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funchords
Hello
MVM
join:2001-03-11
Yarmouth Port, MA

funchords to AVonGauss

MVM

to AVonGauss

Re: Waaa! I'm a pirate, I should do what I want!

said by AVonGauss:
said by fiberguy2:

If someone is "unfairly targeted" of being a pirate, they have a right to go after that party or parties for damages, right?
Probably, and I would also guess by Cox playing middle man, it would also open them up to the possibility punitive, legal and actual damages.
Isn't Cox covered by fair-harbor provisions?
said by AVonGauss:

The point I was making is I am almost certain Cox is not validating in any way that the claim is actually true, they are only basing it on the DMCA notification.
... well, 3 notifications, according to Cox -- it's not clear whether a rebutted notification is subtracted from that number, I would hope so ...
said by AVonGauss:

The purpose of the DCMA notification was never to circumvent the legal process or cause the provider to take action other than to pass it along to the customer - thus removing the pressure for the ISP to identify the customer based on a unsubstantiated claim.
Right.

In fact, the ISP cannot validate the DMCA complaint WRT BitTorrent -- you're right in that respect. There is no way that it can. It must trust the accuracy of the complaint (which is usually received some time later, to boot). But does 3 distinct complaints, none of which the user refuted, make enough basis to say, "enough!?"

ISPs have the same problem with spam complaints. The ISP can't prove or disprove reports of spam. But eventually, the number of separate similar complaints tend to add credibility to one another. If an ISP was to ignore these complaints, it would be labeled a rogue, itself.

I honestly don't know what to make of this. Cox used Sandvine (like Comcast still is using). But Cox isn't known for stupid customer service (like Comcast still is known for). That's why I'd like to hear from more users that have been on the receiving end of this.
AVonGauss
Premium Member
join:2007-11-01
Boynton Beach, FL

AVonGauss

Premium Member

said by funchords:

Isn't Cox covered by fair-harbor provisions?
Absolutely. In this context what I am contending is by taking the DCMA violation notice at face value as fact and further promoting the accusation by altering your service level based solely on the DMCA notification they could/should be also opening the door to the liability. I don't even want to comment on the part of the letter that states "we are obligated"...
thevorpal1
join:2007-11-16
Alexandria, VA

2 recommendations

thevorpal1 to funchords

Member

to funchords
said by funchords:

In fact, the ISP cannot validate the DMCA complaint WRT BitTorrent -- you're right in that respect. There is no way that it can. It must trust the accuracy of the complaint (which is usually received some time later, to boot). But does 3 distinct complaints, none of which the user refuted, make enough basis to say, "enough!?"
Here is the issue, why does the ISP need to say 'enough'? If they comply under DMCA, then it is an issue between the user, and the complaintant, not the ISP and the user. Forwarding DMCA requests are trivial.

Now, here is my issue:

Let's say I publish something from my computer. Someone who dislikes what I have stated can make a complaint against me using DMCA as an attempt to silence my opinion.

Now, I have the option to refute the DMCA complaint. Except that the burdon is now on me to prove not only that the complaint is false, but that my response is truthful under threat of perjury (This liability does not hold to the complaintant, a VERY important fact).

I would NEVER file a rebuttal to a DMCA request without first consulting an attorney. Even if I was 100% certain that I had commited no copyright violations, I would never put pen to paper under penalty of perjury in something as complex as copyright law.

So, if I do not want to pay an attorney, my options are to let COX remove my website, or take it down myself. Either way, that complaint against me stands.

It would be trivial for 2 other complaints to be filed by a malicious person, and it would be anything but trivial for me to contest those complaints.

Thus, my opinion could be silenced easily and I would have no recourse but through expensive legal options.

The alternative, which is what COX should be doing, is once the complaint has been filed, they pass it along, and that is it. Then if the complaintant wishes to continue the legal fight, it is THEIR burdon to prove that I have commited infringement and not MY burdon to prove that their claim is false.

funchords
Hello
MVM
join:2001-03-11
Yarmouth Port, MA

funchords

MVM

said by thevorpal1:

Here is the issue, why does the ISP need to say 'enough'? If they comply under DMCA, then it is an issue between the user, and the complainant, not the ISP and the user. Forwarding DMCA requests are trivial.

.
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Thus, my opinion could be silenced easily and I would have no recourse but through expensive legal options.
Okay, you've persuaded me. This is what the subpoena process is for.

It does look like the poster who wrote »Re: I like this was right about the additional liability.

There's a real-live case of DMCA abuse against Fair Use going on right now, in fact ... Obama Mashup Ad Pulled over "Copyright" Protest. NBC better hope Obama doesn't win.