In the weeks and months leading up to and beyond the 2012 raid on Kim Dotcom and his former associates, the Megaupload founder was being spied on by the authorities in New Zealand.

Between December 2011 and March 2012, the highly secretive Government Communications Security Bureau (GCSB) spy agency listened in on the private communications of Kim and former wife Mona Dotcom, plus Megaupload co-defendant Bram van der Kolk.

Given the US-instigated investigation into Dotcom and Megaupload, this type of eavesdropping may seem little out of the ordinary. However, GCSB’s powers are limited by law, including that it may not conduct surveillance on New Zealand citizens or permanent residents. Since Dotcom is a permanent resident, that made the spying illegal.

Ever since the authorities accepted that potential evidence had been illegally obtained, the Megaupload founder has put considerable effort into finding out exactly what was captured by the GCSB. At every turn, however, he has been declined access to the material.

In 2017, for example, the High Court rejected Dotcom’s request, claiming that the release of the intercepted communications would undermine national security. Overall, the ruling added, withholding the information would be in the public interest, even if that was at the expense of Dotcom’s rights.

Predictably, Dotcom refused to back down, immediately taking the matter to the Court of Appeal. Unfortunately for him, the result was the same.

While accepting that the intercepted communications are “relevant” and could be “put to use”, in a 2019 ruling the Court determined that Dotcom’s right to access the information was outweighed by national security concerns.

With the Supreme Court the only avenue left for Dotcom, an appeal was subsequently filed there. In a written judgment published today, the Supreme Court sided with the decisions of the lower courts and refused to hear the appeal.

“We are not satisfied that it is necessary in the interests of justice to hear the
proposed appeal. While there may be questions arising about the scope and
application of s 70 of the Evidence Act, the present case is not the appropriate case to consider those issues,” the panel of three judges writes.

“No question of principle arises. Rather, the matters the applicant wishes to raise relate to whether natural justice was met in this particular case and as to the weight given to the competing public interests on these facts.”

Rejecting the notion that there had been a miscarriage of justice, the judges note that since the case has been examined in detail by the lower courts and justice will be done by compensating Dotcom for his loss of dignity, the Supreme Court will not review the matter.

“Mr Dotcom’s arguments would reprise matters all of which have been carefully examined in the Courts below and, as the Court of Appeal noted, the ‘general nature of the disputed information is known to Mr Dotcom’. In addition, these issues would arise in a context where the respondent has been held to account having accepted liability and the central question is as to the level of damages,” the judges add.

In a statement on the decision to deny his appeal, this morning Dotcom criticizes the entire process, drawing particular attention to the fact that his lawyers have been prevented from doing their jobs properly on the grounds of national security.

“[T]hey have not been permitted to have any meaningful input into this process because, at every stage, the GCSB has required its evidence and submissions to be treated as classified and heard only in a secret hearing from which my counsel and I were excluded,” Dotcom writes.

“The Courts’ reasons were also classified and not stated in their decisions. We have been blindfolded, with one hand tied behind our backs, while up against the fully equipped and limitlessly funded GCSB and Crown lawyers seeking to keep us all in the dark and away from the truth.”

While at some point Dotcom will be awarded damages for the illegal spying, he says this process has never been about money, not least since it ceased being economically viable a long time ago.

“For me, it has always been about ensuring that we know what has happened and, as a result, the GCSB is held accountable publicly for its unlawful conduct under John Key’s National government. I want to make sure that this never happens again.

“We shouldn’t be kept in the dark when state agencies act unlawfully and they should never get away with not being fully accountable to us, as the GCSB has now achieved. They don’t care about paying some money to me and my family, although they will fight to limit that also. They just care about you and I not getting to know what they did, or the actual harm they caused,” he adds.

But while today’s ruling was handed down by New Zealand’s top court, Dotcom believes that interference from the United States played an important role in denying him access to the illegally captured communications. As a result, he’s now embarking on a new mission, one to change the law in New Zealand.

“I don’t like the United States influencing what we all should be entitled to as people of New Zealand, as I fear may have happened here. No one should. But, they, and the GCSB, has stopped me from knowing the truth, at least for now. If the Court of Appeal’s decision represents the law in New Zealand, then the law must change. I will fight for that change. Please join me,” he concludes.

As reported last week, Dotcom is awaiting another decision from the Supreme Court regarding his extradition to the United States. He doesn’t believe the decision will go in his favor but is preparing for a long battle, one that could see him fight in New Zealand for another seven years.

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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.

—

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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