Earlier this month, the US Department of Commerce requested input from the public on several piracy-related matters.

Specifically, it wanted to know more about counterfeit and pirated goods that pass through online third-party marketplaces, and how this can be curbed.

Responding to this request, industry groups MPAA, IFTA, CreativeFuture, and SAG-AFTRA bundled their views on the matter in a joint submission. The groups, which represent various parts of the movie industry, make it clear that piracy remains a major issue.

The groups explain that piracy is complex and multi-faceted. One trend they have signaled over the years is that, similar to the legal offering, piracy is more often streaming related nowadays. In some cases, users don’t even know that they are using pirate services.

“The piracy services often have the look and feel of legitimacy, sometimes luring viewers who have no intent to patronize pirate operations and may not even realize they are doing so. And just as legitimate online dissemination of movie and television programming is moving toward streaming, so, too, is piracy,” the groups write.

Pirate streaming services exist in different shapes, ranging from free pirate sites to paid IPTV subscriptions. The latter is seen as an emerging threat. The groups note that it’s often easier to use than other forms of piracy. As such, there has been an increase in demand for pirate IPTV services recently.

“The MPAA has identified more than 1,000 illegal IPTV services operating around the world. They are accessible via dedicated web portals; third-party applications; and piracy devices configured to access the services as well as individual pieces of pirated content on demand. Such devices recently experienced a surge in consumer adoption,” the submission reads.

In addition to IPTV streaming, other forms of copyright infringement remain a problem as well. This includes torrent sites, cyberlockers, linking sites, as well as streaming devices and applications.

The groups hope that with proper support from the Government, it will be easier to counter these threats. In terms of concrete suggestions, they state that the US Department of Commerce can provide assistance on four fronts, starting with the encouragement of voluntary initiatives.

Encourage Best Practices

For several years industry groups have been pushing for voluntary anti-piracy agreements with the third-party intermediaries. Some success has been booked on this front already.

For example, many advertising networks are now banning pirate sites. Similarly, marketplaces such as Alibaba, eBay, and Amazon, are actively working with rightsholders to stop copyright infringements, and payment processors such as PayPal, Visa, and Mastercard are more vigilant as well.

However, not all companies are as cooperative. That’s where the Department of Commerce could lend a hand, by actively encouraging anti-piracy best practices and other forms of cooperation.

Examples of areas where improvement can be made are domain name registrars and reverse proxies, such as Cloudflare. These companies could implement “repeat infringer” policies, the groups state. In addition, some hosting companies could also do more to ban pirate sites and services.

“Given the central role of hosting providers in the online ecosystem, it is disconcerting that many refuse to take action when notified that their hosting services are being used in clear violation of their own terms of service prohibiting intellectual property infringement, and in blatant violation of the law,” the groups write.

Criminal Enforcement

The second area where the US Government could help is more direct. As highlighted a few weeks ago, the MPAA has made several referrals to the Department of Justice (DoJ), calling out pirate streaming operations that could be criminally prosecuted.

The Department of Commerce could spur on law enforcement to take up these cases.

“The creative community has pending a number of criminal referrals to DOJ regarding streaming piracy operations, with the goal of replicating the deterrent effect and protection of legitimate consumption that happened after the Megaupload action,” the groups write.

“Our hope is that the Commerce Department and others in the Administration will encourage the DOJ to take such action,” they add.

Help to Restore WHOIS data

The third area where the copyright industry groups request help is also familiar. It relates to the European privacy regulation GDPR, which requires many online services and tools to tighten their privacy policies. This also affects domain registrars.

Ever since this was implemented, domain registrar oversight body ICANN decided to shield names and other personal information of domain name owners from public view. The MPAA and other outfits don’t like this, as it makes it harder for them to track down site owners.

They, therefore, want to restore access to the full WHOIS details again. While ICANN promised progress on this front, the issue still hasn’t been resolved. To counter this, US Congress may have to step up and pass legislation to reach the desired effect, and the Commerce Department could back this.

“Should ICANN’s efforts drag on without resolution in sight, we ask that the Department of Commerce support such legislation,” the groups write.

In addition, broad WHOIS access requirements could also be made a requirement in trade agreements, the groups add.

“The Administration should also seek robust WHOIS access requirements in future trade agreements, perhaps expanding on language included in the U.S.-Mexico-Canada Agreement to apply to more than just a nation’s country-code top-level domain.”

Trade Agreements

Trade agreements are also a separate area of interest. The copyright industry groups point out that the piracy ecosystem is complex. It involves a wide range of players and intermediaries, many of which are located outside the United States.

The groups would like the US government to promote international cooperation in the fight against piracy. In addition, it should update its enforcement model to focus more on the potential liability of third-party intermediaries.

“While much of the model is sound—focusing on core aspects of copyright law and enforcement—the Administration should redouble its efforts around internet enforcement tools, including the critical concept of secondary liability, which creates a threat of liability for internet intermediaries that facilitate or profit from piracy,” the groups note.

In other words, the groups would like to see more trade agreements where companies such as domain registrars, search engines, ISPs, hosting outfits, and other players in the piracy ecosystem, can be held liable under certain circumstances.

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All in all, its a pretty elaborate wishlist the MPAA, IFTA, CreativeFuture, and SAG-AFTRA have submitted to the Department of Commerce. The department will take this, as well as the recommendations from other stakeholders, under review.

These submissions will form the basis for a Presidential memorandum on counterfeit and pirated goods trafficking through online marketplaces and internet intermediaries, which will be released in due course.

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A copy of the full submission from the MPAA, IFTA, CreativeFuture, and SAG-AFTRA is available here (pdf).

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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.

The labels sued the ISP for two types of secondary liability for copyright infringement; contributory infringement and vicarious liability. While Charter is confident that both claims will ultimately fail, it asked the Court to dismiss the latter claim before trial.

The music companies previously claimed that Charter is vicariously liable. To prove this, the rightsholders must show that allegedly-infringing material serves as a “draw” to subscribe to Charter’s Internet service. In addition, they must show that Charter can control the infringing activity.

According to the labels, this is the case. Among other things, they argued that Charter’s adverts for “high speed” downloads were seen as a draw. In addition, the ISP could control piracy on its network, by terminating repeat infringers.

In a response submitted this week, Charter counters these arguments.

With regard to the supposed “draw,” the ISP states that there has to be a causal connection between the financial benefit and the infringing activity. According to Charter, there is no plausible claim that suggests that subscribers specifically picked the company to carry out their piracy activities.

The fact that Charter advertises high-speed Internet is irrelevant in this case, as that’s what pretty much every ISP does. On top of that, high-speed Internet is also beneficial to all sorts of legal activity.

“It can safely be presumed that most, if not all, ISPs market the speed of their service, and there is of course nothing nefarious about doing so, as it is required for all manner of online activities. Plaintiffs can point to nothing to suggest that Charter’s ads are specifically targeted at would be infringers,” Charter writes.

“Moreover, Plaintiffs do not allege that the advertised speeds are meaningfully faster than Charter’s competitors or that those faster speeds somehow drew subscribers to Charter’s service (over others) to infringe. If Plaintiffs’ allegations were sufficient, every ISP would face exposure for merely advertising the speed of its internet service.”

In addition to refuting the “draw” claims, Charter also stresses that, even if it wanted to, it can’t control the infringing activities of its users.

The labels previously argued that the ISP does have control, as it can terminate the accounts of repeat infringers, but Charter stresses once again that this doesn’t stop piracy.

“The technology that allegedly facilitates the transfer of infringing material is BitTorrent and other P2P file sharing protocols. Charter cannot control BitTorrent or other P2P technology, nor do Plaintiffs allege as much. Terminating a user’s internet service does not preclude that user from continuing to use BitTorrent or other P2P websites.

“Rather than target the allegedly infringing P2P platforms themselves, Plaintiffs instead attempt to support a highly attenuated theory of liability,” Charter adds.

It is clear that both parties have a completely different view on the matter of piracy liability. It is now up to the Colorado District Court to decide which side makes the most sense.

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A copy of Charter’s reply in support of its motion to dismiss plaintiffs claim for vicarious liability is available here (pdf).

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uTorrent for Windows first came out in September 2005. Soon after, it became the most widely used torrent client, which it still is today.

Initially, Apple users were left out, but after three years BitTorrent Inc. released their long-awaited version for Mac OS.

While official numbers are not available, uTorrent likely never gained the impressive market share it enjoyed on Windows. This is, in part, was due to the fact that there were already several established Mac torrent clients around, including Transmission and Vuze.

In recent years there’s been very little progress on the Mac development front. The last client update dates back to last year, and there is virtually no discussion going on in the official Mac forums. It was also excluded from the recent BitTorrent Speed release, which is Windows only.

That said, something big is expected next month. BitTorrent Inc. just announced that the desktop versions of uTorrent and BitTorrent Mainline won’t be available on the new Mac OS Catalina (version 10.15 and up). Instead, all users will be updated to the browser-based web clients.

The reason for this is fairly simple. uTorrent Mac is only available as a 32-bit application, while Apple’s upcoming release of Mac OS Catalina is only compatible with 64-bit apps.

“Therefore, in early September, we will automatically update µTorrent Classic for Mac to our newest torrent downloader and player, µTorrent Web for Mac. This is necessary to ensure that our torrent downloading software continues to work seamlessly with Catalina when millions of users update to the new version,” BitTorrent Inc announces.

“We will start updating users in early September. If you are using µTorrent Classic for Mac version 1.87 or earlier version, you will automatically get upgraded to µTorrent Web for Mac.”

It’s no surprise that support for 32-bit applications will end on the newer Mac OS. This has been known for a while and, for this reason, a 64-bit version of uTorrent was put on the feature request list last year. However, that request didn’t receive an official response.

As a result, all users of the new Mac OS Catalina will have to move their torrenting activity to the browser, or find an alternative client. Users who haven’t updated Mac OS to Catalina can continue to use the desktop version

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Every year so-called copyright trolls sue thousands of BitTorrent users in the US. While most cases don’t make the news, every now and then one stands out.

This is true for the lawsuit adult content producer ‘Strike 3 Holdings’ filed against a John Doe, known by the IP-address 73.225.38.130, two years ago.

Strike 3 is the most active copyright litigant in the US at the moment. While the company has managed to obtain many settlements against accused pirates, this case was different. The defendant, a retired police officer in his 70s, decided to fight back.

The defendant submitted a counterclaim accusing Strike 3 of abuse of process and “extortion through sham litigation.” The man accused the rightsholder of going on a “fishing expedition,” while knowing that it couldn’t link the subscriber of the IP-address to any specific infringement.

While this counterclaim was denied by the Court, Strike 3 previously said that it was willing to declare that the defendant didn’t infringe its works. As such, the Court encouraged both parties to file a proposed judgment, which would also cover what costs and fees the copyright holder must pay, if any.

Over the past weeks, the parties tried to reach an agreement, but they failed to do so. As a result, this week the accused pirate submitted a motion for summary judgment to set in stone that he’s not a copyright infringer and to have his costs compensated.

The defendant’s attorney, J. Curtis Edmondson, notes that this case made his client potentially liable for an astronomical figure of $13,050,000.00, the maximum statutory damages for the 87 works his client supposedly shared.

However, the attorney points out that there is no evidence that this is the case. On the contrary, the defense argued that the tracking software used by Strike 3 is clearly flawed, as an expert report shows.

“This is the first case that has investigated the technical underpinnings of Strike 3’s dubious claims of infringement that have been replicated nationwide,” Edmondson writes.

“Strike 3 may have an interest in protecting its copyrights, but that interest should be counterweighed against the high false positive rate and the fact the software used to detect the infringements is not ‘forensic software’,” the attorney adds.

Apparently, one of Strike 3’s own experts, Patrick Paige, stated in a deposition that Strike 3 has no actual knowledge that the evidence tracking software (IPP) ‘works’. On top of that, an expert who analyzed the hard drive of the defendant found no evidence that any of the pirated files were stored on his computer.

Based on this, and various other arguments, the defendant asks the Court to grant summary judgment, confirming that he didn’t infringe any copyrights. In addition, the retired police officer asks the Court to award attorney fees and costs, totaling $48,773.13.

In summary, the defendant’s attorney equates the current case to the controversial dealings of Elizabeth Holmes and her now-defunct company Theranos. The young entrepreneur, a Stanford dropout, was lauded as the next Steve Jobs for inventing a revolutionary blood testing machine.

However, after several years of convincing many Silicon Valley investors, as well as the public at large, it turned out that there was no evidence that her machines actually worked.

“This is the first case where a ‘John Doe’ has had to expose the Potemkin village known as the ‘IPP Software.’. Like Theranos, there has been no independent validation studies and no evidence that the IPP Software is ‘forensic software’,” Edmondson writes.

The case is now back in the hands of the Court which will determine whether the defendant is indeed entitled to summary judgment and the requested compensation.

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A copy of the motion for summary judgment of noninfringement of copyrights and award attorney fees and costs is available here (pdf).

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