Screeners are advance copies of recent movies that are generally sent out to critics and awards voter for review.

 

Some of these copies end up in the hands of pirates and are subsequently published online. This includes screeners of potential Academy Award nominees, which usually appear around December.

Netflix Screeners Leak

Over the past two years, this trend was broken. In 2020, the first movie screeners surfaced in October and this year the Netflix movies “The Power of the Dog” and “The Guilty” leaked even earlier.

 

While the leaked films are labeled as screeners, they don’t appear to be the typical award show releases. Instead, release group EVO hinted that they were sourced from a film festival. The name of the festival was kept private but in our earlier report, we mentioned the Toronto International Film Festival (TIFF) as an option.

 

TIFF is in full swing and both Netflix titles are on the ‘screening’ program there. This could all be a coincidence but after the films leaked, TIFF was quick to hire a takedown service to have links to the leaked movies removed from Google’s search results.

TIFF Issues Takedown Requests

With these types of prominent leaks, we always keep an eye on online enforcement activities. Initially, we expected that Netflix would be quick to issue a series of takedown requests but, thus far, the Toronto Film Festival has been the most active.

 

Shortly after the leaks became public, the renowned anti-piracy outfit Web Sheriff sent a series of takedown notices on behalf of TIFF, asking Google to remove hundreds of URLs from its search engine. These links point to leaked screener copies of “The Power of the Dog” and “The Guilty.”

 

 

The takedown notices are not direct evidence that the leaks originate from TIFF. After all, the festival secured permission to broadcast the titles, so it could be simply be protecting its ‘rights.’

 

That said, this week’s notices only cover the leaked screeners and they are the first takedown requests TIFF has sent in nearly a year.

No Official Comment Yet

The above makes it more likely that the film festival is inadvertently the source of the leak. We reached out to the festival requesting a comment on our findings and its potential link to the pirated screeners but the organization didn’t immediately reply.

 

When screeners of “Falling” and “My Salinger Year” leaked last year we identified the annual Vancouver International Film Festival (VIFF) as a potential source. The leaks appeared shortly after they were screened at the festival, but this potential connection was never officially confirmed.

 

Companies that own copyrighted works have the option to monetize them in any way they see fit. For movies this can include releasing them in theaters, licensing to streaming services, or releasing on physical formats such as blu-ray.

 

None of these avenues are inherently controversial but for some companies another option is attractive; track down people who allegedly downloaded and shared movies online and warn them that they could soon be facing a lawsuit.

 

In some cases, people will opt to pay a settlement fee, which over hundreds or even many thousands of threats, can amount to a significant new revenue stream for the movie company.

 

This type of scheme (often labeled ‘copyright trolling’ due to the generation of revenue through strategic litigation) exists in many countries around the world. In the UK, for example, many copyright holders have tested the waters in the past, sometimes with significant controversy. However, those earlier mishaps aren’t deterring US company Voltage Holdings, which recently obtained permission from the High Court to contact alleged pirates in the UK.

Warning Signs Appeared a Few Months Ago

As we reported back in July, various movie companies known for demanding cash settlements have been massing under a legal partnership called FACT Administration LLP, which has direct connections to the Federation Against Copyright Theft.

 

Several of the movie companies are Voltage affiliates and in our second report on the topic, we wondered whether members of this coalition intended to go after alleged pirates in the UK. That now appears to be the case.

Voltage Holdings Obtains High Court Order

Back in July, Voltage Holdings obtained a High Court order against ISP Virgin Media which requires the ISP to hand over the personal information of subscribers alleged to have downloaded and shared Voltage’s movies without permission.

 

The handover of customer data took place and Virgin customers are now receiving correspondence relating to their allegedly infringing behavior.

 

TorrentFreak has obtained documents that show commercial law firm Lewis Silkin LLP writing to Virgin customers claiming that they have been identified as people who pirated ‘Ava’, a movie that achieved a score of just 16% on Rotten Tomatoes’ ‘tomatometer’.

The Voltage Letter to Virgin Customers

The letter sent to Virgin customers states that Voltage engaged a “forensic computer analyst” who specializes in tracking piracy on peer-to-peer networks, in this case BitTorrent. After receiving the user’s IP address from the analyst, Voltage obtained an order compelling Virgin to hand over the subscriber’s personal details relating to a specific IP at a specific time.

 

“This letter assumes that you, as the account holder for the infringing IP Address, were the user of the relevant device on the dates and times at which Ava was shared without the consent of VOLTAGE. The purpose of this letter is therefore to give you an opportunity to admit or deny that your broadband account was used via BitTorrent in relation to Ava on the occasion specified above,” the letter reads.

 

Voltage’s letter states that the alleged infringement represents breaches of the Copyright Designs and Patents Act (CDPA) in respect of the copying of the work (downloading) and distributing of the work (uploading).

 

“Since the file-sharing is unlawful, VOLTAGE is entitled to bring court proceedings against you if it can show on the balance of probabilities that you are the person who engaged in the file-sharing or if you authorized or allowed someone else to do so using your broadband connection,” the letter continues.

 

“This claim would be brought in a specialist civil court called the Intellectual Property Enterprise court, where liability is determined on the balance of probabilities. The onus would be on VOLATGE to prove these allegations of infringement.”

 

In the event of a successful claim, Voltage says it would be entitled to recover compensation to reflect any losses suffered. The defendant would also incur legal costs if they choose to instruct lawyers.

Was it The Subscriber Or Someone Else?

While in the first instance Voltage is assuming that the bill payer is the infringer, the movie company also leaves the door open for an explanation to the contrary. Voltage says that if the letter recipient can convince the company that they were not using the IP address on the specified time and date to download/share the movie Ava (and/or did not authorize someone else to do so), then no further action will be taken.

 

However, if the recipient does want to admit to the claims that they (or someone authorized by them) downloaded/shared the movie, Voltage is prepared to enter into a settlement that would involve a promise not to infringe its rights moving forward and the payment of compensation. The precise amount is not detailed but it is likely to be many hundreds of pounds and possibly more.

 

Letter recipients are being given 14 days to respond to Lewis Silkin with their proposals but are also advised to seek legal advice from a solicitor or Citizen’s Advice.

Virgin Media Confirms Subscriber Data Handover

Speaking with TorrentFreak, a Virgin Media spokesperson confirmed that the company had indeed handed over subscriber information to Voltage Holdings.

 

“We take the privacy and security of our customers’ data very seriously. Virgin Media will only ever disclose customer information to third parties if required by law to do so through a valid Court order,” the company explained.

 

“In this case a Court order was successfully granted to Voltage Pictures which means a very small number of Virgin Media customers may now receive correspondence from this organization. Any customer who receives a letter should note that the Court has not yet made any findings of copyright infringement against them. This would be a matter to be determined by the Court in any subsequent claim.”

 

TorrentFreak asked Virgin Media precisely how many customers are affected since the usual modus operandi of companies seeking cash settlements rarely involves “a very small number” of subscribers. Virgin did not provide this information but we are aware that Virgin is not the only ISP required to hand over information.

 

While yet to be officially confirmed by those companies, we believe that other major ISPs in the UK are also required to hand subscriber data to Voltage and may have already done so. We have contacted the press offices of the more likely candidates and will report back here when the companies respond.

 

TorrentFreak also contacted Michael Coyle of Lawdit Solicitors who has acted for hundreds of individuals in similar cases since they first appeared in the UK back in 2006.

 

“I’m very surprised that these speculative campaigns have resurfaced, especially when you factor in the history. I thought everyone had learned their lesson but apparently not.”

 

Anyone contacted by Voltage or related companies can reach us here in confidence

 

During the COVID pandemic, studios including Disney, NBCUniversal, and Warner Bros have experimented with shorter release windows.

 

In some cases, titles premiered on streaming services and at the box office at the same time.

 

This is good news for consumers, who have more choice. However, movie theaters see these experiments as an existential threat. They believe that without exclusive windows, their revenues will tank.

Exclusive Theatrical Window

These concerns have now been heard, at least partially. A few days ago Disney announced that it will grant a 30 to 45-day exclusive release window for the remaining films set to release in 2021. This means that Disney+ “premier access” to movies will be shelved, at least for now.

 

It’s not clear whether Disney’s decision was influenced by the pushback from movie theaters. The same is true for the impact of piracy, which was also widely cited as a concern.

 

When films premiere online this generally means that a high-quality pirated copy will start circulating almost instantly. These are typically pirated more often than low-quality ‘Cam’ releases that come out of theaters.

‘Black Widow’ vs. ‘Shang-Chi’

We can illustrate this by comparing the piracy activity for “Black Widow” with that of “Shang-Chi and the Legend of the Ten Rings.” Both are Marvel films released by Disney, but they used different release strategies.

 

Black Widow was released in theaters and on Disney+, which meant that a high-quality pirate release was made available right away. Shang-Chi, on the other hand, had an exclusive theatrical window. While the film was pirated early, all copies are low-quality releases recorded from a movie theater screen.

 

So how do these two compare? Below is an overview of the piracy numbers for both films, starting on the day of the premiere. These numbers are taken from a large sample of U.S. BitTorrent data, which acts as a decent proxy for the overall interest among pirates.

 

Black Widow vs. Shang-Chi Piracy (*)

 

The above clearly shows that Black Widow was pirated more. There was a massive surge from the start and, after the first 10 days, it was pirated four times more than Shang-Chi.

 

The interest in Shang-Chi is decent but relatively flat. There was no massive surge, but that may still come when a high-quality release is eventually published. All in all, the above is in line with the expectation that pirates prefer to wait until a higher-quality copy is available.

 

But did the lack of a high-quality pirate release for Shang-Chi result in more domestic box office visits? We can’t really answer this question with the data we have. After 10 days, Shang-Chi generated slightly more revenue at the box office. However, the first day was clearly better for Black Widow.

 

Black Widow vs. Shang-Chi Box Office (*)

 

The big question, however, is what the graph above would look like if Chang-Chi had a simultaneous release as well. Would the box office numbers be substantially less?

 

This is the million-dollar question Disney has probably been trying to answer over the past few months. We don’t know if they have reached a conclusion yet but since the exclusive theatrical window is back now, we assume that simultaneous releases haven’t generated a windfall in extra profits.

 

Even if Disney earned slightly more by getting rid of the release windows, which is possible, there are other long-term factors to weigh in.

 

For one, the media giant has a great century-long relationship with theaters that it doesn’t want to throw away. In addition, the company might simply not like the fact that their flagship titles are instantly pirated in high quality.

 

Finally, it’s worth noting that the numbers above are limited to the United States. Looking at the international picture, varying release strategies will complicate things even further.

 

At this point, it’s too early to draw strong conclusions but it will be interesting to see how this develops over time. Are simultaneous releases mostly a side-effect of the COVID pandemic, or will we see more of these experiments in the future?

 

—

* The number of estimated US-based BitTorrent downloads is based on data from Iknow. The domestic box office numbers, which also cover Canada, are sourced from Box Office Mojo

 

Early July, Warner Bros., several Universal companies, Amazon, Columbia, Disney, Netflix, Paramount, Sony, and other content creators filed a lawsuit against Jason Tusa, the alleged operator of Altered Carbon, Area 51, and other pirate IPTV services.

 

According to the complaint filed in a California court, Tusa is well known to the plaintiffs. In 2020 his Area 51 service was shut down following an Alliance For Creativity and Entertainment (ACE) cease-and-desist letter. A settlement proposal included a clause that Tusa couldn’t launch or be involved with any similar services.

 

While Area 51 was shut down before the proposed settlement was signed, the plaintiffs claim that Tusa then launched a clone service called SingularityMedia which took on Area 51’s customers. ACE responded by contacting Tusa again, demanding that the new service should be shut down. It later disappeared.

 

A confidential settlement was reached in October 2020 but it’s claimed that the defendant then launched Digital UniCorn Media and another service called Altered Carbon. At this point, ACE ran out of patience and responded with the current lawsuit alleging direct and willful copyright infringement, contributory copyright infringement, and inducement of copyright infringement for more than 100 copyright works.

 

Tusa failed to respond to the lawsuit and last month United States District Court Judge Virginia A. Phillips handed down a preliminary injunction that restrains Tusa and takes action against the domain names used to operate his services.

Plaintiffs File Motion For $16.35m Default Judgment

In a motion for default judgment filed yesterday, the plaintiffs now seek maximum statutory damages for willful infringement of $150,000 per copyright work for a total of $16,350,000. They also seek execution of the settlement sum previously agreed with Tusa (details of which are confidential), a permanent injunction, interest and attorney’s fees of $332,600.

 

“Tusa is the individual responsible for, and he directly operated, managed, and ultimately profited from, the willful infringement of Plaintiffs’ copyrights in their movies and television shows…through a string of unauthorized movie and television streaming services. Settled law permits entry of default against willful infringers like Tusa who make a strategic decision to not defend their conduct in court,” the motion reads.

 

While this lawsuit deals with a relatively low number of copyrighted works, the studios say that through his unlicensed platforms, Tusa infringed their rights in many more movies and TV shows. While including more titles had the potential to make the case more unwieldy, it’s clear that the $16.35m demand represents just a fraction of the damages the studios could have claimed.

 

“A complete accounting of the scope of Tusa’s infringement would undoubtedly run to thousands of Copyrighted Works,” they write.

 

“Tusa flaunted his wealth from the infringing services on social media, including posting about the purchase of a luxury car with an AREA 51 vanity plate that he said he would decorate with ‘Rick And Morty’ theme. Presumably, Tusa paid for his new car with the ill-gotten proceeds of his infringement.”

 

Due to Tusa’s previous conduct, the studios remain concerned that he will resurrect his services if the court does not restrain him.

 

“Tusa did shut down Altered Carbon after Plaintiffs filed this action — just as he has done when confronted previously = but his actions confirm he will not refrain from further infringement absent an injunction. Based on Tusa’s repeated actions, it is clear that if he is not enjoined, Tusa will simply rebrand his service and start his infringing conduct all over again,” the studios add, demanding a permanent injunction.

Permanent Injunction

One of the key aims of the proposed injunction is to prevent Tusa from engaging in similar conduct, such as operating any of the named services or any that may appear in the future utilizing the plaintiffs’ copyrighted works.

 

To this end the studios also demand an order preventing Tusa (and anyone acting in concert with him) from taking any steps to “release publicly, distribute, transfer, or give any source code, object code, other technology, domain names, trademarks, brands, assets or goodwill” in any way related to the named services.

 

The studios also wish to take control of the domains alteredcarbon.online, 2pmtoforever.com, catchingbutterflies.host, stealingkisses.me, dum.world, twoavocados.us, plus any other domain that has been used for infringement of their rights.

Breach of Contract

As noted, Tusa reached a settlement agreement with the studios on October 12, 2020. According to the studios, they upheld their part of the deal but Tusa did not. The financial aspect of the settlement is confidential but whatever the amount, the studios now want to call in the debt.

 

“Tusa materially breached that agreement when he subsequently launched his follow-on infringing IPTV streaming services, including Altered Carbon. Plaintiffs suffered both irreparable harm and concrete damage in additional costs to bring Tusa into compliance. Tusa is therefore liable for the confidential Settlement Sum,” they inform the court.

 

The motion for default judgment and proposed default judgment can be found here and here (pdf)

 

The data for our weekly download chart is estimated by TorrentFreak, and is for informational and educational reference only.

 

These torrent download statistics are only meant to provide further insight into the piracy trends. All data are gathered from public resources.

 

This week we have three new entries in the list. “Escape Room: Tournament of Champions” is the most downloaded title.

The most torrented movies for the week ending on September 13 are:

Movie Rank	Rank last week	Movie name	IMDb Rating / Trailer
Most downloaded movies via torrent sites
1	(…)	Escape Room: Tournament of Champions	5.9 / trailer
2	(3)	The Suicide Squad	7.6 / trailer
3	(2)	Don’t Breathe 2	6.2 / trailer
4	(…)	Malignant	6.3 / trailer
5	(5)	Shang-Chi and the Legend of the Ten Rings	8.1 / trailer
6	(10)	Black Widow	7.0 / trailer
7	(…)	Kate	6.4 / trailer
8	(7)	F9: The Fast Saga	5.3 / trailer
9	(2)	The Protege	6.2 / trailer
10	(9)	Jungle Cruise	6.8 / trailer

 

Note: We also publish an updating archive of all the list of weekly most torrented movies lists.

 

For the past several years as part of the country’s website blocking efforts, Russian authorities have warned that VPN providers could be next on the list.

 

The problem according to Russia is that these services can provide access to material it prefers citizens not to see, everything from pirated content right through to terrorist propaganda.

 

In the view of the authorities, VPN providers should cooperate with the government but many are unhappy to do so, especially if that involves any type of monitoring or censorship of services that Russia deems offensive.

 

After making broad threats against a range of services in 2019, Russia made good on its warnings by blocking two providers, VyprVPN and OperaVPN. Then, earlier this month, local telecoms watchdog Roscomnadzor said it would block several more including Nord VPN, ExpressVPN, IPVanish, Hola! VPN, KeepSolid VPN Unlimited, and Speedify VPN.

Russia Anticipated There Would Be Problems

In advance of blocking the providers listed above, Russia reached out to the banking sector to ensure that any blocking wouldn’t hurt their activities. The Central Bank then contacted related companies asking them to confirm the names of the VPN services they use, if any, along with the purpose of that use and any known IP addresses.

 

According to a report from RBC, Roscomnadzor advised that it planned to “implement a set of measures to restrict the use of services,” and the information was needed “in order to exclude VPN connections from access restriction policies.”

 

According to Roscomnadzor, it received responses from 64 industry organizations, 27 of which use the mentioned VPN connections to support 33 technological processes. “More than 100 IP addresses were presented in order to exclude them from access restriction policies,” the watchdog reported.

 

Despite these efforts, however, it appears that Russia’s attempt at blocking the providers may have overstepped the mark.

Disruption Reported On Multiple Online Services

After the new blockades came into effect, multiple online services reported that they were suffering connectivity issues. According to a Kommersant report, these include the game World of Tanks, gaming streaming service Twitch, FlashScore (a service used to access football scores and results), and even BitTorrent transfers. The operators of MMO game World of Warships posted to their portal to explain the problems.

 

“In early September, by order of Roscomnadzor, Internet providers began blocking VPN services. DPI equipment is used to execute orders by providers,” they write.

 

“In the process of blocking VPN services, many UDP ports were affected, including those that have been used in our game since the start of the very first alpha testing. This situation has affected not only large backbone providers, but also many local ones, of which there are a huge number on the territory of Russia.”

 

World of Warships says that the blocking of UDP ports prevented people from logging into their game and also caused disconnections for people already playing. Those affected should contact their ISPs, the company says, but whether this is yielding positive results is unknown.

 

Twitch did not respond to a request for comment but FlashScore says that it too has experienced problems. However, despite investigations, it had yet to determine what had caused the technical issues.

Roscomnadzor Rejects Blame, ISPs Aren’t So Sure

Russia’s telecoms watchdog says that despite claims to the contrary, it believes that the network issues did not appear as a result of its work.

 

“When implementing measures to block VPN, the specified UDP ports were not blocked,” a spokesperson said. Sources inside several ISPs in Russia aren’t so sure.

“(s)ources in the Big Four operators said that they had already tested their own networks and that the reason for the difficulties was the operation of the TSPU equipment (technical means of countering threats), which Roskomnadzor installed on the networks within the framework of the law on ‘Sovereign RUnet‘,” Kommersant reports.

Blocking Providers Just One Part of Russia’s Stance Towards VPNs

As reported back in June, Russia is attacking VPNs on multiple fronts. Every week, Roscomnadzor sends orders to Google to remove hundreds of URLs of sites and services that reportedly allow access to pirated content.

 

Unfortunately, Russian law does allow Google to share the precise URLs being targeted but searches on the Lumen Database confirm the existence of takedowns affecting more than half a million links in the past two years.

Pirated copies of movies leak all year round, usually after they come out on streaming services or through digital release. That by itself is nothing special.

 

Screener releases are a notable exception to this rule. These are advance copies of recent movies that are generally sent out to critics and awards voters.

 

The screeners are supposed to remain private but every year a few end up in the hands of pirates. These leaked copies are then published online, sometimes months ahead of their official release dates.

‘The Power of the Dog’ Screener

That’s exactly what happened to two Netflix titles over the past hours. While ‘screener season’ usually starts around December, a leaked copy of the Netflix movie “The Power of the Dog” was published on Sunday.

 

The film, starring Benedict Cumberbatch and Kirsten Dunst, is officially scheduled to copes on December 1st. However, over the past few hours, tens of thousands of pirates already grabbed an early copy.

 

The leak was published by the pirate release group EVO, which also released the first screeners last year. The source is an online screener, which has become the new standard in recent years.

 

The release is tagged as a ‘WEBSCREENER’ which confirms that the copy was obtained from a screener copy made available over the Internet. While some had hoped that these online releases would be easier to secure, the current leak clearly shows that there are weak spots.

 

The.Power.of.the.Dog.2021.WEBSCREENER.XviD.AC3-EVO  

 

TorrentFreak contacted EVO to found out more about the source for this screener, but the group said that it can’t say anything about the ‘festival’ it’s connected to due to security reasons.

‘The Guilty’ Screener

The release group did mention, however, that another movie would be leaked soon. And indeed, after a few hours, another prominent Netflix screener was posted online. This time it’s the Jake Gyllenhaal film “The Guilty.”

 

The.Guilty.2021.WEBSCREENER.XviD.AC3-EVO has since been republished on various pirate sites. The movie officially premieres in early October, which means that pirates can see it earlier than paying subscribers.

 

These screeners appear to be too early for the Academy Awards. And since EVO suggested that the leaks are sourced from festival screeners, we have to look elsewhere.

Film Festival

Interestingly, both “The Power of The Dog” and “The Guilty” are in the screener lineup of the annual Vancouver International Film Festival (TIFF). This festival started last Thursday and is currently ongoing.

 

Like many other festivals, TIFF hosts both in-person and online screenings. The latter has become increasingly common during the COVID pandemic.

 

While we can’t know for sure where these leaks come from, it’s pretty clear that screeners can still leak when festivals and award shows move to digital screeners only, which is the case for the Oscars as well.

 

“Let’s hope the season starts,” EVO told us, referring to the traditional ‘pirate screener season.’ However, the group didn’t say whether more films are expected to leak anytime soon.

 

BitTorrent is an excellent distribution mechanism but, for a file to live on, at least one person has to keep sharing it.

 

This means that most torrents eventually die after the public loses interest. However, some torrents seem to live on forever.

The Fanimatrix

The oldest surviving torrent we can identify is a copy of the Matrix fan film “Fanimatrix.” The torrent was created in September 2003, which means that it will turn 18 this month. A remarkable achievement.

 

The film was shot by a group of New Zealand friends. With a limited budget of just $800, nearly half of which was spent on a leather jacket, they managed to complete the project in nine days.

 

While shooting the film was possible with these financial constraints, sharing it with the world was a bigger challenge. At the time there were no free video-sharing services and YouTube had yet to be invented.

No Money For Distribution

Hosting the film on a private server wasn’t an option either. Bandwith was still very expensive, especially in New Zealand. If the project was to be a success, the friends would have to pay many thousands of dollars extra to distribute it.

 

This is when one of the friends, Sebastian Kai Frost, went looking for other options. Frost had a bit part in the film and also operated as the ‘IT-guy’. After searching for solutions, he eventually stumbled upon a new technology called BitTorrent.

 

“It looked promising because it scaled such that the more popular the file became, the more the bandwidth load was shared. It seemed like the perfect solution,” Frost told us earlier.

BitTorrent To the Rescue

This was exactly what was needed to get the Fanimatrix published worldwide. So, after Frost got the green light from the rest of the crew he created a torrent on September 28, 2003. To ensure that everything ran smoothly, he also ran his own tracker from a Linux box.

 

Fanimatrix
 

The Fanimatrix turned out to be a great success. In the first week alone, 70,000 people grabbed a copy of the film. This is quite an achievement, especially when considering that BitTorrent wasn’t as widely known or easy to use back then.

 

With BitTorrent, the film crew easily saved hundreds of thousands of dollars in distribution costs. It was the perfect use case for how the technology could help independent creators.

Preserving Internet History

Today, there are plenty of free ‘instant streaming’ options available that make BitTorrent look silly. However, it is great to see that the Fanimatrix is still being shared after all these years. It’s part of Internet history now.

 

And with the fourth installment of The Matrix scheduled to premiere later this year, the project may gain some extra traction as well.

 

TorrentFreak spoke to Frost this week who doubled down on his earlier promise to keep the Fanimatrix site and the torrent running for as long as possible. He’s even taken some precautions, in case of an early departure from this world.

 

The original Fanimatrix site went offline for a while, but Frost restored it years ago and plans to keep it online for as long as possible. The crew is also considering a special celebration in two years, when the two-decade mark is passed.

 

Two years ago we reported on a wave of bogus DMCA notices that targeted various adult sites. Many of those platforms were so-called ‘hentai’ sites which focus on adult-orientated comics and cartoons.

 

The theory was that these bogus notices were sent by rivals or competitors to these platforms in an effort to damage their presence on the web. While unaffected by that wave, the operator of adult site Rule34 – a site with around 100 million monthly visitors – now believes he is being targeted in a similar but entirely more serious way.

Traffic to Rule34’s Homepage Nosedives

In discussions with TorrentFreak this week, the operator of Rule34 explained that sometime around July 13, 2021, Google stopped sending all traffic to the site’s homepage at Rule34.xxx. The immediate concern was that someone had sent a DMCA notice complaining about the page which, incidentally, carries no infringing content.

 

However, after checking with Google the company confirmed that copyright wasn’t the problem.

 

“We have no record of the following URLs having been removed from Google’s search index due to a legal complaint under the DMCA: https://rule34.xxx/. If you believe this is in error, please check the URLs in question again,” Google responded.

 

“If your site wasn’t removed due to a legal complaint and you don’t believe it violates our Webmaster Guidelines, but it isn’t appearing in Google search results or isn’t performing as well as before, you can request reconsideration of your site.”

 

 

As the image above shows, the impact of the delisting was clear but the reasons were less so. That was until Rule34 began digging and found something pretty unsettling.

Google Reveals That Content Was Indeed Removed

By using the query ‘site:rule34.xxx rule34’ and scrolling to the bottom of the search results, Rule34’s operator found a notice from Google: ‘Suspected child abuse content has been removed from this page’

 

While Rule34 is clearly an adult site (The Internet’s informal ‘Rule 34‘ asserts that pornography exists for every conceivable topic), its operator is adamant that his platform has done nothing wrong and would not allow such material, certainly not on the front page.

 

As things stand, Rule34’s operator believes that rather than using bogus DMCA notices to have sites like his delisted, people could be turning to CSAM complaints instead since, as far as he’s aware, there is no way to effectively counter them. So the big question remains: who is behind it?

No Clear Culprit But There Are Options

Early on in our discussions the operator of Rule34 mentioned contact with Russian telecoms watchdog Roscomnadzor which issued a complaint to the site a couple of months ago. The entity, which administers Russia’s site-blocking regime (which covers everything from piracy to terrorism), wrote to Rule34 claiming that there was CSAM on the site’s homepage and, if it wasn’t removed, the site would be blocked in Russia.

 

“We repeatedly asked them what on our front page was [CSAM] but they couldn’t clarify. We then replaced the only thing on there, our logo. But they still blocked the site in Russia. I guess they didn’t like the meme,” he explains.

 

 

However, blocking in Russia is carried out by local ISPs, not Google, and Rule34’s operator says that as far as he can see, the site has been removed from Google everywhere, not just Russia.

 

“From what I’m seeing, the front page is gone in every region. My hypothesis on the situation is that Google doesn’t verify CSAM complaints, so it would be very prone to abuse as there is no counter-form in this case,” he explains.

 

The other possibility is that Google acted on another complaint. Rule34 shared a complaint with TF that was sent to Cloudflare which claimed that the site “is directed at underage audiences using bright colors and familiar characters from tv shows like my little pony.”

 

“I do not want to be contacted about this, that is why my details are intentionally false,” the complainant added while noting that the report had also been sent to the National Center for Missing and Exploited Children (NCMEC).

 

In response, Rule34 contacted NCMEC to ask which URLs were problematic but they said they were unable to confirm if any reports had been made.

 

“This in itself is very strange, considering if any of the complaints were valid then I should remove said content? I firmly believe that CSAM complaints are being weaponized as a tool for censorship as Google becomes better by catching bogus DMCAs,” Rule34’s operator says.

Legal Action is Being Prepared

In order to get to the bottom of the problem, Rule34’s lawyers submitted a letter to Google and while the company’s lawyers say Google is “working on it”, a month has passed with no further action.

 

“We’re currently filing for a suit and the date will likely be somewhere next month. My lawyer said if Google does restore the page before the date I can always cancel. I have little faith Google will actually do anything without it but we’ll see,” the site’s operator explains.

 

It will be interesting to see what information Google provides but in common with DMCA anti-circumvention notices, there doesn’t appear to be a straightforward appeals process to tackle problematic notices. So, in the event this is indeed a malicious attack and not simply a huge mistake, this route could represent yet another weapon in the toolbox for those seeking to hurt or censor rivals.

 

A group of independent film companies has taken the piracy liability issue to a new level this year.

 

After targeting site owners and individual pirates, the makers of films such as “Hunter Killer”, “I Feel Pretty” and “Shock and Awe” started going after VPN providers. And they didn’t stop there either.

 

Over the past few months, several hosting companies have been sued as well. The movie companies argue that hosting services can be held liable because they offer their services to VPN providers which, in turn, have pirates among their customers.

 

According to the movie companies, the hosting services should have terminated their agreements with these VPN companies after repeated copyright infringement warnings. However, the hosting companies see themselves as neutral service providers, not the Internet police.

Quadranet Responds to Piracy Allgetions

A few days ago, Californian hosting company Quadranet replied to the allegations in court. According to the company, the filmmakers’ complaint is a shotgun pleading, and it should be dismissed for that reason alone.

 

However, Quadranet also believes that the copyright infringement claims fail. The company leased servers to LiquidVPN and did indeed receive copyright infringement notices, which it forwarded to the VPN service. That should be sufficient.

Null-Routing Goes Too Far

The filmmakers suggested that the hosting company should have ‘null-routed’ the offending IP-addresses or terminated its service to LiquidVPN, but that goes too far for Quadranet.

 

“LiquidVPN is not a direct infringer. The only alleged direct infringers are some small portion of LiquidVPN’s customer base, who apparently utilized LiquidVPN to access BitTorrent software.

 

“Quadranet had no right to interfere in the relationship between LiquidVPN and its customers, effectively pulling the plug on all of LiquidVPN customers,” the hosting company notes.

At Least Two Steps Removed

The hosting company stresses that it’s at least two steps removed from any ‘involvement’ in the alleged copyright infringements. Quadranet believes it was dragged into the case for tactical leverage only, not because there’s a valid copyright infringement claim.

 

While some LiquidVPN customers may have shared pirated content, that doesn’t mean that a hosting company, whivh doesn’t even know who these customers are, should be held liable.

 

“Under the law, the act of simply leasing computer servers is not ‘substantial’ enough to be considered a ‘material contribution’ to the infringement, much like credit card companies are not liable when they merely process credit card payments to provide access to infringing websites,” the company argues.

0.00001% of All Revenue

The accusation that the hosting provider directly benefited from the infringing activities is refuted as well. Not only does LiquidVPN have many legitimate customers, but the associated revenue was also just a fraction of Quadranet’s income.

 

“Plaintiffs cannot seriously suggest otherwise, especially given that revenue from leasing servers to LiquidVPN, for example, accounted for less than 0.00001% of Quadranet’s revenue during the relevant lease period.”

 

Based on these and a variety of other arguments, the hosting provider asked the Florida federal court to dismiss the complaint.

 

Shortly after the legal paperwork was posted, the court scheduled a mediation hearing, which will take place in April next year. This indicates that the came may eventually be settled in some form or another.

 

—

 

A copy of Quadranet’s motion to dismiss can be found here (pdf). The documents use QI and QE to refer to different Quadranet entities, we changed these to “Quadranet” in the citations above for the sake of readability

 

While millions of people have no qualms about downloading music, movies and TV shows for free, there are also large numbers of students who feel completely justified in obtaining textbooks without paying for them.

 

With often extortionate pricing and a requirement to obtain the latest but only slightly modified versions of books to complete their courses, some students believe that textbook publishers fail to act in their bests interests. As a result, many turn to free or cheaper sources and there is no shortage of people prepared to help them with that.

 

Unfortunately for the suppliers, that doesn’t always go to plan.

Former Student Tracked Down By Anti-Piracy Group

Last week, Rights Alliance reported on the case of a former student in her late 20s. According to the Danish anti-piracy group, the woman had been selling pirated copies of eBooks on a number of online platforms without obtaining permission from copyright holders.

 

The woman is a former student in the social worker program at the Via University College in Aarhus and between January 2018 and April 2020, she reportedly sold digital copies of syllabus books she used in her social worker education. When compared to the level of offending on pirate sites, the woman’s crimes were relatively small – 38 different textbooks were sold in 110 transactions – but that was enough for Rights Alliance to make a criminal referral.

State Prosecutor for Serious Economic Crime

In the fall of 2019, Rights Alliance referred their investigation to the State Prosecutor for Serious Economic Crime (SØIK), providing evidence of the woman’s “systematic offering and sale” of pirated digital books. SØIK determined that there was a case to answer and on September 2, 2021, there was a court hearing where the woman’s guilty plea was heard.

 

During a hearing yesterday, the court in Aarhus convicted the former student for violating the Copyright Act. She was sentenced to 20 days probation and the court determined that the amount she turned over due to the sales of the books (DKK 9,383 / US$1,494) should be confiscated.

 

“In short, copying e-books is illegal if you do not own the rights to them. It is an aggravating factor that a significant number of sales have taken place and that this happened over a long period of time,” says prosecutor Simone Jeppesen.

 

“The convict has now received a punishment for violating copyright law, and thus has a stain on her criminal record. A relationship that may matter to her for many years to come. Therefore, it is important to understand that even though it is easy to do so, it is a criminal offense to copy e-books without the permission of the author.”

 

A release from the court notes that SØIK, on behalf of the members of the Rights Alliance, submitted a claim for compensation of DKK 10,000 (US$1,592), which the woman must now pay in compensation.

 

Two years ago Internet provider Cox Communications lost its legal battle against a group of major record labels.

 

A Virginia jury held Cox liable for pirating subscribers because it failed to terminate accounts after repeated accusations, ordering the company to pay $1 billion in damages.

 

The ISP was disappointed with the verdict and filed an appeal. In its opening brief, filed at the Court of Appeals for the Fourth Circuit last week, Cox argued that it’s incorrectly being held liable for pirating subscribers.

 

Not only that, but the company also warned against the harm that a loss of Internet access can cause to businesses and individuals, equating the sanction to a “digital death penalty.”

 

The music companies disagreed. They countered that Cox is not as innocent as it claims. Instead, they argued that the ISP deliberately prioritized its own profits over limiting piracy.

Cox Doesn’t Want a ‘Notice and Terminate’ Policy

This week both sides filed their replies briefs, which highlights the differences in opinion even more. In its filing, Cox points out that the music companies want a “notice and terminate” scheme to boot persistent pirates off the Internet.

 

“Plaintiffs do not deny it: If the judgment is affirmed, ISPs will be required to terminate any internet connection accused of infringement just once — exiling anyone using that connection, infringer or not—on pain of crushing damages.

 

“They want to replace the flexible, fault-based doctrines of secondary copyright liability with notice-and-terminate … or else,” Cox adds.

Cox Denies Liability

The current verdict against Cox indeed requires ISPs to terminate repeat copyright infringers. However, Cox argues that this ruling should be overturned.

 

Among other things, Cox’s brief stresses it can’t be held liable for vicarious copyright infringements because the company didn’t directly profit from pirating subscribers. It also denies that “repeat infringers” were particularly profitable because they paid for high-speed connections.

 

On top of that, Cox says that it would be impossible to ‘supervise’ the activities of six million account holders in real-time, as a liability finding requires.

 

“The only action that could stop a subscriber from infringing is termination. But the power to impose a draconian punishment is no substitute for proving ‘supervision’,” Cox writes.

 

The ISP further believes that the court erred in holding it liable for contributory copyright infringement. On top of that, it notes that the $223 million damages for derivative works should not have been granted.

Music Companies See a Profit Motive

The music companies see things quite differently. They also submitted a reply brief, directly countering many of Cox’s arguments.

 

They state, for example, that there is ample evidence to show that Cox kept pirating subscribers on board to earn extra money. This is an issue that was previously detailed during the trial.

 

“The trial evidence showed that Cox kept loosening (and ignoring) its policies to avoid having to terminate paying subscribers. The evidence further showed that Cox routinely determined not to terminate accounts so it could continue to collect those infringers’ subscription fees,” the brief reads.

600,000 Disconnections

The record labels also call Cox’s concerns for the Internet connectivity of subscribers into question. They directly quote the comparison to a “digital death penalty,” adding that Cox has terminated hundreds of thousands of subscribers on other grounds over the years.

 

Cox’s Acceptable Use Policy allows the company to terminate customers for various reasons, which it has done repeatedly.

 

“And terminate Cox did — just not for copyright violations. Its termination decisions were money-driven. In 2013 and 2014, Cox terminated over 600,000 residential and 20,000 business customers for nonpayment — over 800 terminations a day.

 

“In Cox’s view, the occasional termination for repeated and flagrant copyright infringement is ‘downright monstrous.’ Termination for nonpayment? Downright common,” the music companies add.

Landmark Case

The above is just a selection of the arguments brought up by both sides. However, they clearly capture the tension, which isn’t expected to subside anytime soon.

 

It is clear that the case will have a crucial impact on how pirating Internet subscribers will be handled going forward. As such, the appeal will be closely watched by Internet providers, copyright holders, and the public at large.

 

—

 

A copy of Cox’s reply brief is available here (pdf) and the reply brief from the music companies can be found here (pdf)

 

While anime is still insanely popular in its home country of Japan, over recent years the popular animation format has enjoyed huge growth in the West, to some extent due to piracy.

 

With studios initially unable or reluctant to distribute their works through official channels, piracy platforms of all kinds sought to fulfill demand and as a result, gained a significant foothold in the market. However, with a wide range of companies such as Crunchyroll/Funimation, Disney and even Netflix now investing significant sums in anime, anti-piracy action is the obvious outcome.

Anti-Piracy Campaign Targets Pirate Apps

Starting early this week, reports began to surface of a new anti-piracy campaign being carried out on behalf of Funimation, which last month completed the acquisition of Crunchyroll from AT&T for a cool $1.175 billion.

 

Seeking to protect its investment and existing business, Funimation is using the services of brand protection company Corsearch, which began writing to the operators of anime piracy apps and services warning that they needed to shut down.

Taiyaki – Shut Down or Face Law Enforcement

One of the first notices appears to have targeted piracy app ‘Taiyaki’. As the image below shows, its operator was asked to comply with a takedown notice or face a criminal referral to law enforcement.

 

 

We haven’t been able to secure a copy of the takedown notice itself but the operator of the platform confirms that in response to the notification, the project has been shelved.

 

“This app is now closed. Unfortunately it was hit by a DMCA by the monarchy company known as Funimation,” he writes.

AnimeGlare – Cease-and-Desist

In an announcement to its users this week, anime app AnimeGlare announced that it too had been targeted by Funimation and had shut down.

 

“Y’all must be wondering why AnimeGlare is not working and why you are not being able to communicate with us, well I don’t know how to tell you this bad news but AnimeGlare recently got a ‘Cease & Desist’ letter from ‘Funimation Global Group, LLC’, meaning we are being forced to shut down all operations immediately,” operator ‘BlackKnit’ revealed.

 

“It was a wonderful journey and I really enjoyed working on AnimeGlare and talking to y’all lovely people, but all good things must come to an end and sadly it’s our time to say Goodbye. As of September 06, 2021, AnimeGlare will no longer be functional, and our website will no longer be distributing any app files. AnimeGlare has officially been shutdown.”

 

At the time of writing, the official AnimeGlare domain is redirecting to show tracking service SIMKL.

Shiro Receives DMCA Notice, Stops Development

Anime app ‘Shiro’ also reported receiving a DMCA takedown this week. Its developer didn’t share the notice itself but it seems likely it followed a similar format to those received by Taiyaki and AnimeGlare. It was sent by Corsearch on behalf of Funimation and contained a threat to refer the matter to law enforcement in Sweden in the event of non-compliance.

 

 

“I just received a DMCA takedown notice from funimation and I’ll therefore cease all development on the Shiro app, but the site will likely stay,” the Shiro developer informs his users.

 

At the time of writing, however, the project’s Github page is down (archive copy here), and the developer also has some advice for others yet to receive contact from Funimation and its agents.

 

“All other developer should probably private their shit asap as this company [Corsearch] is hired specifically for DMCA notices,” he adds.

 

It’s advice that some appear to be taking.

Project Kamyroll and Yukino ‘Go Private’

In response to the takedowns of the other projects, the developer of Project Kamyroll announced that development would cease for the foreseeable future.

 

“Due to many requests as well as the funimation chase that is happening right now, I have been forced to make Project Kamyroll (the Application) private. Currently this is not really a problem as I don’t have time to develop the app, so there won’t be any changes for a very long time,” he explained.

 

“This weekend, I will publish download links for the current version on a server other than github in order to always offer the app to others. I therefore encourage you to talk about the application since it is no longer visible on my github.”

 

A similar position can be found at Yukino, which also made a home on Github with its Android, Windows, MacOS, and Linux application. That project has now been removed (archive copy here) with the developer admitting that in the current climate, getting into legal trouble is something to be avoided.

 

TorrentFreak requested comment from Corsearch but at the time of writing we are yet to receive a response.

 

For more than a decade copyright holders of all kinds have approached the UK High Court with applications for website blocking injunctions.

 

Applicants have included entities such as the BPI (representing the major music labels) and the MPA (movies and TV shows). Over time, these groups have expanded to include organizations such as the Premier League and similar live sports broadcasters, who in the main seek to have pirate IPTV-type operations blocked by the countries leading ISPs.

 

In 2015, The Publishers Association, a UK organization supporting members producing digital and print books, research journals and educational resources, broke new ground by becoming the first entity in the UK to use Section 97A of the Copyright, Designs and Patents Act 1988 to obtain blocking measures.

 

The successful High Court application resulted in an injunction requiring BT, Virgin Media, Sky, TalkTalk and EE to block domains associated with several ebook-related platforms including LibGen, Ebookee, Freshwap, AvaxHome, Bookfi, Bookre and Freebookspot.

The Publishers Association Seeks to Limit Workarounds

In November 2015, the blocking list was expanded to another 16 domains, many of which were deployed by proxy-type services designed to limit the effects of the High Court injunction. Until recently, there had been no public sign to suggest that The Publishers Association intended to take things further.

 

That position changed in August when TalkTalk, one of the ISPs affected by the original injunction and subsequent update, reported that it had been ordered to block a new domain, libgen.unblockit.uno, a subdomain of the unblocking platform Unblockit, that grants access to Libgen (Library Genesis).

 

Then this week, TalkTalk published another update which suggests that from this Friday (September 10) it will be blocking yet more domains that at least in part seek to provide access to both Libgen and Ebookee when their main domains are blocked by ISPs. They read as follows:

ebookee.unblockit.ch, ebookee.nocensor.work, ebookee.123unblock.me, ebookee.mrunblock.casa, ebookee.unbl4you.club, ebookee.unbl0ck.cyou, ebookee.unblockproject.monster, ebookee.proxybit.me, libgen.unblockit.ch, libgen.nocensor.work, libgen.123unblock.me, libgen.mrunblock.casa, libgen.unbl4you.club, libgen.unbl0ck.cyou, libgen.unblockproject.monster, libgen.proxybit.me, libgen.unblockit.uno

Domain Blocks Risk Becoming Outdated

Since the original Publishers Association injunction is six years old already, it’s unclear what type of anticipatory measures were built in from the start. More recent injunctions include options to dynamically adapt to superficial domain and IP address changes that seek to mitigate their effects but if these are not present in the Publishers Association case, they may already be drifting out of date.

 

Unblockit.uno and unblockit.ch, for example, appear to have switched to unblockit.ws, a domain that isn’t listed in the TalkTalk blocking list. The problem is only compounded when visitors to that domain find a list to a whole range of other ebook download sites including Sci-Hub, DownloadBooks, Ebook777, BookSC, ZLibrary and Ebook3000, among others.

Publishing Anti-Piracy Groups Remain Active

While The Publishers Association has yet to publicly chase down ebook pirates themselves, there is no shortage of action by similar groups elsewhere. Late last week, Danish anti-piracy group Rights Alliance reported that a 28-year-old former student had been charged with distributing illegal copies of textbooks via several online platforms over a two-year period.

 

In addition, huge pressure is being applied to Alexandra Elbakyan, the now-infamous operator of Sci-Hub. The site celebrated its 10th anniversary this week by uploading an additional 2.3m papers to its archives but is also facing legal problems on multiple fronts, including what is already an important case in India.

 

A few months ago, German Internet providers agreed to voluntarily block the most blatant pirate sites.

 

The ISPs teamed up with copyright holders and launched the “Clearing Body for Copyright on the Internet” (CUII), which is in charge of handing down blocking ‘orders’.

 

While CUII doesn’t rely on court judgments, there is some form of oversight. When copyright holders report a pirate site, a review committee first checks whether the domain is indeed linked to a website that structurally infringes copyrights.

 

When the blocking scheme launched, streaming portal S.to was the only domain that had passed this verification process. However, the clearing body isn’t sitting still and several new domains have been added since.

BS.to Added to the Blocklist

This week, many users of the popular German-language streaming portal Burning Series – also known as BS.to – were locked out of the site.

 

“[A notice] says that GUII blocked bs.to for legal reasons,” one of the site’s users mentioned yesterday, noting that he had to use a darknet browser to bypass the blocking measures.

 

BS.to no stranger when it comes to to anti-piracy enforcement measures. The site has been targeted by Hollywood’s legal efforts, it was reported to the US Trade representative, and is already blocked in Australia.

 

The latest blockade was implemented this week, but CUII’s decision dates back to July. It is not clear who recommended BS.to as a blocking target, however. This information is redacted in the official paperwork, which mentions an unnamed rightsholder of an American film.

Structurally Infringing

After reviewing the complaint, the clearing body concluded that there are sufficient grounds to add the streaming portal to the blocklist.

 

“The request for a recommendation to block the BS.TO website is justified. The website is a structurally infringing website. There is a clear copyright violation. The blocking is reasonable and proportionate,” CUII writes.

 

According to CUII’s recommendation, evidence provided by the research company Incopro showed that more than 90% of all content on the site links to copyright-infringing material.

BS.to Points to Workarounds

The BS.to operators don’t seem overly impressed by the new blocking efforts. The streaming portal was previously blocked by Vodafone and T-mobile and the site is actively encouraging people to bypass the measures by changing their DNS settings.

 

“Some of you may have noticed that our domains are now being blocked by CUII. In order to bypass this blockade, we recommend that you change your DNS settings. Please keep yourself up to date at burningseries.domains,” a message posted a few hours ago reads.

 

Research has shown that site blocking measures are not perfect. However, rightsholders believe that they help to deter casual pirates from accessing these sites, which will have an effect in the long run.

 

BS.to is not the only site to be added to the German blocklist this week, the same happened to Streamkiste.tv. Previously, Newalbumreleases.net, NSW2U.com, and Canna.to were added as well.

 

As part of Triller’s legal campaign targeting people and entities that allegedly pirated the Jake Paul vs. Ben Askren fight earlier this year, the company sued the popular H3 Podcast.

 

Filed in May, the complaint alleged two types of copyright infringement, violations of the Federal Communications Act (FCA), conversion, and violations of the Computer Fraud and Abuse Act.

 

Triller said that the operators of the H3 Podcast “unlawfully uploaded, distributed, and publicly displayed” the fight in breach of its rights, causing damages in excess of $50,000,000 after the “unauthorized broadcast” was viewed a reported 1,000,000 times.

 

Later that same month, Triller filed its first amended complaint naming Ted Entertainment Inc. (TEI) and the operators of the H3 Podcast, Ethan and Hila Klein, as defendants. H3 Podcast was removed but the claim for $50m in damages remained. In July, Triller filed its second amended complaint which added Teddy Fresh Inc. and 10 ‘Doe’ defendants. It also cut the allegations of wrongdoing by half, leaving the defendants to answer claims of copyright infringement, vicarious copyright infringement and violations of the FCA.

Triller’s Complaint is “Retaliation” to Criticism

In a scathing motion to dismiss filed with the court yesterday, the defendants pull no punches in their response to Triller. Describing Triller’s complaint as “fatally defective”, they explain that despite being given numerous opportunities, the company consistently files complaints that are “a mangled and mangy mess that are devoid of any merit.”

 

According to the motion, Triller’s complaint centers around TEI’s use of an excerpt of the ‘broadcast’ for the purposes of commentary and criticism in a video entitled ‘Jake Paul Fight Was a Disaster’. TEI employees reportedly uploaded the excerpt (the ‘reference video’) onto YouTube as an unlisted video and the defendants say that Triller’s lawsuit amounts to retaliation for their broad criticism.

 

“Anyone who watches the 4/22/21 Podcast can instantly recognize the true purpose of Triller’s [second amended complaint]: retaliation against the 4/22/21 Podcast because it excoriated the Broadcast and its main event – the boxing match between Jake Paul and Ben Askren (the ‘Fight’). In other words, Triller’s SAC is a brazen and unabashed attempt to intimidate, punish and silence lawful and protected criticism,” the motion reads.

Triller Says Defendants Used a ‘Bootleg’ Video

Triller says that the defendants watched a pirated or bootleg version of the broadcast, uploaded it to YouTube, and showed an excerpt and its URL in the 4/22/21 podcast. However, the defendants say that the screenshot provided by Triller failed to show the URL and Triller could not provide it. It was possible to see the URL in the video with some work but ultimately the video received just 65 views.

 

Triller says the defendants profited from their conduct because the H3 Podcast is part of the YouTube partner program, contains sponsorships, and sells merchandise. However, the channel the ‘reference video’ was uploaded to has none of these qualities, the defendants say.

 

From here, things start to get more interesting. While Triller’s complaints have all centered on the fight itself, that famously lasted for under two minutes. The entire broadcast, to which Triller owns the copyright, lasted much longer – four hours in fact – meaning that any use of the Jake Paul fight by the defendants in their two-hour podcast was necessarily small.

 

According to the motion to dismiss, the H3 Podcast spent 12 minutes of the podcast critiquing the broadcast and in the middle of that showed 42 seconds of the ‘reference video’, which included five seconds exclusively of audio, nine seconds of both audio and video, and 28 seconds exclusively of video.

Ethan and Hila’s Outreach to Triller Failed

Late June, Ethan and Hila wrote to Triller demonstrating how each claim in the first amended complaint failed. Triller then submitted its second amended complaint (SAC), dropping three claims. In July the parties had a telephone conference but Triller remained “unpersuaded” that its SAC contained “fatal defects”.

 

Triller responded by filing a new action against the defendants in the Los Angeles Superior Court claiming that comments made in H3 Podcasts about the fight lawsuit amounted to tortious interference.

Copyright Infringement Claims “Fail as Matter of Law”

The defendants believe that Triller’s first copyright infringement claim is based on an Ethan Klein statement that he watched a pirated version of the broadcast. According to them, that’s not infringement.

 

“Viewing a transmission – whether it be Triller’s April 17, 2021 transmission of the Broadcast, the Reference Video or the 4/22/21 Podcast – does not constitute copyright infringement. Viewing a transmission is not a public display, public performance, public distribution or derivative work of the original copyrighted work,” the motion to dismiss reads.

 

Triller’s vicarious copyright infringement claim appears to rely on the allegation that third parties watched the ‘reference’ video and the podcast but in common with the first infringement claim, that also fails under the doctrine of fair use, the motion adds.

Fair Use Defenses

According to the motion, Triller is seeking to separate the ‘reference’ video and Klein’s viewing of the broadcast from the use of the broadcast in the podcast. This, the defendants say, is something explicitly rejected under the doctrine of “intermediate use”, meaning that copying as a preliminary step in the creation of a fair use work also qualifies as fair use.

 

“As such, Triller’s attempt to view Defendants’ alleged acts of infringement in isolation from the 4/22/21 Podcast is precluded as a matter of law.”

 

Weighing in on the first fair use factor, the defendants say that their use was highly transformative and contained significant commentary and criticism, including that relating to the overall quality of the show and the physical appearance of Ben Askren. The podcast also critiqued the referee, pondered whether the fight had been staged, and questioned the amount of revenue the event might make.

 

In respect of whether the use was commercial, the defendants argue that since the use was highly transformative, this factor is much less important. They also believe that any unauthorized access to the broadcast (“bad faith”) should not affect a finding in favor of fair use.

 

“[T]riller’s argument that access to an authorized copy is a precondition for Defendants to invoke the fair use is, itself, a bad faith argument,” the motion adds.

 

The second factor in a determination of fair use is the nature of the work being copied, such as whether it was for factual/informational or entertainment purposes. The defendants only used a section from the broadcast that showed the men fighting so on that basis they argue their use was primarily factual.

 

On the third factor of fair use, which questions whether “the amount and substantiality of the portion used in relation to the copyrighted work as a whole are reasonable in relation to the purpose of the copying”, the defendants believe the law is on their side.

 

“The Broadcast was essentially four hours long…In other words, the 4/22/21 Podcast used less than .3% of the Broadcast,” an amount that under the circumstances was “very reasonable in relation to the 4/22/21 Podcast’s transformative purpose of commentary and criticism of the Broadcast and Fight.”

 

In addressing the fourth factor (whether the copying affects the market value of the copyrighted work), the motion notes that the court must distinguish between “biting criticism that merely suppresses demand and copyright infringement which usurps it.”

 

They also point out that they catered to a different audience than Triller. While the latter’s wanted to sit back and enjoy the event, H3 Podcast’s viewers wanted to hear why the whole thing was a disaster.

Vicarious Infringement Claim Fails

To prove a vicarious copyright infringement claim, the defendants say that Triller must show that the defendants had a direct financial interest in the alleged infringing activity by showing a causal relationship. They counter by noting that the ‘reference’ video had no sponsorships and was not monetized on YouTube so Triller’s claim fails.

 

On the allegations relating to the violations of the Federal Communications Act, the defendants say that since Triller acknowledges that the videos were shown on YouTube after the original transmission (i.e they did not extend the point of distribution of the actual broadcast signal), that claim fails too.

Conclusion

“Triller’s abuse of the judicial process to punish and silence lawful speech can no longer be countenanced. Triller’s lawsuit is retribution for the 4/22/21 Podcast lambasting the Broadcast as a ‘disaster’,” the motion adds.

 

“[T]riller persists in filing “disastrous” and fatally defective complaints – and the SAC is no exception. Since Triller consistently refuses to cease its abuse of the judicial process and Defendants, it is up to this Court to make Triller stop.”

 

The motion to dismiss and associated memorandum can be found here and here (pdf)

 

Over the past years, dozens of independent photographers have taken their copyright disputes to court, accusing companies of using their work without permission.

 

While many of them have a legitimate claim, these ‘photo’ lawsuits generally have a bad reputation. This is in part due to the tactics employed both in and outside of court.

Photographer Lawsuits

One familiar name that has regularly popped up in court is that of Richard Bell, who’s both a photographer and attorney. Over the years, the lawyer filed numerous lawsuits relating to the unauthorized use of his Indianapolis skyline photos.

 

One of these cases targeted the Merchants Bank of Indiana. According to Bell’s complaint, the bank used his photo without permission in a blog post. The blog post in question was written by Rebecca Marsh, the bank’s Vice President of Marketing & Communications.

 

Ms. Marsh’s use of the photo is a clear example of copyright infringement. In theory, this can result in a statutory damages award of $150,000 for the bank. However, context matters and in this case, the court concluded that the bare minimum of $200 is sufficient.

“Innocent Infringement” Backstory

The backstory and context provide some interesting insight into the copyright infringement settlement mill. In addition, it shows that intent matters in these cases, and that there’s such as thing as “innocent” copyright infringement.

 

As it turns out, Ms. Marsh didn’t randomly pick the photo from the Internet. Instead, she used one from the bank’s content management system, which was developed by Sonar Studios. This CMS came with a stock photo library which the bank paid a fee for.

 

Ms. Marsh was under the impression that the payment for the stock image library meant that all photos were properly licensed. However, it turned out that this wasn’t the case.

 

Late December 2017, a few months after the blog post was published, Mr. Bell wrote in demanding the immediate takedown of the photo as well as a settlement payment of $5,000. When Ms. Marsh saw the email she immediately removed the photo from the post and CMS library, hoping that this would be sufficient.

From $5,000 to $150,000

Simply taking down the photo wasn’t good enough for the photographer/lawyer, however. Soon after, he filed a lawsuit against Merchants Bank, demanding $150,000 in damages. Later, developer Sonar Studios was added to the complaint as well.

 

The lawsuit, which dragged on for years, revealed this backstory as well as other interesting details. As it turns out, the photographer earned 150 times more from settlements than from actual license fees for the contested photos.

Lucrative Settlements

Over the years, Mr. Bell accused several parties of copyright infringement, collecting $135,200 in settlements for his night-time photo of the Indianapolis skyline. At the same time, regular licensing fees brought in ‘only’ $825.

 

This shows that these legal campaigns can be quite lucrative. In this case, however, the court decided to keep the damages award to a minimum.

 

After reviewing all evidence, the court concludes that there is no evidence that the Merchants Bank intended to infringe on Mr. Bell’s copyright. Ms. Marsh simply wasn’t aware that her use of the photo was infringing.

$200 for Innocent Infringement

This all leads to the relatively rare conclusion that the bank is an ‘innocent’ copyright infringer, with the court awarding $200 in damages.

 

“The Court concludes that Merchants did not know or have reason to know that the Photo was copyright protected. Therefore, the Court concludes that Merchants was an innocent infringer and reduces the damages to $200, the statutory minimum,” U.S. District Court Judge Hanlon writes.

 

 

There is more good news for the Merchants Bank. Since Sonar Studios, the developer of the CMS, already settled its dispute with the photographer for $2,000, the bank doesn’t have to pay anything.

 

Setbacks

This isn’t the first disappointment for Mr. Bell. Last year, the photographer was ordered to pay $172,173 in attorneys’ fees and costs, because he couldn’t prove that he owns the rights to a photo.

 

Needless to say, the latest order is another setback but Mr. Bell may have bigger issues to deal with at the moment.

 

Despite several successful and lucrative settlement deals, court filings show that he filed for bankruptcy last year. That’s also apparent from this case, which was taken over by Bankruptcy Trustee Michael J Hebenstreit.

 

—

 

A copy of the court’s findings and conclusions in the Merchants Bank case is available here (pdf)

 

Earlier this year, Germany’s largest Internet providers agreed to voluntarily block pirate sites as part of a deal they struck with copyright holders.

 

These blockades, which are put in place following a thorough vetting process, are generally implemented on the DNS level. This is a relatively easy option, as all ISPs have their own DNS resolvers.

 

DNS blocking is also easy to circumvent, however. Instead of using the ISPs’ DNS resolvers, subscribers can switch to alternatives such as Cloudflare, Google, OpenDNS, and Quad9. This relatively simple change will render the ISPs’ blocking efforts useless.

 

This workaround is widely known, also by copyright holders. As such, it may not be a surprise that a few weeks after the German blocking agreement was reached, Sony Music obtained an injunction that requires DNS-resolver Quad9 to block a popular pirate site.

 

The injunction, issued by the District Court of Hamburg, requires the Swiss DNS-resolver to block access to an unnamed site that links to pirated music. The name of the targeted site wasn’t revealed, but Canna.to is a likely target, as that’s already part of the ISPs’ voluntary blocking agreement.

Quad9 Appeals Site Blocking Injunction

The Quad9 foundation fiercely opposes the injunction and immediately announced that it would protest it in court. A few days ago, the DNS resolver submitted its appeal to the Court, hoping to overturn the blocking requirements.

 

The foundation stresses that it doesn’t condone piracy. It is sympathetic to the challenges artists and copyright holders face but enforcing blocking measures through third-party intermediaries is a step too far.

 

“[W]e strongly believe that recursive DNS is the wrong place to try to apply legally mandated controls, and is at best incorrect, and at worst may be contradictory to the safety of end users as well as damaging the stability of and trust in the global internet,” Quad9 notes.

 

Quad9 stresses that it has no direct link to the alleged infringements. The targeted site doesn’t even host infringing material. It’s a linking site that points to content stores elsewhere.

 

The opposition brief sums up a variety of legal and procedural arguments. Among other things, it argues that DNS resolvers are protected from third-party copyright infringements under the German Telemedia Act and the EU’s E-Commerce directive.

Other Options to Stop Piracy

The DNS resolver also argues that Sony Music has better options to stop the infringements. For example, it could spend more effort in trying to track down the site operator, go after its hosting provider, or approach the domain registrar.

 

Targeting a single DNS resolver is a targeted measure, the foundation adds. German users can still use several alternatives to bypass the blocking measures, for example. At the same time, Quad9 users in other countries are affected by this German order, which makes it too broad.

 

“The fact that the respondent cannot implement the requested blocking limited to the territory of Germany means that this order is disproportionate,” Quad9 writes.

Quad9 Implemented a Blocking “Hack’

Although Quad9 disagrees with the blocking injunction, it implemented a temporary “hack” to comply with the order. This allows it to limit the blocking measures to German IP-addresses. However, this comes at a significant cost to the non-profit organization.

 

“The Quad9 platform was not designed for targeted, jurisdictionally based blocking, so this specific blocking causes higher load for those systems. We have brought more resources online to try to offset the costs of the blocking, but this detracts from our stated mission goals,” the foundation writes.

 

After the blocking order was made public, Quad9 received support from various sides, including the Society for Civil Rights (GFF) and the German Internet Industry association eco, which both provided advice and assistance.

Web Browsers Could be Next

Quad9 is open to further support from companies and the public at large. The foundation stresses that this is much more than an isolated case. If the current ruling stands, other companies can be affected too.

 

In theory, similar claims could be made against other software and services that are involved in accessing websites. This means that web browsers and VPN services could be next.

 

“Web browsers, anti-virus software, firewalls, spam filters, email clients, VPN providers, and many other intermediate software and infrastructure components too numerous to list are implicated as potential next targets..,” Quad9 warns.

 

—

 

A copy of Quad9’s full appeal brief is available here (pdf, German), and an English machine translation can be found here (pdf).

 

The data for our weekly download chart is estimated by TorrentFreak, and is for informational and educational reference only.

 

These torrent download statistics are only meant to provide further insight into the piracy trends. All data are gathered from public resources.

 

This week we have four new entries in the list. “Don’t Breathe 2” is the most downloaded title.

The most torrented movies for the week ending on September 6 are:

Movie Rank	Rank last week	Movie name	IMDb Rating / Trailer
Most downloaded movies via torrent sites
1	(…)	Don’t Breathe 2	6.2 / trailer
2	(7)	The Protege	6.2 / trailer
3	(2)	The Suicide Squad	7.6 / trailer
4	(…)	Cinderella	4.3 / trailer
5	(…)	Shang-Chi and the Legend of the Ten Rings	8.1 / trailer
6	(1)	Snake Eyes	5.4 / trailer
7	(9)	F9: The Fast Saga	5.3 / trailer
8	(3)	The Green Knight	6.9 / trailer
9	(6)	Jungle Cruise	6.8 / trailer
10	(10)	Black Widow	7.0 / trailer

 

 

Note: We also publish an updating archive of all the list of weekly most torrented movies lists.

 

There are thousands of pirate sites online today and many more have come and gone over the years. In their own way, most are loved by their specific audiences but few reach achieve truly iconic status.

 

Due to its colorful history and original ethos that information wants to be free, The Pirate Bay is an obvious outlier but there is another site, one that has managed to capture the imaginations of an even broader audience seeking access to learning and knowledge.

 

Sci-Hub was never meant to be the giant it is today. In fact, it grew from the personal needs of a single person – researcher Alexandra Elbakyan.

 

“When I was working on my research project, I found out that all research papers I needed for work were paywalled. I was a student in Kazakhstan at the time and our university was not subscribed to anything,” Alexandra told TF.

 

In order to solve this problem, Alexandra says she began looking for tools and services to bypass the paywalls, information she shared with other researchers who found themselves in the same predicament. Buoyed by the response to papers she shared, Alexandra developed software that could allow anyone to search for and access papers. On September 5, 2011, Sci-Hub was born.

Sci-Hub Celebrates 10 Year Anninversay

Over the past decade, Sci-Hub has grown to become a formidable force. From very humble beginnings it today offers a staggering 87.97m research papers and serves up hundreds of thousands of them to visitors every day. These include many thousands of students but also scientist and academics, who regularly add Sci-Hub DOI links to their publications to make learning easier.

 

 

Yesterday Sci-Hub celebrated its 10th anniversary with an announcement from Alexandra on her personal Twitter account. That’s her only outlet these days after the site’s official account was banned following yet another intellectual property complaint.

 

 

The publishing of more than 2.3m new research papers is perhaps the most fitting way to mark the celebrations but the fact they weren’t published sooner is a sign of how unrelenting legal action has affected the site’s ability to continue its work. In her tweet, Alexandra references a legal action that may yet prove an important milestone in the site’s history.

 

In December 2020, publishers Elsevier, Wiley, and American Chemical Society filed an injunction application in India to have Sci-Hub and partner site Libgen blocked by ISPs via a so-called ‘dynamic injunction’. In the appropriate forum and at the right time, these can be open-and-shut cases but in January, a High Court judge ordered a delay and declared the case “important”.

 

This was in response to intervention applications filed by nineteen scientists, including a virologist and several physicists specializing in multiple research areas, plus the Delhi Science Forum and Knowledge Commons.

 

Together, they summarized why Sci-Hub has become such a success and why publishers hate it so much. Open access to scientific research is absolutely vital for the advancement of scientific knowledge, they said, but publishers are only interested in making excessive profits by effectively restricting access only to the “elite institutions” that can afford their prices.

 

The India case is still pending but the judge did see fit to hand down an interim injunction that prevented Sci-Hub from uploading new content to the site. Perhaps surprisingly (or less so, given the importance of the case), Sci-Hub chose to abide by the ruling but according to Alexandra, that order has now expired, something that allowed the massive anniversary data dump.

Sci-Hub Hounded Around the World

While the unique elements of the Indian action may yet provide a surprise and even hope to the open access movement, lawsuits and other legal action affecting Sci-Hub and Libgen in other regions of the world have been predictable if nothing else.

 

Applications for blocking injunctions requiring ISPs to disable access to the platform have been successful in the UK, Germany, Denmark, France, and Russia, while in Sweden ISP Bahnhof retaliated to a court-order blockade by banning Elsevier’s own website.

 

Back in 2017, a New York District Court ordered Sci-Hub to pay Elsevier $15m in damages and the same year, American Chemical Society won a default judgment of $4.8 million and a broad injunction that required search engines and ISPs to block the platform.

 

None of these efforts achieved their goals of shutting down the site. Sci-Hub occasionally publishes new domains to help people access the platform but if all else fails, its Tor version remains up. That cannot be censored by ISPs meaning that the show will go on, at least for now.

 

Over the past decades, the entertainment industries have tried out numerous anti-piracy PSAs.

 

One of the most iconic videos is without doubt the “You Wouldn’t Steal a Car” campaign, which has proven to be a fertile breeding ground for memes and satire.

 

The video was the result of a collaboration between the Motion Picture Association, the Federation Against Copyright Theft, and the Intellectual Property Office of Singapore. It first launched during the summer of 2004 after which it appeared on DVDs and in movie theaters.

 

“A new cinema trailer also launches on 12th July, supporting the campaign message ‘piracy is a crime’,” one of the press releases read at the time.

 

From a 2004 press release

 

The video was backed by the Piracyisacrime.com website. This was also the place where the public was asked to report piracy.

 

We’re using the past tense because the official campaign website was retired more than a decade ago. Initially, the domain name was forwarded to copyrightaware.co.uk, another anti-piracy initiative, but at some point, it was no longer renewed.

 

This resulted in some interesting new homes for the domain, including a site that has something to do with Japanese nurses. Then, all of a sudden, someone decided to put it up for sale. Earlier this week, Hugedomains listed the piracyisacrime.com domain for $2,695.

 

 

That is a lot of money for a domain name without content. However, it would make sense for an anti-piracy group to regain control. Interestingly, however, most attention was generated by “the other side.”

 

In the r/Piracy subreddit, ‘Mintyjad’ asked whether they should buy the domain and point it to a Rickroll. This suggestion triggered a lot of responses but, before the topic could result in any action, someone else bought it.

 

While we don’t know who paid nearly $3,000 for the domain, the buyer doesn’t appear to come from the anti-piracy camp.

 

Instead of rickrolling visitors, Piracyisacrime.com now redirects to the legendary parody of the PSA from the IT Crowd TV series. This means that after nearly two decades of memes and parodies, we have come full circle.

 

 

 

 

For the past several years, Italian law enforcement authorities have been attempting to reduce the local availability of pirate IPTV platforms and related services.

 

In September 2019, a massive operation took down IPTV management service Xtream-Codes, which was believed to have serviced around 50 million end-users. With the outcome in that matter still pending, authorities have been concentrating on taking down IPTV services themselves and claiming grand results.

 

In February 2020, the focus shifted towards end-users of such services. An announcement from the Guardia di Finanza (GdF), the Italian police unit tasked with financial crimes, said that it had reported 223 IPTV subscribers to the authorities for the crime of “receiving stolen goods.” It now appears they are maintaining the pressure.

240 IPTV Subscribers Reported to Prosecutor’s Office

On Wednesday, several local media outlets in the city of Piacenza reported that 240 people, mostly from the city itself, had been identified as subscribers to a pirate IPTV platform offering Sky, Dazn, Mediaset Premium, Netflix and Amazon Prime content at the cut down price of just 10 euros per month.

 

The investigation was carried out by GdF and coordinated by public prosecutor Antonio Colonna. It was triggered in the early months of 2020 when the GdF of Rome identified a 60-year-old man who later admitted to be a reseller of pirate IPTV services.

 

Resellers are generally lower-tier players who sell on pirate IPTV packages from more major suppliers. However, they can keep records (such as names, physical addresses, email addresses and payment information) that allow the authorities to positively identify their customers.

 

That appears to have been the case here although the authorities also claim the use of “sophisticated tracing techniques” including financial investigations and other searches to identify the subscribers.

Subscribers Risk Fines of Up To 25,000+ Euros

Following last year’s announcement that 223 subscribers would be referred for prosecution, the authorities said that if found guilty, subscribers risked being found guilty of receiving stolen goods, 25,000 euro penalties, and even a jail sentence. While we’re unaware of information suggesting that anyone has been successfully prosecuted, the same kind of warnings were issued again this week.

 

According to PiacenzaOnline, the authorities are warning of fines ranging between 2,582 euros through to 25,822 euros, plus criminal violations relating to the use of equipment designed for the “illegal decoding of conditional access audiovisual broadcasts.” Only in the most serious of cases will the suspects be accused of receiving stolen goods, the publication notes.

 

In recent years the European Commission has proposed and adopted various legislative changes to help combat online piracy.

 

This includes the Copyright Directive which passed in 2019 as well as the Digital Services Act, which was officially unveiled last December.

 

These changes have been spurred on by major copyright holders, who have long called for stricter enforcement of pirated content online. At the same time, digital rights groups and some legal experts are concerned that fundamental rights are at risk by increased filtering.

‘Fixing’ the Digital Services Act

When it comes to the Digital Services Act (DSA) proposal, neither ‘side’ is completely satisfied. The new regulations improve the takedown process and will deal with ‘repeat infringers.’ However, there are no ‘staydown’ requirements, which was a priority item on the copyright holders’ wishlist.

 

Over the past months, various stakeholders have submitted their views to the European Parliament’s IMCO Committee, asking for tweaks and changes to the proposal. This includes the Audiovisual Anti-Piracy Alliance (AAPA), whose members include Sky, BT, the Premier League, LaLiga, Discovery, Wiley, and Ziggo.

The Linking Problem

AAPA lists several concrete amendments that should make it easier to address online piracy. This includes clarifying that online content sharing platforms shouldn’t just act against infringing content stored on their own servers. They should also remove links to infringing content stored elsewhere too.

 

“One of the major issues with the online content sharing platforms is not just the illegal content stored on their platform, but rather the material posted on their platform that directs users to other places which supply illegal content,” AAPA writes.

 

This expansion effectively means that online services have to take action against things such as piracy tutorials, or links in comments that point people to pirate sites.

Staydown

As could be expected, AAPA also calls for a staydown requirement. The initial draft of the DSA doesn’t require online services to ensure that content remains offline after it’s removed. However, the anti-piracy alliance sees this as a necessity.

 

“In order to effectively and meaningfully address the proliferation of illegal products and services on intermediary services, measures need to be implemented by these services to prevent illicit content from reappearing after having been taken down,” AAPA notes.

 

This takedown and staydown approach is a priority for many rightsholder groups. They believe that the current takedown systems are ineffective because the same content can reappear elsewhere within minutes.

Terminating Repeat Infringer Accounts

The anti-piracy alliance also sees room to improve the ‘repeat infringer’ language in the DSA. The current text will require services to suspend accounts of persistent pirates, but more can be done.

 

AAPA proposes to terminate the accounts of repeat copyright infringers. In addition, companies should ensure that these people can’t simply circumvent these measures by registering a new account.

 

“In cases of repeat suspension, providers of hosting services shall terminate the provision of their services and introduce mechanisms that prevent the reregistration of recipients of service that frequently provide or facilitate the dissemination of illegal content,” the proposed amendment reads.

 

To AAPA’s credit, the alliance also proposes stricter measures against takedown abuse. Organizations and users who repeatedly send manifestly unfounded takedown requests should have their accounts terminated as well, the group notes.

 

A complete overview of the recommendations can be found on AAPA’s website where they were published this week.

 

Earlier this year a group of programmers and Grand Theft Auto enthusiasts released ‘re3’ and ‘reVC’, a pair of reverse engineered releases of GTA 3 and Vice City.

 

The code meant that these old but well-loved games could be enjoyed with significant improvements but the fun wasn’t to last for long. In response to the projects, Take-Two and Rockstar Games filed a DMCA notice at Github where the code was stored, requesting the removal of the ‘re3’ and ‘reVC’ repositories.

 

Initially, project leader “aap” questioned the authenticity of the takedown. “It’s not impossible it’s just a troll. Hard to tell. But better to assume it’s real,” he told Eurogamer.

 

As per legal requirements, Github complied with the takedown demand but, as TF noted at the time, the team behind the projects had the option of filing a DMCA counter-notice if it was confident that its work is permitted under copyright law.

 

After assessing its options, that’s exactly what the team did, leaving Take-Two just a couple of weeks to file a lawsuit to prevent the content reappearing on Github. When that time expired, the coding platform restored ‘re3’ and ‘reVC’, as per the law.

 

“We claim that our project falls under fair use: our goal is clearly not piracy or anything as you still need the original game. Rather we want to care for the game by fixing and improving it and bringing it to new platforms,” project leader ‘aap’ informed TF at the time.

 

“This has caused many people to buy or re-buy the game from Take-Two, so it’s not like they’re losing money, quite the opposite.”

 

While Take-Two didn’t act quickly enough to prevent the restoration of ‘re3’ and ‘reVC’ to Github, the company has now followed up with a full-blown lawsuit targeting their developers.

Copyright Infringement Complaint

Filed in a California court a few hours ago, Take-Two’s lawsuit lists Angelo Papenhoff (aap), Theo Morra, Eray Orçunus, and Adrian Graber as named defendants, plus Doe 1 ‘Ash R / Ash/735’ and nine other unnamed Does.

 

“Defendants’ source code projects, known as re3 and reVC, purport to have created a set of software files (which Defendants claim they ‘reverse engineered’ from the original Game software) that allow members of the public to play the Games on various hardware devices, but with so-called ‘enhancements’ and ‘modifications’ added by Defendants,” the complaint reads.

 

“Perhaps most notably, Defendants claim that their derivative GTA source code enables players to install and run the Games on multiple game platforms, including those on which the Games never have been released, such as the PlayStation Vita and Nintendo Switch.”

 

According to Take-Two, the defendants’ conduct is willful and deliberate since they are well aware that they do not have the necessary rights to copy, adapt or distribute derivative GTA source code or the audiovisual elements of the games. The gaming giant adds that Papenhoff publicly expressed concern that Take-Two would find out about the ‘re3’ and ‘reVC’ projects.

Defendants Created Repositories on Github

According to the complaint, the defendants uploaded their projects to Github and, over time, refined and updated these repositories until a “full set” of derivative files for the games GTA 3 and Vice City had been created.

 

“These source code files not only contain the derivative software code that enables the Games to run on a player’s computer, but also contain Take-Two’s original digital content such as text, character dialog, and certain game assets. Additionally, the re3 GitHub Repositories include links to locations where members of the public can download a complete, installable build of the re3 and reVC software,” Take-Two adds.

 

The company says the derivative versions of the games are “virtually identical” to the originals in function, appearance and gameplay (except for the modifications added by the defendants) and allow players to experience the “exact same sights, sounds, story, setting, dialog, and other creative content” present in the originals.

Defendants Intended to Create and Distribute Pirated Games

Take-Two’s lawsuit claims that the defendants have made public statements that show their intent to create and distribute pirated Grand Theft Auto games by using Twitter and Discord to solicit help with the projects.

 

The gaming company also insists that the defendants have admitted that the source code is not original but intended to be copies of the originals.

 

“[D]efendants slavishly recreated the original code to play the Games by ‘decompiling’ the Games’ object (or ‘machine’) code and then working with that material to create a game experience that is identical to the original Games,” its lawsuit adds.

Addressing DMCA Notices Sent to Github

As previously noted, Take-Two submitted a DMCA takedown notice to Github in February requesting the disabling and/or removal of the allegedly infringing repositories. The company says that the counter notices sent by the defendants in response were not legitimate.

 

“In at least three separate instances between April and June of 2021, Defendants Orçunus, Morra, and Graber submitted sworn counter notifications to GitHub claiming the takedown of the repositories was mistaken or otherwise not legitimate,” the lawsuit reads.

 

“Take-Two is informed and believes, and on that basis alleges, that these counter notifications were made in bad faith, and knowingly and deliberately misrepresented to GitHub the contents of the re3 GitHub Repositories.”

 

Furthermore, it’s alleged that the reverse-engineering team expected a Take-Two response, noting on Discord it was a matter of “WHEN and not IF” the company would “strike back”.

Copyright Infringement Claims

Take-Two says that by willfully and maliciously copying, adapting and distributing its source code and other content, all of the defendants have infringed its exclusive rights under copyright law. As a result, the company is entitled to damages in amounts to be determined at trial or, alternatively, a maximum statutory damages award of $150,000 for each infringed work.

 

Additionally, the gaming company says that by submitting bad faith DMCA counternotices to have the projects restored to Github, three of the defendants made misrepresentations under U.S.C. § 512(f).

 

“Accordingly, Defendant Orçunus, Morra, and Graber are liable for damages, including costs and attorneys’ fees, incurred by Take-Two,” the complaint adds.

 

Finally, Take-Two is seeking temporary, preliminary, and permanent injunctive relief to restrain the defendants from continuing their allegedly infringing activities. The company wants all infringing source code and games removed from the Internet and wants the defendants to hand over all materials that infringe its rights.

 

Take-Two also wants a full accounting of “any and all sales or downloads of products or services” that infringe its rights.

 

Take-Two’s copyright infringement complaint can be found here (pdf)

 

Piracy presents a major challenge for companies across different sectors, including the software industry.

 

Many copyright holders stress that piracy hurts their bottom line. This could lead to less output and innovation. However, research has shown that this isn’t always the case.

 

Previously, studies have found that piracy doesn’t reduce the number of new films being made. Similarly, piracy doesn’t slow down music output or innovation either. In fact, it may actually encourage innovation.

Piracy Shock and Innovation

This idea is supported by a new working paper published by the US Patent and Trademark Office (USPTO). The research was carried out by Wendy Bradley, Assistant Professor at SMU Cox School, and USPTO economist Julian Kolev.

 

The research looks at the effect of the “piracy shock” that was introduced when BitTorrent was first launched 20 years ago. The then-new file-sharing technology made it much easier to pirate software and was swiftly embraced by millions of people.

 

This ‘natural experiment’ is used to measure how large software companies changed their research and development (R&D) budgets in the following years. By comparing companies that face more piracy risks to those with a lower risk profile, the overall piracy effect is estimated.

 

According to the researchers, the launch of BitTorrent is ideally suited to measure the effect of piracy. Its introduction in 2001 was sudden, the technology is ideally suited for software piracy, and it wasn’t notably interrupted during the sample period which ends in 2007.

BitTorrent Piracy Triggered Innovation

The overall results suggest that companies that are more at risk from piracy appear to innovate more following the launch of BitTorrent.

 

“We find that rising piracy increases subsequent R&D spending, copyrights, trademarks, and patents for large, incumbent software firms,” the researchers write, suggesting that the piracy shock pushed firms to innovate more.

 

“Firms in our sample exhibited a strong rise in innovative activity following the piracy shock, but they also shifted their IP strategies to pursue a more diversified portfolio through increased filings of copyrights and trademarks.”

 

Translating these findings to hard figures would suggest that a 10% increase in piracy leads to a 2.8% increase in R&D spending.

 

Subscriptions

The research doesn’t look into specific types of innovation. However, it mentions that in more recent years the subscription model has been embraced by an increasing number of software companies.

 

This includes software giants such as Microsoft and Adobe, whose software has been pirated millions of times in the past.

 

Interestingly, this subscription model has its own drawbacks. The paper mentions “subscription fatigue” as a risk, one that also applies to movie streaming platforms. Too many subscriptions could eventually drive people back to pirate sites

What About Revenue

Today, more than twenty years after BitTorrent was invented, piracy levels remain high. However, initial data suggest that software companies have been able to increase revenues through new products and other innovations.

 

“While firm performance is outside the scope of this study, initial estimates show firms in our sample experienced significant increases in both revenue and profit after the piracy shock,” the paper reads.

 

“Our findings suggest that strategies encouraging new product development and a continuous commitment to innovation may offset the negative effects of digital piracy in certain industries.”

 

Finally, the researchers stress that while BitTorrent’s launch is described as a piracy shock, the technology itself is not to blame. It’s a file-sharing technology that can and is used for legal purposes as well.

 

A copy of the working paper is available through the USPTO website and SSRN. It should be noted, however, that the views expressed in the paper do not necessarily reflect official positions of the Office of the Chief Economist or the U. S. Patent and Trademark Office.