When today’s home video gaming market took its first tentative baby steps thanks to more affordable hardware in the early 1980s, the details of Sony’s lawsuit against Datel would’ve been dismissed as outrageous.

This was a time of experimentation; one that thrived on the energy of pushing unimaginably incapable hardware by today’s standards, to perform in unexpected ways that often exceeded manufacturers’ expectations. In some cases, that included being able to run half-decent games, or even games at all.

Sony Wins Early But Cooler Heads Prevail

Software quite rightly receives protection under copyright law but in Datel, Sony wants a ruling that outlaws the modification of variables generated by software that only ever exist in RAM and form no part of the underlying copyrighted source code. Datel’s software simply ran alongside games like Motorstorm Arctic Edge, tweaking values in memory to modify how the game played.

In January 2012, the Hamburg Regional Court found largely in favor of Sony. The Court found that Datel’s software (Action Replay PSP and Tilt FX) intervened in the ‘program flow’ of Sony’s games and, by changing the flow, the original code was modified to create a derivative of Sony’s copyrighted game code.

The decision was overturned on appeal in 2021 and the case was dismissed. Sony appealed to the Federal Court of Justice which referred key questions to the Court of Justice of the European Union for a preliminary ruling.

If Sony has its way and the protection software enjoys under the 2009 Computer Programs Directive is extended to transient variables in RAM, those who modify those variables – the users of tweaking software – would become direct infringers under copyright law. Creators of the software, in this case Datel, could be held secondarily liable.

Advocate General’s Opinion Nudges Case in the Right Direction

Advocate General Szpunar’s published opinion is not binding and the CJEU could ultimately decide on its own path.

The challenge, should one exist, would be to dismiss AG Szpunar’s conclusions as anything other than legally sound, impeccably researched, and flawlessy logical.

“[T]he value of the variables is not an element of a computer program’s code. They are merely data, external to the code, which the computer produces and reuses when running the program,” he writes.

“Those data do not exist at the moment that the program is created by its author or when it is loaded into the computer’s memory, since they are generated only while the program is running. They are therefore not such as to enable the program – or even a part of it – to be reproduced.”

Variables Are Not Creative Works

According to case law, the protection conferred by Directive 2009/24 is limited to source code and object code, both of which satisfy the criterion of originality set out in Article 1(3). Variables in RAM, on the other hand, do not satisfy the criterion of originality.

The variables are not the author’s own intellectual creation, AG Szpunar points out. On the contrary, the variables are the result of progress made in the game, and a direct result of the player’s behavior.

“It is indeed true that the author designed the categories of the variables that are recorded as well the rules whereby their value is determined in the course of the game. However, that value itself escapes the author’s creative control, since it is necessarily dependent on factors which cannot be foreseen in advance, such as the player’s behavior. That value therefore cannot enjoy copyright protection.”

Noting that the variables are “transitory, temporary and provisional,” and “often reset to zero” when a program is next run, the variables fail to meet the threshold for copyright protection since they cannot be identified with “sufficient precision and objectivity.”

More Restrictions, More Money

AG Szpunar’s opinion is lengthy, technical, and at times quite challenging to absorb. The blame for that sits squarely with Sony, whose mental gymnastics appear laser-focused on what it needs to win the case, and oblivious to almost everything else.

It’s perhaps telling that various intellectual property law firms commenting on the opinion are noting the AG’s advice, while also advancing theories that generated variables in RAM could reasonably be considered part of the overall creative package.

When work for companies like Sony pays the bills, advocating for greater restrictions on existing freedoms doesn’t lead to less business, let’s put it that way. That the opposite is being argued in legal matters relating to output from generative AI, is certainly interesting, if nothing else.

AG Szpunar’s Conclusion

Ultimately, AG Szpunar draws the following conclusion:

Article 1(1) to (3) of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs must be interpreted as meaning that the protection conferred by that directive pursuant to that provision does not extend to the content of the variables which the protected computer program has transferred to the RAM of the computer and uses in running it, in the situation in which another program operating at the same time as the protected computer program changes that content, without however the object code or the source code of the latter program being changed.

Full opinion available here

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

With dozens of millions of monthly visits, Animeflix positioned itself as one of the most popular anime piracy portals.

The site also has an active Discord community of around 35k members, who actively participate in discussions, art competitions, even a chess tournament.

Target: Animeflix

While rightsholders take no offense at these side-projects, the site’s core business was streaming pirated videos. That hasn’t gone unnoticed; last December Animeflix was listed as one of the shutdown targets of anti-piracy coalition ACE.

Whether these early enforcement efforts were responsible for the site’s closure is unclear. In May, rightsholders increased the pressure through the High Court of India, obtaining a broad injunction that effectively suspended Animeflix’s main domain name ; Animeflix.live.

This follow-up action didn’t seem to hurt the site too much. It simply moved to new domains, Animeflix.gg and Animeflix.li, informing its users that the old domain name had become “unavailable”.

Animeflix Shuts Down

Yesterday, the site became unreachable again, initially returning a Cloudflare error message. This time, the domain wasn’t the problem but, for reasons unknown, the team decided to shut down the site without prior notice.

“It is with a heavy heart that we announce the closure of Animeflix. After careful consideration, we have decided to shut down our service effective immediately. We deeply appreciate your support and enthusiasm over the years.

“Thank you for being a part of our journey. We hope the joy and excitement of anime continue to brighten your days through other wonderful platforms,” the Animeflix team adds.

The Animeflix team doesn’t provide any insight into its reasoning, but it’s clear that keeping a site like that online isn’t without challenges. And, when a pirate site shuts down, voluntarily or not, copyright issues typically play a role.

It’s clear that rightsholders were keeping an eye on the site, and were actively seeking out options to take it offline. That might have played a role in the shutdown decision but without more information from the team, we can only speculate.

Coincidence?

There is an interesting coincidence that’s worth mentioning. At least in part, Animeflix was apparently hosted by the Hungarian company ServerAstra. This is the same host previously used by MagnetDL, before it mysteriously went offline last week.

Both sites were hosted on the same AS, along with many similar sites. This doesn’t have to mean anything at all, but it does stand out.

Whatever the reason, the end result is the closure of Animeflix. This is a fate that many pirate sites will ultimately face, including the original Animeflix, which went offline several years ago .

Given the popularity of the Animeflix brand, it’s likely that the name will be recycled once more, scooped up by a new team that dares to fill the void.

Needless to say, many users are disappointed to see their favorite anime portal gone. Rightsholders, however, might be throwing a party, before they move on to one of the many anime pirate sites that remain out there.

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

The Alliance for Creativity and Entertainment ( ACE ), arguably the world’s most active anti-piracy coalition, is backed by dozens of major rightsholders.

The group is largely managed by the Motion Picture Association, which has requested many DMCA subpoenas on its behalf over the past few years.

New Subpoena Round

After the MPA’s former Chief of Global Content Protection Jan Van Voorn left for a new opportunity , ACE went quiet on the subpoena front. The legal requests were always signed by Van Voorn, so someone else had to fill this role going forward. But who?

The answer arrived late last week when several new subpoena requests were docketed at a California federal court. The requests are similar to those seen before, now signed by Dani Bacsa, MPA’s Deputy Chief of Content Protection.

Through the subpoenas, ACE asks Cloudflare and the .To domain registry (Tonic) for information related to several domain names. These targets can be broadly divided into three groups – streaming sites, apps, and IPTV services – some with dozens of millions of monthly visits.

Pirate Streaming Sites

Anime site Anitaku is the most prominent target, with more than 125 million visits between March and May. However, other sites such as Goojara and Kickassanime have no traffic shortage either.

The subpoenas target a total of 17 pirate streaming site domains. ACE and the MPA hope that, through their requests for information, they can learn more about the identities and whereabouts of the operators.

Piracy Apps and IPTV

In addition to streaming sites, ACE has also listed domain names of websites that offer downloads to dedicated piracy apps including ‘Gold Core App’, ‘Live NetTV’, ‘RedPlay’ and ‘MagisTv’.

In addition, the subpoenas include domain names of IPTV portals such as Atlaspro, Newtelevision, and Honeybeeiptv. The latter is particularly popular in Singapore, where it’s one of the most visited sites in the Computers and Technology category.

As with the other sites and services, links to show how these domains match to infringing titles are included for each domain.

The goal of these proposed subpoenas is to require Tonic and Cloudflare to share identifying information on the users who maintain the associated accounts. That includes any names, physical addresses, IP addresses, e-mail addresses, payment information, and account histories.

Helpful, Not Perfect

Most operators of pirate sites and services know that ACE can obtain these DMCA subpoenas. They often preempt this by using false information. However, according to MPA’s Deputy Chief of Content Protection, Dani Bacsa, these efforts can still pay off.

Speaking with TorrentFreak, Bacsa says that the subpoenas are part of a legal tool set used to unmask pirates behind mass-scale infringing services. The MPA can’t share its success rate, but subpoenaed information has been fruitful in multiple cases.

Ideally, ACE, MPA, and other rightsholder representatives would like intermediaries to verify their customers’ identities.

Without referring specifically to Cloudflare or Tonic, Bacsa confirms that it would be a positive step if online intermediaries adopted robust ‘Know Your Business Customer’ (KYBC) procedures.

“Applying a KYBC policy will also ensure legal compliance, enhance security, prevent fraud, and protect the intermediary’s reputation by verifying the legitimacy of its business customers and mitigating associated risks,” Bacsa concludes.

—

A full list of all targeted domains is available below. The associated paperwork can be found here ( 1 , 2 , 3 , 4 , 5 , 6 ).

– vegamovies.to
– goojara.to
– supernova.to
– animesonlinecc.to
– anitaku.to
– ssoap2day.to
– anitaku.so
– braflix.video
– kickassanime.mx
– movieffm.net
– hdtodaytv.icu
– animepahe.com
– animepahe.org
– gogoanime.me
– soaper.tv
– soap2day.tf
– soap2day.qa
– vegamovies.to
– gold.coreplay.tv
– livenettv.bz
– redplaycard.com
– magistv.app
– atlaspro.tv
– atlaspro.io
– newtelevision.online
– best-usahosting.com
– honeybeeiptv.com

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

Mirror and clone sites were once deployed to keep popular sites alive as they imploded under the weight of their own popularity and ensuing traffic.

The strategy was famously deployed around Suprnova, one of the original torrent giants. Given how often the whole site went down, unable to cope with unprecedented success, in hindsight it was given an unintentionally appropriate name.

Today, some clone and mirror sites still exist for the same purpose but most fall off the end of a streaming site conveyor belt, to trade on the popularity of sites with known brands, generate confusion with similar domains, or both.

As a leading cybersecurity and anti-piracy vendor, Irdeto will be only too aware of the mirror and clone site phenomenon. Whether it expected its own website to be cloned and placed online is up for debate. As the owner of Denuvo, perhaps the most hated anti-piracy tech currently on the market, it probably didn’t come as a surprise.

DMCA Takedown Notice to GitHub

Irdeto’s DMCA notice was sent to GitHub on its own behalf, which probably doesn’t happen very often.

“We are writing to you from Irdeto B.V. (‘Irdeto’). We own the exclusive copyright to Irdeto.com and its related assets,” the notice begins.

Responding to GitHub’s request to identify the original copyrighted work that had allegedly been infringed, Irdeto pointed towards its own website.

“Irdeto.com and it’s related assets (such as text, website design, and images) is our copyrighted corporate website. The reported repositories have duplicated the Irdeto website code and assets. As this repository contains a direct copy of Irdeto.com, confirm that we own the copyright for all the contents within the repository.”

Cloned Sites Operating Under Two Domains

Irdeto goes on to claim that the owner of the infringing repos, described simply as “this individual” had attempted to impersonate Irdeto. One of the domains used in connection with the cloned website was Irdeto.fr but whether there was a broader plan isn’t revealed in the notice. That being said, the existence of a mail server quite rightly generated additional concern.

After identifying the repos to be removed, Irdeto requested a rapid takedown and action against the alleged culprit.

“We respectfully request that Github removes the infringing content expeditiously and suspends the user. If anything is preventing you from removing the reported content, please let us know what additional information is required,” the company wrote.

The first request was obviously granted by GitHub but whether it took any action against the user is unknown.

Unexpected

Suspended from GitHub or not, taking on a company like Irdeto has the potential to end quite badly. At the very least, there are much less risky targets, so who would choose to take on a corporation expecting to beat it at its own game?

Unable to resist a short look around, we began with basic questions; who owns Irdeto.fr, what other domains do they own, and why are WHOIS records nearly always frustrating?

Yet amazingly, not at all frustrating today. With no blanket of redactions, no wall-to-wall privacy service, Irdeto.fr seems like an image of openness.

Registered on January, 28, 2024, Irdeto.fr offers something most domains do not, personal information – or at least that’s what the information suggests it might be. Unwilling to fall into any mischief traps, or possible registration proxies, details redacted below.

With limited time, the next easy step was to find other domains registered by the same person. Using the email address listed for Irdeto.fr we ran a check and got another suspiciously easy hit.

The same email address is not only listed against another domain, but a .US domain, which are not usually redacted. This was no exception.

At this point completely out of time, we took that as a direct order. Almost certainly, Irdeto will not, despite 121K domains left to trawl.

Irdeto’s DMCA notice is available here

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

In little over five years, TorrentGalaxy has grown out to become a leading player in the torrent ecosystem.

The site originally set out to ‘ bridge the gap ‘ between torrent and streaming sites, but it became much more than that.

With a dedicated group of uploaders and an active community, TorrentGalaxy provided a safe haven for many avid torrenters. The disappearance of other key torrent sources, including the demise of RARBG last year, made TorrentGalaxy’s position as a torrent distribution portal increasingly important.

TorrentGalaxy Goes Offline

Against this backdrop, it’s no surprise that users are disappointed when the site suffers downtime. When the downtime is accompanied by a somewhat cryptic message, alarm bells start to go off.

A few hours ago, TorrentGalaxy’s main website and mirrors suddenly displayed the following mysterious message.

“TGX is offline. Updates will be posted in case of any changes.”

This message doesn’t have to be alarming; the site may simply return in a few hours after some much-needed maintenance. In that case, however, “TGx is down for maintenance, updates will be posted when more information is available” would have been a more appropriate message.

IF

The wording of the current message suggests that TorrentGalaxy is offline, may not come back soon, and updates will only follow IF anything changes.

We have reached out to our contacts at the site asking for clarification. At the time of publication, we have yet to receive any response. If we hear anything new, this article will be updated accordingly.

In addition to the main TorrentGalaxy.to domain, all official mirrors and proxies are down as well. The domain name of the status page , which showed all mirrors and proxies, is currently parked. That’s not a positive sign for users either.

The TorrentGalaxy downtime is not only felt at the site itself. Since it also provides a steady flow of [TGx] releases to other torrent sites, it will be noticeable there as well. This includes the popular ‘TGxGoodies’ user at 1337x, whose releases have been halted for now.

The current downtime might be related to enforcement actions. TorrentGalaxy has been on the radar of anti-piracy groups for a long time and, earlier this year, the U.S. Trade Representative flagged it as one of the most notorious piracy sites .

With the information that’s available to us presently, we can do little more than speculate. However, we will keep an eye out for updates and changes in the coming hours and days.

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

In France, where laws were introduced with site-blocking and similar anti-piracy measures already baked in, entertainment giant Canal+ seems intent on taking full advantage.

Like similar broadcasters with lucrative sports rights to exploit, Canal+ has a subset of viewers who prefer to consume from pirate sources which charge much less, or even nothing at all.

To maximize its existing site-blocking efforts through local ISPs, the French broadcaster has now taken the logical, albeit controversial, next step on the site-blocking ladder.

DNS Tampering at the Local ISP Level

In 2023, Canal+ went to court in France to tackle pirate sports streaming sites including Footybite.co, Streamcheck.link, SportBay.sx, TVFutbol.info, and Catchystream.com. The broadcaster said that since subscribers of local ISPs were accessing the pirate sites using their services, the ISPs should prevent them from doing so.

When the decision went in favor of Canal+, ISPs including Orange, SFR, OutreMer Télécom, Free, and Bouygues Télécom, were required to implement technical measures. Since the ISPs have their own DNS resolvers for use by their own customers, these were configured to provide non-authentic responses to deny access to the sites in question.

In response, increasingly savvy internet users that hadn’t already done so, simply changed their settings to use different DNS providers – Cloudflare, Google, and Cisco – whose resolvers hadn’t been tampered with; at least not yet.

One More Step Up The Ladder: Public DNS Tampering

Use of third-party DNS providers to circumvent blocking isn’t uncommon so last year Canal+ took legal action against three popular public DNS providers – Cloudflare ( 1.1.1.1 ), Google ( 8.8.8.8 ), and Cisco ( 208.69.38.205 ), demanding measures similar to those implemented by French ISPs.

Tampering with public DNS is a step too far for many internet advocates but for major rightsholders, if the law can be shaped to allow it, that’s what will happen. In this case, Article L333-10 of the French Sports Code (active Jan 2022) seems capable of accommodating almost anything.

When there are “serious and repeated violations” by an “online public communication service” whose main objective is the unauthorized broadcasting of sports competitions, rightsholders can demand “all proportionate measures likely to prevent or put an end to this infringement, against any person likely to contribute to remedying it.”

Google, Cloudflare, and Cisco Ordered to Prevent Circumvention

Two decisions were handed down by the Paris judicial court last month; one concerning Premier League matches and the other the Champions League. The orders instruct Google, Cloudflare, and Cisco to implement measures similar to those in place at local ISPs. To protect the rights of Canal+, the companies must prevent French internet users from using their services to access around 117 pirate domains.

According to French publication l’Informé , which broke the news, Google attorney Sébastien Proust crunched figures published by government anti-piracy agency Arcom and concluded that the effect on piracy rates, if any, is likely to be minimal.

Starting with a pool of all users who use alternative DNS for any reason, users of pirate sites – especially sites broadcasting the matches in question – were isolated from the rest. Users of both VPNs and third-party DNS were further excluded from the group since DNS blocking is ineffective against VPNs.

Proust found that the number of users likely to be affected by DNS blocking at Google, Cloudflare, and Cisco, amounts to 0.084% of the total population of French Internet users. Citing a recent survey, which found that only 2% of those who face blocks simply give up and don’t find other means of circumvention, he reached an interesting conclusion.

“2% of 0.084% is 0.00168% of Internet users! In absolute terms, that would represent a small group of around 800 people across France!”

Court Rejected Arguments Against Blocking

In common with other courts presented with the same arguments, the Paris court said the number of people using alternative DNS to access the sites, and the simplicity of switching DNS, are irrelevant.

Canal+ owns the rights to the broadcasts and if it wishes to request a blocking injunction, it has the legal right to do so.

The DNS providers’ assertion that their services are not covered by the legislation was also waved aside by the court.

Google says it intends to comply with the order. As part of the original matter in 2023, it was already required to deindex the domains from search results under the same law.

At least in theory, this means that those who circumvented the original blocks using these alternative DNS services, will be back to square one and confronted by blocks all over again.

Given that circumventing this set of blocks will be as straightforward as circumventing the originals, that raises the question of what measures Canal+ will demand next, and from whom.

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

UEFA is the international body that governs football throughout Europe.

As part of FIFA, the organization holds the rights to several major competitions and tournaments, including the Champions League and the European Championships .

These events are good for billions of euros in broadcasting rights and with these types of figures at stake, UEFA is understandably keeping a close eye on piracy. The job has become increasingly complex, now that unauthorized live-streaming is booming.

EURO 2024 Pirates

With the EURO 2024 tournament starting in Germany tomorrow, the organization and its anti-piracy partners are on high alert. Systems are in place to detect and shut down pirate streams within minutes, and social media will be heavily monitored as well.

UEFA is not the only organization preparing for the major tournament; pirates are planning ahead as well. In recent weeks, several sites have put up placeholders for the upcoming EURO 2024 matches.

These placeholders are picked up and indexed by search engines. As a result, the pirate sites are easily findable when match day comes. That is, if these pages are still in search engines by then.

According to Google’s transparency report, UEFA anti-piracy partner ‘Friend MTS’ asked the search engine to remove thousands of ‘pirate’ live-streaming links over the past week. This includes links to EURO 2024 games that are not even ‘live’ yet.

Preemptive Takedowns

The Chinese site below, for example, prepared a dedicated page for upcoming Euro 2024 live streams. After Friend MTS listed the URL in a takedown notice, Google promptly removed it. The same is true for other “EURO 2024” pirate streaming placeholders.

Google has removed most of these links from its search index. Although there is technically no copyright infringement yet, Google presumably finds it reasonable to assume that links to pirated streams will appear there eventually, as advertised.

In some cases, UEFA’s requests are rather broad. For example, one of the EURO 2024 takedowns lists a page from Leisu.com that doesn’t mention live streams. Instead, it looks more like a live score page.

According to its own website, Leisu Sports is the official ‘ copyright data supplier ‘ of the Chinese Football Association.

We don’t know whether Google looked into the matter in detail, but the company removed the leisu.com URL from its search results. That said, Google doesn’t simply take down every link that’s submitted.

Homepage Removals

After looking into more UEFA takedown requests from this month, including friendly matches that were played over the past days, we see many ‘homepages’ of pirate streaming sites listed. Google appears to be more reserved when it comes to such broad requests.

For example, 123koora.com, amzfutbol.com, rojadirectenvivo.me, and others are still indexed by Google, despite being listed in takedown requests.

It’s clear that UEFA will be pulling out all the stops to ensure that licensed broadcasts are properly protected. In the past, it also sent advance warnings to pirate site owners directly, but we haven’t heard similar reports this time around.

EUIPO Support

While Europe is gearing up for the Championship of the continent’s most popular sport, UEFA received some indirect support from the European Union’s Intellectual Property Office.

Yesterday, EUIPO put a spotlight on the alarming sports streaming piracy rates in the EU. The press release mostly regurgitates previously published reports, but that didn’t prevent mainstream media from picking it up.

“According to EUIPO data, millions of EU citizens access or stream sports content from illegal online sources while fake sports equipment cost manufacturers €850 million per year,” EUIPO wrote.

One can wonder whether a reminder of the immense popularly of pirate live streams actually works as an advertisement to the general public, instead of a deterrent. After all, research has shown that these popularity ‘warnings’ can backfire.

EUIPO’s intentions are clear; however. It wants fans to ‘play fair’ and use legitimate viewing options, as pirate ‘cheers’ don’t pay off.

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

Almost half a decade ago, eight Las Vegas men were indicted by a grand jury for conspiring to violate criminal copyright law via two IPTV services, Jetflicks and iStreamitAll.

The indictment accused the defendants of reproducing tens of thousands of copyrighted TV shows without authorization, and distributing that content to tens of thousands of paid subscribers across the United States.

At one point, Jetflicks was said to have made available more than 183,200 different TV show episodes. iStreamitAll allegedly made available more than 118,479 TV shows and 10,980 movies; at the time more content than Netflix, Hulu, or Amazon Prime offered.

The Road to Trial

After pleading guilty to copyright infringement and money laundering, in 2021 a key defendant was sentenced to 57 months in prison and a $1m forfeiture order. In the same year, another pled guilty to one count of conspiracy to commit copyright infringement and was sentenced to one year and a day in prison.

Other defendants dug in to fight a case that had become unusually complex , for a range of reasons, many of which are still not for public consumption.

After reportedly generating 19TB of data and 175,000 pages of print discovery, the defense previously estimated that it would take “at least a couple of months” just to take a copy of the data needed for trial; by then a bewildering 63TB in total.

Trial Begins in Las Vegas, Nevada

Since instructions issued by District Judge Richard F. Boulware, II, state that transcripts must not be made available online for several weeks, reporting daily events in detail presents challenges. Nevertheless, there’s no shortage of general information available that shows the scale of the matter in hand and the mood of the parties involved.

On May 28, day one of the trial, the government had four attorneys listed for appearance, alongside an FBI Special Agent and an IT expert. Listed for lead defendant Kristopher Lee Dallmann, three counsel, a paralegal, an investigator, and two interns. For Felipe Garcia, two counsel and a paralegal; for Douglas Courson, Jared Edward Jaurequi, and Peter H Huber, two counsel each.

At 09:28, prospective jurors were called to the courtroom and at 09:43, a total of 85 were in attendance. By 11:00, they numbered ‘just’ 50.

Day Two to Day Four

After two jurors raised concerns at the start of day two, each spent some time with the Judge. The nature of those concerns and the outcome are absent from the docket.

The government’s opening statement arrived just before noon, with defendants’ counsel delivering their statements early afternoon, before jury members were excused for lunch at 14:30. A direct examination of a Supervisory Special Agent at the FBI by counsel for the government brought the second day to a close.

The fourth day of the trial began with counsel for Peter Huber informing the Court about an issue with her client. While that has no explanation either, counsel for Kristopher Dallmann advised the Court of a forthcoming motion on behalf of his client; details of that matter are substantial.

Dallmann Files Motion For Mistrial

On Saturday, May 25, the government provided a PowerPoint presentation to the defense that it intended to use in opening statements to the Court. Counsel for Dallmann notified the government on Monday, May 27, that they intended to object to the proposed use of the presentation, details of which were also provided to the Court.

“Counsel for Mr. Dallmann specifically noted that they would seek a mistrial if the exhibits were permitted to be shown during opening statements,” Dallmann’s motion for mistrial notes.

The government ultimately went ahead anyway, prompting counsel for Dallmann to respond as promised.

“Here, a mistrial is warranted because the government was permitted to show inadmissible and highly credible legal conclusions to the jury during opening statements with no qualification or limiting instructions,” the motion continues.

“Inadmissible and Impossible to Disregard”

One of the exhibits shown to the jury was a letter dated July 22, 2011, sent by HBO to Jetflicks c/o Dallmann.

“While the letter is framed as a notice, it is based on a finding that copyright infringement occurred (otherwise, the letter would not have issued). That finding constitutes a legal conclusion,” the motion continues.

“Steven Rosenthall was not just any lawyer—he was the Director of Anti-Piracy in HBO’s legal department. There can be no question that someone who has ascended to that position is scrupulous, detail-oriented, and credible. Furthermore, the legal department at HBO is not some ragtag team of vagabonds. It’s the legal department within a massive, flagship American media organization. Consequently, a legal conclusion by HBO’s legal department carries significant weight.”

In summary, counsel for Dallmann argues that the jury was exposed to an inadmissible legal conclusion that will be impossible to disregard, in a letter sent by someone who is not noticed as a government witness, so cannot be cross-examined. The only solution, therefore, is a mistrial.

MPAA Infringement Notice, PayPal Correspondence

Similar concerns are leveled at an infringement notice sent by the then-MPAA to Dallmann dated November 16, 2012. While not mentioned by the defense, it refers to infringement on jetflick.mobi, a domain for which no records appear to exist, since it may have never been registered. Jetflicks.mobi may have been the intended target, however.

An email dated October 24, 2016, sent by PayPal to Dallmann to advise his account had been temporarily limited due to violation of the company’s Acceptable Use Policy, also came in for criticism.

“The email is hearsay, and no PayPal witness has been noticed who can testify about the email. The email is prejudicial because the government used it to establish that Mr. Dallmann had engaged in copyright infringement,” the motion continues.

Other, apparently contentious, items include records provided by Google in response to a warrant, listing details of several searches allegedly carried out by Dallmann. An extract of a conversation that allegedly took place between Dallmann and Coulson, with the source listed as ‘IPhone 7 Plus/mobile/Library/SMS/sms.db’, appears to contain details of business planning.

In any event, the defense insists that the slides are inadmissible on several grounds, including a lack of authentication and failure to adhere to rules governing coconspirator statements.

Government Opposition to Motion

In its 10-page opposition, the government notes that before these items were shown to the jury, they were previewed by the Court and defense counsel. In all instances, “..the Court determined that the slides could properly be displayed during opening statement.”

In broad terms, the defense argues that the exhibits were presented as proof of copyright infringement, contrary to the government’s claim that they would be offered “for the effect on the listener and not for the truth of the matter.”

What that means in practice is explained in a statement by the Court in response to the defense’s objection to the MPAA letter of infringement being shown to the jury.

“The defense objected again during court proceedings, and the Court similarly responded, ‘If it’s being offered for the same reason, which is for your client’s state of mind, not for the fact that it’s true, but for the fact that he received it, then it wouldn’t be hearsay’,” the government explains.

“The Court repeated its view that use of the exhibit in the opening as a demonstrative was acceptable ‘so long as I find that there’s a likelihood that the evidence would be admitted’.”

In a nutshell, the documents were shown to the jury (the PayPal documents were apparently withheld) to demonstrate that Dallmann had received notice, that victims and/or their representatives believed his conduct was infringing, and they had ordered him to stop. The ‘effect on the listener’ amounts to Dallmann’s conduct after he took possession of those notices.

Every Detail Subject to Challenge

When viewing progression in this case from indictment to day one of the trial, with every detail a potential avenue for prolonged argument, the potential for some kind of derailment seems higher than normal for this type of case.

That being said, the government is backed by heavyweight artillery, as this sample of witnesses heard thus far reveals.

• Alexis Brown, Special Agent, FBI
• Joseph Varani, Digital Investigative Analyst, DoJ, Cyber Crime Lab
• Thomas Song, Deputy Director Cybercrime Lab, DoJ
• Michael Housley, Senior VP, Counsel of Content Protection, Paramount Global
• Matthew Andrews, Director of Global Content Protection, Netflix
• John Kern, IT Specialist, Digital Forensic Examiner, FBI
• Laura Peterson, Digital Forensic Analyst, Department of Homeland Security
• Lucia Rangel, VP Content Protection, Warner Brothers Discovery
• Jan van Voorn, Chief Executive Officer, IP House (previously MPA/head of ACE)
• Daniel Cooper, Senior VP of Intellectual Property, NBC Universal
• Daniel Ogden, VP Cyber Operations, OUR Rescue
• Michael Poston, Supervisory Special Agent, FBI

Dallmann’s motion for mistrial / government’s opposition available here and here (pdf)

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