Time flies, some people say. There is certainly some truth to that but for others, it appears that time stands still.

 

Sydney-based movie distributer Odin’s Eye Entertainment appears to fall in the latter category. Or at least, its anti-piracy partner “shoot-down.com” does.

Intelligent Anti-Piracy

The anti-piracy outfit is a relatively small player that first appeared on the scene two years ago. According to its website, the Canadian company promises to offer intelligent anti-piracy services.

 

“Copyright violations on the internet are almost as old as the internet itself,” the company writes on its homepage. This statement is somewhat ironic, given that the company is targeting ‘ancient’ URLs in its takedown notices.

 

The reported domains include Megaupload, Fileserve, Filesonic, and Wupload. More of that later, we’ll first provide some much-needed background.

2012 War on Cyberlockers

Last week we reported that Google’s transparency report ‘celebrated’ its ten-year anniversary. Back then, cyberlockers were the rising stars on the piracy scene. While these sites could be used to store both legal and illegal content, the latter category grabbed the most attention.

 

This didn’t go unnoticed by Hollywood which spurred law enforcement agencies into action. That eventually led to the demise of Megaupload, which is still being targeted in a criminal prosecution.

 

The shutdown of Megaupload was celebrated by the movie studios which wanted to see even more casualties. Paramount Pictures famously released a list of “rogue” file-hosters, presented in a fancy graphic, where Megaupload was already crossed out.

 

This pressure eventually became too much for several of the sites, prompting them into voluntary action. Wupload and Fileserve disabled all public sharing functionality in April of 2012. A few months later, fellow cyberlocker Filesonic shut down permanently.

Old Names in New Takedown Notices

This brings us back to the takedown requests Shoot-Down sent to Google over the past few weeks. These DMCA notices include several URLs from sites that stopped sharing files a decade ago, even before Google’s Transparency report was launched.

 

For example, the following notice identifies links to copyright-infringing copies of the Australian film “Beneath Hill 60” on Megaupload, Wupload, Filesonic, and Fileserve.

 

This isn’t an isolated incident either, as the same domains appear in other takedown requests. And it’s not limited to single URLs either; in some cases the DMCA notices include dozens of URLs that haven’t linked to pirated content for more than a decade.

 

We asked Shoot-Down for a comment on our findings but the anti-piracy company prefers not to comment on the record.

 

Whatever their reasons are, we know that these links are certainly not listed in Google’s search engine. And the sites themselves haven’t been around for years. In this context, it makes sense to end this article with a comment from their website. If anything, this shows us that time is a relative concept.

 

“With continuous monitoring of new offerings we ensure that newly uploaded files are taken offline quickly,” Shoot-Down writes.

 

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

 

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

 

This shift in consumption patterns is not limited to legal content; piracy has gone mobile as well. In some cases, pirate movies and streaming apps can be found in official app stores. If not, they can be sideloaded onto the devices.

 

To the broader public, these apps are less visible than traditional pirate sites and services. They are not broadly indexed by search engines, for example. Nonetheless, popular pirate apps can easily get a million users.

 

Copyright holders are not happy with these ‘unauthorized’ apps, a sentiment that was reiterated by the Copyright Alliance a few days ago. The public interest group, which has strong connections with rightsholders, sent a submission to the U.S. Department of Commerce’s National Telecommunications and Information Administration (NTIA), calling for action.

Copyright Alliance Response to NTIA Inquiry

The request is a response to an NTIA inquiry into the current state of the mobile app ecosystem. In particular, the request for comment aims to identify challenges or barriers that restrict app distribution or user adoption.

 

Piracy is not mentioned in the brief but the Copyright Alliance believes that this issue should be taken into account as well.

 

“In order to promote lawful competition in the mobile app ecosystem, the Copyright Alliance asks that NTIA consider the harm infringing activity in the mobile app ecosystem causes to legitimate mobile app developers, third party rights holders who license their works for use in legitimate mobile apps, and mobile app users who may be duped into using infringing apps.”

 

The Alliance points out that app piracy is a growing problem that leads to billions of dollars in lost revenue. Among other things, the submission cites 2018 data from Google, which reported that takedown notices removed more than 14,000 items from the Play Store in that year.

Screening Apps and Devs

While piracy is hard to eradicate entirely, the Copyright Alliance believes that a lot of progress can be made by carefully screening developers and apps before they enter the store.

 

“One of the most important actions that can be taken to mitigate against such harm is to have the mobile app storefronts engage in reasonable, enhanced screening of the app developers and the mobile apps before they are offers [sic] on the mobile app storefront, and other best practices to deter infringing apps,” the Copyright Alliance writes.

 

The letter encourages the NTIA to promote a set of best practices for the app ecosystem. This should include “enhanced vetting” of developers, “screening” apps for infringements, and an effective notice and takedown system.

 

“Such screening and app removal helps competition by removing fraudulent and infringing apps that take away customers from legitimate app developers,” the letter reads.

 

Apple is a platform that already has tight restrictions and vetting practices in place so the recommendations appear to be mostly directed at Google. That said, when it comes to challenges and barriers, Apple has plenty to say as well.

Apple Weighs In

The iOS platform is already closed to “unvetted” apps and unlike Android, there is no standard option to sideload software on iOS devices. Some people see this as a competitive barrier that aims to maximize control and profitability, but Apple frames it differently.

 

In its response to the NTIA inquiry, Apple stresses that app screening is crucial to ensure the security of the App Store and iOS. In addition, the ban on sideloading helps to prevent piracy as well.

 

“[Sideloading] permits threats such as adware, ransomware, or malware, or scammers who exploit apps to mislead users, attack mobile devices’ security features, violate user privacy, and expose developers to piracy and other harms,” Apple writes.

 

“The increased threat from sideloading would also erode users’ and developers’ trust in the ecosystem, resulting in many users downloading fewer apps from fewer developers, and making fewer in-app purchases.”

 

Apple stresses that this sideloading threat is recognized by the U.S. Department of Homeland Security, the European Agency for Cybersecurity, Europol, and other experts. However, not everyone agrees that sideloading is a problem.

Cydia Counters Apple

The submission from Jay Freeman, who’s also known as ‘saurik’, paints an entirely different picture. According to the creator of the popular sideloading app Cydia, Apple’s closed ecosystem is a barrier that limits competition and harms the public at large.

 

Freeman notes that the current mobile platforms are doing all they can to lock people in. The cost of switching to a different platform is “ridiculously high” and requires people to carefully rebuild their digital life, which can be a lot of work.

 

“This circumstance grants the platform which manages to get a user an almost unprecedented level of control over the content they are allowed to access and how their money is spent and directed through their ecosystem,” Freeman writes.

 

Cydia’s creator also doesn’t believe that sideloading is more dangerous, pointing out that the iOS store has its own scam and fraud issues too. Similarly, jailbreaking doesn’t lead to more piracy either, he argues.

 

“The US Copyright Office itself–which I’d dare say is one of the most foremost experts on this specific topic–concluded that ‘the record did not demonstrate any significant relationship between jailbreaking and piracy’,” Freeman writes.

 

The responses from the Copyright Alliance, Apple, and Freeman, show that “challenges” and “barriers” can be looked at from various angles. If and how the NTIA will take the piracy angle into consideration for its final recommendation remains to be seen.

 

For the past several years, authorities in Italy have regularly announced operations that aimed to disrupt the supply and use of pirate IPTV services.

 

After a series of similar actions, in 2021 it was claimed that ‘Operation Black Out‘ had shut down a network responsible for around 80% of the illegal supply in the country. This January, another operation led to the claimed dismantling of a network servicing 500,000 customers.

 

These reported successes may have disrupted supply but rightsholders are still unhappy. Last week, CEO of football league Serie A blamed IPTV pirates for a 300 million euro black hole in revenues, something that may have played a role in Italian authorities conducting a new crackdown with an unusual component.

New Guardia di Finanza Operation

The special technology fraud unit of the Guardia di Finanza (GdF), a law enforcement agency under the authority of the Ministry of Economy and Finance, is reported to have carried out a new operation as football fans prepared for the end of the Serie A football championship.

 

In addition to either blocking or seizing sites and servers relating to the sale and distribution of pirate IPTV services, police also took the opportunity to give thousands of pirates an unwelcome surprise.

 

“In anticipation of the last day of the Serie A football championship and the Conference League final, the IT specialists of the Fiamme Gialle have registered hundreds of new services and resources dedicated to the sale of IPTV activities through illegal streaming,” a GdF statement reads.

 

The Gruppi Sportivi Fiamme Gialle is the sports division of the Italian police force, with team members competing in athletics, rowing, skiing and other sports including judo and karate. In this instance, however, they were lying in wait as IPTV pirates scooped up an enticing offer.

‘Applicazione Ufficiale’

The ‘Official Application’ subscription package offered every regular TV channel and subscription TV service at the “ridiculously low price” of six euros and promised access on devices including TVs, phones, tablets, and computers. Police say it was advertised on Telegram channels, some with as many as 20,000 users, with a free trial and guaranteed anonymity to put subscribers at ease.

 

Meanwhile, GdF officers were engaged in parallel IPTV disruption activities. They say more than 500 web resources relating to pirate IPTV were seized or blocked, including over 150 websites and 40 Telegram channels. In addition, 310+ pieces of IPTV infrastructure, including primary and balancing servers distributing illegal streams, were taken offline.

 

Italian police don’t go into specifics so the precise mechanism of what came next is unclear. However, the suggestion is that through seized IPTV infrastructure, police were able to track people who tried to access illegal streams via ‘Applicazione Ufficiale’ subscriptions.

 

“In fact, a real tracking system was implemented which made it possible to identify the users of the pirate streams. Anyone who tried to connect to the pirated service was immediately redirected to a special information panel that warned that the site, through which the program was being viewed, was seized and the connection data traced,” GdF says.

Police ‘Discover’ Stream Creed

Back in 2019, police in Italy announced a huge anti-piracy operation that targeted, among other things, the company operating popular IPTV service management system Xtream Codes. The software/system offered a comprehensive package that allowed people to manage their own IPTV reselling service and its customers but according to police, Xtream Codes acted illegally.

 

Almost three years later, there is no news of subsequent charges, if any, but there have been accusations that the team behind Xtream Codes remained in the business with a similar product called Xtream UI. That claim was subsequently denied by the Xtream Codes team and it appears police now have a new and related discovery on their hands.

 

“The consequent analyzes carried out by the investigators have, at present, made it possible to ascertain the existence of a new management system for IT flows, called ‘Stream Creed’, which appears to derive from the source code of the already known ‘Xtream Codes’, a worldwide pirate platform dismantled by the same Special Unit in 2019,” GdF says.

 

The suggestion that police IT specialists only just discovered the existence of this software seems unlikely. The Stream Creed platform has been discussed in IPTV communities for at least two years accompanied by videos on sites including YouTube.

 

 

But whether the Stream Creed discovery is new or old, DAZN – which secured rights to broadcast Serie A matches in a $3 billion deal in 2021 – is happy with the outcome of the operation.

 

“We renew our full support to the law enforcement agencies who are committed every day to countering the phenomenon of piracy which every year generates enormous damage to our country system, with a particular impact on the media and entertainment industry and on end customers,” says DAZN CEO Stefano Azzi.

 

“Piracy affects the whole world of OTT players, not just DAZN. With the diversification of platforms and channels, the methods of piracy also change. DAZN’s anti-piracy division and its partners are already working to stop thousands of instances through law enforcement, injunctions and continuous innovation to protect subscribers.”

 

 

In December 2021, movie and TV giants Universal, Disney, Paramount, Warner and Columbia, plus Netflix, Amazon, Apple and several other studios filed a lawsuit against Texas resident Dwayne Anthony Johnson.

 

According to the plaintiffs, Johnson is behind IPTV services AllAccessTV (AATV) and Quality Restreams. The complaint states that AATV offered subscription access to infringing movies and TV shows via its IPTV and VOD services, delivering content such as The Godfather, Harry Potter, Jurassic Park, and The Office, without appropriate licensing.

 

Quality Restreams allegedly provided infringing content to other IPTV providers, including AATV, via live IPTV channels and a VOD service.

 

“The result is unauthorized television and movie content streamed over the Internet in a manner that directly competes with, and undermines, authorized cable and Internet streaming services,” the complaint added.

 

In February 2022, the parties agreed to a preliminary injunction in a California district court that restrained and enjoined Johnson (and anyone acting in concert with him) from operating AllAccessTV and Quality Restreams (or any similar service) that may infringe the plaintiffs’ rights.

 

Importantly, this was jointly agreed on the basis that Johnson denies liability and makes no admission of liability by agreeing to the preliminary injunction.

Joint Report to the Court

Late last week the parties submitted a joint scheduling report which summarizes the key legal issues in the lawsuit as follows:

 

(i) whether Defendants are liable for the unauthorized transmission and performances of Plaintiffs’ Copyrighted Works to members of the public on a mass scale, in violation of Plaintiffs’ exclusive rights to publicly perform the Copyrighted Works, 17 U.S.C. § 106(4);
(ii) whether Defendants are liable for infringing upon Plaintiffs’ exclusive reproduction rights through the unauthorized copying of the Copyrighted Works for Defendants’ 24/7 channels and VOD offerings, id. § 106(1); and
(iii) whether Defendants are secondarily liable for the infringement of Plaintiffs’ exclusive public performance and reproduction rights in the unauthorized copying of the Plaintiffs’ Copyrighted Works, including by creating and growing a network of resellers who promote and sell the infringing services.

 

The report notes that the plaintiffs have not yet decided whether they will seek actual damages or statutory damages but if past lawsuits offer any guidance, statutory damages seem most likely. Proving specific losses suffered by the plaintiffs can be difficult, if not impossible, so a round figure of $150,000 per infringement can be a more simple solution.

 

The document further states that the plaintiffs are likely to move for summary judgment on the issue of Johnson’s liability. Johnson does not anticipate filing summary judgment motion(s) but reserves the right to file “dispositive motions” moving forward, i.e he may attempt to dispose of some or all of the claims against him.

 

In the meantime the parties are planning for discovery, seeking information from each other and third parties that could potentially help them progress or defend this lawsuit. The requests begin by seeking the type of information one might expect and then progress in an unexpected direction.

Plaintiffs’ and Defendants’ Discovery Demands

On the side of the studios, the anticipated initial demands seem standard enough. They want to seek third-party discovery from individuals or entities, who, along with Johnson, “allegedly own or operate the infringing services of AATV and Quality Restreams”.

 

The defense anticipates discovery on the plaintiffs’ ownership of the allegedly-infringed copyright works, their claims of infringement, and any investigation of the same.

 

Specifically, the defense seems keen to learn more about the Motion Picture Association’s (MPA) involvement in the investigation, which may loop back to their earlier concerns (pdf) that key evidence provided by MPA anti-piracy chief Jan van Voorn was “biased” and “inaccurate”.

 

Interestingly, the defense also seeks access to monetary judgments, settlement agreements, and other documents relating to payments received by the plaintiffs as a result of other copyright infringement lawsuits. Whether these will be handed over is unclear at this stage but given their sensitive nature, it seems unlikely they will appear in public filings. They would be interesting to read, however.

And That’s Not All….

In addition to seeking details of any agreements between the plaintiff studios and the MPA, to our surprise (and presumably to the plaintiffs’ too) this news publication suddenly gets thrown into the discovery mix.

 

For reasons best known to the defense, they say they will also seek access to “documents relating to Plaintiffs’ and/or the Motion Pictures Association’s relationship and involvement with https://torrentfreak.com.”

 

Far be it from us to steal the thunder of the MPA and the world’s leading movie and TV show companies, but any documents produced, if any, will be particularly unspectacular. Any communications with any of the above entities consist of requests for comment on news articles and their responses, if any.

 

We never seek comment or communication on IPTV, torrent or streaming-related lawsuits as the dockets speak for themselves. And as far as AATV and Quality Restreams is concerned, nobody has discussed anything with any of the plaintiffs or the MPA, at any point – ever.

 

That being said, we imagine the MPA being extremely flattered at the mere suggestion of having an intimate relationship with us but, after 17 years of absolute editorial independence, we really enjoy the freedoms of single life. We’re both sorry and happy to disappoint.

 

Joking aside, it’s interesting that our close reporting of publicly available, copyright-related lawsuits sometimes attracts attention from the parties involved, on both sides. The plaintiffs in a major music industry copyright lawsuit are currently keen to ensure that potential jurors aren’t readers of this publication, for reasons unknown.

 

The joint report can be found here (pdf) and Area 51 can be found here

 

Two decades ago, when the file-sharing boom was just getting started, many people saw piracy as a mystical treasure hunt.

 

At the time, record shops and video stores still dominated the street scene. That would soon be over, as offline entertainment swiftly moved online.

 

Instead of listening to a CD at a local store, people started to sample music from the convenience of their own homes. It could take a few hours for a download to complete, but for many, this anticipation was part of the excitement.

Supply and Demand

Despite the potential legal repercussions, it was instantly clear that millions of people were eager to consume pirated content. However, in order for the system to work, a steady supply of uploaders was also required.

 

Warez groups were already sharing pirated content in their own secretive ecosystems long before Napster and BitTorrent were invented but, when torrent sites took off, a new breed of uploaders began to emerge. These people curated pirated files and shared them publicly for the whole world to enjoy.

 

The Pirate Bay has always been a breeding ground for uploaders. Some have professional setups with automated bots, but many take a much more casual approach. Not much is known about these hobbyists but we were able to find one willing to share his views.

Vtwin88cube

The uploader in question is “vtwin88cube,” who shared his first torrent on The Pirate Bay in 2010, well over a decade ago. Like most uploaders he has his own niche, in his case specializing in high-quality music releases. As a former radio DJ, this isn’t a coincidence.

 

Vtwin88cube first heard about The Pirate Bay in the mid-2000s, still using a dial-up connection at the time. He was blown away by what the site offered and when the bandwidth constraints were sorted, a download spree began.

 

“Having been introduced to the biggest ‘Candy Store’ in the world was a life-changing experience for me. I started downloading MP3 music from the Bay. However, half of the time the tags were messed up or song titles were misspelled.

 

“I’m a former radio DJ and in radio stations, there’s little room for such inaccuracies. I thought to myself, I can do better, and decided to start uploading properly tagged music. It quickly grew into an addiction.”

3,000+ Uploads

From one moment to the next, Vtwin88cube progressed from basic user to Pirate Bay uploader. Back then everyone could sign up for an account so it wasn’t all that special. But it wasn’t a fluke either.

 

After more than a decade Vtwin88cube is still uploading FLAC music releases and he now has more than 3,000 uploads on record. These are not all albums he personally ripped. On the contrary, most uploads are recycled hard-to-find torrents he collected over the years.

 

It’s impossible to find out how many people downloaded the torrents, but it will easily be over a million, if not many more.

 

Like most uploaders, Vtwin88cube is well aware of the legal risks. Getting caught can lead to life-destroying legal trouble. Meanwhile, being an uploader doesn’t bring in any money, it only costs time and effort. So what does he get out of it?

 

Vtwin88cube says that he sees it as a way to help other people access music they may be unable to enjoy otherwise.

 

“I get a sense of satisfaction that maybe in some small way I’ve made someone’s life a little more enjoyable. TPB was and still is to some degree vital for people getting music. Times are tough, just because someone can’t afford to buy music, are they any less deserving? I don’t think so.”

The Green Skull

There are probably other motivations involved as well. After uploading for 12 years, Vtwin88cube is now considered a VIP uploader at The Pirate Bay. This is a ‘trusted’ status that comes with a green skull, which is shown on all uploads.

 

“I’m very proud of my VIP uploader status on TPB and other sites also,” Vtwin88cube says, noting that he also shares torrents on 1337x, Demonoid, Prostylex, and TorrentGalaxy.

 

Another major feather in the cap of Vtwin88cube is the fact that was apparently downloaded at The Élysée Palace a few years ago. The Élysée is the official residence of the President of the French Republic.

 

“I’m also proud that former French President Sarkozy liked my FLAC rip of the Beach Boys- Greatest Hits – only the best quality will do for the Palace!” Vtwin88cube tells us.

 

The prolific music uploader has also spotted his work in other unusual places. In the renowned music database Musicbrainz, for example, his “The Very Best of Guns N’ Roses” compilation is listed as an official album release, complete with homemade album art.

A Family

These credits and the ability to ‘help’ others can be motivations to continue uploading, despite the risks. And perhaps there’s a third factor as well; a sense of belonging and the friendships that were formed along the way.

 

“I’ve developed numerous friendships with other VIP uploaders and crew members over the years, we’re a family.”

 

Vtwin88cube says that there’s a dedicated group of uploaders who stay in regular contact but not all people stick around. Some uploaders disappear without a trace and, sadly enough, there’s an obituary list as well.

 

“Occasionally, real-world family members will reach out on the forums or by PM letting us know that someone has passed away and won’t be uploading anymore. Usually the wife or children. Very sad indeed.”

 

As a seasoned uploader, Vtwin88cube has learned to take precautions in order to remain relatively anonymous. He uses a VPN to log in to the site and while seeding his torrents.

 

But copyright holders are not the only threat. Vtwin88cube also had his Pirate Bay account taken over by hackers who used it to upload German movies, likely scam-related. Eventually, he managed to get the account back with help from other TPB VIP uploaders, but it was a wake-up call for sure.

The Old Vessel That Keeps Sailing

In recent years The Pirate Bay has decayed somewhat. It is impossible to register new accounts and the comments have been closed. But many uploaders have remained loyal, including Vtwin88cube.

 

“TPB has definitely changed a lot over the years, she’s an old vessel with maintenance issues. The bilge pumps are running 24/7 keeping her afloat thanks to the tireless work of TPB crew.”

 

As the site has grown older, its uploaders have too. Vtwin88cube is no exception. His release output isn’t what it used to be but he says that stopping is not an option.

 

“My production output isn’t what it used to be for various reasons though. I’ve been on the verge of burnout for several years, but I hope to make it another decade!

 

“It’s my online family and the competition that keeps me going. I guess I’m trying to set a longevity record. The only thing that can make me stop is for the internet police to pry my keyboard from my cold dead hand!”

 

After years of government censorship to suppress dissent and maintain authorized narratives, unfiltered internet access in Russia is seen as a threat.

 

Russia’s measures include a massive domain name and IP address blocklist governing what services can be legally delivered by ISPs. Whether that’s the “extremist organization” behind Facebook and Instagram, BBC News, Google News, or thousands of streaming and torrent sites, access is routinely denied.

 

The inevitable response from citizens was to circumvent these blocks with VPNs and tools such as Tor. The equally predictable response from the authorities was to categorize tools that provide access to blocked resources as banned themselves, and also subject to blocking.

 

Last year Russia began blocking Tor nodes and TorProject.org, the tool’s official homepage. Tor was branded “an absolute evil” by the chairman of the State Duma’s Information Policy Committee, who dismissed its anti-censorship billing by framing Tor as a tool for criminals.

Activists Mount Legal Challenge

The blocking of TorProject.org was unusual. The authority to implement an ISP blockade was granted at the Saratov District Court back in 2017 but local telecoms watchdog Roscomnadzor only alerted Tor Project to imminent blocking early December 2021. Tor Project decided that in addition to a technical response, legal action would be required.

 

In partnership with digital rights activists at Roskomsvoboda, The Tor Project filed an appeal at the Saratov District Court. They argued that the blocking decision should be reversed because it was issued without giving Tor representatives an opportunity to participate – a violation of their procedural rights.

Court Agrees, Blocking Decision Set Aside

A Roskomsvoboda announcement reveals that the appeal was a success. Lawyer Ekaterina Abashina says that the exclusion of The Tor Project provided “an absolute basis for setting the decision aside” and the court agreed. The domain was ordered to be unblocked but an outright victory is still a way off.

 

A second submission by Tor Project, stating that Russian law does not contain any general prohibition on the dissemination of information related to anonymizing tools such as Tor, was rejected by the prosecutor and telecoms watchdog Roscomnadzor, with the latter claiming that courts have “unlimited power” to recognize any information as prohibited.

 

With no need to address that debate as part of the appeal, the judge ordered the blocking case to be heard at a new trial. Hearings are scheduled for this week and The Tor Project will be allowed to participate. However, the Russian prosecutor will take the opportunity to expand Tor blocking beyond the domain at the heart of the dispute by introducing a new party.

Prosecutor Decides to Involve Google

The unexpected development reported by Roskomsvoboda shows that the Saratov prosecutor’s office has decided to involve Google in the Tor Project blocking case. The prosecution asks the court to do the following:

 

• recognize the information contained in the Tor Browser software application as prohibited in Russia;
• recognize the Tor Browser application hosted on Google Play as prohibited;
• restrict access to the Tor Browser application;
• oblige Google LLC to remove the Tor Browser app from Google Play.

 

The involvement of Google in this matter could go either way. Google may choose to stand up and fight, giving The Tor Project an indirect boost with its considerable legal muscle. Alternatively, this may be a complication The Tor Project really doesn’t need right now.

Google and Russia’s Information War

Last week Google’s Russian subsidiary said it would file for bankruptcy and move its staff out of Moscow in response to the Russian government seizing its bank account. The reasons for that seizure are linked to Russia’s position on what content should or should not be available online.

 

In the past year, Google has been repeatedly fined by Russia over its refusal to remove content that Moscow claims is “prohibited”. Google’s YouTube has also restricted access to Russian media channels, enraging the Kremlin, but in other areas also related to censorship, Google appears much more compliant.

 

Notably, Google has complied with dozens of Russian government requests to delist tens of thousands of URLs from its search results. These link to VPN services that in most other regions would be entirely legal but in Russia are seen as tools granting access to banned information.

 

From a functionality perspective, Russian authorities see little difference between VPNs and Tor. Both allow access to “prohibited” information, something the Kremlin wants to prevent. The fact that the CIA recently used Instagram to seek out Russians to act as potential informants might also come into the mix, particularly given the advice that to evade detection, they should use Tor.

 

There is little doubt that, for many people, on-demand streaming services have become the standard for watching TV-shows.

 

The convenience of watching TV series at the viewer’s pace is common nowadays. It was quite different 15 years ago when the on-demand experience was pretty much exclusive to pirates.

TV Piracy Boom

Times have clearly changed but some old habits can be hard to kick. Over the past year, online piracy has increased globally and most of this growth has come from TV pirates, who are responsible for nearly half of all pirate site traffic.

 

The numbers are staggering. According to data released by the piracy tracking firm MUSO, there were an estimated 33.6 billion visits to piracy websites for TV content in the first four months of this year.

 

Most of this traffic came from the US and Russia. This is no surprise, as these are two of the most populous countries in the world. What is surprising, however, is that the UK swiftly climbed the ranks and is now in third place.

UK Pirates Climb the Ranks

Just one year ago the UK was in sixth place so it’s clear that the interest in TV show piracy has grown over the past 12 months.

 

“It is interesting to note that demand from the UK has grown year on year, with the UK now ranked 3rd in the list of consumption by country, compared to 6th during the same period in 2021,” MUSO writes.

 

MUSO’s data also shows that cost is not always the main driver for UK pirates. Even when a TV show is available through legal channels for free, people may still pirate it instead.

 

This is also the case for the latest season of Peaky Blinders. Despite it being freely available through the BBC, many people still chose to pirate it instead. Perhaps out of habit.

 

“Peaky Blinders S6 2022, was free to air in the UK, yet the UK is still ranked as the 9th country in the global demand list for this title [March 2022]. This confirms a trend we have previously seen that suggests audiences become used to the viewer experience of a platform, whether it is legal or not,” MUSO notes.

Subscription Fatigue

Based on the raw data it’s hard to find an explanation for the global rise in TV piracy. One potential factor is the fact that legal TV content is scattered out over several subscription services.

 

While most people are happy to pay for one or two services, some might prefer to use pirate sites instead of paying for yet another subscription. This subscription fatigue can drive up the piracy numbers.

 

Looking at the list of most pirated TV shows during the first quarter of 2022, season two of the HBO show “Euphoria” tops the list, followed by the first seasons of “The Book of Boba Fett” and “Peacemaker”.

 

Not surprisingly, these most pirated shows are all from paid subscription services.

 

The above shows that piracy is a complex phenomenon that’s not purely motivated by cost. Habits also play a significant role. This means that it is crucial for content creators to take away any incentive people may have to use pirate sites and services.

 

For many image conscious consumer-orientated businesses, a key to commercial success lies in carefully calibrated branding and marketing.

 

A hand-picked celebrity with the right attributes, for example, can enhance the images of both parties in the eyes of consumers. These associations can be nurtured through memorable online promotions but for the past several years, some websites have been virtually labeled “proceed with caution”.

Rightsholders Warn Brands Not to Support Piracy

Thousands of pirate sites rely on advertising to generate revenue but entertainment companies are keen to highlight the downsides of dealing with them. The general message is that advertising on illegal platforms not only fuels piracy but also supplies a reputation boost due to association with legitimate companies.

 

As a result, major brands work with companies such as White Bullet to keep their ads away from pirate platforms, while industry groups such as Hollywood’s MPA lobby authorities to take action against supportive advertisers and networks.

 

While it’s clear that more can be done, there are plenty of obstacles too. Advertising networks can be extremely complex, pirates have a reputation for deploying countermeasures and adapting to threats, and some advertisers are attracted to the millions of people visiting pirate sites. Other issues are even more tricky.

 

Imagine a scenario where a major sports rightsholder with its own piracy problems is sponsored by a company accused by Hollywood of using piracy as a promotional vehicle. Then, given the importance of branding and association, imagine that company’s logo is instantly recognized by millions of pirates as being piracy-linked, while those same pirates are being criticized for supporting piracy.

 

Ridiculous, surely?

Serie A Chief Blames Pirate Fans For Revenue Failures

As CEO of top-tier football league Serie A, Luigi De Siervo has responsibility for ensuring that Italian football is a success locally and elsewhere in Europe. But despite Serie A’s standing as one of the best football leagues in the world, De Servio has a problem.

 

Known locally as ‘pezzotto’, piracy-configured set-top boxes are often linked to unlicensed IPTV services and other illegal streaming sites. Italian fans looking for cheap viewing options are using them in their droves, diverting money away from the league. This means that Serie A struggles to compete with the most powerful league in Europe, its CEO says.

 

“How can Serie A compete with the Premier League? We must all do our part,” De Siervo said recently.

 

“When we hear people talking about the pezzotto and illegal ways of watching matches, we need to ask them to stop. Piracy takes away from Italian football over 300 million euros a year, resources that would be reserved for our clubs.

 

“This sad record of the Italians who think they are always smarter than the others must end. In reality we are a country of freeloaders, something unacceptable from a public point of view,” he added.

 

According to the Serie A chief, the financial gap between his league and that of his English rivals is about 500 million euros, a figure that could be cut in half if piracy didn’t exist. While that doesn’t take into account any boost in revenues the Premier League might also gain in the absence of piracy, De Siervo’s messaging is clear; piracy is wrong, damaging, and should not be supported in any way. That might be a problem.

Serie A is Sponsored By 1XBET

Back in 2019, Serie A launched an anti-piracy campaign, declaring that “Piracy Kills Football”. It’s a message still being pushed today but for millions of fans with a tendency to pirate, there is an elephant in the room.

 

Gambling platform 1XBET has been an official partner of Serie A for years, sponsoring the league’s presentations in Europe, Africa, the Middle East, North Africa and the Americas. The original deal noted that 1XBet would be featured in all match graphics, idents and virtual goal mat advertising, in all live Serie A broadcasts.

 

The problem is that the 1XBET brand is almost synonymous with a specific type of piracy. Hundreds if not thousands of movies illegally camcorded in cinemas have been released online with 1XBET branding. Who records them and puts them online is unclear but it’s safe to say they all like to advertise 1XBET, whoever they are.

 

Pirates have a love/hate relationship with these poor-quality watermarked releases (and their embedded promo codes) but if people want to watch movies that are still in theaters (Top Gun: Maverick, for example) beggars can’t be choosers.

 

1XBET watermarks like these will have been seen by a countless number of Serie A pirates over the years, and they are obviously on Hollywood’s radar too.

Hollywood Appeals to US and EU to Act Against 1XBET

In a submission to the Office of the United States Trade Representative last October, the Motion Picture Association gave its reasons why 1XBET should appear on the government’s ‘Notorious Markets’ report.

 

“1XBET is not an ad network but an advertiser. In 2020 it became the third most active online advertiser in Russia. It is an online gambling site that originated in Russia but now operates worldwide,” the MPA wrote.

 

“1XBET knowingly and routinely pays to place display ads on pirate sites as well as ads with promotion codes watermarked into infringing videos, including in some of the earliest releases of infringing theatrical camcord recordings. After Russian law enforcement agencies initiated an investigation in 2020, its advertising activity declined. However, 1XBET remains active, and its ads continue to appear on infringing websites today.”

 

Earlier this year, the MPA repeated similar complaints in a submission to the European Commission, adding in a few extra details for good measure.

 

“Piracy is used as a vehicle to support this online gambling giant. Within 6 months in 2019 alone, more than 1200 advertisements for 1XBET could be found on structurally infringing websites. 1XBET is blocked in Russia; its alleged beneficiaries are under criminal investigation for illegal gambling and declared fugitives at the request of the Russian Investigative Committee,” the Hollywood group wrote.

 

In the wake of Russia’s invasion of Ukraine, a website run by the Danish Institute for Sports Studies reported that companies including 1XBET are still sponsoring Serie A and Spanish club Barcelona. According to the MPA, this has a particular function.

 

“1XBET still attempts to launder its reputation by sponsoring football events, most recently as an official sponsor of the African Cup of Nations,” the group told the European Commission.

 

Why European entities Serie A and Barcelona weren’t mentioned directly to the EC isn’t clear but if fans are to be persuaded to abandon their pezzotto devices, an understanding that everyone agrees on the same rules might be a good start.

 

This week marked the 10th anniversary of Google’s important decision to begin publishing DMCA takedown notices sent to the company.

 

Over the last decade, online platforms including Twitter, Wikipedia, Medium and Github joined this transparency movement by submitting their notices to the Lumen Database. This archive not only allows rightsholders to monitor trends relevant to them, but also shines light on how copyright can be abused to impede the free flow of information.

 

A DMCA notice we’re highlighting today is available thanks to Github’s transparency. The notice, sent by anti-piracy company Irdeto on behalf of Blizzard Entertainment, is verifiably legitimate and addresses a genuine case of copyright infringement.

 

Github user ‘Chef Nomi’ (who was central to the SushiSwap crypto controversy) had not only taken the name of one of Blizzard’s characters but was also using Blizzard’s artwork in his avatar. As expected, the notice received full cooperation from Github under the DMCA and the offending content was removed as the law requires.

 

So that’s that then? Well not exactly.

No Proactive Piracy Filters? That’s Evidence of Intentional Infringement

In addition to the takedown request, the notice also contains an unsolicited lecture on Github’s supposed liabilities under copyright law. It includes a strong suggestion that Github’s failure to deploy proactive piracy filtering technologies to prevent any future violations of Blizzard’s rights is “evidence of intentional facilitation” of its users’ copyright infringements.

 

If applicable, this would be an extraordinarily big deal for Github but absolutely terrifying for a small yet honest tech platform responding in good faith to a DMCA notice. But, as astronomer Carl Sagan once said, an extraordinary claim requires extraordinary proof. And here’s another applicable wisdom: context is everything.

 

In this case, there is no proof that the additional statements in the notice are relevant to the conduct of Github, or its liability under copyright law. Indeed, the very lawsuit the notice’s claims are culled from was the subject of a landmark U.S. Supreme Court copyright ruling that adds significant nuance.

 

Among other things, it broadly establishes that a responsible platform like Github, that takes its legal responsibilities seriously, can not be held liable for its users’ infringements simply due to the absence of proactive filtering. And here’s why.

Context is Everything

When major movie studios, record labels, and other copyright holders sued peer-to-peer file-sharing companies Grokster and Streamcast, little did they know their case would end in a landmark 2005 ruling by the Supreme Court.

 

In a nutshell, the plaintiffs in MGM v. Grokster argued that users of the defendants’ file-sharing software (Grokster and Morpheus) were sharing millions of music tracks and videos with each other, in breach of copyright law. Crucially, the copyright holders insisted that since Grokster and Streamcast were complicit in those violations, they could be held liable for third-party infringement.

 

In response, the peer-to-peer companies pointed to a Supreme Court precedent set in the so-called ‘Betamax case‘, noting that a maker of technology used to infringe copyright can not be held liable for infringement (even if it knew that the technology was being used for infringement) as long as the technology is “capable of substantial non-infringing uses.”

 

That defense served the companies well in the lower courts but in the Supreme Court, all hope of relying on the Betamax case evaporated when the thorny issue of intent was factored into the equation.

 

In brief, the peer-to-peer companies specifically targeted their software at former users of Napster in the knowledge that the overwhelming majority of files available on Napster (before it was shut down) were infringing and that many of its users were infringers.

 

Internal documentation also revealed that the aim of the defendants was to have as many copyrighted files on their networks as possible. Grokster even sent out a newsletter stating that popular copyrighted content could be downloaded from its client.

 

“Grokster and StreamCast’s efforts to supply services to former Napster users, deprived of a mechanism to copy and distribute what were overwhelmingly infringing files, indicate a principal, if not exclusive, intent on the part of each to bring about infringement,” the Supreme Court wrote.

 

“The unlawful objective is unmistakable,” it added.

So What About Filtering?

Rather than dealing directly with the decision in the Betamax case, the Supreme Court ultimately settled on intent as the key factor in Grokster. Since the owners of the file-sharing clients advertised them as tools for infringing purposes, other aspects of their behavior could also be considered as contributing factors in the case against them.

 

Specifically, MGM showed that Grokster and Streamcast made no attempt to develop tools that could have diminished the volume of copyright infringements being carried out by users of their software. MGM said that the companies could’ve used filtering software to prevent piracy, but did not.

 

The Supreme Court agreed this was indeed a contributing factor. In light of the companies’ established unlawful objective, “..this evidence underscores Grokster’s and StreamCast’s intentional facilitation of their users’ infringement.”

 

And there it is in black and white. It’s almost exactly the same text sent in the Github notice informing the company that a “failure to use available filtering technologies to diminish infringement is evidence of intentional facilitation of infringement.”

 

By now it should be crystal clear why this statement demands context and why it doesn’t apply to Github – it does not have an established unlawful objective. But just in case more clarity is needed on filtering and similar mechanisms, here’s the Supreme Court’s assessment:

 

“Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.”

 

The DMCA notice sent to Github can be found here

 

At the start of this year, a new bill went into effect in France that created a new regulatory body.

 

The old HADOPI anti-piracy outfit merged with the Higher Audiovisual Council, creating the Audiovisual and Digital Communication Regulatory Authority (Arcom).

 

In addition to the organizational change, the anti-piracy outfit was given new powers as well. For example, Arcom maintains a blacklist of problematic sites and mirrors, which various service providers can use to block or delist the associated domains.

 

The outfit also has the power to swiftly order online services to take down unlicensed streams of live sporting events. This is in line with EU legislation which prescribes swift takedown procedures for live broadcasts.

Cannes Piracy Roundtable

This week, Arcom board member Denis Rapone gave the first public speech before an audience of film industry people at the Cannes Festival. Rapone lauded movie companies’ legal efforts over the past decade and stressed that France is an ally in the fight against piracy.

 

“We share a unifying fight: that of protecting French creation and its vitality against the predatory scourge of piracy,” Rapone said, at a roundtable discussion.

 

Rapone went on to acknowledge that a lot of progress was already made over the past years. Copyright holders have successfully demanded ISP blockades against hundreds of pirate sites in court, for example. In addition, HADOPI’s graduated response scheme also put a dent in piracy figures.

 

This has stopped the growth of piracy in France and in recent years the number of pirate site visits is trending down. However, with millions of people still using unauthorized sources regularly, more work has to be done.

 

“These serious and repeated infringements of copyright, perpetrated on a large scale, are not acceptable,” Rapone said. “It is time for the public authorities to step in and forcefully take action in the context of the new opportunities available to them.”

 

Arcom is happy to pick up the gauntlet. The government agency has the power to flag illicit sources and take swift and effective action. It has already booked some success on this front, by shutting down live streams of sporting events.

France Commits to Fighting Piracy

As Arcom’s appearance at the Cannes Film Festival shows, the authorities are also lending a hand to the movie industry.

 

“We can be pleased that France has chosen to make the protection of creation and the eradication of piracy a major objective of public policy. This can only be achieved through the combined determination and mobilization of creative actors and public authorities,” Rapone notes.

 

The speech is accompanied by a brief presentation that backs up some of the claims. Relying on EUIPO research, it shows that piracy has started to decline. Within Europe, France is at the bottom half of all countries ranked by the average number of visitors to pirate sites.

 

This is a positive sign indeed, but looking more closely there’s something that stands out. If we only count the “movie piracy” visits, France ends up much higher on the lists. In fact, French people visit movie piracy sites more often than those in the countries with the highest piracy counts.

Mandatory Release Windows & Piracy

Whether this was discussed during the roundtable discussion is unknown. However, it is likely that French policy is one of the reasons for this outlier.

 

For more than two decades, France has had a “media chronology” law that gives an exclusive release window to movie theaters. This applies to video rentals but also to streaming services such as Netflix, Amazon Prime, and Disney+.

 

Up until this year, streaming services could not show a film within three years of its movie theater premiere. This was recently shortened to 17 months for Disney and Amazon, and 15 months for Netflix, as the latter agreed to an annual investment of €190m in local movie and TV content.

 

These restrictions don’t apply to content that’s exclusively streamed online. However, for Disney, it means that it can’t show its blockbuster movie releases on Disney+ for more than a year.

 

Needless to say, it can be quite frustrating for French movie fans to see people all over the world enjoying recent films on streaming services, while they can’t. The movie theaters, for their part, are quite pleased.

 

Perhaps it’s a controversial suggestion, but could it be that these mandatory release windows are actually motivating some people to watch the films through pirate sites instead?

 

That might be something Arcom could look into in the future. After all, when it comes to defeating piracy, the authorities shouldn’t just look at the illegal supply, but also at the legal alternatives.

 

Exactly ten years ago, Google expanded its transparency report with a new section dedicated to DMCA takedown requests.

 

For the first time, outsiders were able to see what URLs copyrights holders targeted and in what quantity.

 

The decision to make this information public was in part triggered by a rapid increase in removal requests. This was having an impact on the “free flow of information”, according to the search engine.

 

“We believe that openness is crucial for the future of the Internet. When something gets in the way of the free flow of information, we believe there should be transparency around what that block might be.”

 

According to Fred von Lohmann, Google’s Senior Copyright Counsel at the time, DMCA notices were skyrocketing.

 

“These days it’s not unusual for us to receive more than 250,000 requests each week, which is more than what copyright owners asked us to remove in all of 2009,” Van Lohman wrote at the time.

From 250,000 to 1,000,000,000 Takedowns Per Year

In hindsight, this was just the start of a takedown explosion. A few years later Google processed more than 20 million DMCA notices per week, which translates to more than a billion per year.

 

This growth curve eventually flattened and in recent years the takedown volume has started to decline. This is in part due to the various anti-piracy algorithms that push pirated content down in the search results.

 

By downranking pirate site results, infringing content has become harder to find in the search engine. As a result, Google now processes ‘just’ a few hundred million DMCA requests per year.

 

After ten years of takedown transparency, we take a look at the totals thus far, which are quite impressive. Over the past decade rightsholders asked Google to remove 5.75 billion URLs that allegedly link to copyright-infringing content.

 

These takedown requests come from just over 300,000 different copyright holders. UK music group BPI is the most prolific sender. With 570 million reported links, it’s good for nearly 10% of all takedown requests.

 

Looking at the targeted domains we see that 4shared.com is in the lead with 68 million reported URLs. Most of these were flagged several years ago. In recent years, the site is flagged ‘only’ a few thousand times per week, with less than a million reported links per year.

 

The top five most targeted domain names is completed with the defunct site mp3toys.xyz, hosting platforms rapidgator.net, chomikuj.pl, and uploaded.net, as well as the unblocking proxy portal unblocksites.co.

Not All Reported URLs are Removed

The figures refer to the number of URLs that are reported but not all of these are actually removed from the search engine. The stats also count duplicate reports, bogus claims, and URLs that are not indexed by Google.

 

For example, if we look at the reports from MindGeek’s “MG Premium” we see that the company reported over 494 million URLs over the years. Little over half of these were actually removed by Google.

 

Of the remaining URLs, 128 million were not in Google’s index. These have been placed on a preemptive blocklist, to prevent them from appearing in search results later on. Another 70 million links were classified as duplicates, while nearly 7 million were rejected for other reasons.

Mistakes and Abuse

While these numbers are interesting by themselves, the biggest contribution of the transparency report is the ability for outsiders to spot faulty and abusive notices. This is possible because Google shares all reported links with the Lumen Database, which is managed by Harvard’s Berkman Klein Center.

 

Over the years this database has allowed us to spot thousands of problematic takedowns, ranging from honest mistakes, through automated takedown errors, to plain abuse.

 

There are numerous examples of mistakes we can mention. Microsoft once targeted the BBC, Wikipedia, and the US Government; Movie studios asked Google to remove their own films; A French movie and TV show database targeted Netflix and Rotten Tomatoes, and so on.

 

With billions of reported URLs is no surprise that these errors happen but by pointing them out in public, those responsible can be held to account. That must have resulted in a higher takedown accuracy rate over time.

 

It will be interesting to see how takedown trends develop over the coming years. As long as Google continues its transparency report, we will surely keep an eye on it.

 

When YouTube first got off the ground in 2005, most of its users would’ve been oblivious to how closely copyright law would govern their online activities moving forward.

 

Seventeen years later, with billions of internet users now both consumers and creators of content, people are becoming more educated. Terms such as DMCA, copyright strike and fair use are now regular features in YouTube content creator communities but that hasn’t necessarily led to fewer infringements or happier rightsholders.

 

Media companies in Japan believe that the use of overwhelming force to send a deterrent message may go some way to solving these problems.

The Rise of ‘Fast Movies’ Receives a Crushing Response

Up until last summer, so-called ‘Fast Movies’ didn’t seem like a key concern for the movie industry. These heavily edited copies of mainstream movies aim to summarize key plot lines via voice-over narration in about 10 minutes. While no replacement for the real thing, these edits accumulated millions of views and incurred the wrath of rightsholders, leading to the arrest of three people in Japan.

 

According to companies including Toho and Nikkatsu, these people infringed copyrights on a grand scale for monetary gain. After entering guilty pleas, last November all three received suspended prison sentences and were ordered to pay fines to the state. The deterrent messaging of that criminal case is now being underlined with a civil lawsuit.

13 Media Companies Want ‘Fast Movies’ Stamped Out

Last week, 13 member companies of the Content Overseas Distribution Association (CODA) and Japan Video Software Association (JVA) filed a civil lawsuit at the Tokyo District Court. It targets the same three individuals convicted in last year’s criminal matter with the aim of recovering significant financial compensation for damages.

 

The plaintiffs – Asmik Ace, Kadokawa, Gaga, Shochiku, TBS Television, Toei, Toei Video, Toho, Nikkatsu, Nippon Television Network, Happinet Phantom Studio, Fuji Television, and WOWOW – claim infringement in 54 copyrighted works including ‘I Am a Hero’ and ‘Shin Godzilla’. Additional facts underlying the lawsuit were established during the earlier trial.

 

The defendants admitted running multiple YouTube channels leading to their ‘Fast Movies’ being viewed around 10 million times. The 13 plaintiffs in the civil lawsuit say that as a result, they collectively incurred damages of two billion yen, around $15.7 million.

 

For the purposes of their civil damages lawsuit, the plaintiffs have settled on a partial claim of ‘just’ 500 million yen ($3.9 million) against the three defendants collectively.

Sending a Strong Deterrent Message

Clear indications of how seriously the anti-piracy groups and media companies are taking this action were on display after the lawsuit was filed last week. A press conference was held in Tokyo with a representative of CODA and three attorneys present to answer questions on the case.

 

Those present, including CODA director Takero Goto, highlighted that the three defendants committed criminal acts when they uploaded the movie edits and then profited from advertising revenue.

 

The civil action aims to underline those convictions with a strong message that rightsholders will not allow people to free-ride on creators’ content without facing significant financial consequences.

 

The overall message is one of deterrence coupled with the reaffirmation of copyright law, Goto said.

 

Last summer, Bungie filed a complaint at a federal court in Seattle, accusing AimJunkies.com of copyright and trademark infringement, among other things.

 

The same accusations were also made against Phoenix Digital Group, the alleged creators of the software.

 

The parties initially entered settlement negotiations but the process was derailed when the video game maker moved for a default judgment. In response, AimJunkies went on the defensive; and not without success.

 

AimJunkies argued that cheating isn’t against the law. In addition, it refuted the copyright infringement allegations; these lacked any substance and were ungrounded because some of the referenced copyrights were registered well after the cheats were first made available.

Court Dismissed Bungie’s Copyright Claims

A few weeks ago, U.S. District Court Judge Thomas Zilly largely sided with AimJunkies. The original complaint didn’t provide sufficient evidence for a plausible claim that the ‘Destiny 2 Hacks’ infringed any copyrights.

 

This was a severe blow for Bungie but the court did offer the game maker the option to file a new complaint to address these shortcomings.

 

Bungie seized the opportunity to ‘respawn’ and filed an amended complaint at the U.S. District Court in Seattle late last week. This new complaint adds more details to the copyright infringement claims as well as the role of several key persons that are allegedly involved.

 

The game maker starts out by stressing the damage cheaters cause to the game experience, which eventually ruins the fun for legitimate players.

 

“Cheaters ruin the experience of playing Destiny 2. Not only do cheaters impair the enjoyment of gameplay by non-cheaters with whom they interact in-game; cheaters illegitimately obtain and thereby devalue the in-game rewards that non-cheaters obtain legitimately.

 

“It is vital to Bungie’s and Destiny 2’s success that Bungie keep cheaters out of the game,” the complaint reads.

Reverse Engineered Code & Infringing Data Structures

In addition to listing AimJunkies.com as a defendant, Bungie also targets the associated company Phoenix Digital and its three managing members; David Schaefer, Jeffrey Conway, and Jordan Green. The final defendant is James May, who was allegedly involved in the development of the cheats.

 

These men were all allegedly involved in the development of the cheat software. In that process, they are believed to have reverse-engineered the copyrighted game content.

 

“In order to create that cheat software, and on information and belief, Mr. Schaefer, Mr. Conway, Mr. Green and Mr. May reverse engineered and copied the software code for Destiny 2,” Bungie writes.

 

Among other things, Bungie claims that the cheat relies on copyrighted data structures that are specifically used for Destiny 2’s rendering. This was supposedly used for the ESP feature, for example, which allows cheaters to see other players through solid walls.

 

“On information and belief, in order to provide this ESP feature, Defendants copied the Destiny 2 software code that corresponds to the data structures for player positioning [in] Destiny 2, and reverse engineered the software code for Destiny 2’s rendering functions.”

 

The new complaint also claims that the defendants effectively created a derivative of some of the copyrighted Destiny 2 code and distributed that without permission to people who bought the cheats.

 

The new copyright claims are indeed more detailed than those alleged in the original complaint. Whether this will be enough for the court to allow the case to continue remains to be seen.

“Veiled Threat”

AimJunkies no longer offers the cheat on its website but Bungie wants to continue the case nonetheless. The game maker is worried that the cheats may be relisted at a later date, sold to a third party, or shared online for free.

 

The last option was previously mentioned by AimJunkies director Mr. Schaefer, who allegedly issued a veiled threat to Bungie’s CEO over email.

 

“In the old days sites would put the source code on public forums for every 14yo to get and make a hack for your game. Most of the time when they do it [sic] they make it a free public cheat accessible to everyone,” the email read.

 

“Imagine players having access to cheats for free? I don’t think anyone wants to go back to those days. The net would be you would have more cheaters in your game then [sic] before the crusader came in. Is that what you’re looking for in your game?”

Ukrainian Deal

Selling AimJunkies to a third party is a realistic option too. In the amended complaint Bungie references a TorrentFreak article where AimJunkies states that it was in the process on selling the company to a group of Ukrainian investors.

 

This sale is still on, AimJunkies informed us over the weekend. Today, the company issued a press release together with the Ukrainian company Blome Entertainment (BME), confirming their intentions.

 

According to the press release, BME completed and signed definitive agreements with AimJunkies to acquire “Aimjunkies.com.” The cheat seller will, however, continue to operate independently.

 

“In BME, we have found a purchasing partner that fully supports us and wants to accelerate our vision of distributing meaningful entertainment experiences that span generations, all while valuing the creative independence that is the heartbeat of Aimjunkies,” Phoenix Digital CEO David Schaefer comments on the announcement

 

“Aimjunkies has distributed and continues to distribute some of the world’s most beloved videogame cheats and, by aligning its values with people’s desire to share gameplay cheat experiences in Eastern Europe, they bring together millions of people around the world,” BME CEO Maxim Arshinov adds.

 

What the forthcoming acquisition means for the legal battle is not immediately clear, but we will keep a close eye on developments.

 

—

 

A copy of the amended complaint filed by Bungie against Phoenix Digital Group and several of its employees at the Seattle federal court is available here (pdf)

 

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

 

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

 

This week we have two new entries on the list. “Everything Everywhere All at Once” is the most downloaded title.

The most torrented movies for the week ending on May 23 are:

Movie Rank	Rank last week	Movie name	IMDb Rating / Trailer
Most downloaded movies via torrent sites
1	(…)	Everything Everywhere All at Once	8.5 / trailer
2	(1)	The Northman	7.6 / trailer
3	(7)	Morbius	5.1 / trailer
4	(…)	Memory	5.6 / trailer
5	(5)	Fantastic Beasts: The Secrets of Dumbledore	6.4 / trailer
6	(2)	The Lost City	6.3 / trailer
7	(3)	The Batman	8.4 / trailer
8	(4)	Uncharted	6.6 / trailer
9	(6)	Sonic the Hedgehog 2	6.7 / trailer
10	(9)	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.

 

In 2018, top-tier Spanish football league LaLiga caused widespread uproar with a clever yet intrusive anti-piracy tool.

 

In common with its counterparts overseas, LaLiga’s premium content is widely pirated in both homes and commercial premises such as bars and restaurants. Since LaLiga couldn’t hope to visit them all, the football league added a new feature to its official app.

 

Users’ phones effectively became spying devices that could listen to their surroundings and, when LaLiga matches were identified, report the GPS locations of the premises back to LaLiga.

 

A year later, LaLiga was hit with a 250,000 euro fine by Spain’s data protection agency AEPD but the company vowed to continue fighting “this very serious scourge that is piracy”. LaLiga kept its word and an operation just announced by local police reveals that commercial premises using pirate IPTV and similar services will be prosecuted.

Coordinated Operation Across 13 Regions

Following a complaint filed by LaLiga in January 2022, Spain’s National Police launched an investigation into a piracy network supplying bars across the country in breach of copyright law. The infringed content included matches from LaLiga Santandar and the prestigious UEFA Champions League.

 

The investigation identified locations in more than a dozen regions across Spain including Seville, Malaga, Cordoba, Zaragoza, Valladolid, Murcia, Palma de Mallorca, Gijón, Madrid, Vigo, Las Palmas, Bilbao and Barcelona. Coordinated inspections were carried out by police on a day when LaLiga Santander matches were being played, and 166 bars were identified as being involved in the fraudulent display of copyrighted content.

 

“As a result of [the operation], the entire infrastructure that allowed the illegal viewing of paid multimedia content was dismantled, with the identification of those responsible and the cessation of the illegal service they provided,” a statement from the National Police reads.

Alleged Intellectual Property Crimes

During the operation police seized a large number of piracy-configured devices including Amazon Firesticks, generic Android boxes, and others from unnamed manufacturers. These will be used as evidence in prosecutions against those suspected of intellectual property infringement crimes.

 

According to the authorities, the owners of the bars that used the devices to receive and display pirated live matches will be charged with offenses related to the fraudulent reception and distribution of copyrighted broadcasts accessed from encrypted sources.

 

“With this they obtained a fraudulent economic benefit since they offered the possibility of watching sporting events, only broadcast through encrypted channels that made them possessors of an extra service that other establishments did not offer,” police say.

 

Economic damage to the rightsholders is currently estimated at €1,066,386 ($1.12m). Police are yet to announce any charges against the operators of the piracy network supplying the bars but that may only be a question of time.

 

DMCA takedown notices give copyright holders the ability to remove copies of their content from websites that have no right to distribute them. Billions of similar notices target search engines that carry links to similarly infringing content.

 

Numerous scandals over the years have highlighted how sloppy notices have wrongfully targeted legitimate content but more worrying are those that appear to be calculated and malicious. These were once relatively rare but it now appears that some people view DMCA notices as the preferred weapon to silence rivals or disrupt their businesses.

 

Bogus notice senders sometimes impersonate known companies, Reddit for example, in order to appear more credible. But how far can they push this approach? Into the realms of the ridiculous, apparently.

Hey Google! I’m Google, Here to Protect Your Rights

Early May, Google received a DMCA takedown notice requesting the removal of 76 URLs from its search engine. The vast majority of those links target sites offering Android APK files with most if not all relating to YouTube, including URLs for the popular ‘Vanced’ and ‘NewPipe’ apps. But would Google-owned YouTube really target itself with a takedown notice?

 

The information in the image above suggests that might be the case. YouTube is listed as the sender (on behalf of Google LLC), Google LLC received it, and Google LLC submitted it to the Lumen Database. However, moving to the text of the notice it’s clear that whoever wrote it doesn’t understand that a company owns YouTube’s app, not a person.

 

“The following websites distribute modified, cracked and unauthorized versions of my app ‘youtube’, which can only be found officially on Google Play,” it reads, adding in the official Play link for authenticity.

 

Fortunately, Google consulted Google and discovered that the Google DMCA notice it allegedly sent to itself to protect YouTube was actually bogus (Lumen copy here).

 

None of the links in the notice were removed which is good news for Google (the real one), since the targets include YouTube’s official Github repository. Plus an Indian bank, pages on Stack Overflow and XDA Developers, and links to Microsoft.com and Apple.com, for good measure.

Hey Google! I’m Spotify, Meta, Netflix, WhatsApp, Microsoft..

In a sane world that would be the end of the nonsense, but no such luck. Our searches also turned up several additional bogus notices that impersonate entities including Spotify, Meta (on behalf of Instagram), WhatsApp and Microsoft, the latter to prevent Minecraft piracy. They are in the same format and were probably sent by the same person.

 

These are not isolated incidents but after investigating many similar suspicious notices, a pattern does begin to emerge. While all of these notice senders claim to be protecting companies’ rights, their submissions to Google are unprofessional and lack credibility. They also appear to have similar targets, no matter who is listed as the sender or ultimate copyright holder.

Someone Doesn’t Like APK Platforms

A ‘reporting organization’ (listed as ‘Bsa’) has sent DMCA notices in the names of Google LLC, beIN Sports, TikTok, and Roblox in recent weeks. It even sent a complaint to Google on behalf of Netflix, ostensibly to protect Spotify’s rights.

 

These notices target more than 2,000 URLs based on several claims, including that they offer apps that bypass in-app payments, allow people to view 18+ content, or provide access to unlicensed TV broadcasts.

 

In common with the notices detailed earlier, these too are unprofessionally presented but seem to have a different author. Google appears to have spotted issues and refused to take down 1,725 links but as the image below shows, some were able to get through.

 

What all of these notices have in common is that no matter who sent them, their main targets are sites that offer Android APK files.

 

If we rule out the remote possibility that we’ve stumbled across a group of Good Samaritans acting altruistically to protect the interests of major corporations in the names of others, these notices could be designed to make certain APK platforms less visible, thereby damaging their traffic.

 

Who might be motivated to do that is open to speculation but at least for once, it is unlikely to be copyright holders.

 

Under US copyright law, Internet providers must terminate the accounts of repeat infringers “in appropriate circumstances.”

 

This requirement has been in place for more than two decades but only over the past few years have ISPs been held to the standard.

Billion Dollar Lawsuits

Several major music industry companies including Artista Records, Sony Music Entertainment, Universal Music, and Warner Records, have filed lawsuits against some of the largest U.S. Internet providers.

 

They include Bright House, which is owned by Charter. According to the music companies, the ISP failed to terminate persistent pirates. This claim could lead to hundreds of millions of dollars in damages, as seen in the lawsuit against Cox Communications two years ago.

 

The repeat infringer case is scheduled to go to trial later this year. Before it starts, however, both sides have submitted requests for summary judgments, in order to settle crucial matters before they are presented to the jury.

‘Copyright Claims Should be Dismissed’

Bright House requests the court to dismiss the only remaining copyright infringement claim. This accuses the ISP of contributory infringement, which means that the company induced, caused or materially contributed to the piracy activities of its subscribers.

 

The ISP rejects this claim and points out that it had an anti-infringement program modeled after the Copyright Alert System, an “industry-standard” anti-piracy agreement that was supported by the recording industry.

 

This system was described as a set of “best practices” for ISPs on how to handle copyright infringements. Bright House mimicked this with its own set of escalating “alerts” which, like the original scheme, didn’t lead to permanent disconnections.

 

Under Bright House’s program, subscribers’ Internet connections were quarantined after repeated alerts, and only reenabled after the subscriber spoke to its abuse team. That doesn’t rhyme with the allegation that it ‘fostered’ infringements, the ISP notes.

 

“The record contains no evidence that Bright House supplied Internet service to subscribers or otherwise handled infringement notices with the object of fostering copyright infringement,” Bright House informs the court.

 

“To the contrary, Bright House adopted and employed a robust anti-infringement program to ensure that subscribers were informed of infringement accusations by rightsholders and educated about copyright infringement on the Internet—all in an effort to discourage and prevent future infringement.”

Piracy Notices Never Came Through

If the court chooses not to dismiss the copyright claims, the ISP would like the claims to be drastically limited. The company explains that many of the copyright notices sent by the rightsholders should be excluded because they were sent to the wrong email address.

 

“51,895 of the 109,458 notices Plaintiffs claim they sent to Bright House were actually sent to Time Warner Cable. Of those notices, a small number — 67 notices — appear to have been forwarded by Time Warner Cable to Bright House.

 

“Bright House could not have had knowledge of alleged infringements identified in notices it did not receive,” the company adds.

 

In addition, the ISP also notes that the music companies are not entitled to request damages for a large part of the works included in the lawsuit. Apparently, the companies seek damages for both the sound recording and composition of the same works, which isn’t allowed.

Music Companies Have Demands Too

The music companies, including Universal Music and Warner Records, also request a partial summary judgment. They are taking the opposite stance by asking the court to rule that the ISP is liable for the pirating activities of its subscribers.

 

While Bright House (BHN) may have had its own anti-piracy scheme, the law requires it to terminate the accounts of repeat infringers in appropriate circumstances. That didn’t happen, the plaintiffs say.

 

“BHN easily could have avoided all liability for copyright infringement had it simply complied with the DMCA safe harbor that Congress enacted to protect ISPs. It merely needed to adopt and reasonably implement a repeat infringer policy that provided for termination in appropriate circumstances, and communicate that policy to its subscribers.

 

“For years, BHN chose not to even look at the overwhelming majority of infringement notices it received — willfully blinding itself to the bulk of infringement occurring on its network,” the companies add.

 

The record labels also ask the court to confirm that they own all the copyrights at stake and that the files that Bright House subscribers shared were indeed pirated copies.

 

Both of the motions reported here were already submitted under seal. They were made public this week, together with a slew of other documents. It is now up to the Florida federal court to decide on the matter. When that is done, the case will move to trial.

 

More than ten years after the shutdown of Megaupload, there have been some major developments relating to the criminal prosecution recently.

 

Two of the three remaining defendants, Mathias Ortmann and Bram van der Kolk, signed an agreement with authorities to be charged in New Zealand instead of the United States.

 

Megaupload founder Kim Dotcom wasn’t offered such a deal and is still wanted for extradition by the US Department of Justice. The U.S. prosecution has been on hold for years but there’s some movement on that front as well now.

Judge O’Grady is Replaced

Last month we already reported that Virginia District Court Judge Liam O’Grady was replaced in the civil lawsuits filed by the RIAA and MPA against the site. At the time, Megaupload’s team suggested that it would make sense to do the same in the criminal case.

 

“Although both civil copyright actions are stayed at this time, the rulings in one action may affect or control issues in the other when active litigation resumes; therefore, the Court has prudently assigned them a single District Judge to preside over both,” Megaupload’s lawyers wrote.

 

The request was honored this week with Judge O’Grady being replaced by District Judge Anthony J. Trenga. The court docket doesn’t reveal the reason for this reassignment but, according to Dotcom, it came at the request of his legal team.

Disney Stake

Megaupload’s founder says that Judge O’Grady previously worked at Disney and still has stock in the entertainment giant, suggesting that there could be a financial conflict of interest.

 

“Judge Liam O’Grady was removed from my criminal copyright case in the US which was initiated by the Hollywood studios, including Disney. We complained to the Court because we discovered that our Judge used to work for Disney and owned Disney stock while active on my cases.

 

“Judge O’Grady never disclosed his conflict of interest. He destroyed Megaupload without any hearing,” Dotcom says.

 

Disney Enterprises is a plaintiff in the movie industry’s civil case against Megaupload and is also listed as one of the victims in the criminal matter. This means that if the judge has a stake in the company, it could cause issues as the cases progress.

Financial Ties are Not Allowed

In the United States, federal judges are not allowed to preside over cases in which they have a financial interest. This was also highlighted by the WSJ, which revealed last year that Judge O’Grady handled more than 60 cases that were mentioned on his financial disclosure forms.

 

The court didn’t clarify whether Megaupload’s complaints played a role in the decision to replace the judge but since it happened soon after the Disney stake was pointed out, it’s a plausible explanation.

 

The Megaupload case is not the only major copyright lawsuit Judge O’Grady has been involved in. He also presided over the legal battle between the music industry and Cox Communications, which resulted in a billion-dollar judgment against the ISP. Disney was not involved in that case.

New Judge With a History

Going forward, Megaupload’s lawsuits will all be handled by District Judge Anthony Trenga, who previously presided over the case against the popular pirate site NinjaVideo. In that case, several people were convicted of criminal copyright infringement, including the site’s founder Hana Beshara who was sentenced to 22 months in prison.

 

Intriguingly, Megaupload also played a role in the NinjaVideo prosecution, and vice versa.

 

In 2010, the FBI served Dotcom’s platform with a search warrant targeting files uploaded by NinjaVideo’s staff. Megaupload kept the file on its servers, assuming that it was supposed to do so. This decision later backfired as the NinjaVideo files were used as evidence against Megaupload in their criminal prosecution.

 

As part of its endless quest to disrupt the unauthorized distribution of copyrighted content, in March 2021 Dutch anti-piracy group BREIN said it had successfully targeted yet another pirate IPTV seller.

 

The subscriptions sold by the man provided access to more than 6,000 TV channels and in excess of 10,000 movies and TV shows via a VOD service. These packages typically cost just a fraction of the price associated with similar legal services while offering considerably more choice. It’s not hard to see why consumers are attracted to them, or why rightsholders want to shut them down.

 

With BREIN on the lookout for piracy, the IPTV seller closed his vendor accounts on local online markets Marktplaats.nl and 2dehands.be. However, the anti-piracy group believed that his sales were continuing regardless, so they decided to track him down.

 

“He pretended to be Belgian, but turned out to live in the Netherlands. He has signed a statement of abstention with a penalty clause for future infringements,” BREIN said at the time.

New Pirate IPTV Sales Breached Settlement Agreement

After an additional undisclosed amount was paid to cover BREIN’s costs, the matter should’ve ended there. But BREIN says that in subsequent investigations a number of adverts and websites showed traces of the same perpetrator, leading to the conclusion that the man was in breach of the settlement agreement.

 

In response, BREIN obtained permission from the court to target the man’s home, from where 25,000 euros ($26,469) in cash and cryptocurrencies were seized. That amount has now been forfeited and a revised settlement agreement reached, but with harsher terms – in BREIN’s favor.

€5,000 Penalty For Any New Subscriptions

After canceling all current subscriptions and shutting down his sales operation, any new appearances in the market will prove costly for the former seller, the anti-piracy group says.

 

“A new settlement agreement has been concluded with him in which he can expect a fine of 5,000 euros per IPTV package or 50,000 euros per day if he has not learned his lesson by now,” BREIN notes.

 

“Incidentally, in such a case, BREIN will also file a report for criminal prosecution.”

 

After BREIN claimed victory in the landmark ‘Filmspeler‘ (Movie Player) case in 2017, sellers of piracy-configured set-top boxes (and associated IPTV subscriptions) became a key target for the anti-piracy group.

 

According to the latest figures, BREIN has removed 4,752 advertisements for illegal IPTV subscriptions from sales platforms and has tracked down and stopped 53 illegal providers. In addition, BREIN has closed 330 websites that were used to sell illegal IPTV subscriptions.

 

“Settlements with illegal sellers usually amount to tens of thousands of euros,” the anti-piracy group concludes.

 

In 2019, the makers of the superhero film “Hellboy” (HB Productions) filed a lawsuit against torrent site MKVCage at a Hawaii federal court.

 

The movie company accused the site and its operator of promoting and distributing pirated copies of the movie, demanding to put an end to the activity.

 

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

Hellboy Demanded Piracy Damages

The company argued that the torrent site caused irreparable damage and demanded compensation from the alleged brains behind the operation, a Pakistani man named Muhammad Faizan.

 

Since Faizan didn’t show up in court, the movie company’s attorney Kerry Culpepper requested a default judgment. First, he demanded $270,000 but after the court raised questions about the calculation, this figure was lowered to $150,000. However, the amount wasn’t the only problem.

 

The Hawaii federal court also questioned whether the defendant, who didn’t put up a defense, could actually be sued in America. In 2020, the court concluded that a US court doesn’t have jurisdiction over the Pakistani defendant.

 

According to the court, the filmmakers failed to show that MKVCage’s activities were expressly aimed at the United States. In addition, the defendant’s contacts with the US were insufficient to invoke nationwide jurisdiction.

Back to the Drawing Board

The ruling was a setback for the rightsholder and its attorney. However, the case wasn’t over just yet, as the court left room to file an amended complaint, to fix the shortcomings in its allegations.

 

The filmmakers seized this opportunity and added more details to their claim, arguing that U.S. courts do have personal jurisdiction over the defendant.

 

Initially, this renewed effort appeared to fail. In January, Magistrate Judge Mansfield issued a report and recommendations, concluding that the provided evidence is still insufficient. However, US District Court Judge Seabright sees things differently.

 

In a detailed 45-page order, Judge Seabright highlights the novelty and complexity of these types of jurisdictional questions. In this case, the defendant allegedly operated a torrent site from another continent, while also uploading torrents to third-party sites.

 

“Defendant was not physically present in the United States while committing the alleged actions—instead, Defendant sat behind his keyboard in Gujranwala, Pakistan,” Judge Seabright writes.

Virtual vs. Physical Presence

To be held liable, the filmmakers would have to show that the man has a substantial connection to the United States. In legal terms, this is referred to as the purposeful-availment and purposeful-direction tests.

 

Judge Seabright recognizes that courts can have different takes on this matter. Some require an actual physical presence, while others also count virtual access, through a web server for example.

 

The Magistrate Judge evaluated this case based on the more strict “physical” requirement but Judge Seabright disagrees.

 

“Tortious acts that once required international travel, and later the somewhat faster process of international mail, can now be accomplished in a matter of seconds with a few keystrokes and mouse clicks.”

 

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

 

“[T]he court concludes that when a defendant uses the Internet to commit a tort confined to the digital realm, the defendant’s tortious actions occur at the location of the computer (e.g., web server) that the defendant manipulates to commit the tort,” Judge Seabright writes.

No Direct Copyright Infiringement

Now that the operator of MKVCage can be held liable, it doesn’t automatically mean that he is. With regard to direct copyright infringement, Judge Seabright doesn’t believe that the allegations are plausible.

 

The filmmakers accuse the man of ripping the “Hellboy” movie, for example, but it’s not clear if US servers were used to do that. In addition, the Judge doesn’t find it plausible that the defendant uploaded actual copies of the movie to torrent sites.

 

The latter shows that the Judge has a good understanding of how BitTorrent works. The ‘torrent’ files that are shared online are just metadata, and not actual copies of the movies.

 

“It would make little sense for a ‘torrent website’ to host and provide downloads for the larger movie files. That would defeat the purpose of a torrent network’s peer-to-peer architecture, which achieves greater reliability than a traditional client-server architecture in transferring large files because it does not suffer from bottleneck issues.

 

“For those reasons, the court finds implausible Plaintiff’s allegation that Defendant uploaded movie files onto torrent websites in the United States,” Judge Seabright writes.

 

Adding to this, the ruling includes another interesting legal observation. According to the Judge, uploading torrent files that point to pirated movies is not seen as direct copyright infringement.

 

“(i)f Defendant uploaded onto the torrent sites torrent files associated with the Hellboy movie, then there is no reproduction infringement, because the torrent files do not contain copyrighted material”

Contributory Copyright Infringement

The court concluded that direct infringement is implausible, but the same is not true for contributory copyright infringement. The torrent files themselves are not infringing, but they do allow others to pirate the film.

 

As such, the MKVCage operator can be held liable for this offense, particularly because the website used servers that were based in the United States.

 

“Defendant hosted his mkvcage websites on servers leased to him in the United States. Accordingly, Defendant’s publishing and promoting of infringement-enabling torrent files, and his general facilitating of connections between direct infringers, occurred in the United States,” Judge Seabright concludes.

 

After nearly three years, this means that the filmmakers can move ahead with their request for a default judgment. This can potentially result in hundreds of thousands of dollars in damages for MVKCage’s operator.

 

Perhaps just as importantly, the copyright holders have a favorable verdict that they can use in similar cases that may come up in the future.

 

—

 

A copy of US District Court Judge Seabright’s order is available here (pdf)

 

Eary 2022, after more than a decade of legal uncertainty following the Megaupload raids in 2012, Kim Dotcom and co-defendants Mattias Ortmann and Bram van der Kolk were still fighting to prevent their extradition to the United States.

 

With copyright infringement, racketeering and money laundering charges looming overseas, earlier this month Ortmann and van der Kolk admitted that the extradition case had “taken a heavy toll” on their lives. So, in the interests of moving on, a deal had been struck with the authorities.

 

Rather than risk a loss in their extradition battle and the prospect of standing before a US criminal court far from home, the former Megaupload executives reached an agreement with the New Zealand Government and the United States to be charged in New Zealand for “similar offenses”. Dotcom still faces extradition.

Court Appearance Delayed, Case Transferred to High Court

The two men were due to appear at the Auckland District Court today but the case was transferred to the High Court at Auckland instead. The first hearing there is scheduled for June, at which time the detailed charges should become public knowledge.

 

In the meantime, local journalist David Fisher reports that charge sheets filed with the District Court offer an early insight into what Ortmann and van der Kolk have agreed to face, in order to put their ten-year ordeal behind them.

Organized Crime-Related Charges

According to the documents, 50-year-old Ortmann and 39-year-old van der Kolk will stand accused of conspiring as part of an “organized criminal group” to unlawfully profit from copyright-infringing material. That “criminal group” will include Kim Dotcom but as things stand, he is not being charged in New Zealand.

 

The alleged offenses are said to have begun on January 1, 2005, several months earlier than the September 2005 date listed in the United States’s 2012 superseding indictment (pdf). Their alleged criminality is said to have ended on January 20, 2012, a date that marks the shutdown of Megaupload and the arrest of the men.

Pair Could Face Up To 10 Years in Prison

The detailed charges have not yet been made public but the phrase “organized criminal group” is referenced in Section 98A of the Crimes Act 1961. Such a group consists of three or more people with a shared objective or objectives. Since Ortmann and van der Kolk are not accused of any type of violence, the following objective(s) appear to apply:

 

(a) obtaining material benefits from the commission of offenses that are punishable by imprisonment for a term of 4 years or more; or
(b) obtaining material benefits from conduct outside New Zealand that, if it occurred in New Zealand, would constitute the commission of offences that are punishable by imprisonment for a term of 4 years or more

 

David Fisher reports that there are four charges for both of the men, each punishable by a maximum of 10 years in prison. Participation in an “organized criminal group”, consisting of three or more people with shared objectives, is an offense punishable by a prison term “not exceeding 10 years” in New Zealand, so that may well tie in.

 

When an offender is convicted of multiple similar and connected offenses in New Zealand, guidance in the Sentencing Act indicates that sentences are usually served concurrently. In any event, any sentences handed down locally are likely to be preferable to those available in the United States.

Defendants’ Plea Still Not Officially Confirmed

Kim Dotcom believes that his former colleagues will “admit liability” to put their ordeal behind them but that has not been confirmed publicly. However, the existence of an agreement with the authorities does strongly suggest that, especially since contested cases under Section 98A have a very low conviction rate.

 

According to a 2015 paper published by the Faculty of Law at Victoria University of Wellington (pdf), since it was conceived in 1998, an average of just 21% of offenders charged under Section 98A were actually convicted.

 

Kim Dotcom is yet to comment on today’s developments but his attacks on President Biden, who he directly blames for Megaupload’s demise, continue.

 

In response to a two-option Twitter poll this week, asking who people would prefer to be President of the United States, Dotcom’s followers overwhelmingly chose Vladimir Putin (75%) with Biden trailing behind with just a quarter of the votes.

 

While veteran politician Biden has bigger issues on his desk right now, including the state of the economy, Dotcom says he wants to undermine that too, at least according to a post on his new Telegram channel.

 

“If we can bring enough people together I have a plan how to do this,” he said.

 

Most suppliers, sellers and resellers in the pirate IPTV space face an interesting conundrum.

 

On one hand, being unsuccessful dramatically reduces the odds of legal trouble but isn’t conducive to getting rich. On the other, a good product coupled with brand awareness can lead to commercial success, at least until that profile attracts the wrong type of attention.

 

As one of the most recognizable IPTV brands around, PrimeStreams appears to fall into the latter category. In late 2019, the IPTV provider found itself being extorted by a hacker who claimed to have obtained the details of around 121,000 of its subscribers.

 

To PrimeStreams’ credit, customers were immediately informed and somehow a total disaster scenario was avoided. Now, however, PrimeStreams’ operators have new adversaries to deal with, ones that will be demanding a lot more than ‘just’ $70K in bitcoin.

PrimeStreams Sued in the United States

In a lawsuit filed in a Kentucky court this month, US broadcaster DISH Network and streaming platform Sling TV accuse PrimeStreams of infringing their rights on a grand scale via their internet ‘rebroadcasting’ operation.

 

The complaint names Daniel Scroggins, Steven Daugherty, and corporate entity Dscroggs Investments LLC as defendants, citing large-scale breaches of the Federal Communications Act and the anti-circumvention provisions of the DMCA.

 

“Defendants provide an illicit streaming service known as PrimeStreams that allows users to access, without authorization, Plaintiffs’ internet communications of television programming that were acquired by circumventing security measures implemented by Plaintiffs,” the complaint reads.

 

DISH and Sling claim that Scroggins, a resident of Burlington, Kentucky, and Daugherty, a resident of Havana, Illinois, are the co-owners of PrimeStreams. It’s alleged that they used Dscroggs Investments LLC to process payments related to the PrimeStreams IPTV service.

The PrimeStreams Operation

The plaintiffs allege that Scroggins registered several PrimeStreams domains including primestreams.tv, primestreamstv.com, and primehosting.one. The service was marketed and sold to users via these domains and through social media platforms.

 

“PrimeStreams was advertised as a subscription-based streaming service providing over 3,000 channels, movies on demand, pay-per-view events, and sports programming, among other content, all for a low monthly fee,” the plaintiffs note, adding that at least some of the content offered had been illegally obtained from their subscription services.

 

“The Programming retransmitted on the PrimeStreams service was received from Plaintiffs’ internet communications. Identifiers unique to Plaintiffs’ internet communications were detected when viewing the Programming on the PrimeStreams service.”

Circumventing DRM to Obtain Content

DISH and Sling say their internet transmissions are secured using Digital Rights Management (DRM) technologies including Google’s Widevine DRM, Apple’s FairPlay DRM, and Microsoft’s PlayReady DRM. Utilizing key-based encryption and decryption processes, these systems are deployed to ensure that only authorized subscribers can access programming and to prevent retransmission by unauthorized parties.

 

The complaint alleges that the defendants (or someone acting in concert with them) circumvented these protections using “either a differential fault analysis attack where faults are injected into the DRM to disrupt its operation and create pathways to extract the keys necessary to decrypt the Programming, or a man-in-the-middle attack whereby customized software is used to bypass the DRM by intercepting the Programming passing from the DRM’s decryption library to the user’s viewing platform.”

 

The plaintiffs claim that the illegally obtained content was subsequently made available via the PrimeStreams service on a subscription basis, in breach of their rights.

Direct Sales and Resellers

According to the lawsuit, PrimeStreams subscriptions were sold via the platform’s domains for roughly $10 per month, with longer periods and additional connections for multiple viewing devices sold at varying prices.

 

In addition, PrimeStreams offered so-called ‘reseller credits’ to authorized resellers of the PrimeStreams service who service their own customers. Prices per credit (one credit for one month of access) varied between $2.50 and $4.00, depending on quantity. Payments for these reseller credits were made by wire transfer and checks to Dscroggs Investments LLC, with the latter being physically mailed to Daugherty.

 

Some authorized resellers of PrimeStreams allegedly sold the service under their own brands, including Firesticksteve or FSS, Bing TV, and Better Than Cable TV.

PrimeStreams Ignored Warning

The complaint states that around September 24, 2021, the defendants were notified that their service violates federal laws and told to cease and desist. It appears that the warning was either ignored or rejected, and that’s what led to this lawsuit. The decision could prove costly.

 

In addition to a permanent injunction to shut PrimeStreams down and prevent it from reappearing, the plaintiffs are requesting an order that will allow them to “take possession of and destroy” any item or technology that was used to violate the Federal Communications Act or the anti-circumvention provisions of the DMCA.

 

The order should also include a transfer of all PrimeStreams domains to the plaintiffs along with “all hard copy and electronic records regarding persons involved in the PrimeStreams service.”

 

One of the domains sought by the plaintiffs currently shows a message dated May 13, two days after the lawsuit was filed.

 

Pinpointing an exact damages figure is impossible at this stage given the available information but when combining the alleged breaches of the FCA and DMCA, it could easily be tens of millions of dollars.

 

Just recently, DISH asked a court to sign off an award of more than half a billion dollars for what appeared to be a lower level of infringement.

 

DISH and Sling’s complaint against PrimeStreams can be found here (pdf)

 

Following the example set by United States, the EU started publishing its very own piracy watchlist in 2018.

 

The biannual ‘Counterfeit and Piracy Watch List’ is put together by the European Commission. As in the US, it is based on submissions from copyright holder groups that report on problematic sites and services.

 

Rightsholders are happy to contribute. In addition to pointing out sites and services that blatantly engage in copyright-infringing activities, they also use the opportunity to request broader cooperation from third-party services. In some cases, this leads to concrete suggestions that go beyond what the law requires.

Listing Anti-Piracy Demands

For example, in their latest submission, music industry group IFPI suggested that third-party services should implement robust “know your customer” policies. This also applies to the popular CDN and proxy service Cloudflare.

 

“CloudFlare should exercise due diligence in confirming who its customers are and establishing their proposed and actual activities,” IFPI wrote.

 

Other rightsholder groups made similar suggestions. For example, the movie industry’s MPA stressed that online intermediaries such as CDNs, domain registrars and hosting companies, should stop offering their services to customers who are not properly verified.

 

These are understandable requests from rightsholders, who can use every bit of information to track down the operators of problematic sites. However, these verification demands are not cemented in EU legislation, so services are not legally required to vet all customers.

Cloudflare Asks the EU to Focus on ‘Illegal’ Acts

That last point was also highlighted by Cloudflare, which sent a rebuttal to the EU commission after it was flagged by several rightsholders as a potential candidate for the piracy watchlist.

 

The San Francisco company has millions of customers all over the world. These include governments and copyright holders but also many smaller sites that take advantage of the platform’s CDN and security features.

 

In its rebuttal, Cloudflare supports the watchlist initiative. However, it urges the EU to keep the listed sites and services limited to those that actually appear to act against the law, not those who fail to comply with all copyright holders’ wishes.

 

“The Commission should not issue a report – even an informal one – that is simply a mechanism for particular stakeholders to air their grievances that entities are not taking particular voluntary action to meet their concerns or to advocate for new policies.”

 

Listing companies such as Cloudflare solely based on complaints from copyright holders could give the impression that the EU supports these allegations, the company argues. That could potentially impact ongoing legal discussions and policy debates.

 

“Our view is that the Commission’s staff document and Watch List should be limited to Commission-verified allegations of illegal behaviour, based on principled and fair legal standards,” Cloudflare notes.

‘Verification is an Indirect Security Threat’

In addition to this broader criticism, the company also argues that some of the demands from rightsholders could prove to be problematic. For example, an extensive verification process would involve significant costs which could mean that the company is unable to maintain its free tier.

 

As a result, smaller sites may lose the benefit of the free protection that’s offered, because they can’t afford to pay for the service.

 

“Altering this online sign up process, which is consistent with existing law, to require manual review of new accounts would make it impossible to offer these free services at scale, degrading the Internet experience for all users and making much of the web more vulnerable to cyber attack,” Cloudflare writes.

 

The CDN provider also stresses that it already goes beyond what the law requires to help rightsholders. For example, it works with “trusted notifiers” who can request the origin IP addresses of problematic sites, when these are flagged.

 

These and other voluntary measures were previously highlighted in a separate submission to the US Government as well. According to Cloudflare, the company is showing its good will while operating in line with all applicable laws.

 

Several of the rightsholder groups complaining about Cloudflare are also “trusted notifiers”. While this indeed helps to find out where sites and services are hosted, they believe it’s not enough.

 

IFPI, for example, mentions that Cloudflare apparently does very little to address customers for which it receives a large volume of complaints.

 

“[N]otices or requests for information under the ‘trusted flagger’ program should result in meaningful action vis-à-vis the customer. The program needs to feed into a repeat infringer policy, yet in the case of CloudFlare, there is no evidence that it does.”

 

It is clear that copyright holders and Cloudflare have different takes on how to tackle the piracy problem. Whether the EU believes that this warrants a mention on the piracy watchlist has yet to be seen.

 

Cloudflare was mentioned in the EU’s first watchlist in 2018, but was taken off the next version. If it’s up to the San Francisco CDN provider, it will stay off the list in future.

 

“The Watch List is not the appropriate place for advocacy on new policies as to what online service providers should collect on their users,” the company writes.

 

There are many options for people to enjoy movies and TV shows legally but millions still choose to pirate content instead.

 

Up until a decade ago, this piracy landscape was dominated by torrent sites and direct download portals. Today, the vast majority of pirates use streaming sites.

 

The entertainment industries have swiftly adapted to this shift. At the moment, most anti-piracy initiatives are streaming-related, spearheaded by the Alliance of Creativity and Entertainment (ACE). These efforts have resulted in the shutdown of hundreds of sites already.

 

Despite the successes, many challenges remain as well. In a recent appearance on Reuters, MPA’s Senior Executive Vice President Karyn Temple points out that pirates can be pretty creative too. Especially when it comes to evading law enforcement.

 

“The illegal pirates that we deal with and have to go after are almost as creative, in some sense, as our own creators,” Temple says. “They try to take advantage of new technology and new tools as soon as they are developed. We have to continually develop tools to stay out ahead.”

 

The MPA and ACE have learned that DMCA subpoenas targeted at third-party services such as Cloudflare can be quite effective. While most site operators use fake information to sign up, some of the information is actionable.

Going After Streaming Pirates Isn’t Straightforward

It’s clear that rightsholders have the tools and legal backing to go after operators of streaming sites but going after the end-users of these sites is a challenge, for a variety of reasons.

 

The first and most obvious problem is that rightsholders have no easy way to find out who the consumers of pirated streams are. Unlike BitTorrent transfers, the IP addresses of people who watch centrally hosted streams are not publicly available, so can’t be easily tracked.

 

In theory, the site operators could monitor the people who use their platforms to watch videos but getting site owners to hand over user data would generally only happen if a site or service is compromised. That’s not impossible, but far from straightforward.

 

There’s another more fundamental problem as well. Even if rightsholders could obtain the IP address or even a name of an alleged streaming pirate, they would have to prove that the person in question is actually engaged in copyright infringement. That’s easier said than done.

Not Clear Whether Streaming is Infringing

This is also what James Gibson, Professor of Law at Richmond University, hinted at. Unlike downloading pirated movies, consuming pirated streams isn’t a clear violation of copyright law.

 

“It’s not at all clear that if you merely consume pirated streaming content that you’re actually engaging in copyright infringement,” Gibson says.

 

As a result, rightsholders may not be eager to file complaints against consumers who stream pirated content. After all, if they lose one of these cases, it may empower streaming pirates instead of deterring them, which could only make the problem worse.

 

“So it could be that the media companies do not want to set a bad precedent by claiming that it’s an infringement and then finding out that it’s not. That might embolden end users rather than make them more attentive to the legal aspects of streaming,” Gibson notes.

 

The fact that downloading and streaming are handled differently under US copyright law boils down to the definition of copyright infringement. These infringements always require the distribution, reproduction, or public performance of copyrighted content.

 

When someone downloads a pirated file a full and lasting copy is created, which fits the definition of reproduction. However, when someone watches a pirated stream this is typically not the case.

No Lasting Copy

Speaking with TorrentFreak, Professor Gibson explains the difference in a clear and concise manner.

 

“In streaming, there’s no lasting copy made; the content disappears as soon as the stream ends. That means the copyright owner’s exclusive control over reproduction and distribution rights is irrelevant, because reproduction and distribution require the creation of a lasting copy.

 

“Therefore, the only liability hook is the copyright owner’s exclusive control over public performance of the content. The piracy platforms are definitely engaging in public performance by providing the streams, but the end user is simply watching the streams, not performing them — let alone doing so publicly,” Gibson adds.

 

Whether streaming can or can’t be classified as copyright infringement is ultimately up to the courts to decide. It is definitely less straightforward than downloading, but it might not be impossible. For now, however, Gibson is not aware of any cases where this has been put to the test.

Site Operators Are Infringers

For the operators of pirate streaming sites, the situation is quite different. They offer pirated content to a broader audience, which is a “public performance” and can therefore be seen as copyright infringement.

 

Historically, these “public performance” infringements were seen as misdemeanors under criminal law but, with the Protecting Lawful Streaming Act, performances were updated to a felony, putting them on par with the penalties available against operators of traditional download and torrent sites.

 

With all the hurdles involved, it’s not likely that the major Hollywood studios will crack down on users of pirate streaming sites. But that’s not really a surprise, as these companies are not involved in lawsuits against individual downloaders either.

 

The lawsuits against BitTorrent users that are currently being filed are all coming from adult content producers or smaller independent film companies, in the US at least.

 

Finally, we would like to stress that this article is obviously not meant to encourage or justify the use of pirate streaming sites. However, it is worth highlighting that not all forms of piracy are treated equally under current copyright laws.

 

Long before the advent of legitimate online video streaming services, torrent sites and similar platforms allowed users to download and keep copies of movies and TV shows.

 

Building a local video library from unlicensed sources has its attractions. Even if we leave cost out of the equation, these copies come in convenient formats that will play on any device, play over a network, and can be organized to create a Netflix-type experience using legal tools such as Plex. They can also be transported from location to location and even shared among friends.

 

Services like Netflix have sought to mimic some of these benefits by allowing content to be played on most devices and even downloaded for offline viewing. However, the key benefits enjoyed by pirates, such as maintaining permanent access to copiable DRM-free files, represent a threat to the subscription streaming model.

People Want to Download and Keep Movies & TV Shows

It is unlikely that these features will appear on a licensed mainstream service but that doesn’t stop subscribers from desiring them. Every week questions are posted on social media asking how videos can be downloaded from Netflix, for example, and the answers are usually the same: It is possible, there are quality issues, and people are better off grabbing a pirate copy ripped by ‘professionals’.

 

Clearly motivated by this demand, a piece of software called StreamFab has been promoted for a while now, with claims that it has the ability to download and create DRM-free 1080p MP4 files from services including Netflix, Amazon Prime, HBO (720p is only available for new content due to a DRM update), Disney+, Hulu, Paramount Plus, U-Next, Rakuten TV, and even YouTube.

 

It’s available from the Microsoft Store in trial format but gets pretty costly if users want to cover all possible services. StreamFab All-In-One, for example, weighs in at a hefty $259.99 for a ‘lifetime’ license.

 

Whether it always performs as advertised is up for debate but there are videos showing it in action on Amazon and other platforms quickly downloading files, rather than attempting to record the screen.

 

Aside from living up to the significant functional claims in its marketing, the big questions revolve around legality. Is it permissible to download and keep copies of movies and TV shows if you’ve paid for a legal subscription? Do the streaming services allow users to make copies and is this type of software legal?

Subscriber Agreements

Before tackling more serious matters, a quick look at legal streaming services’ subscriber agreements provides a wealth of information. Netflix, for example, is extremely clear that using tools such as StreamFab to make copies is expressly forbidden.

 

4.6. You agree not to archive, reproduce, distribute, modify, display, perform, publish, license, create derivative works from, offer for sale, or use (except as explicitly authorized in these Terms of Use) content and information contained on or obtained from or through the Netflix service. You also agree not to: circumvent, remove, alter, deactivate, degrade or thwart any of the content protections in the Netflix service;

 

Disney’s subscriber agreement is equally strict. For reasons that aren’t exactly clear, the Disney+ website also denies visitors the ability to copy and paste the text of the agreement. Still, here’s the relevant section.

 

You agree that as a condition of your license, you will not: i. circumvent or disable any content protection system or digital rights management technology used in connection with the Disney Product; ii. copy the Disney Product (except as expressly permitted by us); iii. rebroadcast, transmit or perform the Disney Product;

 

There’s no real need to check out the agreements on other platforms since a basic rule tends to apply.

 

If a service does not give users the ability to download and store DRM-free copies of videos as standard, the terms and conditions are guaranteed to forbid these actions. Anyone who breaches their legal agreement with a platform is, at a minimum, in breach of relevant contract law. We’ve never heard of a case where anyone has been taken to court but legal documents are named as such for a reason.

Copyright Law and DRM

Due to geographical issues, there is no perfect one-size-fits-all advice when it comes to copying content for personal use. Even when such copying is allowed there tend to be restrictions, such as owning an original copy and making a backup, or conditional on the payment of a blank media levy. That said, making a copy of anything from an illegal copy or an unlicensed source is generally forbidden.

 

In the case of streaming services like Netflix, they are extremely clear that the license granted to the user outlaws any kind of copying beyond that expressly permitted in the subscriber agreement. Any copying outside that generates an unlicensed copy which is obviously a copyright issue. All of this, however, is already jumping the gun.

 

All major streaming services are protected by Digital Rights Management (DRM) tools that attempt to enforce the restrictions laid out in the subscriber agreement, i.e no circumvention of content protection measures and no unlicensed copying. This means that the use of software such as StreamFab is effectively outlawed by a legally binding document and also by copyright law.

 

Rules in the United States are particularly clear. The Digital Millennium Copyright Act (DMCA) has provisions that make it unlawful to circumvent technological measures used to prevent unauthorized access to copyrighted works, including movies and TV shows.

 

This covers the decryption of an encrypted work or any other technique to “bypass, remove, deactivate, or impair a technological measure” without the authority of the copyright owner. This applies to all of the streaming services mentioned above.

 

The DMCA also makes it unlawful to manufacture, import, provide or otherwise traffic in any technology, product, service, device, component, or part thereof, that is “primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner.”

 

Given the clarity, there’s no real need to highlight why a tool designed to circumvent DRM and make unlicensed copies likely falls foul of the above, even given the existence of a lengthy disclaimer.

StreamFab is a Progression of DVDFab

StreamFab claims to be a sub-brand of DVDFab, a popular piece of software used to copy DVD and Blu-ray discs. Following a lawsuit filed by AACS, the decryption licensing group founded by movie studios and technology partners including Warner Bros, Disney, Microsoft and Intel, in 2014 a New York court ordered the seizure of DVDFab’s domains, bank funds and social media accounts.

 

The order was handed down following claims by AACS that by providing tools to bypass disc encryption, DVDFab violated the DMCA’s anti-circumvention provisions. In 2016, AACS told the Court that DVDFab had blatantly ignored its injunction and was continuing to conduct business as usual.

StreamFab’s ‘Anti-Piracy’ Measures

Finally, it should go without saying that uploading any copies of movies or TV shows to the internet carries risks but in the case of StreamFab users, things get even more complicated. Buried inside a lengthy statement on the StreamFab site is a warning that content ripped from services such as Netflix can be traced right back to the user – not by the streaming service but by StreamFab itself.

 

“Please understand that whoever wants the same benefits, whoever wants to do the same cool high-resolution TV episodes as yourself, whether a friend, a coworker or someone else on the Internet, they all need to get their own streaming platform accounts and downloader license,” it reads.

 

“Therefore we took one step further to help anyone who’s willing to share content to think harder before deciding to do so. We’ve included the customer/account id in the metadata of the files extracted from streaming platforms. For our majority of users, that understand that the files are strictly for personal use, that piece of info has no importance since the files never leave their own personal storages.”