For more than a decade copyright holders have been sending ISPs takedown notices to alert account holders that someone’s been using their connection to share copyrighted material.

These notifications have to be forwarded under the DMCA law and are meant to deter Internet subscribers from sharing unauthorized material.

Cox Communications is one of the ISPs that forwards these notices. The ISP also implemented a strict set of rules of its own accord to ensure that its customers understand the severity of the allegations.

According to some copyright holders, however, Cox’s efforts are falling short. Last month BMG Rights Management and Round Hill Music sued the ISP because it fails to terminate the accounts of repeat infringers.

The companies, which control the publishing rights to songs by Katy Perry, The Beatles and David Bowie among others, claimed that Cox has given up its DMCA safe harbor protections due to this inaction.

The case is a critical test for the repeat infringer clause of the DMCA and the safe harbor protections ISPs enjoy.

Today Cox replied (pdf) to the complaint, denying pretty much all allegations put forward by the music publishers. In addition, the ISP briefly outlined various defenses it submits in reply.

The company argues that the claims against the company are barred for a wide range of reasons. Cox had no knowledge of the infringements, for example, and never had the intent to induce, profit from, or materially contribute to piracy conducted by its customers.

In addition the ISP notes that the claim of vicarious liability falls flat because the company has no controlling (Respondeat superior) relationship with its customers.

While the responses are very brief, and have yet to be detailed in the future, Cox also argues that the music publishers may not have the proper copyrights to some of the works that are at stake.

“Plaintiffs’ claims are barred to the extent they do not own copyrights in the works underlying their claims,” they note,

In addition, Cox’s lawyers argue that “the doctrine of copyright misuse” bars their claims, suggesting that BMG and Round Hill Music used abusive or improper practices in exploiting or enforcing copyright.

The latter may refer to the settlement schemes the publishers are engaged in together with Rightscorp. A few weeks ago Rightscorp and its clients were sued for fraud, harassment and abuse for their controversial anti-piracy actions.

The case will now move forward with both sides substantiating their claims during the months to come. Given the importance of the issue at hand it wouldn’t be a surprise if other ISPs and web services such as Google also chime in.

Source: TorrentFreak, for the latest info on copyright, file-sharing, torrent sites and anonymous VPN services.

Born in 1954, Brett Kimberlin has led a colorful criminal life. In 1973 he was convicted of felony perjury after lying about his activities to a grand jury investigation drug trafficking.

Five years later Kimberlin became a suspect in the murder of Julia Scyphers, a 65-year-old grandmother who strongly disapproved of Kimberlin’s relationship with her 13-year-old granddaughter. Scyphers had been shot once in head.

However, police in Speedway, Indiana, soon had additional things on their mind. In the first few days of September 1978 a wave of bombings hit Speedway which led to serious injuries including the loss of a Vietnam veteran’s leg.

Authorities believed that Kimberlin set up the Speedway Bombings as an attempt to distract from the investigation into Scyphers’ murder. While Kimberlin was never tried for this crime (the only witness died) he was convicted of the bombings and sentenced to 51 years in prison.

Ever since, Kimberlin – the son of a lawyer – has become known for filing lawsuits against his critics – and failing miserably.

Nevertheless, Kimberlin isn’t giving up. In one ongoing case (Brett Kimberlin vs National Bloggers Club) the convicted bomber is taking action against several bloggers who wrote things about his past he took offense to. It’s a quagmire of a case and one that has just seen Kimberlin reference copyright-trolling aspects for the first time.

At this point Kimberlin is trying to identify a person who wrote about him on the Ace of Spades blog (AOS) but is not named as a party in the action. So far Kimberlin has been unsuccessful, however he feels that since litigants in copyright cases have previously succeeded in unmasking alleged infringers, he should also be able to.

“Defendant AOS repeatedly states that since Plaintiff has not identified AOS as a person in the Complaint, he cannot seek the identity of AOS. This circular argument highlights one of the basic reasons why Plaintiff needs to know the identity of AOS,” Kimberlin told a Maryland district court yesterday.

“As this Court noted in [an earlier Malibu Media case, extract below], a plaintiff cannot effectively litigate a civil case if he does not know the identity of the defendant.”

Malibu cannot engage in discovery to probe the underlying facts underlying its claim without first naming a defendant. Unless Malibu is permitted, at least at the initial stages of litigation, to proceed against a subscriber, it will be caught in a Catch-22…(link)

“It should be noted that this Court has granted the issuance of subpoenas in scores of cases brought by Malibu Media to identify anonymous civil defendants who violated copyrights by illegally downloading films,” Kimberlin continues.

“Many of those defendants made arguments similar to AOS, (e.g.,they would be subjected to harassment or pressured into settlement), yet every Maryland federal judge in each of those cases rejected their arguments.

“Wherefore, for all the above reasons and the reasons set forth in Plaintiff’s motion, this Court should order the identity of AceofSpades,” Kimberlin concludes.

Whether or not the Court will be swayed by Kimberlin’s arguments remains to be seen, but Popehat’s assessment of Kimberlin’s current and previous legal efforts is hardly a shining one.

Source: TorrentFreak, for the latest info on copyright, file-sharing, torrent sites and anonymous VPN services.

The Popcorn Time app brought peer-to-peer streaming to a mainstream public last year.

Branded the “Netflix for Pirates” it became an instant hit by offering BitTorrent-powered streaming in an easy-to-use Netflix-style interface.

This was cause for concern for many Hollywood executives and Netflix itself is now also starting to worry. In a letter to the company’s shareholders Popcorn Time gets a special mention.

“Piracy continues to be one of our biggest competitors,” Netflix CEO Reed Hastings writes.

“This graph of Popcorn Time’s sharp rise relative to Netflix and HBO in the Netherlands, for example, is sobering,” he adds, referencing the Google trends data below showing Popcorn Time quickly catching up with Netflix.

While it’s a relatively small note, Hastings’ comments do mark a change in attitude for a company that previously described itself as a piracy killer.

Netflix’s CEO previously noted that piracy might even help the company, as many torrent users would eventually switch to Netflix as it offers a much better user experience.

“Certainly there’s some torrenting that goes on, and that’s true around the world, but some of that just creates the demand,” Hastings said last year.

“Netflix is so much easier than torrenting. You don’t have to deal with files, you don’t have to download them and move them around. You just click and watch,” he added.

The problem with Popcorn Time is that it’s just as easy as Netflix, if not easier. And in terms of recent movies and TV-shows the pirated alternative has a superior content library too.

A study published by research firm KPMG previously revealed that only 16% of the most popular and critically acclaimed films are available via Netflix and other on-demand subscription services.

While Netflix largely depends on the content creators when it comes to what content they can make available, this is certainly one of the areas where they have to “catch up.”

Despite the Popcorn Time concerns, business is going well for Netflix. The company announced its results for the fourth quarter of 2014 which resulted in $1.48 billion in revenue, up 26%, and a profit of $83 million.

Source: TorrentFreak, for the latest info on copyright, file-sharing, torrent sites and anonymous VPN services.

Site blocking actions have become relatively common throughout Europe over the past several years. Copyright groups have won court cases in various countries including the UK, Austria, Belgium, Denmark, Italy and France.

The rightsholders typically argue that ‘pirate’ sites infringe their rights and demand that ISPs stop forwarding traffic to them. This was also the plan in Greece, where the Greek Society for the Protection of Intellectual Property (AEPI) sued local ISPs two years ago.

AEPI wanted the Internet providers to block access to The Pirate Bay, KickassTorrents, isoHunt, 1337x and H33T, plus several local sites. The group argued that the sites damage their members’ businesses, but the ISPs countered this request by pointing out that censorship is not the answer.

A few days ago the Athens Court reached its conclusion which largely sides with the ISPs. The ruling states that blockades are disproportional and in violation of various constitutional rights.

Among other things, such measures would breach people’s right to freedom of information, confidential communications and protections against the collection, processing and use of personal data.

One of the problems the Court signaled is that the torrent sites also contain links to files that are distributed legally. These would be needlessly censored by the blockades.

In addition the verdict doubts that the blockades will be effective to begin with, as there are various circumvention options for site owners and users.

The Court further referenced the Charter of Fundamental Rights of the European Union, noting that ISPs’ “freedom to conduct a business” is at stake, as well as net neutrality principles.

“…the requested injunction goes contrary to Article 16 of the EU Charter of Fundamental Rights, violating the rights of defendants providers in entrepreneurship, and the basic principle of Internet neutrality, which provides that all information must be handled without discrimination,” it notes.

TF spoke with Dr. Konstantinos Komaitis, an expert in Internet governance and intellectual property, who argues that in such cases proportionality is key in determining the appropriate balance.

“The decision by the Greek Court is very well thought and reasoned both from a legal and technology perspectives,” Komaitis says.

Komaitis explains that other, more appropriate and technology neutral measures should be considered, because blocking torrent sites would interfere with the right to freely share and receive information. In addition the measures are unnecessary and ineffective, since users would be able to find ways to get past the blockades.

“On the technology side, the Court correctly understood that torrent technology can — and has been – used for legal purposes, so blocking would not only be ineffective but also jeopardize its legal use,” Komaitis adds.

“All in all, the Court’s decision demonstrates two things: first, proportionality is an unwavering principle in the Greek legal system that is able to strike a very important balance between various rights; and, second, the ability of courts to understand and protect technologies that are part of an innovative Internet environment.”

The Greek verdict is similar to that of a Dutch Appeals court in The Hague last year, which ruled that the local blockade of The Pirate Bay had to be lifted.

In Greece AEPI still has the option to appeal the verdict, but whether they plan to do so is unknown at the moment. For the time being, however, the targeted torrent sites remain accessible.

Source: TorrentFreak, for the latest info on copyright, file-sharing, torrent sites and anonymous VPN services.

For friends and foe alike, the past 44 days have resulted in a will it / won’t it return guessing game surrounding The Pirate Bay.

The self-styled “world’s most resilient torrent site” put a dent in its own billing by going down after a December 9 raid and failing to return. But that has done little to stop speculation that something is on the way.

Via a web server in Moldova, those behind the site have been posting various hints and teasers suggesting that the current downtime will come to an end in roughly 10 days time. Whether that will actually be the case remains to be seen, but new changes today have certainly excited observers.

As can be seen from the image above, ThePirateBay.se has today reverted to a much more familiar look. With the earlier black and waving full-page pirate flag shrunk to fit a box in the center of the screen, its surroundings are now almost identical to the layout in place when the site went down in December.

Returned but currently grayed out are the well-worn torrent browsing features, categories, preferences and languages. PirateBrowser and PromoBay links are active, however. These and the familiar Pirate Bay logo are now bordered by two features that have welcomed visitors for the past several weeks.

At the bottom of the page the notorious Pirate galleon continues to sail towards its island destination (now renamed welcomehome.png) and up top the countdown timer continues inexorably towards its February 1 conclusion.

Other technical changes include the implementation of a Cloudflare protected front end for the site, although TF can confirm that the site is still based at Trabia, the Republic of Moldova’s largest datacenter.

While it seems unlikely that Pirate Bay will stay in that location should it return next week, the company behind the site’s hosting has already laid down some pointers.

“We do support freedom of speech and barrier-free Internet usage. In the same time we operate a strict zero-tolerance abuse policy which is part of our terms of service on which all services we provide to our clients are based,” the company said in a statement.

“This means that our clients have to obey national and international laws. In case our clients violate this by abusing our services they are suspended and/or terminated if necessary.”

Given the site’s current status (no sharing features whatsoever) Trabia says that no action against the site is needed. The company does note, however, that Moldova’s copyright law of 2010 can require a host to take action against sites that violate the rights of third parties. Nevertheless, the issue may not be straightforward in the case of The Pirate Bay.

“The problem here is that the technology used, so called ‘magnet links’, is not violating the right of 3rd parties directly,” the company says.

“[There] is actually no copyright infringement originating from websites such as ‘thepiratebay.se’ which makes it a very complex case which is open for a lot of interpretation and discussions. We stand behind all our clients as long as they use our services for a legal purpose,” Trabia concludes.

In the meantime the Swedish investigation into the site continues and is likely to take months to complete. Millions hope the site’s return will precede the investigation’s conclusion.

Source: TorrentFreak, for the latest info on copyright, file-sharing, torrent sites and anonymous VPN services.