Category Archives: Cable Act

Need to rehash some bittorrent concepts because they are just as relevant today as they were five years ago.

In July, 2010, this blog was started to address the at-the-time unknown problem of copyright trolling.  For years, myself and my staff wrote articles explaining the business model of copyright trolling, which at the time was an adaptation of patent trolling (where “patent trolls” would file [often frivolous] lawsuits against alleged infringers who refused to pay what appeared to be a “shakedown” of the patent holders [e.g., “pay us or else you will end up having to pay even more to defend the claims against you in a federal court”], even when the patent being asserted against the would-be infringer had absolutely nothing to do with the product the targeted company was producing).

There were common threads between patent trolls and copyright trolls, and as the cases developed, there were common themes of how a copyright troll must act to make his model of extorting the public (the bittorrent internet users) profitable.  At the time, that included questions of 1) where and how can a copyright enforcement company or lawyer sue a group of defendants (personal jurisdiction), 2) how to link non-related downloaders into a cohesive set of defendants into a cohesive set of “John Doe Defendants,” (joinder, and my controversial strategy to force a copyright troll to sue the entire bittorrent swarm when a defendant is named and served) and 3) how to avoid risking the potential settlements from hundreds or thousands of accused bittorrent users by moving forward and “naming and serving” one or more defendants.  There were also time limits they faced based on a) how long the ISPs retained the records of which IP address was leased to which account holder / subscriber, b) statute of limitations on how long a copyright holder has to file a lawsuit, and c) how long a copyright troll attorney may keep a case alive before a judge imposes the time limits described in the Federal Rules of Civil Procedure (FRCP Rule 4m, a.k.a. the “120 Day Rule”).

Then, over the years, there arose a confusion under the discussions of “net neutrality” asking questions such as whether an internet service provider (ISP) was governed under the cable act, and if so, under what title.  The reason for this was that there were allegations that various ISPs were outright sharing the contact information of its subscribers without valid court orders to do so, thus violating the privacy rights of its subscribers.

In sum, there were a lot of issues, and we tackled each one over the course of almost five years.  The goal was to educate the bittorrent user and the accused downloader about the issues so that they understand how to act, react, and in many cases, fight against a group of attorneys with questionable ethics.

The problem is that these articles — the ones that have been so helpful to tens of thousands of accused defendants — these articles have been buried by the search engines because they are simply now aging and many articles are now many years old.  An accused defendant can no longer search for a “copyright troll” on Google and find any of my older articles.  [And, enterprising attorneys (and good for them) have put up websites containing SEO-based content full of keywords in hackneyed sentences, but devoid of useful content (e.g., the “contact our law firm, we can help you with your copyright troll lawsuit issue” type of website), while what I consider to be the “useful” content (not only mine, but content written by other attorneys in their blogs, and proactive users [really, trailblazers such as “Sophisticated Jane Doe” of FightCopyrightTrolls and “DieTrollDie”] in their respective blogs) is no longer accessible by typing the name of the particular copyright troll, issue, or case that has been recently filed.

What I will be doing to remedy this as far as this blog is concerned — and I apologize up front to the thousands of you who get updated on each and every article that I or a staff member of mine writes — is that I need to rehash some of the “older” content on the educational topics that I have already covered in the blog ad nauseam. The reason for this is that the older content explaining the legal concepts in terms of the bittorrent lawsuits (and now in terms of the DMCA letters being sent to subscribers through the ISPs) is just as relevant today as it was five years ago.  There has been little-to-no judicial or legal oversight of the copyright trolls from the attorney generals of each state and from the lawmakers (both federal and in each state), and the problem and issues surrounding “copyright trolling” is just as relevant today as it was almost five years ago.

For these reasons, I need to violate my own preference not to repeat information or content that has already been described or hashed-out in previous articles (my opinion is that one article describing a topic is enough, and writing multiple articles containing the same topic “waters down” or “cheapens” the content of a website).  The reason I now feel the need to rehash some of the older topics is to re-teach those who have not yet been victimized by the copyright trolls, as my older articles are no longer found, even by those looking for that particular topic.

ALSO.  Copyright trolls are now enjoying a seed of legitimacy by the courts, where once upon a time us defense attorneys were “winning” the cases by arguing concepts such as “an IP address does not equal a person,” or “my client had an open wireless router, it could have been anyone who downloaded this video,” the arguments themselves have also aged and are now increasingly being ignored by the courts, even though the arguments remain “an elephant in the room,” meaning, just as valid today as they were yesterday.  On the flip-side, faulty and failed arguments (e.g., “are you negligent if you let someone else use your internet connection to commit copyright infringement” [Answer: NO!]) are being reasserted by the copyright trolls, and to my utter disbelief, they are not immediately being dismissed by the judges as being a faulty argument.

Copyright trolling has not changed in the past five years, and the successful arguments defending a case do not deserve to be ignored just because they have been used successfully by defendants in older lawsuits which too are aging.  Ignoring good case law is contrary to law, as successful arguments in one jurisdiction are binding on all other judges in that federal district, and are persuasive on cases in the federal districts in other cases.  Yet, I see more and more lawlessness in judges who ignore the case law from not only other jurisdictions, but from their own jurisdiction as well (creating a “split” in the court), and they are denying a John Doe defendant’s ability to assert what was a successful argument in another court (even one binding upon them in their own jurisdiction).

In sum, judges are allowing plaintiff copyright holders to sue larger number of defendants each week, even though nothing has changed making this new trend permissible (in my opinion, whether 200 defendants were sued by a plaintiff attorney in one lawsuit or in ten cases [having 20 defendants in each case] filed in the same week still means that 200 defendants were sued; it does not matter that the plaintiff made the cases “appear” to be smaller, especially if they are implicating the same bittorrent swarm in each of the ten cases).

Remember, the underlying copyright troll business model of “shakedown, extort thousands of dollars from each defendant, but avoid moving forward against anyone [but pretend that you are prepared to move to trial]” is still the same as it was five years ago. It should not matter whether the content of the lawsuit is a Hollywood movie or an adult film.

[2017 UPDATE: Carl Crowell has created a new entity called RIGHTS ENFORCEMENT which has reverse-engineered CEG-TEK’s proprietary DMCA copyright infringement notice system.  Many of you have visited CEG-TEK links thinking that RIGHTS ENFORCEMENT was CEG-TEK, but really they are an ‘evil twin’ competitor.  Since the two entities operate almost the same way, e.g., sending DMCA copyright infringement notices to the subscriber directly via the ISP, this article is also relevant to RIGHTS ENFORCEMENT.]


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

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.


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

New Florida Rule: CABLE OPERATORS WHO ARE ALSO ISPs ARE BOUND BY THE CABLE ACT.

Umm… Did Judge Wilson just suggest that ISPs fall under the CABLE ACT??

I was just reading DieTrollDie’s article, and looking at Judge Wilson’s ruling [in the Malibu Media, LLC v. John Does 1-18 (Case No. 8:12-cv-01419) case in the U.S. District Court for the Middle District of Florida], it appears as if he just suggested that ISPs fall under the CABLE ACT (See Order, Doc 14, p. 5 of 7).

ORDER: …3. Each of the ISPs that qualify as a “cable operator” under 47 U.S.C. 522(5) shall comply with 47 U.S.C. 551(c)(2)(B), which provides that:

A cable operator may disclose [personally identifiable information] if the disclosure is … made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed.”

Now many of you know that I have wrapped my head around the Cable Communications Policy Act of 1984 (a.k.a., “the Cable Act”) so many times, and it surprises me that now TWO judges have suggested that a law written in 1984 applies to the internet (which was not even in existence at the time the Cable Act was written).

As we discussed on Monday in the “Judge Facciola opens up a can of worms with the Cable Act” article, 1) DC Judge Facciola argued whether an ISP would violate the Cable Act by sharing subscriber information. He concluded that assuming arguendo that the Cable Act did apply [noting that DC has not yet ruled on the issue of whether the Cable Act applies to ISPs], that Cablevision would not violate the statute if it complied with the copyright troll’s subpoena. Now, we have 2) Judge Wilson explicitly ordering “each of the ISPs that qualify as a “cable operator” under the Cable Act to comply with the subpoena.

In its essence, the Florida Middle District just ruled that ISPs WHO ARE ALSO CABLE OPERATORS ARE BOUND BY THE CABLE ACT STATUTES.

This is fascinating to me (especially since these judges would be going against significant case law from other districts stating that the Cable Act does NOT apply to ISPs) because it appears as if Judges are trying to corner the ISPs into the confines of the Cable Act (which makes my May 5, 2011 argument of how to sue ISPs for violating the Cable Act possibly viable). I have not even considered the MANY IMPLICATIONS of what happens if — as a rule — ISPs became bound by the Cable Act provisions? What else would change?

Looking at this logically, it makes sense to me that an Internet Service Provider (“ISP”) can be a “cable operator” bound under the Cable Act. Why? Because cable companies (Cablevision, Comcast, Verizon, etc.) *ALL* have taken a HUGE SHARE of the internet subscriber business. Cable companies today offer internet services to their subscribers. Thus, it makes sense that an ISP can be a “cable operator,” and thus they can be bound by the Cable Act.

After all, if hypothetically a huge oil company such as Exxon started selling their Esso Tiger toy dolls (remember these?), wouldn’t they also be obligated to the laws that govern child safety laws regarding lead paint? How can an ISP say “we’re no longer a cable operator, we’re an ISP” when the same customer who pays for their internet connection pays them for their cable service?

In other words, I am starting to form the opinion that CABLE COMPANIES SOLICITED INTERNET BUSINESS AND BECAME ISPs. THEY ARE STILL CABLE COMPANIES AND THEIR SERVICES SHOULD STILL BE BOUND BY THE CABLE ACT WHICH GOVERNS CABLE COMPANIES.

Wow, this is a can of worms.


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

Judge Facciola opens up a can of worms with the Cable Act.

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.


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.