Back in 2016, Grammy award-winning musician Maria Schneider launched a scathing attack on YouTube, accusing the platform of “criminal rackeetering”.

According to Schneider, YouTube has “thoroughly twisted, contorted, and abused the original meaning of the outdated DMCA ‘safe harbor’ to create a massive income redistribution scheme.”

Last summer it became clear that Schneider’s opinions had not changed when her name appeared as a plaintiff in a class-action lawsuit filed against YouTube.

As previously reported, Schneider is joined by a company called Pirate Monitor in the suit and together they accuse YouTube of being massively deficient in its copyright enforcement measures, including by denying smaller artists access to its takedown tools (Content ID), failing to terminate repeat infringers, while profiting from piracy.

YouTube Accuses Plaintiff of Fraud

Last September, YouTube fought back by alleging that agents of Pirate Monitor opened bogus YouTube accounts to upload its own videos and then filed takedown notices against the same content claiming that its rights had been infringed.

According to YouTube, this was a ploy to gain access to Content ID after the company was previously denied access for having no track record of properly using the DMCA takedown process. This new and fraudulent approach only supported its earlier decision to deny access to the Content ID tool, YouTube said.

In November, the plaintiffs fought back, stating that YouTube had failed to provide any evidence to back up its allegations. But a month later, YouTube told the court that the same IP address used to upload allegedly-infringing content was also used to file DMCA notices to take it down.

Plaintiffs and Defendants Are Digging In

A case management statement published this week reveals that little progress has been made in respect of bringing the parties closer together.

The plaintiffs, on behalf of themselves and the Class, repeat their claims that “millions” of copyright works have been distributed via YouTube in breach of copyright while alleging that they have no “viable means” of enforcing their rights other than via manual searches and takedown notices.

Furthermore, since YouTube only implements its repeat infringer policies for non-Content ID identifications, the plaintiffs argue that the video platform cannot claim safe harbor protection under the DMCA. For its part, Youtube says this is an attempt to relitigate its earlier copyright battle with Viacom, which found that YouTube is entitled to safe harbor protections.

“No law supports Plaintiffs’ assertion that denying them access to [Content ID] somehow makes YouTube liable for copyright infringement,” the video platform adds, noting that Schneider already has access anyway.

“Plaintiff Schneider already has access to Content ID through her publishing agent, who has used Content ID for years on Schneider’s behalf,” YouTube adds.

But there are more fundamental issues too.

Zero Copyright Infringement Alleged in Complaint

According to YouTube, Schneider has named just three copyrighted “works in suit” and Pirate Monitor has identified three too. However, neither has identified any infringement.

“[T]he Complaint failed to allege a single instance of infringement for even one of the six copyrighted works. That alone renders the claims deficient. Beyond that, Pirate Monitor recently admitted — five months into the case — that it does not have standing to assert infringement of one of the three works it asserted in the Complaint.”

YouTube says that Schneider did list around 50 new works that weren’t mentioned in the complaint during interrogatory responses but failed to allege ownership or registration. But there are other problems too.

“Schneider has failed to identify a single alleged infringement for approximately half of the new works, and the instances of alleged infringement she did identify all fall outside the three-year statute of limitations. Further, it now appears clear that Schneider’s publishing agent licensed YouTube to use all of Schneider’s musical works, which would independently defeat any infringement claim,” YouTube adds.

Class Action Unsuited to Copyright Disputes

Given the complexity of copyright infringement cases, YouTube says that the plaintiff’s suit will not be maintainable as a class action. Referencing an earlier failed attempt by the Premier League, YouTube describes the current litigation as a “Frankenstein monster posing as a class action.”

Evidence Preservation

According to Schneider and Pirate Monitor, YouTube isn’t taking its evidence preservation responsibilities seriously having rejected some of their demands. The plaintiffs say that YouTube is refusing to preserve videos that are deleted by users, even if they infringe their rights, demanding that the plaintiffs need to identify each one first.

“Defendants have also repeatedly taken the position that they will not preserve any evidence relating to the putative class in this case,” they add, a reference to entities that are not yet part of the class action – which could be almost any rightsholder.

Somewhat predictably given the scope of the plaintiffs’ demands, YouTube insists that it is preserving evidence but can only do so when the plaintiffs identify those works, noting that it does not have to guess at what that content should be. Also, when considering that almost any copyright holder could join the class action at a later point, effectively asking YouTube not to delete anything is a step too far.

“[P]laintiffs have made the extraordinary and unreasonable demand that YouTube preserve all ‘material and content’ uploaded to YouTube, notwithstanding users’ ordinary rights to delete their own data, simply because Plaintiffs have brought this case as a putative class action,” YouTube writes.

“They have cited no authority requiring anything like that, which would inflict huge costs and burdens on YouTube — essentially redesigning YouTube’s entire data retention system in violation of user privacy rights and at a cost of hundreds of hours of engineering time and millions of dollars — that are disproportionate to the legitimate needs of a case in which there are only two named plaintiffs asserting, at most, a small number of copyrighted works, and who have very low prospects of ever certifying a class.”

The case has been scheduled for trial starting November 28, 2022, but whether it will ever get there remains a question. The only certainty at the moment is that the parties couldn’t be any further apart in their positions and neither is showing any signs of giving an inch.

The joint case management statement can be found here (pdf)

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

UFC President Dana White made dozens of headlines this week when he made threats against an unnamed illegal stream provider.

During the UFC 257 pre-fight press conference, featuring main event fighters Dustin Poirier and Conor McGregor, White seemed excited to tell the journalists present that he had someone specific in his sights.

“We got one. We got him,” he said with a grin on his face. “We’re watching this guy right now. All you have to do is turn it on on Saturday. And we got you f****r. I can’t wait.”

In a subsequent interview with BT Sport, White went further still, declaring that he’d hand-picked the alleged pirate and that his house was being watched, his phone calls were being listened to and if he dared to put the fight up on Saturday, he would be arrested.

“I will not be nice. I will not be lenient. I will go guns-a-f*****n-blazing,” he warned.

Dana White’s Threats Riled Up Pirates

At least in part, White’s comments were designed to scare not only his target into submission but also other illegal stream suppliers and their potential customers. PPV revenue is important for the UFC and for its fighters since they too take a share of the spoils.

That being said, there can be a tendency among seasoned Internet users to convert gung-ho threats into just another motivation to pirate, so there was no shortage of people online threatening to pirate UFC 257 anyway, despite the warnings, and whether they were fans or not. However, few could have predicted how the event was to play out.

ESPN+ Goes Down Under Massive Demand

Perhaps the biggest news to emerge from the event is that UFC cash cow Conor McGregor got knocked out in round two, with Poirier’s heavy strikes on the feet proving too much for the superstar Irishman. However, as the drama was playing out in the Octagon, a streaming fiasco had already been underway for several hours.

UFC 257 was always expected to be a popular event (McGregor PPVs always are) but it appears that ESPN+ was unprepared for just how many people would cough up $70.00 to watch the fight legally in the US. According to Yahoo Sports’ Kevin Iole , 1.3 million people tried to log into ESPN+ at the same time and the service simply couldn’t cope.

Still nothing. Tried xbox, android, and smart tv app. pic.twitter.com/AJCrvCfIvy

— Jeff Jones (@SlowSmokeJones) January 24, 2021

Given that the UFC’s US deal is exclusive to ESPN+ this was clearly a major problem. If fans pay to watch the whole card on a legal platform, they don’t expect to face the kind of problems often touted as being a hallmark of pirate services. The disappointed masses also included several UFC fighters who headed onto Twitter to complain that they couldn’t watch the event.

Half the UFC's own roster can't get the ESPN+ app working to watch #UFC257 pic.twitter.com/TbYiQjxVXo

— MMA mania (@mmamania) January 24, 2021

Unfortunately, worse was yet to come.

Illegal Streams Save The Day For Some Paying Customers

With huge numbers of fans bombarding ESPN on Twitter complaining that they couldn’t access the event, the broadcaster said that it was doing the best it could to restore service. However, after shelling out $70.00 the desperation mounted for many fans as the anxiety of missing the action took its toll.

In a now-deleted Tweet, UFC middleweight Ian Heinisch wrote: “Okay I am done send me illegal streams!” a sentiment that was shared by thousands of other individuals including those who already paid and those who never intended to.

Meanwhile, in several of the usual haunts occupied by pirate streamers, there was no shortage of people watching the PPV illegally while ESPN+ subscribers screamed in frustration. That should never happen, quite the opposite in fact.

Dana White’s Sunday Headache

Today’s post mortem will be a difficult one for Dana White. After being ridiculed in some corners for his anti-piracy rhetoric, it seems fairly likely that some fans will have decided to take the legal option for once, a golden opportunity to shine if ever there was one.

Instead, they will have watched their pirating counterparts receive superior service at what would’ve been less than a tenth of the price, which is just about the worst possible outcome on the night. Add that to the fact that McGregor lost, and you have a UFC 257 that White won’t look back on with the fondest of memories. That being said, it wasn’t all bad news.

According to White, the unnamed illegal streamer who he threatened earlier in the week decided that taking on the UFC wasn’t a good idea. Shortly after the pre-fight press event he allegedly made a big announcement saying that he wouldn’t be offering the event after all and had decided to shut down his entire streaming service.

Somewhat ironically though (for both legal and illegal consumers alike) plenty of other unlicensed services remained up long enough to show ESPN+ how to run a streaming service – without collapsing under the stress of too many customers wanting to part with their money.

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

Many copyright holders portray pirates as thieves that must be hampered or stopped at any cost.

However, these same people are consumers too. In fact, research repeatedly shows that they are the most passionate fans .

UK-based piracy monitoring outfit MUSO realizes this potential. In addition to traditional takedown services, the company also leverages piracy analytics as business intelligence. After all, every pirate is a potential consumer. And there are quite a few.

MUSO keeps a close eye on the number of visits to pirate sites. While this is only a subset of the entire piracy ecosystem, since it doesn’t involve streaming devices, it provides some interesting insights.

130 Billion Pirate Site Visits

The piracy tracking firm reports that in 2020 there were over 130 billion visits to pirate sites around the world.

The bulk of these, 57 percent, went to streaming sites, followed by direct download portals (27%), torrent sites (12%), and stream rippers (4%). The market share of streaming sites has declined a bit when compared to last year, in favor of download and torrent sites.

If we look at the geographical distribution, the United States remains the top traffic source with nearly 12.5 billion visits. Russia is in second place with 8.3 billion, followed by China and India with 6.9 and 5.6 billion respectively.

Needless to say, the countries at the top of the list are also some of the largest population-wise. When we look at visits per Internet user, Barbados is on top followed by Andorra, Georgia, and Ukraine.

Profiling Pirates

These data are interesting but, in isolation, the numbers don’t say much. However, MUSO does more than just counting totals. It can also build profiles of the pirate audience for particular titles or categories, including various demographic variables.

This is where MUSO distinguishes itself from many other companies that operate in the ‘anti-piracy’ niche. Aside from sending DMCA takedown notices on behalf of clients, it also sees pirates as an opportunity. They are potential customers, after all.

Through its MUSO Connect service, the company uses data analytics to built profiles of pirates. These can then be used for marketing purposes.

For example, a copyright holder may be interested in finding out what the average “The Walking Dead” pirate looks like, or what the typical profile is of a pirate who watches pirated UFC fights. These data can be used to target ads to this group.

Identifying Superfans

“MUSO’s piracy data also reveals a highly engaged audience of avid consumers and superfans willing to go through a sometimes challenging process to illegally stream or download a title,” the company explained recently.

“This is a valuable audience for entertainment companies; high-intent customers consuming their content but not currently paying for it,” the company added.

The data-driven approach works, the company explains. It highlights a case study where it helped an international broadcaster to promote its new VOD platform. Based on data from pirate views of the broadcaster’s content, MUSO generated a detailed profile of this undiscovered audience.

More Clicks

This ‘profile’ was then used as input for an advertising campaign. Because this was targeted at a high-intent audience, the click-through rate for the ads was three times higher than average, with sign-ups exceeding expectations.

“The net result is the client is converting motivated pirates into paying subscribers,” MUSO notes.

As with most data analytics and analysis services, MUSO works based on measured data that’s extrapolated. They don’t know who every pirate on the planet is. However, given the vast amount of data it can classify people based on sex, household income, education profiles, and various interests.

TorrentFreak spoke to MUSO’s commercial director Peter Clothier, who ensures us that all data are handled in compliance with privacy laws, including the GDPR.

Converting Pirates

The company stresses that it doesn’t offer advertising services itself nor does it work with pirate sites. It simply uses the data it obtains from external sources to create profiles, based on whatever the client is interested in.

The overarching message is that pirates should be seen as an opportunity, not a threat. And if big data can help to convert more pirates into paying customers, everybody wins.

“MUSO Connect reveals the commercial value of the piracy audience rather than writing that audience off as worthless,” Clothier concludes.

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

This week it was reported that Njord Law, a prominent Danish law engaged in cash settlement demands against alleged BitTorrent pirates, is in serious trouble.

Working with middle-man licensing companies CMS and MIRCOM, which have connections to German-based BitTorrent tracking company MaverickEye and notorious international trolling operation Guardaley, the company demanded that their targets pay sums of money, often in excess of US$1,200, to make potential lawsuits disappear.

After hundreds of cases were kicked out of court, mainly due to CMS and MIRCOM having no standing to file a lawsuit, Njord Law and partner lawyer Jeppe Brogaard Clausen have now been charged with acting fraudulently . While both deny the allegations, the fallout in Denmark is so significant that leading anti-piracy group Rights Alliance is now voicing its own criticism of the companies’ business model.

“A Stain on the Fight Against Illegal Content”

It’s relatively rare for one anti-piracy group to criticize another but Rights Alliance chief Maria Fredenslund did just that Thursday, complaining that the CMS/MIRCOM/Njord business model is a “stain on the fight against illegal content”.

“We have never been behind the methods and approach that Njord Law Firm has taken in these cases. There has been no cooperation between us and them,” she told Berlingske .

Fredenslund has several concerns, including that the allegations of fraud will “cloud” the work of Rights Alliance and detract from the sustained effort the group has put in to reduce piracy levels in Denmark.

“We have not had any collaboration on the letters that Njord Law Firm has sent out. On the contrary, we have been out and publicly saying that we do not support it,” Fredenslund said.

Rights Alliance Prefers To Target Operators and Block Sites

Rights Alliance is engaged in a wide variety of anti-piracy measures, including the targeting of various torrent sites recently, something which has resulted in a number of arrests.

Back in 2016, Rights Alliance reported DanishBits, the country’s largest tracker, to the police and in October 2020 it shut down . Just this week further arrests were reported in connection with now-shuttered site Asgaard.

However, one of the anti-piracy group’s favorite strategies is site-blocking which Fredenslund believes is a more effective strategy than copyright-trolling.

“Our strategy is based on approaches that we know from many years of experience, and Denmark is known for having an effective blocking system. It is a long, tough move, but that hard work means that today we can see the fruits of the work we started ten years ago,” she added.

Unfortunately for Rights Alliance, however, copyright-trolling can influence pirates’ behavior in ways that have the potential to disrupt this disruption too.

Copyright Trolling is Undermining Anti-Piracy Group

With allegations of fraud in the air, Rights Alliance is keen to distance itself from the actions of Njord Law and its partners. Perhaps more importantly though, copyright-trolling operations don’t exist in a bubble and have the potential to drive pirates underground.

Speaking with local publication K-News , Fredenslund says that Rights Alliance doesn’t support the Njord model because after ten years of experience, they know that it has “no effect” on reducing piracy. However, while it may not drive down piracy rates, settlement schemes are causing pirates to hide their identities using anonymization tools.

Fredenslund doesn’t elaborate on why this is an issue for Rights Alliance (the group doesn’t target end-users anyway) but the implications are very clear. When consumers of pirated content sign up to a VPN or similar anonymization service, they are not only protected from copyright-trolling schemes but they can also evade Rights Alliance’s site-blocking measures too.

Copyright-Trolling and Site-Blocking Have Different Goals

At this point, it’s important to recognize the differences between the efforts of Rights Alliance and Njord Law and its partners. While Rights Alliance’s actions are designed to deter and prevent piracy in order to protect revenues, copyright-trolls view piracy as a money-making opportunity.

Indeed, the entire troll model requires piracy to exist, providing another source of revenue for often third-rate content that would otherwise have little commercial value. The issue of pirates hiding themselves using VPNs to avoid trolls then becomes a thorn in the side of efforts to block sites, effectively nullifying court injunctions obtained by Rights Alliance.

It seems then that copyright-troll schemes are not only ineffective but also undermine genuine efforts to bring piracy down to more manageable levels. Only time will tell whether the courts in Denmark and elsewhere are prepared to do something about them but it’s pretty clear that just for once, pirates and anti-pirates actually agree on something.

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

Spearheaded by the RIAA, several major music industry companies have filed lawsuits against some of the largest U.S. Internet providers.

The music companies accuse these providers of failing to terminate accounts of the most egregious pirates, thus ignoring millions of copyright infringement notices.

The liability lawsuits are seen as a major threat to the ISP industry, as multiple companies face hundreds of millions of dollars in potential damages. This is not just a hypothetical threat, as the $1 billion verdict against Cox has shown.

In response to these lawsuits, several ISPs have submitted counterclaims, scrutinizing the copyright infringement notices. Internet provider RCN did the same and also targeted the RIAA and anti-piracy company Rightscorp in its response.

Rightscorp’s notices, which often included a settlement offer, are used as evidence in music industry lawsuits. However, RCN believes that some of these notices were fraudulent. Making matters worse, Rightscorp allegedly destroyed evidence which makes it hard to verify the claims.

Last month Rightscorp filed a motion to dismiss the complaint, stating that RCN failed to state a claim under California Unfair Competition Law (UCL). Last week, the ISP countered, noting that there are plenty of reasons to continue the case.

“Over the past ten years, Counterclaim Defendant Rightscorp, Inc. has made millions of accusations of copyright infringement against users of RCN’s internet service,” RCN informed the court.

“Rightscorp does this for profit — it sends notices of copyright infringement in the hopes of extracting settlements from accused infringers, and Plaintiffs pay Rightscorp to generate these notices to pressure ISPs like RCN into terminating the internet access of accused infringers.”

Sending copyright infringement notices by itself is not ‘fraudulent’ nor is it by definition ‘unfair.’ However, RNC argues that these descriptions fit the bill here, since Rightscorp destroyed the underlying evidence.

In addition, Rightscorp allegedly refused to digitally sign its emails, so RCN could verify their legitimacy. The latter is a warranted concern, as imposters have previously sent fake settlement requests.

The lack of evidence is a serious problem, RCN notes. The company believes that Rightscorp, among other things, knowingly configured its system in a way that would result in false positives. However, with all underlying evidence destroyed this can’t be checked.

As part of its defense, Rightscorp countered that RCN wasn’t ‘injured’ by the piracy notices but the ISP disagrees. It notes that it incurred substantial costs in order to handle the millions of notices the anti-piracy company sent.

It is now up to the New Jersey District Court to decide whether the motion to dismiss should be granted or not. Meanwhile, however, there appear to be some problems at Rightscorp’s end.

Over the past few days, we have been unable to reach the site, and the last Google cache version dates back two weeks ago. TorrentFreak reached out to Rightscorp to check if this is a temporary issue, but we have yet to hear back.

Website or no website, RCN hopes that the case will continue. Ideally, they want the court to grant an injunction that requires Rightscorp to properly sign its emails and preserve all the important evidence.

—-

A copy of Rightscorp’s motion to dismiss is available here (pdf) and RCN’s reply can be found here (pdf) .

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

Anti-piracy measures come in all shapes and sizes, from domain seizures and blocking to civil prosecutions and criminal enforcement. While these are all weapons in the arsenal, the growing use of the so-called “follow-the-money” approach is now considered to be one of the more powerful disruption options.

Given the increasingly commercial nature of a growing number of pirate services, the theory is that by cutting off revenue there will be less incentive for their owners to keep them going. Since the majority use some kind of advertising to generate profit, helping advertisers to avoid pirate platforms is now a global operation.

One of the more recent initiatives involves the World Intellectual Property Organisation (WIPO), which in 2019 launched its ‘BRIP’ Database, short for “Building Respect for Intellectual Property.” Later relabeled as the WIPO ALERT database, the project receives input from authorized contributors from WIPO Member States and the advertising industry itself to build a list of copyright-infringing sites to be avoided.

Russia Joins The Program, Gets Busy

In September 2020, Russia announced it would begin participating in the WIPO ALERT program. Telecoms watchdog Roscomnadzor said that it would be forwarding the domain names of sites where copyright works had been “repeatedly and illegally posted.”

This threshold appeared to be in line with Russia’s own site-blocking program, which requires a site to be labeled a repeat infringer following court processes before it is subjected to the strongest anti-piracy measures such as ISP blocking and search engine delisting.

After four months of membership, Russia says it has just made a sizeable contribution to the WIPO database via local telecoms watchdog Roscomnadzor, based on these parameters.

“Roscomnadzor has entered 1,768 domain addresses of sites that are persistent copyright infringers into the ALERT database of the World Intellectual Property Organization (WIPO),” Roscomnadzor announced Monday.

According to the report, the domains were steadily added to WIPO ALERT between October and December 2020 in line with the terms of the memorandum of understanding signed between WIPO and Roscomnadzor in September. As previously indicated, all of the sites had previously been determined to be repeat infringers following court processes and are already blocked by local ISPs.

“For each of the resources [added to the database], the Moscow City Court previously made decisions to restrict access on a permanent basis in Russia in accordance with Article 15.6 of Federal Law No. 149-FZ ‘On Information, Information Technology and Information Protection’,” Roscomnadzor confirmed.

Concerns Over Transparency Persist

While Russia is very clear on the parameters required for a site to be entered on the WIPO ALERT database (due process and multiple court decisions, for example) the same cannot be said about other contributors to the project. Indeed, in common with similar advertising blacklists operated locally, the domains submitted are kept secret and only accessible to a limited set of eyes.

“Access to the database is open to any genuine advertising industry business which is willing to undertake to use the information solely for preventing the appearance of advertising on pirate web sites,” WIPO says.

The UN agency also promises its best efforts to keep the submitted domains confidential, noting that some countries feel that their lists of copyright-infringing websites should not be publicized, “to avoid encouraging visits to those sites.”

While this is arguably a valid concern, the lack of transparency can also be an issue since mistakes do get made. To its credit, Ukraine makes its list of infringing sites available to the public but after a close examination, TorrentFreak discovered the worrying inclusion of Twitch on the blacklist.

Following our report, Twitch’s domain was removed from the list and spared what could’ve been a silent advertising ban.

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

After the RIAA caused outraged by filing a complaint that took down the open source software YouTube-DL from Github, YouTube-ripping service Yout.com sued the music industry group .

In common with its claim against youtube-dl, the RIAA had previously asked Google to delist Yout.com’s homepage on the basis that it too circumvented YouTube’s ‘rolling cipher’ technology. With both Github and the EFF arguing that youtube-dl’s features amount to little more than those already available in web browsers, an emboldened Yout.com hoped to take the fight to the RIAA and have itself declared legal .

RIAA Fights Back: YouTube’s Rolling Cipher is a TPM

In a motion to dismiss filed in a Connecticut district court, the RIAA is now attempting to remove the basics underpinning the entire Yout.com action. Apparently undeterred by the controversy surrounding YouTube’s ‘rolling cipher’ and its characterization as being somewhat ineffective, the RIAA says that according to copyright law, the threshold for a Technological Protection Measure (TPM) is already low.

“[T]he allegation that Plaintiff or others with technical expertise have figured out how to defeat the rolling cipher does not establish that the rolling cipher is ineffective for purposes of section 1201. If Plaintiff’s position were correct, it would amount to a free pass because the statute would only apply to those TPMs that could not be defeated,” the motion reads.

“For this reason, numerous courts have rejected the same argument upon which Plaintiff bases its claim about the alleged ineffectiveness of the YouTube rolling cipher.”

In short, just because YouTube’s measures are easily bypassed, it doesn’t mean they can’t be considered effective. According to the RIAA, this is due to section 1201 of the DMCA considering the abilities of an “ordinary” or “average” consumer, not those of “an online security engineer with a background in computer science” – a reference to Mitch Stoltz of the EFF, who authored a third-party letter in the youtube-dl matter.

“[T]he letter acknowledges that a German court has concluded, among other things, that circumventing the YouTube rolling cipher is ‘beyond the capabilities of the average user,’ and that it ‘was on this basis that the court declared the code to be an effective technical measure under Germany’s analogue of Section 1201. Plaintiff’s allegations therefore allow for only one plausible inference: the YouTube rolling cipher is an effective TPM,” the RIAA adds.

RIAA: Yout’s Non Circumvention Claims Fail

Yout.com’s lawsuit seeks a declaration from the court that the service does not circumvent YouTube’s ‘rolling cipher’ but according to the RIAA, that effort should fail. Circumvention means “to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner,” the RIAA writes, noting that Yout’s claim that it does none of these things isn’t plausible.

Referencing Yout’s complaint, the RIAA notes that the company admits that its entire purpose is to give users the ability to copy audio from YouTube in MP3 format locally, allowing that content to be consumed offline. The RIAA says that YouTube aims to prevent users from “turning certain streams into downloads” and the method used to enforce that is its ‘rolling cipher’.

“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 writes.

“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. For this straightforward reason, Plaintiff cannot plausibly allege a claim for declaratory judgment under section 1201.”

RIAA: Even Improper Anti-Circumvention Notices Can’t Be Countered

As mentioned earlier, the RIAA previously sent DMCA takedown notices to Google, demanding that Yout URLs should be delisted from search results on the basis that the Yout service itself is a circumvention technology.

Yout’s lawsuit states that since it does not circumvent technical measures, the RIAA either sent the complaints without carrying out appropriate testing or already knew that the site was non-infringing. As a result, Yout is entitled to compensation due to the RIAA interfering with the relationships between Yout and its customers, partners, and potential users.

Not so, says the RIAA, as no claim is available under 17 U.S.C. § 512(f) .

“Plaintiff’s claim fails as a matter of law because the statutory text makes clear that
section 512(f) penalizes only misrepresentations regarding alleged copyright infringement , but not misrepresentations regarding alleged circumvention ,” its motion reads.

Citing the Arista Records, Inc. v. Mp3Board, Inc. case, the RIAA states that Section 512 “only penalizes copyright holders for knowingly materially misrepresenting ‘that material or activity is infringing.’ It does not provide a cause of action for knowingly materially misrepresenting [other claims].”

In other words, the RIAA believes it doesn’t matter whether the anti-circumvention notices were improper or otherwise since claims under Section 512 are limited to when there are misrepresentations of copyright infringement, not allegations of breaching technological measures.

Furthermore, even if Yout could state a claim for alleged misrepresentations, the RIAA says that the company has failed to plausibly allege that the music group knew that the Yout service did not circumvent YouTube’s ‘rolling cipher’.

“Plaintiff alleges that ‘Defendants failed to determine whether Yout’s software platform would, in fact, circumvent [YouTube’s rolling cipher] by testing the platform” with protected works. But purportedly failing to perform an adequate investigation is insufficient to establish a section 512(f) claim,” the RIAA adds.

As a result of the above and other issues that rest upon them, the RIAA believes that Yout’s first amended complaint should be dismissed by the court.

The RIAA’s motion to dismiss can be found here and here (pdf)

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

Over the past several months, Danish law enforcement authorities effectively shut down the thriving local torrent tracker scene.

It started in September and October 2020 when DanishBits and NordicBits went offline after their alleged operators were caught.

The shutdown of these sites was a major blow to the local piracy ecosystem but it didn’t take long before other sites stepped up. Both Asgaard and ShareUniversity opened their doors to new members, resulting in an explosive growth of these sites.

The difference in this instance, however, was that the enforcement authorities kept up the pressure. Helped by local anti-piracy group Rights Alliance , the Government’s SØIK’s IP-Task Force swiftly put a target on these growing sites.

A few weeks later, both Asgaard and ShareUniversity were offline as well. Not just that, Asgaard itself found itself in the middle of a new investigation, something the site’s operators already feared.

In December the tracker’s staff announced that the site would shut down voluntarily. This announcement came after the Rights Alliance warned that, if the site continued, it would suffer the same fate as DanishBits and NordicBits.

“The thought of having to risk the doorbell ringing one day for a visit from the police overshadows the coziness of running this project. We will not expose you to that. Or ourselves. We have therefore chosen to close the ASGAARD project,” Asgaard’s staff concluded .

This fear turned out to be prophetic. A few days after the planned shutdown was announced, police arrested a 50-year-old man from Middelfart. The man, who was allegedly part of the tracker’s staff, spent Christmas and New Year in prison. And that wasn’t the end of it.

SØIK continued its investigation and late last week announced that six more people have been arrested under suspicion of being involved with the Asgaard torrent tracker. The six, who are between the ages of 34 and 53, are described as ‘ringleaders’ of the torrent site.

All seven suspects are charged with serious copyright offenses but have been released while the investigation continues. They face potential prison sentences for their alleged involvement.

Michael Lichtenstein, Deputy Director of SØIK’s special IPR group, is pleased with the work of his team and sends a stark warning to people who are considering setting up a new torrent tracker.

“It is very satisfying that, on the basis of a very effective effort, we have arrested the people we believe are the responsible perpetrators so that we can hold them accountable,” Lichtenstein notes.

“We hope that with the arrests and imprisonment we have sent the clear signal to the Danish pirate users that SØIK’s special IPR unit is determined to target Danish services and hold both backers and users to account – no one is protected.”

The arrests are also a success for Rights Alliance, which reported Asgaard to the authorities last October. Maria Fredenslund, the anti-piracy group’s Director, stresses that long prison sentences await those who cross their path.

“The penalty for this type of crime is six years in prison, and the IP task force in SØIK has shown with the latest action against the Asgaard backers that no one can feel safe. They are extremely well equipped to investigate and respond quickly and effectively to this type of case,” she says.

Rights Alliance previously declared victory in its war on local torrent sites and noticed that the recent efforts have affected the broader supply chain as well. For example, the release group “Xor06” reportedly threw in the towel and the same applies to “QUARK.”

“We’re closing and shutting down QUARK now.. this is getting too close,” the group wrote on another Nordic torrent tracker just a few days ago.

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

The idea to compress music into digital files started decades ago, but the birth of the MP3 was a breakthrough moment.

German engineer Karlheinz Brandenburg and his colleagues first made the MP3 format public in 1993. This made it possible to reduce the size of music files without any significant loss of audible sound quality.

At the time, the music industry was breaking all-time sales records thanks to the CD, but that would soon change.

“System Shock”

Filmmaker Jed I. Rosenberg directed a documentary for Bloomberg called “ System Shock ” which provides an intriguing and insightful overview of how the “MP3” set in motion a series of events that completely disrupted the music industry.

While we recommend everyone to watch all three parts in full, we’ll highlight some quotes in the article below.

After Brandenburg published the MP3 format it didn’t take long before hobbyists started using it to rip CDs. Some people shared or traded these files with friends, which initially happened mostly offline. However, little by little these MP3s made their way onto the Internet.

Music Industry Saw MP3 as an Opportunity

These new developments didn’t go unnoticed by the music industry. The RIAA’s former CEO, Hilary Rosen, recalls that they mostly viewed compressed music as an opportunity.

“In the late ’90s, my staff started monitoring the online space and we really did see a significant amount of interest in MP3 all of a sudden because of its ability to compress a music file.

“I think there really wasn’t any sort of panic in the industry in the early days. My team did look at it and saw it as not really as much of a threat as an opportunity,” Rosen said.

The Celestial Jukebox

In the late 90s, before the file-sharing boom had started, music industry insiders had already toyed with the idea of a ‘celestial jukebox’ that could access all music in the world.

The RIAA realized that with compression, this jukebox idea would move nearer to reality, a position that was shared by others.

“The ‘celestial jukebox’ was a theoretical construct at the time,” Al Teller, a former executive at MCA Records and CBS records recalls. “Every song ever made was gonna be in what we call the cloud right now, and would be instantaneously available to anyone on the planet simply by pressing a button on your gizmo.”

While the music industry ‘thought’ about it, there was little need to innovate at that time. The surge in CD sales resulted in record-breaking revenues year after year, and computers were seen as spreadsheet and word-processing tools by most people.

The Napster Moment

This all changed when a young student named Shawn Fanning came up with Napster. At the time, Fanning and Sean Parker were already sharing MP3s on IRC channels, but Fanning envisioned something bigger. A central database that everyone in the world could access.

To realize this dream Fanning stopped going to school. He set everything aside for months and didn’t stop until the first version of Napster saw the light. That moment came in 1999. Soon after, it went viral.

The documentary shows how millions of people flocked to the new app. Some people, mostly teenagers, were completely consumed by it and downloaded thousands of MP3s just because they could.

The application soon reached the RIAA’s offices too. They were equally impressed.

“My head of anti-piracy, Frank Creighton, came into my office and said, ‘I’ve just found the most fascinating thing.’ It was Napster,” Former RIAA CEO Rosen recalls.

Rosen immediately tried Napster and put in a search for Madonna’s ‘Holiday’ that returned plenty of results.

“I was like, ‘Whoa, that’s pretty amazing.’ That’s like the celestial jukebox. We’ve been talking about this for years.”

After the initial excitement sunk in, Rosen realized that Napster was a treasure trove of pirated content. She reached out to Napster in an effort to have the infringing content removed, starting with the Billboard 200. Napster said it would try to help, but nothing really happened.

Music Titans Were Terrified

In the months that followed, the file-sharing revolution grew and grew. The music industry shifted to panic mode and in February 2000 all major label executives discussed the threat during an RIAA board meeting at the Four Seasons Hotel in Los Angeles.

“I will never forget this day. All of the heads of the labels, literally the titans of the music business, were in that room. I had somebody wheel in a PC and put some speakers up and I started doing a name that tune,” Rosen says.

The major music bosses started to name tracks, including some that weren’t even released yet, and time and again Napster would come up with results. Needless to say, the board was terrified.

“We used to have this line in the record business that there was sort of nothing a good hit couldn’t fix. There was no screw up a good hit couldn’t fix. There was no amount of money lost on a deal that a good hit couldn’t fix.

“I think that was the moment when people said, ‘Ooh, maybe a good hit can’t fix this one’,” Rosen added.

Napster Had Benefits Too

While the big music bosses were scared, others saw opportunities. Not just the pirates, but also artists who used Napster to deliver their music directly to the rest of the world. They included rapper Benefit , for whom Napster was a major breakthrough .

Benefit entered and won a contest organized by Public Enemy’s Chuck D , who himself was a major supporter of Napster. He was one of the first major musicians to argue that this could be good for artists.

“I look at Napster as being new radio and people are finding ways that now you’re going to have a million artists, and a million labels, now all in the record game,” Chuck D said at the time.

The major labels and the band Metalica clearly disagreed and famously sued Napster. This resulted in public outrage including massive protests, but eventually the court decided that Napster had to stop the copyright infringement. The company later shut down its servers, barely two years after the first launch.

Napster Was Soon Replaced

The problems for the music industry didn’t stop there. Soon, new and better file-sharing tools popped up, and these became increasingly decentralized. Fromm Kazaa, through Morpheus to LimeWire, music sharing was suddenly unstoppable.

The problem was that the music industry didn’t really have a good alternative. There was no digital equivalent of the music store yet, as Larry Kenswill, a former executive at Universal Music Group, explains:

“The huge, huge problem at the time is that it was very hard to tell people not to use peer-to-peer methods and they’ll say, well, what should we use? And the answer was, go to a record store and buy a CD. That’s not what they wanted to hear.”

Steve Jobs Has a Solution

The labels were desperately looking for a solution and just around that time Steve Jobs, who had just returned to Apple, entered the scene. Apple had their iPod and was secretly working on its own music store.

In late 2002 Jobs reached out to the major labels to share his plan. Several major executives were invited to Cupertino where Apple’s CEO personally gave an hour-long demo of the iTunes store.

“It worked better than anything we’d ever seen before. And it became obvious this, this was a good thing to go with,” Kenswill recalls. “The one thing of course about the iTunes music store, he wanted every song to be a buck.”

Unbundling the Album

With this demand, Steve Jobs arguably changed the music business more than pirates did. It meant that a song couldn’t cost more than a dollar and tracks would become unbundled from a full album.

While this sounds reasonable today, it was a revolution back then. For decades artists have sold full albums even though many people were only interested in a few tracks at most. This generated heaps of excess revenue. With iTunes, that model changed. And the money too.

“The unbundling of albums meant that the revenue that came in was significantly diminished,” Rosen says.

While much of the decline in music sales revenue has been blamed on piracy, it can be argued that the move to digital downloads and the unbundling that came with it had a much bigger impact. This is something we already argued over a decade ago .

While iTunes did well, there were still plenty of people pirating music. Apple’s store didn’t provide the ‘celestial jukebox’ experience pirate apps had, simply because most people could not afford to fill up their MP3 players legally.

RIAA vs. The Public

Faced with a rampant music piracy boom the RIAA decided to go to court again. This time they were not targeting the creators of file-sharing tools, but the people who downloaded tracks.

This idea was controversial, also within the RIAA, and CEO Hilary Rosen even resigned over the matter.

“I didn’t want us to go against individuals, even though they were the source of a huge amount of illegal activity, I felt like ultimately they were still music fans. But essentially I was kind of overruled.

“My last day at the RIAA was the day before the litigation against individuals started,” Rosen adds.

The lawsuits became a trainwreck, especially because thousands of people seemed to be randomly targeted. Some may have been prolific downloaders, but the RIAA also sued ‘dead people,’ grandmas, and other unlikely targets.

Lawsuits Made Things Worse

Meanwhile, piracy wasn’t stopping. Stephen Witt, author of the book “How Music Got Free,” argues that the lawsuits only made things worse. This is corroborated by musician Nick Koenig, who was one of the RIAA’s targets at the time.

“I ended up having to pay like, I think close to a thousand dollars to the RIAA. But in the end, I ended up recouping my losses by downloading overtime and doubling down,” Koenig says.

Around the mid-2000s the lawsuits had ended. It was the time when torrent sites started to dominate the piracy scene and these became even more popular when LimeWire shut down.

The Spotify Moment

A BitTorrent client named uTorrent became particularly popular, up to the point where its creator, Ludvig Strigeus, sold it. That money was then used for another startup that would shake up the music industry: Spotify.

When Spotify first went public in a few select countries in late 2008, we joined the ‘invite-only’ platform to see what it was all about. We were blown away .

Having all music tracks available for streaming was another Napster moment. Or perhaps it was better than Napster. It was the ‘celestial jukebox’ the music industry could only dream about a decade earlier.

Where’s The Money?

While Spotify and other platforms are great for users, not all artists are happy. Especially those who have to share a big chunk of their revenue with labels. But even for independent artists, the revenues are rather limited.

The documentary goes on to show how recorded music sales transformed from being the primary source of income to more of a promotional tool. Increasingly, musicians had to rely on other means such as concerts, merchandising, Bandcamp, or even Patreon to earn a decent living.

For older musicians, this isn’t easy. There’s an idea that music has lost its value. At the same time, unbundling and on-demand streaming are seen as desecrating the art of an album as a whole.

For labels, things have changed as well. Their monopolies are starting to crumble. While they still serve a purpose, artists are increasingly able to make it on their own. This is in part thanks to the many public outlets that are available today, where they can easily record, publish, and promote their work.

Those independent artists can keep more revenue for themselves. This is a topic we addressed in the past and in the documentary, rapper R.A. the Rugged Man brings this up too.

“It got to the point where I hated my label. So I said, Hey, I’m going to run and do this myself. And when I started doing independent records that’s when all my money started coming in. And that’s where all my success started coming in. And that’s where all of my fans started coming in.”

New Opportunities

At the same time, new technology also presents opportunities that, until recently, have never existed. For example, services such as Spotify can target concert promotions at a specific set of fans, be used to scout talent for festivals, and help users discover new content based on their musical taste.

New technologies also allow fans and musicians to get in direct contact. And without the middlemen, having 1000 passionate fans can already be enough to make a decent living, as DJ and music journalist Dani Deahl notes.

And who says that things will stop here? Streaming subscription platforms are the norm today, but these may be outdated again in the future. Looking back, it seems fair to conclude that piracy hasn’t destroyed the music industry, it mostly helped to get closer to the ‘celestial jukebox.’

The MP3 played a crucial role in this process. It was the catalyst that helped to shift the powers in the music business. This has hurt some companies and musicians, but also helped many others.

The “System Shock” documentary fittingly ends with a quote from the MP3’s co-inventor Karlheinz Brandenburg looking back, so we’ll do the same.

“I had the feeling, this is not good for the music industry. But in the end, I think it changed for the better,” Brandenburg says.

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