy* entitled: “Internet Platform Corporate Welfare and Leechonomics.” *U.S. Internet-first, industrial policy in the 1996 Telecom Act, effectively exempted only Internet companies from: all U.S. communications law, regulation, and public responsibilities; normal non-communications Federal/State regulation; and normal civil liability for what happens via their platforms and business models.
Nutshell Summary: Sweeping Government exemptions and immunities from risks and costs overwhelmingly favor zero-sum, parasitic policy arbitrage and corporate welfare, which perversely fosters unproductive “leechonomics.” U.S. Internet policy most incents platform business that maximizes arbitrage spreads, i.e. taking maximal societal risk that un-immunized competitors can’t take, where the benefits can be capitalized by platforms, and the costs socialized to the public (>$1.5T), because the government has only exempted and immunized platforms from normal accountability and responsibility for consumer welfare.
This is a guest post by Volker Rieck. Mr. Rieck has spent considerable time investigating Private Layer a web hosting company that seems to be favored by many copyright infringing sites. Unfortunately Rieck’s investigation has been stonewalled by the quasi governmental organization RIPE. According to Wikipedia: “RIPE or The Réseaux IP Européens Network Coordination Centre […]
The biggest story of 2017? To my mind, there is no contest — the broad emergence of an awareness that the irresponsibility masquerading as Internet freedom represented a threat to global societies and to cherished aspects of our humanity, and that a course correction was badly needed.
While recognition of the fact that rewarding lack of accountability would likely incentivize anti-social and illegal conduct took longer than it should have, such an awareness came to fruition throughout 2017. Whether motivated by concerns about sex trafficking or the prevalence of other internet-enabled crimes, fake news, foreign government interference in elections, monopoly or monopsony power, or the perceived political or cultural biases of platforms, the question at the end of 2017 wasn’t whether the current legal framework for platform responsibility should be amended, but how.
It became clear that the twin pillars upholding the current lack of accountability in the internet ecosystem — Section 230 of the Communications Decency Act and Section 512 of the DMCA, each of which was adopted at the dawn of the commercial internet, would need to be reexamined and a new framework established.
[Editor Charlie sez: From the “Stop Me Before I Infringe Again” Dept….]
Turns out that Google Drive is a whole lot less buttoned up than you may have thought.
The file-sharing service typically associated with spreadsheets and office life has a dirty little secret, and it’s one that our Mountain View overlords may not be so stoked on. Namely, the service is a haven for illegal file-sharing.
The offending goods reportedly include both your standard video files as well as a unique twist on the file sharing MO: Instead of uploading entire movies or shows to Drive itself, people are dropping in scores of unlisted YouTube links.
Essentially, the idea is that unlisted links are less likely to be spotted by automated systems crawling for this sort of thing and are therefore less likely to be pulled. Putting a collection of those links in one Drive and sharing it over social media is like passing around a secret phonebook containing the listings for all your favorite pirated content.
[In response to Lyor Cohen’s blog post, ‘Five observations from my time at YouTube’]
I applaud and second Cary Sherman’s “Five Stubborn Truths…” response as well as Irving Azoff and David Israelite’s later comments.
Here is an independent label perspective.
Many of us hope that you will be able to change the culture at YouTube to become more artist friendly and transparent. We understand that it takes time to shift corporate culture especially one as established as Google’s. Unfortunately, there are some entrenched alternative facts that are repeatedly regurgitated by YouTube and need to be corrected.