Over the past year, dozens of independent photographers have taken mainstream media outlets to court, accusing the companies of using their work without permission.

While the photographers only have a tiny fraction of the legal budgets of their wealthy adversaries, they have managed to score several settlements.

This is no surprise, as the evidence in these cases is often undisputed. However, New York photographer Jon Tannen learned that going up against a media mogul is not without risk. When he sued CBS Broadcasting a few weeks ago, the company ‘retaliated’ in a highly unusual way.

Instead of resolving the matter behind closed doors, CBS came out guns blazing. The company filed a lawsuit against the photographer accusing him of posting a copyright-infringing screenshot of a TV show on social media – the 59-year-old show Gunsmoke.

While posting a half-century old screenshot of an episode is quite different from using a recent photograph in a commercial publication, CBS branded Tannen a hypocrite in the complaint.

Follow up filings revealed how things spiraled out of control. Both parties were not able to agree on a settlement. According to CBS, Tannen demanded more than 100 times the value of a license, which they refused to pay.

Instead, they filed a lawsuit of their own. It was a clear retaliatory move and without informing the photographer in advance, attorney Richard Liebowitz wrote to the court.

“[I]n the midst of settlement negotiations on this case, Ballard Spahr LLP, the same law firm which serves as defense counsel here, filed a patently frivolous copyright infringement case on behalf of CBS against Tannen in obvious retaliation for this lawsuit,” he writes.

“Patently frivolous”

While lawsuits over TV show screenshots are highly unusual, this one apparently revitalized the settlement negotiations.

Both parties recently informed the court that they are finalizing an agreement in the initial lawsuit, which will end the case. As a result, CBS also dismissed its case against the photographer this week. As is usual, details of the settlement are not disclosed.

Meanwhile, another photographer filed a lawsuit against CBS this week, again represented by attorney Richard Liebowitz, who’s not hesitant in targeting the company again.

In this case the photographer, New York-based Lawrence Schwartzwald, accuses CBS Interactive of using a photo he took of actress Barbara Streisand and actor Jeff Bridges on CBSNews.com without obtaining permission.

With a screenshot of the photo of the site on file, the evidence looks quite compelling. However, let’s see if CBS can dig up some dirt on the photographer’s social media accounts this time round.

—

A copy of Schwartzwald’s complaint is available here (pdf).

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A few years ago, Popcorn Time gained popularity worldwide, mostly thanks to its ability to stream torrent files through a user-friendly interface.

This rapid rise raised concern among many movie industry companies, who worked hard to contain the threat by going after several forks and their developers.

This resulted in the shutdown of several projects. Domain name blockades in several countries, including the UK and most recently Denmark, were used to further mitigate the problem.

The most unusual action, however, was taken in Norway where the economic crime police seized the Popcorn-Time.no domain name following a complaint from copyright holders.

This was highly unusual because the domain in question didn’t host Popcorn Time itself. Instead, the site posted news articles, as well as links to sites that offered the application.

Popcorn-time.no when it was still active

This broad takedown of a news-focused site raised concerns among digital rights activists and legal experts. They questioned whether the far-reaching measure, without a proper judicial review, was violating free speech.

Hoping to hold the authorities accountable, Electronic Frontier Norway (EFN) and the Norwegian Unix User Group (NUUG) took the case to court.

Initially, the court refused to take on the case, arguing that both parties lacked standing, since they were not sufficiently affected by the domain seizure. This decision was appealed together with the legal owner of the domain name, the Norwegian company IMCASREG8, the domain registrar.

After several new filings and hearings, the Appeal Court decided that the case had to be sent back to the District Court again, which will start a new trial next week.

TorrentFreak spoke with senior lawyer Kirill Miazine, who will act as the legal assistant for the digital rights groups. He is looking forward to the hearings.

“This is going to be like the revenge of the nerds, as the usual suspects, who are monitoring the Internet and bullying the users and ISPs, are now going to be asked uncomfortable questions,” Miazine says.

“We’re also considering whether there are grounds to file a criminal case against the people who filed the criminal complaint against the registrant. We are serious about this. It’s not about Popcorn Time.”

Since the beginning, this case has been one against the seizure process of the authorities, rather than the site in question. The person who operated the targeted website is not even involved in the case.

One of the key questions that will be brought up during the trial, is how Popcorn-Time.no’s activities were different from all the mainstream news sites that covered and linked to Popcorn Time.

The rights groups are being represented pro bono by law firm Føyen Torkildsen, who are confident that they can win the case, and prevent similar broad seizures in the future.

“For us, the matter is about three core aspects: Internet freedom, free speech, and free software,” Miazine says.

“When they attack a tool which could be used legally and illegally, we have to fight back, as their next step could target Tor and VPNs. Of course, the case is about justice too: the police should not be agents of the called copyright groups..,” he adds.

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In 2012, file-hosting site Megaupload was shut down by the United States government and founder Kim Dotcom and his associates were arrested in New Zealand.

Ever since, the US government has sought to extradite Dotcom on several counts including copyright infringement, racketeering, and money laundering. Dotcom has fought them every single step of the way.

One of the key areas of conflict has been the validity of the search warrants used to raid his Coatesville home on January 20, 2012. The fight has been meticulous and lengthy but in 2014, following appeals to lower courts, the Supreme Court finally dismissed Dotcom’s appeals that the search warrants weren’t valid.

Following a three-month hearing, the District Court later found that Dotcom was eligible for extradition. Dotcom appealed again but in February 2017 the High Court ruled that the entrepreneur could indeed be transferred to the United States.

Dotcom subsequently appealed the High Court decision to the Court of Appeal, a hearing that will go ahead in February 2018. Last summer, the Megaupload founder also “attacked the underpinnings of the extradition process” by filing an eight-point statement of claim for judicial review. This morning the High Court handed down its decision and it looks like bad news for Dotcom

The causes of action presented by the Megaupload founder were varied but began by targeting the validity of the arrest warrants used in January 2012 and by extension every subsequent process, including the extradition effort itself.

“Accordingly, the relief sought includes orders that the extradition proceeding be quashed or set aside and that Mr Dotcom be discharged,” the ruling reads.

However, the Court describes this argument as an abuse of process, noting that the Supreme Court has already upheld the validity of the search warrants and a High Court ruling confirmed the District Court’s finding that Dotcom is eligible for extradition, a process that will soon head to the Court of Appeal.

But Dotcom’s arguments continued, with attacks on the validity of search warrants and a request to quash them and return all property seized under their authority. Another point asserted that a US request to seize Dotcom’s assets in New Zealand was invalid because no extraditable offense had been committed.

Unfortunately for Dotcom, none of his detailed arguments gained traction with the Hight Court. In his decision, Justice Timothy Brewer sides with the US government which previously described the efforts as “collateral attacks on previous decisions of the Courts and an attempt to pre-empt Mr Dotcom’s appeal.”

The Judge eventually rejected seven out of the eight causes of action in a 22-page ruling (pdf) published this morning.

“I have granted the USA’s application to strike out causes of action 1 to 7 of the statement of claim for judicial review dated 21 July 2017. The proceeding is now ‘live’ only in relation to the eighth cause of action,” Justice Brewer writes.

“I direct that the proceeding be listed for mention in relation to the eighth cause of action in the duty list at 10:00 am on 7 February 2018.”

The eighth point, which wasn’t challenged by the US, concerns the “decision by the Deputy Solicitor-General in June 2017 to direct that clones be made of the electronic devices seized from Mr Dotcom’s homes and that they be sent to the USA.”

A few minutes ago, Dotcom took to Twitter with an apparent upbeat reference to the ruling.

Sometimes what looks like a loss is really a win 😜

— Kim Dotcom (@KimDotcom) December 15, 2017

<script async src="https://platform.twitter.com/widgets.js" charset="utf-8">

Like all things Dotcom, the show won’t be over until every last stone has been unturned. Next stop, Court of Appeal in February.

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In recent months, millions of people have protested the FCC’s plan to repeal U.S. net neutrality rules, which were put in place by the Obama administration.

However, an outpouring public outrage, critique from major tech companies, and even warnings from pioneers of the Internet, had no effect.

Today the FCC voted to repeal the old rules, effectively ending net neutrality.

Under the net neutrality rules that have been in effect during recent years, ISPs were specifically prohibited from blocking, throttling, and paid prioritization of “lawful” traffic. In addition, Internet providers could be regulated as carriers under Title II.

Now that these rules have been repealed, Internet providers have more freedom to experiment with paid prioritization. Under the new guidelines, they can charge customers extra for access to some online services, or throttle certain types of traffic.

Most critics of the repeal fear that, now that the old net neutrality rules are in the trash, ‘fast lanes’ for some services, and throttling for others, will become commonplace in the U.S.

This could also mean that BitTorrent traffic becomes a target once again. After all, it was Comcast’s ‘secretive’ BitTorrent throttling that started the broader net neutrality debate, now ten years ago.

Comcast’s throttling history is a sensitive issue, also for the company itself.

Before the Obama-era net neutrality rules, the ISP vowed that it would no longer discriminate against specific traffic classes. Ahead of the FCC vote yesterday, it doubled down on this promise.

“Despite repeated distortions and biased information, as well as misguided, inaccurate attacks from detractors, our Internet service is not going to change,” writes David Cohen, Comcast’s Chief Diversity Officer.

“We have repeatedly stated, and reiterate today, that we do not and will not block, throttle, or discriminate against lawful content.”

It’s worth highlighting the term “lawful” in the last sentence. It is by no means a promise that pirate sites won’t be blocked.

As we’ve highlighted in the past, blocking pirate sites was already an option under the now-repealed rules. The massive copyright loophole made sure of that. Targeting all torrent traffic is even an option, in theory.

That said, today’s FCC vote certainly makes it easier for ISPs to block or throttle BitTorrent traffic across the entire network. For the time being, however, there are no signs that any ISPs plan to do so.

If they do, we will know soon enough. The FCC requires all ISPs to be transparent under the new plan. They have to disclose network management practices, blocking efforts, commercial prioritization, and the like.

And with the current focus on net neutrality, ISPs are likely to tread carefully, or else they might just face an exodus of customers.

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The Copyright Act of Canada was first passed in 1921 and in the decades that followed has undergone considerable amendment.

Between 2005 and 2010, several bills failed to gain traction due to opposition but in 2011 the Copyright Modernization Act was tabled. A year later, in the summer of 2012, it was passed into law.

The Act tackles a number of important issues, such as allowing time and format shifting, plus backup copies, as long as DRM isn’t circumvented along the way. So-called ‘fair dealing’ also enjoys expansion while statutory damages for non-commercial scale infringement are capped at CAD$5000 per proceeding. Along with these changes sits the “notice-and-notice” regime, in which ISPs forward infringement notices to subscribers on behalf of copyright holders.

The Act also mandates a review of copyright law every five years, a period that expired at the end of June 2017. Yesterday a House of Commons motion triggered the required parliamentary review, which will be carried out by the Standing Committee on Industry, Science and Technology. It didn’t take long for the music industry to make its position known.

Music Canada, whose key members are Sony Music, Universal Music and Warner Music, enthusiastically welcomed the joint announcement from the Minister of Innovation, Science and Economic Development and the Minister of Canadian Heritage.

“I applaud Minister Bains and Minister Joly for initiating this review of the Copyright Act,” said Graham Henderson, President and CEO of Music Canada.

“Music creators, and all creators who depend on copyright, deserve a Copyright Act that protects their rights when their works are commercialized by others. This is our chance to address the Value Gap threatening the livelihood of Canadian creators and the future of Canadian culture.”

That the so-called “Value Gap” has been immediately thrown on the table comes as no surprise. The term, which loosely refers to the way user-generated platforms like YouTube are able to avoid liability for infringing content while generating revenue from it, is a hot topic around the world at the moment.

In the US and Europe, for example, greater emphasis is being placed on YouTube’s position than on piracy itself, with record labels claiming that the platform gains an unfair advantage in licensing negotiations, something which leads to a “gap” between what is paid for music, and what it’s actually worth.

But the recording labels are unlikely to get an easy ride. As pointed out in a summary by Canadian law professor Michael Geist, the notice-and-takedown rules that facilitate the “Value Gap” are not even part of Canadian law and even without them, the labels have done just fine.

“The industry has enjoyed remarkable success since 2012, growing far faster [than] the world average and passing Australia as the world’s 6th largest music market,” Geist writes.

“The growth has come largely through Internet streaming revenues, which now generate tens of millions of dollars every year for creators, publishers, and the broader industry. The industry is also likely to continue to lobby for copyright term extension, as foreshadowed by a lobbying blitz just last month in Ottawa.”

As reported in September, telecoms companies and the entertainment industries are pressing for website blockades, without intervention from the courts. The upcoming copyright review will provide additional opportunity to push that message home.

“Bell admits that copyright reform is not needed for site blocking, but the link to the Copyright Act ensures that the issue will be a prominent part of its lobbying campaign,” Geist notes.

“The reality is that Canada is already home to some of the toughest anti-piracy laws in the world with many legislative tools readily available for rights holders and some of the largest damages provisions found anywhere in the world.”

But for copyright holders, a review also has the potential to swing things the other way.

The previously mentioned notice-and-notice regime, for example, was put in place as an alternative to more restrictive schemes elsewhere. However, it was quickly abused by copyright trolls seeking cash settlements from alleged pirates. It’s certainly possible for that particular loophole to be closed or at least addressed as part of a comprehensive review.

In any event, the review is likely to prove spirited, with interested parties on all sides trying to carve out a smooth path for their interests under the next five years of copyright law.

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