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.

Founded in 1996, the Internet Archive has built an unparalleled library of digital artifacts in less than three decades.

Many people are familiar with the website archiving project “Wayback Machine” but the non-profit also has many other preservation projects underway.

These meticulous archiving skills are a vital part of the digital history books, which are being ‘written’ as we speak. However, good intentions themselves are not immune to copyright complaints, or worse, multi-million dollar lawsuits.

The Great 78 Project

Six years ago, the Archive teamed up with other libraries and experts to archive the sounds of 78-rpm gramophone records, which are 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. However, not all music industry insiders were happy with it, as the copying took place without obtaining permission from all rightsholders.

Last summer, a group of major music labels including Capitol, Sony, and UMG, decided to take action. In a complaint filed at a U.S. federal court, they sued the Internet Archive , its founder Brewster Kale, and others they believe are responsible.

“When Defendants exploit Plaintiffs’ sound recordings without authorization, neither Plaintiffs nor their artists see a dime. Not only does this harm Plaintiffs and the artists or their heirs by depriving them of compensation, but it undermines the value of music,” the labels wrote.

With 2,749 recordings at stake, the potential statutory damages could run to more than $400 million. However, the Internet Archive (IA) sees things differently, believing that the ‘Great 78 Project’ is fair use.

IA Files Motion to Dismiss

Filed a few days ago, IA’s motion to dismiss stresses that it’s important to archive these older records, some of which date back to the late 19th century. The records have been obsolete since the 1950s but that doesn’t mean that their sounds should be lost forever, IA argues.

“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 notes.

“But the physical recordings themselves tend to disintegrate over time—and as the complete set of these old records gradually becomes unplayable, their unique contributions to our history is on a precipitous path to oblivion.”

The lawsuit will ultimately have to decide whether the ‘The Great 78 Project’ is allowed to exist under U.S. copyright law. The motion to dismiss also deals with another time-sensitive issue.

Specifically, IA argues that many of the works should be removed from the lawsuit, as the labels failed to take timely action following a cease and desist letter the RIAA sent in 2020. This letter pointed out concrete copyright concerns, but the labels allegedly took too long before filing their lawsuit.

RIAA’s Cease and Desist

The U.S. Copyright Act has a three-year statute of limitations. This means that, after discovering concrete copyright infringements, a lawsuit has to be filed within this window. That didn’t happen here, according to IA.

The RIAA letter didn’t list any specific recordings but referenced artists including Elvis Presley, Duke Ellington, and Billie Holiday. It further characterized IA as a platform that enables piracy on a massive scale, mentioning “thousands” of recordings.

“Although the Internet Archive is rife with infringing copies of sound recordings, perhaps the most prominent example of this infringement is the ‘Great 78 Project’,” RIAA wrote in its letter.

“Your unauthorized reproduction, distribution and public performance of these recordings is a plain violation of the RIAA member companies’ rights under the Classics Protection and Access Act (‘Classics Act’), 17 U.S.C. § 1401, and constitutes nothing less than piracy on a massive scale.”

IA Replied

IA’s motion to dismiss recognizes that the RIAA sent this letter. At the same time, it adds more context, pointing out that founder Brewster Kahle replied to the letter . Among other things, Kahle noted that rightsholders can send takedown notices or request the exclusion of certain artists and recordings.

According to the motion to dismiss, RIAA never responded to this reply, and the project continued in the years that followed.

“Internet Archive founder Brewster Kahle promptly responded that the project would gladly exclude any digitization of the labels’ recordings that they identified to Internet Archive. The record labels never responded to that letter,” the motion reads.

A follow-up eventually came when the RIAA member labels filed a lawsuit, more than three years later. The timing is important, as IA argues that the lawsuit falls outside the three-year statute of limitations.

Statute of Limitations

According to U.S. copyright law, the three-year period begins when a rightsholder ‘discovers’ the infringement. IA now argues that the labels were aware of alleged “Great 78 Project” infringements when the RIAA sent its letter.

“[T]he letter acknowledges plaintiffs’ belief, as of July 22, 2020, that ‘thousands’ of recordings had already been digitized and uploaded to the Great 78 Project, including those by specific named artists,” IA writes.

“And even if Plaintiffs did not have actual knowledge of those alleged acts of infringement, the RIAA letter at a minimum demonstrates that a reasonable plaintiff ‘should have discovered’ the alleged infringement and that a cause of action for infringement had accrued as of that date.”

The IA argues that since many claims fall outside the three-year period, they should be dismissed. While some claims may remain, this will help to significantly narrow the scope of the case, as well as the potential damages.

At the time of writing, the labels have yet to respond to IA’s argument. They may see things differently but, on the surface, the timing seems unfortunate. Had they filed their case a few weeks earlier, this issue wouldn’t have come up.

Finally, the Kahle-Austin Foundation filed a separate motion to dismiss. The foundation argues that there are no grounds to include it in the lawsuit, as it only helps to fund the Internet Archive.

—

The motion to dismiss filed by the Internet Archive and related defendants is available here (pdf) . The motion from the Kahle-Austin Foundation can be found here (pdf)

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

Millions of people regularly pirate movies and music. While this is against the law, most don’t get into trouble.

Some people feel so comfortable about their piracy habits that they openly discuss them online. On Reddit , for example, where most people use a semi-anonymous handle.

Admissions of anonymous Redditors typically go unnoticed by copyright holders and, even when observed, it’s rare for companies to take matters further or ask any questions. A group of independent film companies in the United States set out to buck that trend last year.

The film companies and their attorney Kerry Culpepper say they’re not planning to take Reddit users to court. However, they do want to use public piracy-related comments as evidence in a lawsuit against their Internet provider.

These lawsuits don’t target individual pirates. Instead, the film companies have sued Internet providers including RCN , Grande , and Frontier , for failing to disconnect ‘repeat infringer’ customers.

Trying Once, Twice….

The independent film companies first reached out to Reddit roughly a year ago, asking the company to disclose names, IP addresses, and emails of various users. These people all made piracy-related claims in comments on Reddit, with several indicating that their ISP did little to stop this activity.

Reddit was unhappy with the subpoena, characterizing it as overbroad and more akin to a fishing expedition than regular evidence gathering. Reddit only handed over the details of one user whose comment mentioned RCN directly, denying the rest to protect users’ First Amendment right to anonymous speech.

The court eventually agreed with this defense, concluding that Redditors’ First Amendment right to anonymous speech outweighs the interest of rightsholders . According to Magistrate Judge Laurel Beeler, the filmmakers have other options to obtain this type of information, including through RCN itself.

After this setback, the rightsholders filed an adjusted request in their case against ISP Grande. This second attempt wasn’t successful either, as Judge Beeler again concluded that the Redditors’ right to anonymous speech weighs stronger than the rightsholders’ need for additional evidence.

Third Time’s The Charm?

This week, attorney Kerry Culpepper returned to the California federal court with a request for Reddit to comply with another subpoena. This time, it’s part of the case against Internet provider Frontier Communications .

Broadly speaking, the request looks similar to those seen before. The film companies, Voltage Holdings and Screen Media Ventures, highlight several comments from Redditors that could help to prove that the ISP didn’t take proper action against repeat infringers, or that lax enforcement acted as a draw to potential pirates.

“In the Reddit ‘Piracy’ forum, Reddit user’Cyb3rR****’ admits to using Frontier’s service to pirate from the notorious piracy websites 1337x and PirateBay and that ‘I’ve been torrenting unprotected for like a decade and never gotten [a DMCA notice]’,” the companies write.

Other Redditors made similar remarks, suggesting that using the ISP to pirate movies shouldn’t result in any trouble.

‘This Time is Different’

In common with the earlier cases, Reddit is refusing to comply. Last week, it objected to the subpoena, arguing that the request violates its users’ rights to anonymous speech. This prompted the movie companies to go to court again, with a new plan of attack.

The requested information is relevant and proportional to the needs of the case, they argue before the court. Contrary to the earlier cases, the subpoena no longer seeks any names and email addresses, only the IP address logs.

“Reddit asserts that the information Movants request is not permissible under the First Amendment. However, Movants’ subpoena does not request anonymous users’ identities.

“Rather, the subpoena is limited to requesting the Reddit users’ IP address logs. Accordingly, the analysis of Reddit I and Reddit II is not applicable,” the movie companies add.

‘Users Are not the Target’

According to the rightsholders, Reddit didn’t identify any potential harm to the affected users. They further note that there are no plans to go after these people directly.

“Movants are not seeking to retaliate economically or officially against these Reddit users. Rather, Movants wish to use their comments as evidence that Frontier has no meaningful policy for terminating repeat infringers and this lax or no policy was a draw for using Frontier’s service.”

Reddit previously sent a letter to the movie companies’ attorney questioning whether the IP-addresses are relevant to the copyright infringement claims. In addition, it suggested that there might be other sources of evidence available to prove the same.

The request doesn’t disclose why IP addresses are needed, since the anonymous comments are public. One theory would be that the rightsholders will check these addresses for repeat infringements, which might add extra weight to their claims.

Reddit has yet to respond in court but, based on its earlier responses, it will do all it can to keep users’ information private.

This results in a similar standoff as before, albeit with a twist. Since Frontier is not planning to disclose customer identification information, the filmmakers see these comments as important evidence, and this time they hope that the court agrees.

Ultimately, it will be up to the court to decide whether it’s indeed different this time, or not.

—

A copy of the motion to compel Reddit to respond to the subpoena is available here (pdf) . A copy of Reddit’s letter to the attorney can be found here (pdf)

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

The Internet Archive (IA) is a non-profit organization that aims to preserve digital history for generations to come.

The digital library is a staunch supporter of a free and open Internet and began meticulously archiving the web over a quarter century ago.

In addition to archiving the web, IA also operates a library that offers a broad collection of digital media, including books. Staying true to the centuries-old library concept, IA patrons can also borrow books that are scanned and digitized in-house.

Publishers vs. Internet Archive

The self-scanning service is different from the licensing deals other libraries enter into. Not all publishers are happy with IA’s approach which triggered a massive legal battle two years ago.

Publishers Hachette, HarperCollins, John Wiley, and Penguin Random House filed a lawsuit, equating IA’s controlled digital lending (CDL) operation to copyright infringement. Earlier this year a New York Federal court concluded that the library is indeed liable for copyright infringement .

The Court’s decision effectively put an end to IA’s self-scanning library, at least for books from the publishers in suit. However, IA is not letting this go without a fight and last week the non-profit filed its opening brief at the Second Circuit Court of Appeals, hoping to reverse the judgment .

Support from Authors Alliance

IA doesn’t stand alone in this legal battle. As the week progressed, several parties submitted amicus curiae briefs to the court supporting IA’s library. This includes the Authors Alliance .

The Authors Alliance represents thousands of members, including two Nobel Laureates, a Poet Laureate of the United States, and three MacArthur Fellows. All benefit from making their work available to a broad public.

If IA’s lending operation is outlawed, the authors fear that their books would become less accessible, allowing the major publishers to increase their power and control.

The Alliance argues that the federal court failed to take the position of authors into account, focusing heavily on the publishers instead. However, the interests of these groups are not always aligned.

“Many authors strongly oppose the actions of the publishers in bringing this suit because they support libraries and their ability to innovate. Authors rely on libraries to reach readers and many are proud to have their works preserved and made available through libraries in service of the public.

“Because these publishers have such concentrated market power […], authors that want to reach wide audiences rarely have the negotiating power to retain sufficient control from publishers to independently authorize public access like that at issue here,” the Alliance adds.

This critique from the authors is not new. Hundreds of writers came out in support of IA’s digital book library at an earlier stage of this lawsuit, urging the publishers to drop their case.

The publishers didn’t listen to these concerns. They believe that IA’s library is disrupting the “ecosystem” and “market equilibrium” of ebook sales. However, the Authors Alliance now counters that the system is already out of whack, as publishers enjoy too much power.

“That ecosystem has long been out of balance, due not to the IA’s activities, but to these publishers’ leveraging of their power to insist on a marketplace in which they exercise almost absolute control over access, preservation, and research,” the Alliance notes.

According to the Authors Alliance, IA’s digital ebook library is a prime example of a service that should be permitted to operate as fair use, as it benefits both writers and readers.

Copyright Scholars Back IA

In a separate amicus brief, several prominent legal and copyright scholars, many of whom hold professor titles, raise similar arguments. They believe that IA’s lending system is not that different from the physical libraries that are an integral part of culture.

“Libraries have always been free under copyright law to lend materials they own as they see fit. This is a feature of copyright law, not a bug,” the brief reads.

What is new here, is that publishers now assert full control over how their digital books are treated. Instead of allowing libraries to own copies, they have to license them, which makes it impossible to add them to the permanent archive.

“The major publishers refuse to sell digital books to libraries, forcing them to settle for restrictive licenses of digital content rather than genuine ownership. Moreover, publishers insist they can prevent libraries from scanning their lawfully purchased physical books and lending the resulting digital copies.”

The scholars see IA’s library as fair use and note that the lower court ignored the long history of nonprofit library lending. It placed too much emphasis on the interests of publishers, largely ignoring the public benefits.

More Support Comes In

Thus far, the Court of Appeals has received four amicus briefs in support of IA’s library. In addition to the two mentioned above, others include a joint submission from the Center for Democracy & Technology , Library Freedom Project and Public Knowledge .

These groups also stress that the court focused too heavily on the publishers’ bottom line, while failing to properly take the rights of consumers into account.

“The district court should have more carefully considered the socially beneficial purposes of library-led CDL, which include protecting patrons’ ability to access digital materials privately, and the harm to copyright’s public benefit of disallowing libraries from using CDL.”

This sentiment is shared in the fourth amicus brief from information scholars and historians Kevin L. Smith and Will Cross , who also argue that publishers have too much power as it is.

The scholars believe that IA’s scan-and-lend library is a prime example of fair use, placing the interests of all stakeholders more closely into balance.

“Here, market failure is evident: one side (the publishers) has such a dominant position that they control all the terms of any sale, without any countervailing forces to balance the market.

“Fair use was designed to address precisely this type of market failure. Thus, CDL should be upheld under fair use. Otherwise, a decision against CDL would harm the public mission of libraries and perpetuate the existing market failure,” they add.

With no shortage of support for the Internet Archive, the stakes of this legal battle are clear. Thus far, the publishers have yet to file their response, but it’s likely that they will also receive support from third parties.

—

The amicus briefs cited in this article are all available below (pdf)

– Authors Alliance
– Copyright scholars
– CDT, Library Freedom Project, and Public Knowledge
– Kevin L. Smith and Will Cross

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

The name ‘Aylo’ might not ring a bell with many people but it is one of the leading players in the adult entertainment industry.

Formerly known as MindGeek, and Manwin before that , the company conquered the online adult market over the past decade by offering free porn to the masses.

With help from user-uploaded videos, the company built massive databases of adult entertainment, much to the frustration of incumbent adult industry companies that, in the past , often found pirated copies of their content on MindGeek-operated sites.

This bold business model paid off with billions of visits that provided a sizable revenue stream through sites such as Pornhub, YouPorn, Redtube, Tube8, and dozens of others. And as MindGeek’s stature rose, the company transformed into a major rightsholder which today operates under Aylo branding.

This imperium also controls a lot of copyrighted content. Aylo subsidiary MG Premium, for example, which owns various brands including Brazzers, has more than 40,000 works registered at the US Copyright Office which it actively protects.

Aylo’s subsidiary regularly files lawsuits against ‘pirate’ tube sites and users of peer-to-peer networks . The most impressive numbers come from its DMCA takedown campaign, targeting close to 900 million URLs through Google alone.

Goodporn Lawsuit

One stand-out lawsuit targets the tube site Goodporn. MG Premium sued the platform for widespread copyright infringement, hoping to shut it down, but after two years that is yet to happen.

Instead, Goodporn owner Amrit Kumar fought back hard . Among other things, he allegedly signed a contract to obtain the rights to MG Premium’s content in 2019, leading him to accuse his accusers of copyright infringement.

This counterclaim was eventually dismissed by the court during the summer. In addition, the court granted MG Premium’s motion for summary judgment for inducement of copyright infringement and contributory copyright infringement.

It’s almost impossible to summarize the entire case, which comprises hundreds of filings. For example, it also includes Lizette Lundberg and Emile Brunn as defendants, who stood accused of working with Kumar and submitting inaccurate DMCA counternotices.

Ultimately, however, the court entered summary judgment and a default for inducement of copyright infringement and contributory copyright infringement against all Goodporn defendants.

$21 million damages

With the default in hand, MG Premium is hoping to finalize the case. A few days ago it submitted a motion for default judgment, pointing out that Kumar continues to profit from the infringing activities to this day.

“As this case has proceeded for two years, Defendant ‘Amrit Kumar’ continued to reap profit from this scheme,” MG Premium writes.

“Operating covertly behind proxy internet protocol addresses, anonymous email servers, and fake physical addresses, Kumar adopted the guise of a ‘pro per’ litigant while engaging ghostwriters, dodging depositions, eschewing telephone or video communication with counsel, and submitting falsified evidence of copyright ownership.”

MG Premium claims to have lost many millions of dollars and seeks substantial damages as compensation. At the maximum of $150,000 per work, it can request up to $216 million. However, following the lower bar set in the Yespornplease case , a tenth of that is sufficient; $21.6 million.

Proposed Blocking Order

In addition to damages, MG Premium also requests a broad permanent injunction, ordering domain registries and registrars to sign over all infringing Goodporn domain names.

While these targeted requests are not uncommon, the proposed injunction goes further than that. It also requires search engines, hosting and Internet service providers, domain registrars, domain registries and other service providers to block the site’s domain names.

According to MG Premium, these companies should be ordered…

“To block or use reasonable efforts to attempt to block access by United States users of the Goodporn Websites by blocking or attempting to block access to all domains, subdomains, URLs, and/or IP Addresses that have as its sole or predominant purpose to enable to facilitate access to the Goodporn Websites”

Not Over Yet…

The motion for default judgment has yet to be signed off by the court. The blocking measures are targeted at services that act “in concert or participation” with Goodporn. It’s not clear against which companies it will be enforced.

It’s clear that Pornhub’s sister company is eager to get this case over with. However, history has shown that nothing in the proceeding is straightforward.

Earlier this week, Defendant Kumar submitted a motion to set aside the default judgment, citing Visa restrictions, limited familiarity with U.S. legal proceedings, and other reasons for his earlier lack of appearance. Whether that will be granted remains to be seen.

—

A copy of MG Premium’s motion for a default judgment is available here (pdf) and the proposed order can be found here (pdf)

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

In 2020, publishers Hachette, HarperCollins, John Wiley and Penguin Random House sued the Internet Archive (IA) for copyright infringement, equating its ‘Open Library’ to a pirate site.

IA’s library is a non-profit operation that scans physical books, which can then be lent out to patrons in an ebook format. Patrons can also borrow books that are scanned and digitized in-house, with technical restrictions that prevent copying.

Staying true to the centuries-old library concept, only one patron at a time can rent a digital copy of a physical book for a limited period.

Mass Copyright Infringement or Fair Use?

Not all rightsholders are happy with IA’s scanning and lending activities. The publishers are not against libraries per se, nor do they object to ebook lending, but ‘authorized’ libraries typically obtain an official license or negotiate specific terms. The Internet Archive has no license.

The publishers see IA’s library as a rogue operation that engages in willful mass copyright infringement, directly damaging their bottom line. As such, they want it taken down permanently.

The Internet Archive wholeheartedly disagreed with the copyright infringement allegations; it offers a vital service to the public, the Archive said, as it built its legal defense on protected fair use.

After weighing the arguments from both sides, New York District Court Judge John Koeltl sided with the publishers. In March, the court granted their motion for summary judgment, which effectively means that the library is indeed liable for copyright infringement .

The judgment and associated permanent injunction effectively barred the library from reproducing or distributing digital copies of the ‘covered books’ without permission from rightsholders. These restrictions were subject to an eventual appeal, which was announced shortly thereafter.

Internet Archive Files Appeal Brief

Late last week, IA filed its opening brief at the Second Circuit Court of Appeals, asking it to reverse the lower court’s judgment. The library argues that the court erred by rejecting its fair use defense.

Whether IA has a fair use defense depends on how the four relevant factors are weighed. According to the lower court, these favor the publishers but the library vehemently disagrees. On the contrary, it believes that its service promotes the creation and sharing of knowledge, which is a core purpose of copyright.

“This Court should reverse and hold that IA’s controlled digital lending is fair use. This practice, like traditional library lending, furthers copyright’s goal of promoting public availability of knowledge without harming authors or publishers,” the brief reads.

A fair use analysis has to weigh the interests of both sides. The lower court did so, but IA argues that it reached the wrong conclusions, failing to properly account for the “tremendous public benefits” controlled digital lending offers.

No Competition

One of the key fair use factors at stake is whether IA’s lending program affects (i.e., threatens) the traditional ebook lending market. IA uses expert witnesses to argue that there’s no financial harm and further argues that its service is substantially different from the ebook licensing market.

IA offers access to digital copies of books, which is similar to licensed libraries. However, the non-profit organization argues that its lending program is not a substitute as it offers a fundamentally different service.

“For example, libraries cannot use ebook licenses to build permanent collections. But they can use licensing to easily change the selection of ebooks they offer to adapt to changing interests,” IA writes.

The licensing models make these libraries more flexible. However, they have to rely on the books offered by commercial aggregators and can’t add these digital copies to their archives.

“Controlled digital lending, by contrast, allows libraries to lend only books from their own permanent collections. They can preserve and lend older editions, maintaining an accurate historical record of books as they were printed.

“They can also provide access that does not depend on what Publishers choose to make available. But libraries must own a copy of each book they lend, so they cannot easily swap one book for another when interest or trends change,” IA adds.

Stakes are High

The arguments highlighted here are just a fraction of the 74-page opening brief, which goes into much more detail and ultimately concludes that the district court’s judgment should be reversed.

In a recent blog post, IA founder Brewster Kahle writes that if the lower court’s verdict stands, books can’t be preserved for future generations in digital form, in the same way that paper versions have been archived for centuries.

“This lawsuit is about more than the Internet Archive; it is about the role of all libraries in our digital age. This lawsuit is an attack on a well-established practice used by hundreds of libraries to provide public access to their collections.

“The disastrous lower court decision in this case holds implications far beyond our organization, shaping the future of all libraries in the United States and unfortunately, around the world,” Kahle concludes .

—

A copy of the Internet Archive’s opening brief, filed at the Second Circuit Court of Appeals, is available here (pdf)

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

In 2021 , Sony Music obtained an injunction that ordered DNS resolver Quad9 to block a popular pirate site.

The injunction, issued by the District Court of Hamburg, required the Swiss DNS resolver to block access to a site that links to pirated music.

The name of the targeted site initially remained a mystery, but we deduced that Canna.to was the target. That site was, not coincidentally, also targeted by a voluntary blocking agreement previously signed by rightsholders and ISPs.

The music groups presumably targeted the site to prevent people from circumventing the ISP blockades. However, the non-profit Quad9 Foundation was not happy with this far-reaching measure and fiercely opposed the injunction.

The DNS resolver stressed that it doesn’t condone piracy but believes that enforcing blocking measures through third-party intermediaries, that don’t host any content, is a step too far.

This initial objection failed; the Regional Court in Hamburg upheld the blocking injunction . However, the case continued at the Higher Regional Court in Dresden where Quad9 managed to turn the case around.

Quad9 Books Key Victory in Court

The Higher Regional Court ultimately concludes that DNS resolvers can’t be held liable under German and European law. These services are neutral intermediaries and don’t play a “central role” in the copyright-infringing activities of pirate sites.

The court stresses that the DNS resolver doesn’t host any pirated content and its users don’t make copyright-infringing content available either. DNS resolvers simply translate a domain name request to an IP-address.

“[Quad9] does not initiate this transmission, nor does it select the addressee and the content of the information. It plays a less central role than those who have committed the infringement themselves (site operator) or have contributed to it by providing services (hosting provider),” the court writes (translated).

“The users of [Quad9] do not make infringing content publicly available but at best request it. The defendant does not store this content. It doesn’t transmit such content, but only the domain request of a user and the IP address of the server on which this content may be stored.”

Since Quad9 doesn’t play a “central role” in the copyright infringing activities it can’t be held liable. As a result, it can’t be ordered by an injunction to block access to the pirate site.

The public DNS resolver is pleased with the outcome and immediately removed all blocking measures on its system. This means that all domains of CannaPower, also dubbed the “ Queen of Music Warez ”, are available globally once again.

“Today marks a bright moment in the efforts to keep the internet a neutral and trusted resource for everyone,” Quad9 writes while thanking all supporters of its legal efforts.

This is the second order of this kind in Germany this fall. Previously, the Higher Regional Court of Cologne concluded that Cloudflare doesn’t have to take any measures on its public DNS resolver in response to copyright complaints, as the service operates in a purely passive, automatic, and neutral manner.

Trouble Ahead in Italy

The Dresden court stressed that its decision is final, which means the case cannot go to a higher court. This limits Sony’s options to appeal the verdict. However, the trouble for Quad9 isn’t over yet.

Over in Italy, Sony Music Italy, Universal Music Italy, Warner Music Italy, and the Italian Music Industry Federation, have recently requested similar DNS blocking measures from Quad9.

The music companies haven’t filed a lawsuit yet but want the DNS provider to ban the domain names of three torrent sites: LimeTorrents, KickassTorrents, and Ilcorsaronero. These three targets were not chosen at random. An Italian court previously ordered Cloudflare’s DNS resolver to block the same domain names.

Quad9 is determined to fight this blocking request in Italy, but it first wants to make sure that the German case is final. In the meantime, the DNS resolver has complied with the Italian request by blocking the aforementioned torrent sites globally.

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A copy of the order from the Higher Regional Court in Dresden is available here ( German, pdf ) and a machine-translated English copy can be found here (pdf)

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

Similar to other user-generated content platforms, X allows people to freely share content online.

This includes text but images, videos, and music are regularly posted as well. In some cases, content is uploaded without first obtaining permission from rightsholders.

Over the years, various parties have called out Twitter/X over alleged copyright infringement. Research published by the EU Intellectual Property Office found that the service is rife with piracy-related discussions. U.S. lawmakers also suggested that piracy is part of the company’s business model .

Music companies have repeatedly complained about X too. Their main gripe is that unlike many other online services, X refuses to license the content shared by its users. As a result, creators are not properly compensated.

Swiss music collective management outfit SUISA Digital is one of these complainants. The organization tried to raise the issue with X’s parent company Twitter International for several months, but the service failed to respond.

SUISA Sues X Seeking Damages

This inaction was a major source of frustration for the music rights group which, as a last resort, decided to take the matter to court. That way, the social media platform would have to respond.

In a complaint filed at the District Court of Munich, Germany, SUISA now accuses X of widespread copyright infringement.

“A considerable number of works in SUISA Digital’s repertoire is available on the X platform and is used by users without Twitter International having acquired a licence from SUISA Digital,” the company explains .

To compensate for the alleged wrongdoing, the music rights group demands monetary compensation. The scale of the damages is unknown at this point as it depends on the infringing uses on X and the related revenue, which SUISA hopes to establish in court.

“Through its lawsuit, SUISA Digital seeks to ensure the authors and publishers it represents are adequately compensated for the ongoing, illegal use of their creative work,” the music group writes.

“That is why, among other things, SUISA Digital demands that Twitter International fully disclose its figures relating to its uses and to the turnover realized with its music offers on the platform X.”

U.S. Mass Copyright Infringement Lawsuit

The German lawsuit isn’t the first music lawsuit faced by X. In the United States, Universal Music, Sony Music, EMI, and others filed a complaint against the company a few months ago, accusing it of “breeding” mass copyright infringement .

According to the American music labels, X fails to properly respond to takedown notices and lacks a proper termination policy for repeat infringers. As a result, the platform is rife with music piracy.

With hundreds of millions of dollars in damages at stake, X is fiercely defending itself. In the U.S. case, it previously asked the court to dismiss all copyright infringement allegations. The court has yet to rule on this request.

These lawsuits make clear that the music industry has lost patience with X. Through they courts, they hope to motivate the company to change but whether it will, largely depends on the outcome of these legal battles.

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

Copyright holders have made serious work of website blocking in recent years, expanding the practice to over forty countries worldwide.

In Germany, for example, the largest Internet providers agreed to voluntarily block pirate sites as part of a deal they struck with rightsholders.

These blockades, which are put in place following a thorough vetting process, are generally implemented at DNS level. This is a relatively easy option, as all ISPs have their own DNS resolvers.

The downside of this simple measure is that it’s easy to bypass. Instead of using the ISPs’ DNS resolvers, subscribers can switch to public alternatives offered by Cloudflare, Google, OpenDNS, or Quad9. This relatively simple change usually renders blocking efforts useless.

Pirate Site DNS Blocking

Copyright holders are aware of this weakness. In an attempt to broaden the impact of their anti-piracy efforts, they sued Quad9 , which was required to implement a global pirate site blockade . Meanwhile, Cloudflare also found itself in the crosshairs.

The German branch of Universal Music previously sued Cloudflare for offering its services to pirate site DDL-Music. The Internet infrastructure company lost this legal battle in the first instance, before the case moved to the Higher Regional Court of Cologne.

The appeal wasn’t just about Cloudflare terminating services to DDL-Music as a customer but also the implementation of an expanded DNS blockade. Universal demanded that Cloudflare should block the pirate site for all users of its publicly available 1.1.1.1 DNS resolver.

Last month, the Higher Court concluded that Cloudflare doesn’t have to take any measures on its public DNS resolver in response to copyright complaints, as the service operates in a purely passive, automatic, and neutral manner. As a pass-through service, it is not liable for third-party actions under German and EU law.

In a blog post , Cloudflare’s Senior Associate General Counsel, Patrick Nemeroff, applauds the verdict. The American company has always argued that public DNS resolvers are neutral services.

Nemeroff notes that DNS servers are not a good place to try to moderate content on the Internet. This isn’t just disproportionate but also ineffective.

“That’s a position we’ve long advocated, because blocking through public resolvers is ineffective and disproportionate, and it does not allow for much-needed transparency as to what is blocked and why,” he writes.

Ineffective

Cloudflare equates its DNS resolver to a phone book that people historically used to look up someone’s number. In a similar vein, DNS servers link a domain name to an IP-address, allowing people to access a website without having to memorize a string of numbers.

Blocking a domain by tampering with a DNS resolver doesn’t take down the website. People can still use alternative DNS providers, build their own DNS solution, or simply enter the site’s IP-address manually.

“[I]t’s not even effective. Traditionally, website operators or hosting providers are ordered to remove infringing or illegal content, which is an effective way to make sure that information is no longer available.

“A DNS block works only as long as the individual continues to use the resolver, and the content remains available and will become accessible again as soon as they switch to another resolver, or build their own,” Nemeroff adds.

Disproportionate

Copyright holders are aware of this, of course, and would counter that doing something is better than nothing at all. At the moment, many ISPs also rely on DNS blockades and that tends to stop at least part of the traffic to pirate sites.

Cloudflare stresses that public DNS resolvers shouldn’t be compared to ISPs’ DNS servers. The main difference lies in the audience, which is global in Cloudflare’s case. This means that basic DNS blockades would apply globally too.

“[P]ublic DNS resolvers aren’t the same as DNS resolvers operated by a local ISP. Public DNS resolvers typically operate the same way around the globe. That means that if a public resolver applied the block the way an ISP does, it would apply everywhere.”

There are technical solutions to apply blockades more locally over DNS, but that would require more data gathering, which limits the privacy of the public at large.

“Blocking orders directed at public resolvers would require the collection of information about where the requests are coming from in order to limit these negative impacts while demonstrating compliance. That would be bad for personal privacy and bad for the Internet.”

The Fight Continues

The verdict of the Higher Regional Court is not entirely positive for Cloudflare, as it further clarified that the company can be held liable for pirate sites that use its CDN services. The case at hand revolves around DDL-Music, which is already defunct, but in future could expand to other Cloudflare customers such as The Pirate Bay.

In addition, the DNS battle isn’t over either. There are similar legal battles ongoing against other providers such as Quad9 while Cloudflare itself has been targeted in Italy as well.

“While the Higher Regional Court’s decision represents important progress on the DNS issue, the fight over how best to address online infringement continues,” Cloudflare notes.

Cloudflare says that it will continue to protest such orders going forward and hopes that the Higher Regional Court’s reasoning on the DNS issue, which is partly grounded in EU law, will help to that end.

“This decision marks further progress in Cloudflare’s fight to ensure that efforts to address online infringement are compatible with the technical nature of various Internet services, and with important legal and human rights principles around due process, transparency, and proportionality.”

“We will continue that battle both through public advocacy and, as necessary, through litigation, as one more part of helping build a better Internet,” Nemeroff concludes.

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