How one ISP deals with copyright enforcement

This morning I wrote a story about Jerry Scroggin, owner-operator of Bayou Internet and Communications, and why he thinks copyright owners should compensate ISPs if they want help protecting content from piracy.

To give readers an idea of the kind of requests he receives from film and music companies each month, Scroggin forwarded some of his e-mail exchanges. Those are included here.

The first is from Payartists, which according to its Web site "provides a way for copyright infringers to settle their disputes with the copyright owners" and in this case was representing the family of the late rocker Frank Zappa.

The next notice is from Safenet, an information-security company, on behalf of Warner Bros. Entertainment. Near the bottom, within the body of the e-mail from "Tommy (presumably a Payartists employee)" you can see one of Scroggin's replies, which he said is his typical response.

Note: I have removed IP addresses and some personal identifying information.

From: [e-mail]
Sent: Sun 12/14/2008 4:26 PM
To: Jerry Scroggin
Subject: Second Notice of Claimed Infringement
***NOTE TO ISP: PLEASE FORWARD THE ENTIRE NOTICE***

Re: SECOND NOTICE OF INFRINGING ACTIVITY Cease and Desist Infringement of Copyrights Owned Exclusively by the Zappa Family Trust
Reference#: XX-XXXXXX (M)
2008-12-14 13:01:23 PST

Dear Sir or Madam:

We are authorized agents of the Zappa Family Trust ('ZFT'). On 2008-11-30 13:01:14 PST we sent you a notice of infringement with reference#: AE-xxxxxxx. That letter also notified Bayou Internet that downloading of sound recordings of performances of Frank Zappa compositions that occurred at your IP address XXX.XXX.XXX.XX on or about 2008-11-28 18:31:02 PST infringed copyrights belonging exclusively to the ZFT. As of today we have not yet received a response from you regarding this matter. You are at risk for being a repeat infringer.

The ZFT is the owner of all right, title and interest, including without limitation the copyright therein, in and to the Frank Zappa musical compositions, which are embodied on sound recordings being unlawfully copied and distributed by you at the following IP address XXX.XXX.XXX.XX. The undersigned is authorized to act on behalf of the ZFT, whose exclusive rights are being infringed. The composition(s) owned by the ZFT that have been infringed at the above IP address are as follows:

Infringement Source: Gnutella
Current Infringement Timestamp: 2008-11-28 18:31:02 PST
Infringers IP Address: 2008-11-28 18:31:02 PST
Infringers IP Address: XXX.XXX.XXX.XX
Infringers Port: XXXXX

Listing of infringement(s) (Title/Filename/Timestamp/Hash):
Wind Up Workin\' In A Gas Station | 2008-11-28 18:31:02 PST | Frank Zappa - Wind Up
Workin' In A Gas Station.mp3
RE: ONGOING INFRINGEMENTS

We hereby demand you immediately and permanently cease and desist the unauthorized copying and or distribution (including, but not limited to, downloading, uploading, file sharing, file 'swapping' or other similar activities) of recordings of Frank Zappa compositions, including but not limited to those items listed in this correspondence. If you do not so cease and desist activities that infringe copyrights belonging to the ZFT, the ZFT will pursue every available remedy including injunctions and recovery of attorney's fees, costs and any and all other damages which are incurred by the ZFT as a result of any action that is commenced against you. Should we become aware in the future that you have yet again infringed additional copyrights belonging to the ZFT we will pursue every available remedy against you and we will also promptly request that your ISP enforce its acceptable use policy against you.

RE: INFRINGEMENTS THAT HAVE ALREADY OCCURED

In regard to the infringements that have already occurred and that have been described above: while the ZFT is entitled to monetary damages from the infringing party under 17 U.S.C. Section 504, the ZFT believes that it may be expeditious to settle this matter without the need of costly and time-consuming litigation. In order to help you avoid further legal action from the ZFT, we have been authorized to offer a settlement solution that we believe is reasonable. This is our second notice to you in regard to your infringement of copyrights belonging to the ZFT.

If, within the next ten (10) business days, you do not agree to settle this matter in accordance with the terms proposed at the link described below, or make other arrangements through us to settle this matter with the ZFT, the ZFT will pursue every available remedy including injunctions and recovery of attorney's fees, costs and any and all other damages which are incurred by the ZFT as a result of any action that is commenced against you.

If you choose to accept the settlement offer at the following URL, then the ZFT will agree to settle all claims in regard to the acts of past infringements described above.

To access this settlement offer, copy and paste the following URL below into a browser and follow the instructions at that website:

https://www.payartists.com/?n_id=AE-XXXXXX
Password: xxxxxx

Nothing contained or omitted from this letter is, or shall be deemed to be either a full statement of the facts or applicable law, an admission of any fact, or waiver or limitation of any of the Zappa Family Trust's rights or remedies, all of which are specifically retained and reserved.

The information in this notification is accurate. I, as agent for the ZFT, have a good faith belief that use of the material in the manner complained of herein is not authorized by the copyright owner, its agent, or by operation of law. I swear, under penalty of perjury, that I am authorized to act on behalf of the owner of the exclusive rights that have been infringed.

Very truly yours,

Tommy Funderburk
President
FFS Enterprises, LLC
dba Payartists.com
6656 B Dume Drive
Malibu, California 90265
United States
+1 XXX-xxx-xxxx

**For any correspondence regarding this case, please send your emails to [e-mail] and refer to Notice ID: AE-XXXXXX. If you need immediate assistance or if you have general questions please call the number listed above.

--------------------------

Wednesday, December 17, 2008

Bayou Internet
1109 Hudson Lane
Monroe, LA 71201 US

RE: Unauthorized Distribution of the Copyrighted Motion Picture Entitled Gran Torino

Dear Jerry Scroggin:

We are writing this letter on behalf of Warner Bros. Entertainment Inc. ("Warner Bros.").

We have received information that an individual has utilized the below-referenced IP address at the noted date and time to offer downloads of copyrighted motion picture(s) through a "peer-to-peer" service, including such title(s) as:

Gran Torino

The distribution of unauthorized copies of copyrighted motion pictures constitutes copyright infringement under the Copyright Act, Title 17 United States Code Section 106(3). This conduct may also violate the laws of other countries, international law, and/or treaty obligations.

Since you own this IP address (XX.XXX.XXX.XXX), we request that you immediately do the following:

1) Disable access to the individual who has engaged in the conduct described above; and
2) Take appropriate action against the account holder under your Abuse Policy/Terms of Service Agreement.

On behalf of Warner Bros., owner of the exclusive rights to the copyrighted material at issue in this notice, we hereby state, that we have a good faith belief that use of the material in the manner complained of is not authorized by Warner Bros., its respective agents, or the law.

Also, we hereby state, under penalty of perjury, under the laws of the State of California and under the laws of the United States, that the information in this notification is accurate and that we are authorized to act on behalf of the owner of the exclusive rights being infringed as set forth in this notification.

Please direct any end user queries the following.

Warner Bros. Entertainment Inc.
Attn: Worldwide Anti-Piracy
4000 Warner Blvd.
Burbank, CA 91522
xxx-xxx-xxx -
[e-mail] - email

Kindly include the Case ID XXXXXXXX also noted above, in the subject line of all future correspondence regarding this matter.

We appreciate your assistance and thank you for your cooperation in this matter. Your prompt response is requested.

Respectfully,

A Kempe
Enforcement Coordinator
SafeNet, Inc.

-----------------------------
From: Tommy (presumably a Payartists employee)
Sent: Sun 12/21/2008 7:40 AM
To: Jerry Scroggin
Subject: Re: FROM PAYARTISTS.COM your non response

[e-mail] wrote:
guys you have sent me 3 threats now without proof. We all know IPs are easily spoofed. I have asked for your billing information so we can have a contract signed and full understanding of what i do. If you want me to work for you you should expect to pay. I dont work for free.

(reply from Payartists)
Please attached the reference # (s) you where given with the notices and we will attach the evidence. We understand that IP's are easily spoofed, but the notice you recieve is a result of your ISP (Internet Service Provider) investigated our claim and the ISP traced it back to your subscription.

Send us the reference # (s) and we will verify and investigate the matter further.

In regards to billing, we fail to understand what you mean with that!

Regards
Payartists.com

For more stories, see: RIAA's year-end shocker

[sirboom]

Ok first, when you are writing emails to companies in situations like this, use proper grammer. Nay, use proper grammer all the bloody time! To the point, what these companies are doing is B.S., in my opinion, but they aren't necessarily unwarranted in their request. The ISP provider is right, if he is to be blocking access left-and-right, he needs to be paid to do so. That is, unless he is allowing a violation of his very own company's user access agreement. If that's the case, the media companies don't have to pay. This is a tough snare, and the media companies are attacking everywhere they can.

My suggestion to media companies: give us music/movies that are good. Britt Spears should be cut... yet she is still making records? Common, guys!

[trididos]

What the bloody hell is grammer? Did you mean grammAr?

[kimlovely]

I totally agree with the substance of your comment. However, if you're going to criticize the grammar of others, maybe you should learn to spell "grammar." Also FYI -- the term "left and right" is not hyphenated, and the words "come on" are not properly abbreviated as "common."

[waytoougly]

Gods, the irony!

[furby_singh]

Gads.

[roadlife]

"(reply from Payartists)
Please attached the reference # (s) you where given with the notices and we will attach the evidence. We understand that IP's are easily spoofed, but the notice you recieve is a result of your ISP (Internet Service Provider) investigated our claim and the ISP traced it back to your subscription. "

OK so whoever sent his used a form letter meant for an individual user to accuse an general ISP. "Payartists "sounds like it is a) ripping off the content owners by marketing a bogus and fraudulent enforcement scheme; and b) making fraudulent statements to ISPs.

[TBBF]

also. the P in ISP stands for "provider"

[vmlenigma]

FYI You NEED to learn how to spell Grammar !!!!!!

[hawkeyeaz1]

Well, that sounds fair enough to me.

[Jack K1]

I think a shorter note back to the claimant could have read:

"Your e-mail has reached our customer service office for xyz ISP. If you wish us to take action on your behalf, please send invoice and invoice authorization to the attention of xxxxxxxx. Our services and service billing rates follow: " (etc)

Or, more to the point...

"F#*@ off!"

Jack

[Jack K1]

Did anybody notice the false claim made by Payartists? That is, that the "ISP investigated" when obviously it hadn't. Sounds like fraud to me.

Jack

[medezark]

I don't download music, movies, or other media files via the internet. (I'm a radio kind of guy). However, out of curiosity I visited the sites referenced above.

While Jerry's reply may have been brief, and poorly written It was probably the third, exasperated reply. The level of information provided by PayArtists was scant as well. Their statement was that the "proof" was that Jerry's ISP had investigated the matter and supplied Jerry's name as owning the IP address? Yet, Jerry is an ISP, correct? So shouldn't Jerry's ISP have been contacted, instead of Jerry, and then Jerry's ISP contacted Jerry? Reading through the site, it looks like these guys somehow scammed the Zappa estate into contracting with them, and then created a half-*ssed means of searching for Zappa music on sharing sites, and another half-*ssed means of scaring people into settling with them. If you look at their FAQ, they mention that it is not uncommon for supposed pirates, when attempting to "settle" via credit card, to have their credit card declined several times before going through, and they suggest making several attempts to pay. The whole site just looks fishy to me.

Go to PayArtisits website, and read it. It looks like these guys are in the "scare individuals into paying" business, rather than in the "help artists be recompensed for their work" business.

Safenet, however, looks as though they be more legitimate, provided that their e-mail address had not been spoofed.

[TheComputerNerd]

Jerry is the guy who owns the isp

[medezark]

PayArtists is run by Tommy Funderburke (sp?), a background singer, from North Carolina, who's had an album released in Italy? I guess with the music carreer in low gear, the protection racket carreer is going strong?

[drm_truth]

Using the logic of the MPAA and Warner Brothers, all toll road operators should prosecuted for any instances of a driver speeding (or violating any other law) after paying to use their roadway.

[karpenterskids]

And all telephone company employees should be prosecuted for any terrorist who plans a terrorist activity using the phone company's phone lines.

[badRobot37]

And car companies should be forced out of business when someone uses a car analogy badly. Oh wait, that's already happened :(

[Hep Cat]

Leave it some southern Arkansan in Monroe to call his company "Bayou Communications" in what passes for Louisiana's hill country.

A bayou is a low-lying swampy area navigable by shallow boats. Bayous are primarily located in south Louisiana, a good 150 miles away from BCI.

[vetegr]

A bayou is a defined body of water; it's like a tributary or a creek. It is not an area, like a "swampy area," though there may be swampy area adjacent.

There are plenty of bayous in north Louisiana, with and without a swampy area. I've swum and fished in them.

peace
tg

[russkeller]

If the Content Companies didn't treat their paying customers like the pirates they cry about I'd actually care. At this point the content companies deserve to get the shaft for hanging on to a broken business model not to mention screwing paying customers and consumers.

[st430]

called Bayou becaue the company is a botomless pit that is so low....

This is pretty interesting.

It seems that if companies wish to benefit from the economic advantage of having their copyrighted materials available for sale, they need to take responsibility for the losses that result from such exposure as well. Nobody ever sold a product by keeping it locked away in secured warehouse. Products must be brought to market and that brings risks.

When someone steals an item from Sears, the merchant cannot expect to sue Ford because it was spotted as the getaway car. Sears must find a way to deal directly with the loss. They can do this either through the police (a professional group paid by taxpayers), or their insurance (another professional group that they pay). I think that's the point this ISP is making -- "You want to recruit me for your police force? Will do! How much are you willing to pay?"

If copyright holders continue to insist that ISP's participate in recovery of their losses, they should expect to pay for these services as part of the cost of business and loss prevention.

[paulvinla]

I think you hit it on the head.... One problem here is that the police are ill equipped to handle this type of crime. Why pay someone else to do it if you can scare the ISP into doing something that they are fully capable of doing?

[Bill_I]

Insurance companies and their agents are professionals, eh? They are are great at writing unreadable contracts, grabbing the premiums, threatening to cancel, pre-existing conditions, etc. When you dare to actually submit a claim, the games such as denying coverage, partial and late payments, etc. commence with vigor. I would rather deal with the Mafia.

[embee_em]

I don't believe this. As I read this article, I got a letter via snail mail from Cablevision. The exact same letter shown above - word to word - is attached. But this time safenet is representing "HBO". Obviously, they have used our public IP address to "threaten" us with this letter.

[TomMariner]

Artists deserve payments for the use of their works of art.

However, there are laws other than intellectual property. I would be interested to know how "Tommy" knew that a particular file out of the trillions downloaded was infringing unless he was invading privacy by monitoring everything? And what happens to the records of downloads that are not the subject of the privacy attack? Does the accused not have the right to ownership ofr those records and the right for monetary damage in case "Tommy" uses them for another purpose? Is "Tommy" guilty of wire tapping?

And what proof does "Tommy" have that the file was not downloaded by mistake? That it was ever listened to? That it now exists on the fellow's computer? That it has not been copied to a backup? that it has been shared with others for or without compensation?

And what proof does the accused have that "Tommy" actually has the right to speak for the copyright holder? That he i not some dude in a Nigerian phone bank trying a new scam after the "deposed dictator" runs out of steam? What proof is there that Frank Zappa ever filed for copyrights, paid fees and that they are still in force? And not being challenged by another decendant or lien holder of Mr. Zappa?

And how many other people have been learned of the accusation of larceny? And could this accusation have a monetary effect on the object of the demand letters? Could he lose his job or be denied credit because he is accused but not convicted of being a thief?

And is "Tommy" inpersonating an officer of the court? And does he have credentials to be practicing in the jurisdiction of the accused?

And of course the compensation and the agreement to hold harmless, etc.

I'm no lawyer, but it sounds as though "Tommy" has a lot to prove regarless of the file download by the accused; no privacy violation, no fraud, no Internet crimes, no illegal use of credentials, and of course, the matter of payment. All this adds up to a very fertile field for "anti anti downloading" attorneys who will make the accuser jump through even more hoops that the accuser wants this poor shlep to do. And start with the demand that if you are serious, get a judge qualified to rule in the jurisdiction to sign something.

But, if the song really was downloaded and used, find some way to compensate Mr. Zappa's family.

[Hep Cat]

You must have missed the part where the RIAA, Sonny Bono, and a host of other corrupt legislators wrote laws that essentially:

-Make it OK to invade the privacy of your home and Internet connection without a warrant
-Assume guilt
-Demand summary judgement based on unverfiable and often demonstrably false information from companies like SafeNet.
-Make it illegal to use information you've already paid for.

Maybe if people had been paying attention over the past few years instead of trying to "pimp my house" and playing credit shell games, we'd have our rights intact and a healthy economy.

[Hep Cat]

"What proof is there that Frank Zappa ever filed for copyrights, paid fees and that they are still in force?"

Zappa probably never owned the music anyway, even though he wrote it and performed it. The record company did. And the copyrights are on file at the USPTO, where they will likely be in force for perpetuity, since the Mouse and his friends in Congress keep extending copyright laws for corporations while making it hard for individuals to protect their own work.

[doconn7]

RIAA needs to get RIAAL (real) there is only one way to solve piracy. Thats to charge a fair price for the product.
If industry and artist's are overwhelmingly getting filthy rich then we are paying too much. The industry needs to change. Charging $15 -$25 for a CD is an outrage. Even a dollar a down load is absurd, it should be more like $0.10 People will pay a reasonable fee for things but when you cheat people and create a monopoly so you can gouge people you will become the enemy.

[protagonistic]

I was under the impression that people paid to have garbage removed. Leave it to the RIAA to decide we should pay them to remove their garbage.

[medezark]

The RIAA isn't in the business of reimbursing artists. They have a long history of collecting royalties and not distributing them (because they can't "locate" the artists). They also deduct from the royalties that they do distribute fees related to "breakage", and these fees are scaled to old wax (shellac) records, which had a much higher dammage rate than CD's, much less the 0 dmg rate of electronically distributed files. Even though the record industry woul have us believe that they are acting in the interests of the artists, they aren't.

[iianantir]

The thing about the one dollar downloads is that the artist only sees about $.08 of that, the music company gets another $.14 or so and the rest goes to iTunes or whoever you bought it from. There was a contract that was trying to be pushed through that would bring the rates for the artists up to about $.12 per song but Apple threatened to shut down iTunes due to the NEED to go to over $.99 per song. Since they sell over a million songs a month they have the clout to force the industry to play there tune as it were. It's really quite sad that the artists who created this intelectual property are totaly lost in the shuffle and are marginalised buy the industry that they SHOULD own.

[Hep Cat]

"is that the artist only sees about $.08 of that, the music company gets another $.14 or so and the rest goes to iTunes"

I don't know where you read that, but the actual numbers are unknown to all except Apple's accountants. the best estimates put Apples profits at no more than $0.10 a song, and probably less after advertising and promotion is figured in. The record label gets at least $0.69 per song, from which THEY get to decide how much the artist gets. Apple has absolutely no say in how much artists are paid for their work.

You want a villain? Single out the RIAA and their member labels - not Apple. You wouldn't blame Target or Wal-Mart for selling CDs at $16.00 each when the artist gets an equally paltry cut, right?

[Bill_I]

I agree. It costs way less than $1 to press and package a music CD or movie DVD. Cycle time for a vinyl disc is as short as 30 seconds, but automated CD pressing has a cycle time of about 3 seconds. OK, so there are various royalties and distribution costs to be paid, but a CD at retail should be more like $3.98. The reason people rip music and movies, is because computers make it so easy. A while back, you could tape cassettes off the radio or a TV show to VHS for personal use, you still can, its just more bother.

[spark9991]

it isn't the ISPs responsibility to enforce copyright. They are a platform and the law protects them from these attempts to co-opt them

[GlennAllen]

Hmmm... when are artists going to start paying royalties to everyone who inspired their works of "art"? (My guess: never.) An artist deserves no more than what some "patron" is willing to pay. I haven't heard anything in over a decade that I think is worth having/owning, let alone paying for. (I've never downloaded ANY piece of music... in case anyone was wondering.)

[JonZane]

There is a very simple solution in order to avoid all this: use Tor. I use Tor for all my downloads. Sure, sometimes it can be a little slow, especially going through servers in Germany, but, hey, it works. And it doesn't leave any trace-backs. It is also free.

[MSSlayer]

Tor is rather easy to exploit.

[MeZzAniNE-]

Did you guys forget to block out one of the AE reference numbers on one of the email headings? Seems a little too specific for public viewing if you edited the rest...

[v0dkacomradwe]

Wow is this America or is this the friggin Soviet Union now? Everything you say and do is monitored and WILL be used against you, likely without due process or a court of law (or any law). Pretty soon the way your ISP gets involved and the warning letters they send won't be about whether you downloaded something that could be illegal, but maybe whether it's objectionable, might hurt somebody's feelings, maybe isn't moral, doesn't go with the "status quo", could be construed as religious, or maybe it doesn't follow accepted "norms" in your community, state (province) or country? Where does it stop? Ask people who have come from North Korea, Iran, China...you'll hear how bad it is. I am referring to corporate entities themselves, or ones that can encourage government and law enforcement or ISPs to be exact, to spy on you and implicate you in ANYTHING in ANY way. Is this is kind of country we want? I am not defending illegal music downloading or any illegal activity, but I'll be damned if I am EVER going to allow some private company like the RIAA or Media Defender or my ISP that I pay LOTS of money to every month to spy on me. As one shining example, several years ago I had my internet service cut off because my ISP sent me a letter accusing me of file sharing which I had not done (oh kind of like the bullcrap letters in this article). I was without internet for a week. Then they tried to BILL me for Internet access for that week that I had NONE! I called customer service and tried to explain this as nice as pie, to no avail. I tried to talk with their support people and tried to discuss the fact that I have a DHCP lease for them and maybe someone else did this (the response I got was basically um...DHC-what?? The IP address changes, really??) Really. I even wrote a letter, with it I included a copy of the one they sent me with the bogus accusation, and mailed it to them. No return mail, no phone call, not even an email reply two weeks later. So I called them back, this time asked for a manager, explained that they falsely accused me and that they cut off my service and tried to bill me when they shouldn't be for that week, etc. I even told him if he could at least get the billing thing worked out, I'd consider dropping the rest. The guy wasn't listening and was just telling me "pay my bill or else" and then rudely cut me off mid sentence and transferred me to the ISP COLLECTIONS department! I asked to be immediately transferred back to and I then told the bozo "manager" point blank that I would contact law enforcement within minutes of hanging up to report fraud and extortion and that I would come down to their office with an officer if it took that, and that if I had to do that I would definitely take legal action about the bogus sharing accusation and the false billing because you can't be forced to pay for services that you don't render. I WON, but you all lost. Why? The sad fact of it all is that YOU, my fellow cable ISP subscribers ended up paying that week that I didn't have cable Internet after THEY screwed up (thank you btw). And guess who's going to pay too if your ISP gets in legal hot water for becoming Hollywood and the music industry's little "tool"? YOU the customer! With the talk of bandwidth caps, and now spying on your activity...it really makes one wonder how great the Internet really is? You can try using all the "tracker" avoidance software you want, Tor, PeerGuardian, obfuscation, etc, etc, etc... It won't matter in the end because your ISPs will start analyzing your little packets down to their little 1's and 0's and breaking your encryption (which alot of sniffing devices can already assist somewhat in doing (especially SSL) ). Wow. Never thought I'd say this...ME, an IT professional with years in technology...really like technology in all its forms...grew up on computers...finally saying I wonder if the Internet is such a great thing after all if it is such a threat to our well-being and to democracy?

[Sausagebiscuit]

Wall of Text crits you for 2,000 physical damage. You have been slain by Wall of Text.

[FargoUT]

LMAO @ Sausagebiscuit!

I really enjoyed and agreed with the response, but a paragraph break would be nice every now and then.

[Pete Bardo]

I'm with v0dkacomradwe. The internet was billed as the great equalizer, giving individuals and small businesses the same footing as the big corps. Sure, it has (had) the potential for great things. But all great things can be limited by small minds like those of the RIAA and the like.

The internet is just another avenue for communication, and that road is filled with traffic from the big corporations who, for some reason, seem to think they need protection from us individuals (and small businesses).

It's all crap, and it's all the US produces. No wonder our economy is in the pits!