When copyright infringement lawsuits hit the US courts, there’s often a serious case at hand. Whether that’s the sharing of a leaked movie online or indeed the mass infringement that allegedly took place on Megaupload, there’s usually something quite meaty to discuss.

A lawsuit filed this week in a Pennsylvania federal court certainly provides the later, but without managing to be much more than a fairly trivial matter in the first instance.

The case was filed by sports psychologist and author Dr. Keith Bell. It begins by describing Bell as an “internationally recognized performance consultant” who has worked with 500 teams, including the Olympic and national teams for the United States, Canada, Australia, New Zealand, Hong Kong, Fiji, and the Cayman Islands.

Bell is further described as a successful speaker, athlete and coach; “A four-time
collegiate All-American swimmer, a holder of numerous world and national masters swim records, and has coached several collegiate, high school, and private swim teams to competitive success.”

At the heart of the lawsuit is a book that Bell published in 1982, entitled Winning Isn’t Normal.

“The book has enjoyed substantial acclaim, distribution and publicity. Dr. Bell is the sole author of this work, and continues to own all rights in the work,” the lawsuit (pdf) reads.

Bell claims that on or about November 6, 2015, King’s College head football coach Jeffery Knarr retweeted a tweet that was initially posted from @NSUBaseball32, a Twitter account operated by Northeastern State University’s RiverHawks baseball team. The retweet, as shown in the lawsuit, can be seen below.

The retweet that sparked the lawsuit

“The post was made without authorization from Dr. Bell and without attribution
to Dr. Bell,” the lawsuit reads.

“Neither Defendant King’s College nor Defendant Jeffery Knarr contacted Dr.
Bell to request permission to use Dr. Bell’s copyrighted work. As of November 14, 2015, the post had received 206 ‘Retweets’ and 189 ‘Likes.’ Due to the globally accessible nature of Twitter, the post was accessible by Internet users across the world.”

Bell says he sent a cease and desist letter to NSU in September 2016 and shortly thereafter NSU removed the post, which removed the retweets. However, this meant that Knarr’s retweet had been online for “at least” 10 months and 21 days.

To put the icing on the cake, Bell also holds the trademark to the phrase “Winning Isn’t Normal”, so he’s suing Knarr and his King’s College employer for trademark infringement too.

“The Defendants included Plaintiff’s trademark twice in the Twitter post. The first instance was as the title of the post, with the mark shown in letters which
were emphasized by being capitalized, bold, and underlined,” the lawsuit notes.

“The second instance was at the end of the post, with the mark shown in letters which were emphasized by being capitalized, bold, underlined, and followed by three
exclamation points.”

Describing what appears to be a casual retweet as “willful, intentional and purposeful” infringement carried out “in disregard of and with indifference to Plaintiff’s rights,” Bell demands damages and attorneys fees from Knarr and his employer.

“As a direct and proximate result of said infringement by Defendants, Plaintiff is
entitled to damages in an amount to be proven at trial,” the lawsuit concludes.

Since the page from the book retweeted by Knarr is a small portion of the overall work, there may be a fair use defense. Nevertheless, defending this kind of suit is never cheap, so it’s probably fair to say there will already be a considerable amount of regret among the defendants at ever having set eyes on Bell’s 35-year-old book.

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Earlier this year, American satellite and broadcast provider Dish Network targeted two well-known players in the third-party Kodi add-on ecosystem.

In a complaint filed in a federal court in Texas, add-on ZemTV and the TVAddons library were accused of copyright infringement. As a result, both are facing up to $150,000 for each offense.

Initially, the true identities of the defendants unknown and listed as John Does, but an amended complaint that was submitted yesterday reveal their alleged names and hometowns.

The Texas court previously granted subpoenas which allowed Dish to request information from the defendants’ accounts on services including Amazon, Github, Google, Twitter, Facebook and PayPal, which likely helped with the identification.

According to Dish ZemTV was developed by Shahjahan Durrani, who’s based in London, UK. He allegedly controlled and maintained the addon which was used to stream infringing broadcasts of Dish content.

“Durrani developed the ZemTV add-on and managed and operated the ZemTV service. Durrani used the aliases ‘Shani’ and ‘Shani_08′ to communicate with users of the ZemTV service,” the complaint reads.

The owner and operator of TVAddons is listed as Adam Lackman, who resides in Montreal, Canada. This doesn’t really come as a surprise, since Lackman is publicly listed as TVAddons’ owner on Linkedin and was previously named in a Canadian lawsuit.

While both defendants are named, the allegations against them haven’t changed substantially. Both face copyright infringement charges and potentially risk millions of dollars in damages.

Durrani directly infringed Dish’s copyrights by making the streams available, the plaintiffs note. Lackman subsequently profited from this and failed to take any action in response.

“Lackman had the legal right and actual ability to supervise and control this infringing activity because Lackman made the ZemTV add-on, which is necessary to access the ZemTV service, available for download on his websites.

“Lackman refused to take any action to stop the infringement of DISH’s exclusive rights in the programs transmitted through the ZemTV service,” the complaint adds.

TorrentFreak spoke to a TVAddons representative who refutes the copyright infringement allegations. The website sees itself as a platform for user-generated content and cites the DMCA’s safe harbor as a defense.

“TV ADDONS is not a piracy site, it’s a platform for developers of open source add-ons for the Kodi media center. As a community platform filled with user-generated content, we have always acted in accordance with the law and swiftly complied whenever we received a DMCA takedown notice.”

The representative states that it will be very difficult for them to defend themselves against a billion dollar company with unlimited resources, but hopes that the site will prevail.

The new TVAddons

After the original TVAddons.ag domain was seized in the Canadian lawsuit the site returned on TVaddons.co. However, hundreds of allegedly infringing add-ons are no longer listed.

The site previously relied on the DMCA to shield it from liability but apparently, that wasn’t enough. As a result, they now check all submitted add-ons carefully.

“Since complying with the law is clearly not enough to prevent frivolous legal action from being taken against you, we have been forced to implement a more drastic code vetting process,” the TVAddons representative says.

If it’s not entirely clear that an add-on is properly licensed, it won’t be submitted for the time being. This hampers innovation, according to TVAddons, and threatens many communities that rely on user-generated content.

“When you visit any given web site, how can you be certain that every piece of media you see is licensed by the website displaying it? You can assume, but it’s very difficult to be certain. That’s why the DMCA is critical to the existence of online communities.”

Now that both defendants have been named the case will move forward. This may eventually lead to an in-depth discovery process where Dish will try to find more proof that both were knowingly engaging in infringing activity.

Durrani and Lackman, on the other hand, will try to prove their innocence.

—

A copy of the amended complaint is available here (pdf).

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Website blocking has become a common tool for copyright holders to target online piracy.

In most countries, these blockades are ordered by local courts, which compel Internet providers to restrict access to certain websites.

While most ISPs initially object to such restrictions, the largest Canadian telco Bell is actively calling for such measures. In a hearing before the Standing Committee on International Trade on NAFTA, the company is clear on how online piracy should be curbed.

Rob Malcolmson, Bell’s Senior Vice-President Regulatory Affairs, mentioned that the United States has repeatedly complained about Canada’s apparent lack of copyright enforcement. To make NAFTA “work better” for Canadian culture in the digital economy, stronger enforcement is crucial.

“US interests have long complained that widespread online copyright infringement here in Canada is limiting the growth of the digital economy. In fact, many of the most prominent global players in the piracy ecosystem operate out of Canada as a relative safe harbor,” Malcolmson said.

“We recommend that the Government commits to stronger intellectual property enforcement by having an administrative agency dedicated to such enforcement and by prioritizing enforcement against digital pirates.”

In Bell’s view, all Canadian Internet providers should be required to block access to the most egregious pirate sites, without intervention from the courts.

“We would like to see measures put in place whereby all Internet service providers are required to block consumer access to pirated websites. In our view, that is the only way to stop it,” Malcolmson said.

The telco, which is a copyright holder itself, has clearly thought the plan through. It notes that Internet providers shouldn’t be tasked with determining which sites should be blocked. This should be the job of an independent outfit. Alternatively, the Canadian telco regulator CTRC could oversee the blocking scheme.

“In our view, it would be an independent agency that would be charged with that task. You certainly would not want the ISPs acting as censors as to what content is pirate content,” Malcolmson said.

“But, surely, an independent third party agency could be formed, could create a blacklist of pirate sites, and then the ISPs would be required to block it. That is at a high level how we would see it unfolding, perhaps overseen by a regulator like the CRTC.”

In addition to website blocking, Bell also recommends criminalizing commercial copyright infringement, which would support stronger enforcement against online piracy.

Canadian law professor Micheal Geist, who picked up Bell’s controversial comments, is very critical of the recommendations. Geist says that the proposal goes above and beyond what US copyright holders have asked for.

“The Bell proposals […] suggest that the company’s position as a common carrier representing the concerns of ISPs and their subscribers is long over,” Geist writes.

“Instead, Bell’s copyright advocacy goes beyond what even some U.S. rights holders have called for, envisioning new methods of using copyright law to police the Internet with oversight from the CRTC and implementing such provisions through NAFTA.”

If the Canadian Government considers the suggestions, there is bound to be pushback from other ISPs on the blocking elements. Internet providers are generally not eager to block content without a court order.

It is also worth keeping in mind that while Bell’s plans are in part a response to criticism from US interests, American ISPs are still not required to block any pirate sites, voluntarily or not.

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The thorny issue of how to deal with the online piracy phenomenon used to be focused on punishing site users. Over time, enforcement action progressed to the services themselves, until they became both too resilient and prevalent to tackle effectively.

In Europe in particular, there’s now a trend of isolating torrent, streaming, and hosting platforms from their users. This is mainly achieved by website blocking carried out by local ISPs following an appropriate court order.

While the UK is perhaps best known for this kind of action, Belgium was one of the early pioneers of the practice.

After filing a lawsuit in 2010, the Belgian Anti-Piracy Foundation (BAF) weathered an early defeat at the Antwerp Commercial Court to achieve success at the Court of Appeal. Since then, local ISPs have been forced to block The Pirate Bay.

Since then there have been several efforts (1,2) to block more sites but rightsholders have complained that the process is too costly, lengthy, and cumbersome. Now the government is stepping in to do something about it.

Local media reports that Deputy Prime Minister Kris Peeters has drafted new proposals to tackle online piracy. In his role as Minister of Economy and Employment, Peeters sees authorities urgently tackling pirate sites with a range of new measures.

For starters, he wants to create a new department, formed within the FPS Economy, to oversee the fight against online infringement. The department would be tasked with detecting pirate sites more quickly and rendering them inaccessible in Belgium, along with any associated mirror sites or proxies.

Peeters wants the new department to add all blocked sites to a national ‘pirate blacklist. Interestingly, when Internet users try to access any of these sites, he wants them to be automatically diverted to legal sites where a fee will have to be paid for content.

While it’s not unusual to try and direct users away from pirate sites, for the most part Internet service providers have been somewhat reluctant to divert subscribers to commercial sites. Their assistance would be needed in this respect, so it will be interesting to see how negotiations pan out.

The Belgian Entertainment Association (BEA), which was formed nine years ago to represent the music, video, software and videogame industries, welcomed Peeters’ plans.

“It’s so important to close the doors to illegal download sites and to actively lead people to legal alternatives,” said chairman Olivier Maeterlinck.

“Surfers should not forget that the motives of illegal download sites are not always obvious. These sites also regularly try to exploit personal data.”

The current narrative that pirate sites are evil places is clearly gaining momentum among anti-piracy bodies, but there’s little sign that the public intends to boycott sites as a result. With that in mind, alternative legal action will still be required.

With that in mind, Peeters wants to streamline the system so that all piracy cases go through a single court, the Commercial Court of Brussels. This should reduce costs versus the existing model and there’s also the potential for more consistent rulings.

“It’s a good idea to have a clearer legal framework on this,” says Maeterlinck from BEA.

“There are plenty of legal platforms, streaming services like Spotify, for example, which are constantly developing and reaching an ever-increasing audience. Those businesses have a business model that ensure that the creators of certain media content are properly compensated. The rotten apples must be tackled, and those procedures should be less time-consuming.”

There’s little doubt that BEA could benefit from a little government assistance. Back in February, the group filed a lawsuit at the French commercial court in Brussels, asking ISPs to block subscriber access to several ‘pirate’ sites.

“Our action aims to block nine of the most popular streaming sites which offer copyright-protected content on a massive scale and without authorization,” Maeterlinck told TF at the time.

“In accordance with the principles established by the CJEU (UPC Telekabel and GS Media), BEA seeks a court order confirming the infringement and imposing site blocking measures on the ISPs, who are content providers as well.”

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

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