Earlier this year several of the largest telcos in Canada teamed up with copyright holders to present their plan to tackle online piracy.

United in the Fairplay coalition, Bell, Rogers, and others urged telecoms regulator CRTC to institute a national website blocking program.

The Canadian blocklist should be maintained by a yet to be established non-profit organization called “Independent Piracy Review Agency” (IPRA) and both IPRA and the CRTC would be overseen by the Federal Court of Appeal, the organizations propose.

Over the past several weeks, the CRTC has asked the public for input on the plan. While we have already covered several responses, some notable entries were submitted at the very last minute.

The MPAA and the Premier League, which both applied for court-ordered blockades in the UK, voiced their support, for example. The same is true for ISP Shaw Communications. While Shaw is not part of the Fairplay Coalition it fully supports the site blocking proposal.

“New regulatory tools are needed to provide a comprehensive and coordinated response to combat piracy, and the FairPlay Proposal provides an expeditious, effective, and fair process,” Shaw writes, noting that the proposal doesn’t violate net neutrality.

The Independent Telecommunications Providers Association (ITPA) also chimed in. Representing more than a dozen smaller Internet providers, it takes no position on the merits of the plan, but stresses that copyright holders should pick up the bill.

“The ITPA would object to any regime that imposes costs without a cost recovery mechanism for service providers,” the association writes.

While many ISPs are backing the plan or taking a relatively neutral stance, TekSavvy is among the notable exceptions. The independent company that services more than 250,000 Canadian homes and businesses, says that the proposal would have a major impact.

“If implemented, the Applicants’ proposal for site blocking would fundamentally reshape how Internet services would work in Canada, including the manner in which TekSavvy provides Internet services.”

In a rather dry submission, the Internet provider argues that site blocking violates the Common Carrier doctrine of the Telecommunications Act.

“Rather than advancing the telecommunications policy objectives, the approach proposed in the Application to policing content on the Internet is in direct opposition to many of those objectives,” TekSavvy writes.

The proposal interferes with online traffic, the ISP explains, which could affect network neutrality principles. At the same time, it goes against several policy objectives, including the principle that any regulation should be efficient and effective.

“It is well-documented that blocking individual web sites is difficult and expensive and even so relatively trivial to circumvent,” the ISP notes. “As a result, site-blocking is neither efficient, nor effective.”

As such, TechSavvy argues that the site blocking proposal is not the kind of exceptional circumstance that warrants an exception to the common carrier doctrine.

The ISP is not alone in its critique, as Micheal Geist points out. In addition to its own submission, TekSavvy supports the Canadian Network Operators Consortium’s CNOC intervention, which covers a broad range of issues.

CNOC represents several dozen smaller Telcos and, among other things, it argues in detail that the blocking proposal will be costly but ineffective.

“CNOC is not convinced of the efficacy of FairPlay Canada’s proposal, and, in fact, believes that mandatory website blocking could be circumvented with such ease that expending any resources on it is unlikely to be productive, yet it would impose significant costs on ISPs,” CNOC notes.

The one thing that’s clear following all the submissions is that the CRTC will find it impossible to satisfy all parties. Even the Internet providers themselves have conflicting opinions.

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A copy of Teksavvy’s submission is available here (pdf). ITPA’s letter can be found here (pdf), CNOC’s here (pdf), and Shaw’s submission in favor of the proposal is available here (pdf).

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Speaking at a news conference last month, Japan’s Chief Cabinet Secretary Yoshihide Suga said that the Japanese government is considering measures to prohibit access to pirate sites, initially to protect the country’s manga and anime industries.

“The damage is getting worse. We are considering the possibilities of all measures including site blocking,” he said.

But Japan has a problem.

The country has no specific legislation that allows for site-blocking of any kind, let alone on copyright infringement grounds. In fact, the constitution expressly supports freedom of speech and expressly forbids censorship.

“Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed,” Article 21 reads.

“No censorship shall be maintained, nor shall the secrecy of any means of communication be violated,” the constitution adds.

Nevertheless, the government appears determined to do something about the piracy threat. As detailed last month, that looks like manifesting itself in a site-blocking regime. But how will this be achieved?

Mainichi reports that the government will argue there are grounds for “averting present danger”, a phrase that’s detailed in Article 37 of Japan’s Penal Code.

“An act unavoidably performed to avert a present danger to the life, body, liberty
or property of oneself or any other person is not punishable only when the harm
produced by such act does not exceed the harm to be averted,” the Article (pdf) begins.

It’s fairly clear that this branch of Japanese law was never designed for use against pirate sites. Furthermore, there is also a clause noting that where an act (in this case blocking) causes excessive harm it may lead “to the punishment being reduced or may exculpate the offender in light of the circumstances.”

How, when, or if that ever comes into play will remain to be seen but in common with most legal processes against pirate site operators elsewhere, few turn up to argue in their defense. A contested process is therefore unlikely.

It appears that rather than forcing Internet providers into compliance, the government will ask for their “understanding” on the basis that damage is being done to the anime and manga industries. ISPs reportedly already cooperate to censor child abuse sites so it’s hoped a similar agreement can be reached on piracy.

Initially, the blocking requests will relate to just three as-yet-unnamed platforms, one local and two based outside the country. Of course, this is just the tip of the iceberg and if ISPs agree to block this trio, more demands are sure to follow.

Meanwhile, the government is also working towards tightening up the law to deal with an estimated 200 local sites that link, but do not host pirated content. Under current legislation, linking isn’t considered illegal, which is a major problem given the manner in which most file-sharing and streaming is carried out these days.

However, there are also concerns that any amendments to tackle linking could fall foul of the constitutional right to freedom of expression. It’s a problem that has been tackled elsewhere, notably in Europe, but in most cases the latter has been trumped by the former. In any event, the government will need to tread carefully.

The proposals are expected to be formally approved at a Cabinet meeting on crime prevention policy later this month, Mainichi reports.

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Last year several major record labels, represented by the RIAA, filed a lawsuit against ISP Grande Communications accusing it of turning a blind eye to pirating subscribers.

According to the RIAA, the Internet provider knew that some of its subscribers were frequently distributing copyrighted material, but failed to take any meaningful action in response.

Grande refuted the accusations and filed a motion to dismiss the case. Among other things, the ISP argued that it didn’t disconnect users based on mere allegations, doubting the accuracy of piracy tracking company Rightscorp.

Last week Texas District Court Judge Lee Yeakel decided to dismiss the vicarious copyright infringement claim against Grande. The request to dismiss the contributory copyright infringement claim was denied, however.

With this decision, Judge Yeakel follows the recommendation of Magistrate Judge Andrew Austin. This, despite detailed objections from both the RIAA and the Internet provider.

The RIAA contested the recommendation by arguing that Grande can be held liable for vicarious infringement, as they have a direct financial interest in keeping pirating subscribers on board.

“[C]ase law is clear that direct financial benefit exists where the availability of the infringing material acts as a draw. Grande’s refusal to police its system speaks to the right and ability to control element of vicarious infringement,” the RIAA wrote.

In addition, the RIAA protested the recommended dismissal of the claims against Grande’s management company Patriot Media Consulting, arguing that it played a central role in formulating infringement related policies.

Judge Yeakel was not convinced, however, and concluded that the vicarious infringement claim should be dismissed, as are all copyright infringement claims against Patriot Media Consulting.

For its part, the ISP contested the Magistrate Judge’s conclusion that Rightscorp’s takedown notices may serve as evidence for contributory infringement, noting that they are nothing more than allegations.

“[P]laintiffs do not allege that Grande was willfully blind to any actual evidence of infringement, only to unverifiable allegations of copyright infringement.”

In addition, the Internet provider also stressed that the RIAA sued the company solely on the premise that it failed to police its customers, not because it promoted or encouraged copyright infringement.

Again, Judge Yeakel waived the objections and sided with the recommendation from the Magistrate Judge. As such, the motion to dismiss the contributory infringement claim is denied.

This means that the case between the RIAA and Grande Communication is still heading to trial, albeit on the contributory copyright infringement claim alone.

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More details on the report and recommendation are available in our earlier article. US District Court Judge Yeakel’s order is available here (pdf).

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When PlayerUnknown’s Battlegrounds (PUBG) was first released little over a year ago, it became an instant hit.

Within a month a million copies of the first public beta version were sold and this has since grown to over 28 million copies on the PC alone.

This success earned the company hundreds of millions of dollars in revenue, but according to PUBG, this could have been much more if others hadn’t copied their work.

This week PUBG filed a lawsuit against NetEase, the company behind the mobile games “Rules of Survival” and “Knives Out“, accusing it of copyright infringement, unfair competition and trade dress infringement.

In a complaint filed in a federal court in California, PUBG alleges that the two mobile apps were released before PUBG’s own mobile application to gain market share. In doing so, the company copied several crucial elements without permission, PUBG adds.

The 155-page complaint lists a long summary of elements that PUBG believes are infringing on its copyrighted works. This includes buildings, landscapes, vehicles, weapons, clothing, the pre-play area, and the shrinking gameplay area.

“On information and belief, Defendants copied PUBG’s expressive depictions of the pre-play area where other depictions could have been used for the purpose of evoking the same gameplay experience depicted in BATTLEGROUNDS,” one example reads.

The games also feature PUBG’s iconic “Winner Winner Chicken Dinner” salute, which is displayed to the winner of the game. In addition, both games use references to this phrase in their advertising efforts.

Chicken dinner

These and other similarities are used to confuse the public into believing that the NetEase games are developed by PUBG, the company notes, repeating the same arguments for Rules of Survival (ROS) and Knives Out (KO).

“Defendants intended to create consumer confusion as to the source of ROS and intended to cause consumers to believe, incorrectly, that ROS had been developed by PUBG.”

The company highlights this point by noting that both games are regularly referred to as “PUBG” mobile in the marketplace, suggesting that there indeed is confusion.

PUBG mobile?

In January, PUBG reached out to Apple asking the company to take action against the allegedly infringing applications listed in its iOS store but NetEase denied the allegations.

As a result, the company saw no other option than to file this lawsuit. In addition to monetary damages, PUBG wants both mobile games to be taken offline permanently, to shield the company from further harm.

“PUBG has suffered irreparable harm as a result of Defendants’ infringing activities and will continue to suffer irreparable harm in the future unless Defendants are enjoined from their infringing conduct,” the suit reads.

Specifically, PUBG asks the court to order NetEase “to remove each and every version of the games Rules of Survival, Knives Out, and similarly infringing games, from distribution and to cease developing and supporting those games.”

While it appears obvious that Rules of Survival and Knives Out are inspired by PUBG, it’s up to the court to determine whether the copyright infringement and unfair competition claims hold.

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A copy of PUBG’s 155-page complaint, obtained by TorrentFreak, is available here (pdf). NetEase has yet to respond to the allegations.

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Twelve years ago this October, a court in Denmark ordered a local ISP to begin blocking unlicensed Russian music site AllofMP3. It was a landmark moment that opened the floodgates.

Although most countries took a few years to follow, blocking is now commonplace across Europe and if industry lobbyists have their way, it will soon head to North America. Meanwhile, other regions are getting their efforts underway, with Uruguay the latest country to reserve a place on the list.

The news comes via Fox Sports Latin America, which expressed satisfaction this week that a court in the country had handed down an interim injunction against local ISPs which compels them to block access to streaming portal Rojadirecta.

Despite a focus on Spanish speaking regions, Rojadirecta is one of the best known and longest-standing unauthorized sports in the world. Offering links to live streams of most spectator sports, Rojadirecta has gained a loyal and international following.

This has resulted in a number of lawsuits and legal challenges in multiple regions, the latest being a criminal copyright infringement complaint by Fox Sports Latin America. As usual, the company is annoyed that its content is being made available online without the proper authorization.

“This exemplary ruling marks the beginning of judicial awareness on online piracy issues,” said Daniel Steinmetz, Chief Anti-Piracy Officer of Fox Networks Group Latin America.

“FNG Latin America works constantly to combat the illegal use of content on different fronts and with great satisfaction we have found in Uruguay an important ally in the fight against this scourge. We are on our way to ending the impunity of these illegal content relay sites.”

Fox Sports says that with this pioneering action, Uruguay is now at the forefront of the campaign to tackle piracy currently running rampant across South America.

According to a NetNames report, there are 222 million Internet users in the region, of which 110 million access pirated content. This translates to 1,377 million TV hours per year but it’s hoped that additional action in other countries will help to stem the rising tide.

“We have already presented actions in other countries in the region where we will seek to replicate what we have obtained in Uruguay,” Fox said in a statement.

Local reports indicate that Internet providers have not yet taken action to block RojaDirecta but it’s expected they will do so in the near future.

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