Tag Archives: Federal Court

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.

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Embedding a Tweet Can be Copyright Infringement, Court Rules

Post Syndicated from Ernesto original https://torrentfreak.com/embedding-a-tweet-can-be-copyright-infringement-court-rules-180216/

Nowadays it’s fairly common for blogs and news sites to embed content posted by third parties, ranging from YouTube videos to tweets.

Although these publications don’t host the content themselves, they can be held liable for copyright infringement, a New York federal court has ruled.

The case in question was filed by Justin Goldman whose photo of Tom Brady went viral after he posted it on Snapchat. After being reposted on Reddit, it also made its way onto Twitter from where various news organizations picked it up.

Several of these news sites reported on the photo by embedding tweets from others. However, since Goldman never gave permission to display his photo, he went on to sue the likes of Breitbart, Time, Vox and Yahoo, for copyright infringement.

In their defense, the news organizations argued that they did nothing wrong as no content was hosted on their servers. They referred to the so-called “server test” that was applied in several related cases in the past, which determined that liability rests on the party that hosts the infringing content.

In an order that was just issued, US District Court Judge Katherine Forrest disagrees. She rejects the “server test” argument and rules that the news organizations are liable.

“[W]hen defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result,” Judge Forrest writes.

Judge Forrest argues that the server test was established in the ‘Perfect 10 v. Amazon’ case, which dealt with the ‘distribution’ of content. This case is about ‘displaying’ an infringing work instead, an area where the jurisprudence is not as clear.

“The Court agrees with plaintiff. The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have “displayed” a work within the meaning of the Copyright Act.”

As a result, summary judgment was granted in favor of Goldman.

Rightsholders, including Getty Images which supported Goldman, are happy with the result. However, not everyone is pleased. The Electronic Frontier Foundation (EFF) says that if the current verdict stands it will put millions of regular Internet users at risk.

“Rejecting years of settled precedent, a federal court in New York has ruled that you could infringe copyright simply by embedding a tweet in a web page,” EFF comments.

“Even worse, the logic of the ruling applies to all in-line linking, not just embedding tweets. If adopted by other courts, this legally and technically misguided decision would threaten millions of ordinary Internet users with infringement liability.”

Given what’s at stake, it’s likely that the news organization will appeal this week’s order.

Interestingly, earlier this week a California district court dismissed Playboy’s copyright infringement complaint against Boing Boing, which embedded a YouTube video that contained infringing content.

A copy of Judge Forrest’s opinion can be found here (pdf).

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Tickbox Must Remove Pirate Streaming Addons From Sold Devices

Post Syndicated from Ernesto original https://torrentfreak.com/tickbox-remove-pirate-streaming-addons-180214/

Online streaming piracy is on the rise and many people now use dedicated media players to watch content through their regular TVs.

This is a thorn in the side of various movie companies, who have launched a broad range of initiatives to curb this trend.

One of these initiatives is the Alliance for Creativity and Entertainment (ACE), an anti-piracy partnership between Hollywood studios, Netflix, Amazon, and more than two dozen other companies.

Last year, ACE filed a lawsuit against the Georgia-based company Tickbox TV, which sells Kodi-powered set-top boxes that stream a variety of popular media.

ACE sees these devices as nothing more than pirate tools so the coalition asked the court for an injunction to prevent Tickbox from facilitating copyright infringement, demanding that it removes all pirate add-ons from previously sold devices.

Last month, a California federal court issued an initial injunction, ordering Tickbox to keep pirate addons out of its box and halt all piracy-inducing advertisements going forward. In addition, the court directed both parties to come up with a proper solution for devices that were already sold.

The movie companies wanted Tickbox to remove infringing addons from previously sold devices, but the device seller refused this initially, equating it to hacking.

This week, both parties were able to reach an ‘agreement’ on the issue. They drafted an updated preliminary injunction which replaces the previous order and will be in effect for the remainder of the lawsuit.

The new injunction prevents Tickbox from linking to any “build,” “theme,” “app,” or “addon” that can be indirectly used to transmit copyright-infringing material. Web browsers such as Internet Explorer, Google Chrome, Safari, and Firefox are specifically excluded.

In addition, Tickbox must also release a new software updater that will remove any infringing software from previously sold devices.

“TickBox shall issue an update to the TickBox launcher software to be automatically downloaded and installed onto any previously distributed TickBox TV device and to be launched when such device connects to the internet,” the injunction reads.

“Upon being launched, the update will delete the Subject [infringing] Software downloaded onto the device prior to the update, or otherwise cause the TickBox TV device to be unable to access any Subject Software downloaded onto or accessed via that device prior to the update.”

All tiles that link to copyright-infringing software from the box’s home screen also have to be stripped. Going forward, only tiles to the Google Play Store or to Kodi within the Google Play Store are allowed.

In addition, the agreement also allows ACE to report newly discovered infringing apps or addons to Tickbox, which the company will then have to remove within 24-hours, weekends excluded.

“This ruling sets an important precedent and reduces the threat from piracy devices to the legal market for creative content and a vibrant creative economy that supports millions of workers around the world,” ACE spokesperson Zoe Thorogood says, commenting on the news.

The new injunction is good news for the movie companies, but many Tickbox customers will not appreciate the forced changes. That said, the legal battle is far from over. The main question, whether Tickbox contributed to the alleged copyright infringements, has yet to be answered.

Ultimately, this case is likely to result in a landmark decision, determining what sellers of streaming boxes can and cannot do in the United States.

A copy of the new Tickbox injunction is available here (pdf).

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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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Pirate Site Blockades Enter Germany With Kinox.to as First Target

Post Syndicated from Ernesto original https://torrentfreak.com/pirate-site-blockades-enter-germany-with-kinox-to-as-first-target-180213/

Website blocking has become one of the leading anti-piracy mechanisms of recent years.

It is particularly prevalent across Europe, where thousands of sites are blocked by ISPs following court orders.

This week, these blocking efforts also reached Germany. Following a provisional injunction issued by the federal court in Munich, Internet provider Vodafone must block access to the popular streaming portal Kinox.to.

The injunction was issued on behalf of the German film production and distribution company Constantin Film. The company complained that Kinox facilitates copyright infringement and cited a recent order from the European Court of Justice in its defense, Golem reports.

While these types of blockades are common in Europe, they’re a new sight in Germany. Vodafone users who attempt to access the Kinox site will now be welcomed with a blocking notification instead.

“This portal is temporarily unavailable due to a copyright claim,” it reads, translated from German.

Blocked

The Kinox streaming site has been a thorn in the side of German authorities and copyright holders for a long time. Last year, one of the site’s admins was detained in Kosovo after a three-year manhunt, but despite these and other actions, the site remains online.

With the blocking efforts, Constantin Film hopes to make it harder for people to access the site, although this measure is also limited.

For now, it seems to be a simple DNS blockade, which means that people can bypass it relatively easily by switching to a free alternative DNS provider such as Google DNS or OpenDNS.

And there are other workarounds as well, as operators of Kinox point out in a message on their homepage.

“Vodafone User: Use the public Google DNS server: 8.8.8.8, that goes the .TO domain again! Otherwise, a VPN or the free Tor Browser can be used!” they write.

While the measure may not be foolproof, the current order is certainly significant. Previously, all German courts have denied similar blocking orders based on different arguments. This means that more blocking efforts may be on the horizon.

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RIAA: Cox Ruling Shows that Grande Can Be Liable for Piracy Too

Post Syndicated from Ernesto original https://torrentfreak.com/riaa-cox-ruling-shows-that-grande-can-be-liable-for-piracy-too-180207/

Regular Internet providers are being put under increasing pressure for not doing enough to curb copyright infringement.

Last year several major record labels, represented by the RIAA, filed a lawsuit in a Texas District Court, accusing ISP Grande Communications of turning a blind eye on its pirating subscribers.

“Despite their knowledge of repeat infringements, Defendants have permitted repeat infringers to use the Grande service to continue to infringe Plaintiffs’ copyrights without consequence,” the RIAA’s complaint read.

Grande disagreed with this assertion and filed a motion to dismiss the case. The ISP argued that it doesn’t encourage any of its customers to download copyrighted works, and that it has no control over the content subscribers access.

The Internet provider didn’t deny that it received millions of takedown notices through the piracy tracking company Rightscorp. However, it believed that these notices are flawed and not worthy of acting upon.

The case shows a lot of similarities with the legal battle between BMG and Cox Communications, in which the Fourth Circuit Court of Appeals issued an important verdict last week.

The appeals court overturned the $25 million piracy damages verdict against Cox due to an erroneous jury instruction but held that the ISP lost its safe harbor protection because it failed to implement a meaningful repeat infringer policy.

This week, the RIAA used the Fourth Circuit ruling as further evidence that Grande’s motion to dismiss should be denied.

The RIAA points out that both Cox and Grande used similar arguments in their defense, some of which were denied by the appeals court. The Fourth Circuit held, for example, that an ISP’s substantial non-infringing uses does not immunize it from liability for contributory copyright infringement.

In addition, the appeals court also clarified that if an ISP wilfully blinds itself to copyright infringements, that is sufficient to satisfy the knowledge requirement for contributory copyright infringement.

According to the RIAA’s filing at a Texas District Court this week, Grande has already admitted that it willingly ‘ignored’ takedown notices that were submitted on behalf of third-party copyright holders.

“Grande has already admitted that it received notices from Rightscorp and, to use Grande’s own phrase, did not ‘meaningfully investigate’ them,” the RIAA writes.

“Thus, even if this Court were to apply the Fourth Circuit’s ‘willful blindness’ standard, the level of knowledge that Grande has effectively admitted exceeds the level of knowledge that the Fourth Circuit held was ‘powerful evidence’ sufficient to establish liability for contributory infringement.”

As such, the motion to dismiss the case should be denied, the RIAA argues.

What’s not mentioned in the RIAA’s filing, however, is why Grande chose not to act upon these takedown notices. In its defense, the ISP previously explained that Rightcorp’s notices lacked specificity and were incapable of detecting actual infringements.

Grande argued that if they acted on these notices without additional proof, its subscribers could lose their Internet access even though they are using it for legal purposes. The ISP may, therefore, counter that it wasn’t willfully blind, as it saw no solid proof for the alleged infringements to begin with.

“To merely treat these allegations as true without investigation would be a disservice to Grande’s subscribers, who would run the risk of having their Internet service permanently terminated despite using Grande’s services for completely legitimate purposes,” Grande previously wrote.

This brings up a tricky issue. The Fourth Circuit made it clear last week that ISPs require a meaningful policy against repeat infringers in respond to takedown notices from copyright holders. But what are the requirements for a proper takedown notice? Do any and all notices count?

Grande clearly has no faith in the accuracy of Rightscorp’s technology but if their case goes in the same direction as Cox’s, that might not make much of a difference.

A copy of the RIAA’s summary of supplemental authority is available here (pdf).

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Playboy’s Copyright Lawsuit Threatens Online Expression, Boing Boing Argues

Post Syndicated from Ernesto original https://torrentfreak.com/playboys-copyright-lawsuit-threatens-online-expression-boing-boing-argues-180202/

Early 2016, Boing Boing co-editor Xeni Jardin published an article in which she linked to an archive of every Playboy centerfold image till then.

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

While the linked material undoubtedly appealed to many readers, Playboy itself took offense to the fact that infringing copies of their work were being shared in public. While Boing Boing didn’t upload or store the images in question, the publisher filed a complaint.

Playboy accused the blog’s parent company Happy Mutants of various counts of copyright infringement, claiming that it exploited their playmates’ images for commercial purposes.

Last month Boing Boing responded to the allegations with a motion to dismiss. The case should be thrown out, it argued, noting that linking to infringing material for the purpose of reporting and commentary, is not against the law.

This prompted Playboy to fire back, branding Boing Boing a “clickbait” site. Playboy informed the court that the popular blog profits off the work of others and has no fair use defense.

Before the California District Court decides on the matter, Boing Boing took the opportunity to reply to Playboy’s latest response. According to the defense, Playboy’s case is an attack on people’s freedom of expression.

“Playboy claims this is an important case. It is partially correct: if the Court allows this case to go forward, it will send a dangerous message to everyone engaged in ordinary online commentary,” Boing Boing’s reply reads.

Referencing a previous Supreme Court decision, the blog says that the Internet democratizes access to speech, with websites as a form of modern-day pamphlets.

Links to source materials posted by third parties give these “pamphlets” more weight as they allow readers to form their own opinion on the matter, Boing Boing argues. If the court upholds Playboy’s arguments, however, this will become a risky endeavor.

“Playboy, however, would apparently prefer a world in which the ‘pamphleteer’ must ask for permission before linking to primary sources, on pain of expensive litigation,” the defense writes.

“This case merely has to survive a motion to dismiss to launch a thousand more expensive lawsuits, chilling a broad variety of lawful expression and reporting that merely adopts the common practice of linking to the material that is the subject of the report.”

The defense says that there are several problems with Playboy’s arguments. Among other things, Boing Boing argues that did nothing to cause the unauthorized posting of Playboy’s work on Imgur and YouTube.

Another key argument is that linking to copyright-infringing material should be considered fair use, since it was for purposes of criticism, commentary, and news reporting.

“Settled precedent requires dismissal, both because Boing Boing did not induce or materially contribute to any copyright infringement and, in the alternative, because Boing Boing engaged in fair use,” the defense writes.

Instead of going after Boing Boing for contributory infringement, Playboy could actually try to uncover the people who shared the infringing material, they argue. There is nothing that prevents them from doing so.

After hearing the arguments from both sides it is now up to the court to decide how to proceed. Given what’s at stake, the eventual outcome in this case is bound to set a crucial precedent.

A copy of Boing Boing’s reply is available here (pdf).

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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.

New Anti-Piracy Coalition Calls For Canadian Website Blocking

Post Syndicated from Ernesto original https://torrentfreak.com/new-anti-piracy-coalition-calls-for-canadian-website-blocking-180130/

In recent years pirate sites have been blocked around the world, from Europe, through Asia, and even Down Under.

While many of the large corporations backing these blockades have their roots in North America, blocking efforts have been noticeably absent there. This should change, according to a new anti-piracy coalition that was launched in Canada this week.

Fairplay Canada, which consists of a broad range of organizations with ties to the entertainment industry, calls on the local telecom regulator CRTC to institute a national website blocking program.

The coalition’s members include Bell, Cineplex, Directors Guild of Canada, Maple Leaf Sports and Entertainment, Movie Theatre Association of Canada, and Rogers Media, which all share the goal of addressing the country’s rampant piracy problem.

The Canadian blocklist should be maintained by a yet to be established non-profit organization called “Independent Piracy Review Agency” (IPRA) and both IPRA and the CRTC would be overseen by the Federal Court of Appeal, the organizations propose.

“What we are proposing has been effective in countries like the UK, France, and Australia,” says Dr. Shan Chandrasekar, President and CEO of Asian Television Network International Limited (ATN), who is filing Fairplay Canada’s application.

“We are ardent supporters of this incredible coalition that has been formed to propose a new tool to empower the CRTC to address online piracy in Canada. We have great faith in Canadian regulators to modernize the tools available to help creators protect the content they make for Canadians’ enjoyment.”

The proposal is unique in the sense that it’s the first of its kind in North America and also has support from major players in the Telco industry. Since most large ISPs also have ties to media companies of their own, the latter is less surprising as it may seem at first glance.

Bell, for example, is not only the largest Internet provider in Canada but also owns the television broadcasting and production company Bell Media, which applauds the new plan.

“Bell is pleased to work with our partners across the industry and the CRTC on this important step in ensuring the long-term viability of the Canadian creative sector,” says Randy Lennox, President of Bell Media.

“Digital rights holders need up-to-date tools to combat piracy where it’s happening, on the Internet, and the process proposed by the coalition will provide just that, fairly, openly and effectively,” he adds.

Thus far the Government’s response to the plan has been rather reserved. When an early version of the plans leaked last month, Canadaland quoted a spokesperson who said that the Government is committed to opening doors instead of building walls.

Digital rights group OpenMedia goes a step further and brands the proposal a censorship plan which will violate net neutrality and limit people’s right to freedom of expression.

“Everybody agrees that content creators deserved to be paid for their work. But the proposal from this censorship coalition goes too far,” Executive Director Laura Tribe says.

“FairPlay Canada’s proposal is like using a machine gun to kill a mosquito. It will undoubtedly lead to legitimate content and speech being censored online violating our right to free expression and the principles of net neutrality, which the federal government has consistently pledged support for.”

While CTRC is reviewing FairPlay Canada’s plans, OpenMedia has launched a petition to stop the effort in its tracks, which has been signed by more than 45,000 Canadians to date.

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Tor Exit Node Operator Denies Piracy Allegations and Hits Back

Post Syndicated from Ernesto original https://torrentfreak.com/tor-exit-node-operator-denies-piracy-allegations-and-hits-back-180127/

The copyright holders of Dallas Buyers Club have sued thousands of BitTorrent users over the past few years.

The film company first obtains the identity of the Internet account holder believed to have pirated the movie, after which most cases are settled behind closed doors.

It doesn’t always go this easily though. A lawsuit in an Oregon federal court has been ongoing for nearly three years but in this case the defendant was running a Tor exit node, which complicates matters.

Tor is an anonymity tool and operating a relay or exit point basically means that the traffic of hundreds or thousands of users hit the Internet from your IP-address. When pirates use Tor, it will then appear as if the traffic comes from this connection.

The defendant in this lawsuit, John Huszar, has repeatedly denied that he personally downloaded a pirated copy of the film. However, he is now facing substantial damages because he failed to respond to a request for admissions, which stated that he distributed the film.

Not responding to such an admission means that the court can assume the statement is true.

“An admission, even an admission deemed admitted because of a failure to respond, is binding on the party at trial,” Dallas Buyers Club noted in a recent filing, demanding a summary judgment.

The unanswered admissions

Huszar was represented by various attorneys over the course of the lawsuit, but when the admissions were “deemed admitted” he was unrepresented and in poor health.

According to his lawyer, Ballas Buyers Club is using this to obtain a ruling in its favor. The film company argues that the Tor exit node operator admitted willful infringement, which could cost him up to $150,000 in damages.

The admissions present a serious problem. However, even if they’re taken as truth, they are not solid proof, according to the defense. For example, the portion of the film could have just been a trailer.

In addition, the defense responds with several damaging accusations of its own.

According to Huszar’s lawyer, it is unclear whether Dallas Buyers Club LLC has the proper copyrights to sue his client. In previous court cases in Australia and Texas, this ownership was put in doubt.

“In the case at bar, because of facts established in other courts, there is a genuine issue as to whether or not DBC owns the right to sue for copyright infringement,” the defense writes.

As licensing constructions can be quite complex, this isn’t unthinkable. Just last week another U.S. District Court judge told the self-proclaimed owners of the movie Fathers & Daughters that they didn’t have the proper rights to take an alleged pirate to trial.

Another issue highlighted by the defense is the reliability of witnesses Daniel Macek and Ben Perino. Both men are connected to the BitTorrent tracking outfit MaverickEye, and are not without controversy, as reported previously.

“[B]oth parties have previously been found to lack the qualifications, experience, education, and licenses to offer such forensic or expert testimony,” the defense writes, citing a recent case.

Finally, the defense also highlights that given the fact that Huszar operated a Tor exit-node, anyone could have downloaded the film.

The defense, therefore, asks the court to deny Dallas Buyers Club’s motion for summary judgment, or at least allow the defendant to conduct additional discovery to get to the bottom of the copyright ownership issue.

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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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Linking Is Not Copyright Infringement, Boing Boing Tells Court

Post Syndicated from Ernesto original https://torrentfreak.com/linking-is-not-copyright-infringement-boing-boing-tells-court-180119/

Late last year Playboy sued the popular blog Boing Boing for publishing an article that linked to an archive of every playmate centerfold till then.

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

Playboy, instead, was amazed that infringing copies of their work were being shared in public. While Boing Boing didn’t upload or store the images in question, the publisher took the case to court.

The blog’s parent company Happy Mutants was accused of various counts of copyright infringement, with Playboy claiming that it exploited their playmates’ images for commercial purposes.

Boing Boing sees things differently. With help from the Electronic Frontier Foundation, it has filed a motion to dismiss the case, arguing that hyperlinking is not copyright 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,” they write.

The article in question

The defense points out that Playboy’s complaint fails to state a claim for direct or contributory copyright infringement. In addition, it argues that this type of reporting should be seen as fair use.

“Boing Boing’s reporting and commenting on the Playboy photos is protected by copyright’s fair use doctrine,” EFF Senior Staff Attorney Daniel Nazer says, commenting on the case.

“We’re asking the court to dismiss this deeply flawed lawsuit. Journalists, scientists, researchers, and everyday people on the web have the right to link to material, even copyrighted material, without having to worry about getting sued.”

The lawsuit shares a lot of similarities with the case between Dutch blog GeenStijl and local Playboy publisher Sanoma. That high-profile case went all the way to the European Court of Justice.

The highest European court eventually decided that hyperlinks to infringing works are to be considered a ‘communication to the public,’ and that a commercial publication can indeed be held liable for copyright infringement.

Boing Boing hopes that US Courts will see things differently, or it might be “the end of the web as we know it.”

“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,” Boing Boing writes.

A copy of Boing Boing’s memorandum in support of the motion to dismiss is available here (pdf). The original Playboy complaint can be found here (pdf).

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MPAA Wins $19.8 Million From Pirate Site Pubfilm

Post Syndicated from Ernesto original https://torrentfreak.com/mpaa-wins-19-8-million-from-pirate-site-pubfilm-180119/

In recent years the MPAA has pursued legal action against several pirate sites and the streaming service Pubfilm is one of their latest targets.

Hollywood’s industry group initially kept the lawsuit secret. This was done to prevent Pubfilm’s operator from moving to a new domain preemptively. While this strategy worked, Pubfilm didn’t throw in the towel.

Soon after the pubfilm.com domain name was suspended, the site moved to pubfilm.ac. And that wasn’t all. Pubfilm also started to actively advertise its new domain through Google Adsense to regain its lost traffic.

Today, close to a year has passed and Pubfilm is still around. The site moved from domain to domain and currently resides at Pubfilm.is and a few other domains that are advertised on the site.

All this time the company failed to responded in court, so the case saw little movement. This week, however, the MPAA made its demands clear and soon after the court issued a default against the site and its unknown operators.

“Defendants are Internet pirates who own, operate, and promote a ring of interconnected websites under the name “PubFilm” and variants thereof whose purpose is to profit from the infringement of copyrighted works,” the group wrote in its request.

Because of this continued infringement, the MPAA demanded the maximum amount of statutory copyright infringement damages. With 132 titles listed in the complaint, this totals nearly $20 million.

“Given the egregious circumstances of this case, Plaintiffs should be awarded the full amount of statutory damages of $150,000 for each of the 132 Works identified in the Complaint, for a total of $19,800,000,” the MPAA writes in its memorandum.

In addition, the Hollywood studios requested a permanent injunction that will require domain registries to put associated domain names on hold and sign them over to the MPAA.

Both requests were granted by the court on Thursday.

Pubfilm domain hopping

Previously, several domain names were aready seized through a preliminary injunction that resulted in Pubfilm moving from domain to domain in recent months. While these seizures can be effective, not all domain registries will comply with a US court order.

One of Pubfilm’s main domain names at the moment uses the Icelandic .is cTLD. In the past, Iceland’s domain registry ISNIC told TorrentFreak that it would only take action when an Icelandic Court tells it to.

This means that the MPAA’s win might be one without teeth.

Getting millions of dollars from an anonymous site operator, presumably outside the United States, is not easy. And since the site still has several hard-to-shutdown domains, taking it offline isn’t that straightforward either.

The streaming site operators didn’t appear to be impressed by the legal battle either. For the time being, they seem more concerned with fighting fake versions, judging from their most recent Facebook update.

Pubfilm’s latest Facebook post

A copy of the MPAA’s Memorandum in support of the default judgment and permanent injunction is available here (pdf). A copy of court’s order can be found here (pdf).

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Kim Dotcom Loses Megaupload Domain Names, Gets “Destroyed” Gaming Chair Back

Post Syndicated from Ernesto original https://torrentfreak.com/kim-dotcom-loses-megaupload-domain-names-gets-destroyed-gaming-chair-back-180117/

Following the 2012 raid on Megaupload and Kim Dotcom, U.S. and New Zealand authorities seized millions of dollars in cash and other property, located around the world.

Claiming the assets were obtained through copyright and money laundering crimes, the U.S. government launched separate civil cases in which it asked the court to forfeit bank accounts, servers, domain names, and other seized possessions of the Megaupload defendants.

One of these cases was lost after the U.S. branded Dotcom and his colleagues as “fugitives”.The defense team appealed the ruling, but lost again, and a subsequent petition at the Supreme Court was denied.

Following this lost battle, the U.S. also moved to conclude a separate civil forfeiture case, which was still pending at a federal court in Virginia.

The assets listed in this case are several bank accounts, including several at PayPal, as well as 60 servers Megaupload bought at Leaseweb. What has the most symbolic value, however, are the domain names that were seized, including Megaupload.com, Megaporn.com and Megavideo.com.

Mega’s domains

This week a U.S. federal court decided that all claims of Kim Dotcom, his former colleague Mathias Ortman, and several Megaupload-related companies should be stricken. A default was entered against them on Tuesday.

The same fugitive disentitlement argument was used in this case. This essentially means that someone who’s considered to be a fugitive from justice is not allowed to get relief from the judicial system he or she evades.

“Claimants Kim Dotcom and Mathias Ortmann have deliberately avoided prosecution by declining to enter or reenter the United States,” Judge Liam O’Grady writes in his order to strike the claims.

“Because Claimant Kim Dotcom, who is himself a fugitive under Section 2466, is the Corporate Claimants’ controlling shareholder and, in particular, because he signed the claims on behalf of the corporations, a presumption of disentitlement applies to the corporations as well.”

As a result, the domain names which once served 50 million users per day, are now lost to the US Government. The court records list 18 domains in total, which were registered through Godaddy, DotRegistrar, and Fabulous.

Given the legal history, the domains and other assets are likely lost for good. However, Megaupload defense lawyer Ira Rothken is not giving up yet.

“We are still evaluating the legal options in a climate where Kim Dotcom is being labeled a fugitive in a US criminal copyright case even though he has never been to the US, is merely asserting his US-NZ extradition treaty rights, and the NZ High Court has ruled that he and his co-defendants did not commit criminal copyright infringement under NZ law,” Rothken tells TorrentFreak.

There might be a possibility that assets located outside the US could be saved. Foreign courts are more open to defense arguments, it seems, as a Hong Kong court previously ordered the US to return several assets belonging to Kim Dotcom.

The Hong Kong case also brought some good news this week. At least, something that was supposed to be positive. On Twitter, Dotcom writes that two containers with seized assets were returned, but in a “rotten and destroyed” state.

“A shipment of 2 large containers just arrived in New Zealand. This is how all my stuff looks now. Rotten & destroyed. Photo: My favorite gaming chair,” Dotcom wrote.

According to Dotcom, the US Government asked him to pay for ‘climate controlled’ storage for more than half a decade to protect the seized goods. However, judging from the look of the chair and the state of some other belongings, something clearly went wrong.

Rotten & destroyed

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Tickbox Clearly Promotes and Facilitates Piracy, Hollywood Tells Court

Post Syndicated from Ernesto original https://torrentfreak.com/tickbox-clearly-promotes-and-facilitates-piracy-hollywood-tells-court-180115/

The rising popularity of piracy streaming boxes has turned into Hollywood’s main piracy concern in recent months.

While the hardware and media players such as Kodi are not a problem, sellers who ship devices with unauthorized add-ons turn them into fully-fledged piracy machines.

According to the Alliance for Creativity and Entertainment (ACE), an anti-piracy partnership comprised of Hollywood studios, Netflix, Amazon, and more than two dozen other companies, Tickbox TV is one of these bad actors.

Last year, ACE filed a lawsuit against the Georgia-based company, which sells set-top boxes that allow users to stream a variety of popular media. The Tickbox devices use the Kodi media player and comes with instructions on how to add various add-ons.

According to ACE, these devices are nothing more than pirate tools, allowing buyers to stream copyright-infringing content. The coalition, therefore, asked the court for a permanent injunction to remove all infringing add-ons from previously sold devices.

Tickbox maintained its innocence, however. The company informed the court that its box is a simple computer like any other, which is perfectly legal.

According to Tickbox, they don’t have anything to do with the infringing “Themes” that users can select on their device. These themes feature several addons that link to infringing content.

This explanation doesn’t sit well with the movie companies, which submitted a reply to the court late last week. They claim that Tickbox is deliberately downplaying their own role, as they are the ones who decided to make these themes accessible through their boxes.

“TickBox falsely claims that the presence of these ‘Themes’ on TickBox devices ‘have nothing to do with Defendant’,” ACE’s reply reads.

“To the contrary, TickBox intentionally chooses which ‘Themes’ to include on its ‘Select your Theme’ menu for the TickBox TV interface, and TickBox pushes out automatic software updates to its customers’ TickBox TV devices.”

The movie companies also dispute Tickbox’s argument that they don’t induce copyright infringement because their device is “simply a small computer” that has many legitimate uses.

This liability question isn’t about whether Tickbox stores any infringing material or runs pirate streams through their servers, they counter. It’s about the intended use and how Tickbox promotes its product.

“TickBox’s liability arises based on its advertising and promoting TickBox TV as a tool for infringing use, and from designing and including software on the device that encourages access to infringing streams from third-party sources.”

ACE notes that, unlike Tickbox claims, the current case shows a lot of parallels with previous landmark cases including Grokster and Fung [isoHunt].

The isoHunt website didn’t store and infringing material, nor was it crucial in the torrent piracy ecosystem. However, it was liable because the operator willingly facilitated copyright infringing activity. This is what Tickbox does too, according to ACE.

“TickBox ‘competes’ with legitimate services by telling customers that they can access the same content available from legitimate distributors ‘ABSOLUTELY FREE’ and that customers therefore ‘will find that you no longer need those subscriptions’.”

The movie companies therefore ask the court to issue the requested injunction. They want all existing devices to be impounded and Tickbox should, through an update, remove infringing addons from already sold devices.

Tickbox argued that this would require them to “hack into” their customers’ boxes and delete content. ACE, however, says that this is a simple update and nothing different from what the company has done in the past.

“The proposed injunction would merely obligate TickBox to make good on its halfhearted and ineffective efforts to do what it claims to have already done: remove Kodi builds with illicit addons from TickBox TV,” ACE writes.

“As demonstrated by TickBox’s own, repeated software updates since the filing of Plaintiffs’ Complaint, TickBox has the means and ability to easily and remotely change what options users see and can access on their TickBox TVs.”

After having heard the arguments from both sides, it’s now up to the California federal court to decide who’s right.

The current case should set an important precedent. In addition to Tickbox, ACE also filed a similar lawsuit against Dragon Box. Clearly, the coalition is determined to get these alleged pirate devices off the market.

A copy of ACE’s reply is available here (pdf).

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Epic Games Sues Cheater Over ‘Stealing’ Fortnite V-Bucks

Post Syndicated from Ernesto original https://torrentfreak.com/epic-games-sues-cheater-over-stealing-fortnite-v-bucks-180112/

Last fall, Epic Games released Fortnite’s free-to-play “Battle Royale” game mode for the PC and other platforms, generating massive interest among gamers.

This also included thousands of cheaters, many of whom were subsequently banned. Epic Games then went a step further by taking several cheaters to court for copyright infringement.

While the initial targets were people who coded, used or promoted cheats to gain a clear competitive advantage, this week Epic sued a different type of cheater. In a complaint filed at a California Federal court, the game publisher accuses a New Zealander of creating an exploit that allows users to get free V-bucks.

V-bucks are the game’s currency and can be bought through an online store, starting at $9.99. The virtual coins allow players to purchase skins for their characteras well as other game tools.

According to Epic, people who create and use these kinds of free-money exploits are stealing from the game publisher.

“Players who search for and promote exploits ruin the game experience for others and undermine the integrity of Fortnite. Players who use exploits to avoid paying for items in Fortnite are stealing from Epic,” the complaint reads.

V-bucks

The alleged perpetrator is identified as Yash Gosai, who’s a resident of Auckland, New Zealand. Epic believes that Gosai developed the exploit which was then promoted through YouTube.

“On information and belief, Gosai developed an exploit for Fortnite’s Battle Royale mode that enables players to obtain V-bucks without paying for them. Gosai created and posted a video on YouTube to advertise, promote and demonstrate the exploit,” the complaint reads.

While the game company managed to get the video taken down, they’re not done with the New Zealander. They accuse Gosai of copyright infringement, breach of contract, as well as conversion.

“Defendant’s videos demonstrating the exploit infringe Epic’s copyrights in Fortnite by copying, reproducing, preparing derivative works from, and/or displaying Fortnite
publicly without Epic’s permission, the company writes.

Epic asks the court for damages and wants the defendant to destroy all Fortnite copies and any related works.

As mentioned before, this is not the first lawsuit Epic has filed against a cheater. Thus far, it has reached at least three settlements behind closed doors. Minnesota resident Charles Vraspir signed an agreement early December. Philip Josefsson from Sweden and Artem Yakovenko from Russia followed soon after.

A copy of the complaint against Gosai is available here (pdf).

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Netflix, Amazon and Hollywood Sue Kodi-Powered Dragon Box Over Piracy

Post Syndicated from Ernesto original https://torrentfreak.com/netflix-amazon-and-hollywood-sue-kodi-powered-dragon-box-over-piracy-180111/

More and more people are starting to use Kodi-powered set-top boxes to stream video content to their TVs.

While Kodi itself is a neutral platform, sellers who ship devices with unauthorized add-ons give it a bad reputation.

In recent months these boxes have become the prime target for copyright enforcers, including the Alliance for Creativity and Entertainment (ACE), an anti-piracy partnership between Hollywood studios, Netflix, Amazon, and more than two dozen other companies.

After suing Tickbox last year a group of key ACE members have now filed a similar lawsuit against Dragon Media Inc, which sells the popular Dragon Box. The complaint, filed at a California federal court, also lists the company’s owner Paul Christoforo and reseller Jeff Williams among the defendants.

According to ACE, these type of devices are nothing more than pirate tools, allowing buyers to stream copyright infringing content. That also applies to Dragon Box, they inform the court.

“Defendants market and sell ‘Dragon Box,’ a computer hardware device that Defendants urge their customers to use as a tool for the mass infringement of the copyrighted motion pictures and television shows,” the complaint, picked up by HWR, reads.

The movie companies note that the defendants distribute and promote the Dragon Box as a pirate tool, using phrases such as “Watch your Favourites Anytime For FREE” and “stop paying for Netflix and Hulu.”

Dragon Box

When users follow the instructions Dragon provides they get free access to copyrighted movies, TV-shows and live content, ACE alleges. The complaint further points out that the device uses the open source Kodi player paired with pirate addons.

“The Dragon Media application provides Defendants’ customers with a customized configuration of the Kodi media player and a curated selection of the most popular addons for accessing infringing content,” the movie companies write.

“These addons are designed and maintained for the overarching purpose of scouring the Internet for illegal sources of copyrighted content and returning links to that content. When Dragon Box customers click those links, those customers receive unauthorized streams of popular motion pictures and television shows.”

One of the addons that are included with the download and installation of the Dragon software is Covenant.

This addon can be accessed through a preinstalled shortcut which is linked under the “Videos” menu. Users are then able to browse through a large library of curated content, including a separate category of movies that are still in theaters.

In theaters

According to a statement from Dragon owner Christoforo, business is going well. The company claims to have “over 250,000 customers in 50 states and 4 countries and growing” as well as “374 sellers” across the world.

With this lawsuit, however, the company’s future has suddenly become uncertain.

The movie companies ask the California District for an injunction to shut down the infringing service and impound all Dragon Box devices. In addition, they’re requesting statutory damages which can go up to several million dollars.

At the time of writing the Dragon Box website is still in on air and the company has yet to comment on the allegations.

A copy of the complaint is available here (pdf).

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Media Giant Can Keep Seized Ad Revenue From Pirate Sites

Post Syndicated from Ernesto original https://torrentfreak.com/media-giant-can-keep-seized-ad-revenue-from-pirate-sites-180109/

For several decades the MPAA and RIAA have been the prime anti-piracy groups in the United States.

While that may be true, there’s another player making a massive impact, while getting barely any press.

ABS-CBN, the largest media and entertainment company in the Philippines, has filed a series of lawsuits against pirate sites in the US, with the popular streaming portal Fmovies as the biggest target.

The company has already won several cases with damages ranging from a few hundred thousand to millions of dollars. However, the associated injunctions in these cases are perhaps even more significant.

We previously covered how ABS-CBN managed to get court orders to seize domain names, without the defendants getting actively involved. This is also the case in a recent lawsuit where a Florida federal court signed a broad injunction targeting more than two dozen sites that offered the company’s content.

The websites, including abscbn-teleserye.com, dramascools.com, tvnijuan.org, pinoydailyshows.com and weeklywarning.org, may not be known to a broad audience but their domain names have all been suspended, linking to a takedown message instead.

What’s most interesting, however, is that the advertising revenues of these sites were previously frozen. This was done to ensure that ABS-CBN would at least get some money if the defendants failed to respond, a strategy that seems to have paid off.

After the targeted site owners failed to respond, ABS-CBN requested a default judgment with damages for trademark and copyright infringement.

U.S. District Court Judge Cecilia Altonaga has now signed the order, awarding the media company over a million dollars in statutory trademark infringement damages. In addition, several of the sites must also pay copyright infringement damages.

Damages

The default judgment also orders associated registrars and registries to hand over the domain names to ABS-CBN. Thus far several domains have been seized already, but some foreign companies have not complied, most likely because they fall outside the US jurisdiction.

The most interesting part of the order, however, is that Judge Altonaga grants ABS-CBN the previously seized advertising revenues.

“All funds currently restrained by the advertising services, networks, and/or platforms […], pursuant to the temporary restraining order and preliminary injunction in this action are to be immediately (within five business days) transferred to Plaintiffs in partial satisfaction of the monetary judgment entered herein against each Defendant,” the Judge writes.

List of sites and their ad-networks

The sites in question used advertising services from a variety of well-known networks, including Google Adsense, MGID, Popads, AdsKeeper, and Bidvertiser. None of these companies responded in court after the initial seizure order, suggesting that they did not object.

This is the first time, to our knowledge, that a copyright holder has been granted advertising revenue from pirate sites in this manner. While it’s not known how much revenue the sites were making, there is bound to be some.

This could be a common legal tactic going forward because, generally speaking, it is very hard to get money from defaulting defendants who are relatively anonymous, or living in a foreign jurisdiction. By going after the advertisers, copyright holders have a good chance of securing some money, at least.

A copy of the default judgment is available here (pdf) and all affected websites are listed below.

– abscbn-teleserye.com
– astigvideos.com
– cinepinoy.lol
– cinepinoy.ag
– pinoyflix.ag
– pinoyflix.lol
– cinezen.me
– dramascools.com
– dramasget.com
– frugalpinoytv.org
– lambingan.cn
– pinoylambingan.ph
– lambingan.io
– lambingans.net
– latestpinoymovies.com
– pinasnews.net
– pinastvreplay.com
– pinoybay.ch
– pinoychannel.me
– pinoydailyshows.com
– pinoyplayback.net
– pinoytvshows.net
– pinoytv-shows.net
– rondownload.net
– sarapmanood.com
– tambayanshow.net
– thelambingan.com
– tvnijuan.org
– tvtambayan.org
– vianowpe.com
– weeklywarning.org
– weeklywarning.com

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TVAddons and ZemTV Ask Court to Dismiss U.S. Piracy Lawsuit

Post Syndicated from Ernesto original https://torrentfreak.com/tvaddons-and-zemtv-ask-court-to-dismiss-u-s-piracy-lawsuit-180108/

Last year, American satellite and broadcast provider Dish Network targeted two well-known players in the third-party Kodi add-on ecosystem.

In a complaint filed in a federal court in Texas, add-on ZemTV and the TVAddons library were accused of copyright infringement. As a result, both are facing up to $150,000 in damages for each offense.

While the case was filed in Texas, neither of the defendants live there, or even in the United States. The owner and operator of TVAddons is Adam Lackman, who resides in Montreal, Canada. ZemTV’s developer Shahjahan Durrani is even further away in London, UK.

Their limited connection to Texas is reason for the case to be dismissed, according to the legal team of the two defendants. They are represented by attorneys Erin Russel and Jason Sweet, who asked the Court to drop the case late last week.

According to their motion, the Texas District Court does not have jurisdiction over the two defendants.

“Lackman and Durrani have never been residents or citizens of Texas; they have never owned property in Texas; they have never voted in Texas; they have never personally visited Texas; they have never directed any business activity of any kind to anyone in Texas […] and they have never earned income in Texas,” the motion reads.

Technically, defendants can be sued in a district they have never been, as long as they “directed actions” at the state or its citizens.

According to Dish, this is the case here since both defendants made their services available to local residents, among other things. However, the defense team argues that’s not enough to establish jurisdiction in this case.

“Plaintiff’s conclusory allegation that Lackman and Durrani marketed, made available, and distributed ZemTV service and the ZemTV add-on to consumers in the State of Texas and the Southern District of Texas is misleading at best,” the attorneys write.

If the case proceeds this would go against the US constitution, violating the defendants’ due process rights. Whether the infringement claims hold ground or not, Dish has no right to sue, according to the defense.

“Defendants are citizens of Canada and Great Britain and have not had sufficient contacts in the State of Texas for this Court to exercise personal jurisdiction over them. To do so would violate the Due Process Clause of the United States Constitution.”

The Court must now decide whether the case can proceed or not. TorrentFreak reached out to TVAddons but the service wishes to refrain from commenting on the proceeding at the moment.

Previously, TVAddons made it clear that it sees the Dish lawsuit as an attempt to destroy the Kodi addon community. One of the methods of attack it mentioned, was to sue people in foreign jurisdictions.

“Most people don’t have money lying around to hire lawyers in places they’ve never even visited. This means that if a company sues you in a foreign country and you can’t afford a lawyer, you’re screwed even if you did nothing wrong,” TVAddons wrote at the time.

A copy of the motion to dismiss is available here (pdf).

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