Last month we reported on what appeared to be a relatively straightforward DMCA subpoena application filed by the supervising body and publisher for the Jehovah’s Witness religious group.

After discovering that a number of its video sermons had been uploaded to YouTube, the Watch Tower Bible and Tract Society of Pennsylvania went to court in New York requesting that the video-hosting platform hand over the personal identifying information of ‘JW Apostate’, the operator of the channel of the same name.

Watch Tower told the court that it had fulfilled all the requirements for obtaining a subpoena and its sole purpose was to “obtain the identity of an alleged infringer or infringers” so that its copyrighted content could be protected. The subpoena was granted but before YouTube could hand over any information, a rather angry and apparently motivated individual stepped in.

In a motion to quash, Jane / John Doe – who identifies as a “noted author and journalist” – told the court that the DMCA subpoena application amounted to an illegal attempt by the religious group to violate the First Amendment rights of journalists by attempting to obtain information about confidential sources. From here, however, the objections became rather more personal.

“[T]he Court utterly failed in its duty to balance the interests of news reporters from stupid fishing expeditions by angry pedophile and pedophile enablers in its hurried effort at rubber stamping whatever documents are handed to the Court in an effort by this judge to appease stupid religious cults who live in her neighborhood,” the motion continued.

“The Watchtower Bible and Tract Society is no stranger when it comes to DMCA subpoena applications or indeed Judge Seibel. The religious cult has attempted to obtain several subpoenas in New York courts against Facebook and YouTube users, filing around 60 applications overall since June 2017. This is complete BULLSHIT(to use a legal term).”

A little under two weeks later, Watch Tower attorney Paul Polidoro filed an opposition to the motion to quash, noting that Watch Tower had applied to the US Copyright Office for registration of all of the allegedly infringed works, citing the registration or application numbers for each.

Polidoro further noted that YouTube-owner Google had advised him that until the court ruled on the matter, no identifying information would be handed over.

“JW Apostate (hereinafter ‘Movant’) posted a number of Watch Tower’s complete videos. There were no transformative efforts made in these postings. Rather, as is clear from the motion, he/she asserts the right to unfettered use of Watch Tower’s corporate intellectual property,” Polidoro wrote.

“The filthy diatribe he/she submitted claims this right is grounded in reporter’s shield laws, and the First Amendment right to anonymous speech. As both arguments are without any legal support, his/her motion should be dismissed.

“Movant also seeks refuge in the right of anonymous speech. The law in this circuit is clear: there is no right to anonymously infringe copyrights,” the attorney added.

Late last week, Jane / John Doe hit back in a new filing which describes the Jehovah’s Witnesses as a “notorious group of criminal pedophiles running a scam ‘religion’ who are guilty of abuse of process and emotional extortion through sham litigation in their pathetic efforts at discovering leaks and moles and whistleblowers.”

“Unfortunately for them,” the filing continues, “this is the year 2020 and things like VPNs, anonymous proxies, and TOR exit nodes frustrate them at every turn.”

With those claims out of the way, the Doe movant states that Watch Tower does not have a valid copyright claim for any of the videos allegedly made available via YouTube because the necessary registration process wasn’t completed before legal action was taken.

Furthermore, the movant alleges that the videos posted were either “secret recordings” or “edited videos” which only displayed material in such volumes necessary to “inform the public about these anti-government, child molesting religious fanatics.”

In a quite extraordinary filing, the movant makes additional, and at this stage totally unsupported, claims about the relationship between Watch Tower’s attorney and the presiding judge, suggesting that a friendship might be undermining the judicial process.

“The whole point of this response, Judge Seibel, is to get you to think first before you pull out your rubber stamp when these assholes show up on your doorstep hollering about alleged copyright violations,” the anonymous movant continues.

“Lives are at stake here in what you do, Judge Seibel. You need to be more cognizant of the fact that these people are a bunch of damn liars, pedophiles, and bullies.”

Given the outrageous tone of the filings objecting to Watch Tower’s demands for a DMCA subpoena, one could be forgiven for thinking that Judge Seibel might not respond as the movant might’ve hoped. However, the Judge now appears to be taking the objections seriously.

In initial comments, Judge Seibel rejects the notion that the movant is being asked to reveal a journalistic source. She further states that the First Amendment does not protect acts of copyright infringement. However, the claim that Watch Tower keeps requesting DMCA subpoenas appears to have piqued her interest.

“[M]ovant challenges the good faith of Watchtower’s representation that its purpose in seeking a DMCA subpoena is solely to identify a potential defendant for a copyright infringement action, alleging that Watchtower has invoked the [sic] 59 times without ever then bringing such a lawsuit,” Judge Siebel writes.

“The Court can imagine reasons for that fact (if it is a fact) that do not evidence lack of good faith, but Watchtower should address (by declaration or affidavit of someone with knowledge) whether it is true, and if so, why I should not conclude that it evidences lack of good faith.”

Furthermore, the Judge also wants to get a closer look at what content was obtained and the context in which it was posted to YouTube. This is important because, under certain circumstances, there may not have been any infringement at all.

“Watchtower suggests that Movant posted full videos produced by Watchtower. Movant says he posted: 1) ‘undercover’ videos of meetings, in which (he suggests) Watchtower would have no copyright rights; and 2) portions of videos produced by Watchtower, which (he implies) would be fair use because it was part of criticism,” the memo reads.

“Accordingly, Watchtower should address (by declaration or affidavit of someone with knowledge) what exactly it claims was infringed by Movant and how,” Judge Siebel concludes.

DMCA subpoena applications are usually open-and-shut cases but at least in this instance, the evidence will now be subjected to additional scrutiny. Where that will lead is open to question but determining fair use is often a complex not to mention expensive matter.

The various filings can be found here 1,2,3,4 (pdf)

Image credit: Pixabay

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The Senate Judiciary Subcommittee on Intellectual Property is actively looking for options through which the US can better address online piracy.

During a hearing last month, various experts voiced their opinions. They specifically addressed measures taken by other countries and whether these could work in the US, or not.

Pirate site blocking and upload filtering emerged as the main topics during this hearing. While pros and cons were discussed, movie industry insiders including Millennium Media co-president Jonathan Yunger framed these measures as attainable and effective.

After the hearing, senators asked various follow-up questions on paper. Last week we reported how former MEP Julia Reda answered these by stressing the importance of affordable legal options. Yunger, however, takes another approach.

In his answers, which were published before the weekend, he reiterates the power of website blocking. In addition, Yunger also brings a second, previously unmentioned issue to the forefront: criminal penalties for streaming piracy.

“The second thing that we could easily do in the United States is close the legal loophole that currently allows streaming – which accounts for the vast majority of piracy today – to be treated as a misdemeanor rather than a felony,” Yunger writes.

Under US law, streaming and downloading piracy are seen as two different offenses. Not just from a technical point of view, but also in the way they are punished. Streaming is seen as a misdemeanor, with a maximum penalty of one year in prison, while other forms are a felony, which can lead to five years of jail time.

Lawmakers tried to change this with the Commercial Felony Streaming Act in 2011, and later with the SOPA and PIPA bills. These bills all failed and as a result the gap between streaming and traditional file-sharing remains today.

In his answers, Yunger notes that ‘this loophole’ was completely accidental as streaming wasn’t a thing yet when the DMCA was enacted. Putting it on par with other forms of piracy would greatly help to address the streaming piracy problem.

“If we could make this adjustment to the law, it would effectively shut down a cottage criminal industry of websites, app developers, and set top box sellers in America who are profiting enormously from illegal streams of movies, television shows, and live events,” Yunger notes.

“These streaming services are an existential threat to our industry. Both the Department of Justice and the Copyright Office have recognized this threat to creativity and the American economy and have supported this change to the law,” he adds.

Millennium Media’s co-president says that there are dozens, if not hundreds, of Americans who’ve made a business out of criminal streaming. This isn’t a surprise for the Department of Justice. However, it’s harder to effectively prosecute these people under current law.

“We must change existing law to create a more powerful deterrent for Americans to engage in streaming piracy, and to allow the DoJ to prosecute these criminals who are engaged in massive levels of infringement with the same felony penalties that apply to illegal downloading and distribution,” Yunger notes.

These comments are not entirely new. Several copyright holders and industry groups have argued the same in recent years. Thus far, this hasn’t resulted in any legislative changes, but it looks like pressure is building.

In a way, it feels like history is repeating itself. Almost ten years ago, the same arguments were being made. At the time, website blocking and felony steaming made their way into concrete bills. These were eventually ‘shelved’ after massive public protests, but according to Yunger and others, it might be a good idea to reintroduce them, perhaps in a more modern form.

—

A copy of Jonathan Yunger’s full responses to the Senator’s questions is available here (pdf).

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This week we have two newcomers in our chart.

Bad Boys for Life is the most downloaded movie.

The data for our weekly download chart is estimated by TorrentFreak, and is for informational and educational reference only. All the movies in the list are Web-DL/Webrip/HDRip/BDrip/DVDrip unless stated otherwise.

RSS feed for the articles of the recent weekly movie download charts.

This week’s most downloaded movies are:

Movie Rank	Rank last week	Movie name	IMDb Rating / Trailer
Most downloaded movies via torrents
1	(7)	Bad Boys for Life	7.1 / trailer
2	(5)	The Gentlemen	8.0 / trailer
3	(1)	Bloodshot	5.7 / trailer
4	(…)	Underwater	5.9 / trailer
5	(2)	Birds of Prey	6.3 / trailer
6	(…)	Sonic The Hedgehog	6.6 / trailer
7	(3)	Onward	7.6 / trailer
8	(6)	Star Wars: Episode IX	6.8 / trailer
9	(10)	The Call of the Wild	6.8 / trailer
10	(4)	The Invisible Man	7.4 / trailer

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Web-based streaming, torrent, and direct download sites have been targeted by the entertainment industries for years but the rise of subscription-based IPTV services is now considered a major threat to business.

These services, available for a relatively small monthly outlay, can (reliability permitting) not only replace licensed TV packages but also video-on-demand services such as Netflix and Amazon Prime Video. Considering the broad range of content on offer, they also compete with physical blu-ray sales and even titles still in their theatrical windows.

Perhaps one of the best-known IPTV brands in this space is Nitro TV / Nitro IPTV but whether that will remain the case in the weeks and months to come remains to be seen. Late Friday a coalition of entertainment industry companies filed a lawsuit against Alejandro Galindo, the supposed operator of Nitro TV, plus an additional 20 ‘Doe’ defendants.

Filed in a California district court by companies owned by Columbia, Amazon, Disney, Paramount, Warner, and Universal, the lawsuit alleges that Nitro TV offers subscription packages consisting of thousands of “live and title-curated television channels” available twenty-four hours a day, seven days a week, throughout the United States and abroad.

“The channels available on Nitro TV include many of the world’s most popular television programs and motion pictures such as The Office, Spider-Man: Homecoming, Toy Story 3, Star Trek Beyond, Homecoming and Joker, including works whose copyrights Plaintiffs own or exclusively control,” the complaint reads.

“Plaintiffs and/or their affiliates have invested and continue to invest substantial resources and effort each year to develop, produce, distribute, and publicly perform their Copyrighted Works through legitimate market channels that in aggregate create a content ecosystem that is safe and reliable for consumers.

“Defendants’ unlawful conduct in operating Nitro TV directly and willfully subverts that ecosystem through pursuit of illicit profits from massive and blatant infringement of Plaintiffs’ Copyrighted Works,” it continues.

Noting that the service can be accessed via the web, mobile devices, and smart TVs, the lawsuit continues with an overview of the Nitro TV business model.

At least in part, marketing is carried out via a Facebook group, with defendant Alejandro Galindo the alleged administrator. This group is described as a platform to promote Nitro TV subscriptions, with Galindo accused of using it to induce, encourage and facilitate infringement. It also doubles as a way to expand the number of individuals re-selling Nitro TV packages to end-users.

“Among other things..[.]..Defendants used this Facebook group platform to inform subscribers of Nitro TV’s new channels and program offerings, to provide subscribers with updates about the Nitro TV Platforms, and to invite subscribers to post on the Nitro TV Facebook Group page the TV shows they wanted added to Nitro TV,” the companies add.

According to the complaint, the website TekkHosting.com is the “primary interface” through which users can obtain Nitro logins, which are acquired in one of two ways – either via a direct purchase or from a Nitro TV reseller. These resellers, which are essentially middle-men, buy ‘credits’ from Nitro which are then converted into end-user accounts, “typically” sold for $20 per month for two devices.

“One of Defendants’ resellers recently boasted about the success of his resell efforts: ‘Over 45,000 customers activated in the last 12 months.’ That is just one Nitro TV reseller. There are scores of them,” the complaint notes.

Once signed up, these customers are able to access an expansive service offering thousands of channels and video-on-demand libraries via convenient interfaces.

“The live television channel offerings are streamed contemporaneously with the original source of the telecast. In other words, the television program airing on a television channel (e.g., FX, the Disney Channel, Paramount Network) through an authorized source (e.g., a cable operator, satellite TV provider) is available on the Nitro TV Platforms at the same time. Many of these television channels include the Copyrighted Works.” (sample below)

While “thousands” of live channels being made available without the appropriate licensing is clearly contentious, at this stage this aspect doesn’t appear central to the complaint. Instead, it focuses on Nitro’s VOD services and so-called ’24/7′ channels.

Nitro subscribers have the ability to select a ‘catch up’ feature through which they are able to watch shows that aired during the previous two days, on Disney Channel or Paramount Network, for example. This type of VOD service, the lawsuit claims, is “only possible by copying the programming.”

24/7 channels are offered by many IPTV services and usually consist of episodes of a single show or even a single movie played on a continuous loop. By way of example, the lawsuit highlights Peaky Blinders and Friends fin the TV category and Spider-Man and Captain America in the movie section.

Given the reach and scale of the Nitro service, the movie and TV companies believe that it not only undermines their business models but also those of their partners. These include legitimate online services that pay for licenses to show content that Nitro is obtaining for free.

“This unfair competition undermines the legitimate market for content streamed over the Internet, which is a robust and growing part of Plaintiffs’ businesses and an important option to many consumers,” they add, noting that Nitro is creating confusion in the market by misleading people as to what is legal and what is not.

“Nitro TV subscribers and potential subscribers may mistakenly view Nitro TV as a legal and sanctioned alternative to authorized distribution outlets and licensees, when it is not. This harms the market for legitimate services by drawing users away from Plaintiffs’ legitimate licensees.”

Alleging willful direct copyright infringement, the movie and TV company plaintiffs demand either damages and defendants’ profits in amounts to be proven at trial or statutory damages up to $150,000 per infringed work.

Addressing the possibility that Nitro may claim that it is third-parties that are responsible for violating performance and reproduction rights under the Copyright Act, the companies note that the defendants are still “knowingly and materially contributing to such infringement” so are liable for contributory copyright infringement. As such, the plaintiffs are able to claim damages and Nitro’s profits or statutory damages of up to $150,000 per infringed work.

The complaint further alleges that Nitro and the Doe defendants intentionally induce infringement by “supplying and promoting the use of the Nitro TV Platforms to connect customers to unauthorized online sources that stream Plaintiffs’ copyrighted works, and by actively inducing, encouraging, and promoting the use of Nitro TV for copyright infringement.” Again, statutory damages of up to $150,000 are requested.

Finally, the lawsuit demands preliminary and permanent injunctions not only against all defendants, but also third-party companies.

They include Namecheap and Domain.com, the domain registrars for Tekkhosting.com and NitroIPTV.com respectively. It is requested that they maintain “unchanged” WHOIS records for the domains, change their name-servers to those controlled by the plaintiffs, prevent the transfer of the domains, and preserve all evidence relating to them.

Ultimately, the movie and TV show companies seek to take control of all Nitro domain names.

The full complaint plus sample movie and TV show list can be obtained here and here (pdf)

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MG Premium, the adult entertainment giant behind brands including Reality Kings, Brazzers, MOFOS, Babes.com, and Twistys, appears to be increasing the pressure on sites that allegedly distribute its content without permission.

As previously reported, one of those targets is the massive adult tube site YesPornPlease. This February, MG Premium filed a full-blown lawsuit against the site in a Washington court, potentially worth hundreds of millions of dollars. However, the action began months earlier with a DMCA subpoena directed at Cloudflare.

Through processes like this, MG Premium hopes to obtain crucial identifying information about site operators and/or uploaders. At US courts this week, MG Premium made several similar requests targeting additional adult domains, all of which use the services of Cloudflare.

The first pair of subpoenas, filed at a Washington district court, target YesPornPlease.biz and YesPornPlease.best. Whether these are directly connected to MG’s earlier target isn’t made clear in the applications but the nature of the action is obvious.

“MG is the owner of numerous copyrighted audiovisual works. In the course of protecting its works, MG has determined that infringing copies of these works, posted at the direction of individual users and without authorization from MG, appear on Cloudflare, Inc.’s website ‘yespornplease.biz’,” one of the applications reads.

MG notes that it has been sending DMCA infringement notices to Cloudflare but it is now applying for a DMCA subpoena to obtain the identity of the individuals “who are posting the infringing content.” A closer examination of the wording in the subpoena shows that this can easily extend to the site’s operators too.

“For the period January 1, 2016 through the present, produce all documents and account records that identify the person(s) or entities that caused the infringement of the material described in the attached Exhibit B DMCA notifications to the DMCA Agent for Cloudflare, Inc., and/or who unlawfully uploaded MG Premium Ltd’s copyrighted works at the URLs listed in the notifications, including but not limited to identification by names, email addresses, IP addresses, user history, posting history, physical addresses, telephone numbers, and any other identifying information,” the request reads.

An almost identical application seeks the same information relating to alleged infringers at YesPornPlease.best, a domain that appears to have been put into use around October last year.

A third application, which in most key respects is a copy of the others, targets PornDish.com. At the time of writing and according to SimilarWeb stats, this ‘tube’ site receives just under three million visits per month. Right on its front page it states that visitors can “Watch full premium Sis Loves Me, Brazzers, RealityKings, Teamskeet, Naughty America 2020 HD videos online for free!”, which is probably why MG Premium is interested in the site.

Yet another subpoena application, again filed at a Washington district court, demands the same information relating to watchxxxfree.org. According to traffic statistics, the site didn’t get any significant traction until December 2019 but steep gains since then now mean it’s pulling in around 1.4 million visits per month. This domain triggered malware warnings several times (apparently due to different threats) during our investigation so we backed away carefully.

XTapes.to, another MG Premium target, was also the subject of a cookie-cutter DMCA subpoena this week. With around 3.8 million visits in February, it’s bigger than the also-targeted XMoviesForYou.video but, unlike the latter, didn’t cause MalwareBytes to light up in panic.

Finally, MG Premium also fired off a subpoena application listing a domain called ‘PornForDays.net’ as infringing its rights. Sadly, this had us running round in circles because there is no site of that name and the domain is yet to be registered.

After closely examining additional paperwork, however, it became clear that this was in fact an error by MG Premium’s law firm. The correct domain should have been listed as the 2.9 million visits per month tube site Porn4Days.net, which also triggered malware warnings during our checks.

Where these cases will go from here remains to be seen but if MG Premium’s action against YesPornPlease is any indicator, more lawsuits could appear on the horizon.

The DMCA subpoena applications can be found here (1,2,3,4,5,6,7 (all pdf))

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