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Supreme Court Denies Petition from YouTube Rippers ‘FLVTO’ and ‘2Conv’

In 2018, a group of prominent record labels sued two very popular YouTube rippers, FLVTO.biz and 2conv.com.

The labels, including Universal, Warner Bros, and Sony, accused the sites of copyright infringement and hoped to quickly shut them down.

That didn’t go as expected. The owner of the sites, a Russian man named Tofig Kurbanov, lawyered up and fought back. Before the copyright issues were even discussed in court, the complaint was already dismissed.

A Battle over Jurisdiction

A Virginia federal court ruled that the music companies lacked personal jurisdiction. The sites were operated from abroad and didn’t ‘purposefully’ target or interact with US users, the court concluded.

This finding was not without controversy. The music companies disagreed and appealed the matter at the Fourth Circuit Court of Appeals, which sent the case back to the district court a few months ago.

The appeals court found that there are more than sufficient facts to conclude that Kurbanov purposefully conducted business in the US, specifically the state of Virginia. Kurbanov and his legal team disagreed but their request for a rehearing was denied.

Petitioning the Supreme Court

In an ultimate effort to take a victory over the matter, Kurbanov and his legal team filed a petition for certiorari at the US Supreme Court. The country’s highest court would be best equipped to decide on the issue, especially because there are conflicting precedents at lower courts.

Specifically, Kurbanov questioned whether his due process rights are violated when he is subjected to the jurisdiction of a US court, simply because his websites are frequently used there. Also, whether minor internet-based and internet-initiated transactions are sufficient to warrant jurisdiction.

Supreme Court Denies to Take the Case

This week the Supreme Court denied the petition, much to the disappointment of Kurbanov and his lawyers. This means that the case will now revert back to the district court to answer outstanding jurisdiction questions.

“Although we’re obviously disappointed that the Supreme Court did not take this opportunity to provide much-needed clarity on the issue, the matter now returns to the district court,” counsel Evan Fray-Witzer tells TorrentFreak.

In its first decision on the motion to dismiss, the district court chose not to conduct a “reasonability test” because the other arguments were sufficient to warrant a dismissal. Following the appeal and the Supreme Court denial, this will now be the first point on the agenda.

If the lower court decides that the complaint fails the reasonability test, it can still be dismissed over a lack of jurisdiction. Otherwise, Kurbanov will have to defend himself and his sites against the record labels’ copyright infringement claims.

‘YouTube Rippers Will Win this Case’

The defense, nonetheless, remains confident and believes it will be able to win the lawsuit no matter what direction it goes.

“It’s a longer path, but we remain confident that at the end of the day, the claims against Mr. Kurbanov will fail,” Fray-Witzer says.

“The record companies have fought technology at every step and yet cassettes, CDs, and streaming services still exist and the music industry continues to thrive,” the attorney adds.

When this lawsuit was filed there wasn’t much public debate about the legality of YouTube rippers but that has changed in recent months. The RIAA’s request to remove the youtube-dl software from GitHub triggered a heated debate that remains ongoing.

At the same time Yout.com, another YouTube ripper site, filed a lawsuit against the RIAA asking the court to declare its service as operating legally.

While they may take years to complete, these cases will be fought tooth and nail by both sides. That will ultimately decide whether people can continue to ‘rip’ content from online streaming services, or not.

From: TF, for the latest news on copyright battles, piracy and more.

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Valorant & Destiny 2 Cheat Maker Sued For Copyright Violations

While the vast majority of videogames players are happy to enjoy games within the parameters set by their developers, there are millions who prefer to cheat their way to victory.

As a result, an industry has appeared ready to service people looking to gain an unfair advantage, offering cheating products often at a premium price. This disruption is frowned upon by developers and regular players alike, who argue that when the gaming experience becomes unfair, the fun associated with playing collapses.

In an effort to reduce the number of players cheating online, various videogame companies have filed lawsuits in the United States. Yesterday another one was added to the growing list when Riot Games and Bungie filed a copyright infringement lawsuit against GatorCheats for offering tools enabling cheating in Valorant, Destiny 2, and other titles.

“Malicious” Software Products “Destroy” plaintiffs’ Games

Filed in a California district court, the lawsuit targets Albuquerque, New Mexico resident Cameron Santos (the alleged operator of GatorCheats), plus an additional 10 ‘Doe’ defendants, some of whom (“Hal,” “Matt” and “Megan”) are alleged to provide customer support to cheat users.

“By this lawsuit, Plaintiffs seek to put a stop to the unlawful, for-profit sale and distribution of malicious software products designed to enable members of the public to gain unfair competitive advantages (i.e., to cheat) in the Games, and, thereby, to impair and destroy Plaintiffs’ Games, Plaintiffs’ overall business, and the experience of Plaintiffs’ player community,” the complaint reads.

According to Riot and Bungie, Santos owns several online ventures engaged in the development and sale of “malicious cheats” targeting the companies’ games. “Honeyhacks” and “Voidcheaters” get a mention but GatorCheats is the largest, selling a cheat known as “Gatorant” and several tools for Destiny 2.

“The Cheating Software enables players to manipulate Valorant and Destiny 2 to their personal advantage, such as by automatically aiming weapons, revealing the locations of opponents, and allowing the player to see a vast array of information that otherwise would be obscured,” the companies note.

Cheat Makers Undermine Business Models

This undermining of the gaming experience for ordinary players comes at an enormous reputational and financial cost according to the complaint. As gamers leave their respective arenas in the face of cheating opponents, Riot and Bungie are reportedly losing goodwill along with millions of dollars in revenue.

The key issue is that the popularity of both Valorant and Destiny 2 lies not only in their gaming experiences but also in the business models selected by the plaintiffs. Since both games are available to play for free, the companies rely on gamers staying online for as long as possible while buying virtual goods such as characters, weapons, skins and clothing. When the experience is diminished by cheaters, the whole plan begins to come apart at the seams.

“If players perceive that others are cheating or have an unfair advantage, they will grow frustrated with the Games and stop playing. That, in turn, could disrupt and/or destroy the Games’ player communities and severely harm Plaintiffs’ ability to generate revenue and to maintain, improve, and expand the Games,” the complaint reads.

Bungie Issued Cease-and-Desist Notice in 2020

In an effort to protect their game, in November 2020 legal counsel for Bungie served GatorCheats with a cease-and-desist notice. GatorCheats subsequently informed users that the Destiny 2 cheats would be removed from sale but Santos reportedly assured those who had purchased a lifetime license they would continue to receive customer support.

However, the plaintiffs aren’t convinced that GatorCheats will discontinue the Destiny 2 cheats, alleging that the cheat maker will probably sell the software to users in a more discreet manner, including via a private section of the GatorCheats site.

The uncertainty surrounding compliance with the cease-and-desist notice appears to have triggered the lawsuit, which majors on breaches of the DMCA’s anti-circumvention provisions plus violations of contract and unfair competition laws.

Trafficking in Circumvention Devices

The plaintiffs state that their games are protected by anti-cheat technologies designed to detect and thwart cheating tools. These technologies must be installed on users’ machines if they want to play the games. This means that if a cheat maker is to have a successful product, it must either conceal its existence from the developers’ anti-cheat technologies or disable them altogether. This is illegal under the DMCA, the plaintiffs claim.

“The Cheating Software is comprised of or contains technologies, products, services, devices, components, or parts thereof that primarily are designed or produced for the purpose of circumventing technological measures that effectively control access to the Games,” the complaint reads, noting that the cheats have no commercially significant purpose other than to circumvent technological measures.

“As a result of the foregoing, Defendants are offering to the public, providing, importing, or otherwise trafficking in technology that violates 17 U.S.C. § 1201(a)(2).”

As a result of these alleged infringements, the plaintiffs are demanding either the profits attributable to the sales of the cheats or the maximum statutory damages of $2,500 per violation of the DMCA. In respect of the former, the complaint estimates sales in the “tens or hundreds of thousands of dollars” for both sets of cheats. In the case of the latter, both cheats are said to have been downloaded “thousands of times” which easily supports a claim in the millions of dollars.

Interference With Contractual Relations, Unfair Competition

In addition to the claims under the DMCA, Riot and Bungie allege that though the provision of the cheats, GatorCheats intentionally encouraged its customers to breach the licensing contracts they had agreed with the companies when they installed the games. As a result, the cheat maker is guilty of “oppression, fraud, or malice” allowing the plaintiffs to recover exemplary and punitive damages.

In their final claim, Riot and Bungie state that GatorCheats engaged in unfair competition under California law, an act that again requires the cheat maker to pay compensation for damages caused to their businesses.

In the interim, the plaintiffs request injunctions to prevent GatorCheats from continuing to violate their rights, demanding that the cheat maker shuts down its software and removes it from the Internet. The gaming companies are also seeking access to financial records showing GatorCheats’ sales and how much money was made. That amount could be substantial.

According to the videogame companies, the Valorant cheat costs users $90 per month, $350 for three months, and $500 for lifetime access. The Destiny 2 cheats are slightly less pricey at $100 per month or $200 for a lifetime license.

The complaint can be found here (pdf)

From: TF, for the latest news on copyright battles, piracy and more.

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Former RapidShare Operators & Lawyer Acquitted of Copyright Infringement

In 2002, when Megaupload was a mere twinkle in the eye of Kim Dotcom, Swiss-based file-hosting site was already on its way to becoming an Internet giant.

The platform provided a simple way to store and share files with others and as a result, soon became popular with people looking to distribute copyright-infringing content. This attracted the negative attention of numerous copyright holders.

As an Internet services platform, RapidShare always insisted that it was not in control over the material being uploaded by its users, an assertion that sometimes had courts in agreement. Nevertheless, RapidShare continued to draw the ire of copyright holder groups and eventually found itself labeled by the USTR as a “notorious market”.

As pressure built, RapidShare made efforts to restrict the ability of users to share infringing content but this change of model took its toll on the site. Visitor numbers quickly decreased as customers chose to frequent more liberal platforms. In March 2015, the file-hoster decided to close its doors leaving dozens of former employees without jobs.

Criminal Lawsuit Filed in Switzerland

More than three years after the site shut itself down, it became clear that RapidShare’s operators were still facing an uncertain future. The service’s founder, Christian Schmid, his wife Alexandra, and one of their former lawyers, were put on trial in a criminal court. The public prosecutor of the court in Zug accused the trio of assisting in mass copyright infringement, demanding financial penalties on behalf of copyright holders.

Given the huge profits made by RapidShare (in 2009 alone, RapidShare’s gross dividend was almost $53m at today’s rates), the prosecutor argued that the enterprise benefited at the expense of content companies. The site’s operators were in a position to stop infringement but chose not to do so, placing revenue above everything else. As a result, the site’s founder alone should pay more than 700,000 Swiss francs, it was argued.

Zug Court: RapidShare Defendants Found Not Guilty

The Swiss court certainly took its time in issuing its judgment but after a two-and-a-half-year wait, the verdict is now in. The full judgment is not yet available to the public but a summary from Tagblatt reveals that Christian and Alexandra Schmid (now 40 and 42) and their former lawyer have all been found not guilty.

Zurich lawyer Andreas Meili, who defended Alexandra Schimd in the case, described the result as a “great satisfaction” but expressed concern at the expenses incurred by his client when defending the case.

“If you are acquitted, you are entitled to compensation, not the other way around,” he told Tablatt.

Whether there will be an opportunity to address the issue of costs is currently unclear but in any event, the matter may not be over just yet. The public prosecutor and copyright holders may not accept the judgment of the Zug court and could take the case to appeal.

In any event, the trial doesn’t seem to be having a huge effect on the living standards of the Schmids. In 2019 the couple paid the Thurgau bankruptcy office around 36 million Swiss francs ($40.5 million) to acquire Eugensberg Castle. The 18th-century castle was previously owned by entrepreneur and convicted fraudster Rolf Erb and sports eleven bedrooms and five bathrooms.

From: TF, for the latest news on copyright battles, piracy and more.

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Cheat Maker Agrees to Pay Pokémon Go Creator $5m to Settle Copyright Infringement Lawsuit

Providing tools and services enabling players to cheat in video games is big business but after years of relative freedom, cheat facilitators are increasingly being targeted by developers for undermining gaming experiences and business models.

In June 2019, development group Global++, which had provided cheats for Pokémon Go and other titles, was targeted by Francisco-based Niantic, the game’s original developer. The original lawsuit, filed in a California federal court targeted “unincorporated entity” Global++, two individuals named as Ryan Hunt (aka ELLIOTROBOT) and Alen Hundur (aka IOS NOOB), plus 20 ‘John Does’.

According to Niantic’s complaint, the only permissible way to play its augmented reality games (Pokémon Go, Harry Potter: Wizards Unite, and Ingress) is via its original apps installable on mobile devices. These have permission to access Niantic’s servers and contain protected proprietary code, code which Global++ was alleged to have copied. Indeed, according to the developer, the Global++ software consisted of up to 99% of Niantic’s original code.

Predictably, this led to a broad range of copyright infringement allegations in the lawsuit but also included claims under the Computer Fraud and Abuse Act, broadly due to Global++ and its users accessing Niantic’s servers via hacked apps.

Parties Agree to Settle Case

As the case progressed, several parties’ names were added to the case while others were removed. Ultimately, Global++, IT Haven Inc., HLP Tech LLC, Ryan Hunt, Matthew Johnson and Alen Hunder remained as defendants, all of which have now agreed to settle their dispute with Niantic.

In a stipulation and proposed order filed Thursday, the parties agree that the defendants profited from unauthorized derivative versions of Niantic’s mobile apps (the “Cheating Programs”) that used “substantial portions of Niantic’s copyrighted computer code without Niantic’s permission.” These include Potter++ (a hacked version of the Harry Potter game), PokeGo++ (hacked version of Pokémon Go) and Ingress++ (hacked version of Ingress).

“All the Cheating Programs allow the Global++ Defendants and their customers to perform unauthorized actions while playing Niantic’s games, and allowed the Global++ Defendants to scrape Niantic’s valuable and proprietary map data. In other words, the Cheating Programs enable cheating,” the agreement reads.

Cheating Programs Undermined Gaming Experience

Since all of the above Niantic titles are multiplayer games, Niantic and Global++ agree that the hacked versions gave cheaters an unfair advantage over regular players, something which undermined the overall gaming experience. Furthermore, since Niantic sold subscriptions and collected payments via Patreon from “hundreds of thousands of users”, there was a profit motive underpinning the entire business.

The success of Niantic’s model also came at the expense of Niantic, the agreement reads, noting that the Cheating Programs “diminished enthusiasm” for the official products and in some cases drove players away from Niantic’s games altogether. As a result, the actions of the Global++ defendants damaged Niantic’s reputation and its business.

Agreed Breaches of Federal Law

The stipulation has the Global++ defendants admitting to a number of breaches of federal law, including violations of the Copyright Act and Computer Fraud and Abuse Act. The parties also agreed that the cheat makers’ conduct breached the California Comprehensive Computer Data Access and Fraud Act, California’s unfair competition laws, Niantic’s terms of service (breach of contract), while interfering with Niantic’s contractual relations with its customers.

As a result, Global++, Ryan Hunt, and IT Haven Inc. now admit to the offenses of direct copyright infringement, contributory copyright infringement and vicarious copyright infringement. Matthew Johnson and HLP Tech LLC admit to contributory copyright infringement and vicarious copyright infringement, while Alun Hundur admits to contributory copyright infringement.

All defendants further admit to violations of the Computer Fraud and Abuse Act, California’s Comprehensive Computer Data Access and Fraud Act, California’s unfair competition law, breach of contract, and interfering with Niantic’s business relations.

$5,000,000 Settlement and Injunction

To settle the matter, the defendants have agreed to pay Niantic $5,000,000 in damages and subject themselves to an injunction permanently restraining them from developing, marketing, or receiving payment for the Cheating Programs or substantially similar products.

They also agree not to offer or receive payment for products utilizing Niantic data or intellectual property and to refrain from reverse engineering, decompiling, or disassembling Niantic products. “Cracking or tweaking” any tools that are able to interfere with Niantic server protocols is also barred, along with a wide range of associated activities.

The agreement is yet to be signed off by the judge but given the agreement between the parties, that is likely to be a formality in the days to come.

The associated documents can be found here (1,2 pdf)

From: TF, for the latest news on copyright battles, piracy and more.

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Judge: Sci-Hub Blocking Case “Important” For Science, Community Representations Will Be Heard

On December 21, 2020, academic publishers Elsevier, Wiley, and American Chemical Society filed a lawsuit demanding that Indian ISPs block access to Sci-Hub and Libgen.

The companies accuse the platforms of engaging in large-scale copyright infringement and note that preventing citizens of India from accessing the platforms is the only real option available to prevent their rights from being further abused.

In similar blocking applications, there has been relatively little difficulty in getting the court onside. All have targeted torrent and streaming sites offering movies, TV shows, and similar content without permission. However, while the case against Sci-Hub and Libgen is materially similar, there are additional factors that make the case more complex.

Protests By Scientists, Academics, Teachers and Students

As reported this week, scientists, academics, teachers and students have been applying pressure to have their voices heard in the case. According to them, any blocking of Sci-Hub and Libgen would amount to a denial of access to information crucial to the wellbeing of not only the scientific and research communities but also of India as a whole.

During a hearing yesterday at the Delhi High Court, the publishers hoped to obtain an order to have the platforms and their many domains blocked. However, the presiding judge listened to the calls of the scientific community and agreed that a delay to allow more detailed consideration would be appropriate in this case.

“It is an issue of public importance. It’s very important to the scientific community,” said Justice JR Midha.

Representations of Scientific Community Will Be Heard

The Court’s decision to delay the hearing for around six weeks came following intervention applications filed by nineteen scientists, including a virologist and several physicists specializing in multiple research areas, plus the Delhi Science Forum and Knowledge Commons.

Arguing that open access to scientific research is absolutely vital for the advancement of scientific knowledge, the scientists believe that the publishers are making excessive profits while effectively restricting access only to the “elite institutions” that can afford their prices.

“Unfortunately, scientific publication is controlled by an oligopoly of publishers who charge exorbitant fees and practice anti-competitive business models that seriously hamper the ability of the scientific community to access and share research,” they write.

According to Bar and Bench, Senior Advocate Amit Sibal appeared for the publishing houses and Senior Advocate Gopal Sankaranarayanan appeared for Sci-Hub. The scientists were represented by Advocate Jawahar Raja and Advocate Rohit Sharma appeared for Delhi Science Forum.

After consideration, the Court rejected pleas for the sites to blocked immediately and instead ordered pleadings to be completed within the next six weeks.

According to SpicyIP, Sci-Hub received a two-week extension to fulfill its procedural obligations and was granted permission to file an application for exemption from formal compliances. This is due to the unusual nature of the case and Sci-Hub founder Alexandra Elbakyan currently living in Russia.

Interestingly, the publication further notes that while there is an arrangement to prevent any of the publishers’ content from appearing on Sci-Hub while the matter is under consideration, a request to have this ‘ban’ extended to Libgen was rejected by the Court. Libgen is reportedly yet to be properly served by the publishers, excluding it from the interim direction.

The case will now be heard on February 23, 2021 (link to order here)

From: TF, for the latest news on copyright battles, piracy and more.

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Sci-Hub: Scientists, Academics, Teachers & Students Protest Blocking Lawsuit

Following in the footsteps of the entertainment industries, publishers are increasingly trying to have pirate sites shut down or blocked to prevent the unlicensed spread of academic and scientific papers.

Their main targets are Sci-Hub (‘The Pirate Bay of Science’) and Libgen (Library Genesis), platforms with a key aim of distributing such papers freely to the masses for the purposes of spreading knowledge.

Of course, this runs counter to the publishers’ business model, as a lawsuit filed in India by several publishing giants explained last month.

Complaint Filed at High Court in Delhi

On December 21, 2020, Elsevier, Wiley, and American Chemical Society, filed a lawsuit hoping to have the court compel Indian ISPs to block both Sci-Hub and Libgen. Accusing the platforms of blatantly infringing their rights on a massive scale, the publishers said that due to the defiant nature of the platforms, ISP blocking is the only effective solution to hand.

The massive complaint, which runs to 2,169 pages, was received by Sci-Hub with little time to review its contents. This not-insignificant issue was quickly pointed out to the Court, with counsel for Sci-Hub asking for an extension. After Sci-Hub assured the Court (pdf) that “no new articles or publications, in which the plaintiffs have copyright” would be uploaded to the site in advance of the next hearing, more time was granted to respond.

Scientists, Academics, Teachers and Students Protest

The case is set for a hearing tomorrow but in advance of that, interested parties are attempting to put the government under pressure to intervene by preventing a blockade that, according to them, would cause damage to education and society in India.

Speaking on behalf of thousands of scientists, academics, teachers and students, the Breakthrough Science Society (BSS) is expressing dismay at the publishers’ efforts to prevent the “free flow of information” between those who produce it and those who seek it.

“International publishers like Elsevier have created a business model where they treat knowledge created by academic research funded by taxpayers’ money as their private property,” its statement reads.

“Those who produce this knowledge — the authors and reviewers of research papers — are not paid and yet these publishers make windfall profit of billions of dollars by selling subscriptions to libraries worldwide at exorbitantly inflated rates which most institutional libraries in India, and even developed countries, cannot afford.

“Without a subscription, a researcher has to pay between $30 and $50 to download each paper, which most individual Indian researchers cannot afford. Instead of facilitating the flow of research information, these companies are throttling it,” the non-profit Breakthrough Science Society adds.

Instead of demonizing Sci-Hub founder Alexandra Elbakyan, the group describes her work as an effective solution to make research papers available to all for the benefit of humanity. As a result, the Breakthrough Science Society says it actually supports the work of Sci-Hub and Libgen, arguing that their work is not illegal and should continue unhindered.

“We support their initiative which, we contend, does not violate any norm of ethics or intellectual property rights as the research papers are actually intellectual products of the authors and the institutions,” BSS writes.

“We strongly oppose any form of commoditization of research information that is a hindrance to the development of science and the humanities. In the interest of the advancement of knowledge, Sci-Hub and Libgen should be allowed to operate in India.”

Petition To Pressure the Government

In an effort to pressure the Indian government to intervene on behalf of the people, the Breakthrough Science Society has launched a petition, calling on everyone from scientists and academics to teachers and students, to declare that knowledge should be accessible to all, not just those who can afford to pay the publishers’ rates.

Dr. Ashwani Mahajan, an Associate Professor at the University of Delhi, who among other things describes himself as a policy interventionist, says that if the ISPs are compelled to block Sci-Hub and Libgen, Indian researchers’ access to information will be seriously undermined.

While acknowledging that the government spends large sums of money to subscribe to journals, Mahajan says that researchers and students are heavily reliant on Sci-Hub and Libgen for information that the publishing industry itself does not pay for.

“Content is generated by the academic community working in research institutes and universities which are mostly Government funded. Most of the peer reviewers are also not paid. As a result, the publishing houses’ expenditure is very low, and they earn high profitability,” he writes.

“Publishing houses ask the researchers to assign their copyrights to the publishers as a pre-condition to publish articles. Then use these assigned copyrights to maintain a monopoly over the scholarly works.”

“Copyright Law Allows for Injunction to Be Denied”

In his statement, Mahajan argues that the Court has the power to deny the blocking injunction sought by the publishers. For example, he notes that the majority of Sci-Hub and Libgen users are accessing the information offered by the sites for non-commercial purposes, primarily study and research.

Citing Section 51 of the Copyright Act, Mahajan says there is an exception that allows users to import one copy of any work for their private and domestic use. Furthermore, there are additional exceptions that provide for fair dealing, which includes research and review.

Furthermore, Mahajan believes that the International Covenant on Economic Social and Cultural Rights (ICESCR) obligates member countries, including India, to ensure the right “to enjoy the benefits of scientific progress and its applications”, specifically by eliminating laws, policies and practices that “unjustifiably limit access by individuals or particular groups to facilities, services, goods and information related to science, scientific knowledge and its applications.”

Whether the Court will consider the above options for denying an injunction remains to be seen. However, there is considerable opposition in the scientific community and it’s difficult to argue that academics and students will be better off if ISPs are ordered to block the sites. The publishers, of course, have clearly stated that the opposite is true, so they will oppose every move that could undermine their business model.

From: TF, for the latest news on copyright battles, piracy and more.

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Sci-Hub: Scientists, Academics, Teachers & Students Protest Blocking Lawsuit

Following in the footsteps of the entertainment industries, publishers are increasingly trying to have pirate sites shut down or blocked to prevent the unlicensed spread of academic and scientific papers.

Their main targets are Sci-Hub (‘The Pirate Bay of Science’) and Libgen (Library Genesis), platforms with a key aim of distributing such papers freely to the masses for the purposes of spreading knowledge.

Of course, this runs counter to the publishers’ business model, as a lawsuit filed in India by several publishing giants explained last month.

Complaint Filed at High Court in Delhi

On December 21, 2020, Elsevier, Wiley, and American Chemical Society, filed a lawsuit hoping to have the court compel Indian ISPs to block both Sci-Hub and Libgen. Accusing the platforms of blatantly infringing their rights on a massive scale, the publishers said that due to the defiant nature of the platforms, ISP blocking is the only effective solution to hand.

The massive complaint, which runs to 2,169 pages, was received by Sci-Hub with little time to review its contents. This not-insignificant issue was quickly pointed out to the Court, with counsel for Sci-Hub asking for an extension. After Sci-Hub assured the Court (pdf) that “no new articles or publications, in which the plaintiffs have copyright” would be uploaded to the site in advance of the next hearing, more time was granted to respond.

Scientists, Academics, Teachers and Students Protest

The case is set for a hearing tomorrow but in advance of that, interested parties are attempting to put the government under pressure to intervene by preventing a blockade that, according to them, would cause damage to education and society in India.

Speaking on behalf of thousands of scientists, academics, teachers and students, the Breakthrough Science Society (BSS) is expressing dismay at the publishers’ efforts to prevent the “free flow of information” between those who produce it and those who seek it.

“International publishers like Elsevier have created a business model where they treat knowledge created by academic research funded by taxpayers’ money as their private property,” its statement reads.

“Those who produce this knowledge — the authors and reviewers of research papers — are not paid and yet these publishers make windfall profit of billions of dollars by selling subscriptions to libraries worldwide at exorbitantly inflated rates which most institutional libraries in India, and even developed countries, cannot afford.

“Without a subscription, a researcher has to pay between $30 and $50 to download each paper, which most individual Indian researchers cannot afford. Instead of facilitating the flow of research information, these companies are throttling it,” the non-profit Breakthrough Science Society adds.

Instead of demonizing Sci-Hub founder Alexandra Elbakyan, the group describes her work as an effective solution to make research papers available to all for the benefit of humanity. As a result, the Breakthrough Science Society says it actually supports the work of Sci-Hub and Libgen, arguing that their work is not illegal and should continue unhindered.

“We support their initiative which, we contend, does not violate any norm of ethics or intellectual property rights as the research papers are actually intellectual products of the authors and the institutions,” BSS writes.

“We strongly oppose any form of commoditization of research information that is a hindrance to the development of science and the humanities. In the interest of the advancement of knowledge, Sci-Hub and Libgen should be allowed to operate in India.”

Petition To Pressure the Government

In an effort to pressure the Indian government to intervene on behalf of the people, the Breakthrough Science Society has launched a petition, calling on everyone from scientists and academics to teachers and students, to declare that knowledge should be accessible to all, not just those who can afford to pay the publishers’ rates.

Dr. Ashwani Mahajan, an Associate Professor at the University of Delhi, who among other things describes himself as a policy interventionist, says that if the ISPs are compelled to block Sci-Hub and Libgen, Indian researchers’ access to information will be seriously undermined.

While acknowledging that the government spends large sums of money to subscribe to journals, Mahajan says that researchers and students are heavily reliant on Sci-Hub and Libgen for information that the publishing industry itself does not pay for.

“Content is generated by the academic community working in research institutes and universities which are mostly Government funded. Most of the peer reviewers are also not paid. As a result, the publishing houses’ expenditure is very low, and they earn high profitability,” he writes.

“Publishing houses ask the researchers to assign their copyrights to the publishers as a pre-condition to publish articles. Then use these assigned copyrights to maintain a monopoly over the scholarly works.”

“Copyright Law Allows for Injunction to Be Denied”

In his statement, Mahajan argues that the Court has the power to deny the blocking injunction sought by the publishers. For example, he notes that the majority of Sci-Hub and Libgen users are accessing the information offered by the sites for non-commercial purposes, primarily study and research.

Citing Section 51 of the Copyright Act, Mahajan says there is an exception that allows users to import one copy of any work for their private and domestic use. Furthermore, there are additional exceptions that provide for fair dealing, which includes research and review.

Furthermore, Mahajan believes that the International Covenant on Economic Social and Cultural Rights (ICESCR) obligates member countries, including India, to ensure the right “to enjoy the benefits of scientific progress and its applications”, specifically by eliminating laws, policies and practices that “unjustifiably limit access by individuals or particular groups to facilities, services, goods and information related to science, scientific knowledge and its applications.”

Whether the Court will consider the above options for denying an injunction remains to be seen. However, there is considerable opposition in the scientific community and it’s difficult to argue that academics and students will be better off if ISPs are ordered to block the sites. The publishers, of course, have clearly stated that the opposite is true, so they will oppose every move that could undermine their business model.

From: TF, for the latest news on copyright battles, piracy and more.

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Nintendo Wants $15 Million in Damages from Pirate ROM Site

In September 2019, gaming giant Nintendo filed a lawsuit against the game download portal RomUniverse.

The website facilitated massive online copyright infringement of many popular Nintendo titles, according to the complaint filed at a California district court

Nintendo said that RomUniverse made things worse by profiting from these copyright infringements by selling paid premium accounts that allowed users to download as many games as they want.

RomUniverse’s Defense

The site’s operator, Los Angeles resident Matthew Storman, clearly disagreed with these allegations. Without an attorney, he decided to defend himself in court. In his view, the site wasn’t breaking any laws and he asked the court to dismiss the case.

Nintendo picked this defense apart and found the court on its side. This meant that Storman had to face the charges, as well as millions of dollars in potential damages.

Since then the case has progressed with a few bumps in the road. Last summer, Nintendo requested further evidence as part of the discovery process, including tax records, communications, and download statistics. Storman replied that he couldn’t provide this due to a medical issue and asked for time to recover.

Lost Evidence

After some back and forths in court, both parties eventually met at the end of September. Storman produced some tax documents but said that he was still working on the download numbers and Discord communications. A week later, however, he informed Nintendo that he no longer had access to this information.

Around the same time, the website and the Discord channel went offline, and both remain unavailable today.

RomUniverse, when it was still around
romuniverse

Nintendo believes that Storman willingly destroyed evidence and has little faith in his cooperation going forward. The company, therefore, asks the California federal court to grant summary judgment, holding the operator liable for direct and secondary copyright infringement.

Summary Judgment

“This is a straightforward video game piracy case, and the material facts are undisputed,” Nintendo informs the court.

“For over a decade, defendant Matthew Storman owned and operated the website RomUniverse.com. He populated the website with pirated copies of thousands of different Nintendo games and distributed hundreds of thousands of copies of those pirated games.”

Nintendo also highlights the evidence that disappeared a few days after the court ordered the operator to hand it over.

“After refusing and then being ordered to produce key evidence, Mr. Storman instead destroyed it. That evidence included communications with his website administrators and data showing how many times each of the pirated video games had been downloaded.”

According to the gaming giant, it is crystal clear that for many years Storman both uploaded and distributed Nintendo’s games, resulting in many copyright and trademark infringements. Instead of taking the case to trial, it wants the court to issue a summary judgment.

$15+ Million

In order to compensate for the massive damages Nintendo claims, the company requests $4.41 million in copyright damages and $11.2 million for trademark infringement, bringing the total to $15.61 million.

In addition to the damages, Nintendo also seeks an injunction to prevent further copyright infringement. Among other things, that would require Storman to destroy all pirated game copies and hand over his domain names.

Storman has yet to respond to Nintendo’s request and will have the chance to oppose it before the court makes a decision. That said, a legal battle between one man and a giant multi-billion dollar company generally doesn’t end well for the former.

Nintendo’s memorandum in support of the motion for summary judgment is available here (pdf)

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Pirate Site Operators Facing Six Years Prison, Six Million Euros in Damages

In October 2015, an investigation was launched into the operations of Descargasmix.com and associated domains including DDmix and up to 15 variants.

According to Spanish authorities, the group was the most important site network serving the Spanish-speaking community and caused significant damages to intellectual property rights holders seeking to exploit the same market.

Investigation Carried Out By Three Groups

The investigation into the Descargasmix group was carried out by three entities – the Federation for the Protection of Intellectual Property (FAP), the Association for the Management of Intellectual Rights) (AGEDI), and the Spanish Reproduction Rights Center (CEDRO).

The groups discovered multiple international links, which included those in Germany, the United States, France, and Argentina. Three people were also identified in Spain, including the platform’s most important uploader, an administrator, plus another key figure.

After the initial phases of the investigation were complete, police and judicial authorities in Spain and Argentina worked together and in early May 2018, two raids were carried out in Spain (Seville and Valdemoro) and another in Argentina (Buenos Aires)

Police reports at the time said that the piracy network had been dismantled after the key figures had been detained. This included a person detained in Seville, said to be the founder and administrator of the network. It was alleged he worked virtually around the clock, generating revenue via advertising, cyberlocker subscriptions, and the mining of cryptocurrencies via scripts installed on visitors’ machines.

Defendants ‘CB’ and ‘AF’

After arresting the suspects more than two years ago, the Seville Court has now scheduled a trial for two of the defendants to take place during July 2021. The men are charged by the Seville Prosecutor’s Office with intellectual property crimes and are demanding particularly harsh sentences.

Diario De Sevilla, which has identified one of the men by the initials ‘CB’, says the individual is alleged to have been the developer of Descargasmix.com since 2009.

Under his control, the site reportedly allowed users to share all kinds of content, from music and movies to TV shows and literary content, via cyberlockers and to a lesser extent torrent networks. Sporting events were reportedly also made available via the platform.

‘CB’ is said to have been the operator until 2015, at which point control was handed over to an Argentine citizen identified as ‘FH’, who is under investigation in his own country.

The second Spanish defendant, identified by the initials ‘AF’ and reportedly a resident of Valdemoro, reportedly assisted with the administrative functions of the Descargasmix group of sites until at least 2012. Along with ‘CB’, he reportedly obtained pirated content from other download sites and private trackers.

Spanish Prosecutor Seeking Harsh Punishments

According to the Prosecutor’s Office, both defendants benefited financially from the operations of Descargasmix, including via advertising and cyberlocker affiliate schemes.

Between 2010 and 2015, ‘CB’ reportedly made more than 118,000 euros while ‘AF’ received around 22,000 euros between 2011 and 2016. Additionally, it’s claimed that the defendants made money by hosting scripts that used visitors’ computers to mine cryptocurrency.

As a result, it’s estimated that the pair caused more than 6.3 million euros in damages, an amount the Prosecutor’s Office will try to recover during the trial next year. In addition, the authorities are also seeking six-year prison sentences for the men.

From: TF, for the latest news on copyright battles, piracy and more. We have some good VPN deals here for the holidays.

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Sci-Hub & Libgen Face ISP Blocking in India After Publishers File High Court Complaint

More than thirteen years after the first pirate site was blocked following a court order in Denmark, movie, music and sports companies in dozens of countries have sought similar action.

More recently, publishing giants including Elsevier have also sought to protect their rights by targeting Sci-Hub (‘The Pirate Bay of Science’) and Libgen (Library Genesis), platforms that help to distribute scientific and academic papers to the masses, but without charging readers a penny.

New Complaint Filed at High Court in Delhi

In a new complaint dated December 21, 2020, Elsevier, Wiley, and American Chemical Society, aim to compel Indian ISPs to block both Sci-Hub and Libgen.

Naming Sci-Hub founder Alexandra Elbakyan personally and the sites themselves, the complaint alleges that all “substantially indulge in online piracy by making available for viewing and download, providing access to, and communicating to the public, Plaintiffs’ literary works” via the Internet.

The companies acknowledge that Elbakyan has never hidden her connection to Sci-Hub but note that the sites themselves, accessible via multiple domains, have their WHOIS details hidden behind privacy services in many cases.

“Therefore, it is virtually impossible to bring the owners of the websites before this Honorable Court in order to ensure that the Orders of this Court are complied with,” the complaint reads.

To solve this accountability hurdle, the publishers have included Internet service providers as defendants in the complaint. Also named are the Department of Communications and the Ministry of Electronics and Information Technology, to ensure they play their part in having the pirate platforms blocked in India.

Complaint is Voluminous But Relies on Tested Theories

At 2,169 pages long, the publishers’ complaint is huge by any standards. However, it appears to tread little new ground and instead bases itself on previously tried and tested procedures.

In particular, it leans heavily on complaints previously filed by Twentieth Century Fox and local Disney-owned media giant UTV Software Communications, which resulted in some of the largest torrent and streaming sites on the Internet being permanently blocked in India.

In the current complaint against Sci-Hub and Libgen, which is similar to the UTV case, the aim is to categorize the platforms as “rogue sites” worthy of the special actions available under a so-called “dynamic injunction”. In practical terms, this means that the plaintiffs’ won’t have to keep returning to court for additional injunctions when Sci-Hub and Libgen predictably launch new domains and mirror sites to avoid blocking.

According to Sci-Hub, the case was to be heard Thursday in the High Court of Delhi. In the same tweet, the platform also shared a full copy of the complaint, available here.

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