Over the past several years, independent photographers have filed more than a thousand lawsuits against companies that allegedly used their work without permission.

The majority of these cases, with prominent targets such as Yahoo.com, Verizon.com, MSN.com, MTV.com, Gawker.com, are handled by attorney Richard Liebowitz.

When we first spotted this emerging trend in 2016 , Liebowitz told us that he was helping independent photographers to protect their rights. All too often, companies would take their work without paying, he said.

Liebowitz’ Repeated Misconduct

While that argument still holds true in many cases, the attorney himself has trouble sticking to the rules as well. In his relatively short career, courts have reprimanded and sanctioned him for various types of misconduct.

This summer, for example, in the Usherson v. Bandshell case, a New York federal court ordered the lawyer to pay over $100,000 in sanctions for violating several court orders and repeatedly lying under oath. This included a false claim that the photo’s copyright was registered when the case was filed.

In a detailed order, the court further concluded that, given the attorney’s “deplorable record,” steps should be taken to suspend the attorney’s ability to file new cases. As such, the matter was referred to the court’s Grievance Committee.

Suspended from Practicing Law

The Grievance Committee evaluated the findings recently and concluded that Liebowitz will be suspended from practicing law in the district until further order.

“After careful deliberation, the Committee is unanimously of the view that the Charges are strongly supported by the record. What is more, the Committee is unanimously of the view that interim disciplinary measures against Respondent must be put in place immediately,” the Committee writes.

The order, issued last week, notes that the measure is appropriate to protect the public from future violations. Given the attorney’s track record, this is a real threat.

“The record in this case — which includes Respondent’s repeated disregard for orders from this Court and his unwillingness to change despite 19 formal sanctions and scores of other admonishments and warnings from judges across the country — leads the Committee to the view that recurrence is highly likely.”

The suspension is temporary, as the court still has to finalize the full proceeding. For the time being, however, Liebowitz will have to halt all his legal activities in the district.

Further Sanctions?

Meanwhile, the various missteps continue to pile on. In addition to the $100,000 sanction in the Usherson v. Bandshell case a few weeks ago, the attorney was also instructed to send a copy of the scathing order to all of his clients. However, that didn’t happen.

In September he informed the court that he had failed to inform some clients right away. A month later, it became clear that he failed to do so in 113 cases, which is far from a minor oversight.

Yesterday, District Court Judge Jesse Furman wrote that this additional failure to comply with the court’s order is a strong argument to impose further sanctions.

“Had Mr. Liebowitz failed to file the Opinion and Order in a handful of cases, the failure to comply might have been understandable and excusable. But the failure to file it in 113 cases is astonishing and suggests contumaciousness, an egregiously disorganized case management system, or both.”

Nothing to Deter

Interestingly, however, the Court chose not to add any sanctions. While that may sound positive for the lawyer, the reasoning behind it is quite grim. Mr. Liebowitz may be a lost cause, Judge Furman suggests.

“[T]he ultimate purpose of sanctions is deterrence and, as Mr. Liebowitz’s extraordinary record of both sanctions and noncompliance with court orders demonstrates, it is far from clear that there is any additional sanction that would serve to deter him.”

In addition, there is no new misconduct to ‘deter’ at the movement, as the attorney is suspended from practicing law in the district now.

“Thus, for the time being, there will be nothing to deter when it comes to Mr. Liebowitz,” Judge Furman concludes.

—

A copy of the order issued by District Court Judge Jesse Furman, which includes a copy of the Grievance Committee’s decision, is available here (pdf) . Photo credit: Liebowitz image by” King of Hearts ” (CC BY-SA 4.0)

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

According to the music industry, the main threat to artists and labels from a piracy perspective is the availability of stream-ripping platforms and tools. On the other hand, however, a much more traditional threat also remains an issue.

Recording labels have long lamented the fact that insiders and other people with access to new music have made it available to others in advance of commercial release. Whether those are promo copies, so-called ‘dubplates’ in the vinyl scene, or even CDs liberated from the packing department of a manufacturing facility, early leaks can cause headaches – especially when they make it online.

Of course, leaks appearing online has been the standard for two decades already. The availability of music releases on streaming platforms simultaneously across borders has helped dampen the problem but it still hasn’t eradicated it. In fact, some sites specialize in ensuring content gets online as quickly as possible.

Kingdom Leaks – Leaking Music For Seven Years

While there is no shortage of music leaking sites, Kingdom Leaks (in one form or another) has been around for roughly seven years. That’s quite a feat considering the content on offer. And, despite operating in a niche, the site still manages to pull in an estimated two million visits per month, with many users looking to grab music as far in advance of release as possible.

While this particular party was enjoyed by fans while it lasted, it’s clear that Kingdom Leaks will soon be pulling down the shutters for the last time.

“It is with a heavy heart and great sorrow that today I announce the shutdown of Kingdom Leaks. This was not a decision made lightly or abruptly, nor was this choice made because of legal pressure, a data breach, or anything of that nature,” site operator Lord Kingdom says in a final statement.

“The simple but unfortunate reason is this: mR12 and I have decided to move on, and there is no safe way to hand over the website to another party out of concern for the safety of everyone involved since the site’s inception 7 years ago.”

Shutting Down For Personal Reasons, Jan 1, 2021

While many site operators can run on to ripe old ages without a hitch, Lord Kingdom says he has other ‘real-life’ matters on the agenda that require him to move on, with Kingdom Leaks (KL) firmly behind him.

“With a baby on the way and getting married next year, this is something that I need to put in the past, officially,” he writes.

“This reality has left us at the following decision: we will be permanently shutting down our servers on January 1st, 2021. All user and site data, including that which is stored on PassTheLeaks, will be permanently deleted.”

Those familiar with the site will recognize PassTheLeaks as one of the domains offered as an option for people trying to download music from KL, which is presented via related service Filecrypt. The news that all of this content is set to be deleted will come as a disappointment to users but according to Lord Kingdom, the topic won’t be revisited and the decision to close “is final”.

Not Everyone is Disappointed That Kingdown Leaks is Closing

For many years, copyright holders and their anti-piracy partners have been working hard to have content uploaded by Kingdom Leaks delisted from Google. It will come as no surprise that the BPI takes the lead in the sheer volume of content targeted, closely followed by French music group SCPP and international music organization IFPI.

One of the other anti-piracy companies regularly trying to suppress KL is UK-based anti-piracy company AudioLock . If Kingdom Leaks keeps its word and closes down in just over a month’s time, AudioLock will have less work to do. Speaking with TorrentFreak, however, company founder Ben Rush says that he won’t be sad to see the site go.

“Kingdom Leaks has been around a long time and has a strong user base who are kept updated through various social media feeds of every new release. It covers a lot more rock and metal content than other similar sites and protects links from automated tools that take them down,” Rush says.

AudioLock’s owner says that Kingdom Leaks’ utilization of link encryption (Filecrypt) has meant that the site has been able to keep itself alive, driving its popularity but at the expense of artists who are struggling in the current climate.

“Now without the revenue from live events [due to COVID-19], we are seeing labels seeking to boost existing stream and download revenue by protecting it from piracy. This pressure combined with the site’s popularity will have made it a prime target,” he explains.

Kingdom Leaks Admin Asks Users To Consider Spotify

In what could be an important departing post, Kingdom Leaks admin mR12 (who is also a VIP uploader on The Pirate Bay) has penned an ‘essay’ on why people should be considering Spotify in their music consumption habits moving forward.

“As Kingdom Leaks comes to an unfortunate but inevitable close, you may be considering how your music needs will be sustainably met in the future. Many will understandably and reasonably move to other music blogs, other download sites, and with good cause,” he writes.

“I am not writing to condone these moves; however, I would like to argue, through a serious and practical consideration of the actual need that must be filled, that Spotify is the solution many people are looking for but simply don’t know it or haven’t given it enough consideration.

“I want to show that, yes, Spotify is worth $120 per year, and perhaps more importantly for those of you reading this, that Spotify is compatible with partial music piracy, which I believe is the most optimal and hassle-free solution for the vast majority of people.”

Time will tell how many soon-to-be-former users of KL find his arguments persuasive but Ben Rush is hoping that Kingdom Leaks’ passionate music-fan users will move to legal platforms rather than pirate sites.

“The harsh reality is that if these users want to have releases made by the labels and artists they enjoy, then they need to support them now. Without this support, there will be many labels who will no longer exist, and many artists unable to continue to create music,” he says.

“Show your appreciation and support to the labels and artists that mean so much to you. Secure their future by purchasing directly from the label itself or from legitimate platforms.”

It may have taken seven years but at this point (and if only partially), some kind of consensus appears to have been reached.

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

Nintendo is doing all it can to stop the distribution of piracy enabling hacks and modchips, including SX Core and SX Lite.

Earlier this year, the company sued a group of known ‘offenders’ that sell these tools. After the stores failed to show up in court, Nintendo requested a default judgment and permanent injunction, which was granted soon after .

Injunction ‘Shuts Down’ Modchip Stores

The injunction was a clear victory as it allowed the Japanese gaming giant to shut down several sites, including TXswitch.com, SXflashcard.com and Axiogame.com. These domain names were later transferred to the company as well.

That success wasn’t permanent though. While some stores may have vanished permanently, others have continued under new names. In the case of Txswitch.com that was pretty obvious.

A day after Txswitch.com was pulled offline, the store made a comeback on Stxwitch.com. This site looks nearly identical to the old one and even uses the same logo and code.

GoDaddy Refuses to Take Down New Domain

This type of ‘domain hopping’ is common in pirate circles and Nintendo was somewhat prepared for it. The injunction includes a section which states that “any variant or successor” of the stores is also covered, so Nintendo swiftly asked domain registrar GoDaddy to suspend the new domain as well.

However, GoDaddy refused . Despite the mention that successors are covered, the domain registrar requested a new court order which specifically mentions Stxwitch.com.

To resolve this standoff Nintendo went to court again, requesting clarification, which came this week in the form of a new order, issued by US District Court Judge Thomas Zilly.

STXWITCH.COM Has to Go Offline

“STXWITCH.COM is a ‘variant or successor’ domain name as that term is used in the Judgment,” Judge Zilly writes, stressing that all intermediaries have to cut their ties with the site.

“Defendants and all third parties acting in active concert and participation with Defendants, including registrars, are ENJOINED from supporting or facilitating access to STXWITCH.COM, and are ORDERED to cease to use the domain name STXWITCH.COM and immediately transfer STXWITCH.COM to Nintendo’s control.”

At the time of writing the store is still online, but with this order in hand, that likely won’t be the case for long. However, that doesn’t mean that it can’t reappear under yet another new domain.

All ‘Variants and Successors’ are Covered

If that happens, Nintendo doesn’t have to go to court again, Judge Zilly clarifies. GoDaddy and all other domain registrars, registries, and other intermediaries will have to take action against sites operated by the defendants, no matter what domain they use.

“For avoidance of doubt, the Court’s Judgment applies to all domain names controlled by Defendants through which Defendants engage in the conduct found to be unlawful in this lawsuit, whether or not the exact domain name is explicitly listed in the Judgment,” the order reads.

While this sounds very clear and obvious, it does raise some questions. When is a new domain a ‘variant or successor’?

Questions Remain

In the case of Txswitch the similarities were rather striking, as the same code and design were used. But what if Nintendo ‘suspects’ that the defendants are making a comeback from a different domain with a different look?

What evidence does Nintendo need to show that a new domain is a ‘variant or successor’ and is it then up to a company such as GoDaddy to ‘judge’ whether this is enough?

These are all hypothetical situations but it is likely that GoDaddy refused Nintendo’s initial request because they don’t want to be the arbiter. Future refusals will come at a price, however, as Judge Zilly ruled that failing to comply opens the door to punitive and monetary sanctions.

Legal uncertainty aside, this order doesn’t necessarily end the ‘whack-a-mole.’ There are plenty of foreign registrars and registries that don’t fall under the jurisdiction of US courts. Some of these will demand a local court order from Nintendo, which will start the process all over again.

TorrentFreak reached out to Stxwitch to ask what their plans are for the future. We have yet to hear back, but at the time of writing, they are still accepting new orders.

—

A copy of the order from US District Court Judge Thomas Zilly is available here (pdf)

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

Preventing the general public from accessing movies and TV shows without paying for them is a monumental task that, if anything, feels even more difficult than it was 15 years ago.

In addition to hundreds, perhaps thousands of torrent and streaming sites, copyright holders also have to deal with the growing threat of premium IPTV, which grants access to every type of live TV under the sun for comparatively low prices.

Somewhere in the middle of this organized chaos, movie and TV show companies are trying to tackle pirate apps. Mostly Android and iOS-based, these consumer-friendly tools present content in easy-to-navigate interfaces, pulling content from not just their own sources but in many cases third-party file-hosting and IPTV/streaming suppliers, much as other pirate sites do too.

MediaBox HD Targeted By The MPA

One of the more popular tools in this growing niche is MediaBox HD. Available for both Android and iOS, the app is in demand by those looking to access premium content on their phones or, as is increasingly the case, a tablet or Android-based set-top box.

MediaBox HD’s popularity lies in its many features. Aside from a large free library of movies and TV shows, it supports services such as Real-Debrid for more reliable streaming, has Chromecast support, can offer subtitles and even allows for offline viewing. For groups like the MPA, however, these are all reasons to take the app down.

MPA Sends Copyright Complaint to Github

While MediaBox HD has its own site , at the time of writing it’s impossible to access the Android variant of its app from there. Rather than hosting the APK in the same location, the app’s developers chose to host the software on Github instead, meaning it was vulnerable to an easy takedown.

Teaming up under the banner of the Motion Picture Association (MPA), Paramount, Sony, Universal, Warner, Disney and Netflix, sent a copyright complaint to Github, calling on the platform to remove the piracy-facilitating software.

“We are writing to notify you of, and request your assistance in addressing, the extensive copyright infringement of motion pictures and television shows that is occurring by virtue of the operation of the APK software Mediabox HD, which is hosted on and available for download from your repository Github.com,” it reads.

“Specifically, at the URL, the Repository hosts and offers for download the APK, which in turn is used to engage in massive infringement of copyrighted motion pictures and television shows.”

MPA Demands Removal of MediaBox HD Under the DMCA

Attached to the MPA’s complaint but unpublished by Github, the movie and TV show group provides screenshots that claim to show that MedaBox HD streams copyrighted content to the masses resulting in “massive infringement.”

While providing various examples of alleged infringement, the MPA says that these are just the tip of the iceberg since the software goes much further by blatantly infringing other content owned by its members and copyrights held by others.

On this basis, the MPA states that infringement is “plainly is its predominant use and purpose”, citing case law including the MGM v Grokster litigation (2005), the Arista Records v Usenet dispute from 2005, and the 2009 lawsuit between Columbia Pictures and former isoHunt operator Gary Fung.

The MPA suggests that it doesn’t really mind on which basis Github removes the app, whether that’s under the DMCA’s takedown provisions, repeat infringer rules, or Github’s acceptable use policy. Interestingly, however, it does note that it is not trying to claim that the app’s code is copyright-infringing, merely that its sole purpose is to infringe.

“Please note that, by this notice, the MPA Members are not addressing copyright ownership of the APK’s specific lines of code; rather, they are addressing the use of the APK as a whole to provide unauthorized, infringing access to streaming video content, and requesting that you remove or disable access to the APK as a whole on your Repository,” the notice adds.

Github Complied With the Request

Unlike the dispute currently engulfing youtube-dl, which has put Github at odds with the RIAA , there appears to be no such confusion here. Following the request from the MPA, Github removed the MediaBox HD app and, as a result, the software is no longer available from official sources.

While MediaBox HD will likely solve this problem in due course, the attention from the MPA comes after the streaming software was featured in two earlier legal matters.

In September 2019, following a subpoena from the makers of the movie Hellboy, third-party app-store TweakBox took the decision to remove MediaBox HD (plus Popcorn Time and CotoMovies) from its platform.

A month earlier, a Pakistani man who operated a site that offered MediaBox HD, Showbox, Popcorn Time and similar software, agreed to pay a settlement of $150,000 to companies behind the movies The Hitman’s Bodyguard, London Has Fallen and Hunter Killer.

His site, the now-defunct latestshowboxapp.com, was forced to remove MediaBox HD and similar tools, despite not being their developer. The MPA hasn’t yet shown any public signs of seeking a settlement from the developers of MediaBox HD but given past history, that might only be a matter of time.

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

The music industry is convinced. Downloading music from public streaming services, YouTube in particular, is the greatest piracy threat to the industry.

The RIAA and several key music labels are doing everything in their power to counter this menace. They’ve sued several YouTube download sites, removed streamripper URLs from search engines, and most recently they targeted the open-source tool youtube-dl as well.

The last move was a step too far for many. It immediately triggered outrage among developers and the public at large . The opposition reached new heights this week when GitHub and EFF drew a clear line in the sand. No further.

After some modifications, youtube-dl’s repository was reinstated . This was great news for the developers, users, and many stream-ripping sites that rely on the tool. But the decision and the reasoning behind it are much, much bigger than that.

In isolation, the youtube-dl code is a relatively small problem for the music industry. Similar tools will always be available. While the RIAA liked the message that was sent by the removal, they perhaps didn’t foresee that a refusal to take down the same code would be much worse.

‘YouTube Downloading Tools are Not Illegal’

Both GitHub and the EFF have made it very clear that YouTube downloading tools are not by definition illegal. On the contrary.

“Youtube-dl is a lot like the videocassette recorders of decades past: a flexible tool for saving personal copies of video that’s already accessible to the public,” the digital rights group wrote in a recent post on the topic.

GitHub also stressed that youtube-dl is a “ socially beneficial tool ” which can help researchers, journalists, and the public at large.

These comments, which are only a tiny selection of the broader message, are a potential game-changer. The backing from GitHub is particularly notable, as the company is owned by Microsoft, which in its own right is one of the largest copyright holders in the world.

That said, the legality of YouTube download tools is not impacted directly by the public commentary. Eventually, this is something that courts will have to decide over. In the US, there is no clear jurisprudence on this specific issue but that may change in the near future.

The RIAA’s main argument is that these tools violate DMCA section 1201, which prohibits the circumvention of technical protection measures. In YouTube’s case, the RIAA cites the “rolling cipher” protection that YouTube uses to make downloading from the site somewhat more complicated.

Rolling Cipher Encryption?

The question is whether this “rolling cipher” is indeed a protection measure under the DMCA. That’s up to a court to decide, but we have previously shown that anyone with a browser can easily download from YouTube without extra tools.

The RIAA’s position is strengthened by a 2017 order from a court in Germany , that was also cited in the GitHub takedown notice. There, the court ruled that the “rolling cipher” is a technical measure within the meaning of Germany’s Copyright Act.

However, not everyone believes that the court was correct here. EFF stated that, contrary to the court’s ruling, there is no encryption involved. YouTube’s video streams are visible to everyone who uses a regular web browser. The ‘rolling cipher’ simply refers to a changing signature, readable by Javascript, that’s used for some videos.

“The 2017 decision of the Hamburg Regional Court in Germany that RIAA references, which refers to YouTube’s “signature” mechanism, was wrongly decided and is not binding nor even persuasive under U.S. law,” EFF wrote.

GitHub also believes that the German court made an error. Following EFF’s lead, the company concluded that youtube-dl was not circumventing a technical protection measure. “We concluded that the allegations did not establish a violation of the law,” GitHub said.

Stream-Ripper Battle Continues in Court

These are strong statements that will eventually have to be tested before a judge and that may happen sooner rather than later. There are currently two major US lawsuits where the legality of YouTube rippers could be decided. While EFF and GitHub are not part of those cases, their input will likely prove a factor.

One of the lawsuits was filed by Jonathan Nader, the operator of the stream-ripper ‘Yout’, who sued the RIAA last month. Nader decided to be one step ahead of the music industry by demanding a declaratory judgment that his website doesn’t violate Section 1201 of the DMCA .

TorrentFreak reached out to Nader, who said he prefers not to comment on the ongoing litigation. Especially since the RIAA has yet to formally reply.

However, the photo he shared with us reveals that he’s happy with EFF’s stance on the matter.

Nader’s lawsuit touches on the ‘rolling cipher’ argument as well, and he denies that anything is being decrypted or bypassed.

Another lawsuit where the same issue may be brought up was filed by several of the largest music labels two years ago, with support from the RIAA. They sued the YouTube ripping sites FLVTO.biz, 2conv.com , and their Russian operator Tofig Kurbanov.

Both sides are currently still fighting over whether a US court has jurisdiction. Kurbanov’s legal team recently petitioned the US Supreme Court to hear that matter.

If the court decides that the site operator has to defend himself, he is surrounded by a legal team that is confident that they can defeat the copyright and anti-circumvention allegations.

‘RIAA Opposed Every Technological Advance’

Speaking with TorrentFreak, Kurbanov’s defense attorney Evan Fray-Witzer equates stream-ripping to the other technological advances that were protested by the music industry over the years.

“It’s important to remember that the RIAA has consistently opposed virtually every technological advance from the 1970s forward including the advent of cassette tapes, compact discs, and MP3s. For 50 years they have been yelling that the sky is falling and yet – despite this hysteria – music continues not only to survive but to flourish.”

According to Fray-Witzer, this latest attack on stream-ripping is equally misguided and will eventually fail.

“Users have lots of legitimate uses for stream-ripping that have nothing to do with music. And, even when you’re talking about music, users have a legitimate right to time-shift, just as the courts found that people could record TV shows with their VCRs so that they could watch them at a different time,” he says.

The Yout.com and Kurbanov’s cases are not the first stream-ripper lawsuits. A few years ago, the record labels already sued YouTube-MP3 . That site eventually settled the case privately and shut down. While the RIAA celebrated this as a major win, this outcome has little effect on the current cases.

“So far, the RIAA’s successes in court have been the result of defendants who lack the ability to fight back and to prove that these tools do not actually violate copyright law. Hopefully, that’s about to change,” Fray-Witzer notes.

“Stream-ripping sites and software are simply tools – tools with lots of legitimate uses, as the EFF has recognized,” the attorney adds.

DMCA Section 1201 Exceptions

It’s clear that the YouTube downloaders find themselves supported by the recent backing from GitHub and the EFF, but the moral support is just part of the story. In addition, both are also calling on the Copyright Office to broaden the DMCA Section 1201 exceptions .

“We are also advocating specifically on the anti-circumvention provisions of the DMCA to promote developers’ freedom to build socially beneficial tools like youtube-dl,” GitHub said this week, announcing their plan to get involved in the Copyright Office’s triannual review process.

Right now, US law makes it illegal for most developers to use or distribute code that bypasses technical protection measures, even if that technology or code can also be used for non-infringing or legal means.

Time will tell how these and other issues will develop over time but it’s clear that the RIAA’s takedown notice to GitHub was a wake-up call. Now we just have to see who and what it awakened.

TorrentFreak also reached out to the RIAA to hear their comments on these recent events but the group hasn’t responded. It’s not a stretch to conclude that they are not happy with GitHub’s reversal, to say the least.

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

Nintendo’s ongoing battle to prevent people from playing pirated content on Switch consoles is showing no signs of slowing down .

Its main targets thus far have been distributors and sellers of products offered by the infamous Team-Xecutor but a new lawsuit filed in the United States yesterday targets a seller of another jailbreak-style device.

Circumvention of Technological Protection Measures

As detailed in a number of earlier and similar lawsuits , Nintendo is determined to take action against any product that undermines the security features baked into consoles such as the Switch. These features are designed to prevent unauthorized access to the console and its games with the aim of preventing people from playing pirated content.

According to the latest lawsuit, a defendant identified as Le Hoang Minh, who on Amazon does business under the name ‘Winmart’, sold a device known as RCM Loader. The dongle/device, which operates via a USB-C connector, is marketed as a plug-and-play solution for injecting payload files that allow booting into custom firmware (CFW), including Team-Xecutor’s SX OS.

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

Another feature of the system criticized by Nintendo is the ability for owners of legal copies of games to copy and share those games with others who are also using unauthorized custom firmware. Nintendo says it has been working hard to reduce the availability of SX OS and similar custom firmware but due to the trafficking of devices like RCM Loader, that battle continues.

Defendant Sold RCM Loader Via Amazon

According to the lawsuit, Vietnam-resident Le Hoang Minh, sold RCM Loader devices on Amazon so, to counter this distribution, Nintendo filed a DMCA takedown notice on October 21, 2020, citing 17 U.S.C. § 512(c) and requesting that the listing be removed.

While Amazon did take the listing down, the removal was only temporary.

This short-lived takedown was due to the seller submitting a DMCA counter-notice to Amazon on November 4, 2020, under 17 U.S.C. § 512(g)(3) , claiming that the listing was non-infringing and had been taken down in error.

Defenses Listed in the DMCA Counter Notice

Attempting to cover most available defenses, relevant or not, the counter-notice from Le Hoang Minh is comprehensive if nothing else.

In addition to claiming that the devices are not copyrighted and are therefore in the public domain, the Amazon seller advised the platform that Nintendo’s claim is faulty due to the company failing to provide any copyright registration information in its takedown notice.

“The complainant does not hold the copyright to the material in question, is not the designated representative of the copyright holder, and therefore lacks standing to assert that my use of the material is a violation of any of the owner’s rights,” it added.

In addition to a laundry list of alleged technical failings in Nintendo’s takedown notice, Amazon was advised by the defendant that the use of “the material” was legally protected “because it falls within the ‘fair use’ provision of the copyright regulations” and if Nintendo disagrees with that assertion, it “must” work with the seller to solve the dispute.

“This communication to you is a DMCA counter notification letter as defined in 17 USC 512(g)(3). I declare, under penalty of perjury, that I have a good faith belief that the complaint of copyright violation is based on mistaken information, misidentification of the material in question, or deliberate misreading of the law,” the counter-notice reads.

Importantly, the declaration adds that Le Hoang Minh submits to the jurisdiction of any appropriate US district court in case of a legal dispute with Nintendo.

Nintendo: Challenge Accepted

The lawsuit filed yesterday is a clear indication that Nintendo believes it has the law on its side, in respect of the illegal nature of RCM Loader and the validity of the DMCA counter-notice that attempted to reinstate the listing.

“Defendant manufactures, imports, offers to the public, provides, and otherwise traffics in a circumvention device and software that circumvents the technological measures on the Nintendo Switch — specifically, the RCM Loader,” the company states.

“On information and belief, the only purpose of Defendant’s circumvention device is to circumvent Nintendo’s technological protection measures.”

Demanding maximum statutory damages for each violation of the relevant sections of the DMCA, Nintendo also demands a permanent injunction preventing the defendant from offering to the public or otherwise trafficking in circumvention devices in the future.

On top, Nintendo is demanding relief for the defendant’s alleged abuse of the DMCA counter-notification system by misrepresenting material facts to Amazon, crafted to have the listing restored on the platform, in violation of Nintendo’s rights.

Finally, the gaming giant asks the court to issue an order that will allow for the seizure, impoundment and destruction of all RCM Loader devices in the defendant’s possession, including any related software.

The complaint can be found here (pdf)

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

Nintendo is doing everything in its power to stop the public from playing pirated games on the Switch console.

Their major adversary is the infamous ‘hacking’ group Team-Xecuter , which released ‘jailbreak’ hacks and modchips for the popular game console.

Criminal and Civil Lawsuits

Last month, the US Department of Justice indicted three alleged members of the hacking group. This was a big move, but one that failed to take the group, or even its website, out of business.

The same can be said for several online stores that sell modchips and hacks for the Switch and other consoles. As part of a civil lawsuit , filed by Nintendo earlier this year, a federal court in Seattle granted an injunction that required several foreign stores to shut down. Again, this was easier said than done.

Since the store operators ignored all communication, Nintendo asked their domain registrars to transfer the domain names, as permitted by the court. This is precisely what happened. A few days after granting the injunction, Txswitch.com and other domains were signed over to the videogame company.

‘Hack’ Store Hops to New Domain

However, a day later Txswitch already appeared to have made a comeback, operating from Stxwitch.com. This site looks nearly identical to the old one and even uses the same logo and code.

This type of ‘domain hopping’ is common in pirate circles and Nintendo hoped that the registrar GoDaddy would take the new domain down as well. This would be in line with the injunction, which states that “any variant or successor” was also covered by the order.

Godaddy Demands Detailed Order

In the event, GoDaddy refused to take action without a court order that specifically spells out the new domain name, a new filing by Nintendo explains.

“Nintendo requested that the STXWITCH.COM domain be immediately transferred as a successor or variant of TXSWITCH.COM pursuant to the Judgment. GoDaddy responded to outside counsel for Nintendo stating that they required the domain name to be listed in an order to take action,” Nintendo writes.

The game company requests the court to clarify that, if new copycat sites appear, these are covered by the existing injunction. As such, registrars would be required to take action without a separate order that specifically mentions the new domain.

Putting and End to the Whac-A-Mole

Without such an order, pirate sites will continue to move to new domains, which means that the court has to keep issuing new orders, creating a whack-a-mole situation.

“Nintendo is concerned that absent such further clarifications of the scope of the Judgment, the Doe Defendants will again domain hop, changing a letter of a domain name, and the cycle will continue to repeat with the registrar contending that the new domain is not specifically covered by the injunction and with Nintendo having to return to this Court,” Nintendo adds.

By clarifying that domains of copycat sites and new variants or successors should be transferred to Nintendo, registrars such as GoDaddy will have to take action more swiftly.

This doesn’t mean that registrars have to “police the Internet” and proactively scan for new copycats, the company notes, as Nintendo will track down the new domains and report these accordingly.

Nintendo hopes that with sufficient clarification from the court it can prevent the piracy hack stores from “thumbing their nose at the court” while frustrating Nintendo’s enforcement efforts.

Dynamic Order Isn’t Perfect Either

The requested order is similar to the dynamic pirate site-blocking orders we have seen in other countries. While those deal with ISP blocking, they also allow copyright holders to add new domains names that pop up.

Given the order that’s already in place, it is likely that the court will grant the requested clarification. However, this doesn’t mean that Nintendo’s troubles are over. There are plenty of registrars and registries that don’t fall under US jurisdiction, after all. So the store may move to one of these next.

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A copy of Nintendo’s request for clarification and to enforce the permanent injunction is available here (pdf)

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

While the world has been struggling with the ongoing coronavirus pandemic, very few notable movies are being released to the public.

Christopher Nolan’s Tenet was a notable exception but with cinema audiences decimated, even that movie failed to reach anything like its full potential.

But as with most rules, there are exceptions.

Just last month, filmmakers released a movie that was not only an instant smash hit but is already one of the most popular Japanese-made movies of all time, despite the pandemic.

Demon Slayer: Kimetsu no Yaiba the Movie: Infinity Train

Released in Japan on October 16, 2020, Demon Slayer: Kimetsu no Yaiba the Movie: Infinity Train has done incredibly well by any standards. The anime movie is already the highest-grossing Japanese film of 2020 and is believed to be one of the highest-grossing movies in the country, period. Needless to say, that also makes it one of the most successful anime films ever too.

Based on the manga series Demon Slayer: Kimetsu no Yaiba , which in itself is the best-selling manga series of all time, the franchise has huge numbers of fans who enjoy the adventures of lead character Tanjiro Kamado, whose kind and determined nature has elevated him to hero status.

A combination of all of these factors has led to an intellectual property drama in both Japan and China, one that has surprisingly caught the attention of the government too.

Hong Kong Police Use Likeness to Front Anti-Fraud Campaign

Given that millions of people are now familiar with Tanjiro, it will come as no surprise that he’s become a part of popular culture, particularly in East Asia but also further afield too. However, a decision by Hong Kong Police to use his likeness in an anti-crime initiative hasn’t gone down well with fans.

Last week a post appeared on Facebook presenting the new face of Hong Kong police’s anti-fraud campaign. Albeit mainly bright purple, the ‘new’ character was immediately confronted with claims of being a ‘rip-off’ of Kanjiro, something that some considered just a little ironic considering the nature of a fraud prevention campaign.

To the untrained eye, similarities might not be blatantly apparent but when taking a closer look, many things become more obvious. When placed side by side in the image below, it’s much easier to see why hardcore fans are less than impressed.

With similar hair, jacket and pants in exactly the same color schemes and designs as those sported by Tanjiro, it’s not hard to see where the police artist drew his influence.

The sword is another obvious element too along with the eyebrows, but when looking at both characters’ foreheads, ‘purple guy’ (who the police say is called ‘Grape’) also has exactly the same marking as Kanjiro which, according to the series, is not a tattoo but a birthmark.

Kanjiro Copying Prompts Copyright Warning From Japan’s Government

While this type of usage might normally find itself glossed over, this matter has attracted the interest of Japan’s Chief Cabinet Secretary Katsunobu Katō.

Noting that he prefers not to comment on specific cases, during a meeting yesterday the Minister did acknowledge that the image posted by Hong Kong Police does indeed resemble Tanjiro, so he took the opportunity to reiterate Japan’s strong stance towards the infringement of local content including manga and anime.

Stating that protecting the rights of Japanese animation is important, Minister Katō added that he wants to “take proper measures” to protect intellectual property wherever possible. There’s no immediate indication that anything will be done to prevent Hong Kong Police from using the image moving forward but we were interested to know whether such use is actionable in Japan or indeed Hong Kong, given the public outcry.

Japan’s Copyright Act Has No Fair Use Doctine

After speaking with an anime expert yesterday who advised that, in his opinion, ‘Grape’ is “a rather obvious parody” of the movie’s main character Tanjiro, TorrentFreak contacted Masaharu Ina, Director of Overseas Copyright Protection at Japan-based anti-piracy group CODA. He confirmed that there is no fair use doctrine under the Copyright Act but said a parody defense is available.

“Parody defense is permitted under the Japanese Copyright Act and has been successfully engaged as a defense against copyright (or trademark) infringement at Japanese Court,” he explained.

In this case, however, he doubts whether the similarities could be actionable as copyright infringement.

“Yes, ‘Kimetsu no Yaiba’ (aka ‘Demon Slayers’) is a copyrighted work. However, just the fact that the Hong Kong design utilizes certain features of the hero of ‘Demon Slayers’ does not constitute a copyright infringement as a matter of law. To constitute a copyright infringement, the design in question must be identical or confusingly similar to the original design. To my eyes the two designs do not appear to be similar enough,” he said.

All of that being said, CODA’s director seems convinced that Hong Kong Police knew what they were doing when they created the new character. As it turns out, when one can read the text that accompanies the image of ‘Grape’, it’s actually there in black and white.

“Interestingly, the design is accompanied by the name of the character that is similar to the original Japanese character and also the name ‘Kimetsu no Yaiba’ in Chinese characters are inserted at the left-top corner, which makes me believe that the Hong Kong Police tried to trade off of the property.

“Therefore, it seems that the design was made on a rather questionable intention, but I do not believe that it constitutes copyright infringement,” he concludes.

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

For broadcasters all over the world, the problem of unlicensed IPTV providers, suppliers, and resellers has only grown during the past few years.

Despite many law enforcement actions, it has remained trivial for consumers to buy subscription packages to access the majority of pay TV channels, PPV events, and VOD content. Last year, however, authorities across Europe took coordinated action to deliver what they hoped would be the most significant blow yet.

Operation Targeting Xtream-Codes

In September 2019, the Guardia di Finanza (GdF), an Italian law enforcement agency under the authority of the Minister of Economy and Finance, revealed that a huge operation was underway to dismantle, among other things, the software service known as Xtream-Codes.

What was unique about this particular action is that Xtream Codes itself wasn’t an IPTV provider. The company behind the software/system offered a comprehensive package that allowed people to manage their own IPTV reselling service and associated customers. It was also registered as a company in Bulgaria and had a local VAT number.

Nevertheless, Italian authorities portrayed Xtream-Codes as a pirate operation, one fully deserving of being shut down to face criminal charges.

For more than a year after the demise of Xtream-Codes, things went almost completely quiet. Until last week, that is, when another massive series of raids were carried out, again at the behest of Italian authorities and again making references to Xtream-Codes.

700 Law Enforcement Officers Shut Down 5,500 IPTV Resources

As previously reported , last week the European Union Agency for Criminal Justice Cooperation (Eurojust), announced that 700 police officers had been deployed in 11 countries, shutting down around 5,500 servers and other resources related to pirate IPTV.

The reports were echoed by Itay’s GdF, which claimed that as part of the operation (codenamed ‘The Perfect Storm’) it had managed to discover the identities of “over 50 million users” of pirate IPTV services.

While neither announcement mentioned Xtream-Codes by name, when the platform was shut down last year the exact same number of users was mentioned as being connected to the IPTV management system, one that the Italian authorities had already labeled a major pirate service.

It now transpires that after more than a year of maintaining their silence, the people behind Xtream-Codes have had enough.

Xtream-Codes Breaks Its Silence

Earlier today, the previously silenced Xtream-Codes (XTC) portal suddenly produced a lengthy statement in Italian. Its purpose, according to its authors, is to dispel false claims made about the company’s operations after the huge events of last week.

“The company had been in the software development business since 2015 and until its closure, operated worldwide. Proof of this is the great success of users who used the XTC platform and to whom our heartfelt thanks go, who have recognized our product as the best performing tool on the market, in the field of IPTV software,” it begins.

“Over the years we have received many recognitions and awards for our work from the entire IT community, not least XTC has been recognized as one of the 1000 fastest-growing companies in Europe.”

Noting that the company passed “the legality test” in the USA, XTC notes that it registered for the NAB Show in Las Vegas, an annual trade show produced by the National Association of Broadcasters. That event did not go ahead as planned in April 2020 due to the coronavirus pandemic but XTC says that as a company it faced additional problems of its own.

“First of all, the first key concept must be clarified: XTC IS AGAINST PIRACY,” the team insists.

“The hard work carried out in recent years, however, risks being thwarted by the legal events that have arisen in Italy in which the name of XTC, without any foundation, is compared to a criminal association dedicated to the piracy of copyrighted content.”

Xtream-Codes: We Are Against Piracy

The Xtream-Codes system itself could be put to legal uses just as easily as it could illegal uses, since it’s only the licensing status of the content being delivered that makes any difference to its standing. However, in common with software like uTorrent in the BitTorrent scene, Xtream-Codes was well known in IPTV piracy circles simply because it was used by pirate IPTV providers and by extension, many end-users.

All of that being said, it may surprise those who deployed the software in a commercial sense or utilized it in their homes that XTC now claims that it has been working with law enforcement for some time.

“Over the years, XTC has always collaborated with international judicial authorities in order to stop the phenomenon of piracy, to identify and stop those who illegally used our platform. Those judicial authorities, in their sacrosanct activities to combat crime, have always started from the right assumption, which is also the second key concept of the story: THE XTC PLATFORM IS AN ABSOLUTELY LEGAL SOFTWARE,” the company says.

“For these authorities, there has never been any doubt about the lawfulness of the XTC platform, but they have focused their attention, rightly, on the distorted use that some users have made of it and in such cases, XTC has always shown itself to be collaborative in combatting crime.”

Authorities in Italy Saw Things Rather Differently

Unfortunately for XTC, however, the authorities in Italy reportedly saw things in a different light. According to XTC, there was never any attempt to cooperate with the platform to tackle a reported minority of users who abused its systems.

“[The authorities] have never attempted to interact with XTC to try to intercept the dozen users, among the more than 2500 who counted the platform before closing, who used it illegally. XTC was in fact equated to that ten or so subjects, even placing it at the top of this criminal association,” the company complains.

XTC says that in September 2019 it was shut down and also blocked by all ISPs in Italy, a decision accepted on the basis that the truth would soon come out. However, a year on XTC says it is now suffering due to claims that it has been carrying on its business under alternative branding.

“Today, after about a year, XTC is burdened with further very strict precautionary measures, which cannot be reported here for reasons of confidentiality, since some say we are continuing our business under a different name.

“For this infamous affirmation, devoid of any foundation, once again XTC has had to suffer serious consequences, primarily in terms of reputation, which we have built with so much effort over the years,” the company complains.

Criticism of the Press and Authorities

Given the technical nature of a system like Xtream-Codes and the tendency of the mainstream media to take reports by the authorities at face value, it came as no real surprise when many publications took the information they had been provided last year and extrapolated it.

XTC says it remains very disappointed with much of the reporting, which failed to acknowledge that its systems and software only managed IPTV streams and the company did not provide any content itself. The overall intent of XTC, of course, is something to be determined at trial but in the meantime, the company feels it has been poorly treated.

“IPTV is the future and it is very sad that we have been forced to stop for no good reason. It is as if the Italian authorities are trying to spread the message that IPTV software is illegal. For this reason, we have decided to break the silence and denounce the heavy harassment we are undergoing both as XTC and personally, with the awareness that, after this story, to which we are total strangers, nothing will be the same as before.

“But, as someone said ‘soon the time of honors will be over’ and what is seriously assumed at this stage by the investigating bodies must be proven before the Italian judiciary, in which XTC places its utmost and unconditional trust,” the XTC team adds.

Hoping for an outcome in its favor, the company says it has suffered “incalculable damage” due to the actions against it but is now promising that when the truth does come out, it will be “filing a bill” to recoup its losses.

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