Next week, US lawmakers are expected to present the spending bill that keeps the government running.

This ‘must pass’ legislation, also known as the appropriations bill, is often padded in order to get unrelated proposals passed before the end of the year.

While the official content remains unknown at the time of writing, several groups and organizations are already sounding the alarm bell. Based on sources, there is fear that several controversial pieces of copyright legislation will be tagged on.

The CASE Act

The CASE Act is one of the bills that may be added. Short for “Copyright Alternative in Small-Claims Enforcement,” it proposes to establish a copyright claim tribunal within the United States Copyright Office.

If adopted, the new board will provide an option to resolve copyright disputes outside the federal courts, which significantly reduces the associated costs. As such, it aims to make it easier for smaller creators, such as photographers, to address copyright infringements.

Opponents fear that the new tribunal will trigger an avalanche of claims against ordinary Internet users, with potential damages of up to $30,000 per case. While targeted people have the choice to opt-out, many simply have no clue what to do, they argue.

Despite fierce protests, the CASE Act passed the House with an overwhelming majority last year. And now it is possibly being added to the spending bill, Techdirt reports , which means that it could soon become law.

Streaming Piracy Felony Proposal

Another controversial proposal that may end up in the spending bill should sound familiar too. Protocol writes that Senator Thom Tillis will, once again, is trying to make streaming piracy a felony.

Under current law, unauthorized streaming is categorized as a public performance instead of distribution, which is punishable as a misdemeanor, not a felony. Lawmakers tried to change this with the SOPA and PIPA bills but these didn’t pass. The plan never completely disappeared, however.

Earlier this year it gained momentum again in Senate Judiciary Subcommittee on Intellectual Property. Senator Tillis, who chairs the subcommittee, has reportedly picked up the baton and added the proposal to the spending bill.

Opposition

In addition to the two aforementioned pieces of legislation, the Trademark Modernization Act is also on the list of additions. Together, these bills present a volatile mix of copyright-related plans that should not be rushed through, opponents warn.

A group of civil rights groups, tech companies, libraries and educators recently shared their concerns in a letter (pdf) to the U.S. Senate.

“We write to you today regarding recently reported efforts to include a package of intellectual property bills in the year-end spending bill that includes the CASE Act, the Trademark Modernization Act and a felony streaming proposal,” it begins.

Unintended Consequences

The signatories, including the CCIA, the Internet Archive, the Internet Association, the Library Copyright Alliance, and the Center for Democracy & Technology, warn that these proposals will have negative impacts on many organizations and Internet users in general.

“All signatories have serious concerns with at least some aspect of the bills slated to be included in their current state, and we stand ready to work with Congress to avoid their unintended consequences,” the letter reads.

“In order to allow that process to take place, we ask that you decline to include this package of bills in any must-pass government funding bill, and instead allow these bills to be considered through the regular order process.”

While the addition of the controversial plans have yet to be confirmed, the opposition is already in full swing. The Electronic Frontier Foundation, for example, is calling on the public to urge senators not to pass the CASE Act.

“The CASE Act could mean Internet users facing $30,000 penalties for sharing a meme or making a video. It has no place in must-pass legislation,” EFF writes .

If these three proposals are indeed added to the spending bill, more opposition is likely to follow. That said, the bills also have substantial support in the creative industries, so there will be plenty of backing as well.

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

There has never been any shortage of Spanish-focused piracy sites. Many sprang up in the eDonkey days but the rise of torrent sites was perhaps most notable, with local law struggling to have much impact on their use.

Of course, streaming is now the ‘new’ big thing in Spain as it is elsewhere, with sites like Movidy.co attracting large volumes of traffic. But for this movie and TV show streaming platform the show is now over after its operator received some devastating news.

Movidy’s Operator Was Diagnosed With Cancer

Back in the summer, with Movidy pulling in around eight million visits per month, operator ‘Gabriela Algara’ went public with some awful news. Writing on Twitter, he told users that a month earlier he had been diagnosed with cancer.

Stating that he would be unable to continue with the site due to his health, Gabriela Algara revealed his intent to find a new owner and shut down the site on December 31. He set a price of $20,000 to encourage a quick sale. All money, he explained, would be donated to non-profit groups with any buyer set to recoup their money in around five months.

Health Deteriorating, No Suitable Buyer Found

In a sad notice published during the past few hours, Movidy’s operator explained that his situation coupled with the inability to find a suitable buyer for the site had resulted in the site being shut down with immediate effect.

“About 4 months ago I was diagnosed with cancer, after an operation without so much success and the one that literally ruined my life by plunging me into a debt that I will not be able to return even in 50 years.

“Because they deny me treatments due to said debt, I am forced not to continue with the project anymore. Every day I feel weaker and powerless, in fact this morning I woke up in a pool of blood after getting dizzy and hitting my nose against the table,” he wrote in a statement.

While users of the site were saddened by the news, some hoped that Movidy could continue under new ownership but that, its operator explained, is not a realistic proposition.

Potential Buyers Don’t Understand the Risks

“I thought of selling it and passing it on to someone so that they can manage it but of all those who have contacted me, none understand the risk involved in maintaining a website like Movidy, such as being convicted of piracy or evasion of taxes,” he wrote.

It appears that Movidy has been under pressure. While its owner says that he took the necessary precautions to avoid detection, he revealed that during the last month alone, he had received DMCA notices on a daily basis, filed through his server operator, domain registrar and even Cloudflare.

“[A]ll of them provided information about me without question, but they will not find anything since I have always been protected. This is one of the reasons why I prefer to close [Movidy] rather than to pass it to someone who is careless and could ruin their life,” he explained.

Indeed, Google’s Transparency report reveals recent and intense interest from companies like Disney, Netflix, Apple, Warner Bros., Sony, and NBCUniversal, all attempting to have large volumes of content de-indexed via DMCA notice.

Movidy almost doubled its traffic in the past few months, which may have contributed to the increased attention.

Saying Goodbye

“I created Movidy with the sole purpose of providing humble people with a way of being able to see content that they could possibly never had the pleasure of viewing in their life,” Gabriela Algara’s goodbye reads.

“With my programming skills it was very easy for me to create and design a platform that was at the same level of large corporations, without invasive or excessive advertising, without viruses, without disgusting pornographic images, that is, something to teach young children to use without fear of anything.

“But unfortunately like all things, they have a beginning and an end and this, my friends, is the end of Movidy.”

If the planned schedule has been maintained, at the time of writing all Movidy content, videos, links, and user accounts have been deleted. This means that a true reincarnation of Movidy, which is currently one of the top 130 sites in Spain, period, will be impossible.

“I write this statement with tears in my eyes, we have gone through a lot to get to where we are now only to see it fall in a matter of minutes. I am very proud of each and every one of you, thank you very much for being there supporting me, I hope to see you in future, either in this life or in the next,” he concludes .

Less Favorable Climate For Pirates Site in Spain

The closure of Movidy follows on the heels of the demise of another Spanish giant back in September. Megadede, an extremely popular streaming portal that was one of the country’s top 100 sites, gave no reason for pulling down the shutters, but legal pressure remains a possibility.

Back in the summer, Spanish police shut down an IPTV service with an estimated two million subscribers. That followed raids in April during which seven individuals were arrested as part of a similar operation.

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

Cyberpunk 2077 may well be the most-hyped videogame of all time. It will be released in two days’ time and for hundreds of thousands of gaming fans, those 48 hours can’t be over soon enough so they can empty their wallets.

Of course, piracy is always a risk, yet after a herculean development cycle utilizing hundreds of workers to put together what developer CD Projekt Red hopes will be its most successful title, the company will throw itself to the wolves by selling the game without copy protection.

While that is likely to please many gamers and the anti-DRM movement, the decision must have companies like Ubisoft, who seem to love Denuvo, scratching their heads. But CD Projekt Red isn’t throwing all caution to the wind.

Cyberpunk 2077: Meet Denuvo

During the past couple of days, reviewers lucky enough to have received an advance copy of Cyberpunk 2077 have been publishing their early opinions. Inevitable bugs aside, the majority seem to have been impressed by the scale and ambition of the game, something which will please fans and the developer alike.

However, news that those copies had Denuvo copy protection embedded had some observers doing a quick double-take. Denuvo? In Cyberpunk 2077? A mistake, surely?

To better understand why this revelation caused alarm, it’s useful to take a look at CD Projekt’s historical attitudes towards DRM. In addition to its development work, the company also owns GOG , a digital distribution platform for video games and video.

Unlike similar services, GOG forces no DRM on its customers, something that has earned it a unique place in many gamers’ hearts. In addition, GOG and CD Projekt are behind the FCKDRM ‘movement’ which highlights the numerous downsides to DRM while promoting DRM-free sources.

With slogans like “You bought it, you own it” and “Don’t hand your rights over to corporations that wouldn’t trust you,” FCKDRM is a truth-teller when it comes to DRM and DRM-like systems. The fact is that many games these days could one day refuse to run in the absence of an Internet connection, or could be assigned to history on the whim of a publisher.

In common with all gamers, GOG and FCKDRM believe that shouldn’t be the case.

So Why Has CD Projekt Turned to Denuvo?

It’s important to note that the official release of Cyberpunk 2077 will not have Denuvo, it’s only the free review copies that are affected. Nevertheless, some feel that the company should have shied away from DRM altogether since this clashes with the stated principles of CD Projekt/GOG/FCKDRM. Those people are completely wrong and the decision to use Denuvo, in this case, makes complete sense.

From a technical perspective, Denuvo does what it claims to do. It protects games in the important days and weeks following launch, making it a perfect candidate to prevent early piracy of Cyberpunk 2077. However, and perhaps more importantly, what CD Projekt is trying to avoid here is the possibility that its game leaks out on to the Internet before launch .

On day one of release, Cyberpunk 2077 will be a sitting duck for pirates. With no DRM, CD Projekt is putting its faith in its ability to convince people to buy the game and not pirate it. To quote company co-founder Marcin Iwiński, “We cannot force people to buy things. We can only convince them to do it. We totally believe in the carrot, not in the stick.”

And this is the key point. Until December 10 arrives, no one will be able to buy this game. The developers may have already convinced hundreds of thousands of gamers to buy Cyberpunk 2077 and not pirate it, but if there’s a pre-release leak, all bets are off.

Essentially, CD Projekt will have relied on the goodwill of fans and their belief that rejecting DRM is a good thing, and then found themselves beaten, not just by pirates, but by the fact they will be unable to compete for consumption of their own product. For a pro-consumer company, that can never be right.

Using Denuvo In *FREE* Review Copies Betrays Nobody

Anyone who closely followed the GOG/FCKDRM campaign will have understood its focus. The philosophy of the entire project was to highlight the negative effects that DRM (including systems like Denuvo) can have on consumers. Things like ‘kill switches’, systems that prevent users from modifying game files, and requirements for players to continually prove ownership.

While Denuvo arguably contains all of these to some extent, not a single line of Denuvo code will make it to a legitimate copy of Cyberpunk 2077 installed on the machine of a regular PC gamer. In this respect, CD Projekt will have kept every promise it’s ever made.

In much the same way they secure their company servers from hackers intent on grabbing content they have no right to access, its use of Denuvo in Cyberpunk 2077 in review copies is merely an extension of that, not a betrayal of its principles.

What the developer is saying, it appears, is that it believes it has obtained enough trust from players to invest in its creation, but it will never trust pirates intent on leaking its product before launch. And that stance, regardless of what anyone might say, is the smartest and most pragmatic possible under the circumstances.

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

The European Union Intellectual Property Office ( EUIPO ) regularly conducts studies to see how piracy develops over time.

These studies help the public to understand local piracy trends and can be used as input for future policy decisions.

Last month, for example, EUIPO research showed that EU citizens increasingly pay to access content legally. However, a group of stubborn pirates , who often pay for legal content too, remains.

This week, EUIPO released another in-depth piracy report titled “Online Copyright Infringement in the European Union.” The research is a follow-up to a report published last year which found that access to pirated content across Europe dropped by more than 15 percent.

Last year’s study revealed some broader effects as well. For example, it found that people from lower-income countries tend to pirate more and that awareness of legal options doesn’t always decrease piracy.

Most Popular Pirated Titles

The new research is partly based on the same data, which was purchased from the piracy tracking firm MUSO. Instead of looking at the broader piracy effect, this time the research zooms in on the most pirated movies, TV-shows, and artists.

These data are estimated from public BitTorrent tracker data which were extrapolated to other piracy services, such as streaming and direct download sites. While this method is far from exact, it should give a good indication of the broader piracy demand.

The 123-page report is in large part made up of tables with the most pirated titles in the EU as a whole and in individual member states. It’s based on data that covers only part of 2018, which means that it’s limited in scope and a bit dated. Still, it’s worth scanning over the results.

Justice League, Walking Dead, and Ed Sheeran

With over 42 million estimated downloads, Justice League was the most downloaded movie in the EU. The Walking Dead was the most pirated TV-show, with over 435 million downloads, and with nearly 7.5 million downloads, Ed Sheeran was the most pirated musician.

The most popular titles and artists show a lot of overlap between EU countries. That said, there are some local outliers as well.

Local Favorites

For example, the Norwegian metal band Immortal tops the music piracy chart in Norway, and the Swedish metal band HammerFall takes the top spot in Sweden. In Spain, American singer Luis Fonsi is pirated more than any other artist, and in Germany Bob Dylan managed to beat Ed Sheeran by a few thousand downloads.

There are similar outliers for movies and TV-shows. For example, The Mummy was disproportionately popular in Spain, taking the top spot in the film category. In the TV category, South Park does surprisingly well in Finland, beating all other shows.

These local trends are intriguing, but they don’t necessarily lead to broader conclusions. However, a more analytical approach shows that there is something to learn.

Film Piracy Findings

The findings show that there isn’t that much difference in film tastes between various countries. There is a lot of overlap between the 30 most pirated films per country and for the EU as a whole. Also, piracy is mostly affecting newer and commercially successful mainstream films.

This leads to the perhaps obvious conclusion that commercial success is linked to piracy. In other words, when more people see a movie in the theater, it’s pirated more frequently as well.

“This analysis shows that commercial success is associated with higher levels of piracy: when the number of tickets sold increases by 10 %, the number of illegal downloads increases by 3.7 %,” the findings read.

The second film piracy effect is more intriguing. Films from Canada, Australia, China, Finland, Germany, India and Russia take a bigger share of the total pirate downloads, compared to the total box office numbers.

“Piracy of films from these seven countries represents 2.8 % of film piracy and 1.8 % of admissions in EU cinemas. Although the total cumulated piracy of the last group is low, they suffer a relatively higher piracy rate than the more widely distributed films.”

This can be partially explained due to the fact that these films are not always available legally due to limited availability in movie theaters. Piracy is then a convenient alternative.

TV and Music Piracy

TV-shows are by far the most popular content on pirate sites. Obviously, more recent TV-shows are pirated more frequently but the link with legal consumption is less clear than with music and films.

While there’s a bit more variety in taste between EU countries, on average, 19 of the 30 most popular series are also on the EU’s top 30 list.

Local differences are most apparent when it comes to music, as our examples earlier already illustrated. On average, 16 of the most popular artists in a country also appear in the EU’s top 30.

In terms of volume, music is the least popular category of the three. The most popular artist, Ed Sheeran, was downloaded 7.5 million times while The Walking Dead topped 435 million downloads.

In addition, it appears that piracy preferences are lagging behind actual sales a little.

“In music, there is also a relationship between commercial success and piracy, although with a delay: many of the best-selling musicians of 2017 were the most pirated artists in 2018,” the report reads.

Conclusions and Future Research

The EUIPO study concludes that piracy seems to be driven by demand. Consumers want to watch the content that’s most appealing to them, legally or illegally. When it becomes harder to access something through legal channels, piracy tends to increase.

“These results underscore the importance of legal accessibility as one of the ways in which consumption of pirated content can be reduced,” the report concludes.

With the constantly evolving media landscape, EUIPO’s Audiovisual Observatory plans to follow up the current findings with more in-depth research. This includes the effects of movies that skip cinema releases and are made available on-demand immediately, by Netflix and Amazon for example.

And with Warner Bros’ recent decision to premiere all 2021 movie titles on HBO Max and in cinema simultaneously, another area of research just popped up.

—

A copy of the “Online Copyright Infringement in the European union title-level study: Film, Music and TV”, is available here

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

With more than 35 million students, 57,000 instructors, and 400 million courses available, Udemy is a huge player in the online learning space.

Accessing the company’s content obviously comes at a price too so when online learning group ShareLearn spotted an opportunity for students to access thousands of Udemy courses legally and for free, they decided to share the information with the world.

Tutorial Uploaded to YouTube To Help Students

ShareLearn’s four-minute video, which TorrentFreak was able to review on another platform, begins with a splash screen indicating that by using the techniques shown in the videos, thousands of courses can be accessed by students with the right credentials.

While it does display the Udemy logo, a disclaimer at the start of the video states that the tutorial is “not affiliated with Udemy”.

The purpose of the video was to spread the word that Udemy has a partnership with Gale to provide “more than 6,000 high-quality, on-demand video courses taught by world-class instructors across 75 categories for upskilling in the areas of business, technology, and design.”

As part of this arrangement, free courses are available under some library systems.

The System to Access Courses is Hosted By Gale

The video reveals that if students from certain cities in the United States visit gale.udemy.com , they are presented with a portal that operates in partnership with their libraries, universities, colleges and schools. With the library option selected, a list of participating libraries appears.

In the tutorial video, San Francisco library is used as an example. For authentication purposes, users are required to enter their library account credentials and from there they are passed to Udemy, which requires a Google or Microsoft account to proceed.

The people at ShareLearn showed a screenshot of this page to make their tutorial easier to understand, as we have done with the screenshot of the video below.

Udemy Files Copyright Complaint With YouTube

Given the obviously useful nature of the video, it’s perhaps reasonable to conclude that at least some students would’ve learned something from it. However, not too long after it was uploaded to YouTube, it was targeted by a Udemy copyright complaint which resulted in it being taken down.

“[Udemy] has claimed copyright infringement for use of their logo,” ShareLearn informs TorrentFreak.

“We believe it is covered under fair use and they want to hold us from promoting this option to avoid people from using this library service paid by taxpayers. I have sent them a few emails, but they have given a standard reply that we violated their copyright,” ShareLearn add.

Udemy’s Legal Department Refuses to Reconsider

From correspondence reviewed by TF, ShareLearn told Udemy that they “appreciate what Udemy is doing for society” and were excited to see the Udemy/Gale/libraries partnership, noting that the project seemed like a good use of taxpayers’ money.

“In this video, we have used udemy logo as a reference to udemy, which is covered under fair use. We used screenshots from gale.udemy.com website to help library patterns sign up for your service via public library, which is covered under fair use [sic],” the correspondence reads.

ShareLearn then presented Udemy’s legal team with a list of questions requesting additional information on why the inclusion of screenshots bearing Udemy’s logo can’t be considered fair use. The group also asked where Udemy itself advertises the availability of the free service to students.

In its response, Udemy ignored the questions and reiterated its key objection.

“When material posted on other platforms infringes Udemy’s intellectual property rights, or on the rights of our instructors, we have an obligation to protect those works,” the company said.

“We have reviewed the takedown notice in question, and confirmed the infringement therein. If you have questions about intellectual property matters such as trademark, copyright, fair use, etc. you may wish to consult an attorney. Udemy cannot provide you with any legal advice on these matters.”

ShareLearn Files YouTube Counternotice

ShareLearn has filed a counternotice with YouTube in an effort to have the video restored but at the time of writing, that is still pending and the content remains down. What will happen next is unclear.

The takedown from YouTube was filed under copyright law, clearly referencing Udemy’s “copyrighted logo”. Whether any fair use defense is applicable in this case will be for lawyers to argue over but aside from the 20-second intro page (shown in the screenshot above, which includes a disclaimer), the only use of the Udemy logo thereafter is when screenshots/screen recordings of the Udemy/Gale website/system are displayed.

Given that the idea of the video was to promote Udemy products and services developed alongside Gale and libraries for the benefit of students, the copyright complaint and subsequent removal seem somewhat overzealous, if not counterproductive too.

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

Hacking group Team-Xecuter has long been a thorn in the side of major gaming companies.

The group offers hardware and software solutions that allow people to install and play unofficial games – including pirated copies – on various consoles, including the popular Nintendo Switch.

Team-Xecuter often defended its work by pointing out that their products are not necessarily pirate tools. They are supporters of the ‘right to repair’ movement and back people who want to play homebrew games on their devices for personal use.

The affected game companies disagree, with Nintendo front and center. The Japanese gaming company has been chasing down Team-Xecuter for years and a few months ago the company took several online stores to court for selling Team-Xecuter products .

In October, these enforcement efforts reached a new level when the US Government launched a criminal prosecution of three of the group’s members.

Bowser aka ‘GaryOPA’

One of the defendants is Canadian Gary Bowser. He was arrested in the Dominican Republic in September and was deported to the US soon after. Bowser was allegedly responsible for the development of circumvention devices and maintained regular contact with resellers.

Bowser is perhaps best known through his nickname GaryOPA, the supposed operator and a frequent writer on the website “MaxConsole,” which regularly reviewed Team-Xecuter hardware and other hacking tools.

Flight Risk

In a ‘Zoom’ hearing held last week, a federal court in Seattle reviewed a request for pretrial detention, submitted by the US prosecution. It is not uncommon for criminal defendants to be released on bail pending their trial, but the US argues against this in Bowser’s case, as he’s considered a ‘flight risk.’ The court agrees.

“Defendant poses a risk of nonappearance due to his lack of ties to this district, ties to Canada and the Dominican Republic, ownership of a Canadian passport, history of international travel, unstable living situation, and an uncorroborated personal history,” US Magistrate Judge Michelle Peterson writes.

“Based on these findings, and for the reasons stated on the record, there does not appear to be any condition or combination of conditions that will reasonably assure the Defendant’s appearance at future court hearings,” she adds.

Bowser was not interviewed by the court, which currently has no information on his family ties, personal history, or employment. That leaves the door open to reopening the detention hearing at a future date, which may change things.

The Other Defendants

There is no update on the other defendants at this point. Based on the information in the court dockets, Yuanning Chen from China is still at large. According to the indictment, Chen managed a manufacturing and distribution company where Team-Xecuter’s hardware was made.

The third defendant, French national Max Louarn, was arrested in Canada where a U.S. extradition request was launched. The US Government sees Louarn, who’s hacking track record goes back to the early nineties, as the leader of Team-Xecuter.

Louarn allegedly made Team-Xecuter’s important business decisions, arranged investors and financing, and oversaw product development and the wholesale distribution chains.

Nintendo Takes Over Domains

The US criminal prosecution is not the only legal pressure on Team-Xecuter. Nintendo has also seen very active on the legal front. One of the stores it sued earlier this year, Axiogame.com, was allegedly operated by Team-Xecuter . That has been shut down through Nintendo’s lawsuit.

The Axiogame.com domain is now owned by Nintendo and over recent days the gaming company took over several other domains of former piracy hack stores, assisted by an updated court order .

Flashcarda.com switched to the new Materpl.com domain and both are owned by Nintendo now. The same is true for Txswitch.com that switched to Stxwitch.com, Usachipss.com that moved to Nerged.com, and several other domains.

Team-Xecuter Continues

Despite the mounting legal pressure, Team-Xecuter is far from defeated. In fact, the site’s main website remains online . The forum remains active as well, with people privately offering help to install or buy mods.

Team-Xecuter’s dedicated page for the SX product line is also still intact. This links to a list of authorized resellers. While many of these stores are offline now, a few are still actively selling.

—

A copy of the detention order issued by US Magistrate Judge Michelle Peterson is available here (pdf) . Nintendo’s filing, pointing out the newly targeted shop domains can be found here (pdf)

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

When the Digital Millennium Copyright Act (DMCA) was introduced in 1998, file-sharing was a fringe activity, and online streaming a futuristic idea.

The developments over the past two decades have transformed the way people consume media, both legally and illegally.

Calls for DMCA Reform

Despite these drastic changes, the DMCA still dictates how many online services respond to copyright-infringing content. While most service providers are relatively happy with it, copyright holders demand change.

These discussions have been ongoing for a few years now. The US Copyright Office has heard many stakeholders and recently summarized its recommendations in an advisory report, which suggests several ‘tweaks’ to the current law.

In addition to this effort, U.S. Senator Thom Tillis launched a separate DMCA review process through the Senate Judiciary Subcommittee on Intellectual Property. In several hearings, it heard input from key players including copyright holders, legal experts, service providers, and digital rights groups.

Senator Tillis Questions Stakeholders

As the review process nears its conclusion, Senator Tillis also asked various parties to submit written submissions. These are not posted publicly, as far as we know, but Re:Create published its response and those of several members, including digital rights groups EFF and Public Knowledge.

These submissions provide a clear counterweight to the ‘stricter’ rules and enhanced enforcement options the major copyright holder groups have called for. This includes website blocking and a proposed notice-and-staydown regime.

The site-blocking push came as a surprise as it’s been a no-go topic in the US after the SOPA and PIPA bills were rejected in 2012. Technically speaking, site-blocking injunctions are already possible under the DMCA. However, so-called ‘no fault’ injunctions, issued against ISPs, are not.

Site Blocking Questions

Senator Tillis questions whether the DMCA should be updated to make these site-blocking injunctions more accessible for copyright holders. And if so, if these should be issued by federal courts or a special tribunal.

EFF answered this question negatively, warning against overblocking, which will ultimately chill free speech.

“Injunctions to restrain the forums and conduits of speech are treated with extreme skepticism in the U.S. free speech tradition,” the digitals right group writes, adding that “website blocking is a blunt instrument that inevitably risks over-blocking of lawful and non-infringing speech.”

Site blocking will require technological and organizational censorship systems, much like the ones Chinese companies are required to use. The risk is that once these are in place, more and more content will be censored.

“Once created, the use of these systems is unlikely to be confined to copyright enforcement, nor to U.S. court orders. They risk being used to censor all manner of speech that violates foreign laws or offends powerful interests,” EFF adds.

SOPA/PIPA

EFF also references the SOPA and PIPA bills, which is a common theme in the answers from all opponents including Public Knowledge .

The non-profit organization points out that technology experts warned that site blocking interferes with the domain name system, which carries security and privacy risks. In addition, civil libertarians cautioned that it can be abused to increase censorship.

“SOPA/PIPA was roundly condemned by people from different political backgrounds for a reason, and accomplishing the same objective of site-blocking through injunctions against third parties is subject to the same critiques,” Public Knowledge writes.

These potential threats are not worth the risk, especially because site blocking isn’t effective, the group adds. Targeted sites can simply move to new domains as their servers remain online.

“It is ineffective because it is trivially easy for sites dedicated to infringement to simply switch to alternate domains. It’s misdirected because ISP- and DNS-level blocking fails to actually take sites offline,” Public Knowledge writes.

This sentiment is shared by Re:Create, which stresses that if such a far-reaching measure is ever handed down, it should be done by a jury.

“Website blocking is not only a ​technological nightmare to implement​ (if it can even be implemented), but widely unpopular. Copyright infringement does not rise to the level of relief that should be ordered without a trial by jury under the 7th Amendment protections of the Constitution for copyright infringement,” Re:Create notes.

Notice-and-Staydown Questions

The three groups are clearly against the site blocking proposal and they have similar thoughts on the notice-and-staydown proposal as well.

Senator Tillis asked whether it’s a good idea to ease the burden on copyright holders by requiring service providers to ensure that infringing content stays offline. This is similar to the EU proposal, which opened the door to automated filtering of uploaded content.

This ‘staydown’ requirement would end the current takedown whack-a-mole where copyright holders have to ask services over and over again to remove the same files. However, the three groups warn that this is a horrible idea.

One obvious problem, according to Re:Create, is that automated systems don’t know whether a person has the right to post something. Similarly, it can’t see whether an upload is a fair use.

“Notice-and-staydown by its very nature would presume copyrighted material is automatically infringed, without considering cases where the use of this content is permissible,” Re:Create writes.

The group adds that there are already enough problems with the current takedown system, where fair use or legal content is incorrectly taken down. A staydown requirement would only make this problem worse.

“A notice-and-staydown regime would further impair legal uses and reshape copyright policy and law as it has been understood for centuries – chilling expression and creativity. This is because there is no way to design such a system without filtering technology.”

Copyright Office Rejected Staydown Proposal

Public Knowledge shares this concern and points out that even the Copyright Office advised against implementing such a scheme in its recent recommendations. Instead, the Office advised Congress to evaluate how this will work in the EU.

“Notice-and-staydown is an idea so far removed from feasibility that even the Copyright Office, after years of study, declined to endorse it,” Public Knowledge notes.

“[T]he European Union provides a historically rare opportunity for lawmakers to study, in real time, the effects of such a system on the online ecosystem and its 447 million European users. Attempting to leapfrog this transition before it’s even returned initial results would be policy malpractice.”

The EFF also opposes a staydown requirement. The group highlights that the current system was carefully drafted to balance the interests of copyright holders on the one hand, while preserving free expression and innovation.

Requiring online services to police their users and filter content will lead to overblocking, it warns.

“Conditioning liability limitations on a service provider’s ability to actively police potential infringement would likely lead to over-blocking and/or aggressive filtering of user-generated content. That would make the Internet a much less hospitable place for free speech and innovation,” EFF warns.

Disagreement Remains

The full answers from all three groups, as well as several others, are available on Re:Create’s website . The group encourages all stakeholders to make their responses public, but thus far we haven’t seen any from the major copyright holder groups.

We did spot a copy of the answers from the Artists Rights Alliance which, as expected, supports broad DMCA reform. Ideally, it would like to limit the current safe harbor system and require infringing content to stay offline once it’s reported.

“At a minimum, where an artist does identify unlicensed uses of their music on these new platforms, they should not be further burdened with mapping unfamiliar networks and finding every other instance of such unlicensed use,” ARA writes .

These responses show that Senator Tillis and his colleagues will have a really hard time coming up with a proposal that will keep both sides happy. But after several years of DMCA reviews, that doesn’t really come as a surprise.

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

Anti-piracy group BREIN is at the forefront of the fight against copyright infringement in the Netherlands.

Many of its efforts have been focused on legal action against big targets such as The Pirate Bay and the IPTV market, with the group achieving notable legal precedents along the way.

Now, however, BREIN says it wants to strike at the heart of the sharing landscape by targeting users whose sharing habits play a key role in keeping content alive.

Frequent and Long-Term Infringers on the Radar

From December 15, BREIN says it will begin a long-planned project (‘FLU’ – Frequent and Long-Term Uploaders) to reduce the availability of movies, TV series, books and music on file-sharing networks.

Using specially developed software (AFLU: Analysis Program For Frequent and Long-Term Uploaders), BREIN will search for local BitTorrent users who regularly upload infringing content and/or share it for long periods of time.

The key criteria for receiving a notice is as follows:

– IP address has been observed sharing BREIN member companies’ content
– IP address belongs to a Dutch ISP
– In a four-week period, IP address has been seen at least twice in any relevant swarm, with an interval of at least seven hours

The focus, at least for now, will be on those who distribute multiple infringing uploads of content aimed at the Dutch market. BREIN says that it has a preference for original Dutch content but will also be interested in foreign-made Dutch-subtitled or dubbed content, distributed by users of torrent sites or apps like Popcorn Time, for example.

Casual Downloaders Are Not The Initial Targets

Similar anti-piracy campaigns over the years have sought to sow widespread fear among all file-sharers but BREIN is being very specific about its targets and goals. The project is not about targeting casual sharers but those who play a more important role in the sharing ecosystem.

“This project is not about incidental – so-called ‘hit & run’ downloaders, but about frequent BitTorrent uploaders. Habitual infringers who act not so much as a primary and large-scale source, which have already been and are being successfully enforced, but more as a lubricant, because they perpetuate the exchange of illegal content through their so-called ‘seeding’,” BREIN says.

“Without these types of users, the exchange [of files] will not work.”

With this strategy of going after a relatively small subset of users, BREIN appears to be deploying a tactic that has the potential to starve BitTorrent swarms of the crucial elements they need to survive. These users not only have a tendency to supply upload faster to other users but they also seed for longer, bringing health to swarms.

In a sharing climate that is disproportionately reliant on these types of sharers, with the vast majority of users simply grabbing whatever content they need without hanging around and contributing for too long, BREIN will be hoping to degrade the transitory experience of the masses by removing bandwidth thereby rendering downloading more laborious.

Indeed, BREIN advises that “the more often and longer [users] are in an infringing BitTorrent swarm as an uploader” the more likely they are to become of interest to BREIN. This message, should it gain traction, could be of real benefit to the project.

If BREIN succeeds this could be an interesting experiment, but first of all it needs to tie IP addresses to the key individuals themselves, a practice that is rarely easy or without costs, especially in the Netherlands.

Warning Notices Will Be Sent To More Prolific Sharers

BREIN’s plan is to send “informative warnings” to more prolific sharers for at least six months, targeting up to a maximum of 1,000 IP addresses per month. It hopes to utilize ISPs’ ability to match IP addresses to real-life identities in the hope they will pass notices on.

“We will always ask for the cooperation of the relevant ISPs to forward that e-mail. In case of refusal, we will request (or demand) the corresponding email addresses so that we can send the alerts ourselves,” BREIN says.

The big question is whether the anti-piracy group can rely on traditionally stubborn local ISPs to get involved in the process voluntarily. TorrentFreak approached BREIN for comment on whether any ISPs have already agreed to work on this project but Managing Director Tim Kuik said he prefers for ISPs to individually communicate whether they are willing to cooperate.

From the language used, however, it seems that BREIN could take legal action to compel ISPs to either cooperate or even hand over customer data.

Legal Action Against ISPs That Refuse To Coopeate

BREIN says it has already considered the possibility that some ISPs won’t be willing to cooperate and is prepared for legal action to force compliance.

“BREIN will, in that case, be forced to enforce cooperation through the court. In such a situation, BREIN will most likely be looking for a minimum [data retention] period from six months into enforcement against the uploaders in the target group whose IP addresses are found in the Bittorrent swarms,” BREIN explains.

Indeed, it seems the cooperation of the ISPs might be an important element here, and somewhat of a double-edged sword. On the one hand, ISPs might face a backlash from some customers for cooperating in an anti-piracy scheme. On the other, it appears that if ISPs pass on warnings on BREIN’s behalf, BREIN won’t be seeking to obtain any information that would personally identify those infringers.

“BREIN will only do so if providers do not want to cooperate by forwarding the notifications to the subscribers whose IP numbers were obtained by BREIN in the context of FLU,” the anti-piracy group says.

BREIN says it sought advice from a communications specialist and market research company Kantar when formulating the proposed warnings, something which suggests a persuasive approach over brute force, at least in the first instance.

Campaign Forms Part of a Government-Funded Study

An interesting aspect of BREIN’s campaign is that the associated market research project has received funding from the Ministry of Education, Culture and Science. The first phase, which measured the state of play before the notices, has already been completed.

Additional research will be carried out to assess the effectiveness of the warning notices as time progresses. If a positive effect is observed, the warnings will continue but BREIN warns that if its efforts don’t yield appropriate results, it will consider bringing enforcement measures to the table.

Processing of Personal Data

The documentation provided by BREIN indicates that the anti-piracy group has been extremely thorough in considering privacy concerns. Notably, BREIN says that following consultations with the Dutch Data Protection Authority, it was determined that a license is not required for such collection of data. Nevertheless, BREIN says it will only collect the information it needs, with the rest being discarded.

“The starting point with FLU is proportionality, which means that the personal data that is processed is only that necessary for the specific purpose BREIN wants to achieve with FLU,” BREIN says.

“To detect relevant Dutch IP addresses, BREIN uses special software developed on request. Several samples are taken on various titles every month. Irrelevant addresses are not saved. Data that is not used will be deleted and data that is being used will be deleted as soon as possible after sending the advisory warning.”

Specifically, BREIN will immediately anonymize all foreign IP addresses it obtains although it will do its best to avoid them capturing them in the first place. Dutch IP addresses will be stored for a maximum of six weeks but if those same IP addresses are spotted more than twice in a four-week period, BREIN will retain them for longer to facilitate the notice-sending element of the campaign.

What Happens After the Six-Month Campaign?

BREIN says that the research into the effectiveness of the project will be “highly dependent” on the levels of cooperation it receives from ISPs. Again, it is not yet clear whether any or all have agreed to cooperate. Presuming they do and infringement “significant diminishes”, FLU will be extended for another six months with research carried out to determine effectiveness.

If ISPs do not assist, or compliance with notices does not yield sufficient results, BREIN will then decide whether to move to enforcement.

“At the earliest after this initial six-month period, if necessary BREIN will scale up and take enforcement action against those users whose samples are found three or more times in a BitTorrent swarm. These are users who continue to seed content for a long period of time or who repeatedly download and upload infringing files every month,” BREIN adds.

Finally, BREIN has also laid out criteria for enforcement action, should it be deemed necessary.

– IP address has been observed sharing BREIN member companies’ content
– IP address belongs to a Dutch ISP
– In a four-week period, IP address has been seen at least three or four times in either a) different swarms, b) in the same swarm more than seven hours apart, or c) a combination of these variants.

The documents supporting the scheme can be found here and here (PDF, Dutch)

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

Operating a mixtape site is not without risk. By definition, mixes include multiple sound recordings that are often protected by copyright.

Popular hip-hop mixtape site and app Spinrilla , which has millions of users, is well aware of these risks. In 2017, the company was sued by several record labels, backed by the RIAA, that accused the company of massive copyright infringement.

“Spinrilla specializes in ripping off music creators by offering thousands of unlicensed sound recordings for free,” the RIAA commented at the time.

Spinrilla Fights Piracy Accusations

The hip-hop site countered the allegations by pointing out that it installed an RIAA-approved anti-piracy filter and actively worked with major record labels to promote their tracks . In addition, Spinrilla stressed that the DMCA’s safe harbor protects the company.

As the case progressed both parties filed motions for summary judgment. The music companies requested rulings to establish, before trial, that Spinrilla is liable for direct copyright infringement and that the DMCA safe harbor doesn’t apply.

Spinrilla countered this with cross-motions, filed under seal, in which they argued the opposite.

Court: Spinrilla is Liable

This week, US District Court Judge Amy Totenberg ruled on the requests. The 47-page order is good news for the music companies, as the court agrees that Spinrilla is liable for direct copyright infringement.

In her ruling, Judge Totenberg writes that Spinrilla admitted that 4,082 copyrighted sound recordings were streamed at least once through its website or app. The mixtape service failed, however, to offer a usable counterargument to this claim.

Spinrilla’s legal team brought up several cases in the company’s defense, but these all deal with uploading and downloading of infringing content, not streaming. Also, the cited cases are not about infringements of the public performance right, contrary to the present lawsuit.

Streaming vs. Downloading

This is a problem because the record labels highlighted cases where courts held that streaming can be a direct infringement of exclusive performance rights, even when the streaming occurs at the request of the user. That’s what happened at Spinrilla.

“Here, Plaintiffs do not rely solely on uploads and downloads of their music to and from Spinrilla. Defendants have created an interactive internet player that streams copyrighted content directly from its website and mobile app,” Judge Totenberg writes.

As a result, Spinrilla is held liable for directly infringing the copyrights of the 4,082 sound recordings that were listed in the complaint.

“Defendants have infringed Plaintiffs’ exclusive right ‘to perform’ their copyrighted sound recordings ‘publicly by means of a digital audio transmission.’ Therefore, Plaintiffs are entitled to summary judgment on their claim of direct infringement of the 4,082 works in suit.”

With the maximum statutory damages of $150,000 per work, this opens the door to an astronomical award of more than $600 million dollars. And that’s not the end of the bad news for Spinrilla.

Limited Safe Harbor

The court also ruled that the mixtape service is not eligible for a DMCA safe harbor defense before July 2017. While the site and app have accepted takedown notices for many years, they didn’t register a DMCA agent with the Copyright Office, which is a requirement.

Spinrilla first registered a DMCA agent in 2017, five months after the lawsuit started. In addition, it didn’t have a repeat infringer policy before July that year, another requirement for safe harbor protection.

“Consequently, the undisputed facts demonstrate that Defendants did not satisfy all of the required elements to be eligible for safe harbor defense until July 29, 2017, which is when they first designated an agent with the U.S. Copyright Office and had adopted a repeat infringer policy,” Judge Totenberg writes.

This means that Spinrilla can only invoke the safe harbor defense for infringement that occurred after that date.

The record labels asked the court to go even further, arguing that Spinrilla’s repeat infringer policy wasn’t “reasonably implemented,” because not all repeat infringers were terminated. However, the court rejected this, as the 4,082 sound recordings didn’t include any tracks that were uploaded by known repeat infringers.

Record Labels are Happy

Overall, however, the record labels are very pleased with this significant win. With streaming becoming the norm today, this case is crucial.

“We are gratified by the court’s decision, which sends a message that online streaming providers cannot hide behind the actions of their users to avoid their own liability for copyright infringement that occurs through their systems,” Kenneth Doroshow, RIAA Chief Legal Officer says.

“The court got it exactly right on several key points of copyright law in the digital streaming context, and we hope that it serves as a lodestar for other courts and service providers alike.”

The RIAA, which represents the major record labels, is also happy that the ruling confirms that mistakes can be just as infringing as posting full sound recordings.

While the ruling is an early win for the music companies, the case isn’t over just yet. There are still matters that have to be decided at trial, including the scale of the damages, if these are awarded. Alternatively, the parties can try to resolve the matter through a mediation process.

At the same time, Spinrilla is also involved in a legal battle with the RIAA directly. The mixtape site sued the industry group earlier this year, accusing it of sending false DMCA takedown notices . That case remains pending.

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A copy of the order issued yesterday by US District Court Judge Amy Totenberg is available here (pdf)

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