Mike Meier

How time limits and purged records stop a copyright holder from learning the identity of an accused downloader.

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It occurred to me that there is some confusion as to what is an ISP retention policy a.k.a. an “IP address retention policy.” the effect the amount of time ISPs keep IP address logs (linking a particular IP address to a particular subscriber) have on whether those records will be available to the copyright holder if a lawsuit is filed after that time period has elapsed.

The question that sparked this post is as follows:

If CEG-TEK hasn’t subpoenaed someones identity, but the ISP only retains IP information for one year, then after a year it would essentially be impossible for CEG-TEK to obtain the identity correct?

My answer:

In order to understand what is going on, it is important to know who-is-who, and who does what.

I: CEG-TEK (a.k.a. Copyright Enforcement Group):  CEG-TEK hasn’t sued anyone in two years, and thus there are never subpoenas sent to the ISPs.  CEG-TEK is hired by the copyright holders 1) to track the IP addresses of accused downloaders, 2) to maximize the settlement payment by establishing connections between current accused downloads and other “older” downloads that happened at that same location (using IP address geolocation data), 3) to elicit payment in the form of “settlements” from the accused users via their settlement website, and 4) to provide attorney enforcement for those who choose not to settle via the website.

How they do this: CEG-TEK establishes relationships with the ISPs (internet service providers, e.g., Charter, CenturyLink, Giganews, etc.) and they arrange for the ISPs to forward the DMCA settlement demand letters to their subscribers.  CEG-TEK has a website they use to elicit payments from accused downloaders.  Lastly, they have attorneys (e.g., Marvin Cable) who follow-up with accused downloaders (sometimes asking for increasingly larger amounts of money).  Contrary to what is said by the attorneys, neither CEG-TEK nor their lawyers [at the moment] sue people.

II: COPYRIGHT HOLDERS (generally, the production companies): After failing to receive a settlement via the CEG-TEK settlement process, the copyright holders themselves hire out attorneys who enforce their copyrights against those subscribers who “ignored” CEG-TEK’s offers to settle.  Sometimes the attorneys are no-name attorneys, and other times, they are prolific copyright trolls such as from the law firm of Lipscomb and Eisenberg (best known as the attorneys for the Malibu Media lawsuits).

III: ISPs (internet service providers, including Universities and select VPN service providers): ISPs generally hold IP address data (and to which subscriber it was assigned to, and on what date) for one year — check your ISP’s “IP retention policy.” Congress and the RIAA/MPAA are pushing to increase this amount of time to 18 months.  For comparison purposes, in 2010, IP address data was kept for only 6 months. 

NOTE: After the ISP’s “IP retention policy” time limit elapses, if there are no copyright infringement claims, legal claims or requests on a particular IP address assignment record, they will purge that record from their database, meaning that lawsuits, subpoenas, or requests filed AFTER DESTRUCTION will not reveal the subscriber’s identity because that data is no longer available.

HOWEVER, most ISPs have a SECOND DATABASE — this second database holds IP address assignment records which have had claims of copyright infringement asserted against the subscriber, and these records are often kept indefinitely. Thus, if a lawsuit happens YEARS later (even after the IP retention policy date has expired), the data indicating which subscriber was assigned what IP address on what date and time IS RETAINED and will be available to the copyright holders and their attorneys when suing subscribers.

Lastly, (and I did not include this in my initial response,) it is my experience that ISPs generally forward DMCA settlement demand requests LITERALLY WITHIN DAYS of the accused download actually happening.  For example, Charter literally pumps out letters to their subscribers FOUR DAYS after the downloads happen.  Now obviously there are hiccups where a subscriber will receive a pile of infringements at one time, or an infringement notice is withheld until after the CEG-TEK due date has passed, but in my understanding, when this happens, it is either a business-related issue between CEG-TEK and the ISP, or a staffing issue in the subpoena / abuse department at the ISP.

Thus, where CEG-TEK is concerned, I have never heard of a situation where CEG-TEK demands that the ISP forward a letter to a subscriber and the ISP denies that request based on the ISP’s IP retention policy making the subscriber’s information unavailable.

As far as copyright lawsuits in general, yes, the IP retention policy does factor in to when a lawsuit is filed.  I have personally seen a handful of copyright infringement lawsuits filed against John Doe Defendants fail because the ISPs were unable to identify the identities of the accused subscribers because the plaintiff took too long to file the lawsuit (or a judge took too long to approve the subpoena to the ISP demanding the identities of the accused subscribers), and by the time the request or subpoena was received by the ISP, the IP address assignment records were already purged.

Thus, even though a plaintiff copyright holder does have three years from the alleged date of infringement to file a lawsuit against an accused subscriber, they are still bound by the ISP’s IP retention policy if they wish to ever identify the accused subscriber.  That being said, it is the “SECOND DATABASE” which trips up most individuals, as many individuals accused of copyright infringement are not aware that ISPs keep certain IP address assignment records indefinitely (or for a prolonged period of time), and these IP address assignment records are those which have been flagged by a copyright holder, attorney, or other law enforcement agency prior to the expiration of the ISP’s IP retention policy.

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UPDATED COPYRIGHT ENFORCEMENT GROUP (CEG-TEK) ARTICLES (from this blog):
Canada begins receiving CEG-TEK DMCA settlement letters. (3/12/2015)
How time limits / purged records stop a copyright holder from learning a downloader’s identity. (12/18/2014)
CEG-TEK’s growing list of participating ISPs, and their NEW alliance with COX Communications. (11/12/2014)
The Giganews VPN Problem (11/12/2014)
CEG-TEK is now your friendly “photo” copyright troll. (6/13/2013)
CEG-TEK’s new “you didn’t settle” letters sent from Marvin Cable. (3/22/2013)
CEG-TEK’s DMCA Settlement Letters – What are my chances of being sued if I ignore? (2/22/2013)
Why CEG-TEK’s DMCA settlement system will FAIL. (2/22/2013)

[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, and since Crowell appears to have taken most of CEG-TEK’s client list, this article is relevant.]

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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.

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    Cashman Law Firm 2013, A Year In Review.

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    As we near the end of 2013, I expect to see “2013 Year in Review” articles. I decline to write my own here, but it has been a very busy, work-intensive year. I would compare it to using nothing but strength and muscle to push metal against a spinning wheel with the result of seeing sparks flying.

    Prenda is dead. Or, is it. Lawyers spent most of the year enjoying the exposure of Prenda Law, Inc.’s failings (or more accurately, “fallings”) where their scams and schemes became unraveled over and over again for all to see. Judges called them on their bluff, brought the principals into court, and ordered them to pay large sums of money. Yet, what was actually paid (and what will actually be paid) is still hidden from our eyes. My guess is that they’ll pay something, but compared to the millions they raked in since 2010, it will only be a tiny fraction of their windfall profits.

    It is my opinion that what undid them was greed. Had they continued to sue defendants en masse, and had they continued to “name and serve” defendants and move forward with the lawsuits in good faith (if there ever was good faith), they may still be in business. Thankfully, where there is “rolling in dough,” there is also born greed and corruption. AF Holdings was born, the “Alan Cooper” alter-ego was invented, papers were forged, settlement money was sent offshore to various entities, honeypots were discovered (where it was discovered that Prenda Law Inc. was seeding the pornography they later sued on), and so-called paralegals became the named “owners” of the entities who were suing to enforce their copyrights. If all this (and getting caught) was not enough, they threw their own local counsel attorneys “under the bus,” they sued the internet and bloggers for defamation, and they started a war with the internet service providers (ISPs) and Cable Companies, a fight they could not have won. Why they went after the ISPs, nobody will know, but in my opinion, this was their mistake.

    But this article is not only about Prenda, or the Steele|Hansmeier gang, or the Mark Lutz characters of the world (or their many life-altering experiences over the year), but it is also about what has been happening outside the federal courts (“out-of-court”).

    [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.  I would even suggest that now that the “Six Strikes System” described below is DEAD and CEG-TEK has been dormant since August of last year, any obstacles stopping RIGHTS ENFORCEMENT have been erased, so caveat emptor.]

    A year ago, I wrote a few articles about Copyright Enforcement Group (CEG-TEK), a brainchild of Ira Siegel. After his experiences in the Northern District of California, followed by the experiences of his local counsel Mike Meier, Marvin Cable, and for a time, Terik Hashmi, their cases went silent in the federal courts. No new cases were filed, and for a time, all we saw were dismissals of our law firm’s clients.  Then, tens of thousands of so-called “DMCA Letters” began pouring out from various ISPs directing accused internet users to their copyrightsettlements.com website (no link, this is on purpose) to entangle themselves in their settlement system.

    There was a moment where I thought the “Six Strikes System” would kill CEG-TEK’s business model because the ISPs would no longer forward their “pay us now or else we will sue you” scare letters, and by depriving the copyright enforcement companies of their ability to contact accused internet downloaders in their homes and out-of-court (without the supervision of a federal judge), this would cause CEG-TEK and their ilk to go out of business, but this was a disappointment.

    The “Six Strikes System” ended up being a dud. It only applied to a few of the “elite” ISPs, and those ISPs used the Six Strikes System to demand large sums of money from the copyright owners and sent the notices to their subscribers anyway, but only a truncated version of CEG-TEK’S “scare” letter. Comcast, case in point. I watched as a fight broke out between Comcast and CEG-TEK, where Comcast only forwarded a snippet of CEG-TEK’s letter, but still directed users to their CopyrightSettlements.com website so that the settlements can continue. Then in other letters, they botched the CEG-TEK settlement link alltogether, and then, did not include the link [in their letters] at all. (And, just for “me too” news as of today, “Johnny-come-late” to the game, RightsCorp, is reported by Torrentfreak to have experienced the same thing).

    In sum, the Six Strikes System did not kill CEG-TEK as I thought it would, nor did it hurt the “copyright trolls” or stop them from filing lawsuits. CEG-TEK merely found other ISPs and universities to cooperate with them by forwarding their settlement demand letters to the ISP’s subscribers, and CEG-TEK’s collection attempts have continued unhindered.

    Lastly, there has been little slowdown to the copyright infringement lawsuits. As I predicted a few years back (link), the lawsuits merely got smaller and more focused (link). The days of suing 5000 “John Doe” defendants bunched together in one federal lawsuit are over. Similarly, the smaller lawsuits having just a handful of defendants [where the lawsuits are filed in the states in which the defendants live] are also over. Now, the lawsuits are so small and focused that it is common to have only one defendant in a lawsuit, and this has made it impossible for our firm to watch, read, and report on every case that is filed in every jurisdiction.  Then again, it has made it more expensive for the copyright trolls, and (ugh) more scary for the carefully targeted defendant.

    In sum, it has been a year of grinding and a year of watching the effects of previous years of work change, alter, and shape the bittorrent lawsuits to the form in which they are today. Congress and lawmakers have been useless in making this copyright trolling phenomenon disappear, as have been the attorney generals and the various state bar ethics boards, who [with some very notable exceptions] have been sitting on their hands. I do not think the copyright troll problem has been solved in any way. Rather, the plaintiff attorneys have gotten smarter, smaller, and more focused.  As a result, they have flown below the radar of those who have the power to stop them. And, while the lawsuits continue, former copyright troll attorneys (Ira Siegel / CEG-TEK) have continued their efforts, just outside of the court’s ability to monitor, sanction, and control their out-of-court settlement activities. And, I need not say this, but many new copyright trolls have popped up based on the lack of legal supervision, and I am concerned to say that I do not see this going away any time soon.

    John Steele and his Prenda Law Inc. gang are down. CEG-TEK is thriving. Old copyright trolls such as Lipscomb & Eisenberg, along with their many local counsel across the US [and their lawsuits] are thriving. Other no-name “baby” copyright trolls are growing up and have learned to navigate the broken federal court system. And most important of all, more and more people are getting entangled into their legal spiderweb of extortion, settlement demands, and lawsuits, both in and out of court. This is grim, I know.

    But there are still voices out there — SJD’s Fight Copyright Trolls website, DieTrollDie‘s website, along with organizations such as the Electronic Frontier Foundation (EFF) who, [while they have been rightly so enveloped with dealing with privacy issues, government corruption, secret FISA courts, and fighting NSA police-state-like snooping techniques] are still very helpful in the copyright troll lawsuits with their countless efforts to make the problem go away once and for all.

    So please allow me to be the first to wish everyone Happy Holidays, a safe winter, and a Happy New Year.

    Warm regards,
    Rob Cashman

    CEG-TEK’s new “you didn’t settle” letters sent from Marvin Cable.

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    [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, this article is relevant.  Once thing to note.  The “you didn’t settle” letters that Marvin asked for here will no doubt be copied by Crowell.]

    Back in November 2012, I wrote an article about CEG-TEK’s CopyrightSettlements.com web site “crashes” where following a failed settlement transaction (purposeful or not), accused infringers received letters essentially saying, “[B]ecause you have decided not to settle, we will be moving forward against you in a copyright infringement lawsuit. Please pay us $3,500 or else we will sue you.” These letters were apparently sent from Copyright Enforcement Group (CEG-TEK), a software brainchild of Ira Siegel.

    Now it appears that CEG-TEK is “stepping up” their game again, and more letters are being sent out, but this time from CEG-TEK’s local counsel, Marvin Cable. What is particularly concerning is that this letter appears to be sent out to:

    1) ANYONE WHO CALLED IN TO CEG-TEK, BUT DID NOT SETTLE (they are scouring the CALLER-ID RECORDS and matching them with publicly available contact information), and

    2) ANYONE WHO ENTERED THEIR CONTACT INFORMATION ON THEIR WEBSITE (e.g., to process their credit card payment), but the website “crashed,”

    3) ANYONE WHO LEFT “BREADCRUMBS” WHEN INTERACTING WITH THEM, BUT DID NOT SETTLE.

    NOTE: I have personally heard reports of 1) and 2), but 3) is a catchall for items I have not yet heard about, but expect that they are doing.

    In sum, as I suspected when the Six Strikes System was put into place, with the big ISPs no longer forwarding their “$200 per title” settlement letters, their settlement stream of cash has started to run dry. As such, their production studio clients are forcing them to do whatever they can to “monetize” their clients IP (here, scrubbing the voicemail records, the caller ID records, and website tracking records, and putting names to those traces left by accused internet users), or else sue. In order to keep these clients, we see examples of letters such as this one:

    [scribd id=131868392 key=key-v3kkn86k16ertw216iv mode=scroll]

    Just to be clear, for a long time, when people ask “Should I settle or ignore CEG-TEK’s DMCA letters? What are my chances of being sued if I ignore?” I have been telling people that they could do either, and I laid out the factors to consider.  I am still of this opinion, namely that 1) Neither Ira Siegel, Terik Hashmi, Marvin Cable, or Mike Meier have sued anyone in MANY MONTHS (since July, 2012 to be exact), and 2) the purpose of their CopyrightSettlements.com website was to convince production companies that it is easier for them to sign on with CEG-TEK and run a settlement “IP monetization” campaign, rather than to sue everyone in a copyright infringement lawsuit.  I assume they are still trying to salvage this system, especially with the renewed efforts to find those who have not settled.

    And as always, if you haven’t read my previous articles on the topic, I am still getting reports of website transactions not working (website “crashes,” failed transactions), and so once again, be smart and protect your contact information. Know that when you visit a website, unless you are using Tor or you subscribe to a private VPN, you share with that website your IP address, and when you call Copyright Enforcement Group’s phone number to inquire about your matter, you leak your phone number which can easily be cross-referenced back to you.

    In other words, be careful with your information, and the “breadcrumbs” you leave when you conduct your daily life.  These breadcrumbs can be traced back to you, and next thing you know, you’ll be on the phone with me asking how to defend a copyright infringement lawsuit filed against you and 200 other Doe Defendants.

    —
    UPDATED COPYRIGHT ENFORCEMENT GROUP (CEG-TEK) ARTICLES:
    Canada begins receiving CEG-TEK DMCA settlement letters. (3/12/2015)
    How time limits / purged records stop a copyright holder from learning a downloader’s identity. (12/18/2014)
    CEG-TEK’s growing list of participating ISPs, and their NEW alliance with COX Communications. (11/12/2014)
    The Giganews VPN Problem (11/12/2014)
    CEG-TEK is now your friendly “photo” copyright troll. (6/13/2013)
    CEG-TEK’s new “you didn’t settle” letters sent from Marvin Cable. (3/22/2013)
    CEG-TEK’s DMCA Settlement Letters – What are my chances of being sued if I ignore? (2/22/2013)
    Why CEG-TEK’s DMCA settlement system will FAIL. (2/22/2013)

    —
    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.

      shalta book now cta

      CEG-TEK’s DMCA Settlement Letters – What are my chances of being sued if I ignore?

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      As you can see, I am taking some time educating individuals involved in the Copyright Enforcement Group (CEG-TEK) / Ira Siegel DMCA letters being sent to thousands of individuals across the U.S. by their www.CopyrightSettlements.com system.

      RECAP: Read these articles first.

      As a recap, anyone involved in receiving such a letter should read the following three articles I have written on their tactics:
      1. Why CEG-TEK’s DMCA settlement system will FAIL (2/22/2013)

      2. When CEG-TEK’s DMCA notices contain duplicate titles. Purposeful luring of defendants or not? (11/26/2012)

      3. The trouble with Copyright Enforcement Group (CEG-TEK)’s DMCA scare letters. (11/2/2012)

      What happens if I ignore the DMCA settlement demand letter?

      Now, as far as the topic of this blog entry, the question people often ask is “what are the risks that CEG-TEK or Ira Siegel will sue me if I don’t settle?”

      Answer: CEG-TEK is NOT suing defendant for copyright infringement, but they want you to fear that they might.

      While the easy answer is that so far it appears as if they are NOT suing (remember, they are soliciting their clients under the premise that they’ll make more money by making use of their DMCA settlement system rather than by suing), that answer needs to be elaborated.  

      CEG-TEK fear tactics explained in a letter to a client.

      I hope you will forgive me saving time in answering this way, but I have laid out my answer below in the form of an e-mail I sent to one of the individuals who called me for assistance.

      LETTER SENT TO CLIENT:

      It is good to hear from you. Just to reiterate, the “case” numbers are not actual lawsuits (at least not yet). If you did not settle by their due dates, their threat is that they would file a lawsuit against you [likely for only one of the titles; knowing them, in order to maximize their return, they would reserve the other titles for separate lawsuits].

      Also, my opinion is that a lawsuit would be filed in the Northern District of California (where Ira Siegel is), or the Southern District of New York (where Mike Meier is). These are their attorneys and where they are filing lawsuits as I write this letter.

      Even though you live here in [LOCATION REDACTED] and [COURT REDACTED] would be the proper location for a lawsuit, by filing in the wrong location, they know by doing so they would push you to settle rather than hire an attorney (someone like me) to fight the jurisdiction issue on your behalf.

      So far as we discussed, their lawsuits are few and far in between. In fact, up until a week or so ago, I was ambivalent whether a client ignores the letter or settles it (see below article link for what has changed).

      If you want to see what they are doing lawsuit-wise, you’ll find them by looking for the words “Digital Sin” or any of their other clients on the http://www.rfcexpress.com website. Alternatively, you can search for “Mike Meier” since he seems to be their “top guy” as far as skill in suing defendants aside from Ira Siegel himself.

      It is my opinion that they are not in the habit of suing at this point, which means they are trying to “milk” the settlements for all they are worth. However, they do have three (3) years from the alleged date of infringement to sue, so if you didn’t settle, you’ll be looking over your shoulder waiting for them to have a bad day when they decide to press the button and sue everyone.

      I wrote an article yesterday on my https://www.torrentlawyer.com website which should answer your questions as to the factors influencing the odds of whether they’ll be suing defendants in the near future, or whether they would wait the full three-years to sue everyone at once.

      Frustrating copyright troll scare tactics.

      Once again, it drives me nuts when attorneys try to scare defendants into settling their cases.  With these DMCA “scare” letters, I am merely stating the obvious paths CEG-TEK and their attorneys can take.

      My Opinion: CEG-TEK does not intend to sue anyone.

      For me, I think Ira Siegel and the Copyright Enforcement Group (CEG-TEK) would like to avoid suing defendants.  It didn’t seem that profitable for them the first time around, and it took incredible resources to maintain their copyright infringement lawsuits prior to the creation of their out-of-court turn-key settlement system.

      Then again, they are IP enforcement companies who are serving the needs of their production company clients (the copyright holders), and if the clients pay them to use their CopyrightSettlements.com system and send DMCA letters to the ISPs, they send the letters.  If the clients instruct them to sue, they sue.

      It is my understanding that they dislike the other copyright trolls, and that they compete for business (e.g., the production companies). Thus, if their settlement system dries up as I believe it inevitably will, they will do anything not to lose their clients to the likes of Lipscomb, Steele, or the other less credible trolls out there.

      —
      UPDATED COPYRIGHT ENFORCEMENT GROUP (CEG-TEK) ARTICLES:
      Canada begins receiving CEG-TEK DMCA settlement letters. (3/12/2015)
      How time limits / purged records stop a copyright holder from learning a downloader’s identity. (12/18/2014)
      CEG-TEK’s growing list of participating ISPs, and their NEW alliance with COX Communications. (11/12/2014)
      The Giganews VPN Problem (11/12/2014)
      CEG-TEK is now your friendly “photo” copyright troll. (6/13/2013)
      CEG-TEK’s new “you didn’t settle” letters sent from Marvin Cable. (3/22/2013)
      CEG-TEK’s DMCA Settlement Letters – What are my chances of being sued if I ignore? (2/22/2013)
      Why CEG-TEK’s DMCA settlement system will FAIL. (2/22/2013)

      —
      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.

        shalta book now cta

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

        by

        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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