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.
Faced with millions of individuals consuming unlicensed audiovisual content from a variety of sources, entertainment industry groups have been seeking solutions closer to the roots of the problem.
As widespread site-blocking attempts to tackle ‘pirate’ sites in the background, greater attention has turned to legal platforms that host both licensed and unlicensed content.
Under current legislation, these sites and services can do business relatively comfortably due to the so-called safe harbor provisions of the US Digital Millennium Copyright Act (DMCA) and the European Union Copyright Directive (EUCD).
Both sets of legislation ensure that Internet platforms can avoid being held liable for the actions of others provided they themselves address infringement when they are made aware of specific problems. If a video hosting site has a copy of an unlicensed movie uploaded by a user, for example, it must be removed within a reasonable timeframe upon request from the copyright holder.
However, in both the US and EU there is mounting pressure to make it more difficult for online services to achieve ‘safe harbor’ protections.
Entertainment industry groups believe that platforms use the law to turn a blind eye to infringing content uploaded by users, content that is often monetized before being taken down. With this in mind, copyright holders on both sides of the Atlantic are pressing for more proactive regimes, ones that will see Internet platforms install filtering mechanisms to spot and discard infringing content before it can reach the public.
While such a system would be welcomed by rightsholders, Internet companies are fearful of a future in which they could be held more liable for the infringements of others. They’re supported by the EFF, who yesterday presented a petition to the US Copyright Office urging caution over potential changes to the DMCA.
“As Internet users, website owners, and online entrepreneurs, we urge you to preserve and strengthen the Digital Millennium Copyright Act safe harbors for Internet service providers,” the EFF writes.
“The DMCA safe harbors are key to keeping the Internet open to all. They allow anyone to launch a website, app, or other service without fear of crippling liability for copyright infringement by users.”
It is clear that pressure to introduce mandatory filtering is a concern to the EFF. Filters are blunt instruments that cannot fathom the intricacies of fair use and are liable to stifle free speech and stymie innovation, they argue.
“Major media and entertainment companies and their surrogates want Congress to replace today’s DMCA with a new law that would require websites and Internet services to use automated filtering to enforce copyrights.
“Systems like these, no matter how sophisticated, cannot accurately determine the copyright status of a work, nor whether a use is licensed, a fair use, or otherwise non-infringing. Simply put, automated filters censor lawful and important speech,” the EFF warns.
While its introduction was voluntary and doesn’t affect the company’s safe harbor protections, YouTube already has its own content filtering system in place.
ContentID is able to detect the nature of some content uploaded by users and give copyright holders a chance to remove or monetize it. The company says that the majority of copyright disputes are now handled by ContentID but the system is not perfect and mistakes are regularly flagged by users and mentioned in the media.
However, ContentID was also very expensive to implement so expecting smaller companies to deploy something similar on much more limited budgets could be a burden too far, the EFF warns.
“What’s more, even deeply flawed filters are prohibitively expensive for all but the largest Internet services. Requiring all websites to implement filtering would reinforce the market power wielded by today’s large Internet services and allow them to stifle competition. We urge you to preserve effective, usable DMCA safe harbors, and encourage Congress to do the same,” the EFF notes.
The same arguments, for and against, are currently raging in Europe where the EU Commission proposed mandatory upload filtering in 2016. Since then, opposition to the proposals has been fierce, with warnings of potential human rights breaches and conflicts with existing copyright law.
Back in the US, there are additional requirements for a provider to qualify for safe harbor, including having a named designated agent tasked with receiving copyright infringement notifications. This person’s name must be listed on a platform’s website and submitted to the US Copyright Office, which maintains a centralized online directory of designated agents’ contact information.
Under new rules, agents must be re-registered with the Copyright Office every three years, despite that not being a requirement under the DMCA. The EFF is concerned that by simply failing to re-register an agent, an otherwise responsible website could lose its safe harbor protections, even if the agent’s details have remained the same.
“We’re concerned that the new requirement will particularly disadvantage small and nonprofit websites. We ask you to reconsider this rule,” the EFF concludes.
The EFF’s letter to the Copyright Office can be found here.
Dating back to the turn of the last century, copyright holders have alerted Internet providers about alleged copyright infringers on their network.
While many ISPs forwarded these notices to their subscribers, most were not very forthcoming about what would happen after multiple accusations.
This vagueness was in part shaped by law. While it’s clear that the DMCA requires Internet providers to implement a meaningful “repeat infringer” policy, the DMCA doesn’t set any clear boundaries on what constitutes a repeat infringer and when one should be punished.
With the recent Fourth Circuit Court of Appeals ruling against Cox, it is now clear that “infringers” doesn’t imply people who are adjudicated, valid accusations from copyright holders are enough. However, an ISP still has some flexibility when it comes to the rest of its “repeat infringer” policy.
In this light, it’s interesting to see that Comcast recently published details of its repeat infringer policy online. While the ISP has previously confirmed that persistent pirates could be terminated, it has never publicly spelled out its policy in such detail.
First up, Comcast clarifies that subscribers to its Xfinity service can be flagged based on reports from rightsholders alone, which is in line with the Fourth Circuit ruling.
“Any infringement of third party copyright rights violates the law. We reserve the right to treat any customer account for whom we receive multiple DMCA notifications from content owners as a repeat infringer,” the company notes.
If Comcast receives multiple notices in a calendar month, the associated subscriber moves from one policy step to the next one. This means that the ISP will issue warnings with increased visibility.
These alerts can come in the form of emails, letters to a home address, text messages, phone calls, and also alerts sent to the subscriber’s web browser. The alerts then have to be acknowledged by the user, so it clear that he or she understands what’s at stake.
From Comcast’s repeat infringer policy
Comcast doesn’t state specifically how many alerts will trigger tougher action, but it stresses that repeat infringers risk having their accounts suspended. As a result, all devices that rely on Internet access will be interrupted or stop working.
“If your XFINITY Internet account is suspended, you will have no Internet access or service during suspension. This means any services and devices that use the Internet will not properly work or will not work at all,” Comcast states.
The suspension is applied as a last warning before the lights go out completely. Subscribers who reach this stage can still reinstate their Internet connectivity by calling Comcast. It’s unclear whether they have to take any additional action, but it could be that these subscribers have to ‘promise’ to behave.
After this last warning, the subscriber risks the most severe penalty, account termination. This is not limited to regular access to the web, but also affects XFINITY TV, XFINITY Voice, and XFINITY Home, including smart thermostats and home security equipment.
“If you reach the point of service termination, we will terminate your XFINITY Internet service and related add-ons. Unreturned equipment charges will still apply. If you also have XFINITY TV and/or XFINITY Voice services, they will also be terminated,” Comcast warns.
Comcast doesn’t specify how long the Internet termination lasts but the company states that it’s typically no less than 180 days. This means that terminated subscribers will need to find an Internet subscription elsewhere if one’s available.
The good news is that other XFINITY services can be restored after termination, without Internet access. Subscribers will have to contact Comcast to request a quote for an Internet-less package.
While this policy may sound harsh to some, Comcast has few other options if it wants to avoid liability. The good news is that the company requires users to acknowledge the warnings, which means that any measures shouldn’t come as a surprise.
There is no mention of any option to contest any copyright holder notices, which may become an issue in the future. After all, when copyright holders have the power to have people’s Internet connections terminated, their accusations have to be spot on.
Last week the Fourth Circuit Court of Appeals ruled that ISPs are required to terminate ‘repeat infringers’ based on allegations from copyright holders alone, a topic that has been contested for years.
This means that copyright holders now have a bigger incentive to send takedown notices, as ISPs can’t easily ignore them. That’s music to the ears of the various piracy tracking companies, Rightscorp included.
The piracy monetization company always maintained that multiple complaints from copyright holders are enough to classify someone as a repeat infringer, without a court order, and the Fourth Circuit has now reached the same conclusion.
“After years of uncertainty on these issues, it is gratifying for the US Court of Appeals to proclaim the law on ISP liability for subscriber infringements to be essentially what Rightscorp has always said it is,” Rightscorp President Christopher Sabec says.
Rightscorp is pleased to see that the court shares its opinion since the verdict also provides new business opportunities. The company informs TorrentFreak that it’s ready to help copyright holders to hold ISPs responsible.
“Rightscorp has always stood with content holders who wish to protect their rights against ISPs that are not taking action against repeat infringers,” Sabec tells us.
“Now, with the law addressing ISP liability for subscriber infringements finally sharpened and clarified at the appellate level, we are ready to support all efforts by rights holders to compel ISPs to abide by their responsibilities under the DMCA.”
The piracy tracking company has a treasure trove of piracy data at its disposal to issue takedown requests or back lawsuits. Over the past five years, it amassed nearly a billion “records” of copyright infringements.
“Rightscorp’s data records include no less the 969,653,557 infringements over the last five years,” Sabec says.
This number includes a lot of repeat infringers, obviously. It’s made up of IP-addresses downloading the same file on several occasions and/or multiple files over time.
While it’s unlikely that account holders will be disconnected based on infringements that happened years ago, this type of historical data can be used in court cases. Rightscorp’s infringement notices are the basis of the legal action against Cox, and are being used as evidence in a separate RIAA case against ISP Grande communications as well.
Grande previously said that it refused to act on Rightcorp’s notices because it doubts their accuracy, but the tracking company contests this. That case is still ongoing and a final decision has yet to be reached.
For now, however, Rightcorp is marketing its hundreds of thousands of recorded copyright infringements as an opportunity for rightsholders. And for a company that can use some extra cash in hand, that’s good news.
While other providers in the UK and Ireland aim to compete, those requiring the absolute fastest fibre optic broadband coupled with a comprehensive TV package will probably find themselves considering Virgin Media.
Despite sporting Richard Branson’s Virgin brand, the company has been owned by US-based Liberty Global since 2013. It previously earned the title of first quad-play media company in the United Kingdom, offering broadband, TV, fixed-line and mobile telecoms packages.
Today, however, the company has a small piracy-related embarrassment to address.
Like several of the large telecoms companies in the region, Virgin Media operates a number of bricks-and-mortar stores which are used to drum up sales for Internet, TV and phone packages while offering support to new and existing customers. They typically look like the one in the image below.
Virgin Media store (credit: Virgin)
The outside windows of Virgin stores are usually covered with advertising for the company’s products and regularly carry digital displays which present the latest deals. However, one such display spotted by a passer-by carried a little extra.
In a now-deleted post on Reddit, a user explained that when out and about he’d passed a Virgin Media store which sported a digital display advertising the company’s impressive “Full House” package. However, intruding at the top of the screen was a notification from one of the most impressive piracy apps available, Terrarium TV.
Busted: Terrarium TV notification top and center (credit)
For those out of the loop, Terrarium TV is one of the most feature-rich Android-based applications available today. For reasons that aren’t exactly clear, it hasn’t received the attention of ‘rivals’ such as Popcorn Time and Showbox but its abilities are extremely impressive.
As the image shows, the notification is letting the user know that two new movies – The Star and The Stray – have been added to Terrarium’s repertoire. In other words, they’ve just been listed in the Terrarium app for streaming directly to the user’s installation (in this case one of Virgin’s own displays) for free, without permission from copyright holders.
Of course, Virgin Media definitely won’t have authorized the installation of Terrarium TV on any of its units, so it’s most likely down to someone in the store with access to the display, perhaps a staff member but possibly a mischievous customer. Whoever it was should probably uninstall it now though, if they’re able to. Virgin will not be happy about this.
The person who took the photo didn’t respond to TorrentFreak’s request for comment on where it was taken but from the information available in the image, it seems likely that it’s in Ireland. Virgin Media ads elsewhere in the region are priced in pounds – not in euros – so a retail outlet in the country is the most likely location. The same 99 euro “Full House” deal is also advertised on Virgin’s .ie website.
While a display running a piracy application over the top of an advert trying to sell premium access to movies and TV shows is embarrassing enough, Virgin and other ISPs including Eircom, Sky Ireland, and Vodafone Ireland are currently subject to a court order which compels them to block several pirate sites in Ireland.
The sources used by Terrarium to supply illicit copies of movies are not part of that order but since ISPs in the region don’t contest blocking orders when rightsholders apply for them, it’s reasonable to presume they’re broadly in favor of blocking pirate sites.
Of course, that makes perfect sense if you’re a company trying to make money from selling premium access to content.
Update: We have a lengthy statement from Virgin Media:
“Virgin Media takes copyright very seriously and does not condone illegal streaming.
Our new Tallaght Store is due to officially open later this month and currently does not currently have Virgin Media network connectivity.
Over the weekend, an advertising screen display in this Store was being set up by a contractor.
The contractor took it on themselves to use their own 4G device to set up the screen, ahead of the store being connected to our fibre services this week.
At some stage, it seems an unwanted pop-up appeared on the screen from an illegal streaming site. To be clear, this was not on the Virgin Media network.
Other than as outlined above, this occurrence has no connection whatsoever with Virgin Media. We have notified the contractor regarding this incident.”
Once the legal process for blocking pirate sites has been accepted in a region, it usually follows that dozens if not hundreds of other sites are given the same treatment. Rightsholders simply point to earlier decisions and apply for new blockades under established law.
Very quickly, however, it became clear that when a domain is blocked it’s relatively easy to produce a clone or ‘mirror’ of a site to achieve the same purpose, thus circumventing a court order. This mirror site whac-a-mole was addressed in Russia last year with new legislation.
Starting October 1, 2017, Russian authorities allowed rightsholders to add mirror sites to the country’s national blocklist without having to return to court. Perhaps unsurprisingly, given the relative convenience and cost-efficiency, they have been doing that en masse.
According to Alexei Volin, Russia’s Deputy Minister of Communications and Mass Media, hundreds of mirrors of pirate sites have been blocked since the introduction of the legislation in October, affecting an audience of millions of people.
“For the past few months, we have been able to block mirrors of pirate sites. As of today, we can already note that about 500 sites are blocked as mirrors,” said Volin at the CSTB 2018 television and telecommunications expo in Moscow.
While rightsholders were expected to quickly take advantage of the change in the law, the speed at which they have done so is unprecedented. According to Volin, more pirate platforms have been blocked in the four months since October 1, 2017, than in the previous two years’ worth of judicial decisions.
“Colleagues from the industry recently found a general audience of blocked sites, it’s about 200 million people,” Volin said, while describing the results as “encouraging.”
The process is indeed quite straightforward. Following a request from a rightsholder, the Ministry of Communications decides whether the site being reported is actually a copy of a previously blocked pirate site. If it is, the owner of the site and telecoms regulator Rozcomnadzor are informed about the situation, while local ISPs are ordered to begin blocking the site.
After cutting their teeth on blocking injunctions against torrent and regular streaming sites, last November it was revealed that Australian movie outfit Village Roadshow and a coalition of movie studios (Disney, Universal, Warner Bros, Twentieth Century Fox, and Paramount) had switched to a new threat.
Their action targeted HDSubs+, a fairly well-known IPTV service that provides hundreds of otherwise premium live channels, movies, and sports for a relatively small monthly fee.
The application for injunction was filed October 2017 and in common with earlier requests, it targets Australia’s largest ISPs. Telstra, Optus, TPG, and Vocus, plus their subsidiaries, were asked to prevent the ‘pirate’ service being accessed by their customers.
In December, a parallel action was revealed, this time by Hong Kong-based broadcaster Television Broadcasts Limited (TVB). The company is also demanding that local ISPs block Android-based ‘pirate’ IPTV services, named in court as the A1, BlueTV, EVPAD, FunTV, MoonBox, Unblock, and hTV5.
During a case management hearing in Federal Court today, Justice Nicholas told Roadshow Films that its application would be pushed back from March to mid-April so that it can be hard alongside the application made by TVB. The relative complexity of the cases appears to have played a role.
While blocking demands for these kinds of services may seem similar to those targeted at torrent sites, the situation is more complex, and the Judge clearly wants to have a good grip on the matter.
“I will need to be satisfied by evidence so that I have a good understanding of how it works, I know what the precise relationship is between this box, the apps, and the site from which [content is] downloaded,” the Judge told lawyers appearing for Roadshow and TVB.
One of the issues revolves around the structure of these IPTV services. A number of URLs are required to maintain them, each with a specific role.
A total of 21 URLs were listed in the TVB case and at least another ten for the single service listed in the Roadshow application. The URLs are used for various aspects of the service including the provision of an EPG (electronic program guide), the software itself (such as an Android app), subsequent updates, and sundry other services.
The Judge warned the companies that he will need to be able to understand them all and if he does not, then blocking injunctions may not even be granted.
“I don’t want the evidence in any respect to be scant on those issues; otherwise, you might find the orders won’t be made,” he told them.
Only complicating matters is that the HDSubs+ service isn’t static. In what appeared to be a response to being named in legal action, last year the service appeared to be undergoing some kind of transformation, directing subscribers to update to a new software version (PressPlayPlus) that works in a more evasive manner.
As reported by ZDNet, counsel for Roadshow and TVB argued that “the changing nature of this system” means that HDSubs+ has diverted users to various different apps over the past several months.
“[In late December] the HDSubs+ app updated to send users to a different app … in early January we noticed that the system reverted back to the HDSubs+ app,” counsel explained.
Roadshow added that since its filing for an injunction, HDSubs+ operators had also removed access to films and TV shows listed in Roadshow’s application. This was grounds for the application to be heard more quickly, the company said.
In order to obtain an injunction, the companies will have to convince the Judge that each URL (or “online location”) either infringes or facilitates the infringement of their copyrighted content. They will also have to show that the primary purpose of such “online locations” is to infringe or facilitate the infringement of their copyrights.
While apps and direct streams shouldn’t pose the court with too many difficulties, EPGs – which simply provide metadata – may be more difficult to classify.
The hearings for both the Roadshow and the TVB applications will now go ahead on April 13, 2018.
As one of the leading CDN and DDoS protection services, Cloudflare is used by millions of websites across the globe.
This includes thousands of “pirate” sites, including the likes of The Pirate Bay, which rely on the U.S.-based company to keep server loads down.
Many rightsholders have complained about Cloudflare’s involvement with these sites and last year adult entertainment publisher ALS Scan took it a step further by dragging the company to court.
ALS accused the CDN service of various types of copyright and trademark infringement, noting that several customers used the Cloudflare’s servers to distribute pirated content. While Cloudflare managed to have several counts dismissed, the accusation of contributory copyright infringement remains.
An upcoming trial could determine whether Cloudflare is liable or not, but ALS believes that this isn’t needed. This week, the publisher filed a request for partial summary judgment, asking the court to rule over the matter in advance of a trial.
“The evidence is undisputed,” ALS writes. “Cloudflare materially assists website operators in reproduction, distribution and display of copyrighted works, including infringing copies of ALS works. Cloudflare also masks information about pirate sites and their hosts.”
ALS anticipates that Cloudflare may argue that the company or its clients are protected by the DMCA’s safe harbor provision, but contests this claim. The publisher notes that none of the customers registered the required paperwork at the US Copyright Office.
“Cloudflare may say that the Cloudflare Customer Sites are themselves service providers entitled to DMCA protections, however, none have qualified for safe harbors by submitting the required notices to the US Copyright Office.”
Cloudflare itself has no safe harbor protection either, they argue, because it operates differently than a service provider as defined in the DMCA. It’s a “smart system” which also modifies content, instead of a “dumb pipe,” they claim.
In addition, the CDN provider is accused of failing to implement a reasonable policy that will terminate repeat offenders.
“Cloudflare has no available safe harbors. Even if any safe harbors apply, Cloudflare has lost such safe harbors for failure to adopt and reasonably implement a policy including termination of repeat infringers,” ALS writes.
Previously, the court clarified that under U.S. law the company can be held liable for caching content of copyright infringing websites. Cloudflare’s “infrastructure-level caching” cannot be seen as fair use, it ruled.
ALS now asks the court to issue a partial summary judgment ruling that Cloudflare is liable for contributory copyright infringement. If this motion is granted, a trial would only be needed to establish the damages amount.
The lawsuit is a crucial matter for Cloudflare, and not only because of the potential damages it faces in this case. If Cloudflare loses, other rightsholders are likely to make similar demands, forcing the company to actively police potential pirate sites.
Cloudflare will undoubtedly counter ALS’ claims in a future filing, so this case is far from over.
A copy of ALS Scan’s memorandum in support of the motion for partial summary judgment can be found here (pdf).
While piracy of all kinds is often viewed as a threat to the creative industries, a new type of unauthorized content distribution has been gaining prominence over the past few years.
Sites like YouTube, that allow their users to upload all kinds of material – some of it infringing – are now seen as undermining a broad range of industries that rely on both video and audio to generate revenue.
The cries against such User Uploaded Content (UUC) sites are often led by the music industry, which complains that the safe harbor provisions of copyright law are being abused while UUC sites generate review from infringing content. In tandem, while that free content is made available, UUC sites have little or no incentive to pay for official content licenses, and certainly not at a rate considered fair by the industry.
This mismatch, between the price that content industries would like to achieve for licenses and what they actually achieve, is now known as the ‘Value Gap’.
Today, in advance of an EU meeting on the draft Copyright Directive, a huge coalition of rightsholder groups is calling on the new EU Presidency not to pass up an “unmissable opportunity” to find a solution to their problems.
In a letter addressed to the Presidency of the Council of the European Union, which Bulgaria officially took over January 1, 2018, an army of rightsholders lay out their demands.
“We represent musical, audio-visual, literary, visual authors; performers; book, press, musical, scientific, technical and medical publishers; recorded music, film and TV producers; football leagues; broadcasters; distributors and photo agencies. These are at the very heart of Europe’s creative sector,” the groups write.
“We have formed an alliance to campaign for a solution to a major problem which is holding back our sector and jeopardizing future sustainability – the Transfer of Value, otherwise known as the Value Gap.
“User uploaded content services have become vast distributors of our creative works e.g. film, music, photos, broadcasts, text and sport content – all while refusing to negotiate fair or any copyright licences with us as right holders.”
Value Gap Coalition
Featuring groups representing many thousands of rightsholders, the coalition is the broadest yet to call for action against the ‘Value Gap’. Or, to put it another way, to demand a change in the law to prevent sites like YouTube, Facebook and other hosting platforms from “hiding” behind provisions designed to protect them from the infringing activities of others.
“This problem is caused by a lack of clarity surrounding the application of copyright to certain online services and the abuse of European copyright ‘safe harbor’ rules in the e-Commerce Directive (2000/31/EC) by those services,” the coalition writes.
Referencing the EU Copyright Directive proposal tabled by the European Commission in September 2016, the coalition says that UUC services communicating content to the public should be compelled to obtain licenses for that content. If they play an “active role” through promotion or optimization of content, UUC platforms should be denied ‘safe harbors’ under copyright law, they argue.
Noting that there is “no solution” to the problem without the above fixes, the coalition cites last year’s ruling by the Court of Justice of the European Union which found that The Pirate Bay knowingly provide users with a platform to share copyright-infringing links.
“It is important to recall that the underlying policy objective of this legislation is to address the current unfairness in the online market due to the misapplication of copyright liability rules by UUC services. We would therefore like to stress that the focus should remain on finding effective solutions to tackle this issue.
“As an alliance, we look forward to working with your Presidency to achieve an effective solution to the Value Gap problem for the benefit of Europe,” the coalition concludes.
The letter, addressed to Prime Minister Borissov, Minister Pavlova and Minister Banov, arrives in the wake of an alert sounded by several Members of the European Parliament.
Earlier this month they warned that the EU’s proposed mandatory upload filters – which could see UUC sites pre-screen user-uploaded content for infringement – amount to “censorship machines” that will do more harm than good.
For the past eight years, Austria has been struggling with the thorny issue of pirate site blocking. Local ISPs have put up quite a fight but site blocking is now a reality, albeit with a certain amount of confusion.
After a dizzying route through the legal system, last November the Supreme Court finally ruled that The Pirate Bay and other “structurally-infringing” sites including 1337x.to and isohunt.to can be blocked, if rightsholders have exhausted all other options.
The Court based its decision on the now-familiar BREIN v Filmspeler and BREIN v Ziggo and XS4All cases that received European Court of Justice rulings last year. However, there is now an additional complication, this time on the net neutrality front.
After being passed in October 2015 and coming into force in April 2016, the Telecom Single Market (TSM) Regulation established the principle of non-discriminatory traffic management in the EU. The regulation still allows for the blocking of copyright-infringing websites but only where supported by a clear administrative or judicial decision. This is where T-Mobile sees a problem.
In addition to blocking sites named specifically by the court, copyright holders also expect the ISP to block related platforms, such as clones and mirrors, that aren’t specified in the same manner.
So, last week, after blocking several obscure Pirate Bay clones such as proxydl.cf, the ISP reported itself to the Austrian Regulatory Authority for Broadcasting and Telecommunications (RTR) for a potential net neutrality breach.
“It sounds paradoxical, but this should finally bring legal certainty in a long-standing dispute over pirate sites. T-Mobile Austria has filed with regulatory authority RTR a kind of self-report, after blocking several sites on the basis of a warning by rights holders,” T-Mobile said in a statement.
“The background to the communication to the RTR, through which T-Mobile intends to obtain an assessment by the regulator, is a very unsatisfactory legal situation in which operators have no opportunity to behave in conformity with the law.
“The service provider is forced upon notification by the copyright owner to even judge about possible copyright infringements. At the same time, the provider is violating the principle of net neutrality by setting up a ban.”
T-Mobile says the problem is complicated by rightsholders who, after obtaining a blocking order forcing named ISPs to block named pirate sites (as required under EU law), send similar demands to other ISPs that were not party to court proceedings. The rightsholders also send blocking demands when blocked sites disappear and reappear under a new name, despite those new names not being part of the original order.
According to industry body Internet Service Providers Austria (ISPA), there is a real need for clarification. It’s hoped that T-Mobile reporting itself for a potential net neutrality breach will have the desired effect.
“For more than two years, we have been trying to find a solution with the involved interest groups and the responsible ministry, which on the one hand protects the rights of the artists and on the other hand does not force the providers into the role of a judge,” complains Maximilian Schubert, Secretary General of the ISPA.
“The willingness of the rights holders to compromise had remained within manageable limits. Now they are massively increasing the pressure and demanding costly measures, which the service providers see as punishment for them providing legal security for their customers for many years.”
ISPA hopes that the telecoms regulator will now help to clear up this uncertainty.
“We now hope that the regulator will give a clear answer here. Because from our point of view, the assessment of legality cannot and should not be outsourced to companies,” Schubert concludes.
Kodi is the now ubiquitous media player taking the world by storm. In itself it’s a great piece of software but augmented with third-party software it can become a piracy powerhouse.
This software, known collectively as ‘add-ons’, enables Kodi to do things it was never designed for such as watching pirated movies, TV shows, and live sports. As a result, it’s the go-to media platform for millions around the globe, but for those distributing the add-ons, there can be risks attached.
As one of the most prominent Kodi-related sites around, TVAddons helped to distribute huge numbers of add-ons. The platform insists that if any add-on infringed copyright, it was only too willing to remove them under a DMCA-like regime. Last year, however, it became clear that copyright holders would prefer to sue TVAddons (1,2) than ask for takedowns.
With those lawsuits still ongoing, the site was left with a dilemma. Despite add-ons being developed and uploaded by third-parties, rightsholders are still trying to hold TVAddons responsible for what those add-ons can do. It’s a precarious situation that has led to TVAddons not having its own repository/repo (a place where the addons are stored for users to download) since the site ran into trouble last summer.
Now, however, the site has just launched a new tool which not only provides some benefits for users looking for addons, but also attempts to shift some liability for potential infringement away from the service and onto a company with much broader shoulders.
Since many third-party Kodi add-ons are developed and first made available on Github, the world’s leading software development platform, why don’t users install them directly from there instead?
The idea is that this might reduce liability for distributors like TVAddons but could also present benefits for users, as they can be assured that they’re getting add-ons directly from the source.
Github Browser welcome screen
“Before the GitHub Browser, when an end user wanted to install a particular addon, they’d first have to download the necessary repository from either Fusion Installer or an alternative,” a TV addons spokesperson informs TF.
“This new feature gives the end user the ability to easily install any Kodi addon, and empowers developers to distribute their addons independently, without having to align themselves with a particular release group or web site.”
Aside from the benefits to users, it also means that TVAddons can provide its users with access to third-party add-ons without having to curate, store, or distribute them itself. In future, storage and distribution aspects can be carried out by Github, which has actually been the basic behind-the-scenes position for some time.
“GitHub has always been the leading host of Kodi addons, and also respects the law. The difference is, they are big enough to not be bullied by draconian legal maneuvers used by big corporations to censor the internet. We also felt that developers should be able to develop without having to comply with our rules, or any other Kodi web site’s rules for that matter,” TVAddons explain.
The screenshot of the Github Browser below reveals a text-heavy interface that will probably mean little to the low-level user of Kodi who bought his device already setup from a seller. However, those more familiar with the way Kodi functions will recognize that the filenames relate to add-ons which can now be directly installed via the browser.
The Github Browser
While the approach may seem basic or even inaccessible at first view, that wrongfully discounts the significant resources available to the sprawling third-party Kodi add-on community.
Dozens of specialist blogs and thousands of YouTube videos report in detail on the most relevant addons, providing all of the details users will need to identify and locate the required software. Developer usernames could be a good starting point, TVAddons suggests.
“We have already seen many social media posts, blogs and developers advertising their GitHub usernames in order to make it easier for users to find them,” the site explains.
From our tests, it appears that users really have to do all the work themselves. There doesn’t appear to be any add-on curation and users must know what they’re looking for in advance. Indeed, entering the Github usernames of developers who produce software that has nothing to do with Kodi can still present zip file results in the browser. Whether this will prove problematic later on will remain to be seen.
While most keen users won’t have a problem using the Github Browser, there is the question of whether redirecting the focus to the development platform will cause copyright holders to pay more attention to Github.
This has certainly happened in the past, such as when the Federation Against Copyright Theft targeted the SportsDevil add-on and had it removed from Github. It’s also worth noting that Github doesn’t appear to challenge takedown requests, so add-ons could be vulnerable if the heat gets turned up.
Nevertheless, TVAddons believes that the open source nature of most addons coupled with Github’s relative strength means that they’ll be able to stand up to most threats.
“Open source code lives on forever, it’s impossible to scrub the internet of freely distributed legitimate code. I think that GitHub is in a better position to legitimately assess and enforce the DMCA than us. They won’t be sued out of nowhere in circumvention of the DMCA in similar fashion to what we have been the victim of,” TVAddons says.
Several years ago, when The Pirate Bay got rid of torrents and relied on magnet links instead, the platform became much more compact, thus saving on bandwidth. The lack of a repository at TVAddons has also had benefits for the site. Previously it was consuming around 3PB (3,000,000 gigabytes) of bandwidth a month, with a hosting provider demanding $25,000 per month not to discontinue business.
Finally, the team says it is working on new browser features for the future, including repository distribution over torrents. Only time will tell how this new system will be viewed by copyright holders but even with add-on hosting taken care of externally, any form of curation could be instantly frowned upon, with serious consequences.
Following Prime Minister Theresa May’s cabinet reshuffle earlier this month, Matt Hancock replaced Karen Bradley as Secretary of State for Digital, Culture, Media and Sport.
Hancock, the 39-year-old MP for West Suffolk, was promoted from his role as Minister for Digital and Culture, a position he’d held since July 2016.
“Thrilled to become DCMS Secretary. Such an exciting agenda, so much to do, and great people. Can’t wait to get stuck in,” he tweeted.
Of course, the influence held by the Culture Secretary means that the entertainment industries will soon come calling, seeking help and support in a number of vital areas. No surprise then that Stan McCoy, president and managing director at the Motion Picture Association’s EMEA division, has just jumped in with some advice for Hancock.
In an open letter published on Screen Daily, McCoy begins by reminding Hancock that the movie industry contributes considerable sums to the UK economy.
“We are one of the country’s most valuable economic and cultural assets – worth almost £92bn, growing at twice the rate of the economy, and making a positive contribution to the UK’s balance of payments,” McCoy writes.
“Britain’s status as a center of excellence for the audiovisual sector in particular is no accident: It results from the hard work and genius of our creative workforce, complemented by the support of governments that have guided their policies toward enabling continued excellence and growth.”
McCoy goes on to put anti-piracy initiatives at the very top of his wishlist – and Hancock’s to-do list.
“A joined-up strategy to curb proliferation of illegal, often age-inappropriate and malware-laden content online must include addressing the websites, environments and apps that host and facilitate piracy,” McCoy says.
“In addition to hurting one of Britain’s most important industries, they are overwhelmingly likely to harm children and adult consumers through nasty ads, links to adult content with no age verification, scams, fraud and other unpleasantness.”
That McCoy begins with the “piracy is dangerous” approach is definitely not a surprise. This Hollywood and wider video industry strategy is now an open secret. However, it feels a little off that the UK is being asked to further tackle pirate sites.
Through earlier actions, facilitated by the UK legal system and largely sympathetic judges, many thousands of URLs and domains linking to pirate sites, mirrors and proxies, are impossible to access directly through the UK’s major ISPs. Although a few slip through the net, directly accessing the majority of pirate sites in the UK is now impossible.
That’s already a considerable overseas anti-piracy position for the MPA who, as the “international voice” of the Motion Picture Association of America (MPAA), represents American corporations including Disney, Paramount, Sony Pictures, 20th Century Fox, Universal, and Warner Bros.
There’s no comparable blocking system for these companies to use in the United States and rightsholders in the UK can even have extra sites blocked without going back to court for permission. In summary, these US companies arguably get a better anti-piracy deal in the UK than they do at home in the United States.
In his next point, McCoy references last year’s deal – which was reached following considerable pressure from the UK government – between rightsholders and search engines including Google and Bing to demote ‘pirate’ results.
“Building on last year’s voluntary deal with search engines, the Government should stay at the cutting edge of ensuring that everyone in the ecosystem – including search engines, platforms and social media companies – takes a fair share of responsibility,” McCoy says.
While this progress is clearly appreciated by the MPA/MPAA, it’s difficult to ignore that the voluntary arrangement to demote infringing content is somewhat special if not entirely unique. There is definitely nothing comparable in the United States so keeping up the pressure on the UK Government feels a little like getting the good kid in class to behave, while his rowdy peers nearer the chalkboard get ignored.
The same is true for McCoy’s call for the UK to “banish dodgy streaming devices”.
“Illegal streaming devices loaded with piracy apps and malware – not to mention the occasional electrical failure – are proliferating across the UK, to the detriment of consumers and industry,” he writes.
“The sector is still waiting for the Intellectual Property Office to publish the report on its Call for Views on this subject. This will be one of several opportunities, along with the promised Digital Charter, to make clear that these devices and the apps and content they supply are unacceptable, dangerous to consumers, and harmful to the creative industry.”
Again, prompting the UK to stay on top of this game doesn’t feel entirely warranted.
With dozens of actions over the past few years, the Police Intellectual Property Crime Unit and the Federation Against Copyright Theft (which Hollywood ironically dumped in 2016) have done more to tackle the pirate set-top box problem than any group on the other side of the Atlantic.
Admittedly the MPAA is now trying to catch up, with recent prosecutions of two ‘pirate’ box vendors (1,2), but largely the work by the studios on their home turf has been outpaced by that of their counterparts in the UK.
Maybe Hancock will mention that to Hollywood at some point in the future.
When people download content online using BitTorrent, they also distribute that content to others. This unlawful distribution attracts negative attention from rightsholders, who have sued hundreds of thousands of individuals worldwide.
Streaming is considered a much safer method to obtain content, since it’s difficult for content owners to track downloaders. However, the same can’t be said about those who stream content to the web for the benefit of others, as an interesting case in the UK has just revealed.
It involves 34-year-old Craig Foster who received several scary letters from lawyers representing broadcaster Sky. The company alleged that during last April’s bout between Anthony Joshua’s and Wladimir Klitschko, Foster live-streamed the multiple world title fight on Facebook Live.
Financially, this was a major problem for Sky, law firm Foot Anstey LLP told Foster. According to their calculations, at least 4,250 people watched the stream without paying Sky Box Office the going rate of £19.95 each. Tapped into Sky’s computers, the broadcaster concluded that Foster owed the company £85,000.
But according to The Mirror, father-of-one Foster wasn’t actually to blame.
“I’d paid for the boxing, it wasn’t like I was making any money. My iPad was signed in to my Facebook account and my friend just started streaming the fight. I didn’t think anything of it, then a few days later they cut my subscription,” Foster said.
“They’re demanding the names and addresses of all my mates who were round that night but I’m not going to give them up. I said I’d take the rap.”
While Foster says he won’t turn in the culprit, there’s no doubt that the fight stream originated from his Sky account. The TV giant embeds watermarks in its broadcasts which enables it to see who paid for an event, should a copy of one turn up on the Internet.
As we reported last year following the Mayweather v McGregor super-fight, the codes are clearly visible with the naked eye.
Sky watermarks, as seen in the Mayweather v McGregor fight
While taking the rap for someone else’s infringing behavior isn’t something anyone should do lightly, it appears that Scarborough-based Foster did just that.
According to Neil Parkes, who specializes in media litigation, content protection and contentious IP at Foot Anstey, Foster accepted responsibility and agreed to pay a settlement.
“Mr Foster broke the law,” Parkes said. “He has acknowledged his wrongdoing, apologised and signed a legally binding agreement to pay a sum of £5,000 to Sky.”
The Mirror, however, has Foster backtracking. He says he wasn’t given enough time to consider his position and now wants to fight Sky in court.
“It’s heavy-handed. I’ve apologized and told them we were drunk,” Foster said.
“I know streaming the fight was wrong. I didn’t stop my friend but I was watching the boxing. I’m just a bloke who had a few drinks with his friends.”
Unless he can find a law firm willing to fight his corner at a hugely cut-down rate, Foster will find this kind of legal fisticuffs to be a massively expensive proposition, one in which he will start out as the clear underdog.
Not only was Foster’s Sky account the originating source, both his iPad and his Facebook account were used to stream the fight. On top of what appears to be a signed confession, he also promised not to do anything else like this in future. Furthermore, he even agreed to issue an apology that Sky can use in future anti-piracy messages.
Of course, Foster might indeed be a noble gentleman but he should be aware that as a civil matter, this fight would be decided on the balance of probabilities, not beyond reasonable doubt. If the judge decides 51% in Sky’s favor, he suffers a knockout along with a huge financial headache.
No one wants a £5,000 bill but that’s a drop in the ocean compared to the cost implications of losing this case.
For more than ten years TorrentFreak has documented a continuous stream of piracy battles so it’s natural that, every now and then, we pause to consider when this war might stop. The answer is always “no time soon” and certainly not in 2018.
When swapping files over the Internet first began it wasn’t a particularly widespread activity. A reasonable amount of content was available, but it was relatively inaccessible. Then peer-to-peer came along and it sparked a revolution.
From the beginning, copyright holders felt that the law would answer their problems, whether that was by suing Napster, Kazaa, or even end users. Some industry players genuinely believed this strategy was just a few steps away from achieving its goals. Just a little bit more pressure and all would be under control.
Then, when the landmark MGM Studios v. Grokster decision was handed down in the studios’ favor during 2005, the excitement online was palpable. As copyright holders rejoiced in this body blow for the pirating masses, file-sharing communities literally shook under the weight of the ruling. For a day, maybe two.
For the majority of file-sharers, the ruling meant absolutely nothing. So what if some company could be held responsible for other people’s infringements? Another will come along, outside of the US if need be, people said. They were right not to be concerned – that’s exactly what happened.
Ever since, this cycle has continued. Eager to stem the tide of content being shared without their permission, rightsholders have advocated stronger anti-piracy enforcement and lobbied for more restrictive interpretations of copyright law. Thus far, however, literally nothing has provided a solution.
One would have thought that given the military-style raid on Kim Dotcom’s Megaupload, a huge void would’ve appeared in the sharing landscape. Instead, the file-locker business took itself apart and reinvented itself in jurisdictions outside the United States. Meanwhile, the BitTorrent scene continued in the background, somewhat obliviously.
With the SOPA debacle still fresh in relatively recent memory, copyright holders are still doggedly pursuing their aims. Site-blocking is rampant, advertisers are being pressured into compliance, and ISPs like Cox Communications now find themselves responsible for the infringements of their users. But has any of this caused any fatal damage to the sharing landscape? Not really.
Instead, we’re seeing a rise in the use of streaming sites, each far more accessible to the newcomer than their predecessors and vastly more difficult for copyright holders to police.
Systems built into Kodi are transforming these platforms into a plug-and-play piracy playground, one in which sites skirt US law and users can consume both at will and in complete privacy. Meanwhile, commercial and unauthorized IPTV offerings are gathering momentum, even as rightsholders try to pull them back.
Faced with problems like these we are now seeing calls for even tougher legislation. While groups like the RIAA dream of filtering the Internet, over in the UK a 2017 consultation had copyright holders excited that end users could be criminalized for simply consuming infringing content, let alone distributing it.
While the introduction of both or either of these measures would cause uproar (and rightly so), history tells us that each would fail in its stated aim of stopping piracy. With that eventuality all but guaranteed, calls for even tougher legislation are being readied for later down the line.
In short, there is no law that can stop piracy and therefore no law that will stop the entertainment industries coming back for harsher measures, pursuing the dream. This much we’ve established from close to two decades of litigation and little to no progress.
But really, is anyone genuinely surprised that they’re still taking this route? Draconian efforts to maintain control over the distribution of content predate the file-sharing wars by a couple of hundred years, at the very least. Why would rightsholders stop now, when the prize is even more valuable?
No one wants a minefield of copyright law. No one wants a restricted Internet. No one wants extended liability for innovators, service providers, or the public. But this is what we’ll get if this problem isn’t solved soon. Something drastic needs to happen, but who will be brave enough to admit it, let alone do something about it?
During a discussion about piracy last year on the BBC, the interviewer challenged a caller who freely admitted to pirating sports content online. The caller’s response was clear:
For far too long, broadcasters and rightsholders have abused their monopoly position, charging ever-increasing amounts for popular content, even while making billions. Piracy is a natural response to that, and effectively a chance for the little guy to get back some control, he argued.
Exactly the same happened in the music market during the late 1990s and 2000s. In response to artificial restriction of the market and the unrealistic hiking of prices, people turned to peer-to-peer networks for their fix. Thanks to this pressure but after years of turmoil, services like Spotify emerged, converting millions of former pirates in the process. Netflix, it appears, is attempting to do the same thing with video.
When people feel that they aren’t getting ripped off and that they have no further use for sub-standard piracy services in the face of stunning legal alternatives, things will change. But be under no illusion, people won’t be bullied there.
If we end up with an Internet stifled in favor of rightsholders, one in which service providers are too scared to innovate, the next generation of consumers will never forget. This will be a major problem for two key reasons. Not only will consumers become enemies but piracy will still exist. We will have come full circle, fueled only by division and hatred.
It’s a natural response to reject monopolistic behavior and it’s a natural response, for most, to be fair when treated with fairness. Destroying freedom is far from fair and will not create a better future – for anyone.
Laws have their place, no sane person will argue against that, but when the entertainment industries are making billions yet still want more, they’ll have to decide whether this will go on forever with building resentment, or if making a bit less profit now makes more sense longer term.
When people upload original content to YouTube, there should be no problem with getting paid for that content, should it attract enough interest from the public.
Those who upload infringing content get a much less easy ride, with their uploads getting flagged for abuse, potentially putting their accounts at risk.
That’s what’s happened to Australia-based music technologist Sebastian Tomczak, who uploaded a completely non-infringing work to YouTube and now faces five separate copyright complaints.
“I teach and work in a music department at a University here in Australia. I’ve got a PhD in chiptune, and my main research interests are various intersections of music / sound / tech e.g. arduino programming and DIY stuff, modular synthesis, digital production, sound design for games, etc,” Tomczak informs TF.
“I started blogging about music around a decade ago or so, mainly to write about stuff I was interested in, researching or doing. At the time this would have been physical interaction, music controller design, sound design and composition involving computers.”
One of Tomczak videos was a masterpiece entitled “10 Hours of Low Level White Noise” which features – wait for it – ten hours of low-level white noise.
“The white noise video was part of a number of videos I put online at the time. I was interested in listening to continuous sounds of various types, and how our perception of these kinds of sounds and our attention changes over longer periods – e.g. distracted, focused, sleeping, waking, working etc,” Tomczak says.
White noise is the sound created when all different frequencies are combined together into a kind of audio mush that’s a little baffling and yet soothing in the right circumstances. Some people use it to fall asleep a little easier, others to distract their attention away from irritating sounds in the environment, like an aircon system or fan, for example.
The white noise made by Tomczak and presented in his video was all his own work.
“I ‘created’ and uploaded the video in question. The video was created by generating a noise waveform of 10 hours length using the freeware software Audacity and the built-in noise generator. The resulting 10-hour audio file was then imported into ScreenFlow, where the text was added and then rendered as one 10-hour video file,” he explains.
This morning, however, Tomczak received a complaint from YouTube after a copyright holder claimed that it had the rights to his composition. When he checked his YouTube account, yet more complaints greeted him. In fact, since July 2015, when the video was first uploaded, a total of five copyright complaints had been filed against Tomczak’s composition.
As seen from the image below, posted by Tomczak to his Twitter account, the five complaints came from four copyright holders, with one feeling the need to file two separate complaints while citing two different works.
The complaints against Tomczak’s white noise
One company involved – Catapult Distribution – say that Tomczak’s composition infringes on the copyrights of “White Noise Sleep Therapy”, a client selling the title “Majestic Ocean Waves”. It also manages to do the same for the company’s “Soothing Baby Sleep” title. The other complaints come from Merlin Symphonic Distribution and Dig Dis for similar works .
Under normal circumstances, Tomczak’s account could have been disabled by YouTube for so many infringements but in all cases the copyright holders chose to monetize the musician’s ‘infringement’ instead, via the site’s ContentID system. In other words, after creating the video himself with his own efforts, copyright holders are now taking all the revenue. It’s a situation that Tomczak will now dispute with YouTube.
“I’ve had quite a few copyright claims against me, usually based on cases where I’ve made long mixes of work, or longer pieces. Usually I don’t take them too seriously,” he explains.
“In any of the cases where I think a given claim would be an issue, I would dispute it by saying I could either prove that I have made the work, have the original materials that generated the work, or could show enough of the components included in the work to prove originality. This has always been successful for me and I hope it will be in this case as well.”
Sadly, this isn’t the only problem Tomczak’s had with YouTube’s copyright complaints system. A while back the musician was asked to take part in a video for his workplace but things didn’t go well.
“I was asked to participate in a video for my workplace and the production team asked if they could use my music and I said ‘no problem’. A month later, the video was uploaded to one of our work channels, and then YouTube generated a copyright claim against me for my own music from the work channel,” he reveals.
Tomczak says that to him, automated copyright claims are largely an annoyance and if he was making enough money from YouTube, the system would be detrimental in the long run. He feels it’s something that YouTube should adjust, to ensure that false claims aren’t filed against uploads like his.
For as long as piracy has been mainstream, people have tried to find ways to monetize the system. While many have had good intentions, only models focusing on the negative (copyright trolling, for example) have enjoyed any level of success.
Blockchain startup White Rabbit is hoping to buck that trend but it’s not going to be easy. Then again, nothing worthwhile is, so what do they have to offer?
White Rabbit begins with the assumption that while they love their pirate sites, a many as 60% of pirates would happily reward creators if it was made easy enough. The startup deals with this by inviting pirates to carry on using the kinds of unauthorized sites and services they’re using already, but with a twist.
By installing the White Rabbit browser plug-in, the company will be able to see what content the user is accessing. It will then attempt to match that download to deals it’s made with the companies behind those movies or TV shows. They’ll then get paid a set amount.
“White Rabbit is a content ecosystem accessed through a plugin that recognizes the film and series you stream. The streaming sites are P2P or open server, meaning users can choose where they want to stream,” White Rabbit CEO Alan R. Milligan informs TF.
“We already have a library of films that have won and been nominated for Oscars, Cannes, Berlin and Venice film festival best film prizes – but will continue adding more films and series as we near launch.”
It’s envisioned that this mechanism will prove popular with reluctant pirates since instead of paying Netflix, Amazon, and dozens of other services, users can pay for content through one channel. And, since White Rabbit uses blockchain technology, rights holders can be ensured complete financial transparency, with user payments going straight to them without delay, cutting out the middleman.
“Users are anonymous but can offer filmmakers, artists or other content right holders (investors, distributors, sales agents) our tokens (WRT) as good faith that they are willing to pay for the content. Should the rights holders accept, we enter into a contract with the rights holder that allows them to receive revenue – and accept P2P streaming. We find, and research shows, that most people that are forced to piracy [do so] because they are just not able to access content,” Milligan adds.
White Rabbit’s CEO, who is a filmmaker himself, also sees opportunities to bring fans and filmmakers closer together. Once users have paid for content, they continue to get access via something called the Rabbit Hole, an interface which provides extras that are normally found on a DVD, such as deleted scenes etc.
The team behind White Rabbit describe themselves as “responsible rebels” hoping to spark a revolution. While that’s clearly the goal, by any measure there is a mountain to climb, not least on the content front.
When TorrentFreak first started speaking with the startup in October last year, we were told they were “closing in on 500 films” with contracts, although they wouldn’t elaborate on who might be on board. Nevertheless, that is quite a lot of movies, especially given the mainstream studios’ hatred of pirate sites and anything they might be involved in.
However, subsequent discussion suggests that those with more niche tastes might be White Rabbit’s initial target audience.
“I believe timing is of big relevance and right now a lot of producers are scared of where they´re going to go now that Netflix is enforcing its 50/50 policy. There are also so many amazing films out there that get no or little digital distribution at all,” Milligan says.
“As a Norwegian film producer there is little chance of the film being streamed in my home country – even if we won awards in Cannes and Venice. My latest film Valley of Shadows got US digital distribution, but in Norway – nada.
“My colleagues around the world are suffering the same way, not to mention all the fans who cant watch local films and series. So the indie part of the industry – which is most of us (and still representing 20-30% of cinema sales) – are very ready for change.”
But while indie producers could benefit nicely from White Rabbit, Milligan highlights problems that the big studios have, and suggests that they might like to see the startup succeed too.
“The studios will likely want to see our business model work – but they also have a problem with Netflix which has become a studio. So they´re competitors now, but Netflix has a 100M subscriber advantage. Will they all break out and create each their streaming site for their content only? That would be terrible for fans,” he notes.
That would indeed be a huge problem and it’s an issue we’ve raised here on TF on several occasions. However, if White Rabbit is to succeed, it needs to overcome significant hurdles. We raised just a handful of these with its CEO. First up, Partner Streaming Sites (PSS).
PSS sites appear to be pirate sites that will partner with White Rabbit, so the latter can tap into the formers’ userbases. When White Rabbit users stream ‘pirate’ content from a PSS, that content will be monetized, with the creator getting paid quickly and transparently. At that point, it seems, the content will become non-infringing.
But while that sounds intriguing in theory, plenty of questions remain. White Rabbit says it will share “up to $1M” from its token sale “with the most innovative, brand conscious, film and series loving streaming sites either already out there, planned or about to launch.”
The start-up says the best projects could get $100,000 each but, since its goal is to convert pirates, that necessarily means doing business with pirate sites.
So we asked; how will it be possible to do business with people that are regularly described as criminals? How will it then become possible to secure deals with filmmakers that will undoubtedly come under huge pressure from industry players not to participate in the White Rabbit scheme?
“What we are trying to do is to change digital distribution to everyone´s benefit. We have no interest in financing illegal content, we are interested in spurring innovation in streaming, access for fans and due payment for the rights holders,” Milligan explains.
“That´s what PSS can help us achieve using the WRT (White Rabbit Token) – that helps us find out who wants to be part of this model. No revenue exchanges hands until rights holders accept the token. What is important for rights holders is that we generate more revenue for them than current business models, and we haven´t even included the Rabbit Hole revenue yet.”
So what happens if a White Rabbit user tries to stream something that isn’t part of the program? According to Milligan, PSS sites must remove the content and let White Rabbit users know they must get the content legally elsewhere.
Clearly, the vast majority of pirate site users aren’t White Rabbit users now, nor will they be so in the future, so the removal of content is massively counter-productive for pirate sites. Indeed, it’s this reluctance to take down infringing content that causes them most of their problems.
So, hypothetically, what happens when the operators of streaming site X (that previously partnered with White Rabbit) get arrested and their site shut down for distributing Hollywood content that isn’t part of the program?
“PSS´s would never distribute illegal content, we are offering an opportunity to monetize. We are allowing a platform to those that see monetized P2P as beneficial to their income stream,” Milligan says.
“Hollywood is tricky though, I admit. The proof is in the pudding, so if we have to prove the value through indie and arthouse films first that´s OK. That is still 30% of the multi-billion dollar film market, so we are OK to start with that.”
The final issue is the price and where revenue goes. White Rabbit envisions a user paying $2 for film and $1 for a TV show, although producers are free to set their own price. That means 11 TV shows or five movies per month, given the Netflix model/budget of roughly $11.00 for the same period.
Revenue generated would then be split, with 75% going to the rightsholders, 15% to White Rabbit, and 10% to PSS sites. There’s also a provision for non-PSS sites to be a part of the program, but they would only get 5%, with the remaining 5% going to White Rabbit.
With an incredibly ambitious project like this, it’s easy to find reasons why it might not succeed or even fail to get off the ground. But the team behind the operation have lots of experience in relevant fields and from what we’ve seen are putting considerable effort into getting things moving, as their white paper (pdf) explains.
Currently, White Rabbit is seeking conversation with prospective Partner Streaming Sites, who will provide the content on which White Rabbit will survive. It will certainly be interesting to see which sites put themselves forward for consideration.
This is one of those projects that raises a dizzying volume of questions, with each living up to their billing as part of the Rabbit Hole. The big question is whether the Rabbit Hole will eventually lead to Wonderland or will render everyone who ventures inside feeling surreal and disorientated.
In July 2015, Portugal’s Ministry of Culture announced the signing of a memorandum between its own General Inspection of Cultural Activities (IGAC), the Portuguese Association of Telecommunication Operators (APRITEL), various rightsholder groups, the body responsible for administering Portugal’s .PT domain, and representatives from the advertising industry.
The memorandum laid out a new mechanism for blocking so-called ‘pirate’ sites. In common with similar frameworks elsewhere, the process can be triggered by a complaint from a rightsholder association. Local anti-piracy group MAPINET then collates evidence that a site is engaged in the unlawful distribution of copyright works and has failed to cease its activities.
The system was quickly utilized by rightsholders seeking to block access to their content. Within six months, 330 sites had been blocked by ISPs, but that was only the beginning. In the months and years that followed, hundreds more sites were rendered inaccessible but in common with similar programs elsewhere, no official list of blocked sites was made available. People are keeping watch, however.
SitesBloqueados (Blocked Sites) is a web portal run by Revolução dos Bytes (Bytes’ Revolution), a group of like-minded anti-censorship activists in Portugal. Created a few months after blocking began in the region, their comprehensive database now contains almost 1,400 domains, the majority of which have been blocked on copyright grounds.
“SitesBloqueados was mainly created because, although the Memorandum of Understanding contained certain requirements to make a site eligible to be blocked – such as 500 items [or links] to copyright content or one third of the site containing copyrighted material – there was no official way to validate that data and make sure that these ‘rules’ are being respected,” team member Henrique Mouta informs TF.
The manner in which the list is maintained is quite unique. As mentioned earlier, there are no official sources listing blocked domains so the people behind SitesBloqueados had to get creative. Alongside this project they also run Ahoy!, a Chrome and Firefox extension that allows users to circumvent censorship in Portugal and it’s through that tool they gather information.
“Ahoy! basically bypasses any traffic to a blocked site through our own proxies, allowing the users to navigate in a free, uncensored internet,” Henrique explains.
As this extension works on a whitelist basis, we had to create a mechanism to automatically detect and whitelist sites that have been blocked, so if a user accesses a blocked site that is not on our list yet, we get a notification so we can review the site and add it to the list. That is the list that is also powering SitesBloqueados.pt.”
When the voluntary agreement was first announced, local ISPs came under intense criticism for agreeing to work with copyright holders without need for a court process. However, Henrique says they are actually in a precarious position.
“We usually see the ISPs as the bad guys, blocking sites, throttling our internet and, more recently, going against the Internet Neutrality. But, in this particular case, all the major ISPs are forced to block any sites that have been requested in 15 days, or they might pay fines for every single day after the deadline.
“MAPiNET (MOVIMENTO CÍVICOANTI PIRATARIA NA INTERNET) is the organization, alongside with IGAC (Inspecção Geral Das Actividades Culturais), that compiles the lists of sites and sends them to the ISP. It’s usually two lists per month. Of course, I’m not excusing the ISPs, as they should stand up against censorship. But we all know that’s asking too much of them,” Henrique adds.
Interestingly, the first site blockade in Portugal wasn’t actioned on copyright grounds. It was, in fact, targeted at Uber.com.
“This happened in June 2015, after a court order to suspend all Uber activity in Portugal. This opened a huge precedent, with all these anti-piracy organizations seeing how easy is to block a site, technically speaking.
“So, at the end of August of that same year, the [anti-piracy] Memorandum was signed by all the parties and, since then, both MAPiNET and IGAC have the power to request any site block, without any court order, without any legal order,” Henrique notes.
This lit a fire under the team and two and half years later, Ahoy! is now being used by 100k people to unblock almost 1,400 sites, while feeding back information on newly blocked domains. These are then added to the blocklist database and considered for unblocking methods via the addon.
Currently, around 50 new domains are blocked every month in Portugal and Henrique and the team are determined to document every one of them. They believe that by keeping an eye on things publicly, it lets the anti-piracy groups know they are being watched and cannot act with impunity. Around 90% of all blocked domains are restricted on copyright grounds but some also fall foul of new gambling laws that forbid unlicensed sites.
From the beginning, the big question has surrounded potential abuse. So, given the lack of a court process, have any players attempted to game the system?
“So far, we haven’t seen any signs of intentional abuse. There have been a few problems with sites being wrongly blocked. The most popular case is Carbon Games site that was blocked nearly two years ago, and it was mistaken for a different site, a Gambling site, named Carbon Gaming,” Henrique says.
“A few months later, we detected another case. A Spanish journalist had a website where he was posting videoclips of the latest releases. All of these releases were originally on YouTube, uploaded by the respective owners, however that was not enough to keep the site alive.”
Under pressure from Revolução dos Bytes this block was reversed but it’s not the only instance of errors. Non-existent sites have been blocked as have sites publishing headlines and linking to the respective online newspapers.
With blocking continuing at a steady pace, dozens of new domains are restricted every month. But Henrique and the team believe it won’t achieve anything positive and only serves to harm the Internet and democracy.
“Blocking sites to prevent piracy is the same as being on a sinking submarine, trying to patch every leaking hull hole with duct tape. If they want to fight piracy, they should try to understand, in the first place, why it happens and what they can do to change it.
“It’s well known that having cheap and quality services like Netflix and Spotify helped Internet piracy levels drop to record lows, DRM issues aside, of course. And the worst of it is the timing: these organizations see the decreasing levels of piracy as a signal that their stupid censorship is actually working. I’m really afraid that this is now an unstoppable snowball. The Internet in Portugal has seen much better days,” Henrique concludes.
But while he’s pessimistic over current developments, it appears that the Ahoy! movement is only set to grow. The team say they want to bring the browser-based system to other countries that are suffering from similar blockades and that suggestions from the public are welcome.
The major movie studios are doing everything in their power to stop the public from copying films.
While nearly every movie and TV-show leaks on the Internet, these companies still see DRM as a vital tool to prevent piracy from spiraling out of control.
Technically speaking it’s not hard to rip a DVD or Blu-Ray disc nowadays, and the same is true for ripping content from Netflix or YouTube. However, people who do this are breaking the law.
The DMCA’s anti-circumvention provisions specifically forbid it. There are some exemptions, for educational use for example, and to allow for other types of fair use, but the line between legal and illegal is not always clear.
Interestingly, filmmakers are not happy with the current law either. They often want to use small pieces of other videos in their films, but under the current exemptions, this is only permitted for documentaries.
The International Documentary Association, Kartemquin Films, Independent Filmmaker Project, University of Film and Video Association and several other organizations hope this will change.
In a comment to the Copyright Office, which is currently considering updates to the exemptions, they argue that all filmmakers should be allowed by break DRM and rip Blu-Rays.
According to the filmmakers, the documentary genre is vaguely defined. This leads to a lot of confusion whether or not the exemptions apply. They, therefore, suggest to apply it to all filmmakers, instead of criminalizing those who don’t identify themselves as documentarians.
“Since 2010, exemptions applicable to documentary filmmaking have been in effect. This exemption has helped many filmmakers, and there has been neither evidence nor any allegation that this exemption has harmed rightsholders in any way.
“There is no reason this would change if the ‘documentary’ limitation were removed. All filmmakers regularly need access to footage on DVDs and without an exemption to DVDs, many non-infringing uses simply cannot be made,” the groups add.
The submission includes letters from several filmmakers who explain why an exemption would be crucial to them.
Filmmakers Steve Boettcher and Mike Trinklein explain that they refrained from making a film how they wanted it to be, fearing legal trouble. Their film included a lot of drama elements and was not a typical documentary.
“Given the significant amount of drama in the film [we are working on], we decided early on that our storytelling toolbox could not include fair use of materials from DVD or Blu-ray, because the exemption did not cover accessing that material for use in a drama,” they write
“Already, we were hindered in our ability to tell these stories. So, there is already a chilling effect in that a drama-heavy documentary might be seen as a drama outright, and thus under a different set of rules.”
Another filmmaker, who wants to remain anonymous, plans on making a hybrid documentary/narrative feature about a famous film duo. Without ripping the clips he needs, this movie is never going to be made.
“I am unsure of whether my project would fall under the exemption because it is a combination of documentary and narrative, and my fear of a lawsuit once my project is publicly viewed and distributed stops me from ripping from these sources.”
These are just two of many examples where filmmakers show that they need to break DRM and rip content to make the work they want.
The MPAA and others have previously argued that these changes are not required. Instead, they pointed out that people could point their cameras or phones at the screen to record something, or use screen capture software.
However, these are not viable alternatives according to the filmmakers, as the quality is inferior. They, therefore, call on the Copyright Office to expand the exemption to cover all films and filmmakers.
Online piracy is a global issue. Pirate sites and services tend to operate in multiple jurisdictions and are purposefully set up to evade law enforcement.
This makes it hard for police from one country to effectively crack down on a site in another. International cooperation is often required, and the US Government is one of the leaders on this front.
The US Department of Justice (DoJ) has quite a bit of experience in tracking down pirates and they are actively sharing this knowledge with countries that can use some help. This goes far beyond the occasional seminar.
A diplomatic cable obtained through a Freedom of Information request provides a relatively recent example of these efforts. The document gives an overview of anti-piracy training, provided and funded by the US Government, during the fall of 2015.
“On November 24 and 25, prosecutors and investigators from Romania, Moldova, Bulgaria, and Turkey participated in a two-day, US. Department of Justice (USDOJ)-sponsored training program on combatting online piracy.
“The program updated participants on legal issues, including data retention legislation, surrounding the investigation and prosecution of online piracy,” the cable adds.
According to the cable, piracy has become a very significant problem in Eastern Europe, costing rightsholders and governments millions of dollars in revenues. After the training, local law enforcement officers in these countries should be better equipped to deal with the problem.
The event was put together with help from various embassies and among the presenters were law enforcement professionals from around the world.
The Director of the DoJ’s CCIPS Cybercrime Laboratory was among the speakers. He gave training on computer forensics and participants were provided with various tools to put this to use.
“Participants were given copies of forensic tools at the conclusion of the program so that they could put to use some of what they saw demonstrated during the training,” the cable reads.
While catching pirates can be quite hard already, getting them convicted is a challenge as well. Increasingly we’ve seen criminal complaints using non-copyright claims to have site owners prosecuted.
By using money laundering and tax offenses, pirates can receive tougher penalties. This was one of the talking points during the training as well.
“Participants were encouraged to consider the use of statutes such as money laundering and tax evasion, in addition to those protecting copyrights and trademarks, since these offenses are often punished more severely than standalone intellectual property crimes.”
The cable, written by the US Embassy in Bucharest, provides a lot of detail about the two-day training session. It’s also clear on the overall objective. The US wants to increase the likelihood that pirate sites are brought to justice. Not only in the homeland, but around the globe.
“By focusing approximately forty investigators and prosecutors from four countries on how they can more effectively attack rogue sites, and by connecting rights holders and their investigators with law enforcement, the chances of pirates being caught and held accountable have increased.”
While it’s hard to link the training to any concrete successes, Romanian law enforcement did shut down the country’s leading pirate site a few months later. As with a previous case in Romania, which involved the FBI, money laundering and tax evasion allegations were expected.
While it’s not out of the ordinary for international law enforcers to work together, it’s notable how coordinated the US efforts are. Earlier this week we wrote about the US pressure on Sweden to raid The Pirate Bay. And these are not isolated incidents.
While the US Department of Justice doesn’t reveal all details of its operations, it is very open about its global efforts to protect Intellectual Property.
Around the world..
The DoJ’s Computer Crime and Intellectual Property Section (CCIPS) has relationships with law enforcement worldwide and regularly provides training to foreign officers.
A crucial part of the Department’s international enforcement activities is the Intellectual Property Law Enforcement Coordinator (IPLEC) program, which started in 2006.
Through IPLECs, the department now has Attorneys stationed in Thailand, Hong Kong, Romania, Brazil, and Nigeria. These Attorneys keep an eye on local law enforcement and provide assistance and training, to protect US copyright holders.
“Our strategically placed coordinators draw upon their subject matter expertise to help ensure that property holders’ rights are enforced across the globe, and that the American people are protected from harmful products entering the marketplace,” Attorney General John Cronan of the Criminal Division said just last Friday.
Or to end with the title of the Romanian cable: ‘Pirates beware!’
The cable cited here was made available in response to a Freedom of Information request, which was submitted by Rachael Tackett and shared with TorrentFreak. It starts at page 47 of document 2.
For many years, Dutch Internet users were allowed to download copyrighted content without reprisals, provided it was for their own personal use.
In 2014, however, the European Court of Justice ruled that the country’s “piracy levy” to compensate rightsholders was unlawful. Almost immediately, the government announced a downloading ban.
In March 2016, anti-piracy outfit BREIN followed up by obtaining permission from the Dutch Data Protection Authority to track and store the personal data of alleged BitTorrent pirates. This year, movie distributor Dutch FilmWorks (DFW) made a similar application.
The company said that it would be pursuing alleged pirates to deter future infringement but many suspected that securing cash settlements was its main aim. That was confirmed in August.
“[The letter to alleged pirates] will propose a fee. If someone does not agree [to pay], the organization can start a lawsuit,” said DFW CEO Willem Pruijsserts
“In Germany, this costs between €800 and €1,000, although we find this a bit excessive. But of course it has to be a deterrent, so it will be more than a tenner or two,” he added.
But despite the grand plans, nothing would be possible without first obtaining the necessary permission from the Data Protection Authority. This Wednesday, however, that arrived.
“DFW has given sufficient guarantees for the proper and careful processing of personal data. This means that DFW has been given a green light from the Data Protection Authority to collect personal data, such as IP addresses, from people downloading from illegal sources,” the Authority announced.
Noting that it received feedback from four entities during the six-week consultation process following the publication of its draft decision during the summer, the Data Protection Authority said that further investigations were duly carried out. All input was considered before handing down the final decision.
The Authority said it was satisfied that personal data would be handled correctly and that the information collected and stored would be encrypted and hashed to ensure integrity. Furthermore, data will not be retained for longer than is necessary.
“DFW has stated…that data from users with Dutch IP addresses who were involved in the exchange of a title owned by DFW, but in respect of which there is no intention to follow up on that within three months after receipt, will be destroyed,” the decision reads.
For any cases that are active and haven’t been discarded in the initial three-month period, DFW will be allowed to hold alleged pirates’ data for a maximum of five years, a period that matches the time a company has to file a claim under the Dutch Civil Code.
“When DFW does follow up on a file, DFW carries out further research into the identity of the users of the IP addresses. For this, it is necessary to contact the Internet service providers of the subscribers who used the IP addresses found in the BitTorrent network,” the Authority notes.
According to the decision, once DFW has a person’s details it can take any of several actions, starting with a simple warning or moving up to an amicable cash settlement. Failing that, it might choose to file a full-on court case in which the distributor seeks an injunction against the alleged pirate plus compensation and costs.
Only time will tell what strategy DFW will deploy against alleged pirates but since these schemes aren’t cheap to run, it’s likely that simple warning letters will be seriously outnumbered by demands for cash settlement.
While it seems unlikely that the Data Protection Authority will change its mind at this late stage, it’s decision remains open to appeal. Interested parties have just under six weeks to make their voices heard. Failing that, copyright trolling will hit the Netherlands in the weeks and months to come.
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