After beginning with the obligatory statement that Kodi is an entirely legal platform until people augment it with third-party ‘pirate’ add-ons, not every complaint in this area is straightforward.

This week, Kodi add-on resource TVAddons received a relatively unusual complaint about a page on its site that detailed a BT Sport-related add-on called BT Sport Video. According to a cache copy of the page (Google cache) TVAddons didn’t host the software or even link to it but did detail how to find and install it.

At first view, this could’ve been any other ‘pirate’ tool offering illegal streams but the ‘BT Sport Video’ add-on simply gave viewers a way to access officially-supplied and/or paid-for BT Sport content inside Kodi, without any piracy involved.

The complaint from BT Sport, however, wasn’t just about the add-on. The TVAddons installation guide included a BT Sport logo and referenced the add-on as BT Sport Video, the name given to the add-on by its developer. This appears to have prompted the broadcaster’s agent to issue a takedown notice covering both copyright and trademark law.

“Our client has recently become aware that on the web site, published in correspondence of the domain name https://www.tvaddons.co/kodi-addons/show/plugin.video.btsportvideo/, an Internet user is publishing, absent any authorization of the legitimate IP Rights owner, contents taken from our client’s official sites and protected by copyrights. See, for instance, at the URL http://sport.bt.com,” the complaint reads.

“This website is breaching IP Rights by offering illegal preloaded apps that enable unauthorized viewing of the BT Sport content. Please either remove all BT Sport content or suspend this website.”

In addition, the BT Sport complaint included copies of its trademark registration certificate, which was effective from September 2016 and details, among other things, rights in respect of computer software and computer services.

A response email sent by TVAddons to BT Sport’s representatives indicates that the site responded quickly to the complaint by taking down the entire installation guide. However, the add-on itself appears to be long-abandoned after being discontinued by its developer last year.

According to a thread on the official Kodi forums, the BT Sport Video add-on was initially available via the official Kodi repository, another sign that the add-on was initially viewed as non-problematic. However, it was subsequently hit with a DMCA notice and as of last summer, is no longer available.

It seems that even with a legitimate BT Sports subscription or content made freely available via its site, the broadcaster doesn’t want its content seen inside the Kodi application. Some will consider this an opportunity lost but BT Sport has its own business model and has probably had its fill of people using Kodi to access its streams illegally via the software.

Driving more users to the Kodi platform probably isn’t high on BT Sport’s list of priorities and when people use the BT Sport name to promote third-party software, it has the potential to imply an official endorsement, obviously a step too far for the company’s brand protection team.

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On December 9, 2014, the file-sharing world was in turmoil.

Swedish police raided the Nacka station, a nuclear-proof datacenter in Stockholm, and confiscated dozens of servers.

The raid caused downtime at many popular torrent sites including The Pirate Bay. While a TPB insider later denied that its servers were taken, it remained offline for nearly two months.

After the raid, it became clear that The Pirate Bay was indeed the main reason for the enforcement effort. Similar to the earlier raid in 2005, a criminal investigation was launched to hold the operators responsible and keep the site offline.

However, where the first enforcement action resulted in several criminal convictions, the most recent investigation had limited success.

Last week we reported that the police ended the investigation into Pirate Bay co-founder Fredrik Neij, who was seen as a prime suspect. Today, we can report that the entire criminal investigation is now closed.

While the prosecution gathered a substantial amount of evidence, the case can’t continue, simply because time ran out.

“The investigation was closed because the statute of limitations expired,” Anna Ginner, Prosecutor at the National Intellectual Property Crime Unit tells us.

There was enough evidence to pursue a case against a suspect, which we believe is Fredrik Neij. However, the prosecution was unable to reach this person for “final serving,” a process where defendants can review the evidence, which is mandatory in Sweden.

“The investigation was finished. However, we did not manage to contact the suspect to give him the possibility to review the investigation on final serving,” Ginner notes.

Although there are no criminal convictions, the police and prosecution did book some results, Ginner says. The investigation led to a legal battle over the thepiratebay.se domain name, which was registered to Neij. This case went all the way to the Supreme Court, which forfeited the domain to the Swedish state last year.

The prosecution may have hoped for more but the lack of a conviction doesn’t come as a complete surprise. In 2017, the then leading prosecutor Henrik Rasmusson already warned that time was running out and that oral evidence was weakening.

Due to secrecy provisions, the prosecution can’t comment on whether The Pirate Bay remains a topic of interest, but it’s clear that the investigation following the 2014 raid is now closed.

Last week Neij told us that he is pleased that the case was dropped.

“Now that the investigation is closed, I’m looking forward to being compensated for them unnecessarily holding all my computer equipment for four years and ten months,” he said.

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Football, or soccer as it’s more commonly known in the US, is the most popular spectator sport in the UK. As a result, millions watch matches every week, both legally and illegally.

The latter method of consumption is a big thorn in the side of organizations such as the Premier League, which has been working hard to stamp out piracy in all its forms, often via aggressive enforcement. However, a new survey published today suggests more education is also needed.

Commissioned by betting tips service OLBG and carried out by market research company OnePoll in September, the survey looks at some of the habits of 1,000 football fan respondents.

The survey begins by noting that 16.6% of respondents usually attend live games, closely followed by 14.3% who “usually” watch in the pub. However, the largest audience (46.9%) are those who regularly watch matches live at home.

This, of course, opens up the opportunity for piracy. The report states that 22.4% of football fans surveyed admitted to knowingly using “unofficial streams” at some time in the past, a figure that is extrapolated in the report to “over five million UK football fans” admitting to illegal streaming.

Asking whether fans had watched a pirated stream in the past 12 months (or even “usually”) would have arguably been a little more useful, in order not to inflate the figures beyond current consumption habits. There will be fans in those millions who, in varying combinations, attend matches, watch legally in the pub, and on occasion, illegally at home too.

Nevertheless, the report provides some interesting data on the knowledge of those surveyed when it comes to illegal and legal consumption.

For example, just over 61% of respondents acknowledged that accessing streams from unofficial providers is illegal, meaning that almost 40% believe that watching matches from third-party sources is absolutely fine. That’s a pretty big problem for the Premier League and other broadcasters when four out of ten fans can’t tell the difference between a legal and illegal provider.

Strangely, the figure drops slightly when respondents were asked about “Kodi-style” devices. Just 49% said that these boxes provide content illegally, meaning around half believe they offer football matches legally. Given the drive to stamp out the illegal use of these devices globally, this is also an eye-opener.

Moving to other methods of access, the figures are a little bit more predictable. Just under 29% felt that social media streams (Facebook Live etc) are illegal, so that may raise the possibility that respondents associated the perceived legitimacy of the platform with legality.

Password sharing is also tackled in the survey, with 32.5% of respondents stating that they believe that using someone else’s login to access football matches is illegal. If that happens outside the subscriber’s household it might constitute a terms-of-service breach but actual illegality is open to question, account stealing aside.

All that being said, according to the survey, just 11% have actually used a family member’s login to watch football during the past 12 months, a figure that drops to 9.8% when borrowing from a friend.

In common with the debate around password sharing on Netflix and other platforms, this issue is likely to receive greater attention in the future but how it will be tackled by providers is far from clear. At least at the moment, the problem seems limited.

Finally, and just returning to the headline “five million football pirates in the UK”, it’s worth noting that this refers to people who have “EVER” used an unofficial stream to watch football, so it’s not necessarily five million fans who don’t ever part with a penny.

As far as we could see, no question in the report tried to determine what percentage of fans currently freeload all of the time, which is undoubtedly the biggest problem for the Premier League.

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For more than a decade, alleged file-sharers around the world have been pressured to pay significant settlement fees.

These so-called ‘copyright-trolling’ efforts are pretty straightforward. Copyright holders obtain a list of ‘pirating’ IP-addresses and then request a subpoena from the court, compelling ISPs to hand over the associated customer data.

This scheme can be rather lucrative. With minimal effort, rightsholders can rake in hundreds or thousands of dollars per defendant. That is, if a court grants expedited discovery, allowing the companies to request the personal details of alleged infringers from ISPs.

In the past, it has been relatively easy to pursue these cases, but the tide is slowly turning. Most prominent was a Ninth Circuit Court of Appeals ruling from last year in the Cobbler Nevada v. Gonzales case. Here, the court ruled that identifying the registered subscriber of an IP-address is by itself not enough to argue that this person is also the infringer.

While the Cobbler case wasn’t about a subpoena request, it certainly said something about the strength of the underlying complaints.

As the most prolific filer of piracy lawsuits in the US, Strike 3 Holdings has come under fire as well. For example, last November Columbia District Judge Lamberth accused the company of being a “copyright troll,” that uses “famously flawed” technology to prey on “low-hanging fruit,” flooding the
courthouse “with lawsuits smacking of extortion.”

That didn’t stop Strike 3, which produces adult content, from continuing its legal campaign. The company filed has more than 1,150 lawsuits already this year, many of which are believed to have resulted in profitable settlements. However, there have been setbacks as well.

Last week, New Jersey District Court Magistrate Judge Joel Schneider denied Strike 3 expedited discovery in four cases. This means that it’s not allowed to subpoena ISPs for the personal details of account holders whose IP-addresses were used to share pirated videos via BitTorrent.

In a very detailed 47-page opinion, the Judge takes apart various aspects of Strike 3’s enforcement efforts. He makes it clear that these cases should not be allowed to go forward, as the complaints are futile.

“The most fundamental basis of the Court’s decision is its conclusion that, as pleaded, Strike 3’s complaints are futile. The Court denies Strike 3 the right to bootstrap discovery based on a complaint that does not pass muster,” Judge Schneider writes.

The futility lies in the fact that the complaints themselves include very few facts. The only thing that the company really knows is that an IP address is associated with downloading copyrighted works. Strike 3 doesn’t know whether the subscriber is involved in the actual infringements.

Courts have previously ruled both in favor and against allowing discovery to expose the account holders in these situations, but the New Jersey Court clearly sides with the latter.

“The Court sided with the cases that hold it is not sufficient to merely allege in a pleading that the defendant is a subscriber of an IP address traced to infringing activity. Consequently, the Court will not authorize Strike 3 to take discovery premised on a futile John Doe complaint.”

The decision is partly based on the aforementioned “Cobbler” ruling of the Ninth Circuit Court of Appeals. However, the Court makes it clear that even if there was a properly pleaded infringement claim, the requests for expedited discovery would still be denied.

In the opinion, Judge Schneider sums up the other issues as follows:

(1) Strike 3 bases its complaints on unequivocal affirmative representations of alleged facts that it does not know to be true.
(2) Strike 3’s subpoenas are misleading and create too great of an opportunity for misidentification.
(3) The linchpin of Strike 3’s good cause argument, that expedited discovery is the only way to stop infringement of its works, is wrong.
(4) Strike 3 has other available means to stop infringement besides suing
individual subscribers in thousands of John Doe complaints.
(5) The deterrent effect of Strike 3’s lawsuits is questionable.
(6) Substantial prejudice may inure to subscribers who are misidentified.
(7) Strike 3 underestimates the substantial interest subscribers have in the constitutionally protected privacy of their subscription information.

For example, Strike 3 has argued that these cases do not really raise any substantial privacy concerns, but the Court clearly disagrees. Being named in a lawsuit is an invasion of people’s constitutional privacy rights, which should not be underestimated.

“[G]iven the expansive view of individual privacy under New Jersey law, there should be a good reason before subscriber information is turned over. This is especially true in a situation where questionable averments are relied upon to obtain discovery,” Judge Schneider writes.

Another point the Judge brings up is Strike 3’s claim that it has no other available means to stop copyright infringements. According to the Court, this is not true. The DMCA allows the company to send takedown notices to ISPs, but Strike 3 doesn’t use this option.

While the company is by no means required to issue takedown notices, the Court finds it unreasonable for Strike 3 to argue that it has no other options when it ignores the DMCA.

“One would think that Strike 3 would be eager to notify ISPs that its subscribers are infringing their copyrights, so that an infringer’s internet service would be interrupted, suspended or terminated and infringement would stop. However, Strike 3 does not take this simple step but instead files thousands of lawsuits arguing that it has no other recourse to stop infringement,” Judge Schneider writes.

Even if Strike 3 believes that these notices don’t have any direct effect, it could at least try. If an ISP willfully ignores DMCA notices or fails to follow its repeat infringer policy, it could even consider suing the Internet provider, as other rightsholders have done, the Court adds.

Adding to that, Judge Schneider points out that the current legal campaigns against individual file-sharers are not very effective. There doesn’t seem to be a substantial deterrent effect, as Strike 3 admits that the infringements of its works have only increased.

All in all the Court sees no other option than to deny the request for expedited discovery. This is good news for the people who were targeted by these lawsuits, as they won’t be identified. At the same time, it means that Strike 3 can’t continue these cases, as it can’t name a defendant.

The Court realizes that this makes it nearly impossible to track down the alleged infringers, but sometimes that’s how the law works.

“The Court is not unmindful that its ruling may make it more difficult for Strike 3 to identify copyright infringers. To the extent this is the price to pay to assure compliance with the applicable law, so be it,” Judge Schneider writes.

“A legal remedy does not exist for every wrong, and it is unfortunately the case that sometimes the law has not yet caught up with advanced technology. This is not the first time, nor will it be the last, where a party who believes it was wronged was denied discovery,” he adds.

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A copy of the full opinion issued by US Magistrate Judge Joel Schneider is available here (pdf).

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