Dim Light Shed on Our Understanding of DMCA Repeat-Infringer Requirement
This post is about BMG Rights Management v. Cox Communications, a case about which I’ve posted at least four times: here, here, here and indirectly here. Note my evolving take on the “Sony-Betamax” rule (which will now require further refinement). The Fourth Circuit has now issued its appellate ruling and opinion, which held mostly for the plaintiff copyright owner but nevertheless sent the case back for another trial. This post is an overview of that opinion and doesn’t really assume you’ve read my previous posts or know that much about the case. I’ll try to write another post about what this opinion does to the Sony-Betamax rule.
From now on, any time an ISP fails to implement its own repeat-infringer policy, it’s going to be called a “Cox-up.” A somewhat broader definition (based on this) might be: “a situation that is complicated, unpleasant, or difficult to deal with because someone in authority decided not to consult with his company’s own in-house lawyers.”
Super Quick Introduction to DMCA Safe Harbors and Attacks Against Them
Copyright owners more or less hate the DMCA’s safe harbors. These are defenses against copyright claims for “service providers,” if…
New DMCA Registration Regime Starts Today. Don’t Delay!
Today is the first day to take advantage of the U.S. Copyright Office’s new electronic registration system for DMCA agents Gone are the days of printing out a form, physically signing it, and physically mailing it in, usually accompanied by a fairly large check (over $100). Now, you just create an account (which means picking a user name and password, alas), fill out a fairly simple form, pay a very small fee—currently, $6.00—by credit card, and you’re done. The whole thing can be accessed here.
I just did it for my firm, and it wasn’t that hard. There are only a couple of tricky things. First, you (i.e., your organization or who you’re representing) is the “service provider,” not, for example, your internet service provider. In this context, “service provider” means anyone providing any type of service over the internet, not just traditional last-mile ISPs. Second, you’ll want to include, as “additional names,” any name by which you or your organization might be known. At present, there’s no additional fee for additional names, so there’s no reason to skimp.
Even if You’ve Registered, You Need to Re-register.
Now for the important bit. Today might be the…
January 8, 2016 | Category: Blog | Tags: contributory infringement, copyright, DMCA, file-sharing, making available theory, repeat-infringer policy, Rightscorp, safe-harbor, secondary liability, statutory damages, vicarious liability | Comments: 0
Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.
Broadband Isn’t a “Draw” for Infringement, but What About Substantial Non-infringing Uses?
Back in late 2014, two of Rightscorp’s clients, BMG Music and Round Hill Music, sued the cable operator and internet-service provider, Cox Communications, for copyright infringement on grounds that Cox was liable for its users’ sharing of the plaintiffs’ copyrighted musical compositions using the BitTorrent protocol.
What’s Right for Rightscorp
Although it wasn’t a party, the case was crucial to Rightscorp. Rightscorp is in the business of investigating the sharing of copyrighted work over BitTorrent protocol and obtaining modest settlement from the BitTorrent users. For example, if Rightscorp thought you had shared “Bad Blood” using BitTorrent, it would send you a settlement demand of, say, $500—or some figure that’s low enough for you to afford but not high enough to be worth fighting over. It’s a low-return–high-volume business. And for it to work, Rightscorp needed to get as many settlement demands to users as possible.
But to do that, Rightscorp needed the cooperation of ISPs. That’s because Rightscorp doesn’t actually know who the user is. It just knows the user’s IP address at the time of the alleged file-sharing. Only the user’s ISP knows which of its users was using a…
RightsCorp Has Some High Hurdles to Clear Before it Even Gets to Repeat Infringers
Typical. I read about a truly significant lawsuit, start blogging about what is obviously the main issue—an issue that has significance beyond the lawsuit—only to discover in analyzing the pleadings that the lawsuit isn’t all it’s cracked up to be.
RightsCorp: A Business Model in Trouble…
You’ve heard of the lawsuit against the major ISP, Cox Communications, for violating the repeat-infringer requirement of the DMCA? (Here’s the complaint.) If not, let me ’splain. No, there is too much. Let me sum up:
There is a company called RightsCorp that is in the business of enforcing copyrights for others. They make money by monitoring BitTorrent networks, finding files whose copyrights belong to its clients, identifying the IP address (and timestamp) and sending short little notices to the ISP that are supposed to be forwarded to the customer. The short little notice says the usual things that lawyers say in cease-and-desist letters that aren’t lies but don’t tell the whole copyright story, to wit: (a) you are a copyright infringer; (b) you “could be” liable for up to $150,000 per infringement; (c) your ISP service “could be suspended”; and (d) the actual…
Through the Grooveshark’s Jaws
In my last two posts, we took an overview of copyright law as it applies to online music services, and at six of the major new such services. We’ll now turn our focus to the specific services, starting with the inspiration for this series of posts, Grooveshark (which is currently a defendant in a lawsuit here in Nashville). Grooveshark’s business model is so interesting, it’ll take three posts to get through it all. Recall that Grooveshark has two interactive ends: on one end, users are invited to upload music files; on the other end, those music files are streamed to users on demand. This means there are two separate opportunities for infringement. On top of that, Grooveshark relies on a complex defense, the DMCA safe-harbor.
In this post, we’ll analyze the “uploading content” end of Grooveshark’s service. In the next post, we’ll look at the “streaming” end. And in the post after that, we’ll examine its DMCA safe-harbor defense.
Right off the bat, we know that Grooveshark isn’t subject to direct liability for the “uploading content” end of its service. That’s because Grooveshark isn’t doing the uploading; its users are. But if you needed an example for…