Formerly known as Svenska Antipiratbyrån (Swedish Anti-Piracy Agency), in one form or another, Rights Alliance has been on the front lines of Sweden’s war against piracy for almost 25 years.

Most famously, the formation of Antipiratbyrån around 2001 triggered the formation of Piratbyrån (Piracy Agency), the pro-piracy activist group behind the launch of The Pirate Bay.

Antipiratbyrån dissolved then reemerged as Rättighetsalliansen (Rights Alliance) in 2011 and today, 13 years after its rebranding and 23 years since its inception, the anti-piracy group has a new nemesis and perhaps the greatest challenge it has ever faced.

The New Nemesis: Pirate IPTV

More complex and difficult to counter than The Pirate Bay, pirate IPTV services are causing headaches everywhere, not just in Sweden. Rights Alliance, which represents local and international film and TV companies, including the studios of the MPA, has several successful IPTV prosecutions to its name and late last week, reported that another is underway.

“A man from Malmö is now being prosecuted for running the illegal IPTV service Ghostfarmer,” Rights Alliance informed us via email Friday.

“The case was initiated after a notification from the Rights Alliance in 2023. Both TV channels and a large selection of films and series were made available on the service.”

After building a case against suspects, Rights Alliance shares whatever it has learned with police, hoping to prompt a criminal investigation and the arrest of any suspects. Success in a state prosecution opens up the possibility of a prison sentence for the offender. Considered a valuable deterrent, a criminal conviction often includes damages, which can return at least some of the alleged losses.

Confidence in Ghost Farmer Prosecution

In the Ghost Farmer prosecution, the suspect is accused of administering a website and an IPTV panel, providing customer support (presumably on Telegram where a channel still exists today), and transferring money to his own account and crypto exchanges.

“The police investigation shows that there is a lot of evidence against the man, both of a financial and digital nature. There have been raids on the man’s home and the police have also carried out remote searches, including the Telegram chat application. The fact that the police are now allowed to carry out remote searches is a good and long-awaited tool, which was made possible by a relatively recent change in the law,” the anti-piracy group explains.

A Tiny Drop in a Huge Ocean

Rights Alliance says that the suspect has confessed, but whether that means a custodial sentence and/or an award for damages will depend on the circumstances. From the description, it seems likely that the suspect was reselling subscriptions, not running a video platform of his own. Rights Alliance says the service was marketed via email and from the ‘marketing’ we’ve seen independently, also by posting on sites like Reddit.

“[I]t can be suspected that the man ran more illegal services,” Rights Alliance adds.

While to us this seems to confirm that the man was indeed reselling subscriptions, the terminology is a little ambiguous. In general, determining the importance of those prosecuted to the overall ecosystem isn’t always straightforward, which can make overall progress difficult to gauge.

As far as alleged subscription sales to the public are concerned, some of those convicted in Sweden had thousands of customers, a significant amount in financial terms. However, since only those at the top of the supply chain are critical to the survival of a pirate service, the removal of a reseller won’t affect overall content availability.

Letters to Government

Actions that have a real effect on IPTV supply are rare and this isn’t just a problem for Sweden. Those who subscribe to these services may view this as a positive but for major rightsholders, doing nothing is rarely an option. That may explain why rightsholders in Sweden appear to be considering controversial measures targeting the other end of the supply chain.

Rights Alliance highlights a letter ( 1 ) sent to Minister for Justice Gunnar Strömmer by Social Democratic politician Lars Mejern Larsson, asking what the government intends to do to about rising consumption of pirated content.

Records held at the Riksdag (parliament) reveal that Larsson sent the same letter to Minister of Culture Parisa Liljestrand ( 2 ) and Minister of Finance Elisabeth Svantesson ( 3 ) . Larsson speaks about the negative effects on the film industry and points out that criminals are also stealing from the government.

“Piracy of film and television content damages the rights holder financially and thus affects the possibility of – and the desire for – new production. It is a major threat to a viable Swedish film industry,” the letter notes.

“The Swedish Tax Agency has also said that Sweden stands out with the highest percentage of the population that buys illegal television, and this is estimated at around 600,000 people. The market has a turnover of SEK 550,000,000 [~US$53.1m].”

Targeting Pirate IPTV Subscribers

The main message in Larsson’s letter ends with the suggestion that while criminals make off without paying taxes, ultimately the finger of blame can be pointed at those who give them money.

“Somewhat harshly, anyone who downloads films illegally contributes to organized economic crime,” Larsson notes.

In his response, Minister of Justice Gunnar Strömmer says that the government is aware of the effects on rightsholders and society in general. He notes that a change to the law in 2020 enabling stiffer sentences and greater damages awards has already produced results and more prosecutions are in the pipeline.

Strömmer says that an investigation by the tax authorities will lead to criminal charges in the majority of cases. When combined with the government’s “extensive measures” to target combat organized crime generally, the above should have an effect on the illegal provision and consumption of pirated content.

These measures should be given time to exert the necessary pressure before taking direct action against those who consume content from illicit sources. For Rights Alliance, more needs to be done, sooner rather than later. But it’s not difficult to see where this could end up if all else fails.

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

The web is riddled with copyright infringing content, ranging from full-length blockbuster films, through small music samples, to reposted celebrity photos on social media.

Not all of these offenses are equally problematic. Law enforcement authorities may go after the operators of large-scale pirate sites or services, but posting short film clips without permission typically doesn’t lead to trouble.

Sharing Nude Scenes of Reddit

Last year, we reported on a Danish case where a then-anonymous person shared small clips of films online in a subreddit. This type of ‘organized’ copyright infringement is seen as more problematic by rightsholders and in this case, the nature of the clips was all-important too.

Instead of posting random clips, the group was dedicated to nude scenes of Danish female actors. These were taken out of context and posted online, for the group’s more than 6,000 members to enjoy. In addition, the same clips appeared on pornographic websites.

The unauthorized activity was considered a slap in the face by the actresses, many of whom complained to local media. They felt violated by the actions and called on Reddit and the authorities to respond.

Actress Andrea Vagn Jensen, who has had one of her explicit scenes shared online, told DR that there’s a huge difference between appearing naked in a film and being posted on Reddit.

“It’s just abuse. You deliver something for the production and the story, and then you end up being molested that way,” Jensen said.

Police Arrest 39-Year-Old Man

The complaints caught the attention of Rights Alliance , which reported the issue to the police on behalf of the Danish Actors’ Association and the respective rightsholders. While these clips may not directly hurt revenues, copyrights also have moral rights which include the right to integrity, which could come into play here.

Rights Alliance also called on Reddit to take the matter seriously. While many of the problematic clips were already removed at that point, the group urged Reddit to implement upload filters to prevent future trouble. That included banning external URLs.

It’s unclear whether these demands were translated into action by Reddit but the police certainly took the matter seriously. This week, the National Unit for Serious Crime (NSK) announced that a 39-year-old man from Valby had been arrested and charged with copyright infringement.

“The arrested person is suspected of being behind extensive sharing of video clips with nude scenes from Danish feature films and series on various pornographic websites and the social media Reddit,” NSK writes.

The r/SeDetForPlottet subreddit is no longer online today. After the earlier media coverage, the group was made private and eventually shut down but for the suspect, this case is far from over.

Real People

NSK Police Commissioner Anders-Emil Kelbæk is pleased with the arrest. Not just in the interest of rightsholders, but also the actresses who felt abused by the unauthorized activity.

“I am satisfied that we have now been able to make an arrest in this case. Both actors and rights holders have rightly felt offended when nude scenes have suddenly been shared in an entirely different context than the one they were intended for,” Kelbæk says.

Rights Alliance Director Maria Fredenslund is happy with the outcome as well, as it sends a clear message that there are serious consequences for posting short copyright-infringing clips out of context.

“The case here deeply affects the rights holders involved and emphasizes what can be at stake when content is shared without permission and out of context,” Fredenslund notes.

“Any film or television production is created by real people with personal boundaries and artistic visions that are seriously violated by this kind of illegal sharing. Great praise must go to NSK for their effort in investigating the case,” she adds.

The r/SeDetForPlottet group, allegedly operated by the suspect, was inspired by the popular English-language subreddit r/WatchItForThePlot . The latter remains online today and has over 1.4 million subscribers.

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

In 2020, publishers Hachette, HarperCollins, John Wiley and Penguin Random House sued the Internet Archive (IA) for copyright infringement, equating its ‘Open Library’ to a pirate site.

IA’s library is a non-profit organization that, among other things, scans physical books in-house so these can be lent out to patrons as e-books.

This “Controlled Digital Lending” (CDL) practice allows for only one copy of a book to be lent at a time, mirroring the traditional library lending model. At the same time, however, CDL bypasses the publishers’ e-book licensing model.

Publishers vs. Internet Archive

The in-house scanning service at the Internet Archive (IA) differs from the licensing agreements entered into by other libraries. These agreements see libraries license ‘official’ e-book versions from publishers, who charge for every book that’s lent out to patrons.

The major book publishers eventually ran out of patience with IA’s DIY approach, filing a lawsuit that kicked off a major legal battle four years ago. The publishers equated IA’s lending operation to piracy and, last year, a New York federal court concluded that the library is indeed in the wrong .

The court’s decision effectively put an end to IA’s self-scanning library, at least for books from the publishers in suit. However, IA was not giving up that easily; in December the non-profit filed its opening brief at the Second Circuit Court of Appeals, hoping to reverse the judgment .

Publishers Win at Court of Appeal

During a hearing in June, both sides defended their positions. At the time, the court didn’t appear to be entirely convinced by IA’s arguments. This was confirmed by an opinion and judgment from the three judge panel published a few hours ago.

After reviewing the evidence, circuit judges Steven Menashi, Beth Robinson, and Maria Kahn, affirmed the lower court’s order. They conclude that IA’s self-scanning approach can’t be classified as fair use under U.S. copyright law.

The court understands that libraries are burdened by e-book licensing fees, which can make book lending relatively expensive. However, that doesn’t give IA the right to create its own e-books and lend those out instead.

“IA asks this Court to bless the large scale copying and distribution of copyrighted books without permission from or payment to the Publishers or authors,” the appeal court’s opinion reads.

“Such a holding would allow for widescale copying that deprives creators of compensation and diminishes the incentive to produce new works. This may be what IA and its amici prefer, but it is not an approach that the Copyright Act permits.”

Fair Use?

The Internet Archive hoped to rely on a fair use determination. It stressed that the in-house e-book scanning approach is transformative, because it enhances access to books, especially for those who cannot easily visit physical libraries.

The fact that the organization has no profit motive and only lends out as many digital copies as they have physical copies, should also favor fair use, they argued.

The Second Circuit Court of Appeals ultimately disagrees. For one, the court emphasized that simply digitizing a book is not transformative, as it does not create a new purpose or character. The digital copies served the same function as the original books – reading.

The court reasons that IA’s free digital lending could serve as a substitute for purchasing or licensing e-books, potentially harming the publishers’ revenue. That also goes against a fair use determination.

The court further stresses that while IA is a non-profit, its activities to have a commercial aspect, as it indirectly benefits from its partnerships and donations. That, again, weighs against fair use.

Harmful

The court of appeal had to find a balance between the interests of rightsholders and IA. In this case, it concludes that the scale tilts in favor of the book publishers.

In essence, the court prioritized the publishers’ right to control the reproduction and distribution of their works over IA’s goal of expanding access to knowledge. While IA’s actions are potentially beneficial in some ways, they ultimately harm the market for the publishers’ books, the court concludes.

“While IA claims that prohibiting its practices would harm consumers and researchers, allowing its practices would―and does―harm authors. With each digital book IA disseminates, it deprives Publishers and authors of the revenues due to them as compensation for their unique creations,” the opinion reads.

The decision means that IA’s e-book lending approach remains off-limits, as it applies to these copyrighted works. This may not signal the end of the legal battle, however.

IA is clearly disappointed by the outcome, but it hasn’t thrown in the towel yet.

“We are disappointed in today’s opinion about the Internet Archive’s digital lending of books that are available electronically elsewhere. We are reviewing the court’s opinion and will continue to defend the rights of libraries to own, lend, and preserve books,” IA writes.

—

A copy of the opinion from the Second Circuit Court of Appeals is available here (pdf) , and the associated judgment can be found here (pdf) .

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

Pirate IPTV providers have a tendency to come and go, and some struggle to provide consistently high-quality streams.

Through reliability, stability and quality, subscribers were attracted to the SmoothStreams brand; the availability of masses of unlicensed content was obviously the main reason to stay.

SmoothStreams had been under investigation since 2018 and in the summer of 2022, major entertainment industry companies were at Canada’s Federal Court aiming to bring it all crashing down.

After filing a complaint mid-June, by the end of the month Bell Media, Rogers Media, Columbia Pictures, Disney Enterprises, Paramount Pictures, Universal City Studios, Universal City Studios Productions, and Warner Bros., had the permission they needed.

An interim order containing an interim injunction, required SmoothStreams’ alleged operators, Marshall Macciacchera and Antonio Macciacchera, to shut down the entire SmoothStreams system and hand control of its infrastructure to an independent supervising solicitor (ISS).

The order enjoined the men from dissipating, transferring, or concealing assets, and required them to authorize banks and other financial entities to disclose details of their assets. Court authorization, which allowed the plaintiffs to search premises linked to Marshall and Antonio and seize evidence – without having to give any prior warning – arrived courtesy of a controversial Anton Piller order.

Details of the operation , which spanned the homes of the defendants and other locations, appear in our earlier coverage .

Yet despite those events taking place over two years ago, the lawsuit against Marshall and Antonio Macciacchera (dba SmoothStreams), plus companies allegedly under one or the other’s control – Arm Hosting Inc., Star Hosting Limited, and Roma Works Limited – has thus far focused on the alleged conduct of the defendants during the raids, not necessarily the alleged conduct that led to the raid taking place.

Contempt of Court (Antonio): Serious and Expensive

As reported late 2023 , after failing in various ways to comply with the Court’s orders in 2022, both defendants faced the prospect of being held in contempt.

By “steadfastly refusing” to permit the Independent Supervising Solicitor (ISS) to enter his home and execute the order, and after he “deliberately deprived the plaintiffs of the element of surprise,” on December 13, 2023, Antonio Macciacchera was found in contempt of court and ordered to pay the plaintiffs over US$70,800 in legal fees and other costs.

Even before this decision, the costs of defending the lawsuit in general were clearly taking their toll. Precise figures are unknown but even if close to the costs being incurred by the plaintiffs, legal bills of hundreds of thousands of dollars are a massive burden for most defendants. For the plaintiffs, still relatively small change, when all things are considered.

Marshall Macciacchera, who is said to have controlled SmoothStreams support companies Arm Hosting Inc., Star Hosting Limited (Hong Kong), and Roma Works Limited (Hong Kong), faced allegations that he failed to comply with the terms of the order which contained, among other things, the Anton Piller order and a range of injunctive relief.

An order handed down by Justice Rochester at the Federal Court in Ontario last month, made available to the public in the last few days, paints a grim picture of what has become a slow-motion nightmare for all parties, and a potentially ruinous money pit for the defendants.

Contempt of Court (Marshall): Serious and Horrendously Expensive

Following the execution of the interim order in 2022, the plaintiffs sought an order charging Marshall Macciacchera, and three of the corporate defendants (Arm Hosting Inc., Star Hosting Limited, and Roma Works Limited) with contempt for refusing to comply with many aspects of the order.

Justice Rochester describes Marshall as the president of Arm Hosting Inc. and the sole director of the other companies [corporate defendants]. In 2022, Justice Lafrenière concluded that Marshall and the corporate defendants had, on a prima facie basis, failed to comply with the order by “deliberately failing to make the required financial disclosures, refusing to answer numerous questions regarding their assets, various login credentials, and certain unauthorized streaming services.”

Marshall and the corporate defendants were charged and a contempt hearing took place in April 2023 before Justice Rochester, with further submissions filed up until January 2024.

Defendants Alleged Bias

The plaintiffs alleged that the defendants “lied, concealed and attempted to conceal evidence” and all remained in breach.

The defendants appear to have built their defense on the alleged misconduct of the independent supervising solicitor; searches that “robbed” Marshall of his dignity, allegations that the ISS is not independent but is biased and therefore lacks integrity, met similar claims including doubts over expert evidence, even suggestions that the Court may not be impartial.

These allegations were examined in detail, but it’s clear from the order they were poorly received.

“The Charged Defendants have failed to call into question ISS Drapeau’s independence and integrity. There is no indication that anything untoward occurred, despite the Charged Defendants attempts to make it appear that way,” Justice Rochester’s order reads.

“Allegations of bias or a lack of independence against a member of the legal profession acting as an independent supervising solicitor should not be made lightly. Such allegations strike at the very core of the duties incumbent on an ISS. In the present case, I consider that not only were they made lightly, considerable Court time was used seeking to call into question the integrity of ISS Drapeau when there was no foundation for doing so.”

Allegations that the Court acted with “partiality, unfairness, and in essence, bias,” faired no better. Justice Rochester notes that the defendants provided “no cogent evidence” and relied on “bald allegations” instead.

Breaches of the Interim Order

Justice Rochester’s 80-page order is detailed; in respect of the details surrounding the execution of the order in 2022, oftentimes excruciatingly so for the defense. The full order is linked below and the Judge’s key findings follow:

• Marshall failed to disclose the required technical information associated with SSTV Services
• Defendants failed to provide credentials for the required accounts, domains, subdomains and servers
• Marshall provided login credentials for the registrar account of armhosting.ca
• Marshall did not provide credentials for live247.tv or credentials for the Live247 streaming server
• Court satisfied that Marshall is able to access the required credentials to comply with the order
• Marshall intentionally failed to disclose information relating to the two Hong Kong companies
• Star Hosting Limited and Roma Works Limited intentionally failed to comply
• Marshall intentionally failed to disclose assets, accounts, and details of overseas cryptocurrency
• Marshall intentionally failed to disclose his computer password

“Having found that the requisite elements of contempt have been established beyond a reasonable doubt, I nevertheless retain a discretion to find the Charged Defendants not guilty of contempt,” Justice Rochester notes.

“I am not satisfied that a finding of guilt would be an injustice in the present case.”

Costs and Penalties

Having found the defendants guilty of contempt of the interim order, the next stage is a hearing to determine the appropriate penalty. But before that takes place, the issue of the plaintiff’s costs needed to be addressed.

“The Plaintiffs seek an all-inclusive lump sum in the amount of $375,312.93 [~US$277,000], payable forthwith, comprised of (i) 50% of their total legal fees incurred for the contempt proceedings; and (ii) their reasonable disbursements,” the order reads.

When deciding the actual amount to be awarded, many factors are considered, including the conduct of the parties involved. The defendants argued they should pay no costs given the manner in which the interim order was executed. Justice Rochester’s order delivers the bad news in a paragraph (item 6).

The Charged Defendants are, jointly and severally, liable to the Plaintiffs for costs, payable forthwith, in a lump sum amount of $375,312.93, which is inclusive of legal fees, disbursements, and taxes thereon.

With costs of US$277,000 for contempt alone and the “appropriate penalty” yet to be decided, how this case continues to its ultimate conclusion is currently unknown.

SmoothStreams reportedly made around US$1.1 million per year, which sounds like a lot, at least until the unknown costs of the next year, or years, are factored in.

Justice Rochester’s order is available here (pdf)

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

Manga and anime have become increasingly popular in recent years. These formats originate in Japan, but they are now popular all over the world .

Available in static and animated form, ‘hentai’ describes the adult versions of the above. With a growing audience of many millions of fans, hentai is also benefiting from the boom.

As with any type of media, not all consumers are paying for access. Anime and manga piracy is more prevalent than music piracy today, and hentai is no exception. The nHentai.net website, for example, had nearly 80 million visits in June this year.

Copyright holders are not happy with the unauthorized distribution of their content. Many take countermeasures, which often involves sending DMCA takedown notices to the ‘pirate’ platforms, but not all recipients respond by taking content offline.

Rightsholder Targets nHentai

California company PCR Distributing is one of the affected copyright holders. The company does business under various brands, including J18 and JAST USA, and sees nHentai as a major threat to its operation.

PCR obtained a DMCA subpoena a few weeks ago, requiring Cloudflare to unmask the people behind the site, which allegedly failed to process takedown notices. As is frequently the case, a court clerk swiftly granted the subpoena, requiring Cloudflare to comply. In this case, however, that wasn’t straightforward.

A few days after the DMCA subpoena was issued, lawyers representing nHentai slammed on the brakes. They argued that no personal data should be disclosed as the subpoena should have never been granted .

At the time of writing, the matter is still pending in court. NHentai’s opposition is well argued and certainly has a chance of success. However, even if the subpoena is quashed, nHentai’s legal issues are far from over, as PCR has just filed a full-blown copyright infringement lawsuit.

PCR Sues nHentai for Copyright Infringement

In a complaint filed last Friday at a California federal court, PCR describes nHentai as a popular ‘pirate’ site with dozens of millions of visitors. The site shares copyrighted material without permission, taken from digital or physical books, while the operators don’t allow users to upload content.

“NHentai.net is a widely visited platform for adult manga and doujinshi content, attracting over 79,000,000 visits per month,” the complaint reads.

“The website hosts a vast collection of hentai works, including commercially produced content, much of which, based on information and belief, is shared without proper authorization from the owners.”

The lawsuit emphasizes that nHentai doesn’t rely on user-generated content. Those types of services can typically rely on a safe harbor under the DMCA. In this case, however, nHentai can’t claim this protection, PCR argues.

“nHentai is not a user-generated content website. There is no user upload capability. Defendants are not ‘service providers,’ are not engaged in the storage of content at the direction of users, and thus are not entitled to any of the safe harbors afforded under Section 512 of the [DMCA].”

Failed Settlement Attempt

The complaint doesn’t identify the owners of nHentai, who have yet to be named. However, PCR and nHentai are certainly no strangers. Last October, attorneys for the alleged pirate site offered to confidentially settle all copyright infringement claims with PCR.

The proposed terms of the agreement are unknown, but PCR declined and insisted that nHentai should take down pirated copies of their works.

“In October 2023, the nHentai Defendants […] attempted to have PCR enter into a ‘HIGHLY CONFIDENTIAL SETTLEMENT AND RELEASE AGREEMENT’ to settle claims, including copyright infringement, between the Plaintiffs and Defendants in this case. PCR declined the agreement and further requested the removal of its works from nHentai.”

Despite these efforts, nHentai allegedly failed to remove any of the infringing works in response to PCR’s takedown requests.

“Plaintiff or its agents sent DMCA compliant takedown notices identifying infringing works on Defendants’ website to the email address provided for reporting abuse. Additional DMCA-complaint takedown notices were sent to nHentai’s known service providers. However, 100% of the reported URLs remain active.”

Damages and a Broad Injunction

PCR accuses nHentai of various forms of copyright infringement and demands damages as compensation. In addition, the company seeks a broad injunction to effectively shut down the site.

The injunction should prohibit the site’s operator from infringing the copyrights of PCR’s works going forward and require the registrar of nHentai.net to transfer the domain to PCR.

If a domain transfer isn’t granted, the proposed injunction requires third-party intermediaries to block the domain in the United States. That would apply to search engines, hosting providers, ISPs, domain name registrars, domain name registries, and other service or software providers.

At the time of writing, nHentai has yet to comment on or respond to the complaint. However, given the site’s previous opposition to the DMCA subpoena request, we expect that it will file a response in due course.

—

A copy of PCR Distributing’s complaint, filed at the U.S. District Court for the Central District of California, is available here (pdf)

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

Released Time for Religious Instruction (RTRI) is a mechanism in the United States which allows schoolchildren to receive religious instruction during school hours.

The law says that this can only take place off-site, with teachers and authorities’ involvement limited to releasing children into the hands of third-party organizations for instruction elsewhere.

In Ohio, parent Zachary Parrish became concerned by the actions and teachings of an organization called LifeWise, which recently described itself as a “privately funded Christian non-profit” that provides “religious instruction in traditional, character-based, Biblical teaching.”

To raise awareness of LifeWise and what Parrish describes as its spreading of “Evangelical Christianity, Purity Culture, Christian Nationalism, homophobic beliefs, transphobia, and hateful rhetoric,” Parrish and the like-minded Molly Gaines teamed up to found an opposition group: Parents Against LifeWise .

Parrish Publishes LifeWise’s Children’s Curriculum, LifeWise Sues

In the belief that the curriculum contains information supportive of the opposition group’s cause, Parrish obtained a copy of the closely-guarded documents and, in the public interest, posted them publicly online. When he refused to comply with LifeWise’s demands to take the content down, LifeWise responded with a potentially crushing copyright infringement lawsuit.

Filed in the Northern District of Indiana (Fort Wayne Division) on July 2, 2024, plaintiff LifeWise Inc. of Indiana described Parrish as a willful infringer whose goal was to “gather information and internal documents with the hope of publishing information online which might harm LifeWise’s reputation and galvanize parents to oppose local LifeWise Academy chapters in their communities.”

After the complaint was filed, Parrish immediately received an offer to settle. That was perceived as an attempt to bring the matter to an end but on unacceptable terms; no recognition of Parrish’s right to use the material under the doctrine of fair use and a potentially devastating effect on raising awareness and future criticism of the religious group.

These components unsurprisingly attracted the attention of the EFF, which is now defending Parrish against LifeWise’s copyright infringement allegations. That began in earnest last week with a motion to dismiss for failure to state a claim.

Copyright Is Not a Tool to Punish or Silence Critics

EFF’s approach to this litigation is encapsulated in the heading above, as explained by EFF IP Litigation Director Mitch Stoltz and Staff Attorney Tori Noble.

“Copyright law is not a tool to punish or silence critics. This is a principle so fundamental that it is the ur-example of fair use, which typically allows copying another’s creative work when necessary for criticism,” EFF begins.

“But sometimes, unscrupulous rightsholders misuse copyright law to bully critics into silence by filing meritless lawsuits, threatening potentially enormous personal liability unless they cease speaking out. That’s why EFF is defending Zachary Parrish, a parent in Indiana, against a copyright infringement suit by LifeWise, Inc.”

A Perfect Example and Classic Fair Use

In a motion to dismiss dated August 26, EFF notes that some infringement lawsuits amount to “baseless shakedowns” where the expense of discovery heightens the incentive to settle rather than defend a frivolous lawsuit.

EFF informed the Court that the lawsuit against Parrish “is a perfect example.”

“As we explained to the court, Mr. Parrish’s posting of the curriculum was a paradigmatic example of fair use, an important doctrine that allows critics like Mr. Parrish to comment on, criticize, and educate others on the contents of a copyrighted work. LifeWise’s own legal complaint shows why Mr. Parrish’s use was fair,” the EFF notes, referencing LifeWise’s claim that Parrish hoped to gather information to publish online to harm the group’s reputation.

“This is a mission of public advocacy and education that copyright law protects. In addition, Mr. Parrish’s purpose was noncommercial: far from seeking to replace or compete with LifeWise, he posted the curriculum to encourage others to think carefully before signing their children up for the program.”

Returning to LifeWise’s assertion that Parrish aimed to harm LifeWise by publishing its curriculum, EFF points out that if a film critic uses scenes from a movie to support a devastating review, that’s considered fair use under copyright law. Likewise, if a concerned parent wishes to educate other parents “about a controversial religious school program by showing them the actual content of that program,” that’s permitted too.

Factors of Fair Use

A. LifeWise Concedes Mr. Parrish’s Transformative and Noncommercial Purpose

According to the motion to dismiss, LifeWise’s description of itself and its mission, of Parrish and his actions, show that LifeWise and Parrish had very different uses in mind for the curriculum.

For a fee, the former allows use of the document for “traditional, character-based, Biblical teaching during school hours.” For no fee, the latter’s use of the document was to “publish information online which might harm LifeWise’s reputationand galvanize parents to oppose local LifeWise chapters in their communities.”

B.The Nature of the Works Is Neither Disputed Nor Dispositive

The second factor of fair use concerns the creativity of the allegedly-infringed work. Creative content receives more protection than factual content, meaning that a finding of fair use is more or less likely depending on the content mix.

According to LifeWise, the curriculum is biblical instruction that includes videos, activity pages, leader guides, cards and printables; it is therefore a mix of creative work, passages from the Bible, plus other factual and non-creative elements.

“Given this jumble of characteristics, the ‘creativity’ subfactor is not likely to offer much illumination to the analysis,” EFF informs the court.

“Moreover, if the disputed use of the work ‘is not related to its mode of expression but rather to its historical facts’ then creativity matters even less to the analysis. Here, Mr. Parrish posted the Curriculum in order to make parents and the public aware of its content, not to appropriate its creative aspects.”

C. Mr. Parrish Used What Was Necessary for His Critical Purpose

It’s often claimed that using only small parts of a copyrighted work is key to a finding of fair use. While that may be helpful in some cases, copying of an entire work can be fair use in appropriate circumstances, when ‘time-shifting’ for example.

In this case, the entire curriculum was published and according to EFF, that was necessary given the purpose of the use. LifeWise provides a public 27-page summary of the curriculum and describes it as “comprehensive” but the EFF begs to differ.

“It is not plausible to infer that a 27-page summary, created by LifeWise itself —not exactly an objective source — would be adequate to fully educate parents or the public about what public school children might be learning during school hours from first grade through fifth grade, any more than a summary of the New Testament could substitute for actually reading it,” EFF informs the court.

D. LifeWise Does Not and Cannot Plausibly Allege Market Harm

The fourth and final factor of fair use considers the effect of the use of a copyrighted work on the potential market for that work. Put differently, whether use of the work deprived the copyright owner of income or undermined a new or even potential market. EFF argues that the complaint fails to show that any harm was caused.

“Where, as here, a use is highly transformative, only a strong showing of harm will weigh against fair use. When a use is transformative and non-economic, as in this case, market harm is less likely to exist or weigh against a finding of fair use,” EFF notes.

“LifeWise would never license the Curriculum for what it describes as Mr. Parrish’s intended use to ‘galvanize parents to oppose local LifeWise chapters in their communities. It concedes it would only license to Mr. Parrish, or anyone else, subject to ‘the restrictions that LifeWise is entitled to and would place on” use of the Curriculum, “including the right to deny permission altogether.”

LifeWise alleged that internet users may have downloaded the Curriculum for the purposes of religious instruction, contrary to the purpose envisioned by Parrish.

“Even taking this alleged harm at face value, Mr. Parrish cannot be held liable for what other people might hypothetically do; the question before the Court is whether Mr. Parrish’s own use is unlawful.”

Conclusion

EFF concludes that the posting of the LifeWise Curriculum “was a self-evident fair use”, and did not infringe any copyright. “This Court should dismiss the complaint and end LifeWise’s improper attempt to punish a critic.”

EFF ends a summary of recent events with a cautionary note that deserves to be highlighted.

Fair use is not the freedom to use copyrighted material with impunity. Fair use is a possible defense in a copyright lawsuit, not an immunity card that makes allegations disappear when waved in the air.

Parrish is fortunate to have EFF on his side; defending a fair use case not only requires legal experts, it can also get horribly expensive, extremely quickly. It’s hoped that the motion to dismiss filed by Parrish and EFF last week may help to end this lawsuit before it becomes unnecessarily costly for everyone, including the plaintiff.

Defendant’s motion to dismiss & EFF’s supporting brief are available here and here (pdf)

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

Three years ago, Bungie filed a complaint at a federal court in Seattle, accusing Destiny 2 cheat seller AimJunkies.com of copyright and trademark infringement, among other things.

The same accusations were also leveled against Phoenix Digital Group, the operating company behind the website, and third-party developer James May.

Bungie Wins Landmark Trial

After years of legal back-and-forth, the case went to trial in May, where both sides presented their arguments. AimJunkies, in particular, emphasized that the defendants never accessed or modified any of Destiny 2’s copyrighted game code.

Bungie, on the other hand, argued that AimJunkies’ copyright-infringing activities were blatant and obvious. At the end of the trial, the Seattle jury ruled in favor of the video game company.

After the hearings concluded, the jury found all defendants liable for direct, vicarious, and contributory copyright infringement. Phoenix Digital Group and all individual defendants were ordered to pay damages equivalent to the actual profits they earned, a total of $63,210 .

Court Denies AimJunkies a New Trial

The jury verdict was a clear victory for Bungie, but it didn’t mark the end of the legal battle. AimJunkies had previously filed a motion for judgment as a matter of law, contending that it was evident they hadn’t infringed on Destiny 2’s copyrights.

The district court was therefore asked to overrule the jury’s decision and enter a new verdict. Alternatively, the court could order a new trial, offering AimJunkies another chance to defeat Bungie.

Last week, United States District Judge Thomas Zilly denied the request for a do-over. Judgment as a matter of law may be granted if the evidence only allows for one reasonable conclusion , which runs contrary to the jury’s verdict. That’s not the case here.

Judge Zilly writes that Bungie was required to prove that it owned the copyrights and that these were infringed by AimJunkies. The presented evidence supports that, he concludes.

“[A]t trial Bungie needed only to establish that the ‘Cheat Software’ distributed by Defendants had copied protected aspects of Destiny 2. Bungie could show that Defendants copied protected aspects of Destiny 2 with either direct or circumstantial evidence of copying. Both types of evidence were presented at trial.”

For example, both Bungie and AimJunkies agreed that the cheat software affected the audiovisual output of Destiny 2. That alone, is sufficient to support the jury’s verdict that defendants engaged in copyright infringement.

$4.3 Million Arbitration Award

Before the trial took place, several of the claims presented in the lawsuit had already been resolved by an arbitrator. The arbitration process was conducted behind the scenes and resulted in a resounding win for the game developer. Bungie was awarded almost $4.4 million in damages and fees.

The bulk of the award was DMCA-related damages. According to arbitration Judge Ronald Cox, the evidence made it clear that AimJunkies and third-party developer James May bypassed Bungie’s technical protection measures in violation of the DMCA.

In addition to breaching the DMCA’s anti-circumvention provisions, the defendants were also found liable for trafficking in circumvention devices. Or, put differently, selling and shipping the cheats.

The AimJunkies defendants were disappointed in the arbitration outcome and decided to challenge it at the court of appeal . According to the cheat sellers, the arbitration process was not fair and correct.

The arbitrator relied heavily on evidence from Bungie’s witness, Dr. Kaiser, and denied cross-examination of the same witness, the defendants argued. This prevented AimJunkies from challenging the credibility of this key witness.

Appeals Court Denies AimJunkies’ Arbitration Appeal

Last week, the Ninth Circuit Court denied AimJunkies’ appeal. The court found that the district court did not err in confirming the $4.3 million arbitration award, concluding that the arbitrator didn’t prevent the defendants from challenging the witness.

“The Arbitrator did not entirely dismiss AimJunkies’ attempt or ability to impeach Dr. Kaiser,” Judges Nguyen, Johnstone and Ezra concluded

“For example, AimJunkies’ counsel could have tried to rephrase its question, question Dr. Kaiser about his transcripts, or read Dr. Kaiser’s transcripts into the record to impeach Dr. Kaiser. AimJunkies’ counsel did not attempt to do so.

“Instead, counsel abandoned the line of questioning entirely. This in no way amounts to an error […], especially not an error that was ‘in bad faith or so gross as to amount to affirmative misconduct’ […] and thus deprived the parties of a ‘fundamentally fair’ hearing.”

The arbitrator did not show “a manifest disregard” of law, no clear errors were made, and the scale of the award was not “completely irrational.”

As a result, the court of appeal affirmed the $4.3 million arbitration award.

As a result, Bungie emerges the clear winner once again. AimJunkies won’t get a new trial and the arbitration award, which was previously put on hold pending the appeal, can now be collected.

While there may still be further challenges ahead, AimJunkies’ outlook is ever more grim.

—

A copy of the Seattle District Court’s order is available here (pdf) . The order from the Ninth Circuit Court of Appeals can be found here (pdf) .

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

In a lawsuit filed at a New York federal court in June, leading textbook publishers including Cengage Learning, Macmillan Learning, Elsevier and McGraw Hill, accused Google of profiting from sales of infringing copies of their textbooks.

According to the complaint , Google’s “systemic and pervasive advertising” drives potential buyers to the websites of ‘Pirate Sellers’ who utilize Google Shopping Ads to advertise infringing copies of the plaintiffs’ books. Since the rogue sellers used names including “Cheapbok,” “Biz Ninjas,” and “Shop Hoth,” all of which appeared in the publishers’ takedown notices, Google should’ve known it was dealing with pirates, the publishers claimed.

“Failed to Terminate Repeat Infringers”

Despite this alleged knowledge, and regardless of their takedown notices, the publishers said that it was still possible for users to place orders with pirate sellers after clicking Google ads.

The publishers say this could’ve been curtailed if Google had consistently terminated so-called ‘repeat infringers’ and responded to follow-up notices more positively; the plaintiffs claim that Google responded to repeat requests on the same complaint by warning that it could stop reviewing their requests for up to six months.

The publishers’ complaint alleged (Count I) contributory copyright infringement, (Count II) vicarious copyright infringement, (Count III) trademark infringement, and (Count IV) violations of New York General Business Law, which deals with ‘materially deceptive and misleading practices.’

“Kitchen-Sink Pleading Strategy”

Filed this week in the Southern District of New York, Google’s motion to dismiss begins at what it describes as the “heart” of the case.

The publishers’ claim, that Google contributorily infringed copyrights by not doing enough to prevent ads for infringing works appearing in Google Shopping search results, doesn’t appear to be keeping Google up at night.

“Google will prevail on the merits of that claim because, among other things, Google has adopted industry-leading measures to combat advertisements for infringing products on its platform, well beyond the requirements of the safe harbors provided by the Digital Millennium Copyright Act (‘DMCA’). But this motion is not about Plaintiffs’ contributory copyright infringement claim (Count I),” Google’s motion reads.

The motion actually concerns the three remaining claims in the lawsuit, all of which are based on the same alleged underlying conduct at the “heart” of the case. Google says these were “tacked on” as part of a “kitchen-sink pleading strategy.”

Google: Each Claim Fails as a Matter of Law

Count II: Vicarious copyright infringement

To plead vicarious infringement, a plaintiff must show that a defendant had both the “right and ability” to supervise or control alleged third-party infringement, coupled with an “obvious and direct financial interest” in exploiting those copyrighted works. Google believes these standards haven’t been met.

“[The plaintiffs] have not adequately alleged (1) that Google has the ability to supervise or control the alleged underlying third-party infringement, which occurs entirely on websites not controlled by Google, or (2) that Google benefits financially from this purported infringement, let alone directly so,” Google states.

“Plaintiffs do not (and cannot) contend that either alleged act of Direct Infringement — the sale of unauthorized copies of Plaintiffs’ works, or the reproduction of those copies by purchasers — occurs on the Google platform. The Complaint makes clear that these allegedly infringing acts occurred on third-party websites.”

Responding to the claim that Google obtains a financial benefit from the alleged infringement, Google notes that the plaintiffs’ claim, that Google “earned revenue from each of the clicks that led to the Direct Infringements, and from clicks on paid infringing Shopping ads generally,” falls short of the standard required to establish vicarious liability.

“[To] establish vicarious liability, the financial benefit to the defendant must ‘flow directly from the third party’s acts of infringement,’ either because the defendant profits directly from infringing activity or because the infringement draws customers to the defendant’s service,” Google notes.

“The fact that Google makes money from sellers’ ads does not mean that Google makes money from sellers’ infringement, even if those ads include some products that are infringing, because Google’s financial interest is the same regardless of whether infringement occurs.”

Three Claims Should Fail Now, The Other Will Fail Later

Count III and Count IV, which concern matters not directly related to copyright law, also draw criticism from Google. That leads to the company’s request for the court to dismiss three claims at this stage, with Count I (contributory infringement) the only claims left standing. Not that Google believes the claim will succeed, however.

“None of Plaintiffs’ four claims is meritorious,” counsel for Google notes in a joint letter to the court.

“With respect to Plaintiffs’ claim for contributory copyright infringement, the evidence will show that Google has promptly and appropriately responded to notices of infringement and has enforced its repeat infringer policy such that it is entitled to the protections of the Digital Millennium Copyright Act’s safe harbors as a matter of law.

“With respect to Plaintiffs’ three ancillary causes of action, Plaintiffs’ allegations fail to state cognizable legal claims, and Google is seeking their dismissal. Plaintiffs’ baseless claims should all be rejected and judgment should be entered in Google’s favor.”

The letter reveals that the parties have not yet engaged in settlement discussions.

Google’s motion to dismiss and the parties’ joint letter are available here and here (pdf)

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

After filing copyright lawsuits against early peer-to-peer file sharing services and emerging mostly victorious, the global music industry found that any depressant effect, on pirate content availability and consumption, was insufficient.

Content was soon being consumed by an expanding pool of internet users, and relentless demand was met being met by increased availability and supply. Since robust peer-to-peer networks had few issues taking care of mass distribution, music industry lawyers switched to suing tens of thousands of music pirates instead. That eventually became unpleasant for everyone and as an anti-piracy strategy, also insufficient.

We Can Do This The Easy Way, Or The Hard Way. No Pressure

Having sued piracy platforms and their users, attention turned to residential ISPs. Approached as potential allies, progress over the years was rarely much more than a mixed bag. When it became increasingly clear that cooperation would involve ISPs suppressing their own customers – those that the music companies had previously failed to suppress – lawsuits against the internet’s gatekeepers were inevitable.

After music giant BMG sued Cox Communications for failing to take action against repeat infringer customers, the matter was settled in BMG’s favor via a “ substantial settlement .” With big money at stake, repeat infringer lawsuits are now widespread in the United States; in 2022, BMG hit the owners of Optimum with a similar lawsuit carrying a billion-dollar payload.

The Hard Way It Is Then

Filed in the Eastern District of Texas, the complaint featured plaintiffs BMG Rights Management, UMG Recordings, Capitol Records, Concord Music Group, and Concord Bicycle Assets.

The defendants, Altice USA and CSC Holdings, were described as the operators of one of the largest ISPs in the United States. Sold under ‘Optimum’ branding and available in at least 21 states, high-speed connections made available by the defendants were allegedly being used by thousands of persistent pirates responsible for millions of infringements.

The plaintiffs informed the court that efforts to encourage the ISP to suspend or disconnect alleged infringers, had come to nothing.

“Rather than work with Plaintiffs or take other meaningful or effective steps to curb this massive infringement, Altice chose to permit infringement to run rampant, prioritizing its own profits over the Plaintiffs’ rights,” the complaint continued.

With David Bowie, Justin Bieber, Katy Perry, Keith Urban, and Lady Gaga among around 8,000 artists suffering the consequences of the alleged inaction, the stage was set for a billion dollar showdown.

After 18 Months of Litigation, Case Dismissed – Permanently

If obtaining a settlement was the plan, the next 18 months of litigation failed to give much away. The discovery process, for example, led to claims that certain materials were being withheld based on unsupported assertions of privilege. Deposition notices served on the CEOs of both BMG and Concord were challenged and eventually quashed.

Anti-piracy company OpSec Online, which had been hired by the plaintiffs to track infringement carried out on BitTorrent networks, was required to hand over considerable amounts of data. That included copies of its source code (23,693 files) and more than a million pages of documents.

Altice also sought to obtain information from the RIAA relating to repeat infringer lawsuits targeting other ISPs. Then on Wednesday this week, the parties suddenly advised the court that the lawsuit was over.

Having been dismissed with prejudice, the matter won’t see the light of day again, but the filing itself offers no information to explain why. Similar cases against other ISPs were dismissed just hours before trial , so that seemed the most likely outcome here.

Parties Agreed to Settle

Confirmation that the parties did indeed settle can be found in Altice SEC filings.

“On July 1, 2024, we and the BMG Plaintiffs settled this lawsuit and as part of the settlement we expect a stipulation of dismissal with prejudice to be filed by the parties on or before August 20, 2024. The settlement amount was accrued for as of June 30, 2024,” the document reveals.

No specific settlement figure is mentioned by Altice, but the company does reference its ongoing legal battle with Warner, Sony, and other members of the RIAA, which makes similar ‘repeat infringer’ claims while also seeking massive damages.

“We intend to and are vigorously defending against the claims in the Warner Matter. In addition to contesting the claims of liability, we have an affirmative defense under the Digital Millennium Copyright Act that, if successful, would preclude or limit monetary damages against us in connection with some or all of the Warner Plaintiffs’ asserted claims. There can be no assurance as to the outcome of this litigation,” the filing warns.

The stipulation of dismissal (with prejudice) is available here (pdf)

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