Last week the FTC hosted several discussions on its role when it comes to innovation and intellectual property policy.

The commission asked a broad group of stakeholders how the FTC can use its enforcement and policy authority to advance innovation.

This is a question Hollywood, and its lobby group MPAA in particular, are not leaving unanswered. In a detailed response, Neil Fried of the MPAA laid out several possible actions the Government body can take to help the industry.

Ideally, the FTC should move beyond its consumer advisor role and take concrete action to target several piracy threats, either directly, or by encouraging other bodies to step in.

“Given the harms of piracy to competition and consumer welfare, we ask the FTC to take affirmative steps to combat piracy,” Fried writes.

“Taking more affirmative steps would help prevent unlawful services from stifling investment in, and competition by, legitimate online content services; would help combat cybersecurity threats; and would help protect consumers from identity theft and fraud stemming from malware.”

One of the focus areas highlighted by the MPAA’s SVP for Federal Advocacy and Regulatory Affairs are streaming boxes. Specifically, he suggests that the FTC could go after companies that market pirate streaming boxes as legal alternatives.

This practice is deceptive and warrants the attention of the Government, he argues. In addition, the FTC could educate both the general public and lawmakers about the risks of piracy, including malware-related threats.

“For example, the FTC could consider an unfair and deceptive trade practices action against entities marketing streaming piracy devices and applications as ‘100 percent legal’ and a way to ‘never pay for content again,’ or for harm to consumers stemming from malware.

“In addition, an expanded effort to educate consumers and policymakers about the harms of piracy, the threat to the competitive market for American digital products and services, and the risks to cybersecurity could also pay dividends,” Fried adds.

Another option for the FTC is to reach out other U.S. agencies, to see if it’s possible to bring criminal actions against blatant copyright infringers, and to encourage U.S. Customs and Border Patrol to block the import of pirate streaming devices.

It’s clear that the MPAA isn’t short on suggestions for the FTC to get involved.

As a final point of action, the MPAA mentions the recent controversy surrounding Europe’s new privacy regulation, the GDPR. As a result, many domain registrars and registries are shielding information about registrants from the public, which complicates enforcement efforts.

Fried urges the FTC to convince European lawmakers that this goes a step too far. The GDPR should not affect the availability of WHOIS data, and they hope to receive the commission’s support in calls to preserve the old “transparency” model.

Of course, the MPAA is not the only party to submit comments to the FTC. Other organizations are less enthusiastic about increased enforcement, and could even argue that some measures will impact freedom of speech.

Anticipating this, the MPAA notes that these kinds of fears are overblown, adding that enforcement in these areas will benefit free expression.

“In fact, curbing illegal activity promotes free expression by creating a safer, virtual environment where individuals feel comfortable to communicate and engage in commerce, as well as to create and lawfully access content,” Fried notes.

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A written copy of the comments from MPAA’s SVP for Federal Advocacy and Regulatory Affairs is available here (pdf).

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Over the past several years, dozens of YouTube channels have sprung up to cover developments in the rocketing Kodi-related space.

These channels, which can vary in quality tremendously, provide an easy-to-digest fix of information, some of it accurate, some of it not so. Many, however, are littered with advertising and promotional content for illegal IPTV services, ‘pirate’ Android APKs, and third-party Kodi add-ons that provide access to otherwise premium content.

At the same time as these channels promote questionable tools and services, developers of these tools are being targeted by anti-piracy companies. They regularly receive cease-and-desist notices from organizations such as the MPAA-led Alliance for Creativity and Entertainment, while some device sellers (Tickbox TV, for example) have found themselves on the end of actual lawsuits.

As a result, some YouTube channel operators are feeling the pressure too. Worried about demonetization following direct and indirect pressure from anti-piracy groups and YouTube itself, many are self-censoring and diversifying so as not to promote piracy.

One of these channels is run by ‘Doc Squiffy‘, a UK-based YouTube channel and associated website operator who has finally been granted a YouTube silver ‘play’ button award for gaining 100,000 subscribers. However, for some of the reasons detailed above, YouTube has delayed his award for months, to the point he now has more than 238,000 subscribers.

While Doc Squiffy says he’s grateful he’s now been approved, this week a rather ironic situation raised its head on his own website at DocSquiffy.com.

In order to generate revenue on the original content he posts (plus third-party content such as linked TorrentFreak articles), Squiffy runs AdSense ads provided by Google. However, while Google-owned YouTube took an age to verify his suitability for a silver button (Squiffy says his content type contributed to the delay), Google itself is now stepping over the mark.

In a Tweet to his followers, the YouTuber revealed this morning that Google has been embedding ads for illegal services in his site, something he’s fearful of doing himself due to pressure from the MPAA and UK-based anti-piracy outfit FACT.

My website and YouTube never advertises or pushed IPTV, with the pressure from Fact & MPAA this is something I will not do. But apparently it's ok for #google to advertsise it on my site 🤦 pic.twitter.com/yTyhOfewLE

— Doc Squiffy 📲 📺 (@DocSquiffy) October 30, 2018

https://platform.twitter.com/widgets.js

As the image above shows, the advertising shows the StreamKings IPTV service (offered via apparent reseller Smarteriptv.club), which offers thousands of channels of unlicensed content, including premium sports channels, as the image above shows.

It’s worth pointing out that Google wouldn’t have knowingly accepted an advert from a pirate service and it wouldn’t have placed it on Doc Squiffy’s site in any human-powered calculated action. However, with the YouTuber under real pressure to water down his content on YouTube in order to avoid his videos being demonetized or even denied a place on the site, this situation is pretty ironic, to say the least.

Indeed, Squiffy has had to fight for his play button after being initially denied more than six months ago.

“We’ve had trouble from demonetization, trouble with [YouTube] not approving videos, upload issues, takedown issues, and lots of people are having issues over these types of things. Me especially, i’ve been hit a lot,” Squiffy says.

Finally, however, YouTube found it in their hearts to approve Doc Squiffy for a Creator Award.

“Thanks for waiting! I’ve got an update from our Rewards team and good news! Your channels has indeed qualified to receive a Creator Award. Congratulations on reaching such an incredible milestone!” the site told him via email earlier this month.

Speaking with TorrentFreak, Doc Squiffy says he had a “big issue with the MPAA about six months ago” but says his only pressures today come from YouTube itself.

While YouTube videos promoting piracy still exist on the platform, YouTubers are now more careful than they once were, particularly since many completely rely on the site for their income. This noose is likely to tighten in the months and years to come, which will probably drive more controversial content back underground – along with the ads for pirate services….probably.

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In 2016, an article appeared in New Zealand media featuring a declaration from company boss Krish Reddy that his ‘My Box’ Kodi-powered Android devices were shaking up the content market.

His US$182 product enabled customers to access movies, TV shows and live channels for free, something that Reddy said was completely legal.

“Why pay NZ$80 minimum per month for Sky when for one payment you can have it free for good?” the company’s promotional material read.

Given this blatant taunt, SKY TV was prompted to respond. During 2017, the company took legal action against My Box and Reddy, claiming that his devices broke local law. The company sought a ruling from the Court under the Fair Trading Act that Reddy was making “misleading and deceptive” claims about his devices.

Early 2018, the Auckland High Court heard the case against My Box with Judge Warwick Smith reserving his judgment and Reddy still maintaining that his business was completely legal. The businessman claimed that sales were booming, with 20,000 devices sold to customers in 12 countries.

Now, however, Reddy’s claims have fallen apart. A ruling from the Auckland High Court states that his My Box devices cannot be represented as legal and that his device and others like it that receive unlicensed content are illegal.

“This decision, along with the recent ruling against Fibre TV boxes in Christchurch, sends a very clear message to New Zealanders that these services are not all they are cracked up to be,” says SKY General Counsel, Sophie Moloney.

“Essentially these boxes have been marketed and sold as legal options for accessing sports and entertainment for a one-off fee, when all they do is find and broadcast pirate streams.”

SKY says they were concerned that New Zealanders were being duped into buying the devices on the basis they were legally able to receive SKY content. Online forums were littered with complaints about the My Box devices, the broadcaster added.

“We took action against My Box and Mr Reddy under the Fair Trading Act, as we knew they were making claims to New Zealanders that were misleading and incorrect,” Moloney adds

According to SKY, around 5% of New Zealanders use piracy-configured devices like the My Box to stream pirated content for free. SKY says the decision of the High Court clears up any ambiguity and clarifies that receiving content in this manner is illegal.

“Fair-minded New Zealanders can now know the truth about these types of services and instead look to all of the legal services available online in New Zealand from the free apps of TVNZ On Demand and ThreeNow through to the subscription services of Netflix, NEON, LightBox and FAN PASS,” SKY notes.

While the ruling is welcome, this isn’t the end of the road for the case. A full trial is expected to take place early next year to determine damages but that process may not be entirely straightforward.

SKY says it doesn’t know precisely how many My Box devices Reddy sold, so it previously had to rely on public statements made by the businessman in the run-up to the case. The discovery process should yield more information that will allow SKY to formulate a more accurate claim, however.

While the case was brought under the Fair Trading Act, the High Court also determined that My Box and Reddy “communicated” copyrighted works to the public in breach of the Copyright Act, meaning that SKY is entitled to an injunction to restrain the defendants from making any further claims that My Box devices are legal.

That being said, SKY’s application for an injunction to prevent the promotion and supply of My Box devices failed, after the Court decided that such an application should have been sought under the Copyright Act. SKY said that its action under the Fair Trading Act was considered to be a quicker route to achieving its aims.

“In order to take action under the current Copyright Act, we (and other affected copyright holders) would first have to ‘establish copyright’ in each individual piece of content infringed by My Box. Doing so would have added layers of complication, cost and delay,” the company said in a statement.

“The Associate Judge upheld SKY’s approach by finding that the sale of My Box units, and using them to view copyright content, amounted to a breach of the Copyright Act, regardless of who owned the copyright. Accordingly, he made orders that include a final injunction preventing My Box and Mr Reddy from continuing to market the units as legal. This fulfilled SKY’s primary objective in bringing the legal action.”

In order to streamline similar cases in the future, SKY says local legislation should be amended to reflect the protections available under the UK’s Copyright, Designs and Patents Act.

“A provision like this in New Zealand law would be helpful in cases (like My Box) where the infringing conduct affects a wide group of rights-holders and consumers. The Government is undertaking a review of the Copyright Act and we encourage them to include this matter in the scope of the review,” SKY concludes.

During April 2018, Reddy claimed he’d sold his company to a mystery Chinese buyer for an eye-watering US$8.8m. As a result, he said he’d close down his company and make his staff redundant.

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Earlier this year there was a massive uproar, bordering on full-blown panic, about Europe’s new privacy regulations.

The GDPR introduced thorough data protections for Europeans, which applies to all sites and services that serve European users.

Suddenly, tens of thousands of websites around the globe had to make sure that they weren’t crossing any lines with their data collection policies. As a result, people received a flurry of emails asking them to ‘update’ their email subscriptions, or agree to new terms.

While the mass hysteria has faded now, the fallout is still noticeable. The good news is that Europeans have regained some of their privacy online, but in some cases, this comes at an unexpected cost.

Several non-EU based websites and publications responded to the GDPR by simply blocking all EU visitors. And, after several months have passed, these blockades are still in place.

Europeans who try to access newspapers such as the NY Daily News or the Dallas Morning News are not getting in, and USA Today redirect them to a separate portal that offers a “European Experience.”

Even Unroll.me, which offers people a handy tool to unsubscribe from mailing lists, is off limits.

No entry for EU visitors

When stumbling upon one of these GDPR blocks this week, it raised a question. What will happen if the EU decides to implement Article 13 of the proposed new copyright law next year?

Article 13, also known as the ‘upload filter’ proposal, will require many large Internet platforms to make licensing deals with rightsholders, or implement measures to block pirated content on their servers.

These requirements are not limited to European companies. They will affect all larger websites and services worldwide that deal with user-uploaded content and are available in the EU.

“Copyright law, including the current version of Article 13, if passed, applies to all websites visible in the EU, so foreign ones may decide to geoblock because of this, yes,” the office of Pirate Party MEP Julia Reda informs us.

While it will be easier to hold European companies responsible in court, its scope is similar to the GDPR, which means that it will likely cause some uncertainty among foreign sites as well.

YouTube CEO Susan Wojcick, for one, appears to be pretty concerned as we highlighted earlier this week.

“The proposal could force platforms, like YouTube, to allow only content from a small number of large companies. It would be too risky for platforms to host content from smaller original content creators, because the platforms would now be directly liable for that content,” she explained.

While it seems unlikely that YouTube would block the entire service for Europeans, especially because it already has some pretty advanced upload filters, Article 13 might spook other services enough to start geo-blocking. Especially if Europeans are a minority on the platform.

This may sound like unrealistic fearmongering to some, but is it really, if you look at all those sites and publications that still have their GDPR blocks up after months?

This type of self-censorship is not new either. Previously we have seen that several YouTube-ripping sites voluntarily blocked US and UK visitors, fearing legal repercussions from local rightsholders.

If Article 13 does indeed result in geoblocking efforts, it will ironically restrict access to content, much like the GDPR is restricting access to some information and services.

One significant difference compared to the GDRP is that, under the latest text, Article 13 will not apply to “small” sites and services. This means that services with less than 50 employees and a balance sheet not exceeding 10 million in annual turnover are excluded.

At the moment various EU bodies are negotiating the final draft of the proposal, which will make clear what’s at stake here.

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