Regular Internet providers are being put under increasing pressure for not doing enough to curb copyright infringement.
Music rights company BMG got the ball rolling a few years ago when it won its piracy liability lawsuit against Cox Communications.
The ISP was ordered to pay $25 million in damages and another $8 million in legal fees. Hoping to escape this judgment, the company filed an appeal, but the case was eventually settled with Cox agreeing to pay an undisclosed but substantial settlement amount.
The landmark case signaled the start of many similar lawsuits against a variety of ISPs, several of which are still ongoing. In fact, just days after the settlement was announced, Cox was sued again, this time by a group of RIAA-affiliated music companies.
In simple terms, the crux of the case is whether Cox did enough stop pirating subscribers. While the ISP did have the policy to disconnect repeat infringers, the music companies argue that this wasn't sufficient.
Over the past several months, both parties have conducted discovery and they are currently gearing up for a jury trial which is scheduled for December.
Most recently, both parties have presented their motions in limine, requesting the court to exclude certain testimony from being presented to the jury. This is typically material they see as irrelevant, misleading, or confusing.
One of the music companies' motions focuses on a document (DX 74) Cox wants to present which indicates that the ISP's own graduated response system worked pretty well.
Apparently, internal Cox research showed that 96% of subscribers stop receiving notices after the 5th warning. This was concluded in 2010 and resulted in the ISP's belief that its "graduated response" system was effective.
The number was also brought up to the plaintiffs, as it was mentioned during the Copyright Alert System negotiations. Cox says that it chose not to join this voluntary piracy notice agreement because it already had a functional anti-piracy system in place.
The music companies don't want this evidence to be shown to the jury. In a reply to Cox's objections, they argue that the facts and figures in the document are a confusing mess of misleading calculations that lack data to support them.
The reply, which also rebuts other issues, is aggressively worded and redacts the 96% figure at the center of the dispute.
"The mere utterance of the so-called 'study' and its misleading and unsupported conclusion will lend it an air of credibility in the jury's mind. The proverbial bell cannot be un-rung. The only adequate solution is exclusion," the music companies write.
Cox has also submitted a variety of motions in limine. Among other things, the ISP doesn't want the plaintiffs to present the millions of infringement notices tracking company MarkMonitor sent to Cox on behalf of other rightsholders.
The music companies disagree, however, arguing that the jury is allowed to know that potential copyright infringements are not limited to their own complaints. The other notices are also relevant to determine crucial issues such as liability, willfulness, and statutory damages, they add.
According to Cox, however, these third-party infringements notices are irrelevant to the present case and don't prove anything.
"Plaintiffs' attempt to litigate this case with evidence from an unrelated case concerning acts of infringement that are not at issue is inappropriate, improper, and prejudicial. Plaintiffs' evidence of third-party infringement allegations should be excluded from trial."
The docket is littered with back and forths on issues one party wants to exclude while being considered vital evidence by the other. This process is generally the last major clash before the trial starts.
The court has yet to rule on the various motions. When that is done the case will move forward. If all goes according to the current schedule, the verdict will be announced in a few weeks.
While music piracy has reduced in recent years due to the popularity of platforms such as Spotify, the major labels remain highly concerned over so-called steam-ripping services.
These sites allow users to enter a YouTube URL, for example, and then download audio from the corresponding video, mostly in MP3 format. This means that users can download music and store it on their own machines, negating the need to revisit YouTube for the same content. This, the major labels say, deprives content creators of streaming revenue.
Tackling this issue has become one of the industry's highest anti-piracy priorities. Previously, YouTube-MP3 – the largest ripping site at the time – was shut down following legal action by the major labels. Since then, lawsuits have been filed against other platforms but the battle is far from over and recently a new strategy appears to have been deployed.
A pair of DMCA notices appeared on the Lumen Database late October, having been filed there by Google. The sender of both notices is listed as the RIAA, acting on behalf of its members including Universal Music Group, Sony Music Entertainment, and Warner Music Group.
They are worded slightly differently but each target the homepages of five major YouTube-ripping sites – 2conv.com, flvto.biz, y2mate.com, yout.com, and youtubeconverter.io. Both contain the following key claim:
"To our knowledge, the URLs provide access to a service (and/or software) that circumvents YouTube's rolling cipher, a technical protection measure, that protects our members' works on YouTube from unauthorized copying/downloading," the notices read.
Unlike regular DMCA takedown notices filed with Google, these notices do not appear in Google's Transparency report. However, Google has acted on them by delisting the homepages of all five platforms from its search results. Other URLs for the platforms still appear, but their homepages are all gone.
The notices are listed on the Lumen Database in the anti-circumvention section, meaning that the RIAA-labeled complaints demand action from Google under the anti-circumvention provisions of the DMCA, rather than demanding the takedown of URLs based on the claim they carry infringing music titles.
The 'technical measures' allegedly being circumvented (such as the "rolling cypher" referenced in the complaints) are those put in place by YouTube, which in turn protect the copyrighted content of the labels.
TorrentFreak contacted the RIAA yesterday, requesting comment and seeking additional information on the basis for the notices. Unfortunately, the industry group declined to make any further comment on any aspect of the complaints.
Nevertheless, the RIAA and its members are no strangers to the claim that by circumventing YouTube's 'technological measures', so-called 'ripping' sites infringe their rights too. Two of the sites targeted in the recent notices – 2conv.com and flvto.biz – were sued by the labels in 2018. The original complaint contains the following text:
From the complaint
That circumvention (at least in respect of the labels' works when users select them for download) may also amount to an infringement of the labels' rights seems to be supported by comments made in the Disney vs VidAngel case.
An opinion from the Court of Appeals for the Ninth Circuit stated that "[n]o person shall circumvent a technological measure that effectively controls access to a [copyrighted] work. Circumvention means 'to decrypt an encrypted work.. without the authority of the copyright owner'."
Nevertheless, it was previously argued by the EFF that stream-ripping sites are not by definition illegal since on top of the usual fair use exemptions, some creators who upload their content to online platforms grant permission for people to freely download and modify their work.
"There exists a vast and growing volume of online video that is licensed for free downloading and modification, or contains audio tracks that are not subject to copyright," the EFF stresses.
"Moreover, many audio extractions qualify as non-infringing fair uses under copyright. Providing a service that is capable of extracting audio tracks for these lawful purposes is itself lawful, even if some users infringe."
The anti-circumvention notices detailed above are not only relatively rare but also have an additional interesting property – they are harder to dispute than regular DMCA takedown notices.
As detailed here last year, Google told the target of a similar complaint requesting URL delisting that "There is no formal counter notification process available under US law for circumvention, so we have not reinstated these URLs."
The pair of DMCA anti-circumvention notices can be found here 1,2 (pdf)
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