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Appeals Court Makes A Mess Of Copyright Law Concerning ISPs And Safe Harbors

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Appeals Court Makes A Mess Of Copyright Law Concerning ISPs And Safe Harbors

Postby MrFredPFL » Sun Feb 04, 2018 9:43 pm

Story :

We've been following the BMG v. Cox lawsuit from the very beginning, through all its very odd twists and turns, including having a judge in the district court, Liam O'Grady, who made it quite clear that he didn't much care about the internet, and didn't see why it was a problem if people lost their internet access completely based on merely a few allegations of copyright infringement. The 4th Circuit appeals court has now overturned the lower court ruling and sent the case back to the district court for a do-over. While the initial decision was awful (as we discuss below), this new ruling makes a huge mess out of copyright law and will have serious, dangerous, and long-lasting consequences for the internet as a whole.

If you don't recall, the case involved BMG suing Cox Communications, though much of the case really hinged on the actions of another company, Rightscorp, who has been trying (and mostly failing) to build a business model around a form of mild copyright trolling. Rather than the aggressive "sue 'em and settle," strategy employed by others, Rightscorp would send DMCA takedowns to ISPs, with a settlement offer, and hope that the ISPs would pass those notices on to subscribers accused of infringing.

Cox Communications -- a decently large broadband provider -- made it quite clear to Rightscorp that it did not intend to be a part of its business model, and refused to pass on the settlement letters. Rightscorp started flooding Cox with notices... to the point that Cox decided to effectively just trash all inbound messages from Rightscorp as spam. After all this happened, Rightscorp signed BMG as a client, and then sued Cox, claiming the ISP had violated the DMCA by not kicking users off. What came out during the trial was that Cox basically had a "thirteen strike" policy (some of the earlier strikes involved stopping internet access until you read something and clicked something -- or requiring the user to call in to Cox).

What is rarely noted, of course, is that Cox was basically one of the only ISPs to actually have any termination policy for people who used their connections for copyright infringement. Most ISPs (and most copyright lawyers not working for legacy industry interests) believed that the DMCA's requirement for a "repeat infringer policy" was not directed at access providers, but at content hosts, where the issues are much clearer. However, BMG claimed here that Cox violated the DMCA's requirement for a repeat infringer policy -- and the court agreed. Cox was, partly, undone by some pretty bad behavior behind the scenes, that seemed to tar it as a "bad actor" and obscure the underlying copyright issues. Even more ridiculous was that Judge O'Grady later argued that Cox should pay the other side's legal fees, because even bringing up the idea that it was protected by safe harbors was "objectively unreasonable." That, itself, was crazy, since tons of copyright experts actually think Cox was correct.

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