DMCA Hastle
October 31, 2005 8:25 AM   Subscribe

My friend got a letter from the cable company accusing her of violating the DMCA. The alleged offense is downloading some sort of fighting game. Thing is, my friend is a near retirement, middle-aged woman who lives alone and has no interest in games and doesn't download anything. What is the proper way to respond? Links please.
posted by KrustyKlingon to Computers & Internet (15 answers total)
The proper way to respond is to lawyer up. The DMCA is a rather perfidious pile of crap, and the cable company doesn't actually have to prove anything to clobber her under it.
posted by SpecialK at 8:27 AM on October 31, 2005

Agreed. Call the EFF as well; there's a chance they may take this on. I think there's a bit of a movement to get this kind of suit branded as barratry; which, of course, it is.
posted by metaculpa at 8:35 AM on October 31, 2005

Definitely see a lawyer. The odds are, that if the letter just came from the cable company (which has no power to threaten action under the DMCA in a case like this, as far as I'm aware), it's a "scare letter" designed to stop people who are downloading from doing it (perhaps out of the goodness of the company's heart, perhaps under pressure from various industry groups). So probably, nothing will come of it, unless the cable company continually misidentifies your friend as a big-time software pirate, and does so to the BSA/RIAA/MPAA/whatever, in which case, a lawsuit could come down.

So, it could go nowhere, or it could end up in a misplaced lawsuit. Best advice is to get a lawyer early, and get it straightened out as soon as possible, than to get a lawyer later and have to prove innocence.

I'm not a lawyer, and what I've said is mostly conjecture. So seriously, get a lawyer who can actually give you real legal advice.
posted by Godbert at 8:36 AM on October 31, 2005

If not, the EFF will know some good lawyers for this sort of case. And will know the background of similar cases well, to let you know whether you have any chance of getting off without settling.
posted by metaculpa at 8:40 AM on October 31, 2005

I've had some contact at the EFF. If you email me I can give you his name and email.
posted by null terminated at 8:48 AM on October 31, 2005

DMCA doesn't cover downloading. That's still a civil tort.

It covers (among other things) making copyrighted material available without the copyright holder's permission -- which could apply if your friend was using P2P software that in addition to downloading, also makes files available from her computer. It could also apply if she were hosting copyrighted material on her webpage on her ISP's server. But the DMCA doesn't cover mere downloading.

The DMCA does limit ISPs' liability for infringement, basically if they crack down on their customers' (supposed) infringement.

Probably what happened is that the ISP (cable company) received a request from a copyright holder, alleging that your friend was infringing. To maintain their limitation from liability, the ISP "showed good faith" by going after your friend. Since the cable company is neither the government nor (in all likelihood) the copyright holder, they don't have standing to prosecute or sue, so they're not going to do anything more than -- at most - delete the supposedly infringing file if it's on their servers, or terminate your friend's account (if they think she's running a P2P application).

Of course, I could be wrong, and in any case this is NOT legal advice.
posted by orthogonality at 9:10 AM on October 31, 2005

A story in a local newspaper or TV station, focused on how ridiculous the situation is, might also give your friend some leverage. But talk with a lawyer first.
posted by LarryC at 9:11 AM on October 31, 2005

Depending on the context of the letter, I might disagree. Unless the letter is a specific legal threat, you may not need to rush off and pay legal fees just yet.

Try writing a clear, simple letter to the cable company explaining exactly what you said above. Be brief and use simple language: Don't say anything like, "As far as I know, I didn't download that game" -- anything that leaves doubt or room for argument. Don't threaten to sue them or go to the EFF. Be polite and brief. Make sure they understand your friend isn't a Nintendo-addicted teenager. Explain that they've made a mistake.

If you feel hesitant about choosing your language, visit your library and find guidelines for "demand letters." And if you'd rather not try this yourself, by all means, hire an attorney. But what you've described isn't yet cause to panic, and you may save yourself some money by addressing it directly.
posted by cribcage at 9:23 AM on October 31, 2005

If it's from your cable co, it's just a warning. Have her read it carefully or give them a call, it's probably just a threat to hand over her identity if she does it again. If it's a certified letter from a law firm representing some industry group (probably the BSA if it's software), then it's a problem.
posted by exhilaration at 9:26 AM on October 31, 2005

The legal stuff seems to have been addressed, so I'll point out something that might be worth wondering about: does your friend have an open wireless network?
posted by advil at 9:31 AM on October 31, 2005

Talk with a lawyer - but also check if this person has a wireless router that is not secured.

The offense could very well be "her fault" because she left her wireless connection open for some kid to hijack so he could download all the goodies he wants on someone else's dime (and IP address).

Generally, the cable companies may suck, but they probably have the right person here (as far as the owner of the cable modem) for the "offense".

Did they make any specific threats in the letter? That matters, too.
posted by twiggy at 9:33 AM on October 31, 2005

Jeez, ignore all this advice to armor up for full battle - it could be necessary someday but not for this.

The cable company is required to respond to complaints from rights-holders by insuring the offending material is no longer shared. They could show some fucking backbone on this but they don't. Maybe you have the time to fight every issue like this that comes through your door but I have better things to do.

Consequently what they normally do is turn your connection off and send you a snotty letter. You call them up, express no awareness of this matter but say you've made sure your wireless network is secure and your computer's virus and malware scanners are up to date and have been run. They turn you back on while rattling their saber about future offenses as if it's any of their damned business.

End of story, unless you have lawyered up to the tune of a couple hundred or thousand dollars just to accomplish the same thing, only slower.
posted by phearlez at 9:48 AM on October 31, 2005

Best answer: I'm going to break with the other responses: there's probably no need for a lawyer here. (On preview: phearlez has it.) These warning letters are sent at the behest of the copyright holders, but no information identifying the customer is (or ought to be) provided to the copyright holder without a court order.

One of two things are likely to happen:

1. Your friend's account may be disconnected by the provider if they receive too many warnings from copyright holders regarding the account. (Usually, they have some guidelines on what an account holder may do to reconnect in this event.)

2. If the copyright holder feels like they've got enough information to make a case, they'll subpeona the provider for the account information. This is the proper time for a lawyer, in my opinion.

In this case -- if it's just one letter -- I would suggest contacting the cable provider and having a protest of the violation noted. It would also be worthwhile to check the number of times the account has been warned to date. Beyond this, your friend would also want to verify any computers under her control are virus-free, spyware-free, and otherwise uncompromised.

Now, here's a short walkthrough on the procedure generally employed by service providers to identify copyright-infringing accounts.

1. The copyright holder will contact the provider with a DMCA violation notice containing the infringer's IP address, the name of the file they were downloading, and other happy details like date and time and so on.

2. The provider will go to their DHCP logs and search for the account which had control of that IP address at the given date and time.

3. The provider forwards the DMCA notice to the customer.

It looks okay on paper. In practice, however, I suspect there are a lot of providers that do not use their DHCP logs (or don't keep DHCP logs properly), and identify a customer purely on whether their account is currently using an IP address.

This might accidentally work alright on small networks where IP addresses are assigned for weeks at a time. However, larger networks can see IP addresses reassigned in bare hours. If such a reassignment occurs after an infringment, an account can be misidentified.
posted by Kikkoman at 9:59 AM on October 31, 2005

Does your friend have an unsecured wireless network?

Someone nearby could be abusing her generous gift of bandwidth.
posted by -harlequin- at 1:50 PM on October 31, 2005

Response by poster: My friend has no wireless network so there is no security hole there. She will start slowly with a polite letter to the cable company and see how that goes.
posted by KrustyKlingon at 8:20 AM on November 1, 2005

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