Over the past three years, adult entertainment company Strike 3 Holdings has filed thousands of cases in US federal courts.

These lawsuits target people whose Internet connections were allegedly used to download and share copyright-infringing content via BitTorrent.

While many of these cases resulted in private settlements, Strike 3 has also experienced some setbacks in court. For example, not all judges are convinced that an IP-address is sufficient evidence for a viable case.

The Court as an ATM

Others are even more outspoken. A few years ago, US District Court Judge Royce Lamberth accused Strike 3 of being a known “copyright troll” that was using his court “ as an ATM .” The company flooded the court with lawsuits “smacking of extortion”, he added.

Strike 3 Holdings sees things differently. And while a few judges are clearly upset with these targets, there are many who still play along. This allowed the company to collect millions of dollars in settlements over the years.

Even judges in the same District Court can handle these cases differently, which brings us to the topic at hand today.

The Southern District of Florida is one of the courts where Strike 3 is active. Over the last year, it filed roughly a dozen cases, and most judges signed off on a subpoena request. This is crucial, as it allows the company to ask ISPs for the personal information of subscribers.

Geolocation and IP-address Doubts

Not all judges are easy to convince though. District Court Judge Ursula Ungaro is particularly critical. Simply put, she doesn’t believe that the geolocation tools, which link IP-addresses to her district, are 100% accurate.

“Plaintiff’s assertions as to Defendant’s residency therefore seem to be in large part based upon the assumption that the geographic data results of IP address geolocation are valid and accurate,” she writes in a recent order.

“This strikes the Court as possibly problematic after reviewing technical literature which suggests otherwise,” Judge Ungaro adds.

The Internet doesn’t have an inherent mechanism to link IP-addresses to specific locations, the order adds, linking to research and various articles on the topic.

An IP-address Isn’t Enough

If Strike 3 wants to continues its case, it will have to come up with more conclusive evidence to show that the IP-address is linked to the Florida district. Not just that, but Strike 3 also has to provide evidence that shows that this IP-address is linked to a specific person

“Additionally, this Court recognizes that IP addresses are assigned to nodes connected to the Internet, but are not necessarily representative of individual end-node/end-system devices, and especially are not representative of individual people,” Judge Ungaro notes.

“This Court therefore requires that Plaintiff show that due diligence, as well as due care, have been employed in ascertaining that the IP address associated with the alleged tortfeasor is or was assigned to a system or node that can be used to reasonably calculate the identity of the alleged infringing party.”

Rinse and Repeat

Regular readers may recall that the “IP-address is not a person” argument has been brought up in the past. In fact, Judge Ungaro highlighted this last year in a similar order, also directed at Strike 3 Holdings.

While this may seem like a major stumbling block for the adult content producer, the reality is a bit different. When Judge Ursula issued her motion last year, Strike 3 simply dropped the case and moved on to the next . It wouldn’t be a surprise if we see that happening here as well.

Pragmatically speaking, it’s easier for the company to drop the case and file a new one, hoping for a ‘friendlier’ judge. That paid off after Judge Ungaro’s order last year, and it will likely work again. Rinse and repeat.

Or other words, if the ATM is not working, just try the one next door.

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The motion to show cause, issued by Judge Ursula Ungaro, is available here (pdf)

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

Enlarge / None of these companies is keen to hand over a slice of its revenue to Maryland. (credit: Malik Evren | Getty Images )

A group of business organizations led by the US Chamber of Commerce is suing the state of Maryland, seeking to block implementation of the state's brand-new, first-of-its-kind tax on digital-advertising revenue.

Maryland's tax bill is "deeply flawed" and "illegal in myriad ways," the suit ( PDF ) alleges, claiming that act will "harm Marylanders and small businesses and reduce the overall quality of Internet content."

"This is a case of legislative overreach, punishing an industry that supports over one hundred thousand jobs in Maryland and contributes tens of billions of dollars to its economy each year," the Internet Association, one of the plaintiffs, said in a statement about the suit. "Internet services and companies are proud to play a role in creating opportunities for Maryland’s small businesses and citizens."

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In 2019, a U.S. District Court in Minnesota sentenced Paul Hansmeier to 14 years in prison , to be followed by two years of supervised release.

Hansmeier was a key player at the Prenda Law firm, which pursued cases against people who were suspected of downloading pirated porn videos via BitTorrent.

While suing alleged pirates is not illegal, Prenda Law went much further. Over the years the firm faced negative court rulings over identity theft, misrepresentation, and even deception.

The Original Prenda Honeypot

Most controversial were the shocking revelations that Prenda itself produced adult videos and uploaded its own torrents to The Pirate Bay . In doing so, the company created a honeypot for the people they later sued over pirate downloads.

The allegations were serious enough to appear on the radar of US law enforcement agencies which launched a criminal investigation, culminating in prison sentences for the two key players.

Today, Paul Hansmeier and his former colleague John Steele are both in prison. While the latter received a reduced sentence for his cooperative stance, Hansmeier continues to appeal his sentence to this day. To make a point, the lawyer even restarted his honeypot scheme from prison.

Hansmeier Doesn’t Want to Pay $1.5 Million

In addition to challenging his conviction, Hansmeier also appealed the $1,541,527.37 in restitution that he’s required to pay to victims. According to the former lawyer, this figure is too high because it also includes ‘legal’ settlements.

This case ended up at the Eighth Circuit Court of Appeals, where the Government opposed Hansmeier’s claim, arguing that the convicted lawyer waived his right to appeal by signing a plea agreement.

After a careful review, the Court of Appeal judges ruled that Hansmeier has the right to appeal the restitution amount. However, that doesn’t help the former lawyer much, as the judges also concluded that the district court correctly awarded $1,541,527.37 in restitution.

Evidence Shows that $1.5 Million is Correct

According to the Court of Appeal, the Government provided sufficient evidence to show that the restitution amount “was attributable solely to settlement payments from the fraud scheme.”

This evidence was collected by FBI agent Jared Kary who went over all settlement payments that came in from April 2011, which was when the Prenda lawyers started to upload their own movies to The Pirate Bay.

“Agent Kary further attempted to narrow his calculation to payments from fraud victims by excluding any payments that came in over this period that he could not tie to a specific person,” the Court adds, suggesting that the actual figure might be higher.

However, the most compelling statement may come from none other than Paul Hansmeier himself , who pretty much confirmed the amount in the plea agreement .

“Finally, Hansmeier himself acknowledged in his plea agreement that, between 2011 and 2014, he and Steele ‘received more than $3,000,000 in fraudulent proceeds’ from their lawsuits,” the Court writes.

More Setbacks for Hansmeier

The Court’s ruling also provides a detailed description of all the criminal wrongdoings. In a separate argument, Hansmeier also claimed that the district court incorrectly denied his motion to dismiss the indictment. However, the Court of Appeal disagrees with this as well.

“Because the facts in the indictment, accepted as true, describe a fraudulent scheme prohibited by federal law, Hansmeier cannot succeed in his claim that it is facially insufficient,” the Court notes.

While the order will certainly come as a setback for Hansmeier, the former attorney will likely continue to challenge his prison sentence. Among other things, the dispute about whether or not he can operate a piracy honeypot from prison remains ongoing.

—

A copy of the Eighth Circuit Court of Appeals order is available here (pdf)

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

CDN provider Cloudflare is one of the leading Internet companies, providing services to millions of customers large and small.

The service positions itself as a neutral intermediary that passes on traffic while making sure that customers remain secure. Its userbase includes billion-dollar companies such as IBM, Shopify, and L’Oreal, but also countless smaller outlets.

With a company of this size, it comes as no surprise that some Cloudflare customers are engaged in controversial activities. This includes some pirate sites and services, which have landed Cloudflare in court on several occasions.

Last year there were two prominent cases against Cloudflare in Italy. In the first one, football league Serie A and Sky Italy requested Cloudflare to block the unauthorized IPTV service “IPTV THE BEST” and in a similar case, rightsholders wanted “ENERGY IPTV” blocked.

Cloudflare Appeals Blocking Injunctions

Cloudflare lost both cases and was ordered to block the services in question. While the company hasn’t commented on the legal actions in detail, it decided to appeal the two injunctions at the Milan court.

Last Friday, the court ruled on the “IPTV THE BEST” case, confirming that Cloudflare is indeed required to block access.

In its defense, Cloudflare argued that it doesn’t provide hosting services but merely passes on bits and bytes. In addition, it pointed out that the IPTV service could still remain active even if its account was terminated.

Cloudflare Facilitates Access

The court was not convinced by these arguments and concluded that Cloudflare contributes to the infringements of its customer by optimizing and facilitating the site’s availability.

“It is in fact adequately confirmed that Cloudflare carries out support and optimization activities to showcase sites, which allow the visibility and advertising of illegal services,” the court concluded.

That the IPTV service could continue without using Cloudflare is irrelevant, the court stressed.

In addition, the court confirmed that copyright holders are entitled to these types of protective blocking measures, even if the activity of the online intermediary itself is not directly infringing.

Dynamic Orders

The Milan court reached the same conclusion in Cloudflare’s appeal against the “ENERGY IPTV” injunction, which was decided yesterday. In both cases, the court also confirmed that the injunctions are “dynamic”, which means that if the IPTV services switch to new domains or IP-addresses, these have to be blocked as well.

While the ruling is a setback for Cloudflare, copyright holders are pleased. Attorney Simona Lavagnini, who represented Sky Italy, informs TorrentFreak that it will now be easier to hold online services accountable for infringing customers.

“I am pleased to see the position taken by the Court, confirming that injunction orders can be addressed to all providers involved in the provision of services to those who offer illegal contents on the web.

“This principle is now general and includes telecoms as well as passive hosting providers and other services such as CDNs,” Lavagnini adds.

We also reached out to Cloudflare for a comment on these recent court orders but the company didn’t immediately reply. The CDN provider previously confirmed that it has been legally required to block several domains, without going into further detail.

With regard to earlier blocking orders, Cloudflare said that it complies with these in the relevant jurisdictions. In other words, the targeted services remain available in other countries. Whether that’s also the case here is unknown.

Update: The legal team representing the Lega Nazionale Professionisti Serie A (LNPA), which includes Bruno Ghirardi, Stefano Previti, Alessandro La Rosa, and Riccardo Traina Chiarini, is happy with the outcome and told us the following:

“Cloudflare participates in activities that allow the visibility of the illicit services IPTV THE BEST and ENERGY IPTV – also through the storage of data from these sites – and participates in the flow of data in violation of the rights of LNPA.”

“This implies the legitimacy of targeting Cloudflare as a passive subject of the precautionary order, despite the possibility that, in the absence of Cloudflare’s services, illicit access to the protected content would be also possible.”

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

On 19 January 2012, the United States Department of Justice seized and shutdown Megaupload, a massive cloud-storage site founded by Kim Dotcom.

On the same day, Dotcom and several of his associates were arrested in New Zealand in a military-style raid on his rented mansion, carried out at the behest of US authorities. Ever since, the United States justice system has fought tooth and nail to have Dotcom, Mathias Ortmann, Finn Batato and Bram van der Kolk extradited. That has proven difficult, to say the least.

Unstoppable Force Meets Immovable Object

Whether US or New Zealand authorities expected a monumental fightback from their targets is unknown. But that is exactly what they got. Rather than backing down, Dotcom’s defense team hasn’t given an inch, with every substantial claim challenged in minute detail, and every counterclaim met with the same determination.

As a result, New Zealand’s courts have been kept busy for more than nine years, expending resources on several cases – many involving extradition matters – that are still not over. But while the outcome of this entire process remains uncertain, there can be no doubt over the scale of financial resources poured into the prosecution of Kim Dotcom.

Until now, only estimates of the true costs involved have been aired in public but thanks to an Official Information Act request and data published by NZ Herald ( paywall ), the cost to New Zeland’s taxpayers thus far are now up for scrutiny.

New Zealand’s Bill is Substantial and Growing

Earlier estimates of a few thousand hours spent on various Dotcom-related cases seemed to be within reason. However, the latest published figures show that government lawyers have already spent 40,500 hours working on these cases over the past decade. Or, as NZ Herald frames it, if the lawyers had been working 40-hour weeks, the effort exerted would be 19 years and six months.

Worryingly, that’s not the entire financial picture either. The data shows that on top of the 40,500 hours of government lawyer time, extra costs including external legal work, airfares, and general administration, account for an additional NZ$3.6 million (US$2.6 million) in expenditure.

Allocation of Legal Resources

Government spending on the Megaupload matter reportedly began before Dotcom was even arrested. In preparing the case against him, Crown Law – the office that provides legal advice and representation services to the government – had already spent 432 hours working on the case. Then in 2012, 2013, and 2014, more than 7,000 hours were expended each year dealing with the fallout.

And the fallout has been huge. Dotcom’s cases have expanded into an interconnected web of complex processes, dealing with matters such as illegal spying by government agencies through to the extradition case itself. In 2011, Crown Law was prepared for two proceedings. Since then the tally has grown to almost two dozen.

Goliath versus…Goliath?

That a wealthy Pacific nation can afford to continue with expensive litigation over the course of a decade shouldn’t be a surprise but the fact that it is effectively up against the determination and resources of one man should be pause for thought.

Kim Dotcom has occasionally hinted at the scale of his legal bills since 2012, suggesting that they run into the tens of millions of dollars. How he has been managing to pay those bills after the authorities reportedly seized most of his assets isn’t completely clear but as recently as 2015, he was apparently “ broke and destitute ” and begging the courts for seized assets to be released.

Since then there has been little sign that Dotcom is struggling for cash, with his luxury lifestyle often portrayed on Twitter to the envy of many followers. How much he has spent on lawyers since 2012 isn’t revealed in the latest data but according to NZ Herald’s analysis, matching the New Zealand government’s expenditure would’ve cost Dotcom around NZ$25 million (US$18 million).

Not Over Yet

While Crown Law initially seemed somewhat unprepared for the expansive battle that eventually panned out, the office will have by now got the message that Dotcom isn’t one to back down. Despite all of the money spent on both sides to date, Dotcom is still entrenched in New Zealand and most probably will remain that way for years to come.

Meanwhile, Dotcom is as defiant as ever – both in court and on Twitter, of course.

40,000 hours wasted on this novel bullshit case which makes New Zealand look like an obedient colonial appendix defecating on their own rule of law in exchange for some “brownie points”. Embarrassingly dependent and spineless. But at least I don’t get Covid in New Zealand

— Kim Dotcom (@KimDotcom) February 16, 2021

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

Internet provider Charter Communications is one of several companies being sued for turning a blind eye to pirating subscribers .

The cases, filed by dozens of major record labels and music companies, allege that Internet providers fail to terminate accounts of repeat infringers.

Stakes Are High

These lawsuits are serious business. In 2019, for example, a jury found Cox liable for the infringements of its customers, awarding a billion dollars in damages to several record labels. This decision was confirmed recently but will be appealed.

With the stakes this high, the lawsuit against Charter is being fought tooth and nail by both sides. The ISP has already fought back, arguing that the record label’s takedown notices were abusive and misleading. That effort failed and meanwhile, tensions remain high.

With the trial getting closer the focus has shifted on the core accusations. Over the past two weeks, that resulted in an interesting standoff over P2P piracy including BitTorrent, and whether that is still a problem for the music industry.

P2P is No Longer a Problem

The origin of this issue dates back to a hearing last year over a discovery request from Charter. The ISP requested revenue details from the music companies, with a specific interest in streaming income in recent years.

According to Charter’s attorney Erin Ranahan, this information would be relevant to determine the scale of potential damages, if the ISP is found liable. When P2P piracy is no longer a big issue, the amount could be lower from a deterrence perspective.

While making this argument, the attorney stated that P2P piracy is indeed no longer an issue. Not just that, with help from ISPs the music companies now make lots of money from streaming.

“And just to give you some background, the snippet of time in which this case involves, because of the total length in the claim period, is a time when this P2P issue was at its most pronounced. Today it’s no longer a problem,” Ranahan said.

“Today plaintiffs’ clients are making a ton of money off of the Internet streaming capabilities […]. Charter’s Internet is actually giving them a vehicle by which they make a huge amount of money.”

Music Companies Demand P2P Evidence

This argument wasn’t well-received by the music companies. While other piracy threats may be more prevalent than P2P piracy, they still see it as a major problem.

To back this up with data, the companies sent a series of new requests to Charter asking for information. They want to show that P2P piracy is still a problem and that Charter financially benefits from this infringing activity.

Among other things, Charter was asked to share extensive logs of infringement notices, internal discussions about copyright infringement, as well as monthly revenue statements linked to alleged pirates.

The music companies argue that they need this information to rebut Charter’s claim that P2P piracy is no longer a problem. The ISP could use this claim as a defense during the trial, they fear.

Request Denied, For Now

Charter refused to provide the information and pointed out that the court already denied a similar request in the past. During a hearing two weeks ago, the Special Master agreed with the ISP and denied discovery.

The record labels are not letting the issue go that easily though. This week they were back in court, objecting to the denial. They note that the current request is not related to earlier queries, but is specifically tailored to address the P2P problem comment, which is ‘new’.

“Plaintiffs should be permitted this limited discovery to rebut Charter’s argument that peer-to-peer piracy is no longer a phenomenon to which Charter contributes and which contribution must be deterred,” they argue, hoping to reverse the earlier denial.

The request was submitted a few days ago and the Colorado federal court has yet to decide whether it will reconsider its position or not.

—

A copy of the music companies’ objection to the Special Master’s order denying discovery is available here (pdf)

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

Since 2003, publisher Activision has teamed up with various developers to release Call of Duty games on various platforms. Its longest standing partner is California-based Infinity Ward, whose team was responsible for the 2019 release Call of Duty: Modern Warfare.

Available for Windows, PS4 and Xbox One, Modern Warfare received plenty of praise but not everyone is happy with the end result.

According to a lawsuit filed in a Texas court yesterday, Activision, Infinity Ward (IW), and Major League Gaming Corp (MLG) committed copyright infringement after copying and then passing off a character design as their own.

“Deliberate, Intentional and Comprehensive Copying”

Plaintiff Clayton Haugen describes himself as a writer, photographer and videographer from North Carolina. He is also the copyright owner of two literary works and 22 photographs of a character he named ‘Cade Janus’, the central figure in his story ‘November Renaissance’, which he hoped could be made into a film.

In 2017, Haugen says he hired ‘talent’ (actress, cosplayer, twitch streamer Alex Zedra) to portray ‘Cade Janus’ and took a series of photographs, which together with his story were presented to film studios. In a further promotional effort, the photographs were also published on Instagram and in a series of calendars. It appears that the defendants also became of Haugen’s work.

As part of their hunt for a “strong, skilled female fighter”, the defendant videogame companies (through contractors) allegedly hired the same ‘talent’ (Zedra) and asked her to obtain the same clothing and gear used in the original ‘Cade Janus’ photoshoot from Haugen himself.

The companies also hired the same makeup artist, who was instructed to copy the makeup and hair as depicted in the original photographs, “even using the same hair extension piece.” Haugen further alleges that his original photographs were posted to “the wall of the studio” and used as a framing guide before the model was 3D-scanned.

“To conceal their planned infringement of Haugen’s Cade Janus Photographs and his Cade Janus character, Defendants required the talent and the makeup professional to sign Non-Disclosure Agreements,” the complaint notes.

“The resulting photographs were intended to be, and were, copies of Haugen’s Cade Janus Photographs,” the lawsuit reads.

Infringing Photographs Used to Market Modern Warfare

According to Haugen, the resulting photographs and three-dimensional images were not only used to develop the in-game character ‘Mara’ but also deployed as key assets in Modern Warfare’s marketing campaign.

“With this infringing female character as the centerpiece of an advertising campaign for the first time in the Call of Duty series, [defendants] shattered all previous sales and games-played records. Call of Duty: Modern Warfare has generated more than a billion dollars in revenues,” the lawsuit reads.

Copyright Infringement Claims

As the copyright owner of the works in question, Haugen explains that he has the exclusive right to make copies and derivatives, and the exclusive right of distribution. The lawsuit reveals that while Haugen had copyrights registered for his story back in 2012 and 2013, the Copyright Office only registered his photographs on December 21, 2020, presumably so he could file this complaint.

Haugen says that the character ‘Mara’ is “substantially similar” to his creation ‘Cade Janus’ and provides samples to show that his original photographs were copied during a Modern Warfare photoshoot in 2019.

As a result, Haugen claims that Activision, Infinity Ward and Major League Gaming have infringed and continue to infringe his rights. In the alternative, Activision Blizzard has or has had a financial interest in the infringement of Haugen’s copyrights so can be held vicariously liable for the infringements of the trio.

In a further alternative, the defendants knew that the other defendants and their contractors were infringing and induced and/or encouraged that behavior, making them liable for contributory infringement of Haugen’s rights.

“Haugen is entitled to recover all monetary remedies from Defendants’ infringement, including all of their profits attributable to their infringements, to the full extent permitted by 17 U.S.C. § 504 ,” the complaint concludes, demanding a trial by jury.

The complaint can be found here (pdf)

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

YTS is one of the most popular torrent sites, serving millions of users per day.

All this attention got the site in legal trouble. Various movie companies including the makers of ‘Hitman’s Bodyguard,’ ‘Hunter Killer’ and ‘Mechanic Resurrection,’ took YTS ‘operator’ Senthil Vijay Segaran and the company Techmodo to court.

While lawsuits tend to end badly for pirate sites, these lawsuits turned out differently. All parties agreed to settle the lawsuits , three in total, in change for over a million dollars in piracy damages. The site, however, was allowed to continue and is still online today.

YTS Database

Initially, this was received as great news by the site’s users. However, for some, it turned out to be a disaster. As part of an undisclosed agreement, YTS also shared information from its user database . This was a limited one-time arrangement, we learned from an insider, but one with broad consequences.

After settling the case with YTS, the same movie companies moved on to several users. These film companies had sued BitTorrent users in the past but now they have extra ammunition, including emails, IP-addresses and download logs obtained directly from YTS.

This information was put to use right away. Over the past months, we have reported on several lawsuits where YTS users were targeted, and movie companies also approached alleged pirates out of court by contacting them directly via email . The latter also happened to Colorado residents W. Nelson and R. Flattery.

Settle Or Else

Both were approached with a settlement demand out of court, which they chose to ignore. Perhaps they had hoped the filmmakers would move on to other targets instead, but that was not the case. A few months ago, they were taken to court .

Flattery and Nelson were sued in federal court, where the filmmakers demanded damages. In theory, that could reach $150,000 per copyright infringement, which is many times the offer they first received over email.

In many federal lawsuits against torrent users, the evidence isn’t exactly rock solid. However, with emails and IP-addresses from the YTS database, the movie companies had a much stronger case here. And faced with potentially live-changing damages claims, both defendants have agreed to settle.

Defendants Settle After All

Earlier this week the movie companies asked the court to dismiss the claims against both defendants. Most of the time the settlement agreements remain private but, in this case, they were entered into the court’s records.

Flattery agreed to pay $2,320 in damages to Morgan Creek Productions and admitted to sharing copies of the movie “All Eyez On Me.” He was also accused of sharing several other movies, such as “Lost Child” and “Hunter Killer,” but maintains that this is incorrect.

The settlement amount can be paid off in six months and the movie company offers to waive the final $120 if the defendant pays on time.

Nelson settled with several movie companies, including the makers of “Rambo: Last Blood” and “Hellboy” but no movie titles are mentioned in the agreement. He must pay $10,500.00 in minimum monthly installments of $50.

“Generous” Deal

According to the attorney of the movie companies, both defendants were offered such “generous” deals because COVID already impacted the defendants substantially, suggesting that they lost work.

“These generous arrangements were made in view of the impact the novel coronavirus has had on the employment situation of Defendants and further hardships currently endured by Defendant Nelson,” the attorney writes.

Needless to say, this is a grim ending for the defendants. And the same is true for fellow Coloradoan S. Moody, who settled his case in early November. While they are probably happy to get this burden off their back, it must be strange for them to see YTS continue business as usual.

—

A copy of the letter informing the court about the settlement agreements is available here (pdf)

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

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

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

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

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

YouTube Accuses Plaintiff of Fraud

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

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

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

Plaintiffs and Defendants Are Digging In

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

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

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

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

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

But there are more fundamental issues too.

Zero Copyright Infringement Alleged in Complaint

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

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

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

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

Class Action Unsuited to Copyright Disputes

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

Evidence Preservation

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

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

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

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

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

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

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

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