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  1. A class-action lawsuit, filed against YouTube by Grammy award-winning musician Maria Schneider and Pirate Monitor Ltd, has taken an unexpected turn. According to YouTube, Pirate Monitor first used bogus accounts to upload its own videos. It then filed DMCA notices to have the same content removed in a ploy to gain fraudulent access to Content ID management tools. Early July, Grammy award-winning musician Maria Schneider teamed up with Virgin Islands-based Pirate Monitor Ltd in a class action lawsuit targeting YouTube. Filed in a California court, the complaint centered on YouTube’s alleged copyright failures, including the company’s refusal to allow “ordinary creators” to have access to its copyright management tools known as Content ID. “Denied Any Meaningful Opportunity” to Prevent Infringement Painting YouTube as a platform designed from the ground up to attract and monetize piracy, the action contained a barrage of additional accusations, including that the mere existence of Content ID, through which creators can be compensated for otherwise infringing uploads, means that most infringement is shielded from YouTube’s repeat infringer policy. Schneider informed the court that a number of her songs had been posted to YouTube without her permission, noting that she had twice been refused access to Content ID and the “automatic and preemptive blocking” mechanisms that are available to larger rightsholders. For its part, Pirate Monitor Ltd claimed that its content, including the movie Immigrants – Jóska menni Amerika, was illegally uploaded to YouTube hundreds of times. The company said that while YouTube responded to takedown notices, they often took too long to process. Access to YouTube’s Content ID system was denied, Pirate Monitor added. YouTube Responds to Complaint, Files Counterclaims Much like the beginning of the complaint itself, YouTube and owner Google’s response begins in familiar fashion. The company denies that it encourages infringement, instead noting that it goes “far above and beyond” its legal obligations when assisting copyright holders to protect their rights, including by investing more than $100m in Content ID. Of course, this complaint largely revolves around YouTube denying the plaintiffs’ access to Content ID but to that allegation, the company has a set of simple and apparently devastating response points. Firstly, Pirate Monitor Ltd cannot be trusted since it has already engaged in fraudulent behavior in respect of Content ID. As for Schneider, not only is she suing YouTube over copyrighted music that she and her agents have already granted YouTube a license to use, her own agent has also used Content ID to generate revenue from those works on her behalf. Pirate Monitor Uploaded its Own Content Using Bogus Accounts While the claim that Schneider licensed her content to YouTube and made money through Content ID is surprising, that pales into insignificance when compared to the allegations against Pirate Monitor Ltd. During the fall of 2019, YouTube says that Pirate Monitor through its authorized agents created a series of accounts on YouTube using bogus account registration information to hide the relationship between the account creators and Pirate Monitor. These accounts were subsequently used to upload “hundreds of videos” to YouTube. These included clips from exactly the same works that Pirate Monitor accuses YouTube of infringing in its complaint – the films Csak szex és más semi and Zimmer Feri. “Each time these videos were uploaded, Pirate Monitor was representing and warranting that the video did not infringe anyone’s copyrights, and it expressly granted YouTube a license to display, reproduce, and otherwise use the videos in connection with the service. Pirate Monitor also represented that it owned or had the rights to upload and license the material contained in the videos,” YouTube’s answer reads. Shortly after, YouTube notes, Pirate Monitor followed up by sending “hundreds” of DMCA takedown notices targeting many of the videos it had uploaded through the disguised accounts. “In those notices, Pirate Monitor represented that the videos that were the subject of the notices — videos that it had uploaded — infringed its copyrights or the copyrights of a party whom Pirate Monitor was authorized to represent. YouTube processed the substantial volume of DMCA takedown requests and removed the videos,” YouTube adds. YouTube Backs Pirate Monitor Into a Corner As noted in YouTube’s answer, Pirate Monitor’s representations over the status of these videos cannot be correct in both instances. At the point of upload the company told YouTube that it had the right to upload the videos since they infringed nobody’s rights. If those declarations were untrue, the company breached the ToS agreement and “perpetrated a fraud on YouTube” by uploading infringing content. On the other hand, if it did have permission to upload the content, then Pirate Monitor knowingly made false statements to YouTube when it submitted DMCA takedown notices clearly stating that the uploads were infringing. The big question, then, is why Pirate Monitor engaged in this alleged conduct at all. YouTube: Pirate Monitor Wanted Access to Content ID According to YouTube, Pirate Monitor had previously applied for access to the Content ID program. However, the company was denied on the basis that it was required to demonstrate a valid need and have a “track record” of properly using the DMCA takedown process. YouTube believes that since Pirate Monitor was lacking these qualities, it cooked up a scheme to convince the video platform that it fulfilled the criteria. “Pirate Monitor believed that it could demonstrate both the need for access, and a track record of valid DMCA takedown requests, by surreptitiously uploading a substantial volume of content through accounts seemingly unconnected to it, and then sending DMCA takedown requests for that same content,” YouTube says. “Instead of showing that it could properly use YouTube’s tools, Pirate Monitor’s deceptive and unlawful tactics established that it could not be trusted, and that YouTube was right in rejecting its request for access.” YouTube’s Counterclaims As a result of Pirate Monitor’s actions, YouTube says that there has been a breach of contract. The company and its agents failed to provide accurate information during the account creation process and seems to have uploaded videos to YouTube that infringed third-party copyrights. All of this cost YouTube time and money, including investigating and processing Pirate Monitor’s claims that the content was infringing. Furthermore, YouTube notes that in its agreement with Pirate Monitor, the company is obliged to “indemnify YouTube for claims rising out of or relating to its use of the YouTube service. “In seeking defense costs and any potential liability in this action as damages for Pirate Monitor’s contract breaches, YouTube expressly preserves its separate entitlement to contractual indemnity and will amend its counterclaims to add a claim for that indemnity if Pirate Monitor refuses to honor its indemnity obligation,” the video platform writes. YouTube further alleges fraud in respect of more than a dozen accounts Pirate Monitor created for the purposes of uploading around 2,000 videos. Taking the statements in the subsequent DMCA takedown notices sent by the company as accurate, YouTube says that Pirate Monitor agreed not to upload infringing content but did anyway, each time declaring that it had the necessary rights to the content being uploaded. As an alternative, YouTube offers similar counterclaims in the event that Pirate Monitor actually had permission to upload the videos but abused the DMCA by issuing fraudulent takedown notices instead. Request for Injunction and Damages In addition to requesting damages to compensate for the harm caused by Pirate Monitor’s actions, YouTube demands a punitive damages award to compensate for its “fraudulent conduct”. The video platform also seeks an injunction barring Pirate Monitor and its agents from submitting any further DMCA notices that wrongfully claim that material on the YouTube service infringes copyrights held (or are claimed to be held) by Pirate Monitor or anyone it claims to represent. YouTube and Google’s Answer and Counterclaims can be found here (pdf) Source: TorrentFreak
  2. Mega is one of the Internet's most popular sites, currently storing more than 87 billion files. As a result, the service is regularly targeted with copyright takedown requests. The company's latest transparency report reveals that complaints have been climbing recently but pirates should beware. To date, Mega has terminated almost 95,000 repeat infringers. Founded by Kim Dotcom following the takedown of Megaupload in 2012, Mega’s rise has been nothing less than impressive. Despite parting ways with the entrepreneur several years ago, the cloud storage platform has gone from strength to strength. Late 2013, the site was hosting around 0.6 million files, a figure that increased to 3.6 billion just a year later. In 2019, the site reported 63.8 billion files on its servers but for Mega, significant further growth is only ever a few moments away. “Mega’s users upload approximately 65 million files per day, 750 files per second on average,” Mega revealed this week. Mega Publishes 2020 Transparency Report According to the company’s just-published transparency report, by September 2020 Mega was playing host to around 84 billion files, a ~32% increase over the previous reporting period. Those files were uploaded by more than 200 million registered users located in 200 countries, all of whom enjoy end-to-end encryption that hides the content of their files both from Mega and the wider world. Mega offers features that can be compared to those at Dropbox, so it is an attractive proposition for people looking to back up their own content, documents, and other files. But while Mega is privacy-focused by design, users are still able to easily share their files with third-parties as long as their links contain a decryption key. When this is the case, some users treat Mega like any other file-hosting platform – in some cases to store and distribute copyright-infringing files such as movies, music, TV shows, and just about anything else. Copyright Infringement & Content Removal When shared openly with the public, these links to pirated content attract the attention of copyright holders which are then able to file a complaint with Mega to have them taken down. Mega says that complaints and resulting takedowns happen quickly – certainly within four hours but often in minutes. Copyright holders have three options; the removal of a specified link to a file, the removal of all links to a file, or the removal of all links to and all instances of the file. During the most recent reporting period spanning 12 months to September 2020, rightsholders filed 1.193 million takedown requests with Mega, which sounds like a lot but when compared to the overall storage maintained by the site, percentages are low. During the months covered by the report, the total number of links and/or files taken down peaked at just 0.0006% of the site’s total files, having hit a low of 0.0002% of total files during the first quarter. (Note: Mega’s first reporting quarter is Q4 of the previous year) While Mega took down many more links/files during its last 12 month period than it did in any previous year since its inception, the report suggests that in terms of overall content, Mega has a very low ratio of infringing versus non-infringing content. The chart below shows a general upward trend of links taken down in 2019/2020 but the almost flat red line since 2017 reveals that despite a worrying start back in 2013, the percentage of links/files that aren’t considered infringing on the service are now keeping ratios well and truly pinned back. “The number of unique takedown requests submitted represents a very small percentage of the total number of files stored on Mega. In Q3 2020, the links taken down represented 0.0004% of the 84 billion files uploaded to Mega servers,” the company writes. Also a factor is the volume of incorrect notices sent to the company by copyright holders. Mega doesn’t provide a specific number but does note that when users file counternotices, the majority are accepted by the company. “This is probably because many content owners and agents trawl the Internet using robots which generate incorrect notices on behalf of copyright owners, and due to the failure of owners and agents to review the specific link content,” Mega notes. Dealing With Repeat Infringers After initially operating a “five strikes” policy, in 2015 Mega introduced a “three strikes” regime to deal with users who receive multiple copyright takedown requests against their account. The company’s policy applies to users who receive three valid complaints in any six-month period. While incorrect claims are disregarded upon successful appeal and don’t count towards a ban, users reaching this limit have their accounts terminated. “As of 30th September 2020, Mega had suspended 94,966 users for repeated infringement,” the company notes, adding that the data reveals that “suspensions have declined to a very small % of the number of registered users.” As the image above shows, Mega terminated around 8,850 users during the last 12-month reporting period, which is way down from the peaks observed in 2013, 2015 (change to ‘three strikes’) and 2017, and relatively stable when averaged out over the past three years. Suspending Other Accounts Due to Objectionable Content While terminating 95,000 users in total for repeat copyright infringement offenses may sound like a lot, that figure is dwarfed when it comes to the action taken by the company against those who upload child exploitation and other objectionable content. Mega says that it has terminated 565,000 accounts for storing and sharing this type of content and in all cases account information was made available to law enforcement agencies. “Although all files stored on Mega are encrypted prior to being uploaded to our system, and we therefore cannot access that content unless we are provided with the decryption key, Mega does have access to user registration information and the IP addresses used to access our services,” the company says in respect of handing user data over to the authorities. “After 12 months, identifying information such as email and IP addresses is anonymized (except that email address records are retained for reference by the user’s contacts or where the user has participated in chats with other Mega users), but other related database records may be retained. This includes records of financial transactions relating to a user’s account where Mega is legally required to retain such information.” Mega’s full transparency report can be found here (pdf) Source: TorrentFreak
  3. A federal court in Florida has dismissed a complaint from ISP Bright House Networks, which accused several major record labels of targeting subscribers with false and deceptive piracy notices. The ISP, which wanted to add RIAA and its anti-piracy partner MarkMonitor to the suit as well, doesn't have a valid claim as it failed to act on the 'false' claims. Under US copyright law, Internet providers must terminate the accounts of repeat infringers “in appropriate circumstances.” In the past such drastic action was rare, but with the backing of legal pressure, ISPs are increasingly being held to this standard. Repeat Infringer 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. This also includes Bright House, which is owned by Charter. Through this lawsuit, the music companies hope to win hundreds of millions of dollars in damages. While that may sound high, last year a federal jury handed down a billion-dollar award in a lawsuit against Cox Communications. False DMCA Notices Counterclaim Bright House would like to avoid this fate at all costs. In a countersuit, filed in July, the ISP hit back accusing the record labels of sending inaccurate and deceptive takedown notices. This is in violation of the DMCA as well as the Florida Deceptive and Unfair Trade Practices Act, the company argued. A month later, the Internet provider asked the court for permission to add the RIAA and its anti-piracy partner MarkMonitor to the suit, as they are central to the wrongful conduct. The record labels were not happy with these accusations and asked the court to dismiss the claims. While it’s possible that some incorrect notices were sent, they argued that Bright House has no standing as the company failed to take any action based on their notices. No Disconnections, No Harm This defense points back to the basis of the “repeat infringer” issue. The labels sued the ISP because it didn’t disconnect persistent pirates. So if there were false notices, there was no real harm done. After hearing both sides, US District Court Judge Mary Scriven decided over the matter this week, clearly siding with the record labels. “Bright House alleges that Plaintiffs violated Section 512(f) of the DMCA by sending knowingly false infringement notices. This counterclaim fails as a matter of law because Bright House does not allege that it removed or disabled access to any allegedly infringing content in response to the notices.” Judge Scriven notes that this case is similar to the one Charter filed against several record labels. That case was dismissed as well a few weeks ago, as Charter didn’t show that it disconnected subscribers based on false DMCA notices. False Notices Claim Dismissed “Bright House’s counterclaim suffers from the same fatal flaw and is therefore due to be dismissed,” the District Court Judge writes. The ISP’s second claim, that the labels violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) fails as well, according to the court. A proper FDUTPA claim requires Bright House to argue that the false notices were sent as part of “trade or commerce,” which generally involves advertising or offering services, property, or something else of value. That’s not the case here, Judge Scriven notes. FDUTPA Claim Fails As Well “The FDUTPA claim is defective because the infringement notices do not constitute ‘advertising, soliciting, providing, offering, or distributing’ any ‘thing of value’ to Bright House, its subscribers, or any other party. “Plaintiffs sent the infringement notices as part of an alleged effort to enforce their legal rights in recordings and compositions they claimed to own,” Judge Scriven writes. This means that both counterclaims are dismissed. Bright House also put in a separate request to enforce the same claims against the RIAA and its anti-piracy partner RightCorp, but this is futile now that the underlying arguments don’t hold up. The case will now continue to trial without any counterclaims. Bright House will still have to defend itself against the repeat infringer claims and copyright infringement allegations. — A copy of US District Court Judge Mary Scriven’s order is available here (pdf) Source: TorrentFreak
  4. President Trump has received many copyright complaints on Twitter, a tally that has just increased due to yet another DMCA takedown notice. However, a policy decision by Twitter means he's been able to circumvent the platform's repeat infringer rules. The big question is whether he'll continue getting special treatment moving forward or will Twitter eventually have to nuke his account? Every year billions of citizens help to develop the Internet by adding their own content, whether that’s substantial works such as videos, music or articles, or smaller but nevertheless important comments or snippets of information. Inevitably, however, some of these postings can infringe other people’s copyrights, resulting in rightsholders and anti-piracy companies issuing DMCA takedown notices to have them removed. The sting in the tail for many users, however, is that if they continually receive DMCA notices against their accounts on sites like YouTube, Twitch or Twitter, their accounts can be put in peril. Repeat Infringer Policies Can Be Selective Indeed, large numbers of users of these platforms alone have been permanently banned under so-called repeat infringer policies, where they are essentially told they’re no longer a responsible member of the community and must be banned. The reason, of course, is that the platforms themselves don’t want to be held liable should rightsholders decide to file what could be a massive copyright lawsuit. Interestingly, however, the old adage of “there’s one rule for them and another for us” is alive and well, particularly on Twitter and especially in respect of President Trump, who – despite receiving a stream of copyright complaints against his account – has managed to avoid a ban from Twitter. But after receiving yet another DMCA complaint this week, an interesting question raises its head. President Trump Receives Yet Another DMCA Complaint It is not uncommon for Donald Trump’s tweets to be either hidden by Twitter (when the platform believes the tweet carries an untruth, for example) or completely removed due to a copyright complaint. It has happened on many occasions in the past, largely due to allegations of him or his staff posting music in breach of copyright. And on December 28, it happened yet again. The content in question was a campaign-style video that celebrated the claimed accomplishments of the Trump administration. However, like many similar videos posted to Twitter in the past by Trump, it contained copyrighted music. In this case the track Hoedown by the late composer Aaron Copland. A few hours ago the DMCA notice in question was submitted by Twitter to the Lumen Database, which published the details in its archives. Three separate notices were filed targeting the same content but the one shown below carries the most detail. President Trump Receives Twitter’s ‘World Leader’ Treatment Of course, had this been the umpteenth time that a regular user had received a DMCA complaint, their Twitter account would’ve been toast. Instead, however, it appears that Twitter has once again invoked its ‘world leader policy‘ which allows people like Trump to do things that would end in mere mortals being banned from the platform. There are limits to what even ‘world leaders’ can do to avoid getting nuked from Twitter but thus far, Trump has managed to avoid the banhammer. The big question now is for how long. President Trump: Soon To Be Plain Old Donald At noon on January 20, 2021, the presidency of Donald Trump will come to an end. No one will ever be able to remove his historic status as the 45th President of the United States but he will no longer be a world leader. As a result, on the same day (and as long as the company sticks to its own policies) Twitter will have to start treating the former president as plain old Donald Trump. This raises many questions, some of them of great significance. Strictly in terms of DMCA notices, President Trump already has way more than it would take for an ordinary citizen to get themselves banned from Twitter. On January 20, when he becomes ‘ordinary’ again, will those ‘strikes’ be consigned to the history books with no further action? That not only seems the most likely outcome but perhaps the most sensible too. Whatever one thinks of Trump’s presidency, records of his actions while in power are significant moments in time that simply do not warrant being erased from history. However, there are complications here too. Personal and Presidential Account Combined When Trump became president, he refused to give up his personal account, so @realdonaldtrump effectively became the presidential account. On January 20, however, that account will no longer be in the hands of a world leader, meaning that no more free passes should be available from Twitter. This means that starting then, if Twitter levels the playing field as it should, three more strikes and Donald Trump’s account should be done, just like anyone else’s would be. So Twitter is going to be left with a dilemma, should Donald Trump decide to continue posting stuff that results in DMCA notices. If the company keeps giving Trump the ability to sidestep copyright law, it could be held responsible for not terminating the account of a known repeat infringer. However, if it bans his account, all of the tweets from his presidency will disappear with it. Clearly and for the sake of history, that can’t happen. However, the law is the law so if any copyright holders decide to get fired up, Twitter could find potentially itself in an interesting legal position. Of course, there’s always the chance that no more infringements or alleged infringements will occur, effectively solving the problem for them. Only time will tell which way things go but at the very least, popcorn should be kept on standby in the new year. If only to see how many more notices will come in before the protective shield is taken away. Source: TorrentFreak
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