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.

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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.

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.

Last Friday, the RIAA caused outraged on the Internet when it filed a complaint that took down the open source software YouTube-DL from Github.

According to the RIAA, the “clear purpose” of YouTube-DL was to “circumvent the technological protection measures used by authorized streaming services such as YouTube” and “reproduce and distribute music videos and sound recordings owned by our member companies without authorization for such use.”

As the debate and controversy over the complaint rages on, a company based in the US that operates a YouTube-ripping platform has filed a lawsuit alleging that similar complaints, filed by the RIAA with Google, have caused its business great damage.

Complaint States That YouTube-Ripping Platform “Time-Shifts”

Filed by Yout LLC. in a Connecticut court, the complaint alleges that its service allows users to enter a link for a video on sites including YouTube. Its browser-based software then gives users the ability to record the audio of a streamed video and store it locally on their hard drives as an MP3.

“By doing so, the user can thereby listen or view the locally stored content when not connected to the Internet and without the necessity of visiting the website on which the original content resides. In essence, Yout allows a user to time shift content,” the complaint reads.

Yout LLC does not name its service directly in the complaint but the website Yout.com, which lists its address as being in South Windsor, a town in Hartford County, Connecticut, matches the description in the lawsuit.

RIAA Sent “Abusive” DMCA Complaints to Google

Noting that the Yout service never saves users’ time-shited content on its own servers, Yout claims that many users utilize the service for the purpose of recording their own videos. Content creators, on the other hand, encourage their fans to “record and play back their original content” using the platform.

However, starting October 2019, the RIAA reportedly sent at least three notices to Google under 17 U.S.C. § 512(c)(3) , claiming that the Yout platform breached the anti-circumvention provisions of the DMCA.

“To our knowledge, the URLs provide access to a service (and/or software) that circumvents YouTube’s rolling cipher, a technical protection measure, that protects our members’ works on YouTube from unauthorized copying/downloading”, the complaints read.

According to the lawsuit, this caused Google to completely delist Yout’s software platform from its search results, rendering it undiscoverable for “many” Internet users. Yout says that the notices sent by the RIAA on behalf of its members allege circumvention violations, claims that are completely untrue.

“Contrary to Defendants’ allegations, Yout’s software platform is not designed to descramble, decrypt, avoid, bypass, remove, deactivate, or impair the YouTube rolling cypher technology.

“In fact, any digital mechanism in place designed as anti-circumvention technology stops Yout users from recording and saving that protected work, thereby demonstrating Yout’s compliance with any anti-circumvention protections in place,” the complaint adds.

Yout Says That the RIAA’s Claims Damaged Its Reputation

Yout’s lawsuit says that as a service designed to allow users to record publicly available media for personal use, at a time chosen by them and without breaching technical measures, it is entirely legal.

“Such time-shifting purposes, absent specific circumvention of technological copyright protections, cannot be the basis for an alleged violation of 17 U.S.C. § 1201. Yout does not violate 17 U.S.C. § 1201.”

By alleging otherwise, however, the RIAA’s notices caused third parties to believe that Yout is engaged in illegal conduct, something the company vehemently denies. Indeed, Yout states that the RIAA acted with “malice” when sending the notices since the industry group intended to harm the company.

Yout Wants Its Business and Tool Declared Legal By The Court

Reiterating that its platform does not act as an anti-circumvention tool, nor one that was primarily designed for the purposes of circumventing a technological measure effectively controlling a copyrighted work, Yout insists that it complies with “any and all” protections in place.

“Based on the foregoing, Yout requests a judicial determination and declaration that Yout’s software platform does not violate 17 U.S.C. § 1201 . Such a judicial determination and declaration is necessary to protect Yout from the Defendants’ DMCA Notices, which are causing Yout injury by, among other things, damaging its goodwill and disrupting its business,” the company adds.

Yout Demands Compensation For Abuse of the DMCA

Yout states that the RIAA’s complaints to Google were sent in bad faith, for one of two reasons.

In scenario one, the RIAA simply failed to determine via testing whether the Yout platform actually does circumvent technical measures. In scenario two, the industry group knew that Yout did not circumvent technical measures and did not infringe its members’ rights, but sent the DMCA notices to Google anyway.

In either event, the lawsuit alleges that Yout’s business was damaged due to the RIAA’s claims interfering with the relationships between Yout and its customers, partners, and potential users. As a result, compensation is due.

“As the Defendants knowingly misrepresented circumvention of digital copyright mechanisms and infringement of the Defendants’ rights, the Defendants violated 17 U.S.C. § 512(f) ,” the lawsuit reads.

In other words, Yout wants to be compensated for the losses caused when the RIAA reported Yout to Google as an infringing service that should be removed or delisted.

“Yout Does Not Circumvent YouTube’s ‘Rolling Cipher'”

In most if not all similar anti-circumvention notices sent by the RIAA to various platforms, the industry group states that “technological measures” can include YouTube’s “rolling cipher”. In Yout’s complaint, the company categorically denies that it circumvents any such measure.

In fact, Yout says that by respecting the rolling cipher, it not only doesn’t infringe the labels’ rights but actually helps to protect them.

“[B]y respecting anti-circumvention technology in place, Yout facilitates protection of the copyrights of the [RIAA member labels’],” the lawsuit reads.

After repeating several times that Yout acts illegally under the DMCA, the RIAA has tarnished the reputation of Yout, the complaint adds. The industry group knew the notices would be published in public (on the Lumen Database) so as a result, the false statements constitute business disparagement.

For this and general defamation, Yout also demands compensation, punitive damages, and a trial by jury.

The complaint can be found here (pdf)

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

In recent months we have reported in detail how users of the popular torrent site YTS were sued in US courts .

In several of these cases, information shared by the site’s operator was brought in as evidence. The user info was obtained by anti-piracy lawyer Kerry Culpepper, as part of an undisclosed settlement agreement.

This week the same attorney is back in court representing ‘Eve Nevada LLC,’ the company behind the film Ava , which is shared widely on various pirate sites. Again, YTS is prominently mentioned, but this time things are different.

The complaint, filed at a Hawaii federal court, lists 19 ‘John Doe’ defendants who are only known by their IP-addresses. These addresses were caught sharing the film via public torrent trackers. Specifically, the complaint mentions a file titled “ Ava (2020) [1080p] [WEBRip] [5.1] [YTS.MX] .”

This title leads the filmmakers to the conclusion that the defendant must have been users of the YTS site. Or as the complaint puts it:

“Upon information and belief, each of the Defendants registered for an account on the YTS website using an email address or installed a BitTorrent Client application on their device that retrieved torrent files from the YTS website.”

This same conclusion, in addition to the fact that defendants downloaded the same file, is also used as an argument to join the 19 defendants in one case. However, based on the information presented, it’s far from clear that at all of these people were indeed YTS users.

Unlike in the other cases, the copyright holder didn’t present any information from the YTS user base, likely because it doesn’t have any. The data-sharing was a one-time arrangement several months ago, long before YTS released the movie Ava.

While it’s possible that the defendants indeed used YTS, they could have easily downloaded the .torrent file from other sites where the same file was made available. Although several torrent sites banned YTS torrents , many haven’t, including the illustrious Pirate Bay.

Whether the defendants are actually YTS users or not may not make much of a difference. At least not for the copyright infringement allegations.

In addition to direct and contributory copyright infringement, the complaint also accuses the defendant of violating the DMCA by altering copyright management information (CMI). In this case, that means distributing the movie Ava with an edited title, which references YTS.

“Particularly, the Defendants distributed the file names that included CMI that had been altered to include the wording ‘YTS’. Defendants knew that the wording “YTS” originated from the notorious movie piracy website for which each had registered accounts and/or actively used,” the complaint reads.

It’s doubtful that any of these cases will be fought on the merits. When the defendant’s personal information is exposed it’s likely that they will receive a settlement request, which is usually around $1,000. Those who refuse to settle can argue their case in court, but that’s going to cost as well. They can eventually win the case, but not without investing in a legal defense first.

As far as we know this is the first time people have been sued for downloading the film Ava. The company Eve Nevada is a new name as well, but one with familiar connections. It’s connected to the broader Voltage Pictures family, which has sued tens of thousands of people over the years.

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A copy of the complaint filed at the US District Court of Hawaii is available here (pdf)

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

CDN company Cloudflare has grown to become one of the most useful and important companies on the Internet, serving millions of websites that in turn serve countless millions of users of their own.

One of Cloudflare’s key aims is to be viewed as a neutral intermediary but that status is being chipped away by elements of the entertainment industries. The problem is that some of Cloudflare’s customers are pirate sites but as a service provider, Cloudflare insists that passing on complaints should be enough.

The music and movie industries, on the other hand, would like Cloudflare to either stop doing business with ‘bad players’ or take more responsibility for their actions.

Cloudflare Won’t Compromise So Legal Action Followed

Cloudflare is tied up in several lawsuits around the world, not for its own actions per se, but for the actions of some of its customers. In Germany there has just been a very interesting development, one that could have far-reaching consequences for how Cloudflare does business there.

Back in February , Germany-based visitors to pirate music site and Cloudflare customer DDL-Music.to were served with a rare ‘Error 451’ by Cloudflare, meaning that the site had been made inaccessible for legal reasons. At the time, no other information had been made public but as the days passed, a clearer picture emerged.

Complaint Filed By Universal Music GmbH

Early June 2019, Universal Music GmbH (Germany) sent a copyright infringement complaint to Cloudflare after finding links on DDL-Music to tracks by German singer Sarah Connor. The files themselves were not hosted by DDL-Music but could be found on a third-party hosting site. Universal asked Cloudflare make the tracks inaccessible within 24 hours but Cloudflare didn’t immediately comply.

In a subsequent response to Universal, Cloudflare denied being responsible for the activities of DDL-Music. It suggested that the label should confront DDL-Music directly, handing over an email address and details of the site’s hosting provider for contact purposes.

What happened in the interim isn’t clear but in December 2019 a hearing took place at the Cologne District Court, during which the court found that Cloudflare could be held liable for the copyright infringements of DDL-Music, if the CDN company failed to take action.

On January 30, 2020, the Cologne District Court went on to hand down a preliminary injunction against Cloudflare, advising that should it continue to facilitate access to the Universal content in question, it could be ordered to pay a fine of up to 250,000 euros ($270,000) or, in the alternative, the managing director of Cloudflare could serve up to six months in prison.

Preliminary Injunction Made Permanent

According to a statement issued late Thursday by German music industry group BVMI, the Cologne Higher Regional Court has now confirmed the judgment of the Cologne District Court. This means that Cloudflare must block access to the pirated music being offered on the website of DDL-Music. While Cloudflare will not be able to comply with that specific order (DDL-Music moved on a while ago) the principle stands. In Germany at least, Cloudflare can be held liable for the infringements of its users.

“Cloudflare offers a so-called CDN (Content Delivery Network), which is misused by structurally copyright-infringing websites in order to evade legal prosecution through anonymization. The Cologne Higher Regional Court has now put a stop to this: It has obliged Cloudflare to block customer content that has been reported to it by rights holders, or otherwise block the customer’s entire website,” BVMI’s statement reads.

Decision Welcomed By the Music Industry as a Tool to Fight Piracy

According to BVMI, the decision of the court is particularly noteworthy since it’s the first time that a higher regional court has confirmed an injunction against “an anonymization service” that conceals the identities of the servers operated by pirate sites. This decision will make that more difficult in future, the group says.

“The decision of the Cologne Higher Regional Court strengthens the position of rights holders in an important field and is a clear signal: A service that helps others to evade legal prosecution through anonymization is also illegal,” comments BVMI CEO, Dr. Florian Drücke.

“The decision is a further success for our industry against offers on the Internet that cause considerable damage to creatives and their partners and whose business models are based on generating considerable income with third-party content without acquiring licenses for this content.”

René Houareau, Managing Director of Law & Politics at the BVMI says the importance of the decision cannot be underestimated.

“Little by little we are getting closer to the modern understanding of the responsibility of all players on the Internet – especially through ambitious court decisions like this one,” Houareau says.

“An anonymization service may not allow third-parties to distribute illegal offers while disguising the identity of the servers of structurally infringing websites. In other words, excuses no longer apply in such cases. The services have to recognize more and more that some smoke screens no longer work.”

The developments in Germany arrive on the heels of a similar court ruling in Italy , which also went against Cloudflare. Following a complaint from TV platform Sky Italy and Italy’s top football league Serie A, Cloudflare is now required to block the domain names and IP-addresses of a pirate IPTV service. In that matter, Cloudflare argued that it merely passes on traffic, but the court wasn’t convinced.

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

Earlier this year, Hawaiian anti-piracy lawyer Kerry Culpepper turned some of the most popular piracy brands into a powerful anti-piracy tool.

The attorney, who is listed as director of the company ’42 Ventures,’ registered several piracy-related trademarks, including ‘YTS’ and ‘Popcorn Time.’

The company, which was founded last year, legally claimed these marks and uses them on a website that doesn’t draw any significant traffic. What did get people’s attention, however, were the enforcement actions that followed.

Shortly after the trademarks were granted, Culpepper managed to suspend the Twitter account of a popular Popcorn Time fork. He offered to return it in exchange for a Popcorn Time licensing deal, which failed.

Trademark Lawsuits Against YTS Sites and Apps

In addition, the attorney also filed a trademark infringement lawsuit on behalf of 42 Ventures. The lawsuit targeted the operators of yst.lt, ytsag.me, yts.ae, ytsmovies.cc, yts.ms, as well as apps such as “Y Movies,” “YTS Movies Library” and “YTS movies.”

The people behind these sites, who are believed to be from India, China and Egypt, used the YTS brand as a promotional tool. This isn’t uncommon, as YTS has been a popular pirate brand for years, after originally belonging to a long-defunct release group.

Over the past weeks, one of the site operators agreed to settle the trademark infringement matter for $200,000, on paper. The other four didn’t respond to the allegations at all, which prompted the lawyer to request default judgments of $250,000 against all defendants.

“Defendants purposefully utilize Plaintiff’s YTS mark in their domain registrations and app names in order to mislead consumers about the origins of its goods and services as connected to Plaintiff, resulting in a substantial loss of income, profits, and goodwill,” Culpepper informed the court.

42 Ventures Requests Default Judgment

Since none of the defendants showed up in court there was little to stop a victory, except for the court itself, it now appears.

In a ‘findings and recommendations’ issued this week, US Magistrate Judge Wes Reber Porter recommends the court to deny the $250,000 damages request and dismiss the complaint because the court lacks personal jurisdiction.

For a court to decide over a defendant, it should have the right to do so. This is usually not a problem when a US citizen is taken to court in the US but, in this case, the defendants are foreigners. That changes everything.

The court can only issue a judgment when it’s shown that the defendants “purposefully directed their activities towards the United States.” Here, Judge Porter is not convinced that this is the case.

According to Culpepper, the trademark-infringing YTS sites and apps were available in the US, used US-based services including domain registrars, and used US-based payment providers, among other things.

Judge Doesn’t Believe Court Has Jurisdiction

Judge Porter doesn’t dispute these facts but doesn’t agree that this is sufficient to show that the court has personal jurisdiction.

“The Court finds that Defendants’ use of United States-based companies for webhosting and domain name services and for paying for those services is insufficient to show that Defendants aimed their allegedly infringing acts at the United States,” Porter writes.

The Judge notes that in some cases people simply choose to work with US-based companies because they are the biggest brands in their industries, or have a monopoly. Not because they’re from the US.

“Indeed, as other district courts have recognized ‘it is more accurate to say that [the defendant] utilized Apple and Google because they arguably have a virtual monopoly on the channels in which developers can distribute application-based software—not because they have offices in [the United States]’.”

If this logic indeed applies, then all foreigners with a Gmail account would subject themselves to the jurisdiction of US courts, which is something Judge Porter doesn’t agree with.

Two of the defendants also used advertising services, cookies and web beacons, to gather information about individual visitors, some of whom are from the US. Culpepper brought this in as another argument to show that the court has jurisdiction but that was disregarded as well.

“Finally, the Court finds that Plaintiff’s allegations regarding Defendants Mav and Shan collecting information about users on their websites is insufficient to show that these Defendants have done engaged in ‘conduct directly targeting the forum’.”

Judge Recommends Dismissal

All in all, Judge Porter concludes that the court lacks personal jurisdiction over the defendants. He therefore recommends denying the motion for a $250,000 default judgment and suggests a dismissal of the entire case.

This recommendation has yet to be adopted by the court in a final ruling and can be contested by Culpepper. However, the first signs don’t look positive for the trademark owner.

In closing, it is worth pointing out that YTS.mx, which is by far the most popular YTS site , wasn’t targeted in this trademark case. However, the same lawyer previously negotiated copyright infringement settlements with the site’s owner, totaling well over a million dollars .

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A copy of the findings and recommendations published by US Magistrate Judge Wes Reber Porter is available here (pdf)

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

During the summer of 2016, Polish law enforcement officers arrested Artem Vaulin, the alleged founder of KickassTorrents .

The then 30-year-old Ukrainian was apprehended at a local airport. He was later taken into custody and around the same time the infamous torrent site went dark.

Criminal Prosecution of KickassTorrents

The arrest was part of a U.S. criminal case which also listed two other men as key players . At the time, KickassTorrents (KAT) was the most-used torrent site around, so the authorities couldn’t have hit a more prominent target.

The criminal case meant the end of the torrent site, but also the start of a slowly progressing legal battle for the defendants. After being held in a Polish prison cell for nearly ten months, Vaulin was released on bail in 2017.

He soon moved to a rented apartment in Warsaw where he enjoyed relative freedom and, most importantly, the company of his wife and son. Meanwhile, the extradition proceedings continued.

Four years on, the case remains pending without any significant progress. There was an early court decision which held that the alleged KAT operator can be extradited , but that decision had yet to be confirmed. Based on new developments, it’s unclear whether that final decision will ever come.

Alleged KAT Founder Skips Bail

According to new information received by TorrentFreak, Vaulin is no longer in Poland. This was confirmed by United States Attorney John R. Lausch Jr., who just informed the federal court in Illinois that their suspect is ‘missing.’

“According to information recently received from the Polish Ministry of Justice, defendant Artem Vaulin has left Poland in violation of his release conditions, and his current whereabouts are unknown,” Lausch writes in a brief status update.

The release was not without conditions. Vaulin was not allowed to leave the country, for example, and was under police supervision. However, according to the authorities, these conditions were violated recently and the $108,000 bail was forfeited.

“According to the Polish Ministry of Justice, however, Vaulin has left the country and his bail was forfeited by the District Court in Warsaw on August 26, 2020. As such, extradition proceedings in Poland are no longer continuing,” the US Attorney adds.

Vaulin’s Legal Team Withdraws

We reached out to Val Gurvits of Boston Law Group, one of the attorneys who represented Vaulin in the US case. Gurvits said that he was just informed of these new developments by the US Government. His team hasn’t heard from Vaulin.

“We are not in touch with Mr. Vaulin and we will be withdrawing from the case,” Gurvits tells us.

It’s not clear why Vaulin left Poland or where he is now. However, based on this new information, it is not unlikely that the criminal prosecution in the US may never start. Without defendants, it can’t continue.

In addition to Vaulin, the US Government also indicted two other Ukrainian men in the KickassTorrents conspiracy. These defendants, Oleksandr Radostin and Ievgen Kutsenko, remain at large after four years.

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