Library Genesis ( LibGen ) is one of the oldest shadow libraries on the Internet, offering free access to millions of books and academic papers people otherwise have to pay for.

The site’s origins reportedly trace back to the Soviet Union’s underground publishing culture ‘ samizdat ,’ which was used to bypass state censorship in the last century.

LibGen launched around 2008 as a digital version of the same concept. In addition to bypassing censorship, it’s widely used to circumvent the paywalls of major international publishing companies, serving as a popular ‘pirate’ site for books and academic works.

In recent years, rightsholders have made several attempts to shut the site down. Through court orders, LibGen is now blocked in several countries but taking the operation permanently offline has proven quite the challenge, not least since the identities of its operators are unknown.

In 2017, Elsevier won a court case against LibGen and Sci-Hub in a New York federal court, which awarded the publisher $15 million in damages . However, both shadow libraries remained online and continue to operate to this day.

Publishers vs. LibGen

Hoping for a better outcome, textbook publishers Cengage, Bedford, Macmillan Learning, McGraw Hill, and Pearson Education filed a similar copyright infringement lawsuit against LibGen last year. According to the plaintiffs, LibGen is responsible for “staggering” levels of copyright infringement.

Months have passed since the complaint was filed but LibGen’s anonymous operators did not respond. This prompted the textbook publishers to move ahead and request a default judgment in their favor.

According to the rightsholders, LibGen distributes at least 20,000 of their copyrighted works without permission. The site is designed to be user-friendly while remaining resilient to enforcement measures.

For example, LibGen can easily switch domain names, and relies on censorship-resistant decentralized technologies such as the InterPlanetary File System ( IPFS ), the publishers write.

By making textbooks available to students for free, rightsholders are losing revenue, which leads to lower payments for authors and devalues the market as a whole, the publishers complain.

$30 Million in Damages

With a default judgment, the textbook publishers hope to obtain an injunction that will limit LibGen’s ability to operate. The plaintiffs also request compensation for the damage suffered thus far.

The rightsholders propose maximum statutory damages of $150,000 for 200 copyrighted works, arriving at a total damages claim of $30 million. Since this amount represents just a small subset of all infringements, the request is reasonable, the publishers note.

“This damages award is a fraction of what it could be if this case were litigated and the full scope of Defendants’ infringement revealed,” the publishers note.

In addition to financial compensation, the damages award should also be sufficient to act as a deterrent to others. LibGen has a dedicated following and an eventual order should provide a clear signal to those people too.

“Defendants are among the worst offenders in a growing online piracy crisis affecting publishers. Thus, a significant damage award is needed to deter Defendants and others who are engaged in the commission and facilitation of digital piracy,” the publishers write.

Compel IPFS Gateways

Even if the court grants the damages award, collecting money from LibGen’s unidentified operators will be a challenge. For this reason, the publishers are also asking the court to issue an injunction that will compel others to stop providing services to LibGen.

The plaintiffs describe this aspect as “critical” and specifically mention IPFS in the context. IPFS files can be accessed through various means, including dedicated gateways, which are offered by external companies such as Protocol Labs, Pinata Technologies, and Cloudflare.

The first two gateway providers have disabled URLs in response to takedown requests, but Cloudflare allegedly failed to take action.

“Cloudflare did not disable the gateway URLs in Plaintiffs’ notice, prompting Plaintiffs to send additional notices in September 2023 and January 2024, on which Cloudflare still has not acted, resulting in Libgen users’ continued ability to access the infringing URLs,” the publishers write.

Broad ‘Non-party’ Injunction

If the court issues a broad injunction that applies to non-party services such as Cloudflare, the plaintiffs believe that will limit the illicit distribution of its copyrighted works.

The request isn’t limited to IPFS gateways, of course. The proposed injunction also mentions hosting services, search engines, proxy services, CDNs, donation platforms, browser extensions, social media, payment providers, and advertising services, among others.

None of these services should be allowed to “enable, facilitate, permit, assist, solicit, encourage, induce, participate with, or act in concert with” the infringement of the publishers’ copyrighted works.

Finally, the proposed injunction would also require domain registries and domain registrars to suspend and hand over all infringing domains to the textbook publishers. This applies to all existing domains, but also new ones that may pop up later.

LibGen Troubles?

Needless to say, LibGen’s ability to operate will be seriously hampered if the court agrees to issue the proposed order and injunction. It directly puts domain names at risk, especially those that are connected to U.S.-based registrars or registries.

While LibGen remains online today, the site appears to have some internal struggles. The person in charge of the site’s coding has reportedly been missing in action for a while, which resulted in broken functionality.

For example, there are various upload-related troubles, and searching the database regularly results in errors too. In addition, new torrents were not added regularly for a while.

Whether LibGen can solve all these issues is unclear, but the recent legal trouble will only make the site’s future more uncertain.

—

A copy of the publishers’ proposed order and injunction is available here (pdf) and the associated memorandum can be found here (pdf)

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

It’s not uncommon for people to wander into some corner of the overall emulation scene with a specific question: Are emulators legal?

While not necessarily true, the most common answer is: yes, emulators are completely legal but distributing the games (ROMs) is most definitely not, so don’t request them here.

In response to questions from those interested in the DIY approach, gamers are often advised to rip only the games they actually own, or only download games they intend to rip, for which they already own the original.

The endless caveats that tend to go unmentioned are even more important. Nintendo knows them all but rarely strays from its fundamental position that, as far as its games and consoles are concerned, the process is illegal.

Nintendo Targets Company Behind Switch Emulator, Yuzu

Targeting developers who reverse-engineer and decompile code, to support an open source project, for which no money needs to be paid, is one way to view the lawsuit Nintendo filed this week. At the heart of the complaint is Switch emulator software Yuzu and Tropic Haze LLC, the United States company allegedly behind the project.

Available on Windows, Linux, and Android, Yuzu claims to be the most popular open-source Switch emulator in the world. The software is completely free and readily available (caveats apply) , but the games it plays are not part of the offer (see above) .

Instead, users of Yuzu need to obtain Nintendo games from elsewhere, in most cases those pre-ripped by others and placed online for download.

In all cases, whether on physical cartridges or supplied as digital downloads, Switch games contain security measures designed to prevent copying or being run on unauthorized devices. Technological protection measures (TPM) are also present in the Switch console, which has layers of encryption to restrict access to vital cryptographic files known as ‘prod.keys’.

Circumvention and Decryption

Just as Yuzu distances itself from pirated copies of Nintendo’s games, Yuzu users must also independently obtain prod.keys, sourced from hacked Switch consoles and made available online.

After these keys are fed into Yuzu, Nintendo claims that the emulator uses them to unlawfully circumvent its technological measures, decrypting Switch game files before and during runtime. This allows copies of Switch games to be played on Windows, Linux, and Android, contrary to Nintendo’s terms and conditions and in violation of the anti-circumvention provisions of the DMCA.

“Only because Yuzu decrypts a Nintendo Switch game file dynamically during operation can the game be played in Yuzu. In other words, without Yuzu’s decryption of Nintendo’s encryption, unauthorized copies of games could not be played on PCs or Android devices,” the complaint reads.

“With Yuzu in hand, nothing stops a user from obtaining and playing unlawful copies of virtually any game made for the Nintendo Switch, all without paying a dime to Nintendo or to any of the hundreds of other game developers and publishers making and selling games for the Nintendo Switch. In effect, Yuzu turns general computing devices into tools for massive intellectual property infringement of Nintendo and others’ copyrighted works.”

Tropic Haze LLC and Yuzu Lead Dev, Bunnei

Tropic Haze LLC is described as a Rhode Island company that develops and distributes Yuzu. Nintendo says the company uses a network of paid coders/developers who maintain the software and issue updates to improve the software’s ability to replicate the gameplay experience offered by Nintendo’s official products.

These individuals are described as agents of Tropic Haze LLC and Nintendo holds the company liable for their conduct. That includes Bunnei, the alleged lead developer of Yuzu, whose conduct receives significant attention in the complaint.

Nintendo’s Laundry List of Allegations

Nintendo’s first mention of Bunnei includes a claim that the developer “publicly acknowledged most users pirate prod.keys and games online” while the Yuzu website offers instructions to users on how to “unlawfully hack their own Nintendo Switch and how to make unauthorized copies of Nintendo games and unlawfully obtain prod.keys.”

While advice doesn’t amount to circumvention, Nintendo says it can show that Bunnei and other developers used Yuzu to decrypt and play Nintendo games. That required them to obtain prod.keys from a hacked console (circumvention violation under the DMCA), and make at least one unauthorized copy of a game (copyright infringement).

Nintendo says that agents including Bunnei are “fully aware” of the use of Yuzu by others “in performing circumvention, and in facilitating piracy at a colossal scale.” Moreover, in addition to providing Yuzu and instructions to complete various tasks, the importance of decryption keys is acknowledged on the Yuzu website, along with links to various pieces of software designed to extract those keys.

Nintendo claims that decisions regarding new Yuzu features, which platforms to launch on, and which games to provide compatibility with, are made by Bunnei. Nintendo also provides a quote; when acknowledging that the Yuzu Quickstart guide can be confusing, Bunnei allegedly said, “users probably just pirate a yuzu folder with everything.”

The Quickstart guide itself also contains the following: “[t]o start playing commercial games, yuzu needs a couple of system files from a HACKABLE Nintendo Switch console in order to play them properly.”

Zelda: TotK Leak Provided Patreon Earnings Boost

The Legend of Zelda: Tears of the Kingdom was released by Nintendo on March 12, 2023, but was available to pirate online on May 1, 2023. Nintendo says 100% of the copies available were necessarily pirated copies and every user who obtained a copy did so without paying for the game.

Over one million copies of the game were downloaded and Nintendo claims that over 20% of download links referenced playing the game on an emulator, Yuzu included. Meanwhile, Yuzu’s Patreon – where early builds of Yuzu are made available to members – had a sudden increase in membership.

Nintendo claims this was a direct result of the leaked Zelda: TotK being played on Yuzu and Bunnei understood that, not least since Yuzu has a telemetry feature that relays the titles of games being played.

“Indeed, Bunnei implemented a ban on discussing Zelda: TotK emulation in Yuzu’s Discord server because so many Yuzu users were trying to seek support emulating it,” Nintendo claims.

Nintendo notes that 7,000 patrons now generate around $30,000 per month for those who develop Yuzu, with early versions accessible via Patreon generating an additional $50,000.

Nintendo’s Claims

Nintendo’s claims are comprehensive. Trafficking in circumvention technology in violation of 17 U.S.C. § 1201(a)(2)) is supported by allegations that the defendant and its agents are aware that Yuzu is designed, implemented and used to circumvent encryption, while they market Yuzu for the purpose of circumventing TPMs.

A claim of trafficking in circumvention technology in violation of 17 U.S.C. § 1201(b)(1)) , notes that Yuzu has “only limited commercially significant purpose or use” other than to circumvent protection measures.

Circumvention of technological measures in violation of 17 U.S.C. § 1201(a)(1)) relates to Bunnei and other developers circumventing Nintendo’s protection measures themselves, while additional claims under the Copyright Act relate to Bunnei and the other developers dumping Nintendo games, copying them into Yuzu, and sending them to each other.

A final count alleging contributory and inducement of infringement relate to secondary liability for Yuzu users’ alleged infringements. Overall, the complaint amounts to a comprehensive sweep against almost everything that the modern emulation scene relies on, without directly tearing out the beating heart of emulation itself. If successful, the truck loads of banana peels left behind could prove difficult for other projects to avoid, however.

Nintendo seeks significant damages and an injunction to restrain Tropic Haze LLC from infringing its rights moving forward. That raises a slightly puzzling matter evident throughout the entire complaint.

Nobody Positively Identified in the Complaint

Despite Bunnei’s alleged importance, the only defendant listed in the complaint is Tropic Haze LLC and Nintendo provides almost no information about the company, including details of ownership or control, despite claiming that its sole business is to “develop and distribute unlawful circumvention software.”

It necessarily follows that ‘Bunnei’ is not listed as a defendant, Doe or otherwise. In fact, the language used by Nintendo throughout the complaint suggests that it either has no idea of Bunnei’s true identity or may have gone to considerable lengths to give that impression.

What lies behind this, if anything, is unclear, but there’s a strong possibility that sooner or later, pressure to settle will likely enter the equation. Right now, there are no real names in the complaint, but that could be changed in an instant, at least if any are currently known.

Nintendo’s complaint can be found here (pdf)

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

The Internet Archive is widely known for its Wayback Machine, which preserves copies of the web for future generations.

These archiving efforts, which started decades ago, will become more valuable over time. The same could apply to IA’s other projects, including the digitization of old books and records.

Six years ago, the Archive began archiving the sounds of 78-rpm gramophone records, a format obsolete today. In addition to capturing their unique audio, including all ‘crackles and hisses’, this saves unique recordings for future generations before the vinyl or shellac disintegrates.

The ‘ Great 78 Project ‘ received praise from curators, historians, and music fans but not all music industry insiders were happy with it. Several record labels including Sony and UMG, sued the Internet Archive for copyright infringement in Manhattan federal court last year.

IA’s Motion to Dismiss

A few weeks ago, IA responded to these allegations with a motion to dismiss . According to the Archive, many of the claims are simply too late, as they supposedly point to infringements that occurred over three years ago. The record labels were aware of this, they allege, as the RIAA sent a cease and desist letter on their behalf but took no further action at the time.

The motion is centered around the statute of limitations but IA also stressed the importance of their archiving efforts, hinting that it would be eligible for a fair use defense.

Specifically, the motion explained that the ‘Great 78 Project’ aims to systematically archive these old records, including the hisses, crackles and pops, to preserve them for future generations.

“The specific quality of the sound, including the peculiar and distinct crackles and other imperfections that are a hallmark of this antiquated medium formed an indelible part of American culture for many decades,” the motion reads.

Record Labels Respond

The record labels responded to this motion a few days ago, letting the court know that they see no reason to dismiss any claims at this stage. The RIAA letter that IA relied on didn’t mention any dates and shouldn’t be construed as knowledge of any specific infringements, they counter.

“[T]he letter cannot demonstrate that Plaintiffs were aware, or should have been aware, that Defendants infringed any of the particular works in suit at the time the letter was sent,” their reply reads.

The labels listed a total of 2,749 musical works, which are good for a potential statutory damages award of more than $400 million. None of these claims should be dismissed at this stage, they argue, as discovery could show that they are timely.

“Later in the case, discovery will adduce the multitude of dates pivotal to the statute of limitations analysis, including: all of the dates Defendants created copies of the sound recordings at issue […] and the dates that the Defendants distributed and/or transmitted the sound recordings at issue to others.”

The Archive’s motion to dismiss is limited to the statute of limitation argument but the record labels also picked up on the “hisses and crackles” references, which they couldn’t ignore.

‘Hisses and Crackles’

The music companies are convinced that IA’s archiving of obsolete records is illegal, equating it to a massive pirate streaming library.

“Defendants have created a massive online storefront providing digital copies of thousands of these protected sound recordings to anyone to stream or download for free. The Great 78 Project is illegal,” they state.

The labels further believe that the defendants are “dreaming up baseless arguments” to justify their activity. This includes the value placed on the unique sound of old records, which the music companies label the ‘Rice Krispies’ argument.

These sounds are not a feature, but a bug, the music companies counter. They are audible imperfections, a sign of decaying physical records, which were never intended to be heard.

“When these recordings were released, they did not have all of the same hisses, crackles, and pops they have today. Many of those flaws result from the brittle discs’ many decades of age,” the labels note.

“Contrary to Defendants’ arguments, recording the hisses and crackles does not preserve how the records sounded on release. Instead, it anachronistically captures how an older format behaves after more than seventy years of aging.”

Fair Use?

Today, many people have come to appreciate these unique sounds. IA stressed that, without digitizing them, they may be soon lost forever. As such, its archiving effort should be able to rely on a fair use defense.

While the court is not yet being asked to consider the fair use aspect, the labels reject IA’s line of reasoning.

“Fair use cannot be perverted into forfeiting a sound recording’s protection under copyright law just because the recording is copied, distributed, and performed in something other than its cleanest sound. If ever there were a theory of fair use invented for litigation, this is it,” they write.

All in all, it’s clear that both parties have a very different take on the ‘Great 78 Project‘. First, the court has to decide whether any claims will be dismissed based on the statute of limitations argument. After that, we will likely see more ‘fair use’ fireworks.

The music companies also responded to a separate motion to dismiss from the Kahle-Austin Foundation. The foundation argued that there are no grounds to include it in the lawsuit, as it only helped to fund the Internet Archive, but the labels argue that as a named sponsor it knew of the infringements.

—-

A copy of the record labels’ response to IA’s motion to dismiss is available here (pdf) . The response to the Kahle-Austin Foundation can be found here (pdf)

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

Lawsuits filed in the United States targeting pirate sites usually focus on breaches of copyright law, typically direct and secondary infringement, or violations of the DMCA, depending on individual circumstances.

Allegations of copyright infringement also featured in a complaint filed at an Arizona court in 2023, which hoped to quickly shut down a popular pirate site. Somewhat unusually, however, federal trademark infringement and cybersquatting allegations also played a key role, alongside other claims including unfair competition.

Complaint Targets Kokoa TV

Plaintiff Wavve Americas Inc. (wA) describes itself as a joint partnership between SK Telecom and the top three Korean Broadcast Networks –KBS, MBC, and SBS. According to the company’s website, wA’s mission is to use its open video streaming platform Kocowa ( Ko rean Co ntent Wa ve) to generate value for its content partners while providing an exceptional user experience.

The company’s complaint filed last year targeted the unknown domain registrant of kokoatv.net, kokoa.tv, and vidground.com. All three domains were registered at Namecheap which requires registrants to consent to personal jurisdiction in Arizona when in dispute with a third party.

The complaint alleged that Kokoa TV provided access to Korean-based TV shows and movies, including those exclusively licensed to wA for distribution in the United States. The site targeted both Korean and English-speaking audiences, the complaint added, with video content sourced from platforms including vidground.com.

Trading Off Kocowa’s Goodwill (and its content)

Kokoa TV’s choice of branding was called out for its similarity to the plaintiffs’ service Kocowa, for which they hold a trademark. The aim, the complaint added, was to trade off the goodwill of Kocowa while cybersquatting a deliberately similar domain, to confuse users into believing that the defendant’s platform had links to the official service.

Once presented with official content without having to pay for any of it, users of the unlicensed service Kokoa would be deterred from using the official platform offered by the plaintiffs, the complaint added.

Kocowa holds an exclusive license to distribute around 1,100 shows in the United States, content created by the three major Korean networks. The sites operated by the defendant offered that content for free, leading to allegations of copyright infringement and contributory copyright infringement.

All three domains had their ownership hidden by a WHOIS protection service so when Namecheap refused to disable the domains or hand over the identity of the domains’ operator, Wavve Americas Inc. filed its complaint.

The company demanded a permanent injunction, an award sufficient to cover the costs of corrective advertising, an award of Kokoa’s profits, the transfer of its domain names, damages for both trademark and copyright infringement, plus attorneys’ fees and costs.

Plaintiff Prevails

Discovery directed at Namecheap revealed the same name behind all three domains – Tumi Max of Bangkok, Thailand – who was named in the plaintiff’s first amended complaint. The defendant was served September 22, 2023, but after failing to appear, the court’s entry of default was followed by a motion for default judgment.

Judge Michael T. Liburdi handed down his order on February 6, 2024. Since the defendant had accepted Namecheap’s terms and conditions, the Judge found that personal jurisdiction had been established. Since the websites were accessible in the district and likely to cause confusion there, venue was considered proper.

Since Tubi Max decided not to appear, he failed to produce rebuttal evidence related to the distribution of the plaintiff’s content. While the Judge found Kocowa a “conceptually strong mark” he noted that the complaint failed to demonstrate it was a “commercially strong” mark. However, after weighing several factors including the defendants’ absence, the broadcasters prevailed on their trademark, cybersquatting, and copyright infringement claims.

A permanent injunction followed soon after, comprehensively restraining Tubi Max from unlawful use of the plaintiff’s trademarks (image below) and any unlicensed use of its copyrighted works. It appears that the focus of the complaint was to shut the site down since the injunction notes that “wA does not seek monetary damages.”

As the above shows, Namecheap was instructed to hand over the domains to prevent any further infringement of the plaintiff’s rights. Visitors to those domains today will find themselves redirected to the plaintiff’s streaming platform where they will be able to compensate the rightful owners when consuming their copyrighted content.

In theory, at least.

The complaint and other filings cited above are available here

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

The last time developer Christopher Boomer appeared on our radar was back in July 2022 when he attempted to unmask thousands of alleged copyright infringers using the DMCA subpoena process.

As the developer behind the Weightlifting Simulator series of games, among others, Boomer has enjoyed extraordinary success in the Roblox community. Billions of plays of the developer’s games are an endorsement of his work; for some, it’s also a signal to publish similar if not identical games, to generate revenue for themselves.

Boomer’s earlier attempt at using the DMCA subpoena process, to unmask potentially thousands of targets, failed Roblox weighed in . While it was clear that the developer had at least some genuine claims, a DMCA subpoena was the wrong mechanism to obtain alleged infringers’ identities.

New Lawsuit Filed in the United States

A new lawsuit filed in a California court this week faces no such obstacles. The complaint states that Boomer is the author of the massively popular Roblox games Weight Lifting Simulator (released in 2017/18) and a game with a similar theme called Muscles Legends (2019).

Key features of the games include a play area with weights, benches, treadmills, and other sundry objects. When the player interacts with these items their in-game character becomes larger and stronger in appearance, which leads to progression in the game.

Get Muscles Simulator

Released on the Roblox platform in January 2022, Get Muscles Simulator “appears to be based on the same idea and features the same underlying mechanics as Mr. Boomer’s Weightlifting Games,” the complaint notes.

In Weight Lifting Simulator , player avatars interact with in-game objects to increase attributes, and can also battle other avatars. The same gameplay mechanics also appear in Get Muscles Simulator but the complaint alleges that copying goes well beyond that.

“[T]he infringing game blatantly copies Mr. Boomer’s protectable expression, including, inter alia, its artwork, level design, animations, design aesthetics, game pieces, user interface and the selection and coordination of game elements, colors, and shapes.”

“Indeed, the presence of these elements in Defendant’s game makes it readily apparent that it is a blatant clone of Mr. Boomer’s game. As the non-exhaustive examples [above] show, the main elements of Defendant’s Get Muscles Simulator are substantially similar to the constituent elements of Mr. Boomer’s Weightlifting Games that are original.”

DMCA Counter-Notices Should Be Taken Seriously

As previously reported , a thriving and cut-price cottage industry has sprung up in recent years promising to remove infringing content from the internet using DMCA notices. The same operations also claim that if a client’s content is taken down, they will file DMCA counter-notices to ensure content is restored.

Unfortunately, many of these DIY operations have a cavalier attitude to counter-notices and few warn of the consequences when things go wrong. As this case shows, no matter who sends a counter-notice, they should be taken seriously.

Around January 24, 2024, Boomer submitted a DMCA takedown notice to Roblox with the aim of removing Get Muscles Simulator from the platform. Three days later, around January 27, the developer of the allegedly-infringing game responded with a DMCA counter-notice to Roblox.

A DMCA counter-notice allows those targeted by a DMCA takedown notice to challenge its validity and ask for the removed content to be restored. However, this also triggers a 14-day period in which the original complainant has an opportunity to sue to prevent restoration.

If no lawsuit is filed, the content should be restored between day 10 and day 14. In this case, Boomer sued.

Under Penalty of Perjury, Don’t Provide False Information

Counter-notices must contain an address where the sender can be reached and here, the counter-notice sender provided an address in Montana. According to Boomer’s complaint, that statement was false. In a second counter-notice, submitted around January 31, the developer of Get Muscles Simulator provided an address in California.

Whether that address is accurate is unclear, but other things also need to be taken into account.

Counter-notices require the sender to state, under penalty of perjury, that they have a good faith belief that their content should not have been taken down. In this case, Boomer’s lawsuit makes his position clear; Get Muscles Simulator is a blatant copy of his copyrighted game. The defendant will have to satisfy the court that simply isn’t true.

When submitting a counter-notice, senders are required to consent to the jurisdiction of a federal court in the district where they live. In this case, Boomer’s complaint states that there are no jurisdiction issues to consider because the defendant consented in writing to the jurisdiction of the court in the counter-notice submitted to Roblox.

Claim for Damages

The complaint notes that Get Muscles Simulator copies substantial original elements from Boomer’s game. It further alleges that the game’s developer, identified as Alexander Koshkin, is a deliberate and willful infringer, who generated unjust profits, gains, and advantages by competing against Boomer’s game hoping to “poach the market” for his weightlifting games.

Boomer requests a preliminary and/or permanent injunction to prevent further infringement, an award for damages, costs and attorney’s fees, interest, and a trial by jury.

The complaint is available here (pdf)

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

At the end of 2020, the operator of one of the largest YouTube rippers took the unprecedented step of taking the music industry to court .

Yout.com’s Johnathan Nader had grown tired of the bombardment of DMCA takedown requests and allegedly defamatory claims. In response, he sued the RIAA, asking the federal court in Connecticut to declare his service non-infringing.

The RIAA and others were asking Google to remove so-called YouTube-rippers from search results. The music industry group believes that these sites should not be allowed to operate and filed a motion to dismiss Yout’s lawsuit.

RIAA Wins, Yout Appeals

At the end of 2022, the district court handed a win to the RIAA and dismissed the matter at an early stage. Judge Stefan Underhill concluded that Yout had failed to show that it doesn’t circumvent YouTube’s technological protection measures. As such, it could be breaking the law. That wasn’t the end though.

Yout operator Johnathan Nader opted to appeal at the Court of Appeals for the Second Circuit, asking it to reverse the lower court’s decision. The stream-ripper’s arguments are partly supported by amicus briefs from GitHub and the EFF , both of which joined the case.

On the other side of the aisle, the RIAA dug in its heels. The music group saw no reason to doubt the lower court’s position and, in its response to the appeal, found the Copyright Alliance at its side .

Appeals Court Hearing

On the surface, this case largely revolves around a seemingly simple question. The problem, however, is that both parties have a completely different answer.

– Does YouTube employ a technological measure that effectively controls access to copyrighted works?

This question brings up all sorts of semantic challenges. What is a measure and when is it technological ? What does access mean in this context and under which conditions is it controlled ? And if there is such a measure, does Yout.com circumvent it?

A few days ago Yout and the RIAA had the chance to explain their reasoning to the Court of Appeals. The hearing was presided over by Judge Carney, Judge Leval, and Judge Sullivan, who critically questioned both attorneys on their views.

First up was Evan Fray Witzer, who represents Yout LLC. The attorney explained that this case brings up several novel questions, relating to three distinct provisions of the DMCA’s section 1201. At the same time, however, it is crucial to have a full factual record, which is currently missing.

The lower court dismissed Yout’s case at the rule 12 stage before all the factual evidence was gathered. No witnesses were heard and it’s not even clear if YouTube intentionally implemented a ‘measure’ to prevent users from downloading videos.

“There is a question as to what YouTube intended with these measures. We don’t know because YouTube isn’t here. YouTube has not come in as an amicus. And we have not had the opportunity to question YouTube about that,” Witzer said.

Yout’s attorney suggests that it’s possible that YouTube never implemented any technology specifically to prevent people from grabbing video files. It might have, but in that case, it is still easy to circumvent, even without specialized tools such as Yout.

Where’s YouTube?

Judge Leval responded by saying that preventing downloads is of great commercial significance to YouTube, as it generates its revenue from advertising. Yout’s attorney agreed but had his response ready.

“I have two responses to that. The first is; one would expect if that was YouTube’s concern, that you would have an amicus brief from YouTube here, and you don’t. And I think that that is significant and telling.

“The second, though, is that is the same concern, Your Honor, that every television broadcast had when the VCR came out. If you can simply record this, you can show it at your movie night. You can show it as many times as you want.”

The VCR comparison was brought up a few times but not as often as the role of YouTube in this lawsuit. The case essentially centers around its purported protection measures, without any direct input from the company itself.

When Judge Carney asked what in particular would be developed on a fuller record, if this case was sent back to the lower court, Yout’s attorney said that YouTube could and should be heard.

“I think one thing that would be developed on a fuller record, Your Honor, is what precisely is the technological measure employed by YouTube and does it, is it designed to prevent access? Is it designed to prevent copying? Or does it have some other use that YouTube is putting to it?”

The attorney said that they would need to subpoena YouTube as a third party. That should clarify what their technology and methods are and how this relates to YouTube’s business.

“I’ll simply conclude by saying this is the type of case that calls out for expert witnesses,” Witzer said, noting that the EFF and GitHub had already argued in their favor.

Court Questions RIAA

The hearing then continued with RIAA attorney Rose Ehler, who started by pointing out that Yout allows the public to download audio and video files. This includes copies of music videos that were only intended to be streamed through YouTube.

This introduction triggered a quick tête-à-tête with Judge Sullivan, who tried to get to the bottom of RIAA’s reasoning.

Judge: But I could do that without Yout, right?

RIAA: There are instructions for how one could do it without Yout. But what Yout does is enable it on an automated basis.

Judge: I get that. But […] seriously, what is the technological measure that would be protecting this copying of the material if I can do it myself?

RIAA: Well, just because you can do it yourself or you can hack the technological measure, it doesn’t mean…[interrupted]

Judge: Well, I’m not hacking anything. I mean, I could do this right now in this courtroom on my computer probably, right?

RIAA: Your Honor could. I think it would be hacking.

RIAA’s attorney went on to explain what it sees as the “technical measure.” Yout itself has stated that YouTube uses a “signature mechanism” that must be read and interpreted by JavaScript. Yout modifies the signature value.

This prompted more questions from Judge Sullivan, who suggested that the signature value is accessible through a regular browser and that he and others could also modify it without using a dedicated tool such as Yout.

“You’re saying I would then be violating the statute as well?” the Judge asked.

RIAA’s attorney agreed that people could do it on their own which, in individual cases, may qualify as a copyright exemption. However, doing it to download a music video and to seed piracy on the Internet would be classified as circumvention under the DMCA.

Reverse Engineered Technological Protection?

Moving on to the “protection” element, the RIAA believes that the signature value used by YouTube serves as a technological measure that, in the ordinary course, prevents people from downloading music videos.

“The strength is not what we look at. We look at how it operates in the ordinary course and whether in the ordinary course of the operation, it serves the function of limiting or controlling access,” RIAA’s attorney said.

This again triggered more questions from the court about how effective this is and whether the signature value was intended as a protection measure. The latter question can only be answered by YouTube, whose views are unknown.

The RIAA countered by noting that intent isn’t important, as it’s not part of the DMCA rules. The statute looks at whether a technological measure is being circumvented in the ordinary course of operation, which it believes is the case here.

This didn’t convince Judge Sullivan who pointed out that the lower court seems to have “reverse engineered” its way to a conclusion.

“But how are we able to know that from the pleadings? How are we able to know how it works in the ordinary course? I mean, it might be people are doing this all the time on their own. There’s no discovery on that. There’s no expert opinion on that.

“It seems to me that Judge Underhill sort of inferred that this, because it’s complicated, because there’s no download button, because it’s a contractual provision, there must be a technological measure. He’s sort of backwardly engineered it, it seems to me,” Judge Sullivan added.

An Easy Solution

As is, the court may not be convinced by the RIAA’s arguments alone. That’s not to say that they’re wrong, but he suggests that this case could benefit from YouTube’s input on the matter. Particularly because there are “some pretty big stakes here.”

“This could be easily solved. And my hunch is what it is. It’s going to be clear that there are other technological measures that are here. But right now, YouTube’s staying out of it and we’re kind of guessing, Judge Sullivan noted.

Both attorneys were confronted with critical questions during the hearing, as is often the case. This means that it is too early to draw any conclusions. It is clear, however, that YouTube holds the keys to many of the questions that have come up. Whether it will be heard, however, is for the Court of Appeals to decide.

—

A copy of the full hearing is available here (mp3) .

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

Anna’s Archive is a meta-search engine for book piracy sources and shadow libraries.

Launched in the fall of 2022 , just days after Z-Library was targeted in a U.S. criminal crackdown, its self-stated goal is to ensure and facilitate the availability of books and articles to the broader public.

A few months ago, the search engine expanded its offering by making available data from OCLC’s proprietary WorldCat database . Anna’s Archive scraped several terabytes of data over the course of a year and published roughly 700 million unique records online, for free.

These records contain no copyrighted books or articles. However, they can help to create a to-do list of all missing shadow library content on the web, with the ultimate goal of making as much content publicly available as possible.

The people behind the site are not oblivious to the legal risks involved. However, they believe these are worth taking for the greater goal; creating a barrier-free global digital library.

“We believe that efforts like ours to preserve the legacy of humanity should be fully legal, and that copyright is way too strict. But alas, this is not to be. We take every precaution. This mission is so important that it’s worth the risks,” ‘Anna’ previously told us.

WorldCat Sues Anna’s Archive

It is no secret that publishers fiercely oppose the search engine’s stated goals. The same also applies to OCLC, which has now elevated its concerns into a full-blown lawsuit, filed this month at a federal court in Ohio.

The complaint accuses Washington citizen Maria Dolores Anasztasia Matienzo and several “John Does” of operating the search engine and scraping WorldCat data. The scraping is equated to a cyberattack by OCLC and started around the time Anna’s Archive launched.

“Beginning in the fall of 2022, OCLC began experiencing cyberattacks on WorldCat.org and OCLC’s servers that significantly affected the speed and operations of WorldCat.org, other OCLC products and services, and OCLC’s servers and network infrastructure,” OCLC’s complaint notes.

“These attacks continued throughout the following year, forcing OCLC to devote significant time and resources toward non-routine network infrastructure enhancements, maintenance, and troubleshooting.”

The non-profit says that it spent roughly $68 million over the past two years developing and enhancing WorldCat records, which are an essential part of its operation. Having a copy of the data publicly available through Anna’s Archive is a direct threat to its business.

OCLC claims that Anna’s Archive unmasked itself as the “perpetrator of the attacks on WorldCat.org” when it publicly announced its scraping effort. This includes a detailed blog post the operators published on the matter, encouraging the public to use the scraped data.

In addition to harvesting data from WorldCat.org, the defendants are also accused of obtaining and using credentials of a member library to access WorldCat Discovery Services . This opened the door to yet more detailed records that are not available on WorldCat.org.

OCLC says that it spent significant time and resources to address the ‘attacks’ on its systems.

“These hacking attacks materially affected OCLC’s production systems and servers, requiring around-the-clock efforts from November 2022 to March 2023 to attempt to limit service outages and maintain the production systems’ performance for customers.

“To respond to these ongoing attacks, OCLC spent over 1.4 million dollars on its systems’ infrastructure and devoted nearly 10,000 employee hours to the same,” the complaint adds.

Torrenting Terabytes

The complaint recognizes that Anna’s Archive doesn’t host any copyrighted material. Instead, it links to third-party sources and offers torrent downloads. The WorldCat data is also made available through a torrent, which ultimately leads to 2.2TB of uncompressed records.

“Defendants, through the Anna’s Archive domains, have made, and continue to make, all 2.2 TB of WorldCat® data available for public download through its torrents,” OCLC writes.

The complaint accuses the defendants of encouraging users to download and analyze the data. For example, the search engine launched a ‘minicompetition for data scientists’ and called on visitors to help seed the torrents.

OCLC further highlights that, similar to its own business, the non-profit element of Anna’s Archive doesn’t mean that no revenue is involved. The search engine offers subscriptions to its users that come with various perks.

“For example, a $5 per month subscription will give a visitor ’20 fast downloads per day,’ while a $100 per month subscription grants a visitor ‘1000 fast downloads per day’ and naming rights to a torrent file on Anna’s Archive (‘Adopt a torrent’).”

Defendants and Damages

Following the alleged hacking efforts, OCLC tried to identify the perpetrators. In their complaint, Maria Dolores Anasztasia Matienzo, purportedly of Seattle Washington, is the only named defendant.

The complaint notes that Matienzo describes herself as an “archivist” and uses the handle “anarchivist”. She allegedly works as a software engineer at an AI startup and previously worked as a catalog librarian at a direct competitor of OCLC.

The defendant allegedly teamed up with unnamed co-conspirators. These “John Does” are believed to reside in various foreign countries, including Israel and Brazil.

Before taking legal action, OCLC sent cease-and-desist requests via various email addresses and the X account of Anna’s Archive, which has since been removed. However, these notices didn’t result in the desired outcome.

Through the lawsuit, OCLC hopes to stop the site from linking to the WorldCat records. Among other claims, the defendants stand accused of breach of contract, unjust enrichment, tortious interference of contract and business relationships, trespass to chattels, and conversion of property.

As compensation for OCLC’s reported injuries, the company seeks damages, including compensatory, exemplary, and punitive damages. At the time of writing, the defendants have yet to respond to the allegations.

—

A copy of OCLC’s complaint, filed at the U.S. District Court for the Southern District of Ohio, is available here (pdf)

Update: In a comment to InfoDOCKET OCLC clarifies that its internal systems weren’t hacked.

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

Over the past couple of years, Genshin Impact publisher Cognosphere has been to court several times in the United States hoping to identify those who leak unreleased content online ( 1 , 2 , 3 , 4 , 5 ) .

What happens when leakers are identified is mostly unknown. Direct contact from Cognosphere’s legal team seems the most likely outcome but, since the courts aren’t directly involved, nothing can be confirmed from official records.

These matters in the U.S. sit in stark contrast to events currently unfolding in Canada’s Federal Court. A named defendant and others yet to be fully identified now face a full-blown lawsuit after allegedly failing to comply with the terms of a cease-and-desist notice.

Statement of Claim

The complaint lists Cognosphere PTE Ltd as the headline plaintiff but since its trading company HoYoverse is the exclusive licensee of Genshin Impact in Canada, that’s the entity with rights at stake in the claim.

Genshin Impact is described as a successful game but an expensive one too. In addition to an initial development budget of $100 million USD, around $200 million USD is required annually for the development of updates, expansions, and patches.

“This makes Genshin Impact one of the most expensive games ever developed,” HoYoverse informs the court.

HoYoverse’s exclusive rights in Genshin Impact include all copyrights and the right to prevent circumvention of the game’s Technical Protection Measures (TPM). According to the complaint, multiple TPMs are deployed to prevent hackers from engaging in activities that disrupt gameplay, devalue the game, and harm the Genshin Impact community.

These activities run contrary to Genshin Impact’s Terms of Service and while HoYoverse does what it can to prevent players from gaining an unfair competitive advantage, no measures are ever completely bulletproof.

“Defendants Are Members of Online Hacking Groups”

HoYoverse begins by identifying an individual said to reside in Alberta, Canada. They’re the only defendant currently identified by a real name but until such a time we’re able to confirm the person isn’t a minor, we’ll use their online handle ‘Taiga’ instead.

“[Taiga] is a software developer and self-proclaimed game hacker. [Taiga] is a member of game hacking groups including ‘Akebi Group’, ‘Crepe Team’ and others unknown to HoYoverse,” the complaint reads.

The remaining defendants are currently listed as John Does but, according to HoYoverse, all are members of the same hacking groups so it refers to them using their online handles.

“The John Does use online aliases including Callow (‘John Doe Callow’), Belizardd (‘John Doe Belizardd’), Witch God Solael (‘John Doe Solael’) and others that are unknown to HoYoverse but known to Taiga and each other,” HoYoverse notes.

Defendants Undermine the Genshin Impact Business Model

HoYoverse goes into considerable detail to explain why Genshin Impact’s TPMs are crucial to the smooth functioning of the game. In essence, the game is a finely balanced environment supported by a business model that relies on the game being just that.

When the alleged members of ‘Akebi Group’ and ‘Crepe Team’ inject their own code into the mix, that enables players to cheat, upsetting the balance of the game and the underlying business model.

“Since at least as early as August 2022 and continuing, the Defendants, have individually, collectively and/or acting in concert developed, advertised and marketed, distributed, offered for sale and sold hacking tools for Genshin Impact, including hacks referred to as ‘Akebi GC’ (short for ‘Genshin Cheat’), ‘Acrepi’ (a free version of Akebi GC), and ‘Genshin XYZ’,” HoYoverse informs the court.

“The Akebi GC, Acrepi and Genshin XYZ tools operate to inject malicious code into the Genshin Impact code during loading, to modify the game contrary to the Genshin Impact TOS. The Akebi GC, Acrepi and Genshin XYZ tools do not function without Genshin Impact and therefore have no commercial significance or legitimate purpose and are only useful for illicit use in hacking the Genshin Impact game and code.”

HoYoverse claims that the founder of the Akebi GC project is John Doe Callow while Taiga is the “self-proclaimed ‘main developer and updater’ of Akebi GC, and the creator of Genshin XYZ. It’s alleged that around August 2022, Taiga and the defendants made the Akebi GC code available for public download, including via Taiga’s GitHub and UnknownCheats repos.

HoYoverse Takes Action

According to the complaint, HoYoverse filed a DMCA takedown request against Taiga’s Akebi GC GitHub repository in November 2022, alleging infringement of Genshin Impact copyrights.

HoYoverse claims that a “defiant and undeterred” Taiga responded via a publicly-posted message. That message remains on GitHub today.

HoYoverse goes into detail describing what happened next, but in summary, the Discord channel allegedly became the jump-off point for the ‘Akebi-Private Shop’ from where it’s alleged the defendants have been selling subscriptions to Akebi GC; 7 days for $7.99 and 30 days for $19.99.

HoYoverse says it responded by sending a cease-and-desist letter to Taiga on March 31, 2023, alleging copyright and trademark infringement, plus offenses related to the circumvention of Genshin Impact TPMs.

“In an email response, three days later, [Taiga] acknowledged that the unauthorized use of HoYoverse’s intellectual property was a mistake and took full responsibility for his actions,” HoYoverse reports.

“[Taiga] indicated that he had removed all infringing material from his website and his other platforms. [Taiga] also indicated that he had instructed his team and relevant partners not to use HoYoverse intellectual property.”

Cease-and-Desist Ignored, Lawsuit Ensues

HoYoverse’s assessment of what happened next can be summarized as follows: the John Doe defendants continued to develop, advertise, market and sell the Genshin Impact cheats, and Taiga continued to support Akebi GC, help gamers find and use Akebi GC, while maintaining the Akebi Discord server.

HoYoverse claims that Taiga also has a new cheat in production for a game it also owns, Honkai: Star Rail .

The company’s key claims are as follows:

Defendants have individually, collectively and acting in concert:

– (a) circumvented, (b) offered or provided services to the public to circumvent, and (c) distributed, offered for sale, or provided technologies, devices, and/or components to circumvent the HoYoverse TPMs, [contrary to] s. 41.1(1)(a)-(c) of the Copyright Act;

– infringed the copyright in the HoYoverse Works contrary to s. 27(1) of the Copyright Act;

– infringed the copyright in the HoYoverse Works contrary to s. 27(2) of the Copyright Act;

– provided services primarily for the purposes of enabling acts of copyright infringement of the HoYoverse Works by means of the Internet or another digital network contrary to s. 27(2.3) of the Copyright Act ;

The company is seeking interim, interlocutory, and permanent injunctions to restrain the defendants from circumventing its Technical Protection Measures, and/or distributing, selling or any type of similar dealing in respect of its copyrighted works, in whole or in part.

HoYoverse further seeks an order directing the defendants to deliver up “all goods, articles, works, technologies, devices, components, or other materials” in connection with their infringing activities.

There’s also a request for damages, statutory damages, and/or an accounting of the Defendants’ profits, as the plaintiff may elect, in excess of $50,000. The company further requests punitive and exemplary damages, pre- and post-judgment interest on all monetary relief, plus costs “on the highest possible scale.”

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

In a matter of weeks, the controversial Jake Paul vs. Ben Askren PPV boxing event will turn three years old and still be remembered for all that went wrong.

After the H3 Podcast aired a short clip of the event on YouTube, featuring a fight that lasted just 119 seconds, Triller filed a copyright infringement lawsuit against creators Ethan and Hila Klein. Even today, it still seems nowhere near done.

What began as a fairly bitter and personal affair has left both sides with little to celebrate since the lawsuit was filed in 2021. With no obvious benefit beyond money for the overall winner, not losing face down on the canvas appears to be the only discernible prize.

Convoluted Lawsuit Finds Knockout Punch Elusive

More detailed background on the case is available here . In summary, H3 says that when it showed the fight along with biting commentary on YouTube, that was fair use, even though the video shown was sourced from a pirated copy of the PPV event.

For its part, Triller disagrees, bitterly.

Last week, Ted Entertainment, Inc. (TEI), the company behind various H3-branded channels, filed a counter-complaint against counter-defendant Triller. TEI’s focus is an amnesty program widely publicized by Triller in the wake of the Paul vs. Askren fight.

For a payment of just $49.99, Triller said that people who pirated the PPV could avoid being targeted in legal action that would demand $150,000 from each and every person who watched the fight without paying for it. TEI says the promotion of the amnesty program was misleading and deceptive.

“In the course of advertising and promoting its so-called ‘amnesty program’ Triller made false and misleading statements that TEI’s podcast episode entitled Jake Paul Fight Was A Disaster ….infringed the Broadcast and that anyone who viewed the Podcast engaged in copyright infringement,” TEI informs the court.

“Even worse, Triller made false and misleading statements about the financial ramifications of watching the Podcast to persuade the public to pay Triller $49.99 each to participate in Triller’s so-called amnesty program. This counterclaim is directed at exposing Triller’s false and misleading statements and force it to account for its deception.”

TEI Watched a Pirated Live Stream to Avoid Giving Paul Money

TEI’s counter-complaint begins with a potted history of its critique of Jake Paul. TEI accuses Paul of engaging in “highly aggressive, manipulative and avaricious marketing practices to his child audience to induce them to purchase his merchandise.” Jake’s brother, Logan, is described as equally problematic, but the focus is on Jake’s boxing career and TEI’s scathing criticism.

“TEI produced episodes on the H3 Podcast Channel that criticized Jake Paul’s boxing matches as being horribly lopsided in favor of Jake Paul because he was either significantly larger or younger than his opponents,” TEI says.

“These episodes produced by TEI also criticized Jake Paul’s boxing matches as cash grabs intended to bait the audience to pay steep pay-per-view prices in the hope of seeing Jake Paul defeated.”

After describing Paul’s matchup with Askren as a “farce that degraded the sport of boxing,” at a PPV price point that was “prohibitively expensive for his target audience,” TEI makes an unexpected admission.

Before reviewing the fight on YouTube, TEI employees necessarily needed to watch the fight. However, since that would mean handing over cash to the benefit of Jake Paul, that option was ruled out.

“TEI, however, did not want to provide any financial support for Jake Paul (or for any other endeavor involving Jake Paul). Consequently, on April 17, 2021 (i.e., the day of the Broadcast), TEI employees watched an unauthorized stream of the Broadcast on the Internet,” TEI informs the court.

“TEI did not make a simultaneous copy of the Broadcast when it was viewed on April 17, 2021. TEI did pay the $49.99 viewing fee for the Broadcast at a later date.”

Triller’s Amnesty Program

TEI says that on or around May 3, 2021, Triller’s head of piracy, Matt St. Claire, sent a press release to various media outlets that advertised and promoted Triller’s amnesty program . TEI uses sections of a subsequent Reuters article to support its claims that Triller’s statements not only misled the public, but did so at the expense of the podcast.

“The aforementioned statements from the Triller Press Release gave the false and misleading impression of fact that: (1) the Podcast itself constituted copyright infringement; (2) anyone who viewed the Podcast was liable for copyright infringement; (3) that the potential exposure for each view of the Podcast was up to $150,000 per view; (4) that TEI runs a criminal enterprise; and (5) TEI resold the Broadcast and profited from doing so,” TEI continues.

Since Reuters articles are widely syndicated, Triller’s statements also appeared in articles published elsewhere. TEI claims that the substantial audience led to “countless online posts” in which the company was labeled a criminal copyright infringer.

Overall, TEI says that a substantial number of people “were deceived (or had a tendency to be deceived)” into believing that since they watched the H3 podcast, they were also liable for infringement.

Reasons for People to Settle

TEI says that the above led some to believe that the only way to avoid liability was to participate in Triller’s amnesty program. To encourage them to do so, it’s alleged that Triller offered to drop the lawsuit against TEI if it paid a settlement of $900,000 and made the following public statement:

“By this statement, Triller requested TEI to falsely represent: (1) that TEI paid millions of dollars to settle the Initial Complaint – despite Triller demanding only $900,000; and (2) TEI was knowledgeable of Triller’s watermark technology – as no such information was shared with TEI,” the company adds.

“The clear purpose of this statement, just like Triller’s Press Release, was to advertise and promote Triller’s so-called amnesty program (in general) and to TEI’s audience (in particular).”

TEI says that the alleged conduct above caused it to suffer financial loss and reputational damage. The company requests a judgment for disgorgement of Triller’s profits, compensation for its losses, an award for treble damages under the Lanham Act , plus costs and attorneys’ fees.

TEI’s counter-complaint against Triller Fight Club II is available here (pdf)

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