Movie studio Voltage Pictures is no stranger to suing BitTorrent users.

The company and its subsidiaries have filed numerous lawsuits against alleged pirates in the United States, Europe, Canada and Australia, and likely made a lot of money doing so.

Voltage and other copyright holders who initiate these cases generally rely on IP addresses as evidence. With this information in hand, they ask the courts to order Internet providers to hand over the personal details of the associated account holders, so the alleged pirates can be pursued for settlements.

In Canada, Voltage tried to get these personal details from a large group of copyright infringers by filing a reverse class-action lawsuit, which is relatively rare. The movie company argued that this is a cheaper way to target large numbers of infringers at once.

The lawsuit in question was initially filed in 2016 and dragged on for years. The case revolves around a representative defendant, Robert Salna, who provides WiFi services to tenants. Through Salna, Voltage hoped to catch a group of infringers.

As the case went on the Canadian Internet Policy and Public Interest Clinic (CIPPIC) took interest in the case. The group, which is connected to the University of Ottawa, eventually intervened to represent anonymous defendants.

Among other things, CIPPIC argued that the movie company failed to identify an actual infringer. It targets multiple ‘infringing’ IP-addresses, which are not unique and can be used by multiple persons at once. In addition, unprotected WiFi networks may be open to the public at large.

Since the IP-addresses are not necessarily the infringers, Voltage has no reasonable cause to file the reverse class action, CIPPIC’s submission argued.

This week the Federal Court of Canada ruled on the matter and Justice Boswell agreed with CIPPIC.

“I agree with CIPPIC’s submissions that Voltage’s pleadings do not disclose a reasonable cause of action with respect to primary infringement.  While Voltage alleges that its forensic software identified a direct infringement in [sic] Voltage’s films, Voltage has failed to identify a Direct Infringer in its amended notice of application,” he writes.

Judge Boswell also agreed with CIPPIC’s critique of the class action procedure. These piracy cases deal with multiple infringers which will all have different circumstances. Reverse class action lawsuits are less suited to this scenario.

“A class proceeding is not a preferable procedure for the just and efficient resolution of any common issues which may exist.  The proposed proceeding would require multiple individual fact-findings for each class member on almost every issue.” 

The Judge further notes that there are other preferable means for Voltage to pursue its claims. These include joinder and consolidation of individual claims.

Based on these and other conclusions, Judge Boswell dismissed Voltage’s motion to certify the case as a reverse class action. In addition, the movie company was ordered to pay the costs of the proceeding, which could run to tens of thousands of dollars.

This is an important ruling as it takes a clear stand against the reverse class action strategy for this type of piracy case. And it may even go further than that. According to law professor Michael Geist, it can impact future file-sharing cases as well. 

“I think the decision does have implications that extend beyond this specific class action strategy as it calls into doubt the direct link between IP address and infringement and raises questions about whether merely using BitTorrent rises to the level of secondary infringement,” Geist tells TorrentFreak.

CIPPIC’s director David Fewer is also happy with the outcome. He tells the Globe and Mail that if the motion was accepted, it could have “seriously expanded the threat of copyright liability to anyone allowing others to use an internet connection.”

While the ruling is a clear dismissal of the reverse class action approach, there are similar file-sharing cases in Canada that have proven to be more effective. As long as this practice remains profitable, it will probably not go away.

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A copy of Judge Boswell’s order is available here (pdf).

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Two years ago, when Disney announced that it would launch its own streaming service, we mused that this would keep piracy relevant.

Yes, another paid streaming service would further fragment the legitimate market. This could motivate some to keep pirating, at least part-time.

More recently research has confirmed that this is indeed a warranted concern as people have limited budgets, but money isn’t the only problem.

When Disney confirmed that the initial rollout would be limited to the United States, Canada and the Netherlands, the piracy lure only became stronger. Star Wars fans in most parts of the world currently can’t watch the highly anticipated Mandalorian series, unless they pirate.

With this in mind, we kept a close eye on the official Disney+ launch this week. There was an enormous amount of media coverage which, undoubtedly, led to a lot of legitimate subscriptions. But, at the same time, pirate sites were buzzing too.

Shortly after Disney+ opened shop the first pirated releases started to spread. First through private communities and then over at public torrent sites, cyberlockers, and not-so-legal streaming platforms. After a few hours, pirated copies of the Mandalorian were everywhere.

This doesn’t really come as a surprise. Disney+ currently uses Widevine encryption, which is similar to what other streaming services use. Downloading or ‘ripping’ these videos doesn’t appear to be too hard.

And indeed, a quick glance at various pirate sites reveals that the first Mandalorian episode, which is exclusive to Disney+, is widely available in various formats.

Over the past two days, Mandalorian has already become the most pirated TV-show, with hundreds of thousands of downloads and streams, if not more. While it is far from becoming the next “Game of Thrones,” the potential is certainly there.

The fact that Disney+ isn’t available in many countries is similar to HBO’s situation when Game of Thrones first came out. This serves as a piracy incentive. After all, people who want to watch Mandalorian in the UK, Australia, and elsewhere, have few other options than to pirate.

The limited release of Disney+ may actually breed some new pirates. Even worse, there is a chance that many of these pirates may not go legal when the streaming service officially launches in their country.

For now, Disney’s anti-piracy efforts appear to be focused elsewhere though. The company has sent takedown requests for thousands of URLs that host or link to unauthorized copies of Mandalorian. This includes notices that were sent to Google, with requests to delist these pages.

As one of the largest entertainment companies in the world, these piracy concerns shouldn’t come as a surprise to Disney. The company probably weighed the pros and cons of its actions, including the limited geographical release, as well as entering an already fragmented streaming landscape.

In today’s online streaming business, piracy is a given. Disney probably believes that running its own streaming platform will ultimately bring in more money. Piracy or not.

They may very well be right, but it will happen at the expense of others. That may include some of Disney’s competitors, but also consumers who are not willing to pirate, and those who can’t afford another subscription.

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In March several major music companies sued Charter Communications, one of the largest Internet providers in the US with 22 million subscribers.

Helped by the RIAA, Capitol Records, Warner Bros, Sony Music, and others accused Charter of deliberately turning a blind eye to its pirating subscribers.

Among other things, they argued that the ISP failed to terminate or otherwise take meaningful action against the accounts of repeat infringers, even though it was well aware of them. As such, it is liable for both contributory infringement and vicarious liability, the music companies claim. 

The ISP disagreed and filed a motion at a Colorado federal court, asking it to dismiss the vicarious liability claims. Charter argues that it doesn’t directly profit from copyright-infringing subscribers, nor does it have the ability to control them.

Previously, other Internet providers have been successful in getting vicarious infringement claims dropped, but Charter’s case appears to go in the other direction. Last month Magistrate Judge Michael Hegarty recommended the court to deny the motion to dismiss.

According to the Judge, Charter’s “failure to stop or take other action in response to notices of infringement is a draw to current and prospective subscribers to purchase and use Defendant’s internet service to ‘pirate’ Plaintiffs’ copyrighted works.”

Charter objected to this recommendation and hopes that the court will not accept it. The company fears that this will subject the company, and pretty much all other ISPs, to a wide range of piracy liability claims.

They are not alone in this assessment. Yesterday, a group of 23 copyright law professors submitted an amicus curiae brief in support of the company. According to the legal scholars from prominent institutions including Harvard and Stanford, the recommendation would set a dangerous precedent.

The copyright professors point out that, based on the complaint, it can’t be concluded that Charter enjoyed direct financial benefits from the alleged infringements, as vicarious liability prescribes.

Vicarious liability requires ISPs’ actions to serve as a “draw” to potential infringers. However, the professors argue that this isn’t the case here. Instead, the potential to use Charter to pirate should be seen as an “added benefit.”

The draw, in this case, is access to the entire Internet, with the potential to pirate being an added benefit.

“Access to this universe of content and services is the draw for subscribers, and the use by some subscribers of some portion of that service to download infringing material can only plausibly be seen as an added benefit of the service.

“This is especially true with ISPs, like Charter, because subscribers pay the same flat monthly rate for a particular level of service irrespective of whether, or how often, they infringe,” the professors add.

The Judge’s recommendation fails to properly make this distinction according to the professors. Neither does it show the necessary causal link between infringements and the financial benefit. As a result, it would expose Charter and other ISPs to “unprecedented risks of liability.”

The fact that Charter advertises “blazing-fast” speeds that allow users to download “just about anything” efficiently is not relevant either. According to the professors, these features are valued by all Internet users whether they engage in infringement or not.

“The Recommendation’s misapplication of the direct financial benefit analysis would cause considerable harm to other ISPs, consumers, and the public,” they write.

The immediate threat to ISPs is more lawsuits where dozens of millions of dollars in damages are at stake. If the recommendation stands, providers would have a hard time defending them. In addition, many would have to change their piracy policies, which could hurt consumer privacy.

In order to avoid vicarious liability claims, Charter and others would have to be more active against potential repeat infringers. This could lead to more Internet terminations and possible monitoring of legitimate users, the professors warn.

“Consumers, whether they personally engage in infringing conduct or not, could be subject to wholesale termination of their Internet access based on unproven allegations of infringement occurring at the IP address through which they connect to the Internet.

“Moreover, ISPs could be forced to engage in privacy-invasive monitoring of their subscribers’ Internet activity,” they add.

The brief explains that ISPs that don’t host any content should pass all Internet traffic along in a neutral manner. These companies should not be forced to become copyright enforcers based on mere allegations.

Based on the above, the copyright law professors urge the court not to adopt the Magistrate Judge’s recommendations. First, however, the court must decide whether it will accept the brief and add it to the record.

Given what’s at stake, it wouldn’t be a surprise to see submissions from more third-parties on this matter in the coming days.

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A copy of the professors’ amicus curiae brief, which has yet to be accepted, is available here (pdf).

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For years on end, entertainment industry insiders have regularly portrayed Australia as a piracy-ridden country.

However, after several legislative updates, the tide appears to have turned. This is the conclusion reached by the Motion Picture Association (MPA) in a recent report.

The industry group, which is largely made up of Hollywood studios, along with the recently added Netflix, continuously monitors Australia’s anti-piracy efforts. In recent years, things have been going in the right direction.

A short summary of its findings was recently reported to the US Government as part of the annual trade barriers consultation.

The MPA’s overview is generally a summary of copyright challenges and shortcomings around the world. However, Australia is one of the few exceptions when it comes to anti-piracy enforcement. In fact, the industry group is rather positive about the progress the country has made.

“Australia has developed excellent tools to fight online piracy, including effective laws allowing for no-fault injunctive relief against ISPs and ‘search engine service providers’,” the MPA writes in its report.

The report points out that in recent years piracy rates have declined significantly Down Under. Pirate site blocking and other measures have helped to boost interest in legal subscription services, including Netflix, it suggests.

The MPA is also positive about recent developments regarding takedown notices. The Australian Competition and Consumer Commission is currently considering the introduction of a mandatory takedown notice scheme, one that would be stricter than the DMCA-style standard which is common today.

“This would include procedures for urgent take downs (extending to pre-release or new-release films and TV shows as well as live entertainment content), as well as ‘stay down’ obligations to ensure that content already identified as infringing does not quickly re-appear,” the MPA notes.

The Hollywood-backed group supports this initiative and adds that companies who breach the new takedown standard should face “meaningful” penalties.

Aside from the positive remarks in Australia, the MPA informs the US Government that there is room for improvement as well. For example, the police could offer more help with piracy-related investigations, something that’s lacking today.

In addition, the MPA is worried about an ongoing Copyright Modernization consultation where further exceptions to copyright are being considered. This includes new definitions of fair dealing or fair use, which are seen as a threat by the industry group.

“This consultation risks undermining the current balance of IP protection in Australia that has fueled the country’s creative industries, and could create significant market uncertainty and effectively weaken Australia’s infrastructure for intellectual property protection,” the MPA states.

Closing out the list is a recommendation to propose tough anti-camcording piracy laws. While fewer illegal recordings are sourced from Australia today, the current penalties for this activity are simply not enough to act as a proper deterrent, the group says.

The last request is far from new. The same demands have appeared in previous reports, as is the case with many of the recommendations throughout the MPA’s report, which are often copied verbatim year after year.

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The full overview of the MPA’s trade barrier comments to the US Trade Representative is available here (pdf).

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