4 ms·

Cox to Appeals Court: DMCA Subpoenas Don't Apply to Us, Period * TorrentFreak

6 points by isaacfrond 2y ago

tencentshill 2y ago
"the ISP argued that DMCA subpoenas don’t apply to mere conduit providers" Didn't they argue the opposite for the Net Neutrality debate? ISPs were more than a series of tubes, they "added value" somehow.
deleted 2y ago
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hn_acker 2y ago
> Cox argues that the DMCA is complex, but it clearly states that the subpoena provision is tied to the larger "notice-and-takedown" framework. These takedowns don't apply to conduit ISPs, therefore the DMCA subpoenas shouldn’t either. > "When it comes to conduit ISPs, there is no such thing as a DMCA-compliant notification. That is because Congress decided not to subject such ISPs to the notice-and-takedown framework at all. No DMCA notice, no DMCA subpoena." By the text of the DMCA, Cox is correct. (Nitpick: it doesn't matter whether an ISP is a neutral "conduit" or not. The DMCA still provides no notice-and-takedown requirement for ISPs, except maybe ISPs who store user-uploaded content on their own servers.) But in the BMG Rights Management v. Cox Communications (2018) case, the Fifth Circuit decided that the notice-and-takedown requirement meant only for certain websites would also apply to internet access providers (and now other courts have done the same) [1]: > The first safe harbor, codified at Section 512(a), applies to providers of “Transitory Digital Network Communications.”[24] Examples of these intermediaries are the companies that provide internet access generally, or what we refer to as “ISPs,” including broadband ISPs like Verizon and Cox. ... > The third safe harbor, codified at Section 512(c), applies to service providers that enable information to be “stored at the direction of users.”[27] When people speak of the “DMCA,” they are often referring to this safe harbor and the many internet services it covers, such as social media sites or YouTube, where users have published, or “stored,” some “information” they have expressed.[28] Most notably, this safe harbor, which is the most complex of the four in terms of its criteria, includes the requirement that providers abide by a “notice-and-takedown” system.[29] Under this system, the putative copyright holder or its agent sends a “notice,” which is sometimes colloquially referred to as a “takedown demand,” to the service provider alleging that some material a user has posted violates their copyright.[30] ... > Yet the court still found that Cox lost its safe-harbor defense by not terminating users after having received takedown notices, all of which it apparently needed to regard as presumptively valid, even though, as the court itself acknowledged, many were not.[75] > In addition, Cox effectively created a new requirement for the 512(a) safe harbor for providers to receive and respond to takedown notices that the statutory text had never before required. Takedown notices are entirely products of the 512(c) safe harbor.[76] While the takedown notices described in 512(c) are also used in the context of the 512(b) and (d) safe harbors, the 512(a) safe harbor makes absolutely no mention of them. [1] https://www.rstreet.org/research/jawboning-in-plain-sight-the-unconstitutional-censorship-tolerated-by-the-dmca/ https://www.rstreet.org/research/jawboning-in-plain-sight-th...

6 points by isaacfrond 2y ago

"the ISP argued that DMCA subpoenas don’t apply to mere conduit providers" Didn't they argue the opposite for the Net Neutrality debate? ISPs were more than a series of tubes, they "added value" somehow.

deleted 2y ago

[deleted]

hn_acker 2y ago

> Cox argues that the DMCA is complex, but it clearly states that the subpoena provision is tied to the larger "notice-and-takedown" framework. These takedowns don't apply to conduit ISPs, therefore the DMCA subpoenas shouldn’t either. > "When it comes to conduit ISPs, there is no such thing as a DMCA-compliant notification. That is because Congress decided not to subject such ISPs to the notice-and-takedown framework at all. No DMCA notice, no DMCA subpoena." By the text of the DMCA, Cox is correct. (Nitpick: it doesn't matter whether an ISP is a neutral "conduit" or not. The DMCA still provides no notice-and-takedown requirement for ISPs, except maybe ISPs who store user-uploaded content on their own servers.) But in the BMG Rights Management v. Cox Communications (2018) case, the Fifth Circuit decided that the notice-and-takedown requirement meant only for certain websites would also apply to internet access providers (and now other courts have done the same) [1]: > The first safe harbor, codified at Section 512(a), applies to providers of “Transitory Digital Network Communications.”[24] Examples of these intermediaries are the companies that provide internet access generally, or what we refer to as “ISPs,” including broadband ISPs like Verizon and Cox. ... > The third safe harbor, codified at Section 512(c), applies to service providers that enable information to be “stored at the direction of users.”[27] When people speak of the “DMCA,” they are often referring to this safe harbor and the many internet services it covers, such as social media sites or YouTube, where users have published, or “stored,” some “information” they have expressed.[28] Most notably, this safe harbor, which is the most complex of the four in terms of its criteria, includes the requirement that providers abide by a “notice-and-takedown” system.[29] Under this system, the putative copyright holder or its agent sends a “notice,” which is sometimes colloquially referred to as a “takedown demand,” to the service provider alleging that some material a user has posted violates their copyright.[30] ... > Yet the court still found that Cox lost its safe-harbor defense by not terminating users after having received takedown notices, all of which it apparently needed to regard as presumptively valid, even though, as the court itself acknowledged, many were not.[75] > In addition, Cox effectively created a new requirement for the 512(a) safe harbor for providers to receive and respond to takedown notices that the statutory text had never before required. Takedown notices are entirely products of the 512(c) safe harbor.[76] While the takedown notices described in 512(c) are also used in the context of the 512(b) and (d) safe harbors, the 512(a) safe harbor makes absolutely no mention of them. [1] https://www.rstreet.org/research/jawboning-in-plain-sight-the-unconstitutional-censorship-tolerated-by-the-dmca/ https://www.rstreet.org/research/jawboning-in-plain-sight-th...