Magistrate Judge Says Grande Shouldn't Be Able To Use The DMCA Safe Harbors Because It Didn't Really Terminate Infringers

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We've written a few times about a key DMCA case in Texas, involving the ISP Grande Communications and Universal Music Group (and, by proxy, the copyright trolling operation Rightscorp). The case has had a lot of up and downs, with the judge tossing UMG's "vicarious infringement" claims, while letting the "contributory infringement" claims move forward. In October, the court rejected UMG's attempt to bring back the vicarious infringement claims which had already been dismissed, with some fairly harsh words directed at UMG for attempting that.The latest, as first noted by Torrentfreak, is that the magistrate judge has recommended rejecting Grande's use of the DMCA safe harbor defense. I still have general issues with the idea that the "repeat infringer" part of the DMCA is being accurately described in these cases (specifically: the courts are now applying it to accusations of infringement, rather than actual infringers, which requires a court adjudication). However, the magistrate basically points out that Grande can't make use of the safe harbors because... it had no repeat infringer policy at all. Or, rather, it did, but in 2010 it stopped using it, and then never had a policy through 2016.So, without a policy, they couldn't have reasonably implemented it... and thus, no safe harbors. Given the facts of the case, that's perhaps not that surprising. The DMCA requires you to have a reasonably implemented policy (Cox lost its similar lawsuit not because it didn't have a policy, but because it didn't follow its own policy).Of course, that doesn't necessarily mean that UMG is going to win the case. Not having the safe harbor makes it harder for Grande, but not fatal. UMG will still need to prove contributory infringement, which is going to be fairly difficult to show. Earlier in the case, the court had noted "that this is not yet a well-defined area of law, and that there are good arguments on both sides of this issue." Effectively, UMG will need to show that Grande "induced" infringement by its actions, and Grande will claim it did no such thing. But it can't just use the DMCA safe harbors to get the case dismissed, rather it will need to focus specifically on the question of whether it induced people to infringe.

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Canada Outlaws Settlement Threat Letters Sent Through ISPs

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Somehow, it seems things move quite quickly in the Great White North. It was only in October that we discussed Canadian ISPs making a great deal of noise over the plague that is settlement letters sent to their subscribers over supposed copyright infringement. In the Canadian system, rightsholders pass along a letter to the ISP, which is then supposed to pass those letters along to the subscriber. ISPs began complaining that its own administrative burden was being repurposed as part of the copyright trolling business model, used to extract settlements purely out of fear. In November, ISPs got their wish, with a proposed law that would amend copyright law to outlaw these letters when they include these types of extortion attempts.And now, in December, the law has officially passed, bringing an end to threat settlement letters sent to subscribers through their ISPs.

Bill C-86, the Budget Implementation Act, has now received royal assent, so there will be some big changes in the Great White North. Section 41.‍25 of the Copyright Act is now amended with the addition of the following;(3) A notice of claimed infringement shall not contain:(a) an offer to settle the claimed infringement;
(b) a request or demand, made in relation to the claimed infringement, for payment or for personal information;
(c) a reference, including by way of hyperlink, to such an offer, request or demand; and
(d) any other information that may be prescribed by regulation.The text is pretty straightforward, in that it prohibits demands for settlement in the notices themselves or on a third-party site where such a demand may also be available. This is important since some notices contain hyperlinks that not only lead to demands for cash but also undermine subscriber privacy with the use of tracking code.

However, Geist also cautions that the new amendments contain no punishments for anti-piracy companies that fail to follow the rules.“The key remaining question is whether ISPs will crackdown on non-compliant notices. Since there is no penalty associated with sending non-compliant notices, subscribers are dependent upon ISPs carefully reviewing notices to ensure that they only forward those that fully comply with the law,” Geist notes.

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Nov/Dec 2018 Magazine

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Cover Story - MultiValue Industry End-of-Year Recap

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Nov/Dec 2018 - MultiValue Industry End-of-Year Recap

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Recent years have moved technology deeply into the day-to-day of nearly every culture. We've asked some key influencers in the MultiValue world to talk about how they moved their products forward in 2018. They also talked to us about where they'll be focusing in 2019.

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