Week in and week out YouTube’s users upload millions of hours of videos. As with any user-generated content site, this also includes copyright-infringing content.

YouTube tackles this by processing takedown notices and using its Content-ID system to automatically remove allegedly infringing content. However, according to some prominent copyright holders, this is not good enough.

In Austria, this complaint is at the center of a lawsuit between the local television channel Puls 4 and YouTube. In an initial order last summer, the court ruled that the video platform can be held directly liable for users’ copyright infringements. YouTube was not seen as a neutral intermediary and should do more to prevent infringing uploads.

The court noted that YouTube takes several motivated actions to actively organize and optimize how videos are displayed. By doing so, it becomes more than a neutral hosting provider. Therefore, it can’t rely on a safe harbor defense.

This ruling was overturned by the Higher Regional Court of Vienna earlier this year. According to the appeal court, YouTube doesn’t have an “active role” as its search, categorization, and advertising service are seen as part of the normal business models of hosting platforms, which do not make the company liable.

Puls4 was disappointed with this ruling and immediately decided to take the case to the Supreme Court. This case is still pending but before it rules on the matter, the highest Austrian court is seeking input from the European Court of Justice (CJEU) on several crucial questions.

The questions haven’t been published publicly on CJEU’s website yet, but TorrentFreak obtained a copy of the Portuguese versions and IP KAT did the same with the German questions. These questions reveal, as expected, that the EU’s highest court will have to decide the boundaries of Europe’s safe harbors.

The first question, for example, asks if a video host, under Article 14 of the EU’s Electronic Commerce Directive 2000, takes on an “active role” that can make it liable for copyright infringements when it categorizes videos, makes suggestions by topic, and uses targeted advertising, among other things. 

The EU Court is further asked to clarify whether Articles 12 to 14 of the EU’s Electronic Commerce Directive mean that providers are shielded from liability, even when their activity is seen as a communication to the public.

In addition, the Austrian Supreme Court wants to know if a court-ordered injunction only applicable if a service provider has actual knowledge of infringements which have been confirmed by a court?

The latter appears to deal with the question of whether sites such as YouTube have to remove content merely based on metadata (to prevent repeated uploads), as opposed to pointing out specific infringing content. That’s important because, in the Puls4 case, YouTube was not aware of any the contested infringements.

The CJEU’s decision will be a crucial one in the ongoing legal debate about the potential liability of third-party intermediaries such as video hosting providers.

Puls4 previously stressed that it believes that EU law is on its side. Among other things, the company pointed out other relevant CJEU decisions, including the case regarding the infringing nature of The Pirate Bay. In addition, it believes that recent developments regarding liability under the proposed Article 17 of the new EU copyright directive will help its cause.

Interestingly, this isn’t the only YouTube-related case on CJEU’s agenda. A German court also referred various copyright infringement-related questions last year. The Austrian Supreme Court was aware of this referral but believes that its questions deserve to be handled separately.

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In February, several major Hollywood studios filed a lawsuit against Omniverse One World Television.

Under the flag of anti-piracy group ACE, the companies accused Omniverse and its owner Jason DeMeo of supplying of pirate streaming channels to various IPTV services.

Omniverse sold live-streaming services to third-party distributors, such as Dragon Box and HDHomerun, which in turn offered live TV streaming packages to customers. According to ACE, the company was a pirate streaming TV supplier, offering these channels without permission from its members.

Omniverse disagreed with this characterization and countered that it did everything by the book. It relied on a deal from the licensed cable company Hovsat, which has a long-standing agreement with DirecTV to distribute a broad range of TV-channels with few restrictions.

As time went on, however, it transpired that the streaming provider was clearly worried about the legal threat. After several of its distributors distanced themselves from the service, Omniverse decided to wind down its business.

An earlier statement that the service was “fully licensed” was replaced by more reserved language. In a court filing in June, Omniverse said that if any infringement took place, it was without the company’s explicit knowledge.

“To the extent there was any infringement, such infringement was, on information and belief, without malice or bad intent by Omniverse or its management and was caused or contributed to by third-parties such as HovSat,” the company stated.

Fast forward a few weeks and the case remains unresolved. According to recent court records, Omniverse would like to settle the matter. It has made several offers to do so, but the Hollywood studios were not interested. Instead, ACE would like to know all the ins and outs of the alleged infringements.

To break this impasse, Omniverse asked the court to compel the Hollywood studios to engage in a mediation process yesterday. At the same time, the company would like to bring the ongoing discovery efforts to a halt.

According to the court filing, the ACE members were willing to agree to a stipulated judgment where the streaming provider would admit certain wrongdoings. However, this goes too far according to Omniverse, which fears that the rightsholders could use this to fuel a criminal investigation.

“The parties have exchanged drafts of a stipulated judgment, but the parties reached an impasse when Plaintiffs demanded that Defendants admit to what amounts to egregious conduct in exchange for settlement,” Omniverse writes.

“Defendants fear Plaintiffs intend to use such a stipulated judgment as part of a criminal investigation against Defendants. To resolve the impasse, Defendants proposed a mediation, which Plaintiffs have flatly refused,” the company adds.

The mention of a potential criminal investigation is new. While it’s not a secret that Hollywood studios have referred several streaming piracy cases to the Department of Justice, Omniverse was never mentioned in this regard. Whether the streaming provider has any concrete indication that it’s a criminal target is unknown.

The request to compel mediation was submitted “ex parte,” meaning that ACE’s members weren’t made aware of it beforehand. However, the rightsholders were quick to respond.

In a filing submitted a few hours ago they object to the request. Instead, the Hollywood studios want to complete the discovery process, so they can find out more about the infringing activity. When that’s done, they are open to mediation.

The rightsholders further point out that, while the Omniverse brand may have ceased operating, the company’s CEO appears to be involved in another potentially troublesome IPTV service, OSTV Now, which is set to launch next month.

“While Defendants represented to the Court that they have ceased operations, it appears that Defendant DeMeo is merely shifting from one infringing operation (Omniverse) to another (OSTV Now), advertised as a new ‘One-Stop For TV Entertainment’ to launch on September 1.

“Whatever the branding, Defendants appear to be continuing their infringing practices. These and other important facts are exactly why discovery needs to move forward,” the studios add.

The new “OSTV Now” service doesn’t mention Omniverse CEO Jason DeMeo by name. However, as Lightreading pointed out previously, the service is promoted on DeMeo’s personal website.

Given the potential threat and several outstanding questions the studios have, they ask the court to deny Omniverse’s request to compel mediation at this stage of the case.

“Only when the facts are known to both sides (not just Defendants) can the parties meaningfully engage in a mediation. Defendants’ ex parte is a transparent attempt to avoid the very discovery that would reveal those facts, seemingly so they can continue infringing in the meantime,” they write.

Unlike Omniverse, the rightsholders make no mention of a potential criminal case. Whether that threat is indeed warranted, has yet to be seen.

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A copy of Omniverse’s ex parte request to compel mediation is available here (pdf) and a copy of the Hollywood studios’ response can be found here (pdf).

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Last year, Cox ended its piracy liability lawsuit with music company BMG, agreeing to a “substantial settlement.”

The ISP is now in the clear, however, Cox is still caught up in another lawsuit filed by a group of major music companies, all members of the RIAA.

The music outfits, including Capitol Records, Warner Bros, and Sony Music, argue that Cox categorically failed to terminate repeat copyright infringers and that the ISP substantially profited from this ongoing ‘piracy’ activity. All at the expense of the record labels and other rightsholders.

Over the past several months, both parties have conducted discovery and the case is currently scheduled to go to trial in December. While there were talks of a potential settlement a few weeks ago, things look rather different now.

Last week we reported that the ISP canceled a scheduled settlement discussion. As a result, the music outfits called for sanctions, accusing the ISP of gamesmanship. Now, it’s Cox’s turn to ask for sanctions, this time with a formal request.

Cox submitted a motion for discovery sanctions at the Virginia federal court, where it accuses the plaintiffs of relying on unsubstantiated evidence.

The concerns relate to the piracy evidence which the music companies are relying on. This is the data that was used to send copyright infringement notices to Cox, pointing out how its subscribers allegedly shared infringing material. As such, it is the basis of the “repeat infringer” claims that are central to the lawsuit.

The data in question was collected by the anti-piracy firm MarkMonitor, which keeps a close eye on global BitTorrent activity. For the lawsuit, these infringement allegations were summarized in two spreadsheets. However, Cox notes that underlying evidence has since been deleted.

“MarkMonitor failed to retain critical portions of this evidence, and the document that Plaintiffs intend to rely on is, at best, a partial and inaccurate summary of these analyses,” Cox informs the Court.

As such, Cox requests sanctions. Specifically, it asks the court for a ruling that the piracy evidence in question can’t be used to back up any claims.

“Because Plaintiffs’ agent destroyed the underlying data, leaving no way to assess the accuracy of this summary, Cox respectfully requests that the Court enter discovery sanctions against Plaintiffs in the form of a preclusion order prohibiting Plaintiffs from relying on the incomplete and unreliable MarkMonitor evidence.”

According to Cox, MarkMonitor deleted data which showed that claimed copyright infringements were indeed linked to copyrighted files. These data concern the “matching” logs it received from the fingerprinting service Audible Magic.

During discovery, Cox learned that MarkMonitor used data from Audible Magic to reach its infringement conclusions. A subsequent subpoena explained how this worked, and a deposition of Audible Magic later revealed that MarkMonitor deleted the transaction logs.

“Ultimately, Cox learned in a deposition on the last day of discovery that MarkMonitor did not produce the transaction logs at issue or the relevant database because it had destroyed them,” Cox informs the Court.

The deleted data was crucial according to the ISP, as it’s the only way to prove that the alleged infringements detailed in the spreadsheet are correct. In addition, the routinely deleted data “strongly suggests” that MarkMonitor’s spreadsheet is inaccurate.

“The destroyed Audible Magic data was undeniably material and foundational to the MarkMonitor Spreadsheet,” Cox notes.

The ISP backs up its ‘inaccuracy’ claims in redacted parts of its memorandum, mentioning that it was a “coin flip” whether or not a claimed infringement actually took place.

Cox argues that the record labels withheld unfavorable information so sees no other option than to scrap the spreadsheets as evidence. In their current form, they can’t be backed up.

“Because Plaintiffs failed to preserve and produce the best and most complete—indeed, the only—evidence of the alleged direct infringements, the Court should preclude Plaintiffs from relying on the ‘236 and ‘431 Spreadsheets, and any derivative documents, which are merely incomplete and inaccurate summaries of what the data would have shown,” Cox concludes.

It the Court agrees with Cox and excludes the piracy data as evidence, the case could be severely impacted.

Interestingly, this isn’t the first time that Cox has complained about spoilt evidence. The company did the same a few years ago in the BMG case, after it found out that anti-piracy company Rightscorp destroyed older versions of its piracy tracking code.

At the time the Court ruled that sanctions were indeed appropriate. However, the copyright infringement claims were not disregarded and Cox’s request to dismiss the case in its entirety was denied.

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A copy of Cox’s memorandum in support of the motion for discovery sanctions and to preclude the MarkMonitor evidence is available here (pdf).

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Obtaining multiple unresolved copyright complaints on a YouTube account can prove fatal to those who rely on the platform to make a living.

For those obtaining “three strikes”, it can mean the closure of an entire channel and along with it, access to potentially hundreds of otherwise revenue-generating videos.

Back in January, it was reported that a YouTuber known as ‘Obbyraidz’, who focuses on Minecraft content, was having this system turned against him.

After receiving two bogus strikes against his account, he took to Twitter to complain that he was being extorted by a scammer identifying as ‘Vengeful Flame’, who threatened a third and debilitating strike unless money was paid via PayPal or bitcoin.

A second YouTuber, known online as ‘Kenzo’ was also given similar treatment, with the scammer demanding money not to file complaints that could terminate his account.

Now, however, the tables are being turned after YouTube itself filed a complaint in federal court against Nebraska-resident Christopher Brady, the person who allegedly attempted to defraud both Obbyraidz and Kenzo.

“Defendant, Christopher L. Brady (‘Brady’), has repeatedly attempted to harass and extort money from YouTube content creators through bogus allegations of copyright infringement,” the complaint filed Monday begins.

“This lawsuit seeks to hold him accountable for that misconduct, and for the damage he has caused to YouTube.”

Detailing the DMCA takedown process in general and noting that notices can be used “maliciously to secure the removal of content that was not legitimately claimed to be infringing”, YouTube states it’s in a position to bring an action against a sender of bogus notices for damages.

“This is such an action,” the complaint reads.

According to YouTube, Brady sent the video platform dozens of DMCA notices falsely claiming that content posted by YouTube users infringed his supposed copyrights. He did this as part of a scheme to “harass and extort” innocent users, YouTube continues, in order to pressure them into payment and the avoidance of account closures.

Citing the work of three YouTubers – Obbyraidz, Kenzo and Cxlvxn – YouTube notes that between them they have uploaded around 1,000 videos related to video gaming. All are members of the YouTube Partner program, earning revenue from their work.

Brady allegedly targeted Kenzo and Obbyraidz “among others” by sending false DMCA notices to YouTube, claiming that he was the original creator of their videos, certifying as much “under penalty of perjury.” YouTube said it acted on these false claims, removing the videos.

However, when Kenzo and Obbyraidz went public with the extortion attempts, YouTube launched an investigation, restored the videos, and removed the strikes against their accounts.

The complaint alleges that in June and July 2019, Brady sent four more fraudulent notices, this time targeting Cxlvxn. However, this appears to have been an attempt to have Cxlvxn file a DMCA counter-notification, something that exposed his home address to Brady.

On July 10, 2019, six days after the counter-notification was filed, Cxlvxn reported he’d been ‘swatted’, something which YouTube describes as “the act of making a bogus call to emergency services in an attempt to bring about the dispatch of a large number of armed police officers to a particular address.” YouTube believes Brady was responsible.

As a result of the above actions, YouTube states that Brady is responsible for violations of 17 U.S.C. § 512(f). The company says it successfully traced back at least 15 online identities to the man, an investigation which caused it to expend “substantial sums” in an effort to bring the behavior to a halt.

The company is demanding preliminary and permanent injunctions against Brady, compensation to be decided at trial, costs, attorneys fees, and any further relief the court deems proper.

The YouTube complaint filed in Nebraska can be downloaded here (pdf)

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As the use of unlicensed IPTV services continues to gain popularity with consumers around the world, content owners and broadcasters are faced with a growing illicit market to disrupt.

As a result, copyright infringement and similar lawsuits against ‘pirate’ IPTV providers are definitely on the rise, with US-based broadcaster DISH Network at the forefront.

This week, DISH filed another lawsuit in the United States, this time targeting ‘pirate’ IPTV provider Easybox IPTV. This ‘company’ (the term is used loosely, given the unknown structure of the operation) appears not dissimilar to several others previously targeted by the broadcaster.

The model adopted by Easybox suggests the outfit primarily targets less experienced IPTV users, something that’s supported by the operation offering ready-configured (aka ‘fully-loaded’) devices as well as add-on subscription packages.

The DISH lawsuit, filed in a Texas federal court, list DOES 1-5 individually and collectively doing business as Easybox IPTV. DISH doesn’t appear to know the identities of the people it’s suing but has concluded they may be from China.

The broadcaster says that historical WHOIS records for the service’s domain name suggest a China base while delivery time for devices sent to China is much quicker than those sent to the United States.

At issue are DISH’s ‘protected channels’, i.e those it supplies as a result of licensing agreements obtained from various TV networks. These allow the company to “distribute and publicly perform” in the United States “by means including satellite, OTT, Internet protocol television (‘IPTV’), and Internet.”

Easybox IPTV’s service, which offers “more than 1,000 channels” to its subscribers, includes the ‘protected channels’, a breach of the broadcaster’s rights, according to DISH.

“Defendants use their Easybox Service to transmit the Protected Channels over the Internet to Service Users soon after the original authorized transmission,” the complaint reads.

“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.”

An interesting element to the case are the efforts expended by DISH, in advance of this lawsuit, in order to get Easybox to cease-and-desist its activities. According to the broadcaster, since January 27, 2016, DISH and its partners sent at least 116 infringement notices, all of which were ignored.

“Instead [of responding], Defendants prevented DISH’s counsel from viewing Easybox.tv by blocking their Internet Protocol (‘IP’) addresses,” the complaint adds.

On top of the direct notices, from February 8, 2016, more than 170 additional complaints were sent to CDNs associated with the Easybox service. DISH believes at least some of these were forwarded to the IPTV provider since it later countered by switching to different CDN providers.

All that considered, DISH is demanding a permanent injunction against Easybox (and anyone acting in concert with it) preventing it from “transmitting, streaming, distributing, or publicly performing in the United States, with any Easybox set-top box, smart IPTV subscription, subscription renewal, or any other device, application, service, or process, any of the Protected Channels or any of the programming that comprises any of the Protected Channels.”

DISH also seeks a ban on the distribution, sale, promotion or advertising of Easybox services and/or devices, including any inducement for others to carry out the same.

In addition, it requests statutory damages for 67 or more registered works at the rate of $150,000 each (more than $10 million) plus any profits generated by Easybox due to the infringement of non-registered works.

The DISH complaint against Easybox can be downloaded here (pdf)

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