While most YouTube users are simply visitors to the site, a minority produce their own content and upload it to the platform for others to enjoy.

Some can make a decent living when they enter a revenue-sharing agreement with YouTube but when things go wrong, those earnings can stop in an instant. According to popular YouTuber DJ Short-E (real name Erik Mishiyev), this happened to him – and he’s blaming the whole thing on YouTube using copyright-strikes as “retaliation” to his threats of a lawsuit.

In a complaint filed in a California federal court Wednesday, Mishiyev describes himself as a “well-known Journalist and DJ, known as ‘Short-E’, who publishes original music, DJ mixes, and celebrity interviews in videos on YouTube.”

Since 2007, Mishiyev says he’s run two YouTube channels – ‘djshortehot4eva’ and ‘theshorteshow’. These channels were monetized following an agreement with YouTube and after developing a subscriber base of 250,000 users, his channels generated more than 110 million views. For this, YouTube paid him $310,000 over a five-year period.

In March 2016, Mishiyev claims he began receiving copyright claims on his “highest advertisement revenue videos”. He says he responded with counter-claims to avoid YouTube’s “three strikes” process which would’ve disabled his channel. However, he reports that all claims were won and his channel was re-instated for monetization.

A year later, Mishiyev says YouTube recognized him as a successful contributor by handing him a “Silver Creator Award” for reaching 100,000 subscribers. However, despite growing his audience at a rate of around 4,000 subscribers per month, views remained low when compared to similar channels.

“Plaintiff was concerned about this suspicious activity and sought confirmation numerous times from YOUTUBE that they were truly distributing his new videos to his fans and subscribers, but YOUTUBE failed to provide such confirmation, stating ‘They could not share this information’ with him,” the complaint notes.

Mishiyev includes an email from one of his subscribers to back up his claims that YouTube failed to promote his content as per his agreement with the company.

“I subscribed to both of your channels and turned my notifications on for you so I would know when you uploaded new videos,” it reads.

“I subscribed about 2 weeks ago and haven’t got a single notification from youtube but I noticed you have uploaded many new videos since I subscribed [to your channels]. Please fix this problem, i’m sure there are many other people who haven’t been notified either and that’s why I noticed your views are very low compared to other similar channels.”

According to Mishiyev, YouTube’s failure to promote his content would cause him to lose $125,000 in revenue over a three-year period but after losing faith in YouTube’s support team, he told the company he would be filing a lawsuit if its conduct persisted.

In response, on December 18, 2018, YouTube reportedly sent a notice saying that they would be terminating Mishiyev’s accounts and removing his content. The very next day, serious copyright problems began.

“On December 15, 2018 through January 15, 2019, Plaintiff was abruptly bombarded with copyright claims like he never had been before the entire time he had been managing and growing his channels,” the complaint notes.

On January 22, 2018, YouTube reportedly blocked access to all of Mishiyev’s videos, replacing them with a notice that they had been removed due “to a copyright claim.” YouTube then placed “strikes” on his account but Mishiyev says that YouTube’s actions were actually in response to his threat of a lawsuit.

“Although YOUTUBE stated they removed his channels and videos for copyright claims, the removals appeared to Plaintiff to be in retaliation for his placing them on notice that he would be filing a lawsuit,” Mishiyev’s lawyers write.

According to the YouTuber, he followed the company’s rules by submitting counter-notices as required by the DMCA, noting that every time he had done that in the past he had prevailed since no one ever filed a lawsuit against him.

Generally, when a counter-notification is filed and there is no lawsuit notification from a complainant, content goes back up. But YouTube apparently wrote back saying that at least some of Mishiyev’s counter-notices were “ineligible.”

The complaint adds that YouTube later retracted its statement that the videos were ineligible for counter-notification and promised to process them. It’s not clear what happened next but it didn’t help Mishiyev’s predicament.

“To date, Plaintiff’s strikes have not been removed, his counter claims have
not been processed, and his videos and channels have been permanently removed, though no claimants presented evidence that they filed any lawsuits. Thus, evidencing that YOUTUBE did not simply remove his content because of copyright claims, but instead in retaliation for placing them on notice that he was filing a lawsuit against them,” the complaint asserts.

As a result, the now-former YouTuber says he lost $90,000 in revenue between January 2019 and July 2019, adding that when lost subscribers, views, future views, performance bookings, and lost advertising and sponsorship deals are taken into account, YouTube’s actions have caused him damages of $720,000, for which he demands compensation in full.

Mishiyev is suing YouTube for breach of contract, interference with contractual relations, interference and negligent interference with economic advantage, and negligence. He also demands an injunction preventing YouTube from “banning Plaintiff from the full use of the internet and YOUTUBE’s services.”

The complaint plus supporting documents can be found here 1,2,3,4,5 (pdf)

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For roughly two decades, copyright holders have been sending takedown notices to ISPs to alert them that their subscribers are sharing copyrighted material.

Under US law, providers must terminate the accounts of repeat infringers “in appropriate circumstances” and increasingly they are being held to this standard.

Several major music industry companies have filed lawsuits against a variety of Internet providers. With help from the RIAA, the companies targeted Cox Communications, Grande Communications, and Charter, hoping to recoup damages for their role in the pirating activities of their subscribers.

The overall theme of these lawsuits is the same. The music companies accuse the ISPs of turning a blind eye to pirating subscribers. This is also made clear in a new complaint that was just filed against several ISPs that operate under the RCN brand.

The lawsuit is again filed by music companies, including Arista Music, Bad Boy Records, Capitol Records, Laface Records, Sony Music Entertainment, Universal Music, UMG Recordings, and Warner Records. Some of these are also involved in the aforementioned cases.

“This is a case about a leading internet service provider knowingly enabling its customers’ massive online copyright infringement of sound recordings,” the music companies allege in a complaint filed at a federal court in New Jersey.

“Defendants operated RCN as a haven for infringement. Defendants promoted RCN’s high internet speeds to customers, knowing that the ability to download copyrighted material illegally using high-speed internet, without repercussions, was a substantial draw for infringers,” they add.

The music companies state that RCN, including several local branches, willingly profited from keeping pirates on board. The ISP advertised high-speed internet which would be particularly appealing to BitTorrent pirates, it’s claimed.

“RCN provides its subscribers with a fully functioning system that allows them to engage in copyright infringement on a massive scale using BitTorrent networks,” the complaint reads.

“And for those subscribers who want to pirate more and larger files at faster speeds, RCN obliges them in return for higher fees. The greater the bandwidth its subscribers require for pirating content, the more money RCN receives.”

We have seen similar claims in related “repeat infringer” lawsuits. Previously it was pointed out that, while it is certainly true that high-speed Internet access is beneficial for pirates, legal users of streaming platforms such as Netflix would benefit as well.

The music companies, however, are convinced that the high speeds lure pirates to RCN. On top of that, they accuse the Internet provider of ignoring repeat infringers, so it can continue to profit from this piracy activity.

The music companies back up their claims with data from anti-piracy tracking company Rightscorp, which previously sent RCN more than five million infringement notices. These notices identified tens of thousands of alleged pirates.

Despite being aware of this copyright-infringing activity, RCN did nothing to stop it, the complaint notes. According to the Rightscorp data, 36,773 subscribers repeatedly engaged in piracy, with hundreds of these being flagged more than 1,000 times.

Since Rightscorp doesn’t monitor all activity, this is likely a small fraction of all the infringing activity occurring over RCN’s network, the music companies add. And despite the high number of repeat infringers, RCN did little to stop it.

“Defendants failed to take any meaningful action to discourage this
wrongful conduct. Instead of terminating repeat infringers—and losing subscription revenue— RCN for years simply looked the other way and chose to allow the unlawful conduct to continue unabated.

“By ignoring the repeat infringement notifications and refusing to take action against repeat infringers, and instead providing those customers with ongoing internet service, Defendants made a deliberate decision to contribute to known copyright infringement,” the complaint adds.

In cases like this, Internet providers can generally rely on the DMCA safe harbor defense, which shields them from liability. However, the music companies argue that RCN lost this right by not having a properly functioning repeat infringer policy.

“Although RCN purported to adopt a policy to address repeat infringers, RCN in reality never adopted or reasonably implemented a policy that provided for the termination of repeat infringers—despite receiving over five million infringement notices. Its purported policy was a sham,” the complaint reads.

The allegations are very similar to the other “repeat infringer” lawsuits we have seen in the past. As in the other cases, the ISP is accused of both contributory and vicarious copyright infringement. The same also applies to RCN’s management company Patriot.

The music companies claim substantial losses for which they want to be compensated. They request actual damages or statutory damages of $150,000 per work. With an illustrative list of more than 1,000 tracks as evidence, a list that may grow even longer, the potential damages are already over $150 million. 

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A copy of the complaint, filed at the United States District Court for the District of New Jersey, is available here (pdf).

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The so-called ‘Six-Strikes’ Copyright Alert System was once praised as an excellent tool to address online piracy.

Under the agreement, which involved the MPAA and RIAA, several large Internet providers in the US sent copyright infringement warnings to pirating customers.

After repeated alerts, these subscribers would face a variety of ‘mitigation’ measures but their accounts would not be terminated. Although rightsholders and ISPs appeared happy with the deal, it was shut down two years ago.

Instead of cooperating with ISPs, several RIAA labels then took another approach. They filed lawsuits against Internet providers for not doing enough to curb piracy. Specifically, companies such as Charter and Cox were sued for failing to disconnect repeat infringers.

The lawsuit between several music companies and Cox is ongoing and currently scheduled to go to trial later this year. Both parties are conducting discovery and the ISP has shown a keen interest in the aforementioned Copyright Alert System (CAS).

Cox itself didn’t take part in the voluntary anti-piracy scheme, but it believes that its existence can help the company’s defense. As such, it obtained a subpoena and repeatedly requested the RIAA to hand over relevant documents that show how effective it was.

However, the RIAA is not eager to cooperate. Thus far it has denied all of the requests, which prompted Cox to take the matter to court this week. The ISP asks the District of Columbia federal court to order the music industry group to comply with the subpoena and hand over the requested data.

“This motion to compel concerns the production of the reports and data generated by ISPs and sent to the RIAA regarding the number of copyright infringement notices forwarded to unique subscribers on a monthly basis that were intended to allow the RIAA to assess the effectiveness of CAS over time,” Cox writes.

Thus far the RIAA has refused to produce any documents concerning the Copyright Alert System, stating that these are irrelevant. However, Cox clearly disagrees and, in its motion, the company suggests that the data are crucial.

The ISP believes that its own measures could have been more effective than the CAS. Cox had, at least on paper, a twelve-strike policy which it said could lead to actual account terminations.

“Cox has taken the position that its graduated response was a more effective method for combating alleged copyright infringement than the CAS because, among other things, it provided for the termination of certain
‘repeat infringers’,” the ISP writes.

This would be at odds with the music labels claims in the lawsuit which state that Cox’s policy was insufficient, especially since the RIAA and other music industry insiders praised the CAS as ‘a model for success.’

With the requested documents, Cox likely wants to compare the effectiveness of the CAS with its own measures. If the company can show that its own policy was more effective than the music industry-backed scheme, it has an interesting point to make.

“The effectiveness of the measures detailed in the CAS and that the ISPs implemented for responding to the copyright infringement notices endorsed by the RIAA and the Sony plaintiffs—is therefore highly relevant to the Sony litigation,” Cox writes.

The ISP stresses that it’s crucial to get all the relevant information, not least because there’s $1.5 billion in possible copyright infringement damages hanging over its head. As such, it urges the Court to grant the motion.

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Cox Communications’s motion to compel the RIAA to comply with the subpoena is available here (pdf).

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Section 115a of Australia’s Copyright Act, which provides a mechanism for rightsholders to have ‘pirate’ sites blocked by ISPs, was long campaigned for as an essential tool to fight online infringement.

Since it came into force it has been used on a number of occasions, with the Federal Court handing down orders to restrict access to hundreds of sites said to provide access to entertainment content without permission from the rightsholders.

Back in June, media giant Foxtel filed a new statement of claim, the details of which were obtained by TorrentFreak from a third-party source. It revealed that the company was targeting 35 torrent, streaming and related proxy site domains for blocking by dozens of ISPs (full site list below).

This was the first time that a rightsholder had targeted proxy sites in Australia. A change in the law during 2018 allowed sites that have a “primary effect” of facilitating access to infringing content to be blocked, along with more direct sources such as regular pirate sites.

Following a case management hearing that took place in July, a hearing this morning resulted in Justice Nicholas handing down an injunction ordering 52 ISPs including TPG, Telstra, Optus, Vocus, Vodafone, plus their subsidiaries, to take “reasonable steps” to block the “online locations”.

A unique aspect of this application was that Foxtel had asked permission to add new domains and URLs to its orders, ones that in future might facilitate access to already-blocked sites, without having to return to court to detail them specifically.

Under legislative amendments put in place last year (Copyright Amendment (Online Infringement) Bill 2018)), these kinds of “dynamic orders” are permissible, but only when the Internet service providers listed in the application don’t file an objection.

According to ComputerWorld, the hearing this morning had Foxtel counsel stating that it wasn’t seeking to block fresh additional “online locations”, but only proxy and mirror-type sites those that spring up to facilitate access to already blocked sites.

However, Foxtel acknowledged that getting all of the respondent ISPs to agree to such supplementary blocking raised issues since TPG tends not to respond to any of the blocking injunctions it’s named in. That meant that formal agreement between all ISPs might be difficult to obtain.

With Justice Nicholas’ permission, Foxtel said it would amend its proposed orders to include a provision allowing an ISP to positively deny that a proxy, mirror, or similar facilitating site, provides access to a blocked site. This would likely overcome that particular stumbling block, the Judge agreed.

The associated court documents can be found here and here (pdf)

The list of domains to be blocked by ISPs in 15 days are as follows:

Sharemovies.net, seriesonline8.co, seriesonline8.com, movie4u.live, movie4u.cc, movie4u.co, seehd.uno, seehd.biz, streamdreams.org, streamdreams.me, streamdreams.co, streamdreams.online, streamdreams.video, stream-dreams.com, moviesonline.mx, wsmmirror.info, watchsomuch.info, watchsomuch.com, seventorrentsmirror.info, seventorrentsproxy.com, 7tmirror.info, torrentken.site, skytorrents.lol, unblocked.lol, unblocked.is, unblocked.ms, unblocked.win, unblocked.gdn, unblocked.vet, unblocked,sh, unblocked.mx, unblockall.org, unblocker.cc, unblock.win, myunblock.com

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The “repeat infringer” issue is a hot topic in US Courts that has resulted in several lawsuits already.

Under the DMCA, companies are required to implement a reasonable policy to deal with frequent offenders. Those who don’t, risk being held liable.

Thus far we have seen lawsuits targeting ISPs including Cox Communications, Charter, and Grande Communications. These companies were all sued by music industry companies and most cases remain ongoing.

In Hawaii, a new ISP was targeted a few days ago, this time by a movie outfit. In a complaint filed at a Hawaiian federal court, Bodyguard Productions accuses Internet provider Pacific DirectConnect of failing to terminate a repeat infringer.

The movie outfit, which is the copyright holder of “The Hitman’s Bodyguard,” is a familiar player in US courts. The company has previously sued many individual BitTorrent pirates. With the latest lawsuit, it breaks from this trend by going after the Internet provider itself.

Pacific DirectConnect is not a typical consumer ISP. It mainly targets hotels and resorts in Hawaii, offering integrated network solutions including Internet access. According to the complaint, one of these clients is Aston Waikiki Sunset, a large hotel in Honolulu.

According to the movie company, one of the hotel’s IP-addresses was repeatedly caught pirating. The ISP was made aware of this, both directly and through notices that were sent to its own bandwidth supplier, but apparently failed to take any meaningful action in response.

“Despite multiple notifications of infringements from Plaintiff, Hawaiian Telcom and third parties, Defendant has failed and steadfastly refused to terminate the account of subscriber Aston,” the complaint reads.

“Said infringements would have been stopped if Defendant merely terminated subscriber Aston’s service,” the movie company adds.

Bodyguard Productions argues that the ISP purposely failed to terminate the account of the Hawaiian hotel, despite knowing that it was a repeat
infringer. As such, the company is liable for the copyright infringements of its ‘subscriber.’

Through the lawsuit, the movie company requests an injunction requiring the ISP to terminate the account of the hotel. It accuses the company of both contributory and direct copyright infringement, asking the court to grant “any and all other relief” that’s appropriate in this case.

According to the complaint, Pacific DirectConnect is not protected by the DMCA’s safe harbor because it willingly failed to terminate the alleged repeat infringer. In addition, the ISP doesn’t have a registered DMCA agent, which is a requirement to enjoy safe harbor protection.

As far as we know, this is the first time that an ISP has been sued for providing Internet services to a hotel. This sets the case apart from the other repeat infringer cases that mostly deal with ordinary consumer providers.

Needless to say, the lawsuit has the potential to create another shockwave in the industry. If an Internet provider can indeed be liable for servicing hotels, resorts, or other large companies that have hundreds of users themselves, it will have to be much more careful.

The complaint doesn’t mention whether Bodyguard Productions reached out to the resort directly to address the repeat infringer issue.

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A copy of the complaint filed by Bodyguard Productions against Pacific DirectConnect is available here (pdf).

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