Some of the world’s largest music companies have taken several ISPs to court, accusing them of not doing enough to curb piracy.

This legal campaign, which is supported by the RIAA, resulted in a massive windfall for the copyright holders last month.

Following a two week trial, Cox was found guilty by a jury that awarded a billion dollars in damages. Soon after this win, the music companies shifted their focus to the next battle, the upcoming trial against ISP Grande Communications.

Similar to the Cox case, the music companies, including Capitol Records, Warner Bros, and Sony Music, argue that the Internet provider willingly turned a blind eye to pirating customers. As such, it should be held accountable for copyright infringements allegedly committed by its users.

Grande will start the trial at a severe disadvantage. The court previously granted summary judgment in favor of the record labels, ruling that the ISP will go to trial without a safe harbor defense. This means that it can be held secondarily liable for the pirating activity of its users.

This week both parties submitted their ‘voir dire’ questions for potential trial jurors. The jury consists of members of the public, but the legal teams from both sides are allowed to ask questions during the selection process, to ensure that jurors are unbiased.

The music companies, for example, will ask whether potential jurors or people close to them, ever worked for Grande Communications. That makes sense. The same is true for the question that asks whether they have any negative opinions of record labels.

While browsing through the 40 questions for the jurors, we also noticed that the labels are interested in anyone reading this article right now. Apparently, being a reader of TorrentFreak or Ars Technica is something prospective jurors must disclose.

“Have you ever read or visited Ars Technica or TorrentFreak?” question 33 reads.

What the labels plan to do with the answers remains a guess. We have covered these and other piracy liability lawsuits in great detail over the years. So, perhaps the labels want to pick our readers, many of whom are legal experts. On the other hand, our news selection and the associated knowledge may also be seen as bias.

Whatever the reason, we’ll take it as a compliment.

Reading through the rest of the questions we see more interesting mentions. The labels want to know whether the jurors have ever downloaded anything from torrent sites such as The Pirate Bay and RARBG, for example. In addition, they are asked whether they support the Electronic Frontier Foundation (EFF) or if they ever worked for a technology company.

What also stands out is the question that asks prospective jurors if they believe there are “too many frivolous lawsuits nowadays,” while asking the candidates to give examples.

The record labels are not the only ones asking questions of course. Grande Communications has also prepared a list, hoping to signal bias or other disqualifying factors.

The ISP asks, for example, if the candidates have ever worked at a record label or in the music industry. The company also asks whether they believe it’s an ISP’s responsibility to monitor and police online piracy.

Grande doesn’t ask about TorrentFreak, but it does want to know whether the prospective jurors have ever heard of BitTorrent.

The jury selection for the upcoming trial is scheduled to take place on February 24th and the trial will start a day later. In the coming weeks, both parties will work on their final preparations.

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The record label’s questions are available here (pdf) and Grande Communication’s questions can be found here (pdf).

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There are thousands of businesses and individuals involved in the supply and sale of ‘pirate’ IPTV services around the globe.

These subscription packages routinely grant access to hundreds and even thousands of otherwise premium channels for a cheap price, undermining the business models of content providers and broadcasters alike. This has resulted in both criminal and civil action across several continents with broadcaster DISH Network leading the charge in the US.

Just one of the company’s lawsuits, filed last August in a Texas court, targeted Easybox, an IPTV service that reportedly offered subscribers more than 1,000 channels, including more than two dozen channels exclusively licensed by DISH.

“Defendants capture live broadcast signals of the Protected Channels, transcode these signals into a format useful for streaming over the Internet, transfer the transcoded content to one or more servers provided, controlled, and maintained by Defendants, and then transmit the Protected Channels to Service Users through OTT delivery,” the DISH complaint alleged.

According to DISH, the company went to great lengths to have Easybox cease its activities in advance of filing the lawsuit, including sending almost 300 copyright infringement notices to the service and its CDN providers, all of which were ignored.

Last September, DISH was granted permission to subpoena several companies (including PayPal, Google and Namecheap) in order to identify the people behind Easybox. They were eventually named as Hung Tran and Thi Nga Nguyen.

With the individuals mounting no defense, DISH requested a default judgment at the end of December 2019 with a clerk entering a default earlier this month. DISH has now laid out its proposals for a final judgment and permanent injunction.

“Defendants, without authorization from DISH, transmitted the Protected Channels and the copyrighted works that air on those channels to users of their Easybox set-top boxes, smart IPTV subscriptions, and subscription renewals in the United States. In doing so, Defendants directly infringed DISH’s exclusive rights to distribute and publicly perform the works that air on the Protected Channels,” the proposed order reads.

Laying out its claim for direct copyright infringement, DISH demands statutory damages of $150,000 for each of 66 registered and copyrighted works owned by DISH and that the defendants “willfully and maliciously infringed by transmitting without authorization on the Easybox service.” That’s a not-insignificant total of $9.9m.

In addition, DISH is demanding a permanent injunction to prevent the defendants or anyone acting in concert with them from streaming, distributing, or publicly performing DISH channels and programming, and/or advertising, selling or providing any service offering the same.

DISH is also requesting an order preventing any company from providing infrastructure to the defendants in respect of Easybox or a similar service. These include data centers, domain companies, domain anonymization services, CDNs, and social media platforms.

The broadcaster further demands that Verisign and any other registries or registrars of the domains Easybox.tv, E900x.com, and k2442.com should render them inaccessible before transferring them to DISH for the company’s use. Any future domains registered by the defendants for the purposes of infringing DISH’s rights should be treated similarly, the proposed injunction reads.

The court is yet to sign off on DISH’s proposals but given the one-way traffic thus far in what has become a busy case generating thousands of pages of documents, a judgment favorable to Easybox seems unlikely.

The motion for default judgment and the proposed final judgment and permanent injunction can be found here and here (pdf)

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A few months ago, the office of the US Trade Representative (USTR) started an in-depth inquiry into South Africa’s copyright policies and plans.

The US Government launched this official review following complaints from the International Intellectual Property Alliance (IIPA).

The coalition of prominent rightsholder groups, including the MPA and RIAA, informed the USTR that they’re not happy with how South Africa addresses copyright issues. Lacking enforcement of online piracy was prominently mentioned, as well as the country’s approach towards fair use.

The fair use angle has triggered a wide range of responses from stakeholders who sent their thoughts to the USTR a few days ago.

South Africa plans to introduce a fair use provision into law that is largely based on the US model. According to the IIPA, this is dangerous, as the country can’t rely on 150 years of existing case law. In addition, the new provisions are even broader than the US variant while they arrive on top of the existing ‘fair dealing’ system, the group warns.

The public submissions show that several rightsholders are siding with IIPA, but there’s also overwhelming pushback from public interest groups, organizations, and legal experts.

Pretty much all critics of the IIPA’s stance explain that South Africa’s fair use proposal is largely the same as the US model. The problems signaled by the IIPA are overblown, they argue, adding that South Africans should enjoy the same freedoms as Americans.

There’s not enough space to highlight all protests, but we will provide a short overview of some of the opposition’s responses.

The Internet Association, which represents many large technology companies including Amazon, Google, Microsoft, and Spotify, strongly urges the USTR to reject the IIPA’s fair use complaints.

“South Africa’s fair use measure is modeled on U.S. law and includes a standard four-factor test that strikes an appropriate balance between the interests of authors, creators, and users,” 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.”

Wikipedia’s parent company Wikimedia also chimes in. The organization stresses that fair use has allowed US creators and consumers broader access to knowledge. The South African fair use proposal is very similar and by no means a threat, they add.

“While we respect the need to ensure that copyrighted works are properly protected abroad, the reasonable exceptions and limitations included in the draft amendments to South African copyright law are not going to erode that protection any more than the century-long tradition of fair use has in the United States.

“[]It makes little sense to prevent South African citizens from the freedoms that have long been held by citizens in our own country,” Wikimedia notes.

The African Library and Information Associations and Institutions (AfLIA) stresses than many countries have been able to enjoy fair use for decades. Not allowing South Africans the same right is a breach of constitutional rights.

“A developing country like South Africa, that wants to improve its copyright law by modeling it on the US copyright law and other progressive copyright regimes, should be encouraged and affirmed, not punished for doing so,” AfLIA writes, urging the USTR to stop its review.

The International Federation of Library Associations and Institutions (IFLA) agrees with the other opponents. The group compared the US and South African fair use texts and found “no substantive differences.”

Any additional exceptions in the South African proposal follow the model that already exists in US copyright law and can draw on existing jurisprudence, the IFLA adds.

Peter Jaszi, Emeritus Professor of Law at the American University’s Washington College of Law, sees no roadblocks for the fair use proposal either.

“It seems anomalous that the creative industries in a country where fair use is a venerable part of the law would object to another nation’s decision to adopt it as part of an effort to promote domestic innovation,” Jaszi says.

Finally, the South African government is not being swayed by the IIPA’s concerns either. In its submission, it cites other US businesses, including Google, that support its plans. In addition, South Africa stresses that it has a widely-respected tradition of judicial competence and independence when it comes to intellectual property law.

A complete overview of all the responses, including those in favor of the IIPA, is available here. The USTR will take these into account when it makes it final decision on any possible trade sanctions or other recommendations.

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To protect copyright holders, YouTube uses advanced tools that flag and disable videos which are used without permission.

In addition to this Content-ID system, copyright holders can also submit manual takedown notices to remove infringing content.

Both routes have led to abuse in the past, resulting in takedowns of perfectly legitimate videos. This is particularly worrying for channel owners, as these allegations can potentially lead to multiple copyright strikes after which YouTube removes the entire account.

Over the years we have covered takedown mishaps in great detail. However, this week we learned something new. As it turns out, copyright holders also have the ability to remove content that doesn’t exist yet. A preemptive copyright strike, so to speak.

This unusual takedown strategy was revealed by Matt Binder, a reporter at Mashable who hosts a podcast named DOOMED, which is also live-streamed through YouTube.

Earlier this month, Binder scheduled a show discussing CNN’s Democratic candidates’ debate with progressive activist Jordan Uhl. The show was recorded after the broadcast and in preparation Binder scheduled the podcast’s livestream on YouTube, with “post-Democratic debate” in the title.

Many creators use this scheduling feature to announce their upcoming live streams. What’s new, however, is that Binder’s scheduled stream was removed before it even started. In other words, the content was deemed to be infringing before it existed.

Binder documented the unusual episode on Mashable where he also reveals that the takedown notice was issued on behalf of Warner Bros. Entertainment, which owns CNN.

“The notice informed me that I had received a copyright strike for my scheduled stream,” Binder writes, noting that YouTube immediately restricted his ability to stream content live.

“That one copyright strike was enough to disable livestreaming on my channel for the strike’s three-month duration. If I were to accumulate three strikes, YouTube would just shut down my channel completely, removing all of my content,” Binder adds.

Apparently, Warner Bros. and CNN were monitoring streams that could potentially infringe on their right to broadcast the Democratic candidate’s debate. Based on the title alone, they mistakenly concluded that Binder’s stream was going to be illegal, which it clearly wasn’t.

To correct the mistake Binder protested the takedown notice, hoping that it would be swiftly reversed. However, his first request was denied because it was unclear if he had a valid reason to file a counter-notification.

As a reporter, Binder followed up the story and reached out directly to YouTube, informing the company that he planned to write about the issue. That worked, as the mistake was soon corrected and the copyright strike disappeared as well.

One has to wonder, however, if the average Joe would be able to achieve the same result. In any case, it seems off that copyright holders can claim copyright infringement on content that has yet to be created.

We previously reported that Google search allows rightsholders to remove infringing URLs that are not yet indexed by the search engine. Binder’s case is similar but goes a step further as the allegedly infringing content didn’t exist when the stream was taken down.

YouTube constantly has to balance the interests of its users and those of copyright holders. It’s likely that the option to preemptively strike live streams is used to make it easier to take down scheduled broadcasts of sports games or other time-sensitive major broadcasts.

While this preemptive takedown option may be useful, Binder’s example shows that these powers can also lead to overblocking, which can seriously hurt legitimate content creators.

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Last month the United States, Canada, and Mexico signed off on a new trade deal, which replaced the quarter-century old the NAFTA agreement.

The United States-Mexico-Canada Agreement (USMCA) will accommodate changes in trade that the three countries have witnessed over the years, especially online.

After the US Senate passed the legislation earlier this month, President Trump has now signed the new text into law. Replacing NAFTA with a better deal was one of the President’s election promises, which is now fulfilled.

The USMCA covers a wide range of trade topics including copyright and anti-piracy enforcement. On the copyright side, the deal doesn’t bring much change to US law. However, the new deal does require Mexico and Canada to revise some of their policies.

For example, USMCA requires all countries to have a copyright term that continues for at least 70 years after the creator’s death, which is already the case in the US.

For Canada, however, this means that the country’s current copyright term must be extended by 20 years. This won’t happen instantly, as the country has negotiated a transition period to consult the public on how to best meet this requirement. In the long term, an extension seems inevitable though.

Another controversial subject that was widely debated by experts and stakeholders is the DMCA-style ‘safe harbor’ text. In the US and under certain conditions, ISPs are shielded from copyright infringement liability under the safe harbor provisions of the DMCA and the new deal expands this security to Mexico and Canada.

This safe harbor expansion is welcomed by many large technology companies including Internet providers and hosting platforms. However, many major entertainment industry companies and rightsholder groups are not happy, as they are trying to get rid of these broad safe harbor policies.

The Directors Guild of America previously said it was “deeply disappointed” that the new USMCA deal will export the “flawed and outdated United States policy” that allows online services to “shirk responsibility for copyright violations.”

Last year the House Judiciary Committee also urged the US Trade Representative not to include any safe harbor language in trade deals while the Copyright Office is reviewing the effectiveness of the DMCA law, but without result.

That said, the USMCA’s safe-harbor language also comes with obligations for online services. The agreement specifically mentions that ISPs must take down pirated content and implement a repeat infringer policy if they want to apply for safe harbor protection. This is largely modeled after the DMCA law.

The safe harbors for copyright infringement and the takedown requirements don’t apply to Canada as long as it continues to rely on its current notice-and-notice scheme. However, the country will enjoy safe harbors for other objectionable content, modeled after section 230 of the US Communications Decency Act.

Despite criticism from many copyright holder groups, the Motion Picture Association (MPA) is happy that the new trade agreement is now law.

“USMCA will help facilitate the growth of the legal digital market for creative content while addressing the multi-billion dollar threat of online piracy,” MPA’s CEO Charles Rivkin comments.

While Trump has signed the USMCA into law, Mexico and Canada have yet to follow. Canada started this process yesterday when Deputy Prime Minister Chrystia Freeland
introduced the USMCA implementation bill.

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