Regular Internet providers are being put under increasing pressure for not doing enough to curb copyright infringement.

Music rights company BMG got the ball rolling a few years ago when it won its piracy liability lawsuit against Cox Communications.

The ISP was ordered to pay $25 million in damages and another $8 million in legal fees. Hoping to escape this judgment, the company filed an appeal, but the case was eventually settled with Cox agreeing to pay an undisclosed but substantial settlement amount.

The landmark case signaled the start of many similar lawsuits against a variety of ISPs, several of which are still ongoing. In fact, just days after the settlement was announced, Cox was sued again, this time by a group of RIAA-affiliated music companies.

In simple terms, the crux of the case is whether Cox did enough stop pirating subscribers. While the ISP did have the policy to disconnect repeat infringers, the music companies argue that this wasn’t sufficient.

Over the past several months, both parties have conducted discovery and they are currently gearing up for a jury trial which is scheduled for December.

Most recently, both parties have presented their motions in limine, requesting the court to exclude certain testimony from being presented to the jury. This is typically material they see as irrelevant, misleading, or confusing.

One of the music companies’ motions focuses on a document (DX 74) Cox wants to present which indicates that the ISP’s own graduated response system worked pretty well.

Apparently, internal Cox research showed that 96% of subscribers stop receiving notices after the 5th warning. This was concluded in 2010 and resulted in the ISP’s belief that its “graduated response” system was effective.

The number was also brought up to the plaintiffs, as it was mentioned during the Copyright Alert System negotiations. Cox says that it chose not to join this voluntary piracy notice agreement because it already had a functional anti-piracy system in place.

The music companies don’t want this evidence to be shown to the jury. In a reply to Cox’s objections, they argue that the facts and figures in the document are a confusing mess of misleading calculations that lack data to support them.

The reply, which also rebuts other issues, is aggressively worded and redacts the 96% figure at the center of the dispute.

“The mere utterance of the so-called ‘study’ and its misleading and unsupported conclusion will lend it an air of credibility in the jury’s mind. The proverbial bell cannot be un-rung. The only adequate solution is exclusion,” the music companies write.

Cox has also submitted a variety of motions in limine. Among other things, the ISP doesn’t want the plaintiffs to present the millions of infringement notices tracking company MarkMonitor sent to Cox on behalf of other rightsholders.

The music companies disagree, however, arguing that the jury is allowed to know that potential copyright infringements are not limited to their own complaints. The other notices are also relevant to determine crucial issues such as liability, willfulness, and statutory damages, they add.

According to Cox, however, these third-party infringements notices are irrelevant to the present case and don’t prove anything.

“Plaintiffs’ attempt to litigate this case with evidence from an unrelated case concerning acts of infringement that are not at issue is inappropriate, improper, and prejudicial. Plaintiffs’ evidence of third-party infringement allegations should be excluded from trial.”

The docket is littered with back and forths on issues one party wants to exclude while being considered vital evidence by the other. This process is generally the last major clash before the trial starts.

The court has yet to rule on the various motions. When that is done the case will move forward. If all goes according to the current schedule, the verdict will be announced in a few weeks.

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While music piracy has reduced in recent years due to the popularity of platforms such as Spotify, the major labels remain highly concerned over so-called steam-ripping services.

These sites allow users to enter a YouTube URL, for example, and then download audio from the corresponding video, mostly in MP3 format. This means that users can download music and store it on their own machines, negating the need to revisit YouTube for the same content. This, the major labels say, deprives content creators of streaming revenue.

Tackling this issue has become one of the industry’s highest anti-piracy priorities. Previously, YouTube-MP3 – the largest ripping site at the time – was shut down following legal action by the major labels. Since then, lawsuits have been filed against other platforms but the battle is far from over and recently a new strategy appears to have been deployed.

A pair of DMCA notices appeared on the Lumen Database late October, having been filed there by Google. The sender of both notices is listed as the RIAA, acting on behalf of its members including Universal Music Group, Sony Music Entertainment, and Warner Music Group.

They are worded slightly differently but each target the homepages of five major YouTube-ripping sites – 2conv.com, flvto.biz, y2mate.com, yout.com, and youtubeconverter.io. Both contain the following key claim:

“To our knowledge, the URLs provide access to a service (and/or software) that circumvents YouTube’s rolling cipher, a technical protection measure, that protects our members’ works on YouTube from unauthorized copying/downloading,” the notices read.

Unlike regular DMCA takedown notices filed with Google, these notices do not appear in Google’s Transparency report. However, Google has acted on them by delisting the homepages of all five platforms from its search results. Other URLs for the platforms still appear, but their homepages are all gone.

The notices are listed on the Lumen Database in the anti-circumvention section, meaning that the RIAA-labeled complaints demand action from Google under the anti-circumvention provisions of the DMCA, rather than demanding the takedown of URLs based on the claim they carry infringing music titles.

The ‘technical measures’ allegedly being circumvented (such as the “rolling cypher” referenced in the complaints) are those put in place by YouTube, which in turn protect the copyrighted content of the labels.

TorrentFreak contacted the RIAA yesterday, requesting comment and seeking additional information on the basis for the notices. Unfortunately, the industry group declined to make any further comment on any aspect of the complaints.

Nevertheless, the RIAA and its members are no strangers to the claim that by circumventing YouTube’s ‘technological measures’, so-called ‘ripping’ sites infringe their rights too. Two of the sites targeted in the recent notices – 2conv.com and flvto.biz – were sued by the labels in 2018. The original complaint contains the following text:

That circumvention (at least in respect of the labels’ works when users select them for download) may also amount to an infringement of the labels’ rights seems to be supported by comments made in the Disney vs VidAngel case.

An opinion from the Court of Appeals for the Ninth Circuit stated that “[n]o person shall circumvent a technological measure that effectively controls access to a [copyrighted] work. Circumvention means ‘to decrypt an encrypted work.. without the authority of the copyright owner’.”

Nevertheless, it was previously argued by the EFF that stream-ripping sites are not by definition illegal since on top of the usual fair use exemptions, some creators who upload their content to online platforms grant permission for people to freely download and modify their work.

“There exists a vast and growing volume of online video that is licensed for free downloading and modification, or contains audio tracks that are not subject to copyright,” the EFF stresses.

“Moreover, many audio extractions qualify as non-infringing fair uses under copyright. Providing a service that is capable of extracting audio tracks for these lawful purposes is itself lawful, even if some users infringe.”

The anti-circumvention notices detailed above are not only relatively rare but also have an additional interesting property – they are harder to dispute than regular DMCA takedown notices.

As detailed here last year, Google told the target of a similar complaint requesting URL delisting that “There is no formal counter notification process available under US law for circumvention, so we have not reinstated these URLs.”

The pair of DMCA anti-circumvention notices can be found here 1,2 (pdf)

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In recent years many countries around the world have tightened their copyright laws to curb the threat of online piracy.

These new regulations aim to help copyright holders, often by creating new obligations and restrictions for Internet service providers that host, link to, or just pass on infringing material.

Rightsholders are happy with these developments, but many Silicon Valley giants and other tech companies see the new laws as threats. This was made clear again this week by the Computer & Communications Industry Association (CCIA) and the Internet Association.

The two groups both submitted stark warnings to the US Trade Representative (USTR). The submissions were sent in response to a request for comments in preparation for the Government’s yearly report on foreign trade barriers.

The CCIA, which includes prominent members such as Amazon, Cloudflare, Facebook, and Google, lists a wide variety of threats, several of which are copyright-related.

One of the main problems is the increased copyright liability for online intermediaries. In the US, online services have strong safe harbor protections that prevent them from being held liable for users’ infringements, but in other countries, this is no longer the case, CCIA warns.

“Countries are increasingly using outdated Internet service liability laws that impose substantial penalties on intermediaries that have had no role in the development of objectionable content. These practices deter investment and market entry, impeding legitimate online services,” CCIA writes.

These countries include France, Germany, India, Italy, and Vietnam. In Australia, for example, several US platforms are excluded from liability protections, which goes against the U.S.-Australia Free Trade Agreement, CCIA notes.

Another major point of concern is the new EU Copyright Directive, which passed earlier this year. While individual member states have yet to implement it, it’s seen as a looming threat for US companies and users alike.

“[T]he recent EU Copyright Directive poses an immediate threat to Internet services and the obligations set out in the final text depart significantly from global norms. Laws made pursuant to the Directive will deter Internet service exports into the EU market due to significant costs of compliance,” CCIA writes.

“Despite claims from EU officials, lawful user activities will be severely restricted. EU officials are claiming that the new requirements would not affect lawful user activity such as sharing memes, alluding to the exceptions and limitations on quotation, criticism, review, and parody outlined in the text.”

The Internet Association also warns against the EU Copyright Directive in its submission. According to the group, which represents tech companies including Google, Reddit, Twitter, as well as Microsoft and Spotify, Europe’s plans are out of sync with US copyright law.

“The EU’s Copyright Directive directly conflicts with U.S. law and requires a broad range of U.S. consumer and enterprise firms to install filtering technologies, pay European organizations for activities that are entirely lawful under the U.S. copyright framework, and face direct liability for third-party content,” the Internet Association writes.

Aside from the EU plans, other countries such as Australia, Brazil, Colombia, India, and Ukraine are also proposing new “onerous” copyright liability proposals for Internet services. In many cases, these plans conflict with promises that were made under U.S. free trade agreements, the Internet Association writes.

“If the U.S. does not stand up for the U.S. copyright framework abroad, then U.S. innovators and exporters will suffer, and other countries will increasingly misuse copyright to limit market entry,” the group warns.

Both the CCIA and the Internet Archive urge the US Government to push back against these developments. They advise promoting strong and balanced copyright legislation, which doesn’t put US companies at risk when following US law.

While it makes sense that the US would back its owns laws and policies abroad, the comments made by both groups come at a time where changes to intermediary liability are on the agenda of local lawmakers as well.

Copyright holders see these foreign developments as inspiration, as they want increased liability for intermediaries. As such, MPAA recently asked lawmakers not to include current safe harbor language in future trade agreements.

This is also the advice of the House Judiciary Committee. While the committee isn’t taking a position on a future direction just yet, it wants to await current developments before porting current US liability exceptions into international deals.

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The CCIA’s submission to the USTR is available here (pdf) and the Internet Association’s submission can be found here (pdf).

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With millions of views per day, Movie2Free.com was one of the largest pirate sites on the Internet, particularly popular in south-east Asia.

In the west, the site doesn’t ring a bell with most people. In Thailand, however, it was listed among the top 15 most visited websites in the country, only beaten by Google, YouTube, and a few others.

The site’s popularity didn’t go unnoticed by Hollywood. Earlier this year the MPA listed the site in its yearly overview of notorious pirate sites, which it submitted to the US Trade Representative.

“The site provides access to an array of movie and TV content and comes replete with high-risk ads with malware,” the group wrote.

The MPA also informed local authorities about the site’s activities. This triggered a high-profile investigation by the Department of Special Investigation (DSI) which led to the site’s shutdown this week, the Bangkok Post reports.

Movie2Free.com, which was founded in 2014, is reportedly owned by a 30-year-old Thai man who lives abroad. He hired an operator, a 22-year-old man from the north of Thailand, who was arrested at his house a few days ago.

“The DSI has found that the Thai man who was running the pirated movie website… was living abroad,” DSI director-general Paisit Wongmuang said, commenting on the news.

According to the DSI director “the site had used sophisticated equipment that made it hard for authorities to track it down, and had set up a server abroad.”

Interestingly, the site’s domain name is still active, now linking to what appears to a page promoting local charities.

A few days ago, however, the site was still offering access to thousands of movies. The owner generated revenue from various advertisements and reportedly earned more than $160,000 (5 million baht) per month. Whether that’s an estimate or a confirmed figure is unknown.

While no charges have been announced yet, authorities plan to hold the operator liable for copyright infringement. Potential tax violations are being investigated too, as well as a violation of the local gambling ban since the site had several gambling-related ads.

The Thai examiner further notes that Movie2fFree.com was used extensively by retailers who sell pirated DVDs. Whether the shutdown will have any effect on these sales has yet to be seen, as there are plenty of alternatives still online.

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During April 2018, the government in Japan introduced emergency websites blocking measures, seeking assistance from ISPs to block three pirate sites – Mangamura, AniTube! and MioMio.

Just four days later, one of the sites – giant manga platform Mangamura – suddenly called it quits, shutting itself down and creating a massive gap in the piracy market.

It transpired that a criminal investigation was underway into the activities of Mangamura, which eventually led to the arrest of the site’s alleged operator in Manilla, his deportation to Japan, and subsequent arrest by authorities there.

The gigantic scale of Mangamura has never been in question. However, a report published by the Motion Picture Association now reveals its importance not only on the pirate manga market, but also on the pirate market overall in Japan.

Starting with a list of 2,600 sites, the report – covering the period July 2017 to July 2019 – homes in on the most frequently accessed piracy sites/apps targeting Japan that offer movies, TV shows, anime, and manga content. Sites focusing exclusively on music, games, and porn were ruled out, leaving a balance of 1,447 ‘pirate’ sites.

The top 10 most highly-visited sites accounted for around 50% of visits to the 1,447, with the top 100 accounting for more than 90%. All sites with more than 100,000 visits per month (624 in total) were the main focus of the report.

In respect of Mangamura, the report classifies that now-defunct platform as an ‘online reading’ site, meaning that people viewed its content using a browser. The chart below shows the dramatic rise and fall of the niche the platform operated in, plotted against other forms of ‘pirate’ consumption.

As the image shows, in addition to ‘online reading’ sites, all other types of ‘pirate’ consumption took a big hit around the same time that Mangamura shut down.

The report notes that the government’s urging of ISP blockades against Mangamura, Anitube, and MioMio “greatly affected the number of visits to other piracy sites”, resulting in an overall decrease in traffic. However, it appears that all three shut down before they could be blocked.

Nevertheless, the overall effect on the pirate markets detailed in the study appears to be significant, due to the shutdown of those major manga platforms and the government’s anti-piracy stance.

According to the report, in March 2018 the total number of monthly visits to the sample 624 sites was measured at 640 million. A month later, monthly visits had collapsed to just over 400 million. By June 2018, traffic had reduced further still, to a low of 320 million visits per month.

Since June 2018, there has only been a modest increase in traffic to the sample sites. Noting that overall levels of infringement are “still large”, the report states that current visits have increased by just 20 million, to an estimated 340 million per month.

Finally, no piracy report seems complete these days without Cloudflare getting a mention, and this one is no different.

While those who carried out the study were able to identify the ultimate hosting locations of 39% of the 624 pirate sites (top three hosting countries were the United States 9%, Japan 6%, and Netherlands 5%), 61% couldn’t be geolocated. Of these, 86% were ‘hidden’ behind Cloudflare’s services.

The interesting twist, however, is that in response to a request from Japanese publishers, it was Cloudflare that handed over information which allowed investigators to identify the operator of Mangamura, which ultimately led to his arrest and previously, the shutdown of the site.

The full report, ‘Study Benchmarking and Tracking Online Film & TV Piracy in Japan’, is available here (pdf)

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