Copyright Going Insane — How The Fight Between the Online Content Providers (ISPs) and TV Networks Are Affecting Our Bittorrent Piracy Lawsuits

I am always hesitant to write articles which are not relevant to the reason you are here. Very simply put, you and I are fighting against the production companies (the “copyright trolls”) who hire Intellectual Property (“IP”) Enforcement Companies and “copyright troll attorney” law firms who turn around and hire local counsel (your “Doug McIntyres, Joseph Pereas, and Mike Meiers” of the world) who sue defendants on behalf of their bosses to shake down internet users (regardless of whether they actually did the bittorrent downloads or not) to extort thousands of dollars “or else they will move forward in a copyright litigation lawsuit against that individual John Doe Defendant.” This is *our* fight.

However, there is a bigger fight looming in the courts, and our so-called “piracy” lawsuits are getting influenced by their headwinds — there is a brewing fight between 1) the CONTENT DISTRIBUTORS (e.g., the cable companies, the ISPs, and streaming content providers such as Netflix, Hulu, and now Amazon Prime), and 2) the CONTENT CREATORS (e.g., the television networks and movie, film, and production companies) who produce the films that the ISPs share with you, sometimes for a fee or a premium membership. Where it is impacting us is the strange and recent “out-of-place” rulings in our cases discussing the applicability of the Cable Act to ISPs. It appears that the judges want the ISPs and the CONTENT DISTRIBUTORS to fall under the Cable Act.

This morning, I read an ArsTechnica article written by New York Law School Professor James Grimmelmann entitled “Why Johnny can’t stream: How video copyright went insane,” which skillfully goes through the recent changes in the evolving application of copyright law from the creation of VHS and VCRs to today’s digital age of DVRs and more recently, Cablevision’s own DVR-RS (remote streaming — “DVRs in the cloud”) technology.

The ultimate issue which everyone is tiptoeing over is simply, “can an internet user download, share, stream, view, or save copyrighted content on their computers (or in their computer’s memory) and not be in violation of the copyright laws?” I suspect the answer will eventually be “yes,” but the law has a lot of catching up to do, and a lot of people like you and me will be sued in the process. This sounds scary, but this is the bigger fight we are in the middle of with our bittorent piracy lawsuits.

In the ArsTechnica article, it appears as if there is a circle of corporate parties fighting to capture the dollar of the internet user. The TV networks create and copyright the movies and the videos they produce, and the cable companies, the ISPs, and the online streaming companies pay extensive licensing fees to the TV networks in order to provide that TV show or that movie to their paying subscribers (and the advertisers who subsidize when subscribers view “free” content). The problem is that as a particular show (in my case, Stargate SG-1 which was pulled from Netflix a few weeks ago without explanation) gets popular, more people view and subscribe to the cable companies’ and online streaming companies’ websites to view the film. The problem is that as shows get more popular and the content distributors make more money from their subscriptions and their advertisers, the TV networks and content creators increase the licensing fees they demand from the cable companies and online streaming companies to erase their profits (and quite often to grossly unfair amounts). As a result, the cable companies and online streaming companies simply pull the show from the list of shows they offer their subscribers, and everyone loses. No TV show is being shown, the online content providers lose subscribers who go elsewhere, the advertisers don’t pay their advertising dollars (products that would be shown in the ads do not get sold) and the TV networks lost their licensing fees. Quite frankly, it is my opinion that this is where piracy kicks in, where users share with others shows that they cannot find online through normal streams of commerce without an outright purchase of a particular season at retail prices — in other words, the internet user loses as well.

In my opinion, the ArsTechnica article is more than a history lesson on copyright as its application to the everyday viewer has evolved over the years as the internet and technology has advanced, but it also discusses the absurdity of the “hoops” that cable companies and other start-ups are jumping through in order to be in strict compliance with the draconian copyright laws. Really? 10,000 tiny antennas so that a cable company does not infringe a TV network’s copyright [when ONE ANTENNA would serve exponentially more viewers at a dramatically LOWER COST to both the cable company AND the viewer]? This is where the laws are interfering with technology (think eating wet glue), and I have a problem with this.

As to the applicability of the cable companies (the “cable operators”) and the internet service providers (“ISPs”), I understand that these smaller-case Cable Act rulings in our cases have nothing to do with our problem, but with the fight between the cable companies, the ISPs, and the television networks. Cable companies have clear regulations as to where they fit within the Cable Act and the FCC’s rules. ISPs however are not so clear, and the water gets muddied when one skilled in telecommunications law compares the rules governing an ISP run by a cable company (e.g., Cablevision, or Xfinity run by Comcast, or Roadrunner run by Time Warner Cable, etc.) and the rules governing an ISP which provides their DSL, satellite (e.g., Dish Network), or fiber optic (e.g., Verizon “Fios”) who use means to allow users to view content other than through a coaxial cable. THE RELEVANCE OF THIS WHOLE FIGHT APPEARS TO BE OVER THE EVER-SKYROCKETING LICENSING FEES PAID TO THE TELEVISION NETWORKS, AND THE CABLE COMPANIES AND ISPs WHO ARE TRYING TO FIND WAYS NOT TO PAY THEM.

I understand that this should help you understand the headwinds which are affecting our cases, and while it is not relevant to the outcome of whether Hard Drive Productions, Inc. or West Coast Productions, Inc. sues thousands of internet users, or whether Malibu Media, LLC (a.k.a., “x-art”) has an unfair strategy in hooking internet users who download one torrent file (a bittorrent “siterip”) and are sued for twenty copyrighted films (even though they probably never downloaded them all in their entirety), it is still interesting to know that judges adjudicating the fight between the television networks and the ISPs are using our small lawsuits to plant case law which I suspect in the coming months and years will become relevant in the fight over licensing fees and which content provider has to pay them.


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3 thoughts on “Copyright Going Insane — How The Fight Between the Online Content Providers (ISPs) and TV Networks Are Affecting Our Bittorrent Piracy Lawsuits”

  1. I think the biggest enemy to the television networks, movie, film, and production companies, are themselves. They think everything they make is a masterpiece. They want money and lots of it. They have no clue that society likes what they like. Who wants to go to a movie theater and pay $20 for a ticket, just to have the movie suck? The movies the last several years aren’t really worth anything. They don’t know how to make good movies anymore. Some TV shows, are OK. But a lot tend to get canceled because people don’t like them. So, a loss of money. Porn…. they over price their DVD’s way too much.

    Money is important to a lot of people these days. If someone can find new content online, or something they haven’t seen in many years because it’s unavailable, they are gonna download it for free (because it’s there) or, use netflix. Piracy is not as BIG as they claim it to be. It’s just an excuse these people have for making crappy content. I’m sure many people would agree.

    1. I am also a believer in markets, and if the production companies and television networks made good content, people would pay for it. Piracy in my opinion is the result of mismanagement by making films 1) not available, and 2) improperly priced. I believe that Amazon and Apple are onto something with their $1.99 purchases, but it is merely a step in the right direction, not the solution. That being said, I am happy for markets to properly price products, and I am happy for technology which can be used to send a message when product availability or cost is not properly set.

      1. iTunes and Amazon have effectively killed music piracy and revolutionized the music industry. At least compared to the level during the whole Napster era, although it still does occur but it’s isolated to “pirate communities” and not on a wholesale level where people could just download a program and run a search, click a button, and they have what they want. People wanted one song, not 12 crappy songs and one good one…that was a record company tactic to put out albums with one good song and 12 songs that make people wanna puncture their eardrums. Can’t pull that off anymore.

        Also, I fail to see how piracy has injured these porn producers. Especially when I managed to pull the pornographers’ home addresses, run a little Google Maps and Google Earth magic and see a nicer house than mine with a giant pool in the backyard and a nice boat sitting in the driveway. These people have nicer homes than some of the partners at my firm as well as most of the surgeons and other MDs that I know.

        One has to ask, why are these pornographers filing suit now? They’ve had their content pirated for years. They weren’t losing money then but they are now? The male population isn’t getting any smaller. Maybe if they priced their content reasonably (as in not what it’s priced at now) then they wouldn’t have a problem with piracy, or not as much of one as they claim to have now (which I believe is a load of BS).

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