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Commissioned by the Australian Attorney-General’s Department, the annual Consumer Survey on Online Copyright Infringement is now available for 2022.

The Australian Government has commissioned these surveys since 2015, with the goal of understanding internet users’ consumption habits related to several core content types: music, video games, movies, TV shows and live sports, with the latter appearing more recently in 2019.

The 2022 Consumer Copyright Infringement Survey was conducted online from 24 June to 14 July 2022 and sought responses from internet users aged 12+ regarding their consumption habits in the preceding three months. Overall, 72% of respondents said they consumed content from at least one of the categories.

Overall Consumption and Legality

Consumption of content online increased in 2022 over the figures reported the previous year. TV shows were consumed by 57% of respondents in 2021, with 60% reporting doing so in 2022. An identical three-point increase was observed in the consumption of movies (53% in 2021 / 57% in 2022) and music (45% in 2021 / 48% in 2022).

Video game consumption leaped from 26% in 2021 to 37% in 2022, with live sports reaching 34% in 2022, up from 26% recorded the previous year.

Rather than expecting respondents to determine the legality of their consumption methods, methods were classified as either ‘likely to be lawful’ or ‘likely to be unlawful’ in advance. This allowed respondents to point out the methods used, without discussing legality in depth.

Roughly three-quarters of the population consuming content exclusively from legal sources is a decent result, but closer inspection reveals a caveat. This figure relates to respondents who consumed content in all categories – music, video games, movies, TV shows, and live sports.

Similarly, the remaining 22% to 26% detailed below are respondents who consumed content from all categories, with “at least some” of that content consumed from sources that had a predetermined status of “likely to be unlawful.”

At its most basic level, the term ‘infringer’ in the report identifies a respondent who “reported consuming any content in a way that was likely to be unlawful.” Couple that with respondents who consume content from fewer categories, and Australia suddenly has a problem to solve.

Significant Infringement Increase

The study identifies a ‘non-infringer’ as a respondent who exclusively consumed content from sources predetermined as ‘likely to be lawful’. A single instance of infringement renders a non-infringer an infringer, but in this case, no amount of consumption from legal sources can redeem an infringer.

As result, when the survey balances those who streamed or downloaded any content in the previous three months across any of the content types (music, movies, TV shows, video games, and/or live sports), the picture becomes more gloomy.

This 39% ‘overall infringement’ rate is up from the 30% reported in 2021 and exceeds the 34% reported in 2020. However, a new type of behavior introduced for the first time contributed to the rise in 2022. Pre-categorized as “likely” to be unlawful, credential sharing pushed up infringer rates by four points.

Credential Sharing

New unlawful methods of consumption are a feature of a continuously developing piracy landscape. In an effort to keep up with these emerging trends, the 2022 survey considered respondents who “pay a small fee to access one or many subscription services through a shared / unknown account (e.g. shared login credentials).”

Most people understand the concept of password sharing; a friend or family member shares their Netflix password, for example, so that the other person doesn’t have to pay. It’s the most common type of credential sharing for that very reason – it’s free.

By including “pay a small fee”, the category might be targeting people who share accounts with others for a fee, but then that misses the overwhelming majority who don’t. That leaves hacked/stolen accounts or conceivably subscription IPTV services, but as a paid piracy option, IPTV doesn’t appear in a distinct category of its own.

Despite the potential for confusion, 11% of all respondents said they had paid a small fee to access one or many subscription services through a shared or unknown account.

Muddying the waters a little more is the finding that of all respondents who personally pay for a legal subscription service, 33% allow someone outside their household to use it.

Site Blocking Measures

Site blocking doesn’t appear to bother pirates too much in Australia, possibly because the general public has seen it all before. After being denied timely access to legal movies and TV shows for many years, Australians turned to VPNs to ‘unblock’ access to overseas content.

According to this year’s study, 17% of consumers encountered a blocked site in the previous three months. Six out of ten “simply gave up” trying to access any content at all, a figure directly in line with last year’s survey.

Of the remainder, 16% bypassed the block, 14% sought alternative lawful access, while 6% attempted to obtain the same content for free from other illegal sources.

Pirate Blocking Countermeasures

Those who bypassed website blocks used various tools. With 46% overall, VPNs came out on top but still fell short of the 61% who used them in 2021. Just 6% used a custom DNS but nearly a quarter of respondents (23%) said they were aware of them.

Almost a quarter (24%) used some kind of proxy website, versus 21% in 2021. Nearly one-fifth (18%) say they used a search engine to find an alternative site, while 15% used Google Translate as a workaround.

The full report offers plenty of ammunition for those on all sides of the piracy debate.

For the optimistic, roughly three-quarters of the most dedicated consumers of content in all categories never pirate anything. Of the remainder, the majority are buying something, meaning they can be encouraged to buy more.

Even the estimates relating to fewer content categories aren’t that bad. When 61% of consumers exclusively use legal content and 39% are reported as having obtained pirated content once or more, that doesn’t mean 39% pirate everything.

“Within content types, no more than 12% of all respondents use only unlawful methods to access content and just 3% of all respondents use only unlawful consumption methods across all content types they consume,” the report reveals.

Or as the Australian government frames it: “Research conducted for the Attorney-General’s Department has revealed the rate of Australians accessing online content unlawfully remains disturbingly high.”

Consumer Survey on Online Copyright Infringement 2022 can be found here

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

Following a limited launch in 2007 with just 1,000 titles, Neflix now carries more than 6,600 movies and TV shows for the enjoyment of more than 223 million subscribers.

There’s little doubt that Netflix password sharing contributed to the company’s growth and by publicly condoning it, the practice was completely normalized – globally.

The message was clear – Netflix loves you, you love Netflix, and now all your friends love Netflix too. Thanks for sharing.

Netflix and similar streaming platforms, including Amazon Prime and Disney+, still want you to love them, but password sharing? Not so much.

Password Sharing is Not Love – It’s Piracy

Five years after Netflix’s now-infamous tweet, the ground is shifting. For the first time in its history, Netflix subscription numbers decreased earlier this year and competition from rivals Amazon Prime, Disney+, HBO and dozens of others is fierce.

In the background and across the entire industry, ‘password sharing’ is receiving a reverse makeover. Nobody loves today’s ‘password piracy’ and within the ACE anti-piracy coalition, which includes all of the streaming services mentioned above , the situation is no different.

Given the obvious sensitivities, ACE publicly prefers “unauthorized password sharing” as a descriptor and elsewhere the phrase “without permission” is in common use. In Denmark, anti-piracy group Rights Alliance describes password sharing as “not allowed” but this summer there was a small but significant step forward.

“The extent of password sharing among Danes is therefore alarmingly high and eventually on a par with other forms of illegal consumption of content,” the group said.

UK Government Declares Password Sharing Illegal

Since password sharing is almost always a violation of streaming services’ terms of service, observers have tended to paint it as such. The general tone is that password sharing is not illegal per se but Netflix & Co. aren’t particularly fond of it anymore.

In a low-key announcement today, the UK Government’s Intellectual Property Office announced a new campaign in partnership with Meta, aiming to help people avoid piracy and counterfeit goods online.

Other than in the headline, there is zero mention of Meta in the accompanying advice, and almost no advice that hasn’t been issued before. But then this appears:

TorrentFreak immediately contacted the Intellectual Property Office for clarification on the legal side, particularly since password sharing sits under a piracy heading.

The IPO’s response was uncompromising, to put it mildly.

Password Sharing is Illegal & Potentially Criminal

Fraud has been the key charge in several big UK piracy cases over the last few years, despite the key offenses having a direct link to copyright law. Fraud is a criminal offense in the UK and a conviction could easily prevent or even end a career. On a ‘being reasonable’ basis, we ruled fraud out.

According to the IPO, nothing can be ruled out.

“There are a range of provisions in criminal and civil law which may be applicable in the case of password sharing where the intent is to allow a user to access copyright protected works without payment,” the IPO informs TorrentFreak.

“These provisions may include breach of contractual terms, fraud or secondary copyright infringement depending on the circumstances.”

Given that using the “services of a members’ club without paying and without being a member” is cited as an example of fraud in the UK , the bar for criminality is set very low, unless the Crown Prosecution Service decides otherwise, of course.

A subscription streaming service pursuing a password-sharing subscriber for fraud might present itself as a legal option, but a PR disaster is never a commercial option, especially when password sharing could be ended today using technical means. So what else is on the table?

Other Legal Options

Other options mentioned by the IPO are directly linked to contract law and licensing, both of which govern subscriber behavior. So-called ‘terms of service’ are part of the agreement when people subscribe to a streaming service like Netflix.

Of course, few people read every term in detail (including when the terms are varied via email) but Netflix’s agreement document grants specific rights to the subscriber under contract and copyright law, neither of which allows password sharing beyond specified limits.

It’s of some interest that sharing a password can be described as “unauthorized” or “not allowed” by anti-piracy groups and rightsholders yet be considered a serious criminal offense under existing law. Either way, the Intellectual Property Office didn’t label password sharing illegal and a potential crime for no reason.

Overall, deterrence seems to be the goal here. Criminalizing tens of thousands of people is a self-inflicted headache the UK doesn’t need and in practical terms, couldn’t begin to cope with.

If streaming services really wanted to stop password sharing, they already have the means to do so. Whether they have the will is another matter.

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

YouTube is one of the most successful sites ever to grace the internet. The site is extremely easy to use and with almost no barriers to entry, it’s one of the best platforms to build an audience.

On the downside, using unlicensed content to gain traction renders successes vulnerable to sudden collapse on the whim of a copyright holder. That could mean a strike, a channel ban, or even a lawsuit.

After Arvin De La Santos restreamed the Jake Paul vs. Ben Askren fight on his YourEXTRA YouTube channel in April 2021, Triller filed a DMCA notice and YouTube removed the content. For a channel that specialized in “drama related” topics, the next year of events could’ve taken it to the next level.

Triller Lawsuit – June 2021

YourEXTRA built an audience of 113,000+ subscribers and generated 14 million views in just four years, but after Triller hit De La Santos with a full-blown lawsuit in June 2021, the channel went quiet. Filed at a California district court, the scale of Triller’s complaint probably contributed to the silence.

Triller described De La Santos as a business entity and sued for copyright infringement (making the content available on YouTube), vicarious copyright infringement (liability for YouTube viewers’ infringement), plus violations of the Federal Communications Act (alleged interception of satellite broadcasts).

When combined these overly ambitious claims stretched well beyond six digits but even a partial win for Triller would’ve been devastating for De La Santos. So, in its determination to send a message to pirates, Triller dug in. What the YouTuber needed now was a good lawyer and on October 18, 2021, intellectual property specialist Steven Vondram stepped in to answer Triller’s complaint.

Triller Accused of Deception

Defendants are required to file an answer but in most cases they consist of a tedious list of yes, no, or don’t know type responses. This one was different. According to the defense, De La Santos was “enticed to settle the alleged infringement” instead of going to court. He reportedly paid a settlement fee to Triller, which came with a release of claims. Things didn’t go to plan.

“Thereafter, [Triller] filed this lawsuit and returned the settlement fee (without interest) and now seeks to recover damages and attorney fees that they are not entitled to,” the YouTuber’s attorney informed the court .

“This is a deceptive act and practice under California law. The parties have previously agreed and resolved this dispute, which Plaintiff has now refused to honor.”

Alleged wrongdoing in hand, De La Santos attempted to turn the tables. He asked for the complaint to be dismissed with prejudice, judgment to be entered in his favor, plus an order for costs and attorneys’ fees incurred to date.

Neither Side Gives Ground

A joint report to the court in November 2021 revealed a damages claim adjustment but little progress. Statutory copyright damages can reach $150,000 per claim but the report indicated $140,000. Triller’s original complaint demanded $110,000 for each violation of the Federal Communications Act but the report cited an adjusted figure of $10,000.

For his part, De La Santos insisted that since he’d settled the matter, he would respond by sueing Triller for damages. Triller warned it would depose both the YouTuber and a “corporate representative” of the YourEXTRA YouTube channel, and conduct discovery to find out how the broadcast was obtained, how it was shared and with whom, and whether any financial benefit was accrued by the YouTuber.

Money Makes The World Go Round

In March 2022, Vondran told the California district court that a written retainer agreement between him and his client required payment for certain fees “if a settlement wasn’t achieved” and if the lawsuit “moved to litigation,” which it clearly had.

Court records show that De La Santos couldn’t actually afford a lawyer so Vondran requested permission to withdraw as counsel for the defense, noting that “YourNEXT is NOT a corporation.” De La Santos could either represent himself or find replacement counsel, but he’d probably be forced to default, Vondran wrote.

Triller Wins Partial Summary Judgment

With De La Santos apparently in no position to mount a credible defense, five weeks later Triller submitted a proposed summary judgment declaring the YouTuber liable on three grounds: direct infringement, vicarious infringement, and violation of the Federal Communications Act.

Against defendants Del Santos, YourEXTRA, and Does 1-10, Triller demanded $50,000 jointly and severally under 17 U.S.C. § 504(a)-(c) , $10,000 under 47 U.S. Code § 605 (Unauthorized publication or use of communications), plus reasonable attorneys’ fees and costs.

Triller submitted a second, largely unchanged proposed summary judgment this June and in July, United States District Judge Dale S. Fischer agreed that Triller was entitled to summary judgment on the issue of copyright infringement.

“Triller has demonstrated that even if Defendants were not actually aware that their conduct constituted copyright infringement, Defendants at the very least recklessly disregarded that possibility or were willfully blind to it,” Judge Fischer wrote.

Triller’s Damages Claim Lacked Substance

Triller’s $50,000 statutory damages claim for copyright infringement was based on its assertion that “at least one thousand people” chose to watch the fight on the YourEXTRA YouTube channel instead of paying $50 each to Triller..

The theory presented to the court stated that De La Santos had made “several hundred dollars” by gaining around one thousand followers and one million views on his YouTube channel by airing the fight. Given that the fight was quickly taken down by Triller, these numbers didn’t appear to make much sense. There were reasons for that.

Surprisingly, Triller’s figures were not obtained directly from YouTube. They were reportedly supplied by social media tracker Social Blade but carried no markings to prove that was actually the case. Even more fundamentally, the viewing numbers related to the YourEXTRA channel overall, not the number of views generated by the infringing fight broadcast.

Judge Fischer concluded that the evidence was inadmissible.

No Evidence to Support Remaining Claims Either

Claims that De La Santos intercepted a satellite broadcast in violation of the Federal Communications Act also fell flat. Section 605 only applies when a broadcast is received from the air and since Triller’s evidence failed to establish that, its motion on that cause was denied.

Triller’s claim for vicarious copyright infringement fared no better. While the Judge found the company’s direct infringment claims convincing, no evidence of copyright infringement carried out by YouTube users was presented to the court. Without that, the claim failed.

In conclusion, Triller’s motion was granted in respect of willful copyright infringement but denied on all other grounds. Triller responded by filing a motion to dismiss all of the claims denied by the Judge, leaving a single copyright infringement claim intact. Good news for De La Santos then? Not at all.

Willful Infringement

Late October 2022, with liability for willful copyright infringement confirmed by the Court, it was all but inevitable that Triller would revise its claim. Statutory damages allow copyright holders to receive damages of between $750 and $30,000 per work but, when infringement is willful, the maximum is increased to $150,000. That’s exactly what Triller demanded.

In his judgment dated November 16, 2022, Judge Fischer awarded Triller maximum statutory damages of $150,000 for willful copyright infringement plus $20,626.25 in attorneys’ fees.

With no means to pay for a defense, De La Santos couldn’t even argue over the small change. If this was a boxing match, both arms would’ve been tied behind his back as Triller punched him in the face. Whether that constitutes a ‘landmark’ victory is for others to decide but if nothing else, a clear message has been sent once again thanks to the availability of statutory damages in copyright cases.

Final Thoughts: $150,000 in Perspective

The fight itself lasted one minute and 59 seconds meaning that each second cost De La Santos a cool $1,433. According to the Georgia Athletic and Entertainment Commission, Jake Paul’s official purse was $690,000, meaning that De La Santos is now on the hook for just over 21% of Paul’s declared earnings.

Triller reported 500,000 PPV buys at $49.99 each, roughly $25 million. Jake Paul reported 1.5 million buys, roughly $75 million.

De La Santos will likely regret that night for a long time and there’s no question that Triller wants to send a clear message to pirates. Boxing fans, on the other hand, might point to a much bigger crime.

Four boxers who fought on the same card were paid as follows: Jeyson Minda ($8,000), Junior Younan ($25,000), William Jackson ($8,000) and Quinton Randall ($15,000). If we combine all four fighters’ purses, 39 seconds of infringement by De La Santos on YouTube covers the lot.

Or it would do if he actually pays anything, which is doubtful.

The YouTuber was served at an address in Canada where U.S. Federal and State Courts have no jurisdiction over Canadian residents or companies. Canadian courts can recognize foreign judgments but can also deny them, if foreign judgments offend Canadian public policy.

Related court filings can be found here ( 1 , 2 , 3 , 4 , 5 , 6 , pdf)

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

Setting aside two hours to watch a movie can be a luxury these days, especially when the busiest among us claim they can guzzle 200 TikTok videos in much less than that.

So-called ‘Fast Movie’ channels appear to offer some middle ground. Popular mainstream movies lasting a couple of hours are edited down to around 10 minutes and then uploaded to YouTube. The aim is to keep the storyline more or less intact yet despite obvious drawbacks, millions of people enjoy watching them.

Fast Movie Crackdown

Signs that movie companies were about to send a message trickled through last year. Japan does not recognize fair use and even if it did, experts predicted that ‘Fast Movies’ would still cross red lines. People generating advertising revenue from ‘Fast Movies’ certainly wouldn’t improve things either.

In June 2021, three ‘Fast Movie’ YouTubers were arrested in Japan following criminal complaints from several media companies. All three faced potential prison sentences plus fines for crimes allegedly committed in 2020.

In the face of overwhelming evidence, the defendants entered guilty pleas and received prison sentences of between 18 and 24 months, suspended for up to four years, plus total fines of around $25,000, payable to the state.

But it didn’t end there.

13 Media Companies Seek Damages in Civil Lawsuit

In May 2022, 13 member companies of the Content Overseas Distribution Association (CODA) and Japan Video Software Association (JVA) followed up their win in the criminal matter by filing a civil lawsuit at the Tokyo District Court.

Listing 54 copyrighted works including ‘I Am a Hero’ and ‘Shin Godzilla’, Asmik Ace, Kadokawa, Gaga, Shochiku, TBS Television, Toei, Toei Video, Toho, Nikkatsu, Nippon Television Network, Happinet Phantom Studio, Fuji Television, and WOWOW, said that the defendants’ ‘Fast Movies’ had been viewed 10 million times on YouTube, causing two billion yen ($14.2 million) in overall damages.

For the purposes of their civil damages lawsuit, however, the plaintiffs entered a partial claim of ‘just’ 500 million yen ($3.56 million) against the defendants collectively.

Tokyo District Court Decision

In a decision handed down yesterday at the Tokyo District Court, Judge Masaki Sugiura acknowledged that the two defendants responsible for uploading the ‘Fast Movie’ edits without permission should compensate the rightsholders for the damages caused.

In line with the media companies’ reduced claim, the defendants were ordered to pay 500 million yen, roughly $3.56 million. Having sent the clearest possible message, the plaintiffs followed up with a joint statement delivered by their partner anti-piracy groups.

“This is a ruling that fully upholds our allegations, and we believe that it should be a great deterrent against copyright infringement in the future,” a joint CODA and JVA statement reads.

“Compared to other copyright infringement cases in recent years, the amount of compensation awarded in this case is large. The 13 plaintiffs acted in unity so as not to allow the criminals to get away with impunity whilst profiting from copyright infringement, and the significance of this judgment is immeasurable.”

More Work To Be Done

Another key goal of media companies worldwide is to prevent pirate sites from generating revenue from advertising. After receiving a request from Shueisha, one of Japan’s largest manga publishers, anti-piracy group CODA sought action from an advertising company in Spain.

“CODA confirmed placement of advertisements on 27 pirated manga sites in Japan and Hiroyuki NAKAJIMA, Legal Director of CBEP ‘Cross-Border Enforcement Project’) run by CODA in association with Japan’s Ministry of Economy, Trade and Industry, requested in writing, thorough a Spanish law firm, to stop placing ads on these sites on 17th October 2022,” CODA says.

“The Ad Agency responded on 30th October pointing out that although it is impossible to grasp the contents of all the websites that it renders services, it had canceled the contracts with the sites in question and had stopped providing services to all the 27 sites, and promised to ensure that it would not provide services, nor would it enter into contracts with those who infringe intellectual property rights in the future.”

CODA says that it has continued to monitor the 27 sites and can now confirm that 26 carry no ads provided by the unnamed agency. The remaining site is under investigation.

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

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Faced with the prospect of copyright strikes, Content ID claims and potential account loss, thousands of YouTubers, TikTok users, and other content creators use music provided by Epidemic Sound.

Founded in 2009 and based in Sweden, Epidemic Sound has a library of more than 35,000 music soundtracks and 90,000 sound effects.

Licensing is offered on a subscription basis for as little as 9 euros per month and for that, personal creators can use Epidemic’s music and monetize a channel on YouTube, Facebook, TikTok, Instagram and Twitch.

Commercial users publishing content for clients and businesses pay a slightly higher rate. Enterprise users pay even more but are free to include Epidemic Sound content in TV shows and ads, for example. According to a lawsuit just filed in a California district court, Meta is utilizing Epidemic Sound content on a massive scale but isn’t paying the company a single penny for the privilege.

Massive, Rampant Copyright Infringement

“This action seeks to stop the theft of music created by hundreds of musicians, songwriters, producers and vocalists, theft occurring knowingly, intentionally and brazenly by Meta on its Facebook and Instagram social media platforms on a daily basis,” the complaint begins.

“Defendant Meta is not merely aware of this infringement. It has actively infringed, as well as participated in, encouraged and enabled such infringement.”

This type of language has been seen before in copyright infringement lawsuits filed against user-generated content platforms. Often the response from the platform is that if rightsholders send a DMCA-style notice, they’ll take down infringing content posted by their users. The complaint filed by Epidemic goes far beyond that.

Epidemic’s licenses allow its licensees (subscribers) to incorporate Epidemic’s tracks into their own content but no permission is given to license, sublicense, distribute or otherwise authorize use of Epidemic content to third parties. If third parties such as Meta want to use Epidemic content directly, they need to obtain their own license on the correct terms.

The lawsuit claims that Meta’s Facebook and Instagram are using Epidemic content as if it were their own, making that content available to users of Facebook and Instagram, but with no licensing in place to do so.

“Meta itself has been storing, curating, reproducing, performing, distributing, and otherwise exploiting Epidemic’s music on a daily basis, without a license,” Epidemic’s complaint reads.

The numbers in the complaint are significant. Epidemic says its music is available across millions of videos that have been viewed billions of times. Approximately 50,000 infringing videos and 30,000 new uploads containing Epidemic’s music are uploaded to Facebook and Instagram, respectively, on a daily basis.

The company estimates that around 94% of content using Epidemic’s music on Meta’s platforms is unlicensed and thus infringing.

Meta Incorporated Epidemic Content Into Its Music Library

Epidemic’s claims are potentially extremely serious. The company alleges that Meta has created a curated library of music that it stores and organizes by genre. This library is made available to users of Facebook and Instagram, not only for downloading and streaming, but also for use in user-generated video content and posts.

“Epidemic knows of over 950 of its music tracks that have been reproduced, stored, made available to, and distributed to its users by Meta through its Music Library or through its other content sharing tools without a license. Epidemic is confident that further research would reveal additional infringements,” the complaint reads.

In all cases, Epidemic is the copyright owner of both the sound recordings and underlying musical compositions, so more than 1,800 copyrighted works are allegedly being infringed by Meta. Epidemic says Meta is generating revenue on the back of this infringement but thus far, Meta hasn’t obtained a license or shared any portion of its advertising revenue with the music company.

Alleged Direct Use of Infringing Content

The complaint alleges that Meta’s infringement has “grown even more rampant” recently, in part due to Meta’s creation of tools and features that enable users of its platforms to infringe Epidemic’s rights. Two Instagram features – Original Audio and Reels Remix – are called out specifically.

When Instagram users create a short video clip called a Reel, they are able to search the platform’s audio library for music to accompany the Reel. If the Reel contains music not detected by Instagram as being included in its library, the ‘Original Audio’ feature presumes the content is owned by the user posting the Reel.

When other users view that Reel, a button appears that allows them to ‘rip’ the music to include it in their own Reel. The music can also be added to their personal library on the platform for future use.

“Meta provides the tools to allow the viewer to synchronize that music to that viewer’s own Reel and promotes such tool publicly. Meta acknowledges that this unlimited copying, sharing, synchronization and distribution of music, licensed or not, is the intention behind the Original Audio feature.”

“[T]he Original Audio feature allows Meta to extract, or separate the music from the original video content in which it was incorporated, and reproduce it for any of their billions of users who wish to incorporate it into their own video content, irrespective of whether Meta (or anyone else) has any authority to offer, reproduce, distribute or otherwise use that music in the first instance.

“No one, even Epidemic’s licensed subscribers, has the right to do this without Epidemic’s authorization,” the complaint adds.

Reels Remix allows users to take another user’s audiovisual content, including any music, and incorporate it into their own Reel. Epidemic claims the feature encourages and contributes to “exponential infringement”, whereby the infringing acts of one user are replicated by any number of others.

Meta Has “Stonewalled” Epidemic

Meta offers a tool called ‘Rights Manager’ that’s designed to help rightsholders “manage, authorize, protect and drive value from their videos, audio and image content on Facebook and Instagram.” According to the complaint, Meta allowed Epidemic to access Rights Manager for video content but refused to grant access for audio content management.

“Meta’s refusal continued despite Epidemic’s repeated explanations that the rights management tool for video was woefully insufficient to monitor or protect its music on Meta’s platforms at scale,” the company says.

“Meta’s unjustified and unexplained refusal to provide Epidemic with access to its rights management tool for music content has enabled and continues to contribute to the rampant infringement of Epidemic’s music on its platforms.”

The lawsuit states that in addition to infringement by users, Meta is aware that it is “actively storing, offering, curating, reproducing, performing and distributing” Epidemic’s music without a license, via its Music library and its “Reels Remix” and “Original Audio” features.

Epidemic says that Meta claims to have licenses with other distributors that authorize it to use some Epidemic tracks but Epidemic states that no third parties are authorized to provide Meta with rights.

Copyright Infringment Claims

The complaint states that by making or causing to be made unauthorized reproductions of Epidemic’s copyright works, and then made available for permanent download, streaming and synchronization, Meta commits willful direct copyright infringement. As a result, Epidemic is entitled to maximum statutory damages of $150,000 per work, to a minimum of $142 million in damages.

Epidemic says that Meta’s music library and associated features Original Audio and Reels Remix both encourage and provide the necessary tools for Facebook and Instagram users to infringe its copyrights. The complaint again demands maximum statutory damages of $150,000 per work for willful infringement, to a minimum of $142 million in damages.

The complaint states that Meta is also liable as a contributory copyright infringer by providing tools to its users to enable them to infringe Epidemic’s copyrights. Alleging willful infringement, the complaint again seeks maximum statutory damages of $150,000 per work but no less than $142 million. The company also seeks a permanent injunction.

Epidemic Sound’s complaint against Meta, obtained by TorrentFreak, can be found here (pdf)

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

Around October 2020 a Twitter user called ‘ MrMoneyBags ‘ began posting critical messages targeting billionaires.

Brian Sheth, the former President of Vista Equity Partners, a private equity fund based in Austin, Texas, received special attention. MrMoneyBags posted six tweets accompanied by photos, with added commentary relating to Sheth’s wealth and his alleged lifestyle.

“Brian Sheth has upgraded in his personal life. The only thing better than having a wife … is having a hot young girlfriend,” said MrMoneyBags, referencing a photo of a woman in a bikini and high heels.

Other tweets continued along the same lines, sometimes hinting at an extramarital affair between the woman and Sheth. Soon after and in mysterious circumstances, copyright law entered the equation.

DMCA Takedowns Followed by DMCA Subpoena

On October 29, 2020, a business entity called Bayside Advisory LLC contacted Twitter stating that since it owns the copyrights in the six photos, they should be taken down under the DMCA. Twitter later fulfilled its obligations under copyright law by removing them but Bayside was only just getting started.

After the DMCA takedowns were sent to Twitter, Bayside registered copyrights in the photos, went to court, and obtained a DMCA subpoena requiring Twitter to hand over information sufficient to identify MrMoneyBags, thereby removing their anonymity.

Twitter objected to the subpoena, arguing that disclosure would undermine its user’s First Amendment rights. The company also expressed concern that via the DMCA subpoena, copyright law was being used to suppress criticism or rumors of extramarital affairs.

Furthermore, Twitter said that Bayside was in no position to claim copyright infringement to obtain the details of the alleged infringer (MrMoneyBags). Since the speech attached to the photographs constituted fair use, there was no infringer to identify.

Twitter’s motion to quash the subpoena was met with opposition from Bayside. In response Magistrate Judge Donna Ryu issued an order offering MrMoneyBags an opportunity to anonymously file evidence in support of Twitter and to argue that the photos were used on a fair use basis. The court received no response.

The Judge noted that the lack of a “well-developed record” in the case meant that a finding of non-infringement based on fair use wasn’t possible without evidence from MrMoneyBags. As a result, Bayside’s motion to compel was granted in late 2021 but Twitter objected and declined to hand over MrMoneyBags’ details.

Twitter Moves to Overturn Magistrate’s Order

In January 2022, the case was reassigned to District Judge Vince Chhabria and within weeks the Electronic Frontier Foundation and ACLU Foundation of Northern California filed an amicus brief , arguing that the magistrate’s ruling “sidestepped the First Amendment” when it focused solely on whether MrMoneyBags’ tweets made fair use of the photos.

“Narrowing the inquiry to focus exclusively on whether copyright infringement occurred incorrectly allows the nature of the claim to drive the analysis, rather than the nature of the speech at issue,” the brief noted.

Noting that the tweets appeared to be “noncommercial, transformative, critical commentary — classic fair uses,” the brief argued that even if Bayside had a viable infringement claim, it could not show that unmasking the Twitter user was truly necessary to advance its interests, and that those interests outweighed the harm that would result.

Public Citizen later submitted a brief that supported Twitter and similar platforms to defend the First Amendment rights of their users ( pdf ) .

A brief submitted by the Copyright Alliance was mainly concerned with keeping a tight rein on existing practices for dealing with copyright infringement disputes. One part noted that MrMoneyBags could have taken “the simple step” of submitting a DMCA counter-notice if they believed their use of the photos was fair ( pdf ) .

Of course, that would’ve meant MrMoneyBags’s real name and address being handed to Bayside months earlier. It would’ve have negated the need for this entire case, which was clearly aimed at protecting his identity from the shadowy Bayside entity and whoever is pulling the strings behind the scenes.

As it later turned out, Bayside’s dubious nature played a major role in tainting its own case.

Judge Chhabria Sides With Twitter

In an order handed down this week, Judge Chhabria first challenges Bayside’s assertion that a provision in the DMCA subpoena process divests the court of authority to consider the merits of a copyright claim (or issues of First Amendment privilege) when faced with a motion to compel or quash a DMCA subpoena.

“Bayside’s reading of the DMCA raises serious constitutional concerns. After all, it is not enough to say that a speaker could assert their right to anonymity after their identity has been revealed; at that point, the damage will have been done. Fortunately, the statute does not compel (or permit) this result,” Judge Chhabria writes.

A recipient of a DMCA subpoena may move to quash it on the basis that the subpoena would require disclosure of material protected by the First Amendment, his order clarifies.

“Bayside next argues that, to the extent MoneyBags has any First Amendment interest in this case, it is wholly accounted for through copyright’s fair use analysis, which allows the public to use copyrighted works in certain circumstances without facing liability,” the Judge continues.

“But while it may be true that the fair use analysis wholly encompasses free expression concerns in some cases, that is not true in all cases — and it is not true in a case like this. That is because it is possible for a speaker’s interest in anonymity to extend beyond the alleged infringement.”

Addressing Bayside’s assertion that MrMoneyBags’ absence from the case dooms Twitter’s motion, the Judge disagrees. His appearance would’ve been helpful but wasn’t absolutely necessary since Twitter’s interest in the dispute aligns with his – both have an interest in MrMoneyBags’ ability to speak his mind on the Twitter platform without facing retaliation.

Hiring a lawyer to litigate a copyright claim can be very expensive too, so out of concern, a speaker may opt to stop speaking rather than assert their right to do so anonymously.

“Indeed, there is some evidence that this is what happened here: MoneyBags has not tweeted since Twitter was ordered to notify him of this dispute.”

Two-Step Test and Fair Use

For a litigant to unmask the identity of an anonymous internet user in this type of case, the party seeking the disclosure must first demonstrate a prima facie case on the merits of its underlying claim. The second step sees the court balancing the need for such discovery against the First Amendment interest at stake.

According to the Judge, Bayside’s underlying claim – that of copyright infringement – fails when subjected to the four factors of fair use.

1) At the time the photos were used, MrMoneyBags’ Twitter account had a small following with just a handful of likes, retweets or comments, something that rules out commercial use. MrMoneyBags’ use of the photos alongside his own biting commentary and criticism led to a transformative use that reflected his “apparent distaste for the lifestyle and moral compass of one-percenters,” the order notes.

2) As to the nature of the copyrighted works, the Judge assessed some as the kind of material people might post to Facebook or Instagram. Others were more artistic, with elements such as lighting, positioning and wardrobe giving the appearance of intentional selection.

Unfortunately, Bayside provided no evidence about the photographs themselves, including where they were taken, by whom, the photographic subjects involved, or whether there was actually any attempt by the photographer to influence the creative process. As a result, the Judge finds this factor to be “largely inconclusive.”

3) On the amount of the copyrighted content used, in the context of a photograph that “is not meaningfully divisible”, the Judge finds the third factor ‘neutral’.

4) When considering the effect of the use on the potential market for or value of the copyrighted work, the Judge says that determining market harm is difficult when a use is transformative and non-commercial. Bayside claimed that it licenses photos for commercial exploitation but the Judge didn’t buy that, especially since the company offered no evidence to show market harm.

Taking all of these factors into account, Bayside has not demonstrated a prima facie case of copyright infringement. Even if it had, the Judge says that the subpoena would still need to be quashed since the balance of equities tilts in favor of MrMoneyBags and his right to remain anonymous.

“Unmasking MoneyBags thus risks exposing him to ‘economic or official retaliation’ by Sheth or his associates,” the Judge writes, before diving down the Bayside rabbit hole.

The Bayside Mystery ‘Makes a Difference’

According to the order, the Court is not assured that Bayside has no connection to Brian Sheth. Bayside was not formed until the month the tweets were posted and the entity had never registered any copyrights until the registration of the six photographs.

That there is no publicly available information about Bayside’s principals, staff, physical location, formation or purposes, and that the entity declined to present additional evidence or information that might help the court, seems to have sounded alarm bells.

Indeed, the Judge concludes by handing a win to Twitter (and by extension MrMoneyBags) and quashing the DMCA subpoena, with a barbed comment aimed at a shadowy entity that values anonymity, as long as it’s theirs.

“Bayside’s choice not to supplement the record makes it quite easy to balance MoneyBags’s interest in preserving his anonymity against Bayside’s alleged interest in protecting its apparent copyrights,” Judge Chhabria writes.

“On this record, even if Bayside had made a prima facie showing of copyright infringement, the Court would quash the subpoena in a heartbeat.”

Documents for the entire legal saga can be found here

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

When YouTube first got off the ground in 2005, most of its users would’ve been oblivious to how closely copyright law would govern their online activities moving forward.

Seventeen years later, with billions of internet users now both consumers and creators of content, people are becoming more educated. Terms such as DMCA, copyright strike and fair use are now regular features in YouTube content creator communities but that hasn’t necessarily led to fewer infringements or happier rightsholders.

Media companies in Japan believe that the use of overwhelming force to send a deterrent message may go some way to solving these problems.

The Rise of ‘Fast Movies’ Receives a Crushing Response

Up until last summer, so-called ‘Fast Movies’ didn’t seem like a key concern for the movie industry. These heavily edited copies of mainstream movies aim to summarize key plot lines via voice-over narration in about 10 minutes. While no replacement for the real thing, these edits accumulated millions of views and incurred the wrath of rightsholders, leading to the arrest of three people in Japan.

According to companies including Toho and Nikkatsu, these people infringed copyrights on a grand scale for monetary gain. After entering guilty pleas, last November all three received suspended prison sentences and were ordered to pay fines to the state. The deterrent messaging of that criminal case is now being underlined with a civil lawsuit.

13 Media Companies Want ‘Fast Movies’ Stamped Out

Last week, 13 member companies of the Content Overseas Distribution Association (CODA) and Japan Video Software Association (JVA) filed a civil lawsuit at the Tokyo District Court. It targets the same three individuals convicted in last year’s criminal matter with the aim of recovering significant financial compensation for damages.

The plaintiffs – Asmik Ace, Kadokawa, Gaga, Shochiku, TBS Television, Toei, Toei Video, Toho, Nikkatsu, Nippon Television Network, Happinet Phantom Studio, Fuji Television, and WOWOW – claim infringement in 54 copyrighted works including ‘I Am a Hero’ and ‘Shin Godzilla’. Additional facts underlying the lawsuit were established during the earlier trial.

The defendants admitted running multiple YouTube channels leading to their ‘Fast Movies’ being viewed around 10 million times. The 13 plaintiffs in the civil lawsuit say that as a result, they collectively incurred damages of two billion yen, around $15.7 million.

For the purposes of their civil damages lawsuit, the plaintiffs have settled on a partial claim of ‘just’ 500 million yen ($3.9 million) against the three defendants collectively.

Sending a Strong Deterrent Message

Clear indications of how seriously the anti-piracy groups and media companies are taking this action were on display after the lawsuit was filed last week. A press conference was held in Tokyo with a representative of CODA and three attorneys present to answer questions on the case. (Image credit: CODA )

Those present, including CODA director Kenro Goto, highlighted that the three defendants committed criminal acts when they uploaded the movie edits and then profited from advertising revenue.

The civil action aims to underline those convictions with a strong message that rightsholders will not allow people to free-ride on creators’ content without facing significant financial consequences.

The overall message is one of deterrence coupled with the reaffirmation of copyright law, Goto said.

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