Late 2017, Boing Boing co-editor Xena Jardin posted an article in which he linked to an archive containing every Playboy centerfold image to date.

“Kind of amazing to see how our standards of hotness, and the art of commercial erotic photography, have changed over time,” Jardin noted.

While Boing Boing had nothing to do with the compilation, uploading, or storing of the Imgur-based archive, Playboy took exception to the popular blog linking to the album.

Noting that Jardin had referred to the archive uploader as a “wonderful person”, the adult publication responded with a lawsuit (pdf), claiming that Boing Boing had commercially exploited its copyrighted images.

Last week, with assistance from the Electronic Frontier Foundation, Boing Boing parent company Happy Mutants filed a motion to dismiss in which it defended its right to comment on and link to copyrighted content without that constituting infringement.

“This lawsuit is frankly mystifying. Playboy’s theory of liability seems to be that it is illegal to link to material posted by others on the web — an act performed daily by hundreds of millions of users of Facebook and Twitter, and by journalists like the ones in Playboy’s crosshairs here,” the company wrote.

EFF Senior Staff Attorney Daniel Nazer weighed in too, arguing that since Boing Boing’s reporting and commenting is protected by copyright’s fair use doctrine, the “deeply flawed” lawsuit should be dismissed.

Now, just a week later, Playboy has fired back. Opposing Happy Mutants’ request for the Court to dismiss the case, the company cites the now-famous Perfect 10 v. Amazon/Google case from 2007, which tried to prevent Google from facilitating access to infringing images.

Playboy highlights the court’s finding that Google could have been held contributorily liable – if it had knowledge that Perfect 10 images were available using its search engine, could have taken simple measures to prevent further damage, but failed to do so.

Turning to Boing Boing’s conduct, Playboy says that the company knew it was linking to infringing content, could have taken steps to prevent that, but failed to do so. It then launches an attack on the site itself, offering disparaging comments concerning its activities and business model.

“This is an important case. At issue is whether clickbait sites like Happy Mutants’ Boing Boing weblog — a site designed to attract viewers and encourage them to click on links in order to generate advertising revenue — can knowingly find, promote, and profit from infringing content with impunity,” Playboy writes.

“Clickbait sites like Boing Boing are not known for creating original content. Rather, their business model is based on ‘collecting’ interesting content created by others. As such, they effectively profit off the work of others without actually creating anything original themselves.”

Playboy notes that while sites like Boing Boing are within their rights to leverage works created by others, courts in the US and overseas have ruled that knowingly linking to infringing content is unacceptable.

Even given these conditions, Playboy argues, Happy Mutants and the EFF now want the Court to dismiss the case so that sites are free to “not only encourage, facilitate, and induce infringement, but to profit from those harmful activities.”

Claiming that Boing Boing’s only reason for linking to the infringing album was to “monetize the web traffic that over fifty years of Playboy photographs would generate”, Playboy insists that the site and parent company Happy Mutants was properly charged with copyright infringement.

Playboy also dismisses Boing Boing’s argument that a link to infringing content cannot result in liability due to the link having both infringing and substantial non-infringing uses.

First citing the Betamax case, which found that maker Sony could not be held liable for infringement because its video recorders had substantial non-infringing uses, Playboy counters with the Grokster decision, which held that a distributor of a product could be liable for infringement, if there was an intent to encourage or support infringement.

“In this case, Happy Mutants’ offending link — which does nothing more than support infringing content — is good for nothing but promoting infringement and there is no legitimate public interest in its unlicensed availability,” Playboy notes.

In its motion to dismiss, Happy Mutants also argued that unless Playboy could identify users who “in fact downloaded — rather than simply viewing — the material in question,” the case should be dismissed. However, Playboy rejects the argument, claiming it is based on an erroneous interpretation of the law.

Citing the Grokster decision once more, the adult publisher notes that the Supreme Court found that someone infringes contributorily when they intentionally induce or encourage direct infringement.

“The argument that contributory infringement only lies where the defendant’s actions result in further infringement ignores the ‘or’ and collapses ‘inducing’ and ‘encouraging’ into one thing when they are two distinct things,” Playboy writes.

As for Boing Boing’s four classic fair use arguments, the publisher describes these as “extremely weak” and proceeds to hit them one by one.

In respect of the purpose and character of the use, Playboy discounts Boing Boing’s position that the aim of its post was to show “how our standards of hotness, and the art of commercial erotic photography, have changed over time.” The publisher argues that is the exact same purpose of Playboy magazine, while highliting its publication Playboy: The Compete Centerfolds, 1953-2016.

Moving on to the second factor of fair use – the nature of the copyrighted work – Playboy notes that an entire album of artwork is involved, rather than just a single image.

On the third factor, concerning the amount and substantiality of the original work used, Playboy argues that in order to publish an opinion on how “standards of hotness” had developed over time, there was no need to link to all of the pictures in the archive.

“Had only representative images from each decade, or perhaps even each year, been taken, this would be a very different case — but Happy Mutants cannot dispute that it knew it was linking to an illegal library of ‘Every Playboy Playmate Centerfold Ever’ since that is what it titled its blog post,” Playboy notes.

Finally, when considering the effect of the use upon the potential market for or value of the copyrighted work, Playbody says its archive of images continues to be monetized and Boing Boing’s use of infringing images jeopardizes that.

“Given that people are generally not going to pay for what is freely available, it is disingenuous of Happy Mutants to claim that promoting the free availability of infringing archives of Playboy’s work for viewing and downloading is not going to have an adverse effect on the value or market of that work,” the publisher adds.

While it appears the parties agree on very little, there is agreement on one key aspect of the case – its wider importance.

On the one hand, Playboy insists that a finding in its favor will ensure that people can’t commercially exploit infringing content with impunity. On the other, Boing Boing believes that the health of the entire Internet is at stake.

“The world can’t afford a judgment against us in this case — it would end the web as we know it, threatening everyone who publishes online, from us five weirdos in our basements to multimillion-dollar, globe-spanning publishing empires like Playboy,” the company concludes.

Playboy’s opposition to Happy Mutants’ motion to dismiss can be found here (pdf)

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With millions of visits per day, Torrentz2 is without a doubt the most popular torrent meta-search engine on the Internet.

The site took this spot from the original Torrentz site, which surprisingly closed its doors during the summer of 2016.

Up until a month ago everything was running smoothly, but that changed when links to other torrent sites disappeared late December. Instead of a metasearch engine, Torrentz2 turned into a database of torrent metadata, and traffic started to drop off.

Torrentz2 remained without links for roughly three weeks, after which the site, just as surprisingly, returned to its former glory. However, that didn’t last very long.

Starting yesterday, all links have mysteriously disappeared again, without any official explanation. However, this time it only affects users who run an ad-blocker.

Initially we assumed that the issues were affecting all users, but upon closer inspection this is not the case. This means that the current issue is in no way related to the earlier disappearance.

The issues are the result of the EasyList Adblock filter which appears to block all nofollow links on Torrentz2. Since most adblockers use this list, many people are affected.

The good news for affected users is that they can solve the issue by simply disable the adblocker on the site. Alternatively, they can also disable the EasyList filter in their ad-blocker settings.

Update: Shortly after publication we learned that the disappearing links are the result of EasyList and adblockers. We updated the article accordingly.

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In many parts of the world football, or soccer as some would call it, is the number one spectator sport.

The English Premier League, widely regarded as one the top competitions, draws hundreds of millions of viewers per year. Many of these pay for access to the matches, but there’s also a massive circuit of unauthorized streams.

The Football Association Premier League (FAPL) has been clamping down on these pirate sources for years. In the UK, for example, it obtained a unique High Court injunction last year, which requires local Internet providers to block streams as they go live.

In addition, the organization has also filed legal action against a hosting provider through which several live sports streaming sites are operating. The case in question was filed in the Netherlands where Ecatel LTD, a UK company, operated several servers.

According to the complaint, Ecatel hosted sites such as cast247.tv, streamlive.to and iguide.to, which allowed visitors to watch live Premier League streams without paying.

As the streaming platforms themselves were not responsive to takedown requests, the Premier League demanded action from their hosting provider. Specifically, they wanted the company to disconnect live streams on their end, by null-routing the servers of the offending customer.

This week the Court of The Hague issued its judgment, which is a clear win for the football association.

The Court ruled that, after the hosting company receives a takedown notice from FAPL or one of its agents, Ecatel must disconnect pirate Premier League streams within 30 minutes.

“[The Court] recommends that, after 24 hours of service of this judgment, Ecatel cease and discontinue any service used by third parties to infringe the copyright to FAPL by promptly but no later than 30 minutes after receipt of a request to that end,” the verdict reads.

The ban can be lifted after the game has ended, making it a temporary measure similar to the UK Internet provider blockades. If Ecatel fails to comply, it faces a penalty of €5,000 for each illegal stream, to a maximum of € 1,500,000.

While the order is good news for the Premier League, it will be hard to enforce, since Ecatel LTD was dissolved last year. Another hosting company called Novogara was previously linked with Ecatel and is still active, but that is not mentioned in the court order.

This means that the order will mostly be valuable as a precedent. Especially since it goes against an earlier order from 2015, which Emerce pointed out. This warrants a closer look at how the Court reached its decision.

In its defense, Ecatel had argued that an obligation to disconnect customers based on a takedown notice would be disproportionate and violate its entrepreneurial freedoms. The latter is protected by the EU Charter of Fundamental Rights.

The Court, however, highlights that there is a clash between the entrepreneurial rights of Ecatel and the copyrights of FAPL in this case. This requires the Court to weigh these rights to see which prevails over the other.

According to the verdict, the measures Ecatel would have to take to comply are not overly costly. The company already null-routed customers who failed to pay, so the technical capabilities are there.

Ecatel also argued that disconnecting a server could affect legal content that’s provided by its customers. However, according to the Court, Ecatel is partly to blame for this, as it does business with customers who seemingly don’t have a proper takedown process themselves. This is something the company could have included in their contracts.

As a result, the Court put the copyrights of FAPL above the entrepreneurial freedom rights of the hosting provider.

The second right that has to be weighed is the public’s right to freedom of expression and information. While the Court rules that this right is limited by the measures, it argues that the rights of copyright holders weigh stronger.

“Admittedly, this freedom [of expression and information] is restricted, but according to the order, this will only apply for the duration of the offending streams. Furthermore, as said, this will only take place if the stream has not already been blocked in another way,” the Court writes.

If any legal content is affected by the measures then the offending streaming platform itself will experience more pressure from users to deal with the problem, and offer a suitable takedown procedure to prevent similar problems in the future, the Court notes.

TorrentFreak reached out to FAPL and Ecatel’s lawyers for a comment on the verdict but at the time of writing we haven’t heard back.

The verdict appears to be a powerful precedent for copyright holders. Kim Kuik, director of local anti-piracy group BREIN, is pleased with the outcome. While BREIN was not involved in this lawsuit, it previously sued Ecatel in another case.

“It is a good precedent. An intermediary like Ecatel has its accountability and must have an effective notice and take down procedure,” Kuik tells TorrentFreak.

“Too bad it wasn’t also against the people behind Ecatel, who now can continue using another vehicle. The judge thinks this verdict serves a warning to them. Time will tell if that is so.”

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Back in the day, The Pirate Bay was famous for its amusing responses to legal threats. Instead of complying with takedown notices, it sent witty responses to embarrass the senders.

Today the notorious torrent site gives copyright holders the silent treatment, but the good-old Pirate Bay spirit still lives on elsewhere.

Earlier today the anonymous domain registration service Njalla, which happens to be a venture of TPB co-founder Peter Sunde, posted a series of noteworthy responses it sent to The New York Times’ (NYT) legal department.

The newspaper warned the registration service about one of its customers, paywallnews.com, which offers the news service’s content without permission. Since this is a violation of The Times’ copyrights, according to the paper, Njalla should take action or face legal consequences.

NYT: Accordingly, we hereby demand that you immediately provide us with contact information — including email addresses — for both the actual owner of the paywallnew.com website, and for the hosting provider on which the paywallnew.com website is located.

If we have not heard from you within three (3) business days of receipt of this letter, we will have no choice but to pursue all available legal remedies.

Njalla is no stranger to threats of this kind but were somewhat offended by the harsh language, it seems. The company, therefore, decided to inform the NYT that there are more friendly ways to reach out.

Njalla: Thanks for that lovely e-mail. It’s always good to communicate with people that in their first e-mail use words as “we demand”, “pursue all available legal remedies” and so forth. I’d like to start out with some free (as in no cost) advice: please update your boiler threat letters to actually try what most people try first: being nice. It’s not expensive (actually the opposite) and actually it works much better than your method (source: a few tens of thousands years of human development that would not have been as efficient with threats as it would have been with cooperation).

In addition, Njalla also included a request of its own. They kindly asked (no demand) the newspaper’s legal department for proof that they are who they say they are. You can never be too cautious, after all.

Njalla: Now, back to the questions you sent us. We’re not sure who you are, so in order to move further we’d like to see a copy of your ID card, as well as a notarised power of attorney showing that you are actually representing the people you’re claiming to do.

This had the desired effect, for Njalla at least. The NYT replied with an apology for the tough language that was used, noting that they usually deal with companies that employ people who are used to reading legal documents.

The newspaper did, however, submit a notarized letter signed by the company’s Executive Vice President, General Counsel and Secretary, and once again asked for details on the Njalla customer.

NYT: Once again, as I mention above, the referenced website is stealing large amounts of New York Times content. If you click on this link: http://www.paywallnews.com/sites/nytimes

…

As this abuse — aside from being an egregious infringement of The Times’s copyright — breaches your own Terms of Service, I hope you will be able to see your way to helping me to put a stop to this practice by providing me with the name and contact information for the owner of paywallnews.com and for the ISP on which it is hosted.

This is when things started to get really interesting. Founded by someone with an extensive background in “sharing,” Njalla clearly has a different definition of stealing than the NYT’s legal department.

The reply, which is worth reading in full along with the rest of the communication, makes this quite clear.

Njalla: Stealing content seem quite harsh of this website though, didn’t know that they did that! Is there anyway you can get the stolen items back though? You should either go to the police and request them to help you get the stolen items back. Or maybe talk to your insurance company, they might help to compensate you for the loss. But a helpful idea; if they’ve stolen something and then put copies of that on a website that you can freely access, I would suggest just copying it, so that both of you have the same things. That’s a great thing with the digital world, everyone can have copies of things. I am surprised they stole something when they could just have copied it. I’m guessing it’s some older individuals that don’t know the possibilities of modern day technology to make copies.

It’s obvious that the domain registration service makes a clear distinction between copying and stealing.

Piracy vs. Theft

In addition, Njalla contests that the site is problematic at all, noting that this might be a “cultural difference.”

Njalla spotted something even more worrying though. The NYT claims that the site in question violates its terms of service. Specifically, they reference the section that prohibits sites from spreading content that is illegal according to local law.

Is the NYT perhaps spreading illegal content itself, Njalla questions?

Njalla: Deborah, I was quite shocked and appalled that you referred to this part of our ToS. It made me actually not visit the website in question even though you’ve linked it now a few times. You’re admitting to spreading illegal content at your newspaper, for profit, is that correct?

We’re quite big proponents of freedom of speech, let me assure you of that, but we also have limits. If you spread illegal content, and our customers stole that illegal content and are now handing out free copies of that, that’s a huge issue for us. Since it would be illegal for us to get those copies if they’re illegal, I’m asking you what type of content it is?

As an attachment to the reply, Njalla also sent back a “notarized” letter of their own, by simply copying the NYT letter and sticking their own logo on it, to show how easily these can be fabricated.

TorrentFreak reached out to Sunde who informed us that they never heard from The New York Times after the last reply. As a domain registrant, Njalla is not obliged to comply with takedown requests, he explains.

“If they need help from us on copyright issues, they’re totally missing what we’re doing, and that they should look somewhere else anyhow. But I think most domain services gets tons of these threat emails, and a lot of them think they’re responsible because they don’t have access to legal help and just shut customers down.

“That’s what a lot of our customers say at least, since they migrated from a shitty service which doesn’t know their own business,” Sunde adds.

The NYT is not completely without options though. If they take the case to court in Sweden and win an injunction against paywallnews.com, Njalla will comply. The same is true if a customer really violates the terms of service.

Meanwhile, paywallnews.com remains online.

Source: TF, for the latest info on copyright, file-sharing, torrent sites and more. We also have VPN discounts, offers and coupons

There are dozens of celebrity cats on the Internet, but Grumpy Cat probably tops them all.

The cat’s owners have made millions thanks to their pet’s unique facial expression, which turned her into an overnight Internet star.

Part of this revenue comes from successful merchandise lines, including the Grumpy Cat “Grumppuccino” iced coffee beverage, sold by the California company Grenade Beverage.

The company licensed the copyright and trademarks to sell the iced coffee but is otherwise not affiliated with the cat and its owners. Initially, this partnership went well, but after the coffee maker started to sell other “Grumpy Cat” products, things turned bad.

The cat’s owners, incorporated as Grumpy Cat LLC, took the matter to court with demands for the coffee maker to stop infringing associated copyrights and trademarks.

“Without authorization, Defendants […] have extensively and repeatedly exploited the Grumpy Cat Copyrights and the Grumpy Cat Trademarks,” the complaint read.

Pirate coffee..

After two years the case went before a jury this week where, Courthouse News reports, the cat itself also made an appearance.

The eight-person jury in Santa Ana, California sided with the cat’s owner and awarded the company $710,000 in copyright and trademark infringement damages, as well as a symbolic $1 for contract breach.

According to court documents, the majority of the damages have to be paid by Grumpy Beverage, but the company’s owner Paul Sandford is also held personally liable for $60,000.

The verdict is good news for Grumpy Cat and its owner, and according to their attorney, they are happy with the outcome.

“Grumpy Cat feels vindicated and feels the jury reached a just verdict,” Grumpy Cat’s lawyer David Jonelis said, describing it as “a complete victory.”

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A copy of the verdict form is available here (pdf).

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