These old cases keep creeping back up on us, and I am quite frankly dumbfounded that they are still alive so many months later. In the Openmind Solutions, Inc. v. Does 1-565 (Case No. 1:11-cv-01883) case in the District of Columbia, Judge Facciola brought back to life what was a stale, dormant case by answering an unanswered question of whether it would violate the Cable Act if Cablevision complied with the subpoenas and shared subscriber information with the copyright trolls.
Cablevision’s argument resembled a failed argument which I posted on my blog in May, 2011 for literally a day before puling it from the website.
[FOR PURPOSES OF CLARITY, I was writing two years ago about whether you can sue an ISP based on the Cable Act. Then, I was referring to subsection (f) of the statute; here, Cablevision is referring to subsection (c) of the statute, asserting that the “checklist” of requirements under the Cable Act was not met and thus the subpoena was defective and they didn’t have to comply.]
More than two years ago, I wrote an article entitled “How an attorney can sue an ISP for disclosing a subscriber’s information“. In that article, I stated that a John Doe Defendant could possibly sue his ISP for violating the Cable Communications Policy Act of 1984 (better known as the “Cable Act”). Shortly after writing the article, however, I did further research into the matter and I found that there was a significant amount of case law which held that this statute DID NOT APPLY TO ISPs. Apparently, however, I am not the only attorney who stumbled upon this statute.
In the Openmind Solutions, Inc. v. Does 1-565 case, Cablevision asserted that according to the Cable Act (47 U.S.C. §551(c)(2)(B)), they would violate the statute if they complied with the subpoena issued to it (which makes me wonder why they have been complying in other cases since). On Friday, Judge Facciola disagreed simply because regardless of what the Cable Act says, the Federal Rules of Civil Procedure (“FRCP”) simply gives the court the power to force the ISPs to comply with the subpoenas, and the Cable Act is irrelevant to the issue. (Personal note: A judge can’t throw away a statute that conflicts with the rules! They must address the law and explain why it DOES or DOES NOT apply to the circumstances. They can’t ignore it and pretend the statute is not there!)
In short, the last time I took a look at this argument, I came to the conclusion that it was a very muddy issue. Anyone who wants to have a crack at this, please feel free to comment. I’m merely posting this article so that you understand what argument Cablevision was trying to assert, and why Judge Facciola ruled against it.
Once again, I feel that Judge Facciola didn’t properly address the issue of whether the Cable Act applied to copyright infringement statutes (and particularly to these bittorrent cases where his court has been ruling that John Doe defendants do not have standing to file motions to quash until they are “named” as defendants). In my opinion, Cablevision brought before the court the Cable Act statute, specifically, “47 USC §551 – Protection of subscriber privacy,” subsection “(c) Disclosure of personally identifiable information.” I keep asking myself, “how in the world does this NOT apply to our cases?!? (and if this does not apply, what statute does apply?)” EVEN THE CABLEVISION ISP ITSELF (a cable company) THOUGHT IT APPLIED TO THEM!
In sum, Cablevision brought before the court an issue — “how can I comply with the Federal Rules of Civil Procedure when this statute prohibits me from doing so?” At the very least, Judge Facciola should have ruled on whether the statute applies to these cases because instead, he said, “assuming it does apply, here’s why your argument is wrong.” My question is immediately, “assuming it does apply?!?” WHAT?!? WHAT ABOUT ALL THESE OTHER PARTS OF THE STATUTE? DO THEY APPLY TO ISPs TOO?
As a result of this ruling, Judge Facciola has reopened a copyright troll case that until now was pretty much in a coma. As far as this Openmind Solutions, Inc. case is concerned, expect now to start getting subpoenas from Prenda Law Inc. because once again, Judge Facciola has sided with the copyright trolls and has let the extortion scheme continue.
…And as far as the Cable Act and 47 USC § 551? Judge Facciola has just opened up a can of worms.
[For those of you who want to read the statute on your own, it can be found at http://www.law.cornell.edu/uscode/text/47/551 ]As far as the two documents which caused this mess, the original motion requesting that the judge rule on Cablevision’s motion applying the Cable Act to bittorrent lawsuits can be found here.
And, Judge Facciola’s ruling (the subject of this article) can be found here.
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I’ve gone over the Cable Act top to bottom and side to side so many times my head was spinning, then compared it with the SCA and the ECPA. In my opinion, and IANAL, the Cable Act does not cover broadband cable internet providers, nor does it cover DSL or dialup. Specifically, 551(2)(c)(ii), “provides any wire or radio communications service.” That’s ambiguous.
I’ve gone over much case law and determined Facciola is either lazy or has had a stroke because this is the second dicked up ruling he’s issued. Disregarding case law and “assuming” that it’s applicable? Judges don’t assume.
Some case law and regulatory rulings:
– Klimas v. Comcast, cable modems do not fall under 551(a)(2)(C)(ii))
– FCC Declaratory Ruling of 2002, which took cable modems out of the scope of the Cable Act of 1984, cable modems reclassified, then the Ninth Circuit reclassified the previous ruling, then SCOTUS reversed and remanded
– Nat’l Cable & Telecomms.Ass’n v. Brand X Internet Servs, SCOTUS decided that definition is too vague and that broadband services are classified as “information services therefore falling under Title I of the Telecommunictions Act
– Comcast v. FCC, shooting down the FCC’s argument that it has ancillary authority over…a bunch of stuff
– FCC reclassification of DSL from Title II to Title I (NOT VI) in 2005
The FCC could reclassify under Title III, but good luck. Or Title II but I doubt that’d fly either. Bottom line, broadband internet services (especially cable) do not fall under the Cable Act. The Cable Act was designed for TV, not for technology that did not even exist at the time the law was passed.
> The Cable Act was designed for TV, not for technology that did not even exist at the time the law was passed.
I had the same conversation this afternoon. It was physically impossible to anticipate the internet when the 1984 act was written because the “internet” did not yet exist in its current form.
On an unrelated note, I enjoyed your comment because I had almost the identical experience almost two years ago — I still have a headache thinking about it. And, as soon as I saw Friday’s order, I said, “Oh no. Here we go again.”
And Facciola just makes the assumption that the Cable Act applies, which I do not believe it does and neither does the FCC. This is the type of issue that needs to either be decided by a higher court or legislated, but no district judge or judge at any level of our court system should “assume” that a particular law applies. He obviously didn’t want to rule on the scope of the Cable Act so he tip-toed around it but created a big problem in the process.
He’s been making some really strange rulings lately. First he directly contradicted himself in the Hard Drive v. Does 1-1495 case (after a loooong vacation…probably one of those taxpayer funded trips to Hawaii) and now this ruling which is just completely messed up.
Rob, you didn’t post the text of the Order, but:
sec. 551(c)(2)(B) permits disclosure per Court Order so long as notice is given to the subscriber. This differs from other privacy statutes, like HIPAA, which only permits disclosure upon notice AND OPPORTUNITY TO OBJECT.
Thus, so long as the copyright troll had an order permitting such use of a subpoena, which it must have to obtain early discovery anyhow, all Cablevision needs to do is tell the subscriber at the time of, or prior to, disclosure.
The judge did not need to address whether the statute applies–courts do that all the time to avoid other tricky issues. The court would only have needed to address whether the statute applies if it found that the FRCP did conflict with the act.
Jay, the copyright trolls did have an order permitting the use of the subpoena, and this was Judge Facciola’s point. What bugged me was the “assuming the Cable Act applies” argument… I do not think Facciola should have opened that door by stating “this district has not determined whether the Cable Act applies to ISPs,” because now lawyers will be combing the statutes trying to find reason why they DO. Cablevision’s point was that the FRCP *did* conflict with the Cable Act. Judge Facciola simply stated that the prongs of the Cable act were satisfied (assuming they applied), and that FRCP alone ruled even if there was a conflict.
Last point. The reason I deleted the post in the first place — applying the Cable Act to internet transactions to sue ISPs was a murky and muddy proposition, and it wasn’t supported by the case law in most districts that have ruled on the issue. I was looking for a remedy for the accused defendants 1) who were not winning the “motion to quash” fight, and 2) were having their personal information handed over to unscrupulous individuals who called them at their homes, their work, and threatened them in ways a creditor would not even be allowed to when collecting a valid debt.
There is no reason so many people should be allowed to be dragged into court and forced to protect themselves when we are more than two years into this mass extortion scheme that is replicated by new attorneys every day. Someone needs to step in and shut these down. I was simply looking for a way to “influence” the ISPs to file motions to quash on behalf of their subscribers or face a $1,000 lawsuit from their attorneys (not much, but having a few of these [and the threat of a few more] minimizes the $45 per-ip-lookup they receive from the trolls).
PS – I attached the documents as you requested. 😉
Rob, thanks.
I read the order and I disagree with how you present the issue. As I noted previously, the judge did not need to rule on whether the act applies, because he found that even if it did, the subpoena was proper. As a result, there was no reason for the judge to weigh in, as dicta, whether the act did apply, as that question was not central to its holding. It is common judicial practice to not decide more than is necessary. It is the whole “assuming arguendo” convention we all learned in law school.
If the judge decided the act didn’t apply–then he wouldn’t have done the analysis, there would have been an appeal and, if it were to be found to apply, he would have then done the same analysis to find that there was no conflict. If he found the act did apply, we’d be in the same boat as we are now, only with a court decision actually saying it applied, potentially to be used as precedent (which the judge probably didn’t want).
Presently, the ISP can still appeal, and the appellate court can tackle the question in similar fashion.
Plus, I agree–it doesn’t matter if the act applies. The act has weak protections in the face of litigation. It just requires notice, not an opportunity to object, or other standard like “for good cause shown”.
My pleasure, Jay. I read your response, and as I mentioned before, I find the whole Cable Act argument to be murky. I agree that I don’t think that Judge Facciola was looking to set a precedent on the applicability of the Cable Act, as it is clear from his other rulings that he has no interest in setting up roadblocks to stopping the scheme, and quite frankly, arguing that the Cable Act applies to his copyright infringement cases would go against what I understand to be his agenda.
I would be VERY surprised if Cablevision appealed his order, as they have not asserted this argument in other cases (which makes me think even they didn’t give credence to it). On a more general level — since you mentioned appeal (referring to http://torrentlawyer.wordpress.com/2012/08/10/judge-beryl-howell-creates-a-split-in-the-dc-court/) — I’d like to see the result of the appellate court with regard to DC Judge Beryl Howell’s interlocutory appeal with regard to joinder and jurisdiction, although I suspect they will be limiting their decision to the question of whether it is an undue burden for ISPs to comply with subpoenas issued to them (which means that these cases will continue unhindered). DC will become the new “rocket docket” for copyright infringement cases just as the Eastern District of Texas is the “rocket docket” for patent infringement cases. I really would love to see someone in the appellate court prevent this from happening. It *could* be stopped here.
-Rob
PS – I forgot that DC was your home turf.
Cablevision has raised this Cable Act issue in the EDNY before M.J. Boyle in Malibu Media v. Does 1-10 (12-cv-1146) http://ia601201.us.archive.org/18/items/gov.uscourts.nyed.328090/gov.uscourts.nyed.328090.12.0.pdf Predictably Troll Kotzker points to Facciola’s ruling. http://ia601201.us.archive.org/18/items/gov.uscourts.nyed.328090/gov.uscourts.nyed.328090.12.0.pdf
sorry for the double link, still on my first cup of coffee
Funny how Kotzker intentionally omits the part about “assuming the Cable Act applies” and how Facciola stated that it’s not an issue that’s been visited by the Court.
47 USC 551(f)(1) gives a subscriber the right to pursue civil action against said ISP for refusing to provide subscriber access to what they are handing over to the trolls per 551(d) and consequently be held liable against their erroneous and negligent record keeping. Just some thoughts for those whom want to put up a fight against ISPs that give themselves out.
JD, I appreciate your enthusiasm, but please do more research. The statute is likely NOT as you think (ask @Anon, or read my https://torrentlawyer.com/2011/05/05/statute-might-allow-torrent-defendants-to-sue-their-isps-for-the-release-of-their-information-in-copyright-infringement-lawsuits/ article. I pulled it for a reason.
You are doing exactly what Facciola did in the Open Mind case…assuming. In your case, assuming that the Cable Act does not apply even though you’ve got different district court judges saying it does apply, it doesn’t apply, then the Comcast rulings, FCC rulings, etc. I believe subsection (d) only applies if you put in a request to your provider. They’re not obligated to say “We got a subpoena request, wanna very your personal info?” Let’s assume that broadband providers do not fall under the definition of a “cable operator,” which is a flaccid definition at best. Courts have tiptoed around the subject, especially since if the Cable Act is not applicable to broadband, then all disclosures made under the Cable Act are violations of the ECPA, violating 200k+ peoples’ First Amendment right to privacy, creating MASSIVE legal liability for ISPs. The Cable Act and SCA also contradict one another since broadband services are classified as RCS and ECS under the SCA, so why does the Cable Act apply? Why not the SCA? It’s much much more clear.
Bottom line, it is not a good idea to go off the rails and sue your ISP for violating your First Amendment rights by disclosing personal info, even if your case does have merits. Your provider WILL try to take it to the Supreme Court and you’ll be liable for all costs incurred if you lose at any phase, not to mention accruing massive legal fees over the span of half a decade. My advice, leave well enough alone and just keep fighting the fight the way that it’s been done…make people aware of what’s going on. Informed Does and judges are a troll’s worst enemy.
Basically, the Cable Act either needs to be amended or a higher court must make a ruling as to whether broadband providers qualify under the Cable Act. There also needs to be parity in the treatment of cable and DSL. The FCC keeps flip-flopping, the issue needs to be legislated. That being said, in the Guava case (see SJD’s site), they likely issued subpoenas dialup providers under the Act even though dialup providers are definitely not governed by the Act. I attribute that to an ignorant judge…which is what Duffy loves.
On a side note, Comcast’s own “manual” implicitly cites the SCA as the statute authorizing disclosure of internet subscriber info and the Cable Act as the authorizing statute for disclosure of cable TV subscriber data. Big difference.
http://cryptome.org/isp-spy/comcast-spy.pdf
“Why Johnny can’t stream: How video copyright went insane” ArsTechnica article on why Cable Act is SO VITAL to online streaming and so-called piracy. bit.ly/O5UqoE