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Archive for the ‘Telecommunications’ Category

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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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 obligatged 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.

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