Late 2019, Internet provider Cox Communications lost its legal battle against a group of major record labels, including Sony and Universal.

Following a two-week trial, a Virginia jury held Cox liable for its pirating subscribers. The ISP failed to disconnect repeat infringers and was ordered to pay $1 billion in damages.

Cox challenged the verdict through several routes and earlier this year booked a partial victory. The Fourth Circuit Court of Appeals confirmed that the ISP was contributorily liable for pirating subscribers, but reversed the vicarious copyright infringement finding. A new trial will determine the appropriate damages amount given these new conclusions.

Following this ruling, Cox asked for the damages question to be put on hold, as there were other matters pending. Among them, a planned Supreme Court petition filed a few hours ago.

Cox Files Supreme Court Petition

In a public statement today, Cox warns that the current ruling jeopardizes internet access for all Americans, as it forces ISPs to terminate the accounts of subscribers who are repeatedly accused of sharing copyright-infringing content.

“Terminating internet service would not just impact the individual accused of unlawfully downloading content, it would kick an entire household off the internet,” Cox notes.

“This would have a particularly devastating impact on rural communities with only one service provider or where an alternative provider offers slow or unreliable connections — termination would leave a household with no viable access to the internet.”

After the Cox case was docketed, similar lawsuits were filed against other Internet providers, including Grande, Verizon, RCN, Bright House, Frontier and others. Some complaints were settled and others remain pending.

These cases have already changed how Internet providers handle repeat infringers on their networks and “terminations” are now more common. According to Cox, however, the current verdict goes too far.

Draconian Liability Regime

In its petition Cox writes that, in its view, the lower court’s ruling stretches service provider liability too far. As a result, ISPs find themselves ‘forced’ to terminate subscribers, who may have done little wrong.

“Cox Communications — which provides internet service to millions of homes and businesses — must either terminate internet connections previously used for infringement or else face liability for any future infringement.

“In doing so, the court installed the most draconian secondary-liability regime in the country, one that departs from three other circuits, defies this Court’s precedents, and threatens mass disruption across the internet,” Cox warns.

The Supreme Court petition aims to place the ‘repeat infringer’ issue into perspective, noting that pirating accounts represented roughly 1% of its total subscribers. Of this group, Cox was able to motivate 95% to stop.

The remaining ‘repeat infringers’ were able to continue. The music companies argued that the ISP could and should have terminated these accounts, some 57,000 in total, but Cox believes this is a step too far.

Universities, Hotels and Military Housing

Cox argues that subscribers shouldn’t lose their internet access based on unadjudicated third-party accusations; especially since the repeat infringers included business accounts with many simultaneous connections.

“In practice, the accounts that continued to rack up notices without termination were regional ISPs, universities, hotels, military housing, and other business accounts used by hundreds or thousands of individual users,” the petition reads.

Disconnecting universities and hospitals could have devastating consequences but Cox also continued to provide its services to many regular subscribers, who also continued to pirate.

While these examples are less dramatic, the company argues that disconnecting regular subscribers can also have serious consequences.

“Even with respect to individuals who did, in fact, infringe, loss of internet access is very heavy punishment for illegally downloading two songs. A person without internet might lose their job or have to drop out of school.”

Cox hopes that the Supreme Court will take on the case and limit secondary liability for Internet providers. The current Fourth Circuit ruling weighs heavily in favor of rightsholders, to the detriment of ISPs and their subscribers, the petition argues.

Two Questions

In recent weeks, Cox has put considerable effort into explaining its position to the press. When doing so, there was a strong focus on the potentially devastating impact on Internet users.

While this is undoubtedly an important issue, the matter at hand is ultimately about service provider liability. And the key questions presented to the Supreme Court don’t directly involve hospitals in rural areas.

This case is about who is responsible for Internet piracy. Is it only the users who actually share pirated material, or can ISPs be held responsible too?

The Fourth Circuit concluded that Cox “materially contributed” to the infringements of its subscribers, because the company knew about this activity and didn’t terminate their accounts.

That leads Cox to present the following question to the Supreme Court:

“Did the Fourth Circuit err in holding that a service provider can be held liable […] merely because it knew that people were using certain accounts to infringe and did not terminate access, without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it?”

The second question is indirectly related to the damages award. The jury awarded the maximum statutory damages of $150,000 per work, which is typically reserved for “willful” infringement.

Cox questions whether simply knowing about copyright infringements of subscribers is willful, if the company didn’t know that its own conduct was illegal.

“Did the Fourth Circuit err in holding that mere knowledge of another’s direct infringement suffices to find willfulness under 17 U.S.C. § 504(c)?” the petition reads.

Landmark Case

If the Supreme Court decides to take on this case, it will undoubtedly result in a landmark decision. The music companies also indicate that they may present their own petition to the court, which will make the matter even more crucial.

Both sides are expected to garner support from third parties, which are expected to file supporting briefs on their behalf. After that, the Supreme Court will have to decide whether to take on the case.

Whatever the ultimate outcome, Internet providers could certainly benefit from extra clarity on the “repeat infringer” problem. Whether they will like the eventual outcome, remains to be seen.

—

A copy of Cox Communication’s Supreme Court petition is available here (pdf)

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

Three years after the raids that dismantled his Megaupload empire, it was clear that Kim Dotcom was digging in for the long haul.

Whether even he anticipated just how long that haul would be is unclear. Having taken every imaginable step to make his prosecution and likely extradition as difficult as possible, it certainly can’t be ruled out.

For Dotcom, information has proven to be a valuable and flexible commodity; in 2015 he made dozens of requests to numerous government departments to gain what he described as ‘urgent’ access to information to assist in his looming extradition defense.

Vexatious Requests Denied

With Dotcom’s case already a political hot potato, decisions were made to transfer these requests, mostly under s39 of the Privacy Act, to then-Solicitor General Chris Finlayson. Due to their broad scope, allegedly including demands for trivial information, Finlayson labeled the requests frivolous and ultimately vexatious.

The Solicitor General noted that the July 2015 information requests were labeled urgent because Dotcom’s extradition eligibility hearing was due to take place in September at the District Court. However, the nature of the requests led him to conclude that their true purpose was to disrupt that hearing and since they weren’t made in good faith, he rejected them all.

Dotcom Takes Legal Action

Dotcom denied he had an ulterior motive and followed up with legal action, claiming that the government was holding back information to which he was legally entitled.

In Dotcom v Crown Law Office [2018] NZHRRT 7 ( pdf ) , the Human Rights Review Tribunal found that the Crown had indeed interfered with Kim Dotcom’s privacy by rejecting what was described as “multiple, near identical, Privacy Act requests made to all Ministers and nearly every government department for all personal information held about him.”

For “loss of dignity or injury to feelings” Dotcom won NZ$60,000 in damages plus another NZ$30,000 to compensate for the lack of disclosure. The Crown appealed that decision and in September 2018 the matter was heard at the High Court in Wellington.

High Court Sides With Solicitor-General

The High Court agreed with the Solicitor-General, noting that the requests were transferred for lawful reasons. The Court described the earlier damages award in favor of Dotcom as “ wholly erroneous .” There was no evidence to show that the information being sought was even relevant to the extradition proceedings, the High Court ruled.

Months earlier, the government had actually started to respond to Dotcom’s requests and by mid-June 2018, “tranches of information” had been handed over to Dotcom, with a few exceptions for legal reasons.

Nevertheless, the High Court’s decision in October 2018 was labeled “a bad day for human rights” by Dotcom, who took his many grievances to the Court of Appeal.

Court of Appeal Sides With Dotcom

The Court of Appeal eventually sided with Dotcom and, by broad extension, the decision in his favor at the Human Rights Review Tribunal earlier. The transfer of the information requests between government departments breached Dotcom’s privacy, the Court of Appeal confirmed. All that remained was to determine the scale of Dotcom’s damages award.

Having previously ruled in favor of Dotcom with an award of NZ$90,000, in February 2022 the Tribunal decided that this time around, Dotcom wouldn’t receive a penny. In response, Dotcom appealed once more to the High Court, but it also declined to award him damages. When Dotcom applied for leave to appeal the High Court’s decision at the Court of Appeal, the High Court rejected that too.

Application for Special Leave to Appeal

Never one to give up, Dotcom filed an application at the Court of Appeal. He requested special leave to appeal the decision of the High Court, which had dismissed his appeal against the decision of the Human Rights Review Tribunal, which had awarded him zero damages.

Late last month, Dotcom’s application for special leave to appeal was declined by the Court of Appeal. The reasoning behind that decision is laid out in considerable detail in the court’s decision, which is linked below.

What is clear, however, is that Dotcom’s focus on receiving an award for damages for “loss of benefit” under New Zealand’s Privacy Act, concerned his inability to use the information requested during the extradition proceedings. That failed to move the needle at the Court of Appeal.

“It is clear from the various judgments given in the extradition proceedings that there would have been no benefit to Mr Dotcom if he had received the information requested at the time the extradition proceedings were underway. The Courts consistently held that the peripheral matters raised by Mr Dotcom were irrelevant to the extradition process, given the Court’s limited role in determining a person’s eligibility for surrender,” the Court of Appeal’s decision reads.

“Following the Tribunal complaint decision, Mr Dotcom sought to raise before this Court the fact that the Tribunal had found that there had been an interference with his privacy and had awarded him [NZ]$90,000 in damages for breach of the 1993 Act. Mr Dotcom argued that the Tribunal complaint decision was relevant to the extradition hearing, because it confirmed an abuse of process that would undermine public confidence in the judicial system.

“This Court disagreed. It noted that the conduct at issue did not come close to establishing the high threshold required to stay extradition proceedings and that the attempt to rely on it for this purpose was misconceived.”

Tactics Noted But Ultimately Unsuccessful

Other matters were also considered by the Court, none of which went in Dotcom’s favor. In closing, the Court of Appeal made a general assessment of events relating to this application. From a few steps back, attributing it to most side issues raised by the defense, before numerous courts in more recent years, might not be an especially big stretch.

“This Court’s primary function is to clarify the law. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify the further pursuit of issues which have already been considered on multiple occasions. That is very much the case with the present application,” the decision reads.

In the absence of “any other reason” that would make it appropriate to grant Dotcom special leave to appeal, the application was denied.

The decision is available here ( pdf )

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

After receiving an anonymous tip in 2019, anti-piracy group Nordic Content Protection (NCP), and members including pay-TV company C More (previously Canal+), Warner Bros. Discovery and streaming service Viaplay, launched a pirate IPTV investigation.

NCP received a similar tip in 2020, this time from police in the city of Gävle. They were passing on the details of another anonymous tip detailing the activities of a suspected pirate IPTV network. After a period of surveillance, which included wiretapping an unknown number of suspects, police executed warrants at two addresses, one in Gävle and the other in Sandviken.

Two suspected operators were detained along with evidence that included 47 gold bars, an expensive whiskey collection, around $25,000 in cash, and roughly $41,000 in bitcoin.

At the Stockholm District Court’s Patent and Market Court in October 2023, the men were found guilty of criminal copyright infringement and sentenced to prison. They were also held jointly and severally liable for damages totaling SEK 196,247,000 ($18 million), payable to C More, Warner Bros. Discovery, and Viaplay.

The Inevitable Appeal

In the belief that the sentences were too lenient, the prosecutor asked the Patent and Market Appeal Court to increase the sentences of the defendants, who in court records are identified by the initials S.Ö. and JL.

S.Ö and JL asked the Patent and Market Appeal Court to acquit them, dismiss the copyright holders’ claims for damages and the requirement to pay their legal costs, plus a full dismissal of a confiscation order against seized IPTV boxes.

In common with the trial at the lower court, the men denied claims that they retransmitted the plaintiffs’ TV broadcasts. JL appears to have conceded limited involvement in IPTV sales, handling just a few clients via a guest login to a service he’d previously handed over to someone else, plus sales of unmodified IPTV boxes.

Evidence showed that during the raids on the men’s homes, no ‘outward flow’ was identified from the suspects’ computers. However, one of JL’s computers contained software “that enabled reception and streaming of IPTV.” Evidence showed that S.Ö. paid for server space while JL had purchased server licenses and software subscriptions for receiving and distributing IPTV.

The content of chat messages and their handling of payments confirmed to the satisfaction of the court that the men were indeed involved in IPTV. All that remained was to determine the scale of the offending.

Thousands of Customers, But How Many Thousands?

The prosecutor’s case against the men called on significant evidence that reportedly left little doubt that they were closely involved with all aspects of the alleged IPTV business. To demonstrate that the operation distributed content illegally to many users, the prosecution partly relied on photographs taken during the raids, including those that claimed to show how many users S.Ö and JL serviced on the platform.

“According to the prosecutor, the photographs show that S.Ö. at the time of the crackdown had 4,619 users in the network and that JL had 8,303 users in the network, i.e. their network had a total of 12,992 users,” the court’s decision reads.

Evidence Fell Short

But there was a problem. S.Ö. and JL informed the court that the photographs, which showed IPTV panel software Ministra (formerly known as Stalker portal), did not show the number of users but rather the number of ‘events’ generated by users. That cast doubt on the claim that the service had close to 13,000 users.

Instead, several pieces of evidence backed up the defendants’ assertion that their platform had around 5,000 users, a claim that was first made in the anonymous tip received by NCP back in 2019.

Without making any changes to the substance of the underlying judgment, the Court of Appeal recalculated the damages payable to the rightsholders. From just over SEK 196,000,000 (US$18,210,000) the new damages amount of just under SEK 114,000,000 (US$10,591,000) trimmed the original amount by roughly US$7 million.

The decision may be appealed before August 2, 2024 ( pdf )

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

In recent years, legal video and sports streaming services have flourished around the world.

At the same time, millions of people are streaming from unauthorized sources, often through perfectly legal streaming devices including Amazon’s Firesticks.

Most people know that the subscription services that typically arrive pre-installed on the devices are unauthorized. However, with such significant discounts available, millions can’t resist these offers.

The demand has created an entire new industry with a few big players at the top, making millions. Further down the food chain, there is a wide variety of subscription resellers who take a cut as well, running their own ‘shops’.

Court Sentences IPTV Firestick Seller

The latter description applies to Mr. O’Donnell, a 41-year-old man from the North West of England who was sentenced at Liverpool Crown Court today. The defendant, who pleaded guilty, received a two-year suspended prison sentence and was ordered to carry out 150 hours of unpaid work.

As often seen in UK cases, the sentence is for “supplying” content under the Fraud Act. In addition, the defendant violated the Copyright, Designs and Patents Act of 1988 by “providing, promoting and marketing in the course of a business, a service designed to circumvent technological measures.

O’Donnell promoted and sold the ‘fully loaded’ Firesticks though direct contact, Facebook and WhatsApp, delivering some of the purchases in person. After an investigation by local anti-piracy group FACT, he was eventually arrested by Merseyside Police on July 4th last year.

According to FACT, these unauthorized IPTV subscriptions included broadcasts of Sky, TNT Sports, and possibly others.

£130,000

The Liverpool man doesn’t seem to be a key player in the broader pirate IPTV ecosystem, but still generated £130,000 in revenue. How much work that involved isn’t clear, but FACT mentions that the Firesticks were sold ‘over a number of years’.

Not all of the revenue came from selling modified Firesticks. The defendant also sold standalone IPTV subscriptions, priced between £40 and £85 for an annual plan.

How much profit the operation made is unclear. According to information available to us at the time of writing, O’Donnell is not required to pay any costs to the victims due to his personal circumstances.

Sticky Message

All in all, both FACT andMerseyside Police are pleased with the outcome of this case. They hope that it sends a clear message to others operating in the same line of business.

“The message is very clear: if you sell a device that provides access to content that is not licensed to you or owned by you, you could face criminal investigation, prosecution and a conviction,” FACT CEO Kieron Sharp comments.

Detective Inspector Steve Frame at Merseyside Police adds more cautionary words for pirate IPTV peddlers.

“We will use all available powers and continue to work with FACT to identify anyone else who is involved in this form of criminality and put them before the courts,” Frame says, commenting on the news.

This certainly isn’t the first IPTV-related sentencing in the UK; time will tell if the message eventually sticks.

Finally, the FACT press release prominently refers to the activities as an “ illegal Firestick operation “. However, it is worth clarifying that Firesticks themselves are perfectly legal and are still on sale at Amazon.

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

While rightsholders in Belgium have been slightly less vocal in support of site-blocking measures than others around Europe, they now appear to be making up for lost time.

With rightsholders eager to block large swathes of pirate sites and local ISPs on record saying they want exactly the same thing , an application for a blocking injunction filed by DAZN’s Eleven Sports Network in March showed partners working together.

Eleven Sports Network / 12th Player BV

Filed at the Dutch-speaking Business Court in Brussels, the application saw DAZN’s Eleven Sports Network (ESN) and 12th Player BV, a joint venture between ESN and the Spanish company Mediapro Internacional, team up hoping to compel local ISPs to block around 90 pirate domains.

According to the claimants, the platforms are dedicated to streaming live football matches in violation of their rights. Visitors to these pirate services reside in Belgium and access matches illegally using local internet service providers.

In this matter, the main internet service providers in Belgium are the named defendants, but only for the purposes of establishing their role as intermediaries. The ISPs are supporters of site-blocking measures because they also stand to benefit: Telenet via its Play Sports service, Proximus via Proximus Pickx, and Voo via Voo Sports.

Rightsholders ‘Recommend’ ISPs Should Block the Sites

With claimants and defendants all aiming for the same thing, the language used in the decision handed down by the Brussels court is non-adversarial, to put it mildly.

The claimants asserted that the domains submitted for blocking “provide access to websites on which audiovisual content broadcast on the channels of Eleven Sports Network BV is communicated to the public” and that customers of Telenet NV, Proximus NV, Voo NV, and Orange Belgium NV, facilitate access to those domains.

To tackle this problem, the claimants “recommended” that in their roles as intermediaries, the ISPs should implement DNS measures to prevent access to the ‘pirate’ domains.

The claimants further suggested putting the DNS tampering to good use; customers attempting to access the domains should be redirected to a DAZN anti-piracy site (screenshot below) set up to advise visitors on the reasons for redirection.

All parties also agreed to bear their own costs.

Not Much for the Court to Do

With no evidence before the Court that the claims were inadmissible and no grounds being identified that they might be, the claims of the applicants were declared admissible. The ISPs disputed the applicants’ claims for the record but offered no argument in support. Instead, as part of the predetermined direction of the case, left judgment in the hands of the Court.

The Court determined that as providers of internet connectivity, the ISPs are intermediaries and, as such, are in a position to prevent their subscribers from accessing the pirate streaming sites. The ISPs were ordered to do just that.

The request by Eleven Sports for the ISPs to redirect subscribers to a block page provided by DAZN was rejected. However, the decision notes that the ISPs “are free to provide the public with such information about the blocked access that these parties deem appropriate.”

Given that the claimants and defendants worked together to present the blocking action to the Court, it’s possible that the ISPs will find it appropriate to redirect visitors to DAZN’s anti-piracy page after all. Describing it as a ‘block page’ seems insufficient, however.

The site, located at dazn-antipiracy.be where the image above is displayed, seems to have a lot going on behind the scenes considering its straightforward task. One might even conclude that the aim isn’t just to inform, but to track visitors longer term.

The domains to be blocked by the ISPs are listed below. Three domains (aliezstream.pro, cdnssd.ru, ustream.pro) appear to be duplicates.

dlhd.sx	cdnssd.ru	sportadds.xyz	hesgoal-tv.tv
cdn.xsportbox.com	ustream.pro	tntsports.site	koora.shoot-yalla.to
365streams.world	aliezstream.pro	viaplaysports.online	vipstand.pm
sporttuna.site	antenasports.ru	sportsnet.store	watchsportnow.com
365livesport.com	sportplus.live	tsnsports.online	vipleague.lc
365livesport.life	yalla-lives.net	newsoccer.store	viprow.nu
365livesport.me	noblockaabbddxcktb.xyz	mrsoccer.club	vipstand.st
bingsport.xyz	socceronline.me	ukhdstream.xyz	buffstreams.sx
flash-24.live	volkastream.xyz	tnt-sportslive.xyz	olympicstreams.me
fullassia.com	volkastream.fr	9goals.io	fbstreams.pm
tv247365.net	vipbox.lc	axscore.com	qatarstreams.me
hes-goals.io	vipboxtv.sk	bingsport.com	play24.808ball.com
vipleague.la	r.bingsport.xyz	bingsport.watch	premiertv.watch
vipleague.im	vstream.store	bingsportlive.com	ru.score808pro.com
koora.shoot-yalla.live	rivofutboltv.xyz	cdn.livetv767.me	rojadirectatvonline.nl
strikeout.im	7soccerhd.xyz	daddylivehd.pro	rojadirecta.nl
shoot-yalla.io	hdlivestreamer.xyz	es22.sportplus.live	rojadirectaenvivo.me
spworld.me	cr7soccer.com	primefoot.ru	soccerstream100.co
daddylivehd.icu	v2.nizarstream.com	hes-goals.tv	aliezstream.pro
xsportbox.com	games47.xyz	hesgoal-tv.io	ustream.pro
cdnssd.ru	tarjetarojatvenvivo.net	kai.superbb77.cfd

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

Reddit has gone head-to-head with a group of filmmakers over the past year, aiming to protect the privacy of its users.

In three separate cases, the filmmakers subpoenaed Reddit for details of users who commented on various piracy related topics.

The movie companies said they were not planning to go after these people in court but wanted to use their comments as evidence in ongoing piracy liability lawsuits against Internet providers.

Reddit viewed the requests as intrusive. The company objected to the initial attempt , arguing that handing over the requested information would violate its users’ right to anonymous speech. Reddit later responded similarly to a second and third subpoena request.

The movie companies took these cases to a federal court, asking it to compel Reddit to comply. The court refused to do so, three times already .

Filmmakers Request ‘De Novo’ Review

The film companies were not happy with the denials and refused to give up. When U.S. Magistrate Judge Thomas Hixson denied their most recent attempt in February, relating to the case against ISP Frontier Communications, they moved for a ‘ de novo ’ review at a California federal court.

In their motion, the rightsholders cited jurisprudence suggesting that an IP address is not necessarily ‘unmasking’ personally identifying information. They argued that the magistrate judge ignored key arguments and arrived at the wrong conclusion.

The companies stressed that the commenters could prove crucial in their battle against ISP Frontier. Among other things, the court’s suggestion that there might be other ways to obtain similar evidence was premature, they said.

Reddit’s Objections

As expected, Reddit objected to the request for a ‘de novo’ review. The company argued that, as the court repeatedly found, the filmmakers have other non-intrusive options to gather evidence against Frontier, including seeking evidence from the ISP and its subscribers directly.

Reddit further noted that the filmmakers’ argument that IP-addresses do not “identify” users is misguided at best.

“Reddit does not require its users to give their real name or addresses, and so the only identifying information Reddit may maintain on its users is their IP address, which is precisely why the Movants here seek the users’ IP addresses. If IP addresses were not identifying, Movants would not be seeking them.”

At worst, the argument is disingenuous, Reddit wrote. The movie companies previously used a Redditor’s IP address to obtain the name and address of a subscriber, requesting their torrenting history and more.

“[A]fter Reddit provided Movants with IP address data for a single Reddit user last year, the Movants immediately identified that IP address by subpoenaing T-Mobile, and they have been harassing that user with motions practice ever since,” Reddit countered.

Court Denies ‘De Novo’ Review

After reviewing these and other arguments, this week the court sided with Reddit. In a single sentence, without further detail, U.S. District Court Judge James Donato denied the request for ‘de novo’ review.

“The motion for de novo determination of the motion to enforce the subpoena is denied, and the magistrate judge’s order is affirmed, for the reasons stated on the record,” Judge Donato writes.

Paired with the earlier rejections and denials, it’s clear that courts are hesitant to allow discovery of Redditors’ private information in connection with these non-party lawsuits.

The filmmakers have proven to be persistent and can appeal this outcome, or file yet another case. However, recent developments seem to have lowered the need to take further action related to the Frontier case.

Filmmakers Have an Alternative Now

The movie companies previously stressed that the Redditors could prove to be of key importance, since they had difficulty obtaining the required evidence from Frontier subscribers directly. However, that may have changed.

Frontier previously redacted the personal details of its subscribers, when filmmakers asked for information in their piracy liability lawsuit. Earlier this month, however, the U.S. Bankruptcy Court for the Southern District of New York ordered the ISP to share these subscriber details in full .

The court concluded that, with proper safeguards , the interests of copyright holders weigh stronger than the privacy interests of Frontier subscribers.

These Frontier subscribers are materially different from the Redditors, as their alleged piracy activities, monitored via their IP addresses, are at the heart of the liability lawsuit against the ISP.

The unredacted information of Frontier subscribers should help the movie and music companies link the IP addresses to Frontier subscribers, which is required to establish the direct infringement claim and hold Frontier liable.

As for the safeguards, the court stressed that the filmmakers can’t harass the subscribers. It further stressed that their personal information can only be used for the Frontier lawsuit, adding that the highly confidential information should be destroyed 30 days after the proceedings conclude.

Whether the filmmakers will get the evidence they’re looking for remainsto be seen. That said, the ‘anonymous speech’ of the piracy-commenting Redditors remains well protected.

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

In a lawsuit filed at a U.S. district court early January 2022, video game giant Activision targeted German company EngineOwning UG, plus a number of individuals associated with the cheat-making and distribution business.

With a flood of similar cases, some filed by competitor Bungie, providing a template, Activision’s complaint alleged, among other things, that the defendants trafficked in circumvention devices, in violation of the DMCA’s anti-circumvention provision.

Warring Parties Come Out Fighting

For more than a year, the EngineOwning defendants played to their strengths, characterizing Activision as a fifty billion dollar corporate bully targeting a handful of under-resourced, overseas defendants, with little means of fighting back. Yet fight back they did.

After retaining counsel in the United States, defendants including Valentin Rick, Alex Kleeman, Bennet Huch, Leon Frisch, Leon Schlender, Leonard Bugla, Marc-Alexander Richts, Pascal Claβen, and Remo Löffler, filed a motion to dismiss. Activision’s amended complaint had added new claims under the Computer Fraud and Abuse Act, and two further counts of racketeering (RICO). In general, however, none of the defendants relished the idea of visiting the U.S.

A month later, two of the defendants broke ranks and settled with Activision. Court records indicate that one settled for $2m and the other for around half that, but money wasn’t the only thing on Activision’s mind. As always, information can also prove helpful.

Defendants’ Odds of a Win Take a Nose Dive

Activision’s response to the motion to dismiss was aggressive, to put it mildly. Armed with what appeared to be freshly-obtained records of EngineOwning’s internal communications, the court heard how the defendants “routinely trade detailed instructions on how best to illegally launder” their shared profits, while engaging in “fraudulent tax-dodging schemes.”

Also laid bare were allegations of lavish overseas spending, including weeks spent in the presidential suite of a Zurich hotel, and alleged pondering over whether to pay a defense lawyer or spend 10K on cocaine instead.

With the lawsuit expanding to more than 25 defendants, communication between the EngineOwning defendants and their U.S. attorneys ground to a halt; they subsequently received permission from the court to withdraw from the case. In July 2023, four of the defendants indicated they would defend themselves moving forward, but that was the last the case heard of them.

Activision Moves For Default Judgment

In an order dated Wednesday granting Activision’s motion for default judgment, District Judge Michael W. Fitzgerald recalled the facts of the case as alleged by Activision. Defendant Valentin Rick is described as the founder of EO (EngineOwning) and the “mastermind behind the venture.”

Together with Rick, co-creator/co-founder Leon Frisch is responsible for developing, marketing, distributing, and selling the cheats. The bulk of the rest form EO’s core team, with the remainder described as having site moderation, tech support, and reselling responsibilities.

‘$14.5m in Damages Sounds Reasonable’

Satisfied that Activision has indeed suffered lost profits and goodwill at the hands of the defendants, Judge Fitzgerald notes that all Activision claims pass muster.

“The Court therefore concludes that Plaintiff sufficiently alleges claims for violation of the DMCA, violation of the CFAA, violation of RICO, and intentional interference with contract,” his order reads.

“Here, Plaintiff seeks a total of $14,465,600 in statutory damages. Ordinarily, such a large sum of money at stake would weigh in favor of Defendants. But the Court has ‘wide discretion in determining the amount of statutory damages to be awarded.’ Here, the Court deems the amount of requested damages reasonable, given that Plaintiff alleges that Defendants have acted willfully.”

Finding that the defendants’ failure to appear is unlikely to be due to “excusable neglect”, the Judge granted a permanent injunction, which includes the transfer of the engineowning.to domain to Activision.

For violations of the DMCA’s anti-circumvention provision (17 U.S.C. § 1203(c)(3)(A)), Activision sought the minimum statutory damages of $200 per violation multiplied by the estimated number of downloads of the cheating software in the United States (72,328).

Activision asked for the defendants to be held jointly and severally liable for damages totaling $14,465,600 plus $292,912 in attorneys fees; in the context, the Judge found the request reasonable.

In the meantime, it’s business as usual at EngineOwning, but for how long is unknown.

Having disengaged from the lawsuit last year, it seems unlikely that a new spirit of cooperation will suddenly become a feature of events moving forward.

Given the history, if there are rules to be followed, finding a way around them to gain an unfair advantage might be the most logical outcome.

Activision’s Motion for Entry of Default and the Court’s Default Judgment are available here and here (pdf)

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

Late 2019, Internet provider Cox Communications lost its legal battle against a group of major record labels, including Sony and Universal.

Following a two-week trial, a Virginia jury held Cox liable for its pirating subscribers. The ISP failed to disconnect repeat infringers and was ordered to pay $1 billion in damages.

Cox challenged the verdict through several routes and, earlier this year, booked a partial victory. The Fourth Circuit Court of Appeals confirmed that the ISP was contributorily liable for pirating subscribers, but reversed the vicarious copyright infringement finding. A new trial will determine the appropriate damages amount given these new conclusions.

Meanwhile, Cox has another angle to work at. This week, the company filed its opening brief, appealing the District Court’s denial of its relief from judgement (Rule 60[b]) motion, as well as the court’s conclusion that Cox’s defense wasn’t hampered by the music companies ‘concealment’ of evidence.

Rehashed Infringements?

The alleged misconduct refers to evidence that, according to Cox, was held back intentionally. Specifically, it relates to the piracy tracking system, operated by MarkMonitor, which formed the basis for the lawsuit through hundreds of thousands of copyright infringement notices.

MarkMonitor was hired by the music labels to track the pirated files being shared by Cox subscribers through BitTorrent. To confirm that these files were indeed pirated, they were downloaded and verified using Audible Magic’s fingerprinting technology.

Evidence pertaining to these allegedly pirated files was central to proving direct copyright infringement. During the Cox trial, the music companies presented a hard drive that contained the files, suggesting that those were the original songs that were pirated between 2012 and 2014.

However, based on information that surfaced in the music companies’ lawsuits against Internet providers Charter and Bright House, Cox later learned that this evidence was recreated at a later date, using hash values supplied by record labels.

Cox brought this up at the district court in 2022 and submitted a motion for relief from judgment, requesting a do-over. However, the court denied the request which led to the current appeal after a two-year pause.

Cox Appeals Over ‘Concealed’ Evidence

In its opening motion before the Fourth Circuit Court of Appeals, Cox stresses that the MarkMonitor evidence is of key importance. Any concerns should not be brushed away or hidden.

“Needless to say, the reliability of MarkMonitor’s system was all important, and Cox had every interest in attacking it. But Cox was deprived of the opportunity to scrutinize MarkMonitor’s system fully, something it would learn only after judgment was entered.”

“The truth came out when district courts in cases Plaintiffs brought against other ISPs forced Plaintiffs to turn over evidence Plaintiffs had deliberately concealed from Cox,” the ISP adds.

The district court previously acknowledged that some evidence was not disclosed by MarkMonitor at the time. However, the court believes that the ‘recreated’ evidence doesn’t change anything materially.

According to the court, it doesn’t matter whether the infringing files were verified before or after the fact. The verification process is based on file hashes, which don’t change over time.

Smoking ‘Hashes’ Gun?

Cox clearly believes that something is not right, however, and points to information showing that, while recreating evidence, MarkMonitor allegedly failed to find new music files for some of the provided hash values.

These unconfirmed hashes were discovered in the record labels’ lawsuit against Charter, which first uncovered the recreated evidence. This could have turned the case upside down, but the lawsuit was settled before trial .

“And lo and behold, the Charter evidence ultimately revealed that the 2016 project failed to confirm some of the original entries in the MarkMonitor database,” Cox notes.

“With this laid bare, Plaintiffs in Charter were forced to develop an entirely new approach to proving the system’s reliability and, thus, direct infringement; they hired a gaggle of new experts, then settled before trial could test this new method.”

Cox argues that the unseen evidence would have squarely undermined the reliability of the MarkMonitor notice system and the entire direct copyright infringement claim by extension.

And there’s more. In the record labels’ lawsuit against another ISP, Bright House, the music companies admitted that they failed to disclose key aspects of MarkMonitor’s source code.

It’s unclear what was held back but, since that lawsuit was settled at the eleventh hour , Cox believes that it could be quite important.

“Cox still does not know precisely what this code does. But public documents from Charter and Bright House indicate that the code governs, at least, the process by which MarkMonitor supposedly verified that files it found on peer-to-peer networks matched copyrighted works,” the ISP informs the court.

“The district court in Bright House was determined to get to the bottom of this. It summoned MarkMonitor’s corporate representative to appear in court and explicitly commanded that ‘Plaintiffs’ counsel SHALL NOT coach [him] in advance.’ Plaintiffs settled the day before that appearance.”

All in all, Cox believes that a new trial is warranted, so the evidence can be tested and scrutinized properly. Reopening the case makes more sense now, it argues, as the earlier appeal also reopened several key questions.

“This Court should therefore reverse the denial of Cox’s Rule 60 motions or, at a minimum, vacate the district court’s decision and direct the court to permit Cox its requested discovery, followed by appropriate motion practice. The fairness and integrity of any result in this case depends on it,” Cox concludes.

—

A copy of Cox’s ‘page proof’ opening brief, submitted at the Fourth Circuit Court of Appeals, is available here (pdf)

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

During the first week of April 2024, the CEO of top Italian football league Serie A was brimming with confidence.

Luigi De Siervo said that Piracy Shield, Italy’s brand new anti-piracy blocking system, was having such an effect that “No pirate can sleep peacefully.” Those who doubted its capabilities, he implied, should note what Serie A investigators were seeing on pirate Telegram channels after the system’s launch; ‘excitement’ apparently, but of what kind wasn’t made clear.

Piracy Shield Had an Exciting First Two Months

It’s certainly possible that when AGCOM finally admitted that weeks earlier Cloudflare had indeed been blocked in error , that may have caused a little excitement.

Maybe Piracy Shield code leaking online helped to get pulses racing too, or perhaps a third party site, publishing blocking data that the authorities should’ve published, but did not, could be somewhat responsible?

It’s not out of the question that the figures released in the first week of April played their part: 10,000 sites blocked in 60 days was a powerful statement, with the caveat that for technical reasons, that wasn’t entirely true .

Legal Action Ensues

If the excited pirates had known at the time that Serie A had filed a legal complaint against Cloudflare just days before these figures were released, that might’ve been cause for excitement. More likely it would’ve been confusing, however, because despite all talk of blocking successes outside court, inside court Cloudflare was being painted as an underminer of blocking and a partner of pirates.

A summary of the complaint, filed at the Court of Milan on April 3, 2024, arrives courtesy of La Repubblica ( paywall ) . Numerous allegations leveled against the U.S. company can be boiled down to one thing; the circumvention of Piracy Shield’s blocking measures via Cloudflare’s services, by consumers of streams and pirate suppliers alike.

According to Serie A, a pirate strategy is playing out online. While circumventing Piracy Shield’s best efforts, pirates of all kinds are spreading instructions online to train others. This includes information on how to remain anonymous, an important skill for those wishing to avoid AGCOM’s recently elevated piracy fines.

All of this is made possible thanks to Cloudflare, Serie A informed the Court.

‘Facilitating Pirate Sales and Providing Escape Routes’

In the words of La Repubblica, Serie A’s legal team accuse Cloudflare of “providing pirate match dealers” with the “dealing room and the exit routes” to evade capture.

Specifically, Cloudflare is under fire for providing its free VPN, otherwise known as WARP, which according to the league “moves the connection between pirates and their customers from a public network to a private one, in a secret circle where it is possible to operate outside the controls of the authorities.”

Last October, the head of AGCOM described the promotion of VPNs among pirates as “ positive news ” on the basis that their apparent intent would mean limited avenues of defense. In its complaint filed at the Court of Milan, Serie A bemoaned Cloudflare’s apparent resistance when it comes to handing over subscribers’ traffic logs.

And then there’s Cloudflare’s CDN service, which allegedly pipes streams as closely as possible to football fans for clear, uninterrupted viewing. Serie A insists that Cloudflare could easily reject pirate services as customers but apparently does not. Cloudflare’s DNS also gets a mention; unlike DNS services mostly operated by ISPs in Italy, Cloudflare’s has none of the site-blocking drawbacks of those compelled to work with AGCOM.

Serie A also complained about a flood of emails allegedly sent to AGCOM by Cloudflare customers protesting the blocking of the company’s IP addresses in February. Serie A’s attorneys say that since this campaign was orchestrated by Cloudflare, the company forfeited its neutrality as a service provider.

More Woes For Piracy Shield

Just one of the many serious flaws highlighted by experts, even before Piracy Shield had a name, was the danger of placing domains and IP addresses on a blacklist, with no mechanism in place to remove them. Concerns were even aired that the country might simply run out of accessible IP addresses.

Of course, those at the more enthusiastic end of the internet blocking market showed little concern about unblocking these internet assets at the time, but appear to be regretting it now. Wired.it reports that ISPs were assured that the number of fully qualified domain names (FQDN) blocked would not exceed 18,000, with IP addresses capped at 15,000.

With the football season almost over in Italy, rightsholders reportedly filed 1,332 tickets to the Piracy Shield system on May 24, for a total of 3,626 IP addresses and 15,791 FQDNs added to the ISPs’ blacklists. Since the law passed year has no provision for removing domains or IP addresses from the list, AGCOM will now prepare a report for the government requesting the power to do so.

The irony of a blocking system vacuuming up scarce IP addresses which, at least in part, is a shortage that Cloudflare’s system exists to mitigate, is unlikely to pass the company by.

The Court of Milan will ultimately have to decide whether to investigate the claims against Cloudflare. It seems highly improbable that it will also be required to investigate the football broadcasting monopoly in Italy, or the coincidental subscription price rises imposed since the launch of Piracy Shield.

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