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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Founded in 2012 by former Twitter CEO Evan Williams, online publishing platform Medium.com swiftly became the go-to place for many authors.

The site has featured works of renowned writers, politicians, high profile activists, major companies, as well as average Joes.

Today, Medium has millions of daily visitors, making it one of the 100 most visited websites in the world. The majority of these are drawn to the compelling and informative writings, but the site has proven a draw to scammy ‘pirates’ as well.

Every week, hundreds, if not thousands of articles appear that promise people the latest pirated movies and TV-shows. Whether it’s a high-definition copy of Joker, Terminator: Dark Fate, or Maleficent: Mistress of Evil, it’s available. Supposedly.

Here’s an example of a Joker movie that was promoted this week, but there are many more.

People who click on the links are often disappointed though. They typically point to a page where people can start a stream instantly, but after a generic intro, they are required to sign up for a “free account,” that requires a credit card for ‘validation’ purposes.

Needless to say, this isn’t a good idea. Aside from the obvious copyright issues, these services don’t promise what they offer. After all, many of the pirated films they advertise are not available in high-quality formats yet.

The goal of this strategy is to have these links show up high in search results. A site like Medium has a good reputation in search engines, and as a result, the articles promoting these scams are more visible in search results than the average pirate site.

This appears to be an effective strategy, especially since Google has started to push down results from known pirate platforms.

This practice is not new either. Many other reputable sites, including Facebook, Google Maps, Change.org, Steam, and others, have been abused in a similar fashion in the past.

TorrentFreak reached out to Medium and the company informed us that it’s a free and open platform that allows anyone to share stories and ideas. However, it takes swift action after any alleged infringements are reported.

“We fully comply with the DMCA and all other relevant copyright laws,” a Medium spokesperson said, pointing to its DMCA policy.

“When we discover bad actors, both through manual and automatic detection, they are assessed in terms of our policies and rules against those behaviors, and removed from Medium.”

These types of scams aren’t a major problem for copyright holders, as it will mostly result in disappointed and frustrated pirates. However, prospective pirates who fall for them may eventually be charged for something they didn’t sign up for.

For Medium this scam practice could lead to unexpected problems as well. Google received hundreds of takedown notices for Medium.com links over the past several weeks which, in theory, makes it a candidate for a downranking penalty. Unless Google reviews sites manually before applying a penalty, of course.

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During April 2018, the government in Japan introduced emergency websites blocking measures, seeking assistance from ISPs to block three pirate sites – Mangamura, AniTube! and MioMio.

Just four days later, one of the sites – giant manga platform Mangamura – suddenly called it quits, shutting itself down and creating a massive gap in the piracy market.

It transpired that a criminal investigation was underway into the activities of Mangamura, which eventually led to the arrest of the site’s alleged operator in Manilla, his deportation to Japan, and subsequent arrest by authorities there.

The gigantic scale of Mangamura has never been in question. However, a report published by the Motion Picture Association now reveals its importance not only on the pirate manga market, but also on the pirate market overall in Japan.

Starting with a list of 2,600 sites, the report – covering the period July 2017 to July 2019 – homes in on the most frequently accessed piracy sites/apps targeting Japan that offer movies, TV shows, anime, and manga content. Sites focusing exclusively on music, games, and porn were ruled out, leaving a balance of 1,447 ‘pirate’ sites.

The top 10 most highly-visited sites accounted for around 50% of visits to the 1,447, with the top 100 accounting for more than 90%. All sites with more than 100,000 visits per month (624 in total) were the main focus of the report.

In respect of Mangamura, the report classifies that now-defunct platform as an ‘online reading’ site, meaning that people viewed its content using a browser. The chart below shows the dramatic rise and fall of the niche the platform operated in, plotted against other forms of ‘pirate’ consumption.

As the image shows, in addition to ‘online reading’ sites, all other types of ‘pirate’ consumption took a big hit around the same time that Mangamura shut down.

The report notes that the government’s urging of ISP blockades against Mangamura, Anitube, and MioMio “greatly affected the number of visits to other piracy sites”, resulting in an overall decrease in traffic. However, it appears that all three shut down before they could be blocked.

Nevertheless, the overall effect on the pirate markets detailed in the study appears to be significant, due to the shutdown of those major manga platforms and the government’s anti-piracy stance.

According to the report, in March 2018 the total number of monthly visits to the sample 624 sites was measured at 640 million. A month later, monthly visits had collapsed to just over 400 million. By June 2018, traffic had reduced further still, to a low of 320 million visits per month.

Since June 2018, there has only been a modest increase in traffic to the sample sites. Noting that overall levels of infringement are “still large”, the report states that current visits have increased by just 20 million, to an estimated 340 million per month.

Finally, no piracy report seems complete these days without Cloudflare getting a mention, and this one is no different.

While those who carried out the study were able to identify the ultimate hosting locations of 39% of the 624 pirate sites (top three hosting countries were the United States 9%, Japan 6%, and Netherlands 5%), 61% couldn’t be geolocated. Of these, 86% were ‘hidden’ behind Cloudflare’s services.

The interesting twist, however, is that in response to a request from Japanese publishers, it was Cloudflare that handed over information which allowed investigators to identify the operator of Mangamura, which ultimately led to his arrest and previously, the shutdown of the site.

The full report, ‘Study Benchmarking and Tracking Online Film & TV Piracy in Japan’, is available here (pdf)

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