While it’s not getting making big headlines in the mainstream media, US courts are still loaded with BitTorrent related lawsuits.

The cases are filed by a small group of copyright holders. To state their claim, these companies generally rely on IP-addresses as evidence.

These IP-address details are collected from BitTorrent swarms and linked to a geographical location using geolocation tools. With this information in hand, rightsholders ask the courts to grant a subpoena, forcing Internet providers to hand over the personal details of the associated account holder.

This process isn’t new and the same tactics have been used for years. While some federal judges have raised doubts about the accuracy and sufficiency of IP-address evidence, many others let the cases continue.

In recent weeks, however, more and more judges have begun to ask questions.

This started after the Ninth Circuit Court of Appeals reached a verdict in Cobbler Nevada v. Gonzales. The Court ruled that identifying the registered subscriber of an IP-address by itself is not enough to argue that this person is also the infringer.

“Because multiple devices and individuals may be able to connect via an IP address, simply identifying the IP subscriber solves only part of the puzzle. A plaintiff must allege something more to create a reasonable inference that a subscriber is also an infringer,” the verdict read.

What this “something more” should be was not clarified, but the order didn’t go unnoticed. In recent weeks several district courts have cited the ruling, requesting copyright holders to come up with “something more” as well.

Just last week, US District Judge Sara Ellis dismissed a complaint Malibu Media had filed for this very reason.

“This Court agrees with the Ninth Circuit and those courts that have found that a plaintiff must allege more than simply the registration of an IP address to an individual in order to proceed against that individual for copyright infringement,” Judge Ellis wrote.

Malibu Media, one of the most prolific filers of BitTorrent lawsuits, was given the opportunity to amend the complaint with new details, but those will have to tie the defendant to the alleged infringement.

The company had already amended the complaint previously, showing that the IP address was the source of a persistent pattern of copyright infringement. That, however, was not enough.

In Nevada, US Magistrate Judge Nancy Koppe also highlighted the Gonzales ruling. A request for a subpoena by Strike 3 Holdings was denied because an IP-address alone is not enough.

“In the context of BitTorrent copyright infringement, the Ninth Circuit has recently held that a plaintiff bears the burden of pleading factual allegations that create a reasonable inference that the defendant is the infringer.

“Hence, a complaint that traces infringement to a particular IP address and pleads that the IP address is registered to the defendant is insufficient to state a claim,” Judge Koppe adds.

Over in Washington, District Judge Thomas Zilly asked for “something more” as well, in an order that spans twelve cases and dozens of defendants. Again, referencing the Appeals Court’s Gonzales ruling.

The rightsholder in those cases, Venice PI, did respond with further details.

The company said that it gathered various other details including download history and the layout of the residence and neighborhood, which make it likely that the account holder is the infringer. Whether that’s good enough remains to be seen.

What’s clear though is that the Appeals Court ruling is being used by courts across the country to demand “something more” than an IP-address alone.

While this is not the end of so-called “copyright trolling” practices just yet, it does make it harder for rightsholders to convince the courts.

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Privately raising cash to bring ideas and projects to fruition can be a daunting task. Convincing potential investors is rarely easy, with many demanding a large piece of the final pie in return.

To help solve this problem, in 2009 US-based Kickstarter was born, a site that has developed into a global crowdfunding platform where anyone can throw a few dollars at projects they believe could enjoy future success.

According to current stats, the site has received pledges exceeding four billion dollars from more than 15.5 million backers, which have funded more than 155,000 individual projects. One of those is campaign formerly known as The Monster Book of Monsters Film Project.

“THE MONSTER BOOK OF MONSTERS is a collection of 100 stories from around the world, inspired by the legendary book from the Harry Potter universe,” the Kickstarter read until recently.

“These aren’t your everyday Werewolves and Wendigos either. Each story is told by the survivor of an encounter with a unique and mysterious creature more wild and varied than you can imagine. From the twisted minds of 70 authors including Amazon Best Sellers: Tobias Wade, Blair Daniels, Tara Devlin, and P.F. McGrail. As well as numerous Reddit NoSleep award winners.”

The initial campaign

The idea of the campaign is to raise funds that will go towards a ‘sizzle reel’, a short video highlighting a vision and tone for a proposed movie or TV show.

“This reel will be pitched to large production companies in an effort to launch a horror inspired anthology TV series. The more money raised- the better the reel!” the Kickstarter reads.

The campaign had a modest target of just $3,997 dollars, which was easily reached a few days ago and well in advance of the January 1, 2019 deadline. However, the project appears to have landed on the radar of Warner Bros. who expressed displeasure at the Harry Potter references in the fundraiser.

In a takedown notice sent to Kickstarter, the movie company alleged copyright infringement by the campaign due to its use of a book title featured in the movie Harry Potter and the Prisoner of Azkaban.

Citing itself as the owner of “The Harry Potter series of books and motion pictures, and all elements contained therein. Including, but not limited to, the ‘Monster Book of Monsters’,” Warner demanded action from the crowd-funding platform.

“This project identifies itself as ‘inspired by the legendary book from the Harry Potter universe’ and uses the original title created by Ms. Rowling,” Warner complained.

While it’s unclear whether Kickstarter temporarily took the campaign down, the complaint from Warner certainly prompted the team behind it into action. References to all things Harry Potter have now been removed, as the image below shows.

More Warner-friendly now…

Additionally, the text proclaiming that “THE MONSTER BOOK OF MONSTERS is a collection of 100 stories from around the world, inspired by the legendary book from the Harry Potter universe” has now been transformed into a more basic “collection of 100 horror stories from around the world.”

Finally, the campaign has also amended its end goal statement. That was originally to have a “‘NoSleep’ inspired TV show”, a reference to Reddit’s NoSleep sub where people share their own scary stories. The edited aim is to have a straightforward “horror TV show”, although references to Reddit elsewhere in the campaign remain.

Warner Bros. are notoriously protective over their lucrative Harry Potter interests. Earlier this year the company’s lawyers told an annual Harry Potter festival held in Denmark that it could no longer use names and images related to the Harry Potter movies.

In 2009, Warner Bros. took action against a London-based single-mother after she dared to organize a Harry Potter-themed Halloween dinner. It’s unclear whether the sarcastically rebranded “Generic Wizard” night managed to sell out as planned.

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In many developed countries, rightsholders are in dispute with search engines over the appearance of pirated content in search results and other indexes.

Back in August, TV companies under the Gazprom-Media umbrella filed complaints at the Moscow City Court, demanding that Yandex remove links to infringing content. Yandex initially refused to comply but under threat of ISP blocking, eventually took preventative action.

In September, the TV channels filed another four lawsuits against Yandex. The companies asked the Court to order the search provider to “stop creating technical conditions that ensure the placement of [infringing] works on the Yandex.ru website.”

At the time, it was reported that the underlying aim of Gazprom Media was to reach a settlement agreement with Yandex, which would see the search company take action against infringing content. That aim, it seems, is well on the way to being achieved.

The press service of Gazprom reports that settlement agreements have been reached in four lawsuits, two featuring TV3 and Super TV and another two featuring TNT and 2×2.

The settlements are directly linked to the landmark Memorandum of Cooperation signed by Russia’s most powerful tech companies and several major media companies early November.

The agreement will see the formation of a central database of infringing sites which will provide information on what content tech companies should remove from their indexes. The database will be queried every few minutes, with search platforms removing infringing links visible in Russia within six hours.

Commenting on the settlements, Gazprom Media said that the cooperation agreement signed last month represents another important step towards “the development of civilized content consumption.”

Reports circulating mid-November indicated that Yandex had already started to comply with the memorandum’s terms by deleting links to infringing content.

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This September, the European Parliament backed the controversial Article 13 proposals, something that was met with a chorus of support from the entertainment industries, the music sector in particular.

The final text of Article 13 is yet to be finalized so the EU Parliament will need to vote again, once that’s completed. However, as Article 13 mutates to address the concerns of opponents, rightsholders have been expressing concern that the changes will actually strengthen the position of major online content sharing service providers (OCSSPs) such as YouTube.

Last week, major rightsholders including the MPA and the Premier League warned that as it stands, Article 13 will create a new safe harbor for services that take measures to prevent infringement. Now, even more dissenting voices are making their opinions known.

In an open letter to the European Commission, Parliament and Council, more rightsholders and content groups including IFPI – a previously staunch supporter of Article 13 – say the proposals are going in the wrong direction.

“We have reviewed the European Commission text/non-papers on article 13 and we have serious concerns about the direction of travel,” the groups write.

“As we reach the very final stages of this process, and negotiators seek to finalize a compromise text, we urge you to remember that the overall aim of the original European Commission proposal was to correct the distortion of the digital market place caused by User Upload Content (UUC) services, which enable users to upload content onto their sites and then profit from the availability of creative content without returning fair revenues to rightsholders, who create and invest in such content.”

The groups say that the solution to the so-called ‘Value Gap’ lies in holding OCSSPs liable for communication to the public when copyrighted works are made available from their platforms while excluding them from the safe harbors available in Article 14 of the E-Commerce Directive.

“We continue to believe that only a solution that stays within these principles meaningfully addresses the Value Gap/Transfer of Value. Moreover, licensing needs to be encouraged where the rightsholders are willing to do so but at the same time not be forced upon rightsholders,” the groups write, noting that proposals that deviate from the above “should be dismissed.”

As things stand, the current proposal text put forward by the European Commission would need “fundamental changes to achieve the Directive’s aim to correct the Value Gap/ Transfer of Value”, the groups note.

Underlining the predicament the entertainment industries now find themselves in, the letter warns that the liability exceptions currently on the table could leave rightsholders in a worse position than they’re in today.

“Any ‘mitigation measures’, should they be offered to OCSSPs, must therefore be clearly formulated and conditional on OCSSPs taking robust action to ensure the unavailability of works or other subject matter on their services,” the groups add.

“To that end, while it may be appropriate for rightsholders or their representatives to give services access to reasonably necessary identifying information concerning unauthorised works or other subject matter, unclear or open-ended provisions potentially obliging rightsholders to play the main role in preventing unauthorized uses of their works fail to provide the necessary legal certainty and therefore fail to provide a meaningful solution to the Value Gap/ Transfer of Value.”

The full letter is available here (pdf)

Update: Julia Reda MEP reports that the trilogue negotiations closed Thursday with no overall agreement but it “still seems like most negotiators want an #Article13 that requires #UploadFilters.”

Also of note is that companies that have a turnover of 10 million euros were previously excluded from the terms of Article 13. Reda says they are now included.

The next trilogue is planned for third week of January, Reda adds. More information here.

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Under President Trump, the United States has worked hard to put several new trade deals in place.

The administration is also working on a new trade agreement with the EU for which the US Trade Representative recently asked the public for input.

This week the Computer & Communications Industry Association (CCIA), which includes Amazon, Cloudflare, Facebook, and Google as members, sent in its thoughts.

The submission includes a stark warning against the EU’s proposed copyright reform plans, including Article 13, which could open the door to upload filtering.

It’s no secret that the proposal is a topic of intense debate within the EU. The tech companies, however, warn the US Government that its effects may hurt the US economy as well.

The CCIA cautions that the proposed changes could increase liability for large Internet services by weakening the safe harbor protections provided by current EU law. At the same time, it will be at odds with the DMCA’s safe harbor provisions.

“The proposed Copyright Directive disrupts settled law protecting intermediaries by weakening established protections from U.S. Internet services in the 2000 EU E-Commerce Directive, and by imposing an unworkable filtering mandate on hosting providers that would require automated ‘notice-and-stay-down’ for a wide variety of copyrighted works.

“If adopted, the Directive would dramatically weaken these long-standing liability protections, which suggests that most modern service providers may be ineligible for its protections,” the CCIA says.

The tech companies note that EU officials have identified US companies as the intended targets of these proposals. They fear that the plans will result in implicit upload filter requirements.

“Under Article 13 of the proposal, the Directive now implies that online services must procure or develop and implement content recognition technology. The decision to compel affirmative filtering of all Internet content, including audiovisual works, images, and text, based on that content’s copyright status, is alarming and profoundly misguided.”

According to the latest proposals, Article 13 would not impose a general monitoring requirement. However, it may require Internet services to ensure that infringing content is not reuploaded, which is hard to achieve without automated filters.

The CCIA points out the lack of specifics as another concern. It’s not clear what measures hosting providers and other services will have to implement in order to be safe, they argue.

This uncertainty and the incompatibility with US law is troublesome for the tech companies. They hope that the US Government will keep these concerns in mind while negotiating a new trade deal.

The final text of Article 13 is still being drafted. The latest trilogue meeting will take place later this week. The CCIA cautions the US to keep these developments in mind, noting that they have the potential to harm the US economy.

“The text is currently under negotiation in trilogue. If the final EU reform does include these provisions, there would likely be a corresponding increase in risk for U.S. platforms doing business in the EU, resulting in significant economic consequences for the U.S. digital economy, which depends on the EU market.

“Furthermore, there is likely to be a ripple effect on the rest of the world, given the EU’s international influence,” the CCIA submission adds.

This is only one side of the argument, of course. The RIAA also submitted comments to the US Trade Representative, presenting a different picture.

While the music group doesn’t mention Article 13, it does caution against “overbroad provisions on copyright safe harbors” and the “lack of online platform accountability,” two issues the EU’s copyright reforms aim to address.

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A copy of the CCIA submission is available here (pdf), and the RIAA’s submission can be found here (pdf).

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