Last summer several major music companies filed a lawsuit against Internet provider RCN. Helped by the RIAA, they argued that the ISP turned a blind eye to pirating subscribers.

The lawsuit is in many regards similar to the ones against other ISPs, such as Cox, Grande, and Charter, which were all accused of failing to terminate the accounts of repeat infringers.

According to the labels, RCN knew that some of its subscribers were frequently distributing copyrighted material, but failed to take any meaningful action in response. To compensate for this alleged inaction the music companies demand damages.

Last month we saw that the stakes are high in these cases. Following a two week trial, Cox was found guilty with the jury awarding a billion dollars in damages. This is something RCN wants to avoid.

Fighting back, the company submitted a motion to dismiss the lawsuit at the New Jersey federal court this week.

RCN starts by pointing out that the music companies don’t accuse it of hosting any infringing material. Nor do they argue that the ISP promoted its service to illegally share content.

“Instead, the thrust of Plaintiffs’ case is that RCN is secondarily liable because it did not terminate the internet access of subscribers accused of copyright infringement,” RCN writes.

The use of the term “accused” is important here. These accusations come from third-party outfit Rightscorp which sent huge amounts of infringement notifications bundled with settlement requests.

According to RCN, Rightscorp used the threat of legal action to extract settlements from subscribers. With this business model, more notices would generally result in more revenue.

“This means that Rightscorp is incentivized to send huge volumes of infringement accusations, without regard to the amount or frequency of any actual copyright infringement,” the ISP notes.

The music companies don’t claim that they used Rightscorp’s services themselves. Instead, RCN believes that the rightsholders acquired Rightscorp’s data after the fact, to pursue legal campaigns against ISPs.

In any case, the ISP has very little faith in the accuracy of Rightscorp’s piracy notifications and clearly disregards them as credible evidence.

“No reasonable ISP would accept Rightscorp’s copyright infringement allegations as credible, much less actionable. Rightscorp does not provide any evidence whatsoever demonstrating that a given internet user possessed or shared the copyrighted content in question,” RCN writes.

Continuing its motion, RCN explains step by step why the music companies’ claims don’t hold up, starting with the accusation of contributory infringement.

Liability for contributory infringement can only take place if an ISP is aware of direct copyright infringements and actively encourages or induces this activity. That’s not the case, according to RCN, as Rightcorp’s notices are not evidence of direct infringement.

“Rightscorp’s conclusory email allegations cannot confer knowledge of copyright infringement because they are unsupported and unverifiable,” RCN writes.

The ISP also emphasizes that Rightcorp’s notices are not DMCA compliant. They don’t provide sufficient information to disable or remove infringing content, nor do they properly identify the works, as there is no mention of copyright registration numbers.

In addition, RCN points out that its Internet service has substantial non-infringing uses, adding that the music companies failed to show that the ISP promoted or contributed to any infringing uses of its network.

“Plaintiffs only allege that RCN provided the alleged direct infringers with internet access. This is far too attenuated from the infringing conduct to constitute material contribution,” RCN adds.

The claim of liability for vicarious copyright infringement also falls flat, RCN argues. The ISP says doesn’t profit from any of the alleged infringing activity nor does it have the ability to control it.

Finally, the music companies’ claim of liability for direct infringement can’t be proven either, simply because there’s no hard evidence that any RCN subscribers engaged in piracy.

“Taking Plaintiffs’ allegations as true, they cannot show that any infringing content was unlawfully obtained over RCN’s network, or that any user of RCN’s engaged in conduct directly infringing Plaintiffs’ distribution rights,” RCN notes.

According to the ISP, the music companies failed to state a proper claim so it, therefore, asks the court to dismiss the complaint.

The music companies still have the option to reply to RCN’s arguments after which the court will rule on the matter.

In related cases, other ISPs have submitted similar motions, with some being more successful than others. Grande managed to have the vicarious infringement claim dropped, for example, but Cox’s attempt to do the same failed.

…

A copy of RCN’s motion to dismiss the music companies’ complaint is available here (pdf).

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DMCA notices or their equivalents can be filed against websites, hosts, ISPs and other services almost anywhere in the world, with the majority of entities taking some action in response.

At Google, for example, the company receives DMCA notices requesting that allegedly-infringing URLs are delisted from search results and at this company alone, the scale is astonishing. At the time of writing, Google has processed requests to remove 4.43 billion URLs from its indexes across 2.77 million domains. These were filed by more than 196,100 copyright holders and 186,100 reporting organizations, which includes anti-piracy groups.

This week, one of those anti-piracy groups reached a historic milestone. French anti-piracy group Rivendell sent its 500 millionth URL delisting request to Google, breaking the half-a-billion barrier for a single reporting entity for the first time.

Hervé Lemaire is the owner of Rivendell’s sister company LeakID, a company he formed in 2006 after he left EMI/Virgin as Head of Digital. Speaking with TorrentFreak this week, he explained that Rivendell was launched in 2013 with a key focus to prevent unlicensed content appearing in Google’s indexes.

Lemaire didn’t provide specific details on Rivendell’s top clients but a cursory view of Google’s report shows many familiar names from the world of entertainment, including what recently appears to be a strong focus on sports content owned by the Premier League and Italy’s Serie A.

In common with all anti-piracy companies, Rivendell isn’t keen to give away its secrets. Lemaire did confirm however that patroling Google’s indexes is only part of the puzzle and that scanning piracy platforms to identify infringing material quickly plays a big part.

When it comes to dealing with Google itself, Lemaire bucks the trend by complimenting (rather than criticizing) the company for its anti-piracy work.

“We work closely with the Google team and we are very happy with them,” he told TF. “They are very cooperative and when we have a problem with a link we always have an answer and a solution from them.”

Google doesn’t impose any reporting limits on Rivendell either, with Lemaire noting that all Google wants is to work with “serious companies doing a serious job.”

While the sending of more than half-a-billion URL reports is certainly remarkable, it’s worth breaking down what type of action was taken in response to them. The image below shows what action Google took, with just under three-quarters of URL requests resulting in immediate removal.

That raises the question of why 25% of Rivendell’s URL reports failed to result in content being removed.

The red category – almost 20% – indicates content that didn’t actually exist in Google’s indexes at the time it was detected by Rivendell. The company suggests that because it acts so quickly, it can detect content before it appears in Google’s results.

“If you search the links only on Google, you have nothing to do with the protection of content,” Lemaire says.

“We do not expect Google to show us the pirated links [immediately]. To be effective we must go to where content is found before it appears on the search engine, especially for live content.”

This type of proactive takedown isn’t a problem for Google. As previously revealed, the company is happy to receive the URLs for content it hasn’t yet indexed for action when they do eventually appear.

“We accept notices for URLs that are not even in our index in the first place. That way, we can collect information even about pages and domains we have not yet crawled,” Google copyright counsel Caleb Donaldson previously explained.

“We process these URLs as we do the others. Once one of these not-in-index URLs is approved for takedown, we prophylactically block it from appearing in our Search results.”

Lemaire also has straightforward explanations for the other categories too. Requests labeled as ‘duplicate’ by Google have already been targeted by other anti-piracy companies while the 1% marked “No Action” can be the result of several issues including a lack of evidence, a homepage delisting request, hidden content, or even a ‘fake’ pirate website.

The big question, however, is whether all of these delisting efforts actually have any serious impact on the volumes of pirated content being consumed. Lemaire is clear: “It works.”

“For live events like football we were the first to work on removing links before, during and after matches. This is why several European leagues trust us in particular on this subject,” he says.

“In general, the removal of illegal links allows legal offers to occupy the top places in search results. There are still improvements to be made regarding the pagerank of illegal sites, however.”

Lemaire is brief when questioned on what measures are taken to avoid erroneous takedowns, stating that all domains are validated before they are notified to Google. Finally, he also appears to recognize the resourcefulness of his adversaries but says that countering them is enjoyable.

“Pirates are not stupid and are constantly finding new solutions. It’s up to us to work to outsmart them .. we love it,” he concludes.

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In recent years, Swedish movie outfits and Hollywood studios, including Disney, Paramount Pictures and Warner Bros, have been working hard to get local ISPs to block The Pirate Bay.

The first success came a few years ago when a blocking order was issued against local Internet provider Bredbandsbolaget. This was later followed by an interim order against Telia, Sweden’s largest ISP, which was struck down on appeal and sent back to the lower court.

During the second try of the case movie companies again requested a blocking order against The Pirate Bay, as well as three other sites, Dreamfilm, FMovies, and NyaFilmer.

Last month this case was decided in favor of the rightsholders, with the court not only issuing a blocking injunction but also one that can be extended

The Swedish Patent and Market Court ordered Telia to block access to the four pirate sites to prevent these from facilitating further copyright infringement. In addition, the rightsholders are also allowed to add new domain names and IP-addresses going forward.

The movie companies requested this expansion option since blocking orders are often circumvented through new domains and proxy sites. Telia objected to the request for such a “dynamic” blocking order, but the court sided with the copyright holders.

“It is clear that the services change domain names and URLs and that this is a quick, easy and inexpensive way to bypass the effect of a blocking procedure,” the court writes.

“A blocking injunction should, therefore, in order to effectively serve the rights holders’ interest in preventing infringements, not merely target specified domain names and URLs,” the order adds.

This effectively means that Telia must update its blocklist when it’s made aware of changes. Any new URLs and IP-addresses have to provide access to any of the four pirate sites, including The Pirate Bay.

Telia also objected to the general blocking order and questioned whether the rightsholders had shown any proof of infringement. However, the court refuted these arguments and stressed that, under EU law, ISP can be ordered to stop pirating subscribers.

The case resulted in a clash between several rights that are defined in the Charter of Fundamental Rights of the European Union. In this instance, the property rights of the movie companies weigh stronger than Telia’s right to entrepreneurial freedom.

Hans Eriksson, Senior Associate at the law firm  Westerberg & Partners, highlighted the case at IPKat, believes that dynamic injunctions, which can be updated regularly, will become more and more common.

“Dynamic injunctions like this one are likely to be the future for blocking injunctions in Europe,” Eriksson tells TorrentFreak.

The Market Court’s injunction is valid for three years. If Telia fails to properly implement the blockades, it risks a penalty of 500,000 Swedish Krona (€47,500). Telia is not happy with the outcome, however, and has already filed an appeal.

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A copy of the Patent and Market Court’s order, in Swedish, is available here (pdf).

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When leading content companies and distributors plus Yandex, Rambler Group, Mail.Ru Group, vKontakte, and RuTube signed up to a landmark anti-piracy memorandum in 2018, new ground was broken in Russia.

Assisted by the creation of a centralized database of allegedly-infringing content, Internet platforms agreed to voluntarily query the resource in near real-time before deleting content from their search indexes. The plan was to make pirated content harder for users to find and within months, hundreds of thousands of links were being purged.

The end-game was to have the terms of the agreement written into local law but as some expected, things didn’t run entirely to plan. Early October 2019, with the memorandum a year old, it effectively timed out. Negotiations ensued and a short extension was agreed but a deadline of end October came and went without a draft being presented to parliament.

With another deadline missed, an automatic extension to end December 2019 came into play but it’s now clear that the plan to formalize the agreement in law is still a very long way off.

During a meeting at the Media and Communications Union, the industry association formed by the largest media companies and telecom industry players, the parties – with assistance from telecoms watchdog Roscomnadzor – have now agreed to another extension. The voluntary agreement will now continue for at least another year, the clearest indication yet that this isn’t a straightforward matter.

According to industry sources cited by Vedomosti (paywall), the decision not to push ahead now towards legislation was taken jointly by the signatories and Roscomnadzor.

While many specifics aren’t being made public, sources indicate that the mechanism for resolving disputes between the copyright holders and Internet platforms has proven complex. Another area of disagreement centers around demands from rightsholders and content companies to have sites delisted on a permanent basis, if they are repeatedly flagged as offering links to infringing content.

Another key issue is that under the current system there is a clear bias towards video content and the largest copyright holders, while others have to take a back seat or are left out altogether. It will take a considerable period of time to overcome these hurdles, a situation that isn’t helped by a reported lack of time in the State Duma to deal with the legislation.

As a result, the memorandum will now be extended to the end of January 2021, to allow the parties and the government to come up with a credible framework before writing it into law.

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In Internet ‘piracy’ years, PortalRoms.com is pretty old domain, having first appeared as a very basic ROM download site way back in 2004, possibly even earlier.

Over the years it has undergone various transformations and possibly ownership changes too. Its now-dormant Twitter account was created back in 2010 but behind the scenes and after fairly slow initial growth, the last decade saw the site grow negligible traffic to become a decent-sized ROM, retro, and emulator player.

Up until just a few days ago, users of PortalRoms – who between them have been generating around four million visits per month – were able to download ROMs covering everything from arcade games to Dreamcast to Nintendo Switch. Rather than store this content on restrictive file-hosting platforms, PortalRoms created torrents instead, a rare move for a site of this type.

Right from the very beginning, PortalRoms operated from PortalRoms.com. However, for reasons that are not clear, last September or October the site made a surprise switch to the Swiss-based PortalRoms.ch domain. As data from SimilarWeb shows, most traffic managed to transfer to the new domain, with little to no disruption.

The same cannot be said of the past few days. With no public announcements to indicate the cause, PortalRoms went dark, leaving millions of users (especially in South America where the site was very popular) without their favorite download portal to fall back on.

When trying to determine the cause of the downtime, the site’s domain entries aren’t particularly useful.

TorrentFreak contacted the registrar in control of the .ch domain but the company advised us that the domain is actually controlled by one of their resellers – 1337 Services LLC. This is the business name of Njalla, the domain company connected to Pirate Bay co-founder Peter Sunde, a company that strives to give up no useful information on any domain.

It remains possible that PortalRoms is experiencing yet another bout of domain problems but whether they are copyright-related is open to question. Indeed, one of the curious things about PortalRoms.com and PortalRoms.ch is that considering its extensive library and visitor count, anti-piracy groups working for gaming companies like Nintendo or Sony seem to be pretty disinterested.

Google’s Transparency Report reveals that PortalRoms.com received only 55 complaints targeting 115 URLs when it was in operation. Companies like EA, Rockstar, THQ and Activision got involved but never on any scale. For comparison, the relatively new PortalRoms.ch domain received only four complaints but those contained just over 1,000 URLs. All but a handful were filed by the Entertainment Software Association.

While it remains to be seen whether PortalRoms will ever return, it’s worth noting that its chosen method of content distribution (torrents, in this case) means that people will still be sharing the ROM and emulator files during the downtime. Indeed, a basic search for ‘portalroms’ on various meta-search engines reveals many active torrents with the phrase “visit www.PORTALROMS.ch for more games _.url” in their file lists.

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