Tag Archives: Federal Court

Pirate IPTV Blocking Case is No Slam Dunk Says Federal Court Judge

Post Syndicated from Andy original https://torrentfreak.com/pirate-iptv-blocking-case-is-no-slam-dunk-says-federal-court-judge-180502/

Last year, Hong Kong-based broadcaster Television Broadcasts Limited (TVB) applied for a blocking injunction against several unauthorized IPTV services.

Under the Copyright Act, the broadcaster asked the Federal Court to order ISPs including Telstra, Optus, Vocus, and TPG plus their subsidiaries to block access to seven Android-based services named as A1, BlueTV, EVPAD, FunTV, MoonBox, Unblock, and hTV5.

Unlike torrent site and streaming portal blocks granted earlier, it soon became clear that this case would present unique difficulties. TVB not only wants Internet locations (URLs, domains, IP addresses) related to the technical operation of the services blocked, but also hosting services akin to Google Play and Apple’s App Store that host the app.

Furthermore, it is far from clear whether China-focused live programming is eligible for copyright protection in Australia. If China had been a party to the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, it would receive protection. As it stands, it does not.

That causes complications in respect of Section 115a of the Copyright Act which allows rightsholders to apply for an injunction to have “overseas online locations” blocked if they facilitate access to copyrighted content. Furthermore, the section requires that the “primary purpose” of the location is to infringe copyrights recognized in Australia. If it does not, then there’s no blocking option available.

“If most of what is occurring here is a reproduction of broadcasts that are not protected by copyright, then the primary purpose is not to facilitate copyright infringement,” Justice Nicholas said in April.

This morning TVB returned to Federal Court for a scheduled hearing. The ISPs were a no-show again, leaving the broadcaster’s legal team to battle it out with Justice Nicholas alone. According to details published by ComputerWorld, he isn’t making it easy for the overseas company.

The Judge put it to TVB that “the purpose of this system [the set-top boxes] is to make available a broadcast that’s not copyright protected in this country, in this country,” he said.

“If 10 per cent of the content was infringing content, how could you say the primary purpose is infringing copyright?” the Judge asked.

But despite the Judge’s reservations, TVB believes that the pirate IPTV services clearly infringe its rights, since alongside live programming, the devices also reproduce TVB movies which do receive protection in Australia. However, the company is also getting creative in an effort to sidestep the ‘live TV’ conundrum.

TVB counsel Julian Cooke told the Court that live TVB broadcasts are first reproduced on foreign servers from where they are communicated to set-top devices in Australia with a delay of between one and four minutes. This is a common feature of all pirate IPTV services which potentially calls into question the nature of the ‘live’ broadcasts. The same servers also carry recorded content too, he argued.

“Because the way the system is set up, it compounds itself … in a number of instances, a particular domain name, which we refer to as the portal target domain name, allows a communication path not just to live TV, but it’s also the communication path to other applications such as replay and video on demand,” Cooke said, as quoted by ZDNet.

Cooke told the Court that he wasn’t sure whether the threshold for “primary purpose” was set at 50% of infringing content but noted that the majority of the content available through the boxes is infringing and the nature of the servers is even more pronounced.

“It compounds the submission that the primary purpose of the online location which is the facilitating server is to facilitate the infringement of copyright using that communication path,” he said.

As TF predicted in our earlier coverage, TVB today got creative by highlighting other content that it does receive copyright protection for in Australia. Previously in the UK, the Premier League successfully stated that it owns copyright in the logos presented in a live broadcast.

This morning, Cooke told the court that TVB “literary works” – scripts used on news shows and subtitling services – receive copyright protection in Australia so urged the Court to consider the full package.

“If one had concerns about live TV, one shouldn’t based on the analysis we’ve done … if one adds that live TV infringements together with video on demand together with replay, there could be no doubt that the primary purpose of the online locations is to infringe copyright,” he said.

Due to the apparent complexity of the case, Justice Nicholas reserved his decision, telling TVB that his ruling could take a couple of months after receiving his “close attention.”

Last week, Village Roadshow and several major Hollywood studios won a blocking injunction against a different pirate IPTV service. HD Subs Plus delivers around 600 live premium channels plus hundreds of movies on demand, but the service will now be blocked by ISPs across Australia.

Source: TF, for the latest info on copyright, file-sharing, torrent sites and more. We also have VPN reviews, discounts, offers and coupons.

Aussie Federal Court Orders ISPs to Block Pirate IPTV Service

Post Syndicated from Andy original https://torrentfreak.com/aussie-federal-court-orders-isps-to-block-pirate-iptv-service-180427/

After successful applying for ISP blocks against dozens of traditional torrent and streaming portals, Village Roadshow and a coalition of movie studios switched tack last year.

With the threat of pirate subscription IPTV services looming large, Roadshow, Disney, Universal, Warner Bros, Twentieth Century Fox, and Paramount targeted HDSubs+ (also known as PressPlayPlus), a fairly well-known service that provides hundreds of otherwise premium live channels, movies, and sports for a relatively small monthly fee.

The injunction, which was filed last October, targets Australia’s largest ISPs including Telstra, Optus, TPG, and Vocus, plus subsidiaries.

Unlike blocking injunctions targeting regular sites, the studios sought to have several elements of HD Subs+ infrastructure rendered inaccessible, so that its sales platform, EPG (electronic program guide), software (such as an Android and set-top box app), updates, and sundry other services would fail to operate in Australia.

After a six month wait, the Federal Court granted the application earlier today, compelling Australia’s ISPs to block “16 online locations” associated with the HD Subs+ service, rendering its TV services inaccessible Down Under.

“Each respondent must, within 15 business days of service of these orders, take reasonable steps to disable access to the target online locations,” said Justice Nicholas, as quoted by ZDNet.

A small selection of channels in the HDSubs+ package

The ISPs were given flexibility in how to implement the ban, with the Judge noting that DNS blocking, IP address blocking or rerouting, URL blocking, or “any alternative technical means for disabling access”, would be acceptable.

The rightsholders are required to pay a fee of AU$50 fee for each domain they want to block but Village Roadshow says it doesn’t mind doing so, since blocking is in “public interest”. Continuing a pattern established last year, none of the ISPs showed up to the judgment.

A similar IPTV blocking application was filed by Hong Kong-based broadcaster Television Broadcasts Limited (TVB) last year.

TVB wants ISPs including Telstra, Optus, Vocus, and TPG plus their subsidiaries to block access to seven Android-based services named as A1, BlueTV, EVPAD, FunTV, MoonBox, Unblock, and hTV5.

The application was previously heard alongside the HD Subs+ case but will now be handled separately following complications. In April it was revealed that TVB not only wants to block Internet locations related to the technical operation of the service, but also hosting sites that fulfill a role similar to that of Google Play or Apple’s App Store.

TVB wants to have these app marketplaces blocked by Australian ISPs, which would not only render the illicit apps inaccessible to the public but all of the non-infringing ones too.

Justice Nicholas will now have to decide whether the “primary purpose” of these marketplaces is to infringe or facilitate the infringement of TVB’s copyrights. However, there is also a question of whether China-focused live programming has copyright status in Australia. An additional hearing is scheduled for May 2 for these matters to be addressed.

Also on Friday, Foxtel filed yet another blocking application targeting “15 online locations” involving 27 domain names connected to traditional BitTorrent and streaming services.

According to ComputerWorld the injunction targets the same set of ISPs but this time around, Foxtel is trying to save on costs.

The company doesn’t want to have expert witnesses present in court, doesn’t want to stage live demos of websites, and would like to rely on videos and screenshots instead. Foxtel also says that if the ISPs agree, it won’t serve its evidence on them as it has done previously.

The company asked Justice Nicholas to deal with the injunction application “on paper” but he declined, setting a hearing for June 18 but accepting screenshots and videos as evidence.

Source: TF, for the latest info on copyright, file-sharing, torrent sites and more. We also have VPN reviews, discounts, offers and coupons.

TV Broadcaster Wants App Stores Blocked to Prevent Piracy

Post Syndicated from Andy original https://torrentfreak.com/tv-broadcaster-wants-app-stores-blocked-to-prevent-piracy-180416/

After first targeting torrent and regular streaming platforms with blocking injunctions, last year Village Roadshow and studios including Disney, Universal, Warner Bros, Twentieth Century Fox, and Paramount began looking at a new threat.

The action targeted HDSubs+, a reasonably popular IPTV service that provides hundreds of otherwise premium live channels, movies, and sports for a relatively small monthly fee. The application was filed during October 2017 and targeted Australia’s largest ISPs.

In parallel, Hong Kong-based broadcaster Television Broadcasts Limited (TVB) launched a similar action, demanding that the same ISPs (including Telstra, Optus, TPG, and Vocus, plus subsidiaries) block several ‘pirate’ IPTV services, named in court as A1, BlueTV, EVPAD, FunTV, MoonBox, Unblock, and hTV5.

Due to the similarity of the cases, both applications were heard in Federal Court in Sydney on Friday. Neither case is as straightforward as blocking a torrent or basic streaming portal, so both applicants are having to deal with additional complexities.

The TVB case is of particular interest. Up to a couple of dozen URLs maintain the services, which are used to provide the content, an EPG (electronic program guide), updates and sundry other features. While most of these appear to fit the description of an “online location” designed to assist copyright infringement, where the Android-based software for the IPTV services is hosted provides an interesting dilemma.

ComputerWorld reports that the apps – which offer live broadcasts, video-on-demand, and catch-up TV – are hosted on as-yet-unnamed sites which are functionally similar to Google Play or Apple’s App Store. They’re repositories of applications that also carry non-infringing apps, such as those for Netflix and YouTube.

Nevertheless, despite clear knowledge of this dual use, TVB wants to have these app marketplaces blocked by Australian ISPs, which would not only render the illicit apps inaccessible to the public but all of the non-infringing ones too. Part of its argument that this action would be reasonable appears to be that legal apps – such as Netflix’s for example – can also be freely accessed elsewhere.

It will be up to Justice Nicholas to decide whether the “primary purpose” of these marketplaces is to infringe or facilitate the infringement of TVB’s copyrights. However, TVB also appears to have another problem which is directly connected to the copyright status in Australia of its China-focused live programming.

Justice Nicholas questioned whether watching a stream in Australia of TVB’s live Chinese broadcasts would amount to copyright infringement because no copy of that content is being made.

“If most of what is occurring here is a reproduction of broadcasts that are not protected by copyright, then the primary purpose is not to facilitate copyright infringement,” Justice Nicholas said.

One of the problems appears to be that China is not a party to the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations. However, TVB is arguing that it should still receive protection because it airs pre-recorded content and the live broadcasts are also archived for re-transmission via catch-up services.

The question over whether unchoreographed live broadcasts receive protection has been raised in other regions but in most cases, a workaround has been found. The presence of broadcaster logos on screen (which receive copyright protection) is a factor and it’s been reported that broadcasters are able to record the ‘live’ action and transmit a copy just a couple of seconds later, thereby broadcasting an already-copyrighted work.

While TVB attempts to overcome its issues, Village Roadshow is facing some of its own in its efforts to take down HDSubs+.

It appears that at least partly in response to the Roadshow legal action, the service has undergone some modifications, including a change of brand to ‘Press Play Extra’. As reported by ZDNet, there have been structural changes too, which means that Roadshow can no longer “see under the hood”.

According to Justice Nicholas, there is no evidence that the latest version of the app infringes copyright but according to counsel for Village Roadshow, the new app is merely transitional and preparing for a possible future change.

“We submit the difference to be drawn is reactive to my clients serving on the operators a notice,” counsel for Roadshow argued, with an expert describing the new app as “almost like a placeholder.”

In short, Roadshow still wants all of the target domains in its original application blocked because the company believes there’s a good chance they’ll be reactivated in the future.

None of the ISPs involved in either case turned up to the hearings on Friday, which removes one layer of complexity in what appears thus far to be less than straightforward cases.

Source: TF, for the latest info on copyright, file-sharing, torrent sites and more. We also have VPN reviews, discounts, offers and coupons.

Controversial Roku ‘Piracy’ Ban Stays in Place in Mexico

Post Syndicated from Andy original https://torrentfreak.com/controversial-roku-piracy-ban-stays-in-place-in-mexico-180323/

‘Set-top’ devices such as Amazon’s Fire TV have sold in their millions in recent years as the stream-to-your-living room craze continues.

Many commercial devices are intended to receive official programming in a legal manner but most can be reprogrammed to do illegal things.

Of course, this behavior has nothing to do with the manufacturers of such devices but a case launched in Mexico last year really took things to the next level.

Following a complaint filed by cable TV provider Cablevision, the Superior Court of Justice of the City of Mexico handed down an order in June preventing the importation of Roku devices and prohibiting stores such as Amazon, Liverpool, El Palacio de Hierro, and Sears from putting them on sale.

The ban was handed down in an effort to tackle the amount of pirated content being viewed through the devices. News circulating at the time suggested that sellers on social media were providing more than 300 channels of unauthorized content for around US$8 per month.

Of course, the same illegal content consumption also takes place via regular PCs, tablet computers, and even mobile phones. No one would consider banning them but the court in Mexico clearly didn’t see the parallels when it dropped the hammer on Roku.

Later that month, however, a light appeared at the end of the tunnel. A federal judge decided to temporarily suspend the import and sales ban, which also instructed banks to stop processing payments from accounts linked to third-party pirate services.

“Roku is pleased with today’s court decision, which paves the way for sales of Roku devices to resume in Mexico,” Roku’s General Counsel Steve Kay informed TorrentFreak at the time.

“Piracy is a problem the industry at large is facing. We prohibit copyright infringement of any kind on the Roku platform. We actively work to prevent third-parties from using our platform to distribute copyright infringing content. Moreover, we have been actively working with other industry stakeholders on a wide range of anti-piracy initiatives.”

But just as the sales began to flow once more, the celebrations were almost immediately cut short.

On June 28, 2017, a Mexico City tribunal upheld the previous decision which banned importation and distribution of Roku devices, much to the disappointment of Roku’s General Counsel.

“Today’s decision is not the final word in this complex legal matter,” Steve Kay said.

Indeed, since that date, Roku and retailers including Amazon, Walmart, Best Buy, Office Depot, Radio Shack and Sears have been fighting to have Roku devices put back on sale again, with several courts ruling against the appeals. Then last week there was another blow when federal judges in Mexico City and Torreón decided to keep the original suspension in place.

Forbidding the “importation, commercialization and distribution” of Roku devices, the judges maintained that Roku devices could be used as an instrument for “dishonest commerce” in violation of Mexico’s copyright law.

The main argument in support of the ban is that Roku devices can still be used by people to gain access to infringing content. As a result, Cablevision believes that Roku should modify its devices to ensure that piracy isn’t possible in the future.

“It is necessary for Roku to make adjustments to its software, as other online content distribution platforms do, so that violations of copyrighted content do not take place,” a Cablevision spokesperson said.

The decision to ban Roku devices can still be appealed. The company informs TorrentFreak that further legal action is on the cards.

“There have been several recent court rulings related to the ban on the sale of Roku devices in Mexico. In fact, a Federal court in Mexico City has already determined that the ban was improper; however, the ban remains in place,” says Roku spokesperson Tricia Misfud.

“While Roku’s devices have always been and remain legal to use in Mexico, the current ban harms consumers, the retail sector and the industry. We will vigorously pursue further legal actions with the aim of restoring sales of Roku devices in Mexico.”

Despite a nationwide sales ban, people who already have a Roku in their possession remain unaffected by recent developments. Since the use of Roku devices in Mexico and elsewhere is completely legal, current users will still receive regular software updates.

In associated news, Mexico’s Telecommunications Law Institute (IDET) reports that the Mexican Institute of Industrial Property (IMPI) has been blocking URLs used to distribute unauthorized content and apps.

While that will undoubtedly prove unpopular with pirates, one hopes that its execution is somewhat more precise than the wholesale banning of the entire Roku platform.

Source: TF, for the latest info on copyright, file-sharing, torrent sites and more. We also have VPN reviews, discounts, offers and coupons.

Dolby Labs Sues Adobe For Copyright Infringement

Post Syndicated from Andy original https://torrentfreak.com/dolby-labs-sues-adobe-for-copyright-infringement-180314/

Adobe has some of the most recognized software products on the market today, including Photoshop which has become a household name.

While the company has been subjected to more than its fair share of piracy over the years, a new lawsuit accuses the software giant itself of infringement.

Dolby Laboratories is best known as a company specializing in noise reduction and audio encoding and compression technologies. Its reversed double ‘D’ logo is widely recognized after appearing on millions of home hi-fi systems and film end credits.

In a complaint filed this week at a federal court in California, Dolby Labs alleges that after supplying its products to Adobe for 15 years, the latter has failed to live up to its licensing obligations and is guilty of copyright infringement and breach of contract.

“Between 2002 and 2017, Adobe designed and sold its audio-video content creation and editing software with Dolby’s industry-leading audio processing technologies,” Dolby’s complaint reads.

“The basic terms of Adobe’s licenses for products containing Dolby technologies are clear; when Adobe granted its customer a license to any Adobe product that contained Dolby technology, Adobe was contractually obligated to report the sale to Dolby and pay the agreed-upon royalty.”

Dolby says that Adobe promised it wouldn’t sell its any of its products (such as Audition, After Effects, Encore, Lightroom, and Premiere Pro) outside the scope of its licenses with Dolby. Those licenses included clauses which grant Dolby the right to inspect Adobe’s records through a third-party audit, in order to verify the accuracy of Adobe’s sales reporting and associated payment of royalties.

Over the past several years, however, things didn’t go to plan. The lawsuit claims that when Dolby tried to audit Adobe’s books, Adobe refused to “engage in even basic auditing and information sharing practices,” a rather ironic situation given the demands that Adobe places on its own licensees.

Dolby’s assessment is that Adobe spent years withholding this information in an effort to hide the full scale of its non-compliance.

“The limited information that Dolby has reviewed to-date demonstrates that Adobe included Dolby technologies in numerous Adobe software products and collections of products, but refused to report each sale or pay the agreed-upon royalties owed to Dolby,” the lawsuit claims.

Due to the lack of information in Dolby’s possession, the company says it cannot determine the full scope of Adobe’s infringement. However, Dolby accuses Adobe of multiple breaches including bundling licensed products together but only reporting one sale, selling multiple products to one customer but only paying a single license, failing to pay licenses on product upgrades, and even selling products containing Dolby technology without paying a license at all.

Dolby entered into licensing agreements with Adobe in 2003, 2012 and 2013, with each agreement detailing payment of royalties by Adobe to Dolby for each product licensed to Adobe’s customers containing Dolby technology. In the early days when the relationship between the companies first began, Adobe sold either a physical product in “shrink-wrap” form or downloads from its website, a position which made reporting very easy.

In late 2011, however, Adobe began its transition to offering its Creative Cloud (SaaS model) under which customers purchase a subscription to access Adobe software, some of which contains Dolby technology. Depending on how much the customer pays, users can select up to thirty Adobe products. At this point, things appear to have become much more complex.

On January 15, 2015, Dolby tried to inspect Adobe’s books for the period 2012-2014 via a third-party auditing firm. But, according to Dolby, over the next three years “Adobe employed various tactics to frustrate Dolby’s right to audit Adobe’s inclusion of Dolby Technologies in Adobe’s products.”

Dolby points out that under Adobe’s own licensing conditions, businesses must allow Adobe’s auditors to allow the company to inspect their records on seven days’ notice to confirm they are not in breach of Adobe licensing terms. Any discovered shortfalls in licensing must then be paid for, at a rate higher than the original license. This, Dolby says, shows that Adobe is clearly aware of why and how auditing takes place.

“After more than three years of attempting to audit Adobe’s Sales of products containing Dolby Technologies, Dolby still has not received the information required to complete an audit for the full time period,” Dolby explains.

But during this period, Adobe didn’t stand still. According to Dolby, Adobe tried to obtain new licensing from Dolby at a lower price. Dolby stood its ground and insisted on an audit first but despite an official demand, Adobe didn’t provide the complete set of books and records requested.

Eventually, Dolby concluded that Adobe had “no intention to fully comply with its audit obligations” so called in its lawyers to deal with the matter.

“Adobe’s direct and induced infringements of Dolby Licensing’s copyrights in the Asserted Dolby Works are and have been knowing, deliberate, and willful. By its unauthorized copying, use, and distribution of the Asserted Dolby Works and the Adobe Infringing Products, Adobe has violated Dolby Licensing’s exclusive rights..,” the lawsuit reads.

Noting that Adobe has profited and gained a commercial advantage as a result of its alleged infringement, Dolby demands injunctive relief restraining the company from any further breaches in violation of US copyright law.

“Dolby now brings this action to protect its intellectual property, maintain fairness across its licensing partnerships, and to fund the next generations of technology that empower the creative community which Dolby serves,” the company concludes.

Dolby’s full complaint can be found here (pdf).

Source: TF, for the latest info on copyright, file-sharing, torrent sites and more. We also have VPN discounts, offers and coupons

TVAddons Suffers Big Setback as Court Completely Overturns Earlier Ruling

Post Syndicated from Andy original https://torrentfreak.com/tvaddons-suffers-big-setback-as-court-completely-overturns-earlier-ruling-180221/

On June 2, 2017 a group of Canadian telecoms giants including Bell Canada, Bell ExpressVu, Bell Media, Videotron, Groupe TVA, Rogers Communications and Rogers Media, filed a complaint in Federal Court against Montreal resident, Adam Lackman.

Better known as the man behind Kodi addon repository TVAddons, Lackman was painted as a serial infringer in the complaint. The telecoms companies said that, without gaining permission from rightsholders, Lackman communicated copyrighted TV shows including Game of Thrones, Prison Break, The Big Bang Theory, America’s Got Talent, Keeping Up With The Kardashians and dozens more, by developing, hosting, distributing and promoting infringing Kodi add-ons.

To limit the harm allegedly caused by TVAddons, the complaint demanded interim, interlocutory, and permanent injunctions restraining Lackman from developing, promoting or distributing any of the allegedly infringing add-ons or software. On top, the plaintiffs requested punitive and exemplary damages, plus costs.

On June 9, 2017 the Federal Court handed down a time-limited interim injunction against Lackman ex parte, without Lackman being able to mount a defense. Bailiffs took control of TVAddons’ domains but the most controversial move was the granting of an Anton Piller order, a civil search warrant which granted the plaintiffs no-notice permission to enter Lackman’s premises to secure evidence before it could be tampered with.

The order was executed June 12, 2017, with Lackman’s home subjected to a lengthy search during which the Canadian was reportedly refused his right to remain silent. Non-cooperation with an Anton Piller order can amount to a contempt of court, he was told.

With the situation seemingly spinning out of Lackman’s control, unexpected support came from the Honourable B. Richard Bell during a subsequent June 29, 2017 Federal Court hearing to consider the execution of the Anton Piller order.

The Judge said that Lackman had been subjected to a search “without any of the protections normally afforded to litigants in such circumstances” and took exception to the fact that the plaintiffs had ordered Lackman to spill the beans on other individuals in the Kodi addon community. He described this as a hunt for further evidence, not the task of preserving evidence it should’ve been.

Justice Bell concluded by ruling that while the prima facie case against Lackman may have appeared strong before the judge who heard the matter ex parte, the subsequent adversarial hearing undermined it, to the point that it no longer met the threshold.

As a result of these failings, Judge Bell vacated the Anton Piller order and dismissed the application for interlocutory injunction.

While this was an early victory for Lackman and TVAddons, the plaintiffs took the decision to an appeal which was heard November 29, 2017. Determined by a three-judge panel and signed by Justice Yves de Montigny, the decision was handed down Tuesday and it effectively turns the earlier ruling upside down.

The appeal had two matters to consider: whether Justice Bell made errors when he vacated the Anton Piller order, and whether he made errors when he dismissed the application for an interlocutory injunction. In short, the panel found that he did.

In a 27-page ruling, the first key issue concerns Justice Bell’s understanding of the nature of both Lackman and TVAddons.

The telecoms companies complained that the Judge got it wrong when he characterized Lackman as a software developer who came up with add-ons that permit users to access material “that is for the most part not infringing on the rights” of the telecoms companies.

The companies also challenged the Judge’s finding that the infringing add-ons offered by the site represented “just over 1%” of all the add-ons developed by Lackman.

“I agree with the [telecoms companies] that the Judge misapprehended the evidence and made palpable and overriding errors in his assessment of the strength of the appellants’ case,” Justice Yves de Montigny writes in the ruling.

“Nowhere did the appellants actually state that only a tiny proportion of the add-ons found on the respondent’s website are infringing add-ons.”

The confusion appears to have arisen from the fact that while TVAddons offered 1,500 add-ons in total, the heavily discussed ‘featured’ addon category on the site contained just 22 add-ons, 16 of which were considered to be infringing according to the original complaint. So, it was 16 add-ons out of 22 being discussed, not 16 add-ons out of a possible 1,500.

“[Justice Bell] therefore clearly misapprehended the evidence in this regard by concluding that just over 1% of the add-ons were purportedly infringing,” the appeals Judge adds.

After gaining traction with Justice Bell in the previous hearing, Lackman’s assertion that his add-ons were akin to a “mini Google” was fiercely contested by the telecoms companies. They also fell flat before the appeal hearing.

Justice de Montigny says that Justice Bell “had been swayed” when Lackman’s expert replicated the discovery of infringing content using Google but had failed to grasp the important differences between a general search engine and a dedicated Kodi add-on.

“While Google is an indiscriminate search engine that returns results based on relevance, as determined by an algorithm, infringing add-ons target predetermined infringing content in a manner that is user-friendly and reliable,” the Judge writes.

“The fact that a search result using an add-on can be replicated with Google is of little consequence. The content will always be found using Google or any other Internet search engine because they search the entire universe of all publicly available information. Using addons, however, takes one to the infringing content much more directly, effortlessly and safely.”

With this in mind, Justice de Montigny says there is a “strong prima facie case” that Lackman, by hosting and distributing infringing add-ons, made the telecoms companies’ content available to the public “at a time of their choosing”, thereby infringing paragraph 2.4(1.1) and section 27 of the Copyright Act.

On TVAddons itself, the Judge said that the platform is “clearly designed” to facilitate access to infringing material since it targets “those who want to circumvent the legal means of watching television programs and the related costs.”

Turning to Lackman, the Judge said he could not claim to have no knowledge of the infringing content delivered by the add-ons distributed on this site, since they were purposefully curated prior to distribution.

“The respondent cannot credibly assert that his participation is content neutral and that he was not negligent in failing to investigate, since at a minimum he selects and organizes the add-ons that find their way onto his website,” the Judge notes.

In a further setback, the Judge draws clear parallels with another case before the Canadian courts involving pre-loaded ‘pirate’ set-top boxes. Justice de Montigny says that TVAddons itself bears “many similarities” with those devices that are already subjected to an interlocutory injunction in Canada.

“The service offered by the respondent through the TVAddons website is no different from the service offered through the set-top boxes. The means through which access is provided to infringing content is different (one relied on hardware while the other relied on a website), but they both provided unauthorized access to copyrighted material without authorization of the copyright owners,” the Judge finds.

Continuing, the Judge makes some pointed remarks concerning the execution of the Anton Piller order. In short, he found little wrong with the way things went ahead and also contradicted some of the claims and beliefs circulated in the earlier hearing.

Citing the affidavit of an independent solicitor who monitored the order’s execution, the Judge said that the order was explained to Lackman in plain language and he was informed of his right to remain silent. He was also told that he could refuse to answer questions other than those specified in the order.

The Judge said that Lackman was allowed to have counsel present, “with whom he consulted throughout the execution of the order.” There was nothing, the Judge said, that amounted to the “interrogation” alluded to in the earlier hearing.

Justice de Montigny also criticized Justice Bell for failing to take into account that Lackman “attempted to conceal crucial evidence and lied to the independent supervising solicitor regarding the whereabouts of that evidence.”

Much was previously made of Lackman apparently being forced to hand over personal details of third-parties associated directly or indirectly with TVAddons. The Judge clarifies what happened in his ruling.

“A list of names was put to the respondent by the plaintiffs’ solicitors, but it was apparently done to expedite the questioning process. In any event, the respondent did not provide material information on the majority of the aliases put to him,” the Judge reveals.

But while not handing over evidence on third-parties will paint Lackman in a better light with concerned elements of the add-on community, the Judge was quick to bring up the Canadian’s history and criticized Justice Bell for not taking it into account when he vacated the Anton Piller order.

“[T]he respondent admitted that he was involved in piracy of satellite television signals when he was younger, and there is evidence that he was involved in the configuration and sale of ‘jailbroken’ Apple TV set-top boxes,” Justice de Montigny writes.

“When juxtaposed to the respondent’s attempt to conceal relevant evidence during the execution of the Anton Piller order, that contextual evidence adds credence to the appellants’ concern that the evidence could disappear without a comprehensive order.”

Dismissing Justice Bell’s findings as “fatally flawed”, Justice de Montigny allowed the appeal of the telecoms companies, set aside the order of June 29, 2017, declared the Anton Piller order and interim injunctions legal, and granted an interlocutory injunction to remain valid until the conclusion of the case in Federal Court. The telecoms companies were also awarded costs of CAD$50,000.

It’s worth noting that despite all the detail provided up to now, the case hasn’t yet got to the stage where the Court has tested any of the claims put forward by the telecoms companies. Everything reported to date is pre-trial and has been taken at face value.

TorrentFreak spoke with Adam Lackman but since he hadn’t yet had the opportunity to discuss the matter with his lawyers, he declined to comment further on the record. There is a statement on the TVAddons website which gives his position on the story so far.

Source: TF, for the latest info on copyright, file-sharing, torrent sites and more. We also have VPN discounts, offers and coupons

Australian Government Launches Pirate Site-Blocking Review

Post Syndicated from Andy original https://torrentfreak.com/australian-government-launches-pirate-site-blocking-review-180214/

Following intense pressure from entertainment industry groups, in 2014 Australia began developing legislation which would allow ‘pirate’ sites to be blocked at the ISP level.

In March 2015 the Copyright Amendment (Online Infringement) Bill 2015 (pdf) was introduced to parliament and after just three months of consideration, the Australian Senate passed the legislation into law.

Soon after, copyright holders began preparing their first cases and in December 2016, the Australian Federal Court ordered dozens of local Internet service providers to block The Pirate Bay, Torrentz, TorrentHound, IsoHunt, SolarMovie, plus many proxy and mirror services.

Since then, more processes have been launched establishing site-blocking as a permanent fixture on the Aussie anti-piracy agenda. But with yet more applications for injunction looming on the horizon, how is the mechanism performing and does anything else need to be done to improve or amend it?

Those are the questions now being asked by the responsible department of the Australian Government via a consultation titled Review of Copyright Online Infringement Amendment. The review should’ve been carried out 18 months after the law’s introduction in 2015 but the department says that it delayed the consultation to let more evidence emerge.

“The Department of Communications and the Arts is seeking views from stakeholders on the questions put forward in this paper. The Department welcomes single, consolidated submissions from organizations or parties, capturing all views on the Copyright Amendment (Online Infringement) Act 2015 (Online Infringement Amendment),” the consultation paper begins.

The three key questions for response are as follows:

– How effective and efficient is the mechanism introduced by the Online Infringement Amendment?

– Is the application process working well for parties and are injunctions operating well, once granted?

– Are any amendments required to improve the operation of the Online Infringement Amendment?

Given the tendency for copyright holders to continuously demand more bang for their buck, it will perhaps come as a surprise that at least for now there is a level of consensus that the system is working as planned.

“Case law and survey data suggests the Online Infringement Amendment has enabled copyright owners to work with [Internet service providers] to reduce large-scale online copyright infringement. So far, it appears that copyright owners and [ISPs] find the current arrangement acceptable, clear and effective,” the paper reads.

Thus far under the legislation there have been four applications for injunctions through the Federal Court, notably against leading torrent indexes and browser-based streaming sites, which were both granted.

The other two processes, which began separately but will be heard together, at least in part, involve the recent trend of set-top box based streaming.

Village Roadshow, Disney, Universal, Warner Bros, Twentieth Century Fox, and Paramount are currently presenting their case to the Federal Court. Along with Hong Kong-based broadcaster Television Broadcasts Limited (TVB), which has a separate application, the companies have been told to put together quality evidence for an April 2018 hearing.

With these applications already in the pipeline, yet more are on the horizon. The paper notes that more applications are expected to reach the Federal Court shortly, with the Department of Communications monitoring to assess whether current arrangements are refined as additional applications are filed.

Thus far, however, steady progress appears to have been made. The paper cites various precedents established as a result of the blocking process including the use of landing pages to inform Internet users why sites are blocked and who is paying.

“Either a copyright owner or [ISP] can establish a landing page. If an [ISP] wishes to avoid the cost of its own landing page, it can redirect customers to one that the copyright owner would provide. Another precedent allocates responsibility for compliance costs. Cases to date have required copyright owners to pay all or a significant proportion of compliance costs,” the paper notes.

But perhaps the issue of most importance is whether site-blocking as a whole has had any effect on the levels of copyright infringement in Australia.

The Government says that research carried out by Kantar shows that downloading “fell slightly from 2015 to 2017” with a 5-10% decrease in individuals consuming unlicensed content across movies, music and television. It’s worth noting, however, that Netflix didn’t arrive on Australian shores until May 2015, just a month before the new legislation was passed.

Research commissioned by the Department of Communications and published a year later in 2016 (pdf) found that improved availability of legal streaming alternatives was the main contributor to falling infringement rates. In a juicy twist, the report also revealed that Aussie pirates were the entertainment industries’ best customers.

“The Department is aware that other factors — such as the increasing availability of television, music and film streaming services and of subscription gaming services — may also contribute to falling levels of copyright infringement,” the paper notes.

Submissions to the consultation (pdf) are invited by 5.00 pm AEST on Friday 16 March 2018 via the government’s website.

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After Section 702 Reauthorization

Post Syndicated from Bruce Schneier original https://www.schneier.com/blog/archives/2018/01/after_section_7.html

For over a decade, civil libertarians have been fighting government mass surveillance of innocent Americans over the Internet. We’ve just lost an important battle. On January 18, President Trump signed the renewal of Section 702, domestic mass surveillance became effectively a permanent part of US law.

Section 702 was initially passed in 2008, as an amendment to the Foreign Intelligence Surveillance Act of 1978. As the title of that law says, it was billed as a way for the NSA to spy on non-Americans located outside the United States. It was supposed to be an efficiency and cost-saving measure: the NSA was already permitted to tap communications cables located outside the country, and it was already permitted to tap communications cables from one foreign country to another that passed through the United States. Section 702 allowed it to tap those cables from inside the United States, where it was easier. It also allowed the NSA to request surveillance data directly from Internet companies under a program called PRISM.

The problem is that this authority also gave the NSA the ability to collect foreign communications and data in a way that inherently and intentionally also swept up Americans’ communications as well, without a warrant. Other law enforcement agencies are allowed to ask the NSA to search those communications, give their contents to the FBI and other agencies and then lie about their origins in court.

In 1978, after Watergate had revealed the Nixon administration’s abuses of power, we erected a wall between intelligence and law enforcement that prevented precisely this kind of sharing of surveillance data under any authority less restrictive than the Fourth Amendment. Weakening that wall is incredibly dangerous, and the NSA should never have been given this authority in the first place.

Arguably, it never was. The NSA had been doing this type of surveillance illegally for years, something that was first made public in 2006. Section 702 was secretly used as a way to paper over that illegal collection, but nothing in the text of the later amendment gives the NSA this authority. We didn’t know that the NSA was using this law as the statutory basis for this surveillance until Edward Snowden showed us in 2013.

Civil libertarians have been battling this law in both Congress and the courts ever since it was proposed, and the NSA’s domestic surveillance activities even longer. What this most recent vote tells me is that we’ve lost that fight.

Section 702 was passed under George W. Bush in 2008, reauthorized under Barack Obama in 2012, and now reauthorized again under Trump. In all three cases, congressional support was bipartisan. It has survived multiple lawsuits by the Electronic Frontier Foundation, the ACLU, and others. It has survived the revelations by Snowden that it was being used far more extensively than Congress or the public believed, and numerous public reports of violations of the law. It has even survived Trump’s belief that he was being personally spied on by the intelligence community, as well as any congressional fears that Trump could abuse the authority in the coming years. And though this extension lasts only six years, it’s inconceivable to me that it will ever be repealed at this point.

So what do we do? If we can’t fight this particular statutory authority, where’s the new front on surveillance? There are, it turns out, reasonable modifications that target surveillance more generally, and not in terms of any particular statutory authority. We need to look at US surveillance law more generally.

First, we need to strengthen the minimization procedures to limit incidental collection. Since the Internet was developed, all the world’s communications travel around in a single global network. It’s impossible to collect only foreign communications, because they’re invariably mixed in with domestic communications. This is called “incidental” collection, but that’s a misleading name. It’s collected knowingly, and searched regularly. The intelligence community needs much stronger restrictions on which American communications channels it can access without a court order, and rules that require they delete the data if they inadvertently collect it. More importantly, “collection” is defined as the point the NSA takes a copy of the communications, and not later when they search their databases.

Second, we need to limit how other law enforcement agencies can use incidentally collected information. Today, those agencies can query a database of incidental collection on Americans. The NSA can legally pass information to those other agencies. This has to stop. Data collected by the NSA under its foreign surveillance authority should not be used as a vehicle for domestic surveillance.

The most recent reauthorization modified this lightly, forcing the FBI to obtain a court order when querying the 702 data for a criminal investigation. There are still exceptions and loopholes, though.

Third, we need to end what’s called “parallel construction.” Today, when a law enforcement agency uses evidence found in this NSA database to arrest someone, it doesn’t have to disclose that fact in court. It can reconstruct the evidence in some other manner once it knows about it, and then pretend it learned of it that way. This right to lie to the judge and the defense is corrosive to liberty, and it must end.

Pressure to reform the NSA will probably first come from Europe. Already, European Union courts have pointed to warrantless NSA surveillance as a reason to keep Europeans’ data out of US hands. Right now, there is a fragile agreement between the EU and the United States ­– called “Privacy Shield” — ­that requires Americans to maintain certain safeguards for international data flows. NSA surveillance goes against that, and it’s only a matter of time before EU courts start ruling this way. That’ll have significant effects on both government and corporate surveillance of Europeans and, by extension, the entire world.

Further pressure will come from the increased surveillance coming from the Internet of Things. When your home, car, and body are awash in sensors, privacy from both governments and corporations will become increasingly important. Sooner or later, society will reach a tipping point where it’s all too much. When that happens, we’re going to see significant pushback against surveillance of all kinds. That’s when we’ll get new laws that revise all government authorities in this area: a clean sweep for a new world, one with new norms and new fears.

It’s possible that a federal court will rule on Section 702. Although there have been many lawsuits challenging the legality of what the NSA is doing and the constitutionality of the 702 program, no court has ever ruled on those questions. The Bush and Obama administrations successfully argued that defendants don’t have legal standing to sue. That is, they have no right to sue because they don’t know they’re being targeted. If any of the lawsuits can get past that, things might change dramatically.

Meanwhile, much of this is the responsibility of the tech sector. This problem exists primarily because Internet companies collect and retain so much personal data and allow it to be sent across the network with minimal security. Since the government has abdicated its responsibility to protect our privacy and security, these companies need to step up: Minimize data collection. Don’t save data longer than absolutely necessary. Encrypt what has to be saved. Well-designed Internet services will safeguard users, regardless of government surveillance authority.

For the rest of us concerned about this, it’s important not to give up hope. Everything we do to keep the issue in the public eye ­– and not just when the authority comes up for reauthorization again in 2024 — hastens the day when we will reaffirm our rights to privacy in the digital age.

This essay previously appeared in the Washington Post.

Playboy Brands Boing Boing a “Clickbait” Site With No Fair Use Defense

Post Syndicated from Andy original https://torrentfreak.com/playboy-brands-boing-boing-a-clickbait-site-with-no-fair-use-defense-180126/

Late 2017, Boing Boing co-editor Xena Jardin posted an article in which he linked to an archive containing every Playboy centerfold image to date.

“Kind of amazing to see how our standards of hotness, and the art of commercial erotic photography, have changed over time,” Jardin noted.

While Boing Boing had nothing to do with the compilation, uploading, or storing of the Imgur-based archive, Playboy took exception to the popular blog linking to the album.

Noting that Jardin had referred to the archive uploader as a “wonderful person”, the adult publication responded with a lawsuit (pdf), claiming that Boing Boing had commercially exploited its copyrighted images.

Last week, with assistance from the Electronic Frontier Foundation, Boing Boing parent company Happy Mutants filed a motion to dismiss in which it defended its right to comment on and link to copyrighted content without that constituting infringement.

“This lawsuit is frankly mystifying. Playboy’s theory of liability seems to be that it is illegal to link to material posted by others on the web — an act performed daily by hundreds of millions of users of Facebook and Twitter, and by journalists like the ones in Playboy’s crosshairs here,” the company wrote.

EFF Senior Staff Attorney Daniel Nazer weighed in too, arguing that since Boing Boing’s reporting and commenting is protected by copyright’s fair use doctrine, the “deeply flawed” lawsuit should be dismissed.

Now, just a week later, Playboy has fired back. Opposing Happy Mutants’ request for the Court to dismiss the case, the company cites the now-famous Perfect 10 v. Amazon/Google case from 2007, which tried to prevent Google from facilitating access to infringing images.

Playboy highlights the court’s finding that Google could have been held contributorily liable – if it had knowledge that Perfect 10 images were available using its search engine, could have taken simple measures to prevent further damage, but failed to do so.

Turning to Boing Boing’s conduct, Playboy says that the company knew it was linking to infringing content, could have taken steps to prevent that, but failed to do so. It then launches an attack on the site itself, offering disparaging comments concerning its activities and business model.

“This is an important case. At issue is whether clickbait sites like Happy Mutants’ Boing Boing weblog — a site designed to attract viewers and encourage them to click on links in order to generate advertising revenue — can knowingly find, promote, and profit from infringing content with impunity,” Playboy writes.

“Clickbait sites like Boing Boing are not known for creating original content. Rather, their business model is based on ‘collecting’ interesting content created by others. As such, they effectively profit off the work of others without actually creating anything original themselves.”

Playboy notes that while sites like Boing Boing are within their rights to leverage works created by others, courts in the US and overseas have ruled that knowingly linking to infringing content is unacceptable.

Even given these conditions, Playboy argues, Happy Mutants and the EFF now want the Court to dismiss the case so that sites are free to “not only encourage, facilitate, and induce infringement, but to profit from those harmful activities.”

Claiming that Boing Boing’s only reason for linking to the infringing album was to “monetize the web traffic that over fifty years of Playboy photographs would generate”, Playboy insists that the site and parent company Happy Mutants was properly charged with copyright infringement.

Playboy also dismisses Boing Boing’s argument that a link to infringing content cannot result in liability due to the link having both infringing and substantial non-infringing uses.

First citing the Betamax case, which found that maker Sony could not be held liable for infringement because its video recorders had substantial non-infringing uses, Playboy counters with the Grokster decision, which held that a distributor of a product could be liable for infringement, if there was an intent to encourage or support infringement.

“In this case, Happy Mutants’ offending link — which does nothing more than support infringing content — is good for nothing but promoting infringement and there is no legitimate public interest in its unlicensed availability,” Playboy notes.

In its motion to dismiss, Happy Mutants also argued that unless Playboy could identify users who “in fact downloaded — rather than simply viewing — the material in question,” the case should be dismissed. However, Playboy rejects the argument, claiming it is based on an erroneous interpretation of the law.

Citing the Grokster decision once more, the adult publisher notes that the Supreme Court found that someone infringes contributorily when they intentionally induce or encourage direct infringement.

“The argument that contributory infringement only lies where the defendant’s actions result in further infringement ignores the ‘or’ and collapses ‘inducing’ and ‘encouraging’ into one thing when they are two distinct things,” Playboy writes.

As for Boing Boing’s four classic fair use arguments, the publisher describes these as “extremely weak” and proceeds to hit them one by one.

In respect of the purpose and character of the use, Playboy discounts Boing Boing’s position that the aim of its post was to show “how our standards of hotness, and the art of commercial erotic photography, have changed over time.” The publisher argues that is the exact same purpose of Playboy magazine, while highliting its publication Playboy: The Compete Centerfolds, 1953-2016.

Moving on to the second factor of fair use – the nature of the copyrighted work – Playboy notes that an entire album of artwork is involved, rather than just a single image.

On the third factor, concerning the amount and substantiality of the original work used, Playboy argues that in order to publish an opinion on how “standards of hotness” had developed over time, there was no need to link to all of the pictures in the archive.

“Had only representative images from each decade, or perhaps even each year, been taken, this would be a very different case — but Happy Mutants cannot dispute that it knew it was linking to an illegal library of ‘Every Playboy Playmate Centerfold Ever’ since that is what it titled its blog post,” Playboy notes.

Finally, when considering the effect of the use upon the potential market for or value of the copyrighted work, Playbody says its archive of images continues to be monetized and Boing Boing’s use of infringing images jeopardizes that.

“Given that people are generally not going to pay for what is freely available, it is disingenuous of Happy Mutants to claim that promoting the free availability of infringing archives of Playboy’s work for viewing and downloading is not going to have an adverse effect on the value or market of that work,” the publisher adds.

While it appears the parties agree on very little, there is agreement on one key aspect of the case – its wider importance.

On the one hand, Playboy insists that a finding in its favor will ensure that people can’t commercially exploit infringing content with impunity. On the other, Boing Boing believes that the health of the entire Internet is at stake.

“The world can’t afford a judgment against us in this case — it would end the web as we know it, threatening everyone who publishes online, from us five weirdos in our basements to multimillion-dollar, globe-spanning publishing empires like Playboy,” the company concludes.

Playboy’s opposition to Happy Mutants’ motion to dismiss can be found here (pdf)

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Our ‘Kodi Box’ Is Legal & Our Users Don’t Break the Law, TickBox Tells Hollywood

Post Syndicated from Andy original https://torrentfreak.com/our-kodi-box-is-legal-our-users-dont-break-the-law-tickbox-tells-hollywood-171229/

Georgia-based TickBox TV is a provider of set-top boxes that allow users to stream all kinds of popular content. Like other similar devices, Tickboxes use the popular Kodi media player alongside instructions how to find and use third-party addons.

Of course, these types of add-ons are considered a thorn in the side of the entertainment industries and as a result, Tickbox found itself on the receiving end of a lawsuit in the United States.

Filed in a California federal court in October, Universal, Columbia Pictures, Disney, 20th Century Fox, Paramount Pictures, Warner Bros, Amazon, and Netflix accused Tickbox of inducing and contributing to copyright infringement.

“TickBox sells ‘TickBox TV,’ a computer hardware device that TickBox urges its customers to use as a tool for the mass infringement of Plaintiffs’ copyrighted motion pictures and television shows,” the complaint reads.

“TickBox promotes the use of TickBox TV for overwhelmingly, if not exclusively, infringing purposes, and that is how its customers use TickBox TV. TickBox advertises TickBox TV as a substitute for authorized and legitimate distribution channels such as cable television or video-on-demand services like Amazon Prime and Netflix.”

The copyright holders reference a TickBox TV video which informs customers how to install ‘themes’, more commonly known as ‘builds’. These ‘builds’ are custom Kodi-setups which contain many popular add-ons that specialize in supplying pirate content. Is that illegal? TickBox TV believes not.

In a response filed yesterday, TickBox underlined its position that its device is not sold with any unauthorized or illegal content and complains that just because users may choose to download and install third-party programs through which they can search for and view unauthorized content, that’s not its fault. It goes on to attack the lawsuit on several fronts.

TickBox argues that plaintiffs’ claims, that TickBox can be held secondarily liable under the theory of contributory infringement or inducement liability as described in the famous Grokster and isoHunt cases, is unlikely to succeed. TickBox says the studios need to show four elements – distribution of a device or product, acts of infringement by users of Tickbox, an object of promoting its use to infringe copyright, and causation.

“Plaintiffs have failed to establish any of these four elements,” TickBox’s lawyers write.

Firstly, TickBox says that while its device can be programmed to infringe, it’s the third party software (the builds/themes containing addons) that do all the dirty work, and TickBox has nothing to do with them.

“The Motion spends a great deal of time describing these third-party ‘Themes’ and how they operate to search for and stream videos. But the ‘Themes’ on which Plaintiffs so heavily focus are not the [TickBox], and they have absolutely nothing to do with Defendant. Rather, they are third-party modifications of the open-source media player software [Kodi] which the Box utilizes,” the response reads.

TickBox says its device is merely a small computer, not unlike a smartphone or tablet. Indeed, when it comes to running the ‘pirate’ builds listed in the lawsuit, a device supplied by one of the plaintiffs can accomplish the same task.

“Plaintiffs have identified certain of these thirdparty ‘builds’ or ‘Themes’ which are available on the internet and which can be downloaded by users to view content streamed by third-party websites; however, this same software can be installed on many different types of devices, even one distributed by affiliates of Plaintiff Amazon Content Services, LLC,” the company adds.

Referencing the Grokster case, TickBox states that particular company was held liable for distributing a device (the Grokster software) “with the object of promoting its use to infringe copyright.” In the isoHunt case, it argues that the provision of torrent files satisfied the first element of inducement liability.

“In contrast, Defendant’s product – the Box – is not software through which users can access unauthorized content, as in Grokster, or even a necessary component of accessing unauthorized content, as in Fung [isoHunt],” TickBox writes.

“Defendant offers a computer, onto which users can voluntarily install legitimate or illegitimate software. The product about which Plaintiffs complain is third-party software which can be downloaded onto a myriad of devices, and which Defendant neither created nor supplies.”

From defending itself, TickBox switches track to highlight weaknesses in the studios’ case against users of its TickBox device. The company states that the plaintiffs have not presented any evidence that buyers of the TickBox streaming unit have actually accessed any copyrighted material.

Interestingly, however, the company also notes that even if people had streamed ‘pirate’ content, that might not constitute infringement.

First up, the company notes that there are no allegations that anyone – from TickBox itself to TickBox device owners – ever violated the plaintiffs’ exclusive right to perform its copyrighted works.

TickBox then further argues that copyright law does not impose liability for viewing streaming content, stating that an infringer is one who violates any of the exclusive rights of the copyright holder, in this case, the right to “perform the copyrighted work publicly.”

“Plaintiffs do not allege that Defendant, Defendant’s product, or the users of Defendant’s product ‘transmit or otherwise communicate a performance’ to the public; instead, Plaintiffs allege that users view streaming material on the Box.

“It is clear precedent [Perfect 10 v Google] in this Circuit that merely viewing copyrighted material online, without downloading, copying, or retransmitting such material, is not actionable.”

Taking this argument to its logical conclusion, TickBox insists that if its users aren’t infringing copyright, it’s impossible to argue that TickBox induced its customers to violate the plaintiffs’ rights. In that respect, plaintiffs’ complaints that TickBox failed to develop “filtering tools” to diminish its customers’ infringing activity are moot, since in TickBox’s eyes no infringement took place.

TickBox also argues that unlike in Grokster, where the defendant profited when users’ accessed infringing content, it does not. And, just to underline the earlier point, it claims that its place in the market is not to compete with entertainment companies, it’s actually to compete with devices such as Amazon’s Firestick – another similar Android-powered device.

Finally, TickBox notes that it has zero connection with any third-party sites that transmit copyrighted works in violation of the plaintiffs’ rights.

“Plaintiff has not alleged any element of contributory infringement vis-à-vis these unknown third-parties. Plaintiff has not alleged that Defendant has distributed any product to those third parties, that Defendant has committed any act which encourages those third parties’ infringement, or that any act of Defendant has, in fact, caused those third parties to infringe,” its response adds.

But even given the above defenses, TickBox says that it “voluntarily took steps” to remove links to the allegedly infringing Kodi builds from its device, following the plaintiffs’ lawsuit. It also claims to have modified its advertising and webpage “to attempt to appease Plaintiffs and resolve their complaint amicably.”

Given the above, TickBox says that the plaintiffs’ application for injunction is both vague and overly broad and would impose “imperssible hardship” on the company by effectively shutting it down while requiring it to “hack into and delete content” which TickBox users may have downloaded to their boxes.

TickBox raises some very interesting points around some obvious weaknesses so it will be intriguing to see how the Court handles its claims and what effect that has on the market for these devices in the US. In particular, the thorny issue of how they are advertised and promoted, which is nearly always the final stumbling block.

A copy of Tickbox’s response is available here (pdf), via Variety

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Movie & TV Companies Tackle Pirate IPTV in Australia Federal Court

Post Syndicated from Andy original https://torrentfreak.com/movie-tv-companies-tackle-pirate-iptv-in-australia-federal-court-171207/

As movie and TV show piracy has migrated from the desktop towards mobile and living room-based devices, copyright holders have found the need to adapt to a new enemy.

Dealing with streaming services is now high on the agenda, with third-party Kodi addons and various Android apps posing the biggest challenge. Alongside is the much less prevalent but rapidly growing pay IPTV market, in which thousands of premium channels are delivered to homes for a relatively small fee.

In Australia, copyright holders are treating these services in much the same way as torrent sites. They feel that if they can force ISPs to block them, the problem can be mitigated. Most recently, movie and TV show giants Village Roadshow, Disney, Universal, Warner Bros, Twentieth Century Fox, and Paramount filed an application targeting HDSubs+, a pirate IPTV operation servicing thousands of Australians.

Filed in October, the application for the injunction targets Australia’s largest ISPs including Telstra, Optus, TPG, and Vocus, plus their subsidiaries. The movie and TV show companies want them to quickly block HDSubs+, to prevent it from reaching its audience.

HDSubs+ IPTV package
However, blocking isn’t particularly straightforward. Due to the way IPTV services are setup a number of domains need to be blocked, including their sales platforms, EPG (electronic program guide), software (such as an Android app), updates, and sundry other services. In HDSubs+ case around ten domains need to be restricted but in court today, Village Roadshow revealed that probably won’t deal with the problem.

HDSubs+ appears to be undergoing some kind of transformation, possibly to mitigate efforts to block it in Australia. ComputerWorld reports that it is now directing subscribers to update to a new version that works in a more evasive manner.

If they agree, HDSubs+ customers are being migrated over to a service called PressPlayPlus. It works in the same way as the old system but no longer uses the domain names cited in Village Roadshow’s injunction application. This means that DNS blocks, the usual weapon of choice for local ISPs, will prove futile.

Village Roadshow says that with this in mind it may be forced to seek enhanced IP address blocking, unless it is granted a speedy hearing for its application. This, in turn, may result in the normally cooperative ISPs returning to court to argue their case.

“If that’s what you want to do, then you’ll have to amend the orders and let the parties know,” Judge John Nicholas said.

“It’s only the former [DNS blocking] that carriage service providers have agreed to in the past.”

As things stand, Village Roadshow will return to court on December 15 for a case management hearing but in the meantime, the Federal Court must deal with another IPTV-related blocking request.

In common with its Australian and US-based counterparts, Hong Kong-based broadcaster Television Broadcasts Limited (TVB) has launched a similar case asking local ISPs to block another IPTV service.

“Television Broadcasts Limited can confirm that we have commenced legal action in Australia to protect our copyright,” a TVB spokesperson told Computerworld.

TVB wants ISPs including Telstra, Optus, Vocus, and TPG plus their subsidiaries to block access to seven Android-based services named as A1, BlueTV, EVPAD, FunTV, MoonBox, Unblock, and hTV5.

Court documents list 21 URLs maintaining the services. They will all need to be blocked by DNS or other means, if the former proves futile. Online reports suggest that there are similarities among the IPTV products listed above. A demo for the FunTV IPTV service is shown below.

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