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‘Copyright Trolls’ Enter Brazil Demanding Money from Suspected Pirates

In recent years, millions of BitTorrent users around the world have received settlement demands from copyright holders.

These so-called “copyright trolling” efforts have been a common occurrence in countries such as Germany, Sweden and the United States. More recently, it started in Brazil as well.

The Usual Suspects

While the letters are sent from another continent, the key players involved are familiar names. The allegedly pirated films, such as Hellboy, Angel Has Fallen, and Rambo: Last Blood, are linked to companies that chase down alleged pirates in several other countries.

Brazilian news site Canaltech wrote an excellent report on the latest copyright troll invasion. The publication spoke to one of the targets, identified as YF, whose mother received the settlement demand as she is the household’s registered Internet subscriber.

“I never thought it would happen to me. My concern was to solve the case on my mother’s behalf, but I was wondering how [the lawyers] got access to all the information they required to send the notification,” YF said.

First Court Case in 2019

As it turns out, the personal details were obtained in court, where the copyright holders requested information on thousands of alleged pirates. While this largely went unnoticed until recently, the related court proceedings got underway last year.

In July 2019 the UK-registered company “Copyright Management Services LTD“, sued Algar Telecom in a Rio de Janeiro court, requesting the ISP to disclose the personal details of several suspected pirates. Since the number of targeted IP-addresses was relatively small, the case remained under the radar.

The same can’t be said for the case that the rightsholders filed in São Paulo this year, targeting subscribers of Claro, a much bigger ISP. Instead of going after a small number of users, this case revolves around more than 50,000 uploads of pirated films.

Guardaley Provided Evidence

These public torrent uploads are tracked by the German outfit Guardaley, which is another familiar name. GuardaLey was behind the record-breaking The Hurt Locker and The Expendables lawsuits in the US and is providing evidence for cases all around the world.

In court, Copyright Management Services used the evidence, which is little more than IP-addresses and timestamps, to request the personal details of the subscribers linked to these accounts. The court eventually signed off on this, after which Internet provider Claro shared a massive database of personal information.

Subscribers Exposed

Initially, the spreadsheet with 70,000 entries, including personal details, was posted in the court docket that could also be accessed by third parties including journalists. That document was redacted after complaints but the copyright holders have full access, of course.

Soon after, the information was used to send settlement requests to the alleged pirates. In the letter, a copy of which was obtained by the Brazilian Pirate Party, the copyright holders request a settlement fee of 3,000 Brazilian Real ($575).

A settlement letter (credit: Pirate Party)

brazil settlement troll

This settlement amount is disproportionate, according to YF. Especially since commercial piracy operations are operating throughout Brazil, apparently undeterred.

“I did not make a profit from the film, while there are large pirated film sales operations in any city. Compared to these, I am a small fish,” YF said. The accused pirate did reach out to the law firm offering to pay 1,000 Real instead, but that offer remains unanswered.

Educating Pirates

Rafael Lacaz Amaral, who represents the rights holders, informed Canaltech that his law firm is merely passing on data and sending out letters. The lawyer does, however, stress the ‘educational’ message of the settlement campaign.

“The objective is to make people aware that there is an investment being made in the production and also in the protection of these works, for which to copyright infringers are held responsible”, Amaral explains.

How to Respond?

Opponents counter that this campaign isn’t about education, but about monetization. These types of legal threats can be quite intimidating and some people may simply choose to pay up to avoid trouble, even when they’re innocent. After all, hiring a lawyer to fight the claims isn’t cheap either.

The other option would be to completely ignore the requests. The settlement offers are made out of court and according to the local Pirate Party, no file-sharers have been sued directly, yet.

“Our recommendation is that people do not give in and do not pay. As the old saying goes, don’t feed the trolls,” a Pirate Party member informed Canaltech.

This ‘ignore’ tactic has worked in other countries, but there are no guarantees. However, now that this campaign is out in the open we expect more legal experts will join in with advice and recommendations.

While our understanding of Brazilian law and legal proceedings is limited, it can pay off for defense lawyers to look at Copyright Management Services and the rights it owns or controls. Earlier this year, the Danish High Court dismissed several cases filed by the same company, concluding that it produced no content, distributed none, and wasn’t in a position to sue.

TorrentFreak reached out to a representative of the copyright holders to hear their side of the story, requesting more information, but at the time of writing we have yet to receive an official response.

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

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Record Labels Secure Big Win in Piracy Lawsuit Against Spinrilla

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

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

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

Spinrilla Fights Piracy Accusations

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

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

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

Court: Spinrilla is Liable

This week, US District Court Judge Amy Totenberg ruled on the requests. The 47-page order is good news for the music companies, as the court agrees that Spinrilla is liable for direct copyright infringement.

In her ruling, Judge Totenberg writes that Spinrilla admitted that 4,082 copyrighted sound recordings were streamed at least once through its website or app. The mixtape service failed, however, to offer a usable counterargument to this claim.

Spinrilla’s legal team brought up several cases in the company’s defense, but these all deal with uploading and downloading of infringing content, not streaming. Also, the cited cases are not about infringements of the public performance right, contrary to the present lawsuit.

Streaming vs. Downloading

This is a problem because the record labels highlighted cases where courts held that streaming can be a direct infringement of exclusive performance rights, even when the streaming occurs at the request of the user. That’s what happened at Spinrilla.

“Here, Plaintiffs do not rely solely on uploads and downloads of their music to and from Spinrilla. Defendants have created an interactive internet player that streams copyrighted content directly from its website and mobile app,” Judge Totenberg writes.

As a result, Spinrilla is held liable for directly infringing the copyrights of the 4,082 sound recordings that were listed in the complaint.

“Defendants have infringed Plaintiffs’ exclusive right ‘to perform’ their copyrighted sound recordings ‘publicly by means of a digital audio transmission.’ Therefore, Plaintiffs are entitled to summary judgment on their claim of direct infringement of the 4,082 works in suit.”

With the maximum statutory damages of $150,000 per work, this opens the door to an astronomical award of more than $600 million dollars. And that’s not the end of the bad news for Spinrilla.

Limited Safe Harbor

The court also ruled that the mixtape service is not eligible for a DMCA safe harbor defense before July 2017. While the site and app have accepted takedown notices for many years, they didn’t register a DMCA agent with the Copyright Office, which is a requirement.

Spinrilla first registered a DMCA agent in 2017, five months after the lawsuit started. In addition, it didn’t have a repeat infringer policy before July that year, another requirement for safe harbor protection.

“Consequently, the undisputed facts demonstrate that Defendants did not satisfy all of the required elements to be eligible for safe harbor defense until July 29, 2017, which is when they first designated an agent with the U.S. Copyright Office and had adopted a repeat infringer policy,” Judge Totenberg writes.

This means that Spinrilla can only invoke the safe harbor defense for infringement that occurred after that date.

The record labels asked the court to go even further, arguing that Spinrilla’s repeat infringer policy wasn’t “reasonably implemented,” because not all repeat infringers were terminated. However, the court rejected this, as the 4,082 sound recordings didn’t include any tracks that were uploaded by known repeat infringers.

Record Labels are Happy

Overall, however, the record labels are very pleased with this significant win. With streaming becoming the norm today, this case is crucial.

“We are gratified by the court’s decision, which sends a message that online streaming providers cannot hide behind the actions of their users to avoid their own liability for copyright infringement that occurs through their systems,” Kenneth Doroshow, RIAA Chief Legal Officer says.

“The court got it exactly right on several key points of copyright law in the digital streaming context, and we hope that it serves as a lodestar for other courts and service providers alike.”

The RIAA, which represents the major record labels, is also happy that the ruling confirms that mistakes can be just as infringing as posting full sound recordings.

While the ruling is an early win for the music companies, the case isn’t over just yet. There are still matters that have to be decided at trial, including the scale of the damages, if these are awarded. Alternatively, the parties can try to resolve the matter through a mediation process.

At the same time, Spinrilla is also involved in a legal battle with the RIAA directly. The mixtape site sued the industry group earlier this year, accusing it of sending false DMCA takedown notices. That case remains pending.

A copy of the order issued yesterday by US District Court Judge Amy Totenberg is available here (pdf)

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

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Court Suspends ‘Copyright Troll’ Lawyer From Practicing Law

Over the past several years, independent photographers have filed more than a thousand lawsuits against companies that allegedly used their work without permission.

The majority of these cases, with prominent targets such as Yahoo.com, Verizon.com, MSN.com, MTV.com, Gawker.com, are handled by attorney Richard Liebowitz.

When we first spotted this emerging trend in 2016, Liebowitz told us that he was helping independent photographers to protect their rights. All too often, companies would take their work without paying, he said.

Liebowitz’ Repeated Misconduct

While that argument still holds true in many cases, the attorney himself has trouble sticking to the rules as well. In his relatively short career, courts have reprimanded and sanctioned him for various types of misconduct.

This summer, for example, in the Usherson v. Bandshell case, a New York federal court ordered the lawyer to pay over $100,000 in sanctions for violating several court orders and repeatedly lying under oath. This included a false claim that the photo’s copyright was registered when the case was filed.

In a detailed order, the court further concluded that, given the attorney’s “deplorable record,” steps should be taken to suspend the attorney’s ability to file new cases. As such, the matter was referred to the court’s Grievance Committee.

Suspended from Practicing Law

The Grievance Committee evaluated the findings recently and concluded that Liebowitz will be suspended from practicing law in the district until further order.

“After careful deliberation, the Committee is unanimously of the view that the Charges are strongly supported by the record. What is more, the Committee is unanimously of the view that interim disciplinary measures against Respondent must be put in place immediately,” the Committee writes.

The order, issued last week, notes that the measure is appropriate to protect the public from future violations. Given the attorney’s track record, this is a real threat.

“The record in this case — which includes Respondent’s repeated disregard for orders from this Court and his unwillingness to change despite 19 formal sanctions and scores of other admonishments and warnings from judges across the country — leads the Committee to the view that recurrence is highly likely.”

The suspension is temporary, as the court still has to finalize the full proceeding. For the time being, however, Liebowitz will have to halt all his legal activities in the district.

Further Sanctions?

Meanwhile, the various missteps continue to pile on. In addition to the $100,000 sanction in the Usherson v. Bandshell case a few weeks ago, the attorney was also instructed to send a copy of the scathing order to all of his clients. However, that didn’t happen.

In September he informed the court that he had failed to inform some clients right away. A month later, it became clear that he failed to do so in 113 cases, which is far from a minor oversight.

Yesterday, District Court Judge Jesse Furman wrote that this additional failure to comply with the court’s order is a strong argument to impose further sanctions.

“Had Mr. Liebowitz failed to file the Opinion and Order in a handful of cases, the failure to comply might have been understandable and excusable. But the failure to file it in 113 cases is astonishing and suggests contumaciousness, an egregiously disorganized case management system, or both.”

Nothing to Deter

Interestingly, however, the Court chose not to add any sanctions. While that may sound positive for the lawyer, the reasoning behind it is quite grim. Mr. Liebowitz may be a lost cause, Judge Furman suggests.

“[T]he ultimate purpose of sanctions is deterrence and, as Mr. Liebowitz’s extraordinary record of both sanctions and noncompliance with court orders demonstrates, it is far from clear that there is any additional sanction that would serve to deter him.”

In addition, there is no new misconduct to ‘deter’ at the movement, as the attorney is suspended from practicing law in the district now.

“Thus, for the time being, there will be nothing to deter when it comes to Mr. Liebowitz,” Judge Furman concludes.

A copy of the order issued by District Court Judge Jesse Furman, which includes a copy of the Grievance Committee’s decision, is available here (pdf). Photo credit: Liebowitz image by”King of Hearts” (CC BY-SA 4.0)

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

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Court Orders GoDaddy to Transfer Piracy Hack Store Domain to Nintendo

Nintendo is doing all it can to stop the distribution of piracy enabling hacks and modchips, including SX Core and SX Lite.

Earlier this year, the company sued a group of known ‘offenders’ that sell these tools. After the stores failed to show up in court, Nintendo requested a default judgment and permanent injunction, which was granted soon after.

Injunction ‘Shuts Down’ Modchip Stores

The injunction was a clear victory as it allowed the Japanese gaming giant to shut down several sites, including TXswitch.com, SXflashcard.com and Axiogame.com. These domain names were later transferred to the company as well.

That success wasn’t permanent though. While some stores may have vanished permanently, others have continued under new names. In the case of Txswitch.com that was pretty obvious.

A day after Txswitch.com was pulled offline, the store made a comeback on Stxwitch.com. This site looks nearly identical to the old one and even uses the same logo and code.

GoDaddy Refuses to Take Down New Domain

This type of ‘domain hopping’ is common in pirate circles and Nintendo was somewhat prepared for it. The injunction includes a section which states that “any variant or successor” of the stores is also covered, so Nintendo swiftly asked domain registrar GoDaddy to suspend the new domain as well.

However, GoDaddy refused. Despite the mention that successors are covered, the domain registrar requested a new court order which specifically mentions Stxwitch.com.

To resolve this standoff Nintendo went to court again, requesting clarification, which came this week in the form of a new order, issued by US District Court Judge Thomas Zilly.

STXWITCH.COM Has to Go Offline

“STXWITCH.COM is a ‘variant or successor’ domain name as that term is used in the Judgment,” Judge Zilly writes, stressing that all intermediaries have to cut their ties with the site.

“Defendants and all third parties acting in active concert and participation with Defendants, including registrars, are ENJOINED from supporting or facilitating access to STXWITCH.COM, and are ORDERED to cease to use the domain name STXWITCH.COM and immediately transfer STXWITCH.COM to Nintendo’s control.”

At the time of writing the store is still online, but with this order in hand, that likely won’t be the case for long. However, that doesn’t mean that it can’t reappear under yet another new domain.

All ‘Variants and Successors’ are Covered

If that happens, Nintendo doesn’t have to go to court again, Judge Zilly clarifies. GoDaddy and all other domain registrars, registries, and other intermediaries will have to take action against sites operated by the defendants, no matter what domain they use.

“For avoidance of doubt, the Court’s Judgment applies to all domain names controlled by Defendants through which Defendants engage in the conduct found to be unlawful in this lawsuit, whether or not the exact domain name is explicitly listed in the Judgment,” the order reads.

While this sounds very clear and obvious, it does raise some questions. When is a new domain a ‘variant or successor’?

Questions Remain

In the case of Txswitch the similarities were rather striking, as the same code and design were used. But what if Nintendo ‘suspects’ that the defendants are making a comeback from a different domain with a different look?

What evidence does Nintendo need to show that a new domain is a ‘variant or successor’ and is it then up to a company such as GoDaddy to ‘judge’ whether this is enough?

These are all hypothetical situations but it is likely that GoDaddy refused Nintendo’s initial request because they don’t want to be the arbiter. Future refusals will come at a price, however, as Judge Zilly ruled that failing to comply opens the door to punitive and monetary sanctions.

Legal uncertainty aside, this order doesn’t necessarily end the ‘whack-a-mole.’ There are plenty of foreign registrars and registries that don’t fall under the jurisdiction of US courts. Some of these will demand a local court order from Nintendo, which will start the process all over again.

TorrentFreak reached out to Stxwitch to ask what their plans are for the future. We have yet to hear back, but at the time of writing, they are still accepting new orders.

A copy of the order from US District Court Judge Thomas Zilly is available here (pdf)

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

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YouTube “Failed to Provide Evidence” in Copyright Class Action Counterclaim

During the summer, Grammy award-winning musician Maria Schneider and Virgin Islands-based Pirate Monitor Ltd teamed up to file a class-action lawsuit targeting YouTube.

The complaint centered on allegations that YouTube’s copyright infringement mechanisms are deficient, claiming that the company refuses to grant “ordinary creators” access to its sophisticated copyright management tools known as Content ID.

During September, YouTube fought back stating that it already goes above and beyond its obligations under the law when dealing with infringing content. The sting in the tail came in the form of additional claims, from YouTube and its owner Google, that Pirate Monitor could not be trusted to use Content ID.

According to YouTube, Pirate Monitor deployed “authorized agents” to create bogus YouTube accounts that uploaded hundreds of videos which it later took down using copyright complaints. The alleged goal was to create the impression of mass infringement in support of the class action.

Pirate Monitor Fights Back

In a motion to dismiss YouTube and Google’s counterclaims, filed on Friday, Pirate Monitor states that YouTube provided no evidence to back up the general claims that the uploaders of the videos in question had anything to do with Pirate Monitor.

“The counterclaims contain no factual allegations indicating whether the unidentified individuals were, for example, employees, officers, agents, or independent contractors of Pirate Monitor, or the scope of their authority to purportedly act on Pirate Monitor’s behalf,” the motion reads.

“As a result, the Court should disregard Defendants’ conclusory allegation that the unidentified individuals were ‘authorized agents’ of Pirate Monitor as well as their improper references to the unidentified individuals as ‘Pirate Monitor’.”

Based on the allegation that the uploaders were “authorized agents” of Pirate Monitor, YouTube previously said that declarations made to the company at the point of upload (that the content was not infringing) amounted to fraud since they breached YouTube’s Terms of Service.

Pirate Monitor believes that such serious claims need to be backed up by hard evidence.

“A claim of fraud must satisfy the heightened pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure, and will be dismissed unless it ‘specif[ies] such facts as the times, dates, places, benefits received, and other details of the alleged fraudulent activity’,” the company writes, adding that information relating to “who, what, when, where and how” must be provided to the court.

“Because Defendants fail to offer any well-pleaded facts plausibly showing that the unidentified individuals are agents of Pirate Monitor; and were acting in the course of and within the scope of that agency relationship when they engaged in the conduct alleged in Defendants’ three counterclaims, those counterclaims fail as a matter of law and should be dismissed,” Pirate Monitor adds.

Counterclaims For Fraud & DMCA Abuse Should be Dismissed

Pirate Monitor takes a similar position on YouTube’s claims that the DMCA notices that took down allegedly-infringing content were also submitted fraudulently. At no point does Pirate Monitor deny that YouTube’s claims are untrue but simply states that platform has failed to meet the standards required for such claims to be considered.

Noting that “justifiable reliance” is a necessary part of any fraud claim under California law, Pirate Monitor insists that supporting facts must be sufficiently specific. The absence of such information in its pleadings is “fatal” to YouTube’s counterclaim, Pirate Monitor adds, noting that the video platform has not “alleged any facts showing they were justified in relying on the representations of individuals they cannot identify to this
day, let alone the particularized facts necessary to avoid dismissal..”

YouTube’s Demands For an Injunction Should Be Dismissed

In its counterclaim, YouTube demanded damages to compensate for Pirate Monitor’s actions and also requested a punitive damages award to compensate for the company’s “fraudulent conduct”.

The video platform further sought an injunction to prevent Pirate Monitor and its agents from submitting any additional DMCA notices with YouTube that wrongfully claim that content on the YouTube service infringes copyrights held by Pirate Monitor or anyone it claims to represent.

According to Pirate Monitor, these requests should all be dismissed as YouTube lacks Article III standing.

Again, this centers around YouTube’s failure to provide evidence, with Pirate Monitor pointing out that the request for injunctive relief is based on past wrongs, including the allegedly-fraudulent DMCA takedown notices for which YouTube has failed to support with “even a single fact showing a real and immediate threat that Pirate Monitor will
commit those alleged wrongs in the future.”

Given that it seems unlikely that YouTube simply pulled the serious allegations in its counterclaims out of thin air, at some point the supporting evidence against Pirate Monitor and/or its “agents” will probably be revealed at some point and could even prove pivotal to the case.

Schneider/Pirate Monitor’s Motion to Dismiss Counterclaims can be found here (pdf)

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

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EFF and GitHub’s Support for YouTube Rippers is Bad News for RIAA Lawsuits

The music industry is convinced. Downloading music from public streaming services, YouTube in particular, is the greatest piracy threat to the industry.

The RIAA and several key music labels are doing everything in their power to counter this menace. They’ve sued several YouTube download sites, removed streamripper URLs from search engines, and most recently they targeted the open-source tool youtube-dl as well.

The last move was a step too far for many. It immediately triggered outrage among developers and the public at large. The opposition reached new heights this week when GitHub and EFF drew a clear line in the sand. No further.

After some modifications, youtube-dl’s repository was reinstated. This was great news for the developers, users, and many stream-ripping sites that rely on the tool. But the decision and the reasoning behind it are much, much bigger than that.

In isolation, the youtube-dl code is a relatively small problem for the music industry. Similar tools will always be available. While the RIAA liked the message that was sent by the removal, they perhaps didn’t foresee that a refusal to take down the same code would be much worse.

‘YouTube Downloading Tools are Not Illegal’

Both GitHub and the EFF have made it very clear that YouTube downloading tools are not by definition illegal. On the contrary.

“Youtube-dl is a lot like the videocassette recorders of decades past: a flexible tool for saving personal copies of video that’s already accessible to the public,” the digital rights group wrote in a recent post on the topic.

GitHub also stressed that youtube-dl is a “socially beneficial tool” which can help researchers, journalists, and the public at large.

These comments, which are only a tiny selection of the broader message, are a potential game-changer. The backing from GitHub is particularly notable, as the company is owned by Microsoft, which in its own right is one of the largest copyright holders in the world.

github reinstates youtube-dl

That said, the legality of YouTube download tools is not impacted directly by the public commentary. Eventually, this is something that courts will have to decide over. In the US, there is no clear jurisprudence on this specific issue but that may change in the near future.

The RIAA’s main argument is that these tools violate DMCA section 1201, which prohibits the circumvention of technical protection measures. In YouTube’s case, the RIAA cites the “rolling cipher” protection that YouTube uses to make downloading from the site somewhat more complicated.

Rolling Cipher Encryption?

The question is whether this “rolling cipher” is indeed a protection measure under the DMCA. That’s up to a court to decide, but we have previously shown that anyone with a browser can easily download from YouTube without extra tools.

The RIAA’s position is strengthened by a 2017 order from a court in Germany, that was also cited in the GitHub takedown notice. There, the court ruled that the “rolling cipher” is a technical measure within the meaning of Germany’s Copyright Act.

However, not everyone believes that the court was correct here. EFF stated that, contrary to the court’s ruling, there is no encryption involved. YouTube’s video streams are visible to everyone who uses a regular web browser. The ‘rolling cipher’ simply refers to a changing signature, readable by Javascript, that’s used for some videos.

“The 2017 decision of the Hamburg Regional Court in Germany that RIAA references, which refers to YouTube’s “signature” mechanism, was wrongly decided and is not binding nor even persuasive under U.S. law,” EFF wrote.

GitHub also believes that the German court made an error. Following EFF’s lead, the company concluded that youtube-dl was not circumventing a technical protection measure. “We concluded that the allegations did not establish a violation of the law,” GitHub said.

Stream-Ripper Battle Continues in Court

These are strong statements that will eventually have to be tested before a judge and that may happen sooner rather than later. There are currently two major US lawsuits where the legality of YouTube rippers could be decided. While EFF and GitHub are not part of those cases, their input will likely prove a factor.

One of the lawsuits was filed by Jonathan Nader, the operator of the stream-ripper ‘Yout’, who sued the RIAA last month. Nader decided to be one step ahead of the music industry by demanding a declaratory judgment that his website doesn’t violate Section 1201 of the DMCA.

nader effTorrentFreak reached out to Nader, who said he prefers not to comment on the ongoing litigation. Especially since the RIAA has yet to formally reply.

However, the photo he shared with us reveals that he’s happy with EFF’s stance on the matter.

Nader’s lawsuit touches on the ‘rolling cipher’ argument as well, and he denies that anything is being decrypted or bypassed.

Another lawsuit where the same issue may be brought up was filed by several of the largest music labels two years ago, with support from the RIAA. They sued the YouTube ripping sites FLVTO.biz, 2conv.com, and their Russian operator Tofig Kurbanov.

Both sides are currently still fighting over whether a US court has jurisdiction. Kurbanov’s legal team recently petitioned the US Supreme Court to hear that matter.

If the court decides that the site operator has to defend himself, he is surrounded by a legal team that is confident that they can defeat the copyright and anti-circumvention allegations.

‘RIAA Opposed Every Technological Advance’

Speaking with TorrentFreak, Kurbanov’s defense attorney Evan Fray-Witzer equates stream-ripping to the other technological advances that were protested by the music industry over the years.

“It’s important to remember that the RIAA has consistently opposed virtually every technological advance from the 1970s forward including the advent of cassette tapes, compact discs, and MP3s. For 50 years they have been yelling that the sky is falling and yet – despite this hysteria – music continues not only to survive but to flourish.”

According to Fray-Witzer, this latest attack on stream-ripping is equally misguided and will eventually fail.

“Users have lots of legitimate uses for stream-ripping that have nothing to do with music. And, even when you’re talking about music, users have a legitimate right to time-shift, just as the courts found that people could record TV shows with their VCRs so that they could watch them at a different time,” he says.

2conv

The Yout.com and Kurbanov’s cases are not the first stream-ripper lawsuits. A few years ago, the record labels already sued YouTube-MP3. That site eventually settled the case privately and shut down. While the RIAA celebrated this as a major win, this outcome has little effect on the current cases.

“So far, the RIAA’s successes in court have been the result of defendants who lack the ability to fight back and to prove that these tools do not actually violate copyright law. Hopefully, that’s about to change,” Fray-Witzer notes.

“Stream-ripping sites and software are simply tools – tools with lots of legitimate uses, as the EFF has recognized,” the attorney adds.

DMCA Section 1201 Exceptions

It’s clear that the YouTube downloaders find themselves supported by the recent backing from GitHub and the EFF, but the moral support is just part of the story. In addition, both are also calling on the Copyright Office to broaden the DMCA Section 1201 exceptions.

“We are also advocating specifically on the anti-circumvention provisions of the DMCA to promote developers’ freedom to build socially beneficial tools like youtube-dl,” GitHub said this week, announcing their plan to get involved in the Copyright Office’s triannual review process.

Right now, US law makes it illegal for most developers to use or distribute code that bypasses technical protection measures, even if that technology or code can also be used for non-infringing or legal means.

Time will tell how these and other issues will develop over time but it’s clear that the RIAA’s takedown notice to GitHub was a wake-up call. Now we just have to see who and what it awakened.

TorrentFreak also reached out to the RIAA to hear their comments on these recent events but the group hasn’t responded. It’s not a stretch to conclude that they are not happy with GitHub’s reversal, to say the least.

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

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US Court Orders Couple to Pay $35,000 For Sharing Pirated ‘YTS’ Movies

Over the years, hundreds of thousands of people have been accused of sharing pirated movies through BitTorrent. Quite often, these cases end up in private and undisclosed settlements.

This was also the plan when Kerry Culpepper reached out to Mrs. Parks, a woman in Arizona whose email address was linked to downloading pirated copies of the films “Lost Child” and “Saving Christmas.”

Settlement Offer

The movie companies were able to make this connection with help from the user database of popular torrent site YTS. This information was shared as part of an earlier settlement and is used by attorney Kerry Culpepper to negotiate settlements in and out of court.

Mrs. Parks, who allegedly downloaded the film “Lost Child,” was given the chance to resolve her case for $1,000 in four separate payments. If the first three payments arrived on time, the final $250 would be waived.

This same tactic is being used on dozens if not hundreds of alleged YTS users. It’s not clear how many people settle, but Mrs. Parks and her husband Mr. Dabney initially seemed willing to take the deal, which was confirmed over the phone and via email on June 8.

Things Escalated

After this initial agreement, communications between both sides went downhill. No payments were made and the husband made it very clear that the movie companies shouldn’t expect to be compensated anytime soon, accusing their lawyer of being “a fraud and a scam” while adding all sorts of profanities.

The movie companies and their lawyer didn’t seem impressed. Instead of backing off, they went to court, accusing the Arizona couple of copyright infringement and requesting damages.

The husband and wife received the legal paperwork but that didn’t change their tone. While they failed to respond in court, a person who identified himself as Dabney did leave a voicemail message at the attorney’s office.

“Hey this is case number you can suck my f*cking d*ck. Richard Dabney out in Arizona. I just got your papers. I don’t care if you sue me again for this. I don’t care if you call the cops. You’re gonna lose. I’m gonna win. Either way you slice it, Mrs. Kerry S. Culpepper is going down,” the message warned.

Default Judgment

Without a proper defense in court, the movie companies went ahead and requested a default judgment earlier this month. They asked the court for $15,000 in statutory copyright infringement damages for each movie. In addition, they requested another $5,000 for the use of altered copyright management information.

The second request isn’t something we have seen very often. It refers to section 1202 of the DMCA which prohibits people from using false or altered copyright management information. In this case, that refers to the “YTS” tag that was added.

This week, US District Judge Susan Bolton granted the default judgment. This means that the couple will have to pay a total of $35,000 in damages. This includes the claim for the altered copyright information.

“Defendants have willfully directly infringed and contributed to infringement of the Plaintiffs’ copyright protected motion pictures Saving Christmas and Lost Child,” the order reads.

“Defendants knowingly and with the intent to induce, enable, facilitate, or conceal infringement of the copyright protected Works distributed copyright management information (‘CMI’) that falsely included the wording ‘YTS’,” Judge Bolton adds.

More Than Damages Alone

In addition to the damages, the defendants will also have to pay over $5,000 in attorneys’ fees and costs.

The default judgment further includes a permanent injunction which states that all software used to “exchange unlicensed media content” should be removed. This also includes the torrent software that was used.

Culpepper informs TorrentFreak that his clients are happy with the outcome. However, they would have preferred to settle it out of court.

“Although we are pleased with the Court’s decision, it’s unfortunate that the Defendants threw away an opportunity to resolve this matter privately and save everyone time and money. My clients just want people to purchase their movies legally,” Culpepper says.

Whether his clients will indeed get the money has yet to be seen.

A copy of US District Judge Susan Bolton’s order granting the default judgment is available here (pdf)

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Torrent Site Admin and Uploader Can’t Be Sued in US

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

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

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

Hellboy Demands Piracy Damages

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

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

The Hawaii federal court also questioned whether the defendant, who didn’t put up a defense, could actually be sued in a US Court. According to Magistrate Judge Kenneth J. Mansfield, this is not the case.

Can MKVCage’s Operator be Sued?

In a recommendation to the court, issued in September, Mansfield concluded that the filmmakers failed to show that MKVCage’s activities were expressly aimed at the United States. In addition, the defendant’s contacts with the US were insufficient to invoke nationwide jurisdiction.

Hellboy’s attorney objected to this conclusion, listing the many connections between the site and the US. For example, MKVCage used the services of companies such as Namecheap, Twitter and Cloudflare, targeted ads at US visitors, and has a DMCA policy that is rooted in US law.

This week, US District Court Judge Michael Seabright had the final say in the matter. Based on the arguments presented, he concludes that a US court doesn’t have jurisdiction over the Pakistani defendant.

US Courts Don’t Have Jurisdiction

“[T]he court concludes that Plaintiff failed to demonstrate that Defendant’s activities were expressly aimed at the United States or Hawaii. Thus, Plaintiff failed to show that Defendant’s contacts are sufficient to invoke nationwide jurisdiction,” Judge Seabright writes.

Hellboy’s lawyer cited several cases where courts ruled that jurisdiction is possible in similar circumstances. However, Judge Seabright notes that those were issued before a recent and more strict appeals court ruling.

In that case (AMA v. Wanat), there were also several connections, including many US visitors. However, there was no evidence that the US was the “focal point” of the website and the “harm suffered.” The same applies in this case.

For example, the website’s advertisements may have been geo-targeted specifically at the US public, but the same also applies to other regions. The geo-targeting itself is not exclusive to the US.

The fact that MKVCage used US companies is not sufficient either. Namecheap, Twitter, and other intermediaries have a global presence. People generally don’t choose to use them because they want to target a US audience specifically.

Uploads Don’t Target US Specifically

Even the argument that the defendant uploaded many United States-produced movies onto his websites doesn’t suffice, as American movies are popular all over the world.

“Plaintiff attempts to distinguish Wanat by arguing that Defendant, not website users, uploaded United States-produced movies onto his websites. But the global market for United States-produced movies renders Defendant’s posting of content to his websites irrelevant for purposes of establishing express aiming.

“Nor does Plaintiff allege any facts showing that Defendant specifically targeted the United States and/or Hawaii in choosing to upload files of Hellboy, or that Defendant was physically present in the United States to upload his files.”

Finally, MKVCage’s DMCA policy doesn’t prove jurisdiction either. Hellboy’s attorney argued that this showed that the defendant had a “clear intention to protect his safe harbor” rights under United States law. However, Judge Seabright counters this, noting that the site didn’t have a DMCA agent listed, as is required by law.

Judgment Denied, But Not All is Over Yet

Based on the evidence provided, the court can’t conclude that the defendant expressly aimed his infringing activities at the United States or Hawaii. As a result, the request for a default judgment including $150,000 in damages is denied.

Judge Seabright didn’t end the case completely, however. Because the denial is in part based on new jurisdiction, Hellboy is allowed to file an amended complaint next month. If that doesn’t happen, the case will be dismissed.

Hellboy’s attorney Kerry Culpepper hasn’t decided yet what the next step will be. Amending the complaint is an option, but the Appeal Court as well, as there’s a related case with a similar outcome which he would like to fight as well.

“We are considering amending the complaint or requesting leave to immediately appeal to the Ninth Circuit Court of Appeals jointly with 42 Ventures, LLC since the issues of these two cases are related and open a potential black hole for all intellectual property holders,” Culpepper says.

MKVCage, meanwhile, remains offline and the similarly-named uploader has abandoned his accounts on other torrent sites as well.

A copy of the order from Chief US District Court Judge Michael Seabright is available here (pdf)

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Nintendo Files Lawsuit Against Seller of RCM Loader Jailbreak Device

Nintendo’s ongoing battle to prevent people from playing pirated content on Switch consoles is showing no signs of slowing down.

Its main targets thus far have been distributors and sellers of products offered by the infamous Team-Xecutor but a new lawsuit filed in the United States yesterday targets a seller of another jailbreak-style device.

Circumvention of Technological Protection Measures

As detailed in a number of earlier and similar lawsuits, Nintendo is determined to take action against any product that undermines the security features baked into consoles such as the Switch. These features are designed to prevent unauthorized access to the console and its games with the aim of preventing people from playing pirated content.

According to the latest lawsuit, a defendant identified as Le Hoang Minh, who on Amazon does business under the name ‘Winmart’, sold a device known as RCM Loader. The dongle/device, which operates via a USB-C connector, is marketed as a plug-and-play solution for injecting payload files that allow booting into custom firmware (CFW), including Team-Xecutor’s SX OS.

“Once this circumvention has occurred, the unauthorized CFW modifies the authorized Nintendo Switch operating system, thereby allowing users to obtain and play virtually any pirated game made for the Nintendo Switch. All of this happens without authorization or compensation to Nintendo or to any authorized game publishers,” the company’s complaint reads.

Another feature of the system criticized by Nintendo is the ability for owners of legal copies of games to copy and share those games with others who are also using unauthorized custom firmware. Nintendo says it has been working hard to reduce the availability of SX OS and similar custom firmware but due to the trafficking of devices like RCM Loader, that battle continues.

Defendant Sold RCM Loader Via Amazon

According to the lawsuit, Vietnam-resident Le Hoang Minh, sold RCM Loader devices on Amazon so, to counter this distribution, Nintendo filed a DMCA takedown notice on October 21, 2020, citing 17 U.S.C. § 512(c) and requesting that the listing be removed.

While Amazon did take the listing down, the removal was only temporary.

RCM Loader Amazon

This short-lived takedown was due to the seller submitting a DMCA counter-notice to Amazon on November 4, 2020, under 17 U.S.C. § 512(g)(3), claiming that the listing was non-infringing and had been taken down in error.

Defenses Listed in the DMCA Counter Notice

Attempting to cover most available defenses, relevant or not, the counter-notice from Le Hoang Minh is comprehensive if nothing else.

In addition to claiming that the devices are not copyrighted and are therefore in the public domain, the Amazon seller advised the platform that Nintendo’s claim is faulty due to the company failing to provide any copyright registration information in its takedown notice.

“The complainant does not hold the copyright to the material in question, is not the designated representative of the copyright holder, and therefore lacks standing to assert that my use of the material is a violation of any of the owner’s rights,” it added.

In addition to a laundry list of alleged technical failings in Nintendo’s takedown notice, Amazon was advised by the defendant that the use of “the material” was legally protected “because it falls within the ‘fair use’ provision of the copyright regulations” and if Nintendo disagrees with that assertion, it “must” work with the seller to solve the dispute.

“This communication to you is a DMCA counter notification letter as defined in 17 USC 512(g)(3). I declare, under penalty of perjury, that I have a good faith belief that the complaint of copyright violation is based on mistaken information, misidentification of the material in question, or deliberate misreading of the law,” the counter-notice reads.

Importantly, the declaration adds that Le Hoang Minh submits to the jurisdiction of any appropriate US district court in case of a legal dispute with Nintendo.

Nintendo: Challenge Accepted

The lawsuit filed yesterday is a clear indication that Nintendo believes it has the law on its side, in respect of the illegal nature of RCM Loader and the validity of the DMCA counter-notice that attempted to reinstate the listing.

“Defendant manufactures, imports, offers to the public, provides, and otherwise traffics in a circumvention device and software that circumvents the technological measures on the Nintendo Switch — specifically, the RCM Loader,” the company states.

“On information and belief, the only purpose of Defendant’s circumvention device is to circumvent Nintendo’s technological protection measures.”

Demanding maximum statutory damages for each violation of the relevant sections of the DMCA, Nintendo also demands a permanent injunction preventing the defendant from offering to the public or otherwise trafficking in circumvention devices in the future.

On top, Nintendo is demanding relief for the defendant’s alleged abuse of the DMCA counter-notification system by misrepresenting material facts to Amazon, crafted to have the listing restored on the platform, in violation of Nintendo’s rights.

Finally, the gaming giant asks the court to issue an order that will allow for the seizure, impoundment and destruction of all RCM Loader devices in the defendant’s possession, including any related software.

The complaint can be found here (pdf)

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Nintendo Asks Court to Put an End to ‘Domain Hopping’ Piracy Hack Stores

Nintendo is doing everything in its power to stop the public from playing pirated games on the Switch console.

Their major adversary is the infamous ‘hacking’ group Team-Xecuter, which released ‘jailbreak’ hacks and modchips for the popular game console.

Criminal and Civil Lawsuits

Last month, the US Department of Justice indicted three alleged members of the hacking group. This was a big move, but one that failed to take the group, or even its website, out of business.

The same can be said for several online stores that sell modchips and hacks for the Switch and other consoles. As part of a civil lawsuit, filed by Nintendo earlier this year, a federal court in Seattle granted an injunction that required several foreign stores to shut down. Again, this was easier said than done.

Since the store operators ignored all communication, Nintendo asked their domain registrars to transfer the domain names, as permitted by the court. This is precisely what happened. A few days after granting the injunction, Txswitch.com and other domains were signed over to the videogame company.

‘Hack’ Store Hops to New Domain

However, a day later Txswitch already appeared to have made a comeback, operating from Stxwitch.com. This site looks nearly identical to the old one and even uses the same logo and code.

This type of ‘domain hopping’ is common in pirate circles and Nintendo hoped that the registrar GoDaddy would take the new domain down as well. This would be in line with the injunction, which states that “any variant or successor” was also covered by the order.

Godaddy Demands Detailed Order

In the event, GoDaddy refused to take action without a court order that specifically spells out the new domain name, a new filing by Nintendo explains.

“Nintendo requested that the STXWITCH.COM domain be immediately transferred as a successor or variant of TXSWITCH.COM pursuant to the Judgment. GoDaddy responded to outside counsel for Nintendo stating that they required the domain name to be listed in an order to take action,” Nintendo writes.

The game company requests the court to clarify that, if new copycat sites appear, these are covered by the existing injunction. As such, registrars would be required to take action without a separate order that specifically mentions the new domain.

Putting and End to the Whac-A-Mole

Without such an order, pirate sites will continue to move to new domains, which means that the court has to keep issuing new orders, creating a whack-a-mole situation.

“Nintendo is concerned that absent such further clarifications of the scope of the Judgment, the Doe Defendants will again domain hop, changing a letter of a domain name, and the cycle will continue to repeat with the registrar contending that the new domain is not specifically covered by the injunction and with Nintendo having to return to this Court,” Nintendo adds.

By clarifying that domains of copycat sites and new variants or successors should be transferred to Nintendo, registrars such as GoDaddy will have to take action more swiftly.

This doesn’t mean that registrars have to “police the Internet” and proactively scan for new copycats, the company notes, as Nintendo will track down the new domains and report these accordingly.

Nintendo hopes that with sufficient clarification from the court it can prevent the piracy hack stores from “thumbing their nose at the court” while frustrating Nintendo’s enforcement efforts.

Dynamic Order Isn’t Perfect Either

The requested order is similar to the dynamic pirate site-blocking orders we have seen in other countries. While those deal with ISP blocking, they also allow copyright holders to add new domains names that pop up.

Given the order that’s already in place, it is likely that the court will grant the requested clarification. However, this doesn’t mean that Nintendo’s troubles are over. There are plenty of registrars and registries that don’t fall under US jurisdiction, after all. So the store may move to one of these next.

A copy of Nintendo’s request for clarification and to enforce the permanent injunction is available here (pdf)

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