Month: February 2020

Last December Internet provider Cox Communications lost its legal battle against a group of major record labels.

Following a two-week trial, the jury held Cox liable for the copyright infringements of its subscribers, ordering the company to pay $1 billion in damages.

The verdict sent a shockwave through the industry, not least because several other ISPs are caught up in similar lawsuits. Cox itself is heavily disappointed by the decision and would like the court to overturn the verdict.

Late last week Cox renewed its request for a judgment as a matter of law, asking the court instead of the jury to rule on several piracy liability questions.

According to Cox, the evidence presented did not support the jury’s findings of direct, contributory, or vicarious liability. In addition, the ISP argued that least 8,000 copyrighted works should not have been part of the judgment.

This motion was submitted together with a separate request to lower the damages award. If the court chooses not to grant the judgment as a matter of law, this so-called motion for remittitur will come into play.

Federal courts have the power to lower the awarded damages when the scale of the amount is disproportionate to the evidence or when it results in a miscarriage of justice. According to Cox, that’s certainly the case here.

“The $1 billion verdict in this case is a shocking miscarriage of justice. It vastly exceeds any previous statutory damages award under the Copyright Act,” the ISP writes in its motion for remittitur.

“It is wholly disproportionate to the evidence of harm to Plaintiffs, benefit to Cox, or any demonstrated need for deterrence, and is unsupportable under the Court’s jury instruction on damages,” Cox adds.

The ISP points out that the damages award appears to be the largest ever in a copyright case, eight times higher than the previous record. According to Cox, there is no basis for this high amount, especially since Cox is not a direct infringer.

In the damages instruction, the jury was asked to take a variety of factors into account. This included the profits Cox earned because of the infringement, a deterrent against future infringement, willfulness, and the need to punish the ISP.

According to Cox, however, the massive damages are in no way justified by these factors and the presented evidence.

“As applied by the jury, however, [the factors] resulted in an award that bore no relationship to these considerations, and was so grossly excessive as to constitute a miscarriage of justice.

“Because the extraordinary $1 billion verdict cannot be supported by the factors the jury was instructed to consider or the evidence informing those factors, Cox is entitled to a substantial remittitur or a new trial,” the ISP states.

Among other things, the ISP stresses that any profits it made from repeat infringers are not exclusively tied to infringing activity. Any reasonable connection to the excessive damages amount is missing.

If the court prefers not to consider lowering the damages amount, the ISP would like to have a retrial to argue its case again and show that an award of $1 billion in damages is shockingly excessive.

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A copy of Cox’s renewed request for a judgment as a matter of law is available here (pdf) and the motion for remittitur can be found here (pdf).

Source: TF, for the latest info on copyright, file-sharing, torrent sites and more. We also have VPN reviews, discounts, offers and coupons.

Die chinesische Polizei verfolgt Passanten mit Drohnen und fordert sie auf, einen Mundschutz zu tragen, wie ein Video der Global Times zeigt. Gleichzeitig soll es an eben jenen Masken in China mangeln. (Drohne, Datenschutz)

Die Sturheit von Blender-Gründer Ton Rosendaal hat wohl dazu geführt, dass Blender überhaupt erst zu dem erfolgreichen Open-Source-Projekt werden konnte, das es jetzt ist. Rosendaal ist überzeugt, das Projekt hat den Kampf mit der Industrie gewonnen. (Blender, Applikationen)

Ist das legendäre Resident Evil - Code: Veronica heute noch gruselig? Unser Autor hat zum 20. Jubiläum von Code: Veronica den Selbstversuch gewagt, sich erneut auf eine von Zombies befallene Gefängnisinsel gewagt und festgestellt, dass nicht jeder Klassiker gut altert. Von Benedikt Plass-Fleßenkämper (Resident Evil, Capcom)

Nicht nur Titel von 20th Century Studios, sondern auch Disney-Klassiker werden aus dem Videostreamingabo Disney+ entfernt. Bisher ist es das erste Mal seit dem Start von Disneys Videostreamingabo, dass ein Klassiker des Hollywoodstudios aus dem Abo verschwunden ist. (Disney+, Disney)

Berliner Unternehmen erproben ein kompaktes, dreirädriges Elektrofahrzeug von Toyota auf deutschen Straßen. Das Fahrzeug bietet Platz für zwei Personen und ist mit einer Neigetechnik ausgerüstet. (Elektroauto, Technologie)

Auf Streife mit Wasserstoff: Die Berliner Polizei erprobt zwei Toyota Mirai. Die viertürige Limousine wird künftig insbesondere bei regelmäßigen Kontrollfahrten genutzt. (Brennstoffzellenauto, Technologie)

Die neuen Prepaid-Tarife der Deutschen Telekom sind gestartet. Mit dabei ist ein Smartphone-Tarif mit echter mobiler Datenflatrate, der bei Bedarf nach vier Wochen gekündigt werden kann. (Telekom, Mobilfunk)

Since the lawsuit was filed in March 2019, we’ve been keeping a close eye on the battle between author John Van Stry and Travis McCrea, the former operator of eBook download platform, eBook.bike.

Right from the beginning, it has been an unconventional copyright dispute. Instead of maintaining a low profile, McCrea actually invited litigation, goading Van Stry and other authors to take him on. McCrea insisted he would prove that what he was doing was entirely legal and eventually Van Stry and his legal team took the bait.

Ten months on and it seems increasingly unlikely that McCrea or Van Stry will come out of this matter in materially better shape than they went in.

If this was being scored as a professional boxing match entering the final rounds, thus far every judge would have Van Stry massively up on points. His legal team has put on a dominating performance and at no juncture has McCrea looked like taking a single round. As a result, Van Stry is now the prohibitive favorite to take the win, at least on paper.

But in this matter, winning rounds is only part of the story. If court documents are to be believed, Van Stry’s team has put in a massive effort to get this fight won but McCrea hasn’t put up much of a fight at all, despite calling for the conflict to begin with. In fact, he’s accused of obstructing every effort to get the matter settled.

Whether this is the inevitable result of McCrea choosing to defend himself in a complex case isn’t entirely clear but according to comments made by Van Stry this week, tactics designed to reduce his ability to fight may be at play.

“If you’ve followed any of the legal followings, you’ll know that I was presented with a long list of things for discovery, which really made it seem like Travis was just trying to make my life hard. But I delivered it,” the author wrote on his GoFundMe page, which is raising money towards his litigation.

“However, Travis has refused to deliver anything. The judge has told him time and time again to produce, but Travis has continually refused. Pretty much he’s just ignoring everything and everybody. This of course has driven my legal costs way up, but that’s obviously Travis’ game, to try and bankrupt me or something I guess.”

While Van Stry is clearly ahead, the costs of coming out on top are mounting. The case to date has cost him $60,000 with less than half of that being covered by donations. That puts the author $30,000 in the red but with the finishing line currently marked with a $90,000 price tag, he could still be $60,000 in the hole at the end.

This personal financial exposure is the result of the case being one of the few on record to feature an individual copyright holder suing a site owner, rather than litigation being carried out by a deep-pocketed corporation. It’s a point not lost on the author.

“[P]irates can do what they want of course, because our legal system makes it horrendously expensive for private individuals to go to court and most judges seem to be unaware of these things, possibly because they’re used to dealing with corporate lawyers who are on a salary. So money isn’t an issue for anyone in most of their experience,” he says.

This entire case has been difficult to watch but as the months go by, one has to wonder what any final victory will look like for Van Stry. Importantly, eBook.bike is down and has been for months, so if that was the aim of the litigation the mission has already been accomplished. Obviously an injunction to prevent it from returning would be a useful addition but then what?

If one is obtained in the United States, any judgment would need to be enforced against McCrea in Canada. That’s not beyond the realms of possibility but given that the former Pirate Party leader has declared he has no assets to speak of, blood and stones come to mind, neither of which can conjure up $60,000. And that’s ignoring any damages award, which may be considerably less and still might go unpaid.

However, presuming that he had an idea of how much this action would cost going in, it’s certainly possible that Van Stry considers this a personal mission to do his part to hinder piracy, not just for him, but on behalf of all the other authors that are currently supporting him. And, having come this far, the pressure is probably on to carry this through to the bitter end.

Nevertheless, in piracy mitigation terms, ‘hinder’ is the operative word here.

The closure of eBook.bike and/or legal destruction of Travis McCrea won’t do much to prevent the piracy of Van Stry’s or his fellow authors’ books on other platforms. And, from a strictly financial perspective, one has to sell an awful lot of books to recover $90,000.

So, to an outsider, this now looks like a battle of ideals, with McCrea’s ‘pirate’ mantra on one hand and Van Stry doggedly pushing back in the opposite direction. Unfortunately and in purely practical terms, it seems increasingly unlikely that either side will benefit financially from this litigation, unless one counts Van Stry’s legal team in that equation, of course.

Then again, perhaps money isn’t everything.

Source: TF, for the latest info on copyright, file-sharing, torrent sites and more. We also have VPN reviews, discounts, offers and coupons.

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