Since the reign of the original Xbox, hacking team Team-Xecuter has built a reputation for defeating the digital locks that prevent users from running pirated games on consoles.

More recently, Team-Xecuter has been strongly linked to the Nintendo Switch scene but last year the operation hit the rocks when their operation found itself at the center of a criminal case prosecuted by the US Government.

Last year the US Department of Justice announced that two members of Team-Xecuter had been arrested. Max Louarn, a 48-year-old French national, and 51-year-old Gary Bowser from Canada, were placed in custody and charged under suspicion of being part of a criminal conspiracy. A third defendant, a Chinese man named Yuanning Chen, 35, was reportedly at large.

As that case progresses in the background, with Team-Xecuter’s future in the balance , Nintendo is now taking direct legal action against one of the defendants.

Nintendo Sues Gary Bowser in a US Court

Filed in Washington court on Friday, the lawsuit describes Bowser as one of the leaders of Team-Xecuter, which in turn is described as a “pirate operation” that unlawfully manufactures and traffics for profit an “unauthorized operating system” called ‘SX OS’ and associated circumvention devices.

“The purpose of the Circumvention Devices and the SX OS —developed, manufactured, and trafficked under Defendant’s leadership — is to hijack the Nintendo Switch by interrupting and bypassing its technological security features and protections,” the complaint reads.

“The Circumvention Devices strip away or circumvent technological protection measures Nintendo put into place to protect its invaluable copyrighted software and video games from unauthorized access and copying.”

Nintendo says that Bowser is one of a handful of key Team-Xecuter members running the operation day-to-day, including by trafficking in SX OS and circumvention devices via websites, marketing, managing advertising, liaising with manufacturers, and dealing with multiple resellers, several of whom have already been dragged through the courts in the US.

The gaming giant claims that Bowser operated at least four websites – Team-Xecuter.com, Xecuter.rocks, and Team-Xecuter.rocks, and Sx-Xecuter.com, through which SX OS and circumvention devices were marketed. Nintendo also claims that Bowser was the founder and operator of MaxConsole.com which served as a central location for customer and reseller support.

According to the complaint, Nintendo was able to match Bowser with the online handles “Gary opa” and “GaryOPA” since at times, the aliases appeared alongside the full name Gary Bowser. This shows that Bowser is Team-Xecuter’s “front man” and that he had control of the websites’ content, Nintendo adds.

Team-Xecuter and Gary Bowser – A History of Hacking

While the complaint only targets alleged Switch-related offenses, Nintendo supplies a potted history of Bowser’s involvement in the hacking scene dating back at least 13 years.

The complaint states that Bowser was charged in Canada in 2008 in connection with an “elaborate operation” to counterfeit Nintendo games and modify games consoles, adding that Bowser has trafficked in circumvention devices for several consoles prior to the Switch including Nintendo DS, Wii, and 3DS.

In respect of SX OS, Nintendo says it was wildly popular and at one point was pre-installed on 89% of modded/hacked Nintendo Switch products available for sale. This caused Nintendo “tremendous harm” and undermined the trust that third-party developers should have in Nintendo that their games won’t be illegally distributed or played.

Multiple and Sustained Breaches of the DMCA

Nintendo says that it should be protected by the anti-circumvention and anti-trafficking provisions of the Digital Millennium Copyright Act (DMCA) but Bowser violated Nintendo’s rights by supplying SX OS and circumvention devices that defeated the company’s technological protection measures.

Trafficking in SX OS and circumvention devices has already been shown to be illegal, Nintendo writes, pointing to a pair of earlier Switch-related cases, one decided last December with a $2m judgment and another with a broad injunction .

“Notwithstanding some of the success Nintendo has had enforcing its rights against resellers of the Circumvention Devices, Defendant has continued to thumb his nose at the law, manufacturing and trafficking in the Circumvention Devices and SX OS,” Nintendo says.

“He has empowered resellers to re-emerge and launch new websites—including after the same websites had been shut down by courts and other vehicles of enforcement—and facilitated additional avenues of distribution, all forcing Nintendo into a game of whack-a-mole.”

Trafficking in Devices in Violation of the DMCA

Section 1201 of the DMCA prohibits the trafficking of devices that are primarily designed to circumvent technological protection measures that control access to and prevent the copying of copyrighted works. This includes their manufacture, importation, and sales to the public.

Nintendo says that Bowser violated its rights when it offered tools including SX OS, SX Tools, SX Installer, SX Server, SX Loader, SX Dumper, and similar software distributed via MaxConsole.com. The defendant also breached the DMCA when he selected and approved resellers of SX OS license codes, since that is considered a “service” as defined under the DMCA.

In addition, every time Bowser recruited people as testers of the SX Core and SX Lite products he shipped circumvention devices to those testers, which Nintendo says amounts to additional trafficking offenses.

For Bowser’s alleged violations of 17 U.S.C. § 1201 , Nintendo says it is entitled to the maximum statutory damages of $2,500 for each breach listed in two counts, plus costs and attorneys’ fees. The company also demands a permanent injunction prohibiting any further acts of trafficking in devices and software.

Nintendo also claims that Bowser infringed its copyrights when he displayed images of the company’s games on the Team-Xecuter site. Interestingly, the statutory damages for each infringement here are substantially larger than for breaches of the DMCA’s anti-circumvention provisions. For each of the nine images displayed, Nintendo is demanding $150,000 in damages plus, costs, fees and a permanent injunction.

Finally, Nintendo wants Bowser to hand over all the domains listed in the complaint, including all of the Team-Xecuter, Xecuter, and MaxConsole variants. It also demands an order that will allow it to seize and destroy all copies of SX OS and circumvention devices in Bowser’s custody.

Nintendo’s complaint against Gary Bowser can be found here (pdf)

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

Nintendo is currently engaged in a war of attrition against individuals and groups who help people to pirate and play unlicensed Switch games.

Products and individuals involved with the infamous Team-Xecutor became targets last summer and alongside, Nintendo has been chipping away at other sellers of similar circumvention devices.

Lawsuit Filed Against Amazon Vendor

Last November, Nintendo filed a lawsuit against Le Hoang Minh, an Amazon vendor doing business under the name ‘Winmart’. According to the gaming giant, the trader was selling RCM Loader, a Switch device marketed as a plug-and-play solution for injecting payload files to allow booting into custom firmware (CFW), including Team-Xecutor’s SX OS.

“Once this circumvention has occurred, the unauthorized CFW modifies the authorized Nintendo Switch operating system, thereby allowing users to obtain and play virtually any pirated game made for the Nintendo Switch. All of this happens without authorization or compensation to Nintendo or to any authorized game publishers,” the company explained.

Le Hoang Minh, who according to Nintendo is a resident of Vietnam, was sent a DMCA notice by Nintendo via Amazon, citing the anti-circumvention provisions of the DMCA. As a result, a specific listing was taken down by Amazon but the defendant subsequently filed a counternotice stating that Nintendo had made an error. As a result, the listing was restored.

In its lawsuit, Amazon claimed that Le Hoang Minh was not only a seller of RCM Loader devices but also the manufacturer too, going on to demand the maximum statutory damages available under the DMCA and a broad injunction preventing any future sales. Nintendo also demanded relief for the defendant’s alleged abuse of the DMCA’s counternotification system.

Defendant Fails to Respond, Nintendo Moves For Default

In a motion for default judgment filed this week, Nintendo says that it filed its lawsuit in response to the defendant’s counternotice, in order to keep the Amazon listing down. However, the defendant failed to respond to the lawsuit or enter into discussions with Nintendo.

As a result, Nintendo demanded a default judgment on each of its claims, arguing that since the defendant is in Vietnam, only a ruling from a US court would allow it to prevent sales of RCM Loader taking place in the United States.

To promote what Nintendo describes as “an efficient resolution” of the matter, the gaming giant reduced its damages claims to just $2,500 for all actions carried out by the defendant in breach of the anti-trafficking provisions of the DMCA.

“This request for a $2,500 award is intended to be very conservative and does not reflect anything close to the full amount of damages Nintendo could reasonably seek from Defendant,” the company writes.

“Nintendo could…credibly seek a separate award for every device Defendant sold — almost certainly many devices, given that Defendant’s RCM Loader device was available online for many months. However, rather than attempt to quantify Defendant’s total sales, Nintendo seeks to facilitate an efficient resolution of this case through entry of judgment awarding damages for a single § 1201 violation.”

Nintendo also informed the court that it had incurred considerable costs pursuing the case but was not seeking to have those reimbursed. However, the company still demanded a judgment in its favor in respect of the DMCA violations, the misrepresentations made by the defendant in his DMCA counternotice, and the request for a permanent injunction.

Court Sides With Nintendo

After considering Nintendo’s motion for default, the court ruled that should be granted. In a final judgment issued Thursday, the court laid down the terms.

A permanent injunction was granted against Le Hoang Minh and all other individuals and entities acting in concert, restraining all from circumventing or assisting in circumventing any technological security measures that effectively control access to Nintendo’s copyrighted works.

The same are also restrained from manufacturing, offering for sale, distributing, exporting or otherwise trafficking into the United States “any and all products, services, devices, components or parts thereof” that are designed or produced for circumventing security measures in Nintendo’s consoles, products and protected works.

Turning to RCM Loader and any product with identical function, the court restrained the defendant from carrying out sales, distribution, imports and/or shipping to any person or entity in the United States. Le Hoang Minh is also banned from indirectly infringing, facilitating, encouraging, promoting or inducing the infringement of Nintendo’s copyrights, whether in existence now or in the future.

In an effort to prevent sales on platforms such as Amazon, the defendant was restrained from offering RCM Loader or any similar product for sale or distribution. Any seller or online marketplace who receives notice of the order must also “immediately cease and permanently refrain” from offering any such products in the United States.

The court also authorized Nintendo to seize and destroy all circumvention devices and software that violate its copyrights or exclusive licenses. It further granted the $2,500 in statutory damages requested by Nintendo and reminded the defendant that any violation of the order may be punishable as contempt of court.

Nintendo’s Motion for Default Judgment can be found here (pdf)

The Final Judgment and Permanent Injunction can be found here (pdf)

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

When copyright trolls scour BitTorrent swarms looking for IP addresses, they have absolutely no idea who sits behind them.

ISPs can eventually be forced to hand over the subscribers’ personal details but even then there’s no solid proof of who carried out the infringement, if there was one. Cases tend to get decided on the balance of probabilities, meaning that an individual in a single-occupancy household finds themselves in a much more tenuous position and under pressure to settle.

But what happens when there are multiple occupants or even multiple households with many, many potential infringers? In Denmark, it appears, the response from copyright trolls remains the same: We don’t care who infringed: Pay us.

Law Firms’ Reputations Destroyed

Aggressive copyright-trolling has developed into a worldwide scandal over the past 15 years, with numerous lawyers finding themselves suspended and even imprisoned for their behavior. But even now, law firms wander into the fire nonetheless, with Denmark’s Njord Law just the latest example.

After accusing thousands of Danes of illegally sharing movies using BitTorrent, Scandinavian law firm Njord Law approached many for cash settlements despite their clients not holding the copyrights to the content in question. As a result, a partner in the firm and the firm itself have been charged with serious fraud offenses dating back to April 2017.

As that case develops in the background, those targeted with questionable settlement demands are stepping forward with stories that only reinforce what observers have known for some time: Something is rotten in the state of Denmark.

Copyright Trolls Target Cooperative Housing Association

The whole idea of copyright enforcement is to find the actual infringer and force them to compensate the rightsholder for their actions. For copyright trolls, however, finding the actual infringer doesn’t seem as important as finding someone who will simply take responsibility and pay, even if they aren’t guilty of anything.

This notion is underlined by a case reported by Berlingske ( paywall ), involving 37-year-old Christie Bak, who in 2019 was chairman of the board of a cooperative housing association in Copenhagen.

The association received correspondence from Njord Law, who alleged that the association’s Internet connection had been used to download and share a porn film. To settle this matter the law firm wanted a payment of DKK 7,500 (around US$1,200) with the suggestion that things could get much more expensive if the matter went to court.

The association contacted the law firm, informing them that they had no idea about any porn downloads so were considering employing a lawyer to deal with the matter. This, of course, would cost the association money, something copyright trolls are only too aware of.

Balancing The Books

At this point in a copyright troll matter, both parties are led into their own set of calculations. Most law firms don’t want to take cases to court since early settlements are far more lucrative and less hassle. On the other hand, they are well aware that if their target lawyers up, they might not get anything. So, at this point, many copyright trolls attempt to make it more attractive to settle and less attractive to mount a defense. This case was no different.

After the housing association indicated it could fight back, Njord Law made a counteroffer of DKK 4,000 (around US$640) to make the matter go away, an amount getting dangerously close to the cost of hiring a lawyer to send a couple of “back off” letters.

Counteroffer Made The Association Suspicious

Christie Bak informs Berlingske that the rapid reduction of the amount being demanded raised her suspicions. If Njord Law were originally prepared to go to court with the evidence they had, why were they now offering to settle for much less?

“Was it because they had a thin case? Did they think it would be nice if they could just get some money out of us? It seemed strange,” she says.

Discussing the matter with members of the cooperative’s board, Bak says it was made clear that if someone had been responsible for the sharing of the movie, they could just come forward and the association would’ve simply paid the settlement “in good conscience”. In the event, no one in the entire association knew anything about the alleged infringement.

Housing Project Has Shared Internet, No Infringer Identified

Unable to identify who (if anyone) had carried out the alleged infringement, Njord Law was informed that it could’ve been anyone, including various holidaymakers who also had access to the association’s Internet connection. This prompted the initial reduction to DKK 4,000 but that amount was rejected by the association.

In this case, knowledge was power. The association wrote back to Njord and informed the law firm that they were aware that Njord’s file-sharing cases were floundering in the courts, with three cases in particular already having been rejected. They also informed Njord that the evidence of its copyright troll partners was also being questioned in the media.

“The only thing we saw was some paper with some [IP address] numbers on it. There was no letter or explanation. It also did not appear where they got the numbers from. How could we be sure that it was not something they had manipulated? There was no guarantee of authenticity on it. It was just a lot of print,” Bak informs Berlingske.

Njord Law Reduces Settlement Amount Yet Again

Following this response, Njord – having previously stated the strength of its case – quickly dropped its demands to DKK 2,500 (US$400) – an amount that would be gobbled up by a lawyer in a matter of minutes, should the association choose to defend itself in a lawsuit.

In the event, the board did the calculations and took the decision to pay Njord off, a decision that Bak says she now regrets.

Journalist Freja Marquardt contacted Njord Law with a request to comment on the matter, including previous correspondence with the law firm suggesting that lawsuits aren’t filed against entities offering Internet in “open access conditions”.

No Comment – Legal Ethics

Njord lawyer Lars Lokdam told Marquardt that due to the company fully complying with the rules of legal ethics, it was impossible for him to talk about the case since the settlement was private. On the related matters, including not filing lawsuits against those who enter into dialogue or have widely accessible Internet, he refused to answer any questions.

What appears clear, however, is that at least in some instances (and certainly in this case), companies like Njord Law and their copyright troll partners have little interest in targeting the actual infringer. What they want is someone – anyone – to pay up and when they do, it is mission accomplished.

The big question then is whether legal ethics stretch to having innocent parties pay for the alleged crimes of others, particularly when there may not have been a legal basis to demand a settlement or bring a case in the first place.

During the course of its live criminal investigation against Njord Law, these questions and more could be answered by the State Prosecutor for Serious Economic Crime (SØIK), which currently believes the law firm defrauded Danes out of at least 7.5 million kroner (US$1.22 million).

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

Hawaiian attorney Kerry Culpepper has made a habit of putting pressure on key players in the piracy ecosystem.

Representing the makers of films such as “Hunter Killer,” “The Hitman’s Bodyguard,” and “London Has Fallen,” he’s gone after individual file-sharers, apps such as Popcorn Time and Showbox, and pirate sites including YTS.

Most recently, Culpepper and his clients expanded their reach to VPN services. Last month, they filed lawsuits against LiquidVPN and VPN.ht, accusing the companies of promoting and facilitating online piracy .

VPN.ht and Popcorn Time Lawsuit

Generally speaking, VPN providers are neutral services. However, these VPNs allegedly crossed a line by explicitly encouraging people to use the service for unauthorized activity. VPN.ht, for example, advised people to use the piracy app Popcorn Time with a VPN “to avoid getting in trouble.”

These allegations have yet to be backed up in court but, before VPN.ht responded to the complaint, the movie studios moved for a temporary restraining order (TRO) to freeze the company’s PayPal funds.

The rightsholders believe that this measure is warranted as VPN.ht’s alleged operator, Mohamed Amine Faouani, previously dissolved another company after it came under fire in a Canadian Popcorn Time lawsuit . They believe that the same could happen with “Wicked Technology,” which currently owns the VPN service.

Freezing PayPal Funds

In an order released late last week, Virginia District Court Judge Rossie D. Alston Jr. agrees that this is indeed likely. As such, he granted the motion to freeze VPN.ht’s PayPal funds.

The court concludes that jurisdiction is appropriate and mentions that Popcorn Time poses a significant threat to the copyright holders. And without a restraining order, VPN.ht could indeed move its PayPal funds outside of the court’s reach.

“Plaintiffs would be irreparably harmed absent a TRO because Defendants would have the incentive and capacity to transfer their assets from any account within the United States, depriving Plaintiffs of the ability to obtain monetary relief,” Judge Alston Jr. writes.

No Harm?

According to the court, there is a strong likelihood that the movie companies will win this case anyway, which weighs in favor of granting the request. At the same time, the VPN provider isn’t really harmed by this decision, the order notes.

“Defendants are unlikely to suffer any cognizable harm from the TRO as they will merely be prevented from profiting from past infringement and moving their funds beyond the reach of the Court.”

While the court suggests otherwise, seizing the assets of a company can seriously impede its operation. That said, PayPal is just one of the payment options used by the VPN and several other alternatives remain available.

Discovery and Locked Domain Name

In addition to freezing the PayPal funds, the court also allows the movie companies to request further information from PayPal, Cloudfare and GitHub. This could help to find out more about VPN.ht’s operation as well as the Popcorntime.app software, which is part of the same lawsuit.

Finally, the court also signed off on a request to order Google or its reseller to lock the Popcorntime.app domain name, so that it can’t be transferred outside of the court’s reach.

At the time of writing VPN.ht remains online and the operator has yet to respond in court. The pressure on Popcorntime.app appears to have paid off, however, as the domain now redirects to a “goodbye” message on Medium.

Meanwhile, the movie companies have just requested yet another temporary restraining order, this time keeping it away from public view. However, it is likely that the copyright holders want to freeze additional funds or assets.

—

A copy of the order issued by Virginia District Court Judge Rossie D. Alston Jr. is available here (pdf)

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

Popular CDN and DDoS protection service Cloudflare has come under a lot of pressure from copyright holders in recent years.

The company offers its services to millions of sites, some of which offer access to copyright-infringing material.

Cloudflare prefers to remain a neutral service provider and doesn’t terminate clients based on DMCA notices. Instead, it forwards these to its customers, only taking action when it receives a court order.

Repeat Infringer Lawsuit

This stance is not appreciated by all rightsholders and in 2018 the service was taken to court over the issue. The case wasn’t filed by major entertainment companies, but by two manufacturers and wholesalers of wedding dresses. Not a typical “piracy” lawsuit, but it’s a copyright case that could have broad implications.

In a complaint filed at a federal court in California , Mon Cheri Bridals and Maggie Sottero Designs argued that even after multiple warnings, Cloudflare fails to terminate sites operated by counterfeit vendors. This makes Cloudflare liable for the associated copyright infringements, they said.

Cloudflare disagreed and both sides are now conducting discovery to collect evidence for an eventual trial. Among other things, the wedding dress manufacturers were asked to hand over detailed sales records. In addition, the CDN provider is also interested in the companies’ DMCA takedown partner XMLShop LLC.

Cloudflare Wants DMCA Takedown Evidence

Over the past few months, Cloudflare has tried to get further information on how XMLShop, which is also known as Counterfeit Technology , collects evidence for its takedown notices.

These takedowns play a central role in the lawsuit and XMLShop and its employees could provide crucial information. Thus far, however, Cloudflare hasn’t been able to get what it wants.

To resolve this issue, Cloudflare submitted a motion asking the court to compel the DMCA takedown company to comply with its requests for information. According to their filing, the company may be holding back important evidence.

“Plaintiffs and XMLShop, who use the same counsel, appear to be using XMLShop’s status strategically as a ‘non-party’ to conceal relevant documents from Cloudflare. The Court should reject their gamesmanship,” Cloudflare informed the court.

After serving two subpoenas, the takedown company only produced one document, Cloudflare notes. Meanwhile, the publicly available information on the company is highly confusing or even misleading.

Who Works at XMLShop?

For example, Cloudflare would like to question XMLShop’s employees, but the company hasn’t handed over an employee directory or payroll log that would reveal who works at the company.

“XMLShop has not been forthright about its operations, leaving Cloudflare in the dark as to who else may be a witness with relevant knowledge,” Cloudflare writes.

According to XMLShop’s attorney, the company only has one employee named Suren Ter-Saakov, but this claim is contradicted by its own website and Linkedin.

“XMLShop’s own public statements contradict its counsel’s statement. Its website boasts ‘a big team of professionals working in three offices, located in Ukraine, the United States, and Dominican Republic.

“And a LinkedIn profile for an individual named Blair Hearnsberger represents that she or he is the CEO at Counterfeit Technology,” Cloudflare adds.

Fake Profile

According to the takedown company’s attorney, this profile is fake and Blair Hearnsberger does not actually exist, but Cloudflare is not convinced. Therefore, it hopes that the court will compel XMLShop to verify who works at the company and in what roles.

In addition to finding information on possible employees, Cloudflare also requests further information on the software that Counterfeit Technology used to find infringing content.

Special Takedown Bots?

The wedding dress manufacturers claimed that their takedown partner “scours the internet with special bots designed to locate and identify the unauthorized use” but it’s unclear how this technology works.

Cloudflare would like to assess the software to see how accurate it is, especially since the company states that it spends only 10 seconds sending notifications of claimed infringement to all traffic sources.

“Its use — and the reliability — of that technology is at least relevant to the predicate allegations of direct infringement it asserts. It is also relevant to Cloudflare’s contention that it never received any notifications of claimed infringement from Counterfeit Technology that were valid,” Cloudflare writes.

The CDN provider asked the court to compel XMLShop to produce the subpoenaed documents. In addition, XMLShop should be held in contempt for failing to obey the subpoena and ordered to pay the legal costs Cloudflare incurred to submit the motion.

This week, XMLShop responded to the request stating that it has already produced everything it could. It views the remaining requests as incredibly broad, since these ask for “sensitive” trade secret information. It is now up to the court to make a final decision.

—

A copy of Cloudflare’s memorandum in support of its motion to compel XLMshop to comply with the subpoena is available here (pdf).

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

In the wake of the RIAA’s effort to have ripping tool youtube-dl removed from Github , YouTube-ripping service Yout.com went on the offensive.

In a complaint filed at a Connecticut court, Yout argued that previous actions by the RIAA against its service, including the delisting of its homepage from Google based on the allegation that Yout circumvented YouTube’s ‘rolling cipher’ technology, were wrongful and damaged its business.

RIAA Fights Back

As reported in January, the RIAA presented a robust response in a motion to dismiss, noting that just because Yout had “figured out” how to defeat the YouTube rolling cipher, that did not make the Technological Protection Measure (TPM) any less eligible for protection under section 1201 versus one that could not be defeated.

“Plaintiff concedes that it ‘encounters’ the rolling cipher and then ‘reads and interprets the JavaScript program’ and ‘derives a signature value’ to access the file,” the RIAA wrote .

“The only reasonable inference to draw from those vague allegations is that the Yout service enables users to avoid or bypass that technological measure—that is the very definition of circumventing a TPM under section 1201.”

Furthermore, in response to Yout’s claims that the RIAA must’ve known that the service did not circumvent technical measures and therefore shouldn’t have filed DMCA notices against it, the RIAA pointed out that under 17 U.S.C. § 512(f) , only misrepresentations regarding alleged copyright infringement are available, not misrepresentations regarding alleged circumvention.

Yout’s Opposition to RIAA’s Motion to Dismiss

In Yout’s latest response, the stream-ripping service reiterates that it does not decrypt, bypass or avoid any measures on YouTube as the necessary information to access streams is freely available to anyone who seeks it. Yout describes that as essentially a “copy/paste” scenario, as provided for by any online content stream.

Yout’s Mere Use of the Signature Value Does Not Violate 17 USC §1201

The company says that the words “avoid” and “bypass” suggest ‘abuse’, countering that what its service actually does it ‘use’ a technological measure, which is an entirely different matter. Citing an earlier case involving DISH Network, Yout says that by utilizing the intended mechanism for decryption, no bypassing, avoidance or bypassing of a system took place.

“Here, the methodology employed by Yout is analogous. Yout utilizes the same signature value freely distributed by any video-sharing website, such as YouTube. This is the exact same signature value that appears to any web browser,” Yout’s response reads.

“Yout need not decrypt, bypass, or avoid anything as these signature values are freely given, and Yout uses the value, not in any cryptic way, but just as it is provided by any video-sharing website to anyone that requests it.

“Anyone can access and use the signature value of any free streaming content’s [sic] using only a browser, without other software, youtube-dl, the Yout service, or any similar tool,” Yout writes.

RIAA has not Identified any Copyrighted Works at Issue

Running with the claim that Yout does not circumvent any effective technological protection measure, the company says that the requirement that circumvention takes place without the permission of the copyright holder is not reached. However, the fact remains that the RIAA has failed to identify any copyrighted works that have allegedly been infringed.

“To prove a violation of § 1201, Defendant’s members must show not only circumvention but that the circumvention results in access to a copyrighted work. However, nothing in the RIAA’s notices references ownership of any specific copyrighted work purportedly protected by the rolling cipher,” Yout’s response reads.

Yout acknowledges that case law potentially raises complications but reminds the Court that the RIAA’s notices clearly accuse Yout of facilitating copyright infringement, specifically contributory copyright infringement. This leads Yout to raise the issue of misrepresentations in the RIAA’s DMCA notices and the music group’s claim that under 17 U.S.C. § 512(f), penalties are only available for misrepresentations regarding alleged copyright infringement.

Settlement Conference Has Been Scheduled

After Yout asked the Court to reject the RIAA’s motion to dismiss, United States Magistrate Judge Robert A. Richardson reported that a video settlement conference had been arranged for May 5, 2021, with both parties ordered to attend.

The Judge’s order requires Yout to have someone attend with full and final authority to dismiss the case with prejudice and to accept any settlement amount or offer. The RIAA must be represented by someone with the authority to commit to a settlement amount.

“The purpose of this requirement is to have in attendance a person with both the authority and independence to settle the case during the settlement conference without consulting anyone not present,” the order reads.

Not less than 14 days before the conference date, the parties are required to begin negotiating the terms of any settlement.

Yout’s Response to RIAA’s Motion to Dismiss / Conference Order here and here (pdf)

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

A group of connected movie production outfits, including Voltage Pictures and Millennium Funding, has pursued legal action against key piracy players in recent years.

The makers of films such as “Hunter Killer,” “Automata,” and “I Feel Pretty,” went after individual file-sharers, apps such as Popcorn Time and Showbox, and pirate sites including YTS.

This week, the movie companies expanded their efforts by going after a man and company associated with the VPN provider “LiquidVPN.”

Movie Companies Sue VPN Provider

Technically, VPNs are neutral services, much like regular ISPs. In most cases, this means they are not liable for the activities of their users. However, the movie companies argue that that logic doesn’t apply to LiquidVPN.

The complaint lists Michigan resident David Cox and his company SMR Hosting as the defendants. They allegedly operated LiquidVPN until early 2019, after which it was sold to the Puerto Rican company 1701 Management.

In addition to these ‘LiquidVPN defendants,’ as they are referred to, the complaint also lists 100 ‘Does’ who used the VPN service while downloading pirated films.

Update: The same movie companies have now filed a separate lawsuit (pdf) against 1701 Management and its sole shareholder Charles Muszynsky, which they say is the current owner of LiquidVPN. The allegations and demands virtually identical to the ones against the “LiquidVPN defendants,” which are detailed below.

In recent years we have seen several lawsuits against ISPs but, as far as we know, this is the first time a (former) VPN provider has been sued for copyright infringement in the US. The nature of the business is not the main concern, however.

According to the movie companies, the LiquidVPN defendants went further than simply offering a VPN service. They allegedly promoted and encouraged copyright infringement as well.

“Promoting Piracy”

“The LiquidVPN Defendants actively promote their LiquidVPN service for the purpose of movie piracy, including of infringing Plaintiffs’ Works,” they write.

These are serious allegations that are discussed in a lengthy court filing, with a myriad of arguments. Some are stronger than others, but the overall theme is that the VPN specifically appealed to a pirate audience.

For example, with regard to the piracy app Popcorn Time, LiquidVPN started stating that their VPN service could help avoid prison sentences and settlements.

“The LiquidVPN Defendants state their LiquidVPN service can be used to “Watch Popcorn Time without being detected by your ISP and P2P tracking software,” the complaint reads

“The LiquidVPN Defendants further state, ‘Experience everything Popcorn Time has to offer in the United States and the UK. Except the risks’, ‘Stream Content Anonymously. Why bother risking complaints from your ISP, settlement demands, threats and jail time for streaming your favorite TV show’.”

The complaint mentions a variety of other examples where the defendants directly or indirectly referenced copyright infringing activity. This includes a screenshot of Popcorn Time which shows the Millennium film Survivor.

In another example, it mentions that streaming media with Popcorn Time can result in a jail sentence, which can supposedly be avoided with a VPN.

“Avoid Jail Time”

“The LiquidVPN Defendants even blatantly promote their service to be used to stream copyright law [sic] in violation of criminal laws and encourage their users to do so,” the movie companies write in the complaint.

The reasoning is that these public statements ‘encouraged’ the “John Doe” defendants to use LiquidVPN to pirate movies. While the complaint only lists one IP-address, this could have been used by multiple users.

No Safe Harbor

In the US, online service providers can invoke safe harbor protections under certain conditions. However, the movie companies argue that this doesn’t apply to the LiquidVPN defendants, as they failed to terminate repeat infringers despite ample notification.

In addition, the company never had a registered DMCA agent, which is another requirement under the DMCA. On the contrary, LiquidVPN described itself as a DMCA-free zone.

“The LiquidVPN Defendants even promote the fact that their LiquidVPN is a ‘DMCA Free Zone’ as a positive aspect that makes them stand out from competing VPN providers.”

All in all, the movie companies accuse the defendants of contributory and vicarious copyright infringement, as well as various violations of the DMCA. As compensation, the filmmakers demand damages, which can go up to $150,000 per pirated title.

At this point, it’s worth repeating that the defendants – Mr. Cox and SMR Hosting – no longer operate LiquidVPN. This means that the accusations apply to past activities. Whether the movie companies will also sue the present owner is unknown. (update, as mentioned above, the alleged current owner 1701 Management is sued in a separate case)

Site Blocking and Port Blocking

This is particularly relevant when we look at the relief that’s requested. In addition to the damages, the movie companies also want the LiquidVPN defendants to take other actions. This includes terminating repeat infringers and blocking websites.

Specifically, they request an order requiring the defendants to “block subscribers from accessing notorious piracy websites,” to “block ports 6881-6889” which are often used for torrent traffic, and to adopt a policy that “provides for the prompt termination of subscribers that engage in repeat infringements.”

The list of sites to be blocked spans all sites that are covered in the USTR’s notorious markets report. This includes classic pirate sites such as YTS and The Pirate Bay, but also foreign e-commerce platforms such as Amazon.co.uk and Snapdeal.com, as well as the social media site VK.com.

It’s unclear to us how the defendants can comply if they no longer have control over LiquidVPN. However, it’s possible that SMR Hosting still works with the VPN company in some shape or form.

Needless to say, these allegations and requests are quite broad and have yet to be proven in court. It is just one side of the story and the defendants can share their position in court during the weeks to come.

Yesterday, the LiquidVPN website was offline for a few hours but it has come back since. TorrentFreak reached out to a contact who was involved with LiquidVPN at the relevant time but we have yet to hear back.

—-

A copy of the complaint, filed by Millennium Funding, Hunter Killer Productions and Voltage Holdings at the US District Court for the Eastern District of Michigan is available here (pdf)

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

In September 2019, Super Channel owner Allarco Entertainment filed a lawsuit in Canada’s Federal Court targeting Staples Canada, Best Buy Canada, London Drugs, Canada Computers, several related companies and up to 50,000 ‘John Doe’ customers.

The controversial legal action saw Allarco accuse the retailers and their staff of promoting, encouraging and instructing in the use of set-top boxes that could enable buyers to access copyright-infringing content.

The complaint was supported by 100 hours of undercover recordings that purported to show retailers’ staff showing prospective customers how to use software such as Kodi, or offering advice on where to get devices configured for piracy.

Allarco demanded an injunction to prevent the defendants from “communicating or facilitating the communication” of its works without permission, including by “configuring, advertising, offering for sale or selling Pirate Devices.”

Allarco Ends Federal Court Lawsuit, Launches Another

A month after the lawsuit was filed, Canadian lawyer Howard Knopf wrote that in nearly four decades of being an intellectual property lawyer, he had never seen a more unusual Statement of Claim.

He noted that it claimed copyright infringement in unspecified works, circumvention, making available, unspecified “pirate devices”, trademark infringement, the Criminal Code, through to theft, stealing, interference with the economic and business relations of the Plaintiff, and conspiracy.

After the retailers fought back, Allarco discontinued its Federal Court lawsuit on January 6, 2020. However, Allarco had already filed another similar lawsuit on December 6, 2019, this time at the Court of Queen’s Bench of Alberta (Alberta’s superior court). The complaint added unknown suppliers of ‘pirate’ devices as defendants and demanded CAD$50m in damages.

“It’s too early to speculate about what Allarco will attempt to do and what the Court might let it do about the 50,000 John Doe Customers or the now added John Doe Suppliers and how their interests will be represented if things ever get anywhere near that far,” Knopf wrote at the time.

However, several months later, a new report indicates that matters are now progressing.

Allarco Demands ‘Pirate’ Set-Top Device Ban

Doubling down on its allegations of wrongdoing at the retailers, Allarco is now demanding an injunction from the Court that would prevent them from offering the set-top boxes for sale.

Whether the Court will find such a request reasonable in respect of devices that are used by millions to access entirely legal services such as Netflix is yet to be determined. Allarco, meanwhile, believes that people buy them for only one thing – piracy.

“The only reason why people buy these boxes is to steal content,” says Allarco president and chief executive officer Donald McDonald, as quoted by Globe and Mail.

Interestingly, in common with his counterparts right across the streaming industry, McDonald says that the ‘pirate’ devices – which are largely Android-based and imported from China – are often preloaded with malware that targets consumers and puts their security at risk.

“These devices are dangerous to your home network, dangerous to your personal data and could end up costing you a lot more money in the end,” he says, showing concern for the people his company is hoping to sue.

Retailers Deny The Allegations

Ever since the first lawsuit was filed in 2019, Staples Canada, Best Buy Canada, London Drugs, and Canada Computers have vigorously denied the Allarco/Super Channel allegations. All were reportedly sent cease-and-desist notices before the actions were filed but all claim to have acted within the law.

“We offer technology from reputable manufacturers and leading brands. We take claims of intellectual property infringement seriously, but we believe that Super Channel’s claims are without merit, and intend to defend this action vigorously,” an earlier Best Buy statement reads.

While Staples and Best Buy are opting not to comment at this stage, London Drugs said it would “never intentionally take or condone” any action that would infringe intellectual property rights.

“London Drugs has always respected the rights of content creators and holders of copyright in all forms. We sell products and provide services for many parties engaged in content creation and distribution and recognize and fully support their right to fair compensation,” the company says.

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