Internet provider Cox Communications has been on the sharp end of several piracy lawsuits in recent years.

The biggest hit came three years ago when the Internet provider lost its legal battle against a group of major record labels.

A Virginia jury held Cox liable for pirating subscribers because it failed to terminate accounts after repeated accusations, ordering the company to pay $1 billion in damages . This landmark ruling was appealed and while Cox remains liable for contributory copyright infringement, the damages award may change.

New Damages Trial ‘Delayed’

The court of appeals recently dismissed the vicarious liability claims and vacated the $1 billion damages award. A new trial will determine the scale of the damages given these new circumstances.

When the court of appeals issues its mandate, the lower court can start a new damages proceeding. However, Cox believes that it’s best to put the brakes on this process, as there is another appeal pending that could influence the outcome. That has to conclude first.

The record labels don’t object to this reasoning and have informed the court that its mandate could be stayed until the second appeal is finalized. The court of appeals subsequently granted the request last Friday.

Cox Works on Supreme Court Petition

These procedural issues typically aren’t very exciting but, in this case, Cox also revealed that it plans to file a writ of certiorari, asking the Supreme Court to take on the piracy liability battle. That’s notable, as it would be the first time that a “repeat infringer” case ends up at the highest court United States.

Cox asked the court of appeals to also stay its mandate pending its Supreme Court application, as this could steer the legal battle in yet another direction.

According to Cox, the Supreme Court has substantial reasons to take on the case. For one, there are currently conflicting court of appeals rulings on the “material contribution” aspect of copyright infringement.

The Supreme Court could give more clarity on when a service, with a myriad of lawful uses, can be held liable for infringers.

In addition, Cox also cites the recent ‘Twitter vs. Taamneh’ Supreme Court ruling, which held that social media platforms aren’t liable for terrorists who use their network. While that’s not a copyright case, it’s relevant for the secondary liability question, the ISP argues.

“Though Twitter was not a copyright case, it confronted a directly analogous theory of secondary liability: that social-media platforms, including Twitter and YouTube, could be liable for continuing to provide services to those they knew were using them for illegal purposes,” Cox writes.

Termination Risk

Finally, Cox notes that the Supreme Court should hear the case because it deals with an issue that’s ‘exceptionally important’ to ISPs as well as the public. If the present verdict stands, Internet providers may be much more likely to terminate Internet access, even if the subscriber is innocent.

“This Court’s material-contribution standard provides powerful incentives for ISPs of all stripes to swiftly terminate internet services that have been used to infringe— no matter the universe of lawful uses to which those services are put, or the consequences to innocent, non-infringing people who also use those services.

“That is why a chorus of amici urged this Court not to adopt this standard at the panel and en banc stages, and will likely urge the Supreme Court to grant review as well,” Cox adds, referring to the support it received from third-parties previously.

No Supreme Court Stay

Cox hasn’t filed a writ of certiorari yet and still has time, as it’s due June 17, 2024. The intention to go to the Supreme Court would be another reason to halt the new damages trial, according to Cox, but the court of appeals rejected the request.

This means that the new damages trial can start, even if the case is still pending at the Supreme Court. However, it’s clear that this legal battle is far from over yet.

—

A copy of Cox’s motion to stay the mandate, with the Supreme Court comments, is available here (pdf) . The Appeals Court’s order on this motion can be found here (pdf)

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

Private torrent trackers with Danish roots have long been the go-to place for file-sharers in Denmark. Not anymore.

Starting in the fall of 2020 , Danish law enforcement toppled several thriving torrent communities.

With help from local anti-piracy group Rights Alliance , DanishBits, NordicBits, ShareUniversity, Asgaard and others were systematically dismantled.

Sting Operation

When the first trackers fell, preparations for the operation had been ongoing for years. It all started when a former lawyer working for Rights Alliance went undercover at the private tracker DanishBits in 2016. As a quiet user, the infiltrator mapped the site’s internal relationships and identified key individuals in the wider Danish tracker ecosystem.

The details of this sting operation read like a film script but for many involved, it turned into a real-life drama. Not only were several trackers subsequently shut down, a number of community members were prosecuted too. More than two dozen people, from prolific uploaders to ringleaders, all had their day in court.

After the tracker dominoes fell, more than two dozen suspects were investigated and taken to court. This resulted in a wide range of sentences, with most of the tracker admins receiving conditional prison sentences of a few months. Some were ordered to carry out community service.

Conditional Prison Sentence

This week, the National Unit for Special Crimes ( NSK ) announced the final sentence related to the ‘Asgaard’ tracker. The Court in Horsens sentenced a 48-year-old man from East Jutland, who pleaded guilty to copyright infringement, to a suspended prison sentence of 60 days.

The defendant was the last of seven Asgaard tracker administrators to go before the court. The man helped to get the torrent site off the ground in 2019 and served as an admin of NordicBits before that; both offenses were accounted for in the conviction.

Asgaard became immensely popular in Denmark toward the end of 2020, after DanishBits and NordicBits shut down. The site had an estimated 1.5 million monthly visits at its height, making it the biggest pirate site in the country for a while.

Harsher Punishment Wanted

The guilty verdict is good news for Rights Alliance, but a bittersweet victory. While the crackdown effectively decimated the torrent tracker problem, the sentences handed down have been relatively ‘mild’. The tracker operator and many other “ringleaders” don’t have to serve time in prison, as the sentences are conditional.

Rights Alliance Director Maria Fredenslund notes that copyright and IP-related crimes are historically not viewed as severe crimes in Denmark, adding that a tougher sentence would be more effective.

“Sentences for IP crime are in general too low in Denmark, to have a sufficient deterrent effect. We believe the sentences in many cases should have been much harder,” Fredenslund informs TF.

“The reality is that IP crime has not been seen as a severe crime in Denmark historically, so we are starting from a low point and building from there to obtain adequate sentencing that will keep others from committing similar crimes.”

NSK prosecutor Hans Bohn Sørensen is content with the verdict, however, which marks the end of the Asgaard prosecution.

“I am satisfied with the verdict, which now ends the proceedings against the founders and administrators behind one of the largest illegal file sharing services we have had in Denmark,” Sørensen says.

Threat Neutralized?

The recent sentence and those that were handed down earlier are not the harshest on a global scale and unlikely to spook hardened criminals. However, deterrence is not solely determined by the harshness of a punishment .

Another factor that plays a key role is the likelihood of getting caught. With a multi-year crackdown on several trackers, Danish police and NSK have shown that this risk is, perhaps, higher than ever.

Commenting on this aspect, Fredenslund praises the authorities’ invaluable efforts, which helped to ensure that Danish file-sharing services no longer pose a significant threat to Danish rights holders.

Of course, new trackers will always emerge but Rights Alliance sees these as marginal problems in the grander scheme.

“The current trackers only harbor the very hardcore illegal users in Denmark. They don’t pose a threat that’s comparable to Asgaard, ShareUniversity, DanishBits, etc.,” Fredenslund notes.

With the final conviction of the last Asgaard admin, all cases related to the tracker are closed. Cases against other trackers are still pending, however. In the meantime, Rights Alliance maintains its focus on emerging threats, including those related to Artificial Intelligence.

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

For the best part of 15 years, maybe more, Sweden was rarely out of the piracy headlines. Kept busy by the endless antics of The Pirate Bay, there was always some type of chaos to contend with, and that kept everyone very busy.

With an entire generation exposed to piracy thanks to the most notorious pirates of them all, there was always a question mark over Sweden’s ability to turn its back on The Pirate Bay in favor of legitimate services. Spotify, another local phenomenon, played a key role when it specifically targeted pirates; its product is still vastly superior to any music-focused piracy service available anywhere.

While still not averse to dabbling around the main brace of The Pirate Bay, towards the middle of the last decade, Swedes were increasingly turning to an old pirate friend sporting a new coat of paint. Video streaming had been around for years but when packaged up as a consumer-like product, accessed via a living-room set-top box rather than a PC, Swedes had their collective heads turned. They weren’t alone.

Swedes and the New Piracy Boogeyman

Starting around 2016, give or take depending on region, pirate IPTV services exploded globally. Acting as a direct replacement, for some even an antidote to runaway expensive TV subscription packages, the IPTV boom most likely had entertainment companies reluctantly nostalgic for The Pirate Bay.

A study published by the EU Intellectual Property Office in November 2019 revealed ( pdf ) that Sweden and the Netherlands were the most prolific consumers of pirate IPTV services in the entire bloc, with 9% of each population already exposed.

At the same time, legal consumption was trending up but with an overall piracy rate of around 20%, rightsholders could still see potential profit slipping away.

Pressure Increases on Players in the Illicit Market

In common with its counterparts in Europe, Sweden had already been paying more attention to those involved in the supply and sale of pirate IPTV subscriptions. Most investigations fell to local anti-piracy group Rights Alliance which represents the interests of large local broadcasters and film companies, plus those of the majors in Hollywood.

In 2022, a then 23-year-old was criminally convicted and ordered to pay around $230,000 in damages to local rightsholders. Soon after a subscription reseller received a six-month sentence , a step up from the community sentences seen earlier. Other cases came and went, mostly ending in success for the plaintiffs.

Anticipation Following Lengthy Investigation

In 2019, the same year that Sweden and the Netherlands were dueling for top spot on the EU’s IPTV piracy list, Rights Alliance referred an IPTV piracy case to local police. The group believed the man was behind Dreamhost, one of the more popular pirate IPTV brands in Sweden and therefore a priority target.

Regardless of the target, no investigation of this type is ever straightforward. As Rights Alliance reported in 2023, the cross-border nature of the offending can require evidence to be obtained from overseas, meaning that cases can drag on for quite some time. In this case, already four years.

Nevertheless, Rights Alliance described the evidence as extensive. A resident of southern Sweden, the man was the alleged registrant of the service’s domain name. He moderated the service’s chats, for which the logs had been obtained, and he answered questions posed by customers.

On top of IP address tracking evidence and email address data, a financial investigation reportedly identified two bitcoin wallets linked to the suspect, and data revealing that almost SEK 2,000,000 was received in 2020 alone, roughly $189,000 at today’s rates. Police also found payments between the suspect’s accounts and an account linked to Dreamhost.

Sales to Friends and Family, Fear, Remote Control

Last September in advance of his trial, Rights Alliance revealed that under questioning, the man admitted doing some technical work for Dreamhost and selling subscriptions to family and friends. He also claimed that he didn’t know who was behind Dreamhost and at times, since he felt threatened, allowed his computer to be controlled remotely, by a person he couldn’t identify.

Whether the claims had any substance is unclear but the rightsholders behind the prosecution would be requesting serious compensation for damage caused by the service, Rights Alliance said.

Guilty Verdict

In an October 2023 announcement, Rights Alliance revealed that the man had been found guilty. The extensive evidence was noted once again and reference was made to the SEK 2,000,000 the man received in 2020. The sentence itself appeared to come as a disappointment, however.

“The penalty was determined to be a suspended sentence and 100 daily fines,” Rights Alliance reported, a reference to the Swedish system where fines are calculated based on a person’s daily income. The number of ‘day fines’ imposed is meant to mirror the amount lost had the convicted been imprisoned without earnings.

Noting that the man had avoided being sentenced under the much tougher regime now in place, Rights Alliance said little else.

Decision Went to Appeal

A Rights Alliance statement published Thursday summarizes a verdict also handed down yesterdayby the Patent and Market Appeal Court. Rights Alliance didn’t post a copy of the decision and the court is yet to make it public, but it seems likely that the rightsholders appealed against the relatively light sentence handed down last October.

The verdict as reported suggests that the conditional sentence and 100 day fines stands. However, the SEK 2,000,000 in damages payable to rightsholders is now being reported as SEK 1,700,000. A SEK 300,000 reduction transforms the $189,000 award to one just shy of $160,000.

“The verdict shows that it takes a long time from report to verdict, but that despite everything, it is not possible to avoid the long arm of the law,” Rights Alliance concludes.

When searching fruitlessly for a copy of the decision handed down Thursday, we stumbled across another case that appears to challenge the assertion that the long arm of the law is inevitable.

Details Matter

The case involves an appeal of a judgment handed down by the Patent and Market Court in June 2022 and a person named only as L.K., who was accused of copyright infringement in connection with the website swedeniptv.se.

“According to the indictment, L.K.’s involvement in the offense primarily consisted of paying for the domain and administering the website, charging customers, and marketing the website. Secondly, he is alleged to have promoted others’ illegal distribution of the films, which occurred via the website swedeniptv.se,” a decision by the court of appeal reads.

“The Patent and Market Court of Appeal assesses that it is already evident from L.K.’s own statements that he had the primary role concerning the website swedeniptv.se. However, his main objections to the indictment are that the films in question were not available via the website and that he acted as a so-called ‘gatekeeper’ for other individuals who remotely controlled his computers.”

It appears that when L.K. was on trial, the prosecutor (acting for movie company plaintiffs Swedish Film Industry, Nordisk Film, Disney, Universal, and Sony) alleged that the movies were made available to the public via the website swedeniptv.se. In reality, people purchased subscriptions from swedeniptv.se and then received a link via email which linked to servers in the Netherlands.

The court of appeal found that films being made available via an email link to a Dutch website was something “not apparent from the description of the act” provided by the prosecution. As a result it had not been shown beyond reasonable doubt that L.K. committed the act the prosecutor alleged.

The panel did not reach a unanimous decision. In light of the facts presented during case, including the defendant’s admissions, an objective view of the arguments of those who dissented reveals reasonable conclusions that could’ve prevailed anywhere else on a different day.

They appear to have been thwarted on a technicality, one that seems like it should’ve been completely avoidable

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

Online piracy continues to present massive challenges for the entertainment industries.

It’s a global issue that’s hard to contain, but the major U.S. record labels and several movie companies believe that Internet providers can offer a helping hand.

For roughly a quarter-century, rightsholders have sent copyright infringement notices to ISPs, informing them about alleged copyright infringements carried out by subscribers. While many providers forwarded these notices to their customers, they rarely led to follow-up action.

This is a problem according to some rightsholders, who want ISPs to terminate the connections of subscribers repeatedly linked to pirating activity. They point to the DMCA, which states that online service providers must terminate the accounts of repeat infringers “in appropriate circumstances.”

In an earlier case, Internet provider Cox was ordered to pay a billion dollars in damages after a jury found the ISP liable for copyright infringement. This damages award was recently reversed but the liability finding remains. Meanwhile, other ISPs are fighting similar legal battles.

Frontier vs. Music and Movie Companies

Most of these lawsuits take place in federal courts, but the New York bankruptcy court is dealing with a similar dispute. In two separate cases, one filed by several movie companies and the other by record labels , Internet provider Frontier Communications stands accused of failing to terminate repeat infringers.

The financially challenged Internet provider emerged from bankruptcy and is trying to rebuild its business. However, ghosts of the past continue to follow the company, including piracy liability allegations.

Last December, Frontier hoped to sway both cases in its favor. The ISP submitted a motion for judgment on the pleadings, asking the court to dismiss the claims from the movie and music companies, noting that these fail “as a matter of law.”

The motion’s central argument stems from the ‘ Twitter vs. Taamneh ‘ Supreme Court decision, where it was determined that social media platforms were not responsible for ISIS terrorists who used their services to recruit and raise funds. In a similar vein, Frontier believes that it shouldn’t be held liable for subscribers who pirate content.

Based on these and other arguments, Frontier asked the bankruptcy court to dismiss all piracy liability claims. Needless to say, the movie and music companies disagreed and both filed objections, urging the court to keep the claims intact.

Court Denies Dismissal Request

A few days ago, Chief U.S. Bankruptcy Judge Martin Glenn ruled on the motion, which brought bad news for Frontier. After reviewing the matter, Judge Glenn saw no reason to dismiss the copyright liability claims at this stage.

In a detailed memorandum opinion, the court concludes that the Supreme Court ruling in the social media case doesn’t directly translate to the matter at hand. While both deal with third-party liability, terrorism and copyright infringement are certainly not the same thing.

The Supreme Court ruling made it clear that secondary liability for online services doesn’t always apply. However, the court believes that decades of copyright infringement liability jurisprudence can’t be overlooked.

“The Court declines to graft an analysis of secondary criminal liability for aiding and abetting terrorism onto the well-established branch of law governing secondary liability for copyright infringement. Under the relevant standard, Claimants have alleged facts sufficient to state a claim,” Judge Glenn writes.

Pirates vs. Terrorists

The court notes that Internet providers are not automatically liable for everything that happens through their service. Even general knowledge of potentially illegal activity doesn’t automatically lead to a liability finding; context is key.

In the ‘Twitter vs. Taamneh‘ case, the terrorist attacks happened outside of the platform, at a nightclub in Istanbul. While the terrorists may have used Twitter and other social media platforms to facilitate their operations, there was no direct connection to the attack.

The movie and music companies alleged a more direct connection (nexus) between Frontier and the alleged copyright infringement in their case and the bankruptcy court agreed.

“The Reina attack was not carried out on or through a social media platform, but rather in Istanbul by terrorists who had maintained accounts on the platforms; in contrast, the copyright infringement alleged here took place via Frontier’s network itself. Twitter is thus distinguishable and does not compel dismissal,” Judge Glenn notes.

The court further clarifies that this doesn’t mean that ISPs are automatically liable for everything subscribers do through their connections. The DMCA has set clear guidelines Internet providers must adhere to if they want to rely on safe harbor protection.

In addition to simply providing an Internet connection, contributory copyright infringement also involves specific knowledge of infringement and the continued provision of the means to infringe. These issues play a role here too and, based on the pleadings, a dismissal is premature.

All in all, the court denies Frontier’s request to dismiss all the movie and music companies’ piracy liability claims. This is important for the present dispute, but it may also foreshadow what other courts may conclude in similar cases going forward.

—

A copy of Chief U.S. Bankruptcy Judge Martin Glenn’s order is available here (pdf) . Frontier’s originating motion can be found here (pdf) and the music and movie company responses are available here ( 1 , 2 )

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

Starting last year, various rightsholders have filed lawsuits against companies that develop AI models.

The list of complainants includes record labels, book authors, visual artists, and even the New York Times. These rightsholders all object to the presumed use of their work to train AI models without proper compensation.

The New York Times lawsuit targets OpenAI and Microsoft , who have both filed separate motions to dismiss this month. Microsoft’s response included a few paragraphs equating the recent AI fears to the doom and gloom scenarios that were painted by Hollywood when the VCR became popular in the 1980s.

VCR Doom and Gloom

The motion to dismiss cited early VCR scaremongering, including that of the late MPAA boss Jack Valenti, who warned of the potentially devastating consequences this novel technology could have on the movie industry.

This comparison triggered a reply from The Times, which clarified that generative AI is nothing like the VCR. It’s an entirely different technology with completely separate copyright concerns, the publication wrote . At the same time, the company labeled Microsoft’s other defenses, including fair use, as premature.

Before the New York court rules on the matter, Microsoft took the opportunity to respond once more. According to the tech giant, The Times took its VCR comparison too literally.

“Microsoft’s point was not that VCRs and LLMs are the same. It was that content creators have tried before to smother the democratizing power of new technology based on little more than doom foretold. The challenges failed, yet the doom never came.

“And that is why plaintiffs must offer more than imagined fears before the law will block innovation. That The Times can only think to dodge this point is telling indeed,” Microsoft added.

‘No Copyright Infringements Cited’

For the court, it is irrelevant whether the VCR comparisons make sense or not; the comparison is just lawsuit padding. What matters is whether The Times has pleaded copyright infringement and DMCA claims against Microsoft, sufficient to survive a motion to dismiss.

The Times argued that its claims are valid; the company asked the court to move the case forward, so it can conduct discovery and further back up its claims. However, Microsoft believes the legal dispute should end here, as no concrete copyright infringements have been cited.

“Having failed to plausibly plead its claims, The Times mostly just pleads for discovery. But the defects in its Complaint are too fundamental to brush aside. The Times is not entitled to proceed on contributory infringement claims without alleging a single instance of end-user infringement of its works,” Microsoft notes.

More Shortcomings

Similar shortcomings also apply to the other claims up for dismissal, including the alleged DMCA violation, which according to Microsoft lacks concrete evidence.

As highlighted previously, The Times did reference a Gizmodo article that suggested ChatGPT’s ‘Browse with Bing’ was used by people to bypass paywalls. However, Microsoft doesn’t see this as concrete evidence.

“This is like alleging that ‘some online articles report infringement happens on Facebook’. That does not support a claim. The Times cannot save a Complaint that identifies no instance of infringement by pointing to a secondary source that identifies no instance of infringement.”

Similarly, allegations that The Times’ ChatGPT prompts returned passages of New York Times articles isn’t sufficient either, as that’s not “third-party” copyright infringement.

“The Times is talking about its own prompts that allegedly “generated … outputs … that … violate The Times’s copyrights.’ An author cannot infringe its own works,” Microsoft notes.

Microsoft would like the court to grant its motion to dismiss, while The Times is eager to move forward. It’s now up to the court to decide if the case can progress, and if so, on what claims.

Alternatively, the parties can choose to settle their disagreements outside of court but, thus far, there’s no evidence to suggest that they’re actively trying to resolve their disagreements.

—-

A copy of Microsoft’s reply memorandum in support of its partial motion to dismiss, submitted at a New York federal court, can be found here (pdf)

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

In the fall of 2019 , Brazilian law enforcement agencies launched the first wave of anti-piracy campaign ‘Operation 404,’ referring to the well-known HTTP error code.

With help from law enforcement in the United States, the United Kingdom, and Argentina, the authorities took down more than a hundred sites and services, while several suspects were arrested.

Following its initial successes, several new waves ‘Operation 404’ were initiated over the ensuing years. Each wave led to raids and takedowns across the country, with assistance from international law enforcement partners. It was clear that Brazil had its enforcement apparatus in order, but the outcomes of these efforts in terms of follow-up actions were largely unknown.

This week, anti-piracy group ALIANZA booked its first ‘404’ related victory in court. Following a criminal complaint from the group, Judge Marina Figueiredo Coelho of the Fifth Criminal Court of Campinas, Sao Paolo, convicted the operator of a pirate IPTV service that was taken down in 2020.

Prison for Flash IPTV Operator

The operator of Flash IPTV, who is referred to by the initials A.W.A.P., was found guilty of criminal copyright infringement and sentenced to five years and four months in prison.

Flash IPTV was a relatively large IPTV service with 13,547 active users at its peak. According to local news reports , the service generated R$4,542,034 ($912,000) in revenue over twelve months, before it was taken offline in 2020 as part of the second ‘Operation 404’ campaign .

Speaking with TorrentFreak, ALIANZA says that this is a historic verdict, as it’s the first criminal IPTV prosecution linked to ‘Operation 404’ in Brazil.

“We appreciate the commitment of the police and judicial authorities in resolving this important case. The conviction of A.W.A.P. is a milestone that reinforces our commitment to defending the rights of creators and fighting against illegal practices that harm the creative economy,” says Víctor Roldán, ALIANZA’s executive director.

More to Come?

A copy of the verdict wasn’t released to the public, as is common with these types of convictions, so further details are scarce.

While Operation 404 resulted in many arrests over the years, follow-up prosecutions have been rare in Brazil. Previously, ALIANZA did score a similar victory in Ecuador , where the operator of the pirate IPTV service IPTVlisto.com was sentenced to a year in prison.

Last fall, Brazilian authorities conducted the sixth wave of Operation 404 and more are expected to follow in the future. These enforcement initiatives are broadly praised by rightsholders and the recent conviction will only strengthen their support.

There’s always room for improvement, of course. A few weeks ago, the International Intellectual Property Alliance (IIPA) recommended Brazil to remain on the US ‘ Special 301 ‘ Watch List of countries with IP-related challenges.

IIPA saw various positive developments, especially regarding Operation 404. However, disagreement between rightsholders over enforcement action could still improve.

“Brazil still suffers from a lack of specific norms and regulations regarding the enforcement of copyrighted works over the Internet and a lack of resources and staff to support enforcement actions considering the reach and amount of content piracy in the region,” IIPA wrote.

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 offered by the Internet Archive (IA) differs from the licensing agreements entered into by other libraries. Not all publishers are happy with IA’s approach, resulting in a major 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 in December the non-profit filed its opening brief at the Second Circuit Court of Appeals, hoping to reverse the judgment .

High Profile Support

The importance of this legal battle is illustrated by the large number of amicus briefs that are filed by third parties. Previously, IA received support from copyright scholars and the Authors Alliance, among others.

A few days ago, another round of amicus came in at the Court of Appeals, this time to back the publishers who filed their reply last week . In more than a handful of filings, prominent individuals and organizations urge the Appeals Court not to reverse the district court ruling, arguing that this would severely hamper the interests of copyright holders.

The briefs include positions from industry groups such as the MPA, RIAA, IFPI, Copyright Alliance, the Authors Guild, various writers unions, and many others. Legal scholars, professors, and former government officials, also chimed in.

RIAA, MPA, et al.

The RIAA and MPA submitted an amicus brief together with the NMPA and the News Media Alliance. These industry groups draw a parallel between the impact Napster and BitTorrent had on music and movie sales, and the threat IA’s self-scanning library poses today.

“Digital piracy has inflicted a huge economic toll on those industries and, by extension, on their ability to invest in new creative works and the artists who make them. Internet Archive’s theory of fair use represents a threat just as grave.”

Industry groups fear that if the Internet Archive is allowed to digitize and lend books, it could set a precedent for other forms of media. For instance, if services were able to lend music, movies, or news media to the general public, these industries might face similar challenges.

“Deeming Internet Archive’s mass reproduction and distribution program to be fair use would no doubt embolden not only Internet Archive itself but also other online platforms to freely ‘lend’ all types of copyrighted works to the public in digital formats,” they write.

“That would catastrophically harm the digital markets on which the music industry, the movie and television industry, the news industry, and similar industries depend to profitably create and distribute their works—and would thereby undermine the incentive for the creation of new works that copyright law exists to protect.”

According to the amici, there is nothing fair about IA’s digital library; instead, they see it as “unambiguous copyright infringement.”

Copyright Experts, Professors, and Lawmakers

A second amicus brief is submitted by more than a dozen professors and scholars of copyright and intellectual property law. They stress that IA’s practice should not be seen as “transformative” fair use, arguing that the library offers a “substitution” for books that are legally offered by the publishers.

This sets the case apart from current legal precedents including the Google Books case , where Google’s mass use of copyrighted books was deemed fair use.

“IA’s exploitation of copyrighted books is thus the polar opposite of the copying that was found to be transformative in Google Books and HathiTrust . IA offers no ‘utility-expanding’ searchable database to its subscribers. What it does offer is access to full-text books as a clearly competing substitute for the versions licensed by book publishers,” the legal scholars write.

Another amicus brief adds more heavyweight support for the publishers. This includes former judges and two dozen government officials and lawmakers, including Lamar Smith, former Chair of the House Judiciary Committee, and Bob Goodlatte, former Chair of the House Judiciary Committee.

This brief also rejects the Internet Archive’s fair use arguments, framing the library as a threat instead.

“IA does not further the public interest, but rather undermines incentives to create and disseminate books that benefit society. Thus, its actions are decidedly not protected by fair use,” their brief reads.

IA and AI

The final amicus brief we want to highlight comes from a broad collection international and regional trade groups from outside the United States. These include the International Publishers Association, the International Video Federation, and the Association of Canadian Publishers.

These groups also reject the fair use arguments. They stress that in addition to directly competing with the interests of publishers, IA’s library is also an indirect ‘artificial intelligence’ threat as the digitized books can be used as AI training material.

“The Internet Archive is an obvious source of high-quality works for AI training since these works have been professionally edited and improved by publishers. Entering the terms ‘Internet Archive DRM’ into any search engine results in a number of links to software tools that remove the Internet Archive’s DRM technology along with instructions on how to use it.

“Even if AI training is ultimately determined by U.S. courts to not be a fair use, Amici fear that the Internet Archive’s CDL collection has already been used as an AI training tool,” the international trade groups add.

In summary, the book publishers have plenty of external support for their legal battle. However, it remains to be seen whether any of these amici, including those in favor of IA, will influence the eventual outcome of the appeal.

—

Below is an overview of the amicus briefs that were filed over the past few days, all in support of the publishers.

– RIAA, MPA, NMPA, News Media Alliance .
– Former government officials, former judges, and intellectual property scholars .
– Copyright Alliance .
– Various organizations that represent the interests of writers and other creators .
– Professors and scholars of copyright and intellectual property law .
– International and regional trade bodies .

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

Sports leagues and their broadcasting partners across Europe believe that their piracy problems begin with the existence of illicit suppliers.

It follows that if those illicit suppliers can be prevented from reaching their subscribers, reasons for buying TV packages from the black market will be mostly eliminated and legal subscription sales will ensue.

As the legal owners of the rights in question, these corporate giants have the luxury to frame the issue however they choose. However, when the war on piracy begins to take a toll on those not even remotely involved, it raises the question of who has the authority to step in and where the threshold for intervention lies.

On Friday, a judge handling a copyright case concluded that since messaging platform Telegram had failed to help rightsholders identify the operators of certain Telegram channels, something needed to be done. Insisting that there was no other option available, the judge issued an order for Telegram to be blocked by ISPs throughout Spain.

The judge described the measure as “necessary” and “proportional” and in a few hours’ time, if not already, around eight million users of Telegram in Spain will have a chance to chime in with their opinions, but not via Telegram, obviously.

Update: March 25, 2024 : Amid a huge backlash in Spain, including criticism of the decision and the government by opposition parties, the blocking order has been suspended. See update below.

Media Giants Want to Unmask Telegram Channel Operators

Existence of the order and some general details were revealed by Telecinco on Friday.

The publication reported that as part of a copyright complaint previously filed by anti-piracy group EGEDA, Mediaset España, Atresmedia, and Movistar Plus, the rightsholders had demanded information from Telegram that could help them identify the operators of piracy-linked Telegram channels.

Despite the involvement of the court, Telegram failed to respond; Judge Pedraz concluded that since the investigation would now take more time, in the interim Telegram would have to be blocked by ISPs throughout Spain.

Telegram has previously been blocked by Iran, China, and Pakistan, among others, but the addition of Spain came as a surprise. Expecting to find considerable unreported nuance, TorrentFreak tracked down the order; issued by Juzgado Central de Instrucción Número 5 and dated March 22, 2024, it begins with a section marked “Factual Background.”

Case Background as Reported in the Order

The order describes the present proceedings in connection with the “continued infringement of intellectual property rights,” carried out by “owners of various channels created on the Telegram social network,” and an ongoing investigation involving the prosecutor’s office.

In a report dated March 8, 2024, the prosecutor’s office requested a six-month extension of the investigation period. This followed an EGEDA request and a writ filed on behalf of rightsholders Telefónica Audiovisual Digital (TAD), Movistar+, and Movistar Plus+.

After detailing the rules concerning investigations and time limits, the Judge notes in the absence of an extension, the current investigation is set to expire on March 29, 2024, having run for the maximum 12 months allowed under Article 324.1 LECrim .

Request for Judicial Assistance

The order then turns to the corporate entity operated by Telegram in the British Virgin Islands and the letters rogatory (letters of request) sent by the Spanish court to the Virgin Islands seeking judicial assistance.

“For the successful completion of the investigation, it is necessary to carry out the proceedings contained in the rogatory commission sent to the Virgin Islands, but so far there has been no news of compliance with the aforementioned instrument of cooperation,” the order reads.

“Numerous diligence of investigation will be pending depending on the information that will be provided by the execution of the above-mentioned international rogatory commission. Therefore, the period of investigation should be extended for six months in order to carry out the pending proceedings.”

Information Required For a Private Criminal Prosecution

The order reveals that non-compliance with the international rogatory commission sent by the Judge to the Virgin Islands on July 28, 2023, has effectively brought the investigation to a halt. The information sought by Judge Pedraz is required to support a private criminal prosecution brought by the media companies, not the state.

Private prosecutions in criminal cases are favored by sports rightsholders in the UK; as the alleged victim, rightsholders conduct their own investigations, harvest their own evidence, then act as the prosecution in the same case. There are no restrictions on the amount of legal firepower they’re permitted to deploy, meaning that in most cases defendants face the best lawyers money can buy.

Lack of Cooperation from Virgin Islands

Whether this aspect of the request is known to Telegram isn’t clear from the order. Indeed, the order makes no comment on whether Virgin Islands authorities even passed on the request, raising the question of what Telegram knows, or even if it knows anything at all.

“Telegram was requested to inform about certain technical data that would allow the identification of the holders of the accounts used for the infringement of the intellectual property rights of the entities appearing as Private Prosecutor. The lack of collaboration of the authorities of the Virgin Islands, who are only requested to communicate with the managers of the social network TELEGRAM, leads to the adoption of the precautionary measures requested by the private prosecutors,” the order reads.

“This repeated commission of the crime against intellectual property rights justifies the adoption of the requested precautionary measures, since the principles of necessity, suitability, and proportionality are met. The requested precautionary measures are the only possible measures in view of the lack of collaboration of the Virgin Islands authorities. There is no other type of measure that could stop the reiteration of the facts denounced.”

From this statement it’s clear that the rightsholders requested a complete block of Telegram in Spain and the Judge considered that a reasonable request.

Blocking Millions of Telegram Users is Acceptable

“The measure is suitable because its execution could put an end to the infringement of intellectual property rights denounced to prevent access through the TELEGRAM network to the contents of the aforementioned rights. The measure is proportional to the seriousness of the conduct denounced and in this analysis is related to the necessity of the measure,” the order continues, with the legal justification (translated from Spanish) as presented below.

The ISPs instructed to carry out the blocks within three hours of receiving the order are: Vodafone España, Orange Espagne, Orange España Virtual, MASMOVIL IBERCOM, Digi Spain Telecom, Telefónica España, Telefónica Móviles España, AVATEL TELECOM, ADAMO TELECOM IBERIA, AIRE NETWORKS DEL MEDITERRÁNEO, and PROCONO .

The Telegram assets to be blocked are: Telegram Web (https://web.telegram.org/k/), Telegram Messenger (https://telegram.org/), and Telegram Apps for Android and iOS. It appears the rightsholders were well-prepared since they mandate the following:

Apps: disable and block the connection [IP addresses, protocols, ports and any other connection element], to suspend the operation of the ‘Telegram’ application (app) of the connections from Smartphone and/or Tablet of the Operators’ users who have the “Telegram” “app” installed on their devices, operated from any operating system (Android, iOs).

Blocking Telegram or Denying Access to Non-Infringing Users

Judge Pedraz frames these measures as the blocking of Telegram but the mechanism chosen clearly shows that Telegram can still reach Spanish ISPs but the blocks they’re required to put in place prevent Telegram users from accessing the platform. That’s especially the case in respect of the apps where interference is directed towards functionality of apps on users’ devices.

While some may dismiss this as semantics on the basis that blocking pirate sites operates similarly, Telegram is not a pirate site and most Spanish users of Telegram are not pirates.

Whereas it might be reasonable to assert that most Spanish visitors to The Pirate Bay do so to infringe and therefore have no legal basis to visit the site, most visitors to Telegram do not visit the platform to infringe. Even of those that do, only a tiny minority will visit the channels in question. Nevertheless, millions of innocent Telegram users will soon be prevented from going about their entirely legal business.

That raises the fundamental question of the nature of the scales used to weigh the competing interests in this case and, more fundamentally, who is actually being punished here; Telegram as claimed, or non-infringing Spanish users?

Three Days to Appeal, Including Weekend

“An appeal for reform may be filed against this order, within a period of three days, before this Central Preliminary Examining Court, and/or, if applicable, an appeal, in a single effect, before the Criminal Chamber of the National High Court,” the order concludes.

As far as we’re aware there’s no recent news to indicate an appeal. These types of cases have traditionally seen ISPs step in but since the major ISPs in Spain are either rightsholders in their own right or have a commercial interest in blocking going ahead, an appeal from that direction seems unlikely.

We’re currently unaware of any comment from Telegram but given the scale of the response versus the problem to be solved, this matter is likely to attract international attention and scrutiny. Common wisdom suggests that when an adversary is making a mistake, he should be allowed to do so without being interrupted, so we may hear from Telegram in due course.

Update: March 25, 2024 : Amid a huge backlash in Spain, including criticism of the decision and the government by opposition parties, the blocking order has been suspended. National Court Judge Santiago Pedraz has requested a report from the General Information Commissioner’s Office (Comisaría General de Información) to provide data on the characteristics of Telegram and an assessment of the impact the measure could have if implemented.

A statement from the Podomos party criticized the government for failing to act in the face of “genuine censorship” at the hands of the “oligopoly of complainant communication companies” whose interests are “taking precedence” over the “freedoms of many citizens.”

Update: Official statement from the communications office of the National Court (translated from Spanish)

The judge of the National Court Santiago Pedraz issued an order this Monday in which he agreed, prior to the temporary suspension of the resources associated with Telegram, to request a report from the General Information Commissioner’s Office on the Telegram platform. The magistrate requests information about its characteristics as well as the impact that the temporary suspension, that he agreed to in an order last Friday and whose execution remains suspended, may have on users.

In the aforementioned order, the magistrate ordered the telecommunications and Internet access operators to temporarily suspend Telegram in the framework of a procedure against the owners of various channels created on the social network, for continued violations of intellectual property rights.

In his resolution, Pedraz explained that the measure has legal support contemplated in article 13.2 of the LECrim: “In the investigation of crimes committed through the internet, telephone or any other information or communication technology, the court may agree, as first steps, ex officio or at the request of a party, precautionary measures consisting of the provisional removal of illicit content, the provisional interruption of the services offered by said content, or the provisional blocking of both when they are located in a foreign country.”

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

The Motion Picture Association’s interest in file-hosting platform DoodStream first came to light in a submission to the USTR in October 2022 .

The MPA described DoodStream as a video hosting service offering free storage and premium services including priority encoding and an ad-free experience. Videos uploaded to the platform were embedded on many other streaming sites, the MPA reported, and as a result, traffic was booming.

The MPA estimated the site received 82.7 million visits in August 2022, while using the services of DDoS-Guard in Russia and OVH in France.

“DoodStream operates a partner program that offers financial remuneration, either per download or stream depending on the country of origin,” the MPA informed the USTR in its ‘notorious markets’ submission.

A year later in a new submission to the USTR, the MPA described DoodStream as a ‘top priority’ for its anti-piracy efforts.

DoodStream in the Spotlight

In its October 2023 submission to the USTR’s notorious markets report, the MPA’s cyberlocker and video streaming category listed DoodStream front and center as the priority problem. The MPA still believed the site was operating from OVH in France but also listed other companies as hosts, including Online S.A.S., Hetzner Online GmbH, and Interkvm Host10 SRL.

The MPA noted that the Delhi High Court had ordered ISPs to block DoodStream in 2023, a measure also handed down by a French court during the same year. The Paris court noted that the site “encouraged the infringement of copyright and related rights by setting up tools specifically designed for the mass and illicit sharing of protected content.”

“The operators are located in India,” the MPA informed the USTR.

Entertainment Giants Team Up Against DoodStream

Two months later, Karyn Temple, Senior Executive Vice President and MPA Global General Counsel referenced DoodStream before the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet ( pdf ) . DoodStream continued, business as usual, until now.

In a lawsuit being heard at the High Court of Delhi, eight plaintiffs are listed as follows: Warner Bros. Entertainment Inc., Amazon Content Services LLC, Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Netflix US, LLC, Paramount Pictures Corporation, Universal City Studios Productions LLP and Apple Video Programming.

A total of six defendants include the domains doodstream.com, doodstream.co, dood.stream and their underlying websites (defendants 1-3), plus a server (defendant 4) used by defendants 1 to 3 which allegedly facilitates storing and dissemination of illegal content. Defendants 5 and 6, neither of whom have been named, are reportedly site operators.

According to counsel for the plaintiffs, “rogue cyberlocker websites provide an infrastructure specifically designed to incentivize hosting, uploading, storing, sharing, streaming, and authorize the downloading of copyrighted material without obtaining authorization from the plaintiffs.

Claims Against The DoodStream Defendants

The plaintiffs allege that a massive amount of infringing content to which they have exclusive rights, is uploaded by users on the defendants’ websites.

“Counsel for plaintiffs say the studios approached defendants upon noticing this infringing content, first in June, 2023, after they discovered the identity as to who was operating these websites, who happen to be individuals based in Coimbatore, Tamil Nadu, India, arrayed as defendants nos. 5 and 6,” an order from the court reads.

“This, according to plaintiffs’ counsel, was achieved after some effort since the WHOIS details of defendant nos. 1 to 3 were masked.”

The court notes that the plaintiffs continuously pursued the defendants to take the infringing content down. However, despite promises to comply, a mechanism built in to the site simply generated new links whenever content was supposedly removed.

“Further, uploaded content would also generate a link which could be disseminated by the uploader and therefore, potentially could be disseminated through parallel websites. Thus, as per counsel for plaintiffs, the takedown itself was elusive and of no effect, since the system immediately permitted generation of a new link.”

The court notes that through this mechanism, DoodStream becomes a “hydra-headed monster” that is difficult to police through takedowns alone.

Plaintiffs Want DoodStream Shut Down

The plaintiffs submit that DoodStream should either be comprehensively blocked or a Local Commissioner should be appointed to take over the administration of the sites. However, counsel for the defendants told the court that their clients are prepared to “exhaustively and completely” remove the plaintiffs’ content from the platform.

Due to the link generation mechanism in operation on the site, the plaintiffs expressed concern that content taken down would nnot stay down. The defendants offered assurances that they would “change the features on their websites’ architecture” to ensure that once the process of takedown is complete, regeneration would not be allowed.

In view of this undertaking, the court ordered ( pdf ) all content belonging to the plaintiffs to be taken down within 24 hours, and ordered the defendants to hire a chartered accountant to disclose all revenue generated by the sites since their launch.

The case is listed for hearing on April 8, 2014.

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