8 ms·

If Not Overturned, Bad Copyright Decision Will Lead Many to Lose Internet Access

249 points by ystad 5y ago

uvesten 5y ago
Even though it took quite I while, I feel like many(!) law professionals are starting to ”get” intellectual property law and understand the internet, so this ruling will most likely be overturned in the next instance. Nowadays this kind of ruling is a surprising but it’s a small court and not really significant. Back in the 90’s and 00’s you could almost bet on all courts making draconian rulings like this, but the general internet literacy of law professionals has surely (and finally) changed for the better :)
- xbar 5y ago
  Uh. Lawyers understanding that this is a bad ruling isn't going to stop Sony from suing Comcast, with disastrous consequences.
- kmeisthax 5y ago
  More specifically, people started using copyright infringement lawsuits as a business model. It took years for the courts to discover that, say, Prenda Law weren't just some lawyers trying to stem the tide of rampant BitTorrent piracy, but were actually sharing their own content and then suing people who downloaded it to make money off of settlement demands. However, now that this has happened, it's significantly harder to get out-of-order discovery on a John Doe just by alleging an IP address sent parts of a file. Courts want something more than that. AFAIK the big thing nowadays is abusing Florida's "pure bill of discovery" to subpoena people for copyright litigation. This is legally dubious because copyright is inherently a "federal question", meaning that state courts aren't supposed to touch anything even remotely related to it. However I haven't yet seen someone try and attack otherwise valid copyright cases based on the fact that early discovery was improperly granted. My personal opinion is that Congress needs to step up to the plate next and realize that individual filesharing does not cause nearly as much harm to copyright owners as the law currently presumes. Statutory damages should not be available when suing people who merely shared infringing files for non-commercial purposes. Allege a direct commercial benefit or hope you can prove actual damages.
whereistimbo 5y ago
Yeah sick. What a good time to stop listening music like mediocre pop songs from these big three major labels. Coincidentally that is what I've done lately, given some music from independent artist sounded better, even more, the freemusicarchive.org and elsewhere in the Internet (like bandcamp) hosted a lot of great free songs licensed in Creative Commons which made me realize that mediocre pop songs are a scam, it sounds so sucks, but on top of that, you have to pay for it. And the money you pay to them might be used for evil practice like this.
- myself248 5y ago
  This seems a fine place to ask: Is there a way to get a Spotify-like user experience, but for creative commons music? I'd happily pay a few bucks a month if someone else's back-end would divvy it up to the various artists' tipjars.
  - NortySpock 5y ago
    Possibly Funkwhale, but it does not have a tip-jar https://funkwhale.audio/en_US/ https://funkwhale.audio/en_US/
  - dsqrt 5y ago
    Perhaps Jamendo https://www.jamendo.com/ https://www.jamendo.com/ ?
    - beebeepka 5y ago
      VLC used to promote this service. Haven't listened to their channes since they were removed from the list. I've discovered tons of great new and new music thanks to the stations in VLC. Was stuck listening to old tunes for almost 20 years. I. Old but there's tons of greatusic being produced. Not pop music, though, that's for sure
  - xbar 5y ago
    I would be fine if I had a "Record Label Filter" on all my music sources.
vegetablepotpie 5y ago
I think there needs to be a distinction in law between infrastructure providers (like COX) and application providers (like Facebook or Google). Infrastructure providers have a monopoly or an oligarchy over a geographic area and do not know what specific activities users engage in online, aside from which websites are visited. Application providers can build their monopolies based on network effects and potential competition is not constrained by an external limitation, like geography. They know what users do on their platforms. DMCA treats them the same. Cutting off someone’s Internet access seems like a very early 00’s solution to piracy, when you could still conceivably walk into a business and fill out a paper job application. Legal concepts need to evolve with the Internet and we need finer grained distinctions.
- greggyb 5y ago
  * Oligopoly, unless you're claiming that an infrastructure provider is one of the following: Either: 1. A sole provider of a good or service OR 2. One of several ruling elites that form the primary basis of government. Monopoly:Oligopoly :: Monarch:Oligarch.
  - easrng 5y ago
    In much of the US there is only one ISP that provides reasonable speeds. In my area, that's Spectrum. The only other options here are slow DSL and satellite.
    - shkkmo 5y ago
      And in many parts of the US, such as where my parents live, there is a single ISP that provides crappy DSL and nothing else.
    - vegetablepotpie 5y ago
      The parent post by greggyb wasn’t arguing against the fact that many areas only have one Internet provider, but was specifically focused on the Grandparents, use of the word “oligarchy” instead of the more appropriate “oligopoly” to refer to situations where people have their choice of two or three ISPs.
megous 5y ago
"Ability to terminate account => ability to supervise customers." What? :D
beprogrammed 5y ago
So the attack is, gain access to a business or personal network, torrent files that will definitely get you noticed, repeat until the ISP pops said target....
- thrower123 5y ago
  Fun with the public wifi that your Comcast-provided router or Amazon mesh network is making available to the world...
  - sp332 5y ago
    Comcast access points don't have a password on the wifi, but isn't there still a captive portal where you have to log in to your Comcast account before getting access? This might have changed during the pandemic actually, but they at least can differentiate the guest network.
    - livueta 5y ago
      Those captive portals generally kind of suck; you can (or could, the last time I personally tried was pre-pandemic) get around them with mac spoofing or tunneling traffic over UDP 53/853. They'd have to keep long-lived NAT logs on the gateway to tell that the infringement was from the guest SSID. But I guess at that point you may as well just full-on wardrive it.
      - sp332 5y ago
        Data used on the guest SSID does not count toward the data cap. So wherever it's tracked, they have a way to keep logs, manage abuse, and send DMCA notifications.
    - testesttest 5y ago
      Last time I checked (a year ago), after login, authentication was using MAC address and no encryption is used (not WPA or WPA2). You can easily sniff a MAC address and impersonate a device that is using xinfinty wifi.
kstenerud 5y ago
This problem stems from ISP unwillingness to be categorized as infrastructure, like a phone company. If they were, they could use the same arguments that you can't force a phone company to terminate phone service just because people are using it for illegal activity. But if they were to be classified as infrastructure, they'd lose the lucrative edge they have now, so it's far better in their eyes to lose this fight, aggressively cut off internet access to some of their subscribers, and reap the rewards of a non-regulated service.
- phkahler 5y ago
  >> This problem stems from ISP unwillingness to be categorized as infrastructure, like a phone company. A.K.A. Common Carrier status.
  - kevin_thibedeau 5y ago
    Which they lost when they lobbied to remove net neutrality requirements.
    - monocasa 5y ago
      At least cable was never a common carrier. DSL is more complicated.
- cratermoon 5y ago
  Back in the 90s I told anyone that would listen that ISPs needed to have common carrier status, that it would protect not only the customers but also the ISPs. It seems, however, the ISPs have grown too entangled with content creation companies – or are content creation companies – and they are OK spending a substantial portion of their revenues protecting the revenues of a Sony. They do so because they know their revenue stream depends on protecting the rent-seeking behaviors of the movie, publishing, and recording industries.
  - 0x0nyandesu 5y ago
    I noticed after having both for years that FiOS doesn't care at all. You can pirate all you want. In contrast Comcast and Spectrum send out notices right away. I don't get the end game though. Cut off my gigibit line I pay through the nose for? Fine my roommate will just sign up. Or worse I just don't pay you anymore at all.
nullc 5y ago
Some of this stuff happens because providers own unclean hands causes them to mount an inadequate defense. For example, providers should be in the position where they would defend themselves by saying that monitoring their users online activities would be a criminal violation of wiretap law. Unfortunately, providers have taken the ability to monitor users through terms of service provisions so that they can collect data on their users to sell to advertisers, thus diminishing their ability to argue that they're just a dumb pipe.
- cratermoon 5y ago
  Not only to sell to advertisers, but to share with media companies (and some ISPs are subsidiaries of media companies) for even more targeted content creation.
excalibur 5y ago
> In this case, the same court found that Cox was on the hook for the copyright infringement of its customers and upheld the jury verdict of $1 billion in damages—by far the largest amount ever awarded in a copyright case. What a terrible decision. Was this jury composed entirely of corporate "persons"?
- slaymaker1907 5y ago
  IIRC, the main issue was because Cox had a policy (as required under the DMCA) to block users who are repeat copyright offenders on their network. The problem was that they never actually followed through on this x-strike policy.
- sp332 5y ago
  slaymaker1907 has it right. Years ago Comcast et al. tried to write a six-strikes policy into law, but instead they got this weird compromise where ISPs had to each write their own policy which at some point included terminating the customer's account. So either not having such a policy or not implementing it as written will get an ISP in trouble, but there are almost no rules about what has to be in the policy. It's a bad law but at the same time you kinda have to work to screw it up as bad as Cox did.
  - a1369209993 5y ago
    > but instead they got this weird compromise where ISPs had to each write their own policy which at some point included terminating the customer's account. Given how disfunctional the US legal systems is, has anyone tried setting up a local ISP whose actually-enforced policy is to terminate accounts after, say, one billion distinct copyright strikes?
cratermoon 5y ago
Ugh, the DMCA is a bad law. What's worse, though, is that the laws in the US are stuck in a time when Internet access was a nice-to-have, a kind of semi-luxury. Fast forward to 2021, and imagine if a person could have their electricity shut off because they were using it to power a computer that shared copyright content. That's about where this decision sits.
- failwhaleshark 5y ago
  It's the best law big money labels can buy.
hereme888 5y ago
I hope it causes VPNs to become more popular.

249 points by ystad 5y ago

Even though it took quite I while, I feel like many(!) law professionals are starting to ”get” intellectual property law and understand the internet, so this ruling will most likely be overturned in the next instance. Nowadays this kind of ruling is a surprising but it’s a small court and not really significant. Back in the 90’s and 00’s you could almost bet on all courts making draconian rulings like this, but the general internet literacy of law professionals has surely (and finally) changed for the better :)

xbar 5y ago
Uh. Lawyers understanding that this is a bad ruling isn't going to stop Sony from suing Comcast, with disastrous consequences.
kmeisthax 5y ago
More specifically, people started using copyright infringement lawsuits as a business model. It took years for the courts to discover that, say, Prenda Law weren't just some lawyers trying to stem the tide of rampant BitTorrent piracy, but were actually sharing their own content and then suing people who downloaded it to make money off of settlement demands. However, now that this has happened, it's significantly harder to get out-of-order discovery on a John Doe just by alleging an IP address sent parts of a file. Courts want something more than that. AFAIK the big thing nowadays is abusing Florida's "pure bill of discovery" to subpoena people for copyright litigation. This is legally dubious because copyright is inherently a "federal question", meaning that state courts aren't supposed to touch anything even remotely related to it. However I haven't yet seen someone try and attack otherwise valid copyright cases based on the fact that early discovery was improperly granted. My personal opinion is that Congress needs to step up to the plate next and realize that individual filesharing does not cause nearly as much harm to copyright owners as the law currently presumes. Statutory damages should not be available when suing people who merely shared infringing files for non-commercial purposes. Allege a direct commercial benefit or hope you can prove actual damages.

whereistimbo 5y ago

Yeah sick. What a good time to stop listening music like mediocre pop songs from these big three major labels. Coincidentally that is what I've done lately, given some music from independent artist sounded better, even more, the freemusicarchive.org and elsewhere in the Internet (like bandcamp) hosted a lot of great free songs licensed in Creative Commons which made me realize that mediocre pop songs are a scam, it sounds so sucks, but on top of that, you have to pay for it. And the money you pay to them might be used for evil practice like this.

myself248 5y ago
This seems a fine place to ask: Is there a way to get a Spotify-like user experience, but for creative commons music? I'd happily pay a few bucks a month if someone else's back-end would divvy it up to the various artists' tipjars.
- NortySpock 5y ago
  Possibly Funkwhale, but it does not have a tip-jar https://funkwhale.audio/en_US/ https://funkwhale.audio/en_US/
- dsqrt 5y ago
  Perhaps Jamendo https://www.jamendo.com/ https://www.jamendo.com/ ?
  - beebeepka 5y ago
    VLC used to promote this service. Haven't listened to their channes since they were removed from the list. I've discovered tons of great new and new music thanks to the stations in VLC. Was stuck listening to old tunes for almost 20 years. I. Old but there's tons of greatusic being produced. Not pop music, though, that's for sure
- xbar 5y ago
  I would be fine if I had a "Record Label Filter" on all my music sources.

vegetablepotpie 5y ago

I think there needs to be a distinction in law between infrastructure providers (like COX) and application providers (like Facebook or Google). Infrastructure providers have a monopoly or an oligarchy over a geographic area and do not know what specific activities users engage in online, aside from which websites are visited. Application providers can build their monopolies based on network effects and potential competition is not constrained by an external limitation, like geography. They know what users do on their platforms. DMCA treats them the same. Cutting off someone’s Internet access seems like a very early 00’s solution to piracy, when you could still conceivably walk into a business and fill out a paper job application. Legal concepts need to evolve with the Internet and we need finer grained distinctions.

greggyb 5y ago
* Oligopoly, unless you're claiming that an infrastructure provider is one of the following: Either: 1. A sole provider of a good or service OR 2. One of several ruling elites that form the primary basis of government. Monopoly:Oligopoly :: Monarch:Oligarch.
- easrng 5y ago
  In much of the US there is only one ISP that provides reasonable speeds. In my area, that's Spectrum. The only other options here are slow DSL and satellite.
  - shkkmo 5y ago
    And in many parts of the US, such as where my parents live, there is a single ISP that provides crappy DSL and nothing else.
  - vegetablepotpie 5y ago
    The parent post by greggyb wasn’t arguing against the fact that many areas only have one Internet provider, but was specifically focused on the Grandparents, use of the word “oligarchy” instead of the more appropriate “oligopoly” to refer to situations where people have their choice of two or three ISPs.

megous 5y ago

"Ability to terminate account => ability to supervise customers." What? :D

beprogrammed 5y ago

So the attack is, gain access to a business or personal network, torrent files that will definitely get you noticed, repeat until the ISP pops said target....

thrower123 5y ago
Fun with the public wifi that your Comcast-provided router or Amazon mesh network is making available to the world...
- sp332 5y ago
  Comcast access points don't have a password on the wifi, but isn't there still a captive portal where you have to log in to your Comcast account before getting access? This might have changed during the pandemic actually, but they at least can differentiate the guest network.
  - livueta 5y ago
    Those captive portals generally kind of suck; you can (or could, the last time I personally tried was pre-pandemic) get around them with mac spoofing or tunneling traffic over UDP 53/853. They'd have to keep long-lived NAT logs on the gateway to tell that the infringement was from the guest SSID. But I guess at that point you may as well just full-on wardrive it.
    - sp332 5y ago
      Data used on the guest SSID does not count toward the data cap. So wherever it's tracked, they have a way to keep logs, manage abuse, and send DMCA notifications.
  - testesttest 5y ago
    Last time I checked (a year ago), after login, authentication was using MAC address and no encryption is used (not WPA or WPA2). You can easily sniff a MAC address and impersonate a device that is using xinfinty wifi.

kstenerud 5y ago

This problem stems from ISP unwillingness to be categorized as infrastructure, like a phone company. If they were, they could use the same arguments that you can't force a phone company to terminate phone service just because people are using it for illegal activity. But if they were to be classified as infrastructure, they'd lose the lucrative edge they have now, so it's far better in their eyes to lose this fight, aggressively cut off internet access to some of their subscribers, and reap the rewards of a non-regulated service.

phkahler 5y ago
>> This problem stems from ISP unwillingness to be categorized as infrastructure, like a phone company. A.K.A. Common Carrier status.
- kevin_thibedeau 5y ago
  Which they lost when they lobbied to remove net neutrality requirements.
  - monocasa 5y ago
    At least cable was never a common carrier. DSL is more complicated.
cratermoon 5y ago
Back in the 90s I told anyone that would listen that ISPs needed to have common carrier status, that it would protect not only the customers but also the ISPs. It seems, however, the ISPs have grown too entangled with content creation companies – or are content creation companies – and they are OK spending a substantial portion of their revenues protecting the revenues of a Sony. They do so because they know their revenue stream depends on protecting the rent-seeking behaviors of the movie, publishing, and recording industries.
- 0x0nyandesu 5y ago
  I noticed after having both for years that FiOS doesn't care at all. You can pirate all you want. In contrast Comcast and Spectrum send out notices right away. I don't get the end game though. Cut off my gigibit line I pay through the nose for? Fine my roommate will just sign up. Or worse I just don't pay you anymore at all.

nullc 5y ago

Some of this stuff happens because providers own unclean hands causes them to mount an inadequate defense. For example, providers should be in the position where they would defend themselves by saying that monitoring their users online activities would be a criminal violation of wiretap law. Unfortunately, providers have taken the ability to monitor users through terms of service provisions so that they can collect data on their users to sell to advertisers, thus diminishing their ability to argue that they're just a dumb pipe.

cratermoon 5y ago
Not only to sell to advertisers, but to share with media companies (and some ISPs are subsidiaries of media companies) for even more targeted content creation.

excalibur 5y ago

> In this case, the same court found that Cox was on the hook for the copyright infringement of its customers and upheld the jury verdict of $1 billion in damages—by far the largest amount ever awarded in a copyright case. What a terrible decision. Was this jury composed entirely of corporate "persons"?

slaymaker1907 5y ago
IIRC, the main issue was because Cox had a policy (as required under the DMCA) to block users who are repeat copyright offenders on their network. The problem was that they never actually followed through on this x-strike policy.
sp332 5y ago
slaymaker1907 has it right. Years ago Comcast et al. tried to write a six-strikes policy into law, but instead they got this weird compromise where ISPs had to each write their own policy which at some point included terminating the customer's account. So either not having such a policy or not implementing it as written will get an ISP in trouble, but there are almost no rules about what has to be in the policy. It's a bad law but at the same time you kinda have to work to screw it up as bad as Cox did.
- a1369209993 5y ago
  > but instead they got this weird compromise where ISPs had to each write their own policy which at some point included terminating the customer's account. Given how disfunctional the US legal systems is, has anyone tried setting up a local ISP whose actually-enforced policy is to terminate accounts after, say, one billion distinct copyright strikes?

cratermoon 5y ago

Ugh, the DMCA is a bad law. What's worse, though, is that the laws in the US are stuck in a time when Internet access was a nice-to-have, a kind of semi-luxury. Fast forward to 2021, and imagine if a person could have their electricity shut off because they were using it to power a computer that shared copyright content. That's about where this decision sits.

failwhaleshark 5y ago
It's the best law big money labels can buy.

hereme888 5y ago

I hope it causes VPNs to become more popular.