Most people know all too well that downloading and sharing pirated movies and TV shows is against the law. Nonetheless, millions do so on a daily basis.

 

These pirates are not all borderline criminals. They can be doctors, veterans, police officers, or even lawyers too.

 

In fact, many top lawyers don’t think that piracy is unethical and some even support it. This is also what Prof. Dariusz Jemielniak and Dr. Malgorzata Ciesielska reported in a recent paper.

 

To conduct this in-depth quantitative study, one of the researchers spent a year at Harvard, informally engaging with the International Masters of Law (LL.M.) cohorts. This program is highly competitive; it requires a law degree, top grades, and work experience as a lawyer.

 

The embedded researcher participated in the students’ social life on a daily basis, both offline and in an active online Facebook group. In this setting, informal but structured interviews were carried out.

How Harvard Lawyers View Piracy

The goal of the research was to find out how these legal experts view current copyright regulations and the acceptability of digital piracy. In addition, they were asked about their thoughts on the future of copyright.

 

This type of research approach is not easy to summarize in a graph or table. However, it allows the researchers to ask more detailed follow-up questions to expose finer nuances and beliefs.

 

The results were published in the Journal of the Association for Information Science and Technology and offer unique insight into the liberal copyright and piracy views of these lawyers.

Piracy is Broadly Tolerated

The majority of the respondents refuted the notion that “piracy is theft,” as now-President Joe Biden once said. On the contrary, many lawyers are quite tolerant when it comes to file-sharing.

 

“Our study reveals that law professionals, with raised professional ethics standards and expectations toward lawabiding behavior, highly above average understanding of law, and higher than average socio-economic status, do not equate digital piracy with physical theft, and are generally very tolerant or even supportive of it.”

 

These findings apply to consumers who download or watch pirated content, not the people who operate piracy sites. But it’s intriguing nonetheless, especially when examining some of the detailed responses.

Lawyers Comment

Throughout the paper, the researchers draw several conclusions, supported by quotes from the interviews, emphasized in bolded italics below.

 

“There is the shared sense that digital goods differ from physical goods, and that this constitutes a basis for new societal norms to emerge: while they ‘would never do anything illegal elsewhere’ [Interview 36], pirating digital content is treated morally differently and morally acceptable.”

 

“Although it might be illegal, there is a widespread perception that it’s not theft and some have no issue discussing it in a professional setting: ‘I have spoken with my clients about the T.V. shows that I have downloaded and watched’ [Interview 3]”

 

Of the 50 lawyers who were interviewed, only three believed that downloading or streaming digital content from pirate sources is absolutely illegal and unacceptable. And even those three wouldn’t report their friends’ transgressions.

 

“If I were to call police when someone watches pirated movies, I wouldn’t have any friends. [Interview 33]”

Availability and Costs

The availability of legal content is an important factor in how these lawyers view piracy. When there’s no option to consume content legally, many consider piracy to be fair game, even for themselves.

 

“(i)f for any reason, there is a restriction. I think it’s fair for me to download illegally or use VPN to have access to the content. I don’t believe in geographical restrictions on the internet.” [Interview 16]

 

The same reasoning applies to the cost element. If something is seen as overpriced, respondents generally view piracy as a more acceptable option.

 

“Two-hundred dollars [for an academic textbook] is absolutely crazy. If there was a choice that someone sells it pirate, I would buy the pirate.” [Interview 41].

 

Interestingly, these views are not equal across all content categories. Downloading pirated software, especially if it’s used for commercial purposes, is seen as unacceptable by most lawyers.

 

The same applies to books, with the exception of academic and educational content. Aside from the cost, the respondents indicated that access to knowledge should be free and unrestrained. That argument weights stronger than the law, in this case.

A New Paradigm?

The full paper includes many more examples and context. The overall conclusion is that most of the Harvard lawyers don’t see piracy as something that’s by definition problematic.

 

According to the researchers, this could be a strong indication that it might be time for a new paradigm. Tougher laws are not likely to be successful so content creators and publishers should find ways to change their businesses.

 

Instead of fragmenting into entertainment silos, it would make more sense to ensure that the public at large can easily access content for a decent price.

 

“One of the major practical implications of our research is that it indicates that a social, cultural, and mental change in the perception of piracy has already happened,” the researchers write.

 

“The industries, which are best adapting to the needs and perceptions of the society, will win in the race to establish new, effective, and yet widely accepted and sustainable business models,” they add.

 

For the past several years market research company Ipsos has carried out an annual study on behalf of leading Italian anti-piracy group FAPAV.

 

The goals of the research are to estimate the number of adults engaged in online audiovisual piracy, the type of content they consume, the methods used, plus an estimate of the overall number of infringing acts.

 

The headlines for 2021 are mixed. Last year saw an overall increase in the number of citizens obtaining content from pirate sources, but that appears to have been more than offset by a significant reduction in the overall volume of piracy actually carried out.

Number of Pirates Increases

Considering the increasing number of legal alternatives available today, Italian rightsholders may be a little disheartened to learn that 43% of the population engaged in some kind of audiovisual piracy in 2021. That’s up from 37% in 2019 before the disruption of the pandemic.

 

The breakdown in the Ipsos report relates to adults but among Italy’s 10 to 14-year-olds, piracy rates in 2021 are even higher at 51%, up from a low of 39% in 2018.

 

Movies remain the most illicitly consumed content among adults with a 29% incidence in 2021, down from 31% in 2019 and 33% in 2018. Consumption of TV series increased slightly last year to 24%, following the trend set by 2019 (23%) and 2018 (21%).

 

Consumption of live sports among adults in 2019 was relatively modest at 10%, but in 2021, that figure jumped by half to around 15%.

IPTV Piracy Up Yet Again

Audiovisual content can be viewed illegally using streaming sites or peer-to-peer protocols such as BitTorrent but these methods are on a downward trend, especially when compared to pirate IPTV services. Despite massive enforcement measures including multiple raids, shutdowns, ISP blocking, and fines for both operators and end-users, Italians can’t get enough of their ‘pezzotto’ devices.

 

In 2019, adults watching sport, movies, and live TV via IPTV devices sat at 10% of the population. In 2021, that figure more than doubled to 23%, representing around 11.7 million people in total.

 

The Ipsos study also attempts to quantify instances of password sharing, where subscribers to legitimate services allow others to access their accounts on Netflix, for example. Those who view without paying are considered pirates for the purposes of the study and in 2021, 41% of adults are said to have viewed content this way.

Not All Bad News For Rightsholders

While increasing numbers of both adults and younger people engaging in piracy isn’t exactly ideal for rightsholders, perhaps the most important figures relate to the overall consumption of pirated content.

 

For 2021, Ipsos estimates the overall number of infringing acts to be around 315 million. This may sound like a lot but when compared with previous years, it’s clear that progress is being made.

 

In 2019, Italian adults were responsible for 414 million infringements and in 2018, the figure was 578 million. When compared to levels in 2016, overall infringement in Italy during 2021 showed a decrease of 53%. Of course, rightsholders are still unhappy with current levels.

Claimed Losses to Rightsholders and the Economy

According to anti-piracy group FAPAV, the use of illegal movie and TV sources among Italians may have cost the industry 673 million euros in 2021, with a 267 million euro turnover loss attributable to live sports due to pirate IPTV use. Just last month, the CEO of Serie A claimed that football alone loses 300 million a year to IPTV piracy.

 

FAPAV estimates a cost of over 1.7 billion euros to all Italian economic sectors due to movie, TV show and live sports piracy, a potential risk to 9,400 jobs, and an estimated impact of 716 million euros on Italy’s GDP. Italy’s government tax collectors, meanwhile, are estimated to have lost 319 million euros in VAT, income, and corporation tax.

 

Whether these trends will continue will remain to be seen but according to Ipsos, Italians are increasingly aware of the issues. In 2019, just 28% of pirates were aware of the “seriousness of their behavior” but in 2021, that had increased to 50%.

 

Playing games using browser-based emulators is a niche pastime of some of the most dedicated gamers.

 

For Game Boy Advance fans there are a few websites that offer this option, albeit without permission from Nintendo.

 

While emulators that utilize all of their own code don’t break the law, they can face legal issues when packaged with pirated ROMs and distributed to the public. Nintendo is not happy with this activity and has cracked down on it on several occasions.

Nintendo’s Emulator Crackdown

In 2015, the Japanese gaming giant already asked GitHub to remove a Game Boy Advance repository, hosted by the user “jsemu.” This worked out initially but soon after GitHub took action, copies started to appear. This included one shared by the user “jsemu3”, which Nintendo took down in 2018.

 

Since then many passionate Nintendo fans have found their way to yet another alternative game collection. Again, it was uploaded by a user with a familiar-sounding name; jsemu2.

 

This site, hosted by GitHub, has been online for a few years but this week visitors were welcomed by a 404 error. The error doesn’t mention the reason for the removal but we tracked down a DMCA notice that provides an explanation.

ESA Steps In

The takedown request was sent by the Entertainment Software Association (ESA), which represents Nintendo and other videogame companies. According to ESA, the site in question infringes on the copyrights and trademarks of its members.

 

“Our review of the Website indicates that it is has been marketing or otherwise making available products and/or services that infringe on ESA Members’ copyrights and trademarks,” the notice reads.

 

It appears that this is the third time that ESA has targeted this site. In its takedown request, the Association mentions that two earlier attempts failed, as GitHub requested “additional notice.”

 

“We are hopeful that this revised notice contains the necessary information to cause removal of the infringing uses of ESA Members’ intellectual property,” ESA writes. And indeed, this one was sufficient.

 

ESA’s takedown request lists the main URL where all the games were stored and also points to 75 of the ‘launchers’ directly. The site itself actually listed 98 games, but those that aren’t specifically mentioned have been removed as well.

Persistent Problem

Whether this will solve the problem completely seems doubtful. As history has shown, new copies are bound to pop up. In fact, nostalgic gamers can easily find alternatives, even on GitHub.

 

Finally, it is worth noting that the code for the Game Boy Emulator itself, without the pre-loaded games, is open source and still hosted elsewhere on GitHub. Nintendo doesn’t appear to have an issue with it, or it has no legal grounds to take action, as it has been online for over a decade now.

 

Earlier this year, Bungie and its enthusiastic Destiny fan community were plunged into chaos.

 

Using the DMCA’s takedown process as a weapon, persons unknown sent copyright notices to YouTube, claiming that the targeted videos should be taken down for infringing Bungie’s rights.

 

YouTube began removing videos, including some uploaded by high-profile Destiny content creators. Other notices targeted Bungie’s own channels, causing confusion and frustration within the Destiny community.

 

While Bungie supports fan-created content and allows videos to be uploaded to YouTube, a growing number of fans came to the conclusion that Bungie was somehow to blame. With its reputation on the line, Bungie went into investigation overdrive and later confirmed that the takedown notices were all fraudulent and it wasn’t responsible.

 

In late March, Bungie took the unusual step of filing a lawsuit at a Washington court. It revealed in detail how two Google Gmail accounts were crafted to impersonate Bungie’s anti-piracy partner CSC. The accounts were then used to send masses of fraudulent takedown notices to YouTube.

 

The scale of the disruption caused was significant and Bungie’s language in the complaint pulled no punches. In addition to damages relating to the fraudulent notices, the company piled on with additional claims for copyright infringement, false designation, business defamation, breach of contract, and violations of consumer protection law.

 

The immediate challenge for Bungie was that the company either didn’t know or couldn’t prove the identity of the culprit before filing the lawsuit. A first amended complaint filed by Bungie this week moves things on significantly by naming a single defendant as the person responsible. It also reveals how Bungie tracked down and identified the architect of the DMCA fraud scheme as one of its own customers.

Bungie Gets to Work

Bungie’s early attempts to obtain information from Google/YouTube ran into trouble. The company tried to subpoena Google using the DMCA but the chosen mechanism only allowed Bungie to identify an alleged copyright infringer, not the sender of allegedly abusive DMCA notices.

 

Google initially refused to comply but after some work, Bungie started getting the information it was looking for earlier this month.

 

On June 10, 2022, Google handed over “significant information” on the accounts used to send the fraudulent notices, among them JeremyWilandCSC@gmail.com (Wiland account) and damianreynoldscsc@gmail.com (Reynolds account). Google also provided a list of every takedown notice sent via the accounts, copies of all correspondence between Google and the accounts, plus a log of IP addresses used to access them.

 

The logs revealed that the Wiland and Reynolds accounts were consistently accessed from a particular IP address (ending in .241), traceable to Consolidated Communications, a residential ISP serving Rocklin, California. On March 22, the Reynolds account logged out of Google and less than a second later, the Wiland account logged in, suggesting the same person was behind both accounts.

 

But Bungie had more. Much more.

IP Addresses Meet Offical Accounts, Physical Goods

The same .241 IP address mentioned above was also used to send abusive emails to Bungie’s anti-piracy vendor, CSC. Even more problematic was its association with two official Destiny 2 accounts.

 

One of those accounts made a physical purchase of the Destiny 2: The Witch Queen OST. That was subsequently delivered to a physical address in Rocklin. The purchase came with a bonus download link for an emblem, sent to the buyer via email. The recipient clicked the link and Bungie logged the same .241 IP address.

 

By now the net had almost completely closed but in evidence terms, Bungie was nowhere near done. The clickable emblem link was sent to PerfectNazo1@gmail.com and during the chaos of fake notice campaign, a YouTuber called ‘Lord Nazo’ was hit with fraudulent DMCA notice, sent by the Wiland Google account.

 

Apparently angered by this injustice, Lord Nazo fired a DMCA counternotice back at YouTube in which he criticized the wave of fake notices and claimed his video was not infringing since it was a “transformative case of fair use.”

 

Lord Nazo’s counternotice contained his email – PerfectNazo1@gmail.com – matching him to the Destiny account at Bungie. It also contained a physical address in Rocklin, California. Whether by carelessness or design, it also included his real name: Nick Minor.

From Bad to Worse and Beyond

As far back as December 2021, then blissfully unaware of the chaos to come, Bungie was already experiencing problems with Nick Minor and his ‘Lord Nazo’ YouTube Channel.

 

Bungie’s anti-piracy vendor CSC targeted the channel with a DMCA takedown after it published The Last Stand, a track from the Taken King OST. It took until January 25, 2022, for the video to be removed and on that very same day, Minor created the Wiland Google account that was later used to send some of the fake notices.

 

After purchasing the Witch Queen OST and taking delivery in Rocklin, Minor began uploading tracks from the OST to his ‘Lord Nazo’ YouTube channel. Around March 2, 2022, CSC initiated a series of 41 DMCA takedowns, 23 of which targeted Minor’s uploads. A day later, YouTube terminated his channel for repeat infringement.

 

Minor took to Twitter and complained directly to Bungie, asking the company to retract the copyright complaints so he could get his YouTube account back. On March 16, Minor tweeted again.

 

“This is getting out of hand. Bungie needs to rectify these copyright takedowns and lock down their brand management,” he wrote.

 

One day later a wave of fraudulent notices was submitted to YouTube; 36 from the Wiland account and one from another Google account, Jacobaverz@gmail.com (Averz account). Bungie thinks that Minor meant to use the Reynolds account to send that notice because soon after an identical notice was also sent from the Reynolds account.

 

Whether the switching of accounts played a part is unknown but on March 18, Google flagged both notices as fraudulent and asked Minor to provide documents to prove his identity. Minor then switched to the Wiland account to send more fraudulent notices and when Google put him under pressure to prove his identity on the Wiland and Averz accounts, Minor withdrew those specific takedown notices.

Stoking Controversy, Playing The Victim, Making Things Worse

On the day that Google asked Minor for documents, he used his ‘Lord Nazo’ Twitter account to send messages to Bungie accounts. “It seems like it’s not just the music community getting hit. 2 non-music channels cannot be a mistake,” he tweeted. “Either someone is making fake copyright claims on behalf of @Bungie or their CSC is out of control.”

 

On March 20, Minor responded to Bungie’s tweet informing its Destiny community that the company wasn’t behind the takedown campaign. “I just knew it wasn’t you guys,” he tweeted back at Bungie. “I just couldn’t believe that you’d do this to us after 8 years. I’m so glad I was right.”

 

Three days later, Minor directed a tweet at YouTube: “@TeamYouTube People with Destiny 2 content on their channels have been getting hit with fake takedowns and even Bungie confirms the takedowns aren’t legit. My channel even got terminated because of all these fake takedowns. Is there anything you can do about this?”

 

Minor then tweeted at Bungie again, complaining that his videos hadn’t been restored yet. On March 26, in yet another tweet to YouTube, Minor asked for his videos to be restored because the DMCA notices in question were fake. They were genuine, Bungie had sent them earlier.

VPN Deployment Came Too Late

At this point, news of Bungie’s lawsuit began to appear online, something that led to Minor accessing the Wiland and Reynolds accounts using a VPN. But of course, VPNs can’t undo the mistakes of the past and in this case, probably wouldn’t have helped Minor get away with his campaign, even if he’d used one from the beginning.

 

For example, Minor’s use of the same email addresses across multiple sites started long ago. As part of its investigation, Bungie accessed data made public following the 2016 breach of hacking and cheating site Nulled.io. The company found three email addresses in the database linking Minor to the fake DMCA campaign.

 

The first – PerfectNazo1@gmail.com – was specified in the order for the OST delivery to California. It was also used to issue the YouTube counternotice linking Minor to the ‘Lord Nazo’ channel, which in turn gave up Minor’s real name and physical address.

 

The second – JacobAverz@gmail.com – was used in error to send a fake DMCA notice and the third – JacobA10000000@gmail.com – was the email address Minor used to open his Destiny account at Bungie.

 

Bungie’s amended complaint, seeking at least $7.65m, can be found here (pdf)

 

In the fall of 2019, Brazilian law enforcement agencies conducted a large anti-piracy campaign codenamed ‘Operation 404,’ referring to the well-known HTTP error code.

 

With help from law enforcement in the United States and the United Kingdom, the authorities took down more than a hundred sites and apps, while several suspects were arrested.

 

In the following years, several new waves of anti-piracy action followed. Under the banner “Operation 404.2” and “Operation 404.3” law enforcement authorities blocked or seized the domain names of hundreds of pirate sites and streaming apps.

Operation 404.4

This week, Brazil’s Ministry of Justice announced the fourth wave of Operation 404. With 30 search and seizure warrants in hand, law enforcement officials blocked or seized the domains of 226 websites, 461 piracy apps, and 15 social media accounts.

 

The authorities don’t mention any of the targets by name. However, they stress that the apps alone had generated more than 10 million downloads. According to IFPI, these apps were all dedicated to music.

 

The Civil Police carried out its operations in 11 states and ten people were arrested. Those who are convicted face a prison sentence of between two and four years plus a hefty fine.

 

As in previous years, Brazil received support from international anti-piracy groups and law enforcement. They include the U.S. Department of Justice, the UK Intellectual Property Office, and City of London Police.

Metaverse Raid?

The Ministry of Justice further reports that this is the first time that ‘Operation 404’ partially ‘took place in the metaverse.’ This is an interesting statement as the metaverse is still mostly a concept, one that’s not yet clearly defined.

 

The authorities don’t explain how or where they entered the metaverse, but a press release notes that four channels with illegal broadcasts were shut down. In addition, 90 pirated videos were deactivated.

 

According to Alessandro Barreto, the coordinator of the Cybercrime group of the Secretariat of Integrated Operations (Seopi), criminals created maps and events in the metaverse, where they invited interested parties to video platforms.

 

While not confirmed, it could simply be that people used platforms such as Roblox to advertise pirated services, as we have seen in a recent ‘metaverse’ piracy crackdown in Italy. That would be a quite broad use of the term metaverse.

 

Whether any future crackdowns will take place in the metaverse has yet to be seen. However, the authorities stress that they are continually on the lookout for new types of piracy.

 

“Our fight against piracy is ongoing. We are increasingly specializing in curbing these practices and identifying new crimes”, Seopi’s Alessandro Barreto says.

 

Around October 2020 a Twitter user called ‘MrMoneyBags‘ began posting critical messages targeting billionaires.

 

Brian Sheth, the former President of Vista Equity Partners, a private equity fund based in Austin, Texas, received special attention. MrMoneyBags posted six tweets accompanied by photos, with added commentary relating to Sheth’s wealth and his alleged lifestyle.

 

“Brian Sheth has upgraded in his personal life. The only thing better than having a wife … is having a hot young girlfriend,” said MrMoneyBags, referencing a photo of a woman in a bikini and high heels.

 

Other tweets continued along the same lines, sometimes hinting at an extramarital affair between the woman and Sheth. Soon after and in mysterious circumstances, copyright law entered the equation.

DMCA Takedowns Followed by DMCA Subpoena

On October 29, 2020, a business entity called Bayside Advisory LLC contacted Twitter stating that since it owns the copyrights in the six photos, they should be taken down under the DMCA. Twitter later fulfilled its obligations under copyright law by removing them but Bayside was only just getting started.

 

After the DMCA takedowns were sent to Twitter, Bayside registered copyrights in the photos, went to court, and obtained a DMCA subpoena requiring Twitter to hand over information sufficient to identify MrMoneyBags, thereby removing their anonymity.

 

Twitter objected to the subpoena, arguing that disclosure would undermine its user’s First Amendment rights. The company also expressed concern that via the DMCA subpoena, copyright law was being used to suppress criticism or rumors of extramarital affairs.

 

Furthermore, Twitter said that Bayside was in no position to claim copyright infringement to obtain the details of the alleged infringer (MrMoneyBags). Since the speech attached to the photographs constituted fair use, there was no infringer to identify.

 

Twitter’s motion to quash the subpoena was met with opposition from Bayside. In response Magistrate Judge Donna Ryu issued an order offering MrMoneyBags an opportunity to anonymously file evidence in support of Twitter and to argue that the photos were used on a fair use basis. The court received no response.

 

The Judge noted that the lack of a “well-developed record” in the case meant that a finding of non-infringement based on fair use wasn’t possible without evidence from MrMoneyBags. As a result, Bayside’s motion to compel was granted in late 2021 but Twitter objected and declined to hand over MrMoneyBags’ details.

Twitter Moves to Overturn Magistrate’s Order

In January 2022, the case was reassigned to District Judge Vince Chhabria and within weeks the Electronic Frontier Foundation and ACLU Foundation of Northern California filed an amicus brief, arguing that the magistrate’s ruling “sidestepped the First Amendment” when it focused solely on whether MrMoneyBags’ tweets made fair use of the photos.

 

“Narrowing the inquiry to focus exclusively on whether copyright infringement occurred incorrectly allows the nature of the claim to drive the analysis, rather than the nature of the speech at issue,” the brief noted.

 

Noting that the tweets appeared to be “noncommercial, transformative, critical commentary — classic fair uses,” the brief argued that even if Bayside had a viable infringement claim, it could not show that unmasking the Twitter user was truly necessary to advance its interests, and that those interests outweighed the harm that would result.

 

Public Citizen later submitted a brief that supported Twitter and similar platforms to defend the First Amendment rights of their users (pdf).

 

A brief submitted by the Copyright Alliance was mainly concerned with keeping a tight rein on existing practices for dealing with copyright infringement disputes. One part noted that MrMoneyBags could have taken “the simple step” of submitting a DMCA counter-notice if they believed their use of the photos was fair (pdf).

 

Of course, that would’ve meant MrMoneyBags’s real name and address being handed to Bayside months earlier. It would’ve have negated the need for this entire case, which was clearly aimed at protecting his identity from the shadowy Bayside entity and whoever is pulling the strings behind the scenes.

 

As it later turned out, Bayside’s dubious nature played a major role in tainting its own case.

Judge Chhabria Sides With Twitter

In an order handed down this week, Judge Chhabria first challenges Bayside’s assertion that a provision in the DMCA subpoena process divests the court of authority to consider the merits of a copyright claim (or issues of First Amendment privilege) when faced with a motion to compel or quash a DMCA subpoena.

 

“Bayside’s reading of the DMCA raises serious constitutional concerns. After all, it is not enough to say that a speaker could assert their right to anonymity after their identity has been revealed; at that point, the damage will have been done. Fortunately, the statute does not compel (or permit) this result,” Judge Chhabria writes.

 

A recipient of a DMCA subpoena may move to quash it on the basis that the subpoena would require disclosure of material protected by the First Amendment, his order clarifies.

 

“Bayside next argues that, to the extent MoneyBags has any First Amendment interest in this case, it is wholly accounted for through copyright’s fair use analysis, which allows the public to use copyrighted works in certain circumstances without facing liability,” the Judge continues.

 

“But while it may be true that the fair use analysis wholly encompasses free expression concerns in some cases, that is not true in all cases — and it is not true in a case like this. That is because it is possible for a speaker’s interest in anonymity to extend beyond the alleged infringement.”

 

Addressing Bayside’s assertion that MrMoneyBags’ absence from the case dooms Twitter’s motion, the Judge disagrees. His appearance would’ve been helpful but wasn’t absolutely necessary since Twitter’s interest in the dispute aligns with his – both have an interest in MrMoneyBags’ ability to speak his mind on the Twitter platform without facing retaliation.

 

Hiring a lawyer to litigate a copyright claim can be very expensive too, so out of concern, a speaker may opt to stop speaking rather than assert their right to do so anonymously.

 

“Indeed, there is some evidence that this is what happened here: MoneyBags has not tweeted since Twitter was ordered to notify him of this dispute.”

Two-Step Test and Fair Use

For a litigant to unmask the identity of an anonymous internet user in this type of case, the party seeking the disclosure must first demonstrate a prima facie case on the merits of its underlying claim. The second step sees the court balancing the need for such discovery against the First Amendment interest at stake.

 

According to the Judge, Bayside’s underlying claim – that of copyright infringement – fails when subjected to the four factors of fair use.

 

1) At the time the photos were used, MrMoneyBags’ Twitter account had a small following with just a handful of likes, retweets or comments, something that rules out commercial use. MrMoneyBags’ use of the photos alongside his own biting commentary and criticism led to a transformative use that reflected his “apparent distaste for the lifestyle and moral compass of one-percenters,” the order notes.

 

2) As to the nature of the copyrighted works, the Judge assessed some as the kind of material people might post to Facebook or Instagram. Others were more artistic, with elements such as lighting, positioning and wardrobe giving the appearance of intentional selection.

 

Unfortunately, Bayside provided no evidence about the photographs themselves, including where they were taken, by whom, the photographic subjects involved, or whether there was actually any attempt by the photographer to influence the creative process. As a result, the Judge finds this factor to be “largely inconclusive.”

 

3) On the amount of the copyrighted content used, in the context of a photograph that “is not meaningfully divisible”, the Judge finds the third factor ‘neutral’.

 

4) When considering the effect of the use on the potential market for or value of the copyrighted work, the Judge says that determining market harm is difficult when a use is transformative and non-commercial. Bayside claimed that it licenses photos for commercial exploitation but the Judge didn’t buy that, especially since the company offered no evidence to show market harm.

 

Taking all of these factors into account, Bayside has not demonstrated a prima facie case of copyright infringement. Even if it had, the Judge says that the subpoena would still need to be quashed since the balance of equities tilts in favor of MrMoneyBags and his right to remain anonymous.

 

“Unmasking MoneyBags thus risks exposing him to ‘economic or official retaliation’ by Sheth or his associates,” the Judge writes, before diving down the Bayside rabbit hole.

The Bayside Mystery ‘Makes a Difference’

According to the order, the Court is not assured that Bayside has no connection to Brian Sheth. Bayside was not formed until the month the tweets were posted and the entity had never registered any copyrights until the registration of the six photographs.

 

That there is no publicly available information about Bayside’s principals, staff, physical location, formation or purposes, and that the entity declined to present additional evidence or information that might help the court, seems to have sounded alarm bells.

 

Indeed, the Judge concludes by handing a win to Twitter (and by extension MrMoneyBags) and quashing the DMCA subpoena, with a barbed comment aimed at a shadowy entity that values anonymity, as long as it’s theirs.

 

“Bayside’s choice not to supplement the record makes it quite easy to balance MoneyBags’s interest in preserving his anonymity against Bayside’s alleged interest in protecting its apparent copyrights,” Judge Chhabria writes.

 

“On this record, even if Bayside had made a prima facie showing of copyright infringement, the Court would quash the subpoena in a heartbeat.”

 

Documents for the entire legal saga can be found here

 

The popularity of non-fungible tokens, NFTs for short, has reached new highs over the past year.

 

This has also drawn the attention of celebrities, some of whom agreed to tie their names and creations to these digital collectibles.

 

Last fall, Quentin Tarantino joined in as well. The movie director announced that he would auction ‘Pulp Fiction’ NFTs to the public. These NFTs will unlock handwritten scripts and exclusive custom commentary from Tarantino, assets that could prove valuable to collectors.

Miramax Sues over Pulp Fiction NFTs

Not everyone was happy with this plan though. Movie studio Miramax, which owns most of the rights to the film, sees the plan as a contract breach and copyright infringement. In a lawsuit filed at a California federal court last November, the movie company accused the director of attempting to cash in on something he doesn’t own the full rights to.

 

“Eager to cash in on the non-fungible token (‘NFT’) boom, as widely reported in the media, Quentin Tarantino recently announced plans to auction off seven ‘exclusive scenes’ from the 1994 motion picture Pulp Fiction in the form of NFTs,” the complaint read.

 

Despite this legal dispute, the first NFT was put up for auction early this year, selling for over a million dollars. After that, the project was put on hold, perhaps in part to await the outcome of the lawsuit.

Tarantino Wants the Lawsuit Dismissed

According to Tarantino, Miramax’s claims are ungrounded. His legal team previously described the claims as “offensively meritless” and this week they submitted a motion for judgment, seeking dismissal of the complaint in its entirety.

 

“Miramax’s copyright claim fails because it misapprehends fundamental principles of copyright law and ignores the clear language of the agreements and assignments,” Tarantino’s lawyers write.

 

The movie company suggests that by assigning the film’s copyright to Miramax, the director also gave up the rights to his screenplay. That’s not the case, the lawyers counter.

The Film is a Derivative

Tarantino sees the film as a derivative of the screenplay he personally wrote and still holds the rights to, not the other way around.

 

“Miramax’s complaint assumes that an assignment of copyrights in a motion picture encompasses an assignment of exclusive rights in the underlying screenplay for that motion picture. That turns copyright law on its head,” the lawyers write.

 

Even if Miramax could somehow show that, by giving up the film’s copyrights, Tarantino also transferred the exclusive rights for the underlying screenplay, that wouldn’t be sufficient. The agreements both parties have signed make it clear that the director didn’t give up the screenplay rights.

 

“At every turn, the parties bent over backwards to make clear that Mr. Tarantino was not assigning any rights in the Screenplay to Miramax,” Tarantino’s lawyers note.

 

Tarantino’s legal team makes it clear that the NFTs will not include any content from the film. They will be based on the screenplay which is still owned and copyrighted by the director.

 

“The Film is a derivative work created from the Screenplay, not the other way around. Because Mr. Tarantino never assigned any rights in the Screenplay to Miramax, Miramax’s copyright claim fails,” the lawyers reiterate.

‘Infringements’ Removed?

It is worth noting that when the TarantinoNFTs.com first launched, it included several film-inspired elements.

 

For example, the early artwork featured iconic depictions of Samuel L. Jackson and John Travolta, which have since been replaced with an image of Tarantino himself. The original artwork was labeled as copyright-infringing by Miramax so this change appears to be a direct response to this claim.

 

In addition, several tweets from the Tarantino NFT team with alleged copyright-infringing material were deleted as well. These tweets are also listed as infringing examples in the legal paperwork.

 

It is now up to the court to decide whether there are sufficient grounds to dismiss the complaint or not. Before that happens, Miramax is expected to formally respond to Tarantino’s arguments.

 

—

 

A copy of the motion for judgement on the pleadings is available here (pdf) and the proposed order to dismiss the case can be found here (pdf)

 

After 10 years of legal battles following the closure of Megaupload, former executives Mathias Ortmann and Bram van der Kolk want to put their ordeal behind them.

 

The prospect of being extradited to the United States to face copyright infringement, racketeering and money laundering charges proved to be a heavy burden for the men, so when an opportunity emerged to stay in New Zealand, they took it.

 

This May they announced that a deal had been struck with the New Zealand Government and the United States under which they had agreed to be charged in New Zealand for offenses similar to those they would’ve faced in the US. This meant that they would not have to be extradited to the US and if convicted, any sentence would be served in New Zealand.

 

Just over a week later, a planned hearing at the Auckland District Court was transferred to the High Court where 50-year-old Ortmann and 39-year-old van der Kolk would later stand accused of conspiring as part of an “organized criminal group” to unlawfully profit from copyright-infringing material.

Ortmann and van der Kolk Plead Guilty Today

The existence of a deal suggested that the men would plead guilty and at the High Court this morning, that was confirmed. Both pleaded guilty to being involved in an organized crime group, conspiring with Kim Dotcom and others to cause loss by deception to copyright holders by hosting and distributing infringing content via Megaupload and its associated websites, for financial gain.

 

The summary of charging facts states that Ortmann was a 25% shareholder of Megaupload Limited and made around US$19 million from Megaupload. Colleague van der Kolk had a 2.5% share of the company and received approximately US$3 million.

 

“The defendants’ technical knowledge was indispensable to the creation and growth of Megaupload. Mr Dotcom ultimately determined matters of policy and direction but lacked the practical expertise to carry his wishes into effect,” the statement of facts reads.

 

“He relied on the defendants to set up and run the technical infrastructure of Megaupload. The offending would not have been possible without their involvement.”

 

Ortmann and van der Kolk were convicted based on their guilty plea by Justice Sally Fitzgerald. The men will remain on bail and a sentencing date will be decided in October.

 

In a video interview outside the High Court, the men said that accepting the charges represented another step towards putting the ordeal behind them and moving on with their lives.

 

“It’s another step towards putting Megaupload behind us,” Ortmann told Stuff. “It’s been 10 years, we are now living in the future with Mega. We have founded a new cloud storage business so there is absolutely no point in dwelling on these proceedings any longer and we are putting it behind us.”

Men Want to Contribute to New Zealand’s Future

After a decade of fighting attempts by the United States to remove them from New Zealand, the men say they are now firmly rooted in New Zealand and want to build a future in the country. Ortmann said the pair want to contribute to New Zealand as good citizens, a sentiment echoed by van der Kolk.

 

“We’ve worked incredibly hard on Mega and we strongly feel that our rehabilitation process has started a long time ago. We are very proud of what we have built and we are very much looking forward to being able to continue to build, because we still have a lot of work to do,” van der Kolk said.

 

“We want to focus on productive things and do great things for society – and learn from our mistakes.”

Kim Dotcom Turns His Anger on ‘Former Friends’

Kim Dotcom is not part of the deal struck by Ortmann and van der Kolk. For 10 years he has repeatedly insisted that he will never give in, never accept guilt, and will fight the New Zealand and US governments to the bitter end.

 

With that being the case, pleading guilty was always off the table but this morning Dotcom’s lawyer Ron Mansfield alluded to preferential treatment of Ortmann and van der Kolk to the detriment of his client.

 

“The real question is why Mr Dotcom has not been offered a prosecution here and why our system of justice has become so preferential to a select few and only when it serves the government’s interest,” Mansfield told Stuff.

 

As for Dotcom, his attitude towards Ortmann and van der Kolk has shifted markedly in the space of a month. When their plea deal was announced in May, the Megaupload founder said he didn’t blame the men for “giving up.” In a series of Tweets this morning he accused them of stealing a company from him…..

 

…. and facilitating spying at their new company Mega, via the creation of backdoors, to the benefit of the Chinese government.

 

The allegations regarding Mega were made in response to a detailed report that alleges that Mega was vulnerable to five attacks that together allow for a “full compromise of the confidentiality of user files.”

 

Mega was reportedly informed privately of the issues in March and according to a security notification penned by Mathias Ortmann, Mega has now released software updates that fix a critical vulnerability.

 

Last Thursday, the US Copyright Claims Board went live. Through this venue, hosted at the Copyright Office, copyright holders can try to recoup alleged damages outside the federal court system.

 

The board aims to make it cheaper for creators to resolve disputes. There’s no attorney required and the filing fee is limited to $100 per claim. Accused parties also benefit as the potential damages are capped at $30,000. Those who prefer traditional lawsuits can choose to opt-out.

 

While this sounds positive, there are also concerns that the system will be used by opportunistic rightsholders to extract ‘easy money’ from less law-savvy individuals. The Copyright Claims Board put several safeguards in place to prevent this, but it’s certainly worth keeping an eye on.

19 Cases, No File-Sharing

After the Board opened up its submission portal, we kept an eye on the incoming cases. Thus far, 19 claims have been put on the docket of which 15 are publicly available at the time of writing.

 

None of the claims filed thus far are related to file-sharing. That would usually mean a decision not to report on these matters, but due to the novelty of the Board we decided to take a closer look.

 

What stands out is that, among these 15 cases, more than a third were filed by just two defendants. Both of these are photographers who accuse the counterparty of using their work without a license. Most of the other cases are related to photography as well.

 

The claiming parties are mostly smaller creators representing themselves. They generally target commercial companies instead of individuals. And in some instances, big names show up.

Paris Hilton’s Fairy Wings

Angela Jarman, for example, lodged a claim against Paris Hilton and her company 11:11 Digital. According to the claim, the defendants allegedly used copyright-infringing fairy wing designs in several photos that were shared on social media.

 

“My own photos of my design were used in image edits and displayed on 11:11 Digital / Paris Hilton’s social media accounts without my permission. The same IP, Titania Fairy Wings, has actually been infringed 3 different times by Paris Hilton / 11:11 Digital,” the claim reads.

 

The wings designs are sold through Fancy Fairy Wings & Things Store and at $6.99 they are not overly expensive, to say the least.

 

“How cheap does someone have to be, to find a listing for digital wing overlays and cut & copy the wings out from the preview image rather than buy them for a measly $6.99??” Jarman previously noted.

$12,000 for Ongoing Infringments

The alleged copyright infringements were reported several times with mixed results. While Instagram removed the content, it is still live on Twitter and Facebook.

 

Jarman now hopes that the Copyright Claims Board will help to move the needle and award thousands of dollars in damages.

 

“I am seeking roughly $12,000 in relief, based on previous copyright settlements for online displays of my work and due to the frequency with which the same IP has been infringed by Paris / 11:11 Digital.”

 

A representative from Paris Hilton Digital previously said that the edits were created by a fan who used a design that was found on a free clip art site. Whether that will be the official defense remains to be seen.

 

Paris and 11:11 Digital can also choose to opt-out of the proceeding. In that case, Jarman has no other option than to go down the more expensive route at a federal court.

 

For many years Japanese manga companies had a tendency to ignore the majority of overseas markets, despite the potential for lucrative trade.

 

However, powered by a global Internet and passionate fans with translation abilities, scanned copies of manga titles first trickled and then flooded into the West, creating a massive market and future demand for this Japanese cultural product where none previously existed.

 

Manga pirates often take credit for what amounted to a highly successful unpaid marketing project but having seen the potential, manga publishers understandably want this market for themselves. In more recent years, great strides have been made toward giving manga fans outside Japan improved legal options but pirate sites still exist and publishers now want them gone.

Legal Action by Publisher Shueisha

Ever since an investigation was revealed into the former operator of manga piracy giant Mangamura, publisher Shueisha has been closely connected to an increasing number of large piracy investigations. From the disappearance of Mangastream in 2019 to the shutdown of Mangabank in 2021, Shueisha (along with anti-piracy partners Shogakukan, Kadokawa and Kodansha) have rarely been far from the action.

 

They’re currently investigating several huge platforms and are even suing Cloudflare for ‘helping’ pirate sites. Massive pirate platform Manganato is also under pressure.

Competing With Piracy

In January 2019, Shueisha launched direct publishing platform MANGA Plus with accompanying mobile apps. It’s proven popular with fans for the range of free content in multiple languages but for a number of reasons it fails to compete with pirate sites.

 

For example, readers of many series are met with a message stating, Our current license prohibits us from publishing the in-between chapters, a problem pirate sites never face. These types of issues aren’t insurmountable long term but in the short term, pirate sites obviously prove attractive.

Need Sensitive Information From Users? Just Ask Them For It

To get a better idea of what customers want from MANGA Plus, the company is running a survey asking questions about the languages read most on the service, quality of translations, potential purchasing habits (including volume and preference for in-app currencies), how much users would pay to bridge the “missing chapters” issue, and which new comics users would like to see on MANGA Plus.

 

These are obviously solid questions for improving customer experience, overall satisfaction, and for gauging what people are prepared to pay to get the features they want. But of course, Shueisha’s manga business is challenged by illegal pirate alternatives, something the company doesn’t even try to hide.

Confess Here Please

As early as question four in the survey, Shueisha invites users of its MANGA Plus service to admit to copyright infringement, with question five asking them to name the pirate site they use often (or occasionally) to break the law.

 

There are two ways of looking at these questions, with the less cynical suggesting that Shueisha simply wants to look at these platforms and work out what it can do to be more like them, whether that relates to the speed of release, the sheer volume of content, functionality, and/or familiarity. Indeed, question six does just that.

 

Question eight directly asks how MANGAPlus can be improved, again with an emphasis on piracy. Options include update speed compared to pirate sites, catalog size, language support and the number of works available for free. It even acknowledges that users of MANGA Plus may have heard about Shueisha’s legal service on a pirate site.

Should People Be Confessing to Piracy?

Text on the app and on the website variant of the survey differ slightly, with the app version offering assurance as follows: “Your survey responses will just be used to help us make future decisions regarding Manga PLUS, so please feel free to answer honestly.”

 

Of course, running a survey like this on a platform used by manga fans makes absolute sense since answers are provided by active users in the best position to offer advice. That said, users of MANGA Plus putting themselves into a database of known piracy users, controlled by a company that has a reputation for cracking down on piracy, might not be the best idea – at least according to any lawyer.

Personal Data

Like most companies, Shueisha collects personal data including identification code(s) and location data unique to each mobile device, browsing history, plus email addresses or account IDs where relevant. These are retained for all the usual business reasons including “prevention or taking measures of wrongful act.”

 

Data collected from users can also be shared with Shueisha group members including VIZ Media, also known for its anti-piracy activities. Shueisha also reserves the right to hand over information to third parties in cases based on “laws and regulations including inquiry pursuant to Criminal Procedure Law.”

 

In the end, users will do what they feel is most appropriate but there are plenty of reports online of users being happy to hand over the requested information. In particular, people seem happy to list the pirate sites they like the most, which of course will not influence Shueisha in any way when it decides its next list of pirate sites to take down.

 

The interesting angle here is that at least today, Shueisha sees pirate sites as competition, as entities to keep up with, emulate, and ultimately beat. The big question is whether innovation will continue if it succeeds in taking most of them down, or whether it will use the data on how much people are prepared to pay to capitalize on its new market.

 

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 two new entries on the list. “Fantastic Beasts: The Secrets of Dumbledore” is the most downloaded title.

The most torrented movies for the week ending on June 20 are:

Movie Rank	Rank last week	Movie name	IMDb Rating / Trailer
Most downloaded movies via torrent sites
1	(2)	Fantastic Beasts: The Secrets of Dumbledore	6.4 / trailer
2	(1)	The Unbearable Weight of Massive Talent	7.2 / trailer
3	(3)	Morbius	5.1 / trailer
4	(6)	The Batman	8.4 / trailer
5	(7)	Everything Everywhere All at Once	8.5 / trailer
6	(…)	Spiderhead	5.5 / trailer
7	(4)	The Northman	7.6 / trailer
8	(5)	Top Gun: Maverick	8.7 / trailer
9	(…)	Jerry and Marge Go Large	7.0 / trailer
10	(8)	Downton Abbey: A New Era	7.6 / trailer

 

 

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

 

Up until a few years ago, MKVCage was a popular torrent portal that also uploaded its torrents on other sites.

 

This ended abruptly when the makers of the superhero film “Hellboy” took the site’s operator to court the summer of 2019.

 

Movie company “HB Productions” accused the site and its Pakistani operator Muhammad Faizan of promoting and distributing pirated copies of the movie, hoping that this would put an end to the activity. And indeed it did.

 

The lawsuit had an almost immediate effect as the torrent site became unreachable soon after the case went public. At the same time, MKVCage stopped pushing torrents to other sites as well. This meant that part of the plan had succeeded but HB Productions also wanted financial compensation.

Damages and Jurisdiction Battle

Since Faizan didn’t show up in court, the movie company’s attorney Kerry Culpepper requested a default judgment. Initially, the filmmakers asked for $270,000 in copyright infringement damages. This figure was based on the number of alleged infringements multiplied by the Blu-ray retail price.

 

The court wasn’t convinced by this calculation and the film company later changed its request to $150,000, which is the maximum statutory copyright infringement damages for a single work.

 

Despite this change, Judge Mansfield still wasn’t satisfied. He questioned whether the defendant, who didn’t put up a defense, could actually be sued in America. In 2020, the default judgment was denied based on the argument that a US court doesn’t have jurisdiction over the Pakistani defendant.

 

The filmmakers were not happy with this outcome and filed an amended complaint, hoping to fix the shortcomings in their allegations. Initially, this renewed effort appeared to fail as Judge Mansfield still found the provided evidence insufficient. Last month, however, US District Court Judge John Michael Seabright reached a different conclusion.

 

According to the court, the Internet has transformed how foreign defendants interact with the United States. In this case, the defendant used US-based servers from a remote location, which is sufficient to invoke liability.

Judge Recommends $150,000 Damages

With this ruling in hand, the case was sent back to the Magistrate Judge who now recommends granting the $150,000 default judgment because all factors weigh in favor of the filmmakers. This includes the alleged damages, which are substantial.

 

“The Court finds that the amount of money at stake is significant relative to the cost of continued litigation, especially considering Defendant’s location outside of the United States and Plaintiff’s alleged actual damages totaling $270,902.58.

 

“The statutory damages Plaintiff seeks are appropriate and reflect the severity of Defendant’s willful infringement of Plaintiff’s copyrighted Work,” Judge Mansfield adds.

 

This means that a default judgment against the MKVCage operator is warranted but a separate evaluation of the scale of the damages is still required.

 

Here, Judge Mansfield also agrees that the maximum statutory damages award is appropriate. These damages are meant to compensate the filmmakers, but also to punish the defendant.

Willful Copyright Infringement

The Judge agrees that the infringements were willful. Among other things, the site operator initially relocated the site to a new domain when the lawsuit was filed.

 

“When Defendant received notification of this lawsuit, Defendant created a new website, ‘mkvcage.nl,’ hosted by a completely different servicer […] so that Defendant could continue his infringing activities.”

 

All in all, this means that awarding $150,000 in statutory damages is appropriate.

 

“The Court finds that awarding maximum statutory damages under the Copyright Act is appropriate to deter and punish Defendant’s conduct and to compensate Plaintiff,” Judge Manfield adds.

 

There’s also a small disappointment in the recommendations as not all of the requested costs and fees were granted. Nevertheless, the proposed $150,000 damages award is still a big win.

 

This means that, after repeated back-and-forths, the film company can get most of what it asked for. The court still has to adopt the recommendations from the Magistrate Judge, but the biggest hurdles have been taken.

 

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A copy of the full findings and recommendations, issued by Magistrate Judge Manfield, is available here (pdf)

 

In August 2021, US broadcaster DISH Network plus Sling and NagraStar sued pirate IPTV service Nitro TV.

 

According to the complaint, Alex, Anna, Martha and Osvaldo Galindo were behind the unlicensed streaming service which obtained its content from DISH satellite broadcasts and Sling’s internet-based programming.

 

Documents obtained by the plaintiffs revealed the sale of at least 100,363 subscriptions (‘device codes’) which allowed Nitro customers to receive live TV programming and a movie/TV show VOD service at discount prices. Two accounts at Wells Fargo and Chase operated by Alex and Martha received at least $5.5m relating to the IPTV service.

 

DISH and the other plaintiffs claimed that the defendants were responsible for mass violations of the DMCA’s anti-circumvention provisions and the Federal Communications Act (FCA). Since none of the defendants appeared in court, these allegations went unchallenged.

Default Judgment and Massive Damages

In February 2022, DISH, Sling and NagraStar filed a motion for default judgment, demanding over $100m in damages for FCA violations and a broad injunction for violations of the FCA and DMCA.

 

An order handed down by District Judge Jeffrey Vincent Brown last week acknowledged the defendants’ failure to appear and granted the plaintiffs’ motion for default, finding the Galindos liable for violations of 47 U.S.C. §§ 605(a), 605(e)(4), and 17 U.S.C. § 1201(a)(1)(a).

 

DISH and NagraStar were awarded $100,363,000 in statutory damages against the defendants, jointly and severally, for their violations of the Federal Communications Act. Via a permanent injunction, the Galindos were also restrained from infringing DISH and Sling’s rights by operating a similar IPTV platform in future, or being involved in the sale of devices or subscriptions that exploit their programming.

 

The judgment (pdf) appears to give DISH everything it asked for, including a huge damages award that will hurt the defendants, if the broadcaster is able to track them down. That is a big ‘if’ but DISH has a reputation for not letting such things go.

 

While these types of piracy awards are usually considered a win for the broader entertainment industry due to the deterrent message they send, the plaintiffs in a separate piracy lawsuit filed against Nitro TV are far from happy. Their irritation in that action is now palpable, with the studios’ legal team directing criticism at Alex Galindo’s lawyer, much to his consternation.

Lawsuit Filed By ACE Members Against Nitro

In April 2020, around 16 months before DISH filed their lawsuit against the Galindos, a coalition of entertainment companies led by Universal, Paramount, Columbia, Disney and Amazon filed a copyright infringement complaint against Nitro’s operators.

 

Unlike the DISH lawsuit, the action brought by these members of the Alliance for Creativity against Alex and Anna Galindo, YouTuber ‘Touchtone‘, and others, was more complex.

 

The plaintiffs obtained an injunction against Nitro in May 2020 and later claimed evidence had been destroyed or withheld. The main problem, however, was Alex Galindo’s mounting of a defense.

 

In June 2020, he accused plaintiff Amazon of profiting from pirate IPTV devices sold on its platform and in October the same year, asked the court to dismiss the case in its entirety.

Strained Relations, Short Supply of Patience

Galindo said that he was concerned that the civil lawsuit could later turn into a criminal prosecution and for their part, the plaintiffs refused to rule that out. Therefore, when discovery was supposed to take place, Galindo asserted his Fifth Amendment rights not to self-incriminate. The plaintiffs said this amounted to a discovery abuse so demanded sanctions and a default judgment.

 

Alex Galindo’s attorney Steven Vondran later accused the plaintiffs of allowing the case “to drag on” after they sought additional time to serve Martha Galindo. Vondran also asked for the entire case to be dismissed, noting that Alex had previously agreed to accept a default judgment, a proposal the studios rejected.

 

The response from the studios pulled no punches. Using terms such as “outright lies” and “frankly laughable” it was clear that the supply of patience was drying up. The plaintiffs had discovered that Nitro had processed $7 million through accounts maintained by Martha Galindo and they Wanted access to that money.

Nitro Boss Stops Paying His Attorney,

After Alex reportedly refused to cooperate with the plaintiffs who were trying to find Martha and get access to the money, he later stopped paying Vondran and ended communications. A “complete breakdown” of the attorney-client relationship ensued so Vondran asked the court’s permission to withdraw from the case.

 

With a hearing scheduled for June 30, the studios say that allowing Vondran to withdraw now would create a risk of “yet further prejudicial delay”, hindering their efforts to bring the case to a conclusion. They also believe that it’s unlikely that Alex Galindo will appear in person, since he previously missed a court-ordered appearance in April.

 

But if patience was in short supply late last year, it now appears to have completely dried up. The studios are now suggesting that Vondran is in some way responsible for his client’s alleged misconduct – a client that owes him money and isn’t returning his calls.

Delays Reduce Chances of Recovering Damages

“While Plaintiffs to date have refrained from seeking sanctions against Mr. Vondran, virtually all of the conduct underlying the Sanctions Motion (e.g., destruction of evidence, false discovery responses provided under oath, failure to produce a single document, and violation of a court order compelling responses and production) occurred under his watch,” a studio filing dated June 10 reads.

 

“Plaintiffs have done everything in their power to bring this matter to a conclusion in a manner that vindicates their rights and does not reward Defendant for his gross misconduct and complete disregard for his obligations to this Court,” they continue.

 

“Importantly, these are obligations that Defendant affirmatively opted to take on by choosing to defend against the allegations against him not once, but twice — and always while represented by Mr. Vondran.”

 

It’s at this point the studios make a direct reference to the DISH lawsuit, the relative ease with which it has just concluded in favor of the plaintiffs, and the early jump DISH has on the Nitro money.

 

“To put a fine point on it, the plaintiffs in the Texas action, who filed suit over a year after Plaintiffs filed this action and after the Sanctions Motion was filed, have obtained a judgment on the same misconduct at issue here, and are now able to start enforcing their judgment against Defendant while Plaintiffs are still awaiting ruling on the Sanctions Motion,” a statement in opposition to Vondran’s withdrawal reads.

Vondran Doesn’t Appreciate Plaintiffs’ Tone

In a response filed less than a day after the studios’ most recent filing, Steven Vondran describes the allegations against him as “unprofessional and unsubstantiated character attacks” that imply he was somehow involved in discovery abuses.

 

“There was no need for them to make these unfounded insinuations,” Vondran informs the court.

 

“There is absolutely no evidence anything was done improper by Defense counsel and in nearly 18 years of legal practice and having handled several hundred litigations (mostly federal court) I have never been accused of such abuses as they are now insinuating.”

 

Vondran then references the “very large” DISH judgment, which in his opinion leaves the Hollywood plaintiffs with “no likely way to ever recoup their alleged damages.”

 

He believes this is entirely down to the plaintiff’s refusal to clarify the full nature and extent of the infringements at Nitro. If they had done so, the case would’ve gone to default long ago.

 

“In other words, it appears they are now upset because they are now in second position due to their prolonged delay.”

 

Vondran concludes by asking the court to grant his motion to withdraw, noting that there would be no way to effectively defend Alex without potentially affecting his Fifth Amendment rights, even if he hadn’t abandoned all contacts with Vondran and his company.

 

Update: After the latest exchange in the case, Judge Gail J. Standish issued a 27-page report (pdf) which recommends the district judge to find that Alex Galindo willfully violated court orders, failed to cooperate in discovery, should be held liable for infringement, and should pay $181,080 in attorneys’ fees and costs to the plaintiffs.

 

Source documents can be found here (1,2, pdf)

 

In March, a Dutch court ordered local ISP Delta to block access to the torrent sites 1337x, LimeTorrents, YTS, RARBG, Kickasstorrents and EZTV.

 

In addition to the main domains, a long list of proxies and mirrors are included as well. And if new domains pop up, these can be swiftly blocked too.

 

This is the second site blocking order in the Netherlands and a big win for local anti-piracy outfit BREIN. The anti-piracy group has spent more than a decade getting a Pirate Bay blockade in place and is now pushing through with new requests.

 

With help from a covenant, signed last year, all major Dutch Internet providers agreed to voluntarily comply with orders issued against rival ISPs. On top of that, Google also helps by removing blocked sites from its search results.

Does Site Blocking Affect Torrent Activity?

The wave of enforcement efforts must be frustrating for local pirates but does this means that they simply give up their old habits?

 

To find out how the March blocking order affected local torrent traffic, we used the torrent monitoring service IKnow, which provides a daily overview of how many people download files on BitTorrent. In this case, we only looked at Dutch activity[*].

 

The data in question has nothing to do with website visits. It’s simply a representation of how many Dutch file-sharers show up in public torrent swarms on any given day, irregardless of where the .torrent files come from.

 

The blocking order was issued on March 24 and Delta had five days to implement it. It’s not clear when each ISP started blocking, but the major ISPs followed soon after. KPN already had its blockade in place before the end of that month.

No Visible Blocking Impact

If the blocking measures impacted torrenting activity there should be a noticeable change in Dutch activity around the end of March. However, the data doesn’t reflect this at all. Between March 14 and April 24, the torrent activity remained relatively stable and there is no visible decline.

 

These numbers suggest that people still know where to find torrents, likely through alternative sites that are still available. Or they found a way to bypass the blockades via a VPN, generic proxy, or any other tool.

 

It’s simply not realistic to expect that people will kick year-long habits from one day to another. That said, the blocking measures may reduce the number of people who start using these sites for the first time.

More Blockades Needed?

The lack of an instant effect may be a disappointment for rightsholders but it is not entirely unexpected. Academic research from Carnegie Melon University has shown that blocking only starts to be effective when a large number of sites is targeted. The more sites blocked, the bigger the impact is.

 

BREIN Director Tim Kuik is aware of this as well and previously highlighted this study, partly as a motivation to continue the blocking efforts.

 

“If an illegal source is made inaccessible, some of the traffic will move to other illegal sources, but in practice, this waterbed effect becomes less and less if more sources are blocked. In combination with sufficient legal supply, illegal use decreases when you act against illegal providers,” Kuik said.

 

This is also why BREIN has already started work on additional site-blocking orders. The anti-piracy group hopes that, when enough sites are included, pirating activity will eventually start to decline.

 

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*Note: The location data is based on IP addresses. The number of unique addresses per swarm is counted by Iknow. It’s possible that foreign VPN subscribers with a Dutch IP address are included. While this would overestimate the number of Dutch IPs, this overestimation is constant so that does not change the conclusions.

 

Alongside the explosion of online piracy services over the last couple of decades, new anti-piracy companies have emerged offering to dampen down the flames.

 

Most have their own specialties and target markets, with some even claiming to be 99% or 100% effective in one area or another. The reality is that no sane person invests time and money into a company with a mission to ensure its own demise.

 

Anti-piracy services are effectively the weedkiller and deodorant of the internet – they may leave everything tidy and fresh today but there’s always a new and sometimes smelly infestation tomorrow. The battle never ends.

 

These days anti-piracy enforcement is an integral part of entertainment companies’ business strategies. In the same way that Hollywood hires the best accountants to ensure that as little tax is paid as legally possible, suppressing the availability of pirated content is considered essential in the quest to make as much profit as possible. To that end, filmmakers, record labels, TV companies, and cinema chains need to hire more and more people to make that happen.

 

In the UK there are currently more job vacancies than there are unemployed people so this week we trawled through recruitment sites looking for interesting positions. We expected one or two in the anti-piracy market but, to our surprise, we found many – including some we didn’t ever expect to see mentioned in public.

Movies and Music

Given the size of its operation, it wasn’t really a surprise to see Disney advertising a role described as ‘Analyst, Digital Media Antipiracy’.

 

“This position will be part of a team that is responsible for providing antipiracy services with a focus on combating online piracy of film, television, and live events related to Disney properties worldwide, working closely with industry associations, outside counsel, and Disney business and legal teams.

 

“Duties of this position include supporting antipiracy enforcement efforts, researching piracy technologies, websites, and apps, tracking piracy data, providing regular reports on piracy trends, evaluating prospective providers of antipiracy services and managing existing providers,” the listing reads.

 

Disney is looking for someone with a working knowledge of the DMCA, a degree in business or computer science, and a “solid understanding of the online piracy site landscape” including live streaming sites – both pirated and legitimate.

 

Disney doesn’t publicly commit to a salary for this 12-month fixed-term contract so if music is more your thing, Universal Music Group is also looking for a new recruit.

 

Responsible to the company’s VP of Global Content Protection, the position of ‘Content Protection Representative’ is one that the successful candidate will be able to do from home. Supporting UMG’s global content protection strategies and assisting in the enforcement of UMG’s copyrights worldwide, the successful candidate will be familiar with anti-piracy and copyright issues and will speak a second language.

 

Knowledge of Blockchain, NFTs (Non-Fungible Tokens) and Metaverse technologies is desirable for five days each week, running from Wednesday until Sunday. Like Disney, UMG prefers not to mention a salary for this position.

Site-Blocking Gurus Needed

The position of ‘Anti-Piracy Analyst’ is being offered by brand protection/anti-piracy company Corsearch. The successful candidate will have previous anti-piracy experience, a good understanding of the piracy landscape (including BitTorrent and streaming), and excellent ‘web scraping’ skills.

 

“Collect, collate, research, and analyse data from a diverse range of sources, including internal systems to produce accurate, timely and complete records to facilitate the ongoing effectiveness of site blocking actions around the world,” the listing reads.

 

Once again the available salary isn’t mentioned but considering the importance of site-blocking to entertainment companies, we presume this Cardiff-based position is paid with that in mind. Then, much like London buses, when one site-blocking job comes along, suddenly there’s another.

Fancy Some Pirate IPTV Blocking?

Friend MTS, the anti-piracy company working with the Premier League to identify pirate IPTV streams so they can be blocked by ISPs, needs additions to its team. The position of ‘Senior C++ Algorithm Engineer – Content Identification’ suggests that the candidate will have to program a computer and be very, very good at adding up.

 

“We are seeking an experienced and enthusiastic Software Engineer to join our expanding Content Identification and Watermarking team working on automatic content recognition and covert video watermarking technologies in a distributed, real-time anti-piracy system in use by many major global media companies from satellite / cable broadcasters to sports rights owners and movie studios,” Friend MTS explains.

 

“The position requires individuals with commercial experience in C++, with a good understanding of how to tackle complex and mathematically challenging problems in software engineering.”

 

Friend MTS prefer not to give an indication of salary but in recent weeks the company has advertised several other positions, so there might be more than one opportunity. The company has an office in the center of Birmingham close to several trendy bars – ideal for quenching thirsts after Premier League blocking ends on Saturday. And on Sunday. And in the middle of the week.

MUSO Needs an Anti-Piracy Chief

Anti-piracy company MUSO is regularly in the press with piracy reports and analysis and late last month began the process to recruit a new ‘Head of Content Protection’. Candidates will need a strong understanding and experience of the anti-piracy industry for digital content.

 

“This varied role will be responsible for line management of the content protection team, project delivery, customer interaction, and process development,” the ad reads.

 

MUSO is offering a salary of up to £55,000 a year and the successful candidate will be able to work from home while testing out the company’s four-day working week trial.

 

This forward-looking work schedule is also available to a new ‘Data Analyst‘ who, for a maximum of £40,000 a year, will help media rights owners, broadcasters and VOD platforms “understand global demand for film and TV titles, unearthing emerging trends and hit titles previously flying under the radar.”

Fighting Movie Camming on the Front Lines

Finally, there are positions available at Cineworld, the second-largest cinema business in the world. Both require employees to monitor customers to ensure they’re not pirating the latest blockbusters. If any cammers are discovered they will need to be handled in line with Cineworld’s anti-piracy policy. When necessary, “appropriate action” should be taken.

 

When not on the front lines tackling piracy, candidates will be required to monitor picture quality, sound quality, and screen temperature. Eyes must also be alert to any customer disturbances but should they complain, patrons must be handled politely.

 

In addition to being passionate, resourceful, and confident in communications, the successful candidate will be required to promote membership schemes to customers – when not working behind the bar or dealing with food in the kitchen, of course. An ability to work under pressure is an understandable requirement – the job also requires the daily cleaning of toilets, back and front of house areas, screens, and cinema seating.

 

This important movie industry position pays the princely sum of £10.05 an hour and the supervisor position pays just 50p more.

 

Given that one of these positions is in Epsom, Surrey, where renting a one-bedroom flat costs at least £250 per week, the successful candidate could be left with just £20 a day on which to survive, barely covering food and utility bills in today’s environment. This may go at least some way to explaining why the UK has so many job vacancies right now.

 

That being said, Cineworld is billions in debt, so things could be worse.

 

The music industry has battled against various forms piracy for several decades, but it’s hard to root out.

 

Many of the enforcement efforts are targeted at services or tools that offer pirated content, but there are less visible copyright infringement challenges too.

Unlicensed Platforms and Apps

In recent years music publishers have repeatedly spoken out against online platforms that use their music without a proper license. These include TikiTok and Roblox, among many others.

 

These giant platforms are just the tip of the iceberg, it seems. During its annual meeting in New York this week, the National Music Publishers’ Association (NMPA) stressed that copyright-infringing apps are a massive problem that should be dealt with sooner rather than later.

 

NMPA President and CEO David Israelite announced that the organization is launching a crackdown on apps that use music without paying for it. The music industry association has already sent cease-and-desist letters to nearly 100 apps that use copyrighted music without proper licenses.

NMPA Sues Vinkle

The NMPA didn’t stop at sending warning letters. To show that it’s serious, the video maker app Vinkle was taken to court this week. In a complaint filed in the Northern District of California, the NMPA accuses the app’s creators of mass copyright infringement.

 

“Vinkle is in blatant violation of copyright law because it is built based upon a library of copyrighted musical works that Defendant neither owns nor has obtained a license to use,” the complaint reads.

 

“Defendant has brazenly copied voluminous copyrighted musical works to Vinkle’s servers, as the foundation for Vinkle, and provides them to users of Vinkle to incorporate into short ‘music videos’.”

 

The NMPA notes that these types of apps are becoming increasingly aggressive in their use of unlicensed music. Such use is contrary to copyright law and a clear violation of Apple and Google’s policies.

 

As compensation for the alleged infringing activity, the music publishers demand compensation. With 55 works mentioned in the complaint, potential damages could reach $8.25 million.

‘Google and Apple Should Take Responsibility’

Speaking at the annual meeting, Israelite also pointed a finger at leading app stores. DMN highlights that the NMPA has sent Google and Apple “formal notices,” demanding tougher action against problematic apps.

 

“[T]he responsibility of licensing music is not just limited to the app companies themselves. The app stores which empower these apps also have responsibilities to make sure that the apps that they make available to their customers are legal and not infringing,” Israelite said.

 

NMPA’s boss highlights that the association has never lost a lawsuit in its history. The association is confident that this new app crackdown will be successful and expects to see quick results.

 

According to Israelite, the app creators can either choose to license music or shut down permanently.

 

“If you are an app that is using music illegally, you can make the smart choice to resolve your transgressions and become a legitimate business partner, or you can shut down. There is no other choice,” he concludes.

 

This April, United King Film Distribution, DBS Satellite Services, and Hot Communication (all members of Israel-based anti-piracy group Zira) won three copyright lawsuits against three pirate streaming sites.

 

The operators of Israel-tv.com, Israel.tv and Sdarot.tv failed to appear, so the court held them liable for millions in statutory damages and signed off on an extremely broad injunction requiring every ISP in the country to block subscriber access to the sites.

 

While that element was later suspended, the injunction also prohibits any company (ISPs, webhosts, CDN providers, DNS providers, domain companies, advertising services, financial institutions, payment processors) from doing any business with the sites, now or in the future.

 

Early June, after seizing several ‘pirate’ domains, the plaintiffs’ informed the New York court that since Cloudflare had continued to service Israel.tv, it had failed to comply with the injunction and should be held in contempt of court. A timeline reported in our earlier article indicated that the plaintiffs’ allegations were likely incorrect, since they themselves had seized the domain around May 26.

 

According to a 24-page response just filed by Cloudflare, the company appears to agree, but its opposition goes much further. Broad injunctions that attempt to deal with future ‘pirate’ countermeasures (such as domain changes) may seem reasonable to the plaintiffs, but this case shows that rightsholders can issue powerful orders without any due process or judicial oversight.

Cloudflare: We Can’t Discontinue Service That Doesn’t Exist

Our timeline linked above indicates that the Israel.tv domain was likely seized by the plaintiffs on May 26, meaning that it was no longer linked to the infringing activity mentioned in the injunction. In its response, Cloudflare confirms that on that same date, Israel.tv stopped using its services, meaning that there was no action it could take, i.e it’s impossible to withdraw services that aren’t being used.

 

“Cloudflare cannot possibly be ‘in active concert or participation’ with Defendants [Israel.tv] with respect to copyright infringement or other prohibited acts on the Website, when no such acts are occurring. The Court should deny Plaintiffs’ Motion as moot on that basis alone,” Cloudflare writes.

New Domains Aren’t Covered By The Injunction

In addition to their complaints relating to Israel.tv, the media company plaintiffs go even further in their motion for contempt. They allege that five additional domains “associated with the infringing Website” were created and new accounts were opened with Cloudflare around May 22.

 

Since the injunction covers “any domain address known today…or to be used in the future by the Defendants”, they believe that Cloudflare should take action when notified of these “Add-On Domains”.

 

Cloudflare’s response states that none of the advised domains are plausibly covered by the injunction, and the unsupported bare claims of the media companies fail to convince otherwise.

 

“Plaintiffs fail to provide a shred of evidence, or even any argument, that any of the Add-On Domains are connected to Israel.tv, or that they are owned or operated by Defendants or their agents. Any reading of the Injunction that attempted to stretch it to cover the Add-On Domains would violate fundamental limitations on the scope of available injunctive relief..,” the company’s opposition reads.

 

Cloudflare says that under Federal Rule of Civil Procedure 65(d) and Section 512(j) of the DMCA, injunctive relief must be narrowly targeted to specific, identified defendants and their agents, and/or third parties in active concert or participation with such defendants.

 

“None of those conditions are satisfied here,” Cloudflare notes.

 

Describing the contempt motion as a “blatant attempt at a power grab” by media companies seeking to enforce an overbroad injunction, solely on their say-so, and without any due process or judicial oversight, Cloudflare says the motion “flies in the face of the law” and should be denied for violating basic legal principles.

 

For clarity, Cloudflare says it reviewed its records for the new ‘Add-On Domains” and found that none match the subscriber information associated with Israel.tv.

Big Tech Gets Involved After Cloudflare Was Singled Out

Cloudflare’s opposition questions why the plaintiffs singled out Cloudflare for a motion of contempt, especially on an “emergency” basis when it was obvious the company hadn’t been servicing the domain for some time (due to the plaintiffs’ domain seizure), so was in effect already complying with the injunction.

 

Those questions remain unanswered but new developments overnight indicate that, by obtaining such a broad injunction and then wrongly attempting to hold Cloudflare in contempt, plaintiffs United King Film Distribution, DBS Satellite Services, and Hot Communication have managed to stir up a Big Tech hornets’ nest in the United States.

 

In a letter to Judge Katherine Polk Failla at the US District Court for the Southern District of New York, Google LLC says that it was identified in the injunction as a “vendor providing services” to Israel.tv and also as an ISP in the form of Google Fiber Inc. The big news is that Google is in talks with the media companies’ counsel in advance of a potential motion to either modify or dissolve the injunction.

 

Google says that it does not want its services to be used to violate an injunction but, as they stand, the injunctions covering the three pirate sites are problematic in both scope and terms.

 

“Google is not in active concert or participation with the activities of the Defendants, and for that reason cannot properly be bound by an injunction in these cases,” the company informs the Court.

 

Google also holds the same position as Cloudflare, noting that under Federal Rule of Civil Procedure, injunctions need to “describe in reasonable detail…the act or acts restrained or required.” In this case the injunctions do not name the defendants (all were defaulting ‘Does’) so Google says it has no idea who it shouldn’t be doing business with.

 

The ‘Add-On Domains’ are also a problem, since the injunctions “appear to contemplate additional domains being added simply based on the unsupervised say-so of counsel for Plaintiff.” Finally, the injunctions only describe general categories of behavior rather than specific activities with respect to specific, identified copyrighted works, a requirement under copyright law.

 

“Google is discussing with Plaintiffs what voluntary action Google is willing to take to assist in effectuating this Court’s remedies against the Defendants, while taking into account Google’s concerns regarding both the proper scope of injunctive relief in this matter and the parties against whom such relief may be granted,” Google informs the court.

EFF and CCIA Request Permission to File Amicus Curiae Brief

Shortly after Google filed its letter, the Electronic Frontier Foundation (EFF) and Computer and Communications Industry Association (CCIA) requested permission to file an amicus curae brief. CCIA is a large tech advocacy group counting the likes of Amazon, Apple, eBay, Facebook, Mozilla, Nord Security, and Twitter among its members.

 

Both EFF and CCIA are troubled by the injunction, noting that the plaintiffs requested a sweeping injunction that purports to bind “hundreds, perhaps thousands” of non-party internet communications businesses.

 

“The injunction is impermissibly broad. It is contrary to both Federal Rule of Civil Procedure 65 and the Digital Millennium Copyright Act,” EFF and CCIA inform the Court.

 

“It will cause collateral harm to numerous Internet services and their users by imposing unnecessary costs and compliance burdens. Plaintiffs’ motion for contempt against Cloudflare is likewise improper. It illustrates the harm that Plaintiffs can cause, and appear ready to cause, through the injunction.”

 

Noting that an injunction cannot be a “blank check to fill in” with the details of any business that touches a defendant’s infringing materials, EFF and CCIA say that the plaintiffs have provided no “clear and convincing proof” that any non-party service provider, including Cloudflare, is “substantially intertwined” with the defendants and actively working with them to bypass the injunction.

 

The proposed amicus brief broadly aligns with the concerns raised by Cloudflare/Google and highlights how injunctions that aim to be proactive (by covering new domains, for example) can have a chilling effect due to a lack of specificity.

 

“Requiring service providers to actively detect and block websites that are not explicitly named in an order, on pain of contempt sanctions, would create a strong incentive for those service providers to preemptively block sites that show any appearance of being affiliated with an enjoined defendant, but in fact are not,” the brief adds.

 

EFF and CCIA conclude by asking the Court to deny the motion of contempt against Cloudflare and “treat with skepticism” any future attempts by the plaintiffs to enforce the injunction against nonparty service providers.

 

Cloudflare’s Opposition to Plaintiffs’ Motion for Contempt can be found here, Google’s letter here, and the EFF/CCIA proposed amicus brief here (all pdf)

 

In September 2019, the IPTV market was thrown into turmoil following a huge law enforcement operation in Europe.

 

Italy’s Guardia di Finanza (GdF), a law enforcement agency under the authority of the Minister of Economy and Finance, reported that the main targets were IPTV management system Xtream-Codes and its operators.

 

With an estimated 700,000 users of the system prevented from accessing the platform directly and 50 million end clients disrupted globally, the immediate fallout was unprecedented.

 

Despite some reports in the media to the contrary, Xtream-Codes was essentially just an IPTV management system that provided no content whatsoever, infringing or otherwise. Nevertheless, Italian authorities and anti-piracy groups branded Xtream-Codes an illegal pirate service and over the months and years that followed, revealed no evidence to the contrary, despite repeating the claims regularly.

 

In January 2021, operating company Xtream Codes Ltd broke its silence to protest new claims that it was behind Xtream-Codes replacement Xtream UI, but that did little to stop similar allegations in the months ahead. Xtream Codes Ltd now hopes to set the record straight with a new announcement.

‘No Evidence Xtream Codes Ltd Acted Unlawfully’

After staying quiet for nearly a year, Xtream Codes Ltd has revealed the existence of court processes in Italy. The company says that following an earlier appeal, on August 3, 2021, the Court of Appeals of Naples found there was no evidence to show that Xtream Codes Ltd acted illegally at any time between 2015 and its closure in 2019.

 

Supporting text, provided by the company, indicates that the court acknowledged the failure of Italian police to carry out a specific and detailed analysis of billing data seized from Xtream Codes to determine profits from alleged crimes. Instead, they simply added up the amounts on all invoices issued from 2015 to 2019 and came up with a profit figure based on all turnover.

 

“This is a modality that could be shared only if one were to hypothesize that the company was created by the present appellants for the exclusive purpose of carrying out the actions that are the subject of these proceedings, only then could the entire activity carried out over the years be considered illicit, to the point of identifying the profit with the total proceeds earned,” the Court said, according to Xtream Codes’s statement.

 

In summary, no evidence was produced to show that any revenue generated by Xtream Codes Ltd was illegal. An appeal by the prosecutor to Italy’s Supreme Court of Cassation was dismissed.

Xtream Codes Ltd Celebrates

The company says that since all revenue seized by the authorities was deemed lawful by the Court of Naples, it has now been released. The company also hopes that being branded a ‘pirate service’ by the authorities and anti-piracy groups will now be a thing of the past.

 

“The first step towards reaching the TRUTH has therefore been taken. A truth that we are obliged to share with you, since no newspaper, large or small, published this news even though in 2019, when our platform was shut down, tons of articles, including highly defamatory ones, were written against us,” the company says.

 

“Even the Guardia di Finanza itself, in a recent post at the end of May 2022, insisted on calling our company a ‘worldwide pirate platform,’ even though the Court of Appeal of Naples made it clear that there was not the slightest evidence within their investigative activities to suggest the unlawfulness of Xtream Codes Ltd.”

 

Having this court ruling in hand is clearly a big victory for Xtream Codes Ltd, not least since prosecutions turn on evidence and there appears to be none supporting the claims that the company operated illegally. This does not signal an abrupt end to all legal matters related to all parties affected by the huge raids in September 2019, but it’s a significant milestone nonetheless.

 

Over the past decade, mobile applications have become the standard platform for most people to consume content online.

 

Whether it’s for shopping, news, or entertainment, there is a mobile app available for any type of content.

 

This shift in consumption patterns is not limited to legal content; streaming piracy has gone mobile as well. Pirate streaming apps often have to be sideloaded onto devices but can be occasionally found in official app stores too.

 

App store operators Apple and Google clearly state that copyright-infringing apps are against their terms and conditions, but some still get through. In Brazil, the situation appears to be getting out of hand.

Pirate Apps Beat Streaming Giants

Local news site Tecmundo spotted that several of the most popular entertainment apps in the local Play Store give access to pirated streams. Apps such as “Cine Vision V5” and “MegaFlix” rank higher than Netflix, HBO and Disney.

 

This isn’t a recent trend either. Streaming piracy apps have been dominating the top charts for weeks on end, if not longer. And there are many alternative versions in circulation as well.

 

The apps in question, which include “MegaFlix”, stream pirated copies of movies and TV shows. These are then monetized through ads. This can be quite lucrative, as some of the apps have millions of downloads.

 

Over time some applications have been removed from the Play Store, but the ones at the top of the rankings today have been listed there for a while without running into trouble.

5M+ Downloads, 82K Reviews

Looking at the Play Store reviews, it’s immediately clear that these aren’t just a few fringe apps. Cine Vision V5, for example, has over 82,000 reviews at the time of writing and the vast majority are positive.

 

“Incredible! [Cine Vision V5] has content from Netflix, Amazon Prime Video, Disney+, HBO Max, Paramount+, Apple TV, among others. It’s as if I had subscribed to all these streams, only without paying anything,” one reviewer writes.

 

“Very good app. Episodes can be marked as watched and do not confuse later to continue. Few ads,” another adds.

 

These appear to be legitimate reviews and similar positive comments are regularly made on social media. Strangely enough, however, this hype is mostly limited to Brazil. In most other countries, the app doesn’t appear to have gathered much steam.

A Local Problem?

The positive comments are local too. When we first looked at the reviews, the ones we saw mostly complained that the app only listed trailers, not the full content. After changing to the Brazilian store, the rave reviews appeared.

 

This suggests that some of these apps function differently depending on what country they’re downloaded from. And indeed, this is also what our own experience confirms.

 

After failing to find a copy of “Cine Vision V5” in our local Play Store, we managed to install “MegaFlix”. To our surprise, the app only listed trailers. This is also confirmed by various negative reviews. In Portuguese, however, the feedback is mostly positive.

 

Apparently, the developers purposefully limit the audience of their full apps to a few locales. It’s possible they’d rather not attract attention in certain countries and that may also help apps pass the Google review process.

 

While this is an interesting approach, flying under the radar is hard when the apps consistently appear in the ‘most popular’ charts. Eventually, copyright holders will take notice.

 

Among the many movie companies that have attempted to turn piracy into profit, Voltage Pictures and parent Voltage Holdings stand out among the most persistent.

 

With ties to the shadowy piracy monitoring and settlement factory GuardaLey, Voltage is currently pursuing Virgin Media customers in the UK to retrieve cash while warning that something much worse could happen.

 

Voltage is also active in Canada, demanding cash settlements from the same type of people, backed up by similar evidence, and supported by similar creative legal theories that attempt to establish liability for internet billpayers due to their inability to accurately identify primary infringers.

 

An order handed down by Canada’s Federal Federal Court last week demonstrates that when evidence is not good enough, a logical assessment of the law can significantly undermine plans for an easy influx of cash settlements. Given the similarities between Canadian and UK law, the order and the reasoning behind it should prove interesting to Voltage letter recipients on both sides of the Atlantic.

Background

In 2017, piracy monitoring company Maverickeye set out to collect IP addresses of BitTorrent users sharing the Voltage-owned sci-fi movie ‘Revolt’. Canada has a so-called ‘notice-and-notice’ regime so Voltage identified the ISPs related to the IP addresses and sent initial warning notices, which were forwarded by ISPs to the relevant subscribers. Second notices were sent after Maverickeye found the same IP addresses sharing the same work a week or more later.

 

On March 16, 2018, a statement of claim was filed against 110 ‘Doe’ defendants, identified only by their IP addresses. On December 3, 2018, a so-called ‘Norwich’ discovery order was obtained which, like its UK counterpart, compelled ISPs to disclose the names and addresses of subscribers associated with the allegedly infringing activity.

 

Voltage subsequently labeled 30 of these internet subscribers “the worst of the worst” after they allegedly shared ‘Revolt’ over a period of weeks to months, possibly to thousands of people. This evidence was supported by an affidavit from Benjamin Perino, who in court documents is described as GuardaLey’s former CEO and creator of the piracy tracking software used by Maverickeye.

 

The fact that Perino currently runs affiliated Cyprus-based company Guardaley Technologies Ltd isn’t mentioned in the order and since no defenses were filed in the action, once again the mechanics and evidence produced by the Maverickeye software went uncontested.

Voltage Requests Default Judgment

Given that these ‘worst of the worst’ defendants failed to file a defense, Voltage sought default judgment against them. Canadian Internet Policy and Public Interest Clinic (CIPPIC) was allowed to intervene, arguing that Voltage should not be able to bring a default proceeding as it had not done enough to identify the people who had actually infringed.

 

Justice Angela Furlanetto ultimately agreed that all of the defendants are indeed in default. However, a consideration of the merits should take place before handing down any judgment. Given the uncontested evidence, the Judge found that portions of the ‘Revolt’ movie had indeed been shared online in breach of copyright but the thorny issue remained – were the defaulting defendants, identified as ISP account holders and billpayers, the actual infringers?

Direct Infringement and Discovery

CIPPIC argued that it cannot be presumed that an internet subscriber/billpayer and an internet user are the same person and as such, Voltage had failed to identify the persons behind the monitored IP addresses at the time the alleged infringements were carried out.

 

The Judge’s summing up of Voltage’s position notes that “there is no technological way to pierce through the veil of the internet to determine who was actually using the IP addresses at the time the Work was offered for download”, which effectively admits that via an IP address alone, Voltage can’t identify the actual infringer. Of course, Voltage wouldn’t be giving up that easily.

 

The company insisted that since it had provided evidence of repeat infringement (backed up by infringement notices) the burden should shift, thereby requiring the defendant internet billpayers to disprove their association with the infringement monitored via their IP address. The Judge disagreed, noting that in a Canadian default proceeding, all allegations are treated as denied. The plaintiff must show, on the balance of probabilities, that they have named the proper defendants – the infringers.

 

CIPPIC said that Voltage should’ve obtained more evidence before requesting default judgment but Voltage expressed concern over potential breaches of privacy. Obtaining all electronic devices (or forensic copies) belonging to all people associated with an IP address would be intrusive, as would requests to ISPs to provide detailed internet activity logs.

 

In a previous Voltage case, the Court said that privacy rights should be invaded “in the most minimal way” and in this matter Justice Furlanetto suggested that written discovery could be used to seek information on the nature of the system behind an IP address. This could include the type of control the IP address owner has over users and devices, the number of users behind an IP address, and what actions were taken by the billpayer in response to the first and second infringement notices.

 

“In my view, some attempt must be made to determine the internet user responsible for the alleged infringement before a presumption can arise that the internet subscriber is that user or a proper adverse inference can be drawn based on non-responsiveness,” the Judge’s order reads.

 

“A direct link must be addressed by the evidence between the internet subscriber and the alleged infringing use or sufficient steps taken for an adverse inference to be drawn against the internet subscriber. An assumption of infringement is not enough. Based on the steps taken and evidence filed, I cannot conclude that direct infringement by the default internet subscribers has occurred.”

Voltage’s Backup Plan – Billpayers ‘Authorized’ Infringement

Voltage settlement actions always seek to maximize pressure on the internet bill payer. In the UK, their settlement letters state: “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 time” the movie was shared.

 

Letters continue by noting that Voltage can bring court proceedings if it can show on the balance of probabilities that the bill payer was the direct infringer or that the bill payer “authorized or allowed” someone else to infringe Voltage’s rights using the broadband connection.

 

The concept of authorization in the UK turns on whether the defendant (in this case an internet billpayer) participated in a copyright infringement carried out by someone else in more than a minimal way, to the extent that they now bear some responsibility for the infringement itself. Authorization is interpreted broadly but in Twentieth Century Fox Film Corporation v Newzbin Limited, Justice Kitchin found that authorization does not extend to “mere enablement, assistance or even encouragement.”

 

Unlike in Canada, Voltage does not send any warning notices to UK billpayers, so arguing that they knew something about the infringement yet failed to stop it is much harder. However, the warning notice system in Canada doesn’t help Voltage either, because even when those notices have been sent to the billpayer, there is still a need for Voltage to establish a relationship between the billpayer and the infringer.

 

“To establish authorization in this context, in my view, consideration must be given to not only whether the Default Defendant had knowledge of the alleged infringing activity, but also the relationship and extent of control over the user and whether the internet subscriber had some ability to prevent the act of concern,” Justice Furlanetto writes.

 

GuardaLey’s Benjamin Perino views things very differently. He believes that home wifi routers must be passworded and billpayers should configure them with a blacklist to ban specified devices. A whitelist should also be in place to restrict access to specified devices alongside filtering to completely block BitTorrent traffic.

 

Of course, it’s entirely possible that the defaulting billpayers did take steps to prevent infringement but failed in some way. Maybe, faced with a complete lack of technical knowledge, they warned everyone in the house that if any pirating took place, there would be consequences? Maybe the infringer holds the ultimate power in the house, is a violent drunk, refuses to pay the bill, and can’t be reasoned with?

 

The truth is that Voltage doesn’t know and the Federal Court finds this problematic. If the movie company wants to take the authorization route it needs evidence to show that, perhaps obtained through some sort of discovery. In the meantime, Justice Furlanetto says there is insufficient evidence to ground a finding of infringement by authorization.

Conclusion

Given the above, three choices were available to the court – grant a default judgment, dismiss the action, or order the action to proceed to trial where the plaintiff can prove its case.

 

On the basis of the evidentiary deficiencies, Justice Furlanetto refused to issue a default judgment against the internet subscribers. She also declined to dismiss the action because if Voltage can come up with some proper evidence to identify the infringers (and/or show authorization), it may be able to progress its case.

 

With that in mind, Voltage was ordered to arrange a case management conference to set the next steps in advance of a trial. In the alternative, Voltage is free to address the evidence shortcomings highlighted by the Judge and return at a later date with a new motion for default judgment.

 

Justice Furlanetto’s order can be found here (pdf)

 

Over the past decades, the Software Alliance (BSA) has helped major software companies including Adobe, Autodesk, IBM, and Microsoft, to fight against under-licensed businesses.

 

This has resulted in raids and audits at companies worldwide, with computers carefully inspected to see if the businesses have paid their dues.

 

The BSA often relies on tips from insiders, who can earn serious cash if their information pays off. In addition, the Software Alliance also works closely with law enforcement authorities around the world to keep piracy in check.

 

During the pandemic, the work situation at many companies changed, as employees increasingly began working work from home. This, paired with travel restrictions, slowed down BSA’s anti-piracy efforts.

Raids Target ‘Pirate’ Businesses

This year the enforcement pace has stepped up again. The Software Alliance has been particularly active in Southeast Asia. In Malaysia, for example, the Ministry of Domestic Trade and Consumer Affairs conducted its ninth raid this month.

 

The businesses targeted in these raids include an interior design firm and a design and build company, but also companies in the manufacturing precision engineering and construction industries.

 

Together, these companies had more than $150,000 in unlicensed software installed on their systems. In addition, the enforcement officers also found that most of the computers used by interns had pirated software installed.

Animation Studio Employee Tips Off BSA

In Thailand, meanwhile, the BSA received a tip from an employee at an animation studio that does work for a global streaming platform. This tip was passed on to the Economic and Cyber Crime police, which raided the business.

 

While searching the premises in Bangkok, officers noticed that employees who worked from home used remote-control tools to access pirated and hacked software at the company.

 

On 15 of the 20 computers, they found unlicensed copies of Autodesk Maya, which is used for movie and animation special effects. The value of the pirated software added up to almost $200,000.

 

“To the detriment of cyber security and rule of law, we believe companies have found ways to access illegal software even during remote work,” says BSA Senior Director, Tarun Sawney, commenting on this trend.

‘Ghost Piracy’

Accessing pirated software through a remote connection is no worse than doing so at the office. However, BSA appears have a new name for this trend, which is labeled “Ghost Piracy” in a press release.

 

“The act of remotely accessing unlicensed software, described as ‘ghost piracy’, is said to be taking place among design, creative, animation and engineering professionals in Indonesia, Malaysia, the Philippines, and Vietnam, to name a few.”

 

Although Ghost Piracy in itself already sounds quite spooky, the BSA has an even darker scenario. Pirated software doesn’t only hurt the rightsholders but it also puts the public at large in danger.

Pirate Bridges and Cracked Roads

The Software Alliance theorizes that, if national governments allow companies to build crucial infrastructure such as roads and bridges using cracked software, only trouble lies ahead.

 

“No creator can come up with quality design using illegal software and when these designs are for the roads, bridges, rail lines and infrastructure then companies are also taking great risk,” Sawney says.

 

“There should be no tolerance for firms using any illegal software in national development. These are substantial businesses winning lucrative contracts. Shortcuts using cracked software should never be accepted nor allowed,” he adds.

 

In the summer of 2020, publishers Hachette, HarperCollins, John Wiley and Penguin Random House filed a copyright infringement lawsuit against Internet Archive (IA).

 

The publishers described IA’s ‘Open Library’ as an “unlicensed aggregator and pirate site” that makes illegally scanned books available to the public, causing serious damage to authors and publishing companies alike. In support of the publishers, the Copyright Alliance described the library as “vile“.

 

In response, the Internet Archive stressed that its ‘Controlled Digital Lending’ (CDL) system (which has aims including preservation, access and research) takes authors’ and publishers’ needs into consideration. By definition, any lending is controlled and the library simply provides a digital alternative to physical libraries. IA also defended its decision, during the early days of the coronavirus, to loosen controls to ensure citizens had access to books while libraries were closed.

 

Internet Archive later called for a peaceful solution, offering to partner with publishers to create a “digital system that works”. A month later IA filed its answer to the complaint supported by defenses under fair use and the DMCA’s safe harbor provisions, and later attempted to show that its library did publishers no harm.

Two Years of Litigation, Both Parties Request Summary Judgment

After the passing of more than two years and several dozen filings, the parties may be as far apart as ever. Both the publishers and Internet Archive seem convinced that their stance is supported by the law so the parties have requested a pre-motion conference on a motion for summary judgment, hoping to settle the matter without needing a full trial.

 

In a June 10 letter to Judge John G. Koeltl at the District Court for the Southern District of New York, the plaintiffs say that as leading publishers of tens of thousands of books, they already issue licensed ebook editions to libraries. In contrast, the Internet Archive scans millions of print books and makes a library of three million books available worldwide via the internet, without authorization from rightsholders.

 

The plaintiffs’ case covers just 127 named titles but they claim that overall, the Internet Archive offers more than 33,000 of their works for free download, a library that unfairly competes with their authorized ebook editions.

 

“Internet Archive merely imitates and competes with the authorized library ebook editions that Plaintiffs have offered for a decade and which are read by library patrons for free millions of times each year,” the publishers write.

 

As for IA’s “Controlled Digital Lending” concept, the plaintiffs insist that has no basis in law. They insist that copying their books without permission is illegal, despite IA’s claims that it only lends copies of books that it physically owns while maintaining a one-to-one “owned-to-loaned” ratio.

 

“The only issue is whether Internet Archive’s massive infringement scheme is fair use under 17 U.S.C. § 107,” the plaintiffs note, adding that the four fair use factors weigh heavily in their favor.

Publishers: IA’s Use is Not Fair

Addressing the purpose and character of the use, the plaintiffs say that reproduction and distribution of verbatim copies of millions of entire ebooks for the same purpose as the original is the “quintessential non-transformative use.”

 

The plaintiffs do acknowledge that Internet Archive is “nominally a non-profit” but state that IA is used to promote book sales for its related for-profit company Better World Books. They add that IA is not an educational institution but in any event, nonprofit status is not an excuse for book piracy.

 

In respect of the fourth factor – the effect of the copying use upon the potential market for or value of the copyrighted work – the plaintiffs say that IA failed to pay the fees libraries usually pay to distribute ebooks. IA’s books also act as a substitute in the market “capable of decreasing revenues from both consumers who would have otherwise purchased commercial ebooks and libraries that would have otherwise obtained authorized ebooks.”

 

“For these reasons, the fair use factors unequivocally favor Plaintiffs and their forthcoming motion for summary judgment should be granted,” the publishers conclude.

Internet Archive: Case Raises Two Distinct Questions

In their June 9 letter to Judge John G. Koeltl requesting a pre-motion conference on a motion for summary judgment, Internet Archive say the case raises two distinct questions. The first, which describes IA’s implementation of Controlled Digital Lending, comes with three conditions;

 

May a nonprofit library that owns a lawfully made and acquired print copy of a book loan a digital copy of that book to a library patron, if the library (1) loans the book to only one patron at a time for each non-circulating print copy it owns (thus maintaining a one-to-one “owned-to-loaned” ratio); (2) implements technical protections that prevent access to the book by anyone other than the current borrower; and (3) limits its digital lending to books published in the past five or more years?

 

The second question relates to a twelve-week period when the global pandemic forced the closure of substantially all physical libraries, to the extent that they could not physically loan any of the millions of print books they owned. This was the gap that Internet Archive aimed to bridge with a loosening of its otherwise strict CDL lending parameters to form its National Emergency Library (NEL) initiative.

 

[During this period] was a nonprofit library permitted to lend books digitally without imposing the one-to-one owned-to-loaned ratio, so long as the library (1) implemented the same technical protections and five year limitation it implements under CDL, and (2) reimposed the one-to-one owned-to-loaned ratio as soon as libraries were once again widely able to lend physical books?

 

“The answers to these questions will shape how libraries continue to serve the public interest in the digital age,” IA informs the Court. “Internet Archive intends to move for summary judgment that both the CDL and NEL are lawful fair uses.”

Internet Archive: Our Use Was Fair

On the first factor (purpose and character of the use), IA says that it is a 501(c)(3) nonprofit public charity that lends books for free. As to transformativeness, IA says its CDL utilizes technology to achieve the transformative purpose of improving content delivery, without encroaching on the the commercial entitlements of the rightsholder.

 

Only one patron can borrow each book at a time, and the one patron who borrowed a particular print copy from a library is entitled to read it, IA adds.

 

The second factor of fair use, where using material from factual works is more likely to be considered fair use when compared to fictional titles, is dismissed as less important by IA, with a note that the factor “has rarely played a significant role in the determination of a fair use dispute.”

 

On the third factor (the amount and substantiality of the portion used in relation to the copyrighted work as a whole), IA says that borrowing a book necessarily entails borrowing the whole thing. As a result, lending out a whole book is “reasonable in relation to the purpose of the copying.”

 

As to whether ebooks made available via CDL affect the potential market for the plaintiffs’ copyrighted works, IA says the benefits to the public are numerous with data showing that neither the publishers’ book sales nor their licensed library ebook lending saw any decrease in demand when their works were made available via CDL.

 

“For those reasons, CDL easily passes the ‘ultimate test of fair use,’ which asks ‘whether the copyright law’s goal of ‘promoting the Progress of Science and useful Arts,’ would be better served by allowing the use than by preventing it’,” IA adds.

 

If the Court finds that IA’s use of the publishers’ works was not fair, IA hopes that its status as a non-profit acting in good faith will be taken into consideration.

 

Judge John G. Koeltl responded by granting the parties’ requests to proceed with summary judgment motions. Opening summary judgment briefs are due early July, opposition briefs early September, and reply briefs early October.

 

The publishers’ and Internet Archive’s letters are available here (1,2, pdf)

 

Over the past two years, Danish law enforcement authorities have effectively dismantled the once-thriving local torrent tracker scene.

 

These enforcement actions were combined with various court orders that compel Internet providers to block pirate sites. In theory, these efforts should be the perfect environment for piracy to decrease. On the ground, the opposite is happening.

Piracy Rises in Denmark

Danish anti-piracy group Rights Alliance reports that illegal consumption of movie and TV content has reached the highest level in nine years. This number comes from an annual survey among more than a thousand respondents, carried out by Mediavision.

 

“As many as 580,000 Danes watch films and series illegally, which is an increase of 80,000 Danish pirates since the spring of 2021,” Rights Alliance notes.

 

According to the latest data, 13 percent of the Danish population between the ages of 15 and 74 regularly pirate film and TV content. Compared to previous years, people are increasingly downloading and streaming locally produced content.

YouTube and Facebook Pirates

Interestingly, when respondents were asked about the sites they use to access content illegally, YouTube and Facebook were mentioned most often.

 

Nearly half of all Danish pirates (48%) use YouTube to access content illegally with 42% using Facebook. These two “big tech” sites are far more popular than traditional pirate sources such as Popcorn Time and Solarmovie.

 

The survey further reveals that almost 30% of pirates use YouTube and Facebook exclusively. The remainder have scattered over more than a dozen alternative pirate sources, of which streaming sites FirstRow Sports and Mr. Swe are growing most rapidly.

Deeply Disturbing

Rights Alliance director Maria Fredenslund is concerned about this “deeply disturbing” trend that’s clearly going in the wrong direction.

 

“We are seeing an alarming increase in the volume of illegal consumption, which is mainly due to more and more people streaming content illegally via Facebook and YouTube,” Fredenslund says.

 

“Although these platforms now are required to provide effective tools to ensure that illegal content cannot be uploaded, Mediavision’s investigation shows that we have not yet seen the effect of this.”

 

Fredenslund hopes that both YouTube and Facebook, partly motivated by new legislation such as the EU Copyright Directive, will do more to prevent copyright-infringing content from appearing on their platforms.

Blockades & Workarounds

In Denmark, Rights Alliance has been the driving force behind many enforcement actions. The group helped to obtain several site-blocking orders and following negotiations, all major ISPs will adhere to these.

 

These blockades obviously don’t apply to YouTube and Facebook. And for traditional pirate sites, people can find workarounds.

 

Mediavision’s survey found that more than a third of all Danish pirates use VPNs (38%) or alternate DNS servers (36%) to get access to blocked sites.

Password Sharing

Aside from piracy, rightsholders also face another challenge. The number of people who share passwords to subscription services such as Netflix and Disney+ is growing as well.

 

Last year, 31% of all Danes shared passwords to streaming services with people outside of their household. In 2022, this percentage has grown to 37%, even though most people know that it’s against streaming platforms’ terms of service.

 

While password sharing is not counted as piracy, it likely results in a loss in revenue. Nearly half of all respondents indicated that they would sign up for a subscription if sharing was no longer possible.

 

“Sharing passwords may seem harmless to the individual user, but it is not allowed, and it affects the entire food chain when content is not paid for,” Fredenslund says, calling for more strict enforcement.

 

All in all these data reveal that unauthorized media consumption is hard to curb. While extra enforcement efforts may help, rightsholders may also want to look into affordable legal options, as opposed to requiring people to take out a handful of subscriptions.

 

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 two new entries on the list. “The Unbearable Weight of Massive Talent” is the most downloaded title.

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

Movie Rank	Rank last week	Movie name	IMDb Rating / Trailer
Most downloaded movies via torrent sites
1	(…)	The Unbearable Weight of Massive Talent	7.2 / trailer
2	(1)	Fantastic Beasts: The Secrets of Dumbledore	6.4 / trailer
3	(2)	Morbius	5.1 / trailer
4	(4)	The Northman	7.6 / trailer
5	(4)	Top Gun: Maverick	8.7 / trailer
6	(7)	The Batman	8.4 / trailer
7	(8)	Everything Everywhere All at Once	8.5 / trailer
8	(…)	Downton Abbey: A New Era	7.6 / trailer
9	(5)	Last Seen Alive	5.6 / trailer
10	(10)	Uncharted	6.6 / trailer

 

 

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

 

After suing the operators of pirate IPTV service SetTV in 2018, the very same year broadcaster DISH Network walked away with a significant victory.

 

Platform operators Nelson Johnson and Jason LaBossiere were ordered to pay DISH a cool $90 million in damages for violations of the Federal Communications Act. The court also issued a permanent injunction that prohibited the men from operating a similar IPTV service in the future, if that breached DISH’s rights. Things didn’t stay peaceful for long.

DISH Files New Lawsuit

In March 2022, DISH, Sling TV and NagraStar teamed up in a new lawsuit targeting former SetTV owners Jason LaBossiere, Sean Beaman, and Stefan Gollner. Filed in a Florida court, the complaint alleged that the three men were back in the IPTV business, this time under the brands ExpediteTV, Mundo TV, and Must TV.

 

In addition to a new claim for damages under the Federal Communications Act related to the rebroadcasting of DISH’s satellite broadcasts, DISH and Sling alleged willful violations of the DMCA’s anti-circumvention provisions relating to the latter’s internet-based broadcasts.

 

The plaintiffs also requested a permanent injunction and an order finding the defendants in contempt of court in the SetTV case.

Defendants Fight Back…For a While

In an April response to the new lawsuit, LaBossiere accused DISH of bullying, claiming that the company “will stop at nothing” to ensure that it keeps receiving settlements from alleged pirates. LaBossiere said his involvement with ExpediteTV was strictly limited and if any DISH content was rebroadcasted in breach of the company’s rights, that wasn’t down to him.

 

Separately, defendant Stefan Gollner filed a motion asking to be dismissed from the action for lack of personal jurisdiction, a move that was met with objections from the plaintiffs (pdf). Beaman also tried to have the complaint dismissed, arguing that he couldn’t mount a proper defense since the allegations against him were unclear (pdf).

 

On May 19, 2022, attorneys for the plaintiffs told the court that mediation had taken place on May 16-17. Despite reaching agreement on certain settlement terms, the parties had not been able to reach a consensus on everything (pdf), so negotiations would continue.

 

A little over a week later, DISH, Sling TV and NagraStar informed the court that a settlement had been reached and as part of those settlements, the parties would be filing agreed motions for entry of final relief. The court dismissed the case without prejudice and invited the parties to submit a stipulated form of final order or judgment.

Defendants Admit Nothing, Agree to Pay $130 million

In an unopposed motion for final judgment and permanent injunction dated June 10, the plaintiffs restate their claims that LaBossiere, Beaman, and Gollner infringed their rights via the ExpediteTV, Mundo TV, and Must TV-branded IPTV services, and that LaBossiere and Beaman (not Gollner) violated the terms of the settlement agreement and final judgment in the SetTV case.

 

Interestingly, however, the defendants admit nothing in response to DISH’s broad and highly detailed allegations. Instead, they are prepared for the court to hold them liable for statutory damages of $2,000 for each subscription sold, 65,000 in total, according to the plaintiffs.

 

As a result, the submitted final judgment splits $130 million in statutory damages three ways, with separate $43,333,333.33 judgments against LaBossiere, Beaman and Gollner.

 

In addition, a submitted permanent injunction enjoins the defendants and anyone acting in concert with them from receiving DISH and Sling’s television programming via satellite or internet without authorization and rebroadcasting via ExpediteTV, Mundo TV, Must TV, or any other service.

 

They are also restrained from selling any subscription or device intended to infringe the company’s rights and prohibited from circumventing any DRM technology that controls access to DISH or Sling services. The court is yet to sign off on the paperwork but given that the lawsuit is effectively over, that should be a mere formality in the coming days.

 

Why the men prefer to be on the hook for $43.3 million each at such an early stage isn’t clear. However, it seems safe to assume the amount will never be paid and that behind the scenes sits another agreement that acknowledges that in some way. What else it contains is open to speculation.

 

The submitted final judgment and permanent injunction can be found here (1,2, pdf)