Every month copyright holders and anti-piracy groups send hundreds of thousands of takedown notices to Internet providers.
These notifications have to be forwarded to individual account holders under the DMCA law, to alert them that their connection is being used to share copyrighted works without permission.
Cox Communications is one of the ISPs that forwards these notices. The ISP also implemented a strict set of rules of its own accord to ensure that its customers understand the severity of the allegations.
According to some copyright holders, however, Cox’s efforts are falling short. Last December BMG Rights Management and Round Hill Music sued the ISP because it fails to terminate the accounts of repeat infringers.
The companies, which control the publishing rights to songs by Katy Perry, The Beatles and David Bowie among others, claim that Cox has given up its DMCA safe harbor protections due to this inaction.
The case is a critical test for the repeat infringer clause of the DMCA and the safe harbor protections ISPs enjoy. In recent weeks both parties have started the discovery process to gather as many details as they can for the upcoming trial.
Cox, for example, is looking into the ownership of the 1,000 works for which they received seven million DMCA takedown notices. In addition, the ISP also wants an expert opinion on the source code of the Rightscorp’s crawler that was used to spot the alleged infringements.
For their part, BMG Rights Management and Round Hill Music have asked for details on Cox’s policy towards repeat copyright infringers and extensive details on the company’s financials. The ISP believes the latter request is too broad and as a result is refusing to produce the requested documents.
In a response the music companies have filed a motion asking the federal court to force the ISP to comply. Among other things, they argue that the financial details are needed to calculate damages and show that Cox has a financial motive to keep persistent pirates on board.
“The financial information that Cox refused to produce is directly relevant to Cox’s strong motivation for ignoring rampant infringement on its network because ignoring this infringement results in a financial benefit to Cox,” they argue.
“Moreover, Cox’s financial motivation for refusing to take meaningful actions against its repeat infringing customers is important to both the knowledge element of contributory infringement and the financial benefit element of vicarious liability,” the music groups add.
In its response Cox states that the rightsholders’ demands are too broad since the documents requested include those related to the ISP’s market share, capital expenditures, profits per customer for each service, and so forth. According to Cox most of the information is irrelevant to this case.
“Plaintiffs’ document requests seek virtually every financial record that Cox maintains about its internet Customers and its provision of internet services,” Cox notes.
The ISP says it’s willing to share some financial detail but with a far more limited scope than demanded by the rightsholders.
“To be clear, Cox has been and remains willing to produce high-level, aggregate financial data of the kind that courts permit in cases involving statutory copyright damages, for example corporate tax returns. But Plaintiffs have never offered to entertain even minor limitations to the scope of their discovery requests, making any compromise effectively impossible,” the ISP notes.
The court has yet to decide how many of its financial secrets Cox must reveal but judging from the demands being made from both sides, it’s clear that we can expect more fireworks during the months to come.
Tag: DMCA
Perfect 10 Ordered to Pay Giganews $5.6m After Failed Copyright Battle
Adult publisher Perfect 10 has developed a reputation for making a business out of suing Internet services for alleged copyright infringement.
In recent years the company has targeted Google, Amazon, MasterCard and Visa, RapidShare and Depositfiles, plus hosting providers LeaseWeb and OVH.
Perfect 10 has secured private settlements from several of these companies but has never succeeded in a contested court case. The company hoped that a new suit against Usenet provider Giganews would provide a much-needed victory, but the whole thing has turned into a disaster.
In November 2014 a ruling from the U.S. District Court for the Central District of California found that Giganews was not liable for the infringing activities of its users and last month Perfect 10 was roundly criticized for multiple failings by the same Court.
“Perfect 10 failed to produce any evidence supporting its claim of direct
infringement,” the Judge wrote, adding that it also “failed to produce any evidence supporting its claim of indirect infringement.”While that was a particularly poor way to lose a case, a punishing costs ruling handed down yesterday rubbed salt into Perfect 10’s wounds. The United States District Court for the Central District of California ordered the publisher to pay Giganews $5.6m in attorney’s fees and costs.
Outlining his perception of Perfect 10’s business model, Judge Andre Birotte Jr said that the company hadn’t behaved like a wronged copyright holder.
“Perfect 10’s undisputed conduct in this action has been inconsistent with a party interested in protecting its copyrights. All of the evidence before the Court demonstrates that Perfect 10 is in the business of litigation, not protecting its copyrights or ‘stimulat[ing] artistic creativity for the general public good’,” the Judge wrote.
But that was just the beginning.
“Perfect 10 has never been a self-sustaining business, and to date, has lost more than $50 million dollars, if not more. However, this loss appears to be largely intended by Perfect 10’s President and CEO Norman Zada, who described Perfect 10 [..] as a ‘tax writeoff’,” Judge Birotte added.
“In fact, Zada [said] that he ‘needed [Perfect 10] to offset money he made in the market’ and ‘needed the loss’ to represent how small businesses couldn’t make money because of piracy on the Internet.”
Just how far Perfect 10 has immersed itself in copyright litigation is made in clear in the ruling, with the Judge noting that more than half of the company’s revenues had been derived from settlements and default judgments, with Zada spending “eight hours a day, 365 days a year” on litigation.
“Indeed, Zada admitted that, in the past, Perfect 10 has expressly purchased copyrights from other copyright holders ‘because [Perfect10] thought they would be helpful in [its] litigation efforts’,” the Judge added.
Also of note is that in many of its cases Perfect 10 criticized online service providers for not responding adequately to its complaints under the DMCA, but in Tuesday’s ruling the Judge makes it very clear that Perfect 10 is the party at fault.
“Perfect 10 has a long, documented history of sending service providers inadequate takedown notices under the DMCA that fail to identify specific infringing material, and then bringing suit for the service providers’ failure to respond to deficient DMCA takedown notices,” the Judge wrote.
While the victory will be sweet for Giganews, the company will be particularly pleased with Judge Birotte’s recognition of Perfect 10’s attack on its business model.
“Perfect 10’s unmeritorious claims against the leading Usenet service provider in the country posed a serious threat to the public’s access to free and competitive expression,” the Judge wrote.
In a statement sent to TorrentFreak, Giganews co-Founder Ron Yokubaitis welcomed the ruling.
“This judgment is a complete victory for Giganews, a validation of Usenet as one of the foundational protocols of the Internet, and a recognition of the users who rely on it every day,” he said.
“Online service providers and Internet companies are under assault from copyright trolls like Perfect 10, but we have followed the DMCA since its inception, and are proud to have stood up to the meritless claims of a serial litigator who was hoping for an easy pay day.”
The big question now is where Perfect 10 goes from here. With its business strategy now a record of the Court it seems likely that potential future targets will be less intimidated and settlements less forthcoming.
RIAA Bites Grooveshark With Record Google Takedowns
It would be fair to say that the relationship between the world’s major recording labels and streaming music service Grooveshark is a rocky one at best.
Founded in 2006 as a site where users could upload their own music and listen to streams for free, friction with record companies built alongside Grooveshark’s growth. EMI first filed a copyright infringement suit against the company in 2009 but it was withdrawn later that year after the pair reached a licensing agreement.
Since then there have been major and ongoing disputes with the labels of the RIAA who accuse Grooveshark of massive copyright infringement. Those behind the service insist that Grooveshark is simply a YouTube-like site which is entitled to enjoy the safe harbor protections of the DMCA.
Part of Grooveshark’s DMCA responsibilities is to remove infringing content once a copyright holder asks for it to be taken down. Grooveshark doesn’t publish any kind of transparency report but there is nothing to suggest that in 2015 it doesn’t take that responsibility extremely seriously.
However, Google’s transparency report reveals that the world’s major recording labels are currently hitting Grooveshark particularly hard. In fact, between the RIAA, IFPI and several affiliated anti-piracy groups, Google handled 346,619 complaints during the past month alone, with up to 10,000 URLs reported in a single notice.
Internet Brands Targets Techdirt Post For Removal Because Of ‘Infringing’ Comment Left By A Reader
We really do need a way to properly punish abuses of DMCA takedown requests.
The DMCA takedown notice allows rights holders to perform targeted removals of infringing… I can’t even finish that sentence with a straight face. IN THEORY, it can. In reality, it often resembles targeting mosquitoes with a shotgun. Collateral damage is assumed.
Case in point: Internet Brands recently issued two takedown requests to protect some of its cruelty-free, farmed content originating at LawFirms.com. It’s this phrase — taken verbatim from LawFirms’ “Penalties for Tax Evasion” — that has triggered the takedown notices from Internet Brands.
Tax evasion refers to attempts by individuals, corporations or trusts to avoid paying the total amount of taxes owed through illegal means, known as tax evasion fraud.
The first takedown targets several URLs, some of them merely content scrapers. Other URLs listed (like this one) target posts with comments containing parts of IB’s post — even comments providing a link back to the original article being quoted.
The second (at least according to Google’s non-numeric sorting) is a repeat of the first, except for the addition of a Techdirt post. At first glance, the targeting of this article by Tim Geigner — “Dear Famous People: Stop Attempting Online Reputation Scrubbing; I Don’t Want To Write Streisand Stories Anymore” — would appear to be exactly the sort of behavior Dark Helmet was decrying. But it isn’t.
The phrase triggering the Internet Brands takedown can be found in a very late arrival to the comment thread, more than one-and-a-half years after the original post went live. It opens up with this:
This is a very interesting. I read the whole article at New York Magazine. So someone is accused of tax evasion and then charges are dropped and then tries to clean up his reputation…. nothing wrong with that.
Then, for no apparent reason, the commenter drops in the LawFirms.com paragraph highlighted above.
Now, here’s the problem. If blogs and other sites are reposting others’ content without permission, that’s one thing. But targeting whole posts for delisting just because a commenter copy-pasted some content is abusive. It could very possibly take out someone else’s created content — covered under their copyright. Using a DMCA notice in this fashion can allow unscrupulous rights holders to bypass Section 230 protections — effectively holding site owners “responsible” for comments and other third-party posts by removing the site’s original content from Google’s listings.
From the looks of it, Internet Brands did nothing more than perform a google search for this phrase and issue takedown notices for every direct quote that originated from somewhere other than its sites. It didn’t bother vetting the search results for third-party postings, fair use or anything else that might have made its takedown request more targeted. Internet Brands doesn’t issue many takedowns, so it’s not as though its IP enforcement squad had its hands full. In fact, there’s every reason to believe actual humans are involved in this process, rather than just algorithms — all the more reason to handle this more carefully. Here’s a little bit of snark it inserted into a 2014 DMCA takedown notice.
The interview and photos are published on our website and permission hasn’t been granted for anyone else to republish them. Not only is the content stolen it out ranks our website in a Google search for the keyword “th taylor”. So much for Google being able to identify the source of original content!
If a company has the time to leave personal notes for Google (which doesn’t have the time to read them), then it has time to ensure its requests aren’t targeting the creative works of others just to protect its own. The DMCA notice isnot some sort of IP-measuring contest with Google holding the ruler. If Internet Brands thinks it is — or just hasn’t bothered to vet its takedown requests before sending — it’s usually going to be the one coming up short. If Google doesn’t ignore the request, those on the receiving end of a bogus takedown will make a lot of noise. Either way, it”s accomplished nothing.
Ebook Library Punishes Anti-Piracy Outfit For Wrongful DMCA Notices
Like many other Internet-based services, The Ultimate Ebook Library (TUEBL) has to process numerous takedown requests to make sure that pirated content is swiftly removed from the site.
Unfortunately, not all requests they receive are legitimate. According to TUEBL there’s one company that stands out negatively, and that’s the London-based outfit MUSO.
When browsing through the takedown notices TUEBL founder Travis McCrea stumbled upon several automated requests that were submitted by MUSO, each listing inaccurate information.
The takedown notices were not merely incorrect, according to McCrea. They also circumvented the site’s CAPTCHA system, which is a violation of the Computer Fraud and Abuse Act.
This isn’t the first time TUEBL has noticed problems with MUSO’s takedown tactics. The company previously tried to remove several legitimately hosted titles, including a Creative Commons licensed book by Cory Doctorow.
“A year ago, after another issue where they were sending requests without any of the required information, they had filed a wrongful DMCA request for one of our featured authors Laurel Russwurm, and we sent them a warning,” McCrea tells TF.
“They further used our system to send a DMCA request for a book by Cory Doctorow. At that time we sent them an $150 invoice for our time reverting their improper DMCA request. When they didn’t reply, we let it slide… not wanting to make waves.”
MUSO never paid the $150 ‘fine’ and TUEBL initially let them get away with that. But after the recent mistakes McCrea decided that enough is enough.
On Sunday evening TUEBL sent the anti-piracy company an ultimatum. If MUSO fails to pay up, the company will be banned from sending further notices. In addition, hundreds of previously removed books will be restored.
“Today we are going to insist that your $150 fine be paid, or we will cut off all MUSO IP addresses, computers, and/or servers from accessing our DMCA page. Emailed requests will also be rejected as SPAM and all requests to be removed will have to come directly from the copyright holder instead of MUSO,” TUEBL wrote to the company.
MUSO has until 10PM PST today to respond, but thus far TUEBL hasn’t received a reply. The ebook library is still holding out for a peaceful resolution, but as the hours pass by this becomes less likely.
Hollywood’s Anti-Piracy Secrets Must Be Revealed, Court Rules
More than a year has passed since the MPAA defeated Hotfile, but the case has still been stirring in the background.
Hoping to find out more about Hollywood’s anti-piracy policies the Electronic Frontier Foundation (EFF) previously asked the court to make several sealed documents available to the public.
These documents are part of the counterclaim Hotfile filed, where it accused Warner of repeatedly abusing the DMCA takedown process. In particular, the EFF wants the public to know how Hollywood’s anti-piracy policies and tools work.
District Court Judge Kathleen Williams sided with the EFF and ruled that it’s in the public interest to unseal the information. The MPAA, however, argued that this may hurt some of its members.
Information regarding Columbia Pictures’ anti-piracy policies, in particular, would still be beneficial to pirates for decades to come, the Hollywood group argued.
“Defendants have cited two specific pieces of information regarding Columbia’s enforcement policies that, if revealed to the public, could compromise Columbia’s ability to protect its copyrighted works,” the MPAA’s lawyers wrote.
In addition, anti-piracy vendor Vobile feared that having its pricing information revealed could severely hurt the company.
Judge Williams has now reviewed these and other arguments but ruled that sealing records indefinitely is not an option. In this case, the public interest in the records outweighs the concerns of the MPAA.
WordPress Wins $25,000 From DMCA Takedown Abuser
Automattic, the company behind the popular WordPress blogging platform, has faced a dramatic increase in DMCA takedown notices in recent years.
Most requests are legitimate and indeed targeted at pirated content. However, there are also cases where the takedown process is clearly being abused.
To curb these fraudulent notices WordPress decided to take a stand in court, together with student journalist Oliver Hotham who had one of his articles on WordPress censored by a false takedown notice.
Hotham wrote an article about “Straight Pride UK” which included a comment he received from the organization’s press officer Nick Steiner. The latter didn’t like the article Hotham wrote, and after publication Steiner sent WordPress a takedown notice claiming that it infringed his copyrights.
WordPress and Hotham took the case to a California federal court where they asked to be compensated for the damage this abuse caused them.
The case is one of the rare instances where a service provider has taken action against DMCA abuse. The defendant, however, failed to respond in court which prompted WordPress to file a motion for default judgment.
The company argued that as an online service provider it faces overwhelming and crippling copyright liability if it fails to take down content. People such as Steiner abuse this weakness to censor critics or competitors.
“Steiner’s fraudulent takedown notice forced WordPress to take down Hotham’s post under threat of losing the protection of the DMCA safe harbor,” WordPress argued.
“Steiner did not do this to protect any legitimate intellectual property interest, but in an attempt to censor Hotham’s lawful expression critical of Straight Pride UK. He forced WordPress to delete perfectly lawful content from its website. As a result, WordPress has suffered damage to its reputation,” the company added.
After reviewing the case United States Magistrate Judge Joseph Spero wrote a report and recommendation in favor of WordPress and Hotham, and District Court Judge Phyllis Hamilton issued a default judgment this week.
“The court finds the report correct, well-reasoned and thorough, and adopts it in every respect,” Judge Hamilton writes.
“It is Ordered and Adjudged that defendant Nick Steiner pay damages in the amount of $960.00 for Hotham’s work and time, $1,860.00 for time spent by Automattic’s employees, and $22,264.00 for Automattic’s attorney’s fees, for a total award of $25,084.00.”
The case is mostly a symbolic win, but an important one. It should serve as a clear signal to other copyright holders that false DMCA takedown requests are not always left unpunished.
Copyright Monopoly Fraudsters Need To Go To Jail With Heavy Damages
Last week there was a story on TorrentFreak about a copyright monopolist who had gone absolutely insane and sent so-called “takedown notices” to everybody and their brother, from EFF to TOR – basically anybody with a download page.
It’s a complete mystery why this isn’t a criminal behavior. The fact that it isn’t is why it continues and harms innovation, creativity, free speech, and the Internet.
The Swedish Pirate Party had a very clear policy on crimes like this: if you lied about holding an exclusive right to something, the same penalty that would have applied to an infringer of that exclusive right would instead apply to you. This is only fair, after all: you are infringing on the distribution of a creative work by dishonest means.
For repeat offenders, or organizations that committed this crime on a commercial basis or commercial gain, like that idiot record label in the TorrentFreak story – they would be declared criminal organizations and have all their assets seized. The individuals doing so for commercial gain would go to jail for a couple of years.
The thing is, this should not even be contentious. This is how we deal with this kind of criminal act in every – every – other aspect of society. If you lie as part of commercial operations and hurt somebody else’s rights or business, you are a criminal. If you do so repeatedly or for commercial gain, direct or indirect, you’re having your ill-gotten gains seized. This isn’t rocket science. This is standard bloody operating procedure.
The copyright industry goes ballistic at this proposal, of course, and try to portray themselves as rightsless victims – when the reality is that they have been victimizing everybody else after making the entire planet rightsless before their intellectual deforestation.
The World’s Most Idiotic Copyright Complaint
At least once a month TorrentFreak reports on the often crazy world of DMCA takedown notices. Google is kind enough to publish thousands of them in its Transparency Report and we’re only too happy to spend hours trawling through them.
Every now and again a real gem comes to light, often featuring mistakes that show why making these notices public is not only a great idea but also in the public interest. The ones we found this week not only underline that assertion in bold, but are actually the worst examples of incompetence we’ve ever seen.
German-based Total Wipes Music Group have made these pages before after trying to censor entirely legal content published by Walmart, Ikea, Fair Trade USA and Dunkin Donuts. This week, however, their earlier efforts were eclipsed on a massive scale.
wipedFirst, in an effort to ‘protect’ their album “Truth or Dare” on Maze Records, the company tried to censor a TorrentFreak article from 2012 on how to download anonymously. The notice, found here, targets dozens of privacy-focused articles simply because they have the word “hide” in them.
But it gets worse – much worse. ‘Protecting’ an album called “Cigarettes” on Mona Records, Total Wipes sent Google a notice containing not a single infringing link. Unbelievably one of the URLs targeted an article on how to use PGP on the Mac. It was published by none other than the EFF.
YouTube Flags Cat Purring as Copyright Infringing Music
Week in and week out automated bots detect and report millions of alleged copyright infringements, which are then processed by the receiving site without a human ever looking at them.
Unfortunately this process is far from flawless, resulting in many false and inaccurate DMCA claims.
For regular Internet users YouTube’s takedown process is particularly problematic. We’ve highlighted this issue before, but an example that reached us this week attacks one of the Internet’s darlings, a cat.
Last March, YouTube user Digihaven uploaded one hour of video loops featuring his cat Phantom, purring, as cats do. The video didn’t go viral but appealed to a niche public, and more recently also two major music publishers.
Nearly a year after the video was posted Digihaven was informed by YouTube that Phantom is “pirate” purring. Apparently, part of the 12 second loop belongs to EMI Music Publishing and PRS.
In the copyright notice YouTube states that the cat purring is flagged by the Content-ID system as an infringing copy of the musical composition “Focus.”