Around the world, file-sharers are regularly pressed to pay significant settlement fees, often backed up by pressure from a lawsuit.
These efforts, often characterized as “copyright trolling,” share a familiar pattern. Copyright holders acquire a subpoena to get the personal details of an alleged pirate and then contact the person with a settlement request.
This was also the case when Darren Brinkley was sued in a Utah federal court in 2017. In a complaint filed by Criminal Productions – known for the movie Criminal – he and 31 others were accused of illegally sharing a copy of the film.
Accused Pirate Fights Back
Brinkley denied these claims and rejected the settlement offer. Initially, the movie company maintained its claim, but after the accused pirate fought back, Criminal Productions let the case go.
The defendant, however, wasn’t prepared to walk away without getting his bills paid and submitted a motion to cover the legal fees. Brinkley’s attorneys argued that, while the filmmakers had no intention to litigate the “baseless suit,” their client was forced to run up significant costs.
“These tactics should at minimum require that Defendant Brinkley be made whole for Plaintiff’s filing of litigation it clearly had no intention of pursuing and that may have had no basis in the first instance. This is the very definition of ‘cut and run’ litigation,” they argued.
Brinkley’s attorneys calculated the total costs at $62,818.35 which they requested to be paid in full. A few days ago, District Court Judge David Nuffer ruled on the matter. While he agrees that the film company has to pay up, the final award is significantly lower.
Court Awards $4,420 in Attorneys’ Fees
Judge Nuffer granted a sum of $4,420 in attorneys’ fees and costs, which represents the costs that were incurred until December 22, 2017, plus the costs for the motion itself. According to the order, Brinkley “declined the opportunity to resolve the claims” without incurring further costs after that date.
This decision is in part based on repeated offers from Criminal Productions to ‘settle’ the matter without further costs, which Briskley denied.
Deterring ‘Copyright Troll’ Tactics
While the relatively low amount will likely come as a disappointment to the accused ‘pirate,’ the court did agree that the movie company should be deterred from avoiding discovery obligations by dropping out of lawsuits when they are challenged.
“As Brinkley argues, this avoidance of disclosure and discovery obligations is consistent with the typical litigation behavior of a ‘copyright troll’, who targets hundreds of defendants and offers quick settlements priced so that it is less expensive for the defendant to pay the settlement than to defend the claim,” the order reads.
The court didn’t rule on the accuracy of the defense allegations in this specific case. However, as a deterrent, Criminal Productions will have to pay part of the defendant’s costs.
“But Productions should be deterred from filing lawsuits in which it declines to provide evidence to a defendant, avoiding disclosure and discovery obligations, thus forcing defendants to incur defense costs even though the defendant will never have an opportunity to mount a defense because Productions is ready to dismiss when opposition arises,” Judge Nuffer notes.
Over the past several years, photographers have filed thousands of lawsuits against companies that allegedly use their work without permission.
The majority of these cases, which include prominent targets such as Yahoo.com, Verizon.com, MSN.com, MTV.com, Gawker.com, are handled by attorney Richard Liebowitz.
We first spotted this emerging trend in 2016 and, at the time, Liebowitz told us that he was helping independent photographers to protect their rights. All too often, companies would take their work without paying.
“Copyright infringement is an ongoing issue. Companies are using other people’s hard work and profiting off of it. It is important for photographers and the creative community to unite and stand up for their rights and protect their work,” Liebowitz said.
Liebowitz’ misconduct and sanctions
Since then, a lot has happened. While copyright infringement remains a problem for photographers, Liebowitz has mainly made a name for himself through his controversial practices. Courts have sanctioned the attorney for various types of misconduct, reaching a new milestone late last week.
A scathing order issued by US District Court Judge Jesse M. Furman leaves little to the imagination, starting with some background information on Liebowitz’s young but troubled career.
The attorney passed the bar in 2015 and filed his first copyright case a few months later. Since 2017, he has filed numerous complaints. What stands out just as much, however, is the number of times courts have sanctioned him for misconduct.
“In that same period, he has earned another dubious distinction: He has become one of the most frequently sanctioned lawyers, if not the most frequently sanctioned lawyer, in the District,” Judge Furman writes.
The Judge notes that the attorney was repeatedly chastised and warned by courts, where other judges described him as “a copyright troll,” “a clear and present danger to the fair and efficient administration of justice,” and an “example of the worst kind of lawyering.”
Some of these descriptions also appear to apply to the present lawsuit, which again spiraled out of control.
Usherson v. Bandshell
The case in question was filed on behalf of photographer Arthur Usherson and accused Bandshell Artist Management of using one of his photos without permission. As the case progressed, however, the attorney’s questionable practices took center stage.
Liebowitz violated at least six court orders and repeatedly lied to the Court, even under oath. In addition, he falsely claimed that the photo’s copyright was registered when the lawsuit was filed, which turned out not to be true.
In a 54-page order (pdf), Judge Furman goes over each of these issues and ultimately reaches the conclusion that, given the attorney’s “deplorable record,” steps should be taken to suspend the attorney’s ability to file new cases.
Sanctions and a Potential Ban
This decision is ultimately up to the Grievance Committee of the court, which received a copy of the order. This could eventually lead to a ban on practicing in the Manhattan Federal Court, as Daily News notes.
However, that doesn’t mean that there’s no punishment. Judge Furman ordered Liebowitz and his law firm to pay sanctions totaling $103,517.49. On top of that, the attorney must send a copy of the opinion to all of his current clients.
This is not the first time the attorney has been sanctioned and whether this order will change anything remains to be seen. That said, given his track record, future cases will likely find themselves under a magnifying glass.
TorrentFreak reached out to Mr. Liebowitz for a comment on the order but we have yet to receive a response.
Reports of movie companies tracking down alleged pirates in order to extract cash settlements are commonplace today.
After IP addresses are monitored in BitTorrent swarms, companies regularly obtain court orders requiring ISPs to hand over the personal details of alleged infringers, to whom they send correspondence threatening a lawsuit, unless they pay up of course.
On first view, a case in Australia seems to follow a similar pattern but the details reveal a more interesting set of circumstances.
In an application filed at the Federal Court in Australia, Siemens Industry Software Inc asked the Court to compel local ISP Telstra to reveal the identities and personal details of “20 potential infringing users” who used “cracked” versions of its software.
However, instead of tracking these alleged pirates in BitTorrent swarms, Siemens obtained evidence of their infringement directly from their computers.
Expensive Software With the Ability to “Phone Home”
The software in question, NX and Solid Edge, are extremely expensive CAD packages that come in individually licensed modules carrying price tags of up to AUS$60,000 (US$41,200) each, with bundles topping out at more than AUS$337,000 (US$231,000) according to Siemens’ application. What’s special in this case is that both pieces of software are able to “phone home”, providing the developer with evidence of infringement.
“In order to prevent and detect copyright infringement Siemens has developed and uses an ‘automatic reporting function’ or ARF, which it has embedded in each of the asserted software products. It cannot be removed or ‘switched off’ from the asserted software,” wrote Justice Burley in his order handed down last Friday.
The ARF is able to identify the specific computer on which unlicensed copies of software are used, information that is then transmitted back to Siemens when the computer running the software is connected to the Internet.
Siemens is on the lookout for “cracked” versions with their protection removed, examples of which can be found on The Pirate Bay, among other sites.
“The primary method of copyright infringement about which Siemens is concerned is where the alleged infringer uses versions of the asserted software that have been ‘cracked’ or tampered with by a person or (more likely) a company who is licensed to use some, but not all of the asserted software. The cracking allows the infringer to have full access to all of the modules of the asserted software without having paid to licence them,” Justice Burley added.
How the ARF works was detailed to the Court in a confidential affidavit but there are claims that it is sometimes able to identify the person who cracked the software, the email address of the entity using the software, plus an IP address, in this case those allocated to Telstra customers.
“Material Reproduction” of the Software in Breach of Copyright
Considering that the ARF is part of the software in question and was able to communicate back to Siemens, the Court was convinced that a “material reproduction” of the software had probably taken place without a license, in breach of copyright. As a result, Telstra is now required to hand over the details of the subscribers associated with the IP addresses identified by Siemens.
In his order, Justice Burley seeks to ensure that any information obtained by Siemens is used appropriately, referencing the ultimately-failed Dallas Buyers Club case of 2015. Interestingly and perhaps of comfort to those who may have downloaded Siemens’ software purely for home use, the company has assured the Court that it will not pursue people who have not used the software commercially.
TorrentFreak was able to obtain ‘NFO’ text files that were released by cracking/piracy groups associated with the Siemens products in the case detailed above. While they contain detailed instructions on how to get the software running without paying, they appear to be oblivious to the existence of the ARF.
The Federal Court Order, which includes the IP addresses targeted by Siemens and a copy of the letter it intends to send alleged infringers, can be obtained here (pdf)
From: TF, for the latest news on copyright battles, piracy and more.
In recent years, adult entertainment outfit Malibu Media has often been described as a copyright trolling operation.
The company, known for its popular “X-Art” brand, has gone after thousands of alleged file-sharers in United States courts.
In some cases, the defendants are indeed guilty, but innocent subscribers get caught up in these cases as well. This is problematic as wrongfully accused people find themselves in somewhat of a Catch 22 situation.
Not responding in court is quite risky, as it can result in a default judgment of tens of thousands of dollars. Hiring a lawyer to mount a defense is not cheap either and can easily set someone back $1,000 for some basic paperwork.
This leads to the rather ironic situation where some innocent subscribers settle the matter for a few hundred dollars, just to get rid of it. However, not everyone takes this route. Every now and then we see a defendant who is willing and capable to put up a fight.
Malibu Media vs. McManus
Tim McManus falls in the latter category. McManus is an IT-specialist who teaches at Fordham University and also runs his company Greenwood Digital. Given his expertise, he wasn’t easily threatened when Malibu Media tried to uncover his identity through the court.
Instead of running away, or going into hiding, he reached out to Malibu Media directly to tell them that they had targeted the wrong person. Not just because of his background, but since he didn’t pirate the files they accused him off.
“I wrote back to them that they shouldn’t try to sue me because their evidence was flimsy at best, that I would use that evidence against them in court, and I would make the court pay my legal fees,” McManus tells us.
This was early 2017 and a lot has happened since. Regular readers may remember the case as we gave it a mention last year. Unfortunately for McManus, his letter didn’t have the desired effect. Instead of dropping the case, the company named him and his company as defendants and moved ahead with the case.
As we often see in these lawsuits, Malibu Media offered to settle the case for over $10,000. However, McManus had no interest in paying anything and went on the offensive. Through his lawyer, he filed a counterclaim for “abuse of process” and requested discovery.
This worked, as Malibu Media quickly informed the court that they wanted to dismiss the case. Not because they realized that they may have sued the wrong person though. Instead, the company informed the court that it chose not to continue because the defendants are “IT professionals” who know how to hide infringing activity.
At this point, McManus had no intention of letting Malibu Media off the hook. He spent a lot of money on legal costs and, as promised in his initial letter, he wanted Malibu Media to pay the bills. Even if that meant going to an expensive trial. However, it never got that far.
Dismissal and Settlement
A few weeks after we highlighted the matter in a detailed article, both parties informed the court that they had settled the case. This was a surprising turn of events, to say the least.
So what happened? We reached out to McManus to hear his side of the story. At least, as much as he could share. He informed us that the case was indeed settled but, due to the agreement, he is not allowed to share any specifics. That said, he is happy with the outcome.
“All I can tell you is that I have an amicable confidential settlement. In my opinion, I was happy with the settlement, or I would not have agreed to it,” McManus tells us.
Based on this statement and the direction the case was going in, it is likely that Malibu Media paid him a settlement amount. What’s perhaps more interesting, is to see if there’s a lesson to be learned for people who end up in a similar position. According to McManus, this is certainly the case. It can pay off to fight back.
“The plaintiff doesn’t want to lose money in these lawsuits, and they don’t want their methods questioned. Anyone who hires a lawyer and fights them will either get a settlement or their case dismissed,” McManus tells us.
False Accusations and Flawed Evidence
McManus says he fought the case out of principle and to clear his name. This was important because one of his students brought up the case in class, which was damaging his reputation.
“I was willing to spend as much money as it took fighting them in court to get a ruling in my favor. I spent a long time creating a good name for myself, I wasn’t going to let some bogus allegations against me damage it in any way,” he tells us.
While many people may have the same sentiment, it’s still a big step to take a fight to court where outcomes can be unpredictable. However, as an IT-expert, McManus knew that the piracy claims wouldn’t hold up.
“All of their evidence is flawed. None of it holds up in court, and most of it will never make it into the trial phase,” he tells us.
“The important thing to remember about the plaintiff is that they parade a lot of technical information in front of the court. The courts are not technical experts, so they admit most of it. I am a technical expert and had the best lawyer in New Jersey to help fight this case. The plaintiff had no chance of winning this case.”
This begs the question: why settle if you have such a strong case? According to McManus, this was mostly based on the advice of his lawyer, who stressed that trial outcomes can be unpredictable.
“She had some very sound advice for me: You never know what is at the end of a lawsuit, and there is no guarantee it will be what you want. Additionally, it would have cost tens of thousands of dollars more to proceed. I had the money, but I thought it was prudent to take the advice of the expert in my case, and that was my attorney.”
In hindsight, McManus has some regrets about taking the settlement as he would’ve loved to “publicly slay the dragon.” Nevertheless, he believes it was the right move at the time.
Pay to Play
Looking back, this case makes it clear once again that fighting copyright trolls can certainly be worth it. However, it might not be the best option for everyone, if it’s an option at all. After all, most people don’t have thousands of dollars to spend on a legal case.
If anything, this case is an illustration that the justice system is “pay to play.” People who don’t have the financial means to fight back are at a severe disadvantage. This is a vulnerability some companies are eager to exploit.
This is also what McManus learned. While his case turned out right, someone in the exact same position may have never gotten this far.
“I learned that we do not have a ‘justice system’ in the US. There is no justice in the system. It is a ‘legal system’ that requires money to participate in and accomplish anything. If you don’t have money, don’t expect to get the outcome you want. Like it or not, that’s the truth. That’s what I learned from this experience,” McManus concludes.
From: TF, for the latest news on copyright battles, piracy and more.
In so many different ways, large and small, good and bad, 2013 was a memorable year.
In politics, Barack Obama was inaugurated for his second term as US president and Baroness Thatcher, the UK’s first female prime minister, passed away aged 89. It was also the year when Edward Snowden blew the whistle on NSA spying and the words “twerk” and “selfie” were added to the dictionary.
While these events may be a distant memory for most, people who were customers of ISP Sky back in 2013 are now being given a crash-course in history. After being dormant for years, copyright trolls are now writing to individuals claiming that if they don’t pay a sizeable settlement, they face being dragged to court over alleged movie piracy.
Alleged Infringement, Seven Years Ago
In September 2014, TorrentFreak learned of a UK court case that had just appeared before the Chancery Division. TCYK v British Sky Broadcasting featured the company behind the Robert Redford movie The Company You Keep demanding the personal details of Sky subscribers who had allegedly downloaded and shared the movie without permission.
During March 2015, Sky confirmed it would be handing over the details of some of its customers to TCYK, warning that it was likely that the company would demand compensation for infringements that were allegedly carried out up to two years previously.
Some People Probably Paid Up, Others Did Not
From experience we know that when faced with scary-looking copyright infringement claims, some letter recipients pay up. The reasons for this are varied, from admitting they were in the wrong through to being flat-out scared of the consequences, regardless of fault. However, some people weren’t so easily pushed around and chose to hire a lawyer to fight their corner.
In 2015, some people targeted by TCYK hired UK-based lawyer Michael Coyle of Lawdit Solicitors to deal with their predicament. TorrentFreak was informed that in several cases and after obtaining legal representation, TCYK and business partners Hatton and Berkeley backed away from their demands. However, to the surprise of almost everyone, half a decade later they are now back again repeating the same things.
Remember Us? We’re Back Again For Another Go
During the past several weeks, TCYK via London-based Hatton & Berkeley have been writing to people they originally sent claims to back in 2015. In order to protect the identities of those who were kind enough to share their correspondence with us, we won’t publish the letters here in full. However, we can provide the following outline.
The letter begins with a statement that H&B Administration has “recently taken over management” of the allegations against the recipient, noting that their member TCYK LLC (the companies are in an LLP together) has a “legitimate claim in relation to the unauthorized distribution” of the movie The Company You Keep.
What follows is a speculative calculation of damages the alleged infringer supposedly caused seven years ago, taking the supposed BitTorrent ‘swarm size’ (people sharing the movie) at the time of infringement, multiplying it by the retail cost of the movie, and ending up with a gross profit of which the company is claiming 70%.
Again, we won’t detail specific sums here but we’ve seen claims in excess of £2,000.
As we highlighted two years ago, the calculation as presented is flawed and could come under pressure if subjected to scrutiny. Nevertheless, none of that stops companies from piling on the pressure and they at least claim to be serious about taking matters to court.
Pay Up or Else….Again
“These claims will be issued in the IPEC (Intellectual property and Enterprise Court) 14 days from the sending of this letter. At which point a claim form with the particulars of claim attached will be served upon you. In order to avoid this, you may email or call at the address stated below and offer a settlement of the claim,” the letters seen by TF read.
Interestingly, the letters also provide links to two sources, claiming that they both offer “official guidance” on how to deal with a copyright infringement letter.
Will a Claim Older Than Prince George Hold Up in Court?
This is perhaps the biggest question here. While a copyright claim can be brought any time up to six years after the alleged offense, some of the claims reviewed by TorrentFreak are outside that period by several months. We spoke to lawyer Michael Coyle who raised doubts over whether a claim could be brought.
“I was always under the impression that the limitation period under the Copyright Designs and Patents Act 1988 is six years from the date when the alleged infringing act is committed, which means that (in normal circumstances) once that time has expired, plaintiffs are unable to go to court and pursue a case for damages,” he explained.
The other interesting factor is that when pursuing the case against Sky all those years ago, TCYK characterized its predicament as particularly urgent. Yet, after receiving several denials of their claims back in 2015, they appear to have waited five long years only to respond with yet another claim for cash.
Only time will tell whether they’ll succeed in wringing a few hundred pounds from their targets seven years on but as things stand, the odds of succeeding in court make for an interesting calculation.
From: TF, for the latest news on copyright battles, piracy and more.
Sweden is widely known as the birthplace of The Pirate Bay, without a doubt the most iconic torrent site on the Internet.
However, in recent years the country has also evolved into a hotbed for copyright trolls. These use the same file-sharing technology to extract monetary settlements from suspected pirates.
This ‘copyright-trolling’ phenomenon is driven by a select group of copyright holders. In court, they ask for permission to obtain the personal details of account holders, claiming that their IP-addresses are tied to infringing activity.
The law firms involved represent a variety of companies, including the makers of familiar movie and TV titles such as ‘Angel Has Fallen,’ ‘Black Sails’ and ‘Spartacus,’ but also music, and adult entertainment.
The first wave of these lawsuits in Sweden started almost four years ago but the practice has grown exponentially since. According to Swedish Internet provider Bahnhof, which has kept track of these developments, record numbers were reached last year.
During 2019, a total of 140 new applications were submitted to the Patent and Market Court. This is up from 72 during the whole of 2018, and substantially more than the 27 applications that were filed a year earlier.
Not only has the number of applications grown, but the cases also target more IP-addresses in total. In 2019, 60,368 IPs were targeted which is a 15% increase compared to 2018. Combined with the 2017 numbers, we see that more than 144,000 IP-addresses have been targeted over the past three years.
It’s worth noting that this exceeds the number of targets in other, much larger countries, including the United States. While the US has a much larger population, the number of targeted IP-addresses in federal cases are at most a few thousand in a typical year.
It may seem odd that an Internet provider is keeping track of these statistics. Especially when considering that Bahnhof has an entire website dedicated to the copyright trolling efforts, which it describes as extortion practices.
However, Bahnhof is not an ordinary ISP. The company has been very vocal in opposing these legal demands and actively shields its subscribers from getting exposed. With success, as it simply doesn’t hand over any data.
This dedication to protecting the privacy of subscribers is good PR for the company. Its competitors, however, will be less pleased.
According to Bahnhof, four ISPs were requested to disclose data during the past year. Telia was the main target with 31,572 IP-addresses, followed by Com Hem (19,520), Telenor (9,276), and Tre (312).
A significant number of the targeted IP-addresses were requested by adult entertainment companies, which results in settlement requests such as the one below.
In the request, the account holder is offered a settlement of 7,000 Swedish Krona ($722). At the top of the letter, it prominently states that this is about “filesharing of an erotic movie”.
According to Bahnhof, this type of language is likely used to invoke some extra shame, which may increase the likelihood of paying.
As for the future, there is no sign that things will be slowing down anytime soon. Dozens of new cases have already appeared this year. Time will tell whether we will see another record in 2020.
More information on these and other cases is available on Bahnhof’s website, which is regularly updated with new information.
Two companies involved in this area are Rambo V Productions, Inc. (Rambo: Last Blood) and Fallen Productions, Inc. (Angel Has Fallen). While mostly active in the United States, two lawsuits filed in Canada’s Federal Court of Toronto in recent days show that their litigation and cash settlement program is beginning to spread.
Filed closely together on February 7, the two statements of claim are almost identical, differing only in respect of movie titles and IP addresses, plus dates and times when the infringing behavior allegedly took place. The Rambo V Productions claim targets 1,218 Doe Defendants, with Angel Has Fallen targeting 2,130.
In common with all related complaints, the claims detail how BitTorrent technology works and how individuals participate in concert with other users in order to download and share movies online, without obtaining permission from the copyright holders.
“Each Doe Defendant has unlawfully, and without the Plaintiff’s authorization or consent, utilized the BitTorrent peer-to-peer network to download and/or unlawfully offer to upload the Work thus infringing the Plaintiff’s copyright in the Work,” the claims read.
In similar cases filed in other jurisdictions, it is common for each defendant to be referenced by a single IP address alongside an alleged date and time of infringement. In these cases, however, all defendants have two dates and times of supposed infringement logged against them, which are spaced several days apart. The reason for this becomes apparent in the following paragraph.
“In accordance with the provisions of s. 41.25 and s. 41.26 of the Copyright Act each Defendant was notified of his or her Unlawful Acts by Notice,” the claims read.
This is a reference to the provisions (1,2) in Canadian law that allow copyright holders to send warning notices to alleged infringers via their service providers. According to the plaintiffs in both cases, each Doe Defendant was sent such a notice but failed to take remedial action.
“The First Notice informed each Defendant that they had been detected by forensic software as offering for upload the Work, and indicated that if the Work was taken down that there would be no action taken as against such Defendant. Each Defendant failed to respond, or refused to respond, to the First Notice and continued his or her Unlawful Acts,” they add.
When no action was taken in response to the first notice, the plaintiffs claim that their counsel sent a second notice to the Doe Defendants, informing them that the copyrighted work was still being made available and that legal action could follow.
“This Second Notice indicated that the work had not been removed and that legal action may be taken as against such Defendant. The Defendant failed or refused to respond to the Second Notice and has continued his or her Unlawful Acts,” the claims note.
While one person is usually named as the customer of an ISP (the person who pays the bill) it is common for other people in a particular household to have access to the same Internet connection via a router. This means that the bill payer may or indeed may not be the person (the Doe Defendant) who committed any of the alleged infringements.
The claims for both Rambo: Last Blood and Angel Has Fallen attempt to cover all bases by stating that even if the bill payer isn’t the direct infringer, he or she is ultimately responsible.
“In that case, the customer should have, and ought to have, the knowledge of who was using the customer’s internet account at the specifically identified date and time,” the claims add. But the responsibility doesn’t end there.
While acknowledging that some of the defendants may not be ‘direct infringers’, the plaintiffs state that through “negligence or wilful blindness” they “authorized others” to infringe after failing to exercise sufficient control over the use of their Internet connections when they knew that infringement was taking place.
“Each Defendant was provided with prior notice (the First Notice) that such Defendant’s internet account was being used in a way that infringed the Plaintiff’s copyright, and yet such Defendant did nothing to prevent or cease the infringement. Each Defendant therefore knew or should have known that their internet account was being used contrary to s. 27(1) and s.27(2) of the Copyright Act,” both claims add.
While the statements of claim state that defendants can be served in either Canada or the United States, both indicate that the listed IP addresses are believed to be located in Canada and that damages and injunctions will be sought as part of the action.
Excess Copyright‘s Howard Knopf believes that the plaintiffs will now attempt to obtain “Norwich Orders” to force the ISPs to hand over the identities of the individuals behind the listed IP addresses. At this stage it’s unclear whether any or all will fight back.
The claims filed by Rambo V Productions and Fallen Productions can be found here and here