Two years ago, when Disney announced that it would launch its own streaming service, we mused that this would keep piracy relevant.

Yes, another paid streaming service would further fragment the legitimate market. This could motivate some to keep pirating, at least part-time.

More recently research has confirmed that this is indeed a warranted concern as people have limited budgets, but money isn’t the only problem.

When Disney confirmed that the initial rollout would be limited to the United States, Canada and the Netherlands, the piracy lure only became stronger. Star Wars fans in most parts of the world currently can’t watch the highly anticipated Mandalorian series, unless they pirate.

With this in mind, we kept a close eye on the official Disney+ launch this week. There was an enormous amount of media coverage which, undoubtedly, led to a lot of legitimate subscriptions. But, at the same time, pirate sites were buzzing too.

Shortly after Disney+ opened shop the first pirated releases started to spread. First through private communities and then over at public torrent sites, cyberlockers, and not-so-legal streaming platforms. After a few hours, pirated copies of the Mandalorian were everywhere.

This doesn’t really come as a surprise. Disney+ currently uses Widevine encryption, which is similar to what other streaming services use. Downloading or ‘ripping’ these videos doesn’t appear to be too hard.

And indeed, a quick glance at various pirate sites reveals that the first Mandalorian episode, which is exclusive to Disney+, is widely available in various formats.

Over the past two days, Mandalorian has already become the most pirated TV-show, with hundreds of thousands of downloads and streams, if not more. While it is far from becoming the next “Game of Thrones,” the potential is certainly there.

The fact that Disney+ isn’t available in many countries is similar to HBO’s situation when Game of Thrones first came out. This serves as a piracy incentive. After all, people who want to watch Mandalorian in the UK, Australia, and elsewhere, have few other options than to pirate.

The limited release of Disney+ may actually breed some new pirates. Even worse, there is a chance that many of these pirates may not go legal when the streaming service officially launches in their country.

For now, Disney’s anti-piracy efforts appear to be focused elsewhere though. The company has sent takedown requests for thousands of URLs that host or link to unauthorized copies of Mandalorian. This includes notices that were sent to Google, with requests to delist these pages.

As one of the largest entertainment companies in the world, these piracy concerns shouldn’t come as a surprise to Disney. The company probably weighed the pros and cons of its actions, including the limited geographical release, as well as entering an already fragmented streaming landscape.

In today’s online streaming business, piracy is a given. Disney probably believes that running its own streaming platform will ultimately bring in more money. Piracy or not.

They may very well be right, but it will happen at the expense of others. That may include some of Disney’s competitors, but also consumers who are not willing to pirate, and those who can’t afford another subscription.

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

Despite some of the most intense opposition seen in recent years, on March 26, 2019, the EU Parliament adopted the Copyright Directive.

The main controversy surrounded Article 17 (previously known as Article 13), which places greater restrictions on user-generated content platforms like YouTube.

Rightsholders, from the music industry in particular, welcomed the new reality. Without official licensing arrangements in place or strong efforts to obtain licensing alongside best efforts to take down infringing content and keep it down, sites like YouTube (Online Content Sharing Service Providers – OCSSP) can potentially be held liable for infringing content.

This uncertainty led many to fear for the future of fair use, with the specter of content upload platforms deploying strict automated filters that err on the side of caution in order to avoid negative legal consequences under the new law.

While the legislation has been passed at the EU level, it still has to be written into Member States’ local law. With that in mind, more than 50 EU Academics have published a set of recommendations that they believe have the potential to limit restrictions on user freedoms as a result of the new legislation.

A key recommendation is that national implementations should “fully explore” legal mechanisms for broad licensing of copyrighted content. The academics are calling for this to ensure that the preventative obligations of OCSSPs are limited in application wherever possible.

The academics hope that broad licensing can avoid situations where to avoid liability, OCSSPs would otherwise have to prove they have made “best efforts” to ensure works specified by rightsholders are rendered inaccessible or show that they have “acted expeditiously” to remove content and prevent its reupload following a request from a rightsholder.

“Otherwise, the freedom of EU citizens to participate in democratic online content creation and distribution will be encroached upon and freedom of expression and information in the online environment would be curtailed,” the academics warn.

The academics’ recommendations are focused on ensuring that non-infringing works don’t become collateral damage as OCSSPs scramble to cover their own backs and avoid liability.

For example, the preventative obligations listed above should generally not come into play when content is used for quotation, criticism, or review, or for the purpose of caricature, parody or pastiche. If content is removed or filtered incorrectly, however, Member States must ensure that online content-sharing service providers put in place an “effective and expeditious” complaint and redress system.

The prospect of automatic filtering at the point of upload was a hugely controversial matter before Article 17 passed but the academics believe they have identified ways to ensure that freedom of expression and access to information can be better protected.

“[W]e recommend that where preventive measures [as detailed above] are applied, especially where they lead to the filtering and blocking of uploaded content before it is made available to the public, Member States should, to the extent possible, limit their application to cases of prima facie [upon first impression] copyright infringement,” the academics write.

“In this context, a prima facie copyright infringement means the upload of protected material that is identical or equivalent to the ‘relevant and necessary information’ previously provided by the rightholders to OCSSPs, including information previously considered infringing. The concept of equivalent information should be interpreted strictly.”

The academics say that if content is removed on the basis of prima facie infringement, users are entitled to activate the complaint and redress procedure. If there is no prima facie infringement, content should not be removed until its legal status is determined.

In cases where user-uploaded content does not meet the prima facie standard but matches “relevant and necessary information” (fingerprints etc) supplied by rightsholders, OCSSPs must grant users the ability to declare that content is not infringing due to fair use-type exceptions.

“The means to provide such declaration should be concise, transparent, intelligible, and be presented to the user in an easily accessible form, using clear and plain language (e.g. a standard statement clarifying the status of the uploaded content, such as ‘This is a permissible quotation’ or ‘This is a permissible parody’),” the recommendations read.

If users don’t provide a declaration within a “reasonable” time following upload, the OCSSP (YouTube etc) should be “allowed” to remove the content, with users granted permission to activate the complaint and redress procedure.

Rightsholders who still maintain that content was removed correctly must then justify the deletion, detailing why it is a prima facie case of infringement and not covered by a fair use-type exemption, particularly the one cited by the user.

A human review should then be conducted at the OCSSP, which should not be held liable for infringement under Article 17 until the process is complete and legality determined.

Given that Article 17 has passed, there appears to be limited room to maneuver and there is a long way to go before all Member States write its terms into local law.

However, even if the above safeguarding recommendations are implemented, it’s clear that substantial resources will have to be expended to ensure that everyone’s rights are protected. As a result, platforms lacking YouTube-sized budgets will undoubtedly feel the pinch.

Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive: Recommendations from European Academics is available here.

 

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In February, several major Hollywood studios filed a lawsuit against Omniverse One World Television.

Under the flag of anti-piracy group ACE, the companies accused Omniverse and its owner Jason DeMeo of supplying of pirate streaming channels to various IPTV services.

Omniverse sold live-streaming services to third-party distributors, such as Dragon Box and HDHomerun, which in turn offered live TV streaming packages to customers. According to ACE, the company was a pirate streaming TV supplier, offering these channels without permission from its members.

Omniverse disagreed with this characterization and countered that it did everything by the book. It relied on a deal from the licensed cable company Hovsat, which has a long-standing agreement with DirecTV to distribute a broad range of TV-channels with few restrictions.

As time went on, however, it transpired that the streaming provider was clearly worried about the legal threat. After several of its distributors distanced themselves from the service, Omniverse decided to wind down its business.

The streaming provider also filed a third-party complaint (pdf) against Hovsat for indemnification and breach of contract, among other things. Omniverse believed that it was properly licensed and wants Hovsat to pay the damages for any alleged infringements if that was not the case.

That there are damages became crystal clear yesterday, when ACE announced that it had obtained a consent judgment against Omniverse. Both parties have agreed to settle the matter with the streaming provider committing to pay a $50 million settlement.

“Damages are awarded in favor of Plaintiffs and against Defendants,
jointly and severally, in the total amount of fifty million dollars,” the proposed judgment reads.

The agreement also includes a permanent injunction that prevents Omniverse and its owner Jason DeMeo from operating the service and being involved in supplying or offering pirate streaming channels in any other way.

The damages amount of $50 million is a substantial figure. In the past, however, we have seen that the public figure can be substantially higher than what’s agreed in private. In any case, Omniverse may hold Hovsat accountable, as previously suggested.

Karen Thorland, Senior Vice President at the Motion Picture Association, which has a leading role in the ACE coalition, is pleased with the outcome.

“This judgment and injunction are a major win for creators, audiences, and the legitimate streaming market, which has been undermined by Omniverse and its ‘back office’ piracy infrastructure for years,” Thorland, says

Over the past years, ACE has built a steady track record of successful cases against IPTV providers and services. In addition to Omniverse, it also helped to shut down SetTV, Dragon Box, TickBox, Vader Streams, and many third-party Kodi addons.

The consent judgment and permanent injunction (pdf) have yet to be signed off by the court but since both parties are in agreement, that’s mostly a formality.

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

In March several major music companies sued Charter Communications, one of the largest Internet providers in the US with 22 million subscribers.

Helped by the RIAA, Capitol Records, Warner Bros, Sony Music, and others accused Charter of deliberately turning a blind eye to its pirating subscribers.

Among other things, they argued that the ISP failed to terminate or otherwise take meaningful action against the accounts of repeat infringers, even though it was well aware of them. As such, it is liable for both contributory infringement and vicarious liability, the music companies claim. 

The ISP disagreed and filed a motion at a Colorado federal court, asking it to dismiss the vicarious liability claims. Charter argues that it doesn’t directly profit from copyright-infringing subscribers, nor does it have the ability to control them.

Previously, other Internet providers have been successful in getting vicarious infringement claims dropped, but Charter’s case appears to go in the other direction. Last month Magistrate Judge Michael Hegarty recommended the court to deny the motion to dismiss.

According to the Judge, Charter’s “failure to stop or take other action in response to notices of infringement is a draw to current and prospective subscribers to purchase and use Defendant’s internet service to ‘pirate’ Plaintiffs’ copyrighted works.”

Charter objected to this recommendation and hopes that the court will not accept it. The company fears that this will subject the company, and pretty much all other ISPs, to a wide range of piracy liability claims.

They are not alone in this assessment. Yesterday, a group of 23 copyright law professors submitted an amicus curiae brief in support of the company. According to the legal scholars from prominent institutions including Harvard and Stanford, the recommendation would set a dangerous precedent.

The copyright professors point out that, based on the complaint, it can’t be concluded that Charter enjoyed direct financial benefits from the alleged infringements, as vicarious liability prescribes.

Vicarious liability requires ISPs’ actions to serve as a “draw” to potential infringers. However, the professors argue that this isn’t the case here. Instead, the potential to use Charter to pirate should be seen as an “added benefit.”

The draw, in this case, is access to the entire Internet, with the potential to pirate being an added benefit.

“Access to this universe of content and services is the draw for subscribers, and the use by some subscribers of some portion of that service to download infringing material can only plausibly be seen as an added benefit of the service.

“This is especially true with ISPs, like Charter, because subscribers pay the same flat monthly rate for a particular level of service irrespective of whether, or how often, they infringe,” the professors add.

The Judge’s recommendation fails to properly make this distinction according to the professors. Neither does it show the necessary causal link between infringements and the financial benefit. As a result, it would expose Charter and other ISPs to “unprecedented risks of liability.”

The fact that Charter advertises “blazing-fast” speeds that allow users to download “just about anything” efficiently is not relevant either. According to the professors, these features are valued by all Internet users whether they engage in infringement or not.

“The Recommendation’s misapplication of the direct financial benefit analysis would cause considerable harm to other ISPs, consumers, and the public,” they write.

The immediate threat to ISPs is more lawsuits where dozens of millions of dollars in damages are at stake. If the recommendation stands, providers would have a hard time defending them. In addition, many would have to change their piracy policies, which could hurt consumer privacy.

In order to avoid vicarious liability claims, Charter and others would have to be more active against potential repeat infringers. This could lead to more Internet terminations and possible monitoring of legitimate users, the professors warn.

“Consumers, whether they personally engage in infringing conduct or not, could be subject to wholesale termination of their Internet access based on unproven allegations of infringement occurring at the IP address through which they connect to the Internet.

“Moreover, ISPs could be forced to engage in privacy-invasive monitoring of their subscribers’ Internet activity,” they add.

The brief explains that ISPs that don’t host any content should pass all Internet traffic along in a neutral manner. These companies should not be forced to become copyright enforcers based on mere allegations.

Based on the above, the copyright law professors urge the court not to adopt the Magistrate Judge’s recommendations. First, however, the court must decide whether it will accept the brief and add it to the record.

Given what’s at stake, it wouldn’t be a surprise to see submissions from more third-parties on this matter in the coming days.

—

A copy of the professors’ amicus curiae brief, which has yet to be accepted, is available here (pdf).

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Loi Krathong is an annual festival celebrated in Thailand and some neighboring countries during which ‘krathong’ (decorated baskets) are floated on a river.

These beautiful items are often made by locals looking to generate relatively small sums to help support their families and in some cases fund their education. Sadly, there are others who see the creations as an opportunity to generate cash for themselves in an entirely more sinister fashion.

According to local media reports, earlier this month a 15-year-old girl known as ‘Orm’ or ‘Orn’ (we’ll settle on the former) was contacted on Facebook by a stranger who placed an order for 136 krathong floats. The order carried specific instructions for them to be adorned with faces of cartoon characters owned by Japanese company San-X.

When Orm took 30 completed floats to a local mall, at the request of a supposed “copyright agent” she was reportedly arrested by police for ‘copyright infringement’. She was told to pay a fine of 50,000 baht, around US$1,650, a figure that was later negotiated down to 5,000 baht, US$1,650, by her grandfather, a former policeman.

“After receiving the order, I made krathong baskets from 8am to 1.30am the next day so that I could fill the order, only to be arrested,” Orm said.

“Normally I do not make any basket with a copyrighted character. This customer stressed they wanted copyrighted characters. After being arrested I cried all night because I have never faced such legal action before.”

The action against the teenager provoked outcry in the community after the chief of a local police station said it had worked with the ‘copyright agent’ on the sting operation, Bangkok Post reported.

However, all was not what it seemed. TAC Consumer PLC, which represents San-X, issued a statement stating that it had not participated in the operation against the teenager and had assigned one of its lawyers to the case. But worse was to come.

After news of the scandal spread, other victims of the scam came forward, saying they too had been arrested and settled for even larger amounts having borrowed the money from family members. They identified the ‘copyright agent’ as the same man who targeted the teenager.

When news reached local TV, a reporter helped to track down the ‘copyright agent’, who was discovered to be a local motorcycle taxi driver called ‘Nan’ whose wife sells meatballs in the area.

Yesterday, as pressure mounted against local police, a commander announced that after 40 similar complaints were filed against the ‘copyright agent’, they would be seeking arrest warrants by the end of the week. While that news will be celebrated in its own right, the knock-on effect of all the publicity is doing wonders for Orm’s work.

After making 360 floats to sell during the Loy Krathong festival, people queued up to buy them. They sold out in an hour, making herself around 8,110 baht in profit, around US$267.00. She told local media she was “delighted” by the response having sold just 30 in previous years.

Half of the money will go towards her school fees and the rest will go to her family to help with household expenses.

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