Tag Archives: Perfect 10

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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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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Perfect 10 Takes Giganews to Supreme Court, Says It’s Worse Than Megaupload

Post Syndicated from Andy original https://torrentfreak.com/perfect-10-takes-giganews-supreme-court-says-worse-megaupload-170906/

Adult publisher Perfect 10 has developed a reputation for being a serial copyright litigant.

Over the years the company targeted a number of high-profile defendants, including Google, Amazon, Mastercard, and Visa. Around two dozen of Perfect 10’s lawsuits ended in cash settlements and defaults, in the publisher’s favor.

Perhaps buoyed by this success, the company went after Usenet provider Giganews but instead of a company willing to roll over, Perfect 10 found a highly defensive and indeed aggressive opponent. The initial copyright case filed by Perfect 10 alleged that Giganews effectively sold access to Perfect 10 content but things went badly for the publisher.

In November 2014, the U.S. District Court for the Central District of California found that Giganews was not liable for the infringing activities of its users. Perfect 10 was ordered to pay Giganews $5.6m in attorney’s fees and costs. Perfect 10 lost again at the Court of Appeals for the Ninth Circuit.

As a result of these failed actions, Giganews is owned millions by Perfect 10 but the publisher has thus far refused to pay up. That resulted in Giganews filing a $20m lawsuit, accusing Perfect 10 and President Dr. Norman Zada of fraud.

With all this litigation boiling around in the background and Perfect 10 already bankrupt as a result, one might think the story would be near to a conclusion. That doesn’t seem to be the case. In a fresh announcement, Perfect 10 says it has now appealed its case to the US Supreme Court.

“This is an extraordinarily important case, because for the first time, an appellate court has allowed defendants to copy and sell movies, songs, images, and other copyrighted works, without permission or payment to copyright holders,” says Zada.

“In this particular case, evidence was presented that defendants were copying and selling access to approximately 25,000 terabytes of unlicensed movies, songs, images, software, and magazines.”

Referencing an Amicus brief previously filed by the RIAA which described Giganews as “blatant copyright pirates,” Perfect 10 accuses the Ninth Circuit of allowing Giganews to copy and sell trillions of dollars of other people’s intellectual property “because their copying and selling was done in an automated fashion using a computer.”

Noting that “everything is done via computer” these days and with an undertone that the ruling encouraged others to infringe, Perfect 10 says there are now 88 companies similar to Giganews which rely on the automation defense to commit infringement – even involving content owned by people in the US Government.

“These exploiters of other people’s property are fearless. They are copying and selling access to pirated versions of pretty much every movie ever made, including films co-produced by treasury secretary Steven Mnuchin,” Nada says.

“You would think the justice department would do something to protect the viability of this nation’s movie and recording studios, as unfettered piracy harms jobs and tax revenues, but they have done nothing.”

But Zada doesn’t stop at blaming Usenet services, the California District Court, the Ninth Circuit, and the United States Department of Justice for his problems – Congress is to blame too.

“Copyright holders have nowhere to turn other than the Federal courts, whose judges are ridiculously overworked. For years, Congress has failed to provide the Federal courts with adequate funding. As a result, judges can make mistakes,” he adds.

For Zada, those mistakes are particularly notable, particularly since at least one other super high-profile company was shut down in the most aggressive manner possible for allegedly being involved in less piracy than Giganews.

Pointing to the now-infamous Megaupload case, Perfect 10 notes that the Department of Justice completely shut that operation down, filing charges of criminal copyright infringement against Kim Dotcom and seizing $175 million “for selling access to movies and songs which they did not own.”

“Perfect 10 provided evidence that [Giganews] offered more than 200 times as many full length movies as did megaupload.com. But our evidence fell on deaf ears,” Zada complains.

In contrast, Perfect 10 adds, a California District Court found that Giganews had done nothing wrong, allowed it to continue copying and selling access to Perfect 10’s content, and awarded the Usenet provider $5.63m in attorneys fees.

“Prior to this case, no court had ever awarded fees to an alleged infringer, unless they were found to either own the copyrights at issue, or established a fair use defense. Neither was the case here,” Zada adds.

While Perfect 10 has filed a petition with the Supreme Court, the odds of being granted a review are particularly small. Only time will tell how this case will end, but it seems unlikely that the adult publisher will enjoy a happy ending, one in which it doesn’t have to pay Giganews millions of dollars in attorney’s fees.

Source: TF, for the latest info on copyright, file-sharing, torrent sites and ANONYMOUS VPN services.

Piracy ‘Disaster’ Strikes The Hitman’s Bodyguard

Post Syndicated from Ernesto original https://torrentfreak.com/piracy-disaster-strikes-the-hitmans-bodyguard-170829/

The Hitman’s Bodyguard is an action comedy movie featuring Hollywood stars Samuel L. Jackson and Ryan Reynolds.

While this hasn’t been a great summer at the box office, the makers of the film can’t complain as they’ve taken the top spot two weeks in a row. While this is reason for a small celebration, the fun didn’t last for long.

A few days ago several high-quality copies of the film started to appear on various pirate sites. While movie leaks happen every day, it’s very unusual that it happens just a few days after the theatrical release. In several countries including Australia, China, and Germany, it hasn’t even premiered yet.

Many pirates appear to be genuinely surprised by the early release as well, based on various comments. “August 18 was the premiere, how did you do this magic?” one downloader writes.

“OK, this was nothing short of perfection. 8 days post theatrical release… perfect 1080p clarity… no hardcoded subs… English translation AND full English subs… 5.1 audio. Does it get any better?” another commenter added.

The pirated copies of the movie are tagged as a “Web-DL” which means that they were ripped from an online streaming service. While the source is not revealed anywhere, the movie is currently available on Netflix in Japan, which makes it a likely candidate.

Screenshot of the leak

While the public often call for a simultaneous theatrical and Internet release, the current leak shows that this might come with a significant risk.

It’s clear that The Hitman’s Bodyguard production company Millennium Films is going to be outraged. The company has taken an aggressive stance against piracy in recent years. Among other things, it demanded automated cash settlements from alleged BitTorrent pirates and is also linked to various ‘copyright troll’ lawsuits.

Whether downloaders of The Hitman’s Bodyguard will be pursued as well has yet to be seen. For now, there is still plenty of interest from pirates. The movie was the most downloaded title on BitTorrent last week and is still doing well.

Source: TF, for the latest info on copyright, file-sharing, torrent sites and ANONYMOUS VPN services.

Usenet Provider Giganews Sues Perfect 10 For Fraud, Demands $20m

Post Syndicated from Andy original https://torrentfreak.com/usenet-provider-giganews-sues-perfect-10-for-fraud-demands-20m-170712/

For many years, Perfect 10 went about its business of publishing images of women in print and on the Internet. At some point along the way, however, the company decided that threatening to sue online service providers was more profitable.

Claiming copyright infringement, Perfect 10 took on a number of giants including Google, Amazon, Mastercard, and Visa, not to mention hosting providers such as LeaseWeb and OVH.

With court papers revealing that Perfect 10 owner Norman Zada worked 365 days a year on litigation and that the company acquired copyrights for use in lawsuits, it’s no surprise that around two dozen of Perfect 10’s lawsuits ended in cash settlements and defaults.

With dollar signs in mind, Perfect 10 went after another pretty big fish in 2011. The publisher claimed that Usenet provider Giganews was responsible when its users uploaded Perfect 10 images to the newsgroups. Things did not go well.

In November 2014, the U.S. District Court for the Central District of California found that Giganews was not liable for the infringing activities of its users. Perfect 10 was ordered to pay Giganews $5.6m in attorney’s fees and costs. Perfect 10 lost again at the Court of Appeals for the Ninth Circuit.

But even with all of these victories under its belt, Giganews just can’t catch a break.

The company is clearly owed millions but Perfect 10 is refusing to pay up. As a result, this week Giganews filed yet another suit, accusing Perfect 10 and Norman Zada of fraud aimed at depriving Giganews of the amounts laid out by the court.

The claims center around an alleged conspiracy in which Perfect 10 transferred its funds and assets to Zada.

“As of now (over two years since the judgment), Perfect 10 has not voluntarily paid any amount of the judgment,” the complaint begins.

“Instead, Perfect 10, through the unlawful acts of Zada and in conspiracy with him, has intentionally avoided satisfaction of the judgment through a series of fraudulent transfers of Perfect 10’s corporate assets to Zada’s personal possession.”

Giganews says these “illegal and fraudulent” transfers began back in 2014, when Perfect 10 began to realize that the fight against the Usenet provider was going bad.

For example, on November 20, 2014, around six days after the court granted summary judgment in favor of Giganews, Perfect 10 transferred $850,000 to Zada’s personal account. The Perfect 10 owner later told a Judgment Debtor’s Examination that the transfer was made due to the summary judgment orders, a statement that amounts to a confession of fraud, Giganews says.

“We had a settlement of $1.1 million in, I believe, June. I was entitled to that money,” Zada told the hearing. “And after the summary judgment orders were issued, I did not see any point in keeping more cash than we needed in the account.”

Giganews says that Perfect 10 transferred at least $1.75m in cash to Zada.

Then, within weeks of the court ordering Perfect 10 to pay $5.6m in attorneys fees and costs, Giganews says that Zada “fraudulently transferred substantially all
of Perfect 10’s physical assets” to himself for an amount that did not represent their true value.

Those assets included a car, furniture, and computer servers. When Zada was questioned why the transfers took place, he admitted that “it would have been
totally disruptive to have those [assets] seized” in satisfaction of the judgment. Indeed, the complaint alleges that the assets never moved physical location.

Perhaps surprisingly given the judgment, Giganews alleges that Zada continues to run Perfect 10’s business in much the same way as he did before. The company even has copyright infringement litigation underway against AOL in Germany, despite having few assets.

This is made possible, Giganews says, by Perfect 10 calling on assets it previously transferred to Zada. When required by the company, Zada simply “gives” them back.

In summary, Giganews says these transfers display the “badges of fraud” that indicate attempts to “hinder, delay or defraud” creditors, while leaving Perfect 10 practically insolvent.

“As a consequence, Plaintiffs are entitled to a judgment against Defendants, and each of them, in the sum of the unlawfully transferred amounts of at least $1,750,000, or in an amount to be proven at trial, together with interest on that amount at the legal rate of 10% per annum from and after March 24, 2015,” the complaint reads.

But the claim doesn’t stop there. Giganews asks the court to prevent Perfect 10 from transferring any more cash or assets out of Perfect 10 to Zada or anyone acting in concert with him or on his behalf. This is rounded off with a claim for punitive and exemplary damages of $20m to be considered during a jury trial.

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Landmark Usenet Piracy Verdict Stands, Despite RIAA and MPAA Protests

Post Syndicated from Ernesto original https://torrentfreak.com/landmark-usenet-piracy-verdict-stands-despite-riaa-and-mpaa-protests-170510/

Adult magazine publisher Perfect 10 has made a business out of suing online services for allegedly facilitating copyright infringement.

Over the past several years the company has targeted a dozen high-profile companies including Google, Amazon, Yandex, MasterCard, Visa, Leaseweb, RapidShare, Depositfiles and Giganews.

Private settlements aside the legal campaigns haven’t been particularly successful for the publisher. Last year Perfect 10 lost another battle against Giganews, with the court ordering the company to pay $5.6 million in legal fees, a decision which was upheld by the court of appeals.

While the parties involved are not the biggest names, the case itself has drawn the interest of key players in the movie and music industries, as well as several tech giants.

This became apparent once again when Perfect 10 asked the Ninth Circuit Court of Appeals for a rehearing a few weeks ago. Soon after this request was submitted, both the MPAA and RIAA chimed in with their support.

The copyright industry groups were particularly concerned with the panel’s decision that Giganews is not liable for vicarious infringement, because there was no evidence indicating that anyone subscribed to Giganews to download pirated Perfect 10 material.

“Indeed, Perfect 10 provides evidence that suggests only that some subscribers joined Giganews to access infringing material generally; Perfect 10 does not proffer evidence showing that Giganews attracted subscriptions because of the infringing Perfect 10 material,” it read.

According to the MPAA and RIAA, this finding goes against existing case law, so they asked for a rehearing. According to the groups, it should be enough to simply show that the general availability of copyright-infringing material draws ‘pirate’ users.

“Courts have long held that a plaintiff can satisfy the direct financial benefit prong by showing that the general availability of a particular type of infringing material on the defendant’s premises—or, in the internet context, through the defendant’s site or service—draws third-parties hoping to obtain infringing material,” the MPAA wrote (pdf).

giganews

The RIAA agreed and said that rightsholders should not be required to show a direct causal link between infringements of their work as a “draw” for using Giganews.

“By imposing this novel standard, the panel departed from established and longstanding precedent in the Ninth Circuit and elsewhere, and its ruling will likely result in harmful unintended consequences,” the music group wrote (pdf).

“It could effectively eliminate the ‘only practical alternative’ for many copyright owners to protect their copyrights […] and insulate the largest and most egregious copyright-infringement businesses from vicarious infringement claims.”

Not everyone agrees with this doom and gloom scenario though. In fact, many prominent tech industry groups including the Internet Infrastructure Coalition, Internet Association, Computer & Communications Industry Association, and the Consumer Technology Association sided with the Usenet provider.

Representing high profile members such as Google, Facebook and Microsoft, they urged the Court of Appeals in a joint brief (pdf) to keep the decision intact.

“Amici MPAA and RIAA now join ‘serial litigant’ Perfect 10 in asking this Court to rehear the case in order to discard this requirement. Doing so would have little effect on cases brought against pirates, but would severely and unnecessarily threaten innovation and investment in lawful online services and connected devices,” the groups warned.

The above is just a brief glimpse of the dozens of pages of paperwork the various parties submitted, showing that this case could have a major impact.

After carefully reviewing the various positions, the Ninth Circuit Court of Appeals decided (pdf) not to grant a rehearing. This means that the verdict will stand as it is, which is bad news for Perfect 10, the RIAA and the MPAA.

Dr. Norman Zada, president of Perfect 10, is indeed disappointed with the outcome, noting that it destroyed his company and threatens other rightsholders.

“Unfortunately, the Ninth Circuit effectively immunized those who illegally copy, distribute, and sell access to pirated movies, songs, images, software, magazines, and other copyrighted works, as long as they use a computer to automate that process,” Zada said.

“The ruling is very bad news for this nation’s creative industries, who need to be paid for the use of their works. Prior to this case, no court had ever allowed a defendant to make untold millions by selling access to content they did not own.”

The only move left for Perfect 10 is the Supreme Court, but there are no guarantees that it will hear this case.

Giganews, meanwhile, will continue to offer its Usenet services with the outlook of having a few extra millions in the bank soon. That is, if Perfect 10 can pay the full amount before it goes bankrupt.

Source: TF, for the latest info on copyright, file-sharing, torrent sites and ANONYMOUS VPN services.

Copyright Troll’s Intellectual Property Goes Up For Sale to Pay Giganews

Post Syndicated from Andy original https://torrentfreak.com/copyright-trolls-intellectual-property-goes-up-for-sale-to-pay-giganews-170308/

Perfect 10 was an adult entertainment magazine that also operated a subscription website featuring images of women.

At some point, however, the company decided that there was potentially more money to be made from suing companies than getting the public to pay for its photos.

Over the years the company developed an increasingly aggressive anti-piracy policy, filing lawsuits against any company it felt had infringed upon its rights. After suing Google and Amazon, the company went after MasterCard and Visa. It even took legal against hosting providers such as LeaseWeb and OVH.

While the company wasn’t always successful, the commodity fueling these suits were cash settlements in several cases. In time, Perfect 10 became better known as a copyright troll than a publisher and in 2011, the company added Usenet provider Giganews to its target list. The effort failed spectacularly.

In November 2014, the U.S. District Court for the Central District of California found that Giganews was not liable for the infringing activities of its users. Perfect 10 was ordered to pay Giganews $5.6m in attorney’s fees and costs.

The Court of Appeals for the Ninth Circuit subsequently had little good to say about Perfect 10. The company failed again, losing the appeal and facing potential liquidation.

Now, Giganews is turning the tables on Perfect 10 in the most devastating and ironic way imaginable. After making a business out of using its intellectual property assets to intimidate technology companies, Perfect 10 is now set to lose all of those assets in order to settle Giganews’ bills.

“We are excited to announce that the United States District Court for the Central District of California has granted Giganews’ motion to appoint a receiver to carry out a levy on all of Perfect 10’s intellectual property,” Giganews says.

That intellectual property includes (but is not limited to) all of Perfect 10’s domain names, all of its copyrights, and all of its trademarks. In light of more than a decade of aggressive troll-like litigation, it’s the ultimate insult to Perfect 10. Some might argue it’s the most fitting conclusion.

Giganews says that the receiver will now begin the process of liquidating the intellectual property. All proceeds will go towards satisfying Giganews’ $5.6 million attorney’s fees judgment that was awarded by the California court back in 2015.

“We won victory after victory over the course of the case, prevailing on every claim and obtaining the attorney’s fees award, culminating in a unanimous victory before the United States Court of Appeals for the Ninth Circuit in January 2017. That ruling upheld early rulings of three separate federal judges in favor of Giganews,” the company says.

The victory over Perfect 10 is undoubtedly an important one but it remains to be seen whether the former publisher’s assets will be worth anything like the $5.6m they need to realize. Nevertheless, for Giganews CEO and Co-Founder Ron Yokubaitis, putting a troll out of action is still a good result.

“We are determined to collect 100% of what is owed to us by Perfect 10 from this cowardly and frivolous lawsuit,” Yokubaitis says.

“This is a big win for Usenet and for user platforms over the entire open Internet. This ruling will now put a copyright troll out of business and free up the courts from baseless lawsuits.”

Giganews’ says that anyone interested in purchasing Perfect 10’s intellectual property can contact its litigation counsel at Fenwick & West.

Source: TF, for the latest info on copyright, file-sharing, torrent sites and ANONYMOUS VPN services.

Usenet Provider Giganews Wins Landmark Copyright Battle

Post Syndicated from Andy original https://torrentfreak.com/usenet-provider-giganews-wins-landmark-copyright-battle-170124/

Over the years, adult image publisher Perfect 10 developed a reputation for making a business out of suing Internet services for alleged copyright infringement.

The company targeted Google, Amazon, MasterCard and Visa, even hosting providers such as LeaseWeb and OVH. After securing several private settlements in earlier actions, the company sued Usenet provider Giganews after Perfect 10 images appeared on Giganews servers. Things didn’t go well.

In November 2014, the U.S. District Court for the Central District of California found that Giganews was not liable for the infringing activities of its users. Perfect 10 was subsequently ordered to pay Giganews $5.6m in attorney’s fees and costs.

With Perfect 10 not quite done the case went to appeal, but in an opinion just handed down by the Court of Appeals for the Ninth Circuit, the adult publisher has received a crushing defeat. The panel held that to be held liable for direct copyright infringement, Giganews must have committed some voluntary act that caused the infringement to occur. The requirements for such “volitional conduct” were not met.

“The panel concluded that the evidence showed only that Giganews’ actions were akin to passively storing material at the direction of users in order to make that material available to other users upon request, or automatically copying, storing, and transmitting materials upon instigation by others,” the ruling reads.

The panel also found that Giganews was not liable for contributory infringement after Perfect 10 failed to show that Giganews “materially contributed to or induced infringement.”

On Perfect 10’s claim for vicarious infringement, the panel upheld the district court’s summary judgment in Giganews’ favor, noting that Perfect 10 failed to show a “causal link between the infringing activities and a financial benefit to Giganews.”

Ron Yokubaitis, Co-CEO of Giganews, said that his company’s decision not to give in to Perfect 10 had resulted in a long and hard-fought battle, but the end result meant it had been worth it.

“We decided that it would be important to stand up to Perfect 10 and not be bullied by its abusive litigation tactics.  We were not going to settle this case just to avoid the risk of potentially catastrophic statutory damages in today’s crazy copyright world, a threat that unscrupulous plaintiffs like Perfect 10 use to extract unjust settlements from more timid companies,” he said.

“We took a stand for Usenet, for technology and online platforms, for the public, and for ultimate benefit of rational copyright law.  We were not just battling Perfect 10:  standing behind Perfect 10 – and even sharing in its oral argument at the court of appeals – was the Recording Industry Association of America(RIAA), which tried to argue that it was voicing the interests of small copyright holders.”

Giganews went on to thank several groups that gave it support during its battle with Perfect 10, including the Internet Infrastructure Coalition, EFF, and Public Knowledge. While Giganews will continue in the Usenet business, Perfect 10’s efforts to extract billions in damages from the provider have essentially developed into a suicide mission.

“With this decision, Perfect 10’s days as a copyright troll masquerading as a porn company are now finished,” Giganews said.

“The case now moves to its final stage to collect attorney’s fees from Perfect 10.  Giganews is seeking the appointment of a receiver to take charge of all of Perfect 10’s copyrights, trademarks, and domain names and to liquidate them in partial satisfaction of Giganews’ judgment against Perfect 10.”

The only area where Giganews failed to convince the court was in its request to add Perfect 10 founder Norman Zada to the verdict. The district court already denied that request and the panel at the court of appeal upheld that decision.

The full ruling is available here

Source: TF, for the latest info on copyright, file-sharing, torrent sites and ANONYMOUS VPN services.