back to article Music publisher BMG vs US cable giant Cox: Here's why it matters

A court case that begins this week will define new boundaries in the relationship between US ISPs and creators, regardless of which way it goes. Music publisher BMG, part of Bertelsmann, is suing cable giant Cox Communications for abetting copyright infringement. The core of the issue is how the ISP handled heavy infringers, …

  1. Anonymous Coward
    WTF?

    WTF?

    One had triggered 54,489 notifications in 60 days. Each notification was alleged to have been passed on to Cox.

    Well anyone hitting our emails servers that fast are likely to be blacklisted very, very quickly. Did anyone check the spam folder?

  2. Anonymous Coward
    Anonymous Coward

    I still do not understand why the RIAA and its ilk want someone else to look after their business plan for them.

    What we have here is something like Ford sewing the roads because their cars breakdown on roads - utter stupidity.

    I can only assume this case has been brought because Cox has larger pockets than individuals and with a bought judge BMG think they will be able to party harder than normal with their winnings.

    I see no reason why he who supplies the pipe for a fee should be held responsible for what he who pays to use that pipe does with it.

    1. John 104 Silver badge
      Headmaster

      @Ivan4

      Agreed. But why would Ford sew a road? More likely they would sue.

      1. Anonymous Coward
        Anonymous Coward

        Thank you John. I knew it was wrong just as I pushed the submit button but the post didn't come up to allow me to edit it.

        1. Doctor Syntax Silver badge

          "but the post didn't come up to allow me to edit it."

          Sometimes that happens. Annoying, isn't it?

          1. Wilseus
            Headmaster

            Also it's "break down," not "breakdown." (Break down is what your car does, a breakdown is the thing that's happened.) This drives me absolutely nuts (login/log in is another) but at least it's not as bad as people using "nevermind" instead of "never mind" since there's no such word as the former. There's no such word as anytime or thankyou either!

            1. ma1010 Silver badge
              Headmaster

              Yes, "anytime" *is* a word

              Anytime

              adverb

              1.

              at any time; regardless of hour, date, etc.; whenever.

              2.

              invariably; without doubt or exception; always:

              I can do better than that anytime.

    2. beep54
      Coat

      "What we have here is something like Ford sewing the roads because their cars breakdown on roads - utter stupidity."

      I had difficulty with this as a picture of Ford, roads and a sewing needle was stuck in my head and it didn't make any sense. Is 'sew' British for 'sue'?

  3. Doctor Syntax Silver badge

    The whole system seems remarkably ill-thought out. The plaintiffs may well have good cause but if anything spawns notifications at that rate is completely automatic and Cox's point that they're simply allegations is a reasonable point. Far better to have taken a sample and been able to show that they've been carefully checked and are verifiable. If Cox then refuses, take those to court and ask for the remainder to be taken into consideration.

  4. This post has been deleted by a moderator

  5. kain preacher

    I was thinking the same thing. Great way to end up on spamhaus.

  6. Anonymous Coward
    Holmes

    Spoilation

    IANAL but I've seen this playbook from afar dozens (hundreds?) of times. Cox may have kneecapped themselves right off the bat with the "Spoliation of Evidence" which is discussed under the Federal Rules of Civil Procedure, a guide book you best look over if there is ever any smidgen of a chance you are in IT and may end up in court. Just inching into the discovery phase and not being able to turn up with standard business records that any "reasonable ISP must have to conduct business" is not good. This is a recurring theme that the federal courts have been using a sledgehammer to enforce. Business records are not optional.

    On that basis alone, if I were Lloyd's, I'd be looking to bail as well. Especially if I worked IT for Cox. Kneecapped? More like like further up and more center-line.

    1. The Nazz Silver badge

      Re: Spoilation

      From the linked articles it would appear that :

      Rightscorp are the ones who deliberately destroyed important evidence. Not Cox.

      ALL versions of their tracking software before July 2015.

      One has to ask, in an ongoing case, why they did so and WHAT HAVE THEY GOT TO HIDE?

      Not that Judge O'Greedy seems to care so much.

      1. Anonymous Coward
        Facepalm

        Re: Spoilation

        You're right! We have "egregious spoliation" on the part of Rightscorp who can't maintain any kind of log that can be coughed up during discovery and Cox misplacing its DHCP logs so the IP address, perhaps, can be mapped back to a subscriber account.

        I think monitoring Techdirt will be in order. Laying in the popcorn.

    2. Adam 1

      Re: Spoilation

      The allegation of 54,489 in 60 days equates to close to 1 violation per minute if you assume that person had to sleep during that 2 months.

      A reasonable person might consider such a large number of warnings as indicative that there was some sort of bug in either the collection, analysis or notification processes. Inability to produce the code used for that denies the accused the right to challenge the evidence used against them. The idea of secret evidence should be an anathema to anyone interested in freedom and the rule of law.

      1. Roland6 Silver badge

        Re: Spoilation

        Wouldn't surprise me if the Rightcorps system treated each data grab as a separate offence. So if I put a file down from say 50 separate sources, Rightscorp will treat each of those pulls as an offence. Which sort of makes sense given the way the entertainment giants severely limit the extent to which you can 'sample' from a work.

        The issue I can see is that the DCMA system relies on "good faith", hence whether Cox should have responded to Rightscorp, questioning their data, or should have simply kept quiet.

        I suspect that the reason Cox questioned the data is because they could see the traffic logs and put two and two together... Rightscorp having been warned by Cox's questions have decided the best approach is to destroy (or claim to have destroyed) evidence. Deciding that it will be more profitable taking Cox to court than trying to trackdown and take ANY actual infringers to court due to the issue of “egregious spoilation” of it's chain of evidence...

  7. regadpellagru

    "One had triggered 54,489 notifications in 60 days. Each notification was alleged to have been passed on to Cox.

    Well anyone hitting our emails servers that fast are likely to be blacklisted very, very quickly. Did anyone check the spam folder?"

    You've beaten me at it, mate ...

  8. regadpellagru

    retarded

    "It appears that he thinks, at least in the case of the Cox Torrenter who downloaded tens of thousands of files, that tens of thousands of notifications was good enough to create obligations on Cox's part."

    And that's where it is retarded. He probably assumes one file = one full movie, but reality may be a lot different.

    For example, some retro-gaming torrents are thousands of 10-20 KB files, so a single torrent could mean thousands warning triggering spam systems ...

  9. The Nazz Silver badge

    Business as usual then.

    From the article on Rightscorps losses it appears that the vast majority of their revenue ends up with the Music Rights holders and lawyers anyway.

    So, thye're even fleecing the companies trying to help them in the first place.

    Twas ever thus.

    1. phuzz Silver badge

      Re: Business as usual then.

      You know, if there was more sign of the RIAA doing it's best to collect money for struggling musicians, rather than for itself, I might have a better opinion of them.

  10. Anonymous Coward
    Anonymous Coward

    In the U.S. paid...

    ...liars rewrite law to suit their agendas, daily. Spill a cup of coffee on your crotch while driving and collect a million dollars - literally, for your irresponsible behavior. Failure to stop piracy when repeatedly notified of it is a violation of law for which Cox should be punished. In reality it would take at least a $100 million fine for Cox to even care about the court's decision.

    The same applies to other unscrupulous cable companies like Comcast who has been illegally globally blocking legitimate e-mail from international ISPs being sent to U.S. Comcast subscribers. The evidence has been provided to both the FTC and FCC yet neither have filed a cease and desist order and sued Comcast for consumer fraud for charging customers and not delivering the legitimate international e-mail sent. Basically in the U.S. the judicial system makes up the laws as it goes and only enforces the laws when enough cash passes certain people's hands - much like a third world country with criminals running a dictatorship.

    1. DavCrav Silver badge

      Re: In the U.S. paid...

      "...liars rewrite law to suit their agendas, daily. Spill a cup of coffee on your crotch while driving and collect a million dollars - literally, for your irresponsible behavior. "

      Don't repeat this myth, please. A 79-year old woman at a McDonalds was served coffee at near boiling point, an obvious safety risk anywhere. She suffered third-degree burns and had to be hospitalized for skin grafts. She asked for compensation for $10,500 in medical bills, and McDonalds offered her $800.

      Don't believe everything you hear from major corporations about the little people getting uppity.

      https://en.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Restaurants

      1. Anonymous Coward
        Anonymous Coward

        Re: In the U.S. paid...

        Yes, the case may be more to do with the provision of health care and the requirements imposed by insurance companies. Not the laws themselves, but the application by the businesses involved.

        A similar case happened when a child, just in being a child, tripped someone up. For the insurance to pay, and thus the medical treatment, they were required to sue the child.

    2. sisk

      Re: In the U.S. paid...

      Spill a cup of coffee on your crotch while driving and collect a million dollars

      Do us all a favor and look up the real story behind that one if you're going to use it as an example. Some of the highlights:

      1) She was in the passenger seat, not driving

      2) The car was parked when the coffee was spilled

      3) She claims that she didn't spill the coffee, but rather the cup fell apart

      4) She suffered third degree burns, was hospitalized for a week and required 2 years worth of outpatient treatment

      5) The coffee was, by McDonald's own admission, too hot to be considered fit for consumption

      6) The court found that she was partially responsible and only awarded her part of her claim, $640,000

      1. John Tserkezis

        Re: In the U.S. paid...

        "3) She claims that she didn't spill the coffee, but rather the cup fell apart"

        It didn't fall apart. She grasped the sides with her inner thighs in an effort to remove the lid with her hand. The lid popped off, squeezing and ejecting coffee all over her crotch. Yes, there was some court discussion on if the lid was designed for that cup or not.

        "5) The coffee was, by McDonald's own admission, too hot to be considered fit for consumption"

        Yes, but it's industry standard. EVERYBODY COMPLIES WITH THIS. It is standard practice to make the coffee hotter than normal consumption temperature, so by the time you take it away and actually drink it, it has come down to normal consumption temp, not just plain cold. The only coffee that's served DRINKING temperature is stuff that's served to you right there in the shop. In fact, the McDonalds served at the take away counter temperature was slightly LOWER than industry norm for their business model.

        The only fair part of this is she initially requested $18,000 (wikipedia) from McDonalds for the injury and following treatments. They offered her $800, and then ignored her. Repeatedly. She took them to court, a jury awarded $2.86 million, but the trial judge brought that down to 640K. They finally settled out of court for an undisclosed amount.

        There is much in the way of resourses on this on the 'net, but like many other subjects, you have to dig around to get all the details.

        McDonalds did wrong here, but it had nothing to do with coffee - only how they handled the payout. Not only that, this case sparked a huge debate, discussion and arguments over tort reforms in the US.

        1. Someone Else Silver badge
          FAIL

          @ John Tserkezis -- Re: In the U.S. paid...

          "5) The coffee was, by McDonald's own admission, too hot to be considered fit for consumption"

          Yes, but it's industry standard. EVERYBODY COMPLIES WITH THIS. It is standard practice to make the coffee hotter than normal consumption temperature, so by the time you take it away and actually drink it, it has come down to normal consumption temp, not just plain cold.

          Yes and for the longest time, all manner of unsafe practices were shared by fatass corporations as "industry practice". In fact, such things continue even as I type...see the petrochemical industry as a veritable font of examples.

          Guess what, John: That's no defense. Corporate Stupidity is not an oxymoron; it is, in fact, redundant.

      2. beep54

        Re: In the U.S. paid...

        @sisk 4) needs to be amplified: on her crotch. Now. I would like everyone to imagine a first degree burn. Ouch. Got that? Good. Now imagine a third degree burn. Mofo ouch. Got that? Good. Now imagine third degree burn and your balls. .... you can't really quite do that now can you?

        1. sisk

          Re: In the U.S. paid...

          Technically 3rd degree burns don't hurt. The nerve endings are dead. They're usually surrounded by 2nd degree burn regiouns that hurt like a bitch though. However, that said, a man with a third degree burn on his balls would be a eunich.

  11. Youngone

    Points

    Rightscorp are noted copyright trolls. Their "parking ticket" type notices are just an attempt to shake people down for money.

    Blackmail is such an ugly word. I much prefer extortion. The "X" makes it sound really cool.

    1. Anonymous Coward
      Anonymous Coward

      Re: Points

      I wondered something like that myself.

      Perhaps these 54K 'illegal' downloads were triggered by a Rightscorp agent. After all COX was the only major ISP not to sign up for the agrees system of policing this sort of stuff.

      A sort of download honey trap in order to get Cox to fall into line AND at the same time increase the revenue of RightsCorp when the judge finds in their favor...

      IANAL etc.

      1. John Lilburne

        Re: Points

        They were recording seeders of 1000s of files. Someone that is seeding 1000 files only need to get triggerer once every 1 day to mount up 54K 60 days.If they are seeding 7000 files they only need to be triggered once a week., etc. The issue here is that people seed 1000s upon 1000s of files so the numbers mount up quickly as do the potential loses.

    2. Andrew Orlowski (Written by Reg staff)

      Re: Points

      "Troll" is an emotive word. It implies there is no moral justification for the communication, and no legal justification for it either. BMG would argue that they are perfectly entitled to attempt to fight on behalf of the people they represent, who are not rich or powerful, because rights that aren't enforced aren't really "rights" at all. And that would leave creators powerless.

      But here's a thought experiment.

      If ISPs went some way to acknowledging that those rights exist - and most now do - there would be no Rightscorp at all. As it is, Rightscorp's business model isn't a profitable one. Perhaps Rightscorp doesn't need to exist at all?

  12. Geoff Taylor's lovechild

    Informative

    Thank you for writing an informative, balanced piece on this story. I found it very interesting. Nothing funny or sarky to add to the comments; I just appreciate it when the news is just that - news - and not sensationalism.

    1. Andrew Orlowski (Written by Reg staff)

      Re: Informative

      Thank you. What a fabulous username (!)

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