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‘Copyright Troll’ Loses Legal Battle and Must Pay $172,173

Over the past years, dozens of independent photographers have taken their copyright disputes to court, accusing companies of using their work without permission.

While many of them have a legitimate claim, these ‘photo’ lawsuits generally have a bad reputation. This is in part due to the tactics employed both in and outside of court.

One of the most active attorneys, Richard Liebowitz, made a name for himself through such controversial practices. Courts have repeatedly reprimanded the attorney for various types of misconduct, including a $100,000 sanction a few weeks ago.

Another common name in federal courts is Richard Bell, who’s both a photographer and attorney. Over the years he filed more than 100 lawsuits for the unauthorized use of an Indianapolis skyline photo he claims to own the rights to.

To outsiders, these cases may appear to be regular copyright claims, but they also show the hallmarks of “copyright trolling.” The attorneys use the pressure of federal lawsuits and potential statutory damages of $150,000 to extract high settlement fees from defendants, without fighting a case on its merits.

While it’s unclear what the success rate of this practice is, most cases are indeed settled outside of court, suggesting that the strategy pays off. However, that’s not always the case. For Richard Bell it recently backfired.

Bell Sues Carmen Commercial over Skyline Photo

In 2016 Bell filed one of his many lawsuits. The target, in this case, was Carmen Commercial Real Estate Services who used the contested skyline photo in a blog post.

When Bell contacted Carmen Commercial he was offered a $1,000 settlement. However, the attorney wanted more and requested $5,000. He threatened a lawsuit if the real estate company failed to pay up.

This type of settlement pressure is not new. However, Carmen Commercial chose not to pay up and opted for a court battle instead. There, the company argued that Bell couldn’t prove that he owns the rights to the photo. And if he took it, it was made under the “work for hire” doctrine.

Bell Can’t Prove he Owns the Copyright

The case eventually went to trial where the jury sided with the real estate company. Bell obviously wasn’t happy with the outcome and demanded a new trial.

This request was recently denied by a federal court in Indianapolis. Not only that, the court also awarded $172,173 in attorneys’ fees and costs to the real estate company. This is justified, the court argued, in part due to the pressure tactics that were used.

“Defendant here offered to settle the matter for $1,000 before suit was filed. Yet Bell proceeded to trial seeking $150,000 in statutory damages on scant evidence of willful infringement,” Judge James Sweeney writes.

‘Improper’ Motive

The court correctly mentions that Bell has filed many lawsuits over the ‘skyline’ photograph. It also notes that other judges have mentioned that his motive appears to be to extract quick and easy settlements instead of protecting his copyrights.

“Here, the record similarly reflects that Bell used the threat of litigation costs to extract quick settlements,” Judge Sweeney writes, highlighting two letters where Bell threatened legal action and even higher costs if Carmen Commercial didn’t pay up.

bell threats

These settlement demands can be quite lucrative. They can reach 1,000 times the market value of an actual license, the court mentioned. The defendant, however, will always have costs, whether they choose to pay up or if the matter ends up in court.

$172,173 to Deter and Compensate

This means that defendants in these cases are at a disadvantage, so compensation for their costs, which are way higher than the initial settlement offer, is appropriate. Otherwise, it would be a hollow victory. At the same time, it should deter the attorney from filing similar lawsuits in the future.

In this case, Carmen Commercial calculated its costs to be $172,173, which the court deemed to be reasonable. While it wasn’t a quick and easy win for the real estate company, it’s certainly a big one.

As for that skyline photo which started this four-year legal battle, Carmen Commercial still uses that in its blog posts. With proper permission from the rightsholder, we presume.

A copy of Judge Sweeney’s order, denying a new trial and granting the motion for fees and costs, is available here (pdf)

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

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YouTube Rippers ‘Flvto’ and ‘2Conv’ Will Take Legal Battle to US Supreme Court

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, it 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.

Going to the Supreme Court

Faced with this decision, which could potentially affect many other websites operated outside the United States, the owner of FLVTO.biz and 2conv.com has decided to petition the Supreme Court to take on the case.

The petition is expected to be filed later this month, but the plans were revealed this week. In a motion submitted at a Virginia federal, Kurbanov asks to put the district court case on hold until the Supreme Court has had a chance to rule on it.

The question that will be put to the Supreme Court is whether Kurbanov can be subjected to the jurisdiction of a US federal court when he lives in Russia, operates his sites from there, and doesn’t specifically target US citizens.

According to his legal team, the appeal court’s decision contradicts other rulings in similar cases. As such, they are confident that they have a strong case.

“In the present case, there is little question but that Mr. Kurbanov’s jurisdictional challenge could be rationally resolved in his favor – indeed, this Court did resolve the issue in Mr. Kurbanov’s favor,” they write.

“Viewed in the context of the Supreme Court’s traditional jurisprudence, however, it appears clear that this Court’s original dismissal of the present case was proper and that – given the opportunity – the Supreme Court would reinstate that dismissal.”

Staying the Case Until Further Order

If the district court case was allowed to continue while the Supreme Court is looking into the matter it would be a waste of resources. Kurbanov, therefore, is requesting that the discovery process and other proceedings are placed on hold for now.

“Mr. Kurbanov, a Russian national and citizen, who has never set foot in the United States, has a right to challenge this Court’s exercise of jurisdiction over him as violative of the Due Process Clause. And, of course, with that comes his right to be free from the expensive and onerous discovery obligations inherent in U.S. litigation.”

Aside from the Supreme Court decision, the lawyers also remind the district court that the original motion to dismiss is still in play. The court initially chose not to conduct a “reasonability test” because the other arguments were sufficient to warrant a dismissal. That changed when the appeal overturned that decision.

As such, Kurbanov’s legal team has filed a request to stay the case until the reasonability analysis is finalized and the Supreme Court has had its say.

kurbanov stay case

A copy of Tofig Kurbanov’s memorandum in support of the motion to stay the federal court proceeding pending the outcome of the Supreme Court matter is available here (pdf)

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

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Alleged Operators of Epic Stream IPTV Face List of Piracy Charges in Canada

Large scale criminal prosecutions of alleged copyright infringers are relatively rare in Canada but according to information just revealed by the Novia Scotia RCMP, a big case is on the horizon.

Operation Hotwire Targets Illegal IPTV

According to the Royal Canadian Mounted Police, in June 2019 the Federal Serious and Organized Crime Unit (FSOC) began an investigation after receiving a complaint from a local telecoms company that its content was being streamed for profit by an individual using IPTV.

The telecoms company, which isn’t being named, reportedly carried out an investigation of its own and then referred the matter to the police. That generated enough interest for the police to begin their own inquiry and in August 2019, police supported by investigators from Innovation, Science and Economic Development Canada searched a home on Shore Drive in Bedford, Nova Scotia, seizing electronic equipment and financial documents.

A 35-year old man from Bedford was arrested at the home “without incident” and was later released from custody. Fast-forward exactly a year and on August 13, 2020, Nova Scotia RCMP FSOC filed court documents related to charges against two individuals in Nova Scotia. They are now being named as Riad Thomeh, 36, and Kayla Thomeh, 33, both of Bedford.

Laundry List of Copyright Infringement Related Charges

As per RCMP, Riad Thomeh is charged with the following:

  • Possession of a Device to Obtain Use of Telecommunication Facility or Service
  • Laundering the Proceeds of Crime
  • Possession of Property Obtained by Crime x18
  • Distribute Copyrighted Material – Copyright Act
  • Re-transmit Encrypted Programming Signal – Radiocommunication Act
  • Decode Encrypted Programming Signal – Radiocommunication Act

Kayla Thomeh is charged as follows:

  • Laundering the Proceeds of Crime
  • Possession of Property Obtained by Crime

“Three companies operated by Riad and Kayla Thomeh are also facing 44 charges, including Possession of a Device to Obtain Use of Telecommunication Facility or Service, Laundering the Proceeds of Crime and Possession of Property Obtained by Crime, as well as charges under the Copyright Act and the Radiocommunication Act,” a police statement adds.

Who Are the Alleged Offenders and What Were They Involved In?

Riad and Kayla Thomeh are a husband and wife team. The information released by police thus far doesn’t include the name of the IPTV service allegedly being offered by the pair but after receiving additional information from a familiar source, it wasn’t hard for us to put together the pieces.

Company information published by Dun and Bradstreet reveals that Riad Thomeh is/was the president of Nova Scotia-based company ‘Nova Scotia Limited’. Employing a total of three people and located in Shore Drive, Bedford, the company is listed as part of the IT sector and at last count generated US$517,503 in sales.

Importantly, the company was given the registration number 3303398 after its founding in 2017, which leads directly to IPTV provider Epic Stream. Indeed, the information published by DNB clearly lists the trading name of Epic Stream located at the address in Bedford occupied by Nova Scotia Limited.

Epic Stream

Epic Stream used the domain epicstream.net, a site that remains active today. It clearly and repeatedly lists the Canadian company registration number 3303398 in both its privacy policy and terms and conditions (pdf).

Just two weeks after Riad Thomeh was arrested in Bedford, an announcement on the epicstream.net site advised all users having problems with the service to “updated there user information to be able to connected and view….Please take time and Updated your information ASAP[sic].”

The last service update on the site was during October 2019 and according to reports on Reddit around a year ago, the service went down around the same time.

Further Action This Week

Earlier this month, a Restraint Order and Special Search Warrant was issued in respect of the Thomeh’s assets. In response, this week a total of 14 properties were restrained, including two houses and 12 plots of land. Two vehicles were also seized.

If found guilty the RCMP is warning that under the Copyright Act, the pair could each face a five-year prison sentence, a CAD$1m penalty, or even both.

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

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TuneIn Blocks 1,000s of Radio Channels in UK But a VPN Restores Service

TuneIn is one of the most prominent providers of radio content in the world.

Available for free or on a premium basis, its site and associated app provide access to more than 100,000 stations and podcasts. Unless you happen to live in the UK, which is now dramatically underserved by the company.

Sued by Labels in the UK For Mass Copyright Infringement

In 2017, Sony Music Entertainment and Warner Music Group sued the US-based radio index in the High Court of England and Wales, alleging that the provision of links to stations unlicensed in the UK represented a breach of copyright.

One of the most interesting aspects of the case is that TuneIn is marketed as an “audio guide service”, which means that it indexes stations that are already freely available on the web and curates them so that listeners can more easily find them.

When stations are more easily found, more people listen to them, which means that TuneIn arguably boosts the market overall. Nevertheless, the labels claimed this was illegal and detrimental to the music industry in the UK on licensing grounds.

Decision by the High Court Handed Down in 2019

In November 2019, the High Court sided with the labels, ruling that unlike Google – which TuneIn had attempted to compare itself to – TuneIn did “much more than that”, in part due to its curation and search features in respect of those stations.

“I find therefore that the activity of TuneIn does amount to an act of communication of the relevant works; and also that that act of communication is to a ‘public’, in the sense of being to an indeterminate and fairly large number of persons,” Judge Birss wrote in his decision.

When TuneIn supplied UK users with links to radio stations that were not licensed for the UK or were not licensed at all, the Judge said the company infringed the labels’ rights. On the other hand, he also determined that when TuneIn supplied UK users with links to radio stations that are already licensed in the UK, the company did not infringe Sony or Warner’s copyrights.

TuneIn sought to paint this latter point as a victory but that still meant that it had breached copyright on a large scale as the majority of stations indexed by TuneIn and supplied to the UK market did not fit into this scenario.

Appeal and Subsequent Geo-Blocking of the UK

In December 2019 it was revealed that the High Court had granted permission for both sides to appeal. Pending an outcome in that matter, TuneIn’s service in the UK apparently remained unchanged but during the past few days, users of the service reported a major shift in the type and amount of content being provided to UK users.

In response to the apparent decimation of its offering, TuneIn took to Twitter to address the complaints.

“Due to a court ruling in the United Kingdom, we will be restricting international stations to prohibit their availability in the UK, with limited exceptions. We apologize for the inconvenience,” the company wrote.

TorrentFreak contacted TuneIn to ask why this action had been taken now and to receive an indication of precisely how many channels had been blocked and their nature. However, at the time of publishing the company had failed to offer a response, leaving customers – some of whom pay for a premium service – to simply guess where their favorite stations had gone and when (or even if) they would ever return.

TuneIn UK Block

With TuneIn staying completely silent on the important details, it’s impossible to know whether the company will obtain appropriate licensing to reinstate the lost channels in the future. In the meantime, listeners now have access to a fraction of the channels previously available on the TuneIn site and app.

Geo-Blocking Measures Easily Circumvented

As pointed out by a reader last evening, in common with many services that restrict output in various regions, TuneIn’s blocking efforts are not comprehensive and can be easily circumvented by listeners in the UK.

It transpires that with the use of a decent VPN, one that’s able to switch the user’s virtual location out of the UK and to some other country, the blocked channels/stations are restored to their former glory and accessible in exactly the same way as before. The precise blocking method being used by TuneIn isn’t clear but it’s nowhere as stringent as that deployed by Netflix, for example.

An aspect of TuneIn’s blocking that shouldn’t be overlooked is a ‘feature’ of the service itself. TuneIn is a catalog of streams that are already freely available on the Internet. This means that TuneIn acts only as a middleman, indexing stations and making them searchable. While this function is extremely convenient for users, those locked out by TuneIn may only have to do a little research to regain access to their favorite stations.

A Little Manual Work

Since the company appears to be keeping quiet on the precise details for the moment, it’s hard to conclude whether TuneIn went through its entire station list with a fine toothcomb so that only unlicensed channels were blocked, or whether it erred on the side of caution and blocked everything that it couldn’t be sure of.

Presuming the latter is the case (licensing can be difficult to determine), it’s likely that there will be some element of over-blocking and that some channels that shouldn’t have been blocked will now be inaccessible in the UK via TuneIn. This is a particular irritant to listeners of stations that carry no content owned by the labels that brought the lawsuit.

In these cases, interested users can bypass TuneIn altogether by visiting the website associated with the station they were listening to, which tend to have their own embedded audio players. However, if visiting multiple sites is inconvenient, some stations publish a URL that can be opened in software such as VLC or other radio apps such as XiaaLive, which also has its own searchable station catalog.

Some radio station homepages do not clearly publish their stream URLs but by right-clicking the related audio player in Chrome, for example, it’s possible to view the page’s source code which usually contains the URL of the stream when searching for the term ‘http’ or ‘https’.

Experienced users will spot the correct URL quickly but for the less tech-savvy, trial and error or dedicated tools will help. Once a list of URLs is obtained, these can be saved in a VLC playlist, for example, completely negating the need for the TuneIn software.

Blocking the Messenger Not the Message

While TuneIn may have been largely knee-capped in the UK in terms of international stations, the High Court action has done absolutely nothing to prevent the blocked radio stations from transmitting on the Internet. None of them have anything to do with TuneIn itself as they are operated by third-parties.

What the action has achieved, therefore, is to selectively tear up TuneIn’s UK ‘phonebook’. What it hasn’t done is tear up every phonebook available, nor has it taken down a single station indexed by TuneIn, which remain fully operational via their own websites and URLs. It’s a little harder to find them now but hardly a massive undertaking.

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

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EU Advocate General: Inline Content Embedding Requires Copyright Holder Permission

Websites that produce and publish their own content usually have little to worry about under copyright law but for those that utilize content originally published elsewhere, life is more complicated.

In a few rare cases, copyright disputes cannot be immediately settled by local courts in the EU so they are referred to the region’s top court, the EU Court of Justice, for clarification. This was the case with a dispute involving Deutsche Digitale Bibliothek (DDB), a library website based in Germany.

Digital Showcase Must Be Protected From Third-Party Use

The main aim of the DDB project is to provide free access to the cultural and scientific heritage of Germany via the Internet, i.e. to millions of books, archives, pictures, sculptures, pieces of music and other audio documents, films, and sheet music.

To achieve its goals, the library links to digitized content stored on the various Internet portals of its participating institutions, displaying thumbnails of that content in what is described as a “digital showcase”.

DDB operator Stiftung Preußischer Kulturbesitz points to a licensing arrangement with copyright collecting society Verwertungsgesellschaft Bild-Kunst (VG Bild-Kunst) to display the thumbnails. However, that comes with a requirement for DDB to use technical measures to prevent third-party websites from displaying those thumbnails using the ‘framing’ technique.

For reference, perhaps the most common example of framing is where a YouTube video is placed on a third-party website in a ‘frame’ but is delivered from YouTube itself and is not hosted by the embedding site.

Matter Taken to Local Court, Referred to EU Court of Justice

The requirement to prevent framing was considered unreasonable by Stiftung Preußischer Kulturbesitz. The foundation took its case to court in Germany requesting a ruling that VG Bild-Kunst is required to grant a license without the condition that DDB’s showcase is protected by technical measures to prevent framing.

With clarification needed, the Federal Court of Justice asked the EU Court of Justice to interpret the Copyright Directive, which requires member states to provide rightsholders with the exclusive right to grant or prohibit any communication to the public of their copyright works.

On Friday, the EU Court published Advocate General Maciej Szpunar’s opinion on the matter. Such opinions are not legally binding but in most cases the EU Court of Justice adopts the Advocate General’s recommendations in its final decision. In this case, Stiftung Preußischer Kulturbesitz and DDB appear to have the law on their side although the final decision will be for the German court to decide.

‘Framing’ Does Not Require Copyright Holders’ Permission

“[E]mbedding in a webpage of works from other websites (where those works are made freely available to the public with the authorization of the copyright holder) by means of clickable links using the framing technique does not require the copyright holder’s authorization, since he or she is deemed to have given it when the work was initially made available,” the Court’s summary of the advice reads.

Interestingly, the opinion goes further still to address DDB’s assertion that it should not have to implement technical measures to prevent framing by third-parties. The Advocate General says that even when technical measures are deployed to prevent framing, the same still applies.

“Such measures restrict neither access to a work nor even a means of accessing it, but only a manner of displaying it on a screen. In those circumstances, there can be no question of a new public, because the public is always the same: the public of the website targeted by the link,” the opinion adds.

‘Automatic Inline Linking’ is a Different Matter

A simple example of ‘inline linking’ can be found when a copyrighted image is published on one site then a second site publishes that image by directly linking to the original source URL.

In a news article, for example, a picture posted by the New York Times at https://nytimes.com/image.jpg can be reproduced on a third-party site using that same URL, displaying it automatically and making it appear that the content is actually hosted on the second site, with appropriate permission. According to the opinion, this is not acceptable.

“[T]he embedding of such works by means of automatic links (inline linking, the works being displayed automatically on the webpage viewed as soon as it is opened, without any further action on the part of the user), normally used to embed graphics and audiovisual files, requires, according to the Advocate General, the authorization of the holder of the rights in the works,” the EU Court writes.

“Where those automatic links lead to works protected by copyright, there is, from both a technical and a functional point of view, an act of communication of those works to a public which was not taken into account by the copyright holder when the works were initially made available, namely the public of a website other than that on which that initial making available of the works took place.”

A key difference between inline linking and framing, the opinion notes, is that the user cannot determine where an image has come from since there is no visible link to the original publishing site. As a result, it “cannot be presumed” that the copyright holder took these secondary users into account when authorizing the original platform to publish the work.

While ‘inline linking’ is therefore generally disallowed, exceptions can exist, such as when works are used for the purposes of “quotation, caricature, parody or pastiche”.

Circumvention of Technical Measures

Circumvention of technical measures to protect copyright works is usually a breach of copyright but the circumvention rules only apply in matters where the rightsholders’ permission is required. The Advocate General says that since permission isn’t required to ‘frame’ content, the circumvention rules do not come into play here.

“Since framing does not require such authorization, technological protection measures against framing are not therefore eligible for the legal protection provided for by the directive. By contrast, since inline linking requires the authorization of the copyright holder, technological protection measures against inline linking are eligible for that legal protection,” the opinion concludes.

Previous Ruling on Embedding

In 2014, the EU Court of Justice ruled that embedding a file or video in a webpage in a frame is not a breach of copyright, as long as the content isn’t altered or communicated to a ‘new public’.

In that case, the original content had been uploaded to YouTube without the creator’s permission and embedded in a second site. However, that initial infringement wasn’t carried through to the second site as the content was presented in a frame and wasn’t considered a new communication to the public.

The full opinion, which is now part of the EU judge’s deliberations, is available here. Judgment will be handed down in due course.

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

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Hollywood, Netflix & Amazon Win Injunction Against CCM IPTV & Resellers

In addition to serving cease-and-desist notices on various players involved in the supply of pirated movies and TV shows, the Alliance for Creativity and Entertainment often takes matters a step further.

Mostly via copyright infringement lawsuits filed in the United States, the global anti-piracy coalition has accused several providers of acting outside the law, hoping to shut the services down and achieve a damages award or significant settlement.

Copyright Infringement Lawsuit Against CCM

During August, ACE sued pirate provider Crystal Clear Media (CCM) under its business name TTKN Enterprises LLC. It also named Todd and Tori Smith of Florida as defendants, identifying them as the operators of CCM.

A key feature of the case is the emphasis placed on so-called VOD content. While CCM and other providers tend to provide thousands of live TV channels, they also delivered so-called 24/7 channels (which reportedly offered “marathons of Disney’s movie Frozen II and Warner Bros.’s Harry Potter movie collection”) along with other mainstream movies on-demand.

According to the complaint, CCM knew this was a problem after ACE successfully shut down the Vaders IPTV platform last year. However, instead of backing away, CCM continued to provide access to video-on-demand while cultivating a network of resellers dedicated to servicing existing and prospective CCM customers.

Lawsuit Demands Injunctive Relief and Damages

The ultimate goals of the lawsuit against CCM are to win a permanent injunction to take it offline while obtaining a substantial damages award. With statutory damages running to $150,000 per title infringed, significant amounts are on the table.

In the first instance, however, the ACE members – including Disney, Paramount, Amazon, Netflix and others – sought a preliminary injunction with a number of key elements. That was comprehensively achieved via an order handed down by Judge George H. Wu in a California district court this week.

Preliminary Injunction

Addressing the plaintiffs’ claims under 17 U.S.C. § 106 of the Copyright Act, Judge Wu ordered the defendants not to directly or secondarily infringe any of the rights owned or controlled by the plaintiffs in respect of their copyrighted works.

While that effectively prevents the CCM service from operating, the Judge also responded to requests from the plaintiffs to render unusable a wide range of domain names previously deployed by the IPTV provider.

“Except to as requested by Plaintiffs, Defendants shall not transfer or otherwise relinquish control to the domains: mediahosting.one, crystalcleariptv.com, ccmedia.one, ccbilling.org, cciptv.us, ccreborn.one, ccultimate.one, superstreamz.com and webplayer.us,” the order reads.

Along those same lines, the Judge further ordered GoDaddy, One.com and their respective registrars to disable access to the above domains while preventing them from being modified, sold, transferred or deleted. The WHOIS information of the domains must also be preserved, including all contact and similar identifying information.

Additionally, the listed domain companies, plus all others receiving notice of the order, must preserve all evidence that may be used to identify the people that used the domains in question to infringe copyright.

Injunction Also Targets Resellers of the CCM Service

The original complaint alleges that CCM operated an “extensive and expanding” reseller network. These people bulk-bought “credits” from CCM that were converted to subscriber login credentials when purchased by customers.

“Defendants’ reseller program plays a pivotal role in their infringing enterprise. Defendants’ resellers market and promote CCM as a substitute for authorized and licensed distributors,” the lawsuit claims.

After hearing that this expansion poses an exponential infringement threat, Judge Wu agreed that the network of sellers must also be prevented from operating. With that, he granted permission for the entertainment companies to complete service of process on anyone acting in concert with the defendants, including resellers of the service.

“Upon receipt of a copy of this Order, these individuals and entities shall cease directly or secondarily infringing any of Plaintiffs’ Copyrighted Works through any means including publicly performing, reproducing, or otherwise infringing in any manner…any right under 17 U.S.C § 106 in any of Plaintiffs’ Copyrighted Works by continuing to provide access to Defendants’ service or by any other means,” the Judge added.

While CCM is already believed to be out of action, the above paragraph indicates that if resellers of CCM are currently offering other IPTV packages from a different supplier that also offer illegal access to the plaintiffs’ content, they must stop doing that too after receiving a copy of the order.

The preliminary injunction is available here (pdf)

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

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OVPN Wins Court Battle After Pirate Bay Data Demands Rejected

Early June, movie companies Svensk Filmindustri and Nordisk Film, supported by anti-piracy partner Rights Alliance, embarked on legal action in an effort to track down the operators of The Pirate Bay.

Early Background

After obtaining information from Cloudflare, Rights Alliance later filed a lawsuit in Sweden against a local ISP, requesting an information injunction that would compel it to hand over information relating to The Pirate Bay.

This request stumbled and was thrown out early on when it was discovered the IP actually belonged to VPN provider OVPN. Soon after, OVPN became the focus of attention, with Rights Alliance demanding that it should disclose the same information about The Pirate Bay.

OVPN Fightback Begins

In its initial response, OVPN made clear that as a no-logging provider, it couldn’t provide any useful information about its alleged customer, The Pirate Bay. The company also argued that no law exists in Sweden that compels a VPN provider to keep logs.

The company won the first stage of the legal battle by asserting that with no information to hand over, an information injunction compelling it do so would be completely futile. Furthermore, no evidence had been produced by Rights Alliance or the movie companies stating that it did hold any relevant information.

In response, Rights Alliance hired a VPN expert who concluded, from his knowledge of how other VPN providers operate, that OVPN would probably had some information to hand over. However, when presented with more evidence, he later appeared to reconsider his position.

Court Sides With OVPN, Believes No-Logging Claims

Following a decision handed down Thursday at the Patent and Market Court in Stockholm, OVPN has now emerged victorious. Given the complexities of the case, the decision appears to have been a relatively simple one for the Court.

Essentially, if a party denies it has access to specific information – in this case information related to OVPN’s alleged customer The Pirate Bay – it falls upon the applicants to provide sufficient evidence that the data is available to be retrieved.

The statements and evidence provided by the plaintiffs failed to show that, according to the Court.

“[I]t is not possible on the basis of the statements, which contain a number of uncertainties, to draw any definite conclusions about OVPN’s access to the information to which the application for an injunction relates. Nor does any other investigation arrive at such conclusions,” the decision reads.

“Applicants’ application for an information injunction should therefore be rejected,” it concludes.

OVPN’s David Wibergh welcomes the Court’s decision which seems to have turned on the provider’s no-logging policies and, as detailed in our earlier reporting, early deletion of server backups.

“Rights Alliance and their security experts have not been able to prove any weaknesses in OVPN’s systems that could mean that logs are stored. OVPN therefore wins the information injunction as our statements and evidence regarding our no-log VPN policy have not been disproven,” Wibergh says.

“OVPN is one of very few VPN providers that have had their no logs claims proven in court. OVPN is the only Swedish VPN provider that has proven that no logs are stored,” he adds.

Rights Alliance Disappointed But Will Maintain the Pressure

Rights Alliance says it is disappointed by the Court’s decision, noting that The Pirate Bay “causes harm to rights holders” so it is in their interests to hide to continue their business.

“In this case, they have used a Swedish service provider to hide and it is sad to see that they have got away with it, this time. Here, the VPN service has made money by hiding criminal activities and that can not be right.

“We will continue to act where we see companies selling their services to infringers,” says Rights Alliance chief Sara Lindbäck.

As a result of their loss in this matter, the movie companies represented by Rights Alliance must also pay OVPN’s legal fees, equivalent to around US$12,300.

“OVPN is the VPN service to use when privacy matters, and we firmly believe that privacy always matters,” Wibergh adds.

“As such, our entire infrastructure is built with privacy & security as the core principles. OVPN does not log any activity when connected to our VPN service. Therefore, we do not know who is connected to our service, what they are doing or when they did it.”

For those interested in studying the case in-depth, all relevant court documents can be obtained here (zip)

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

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Take-Two Wins Injunction to Kill Red Dead Redemption Enhancement Project

Last August, an announcement by developer ‘DemandDev’ revealed that work had begun on his ‘Red Dead Redemption: Damned Enhancement Project’.

The goal of the developer was not only to modify the Xbox360 and PS3 versions of RDR1 and bring the game to the PC but also to improve the title with better graphics and additional features.

Threats from Take-Two: Cease and Desist

Just a month after the initial announcement, DemandDev revealed that the project was dead, claiming that he was being bullied by a “corporation”. On December 26, 2019, Take-Two filed a lawsuit at a New York court against a Johnathan Wyckoff, now known to be DemandDev.

Claiming breaches of its intellectual property rights and user licensing agreements, the company said that it was bringing the action “to maintain control of its world-famous video games” and to prevent the distribution of software that would “dramatically change the content of Take-Two’s video games.”

Take-Two stated that it had “repeatedly” asked Wyckoff to cease and desist. When these demands were ignored, the company said it was forced to take legal action, demanding injunctive relief and damages as a result of direct and contributory copyright infringement and breaches of Take-Two’s licensing agreements.

Project Shut Down, Fight Back Begins

Soon after the lawsuit was filed, Wyckoff announced that the project had been canceled but as the months progressed, the developer decided to put up a fight.

Early March 2020 Wyckoff told the court that he believed he was acting in accordance with Take-Two’s policy on ‘PC Single-Player Mods’ which state that the company will generally not take legal action against third-party projects involving Rockstar’s PC games that are single-player, non-commercial, and respect intellectual property rights.

However, less than two weeks earlier the court had already handed down a preliminary injunction, the terms of which were agreed by both sides, which enjoined Wyckoff from “directly or indirectly infringing Take-Two’s copyrights”, including the creation of derivative works based on Take-Two’s games such as Grand Theft Auto V, Red Dead Redemption, and Red Dead Redemption II.

Arbitration

In Wyckoff’s March answer to the original complaint, he pointed out that Take-Two’s ‘user agreement’ contains a clause that compels parties in dispute to enter into an arbitration process, paid for by Take-Two, in order to reach a settlement. Wyckoff asked for that to happen and it appears he got his way.

A letter to the court in April revealed that settlement negotiations had been unsuccessful, so the parties were indeed heading to arbitration. After a two-month filing hiatus, that process is now reported as complete, with Take-Two largely obtaining what they set out to achieve.

Stipulated Permanent Injunction to Kill Projects, Prevent Others

As a result of the arbitration process, Take-Two and Wyckoff told the court late last week that they had agreed that a permanent injunction would be an acceptable conclusion to the case in hand.

The fundamentals of Take-Two’s claims appear to have been taken as fact, with the company and Wyckoff agreeing that he infringed Take-Two’s copyrights, breached its Software Warranty and User Agreements, and interfered with contracts between Take-Two and its users.

On this basis, Take-Two and Wyckoff agreed that the developer should be permanently restrained from a number of actions, including breaching Take-Two’s copyrights by creating “derivative works” based upon any Take-Two software including Red Dead Redemption, Red Dead Redemption II, and Grand Theft Auto.

Wyckoff also agreed not to create, develop, maintain, advertise or distribute any files that alter any Take-Two software in any way, while abstaining from “inducing or materially contributing to the direct infringement or altering of any of Take-Two’s existing or future copyrighted works by others.”

Small But Significant Win For Wyckoff – No Damages

While Wyckoff has now conceded that his work breached copyright law and a number of Take-Two’s additional rights, the developer has avoided what could have been a substantial damages award. The permanent injunction appears to be the end of the matter, providing he doesn’t breach its terms moving forward.

“Upon proof of any violation by Mr. Wyckoff of this Permanent Injunction, the Court and/or the Arbitrator shall be authorized to award damages, injunctive relief, Take-Two’s reasonable attorney’s fees, and other costs incurred in connection with an action to enforce this Permanent Injunction, and any other relief that it deems appropriate,” the injunction reads.

At the request of both parties, United States Magistrate Judge James C. Francis IV signed off on the order while agreeing to a termination of the case.

The stipulated permanent injunction and related documents can be found here (1,2,3)

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

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Alleged SPARKS Member ‘Raid’ Pleads Not Guilty to Piracy Charges

On August 25, unofficial reports began to circulate that something big was underway in the top-tier piracy world known as The Scene.

So-called topsites, the servers where masses of copyright-infringing content are stored, began shutting down globally as it became clear that law enforcement action was underway.

Within hours, the US Department of Justice announced that three key members of the piracy groups known as SPARKS, GECKOS, DRONES and SPLiNTERS had been indicted, charged with a range of offenses connected to movie and TV show piracy.

As reports of wider arrests filtered in from law enforcement entities in Europe, the status of the indicted trio was clarified in the United States. George Bridi, 50, a citizen of Great Britain, had been detained in Cyprus on an INTERPOL Red Notice. Norway resident Umar Ahmad (aka ‘Artist’), 39, was still at large. Jonatan Correa (aka ‘Raid’), 36, had been arrested on US soil in Olathe, Kansas, and placed into custody.

Jonatan Correa (aka ‘Raid’)

The USDOJ alleges that Correa was involved in the ‘Sparks Conspiracy’ (the collective name for the prosecution) from around January 2011 through to August 2020. This differs from the charges against Bridi and Ahmad, whose ‘conspiracy’ charges run from January 2011 to January 2020. The reasons for this remain unclear.

All three are charged with causing “tens of millions of dollars” in losses to film production studios. According to a superseding indictment, Correa and the others fraudulently obtained copies of discs containing movies and TV shows in advance of their official release dates.

It is further claimed that Correa remotely accessed a computer belonging to a co-conspirator in Westchester County in order to “illegally record and reproduce” copyrighted TV shows. At this stage, the identity of this alleged co-conspirator is being kept under wraps by the authorities.

While Correa’s co-defendants face additional charges including wire fraud and transporting stolen property, Correa faces a single charge of conspiracy to commit criminal copyright infringement.

Correa Arrested, Quickly Released, Pleads Not Guilty

After being arrested in Kansas on August 25 at 07:00, court records reveal that Correa was presented before the Kansas district court on August 26 and released the very same day.

Other documents that might offer additional information persistently return a “not found” error on records portal PACER, while access to others is simply denied. However, additional detail is available relating to Correa’s status and plea.

Records indicate that Correa was released on bail with a $75,000 bond, secured by cash or property. His release comes with pre-trial supervision conditions, including that he must surrender all travel documents and submit to a ban on all new travel document applications.

In addition, Correa has agreed to participate in a drug testing and treatment program and is forbidden from possessing firearms, other weapons, or any “destructive devices”. He is further ordered to abstain from contact with co-defendants and witnesses, with conditions.

“Defendant shall have no contact with any co-defendant, witnesses known to Defendant, or any other members of the Sparks Group without the presence of counsel,” a bail document reads, adding that Correa must not engage in any of the conduct alleged in his charging document either.

Perhaps most importantly of all, exactly one week ago on September 1, 2020, Correa appeared remotely before United States Magistrate Judge James L. Cott and was arraigned on the superseding indictment. Correa pleaded not guilty to the charges against him.

Whether that position will change later down the line remains to be seen but right now, his alleged co-conspirators don’t yet appear to be in US custody.

Alleged Co-Conspirators Bridi and Ahmad

According to the most recent official information, Ahmad (Artist) is reportedly still at large, perhaps in Norway, while Bridi is located some 5,500 miles away from New York on the island of Cyprus in the Mediterranean Sea.

Since the unsealing of his indictment and from the filings made available to date, Ahmad hasn’t been mentioned in court documents. In respect of Bridi, however, the US Government has requested and obtained multiple certified copies of his indictment and arrest warrant for the “purposes of extraditing the defendant to the United States.”

When that will take place is unknown but at least as far as Correa’s cases is concerned, Acting United States Attorney Audrey Strauss told the court last week that the parties are currently in discussion over discovery and a pre-trial disposition. A conference has been set for October 26, 2020, for these discussions to continue.

As previously reported, the action against SPARKS has negatively affect pirated releases from The Scene, with a steep decline observed in volumes of content being made available.

Source documents here (1,2,3)

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

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Nintendo Wants Permanent Injunction to Shut Down Switch Piracy Hack Stores

For many years, the infamous Team-Xecuter has been a thorn in Nintendo’s side.

The group offers hardware and software solutions that allow people to install and play pirated games on Nintendo consoles, including the Switch.

After cracking Switch’s original technical protections in 2018, Team-Xecuter released a new range of products this year. These SX Core and SX Lite chips work on all Switch classic and Lite consoles, while previous ‘hacks’ were limited to a subset of devices.

In addition, the devices no longer have to be connected to a dongle or computer to boot the consoles into the custom SX OS firmware. This wasn’t just a big improvement for end-users, Nintendo also saw it as a major threat.

To stop the distribution of the new chips in its tracks the Japanese gaming giant launched two lawsuits in the US in May. One targeted the US-based Uberchips vendor and the other was filed against a group of unknown operators who run multiple stores, including TXswitch.com, SXflashcard.com and Axiogame.com.

Some websites disappeared shortly after the lawsuit was filed but Nintendo believes that many have simply continued doing business under new domain names, as communication with customers also revealed. However, none of the unknown operators responded in court within the given deadline.

Nintendo doesn’t expect that any of the alleged foreign store operators will defend themselves so, late last week, it asked a federal court in Seattle, Washington, to issue a default judgment with a permanent injunction.

Interestingly, Nintendo doesn’t seek any monetary damages from the defendants. While the company believes that the stores are causing “irreparable harm,” the defendants remain unknown and aren’t likely to pay damages anyway.

“Nintendo does not seek an award of monetary damages, and such an award likely would be ineffective here, as Defendants have refused to appear or participate in this lawsuit, despite the fact that they are indisputably aware of its existence,” the gaming company writes.

Instead, Nintendo seeks a permanent injunction that requires the store operators to stop any infringing activity and hand over their domain names. As such an order may be ignored as well, the injunction should also apply to third-party services, including domain registrars and registries, to work with these sites.

Without such an order, Nintendo believes it will continue to suffer losses and it sees no other options available.

“[T]he threatened injury to Nintendo outweighs whatever harm—if any—Defendants would experience from an injunction. Defendants have no legitimate purpose in trafficking in illegal circumvention devices,” Nintendo writes.

Because several defendants have swiftly moved to other domains and avoided other enforcement measures, the proposed injunction further covers “any successor sites,” services such as Skype, Discord, or Facebook, as well as online marketplace platforms, including AliExpress.

From the proposed injunction
proposed nintendo injunction

The latter means that, if the injunction is granted, Nintendo can also target the sellers on these other platforms and services, if needed. This doesn’t just apply to shutting down accounts, it also allows for the seizure of any infringing devices.

The court has yet to sign off on the proposed default judgment and injunction. If granted, it may make it a little harder for these sites to operate, but it’s unlikely that it will be 100% effective.

Team-Xecuter itself is not directly affected by the injunction, but it’s not happy with Nintendo’s actions. The group previously accused the gaming company of censorship, monopolistic control, and legal scare tactics.

“Of course we are not happy with this kind of censorship that is being enforced by legal injunctions that make us out to be something we are not: a copyright-infringing ring of software pirates,” Team-Xecuter tells TorrentFreak.

The case against Uberchips runs separately from the one against the foreign store operators. The Uberchips operator previously requested a motion to dismiss the lawsuit and both parties are exploring options to settle the matter without going to trial.

A copy of Nintendo’s request for a default judgment and permanent injunction is available here (pdf)

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