When Megaupload was shut down in January 2012, US authorities did everything within their power to financially ruin Kim Dotcom and his associates.

Aside from taking much of his personal property, tens of millions of dollars of assets were seized around the world.

Under instruction from the U.S. government, US$42.57m in assets were seized in Hong Kong and since then Dotcom has been trying to claw it back, bit by bit.

Back in July, Dotcom revealed that the Hong Kong High Court had released more of his funds, plus four containers of seized property. Noting that he missed the country, he gave thanks for the lifeline.

“Thanks to a Hong Kong Judge my family can move to Queenstown and my kids will be surrounded by beautiful mountains & lakes instead of spies,” Dotcom said.

That move eventually went ahead, with Dotcom regularly tweeting beautiful waterside views from his new home over the past few months. But of course, nice things tend to cost quite a bit of money, so Dotcom’s legal team have been working hard in Hong Kong to have more funds released.

According to a report from NZHerald, his latest request is fairly sizeable, reaching NZ$1.2m (US$829,400), everything considered.

First up, Dotcom is seeking around NZ$1m (US$691,200) for costs relating to his relocation from Auckland to Queenstown. That’s comprised of two years worth of rent at NZ$40,000 (US$27,648) per month (no typo), plus NZ$150,000 (US$103,680) to cover the actual cost of the move.

On top, Dotcom is looking for NZ$73,000 (US$50,457) per month for living expenses, an amount that’s roughly US$2,000 per month up on the amount he currently receives.

According to the report, Dotcom’s team are also proposing a further amount of NZ$200,000 (US$138,240) to cover emergency items including “medical expenses of the family, car maintenance, household repairs and two holidays of the family”.

It seems unlikely that this will be the final request from Dotcom. According to Gerard McCoy, Dotcom’s lawyer in Hong Kong, the extradition process in New Zealand is nowhere near complete. In fact, McCoy told the court that proceedings won’t be completed during the next two years.

That takes us to 2020, at least, meaning that Dotcom will still be in New Zealand a full eight years after the raid. Given the massive number of court battles and subsequent appeals into every detail of several resulting cases, that’s probably not a surprise, however.

The progress in the extradition process itself is also somewhat glacial, with the next hearing set for the first quarter of 2018 in the Court of Appeal. If past experience is anything to go by, neither side will be happy with the outcome. This means that an appeal to the Supreme Court is almost inevitable.

Over in the United States, progress has also been slow. Recently, a petition from Dotcom and his former Megaupload colleagues over millions of dollars in seized assets was denied by the US Supreme Court.

While this decision means that the battle over a further US$67 million in assets has been exhausted, the question of whether Dotcom and former colleagues Mathias Ortmann, Bram van der Kolk and Finn Batato will ever stand trial in the US remains unanswered.

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

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Increasingly, people are trading in their expensive cable subscriptions, opting to use cheaper or free Internet TV instead.

This is made easy and convenient with help from a variety of easy-to-use set-top boxes, many of which are specifically configured to receive pirated content.

Following this trend, there has also been an uptick in the availability of unlicensed TV subscriptions, with dozens of vendors offering virtually any channel imaginable. Either for free or in exchange for a small fee.

Until now the true scope of this piracy ecosystem was largely unknown, but a new report published by Canadian broadband management company Sandvine reveals that it’s massive.

The company monitored traffic across multiple fixed access tier-1 networks in North America and found that 6.5% of households are communicating with known TV piracy services. This translates to seven million subscribers and many more potential viewers.

One of the interesting aspects of IPTV piracy is that most services charge money, around $10 per month. This means that there’s a lot of money involved. If the seven million figure is indeed accurate, these IPTV vendors would generate roughly $800 million in North America alone.

“TV piracy could quickly become almost a billion dollar a year industry for pirates,” Sandvine writes in its report, noting that the real rightsholders are being substantially harmed.

Pirate subscription TV ecosystem

According to Sandvine, roughly 95% of the IPTV subscriptions run off custom set-top boxes. Kodi-powered devices and Roku boxes follow at a respectable distance with 3% and 2% of the market, respectively.

With millions of viewers, there’s undoubtedly a large audience of pirate subscription TV viewers. This is also reflected in the bandwidth these services consume. During peak hours, 6.5% of all downstream traffic on fixed networks is generated by TV piracy services.

To put this into perspective; this is more than all BitTorrent traffic during the peak hours, which was “only” 1.73% last year, and dropping.

The pirate IPTV numbers are quite impressive, also when compared to Netflix and YouTube. While the two video giants still have a larger share of overall Internet traffic on fixed networks, pirate TV subscriptions are not that far behind.

Internet traffic share throughout the day

The graph above points out another issue. It highlights that many IPTV services continue to stream data even when they’re not actively used (tuned into a channel with the TV off). As a result, they have a larger share of the overall traffic during the night when most people don’t use Netflix or YouTube.

This wasted traffic is referred to as “phantom bandwidth” and can be as high as one terabyte per month for a single connection. Physically powering off the box is often the only way to prevent this.

Needless to say, “phantom bandwidth” increases IPTV traffic numbers, so it doesn’t necessarily mean that all this traffic is actively consumed.

Finally, Sandvine looked at the different types of content people are streaming with these pirate subscriptions. Live sporting events are popular, as we’ve seen with the megafight between Floyd Mayweather and Conor McGregor. The same is true for news channels and premium TV such as HBO and international broadcasts.

The most viewed of all in North America, with 4.6% of all pirated TV traffic, is the Indian Star Plus HD.

All and all it is safe to conclude that IPTV piracy is making up a large part of the pirate ecosystem. This hasn’t gone unnoticed to copyright holders of course. In recent months we have seen enforcement actions against several providers and if this trend continues, more are likely to follow.

Looking ahead, it would be interesting to see some numbers of the “on demand” piracy streaming websites and devices as well. IPTV subscriptions are substantial, but it would be no surprise if pirate streaming boxes and sites generate even more traffic.

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

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Day Two dawns… most people are bright-eyed and ready for another day, although, if I’m honest, some people may be here more in body than in spirit…

LibreELEC Logo

First on today, chewitt from LibreELEC gave us an update: the installed base continues to grow, with the Raspberry Pi in different forms easily remains the dominant platform, although this is slowly declining in favour of SoC (Android stock) devices. Given the appliance nature of LE – operating system and applications – a large part of the presentation was given over to security, including automated updates and the overall integrity of the process.

GSoC Logo

Next up, a series of sessions led by our newest team members – our Google Summer of Code students (or maybe “graduates” now, given their contributions!).

Vel0city presented his work on multi-pass shaders – programs that run on the GPU to manipulate an image frame at a pixel level between decoding and display – so, blur, enhance, scale, and so on. These are particularly useful for improving image quality when perhaps the display technology has advanced significantly beyond what the source material was created for (resolution, colour depth, frame rate, etc.).

Next, yol took us through his work on touch and Wayland (vs X11) integration. While we’d had some Wayland implementation previously, this work brought it right up-to-date with native support within Kodi on Linux.

And finally, arpitn30 talked about his project to port over to Python 3 (Python 2.x goes end of life in 2020). As would be expected, this involved changed library calls, removal of deprecated syntax, and updated dependencies and versions. There are significant differences between Python 2 and 3 – they’re almost different languages – which give rise to real challenges in a cross-platform, multi-version environment. Of course, the shift to Python 3 will require rework in all Python addons, so this is a long-term migration across many different packages. If you’re an addon author, keep an eye out for further information on this topic in the coming weeks and months, as it’s not negotiable.

To close off GSoC 2017, then, razze led a conversation about GSoC 2018 – a call for more mentors, for more developers to get involved. We can bring in students, we can offer project ideas, but we need the experience of the existing developers to be successful: to help orientate people to the code and guide them through the best way to get code accepted into Kodi for release.


After a brief but passionate conversation about trademarks, licensing and similar, the sessions moved on to usability, and the “out-of-the-box” appeal of piracy addons versus “raw” Kodi. While we don’t provide any content, we could maybe make it easier for people to catalogue their media, perhaps with more pre-defined skin nodes or similar. We also covered interaction between addons and skins, and what the implications are of some modules either demanding or objecting to the presence of other modules, and what this means for the user experience.

Following this – in a deja vu moment for many people – the discussion moved to what we can realistically do to support DRM-protected content. People have an understandable desire to watch their legitimate, paid-for content, so we continue to explore what can be done in this area. This is likely to be a conversation that will run for some time, however.

Next up, Martijn talked about our next major release. We’ve just launched the latest point release of Krypton 17.x, so it’s time to be looking towards Leia 18.x; the code is broadly ready and stable, so it’s now a process of locking down features, freezing code, building alphas, and so on. As always, this is a major piece of logistics, so it needs to be planned and timed properly.


Linux (Tux) Logo  Windows Logo  Apple Logo  Android Logo

As the day started to lurch towards the finishing line, the sessions moved on to platform specifics.

Fresh from the Embedded Linux Conference Europe, lrusak covered Kodi on embedded Linux – specifically, where we are with Kodi now, and where we want to be as the SoC/embedded market continues to develop. The plethora of boards has caused immense fragmentation, and this is becoming impossible to maintain because of different approaches to windowing, rendering, and so on. There are technologies to address this, however: Linux kernel support for Atomic DRM (Direct Rendering Manager) starts to simplify the problem; V4L2 augments this further. These are not implemented on all platforms, though, so it’s sadly not that simple. The level of support, and dependency on specific kernel versions or proprietary blobs, varies between Broadcom, Amlogic, Allwinner, Rockchip, Qualcomm, and Freescale. There’s thus more work from the vendors while software packages develop in parallel: improved V4L2 in FFmpeg, Kodi changes, kernel work.

Most Windows-specific activity revolves around Kodi under UWP, which we’ve covered before. There were no major updates to report on Apple or Android platforms.

Final thoughts before we tail away… further conversations about the migration to Python 3 and how that might be phased/implemented, and anything else needed in the 17.x branch for a further point release.


And that’s it for Day Two – a few attendees are going to leave early today (or maybe we’ll just leave them in a bar somewhere), but there’ll still be more Devcon tomorrow.


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In 2017, there can be little doubt that streaming is the big piracy engine of the moment. Dubbed Piracy 3.0 by the MPAA, the movement is causing tremendous headaches for rightsholders on a global scale.

One of the interesting things about this phenomenon is the distributed nature of the content on offer. Sourced from thousands of online locations, from traditional file-hosters to Google Drive, the big challenge is to aggregate it all into one place, to make it easy to find. This is often achieved via third-party addons for the legal Kodi software.

One company offering such a service was MovieStreamer.nl in the Netherlands. Via its website MovieStreamer the company offered its Easy Use Interface 2.0, a piece of software that made Kodi easy to use and other streams easy to find for 79 euros. It also sold ‘VIP’ access to thousands of otherwise premium channels for around 20 euros per month.

MovieStreamer Easy Interface 2.0

“Thanks to the unique Easy Use Interface, we have the unique 3-step process,” the company’s marketing read.

“Click tile of choice, activate subtitles, and play! Fully automated and instantly the most optimal settings. Our youngest user is 4 years old and the ‘oldest’ 86 years. Ideal for young and old, beginner and expert.”

Of course, being based in the Netherlands it wasn’t long before MovieStreamer caught the attention of BREIN. The anti-piracy outfit says it tried to get the company to stop offering the illegal product but after getting no joy, took the case to court.

From BREIN’s perspective, the case was cut and dried. MovieStreamer had no right to provide access to the infringing content so it was in breach of copyright law (unauthorized communication to the public) and should stop its activities immediately. MovieStreamer, however, saw things somewhat differently.

At the core of its defense was the claim that did it not provide content itself and was merely a kind of middleman. MovieStreamer said it provided only a referral service in the form of a hyperlink formatted as a shortened URL, which in turn brought together supply and demand.

In effect, MovieStreamer claimed that it was several steps away from any infringement and that only the users themselves could activate the shortener hyperlink and subsequent process (including a corresponding M3U playlist file, which linked to other hyperlinks) to access any pirated content. Due to this disconnect, MovieStreamer said that there was no infringement, for-profit or otherwise.

A judge at the District Court in Utrecht disagreed, ruling that by providing a unique hyperlink to customers which in turn lead to protected works was indeed a “communication to the public” based on the earlier Filmspeler case.

The Court also noted that MovieStreamer knew or indeed ought to have known the illegal nature of the content being linked to, not least since BREIN had already informed them of that fact. Since the company was aware, the for-profit element of the GS Media decision handed down by the European Court of Justice came into play.

In an order handed down October 27, the Court ordered MovieStreamer to stop its IPTV hyperlinking activities immediately, whether via its Kodi Easy Use Interface or other means. Failure to do so will result in a 5,000 euro per day fine, payable to BREIN, up to a maximum of 500,000 euros. MovieStreamer was also ordered to pay legal costs of 17,527 euros.

“Moviestreamer sold a link to illegal content. Then you are required to check if that content is legally on the internet,” BREIN Director Tim Kuik said in a statement.

“You can not claim that you have nothing to do with the content if you sell a link to that content.”

Speaking with Tweakers, MovieStreamer owner Bernhard Ohler said that the packages in question were removed from his website on Saturday night. He also warned that other similar companies could experience the same issues with BREIN.

“With this judgment in hand, BREIN has, of course, a powerful weapon to force them offline,” he said.

Ohler said that the margins on hardware were so small that the IPTV subscriptions were the heart of his company. Contacted by TorrentFreak on what this means for his business, he had just two words.

“The end,” he said.

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

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The final day of Devcon – still lots to get through, although, for the sake of some team members, we might need to speak slowly and quietly…

We started the day with a Foundation financial overview from natethomas. Even as a non-profit, volunteer-run organisation, keeping Kodi going is an expensive undertaking by the time you take into account events and conferences, hosting, legal, development hardware, and similar. This in turn led to a conversation about future logistics: we have a large team now, and it’s getting increasingly challenging to get the team together to meet, discuss, work, and socialise while we continue to make your favourite media centre software. We also want to continue to attend and increase our engagement with FOSDEM, ELC, CES, VDD and other open source and multimedia events.

Our next topic was infrastructure with kib. The Kodi systems respond to literally millions of requests per day for such things as downloads and addon updates, so we’re looking after a significant infrastructure. We have multiple servers for the forum, wiki, main web site, build server and mirroring, all of which need to be managed, backed up, maintained, upgraded. Given our recent extended forum downtime, that was clearly part of the discussion as it’s unacceptable in every respect. We need to look again at how we host our content, our architecture, and any weak points.

We then moved onto a brief conversation about addon security. This is a big topic that will need to be progressed separately: addon sandboxing to protect the core code and operating system, for example, or signing and hashing to ensure code integrity.

Tooling was our next topic, led by razee and martijn. Do we have all the tools that the developers need? Are there better ways and methods? How do we take work out of the system, perhaps through automation of some basic sanity checks? How do we make it easier for people to contribute code and get it accepted and merged?

We then moved on to forum moderation, with a discussion led by darrenhill. All forum users should be aware that we do not allow forum conversations or support threads that touch on piracy, guided by a non-comprehensive list of banned addons on the wiki. However, new piracy addons appear all the time, so we need to consider how we better maintain and publicise this list, including making it clearer to new forum sign-ups: we still get too many people who sign up specifically to ask for help with an unsupported addon, for example. The conversation then moved on to log files, and users who edit these to deliberately try to hide addons/repositories. Finally, we moved on to the sanctions we take against users who repeatedly breach the forum rules, and the basis on which we take action while trying to remain fair and transparent.

Moving on, we came back to a topic we covered earlier in the conference: whether an addon should ever be allowed to modify another addon, or whether an addon should be allowed to disable anything when it finds something that it’s decided is somehow “undesirable”. This is clearly a contentious issue. As a rule, nothing should ever break a working installation, either by changing core Kodi files or by altering some other part of a user’s installation that was already there. The current issue with addons checking for the presence of others, however, is clearly more complex as there may be legitimate reasons for such behaviour, such as a compatibility check. Expect a more formal announcement on this subject in the forums in the near future.

Our final conversation of the day, then – and the final one of the conference – was alwinus and the addon subsystem. He talked us through the current addon system, and some of the problems and limitations it presents: it’s not easily extensible, there are limitations on interoperability between addons, SQL dependencies impacting performance, and there are some inherent instabilities in the addon handling code that can trigger a crash. Simply put, there is a series of improvements proposed that will address these issues: limit SQL dependencies, remove async thread handling, cache more information, move away from dependency on cpluff.

And that’s it for Devcon 2017: time for people to head out, to airports, train stations, wherever.

Thank you to everyone for their attendance and contributions!


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This week we have three newcomers in our chart.

Cars 3 is the most downloaded movie.

The data for our weekly download chart is estimated by TorrentFreak, and is for informational and educational reference only. All the movies in the list are Web-DL/Webrip/HDRip/BDrip/DVDrip unless stated otherwise.

RSS feed for the weekly movie download chart.

This week’s most downloaded movies are:
Movie Rank Rank last week Movie name IMDb Rating / Trailer
Most downloaded movies via torrents
1 (7) Cars 3 7.0 / trailer
2 (1) War for the Planet of the Apes 7.8 / trailer
3 (2) Annabelle Creation (Subbed HDRip) 6.7 / trailer
4 (3) Spider-Man: Homecoming 7.8 / trailer
5 (5) Atomic Blonde (Subbed HDRip) 7.0 / trailer
6 (6) American Made (Subbed HDrip) 7.3 / trailer
7 (4) The Dark Tower 5.9 / trailer
8 (…) Jungle 6.7 / trailer
9 (8) Baby Driver 8.0 / trailer
10 (…) Overdrive 5.3 / trailer

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

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LibreELEC 8.2.0 provides a mid-year bump to improve hardware support on Intel and Raspberry Pi hardware. It also resolves minor support issues on a range of devices and fixes a number of important security issues affecting the core OS reported in recent months. Kodi is bumped to 17.5, and Samba bumps to 4.6 which brings support for SMB2/3 to LibreELEC for the first time. PLEASE READ THE RELEASE NOTES below before posting an issue in the forums as there are disruptive changes to Samba, Lirc and Tvheadend. UPDATE (29/10): An issue with HEVC playback on Raspberry Pi and Slice hardware...

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Well, 2017 has turned out to be unusual, and we’re not just talking world politics. This year, we’ve managed to bring the newly-extended team together for a second time; it’s something we’d like to do more often, although it’s unlikely that we’ll be able to do it every year.

So, it’s a grey day in Czechia, with ominous clouds hanging expectantly over Prague (picture above not actual weather, sadly!). Team Kodi is assembled – developers, skinners, moderators, the Board – and has been joined by some of our newest team members, Google Summer of Code students, and a couple of key partners.

Ludi incipiant!

Keith once again played MC and opened up the session while Natethomas valiently wrestled to overcome the inevitable hotel AV equipment challenges. Our rough format for this meeting will be a partner day today (Friday) before the internal Kodi stuff takes over for the weekend.



First up for presentations, then, Jason from FLIRC took the floor. He gave us an overview of the FLIRC products, the history of the company, the rationale behind the FLIRC USB learning adapter, a demonstration of the device in action and a brief glimpse of some possible future plans. It’s amazing how excited you can get at, and how long you can discuss, what are perhaps the finest Raspberry Pi cases in the world (but maybe we’re a little biased).


VLC Icon

Next up, JB and Etix from VideoLAN – if you don’t recognise that name, they’re the VLC guys, who came resplendent in their traffic cone hats. Topics covered included what’s gone into VLC 3.0, code cleanup and convergence, new features. They also covered some other VideoLAN technologies, some of which go beyond VLC – Mirrorbits, for example. And we finally touched on equivalencies and common interests between the projects, and where we might perhaps collaborate more than we do today.


That’s it for Day One – I know that looks short, but it wasn’t. There were many side-bar conversations and parts of the presentations that we simply can’t put onto a public blog, so you’ll have to trust us on those…


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Last November, the cybercrime unit of the French military police shut down the country’s largest pirate site, Zone-Telechargement (Download Zone). This was a huge problem for the millions of people who visited the site on a daily basis.

Founded in 2011, Zone-Telechargement’s popularity soared after the closure of Megaupload, which was also hugely popular in France until its shutdown early 2012. It’s been dead ever since though, despite suggestions it might somehow return to life.

Interestingly, however, a site claiming to be a reincarnation of the original is now trying to scoop up traffic, with promises that the excitement can be found at a new URL.

“Welcome to the new Zone-Telechargement! This is the new address of the indexing site to find movies and series,” a notice on the site reads.

“We make every effort to ensure that you can watch your movies and series in the best conditions and in complete safety. Therefore, we invite you as a Zone-Telechargement user to help us in our big mission! Share our site, talk about it!”

This cloned pirate site is not what it seems

During the past couple of days, people have certainly been talking about it, but not for the usual reasons. As reported by NextInpact, the site already has 100,000 links on Google after being launched sometime in August.

But this is no ordinary pirate site. In fact, it’s not a pirate site at all. While it looks exactly like its pirate namesake, the site links only to legal content on platforms such as Amazon, iTunes, and other official sources.

NextInpact reports that the site is hosted in France and uses film posters and metadata hosted by the National Film Center, which grants official vendors access to a database of supporting content to help them sell their products online.

So, could this be an innovative and unconventional service set up by elements of the film industry to suck in pirates, perhaps?

TF decided to look into the possibility by pulling information from WHOIS, DNS and MX records, hoping to find a trace of who’s behind the operation. None of the searches yielded much information of direct value but they did turn up something else.

Zone-Telechargement.al, it seems, is not on its own. Hosted on the same server at OVH in France is Voirfilms.al which clones VoirFilms.org, a pirate site that was ordered to be blocked by the Paris District Court earlier this year.

Two peas in a pod on the same server

Just like Zone-Telechargement.al, Voirfilms.al only links to legal content. However, when one searches for movies, at least the first two sets of links to content contain affiliate codes for Amazon and a local service, meaning the site’s operators get a kickback from any sale.

Given they use the same host server, mail server, and referral codes (tag=blue0d7-21 for Amazon), we considered it likely that the same people are behind both domains, passing them off as pirate sites in an effort to generate revenue.

Then, on Friday afternoon, NextInpact editor Marc Rees contacted us with a really interesting update. After further research, Rees had concluded that anti-piracy outfit Blue Efficience was probably behind the scheme. Sure enough, after contacting founder and CEO Thierry Chevillard, the company confirmed the project.

“We always had the idea to promote the legal offer. Anti-piracy protection is good, but it is insufficient without this component,” Chevillard told Rees.

Chevillard said that since video-on-demand platforms have difficulties in getting themselves noticed over pirate sites, his company took the decision to mimic the pirate strategy.

“[T]he pirate sites are extremely talented at putting themselves ahead in search engines where they beat the legal offers,” he said, adding that using similar weapons was the solution.

Chevillard told NextInpact that his company initially published links to content without the affiliate kickback but later took the for-profit route in order to “partially offset the costs, even if we are far from covering the costs of developing and operating the site.”

Of course, there’s a certain irony in an anti-piracy outfit actively pirating a pair of pirate sites, particularly since it clearly pirated the pirate sites’ logos and graphics, in order to pass the clones off as the real thing. However, Chevillard sees them as fair game and says his company will take action in the unlikely event the pirates take legal action.

The big question, of course, is whether the clone sites are having the desired effect of encouraging legal purchases. According to early data from Zone-Telechargement.al, around five purchases are made out of every 1000 clicks on content listed by the site.

While Blue Efficience’s cover has been well and truly blown, the company is undeterred and says it will expand its pirate site cloning business. If the strategy reaches any scale, that could be a whole new level of spam for would-be pirates to wade through. Nevertheless, there is a comedy ending to this story.

It appears that since the fake sites are so convincing, rival anti-piracy outfits have been asking Google to take down pages (1,2) from its indexes. Most ‘impressive’ are the efforts from takedown outfit Rivendel, which has filed dozens of complaints against these ‘pirate’ sites. Ouch.

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

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December 2015, a Virginia federal jury ruled that Internet provider Cox Communications was responsible for the copyright infringements of its subscribers.

The ISP was found guilty of willful contributory copyright infringement and ordered to pay music publisher BMG Rights Management $25 million in damages.

Cox swiftly filed its appeal arguing that the district court made several errors that may ultimately restrict the public’s access to Internet services.

This week the Court of Appeals for the Fourth Circuit heard oral argument from both sides, which turned out to be an interesting exercise. The panel of judges Motz, Shedd, and Wynn grilled of both attorneys in an effort to distill the crucial arguments.

Cox attorney Michael Elkin was first up. Among other things, he stressed that Cox didn’t have actual and sufficient knowledge of the claimed infringements.

While BMG uncovered internal Cox emails discussing how frequent offenders were kept on board, these were not specifically discussing BMG infringed works, he argues. However, Judge Wynn stressed that the emails in question did discuss Cox’s policy of not disconnecting infringers.

“But they’re talking about the general abuse department in terms of, where we get these things, this is what we’re going to do with them because we don’t want to lose customers. I mean, it’s the same thing,” he said.

It’s also clear that BMG sent over a million takedown notices to Cox. However, since these were not the ones referenced in the company’s internal emails, these are irrelevant when it comes to the company’s liability for alleged contributory infringement, Cox’s attorney noted.

The back and forth over various issues became rather lively up to a point where Elkin was asked to stop interrupting. “When a judge speaks, you have to be quiet,” Judge Shedd said.

BMG attorney Michael Allan was next in line to present his arguments, which were also carefully dissected by the judges. The attorney stressed that in addition to the takedown notices, BMG provided Cox with a wealth of information on the alleged infringers.

He explained that they sent 1.8 million takedown notices to Cox. When asked what the Internet provider should do with all these notices, Allan mentioned the dashboard they made available, which would help the ISP to check all claims.

“We also provided them with a dashboard. It’s a searchable website that they can search by most egregious repeat infringer, they can pull up every single piece of information we’ve ever provided to them, and they can play the actual songs that were downloaded,” BMG’s attorney said.

Judge Wynn, however, questioned whether the ISP’s abuse department would listen to thousands of infringing songs.

“An internet service provider is going to receive 20,000 of these things per day, 1.8 million a year, or whatever, I don’t care. And they’re going to start playing songs and things like that to see if it’s going on?

“You think that’s where this case is going to go?” Wynn added.

The judges then moved on to the repeat infringer question. An important question asked, was what a ‘repeat infringer’ actually is. BMG’s attorney described this as “someone who repeatedly infringes copyright,” but that wasn’t enough.

“How does somebody know a third party is an infringer? ‘Cause you say so?” Judge Shedd asked.

Cox, for example, sees a repeat infringer as someone who has been previously adjudicated, not someone who has received several takedown notices. Eventually, all had to admit that a repeat infringer is not clearly defined in the DMCA.

Judge Wynn then moved on to highlight another peculiarity. While this case deals with Cox’s failure to implement a repeat infringer policy, this legal requirement by itself is rather meaningless. Even when subscribers are disconnected, they can still join another ISP or come back to Cox after a few months, which makes it pointless.

“As Judge Motz indicated it’s not a perfect solution,” BMG’s lawyer commented.

“It’s not even a good one,” Judge Wynn added.

Another controversial topic that came up is the fact that Cox refused to pass on BMG’s demands because the ISP saw the included settlement demands as extortion. While BMG’s attorney tried to downplay the money issue, Judge Shedd made it very clear what this case is actually about.

“[The DMCA notice] says: you are infringing, you can go to this website and click and pay us $20 or $30. If not, you’re looking at a $150,000 fine. It was about collecting money. We don’t dance around that do we?” Shedd said.

Both Cox and BMG ultimately wanted money from the allegedly infringing subscribers, who might now face an even bigger threat.

“You have two corporations fighting over money, which may be justified. But the net effect of this battle is going to be up against another policy, which is, I think it is the policy, that people should have access to the Internet,” Judge Shedd said.

While the case can still go either way, the oral hearing suggests that the panel of judges is not putting too much weight on the notices sent by BMG. The internal emails from Cox appear to be the key part. Still, we’ll have to wait for the full opinion to see if that’s really true.

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