At the end of 2020, US Congress passed new legislation that officially introduced a “small claims” process for copyright disputes.

 

The CASE Act, short for “Copyright Alternative in Small-Claims Enforcement,” established a copyright claims board within the United States Copyright Office.

 

This three-member tribunal provides an option to resolve copyright disputes outside the federal courts, which significantly reduces the associated costs. As such, it aims to make it easier for smaller creators, such as photographers, to address copyright infringements.

First Claims This Week

Over the past year-and-a-half, the groundwork was laid for this new process and this Thursday the Copyright Claims Board (CCB) will start accepting the first claims.

 

The CCB is open to anyone and an attorney is not required to file or defend a claim. The filing fee is set at $100 and the maximum amount of monetary damages that can be awarded in a claim is $15,000 per work and $30,000 in total. The cases are resolved online and there are no in-person hearings.

 

The entire process is voluntary. Defendants can choose to opt-out if they don’t wish to participate. If that’s the case, the claiming party can still take their dispute to the federal court. Defendants who fail to opt out must defend themselves or risk a default judgment being entered against them.

Piracy Cases?

When the plan was first introduced there was quite a lot of pushback. Several opponents feared that “copyright trolls” would abuse the system to launch a wave of claims against alleged online pirates.

 

How the CCB will be used will become clear in the months to come but it doesn’t appear to be a great venue for file-sharing cases. There is a limit on the number of cases a claiming party can file in a year, for example. These limits are 30 cases per year per party and 80 cases per law firm.

 

In addition, the board is not meant to issue third-party subpoenas, meaning that rightsholders can’t file a case against a John Doe who’s only known by an IP address. In theory, however, rightsholders could try to use a DMCA subpoena to obtain personal details and then go to the CCB.

 

One of the unique characteristics of the board is that people can start a claim if a copyright registration is still in process. This is different from the federal court, where a completed registration is required to start a case.

Many Unknowns

At this point, it’s unclear how many claims will be filed and what these will be about. There could be hundreds of filings per month or just a handful. The types of cases can also vary greatly.

 

In addition to traditional copyright infringement claims, the CCB can also be used by people who believe that they are being wrongly accused. For example, to request a declaration of non-infringement, or to accuse a rightsholder of sending false DMCA takedown notices.

 

TorrentFreak will keep a close eye on cases submitted to the CCB during the weeks to come. If there are any notable trends or concerns, we will highlight these in a follow-up report.

 

When Congress passed the Digital Millennium Copyright Act in 1998, section 1201 outlawed circumvention of technological protection measures controlling access to copyright works.

 

The base concept is relatively simple. When technological systems are deployed by copyright holders (or on their behalf) to protect access to their copyrighted works, in most cases these systems cannot be circumvented without violating the DMCA. Section 1201 also prohibits trafficking in technology or services that facilitate the circumvention of such systems.

Anti-Circumvention Goes Beyond Piracy

When enacting these provisions, Congress understood that technological protection measures would support new ways of distributing copyrighted materials. However, these provisions actually prohibit the very first step toward potential piracy, since copying content behind a protection measure is not required for a finding of illegal circumvention under the DMCA.

 

More importantly, these anti-circumvention provisions (exceptions aside) not only prohibit circumvention of measures when piracy is the goal but also when citizens want to repair electronic devices they own. Some devices even carry these protection systems for the purpose of restricting the ability to repair.

 

To address the obvious anti-consumer issues caused by the latter, the proposed ‘Freedom to Repair Act 2002‘ seeks to amend section 1201 of title 17 by allowing circumvention of technical protection systems when the goals are for diagnosis, maintenance and repair. If passed, the legislation would also permit the importation, manufacture and sale of technology to facilitate those three specific uses.

 

Of course, alarm bells are already being sounded by those who believe such changes will only herald a new wave of piracy, one that will prove even worse than the last, and the five or ten that preceded them, and those that predate the DMCA itself.

“Pro-Piracy Legislation”

“Rep. Mondaire Jones (D-N.Y.) is a fresh, diverse voice in Congress and I am excited he is running for a new seat in the city,” actor, writer and producer Reggie Lochard wrote in The Hill this week.

 

“But I’m also pretty disappointed he is sponsoring legislation that would undermine the legal and technological protections that make streaming films and entertainment possible. I would have thought Jones would have the back of artists and filmmakers like myself.”

 

Lochard says that the proposed Act would legalize a “vast new market” for digital piracy tools and as such the bill amounts to “pro-piracy legislation”. He also suggests that the proposed solution is being used to “smuggle in other agendas”.

 

Precisely who the agenda smugglers are isn’t made clear but it’s not really unusual to see a filmmaker raising the alarm over perceived threats to legal streaming. The Copyright Alliance framing the proposed legislation as the legalization of piracy tools isn’t much of a surprise either.

 

Despite the concern, it seems unlikely that these exceptions would deliver a nightmare piracy scenario, at least one that is more of a nightmare than the one currently underway, taking place under even tighter legislation. The reasons for this are numerous but mostly center around the control of legal streaming content and the ease at which that control can be taken away by much easier solutions.

Cited ‘Threat Devices’ Are Already Thriving

As things stand the Freedom to Repair proposal relates to digital electronic equipment, dependent in whole (or in part) on attached or embedded digital electronics. As Lochard rightly points out, this would include devices used extensively for digital entertainment such as smart TVs, tablets, streaming boxes, and game consoles.

 

In one way or another, all of these devices can already be programmed, reprogrammed, hacked or otherwise modified to receive or display infringing content. More than two decades of the DMCA’s anti-circumvention provisions have been unable to stop that, at least as far as personal or ‘household’ piracy is concerned.

 

A complex and diverse piracy ecosystem means that simple explanations can be restrictive but a key issue is obvious – pirates tend not to care too much about the law and if a circumvention device or piracy service is available, they will use it whether the DMCA outlaws it or not. It’s extremely hard to detect this type of infringement and even harder to reach into people’s homes to prevent it.

 

Of course, none of this addresses Lochard’s key concerns that streaming piracy would increase due to a “devasting new trade in online piracy tools.”

Diagnosis, Maintenance and Repair

The proposed law is clear in that it identifies diagnosis, maintenance and repair as the only circumstances in which it would be legal to bypass the technological protection measures in a device. Bypassing TPMs for any other reason would remain as illegal as it is now so repair exceptions would not improve the legal position of consumer pirates in any way. But again, this misses the key issues related to streaming piracy.

 

On the understanding that the proposed exemptions apply strictly to user-owned devices, they cannot possibly apply to systems that are owned by someone else – a streaming service, for example. Digital services (such as Amazon) that deliver protected streaming content would not be covered by any exemption since only the company and its agents have any right to conduct maintenance or repair.

 

As a result, importing, selling or distributing any device, tool or service capable of circumventing protection measures on Amazon, Netflix or Disney+ would remain illegal, including if those tools were somehow executed via a hacked or ‘repaired’ consumer device. If any device is modified for piracy purposes it is illegal today and will be illegal tomorrow, right to repair or not.

Right To Repair Would Not Increase Streaming Piracy

Lochard says that the current provisions prohibiting circumvention are vital, but his claim that they ensure that “no one can buy tools to rip a copy of my work from Amazon Prime Video and upload it to a piracy site” are hopeful at best.

 

Specialist content extraction tools already exist in closed piracy circles and will continue to exist as long as pirates are motivated to build them. If they can’t be deployed, pirates regularly use screen capturing tools and not a lot can be done about that either.

 

All said, if today’s position of pirated movies and TV shows appearing online within minutes is the point we’re starting from, the law is already failing to prevent piracy and a limited right to repair consumer devices seems unlikely to worsen that.

 

Even if in some future nightmare scenario anyone at all was able to buy tools to download from Amazon (surprise, they already can) not much would change since everything is already available for download on pirate sites and yet another copy is no more useful than the ones already there.

Right to Repair Would Benefit The Majority of Consumers

This is perhaps the most important point. The vast majority of content consumers don’t pirate, aren’t interested in pirating and if they were, the tools to do so already exist. Not only that, today’s piracy methods are ridiculously simple, far easier than opening up a smart TV and attempting to conduct nefarious ‘repairs’ with a YouTube video for instruction.

 

Nevertheless, it’s likely that big rightsholder and manufacturing groups will oppose the Freedon to Repair Act proposals, or at least push for drastic carve-outs that exclude the devices most in need of repair, that cost the most, and are likely to end up as a net loss to the environment.

 

Meanwhile, pirates of all kinds – suppliers, distributors and consumers – will continue as if nothing has happened. For many copyright law is a mere inconvenience, text on a page to be shrugged at, if read at all.

 

Adding repair exceptions to the DMCA won’t change the fact that pirates will still be breaking the law. However, refusing to add exceptions means that the old mistakes get repeated again – only paying consumers are inconvenienced by such restrictions, pirates are oblivious to them.

 

It’s worth repeating that paying customers represent the vast majority in most countries and it is their hard earned cash that allows streaming services to exist. Crafting a right-to-repair law that acts in everyone’s interests may be difficult but, with some work, shouldn’t be impossible.

 

There is no denying that the Alliance for Creativity and Entertainment (ACE) has been rather successful over the past few years.

 

The anti-piracy group, which represents prominent rightsholders such as Disney, Netflix, Warner Bros, and beIN, systematically hunts down key piracy players.

 

These enforcement actions have resulted in the demise of high-profile targets including Openload, RapidVideo, Pelisplushd.net, Afdah.video, and many others. This week we can add another name to the growing list.

 

ACE reports that, in collaboration with local rightsholder True Visions, it helped the Thai police to shut down We-Play.live. The site offered a wide variety of piracy content including films, TV shows and sports. It reportedly generated revenue through subscriptions and carried advertising for illegal gambling operations.

 

The Economic Crimes Suppression Division of the Royal Thai Police raided a condo in Bangkok where the 26-year-old operator of the site was arrested. He will be prosecuted based on copyright infringement-related charges.

 

ACE’s Chief of Global Content Protection Jan van Voorn is pleased with the outcome. He hopes that it will clearly signal to other site operators in the region that piracy isn’t tolerated.

 

“ACE commends the Thai Police for their continued collaboration and the effective takedown of this infamous streaming website,” van Voorn says. “The operator of the We-Play network of sites deserves his day in court.”

 

We-Play had been in operation for four years and had an estimated 2.8 million visits per month according to ACE, citing SimilarWeb data. However, according to True Visions and local news reports, the site ‘only’ had 20,000 monthly visitors.

 

Despite this confusion, all sources agree that the site caused roughly 50 million Thai Baht ($1.4m) in damages per month. This estimate is based on information provided by local police.

 

With 20,000 visitors, this would mean that every visitor causes $70 in damages to rightsholders. And even at 2.8 million monthly visits, every visit would take a $0.50 out of the rightsholders’ coffers, which is still pretty high.

 

On the heels of shutting down We-Play, Thai Police also shut down the pirate IPTV service pglivetv.com.

 

With support from ACE and True Visions, several servers were seized at the local hosting provider World Internetwork. The 37-year-old operator of the subscription-based IPTV service was arrested at a Bangkok residence, where a number of documents and devices were also seized.

 

In the fall of 2020, the U.S. Government indicted three members of the infamous group Team Xecuter, the masterminds behind various Nintendo hacks.

 

The authorities arrested Canadian Gary Bowser in the Dominican Republic and Frenchman Max Louarn was detained in Tanzania.

 

Bowser was later deported to the U.S. where he was sentenced to 40 months in prison earlier this year. His sentence was lower than the five-year prison term the U.S. Government had requested.

 

At the sentencing, Judge Lasnik said that it was important ‘to send a message’ but a reduction was indeed warranted; Bowser played the smallest role of the three defendants and faced medical and other issues.

 

At the same time, Judge Lasnik also made clear that Max Louarn, who was portrayed as the boss of Team Xecuter, shouldn’t expect the same treatment if he eventually appears before the court.

 

“If Mr. Louarn comes in front of me for sentencing, he may very well be doing double-digit years in prison for his role and his involvement,” Judge Lasnik said.

Max Louarn: Professional Hacker

There is no sign that Louarn will be brought to justice in the US anytime soon. The 50-year-old Frenchman is currently living in an apartment in Avignon with his girlfriend, a former Russian model, and recently sat down for an in-depth interview with Le Monde.

 

Louarn doesn’t hide the fact that he’s a hacker. His career started in the 80s soon after his parents bought him a Commodore 64, a reward for his excellent school performance. This was the start of a lifelong hacking passion, which perfectly aligned with his math skills.

 

At the age of 14, Louarn started to connect with like-minded people from all over the world, sharing messages on Bulletin Board Systems (BBS). Hacking in those days was mostly done for fun but as time went on, money started to play an increasingly important role.

 

“I wasn’t going to end up as an engineer earning 5,000 euros a month when I realized, at 18, that hacking was not just fun, but that there was a way to make a lot of money,” Louarn says.

 

While the Frenchman knew that companies were being damaged by his actions, that didn’t hold him back. The companies he hacked had plenty of money, he reasons.

 

“Stealing from companies that make billions, what do I care?”

PARADOX, Jail, Megaupload

In the piracy scene, Louarn soon became a legend. At the start of the 1990s “MAXiMiLiEN” became the driving force behind the warez-demogroup PARADOX (PDX), which supplied a constant stream of pirated games, cracks, keygens, and other software.

 

This wasn’t without risk. In 1993 he was arrested in a Nintendo piracy case, forcing him to flee to Spain where he enjoyed a lavish lifestyle in a Mallorcan villa.

 

The extravagant escapade didn’t last very long. In 1994, a friend invited Louarn to the United States to party. It turned out to be a trap. Instead of partying, he was welcomed by 15 armed agents for reselling thousands of stolen phone cards.

 

Facing a potential 40-year prison term, Louarn decided to plead guilty. This eventually resulted in a sentence of five years and eight months for the then 23-year-old, who was sent to the Federal Correctional Institution in Petersburg, Virginia.

 

Louarn was released in 1999 and returned to France but he hadn’t lost his passion for hacking nor his love for computers.

 

Along the way, he met a variety of people including Apple co-founder Steve Wozniak, who shared his fascination with hacking. Louarn also invested in Kim Dotcom’s file-storage platform Megaupload, which was later taken down by the feds.

 

In 2005, Louarn’s name showed up again in federal court records, with Sony accusing him of operating Divineo, a company through which he sold modified Playstation devices and modchips. Sony went on to win the case, securing a judgment of more than $5 million in statutory damages.

Nintendo Nemesis

Meanwhile, Nintendo was also taking an interest in Louarn’s ‘hacking’ activities. The Japanese gaming giant filed several lawsuits and pulled out all the stops to prevent people from jailbreaking consoles, with mixed results. That turned Louarn into Nintendo’s archnemesis.

 

“They hate me. I bet that in Tokyo, they posted my picture in an office,” he says. The Frenchman doesn’t see himself as a criminal, though, but as a rebel instead. One who helps the public take control of the devices they bought.

 

“We’ve always been pro-liberty, that’s our mindset: to do what we want with the machines and for everyone to have access to them,” Louarn tells Le Monde.

 

Nintendo clearly sees things differently and with the US Department of Justice on its side, in 2020 the company went after Louarn again. This time, he stands accused of being the leader of Team Xecuter.

 

This claim was backed up by a plea agreement signed a few months ago by fellow defendant Gary Bowser. Louarn denies involvement with the group and believes that Bowser said these things to get a reduced sentence.

 

“He pleaded guilty to things he didn’t do in order to escape a life sentence,” Louarn says. “That’s American justice! The press showed that Gary Browser was living poorly in a tin shack in the Dominican Republic, while Team Xecuter, they are all millionaires.”

Tanzania, Reunion, France

The Frenchman doesn’t plan on proving his innocence in a US court though. After being arrested at the Zuri Hotel Tanzania in late 2020, he was released from prison after a few weeks, with a Dar es Salaam court concluding that his arrest was “illegal”.

 

With help from a friend, who sent a private plane from South Africa to pick him up, Louarn initially traveled to Reunion Island and then back to France, before the FBI could apprehend him again.

 

Although Louarn is now living relatively freely in France, his foreign bank and cryptocurrency accounts remain frozen. Leaving the country isn’t really an option either, as he is still a wanted man in the United States.

 

There are legal issues in France as well. There’s a case pending about his refusal to hand over the unlocking codes of his electronic devices to the American officers when he was arrested. His lawyer hopes to have this case closed.

 

Louarn, meanwhile, will seize any opportunity to brand the FBI and the US justice system as biased. They’re “in the pay of large corporations, ready to destroy competitors by dressing up simple commercial disputes with criminal law,” he notes.

 

There’s no denying that “MAXiMiLiEN” has led a turbulent life, one that could be easily turned into a Hollywood script. He’s made internet history books on several occasions and remains rebellious to this day.

 

But times have changed this hacker too, as a quote tucked away in the Le Monde piece shows. Reflecting on the five years he spent in prison in the 1990s, he now realizes that another long sentence would have an entirely different impact today.

 

“Now [serving time in prison] would be hard because I take care of my father. I have a 16-year-old daughter, and soon a second child,” he says.

 

Late August 2022, game developer Bungie filed a lawsuit against the creators of software that enabled cheating in Destiny 2.

 

The complaint named Canadian business entities Elite Boss Tech and 11020781 Canada Inc., owner Robert James Duthie Nelson, plus a number of ‘Doe’ defendants said to be involved in the creation, sale, and distribution of the software.

 

Bungie’s claims were underpinned by alleged breaches of copyright law, including the DMCA’s anti-circumvention provisions. Additional allegations included racketeering, fraud, money laundering, and violations of the Computer Fraud and Abuse Act.

 

In a February 2022 status report, Bungie stressed that Destiny 2’s commercial viability depends on the integrity of its gameplay and the positive experiences of its players. The defendants threaten the gaming experience, Bungie added, noting that anti-cheating mitigation technology had cost it “exorbitant amounts of money.”

 

The defendants argued that during the development of the cheating software, no copies of Destiny 2 were made or distributed, and no derivative works were created. They also claimed that certain terms in Bungie’s Limited Software License Agreement (LSLA) are unenforceable and that any copyright infringement claims were baseless.

 

The parties were as far apart as ever and the lawsuit seemed to be heading towards trial. This week, however, news of consensus appeared in the form of a stipulated motion asking the court to enter a consent judgment to end Bungie’s legal action.

Two Companies and Owner Accept Liability

The agreement sees Robert James Duthie Nelson, Elite Boss Tech, Inc., and 11020781 Canada, accept that the cheating software “displays a graphical overlay” that integrates into and annotates Bungie’s copyrighted Destiny 2 work and injects code into Destiny 2’s copyrighted code, in both cases creating an unlicensed derivative work.

 

The defendants agree that their infringement was willful and admit that their cheat software circumvents technological measures employed by Bungie to control access to its software, thereby violating the DMCA’s anti-circumvention provisions (17 U.S.C. § 1201(a) and (b)).

 

The cheating software was reportedly downloaded 6,765 times, with each download constituting an independent provision of a circumvention device, also in violation of 17 U.S.C. § 1201(a) and (b).

Statutory Damages Award for Copyright Infringment

Multiplying the number of downloads (6,765) by the statutory damages available under § 1201 (not less than $200 or more than $2,500), the defendants agree that judgment should be entered in the amount of $13,530,000, representing statutory damages of $2,000 per violation. All other alleged claims in the complaint are withdrawn.

 

The consent judgment also comes with a proposed permanent injunction that prohibits the defendants (and any person or company acting in concert with them) from creating, distributing or otherwise making available, any software that infringes Bungie’s rights or those of its parents, subsidiaries, or affiliates. The defendants are also restrained from any reverse engineering activities or similar manipulation of any game connected to the plaintiff.

 

Any third parties connected to the defendants, including domain registrars and registries, are prohibited from supporting their activities if they include trafficking in circumvention devices or otherwise infringe Bungie’s intellectual property rights. The defendants are also prohibited from using any online resource to provide any content relating to their own or anyone else’s cheating software.

 

“This permanent injunction is binding against Defendants worldwide, without regard to the territorial scope of the specific intellectual property rights asserted in the Complaint and may be enforced in any court of competent jurisdiction wherever Defendants or their assets may be found,” the motion reads.

 

“Any violations of this order by Defendants will subject them to the full scope of this Court’s contempt authority, including punitive, coercive, and monetary sanctions.”

 

The consent judgment is yet to be signed off by the court but that is likely just a formality.

 

Supporting documents can be found here and here (pdf)

 

Supported by Hollywood and other content industries, Dutch anti-piracy group BREIN has shuttered hundreds of pirate sites and services in recent history.

 

BREIN has also targeted several prolific BitTorrent uploaders and other infringers with success. However, tracking down and going after individual file-sharers is quite resource-intensive and the anti-piracy group aims to cast its net wider.

Sending Warning Letters Pirates

To expand its reach, the group previously obtained permission from the Dutch Data Protection Authority to track and store the personal data of alleged BitTorrent pirates. This request was granted and at the end of 2020, BREIN announced the start of its mass warning campaign.

 

Unlike other copyright enforcement groups, BREIN is not interested in casual pirates. Instead, it focuses on the bigger fish and asks Internet providers to forward a warning to these subscribers.

 

This sounds like a balanced approach which would be relatively easy to pull off in many other countries where forwarding piracy notices is standard procedure. In the Netherlands, however, this isn’t straightforward at all.

Ziggo Refuses to Forward, Court Agrees

When BREIN sent its warnings to the country’s largest ISP Ziggo, the company refused to forward the warnings to its subscribers. According to Ziggo, linking IP addresses to specific subscribers raises serious privacy concerns, even if the personal information isn’t shared with BREIN.

 

In February of this year, the Utrecht Court sided with the Internet provider. While BREIN has a license to process the personal information of alleged infringers, Ziggo doesn’t. This means that linking an IP address to subscriber information would violate Dutch privacy law, which is based on the European GDPR.

 

This was a severe setback for the anti-piracy group. It effectively makes it impossible to alert subscribers that their connection is being used to share copyright infringing content, even if that personal information isn’t handed over. BREIN didn’t give up, however.

Court Doubles Down

The anti-piracy group submitted another case. This time, a Ziggo subscriber was accused of offering over 200 e-books to the public through an open directory. BREIN hoped that the ISP would forward a notice to the associated account holder or share their personal details.

 

This week, the Utrecht court ruled that the ISP is not required to cooperate with this request. Without a license from the Dutch Data Protection Authority, linking the IP-address to the subscriber information would violate privacy law. For the same reason, it can’t share the subscriber details directly with BREIN either.

 

Even if Ziggo was allowed to process the data, BREIN wouldn’t have won the case. The court concluded that there’s insufficient evidence to show that the subscriber willingly made the books available for others to download. It’s possible that they were simply put online for personal use, without proper protection.

 

“Contrary to what BREIN states, it is not certain that the IP address holder himself has infringed copyrights,” the court writes in a press release.

Appeals

BREIN director Tim Kuik is disappointed with the outcome and says that BREIN will appeal both verdicts. The anti-piracy group maintains that simply forwarding notices to subscribers is a reasonable and proportional measure.

 

“It must be possible to combat infringements. Forwarding warnings is the least intrusive way of enforcement. By refusing to do so, the Utrecht court is really on the wrong track,” Kuik notes.

 

“This decision is fundamentally incorrect, and the rejection to hand over of personal details is also incorrect and contrary to established case law. BREIN looks forward to the appeal with confidence.”

 

Late April, three copyright lawsuits filed by United King Film Distribution, DBS Satellite Services, and Hot Communication ended in victory for the plaintiffs, all members of Israel-based anti-piracy group Zira.

 

After failing to appear, default judgments were entered against pirate streaming sites Israel-tv.com, Israel.tv and Sdarot.tv, with each held liable for $7,650,000 in damages. United States District Judge Katherine Polk Failla also signed an extraordinary permanent injunction that in part required every ISP in the country to block subscriber access to the sites, including any new domains that might be deployed.

 

While that element was later suspended following a surprise request from the plaintiffs, third-party service providers including Google, Facebook, Mastercard, Visa, PayPal, Namecheap, Apple, Amazon and Cloudflare were ordered to stop doing business with the sites, hand over documentation and, where applicable, freeze the defendants’ assets.

Domain Seizures and Third Party Action

We can confirm that several domains previously owned by the sites have been seized, including some that have never been used in connection with the infringing sites and others that were only used as information resources. Many display a message referencing the blocking injunctions while driving traffic to Screen IL, the official streaming portal connected to the plaintiffs.

 

The extent to which all third-party service operators are complying with the injunction is unknown but in new filings at a New York court this week, the plaintiffs single out Cloudflare as especially problematic.

Cloudflare is “Facilitating The Pirating Activities” of Israel.tv

The plaintiffs say that in response to a subpoena dated February 1, 2022, Cloudflare provided information on March 28, 2022, revealing that a user related to the domain Israel.tv had opened an account on August 24, 2016. After the injunction was handed down, a copy was served on Cloudflare instructing it to stop providing services to the site.

 

Follow-up emails on May 11 and 19 advised Cloudflare of its alleged non-compliance with the order but according to the plaintiffs, no responses were received. Then the situation began to escalate. On or around May 22, the plaintiffs say that five additional domains “associated with the infringing Website” were created and new accounts were opened with Cloudflare.

 

“Thus, despite being served with the Order over a month ago, Cloudflare failed to comply therewith. Cloudflare is still providing services that enable Defendants’ infringing Website to operate, and permitted a user (or users) to establish at least five new accounts that configured the Website to use CloudFlare’s services through new domains,” the plaintiffs inform the court.

 

“Connecting internet users to Israel.tv in this manner benefits Defendants and quite fundamentally assists them in violating the injunction because, without it, users would not be able to connect to Defendants’ site unless they knew the specific IP address for the site.”

“Cloudflare Should Be Held in Contempt of Court”

Describing their motion against Cloudflare as an emergency, the plaintiffs accuse the CDN company of facilitating Israel.tv’s streaming of pirated movies, TV shows, and sports programming, by turning a blind eye to illegal conduct.

 

In summary they request an order holding Cloudflare in contempt of court for failing to comply with the injunction, an order compelling Cloudflare to comply, plus an award of attorneys’ fees and costs to cover the costs of the motion which, including declarations and other information, runs to dozens of pages.

 

Cloudflare is yet to appear in the matter to present its case but information and documents obtained by TorrentFreak show that the situation is less than straightforward.

Israel.tv, Cloudflare, and Domain Seizures

Early May, Cloudflare advised the account associated with Israel.tv that in response to a subpoena, it had provided the data requested by the plaintiffs. That correspondence came with a note indicating that Cloudflare would not be shutting down the site. Before that, however, another event may have muddied the waters.

 

On May 26, the domain registrar of Israel.tv advised that a Court order had been served on domain registry Verisign with instructions to move the domain to GoDaddy. Verisign complied with the order and shortly after a new website with the title ** Zira – This site is monitored by the FBI ** greeted visitors.

 

Given that the legal processes against Israel.tv and the other sites are being conducted under civil law, the appearance of the official FBI seal on the plaintiffs’ landing page was surprising. Announcing the existence of an FBI investigation seems a little odd and the injunction made no mention of including the FBI seal on Zira’s landing page either.

 

In any event, Israel.tv was transferred away from its former owner to GoDaddy on May 26 and later displayed the same ‘seized’ banner highlighted previously, i.e one without the FBI seal present. (Side note: Falsely representing FBI endorsement/authorization is a crime carrying up to a year in prison)

 

This presumably means that the Israel.tv domain at the center of the complaint has been under the plaintiffs’ control since May 26, exactly one month after the April 26 order was issued and several weeks before this week’s motion to hold Cloudflare in contempt of court.

 

Cloudflare’s position on the new domains that weren’t specifically mentioned in the injunction (but appear to be covered by it) is currently unknown.

 

Documents in support of the plaintiffs’ contempt motion can be found here (1,2,3,4,5)

 

The European Union Intellectual Property Office (EUIPO) regularly conducts studies to see how piracy rates evolve over time.

 

These studies also help the public and lawmakers identify the various barriers and drivers behind this activity. That can help to shape future policies.

 

This week, the EU Intellectual Property Office (EUIPO) published the latest version of its triannual Intellectual Property and Youth Scoreboard 2022. The research draws on a survey of 22,021 young people (aged 15 to 24) across all EU Member States conducted earlier this year.

 

The latest report is the third installment which makes it possible to track how the piracy habits of EU youth developed over time. One of the main conclusions identifies a gradual decline in the percentage of people that pirated at least once in the past year.

33% Pirates

The piracy rate in the EU dropped from 39% in 2016 to 33% this year. While many young people admit that they pirated something over the past twelve months, roughly a third of this group did so “by accident.” That leaves us with 21% who are intentionally pirating. Meanwhile, the majority of EU youth (60%) haven’t pirated a single thing.

 

There are some significant differences in piracy rates between countries. In Malta, for example, more than 50% of the youth admitted to accessing content illegally, while only 25% in Germany did so.

 

It is worth emphasizing that only a tiny fraction of the population exclusively consumes pirated content. Most use a mixture of legal and illegal sources. Again, there are massive differences between countries. In France, nearly 10% of the consumers pirate music exclusively but in the Netherlands the figure is just 1.5%.

Well Edudated Intentional Pirates

One particularly interesting finding is that piracy rates are significantly higher among well-educated youth. Of those who have a university degree, 28% have intentionally pirated something over the past year. That’s nearly twice as much as those who have no or some secondary education (15%).

 

EU youth with secondary to college education end up in the middle, with 21% admitting to intentionally pirating content. That’s the same percentage as the EU average across all youth.

 

While cost is often mentioned as a reason to use pirate sites and services, students with an income pirated more often (24%) than those who don’t have a job (18%). Perhaps the first group values their hard-earned money more, while the latter is sponsored by their parents.

Reasons to Pirate

Availability and affordability continue to be the prime reasons why many people use pirate sites and services. More than half (55%) mentioned cost as the primary factor, followed by a lack of availability, which 25% cited as the main reason.

 

Interestingly, too much ‘availability’ can become a problem as well. With content spread out over several subscription services, enjoying movies and TV shows legally has become quite costly. The EU report also picked up on this.

 

“[W]hile there were now more legal sources, this diversification meant that content was increasingly spread over multiple sources, forcing consumers to take out more subscriptions if they wanted to maintain access to a range of content,” the report reads.

 

Related to this, some people turned to piracy because a TV show they could previously watch legally was suddenly pulled from the platform. One respondent cited in the report described the following experience.

 

“I was watching a series on Netflix and then they took it down from Netflix. Because I still wanted to finish the series I continued to search the internet and ended up on an illegal site.”

Reasons to Stop

Copyright holders will mostly be interested in what would make people think twice about downloading or streaming content from pirate sites. In response to this question, most people (53%) mentioned the risk of running into viruses and malware as the main reason.

 

Other potential reasons include credit card theft (49%), the risk of getting caught and punished (36%), or the fact that creators and legal services could be hurt financially (26%).

 

The suggestion that the money made by pirate sites and services could go to organized crime wasn’t very popular. In fact, many people have a hard time believing that this is actually true.

 

“Participants had generally not previously considered that there might be a link between organized crime and illegal sources of content. Indeed, when this topic was raised in the communities, there was significant scepticism as to whether such a link existed.”

 

All in all, the EUIPO report provides some great insights. While piracy continues to decline among the youth, it remains a significant problem. And new trends such as the increase in subscription services, may actually breed a new generation of pirates.

 

The United States is actively exploring options to update copyright law to bring it into line with the current online environment.

 

Most recently, the Copyright Office is looking into the option of making certain standard technical measures (STMs) mandatory for online platforms. This could include upload filters to block pirated content from being reuploaded.

 

The current DMCA already provides an option to formally adopt STMs but that requires “broad consensus” among online services, which hasn’t been reached over the past two decades. Instead, many online platforms have developed their own in-house tools, such as YouTube’s Content ID system.

Copyright Office Inquiry

Through a series of public consultations, the Copyright Office is asking for input on the effectiveness, desirability, and feasibility of mandatory protection measures.

 

Most copyright holders are supportive of the idea. They feel that without proper incentives, some online services will fail to address the piracy problem. Opponents of the idea, meanwhile, point out that it may lead to all sorts of problems and may negatively affect free expression.

 

Much of the discussion thus far has focused on tools and technologies that detect and filter copyright-infringing content. However, this week we spotted another submission that promotes a different type of measure, which isn’t necessarily less controversial.

Mandatory VPN Detection?

In a letter to the Copyright Office, GeoComply CEO Anna Sainsbury suggests that VPN detection tools can play an important role as well.

 

“As the U.S. Copyright Office explores potential technologies and solutions to include as part of the Standard Technical Measures under section 512, we respectfully suggest the inclusion of accurate and effective VPN detection tools to ensure the full protection of copyrighted works.”

 

VPN detection tools are already widely used by major streaming services. They include Netflix, which was one of the pioneers on this front. The goal of these tools is to prevent ‘geo-piracy’, which is carried out by people pretending to be in a location that differs from where they actually are.

 

This type of protection is important for rightsholders to enforce geographical licenses. The fact that VPNs can also be used for legitimate purposes does not prevent platforms from banning them outright.

Bypassing Restrictions is Easy

According to GeoComply this type of geo-piracy is quite common and in many cases, rather effective.

 

“[W]ith hundreds of readily available VPNs on the market, the most common way for an individual to access geo-restricted content is to simply spoof their IP address using a VPN or DNS proxy,” Sainsbury writes.

 

“There are a number of ‘free’ subscription-based VPNs/proxies that enable users to change their IP address to appear to be located in a different country or territory,” GeoComply’s CEO adds.

 

Of course, GeoComply has the answer to this problem. The company says that its GeoGuard service can detect and block VPN and proxy traffic with 99.6% accuracy. The service has a database of problematic IP addresses but also uses Wifi access point data to check if locations are “spoofed.”

 

Although many online streaming platforms already use VPN blocking tools, GeoComply believes that it would be beneficial to classify them as mandatory protection technologies under the DMCA.

 

Due to the nature of the service, this would probably only apply to online platforms that have to enforce geographical licenses. This makes it a limited tool that won’t apply across the board.

Marketing Pitch

Needless to say, GeoComply is far from objective and the letter reads like a marketing pitch at times.

 

“By integrating GeoComply’s solutions into their processes and risk engines, broadcasters and OTTs are able to stop-geo-piracy and ensure rightsholders are receiving the full value for their content,” Sainsbury notes.

 

It is clear that ‘geo-piracy’ is a concern for copyright holders but whether enforcing VPN detection should be done through the law is another question. For now, GeoComply is the only stakeholder to bring up the issue; none of the rightsholders have mentioned it.

 

With illegal streaming of live sporting events still causing headaches for leagues and broadcasters alike, rightsholders continue to demand more flexible tools to prevent infringement, especially via pirate IPTV services.

 

ISP blocking is one of the preferred anti-piracy tools and in 2019, following a complaint from major media companies including Rogers, Bell and TVA, Canada’s Federal Court approved the country’s first blocking injunction targeting IPTV service GoldTV.

 

While local ISPs complied with the injunction, not all were completely happy to do so. TekSavvy complained that granting one blocking injunction would likely lead to requests for many more, costing ISPs time and money. The ISP also noted that blocking was unlikely to be effective and within days, that prediction proved correct.

 

TekSavvy’s official appeal was unsuccessful and a hearing was later rejected by the Supreme Court. However, another of the ISP’s predictions, that more injunctions would be demanded by rightsholders, was 100% correct.

Broadcasters Demand ‘Dynamic’ Injunction

After putting the first foot on the blocking ladder with their success in the GoldTV case, companies including Rogers Media, Rogers Communications, BCE, Bell Media, CTV Specialty Television, The Sports Network, Le Reseau Des Sports, and Groupe TVA, returned with a new injunction application at the Federal Court last summer.

 

It targeted John Doe 1 and John Doe 2, plus countless unknown additional entities offering NHL games via pirate IPTV streams in Canada. Several local ISPs including TekSavvy, Eastlink, Cogeco, Rogers, Shaw, and Videotron were named as third-party respondents.

 

The plaintiffs, all NHL live game rightsholders, told the Federal Court that their earlier efforts to prevent piracy had proven inadequate. Since pirate IPTV operators use every possible technique to go undetected and often operate abroad, cutting off illegal streams at the source isn’t possible. As a result, forcing local ISPs to implement blocking to prevent subscriber access would be the most realistic alternative.

 

Building on their experience of how a static order (targeting static domains and specific IP addresses) in the GoldTV case underperformed, the plaintiffs asked the Court for a dynamic order, i.e one that could be updated on the fly with new online locations as games are being broadcast, mimicking the system in place to protect Premier League football games in the UK.

Opposition to the Dynamic Injunction

While some ISPs were happy to consent to the injunction due to connections with the plaintiffs, objections were put forward by other ISPs and case intervener, Canadian Internet Policy and Public Interest Clinic (CIPPIC).

 

There was a general sense that the plaintiffs had acted unfairly, in that they had prepared their application over many months but then demanded an urgent hearing, putting the ISPs at a disadvantage. Some of the respondents felt that the plaintiffs had failed to prove their case and that any injunction handed down would impose undue risks, practical difficulties, and additional costs on ISPs.

 

CIPPIC voiced concerns (pdf) that the blocking regime as requested would be operated primarily by a private anti-piracy company with minimal court supervision, raising questions over freedom of expression and the potential for over-blocking.

Federal Court Grants Interlocutory Injunction

Late last month, Federal Court Judge Mr Justice Pentney handed down a mandatory interlocutory injunction that attempts to balance the rights of the plaintiffs with those of the ISPs and other internet users.

 

Running to 119 pages, the order recognizes that the plaintiffs would suffer “irreparable harm” without a blocking order but notes that measures need to be taken to ensure that burdens imposed on ISPs are minimized along with the potential for over-blocking of legitimate content.

 

First, the injunction is time-limited and at least in the first instance will time out after the final of the Stanley Cup, unless the Court orders otherwise. Second, the ISPs will be compensated for costs they incur complying with the order and third, the plaintiffs must retain an independent expert to ensure that blocking is carried out in line with the Court’s orders.

The Blocking Measures

Justice Pentney’s order does not reveal the methods used by the plaintiffs to identify piracy and determine that blocking is feasible to avoid “commercially sensitive information” being made public, especially to those who might use the information to facilitate illegal streams. However, it does reveal the anti-piracy company in charge of the operation.

 

The plaintiffs will be partnering with Friend MTS, the anti-piracy company that handles the Premier League’s blocking measures in the UK and Ireland. The company’s methods are tightly guarded but some information has leaked out over the years.

 

The ISPs will be provided with lists of IP addresses during each of the ‘NHL Live Game Windows’ detailed in the order. The times are redacted in the public copy but IP addresses received in these windows must be immediately blocked by Canadian ISPs, if they are able to do so.

 

The IP addresses must have been used previously during an ‘NHL Live Game Window’ to illegally broadcast an NHL live game but other sensitive safeguarding measures are not being made public. ISPs do not have to verify if the IP addresses are indeed carrying infringing content and can use manual or automatic IP address blocking/rerouting or equivalent technical means.

 

When an ‘NHL Live Game Window’ closes, an order will be sent to ISPs to unblock all of the blocked IP addresses as soon as “reasonably practical”. ISPs will not be in breach of the order if they need to suspend blocking to investigate cases of over-blocking or to maintain their systems.

Reporting Back to the Court

To maintain oversight, Justice Pentney instructs the plaintiffs, with input from the ISPs, to retain an independent expert (or up to three) to review the application of the Court’s criteria for the identification of IP addresses for blocking.

 

A report must be sent to the Court containing all IP addresses, the dates and times when they were required to be blocked, and the criteria applied that resulted in their blocking. The expert(s) are required to report on the implementation of blocking at the ISPs and to report on compliance with the Court’s order in respect of all parties.

 

The expert will also be required to assess and report on the effectiveness of the Order, including the criteria for measuring success, why these were selected, and the results of the assessment. CIPPIC notes that data acquired as a result of this process will be useful when the plaintiffs request an extension to the injunction.

 

“Specifically, if Rogers, Bell, and the other media companies who applied for this order wish to extend its application beyond the 2022 playoff season, the independent audit will need to establish that collateral blocking of legitimate content was minimal and that the blocking was effective in actually increasing legitimate subscriptions rather than simply driving customers to other forms of infringement or adoption of VPN services,” CIPPIC writes.

 

The Federal Court’s order can be found here (pdf)

 

For more than 15 years, alleged file-sharers around the world have been pressured to pay significant settlement fees.

 

These so-called ‘copyright-trolling’ efforts are pretty straightforward. Copyright holders obtain a list of ‘pirating’ IP-addresses and then request a subpoena from the court, compelling ISPs to hand over the associated customer data.

 

These schemes can be rather lucrative. With minimal effort, rightsholders can rake in hundreds or thousands of dollars per defendant. That is, if a court grants expedited discovery, allowing the companies to request the personal details of alleged infringers from ISPs.

 

In the United States it was relatively easy to pursue these cases but over time that began to change.

 

Most prominent was the 2018 Ninth Circuit Court of Appeals ruling in the Cobbler v. Gonzales case. Here, the court ruled that identifying the registered subscriber of an IP-address was not sufficient to argue that this person is also the infringer. Rightsholders needed “something more”.

Last ‘Troll’ Standing?

This has made it harder to pursue legal actions against file-sharers, but not impossible. While pretty much all prolific lawsuit filers have ceased their activities, Strike 3 Holdings is still going strong.

 

Strike 3 is in the adult video business. The company makes its content available through subscriptions via the Blacked, Tushy, and Vixen websites. When it discovers that pirates have shared these videos illegally via torrent sites, the company takes action.

 

To present “something more” than just an IP address the company is also using other sources to gather information on the defendants. This includes information shared on social media. In addition, the company has also requested data from Google and Netflix.

1,060 Lawsuits This Year

This week we looked at all cases filed by Strike 3 thus far this year, making a total of 1,060 lawsuits. This means that 2022 is on course to become one of the most active years for the company in federal court.

 

Strike 3 is currently responsible for the vast majority of copyright legal action in the US. There are some other smaller independent movie studios that file piracy-related lawsuits, but these are limited to a few dozen at most.

 

With this much workload, it’s no surprise that most cases are resolved relatively swiftly. Of all the lawsuits filed in the first three months of the year, 50% have already been closed. This happens when both parties reach an out-of-court settlement or if the complaint is dropped by Strike 3 for another reason.

Mixed Results

There are also instances when the defendants fail to respond at all. If that happens, Strike 3 often requests a default judgment from the court, which can have mixed outcomes.

 

In some cases, it can lead to massive damages awards. For example. last year a federal court in New York ordered a local resident to pay $108,750 in damages for sharing 145 pirated videos via BitTorrent. However, other courts have denied similar default judgment requests.

 

Finally, it is also possible for accused pirates to secure a win. This happened when Strike 3 filed a lawsuit against a “John Doe” who turned out to be a 70+-year-old retired police officer.

 

Instead of settling the matter, the former policeman lawyered up and submitted a counterclaim accusing Strike 3 of “extortion through sham litigation” and abuse of process. The defendant eventually secured a win and was awarded $47,777 in attorneys’ fees and costs.

 

Overall, it’s clear that Strike 3 is getting more out of its legal campaigns than it puts in. Since 2018, when the first case was filed, over 7,000 complaints have been submitted at federal courts. At the current rate, the company is on its way to filing over 2,200 lawsuits this year alone, which would be an all-time record.

 

Over a period of more than 10 years, companies run by businessman Steven King found ways to utilize copyrighted content owned by others to generate substantial profits.

 

According to the Premier League, Steven King, Paul Rolstona and Daniel Malone offered subscription packages to more than 1,000 pubs, clubs and homes throughout England and Wales, via their websites DreamBoxTV.co.uk and YourFootie.com.

 

The companies behind these sites traded under the names Dreambox (an unincorporated entity), Dreambox TV Limited, and Digital Switchover Limited.

 

During a decade of operations, the defendants reportedly generated more than £5 million in revenues, most recently from the reselling of illegal broadcast streams. Overall, more than 20 broadcasters had their content fraudulently obtained and then supplied by the trio but it was the Premier League that decided to bring the operation to an end.

Three Men Jailed For a Total of 17 Years

With assistance from anti-piracy company FACT, in 2019 a private prosecution brought by the Premier League resulted in a four-week trial at Warwick Crown Court that would end badly for the men.

 

As the scheme’s ‘mastermind’, King was sentenced to seven years and four months in prison. Accomplice Paul Rolston was imprisoned for six years and four months, while Daniel Malone received three years and three months behind bars.

 

They were among the most significant sentences for this type of offense ever handed down by a UK court but a big question remained.

£5 Million is a Significant Sum of Money

While it’s impossible to put a price on freedom, the question of where the £5 million in fraudulently-obtained funds had gone remained. At the time of sentencing we asked the Premier League whether there would be any attempt at recovery through the Proceeds of Crime Act 2002 and they confirmed that proceedings were already underway.

 

According to an announcement by the Premier League, on Monday and more than three years later, King is under pressure once again.

 

“At Warwick Crown Court today, he has been ordered to forfeit the proceeds of his criminal activities and pay back £963,000 within three months, or face having his prison sentence extended by an additional six years and eight months,” the Premier League says.

 

“The judge ruled King must also surrender his passport within 28 days and cannot travel abroad until the sum has been paid.”

Premier League Doesn’t Want The Money

Precisely when King began serving his initial prison sentence of seven years and four months is unclear but given the June 2022 instruction that he cannot travel abroad, assuming that he served substantially less than the 88-month sentence imposed in 2019 seems reasonable.

 

Whether King has almost a million pounds hidden away or would prefer to extend his sentence is unknown but at least in this case, the Premier League is not looking for a corporate windfall.

 

“This result clearly shows that supplying illegal streams is a criminal offense leading to prison sentences and significant financial consequences,” says Premier League General Counsel, Kevin Plumb.

 

“We are pleased the courts have recognized the seriousness of piracy-related crimes and the Premier League has requested all money recovered goes back to public bodies, including law enforcement agencies, to help them continue the fantastic work they do in helping bring people like this to justice.

 

“We will continue to work with law enforcement to tackle piracy of our content and to educate fans on the dangers of watching Premier League matches via unauthorized streams.”

 

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 06 are:

Movie Rank	Rank last week	Movie name	IMDb Rating / Trailer
Most downloaded movies via torrent sites
1	(9)	Fantastic Beasts: The Secrets of Dumbledore	6.4 / trailer
2	(1)	Morbius	5.1 / trailer
3	(4)	Top Gun: Maverick	8.7 / trailer
4	(2)	The Northman	7.6 / trailer
5	(…)	Last Seen Alive	5.6 / trailer
6	(…)	Father Stu	6.5 / trailer
7	(5)	The Batman	8.4 / trailer
8	(3)	Everything Everywhere All at Once	8.5 / trailer
9	(6)	Sonic the Hedgehog 2	6.7 / trailer
10	(7)	Uncharted	6.6 / trailer

 

 

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

 

Over the past few years, stream-ripping service Yout.com has fought legal battles on several continents.

 

The most prominent lawsuit was filed by the site’s operator, American developer Johnathan Nader, who took the RIAA to court in an attempt to have the site declared legal.

Criminal Prosecution

The RIAA case is still pending but, in the meantime, Yout has other battles to attend to. Late last year, Nader learned that the Public Prosecutor’s Office of São Paulo, Brazil, had filed a criminal complaint against him.

 

As a result of this criminal proceeding, Yout.com was preemptively blocked by Brazilian ISPs. Unsurprisingly, this made the site’s traffic in the country tank. Nader previously spoke out against this “guilty until proven innocent” approach, but the blockades remain in place today.

 

Perhaps more concerning is a looming criminal sentence. Nader obviously doesn’t believe that his site is illegal but if the Brazilian criminal court decides otherwise, criminal copyright infringement can result in a prison sentence of up to four years.

 

If Nader is indeed found guilty, he would have to be extradited from the United States to Brazil, which isn’t straightforward. That might be one of the reasons why the prosecution offered Yout’s operator another way out; by signing an agreement.

Prosection Offers a Deal

The deal was proffered a few months ago behind closed doors. In exchange for reaching an agreement on several predetermined terms, the public prosecutor was willing to suspend the criminal prosecution. However, this would come at a cost.

 

Under the terms, Yout’s operator would pay the authorities 1.9 million Brazilian real, roughly $400,000, to be allocated to a special fund earmarked for social programs.

 

The deal also required Yout.com to actively block Brazilian visitors and delete their accounts, while making sure that all local payments are blocked as well. In addition, the site would have to log access attempts from Brazil and share these data with the authorities twice a month.

 

This proposal was discussed during a hearing last week. After carefully deliberating the proposal with his legal team, Nader decided to decline the offer.

 

Yout’s operator prefers not to comment publicly on the matter at this time but with the deal off the table, the criminal prosecution will continue as initially planned and Nader will do everything in his power to prove that the site isn’t breaking the law.

 

In dozens of countries around the world, copyright holders have the ability to take legal action to compel ISPs to block the domains of pirate sites.

 

These domain blocking mechanisms were pioneered by mostly US companies seeking to enforce their rights overseas. They sought something broadly similar through the SOPA legislation in the United States but when that failed, no effort was made to test a blocking request in court under existing law.

 

As it recently turned out, the ability was there all along.

Groundbreaking Site Blocking Order

In 2021, companies including United King Film Distribution, DBS Satellite Services, and Hot Communication filed three copyright infringement lawsuits in a New York district court. Each complaint targeted a single pirate streaming site – Israel-tv.com, Israel.tv and Sdarot.tv – the latter being Israel’s most popular pirate streaming site.

 

As expected, none of the defendants mounted a defense meaning they lost by default judgments. The operators of the three sites were found liable for $7,650,000 in damages each but the awards were almost a footnote when compared to the terms of the injunction.

 

Proving the naysayers wrong, in one fell swoop the plaintiffs obtained not only three regular site-blocking injunctions but dynamic ones that could adapt to countermeasures. In some countries it has taken years to get these injunctions accepted but in these three cases, the plaintiffs just asked and the judge signed the order.

 

“All ISPs…and any other ISPs providing services in the United States shall block access to the Website at any domain address known today…or to be used in the future by the Defendants…by any technological means available on the ISPs’ systems,” the injunctions read.

 

Going further, all three injunctions prevent 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.

 

As piracy-fighting tools go, it doesn’t get better than this in the United States. That makes the most recent developments in the case even more puzzling.

We Might Not Need Site-Blocking After All

After Judge Failla gave the plaintiffs everything they asked for on April 26, 2022, a little under a month later they were back in court with a new request to put the brakes on the powers they had been given.

 

“Plaintiffs are engaging diligently in efforts to enforce the Orders against the non-party registrars and registries [covered by the injunctions] and the service providers [listed] in each of the Orders,” a letter to the Judge reads.

 

“Plaintiffs hope that because of such efforts, Defendants’ streaming of pirated content that infringes upon Plaintiffs’ copyrights will be limited. As such, it might not be necessary to enforce the Orders against the ISPs.”

 

With that, the plaintiffs asked the court not to enforce the blocking orders against every ISP in the United States (that they themselves had asked for), but to wait until further notice. Judge Failla had no issue with the request.

 

“The Court hereby STAYS enforcement of the obligations imposed upon the Internet Service Providers (ISPs) by the default judgment and permanent injunction Orders entered into in the above-captioned cases, pending further order of the Court,” her order reads.

Why Throw Away The Holy Grail?

While it’s entirely reasonable to take the plaintiffs’ statement on face value, that becomes more difficult when placed alongside some of the other issues related to the three cases.

 

Israel-tv.com had already been down for months when a site-blocking injunction was requested so if a domain seizure (including future domains) made sense at that time, so would ISP blocking, if only as a backup if fresh domain seizures could not be carried out after any resurrection.

 

Israel.tv, on the other hand, has continued operations despite the seizure of several domains, including several .to variants that are usually considered a more stable option for pirate sites. The site has other domains including isratv.ru and israeltv.cn and remains in operation even today. We’ll have more detail on these domains later but we suspect that seizing them won’t be straightforward.

 

When it comes to Sdarot.tv, the request not to enforce the orders against ISPs is most puzzling of all. Sdarot is the most popular pirate site in Israel with millions of visitors and has been the subject of legal action for at least six years. In 2016, the plaintiffs in the US case (members of anti-piracy group Zira) were granted an ISP blocking order against the site in Israel, so they’re clearly not averse to ISP blocking per se.

 

So why, having just been awarded an even broader blocking order in the US, are the plaintiffs now suggesting that ISP blocking might not be needed, even though Sdarot remains up and fighting?

 

“Sdarot’s cyber experts have been preparing for any scenario in advance, right from the start of the trial in the United States. The site will continue to be the No. 1 direct viewing site in Israel (and now probably also in the United States),” an announcement on the site reads.

 

History shows that when copyright holders are given powers, they tend to guard them because they often become even more useful in the future. At least in our experience, it is unusual for copyright holders to return to court asking for those powers to be limited, even if only temporarily. Especially given that in this case, attorneys’ fees and costs exceed $73,400 and may never be recovered.

 

There are no official entries on the docket but it’s at least feasible that US ISPs view the order as troublesome and may have even raised concerns in private. The same may also be true for CDN providers and other intermediaries.

 

The situation may become clearer in the weeks to come but at least as far as Sdarot and Israel.tv are concerned, domain seizures alone have proven disruptive, but certainly not fatal. Whether that will reignite the desire to compel ISP blocking remains to be seen but if that does go ahead, more requests are sure to follow.

 

The letter to the court and order on motion to stay can be found here (pdf)

 

With datacenters in Europe, Asia and the United States, Leaseweb is a big player in the hosting space.

 

The company has thousands of customers that come in all shapes and sizes. This includes some that are labeled as pirate sites or otherwise find themselves accused of copyright infringement.

 

This hasn’t gone unnoticed. Ten years ago it was revealed that Megaupload hosted hundreds of servers at Leaseweb and, at one point, Hollywood even considered taking the company to court. That plan never came to fruition but the complaints didn’t disappear either.

Photographer Sues Leaseweb

Leaseweb is regularly labeled by rightsholders as a hoster of alleged pirate sites and a few days ago, California-based photographer Barry Rosen took the company to court.

 

In a complaint filed at the U.S. District Court for the Central District of California, Rosen accuses the websites idposter.com, nposter.com and celebposter.com of hosting his copyrighted works. These are allegedly sold as posters and other merchandise to a global audience.

 

Leaseweb is added as the only named defendant because the company provides hosting services to the sites in question.

 

“Plaintiff is informed and believes that the owners/operators of the websites using the Domain names, idposter.com, nposter.com and celebposter.com, to which the Leaseweb Defendants provide web hosting services, have/are directly infringing Plaintiff’s Photographs..,” the complaint reads.

Fake Names & Fruitless DMCA Notices

The operators of the sites are unknown and listed as “Doe” defendants. While Leaseweb has information on these customers, Rosen notes that they provided “obviously fake names and addresses” to the hosting company.

 

There are 37 different registered images cited by Rosen but the photographer notes that he reserves the right to add as many as 100 additional works to the lawsuit. These additional images have since been removed but the others are still online.

 

At the time of writing, all of the photos we checked are indeed still hosted on the poster sites. According to the photographer, Leaseweb should have taken action after it received repeated DMCA notices but it allegedly failed to do so.

 

“The respective LeaseWeb Defendants hosted the images […] on their respective servers and despite receiving the Notices and the right and ability to readily identify and remove said infringements, failed to remove them such that they continued to be publicly displayed and distributed.”

 

It is not uncommon for hosting companies to simply forward DMCA notices to customers, instead of taking the allegedly infringing content offline directly. Whether that’s what happened here is not immediately clear.

Millions in Potential Damages

The photographer holds Leaseweb liable for secondary copyright infringement and demands the maximum statutory damages of $150,000 per work. In theory, this means that the total damages could exceed $5.5 million.

 

The complaint also requests damages from the Doe defendants for both direct and secondary copyright infringement. In addition, the court is requested to issue a preliminary injunction to seize all infringing works and the sites’ domain names.

 

Rosen is no stranger to protecting his work in court. The photographer previously sued eBay, without success. Another lawsuit against the auction site “Heroes and Legends” resulted in a $800 default judgment in his favor.

 

Leaseweb has yet to respond to the allegations but the company is no stranger to the US courts either. The company was previously sued by adult magazine publisher Perfect 10 for hosting pirate websites. Leaseweb denied the allegations and the case was eventually settled.

 

—

 

A copy of Barry Rosen’s complaint against Leaseweb, filed at the U.S. District Court for the Central District of California, is available here (pdf)

 

When torrent sites, streaming portals and IPTV services suddenly disappear or find themselves fighting a lawsuit, it’s common for users to be taken by surprise.

 

Social media platforms including Twitter, Facebook and Reddit are suddenly alive with questions seeking information on what happened to Site X or IPTV Service Y but, in many cases, potential answers have been available for some time.

 

If a service’s domain has been seized, blocked by ISPs, or an IPTV subscription has abruptly come to a halt in the face of a lawsuit, early signs of trouble can often be found in US DMCA subpoena applications granted months or even years before.

Streaming Sites For The Future ‘What Happened?’ List

In recent weeks the MPA and Alliance for Creativity and Entertainment obtained new DMCA subpoenas that require Cloudflare and domain name registry Tonic to hand over the personal information of people behind dozens of sites and services.

 

The applications allege that the platforms have infringed member studios’ rights in a number of movies including Morbius, Joker, Frozen, Mortal Kombat, and Godzilla vs Kong, plus TV series Supernatural and Dark.

 

The first application requests information on the following web-based streaming services (Estimated monthly visits per SimilarWeb data, 163+ million visits total)

 

123moviesfree.so (2.9m), 123movieshub.tc (7.4m), 123watchmovies.co (1.3m), 2embed.ru (5.2m), blogdepelis.io (3.3m), cine-calidad.com (7m), cliver.me (1m), cuevana.pro (37.6m), cuevana3.cc (22.6m), d123movies.to (10m), dytt89.com (2.1m), ffmovies.sc (3.1m), pelisplay.co (1.5m), putlockers.li (7.1m), repelis.red (0.2m), repelis24.co (9m), seriesflix.video (2.4m), hackstore.la (4.7m), suzihaza.com (7.9m), televisionlibre.net (9m), we-play.live (4.1m), ymovies.to (2.5m), bflix.watch (3.7m), 123moviesfree.love (5m), pelis24.se (3.3m)

 

Ymovies.to is also referenced in another DMCA subpoena. It requires domain registry Tonic to produce information on the domain owner due to alleged infringement of the movies Frozen II and Minions.

 

Cloudflare subpoena (1,2,3 pdf) Tonic subpoena (1,2, pdf)

IPTV Suppliers/Providers

IPTV providers, suppliers, facilitators and resellers remain key targets for ACE so regularly appear in DMCA subpoena applications. The latest pair list several domains and request the production of personal information related to them.

 

“The subpoena requires that you provide information concerning the individuals offering infringing material via the domains described above: magistv.net, 6iptv.com, xtremehdiptv.org,” the letter to Cloudflare reads.

 

“This would include the individuals’ names, physical addresses, IP addresses, telephone numbers, e-mail addresses, payment information, account updates and account history.”

 

DMCA subpoena applications for IPTV platforms are a little more detailed than those submitted against standard sites. As well as detailing the content allegedly infringed (Harry Potter and the Sorcerer’s Stone, for example), the main domain, and a portal URL (such as a Stalker directory or M3U file), backend URLs are also referenced.

 

In many cases, these URLs are simply IP addresses or domains followed by long alphanumeric strings but occasionally there’s a gem to be found.

 

In a DMCA subpoena targeting Cloudflare, listing vw-source.com and futbollibre.net as alleged infringers of the TV series Supernatural, the backend URLs appear to show Google being used as an HTTP proxy, to access streams made available via Warner Media’s official CDN.

 

Whether any of these sites and services will fall in the coming weeks and months remains to be seen but the existence of DMCA subpoenas shows that investigations are underway. Data held by Cloudflare often goes nowhere due to the company’s less-than-strict verification processes but there are many other ways to obtain intelligence too.

 

The IPTV subpoenas can be found here (1,2 pdf) and here (1,2,3 pdf)

 

For several years, U.S. lawmakers have considered options to update the DMCA so it can more effectively deal with today’s online copyright issues.

 

Many proposals have come and gone, without resulting in any significant legislative update. That could change in the near future.

 

Following repeated nudges from Senators Thom Tillis and Patrick Leahy, the U.S. Copyright Office started looking into automated tools that online services can deploy to ensure that pirated content can’t be easily reuploaded.

Mandatory Technical Protection Tools

This “takedown and staydown’ approach would rely on Standard Technical Measures (STMs), a range of tools that includes upload filters. This is a sensitive topic as became clear from the massive response to a public consultation published earlier this year.

 

A few weeks ago the Copyright Office launched a follow-up consultation. This time, it asked the public whether it’s wise to make certain anti-piracy tools mandatory under the DMCA. This is what’s currently being proposed in the SMART Copyright Act of 2022.

 

As expected, the consultation triggered a wide variety of responses. Several copyright holder groups are backing a proposal to make protection measures mandatory but most of the online services and platforms that would be required to filter content are fiercely opposed.

Reddit Warns Against Filters

As one of the most popular user-submitted content sites on the internet today, Reddit falls in the latter camp. The company says that mandatory filters would severely harm free expression and creativity.

 

“Filtering technologies and STMs ill-suited to the variety of content on Reddit would limit the vitality of some of our platform’s most active communities,” Reddit informs the Copyright Office.

 

Reddit hosts thousands of large and vibrant communities that are centered around a wide range of topics. Many of these use copyrighted content in a fair use context, ranging from memes, through news and commentary, to research.

 

Trying to automatically filter out potentially infringing content will simply create a mess, Reddit’s submission points out.

 

“Filtering technologies have difficulty merely identifying copyrighted material, let alone assessing the specific context the content was found. They cannot make nuanced judgments about fair use or transformative works.”

Overblocking and False Positives

Reddit fears that automated filters will lead to false positives and overblocking, which will directly harm free expression on the platform. These major drawbacks for the public at large trump any benefits rightsholders may see, Reddit warns.

 

“As a result, standardized measures are likely to remove non-infringing content and suffer from false positives. Worse, these over-removals would strike at the heart of the transformative user-generated content that makes Reddit communities unique.

 

“That is a severe, unnecessary, and unacceptable cost to the free expression of our users and the communities they build,” Reddit adds.

 

The social community platform is not alone in its criticism. Other organizations also point out that mandatory protection measures will likely do more harm than good. These include Amazon, the EFF, Google, Wikipedia, the BSA, US Telecom, and many others.

Content-ID Doesn’t Work (for everyone)

Some of the respondents agree that it may make sense for some services to use upload filters. Google, for example, stresses that it has developed a wide range of custom anti-piracy measures, including YouTube’s Content ID system.

 

However, these solutions may not work for other platforms so making a specific solution mandatory is not advised.

 

“Because there is such a broad and diverse set of OSPs of all different sizes and types, a one-size-fits-all approach will not work and would stifle further innovation in this space,” Google notes.

 

This point is also made by Reddit, which stresses that a Content ID style system won’t work on all platforms. In fact, it is far from flawless on YouTube’s own service.

 

“Despite being crafted internally for YouTube’s specific purposes, complaints abound about the unfairness of the program from user advocacy groups regarding the rate of false positives. Content ID has even been weaponized by bad actors to remove videos that provide newsworthy, non-infringing content of vital civic importance,” Reddit notes.

 

All in all, Reddit urges the Copyright Office to keep these and other concerns in mind while it considers the best path forward.

 

“When technology and the law leave room for creativity, they allow people to create wonderful things and build positive communities. When they restrict that creativity, it becomes that much harder for people to unite to build fun, enriching communities,” Reddit concludes.

 

—

 

Ps. On a personal note, TorrentFreak recently learned that all torrentfreak.com articles are automatically marked as spam by Reddit. Needless to say, this doesn’t help to facilitate free expression. Unfortunately, our requests for a comment on this ‘filtering’ have gone unanswered.

 

YouTube users upload millions of hours of videos a week. As with any user-generated content site, this also includes copyright-infringing content.

 

The file-hosting platform Uploaded faces similar issues. While it can be used to share legal files, some people use it to share pirated content.

 

This is a thorn in the side of several rightsholders, who argue that YouTube and Uploaded are liable for the infringing activities of their users. In Germany, this resulted in several lawsuits against the two platforms.

 

One of the cases was brought by music producer Frank Peterson, who sued YouTube and Google for making his music available without permission. In other lawsuits, copyright holders filed complaints against Uploaded’s parent company Cyando, accusing it of distributing pirated books.

EU Court Weighed In

German courts were undecided as to whether YouTube and Uploaded could be held liable for pirating users. The Federal Court of Justice, therefore, requested guidance from the Court of Justice of the European Union (CJEU).

 

In particular, the court wanted to know if, and under what conditions, online services make a ‘communication to the public’ when it comes to pirated files and videos.

 

Last summer the top EU court ruled that, in principle, online services are not directly liable for pirating users. When users share files, the online platforms themselves don’t automatically ‘communicate’ the infringing content to the public.

 

The ruling was good news for YouTube and Uploaded, but there are some strings attached. There are circumstances when the platforms can be held liable, including when they fail to “expeditiously” remove infringing content following a rightsholder complaint.

 

In addition, the EU court ruled that the platforms can lose their liability exception if they actively take part in the infringing activities or if they fail to take action despite being aware of them.

Platforms Can be Liable

Today, the German Federal Court of Justice issued a new order taking the EU guidance into account. The court clarified that online platforms can indeed be held liable if they fail to take appropriate action.

 

Last year, Germany also implemented the new EU Copyright Directive which requires online services to ensure that infringing content is taken down and not re-uploaded. If platforms fail to do so, they can be held accountable for damages.

 

The Federal Court’s decision opens the door to a potential liability ruling. Whether damages are indeed warranted depends on the situation, which will require review by the lower courts.

 

In essence, the courts will now have to decide whether the measures YouTube and Uploaded have taken in response to the reported copyright infringements are sufficient. As such, it will be among the first cases where the “upload filter” requirements of the Copyright Directive will be put to the test.

 

No longer the sole preserve of Japanese consumers, manga publications (comics/graphic novels) now have global reach and massive commercial potential, but that hasn’t always been the case.

 

Granting broad access to manga titles, especially publications translated into English, was not a key priority for publishers until a few years ago. In the meantime, unofficial ‘scanlation’ groups stepped in to meet demand with their scanned and translated copies, leaving official suppliers to play catch-up and pirate sites to reap the benefits.

 

As a result, companies including Tokyo-based publisher Shueisha and US-based publisher VIZ Media now have a big piracy problem. Manga piracy sites are now some of the largest pirate sites, period, in part because they were allowed to gain traction but also due to them being free and easy to access. But if the publishers have their way, that won’t always be the case.

Publishers Target Manga Piracy Giants

This week, Shueisha Inc. and VIZ Media, LLC, opened a case at a California district court in preparation for legal action elsewhere. The ex parte application obtained by TorrentFreak seeks an order under 28 U.S.C. § 1782, a statute that empowers courts to order third-parties to provide documents and statements for use in foreign legal processes.

 

The application reveals that the publishers are preparing lawsuits against two pirate manga sites, one very large and another unquestionably massive.

 

With around 24 million visits per month according to SimilarWeb estimates, Manganelo.com is a significant player in the manga piracy market. Just over 21% of its traffic comes from the United States with the Philippines, United Kingdom, Canada and Malaysia accounting for 5% each, give or take.

 

Manganato.com, on the other hand, is absolutely enormous when compared to most pirate sites online today. During March and April 2022 it received 180 million and 167 million visits respectively, more than The Pirate Bay and Fmovies combined.

 

Almost a third (32.4%) of visits emanate from the United States, roughly 6% each from the Philippines and Indonesia, with Canada (3.9%) and France (3.6%) following behind.

Publishers Are Preparing Overseas Legal Action

In an application that spans several hundred pages of information, Shueisha and VIZ say they recently discovered that the owners and operators of the two sites had been uploading “an extensive amount” of their copyrighted comic books to their platforms.

 

“Such illegal copies mostly contain the entire pages of the book or volume and some of the illegal copies were uploaded on the Infringing Websites soon after publication,” the application reads.

 

The publishers have several attorneys on the case, including one from Japan and another from Vietnam. They have confirmed that the applicants’ works being present on the sites constitutes copyright infringement under the laws of those countries, so they intend to take legal action in one country or the other.

Identifying the Alleged Infringers Using Cloudflare

Before filing these lawsuits the publishers want to identify the alleged infringers. They attempted this earlier by filing DMCA subpoenas against US CDN company Cloudflare but they say these failed to provide sufficient information, partly due to a lack of customer verification at Cloudflare. They did provide leads, however.

 

Cloudflare’s responses included IP address information linking the site operator(s) to telecoms companies Vietnam Posts and Telecommunications Group and Vietname Telecom National. However, in Vietnam it is not possible for third-party companies (such as the publishers) to obtain information on internet users based on copyright infringement allegations.

 

To counter this dead end, the publishers now have something bigger in mind

Applicants Seek Information From Tech & Payment Companies

Naming PayPal, Visa, Google, Braintree and Stripe as witnesses, Shueisha and VIZ seek an order compelling them to provide information, held in the United States, for use in foreign or international proceedings, including criminal investigations.

 

The discovery requested by the publishers is described as “narrowly tailored and limited” to only reveal materials related to the accounts held at the companies relating to the infringer(s) and infringing works, to ascertain identities and nothing more.

 

“To sufficiently identify the Infringer, it is crucial to obtain the information highly likely to be true, which is name, address, email addresses, and/or telephone numbers for verification purposes and the payment methods registered with the Infringers’ Witnesses’ accounts,” the application reads.

 

“The Infringers are highly likely to use and provide the true information for such purposes as required to use the Witnesses’ services.”

 

Whether the publishers intend to file civil lawsuits or initiate criminal investigations is unclear at this stage but one approach does not necessarily exclude the other. In Japan, for example, harsh penalties are available against infringers in criminal cases, setting the scene perfectly for successful follow-up civil action.

 

The publishers’ application for an order permitting discovery can be found here (pdf)

 

A year after Megaupload was shut down, Kim Dotcom launched a brand new file-hosting service called Mega.

 

In the years that followed the New Zealand-based entrepreneur cut his ties with the company but Mega continued to expand.

 

The platform, which has a strong privacy focus, is now the go-to file storage platform for millions of people. Most of these users store perfectly legitimate files on Mega but like many other services of its kind, it’s being abused by pirates as well.

1,187,646 Takedown Requests.

Twice a year Mega publishes a transparency report that reveals the volume of copyright complaints. The latest release shows that in the first quarter of 2022, copyright holders sent 1,187,646 takedown requests.

 

This is a significant increase compared to previous periods. For example, in the first quarter of 2020 Mega received ‘just’ 264,483 takedown notices.

 

The higher volume can in part be explained by the fact that the number of files stored on the platform increased from 72 billion to 117 billion in two years. However, the percentage of targeted links also more than doubled, although that’s still relatively tiny at just 0.001% of all files on the service.

 

“The number of unique takedown requests submitted represents a very small percentage of the total number of files stored on Mega,” the company clarifies.

 

Mega allows its users to submit counternotices if they believe their content was removed in error. During the first quarter of the year, only two of these requests came in. This is slightly below the average of the past years.

Repeat Infringers

Mega has a repeat infringer policy when it comes to copyright infringement claims. If a user’s content is targeted with three copyright takedown strikes within six months, their account will be terminated.

 

In recent years Mega has terminated around two to three thousand users per quarter, which is around 0.001% of the total number of users. Since the company’s launch in 2013, nearly 150,000 users have lost their accounts.

 

This ironically included its founder Kim Dotcom, whose account was later restored.

 

“Mega has zero tolerance for illegal activity. While fiercely guarding the privacy of legitimate users, Mega will not be a haven for illegal activity,” the company writes, commenting on its latest transparency report.

 

“The complete March 2022 Transparency Report clearly demonstrates Mega’s market-leading processes for dealing with users who upload and share copyright infringing material or breach any other legal requirements.”

Objectionable Activity

While copyright infringers are a problem for Mega, most users have their accounts terminated for sharing objectionable content. The vast majority of these people share Child Sexual Abuse Materials (CSAM).

 

Over the past quarters, the number of account terminations related to CSAM content is far greater than those for copyright suspensions. These users were all reported to the appropriate authorities.

 

Since Mega’s launch in 2013, hundreds of thousands of people have been booted from the platform after sharing objectionable content.

 

“During the 9 years to 31st March 2022, Mega has closed 744,000 accounts for sharing objectionable content. Details of every illegal link and of every related account that was closed were provided to the New Zealand Government and relevant international authorities for investigation and prosecution.”

 

Mega doesn’t proactively share any details of alleged copyright infringers with the authorities or rightsholders. However, with a valid court order, the company can be compelled to share user data, which includes IP-addresses, chats, and other personal information.

 

“If we think it is necessary or we are obliged by law in any jurisdiction, then we are entitled to give Your Files, Your Chats, any Account Data and any Usage Data to competent authorities, even if those items are encrypted,” Mega notes.

 

The Digital Economy Act 2017 was the government’s attempt at creating a better, safer internet for citizens in the UK.

 

It included an amendment to the Copyright, Designs and Patent Act that raised the maximum sentence for online infringement to 10 years in prison, with a basic threshold of simply exposing a copyright owner “to a risk of loss“.

 

This meant that anyone downloading and sharing a single song or a single movie using BitTorrent became criminals in the eyes of the law. For a country that routinely closes home burglary investigations within hours, criminalizing a few more million people was never going to end well.

Government Ignored Warnings

The UK’s Open Rights Group had tried to reason with the government, noting that none of the UK creative industries had advocated for pursuing individual file-sharers as criminals but by allowing that, the government would expose citizens to a specific risk.

 

[A]busive copyright owners will be able to substantiate that file sharing is a criminal matter, punishable by way of a custodial sentence. This would in particular fuel the activities of “copyright trolls”.

 

The term “copyright troll” is often applied to companies that monitor file-sharing networks, collect IP addresses they claim are sharing movies, and compel ISPs to hand over the identities related to those IP addresses. They then send letters claiming that legal action in the civil courts will follow, should the recipient (including innocent billpayers) refuse to pay a considerable financial sum.

 

Similar operations have existed in the UK for over 15 years but more recently have abandoned pornography in favor of regular movies. In September 2021, we reported that US movie company Voltage Holdings had begun sending demands to Virgin Media customers, claiming they had infringed their rights in the movie ‘Ava’ via BitTorrent networks.

 

While these letters are unpleasant to receive, under copyright law they are entirely legal and if the person named in the letter did indeed infringe the movie company’s rights, settling a case might be the sensible course of action. That being said, over time this particular project has taken several unusual turns that bring to mind the warnings of the Open Rights Group and the consequences of criminalizing petty file-sharers.

FACT Administration LLP

As detailed in our previous reporting, Voltage Holdings is a member of FACT Administration LLP, a UK corporate structure behind the latest settlement scheme.

 

A division of the Federation Against Copyright Theft (FACT Worldwide) and FACT chief Kieron Sharp are officers in the LLP and are now playing a leading role. FACT, under various corporate structures, has built a reputation for pursuing large-scale infringers since the 1980s.

 

They are also the creators of the classic yet mercilessly parodied ‘Piracy, It’s a Crime’ anti-piracy ad but their recent expansion into the cash settlement market is considerably less amusing.

Virgin Customers Refuse to Settle, Pressure Increases

When Voltage first went to the High Court requesting the identities of Virgin Media users, they were represented by Lewis Silkin LLP. Subsequent ‘pay up’ letters were also handled by the law firm which, for the protection of the public, is regulated by the Solicitors Regulatory Authority. Documents shared with TorrentFreak indicate that Lewis Silkin has now been removed.

 

As part of communication with people who have thus far refused to pay a settlement, Virgin Media bill payers are being advised to communicate with Voltage Holdings directly, via FACT Administration LLP at their shared virtual office address in London. The letter reiterates that the matter relates to infringement of copyright under civil law.

 

Since the file-sharing is unlawful, Voltage Holdings LLC is entitled to bring court proceedings against you if it can show on the balance of probabilities that you are the person who engaged in the file-sharing or if you authorised or allowed someone else to do so using your broadband connection. This claim would be brought in a specialist civil court called the Intellectual Property Enterprise court, where liability is determined on the balance of probabilities

 

At this stage, only the removal of the law firm and related protections raises more concerns than those usually present in such cases. However, the letter also includes a link to a website that really steps up the pressure. It is run by FACT Administration LLP and its services are provided by FACT Worldwide Ltd, according to its ‘Modern Slavery‘ statement.

Piracy is a Crime

To be absolutely clear, the website linked in the letter seems to accurately state the law and the legal position of those encouraged to view it. However, it paints an extremely intimidating picture for ordinary members of the public dealing with scary letters that they are unlikely to fully understand, without help from an expensive lawyer.

 

Right off the bat, people accused of piracy via BitTorrent (i.e the downloading/sharing of the movie ‘Ava’) are advised that “distributing intellectual property via bit torrent without the rights holders express permission is a criminal offence, it is now easily traceable back to the households that are involved in this style of theft.”

 

The first key point is that the above statement is true, as per the Digital Economy Act. The second is that the statement is obviously directed at family homes, not commercial infringers. The government criminalized the sharing of one movie, therefore someone in your home is a criminal, it effectively reads.

 

The third point is that many people can live in a household and the named bill payer is not necessarily the infringer. If, however, the bill payer can convince Voltage/FACT they did nothing wrong, they claim the matter will be dropped – good luck with that.

 

But what if someone wants to admit civil liability and settle? Good luck with that too.

Admitting Civil Liability: How About That Crime Again?

Given that the main purpose of settlement letters is to get people to pay up, the next section on the Fact-Admin.org settlement portal covers a scenario where the recipient wants to accept civil liability. To a regular Virgin Media customer and letter recipient, it is likely to prove bewildering.

 

“Admission of liability does not mean that you are not guilty of committing a crime. Digital piracy is illegal, and both joint civil and criminal proceedings are being taken against individuals in the United Kingdom,” it reads.

 

The clear message here is that people who are prepared to settle a civil claim can still be prosecuted under criminal law too – i.e paying money in a civil matter does not make a crime go away. But what of the government’s assurances, before the passing of the Digital Economy Act, that the police would not be knocking on the doors of file-sharers?

BitTorrent ‘Criminals’ Could Be Prosecuted Privately

The reality is that police won’t be kicking down doors over a movie but FACT Administration and the various companies of the Federation Against Copyright Theft have an answer for that too.

 

If the Crown Prosecution Service feels that pursuing a criminal case over one movie isn’t in the public interest, that’s just fine. Because FACT have the option to do what they regularly do against commercial-scale pirates – pursue a private criminal prosecution, run by them, funded by them.

 

“Settling a claim out of court is at the discretion of the rights holder, whom may choose to prosecute criminally, depending on the flagrancy of the infringement,” the settlement portal reads.

 

“Civil copyright infringement claims will be heard in the Intellectual Property Enterprise Court, a division of the High Court. Private criminal prosecution court summons will be made in a Magistrate Court.”

 

It’s also worth mentioning that Hatton and Berkeley, a business entity that is also involved in this settlement project, previously advertised the usefulness of an LLP structure (i.e FACT Administration LLP) to mitigate risks to rightsholders, should copyright litigation go badly for them.

 

Heads they win, tails alleged file-sharers lose? Possibly.

Who Better To Deal With Criminals Than Former Police Officers?

While the above might sound scary, it’s important to note that every detail of this settlement scheme appears to be both accurate and entirely legal, and there are good reasons for that. For example, take the letters being received by people who, up until now, have declined to settle their case in respect of the movie Ava.

 

They are signed by Tony Nash, who identifies as the Managing Partner of FACT Administration LLP. Nash is a former police commander of the London borough of Newham who later launched My Private Bobby, a subscription-based private police force in the UK.

 

Kieron Sharp, the head of FACT and a named member of FACT Administration, is a former senior City of London Police detective and former head of the economic crime team at Interpol. Other FACT employees with police careers behind them can be found on the company’s website.

 

FACT is also closely affiliated with the City of London Police’s, Police Intellectual Property Crime Unit (PIPCU), something regularly documented in hundreds of news reports. Given these connections, the pressure on letter recipients to settle is bound to increase, especially given the liberal references to criminal law, private prosecutions, and a direct link to PIPCU on the portal’s ‘About’ page.

 

It’s important to stress that letters sent to alleged file-sharers only reference civil law. However, the website that letter recipients are directed to also makes extremely clear references to criminal law and potential criminal liability, not only for those who refuse to settle, but even those who want to. It’s the kind of messaging the Open Rights Group warned about in 2016 but the government did nothing to prevent.

 

Finally, when we first saw indications of a developing settlement scheme last summer, we predicted that a movie called “The Marksman” was likely to feature at some point.

 

The settlement portal appears to confirm this, and also references other movies including After We Collided and Run Fight Hide. It’s clear that the companies involved have planned in considerable detail what appears to be a long-term project. It will undoubtedly keep the High Court, internet service providers, and solicitors busy.

 

Meanwhile, parents will be wondering whether they need to turn informant on their partner, kids, friends or anyone else with access to their wifi. Or if by simply paying up money they just don’t have, life will go back to normal again. Certainly puts the food and fuel bill crisis into perspective, with perfect timing too.

 

Operating a mixtape site is not without risk. By definition, mixes include multiple sound recordings that are often protected by copyright.

 

Popular hip-hop mixtape site and app Spinrilla, which has millions of users, is well aware of these risks. In 2017, the company was sued by several record labels, backed by the RIAA, which accused the company of massive copyright infringement.

 

“Spinrilla specializes in ripping off music creators by offering thousands of unlicensed sound recordings for free,” the RIAA commented at the time.

Spinrilla Fought Piracy Accusations

The hip-hop site countered the allegations by pointing out that it installed an RIAA-approved anti-piracy filter and actively worked with major record labels to promote their tracks. In addition, Spinrilla stressed that the DMCA’s safe harbor protects the company.

 

As the case progressed both parties filed motions for summary judgment. The music companies requested rulings to establish, before trial, that Spinrilla is liable for direct copyright infringement and that the DMCA safe harbor doesn’t apply.

 

Spinrilla countered this with cross-motions, filed under seal, in which they argued the opposite.

Court: Spinrilla is Liable

December 2020, US District Court Judge Amy Totenberg ruled that Spinrilla is indeed liable for direct copyright infringement. In her ruling, Judge Totenberg concluded that 4,082 copyrighted sound recordings were streamed at least once through its website or app.

 

Spinrilla’s legal team brought up several cases in the company’s defense, but these all deal with uploading and downloading of infringing content, not streaming. Streaming is considered to be a public performance right which means that services can be held liable even when a user initiates the streaming activity.

 

Without the DMCA’s safe harbor protection Spinrilla will start the upcoming trial at a severe disadvantage. And with 4,082 copyrights at state, the potential damages are over $600 million, if the jury finds that the infringements were willful.

 

With the stakes this high, both sides will pay close attention to jury selection. Before the selection is made they have the opportunity to ask a series of questions to rule out any potential bias.

Are You a Hip-Hop Fan?

The record labels, for example, want to know whether the jury candidates ever used the Spinrilla platform or created a mixtape. They also want to know whether prospective jurors have been accused of illegally accessing or distributing music on the Internet in the past.

 

The intention of most questions is obvious. However, out of context, they may seem odd. For example, there are not many cases where the plaintiffs are interested in the DJ experience or their views of hip-hop music and artists. That’s exactly what’s being asked here.

 

– Do you or does anyone close to you have experience “deejaying”? If so, please explain in what capacity or context.

 

– Are any of you fans of hip hop? Who do you listen to?

 

– Do any of you have negative opinions about hip hop, or the artists or record labels involved in creating that kind of music? If so, please explain.

 

Spinrilla is a hip-hop-oriented site so the labels probably don’t want any die-hard fans on the jury. The same is true for jurors who don’t believe that artists are entitled to get paid, as the following questions hint at.

 

– Do any of you believe that music should be available for free, even if that means that artists and record labels do not get paid for it?

 

– Do any of you believe that artists and record labels are not entitled to earn money when people listen to their music?

 

Spinrilla doesn’t object to the DJ or hip-hop questions. However, it objects to the insinuation that “artists do not get paid,” which they believe is intended to condition or bias the potential jurors.

EFF Supporter?

In another piracy-related lawsuit, the labels were also eager to find out whether jury candidates were reading TorrentFreak. This question is not on the list in this case but the labels do want to know whether the prospects are contributors or supporters of the Electronic Frontier Foundation (EFF).

 

The EFF is often engaged in copyright-related lawsuits where they argue against rightsholders such as the record labels, so that question doesn’t come as a complete surprise.

Spinrilla’s Jury Questions

Spinrilla also prepared a set of questions for potential jurors. It obviously wants to ask potential jury members if they have ever worked in the music industry.

 

Several questions also appear to gauge how the candidates would respond to the arguments and evidence the mixtape site plans to present in court. This includes the suggestion that the labels may have actually benefitted from the fact that their music was shared on the platform.

 

– Would any of you be unable or unwilling to consider evidence that Plaintiffs may actually have benefitted from the sharing of Plaintiff’s music on Spinrilla in determining an appropriate amount of damages?

 

Other questions use a similar structure and ask whether evidence that the labels had Spinrilla accounts or used the site in their marketing plans, will have an impact on the jurors’ views.

 

Needless to say, the record labels are not happy with these questions, characterizing them as “prejudical” and improper attempts to pre-educate the jury on Spinrilla’s theory of the case.

 

These and other comments and concerns were shared with the court in a pretrial order (pdf) earlier this month. There is no date for the trial set yet but the record labels previously noted that they hope it will start soon.

 

In common with other countries attempting to reduce their movie and TV show piracy problem, India has provisions in copyright law that allow rightsholders to limit access to pirate sites.

 

Disney has utilized this mechanism to compel ISPs to block subscriber access to pirate sites and has also obtained so-called ‘dynamic’ injunctions that allow new circumvention domains to be blocked too.

 

But despite all of these actions, pirates and pirate site operators often tend to be one or two steps ahead so, in some cases, rightsholders like Disney choose to file criminal complaints instead.

Disney Star Targets Several Piracy Platforms

As a wholly-owned subsidiary of The Walt Disney Company, Disney Star shares its parent company’s concerns over rampant piracy in India. So, in order to combat the threat at the street level, it is now seeking help from the authorities to dismantle several piracy platforms.

 

Reports indicate that four well-known piracy brands have been reported to the police – the infamous Tamil Rockers, Tamil Blasters, and Tamil MV, plus popular mobile application Pikashow.

 

The content distributed by these services is often obtained from theater camcorder recordings, official OTT platforms, and ther pirate sites, and then distributed via torrents, third-party file-hosting platforms, and dedicated servers.

Criminal Complaint Targets Popular Piracy Resources

Disney Star noticed that several of its Hotstar Specials were being illegally distributed by several of the targeted sites. Live TV content culled from its Star Plus, Star Gold, Star World, and Star Sports channels appeared on the Pikashow application.

 

The Disney-owned company then tried to register a criminal case with the Tamil Nadu cyber cell, IndianTelevision reports, but when that was unsuccessful, a decision was made to file a complaint with the Bengaluru cyber cell. That switch has proven more effective.

 

Disney Star has successfully registered a First Information Report (FIR) detailing alleged offenses under several laws, as follows:

 

Information Technology Act 2008 (Section 66): This section has its roots in Section 43 which relates to ‘Penalty and Compensation for damage to computer, computer system’. In part, this makes it an offense for anyone to download, copy or extract any data from a computer system or network without obtaining permission from the owner.

 

Section 66 clarifies that if this is done dishonestly or fraudulently, a fine or prison sentence is available (pdf).

 

Copyright Act 1957 (Section 63 and 65): Under Section 63, any person who knowingly infringes or abets the infringement of copyright in any work commits a criminal offense. Section 65 lays out that punishments for possession of tools for the purpose of making infringing copies of any copyrighted work can be fines or a prison sentence.

 

Indian Penal Code (Section 420): Cheating and dishonestly inducing delivery of property can result in a fine or a prison sentence of up to seven years.

Complaint Confirmed, Two People Named

According to a copy of the Disney Star report viewed by IndianTelevision, two people (R Kumaravel and R Radhakrishnan) are personally named in the complaint, with the former an alleged resident of the Yelahanka suburb of Bengaluru city. The registration of the complaint was confirmed by Santosh Ram, station officer at the Bengaluru Police.

 

“The cumulative traffic on these platforms is estimated at 62 million. They mostly offer Tamil, Telugu, and Malayalam content, which is leaked on their websites,” Ram said.

 

“Of late, they have been offering content in other languages, including Hindi. The FIR has been registered by Disney Star. We are investigating the matter.”

 

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 one new entry on the list. “Morbius” is the most downloaded title.

The most torrented movies for the week ending on May 30 are:

Movie Rank	Rank last week	Movie name	IMDb Rating / Trailer
Most downloaded movies via torrent sites
1	(3)	Morbius	5.1 / trailer
2	(2)	The Northman	7.6 / trailer
3	(1)	Everything Everywhere All at Once	8.5 / trailer
4	(…)	Top Gun: Maverick	8.7 / trailer
5	(7)	The Batman	8.4 / trailer
6	(9)	Sonic the Hedgehog 2	6.7 / trailer
7	(8)	Uncharted	6.6 / trailer
8	(4)	Memory	5.6 / trailer
9	(5)	Fantastic Beasts: The Secrets of Dumbledore	6.4 / trailer
10	(10)	Spider-Man: No Way Home	8.6 / trailer

 

 

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