The DMCA Take Down Notice And Copyright Trolls

Recently a defense filing in the Southern District of Indiana (case 1:12-cv-00845, Malibu Media LLC v. 29 Defendants (some named)), was brought to my attention (Thanks Raul!).  The filing was a Reply In Support of Motion to Require Plaintiff to Post a Bond for Costs and Expenses.   ReplyBond_MM_00845(IN)      Case Docket

It is a well written reply by Paul B. Overhauser.  It is well worth reading and makes great use of documents and statements by Plaintiff (Malibu Media/Colette Field) to show why Plaintiff should be required to post a $500K bond to proceed with the case.  I don’t know if they will get that amount, but I would expect some sort of bond to be approved by the court based on this filing.

The part in this filing that caught my eye was section “C.   Malibu Fails to Consider Utilization Of DCMA Take Down Notices” (page 4).  DMCA is the Digital Millennium Copyright Act of 1998.  This a point I have repeatedly mentioned as being highly indicative that Plaintiffs and Copyright Trolls are not taking the reasonable steps to try to stop copyright infringement.  The reason I believe they do not use this simple legal measure is that it would negatively impact their business model of generating settlements on a repeatable basis.  Here is what Mr. Overhauser had to tell the court.

At PgID 1241, Malibu claims that its porn movies are being copied on the Internet, stating, “Plaintiff has no other way to make the infringement stop and seek recourse for its losses than to bring a suit like the one before this court.”  (sic) Malibu does not cite authority for the Proposition that the availability of alternate remedies is a factor that should be considered in requiring a Plaintiff to post bond. However, it is wrong in asserting that it has no other remedies.

Since 1998 the Copyright Act has provided a regime to “make the infringement stop,” and it is what all the major movie studios use.  When an Internet site is believed to be hosting infringing content, a copyright owner may simply issue a “DCMA Take Down Notice” to the Internet Service Provider or hosting company pursuant to 17 USC §512.  This does not require a lawsuit or subpoena, and is far more efficient than hiring an army of lawyers to file 866 separate lawsuits across the country.

In the PA Bellwether trial, Colette Field, Malibu Media (X-Art), stated they DO send DMCA take-down notices to the Internet Search Engines (i.e Google, Bing, etc.) to remove links to sites that host or supply BitTorrent links Plaintiff’s movies.  What Malibu Media DOES NOT do is send DMCA take-down notices to the Interne t Service Providers (ISP), who are the registered owners for the public IP address recorded by IPP Limited during their technical monitoring.  So it appears Malibu Media will use the DMCA take-down notices, so there must be some benefit to them.

DMCA_Cat1A key provision of the DMCA is a “safe harbor” provision to protect various types of service providers (Web hosts, Caching services, ISPs, Internet Search Engines) from liability, as long as they meet certain requirements and follow the rules.  Without the “safe harbor” provision, Internet search engines, ISPs, and sites like YouTube would be too risky to run from a legal liability stand point.

How Does This Apply To The ISPs And BitTorrent Copyright Infringement Cases?

After a Plaintiff identifies what public IP addresses are allegedly downloading/sharing their content, they do a “Who Is” look-up (example http://whois.domaintools.com/) to determine who is the registered owner of the IP address, as well as the general physical location of it.  They sort the results by State and Federal court jurisdiction and by the ISPs (i.e. Comcast, Cox Communications, etc.) who is the owner.  MM_ISP1

The Troll knows the ISP has subscribers who pay a monthly fee for Internet access and are issued a public IP address from their net-block (available IP addresses).  The troll then opens up a Federal Copyright Infringement case and asks the court to issue a subpoena to obtain the contact information for the ISP subscriber who was issued the public IP address their technical monitoring identified as being the infringer.

The DMCA clearly states the safe harbor provisions only protects the ISPs if they take steps to remove the offending media.  As an alleged BitTorrent client is using the identified public IP address to download/share the protected media, the DMCA take-down notice applies here.  The offending media is hosted by the ISP via the ISP subscriber.

Now the ISPs are in this business to make money.  By ignoring DMCA take-down notices they open themselves up to possible legal actions (copyright infringement – up to $150K damages, etc.) for each instances they do not comply with the rules.  That is why so many Web sites and ISPs have such a knee-jerk reaction to DMCA take-down notices sent to them.  Once an ISP gets a notice, they are required to first make sure it is a complete notice and then either remove it or disable access to the infringing work.  For BitTorrent Copyright Infringement claims, this usually just means the ISP forwards the notice to the subscriber along with a reminder of the acceptable policy they signed and a warning that they need to stop this activity.  The ISPs could suspend Internet access of the account, but I have only heard of this in the very worst cases.  As most of the Trolls do not send out the notices, the ISPs are not held responsible for policing their users.

The use of the DMCA take-down notices would be such an easy task to make the ISPs enforce their acceptable use policy with subscribers and truly act as a deterrent to online copyright infringement.  If an ISP subscriber ignores the notices and the activity continues, the Plaintiff is going to have the ISP records to show this in any legal proceedings.  Copyright Troll Lipscomb (my opinion) has deposed Does and asked them if they received DMCA notices in the past – so such information is clearly of value to their cases.  If the activity continues, the ISP can suspend Internet access and thus stops the continued copyright infringement.  Even if it is determined an ISP subscribers Internet Access was hacked, the service suspension would stop the infringement and force a securing of the device/network.  Yes, having a suspension of service would suck for the user, but it would stop the activity.  This goes to show that the DMCA take-down notices can work.  No, they are not perfect – but at least the Plaintiff would be trying to use the available legal measures to minimize the infringement.

I hope other attorneys use this line of thought in their pleadings.  I don’t think it will stop the copyright trolls, but it could actually have a preventive effect – in terms of reducing copyright infringement and copyright trolling as a business model.

DieTrollDie 🙂

DMCA Take-Down 101

17 USC § 512 – Limitations on liability relating to material online

About DieTrollDie

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link - http://www.eff.org/issues/copyright-trolls
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18 Responses to The DMCA Take Down Notice And Copyright Trolls

  1. DMCA Takedown notices help, but what the anti-troll advocates fail to understand is that there is a significant cost to the DMCA notice and take-down process. Further, the persons responsible for posting the copyrighted materials have the right to object to the take-down and they often do so to protect themselves from retaliation by their ISP. It is costly for the copyright owner to deal with the various legal issues involved in sending out take-down notices (which must be written in appropriate legal form) and dealing with the inevitable objections thereto. More generally, copyright enforcement is expensive and needs to be funded. I see nothing wrong with suits by copyright owners and their attorneys for statutory damages against the individuals who control IP addresses responsible for infringement. The Pa. Bellwether trial convinces me that most of these suits have legal and factual merit. Further, such suits are necessary to cover the costs of copyright infringement enforcement programs, which are extensive. Why should the copyright owner be saddled with these costs—the infringers are wrongdoers who should pay. The problem with some of these cases has been that some of the lawyers for plaintiffs have not behaved ethically, but that certainly was not true int he PA Bellwether Case—in fact, it was the anti-troll advocates and the parties to that case who were caught behaving badly.

    • DieTrollDie says:

      I would really be interested in finding out some details on the costs CEG-TEK incurs with their automatic DMCA notice/settlement emails. For CEG-TEK to only seek $200 per infringement, the costs for monitoring and sending out the notices cannot be that much. I think Malibu Media has enough funds to cover the costs of DMCA notices. Plus the pay off in making a deterrent effect (something Malibu Media claims it wants) is well worth it. This doesn’t mean MM could not still go after the serious offenders, or better yet their subscribers who are the original uploaders of the movies via BT. Having DMCA notices also give more evidence to Plaintiffs. As far as DMCA appeals, I haven’t heard of any CEG-TEK DMCA notice recipients who have filed appeals, but it is a possibility – however unlikely. As majority of the DMCA notice are only warnings to the ISP subscriber, I cannot see much of an appeal. I think those subscribers who are truly innocent should be given the chance to respond to such a notice and not automatically labeled as an infringer out of convenience for the Plaintiff/Troll (Shotgun approach). For the PA Bellwether case, the defendants (not the anti-troll advocates) were at fault and acted badly, but as the old saying goes “The ends do not justify the means.” The only reason Malibu Media/Lipscomb even made it to the Bellwether was because they were forced it. This came about because our community brought to light their questionable actions. I’m sure we have plenty of people here who can point out specific instance of Malibu Media/Lipscomb behaving questionably. The fact that copyright infringement happens does not (IMO) justify their business model.

      DTD 🙂

    • FormerDoe says:

      “I see nothing wrong with suits by copyright owners and their attorneys for statutory damages against the individuals who control IP addresses responsible for infringement.”

      No moral issues at all with threatening people with financial ruin for downloading a couple of movies (at $150k per infringement) and thus being able to extract a fear-based “settlement” of thousands of dollars? I also think there is also much to argue about the infringement = lost sales assumption you are making (and thus this money is “owed” to the copyright holders one way or another, even if it is at a sharp price to the infringers sued. See the many articles about this pertaining to Game of Thrones). It’s not that I necessarily disagree with you about compensating copyright owners, but unfortunately there isn’t a copyright small claims court– this I would have no problem with. Until then, it’s immoral to bring the sledgehammer of the Copyright Act down on individuals in the manner that trolls do.

      I’m not sure I understand why the DMCA notices are costly because they “must be written in appropriate legal form”. Once you’ve filled out a few it seems like a minor thing to have change the details for each notice.

      • Doubting Doe says:

        It is a boiler plate. Fill in the blanks. But we all know how lawyers want to charge for some clerk doing all that hard legal work.

    • that anonymous coward says:

      ” but what the anti-troll advocates fail to understand is that there is a significant cost to the DMCA notice and take-down process. ”

      I’m sorry your exclusive rights to the material for more than a human life time might cost you money. I’m sorry that the entire content production industry expects everyone else to pay their way. I’m sorry that awarding upto $150K isn’t enough motivation.

      My rent is to high, which content producer is going to pay my way?
      My car insurance is to high, which content producer should foot the bill?

      What was seen in the Bellwether case was 1 person who made decisions that were, in a word, dumb. But feel free to blame that on everyone else who questions the trolls operations.

      Copyright needs to be funded by the people benefiting from it, as material will not go into the public domain (which was the trade off to those exclusive rights being granted by the public) until my great great grand children are adults (barring any Mickey Mouse extensions again).

      Takedown notices cost to much because the industry refuses to work together to streamline the system. They all need to use it and they are using various services of varying quality. They accept companies who send out notices demanding that content be removed from clients property as being infringing…. and they are still getting paid. I’ve read bunches of the notices, they are form letters populated with lists of material not legal documents reviewed by a lawyer… because no content producer has ever faced perjury charges for lying, even if you can find oodles of notices that are defective or being used to removed critical commentary rather than content.

      In industries without handouts they would apply pressure to get better service at better prices. But there is no reason to do this so that “its expensive” can be a shield to actually doing what the law requires. ‘Piracy’ isn’t about stealing all of these imaginary dollars the companies dream of, it is a symptom of failing to respond to the market. The first home kitchen stand mixer cost thousands in todays dollars, it looks like they managed to get that price down some. Maybe its time for the content producers to accept that what they made in the past isn’t the same number they can make today. That there is competition and if they want to compete they need to actually compete and not place the blame outside of themselves.

      But then you think I’m a stupid advocate, so my response is go F yourself idiot.

    • Andrew Tandrew says:

      If these suits are a necessary evil – to Mr. Ross, merely necessary and overturning a man’s life for watching a movie using the wrong program isn’t evil – to protect content, why are they only utilized by a few multiply sanctioned dregs of the legal community representing a handful of indie film companies and pornographers? What do they know that reputable firms and content producers don’t?

      My opinion is that they know that using the law like this, legal and factual that it may be, is ethically disgusting and having anything to do with it would go over like a dead baby with the buying public when they found out about it. As such, entities with any visibility or branding value don’t even have the option. The RIAA stopped their suits for a reason.

      We don’t cut off shoplifter’s hands in this country. A loophole in a pre-internet law isn’t a reason to start.

    • Scytale says:

      “there is a significant cost to the DMCA notice and take-down process. ”

      I am sorry but this line of argument does not appear to hold weight. Google reports that 17 million DCMA notices were posted in the last 30 days. Yes, 17 million!

      http://www.google.com/transparencyreport/removals/copyright/

    • Rumplestein says:

      @Maurice, You are an embarrassment to the legal profession. Even the Judge in the PA Bellwehter case, who saw a great deal more than you, could reach no judgments about these type of cases, except that joinder is improper when BitTorrent protocol was used. In the Bellwether case, only one side was presented in a bench trial, uncontested and with no cross examination. This case is insufficient for any lawyer or judge to start claiming hundred of thousand of Does are guilty. Shame on you!

    • indoemitable says:

      “The Pa. Bellwether trial convinces me that most of these suits have legal and factual merit.”

      So countless people getting wrongly accused isn’t convincing you that plaintiff abuse is occurring, but one trial convinces you that this needs to continue?

      How’s that record label working out for you, Sorry Morry?

  2. OngChotwI says:

    “There is a significant cost”.. “copyright enforcement is expensive” This reminds me of certain lines in Antony and Cleopatra (which I assume are now public domain) and the many ways you can describe a crocodile.
    What manner o’ thing is your crocodile?

    It is shaped, sir, like itself; and it is as broad
    as it hath breadth: it is just so high as it is,
    and moves with its own organs: it lives by that
    which nourisheth it; and the elements once out of
    it, it transmigrates. .. etc.

    Yes, it’s more expensive per person than paying $450 to file a case in federal courts, getting a subpoena for 5000 John/Jane Does, getting their contact information, sending what sounds like extortion letters to all, and sitting back to collect the payments. (Since the payments won’t be coming back.) What’s the cost of DMCAs being used on 5000 John Does on ~20 different ISPs?

    How does this “significant cost” for DMCA use compare (per person) to taking a single John Doe to Federal Court?

    • John Doe says:

      $10/month for unlimited “DIY” DMCA takedowns using this service:
      http://www.dmca.com/Takedowns.aspx

      Seems pretty cheap to me.

    • DieTrollDie says:

      The Madison-St. Clair Record News article showing in addition, the Troll is going to have to pay Comcast $90K (Can ID the subscriber) or $30 (Cannot ID the subscriber) for each IP look-up associated with a subpoena. *** Note – it is funny that Comcast states Prenda has not paid them for work they have done IAW the subpoenas. ***

      Simple experiment – 1000 Comcast Does will cost between $30K and $90, depending on how many IP addresses cannot be resolved to an ISP subscriber.

      Starting to look like the DMCA take-down notice is cheaper.

      DTD 🙂

      • JustAnotherDoe says:

        Not to mention the individual $350 filing charge when does 2-1000 are severed, if plaintiff chooses to sue each of them

  3. Jazzy Hands says:

    DTD,

    IMHO, IP Monetization/Copyright Trolling will be business as usual as long our antiquated laws hold alleged infringers to a possible $150K damages award and lawyers are willing to prosecute these cases under contingency agreements.

    The “copyright trolling” problem is supported by three-headed hydra: high federal litigation expenses, stigma associated with consuming pornography, and the lack of a bifurcated infringement liability.

    A partial solution to copyright trolling phenomena — a small claims court for Intellectual Property matters to address high federal litigation expense — is being explored by U.S. Copyright Office, but more needs to be done.

    Some stopgap measures I have seen include: requiring DMCA takedown notices before judges allow expedited discovery, limiting consumer infringement damages to greater amount of $100 or 4X the product’s/competitor’s street value, keeping Does anonymous until formal discovery has begun in litigation, assigning Does a guardian ad litem representation in mass infringement/conspiracy cases.

    Ultimately, as long as these cases remain profitable, they will be pursued. I am of similar mind with attorney Rob Cashman, that lobbying Congress for change should be our community’s approach on the reform side of things.

  4. InnocentBystander says:

    There is significant cost in monitoring the bittorrent stream. However, that cost exists for a “lawsuit happy” producer whether they send a DMCA notice or not. The reality is that sending a DMCA notice will warn a potential “mark” that they’ve been hooked and they may STOP the infringing from their connection. If your goal is to limit infringement, this is the proper action. Refusing to send DMCA notices makes it appear that the goal is to monitor that “mark” to see how many more titles they will infringe for the purpose of larger settlements, Same goes with watermarking your site streams so you can identify which of your subscribers is uploading your product to bittorrent in the first place. Doing so would have some cost, but it would be very effective in controlling any loss of sales. If however, lawsuit settlements are your primary revenue concern, then you would continue to allow your subscribers to upload to bittorrent. It appears a shade less sketchy than uploading it yourself. In my opinion, somewhere along the line the principle business for some of these pornographers went from selling pornography, to suing. They won’t do anything to upset that business, including trying to actually stop infringement.

  5. DieTrollDie says:

    Just in case you didn’t get a chance to read this, please check out the article by Robert Cashman concerning $20 DMCA Settlement Letter/Emails from “Rightscorp, Inc.” – Is the MPAA giant waking up and luring defendants through their $20 DMCA settlement letters?
    DTD 🙂

  6. DieTrollDie says:

    Torrent Freak Article – “DMCA Abuses: The Middle Finger, MPAA and EFF in Court” – http://torrentfreak.com/dmca-abuses-the-middle-finger-mpaa-and-eff-in-court-130702/

    Amicus Brief (EFF & DMLP) – http://wp.me/a1OhOw-1mB
    Amicus Brief (MPAA) – http://wp.me/a1OhOw-1mA

    DTD 🙂

  7. Al says:

    This is all BS. Do you know how much a mambership is to the X-ART web site is. $100 for a year, of downloading anything and everything. So these lawsuits are just to get money, lots of money from the unsuspected suckers.

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