Monthly Archives: June 2016

MPAA’s Domain Name ‘Policing’ Results in First Suspensions

mpaaIn recent years various entertainment industry groups have switched their efforts away from legislation, towards voluntary cooperation with various stakeholders.

This has resulted in several agreements with Internet providers, advertising agencies and payment processors, which are all designed to help prevent piracy.

A few months ago this strategy was expanded to cover key players in the domain name industry. In February, the MPAA and the Donuts registry signed a landmark agreement under which the movie industry group acts as “trusted notifier” of “pirate” domains.

Traditionally, it has been very hard for rightsholders to get domain names suspended without a court order, but through voluntary agreements this process is simplified.

A few months have passed since the initial announcement and according to the domain registry the first results are positive.

The MPAA referred the first three domain names to Donuts in March. After a careful inspection, the registry agreed that the associated sites were indeed linked to illegal downloading or streaming.

“We concluded that the first two were identical to well-known pirated content websites, which were subjects of prior court orders and were illegally streaming and providing downloads of movies, including those still in theaters. The third was dedicated to illegally downloading and live streaming television series,” Donuts notes.

In response, Donuts alerted the responsible domain name registrars about the infringing conduct, paired with a request to inform the persons who registered the domains.

This eventually resulted in two domain name suspensions on the registrar level. In the third case the site’s hosting provider took the site offline.

Neither Donuts nor the MPAA have published the targeted domain names. However, additional research reveals that the Donuts domain Primewire.guru was suspended recently, which fits the profile.

Primewire.guru, now suspended

primewireguru

A few weeks after the first reports, MPAA submitted another set of three “allegedly infringing” domain names. In two of these cases Donuts agreed that the sites were violating their abuse policies, and after the registrants failed to reply, the domains were suspended.

The third domain name, which remains unnamed, is dedicated to streaming TV series. However, after discussions with the registrar and the owner of the domain, no direct action was taken. The domain owner apparently argued that the site complies with takedown requests, so Donuts says that further investigation is needed to make a final decision.

While the MPAA’s efforts have resulted in some suspensions, there are still several “pirate” sites online with Donuts managed domains. This includes domains with the prominent .movie TLD, so there’s still plenty of policing to do.

From the registry point of view Donuts is satisfied with the progress so far. They are happy to contribute in the “continuing battle against pervasive illegal online piracy” but stress that they aren’t suspending domains names on a whim.

“Donuts has been extremely careful in balancing the rights of its end-user customers along with those of copyright holders. We continue to believe this is a useful and efficient manner for addressing blatant online piracy, and we encourage others in the domain name community to follow suit with similar programs,” the registry concludes.

The MPAA’s Chief of Global Content Protection, Dean Marks, agrees and hopes that more domain name registries will come onboard in the near future.

In addition to the deal with Donuts, the MPAA also signed a similar agreement with Radix, Asia’s largest new gTLD applicant. Whether more registries will follow in the future has yet to be seen.

Landmark Piracy Trial Suspended Pending EU Ruling

pirate-cardFollowing successful prosecutions of torrent site operators such as those behind The Pirate Bay, Sweden has turned to the increasing problem of online streaming.

Cases involving streaming sites are relatively rare and as a result, case law is thin on the ground. Nevertheless, last year Swedish authorities felt confident enough to close down the country’s most popular streaming site.

Founded half a decade ago, Swefilmer took advantage of increasing trends towards browser-based viewing of pirate content. In addition to convenience and a non-existent learning curve, advanced users were also attracted to the perceived security benefits of streaming platforms.

Swefilmer gained significant traction but that came to an end last summer when one of the site’s operators was arrested and detained for 90 hours.

That was followed this year by the detention of the site’s main operator in Germany, following the execution of a secret European arrest warrant.

As reported last week, the men – aged 22 and 25 – were recently prosecuted. Together they face charges of facilitating copyright infringement of more than 1,400 movies alongside penalties of $1.7m.

Swefilmer’s primary operator also stands accused of aggravated money laundering offenses related to his handling of the site’s finances.

The Swefilmer case is one of the most important prosecutions in Sweden’s piracy crackdown history and this week the trial began as planned. Entertainment giants including Disney, Sony, Warner, Universal and Fox lined up Tuesday to take down their adversaries, but things didn’t go to plan.

Rather than the relatively open-and-shut case anticipated by the prosecution, after just a few hours a decision was made to suspend the case.

“We asked the court to seek a preliminary ruling from the European Court of Justice, and we got what we wanted,” says Claes Kennedy, the lawyer representing the 22-year-old.

While Kennedy’s client admits to having been involved in the operation of Swefilmer, all along he has maintained that his actions did not amount to a crime. Why that might indeed be true lies in a case currently in the hands of the ECJ.

The case deals with a dispute between Dutch blog GeenStijl.nl and Playboy. In 2011, GeenStijl published a post linking to leaked Playboy photos, which were stored on file-hosting platform FileFactory.

Although Playboy publisher Sanoma successfully requested the removal of the photos from FileFactory, GeenStijl continued to link to other public sources where the images were still available. This, Sanoma argued, amounted to infringement.

A Dutch Court subsequently asked the EU Court of Justice to rule whether those links could be seen as a ‘communication to the public’ under Article 3(1) of the Copyright Directive of the Copyright Directive, and whether they facilitated copyright infringement.

Earlier this year, Advocate General Melchior Wathelet delivered his advice to the ECJ, noting that in his opinion “linking” is not the same as “making available” – that would only apply to the original uploader. That means that GeenStijl’s acts of linking would not amount to infringement, the ECJ summarized.

“Hyperlinks which lead, even directly, to protected works are not ‘making them available’ to the public when they are already freely accessible on another website, and only serve to facilitate their discovery,” the EU Court of Justice wrote.

The Advocate General’s advice is not binding, but the ECJ often gives significant weight to this kind of expert opinion. The final verdict is expected to be released later this year and Claes Kennedy is hoping for a positive outcome for his client.

“What we know so far, is that linking to another website is not to be considered the same as making available to the public. But we are waiting for a decision from the EU Court,” Kennedy says.

So for now the Swefilmer trial is on hold, initially until September but potentially later depending on when the ECJ hands down its ruling. Whenever it arrives the decision will have implications way beyond this case and right across Europe.

We’re Not Liable for Pirating Subscribers, Windstream Tells Court

pirate-runningCan an Internet provider be held liable for subscribers who share pirated files? Yes, a Virginia federal jury ruled late last year.

This verdict caused shockwaves in the ISP industry when several companies suddenly realized that they could become the next target.

With 1.1 million subscribers in the United States, Windstream is one of the ‘candidates.’ The company is well aware of this risk but instead of waiting around the ISP is taking the initiative.

This week Windstream filed a complaint for declaratory judgment at a New York District Court, directed against music rights group BMG and its anti-piracy partner Rightscorp.

For several years BMG has accused Windstream and its subscribers of various copyright infringements. The notices they send are issued by the monitoring outfit Rightscorp and often come with a settlement demand for the account holders.

Windstream, however, says that it’s not in any way obligated to forward these notices to the subscribers in question. Instead, the ISP points out that it’s a mere conduit for Internet services.

“Similar to other ISPs, Windstream only provides Internet connectivity, making it a mere conduit for the transmission of Internet services,” Windstream writes in its complaint.

“As a pipeline to the Internet, Windstream does not monitor or otherwise control the manner in which its subscribers utilize their Windstream Internet connection and does not initiate, control, select or modify the material or content transmitted by Windstream subscribers over Windstream’s network.”

According to the ISP, the notices sent by Rightscorp also lack sufficient information to prove that actual copyright infringements have taken place by their customers.

“Defendants have no direct evidence that any Windstream subscriber is engaged in direct copyright infringement and Windstream, as a mere conduit for the transmission of Internet services, cannot be held liable for direct copyright infringement,” the complaint reads.

nodirwind

Windstream previously made its position clear to both BMG and Rightscorp and tried to come to a resolution, but that didn’t stop more notices being sent to the ISP.

Instead, the companies maintain that Windstream is liable for contributory and vicarious copyright infringement, and accuse it of failing to disconnect repeat infringers.

“Defendants claim that Windstream’s knowledge and allowance of unchecked infringement on its network makes Windstream liable for secondary copyright infringement and actual or statutory damages as high as $150,000 per infringed work.”

These allegations go way too far, Windstream believes. As a result, the company is seeking a judgment declaring that it’s not liable for the infringing actions of its subscribers under the DMCA’s safe harbor provisions, among other things.

“Defendants have no direct evidence that any Windstream subscriber engaged in direct copyright infringement and Windstream, as a mere conduit for the transmission of Internet services, cannot be held liable for direct copyright infringement,” they write.

In addition, the ISP says that it doesn’t authorize, direct or encourage its subscribers to pirate anything. Nor does it profit from the alleged copyright infringements that may take place on their network.

With this lawsuit Windstream hopes to obtain legal clarity on several key issues. Aside from the broader liability question, the ISP also asks the court to declare that it’s not required to comply with or respond to Rightscorp’s notices at all, under the DMCA.

Windstream’s lawsuit is similar to the one filed by RCN earlier this month, although the latter doesn’t include Rightscorp as a defendant. These are likely to be followed closely by the larger ISPs, as the outcomes will have a major impact on the industry.

The full complaint is available here (pdf).

DMCA Notices Nuke 8,268 Projects on Github

githubWithout a doubt, Github is a huge player in the world of coding. The platform is the largest of its type in the world with the company currently reporting 15 million users collaborating across 38 million repositories.

As the development platform used by file-sharing projects including the infamous Popcorn Time, Github appears a few times a year here on TF. Those appearances are often due to various types of copyright disputes, from allegedly infringing projects to allegedly stolen code.

When it comes to Github copyright complaints, those reported here are the tip of a vast iceberg but thanks to the transparency report just published by the company, we now have a much clearer idea of the numbers involved.

“In 2015, we received significantly more takedown notices, and took down significantly more content, than we did in 2014,” Github reports.

Last year the company received just 258 DMCA notices, with 17 of those responded to with a counter-notice or retraction. In 2015, that number jumped to 505 takedown notices, with just 62 the subject of counters or withdrawals.

githubdmca1

But while tracking and reporting the numbers of DMCA notices is useful, the numbers shown above obscure a more serious situation. Copyright holders are not limited to reporting one URL or location per DMCA notice. In fact, each notice filed can target tens, hundreds, or even thousands of allegedly infringing locations.

“Often, a single takedown notice can encompass more than one project. We wanted to look at the total number of projects, such as repositories, Gists, and Pages sites, that we had taken down due to DMCA takedown requests in 2015,” Github writes.

When processed, a much bigger picture was revealed.

githubdmca2

By any measure, September 2015 was a particularly active month and this naturally raised alarm bells at Github. Upon investigation, it became clear that the company had received DMCA notices that targeted many repositories all at once.

“Usually, the DMCA reports we receive are from people or organizations reporting a single potentially infringing repository. However, every now and then we receive a single notice asking us to take down many repositories,” Github explains.

“We classified ‘Mass Removals’ as any takedown notice asking us to remove content from more than one hundred repositories, counting each fork separately, in a single takedown notice.”

When these type of notices are withdrawn from the report, Github says that DMCA notice frequency normalizes across the year, but nevertheless they still represent a significant proportion of the notices received. (A ‘Frequent Noticer’ is someone who sends more than four notices in a year)

githubdmca3

“While 83% of our 505 DMCA takedown notices came in from individuals and organizations sending requests to take down small numbers of repositories, the remaining 17% of notices accounted for the overwhelming majority of the content we actually removed,” Github says.

“In all, fewer than twenty individual notice senders requested removal of over 90% of the content GitHub took down in 2015.”

Finally, Github provides detail on important issues surrounding user privacy, which mainly affects those who maintain projects that are likely to attract legal attention.

In 2014, Github received a total of 10 subpoenas relating to projects it hosts. Last year that grew to 12 and in total the company handed over information in 83% of cases.

However, due to gagging orders, affected users were only given notice in just 30% of cases. Github received seven gag orders in 2015, up from four in 2014.

Finally, Github touches on the issue of National Security Orders.

“We are not allowed to say much about this last category of legal disclosure requests, including national security letters from law enforcement and orders from the Foreign Intelligence Surveillance Court,” the company writes.

“If one of these requests comes with a gag order — and they usually do — that not only prevents us from talking about the specifics of the request but even the existence of the request itself.”

To that end, Github ‘reveals’ that it received somewhere between zero and 249 National Security Orders in 2015. The full report is available here.

Game of Thrones Piracy Peaks After Season Finale

got6Traditionally, the Game of Thrones season finale is among the most viewed episodes of the season, also on pirate sites.

With the Internet abuzz over the latest plot twists and turns, many people turned to torrent sites to grab a pirated copy of the show.

The first episodes appeared online shortly after the official broadcast ended and at the time of writing more than 350,000 people are actively sharing a copy. This is the highest number we’ve seen this year.

Data gathered by TorrentFreak estimates that after just eight hours, well over a million people have already downloaded the final episode of this season via BitTorrent. Millions more are expected to follow during the days to come.

The most popular release is currently an HD version of little over a gigabyte. This is different from previous years, when SD copies were consistently the most downloaded of all.

While the demand is significant, there is no all time “swarm record” to report. Also, the overall download numbers appear to be roughly on par with previous years, perhaps a bit lower.

Although it’s too early to jump to conclusions, there are a few explanations why Game of Thrones piracy might no longer be growing, via torrents at least.

For one, the number of legal alternatives have been growing steadily in recent years. Also, the same is true for “unauthorized” streaming sites where people can view pirated copies of Game of Thrones episodes instantly.

Another factor may be that HBO significantly cranked up its enforcement efforts this year. As a result, it is quite hard, or impossible, to find recent Game of Thrones episodes on some popular torrent sites.

The “disappearing” torrents also lead to scattered swarms, making it harder to break the previous record. Time will tell how this apparent trend develops during the years to come.

That said, it is worth keeping in mind that interest in the show still dwarfs the competition. This means that there is little doubt that it will be crowned the most downloaded TV show for the fifth year in a row.