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.

Last month Charter responded to these allegations. The company denied that it plays an active role in any infringing activities and believes the music companies’ arguments are flawed.

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 has only asked the court to dismiss the latter.

In its motion, Charter stressed that there is no evidence that it directly profits from copyright infringement. In addition, the ISP said that it doesn’t have a right and ability to control any infringements either, which negates another element of vicarious liability.

The music companies clearly disagree with Charter’s arguments. In a new reply submitted this week, they reiterate that the ISP failed to terminate repeat infringers, suggesting that it was motivated by profit.

“Since 2012, hundreds of thousands of defendant Charter Communications, Inc.’s subscribers have illegally distributed Plaintiffs’ music through online file-sharing programs like BitTorrent, with some users pirating hundreds of Plaintiffs’ songs,” the music outfits start, setting the tone right away.

Charter previously argued that it couldn’t control or stop piracy. Even if it terminated the accounts of subscribers, this would do little to stop infringement. After all, those people could simply sign up elsewhere and continue their infringing activities there.

The music companies reply that this argument misses the mark. They note that they’re not holding Charter liable for all hypothetical piracy on the Internet. Instead, their claim applies to a specific subset of pirate activities that previously took place on the ISP’s network.

At the very least, Charter had the “contractual right” and “practical ability” to limit piracy by its subscribers by terminating persistent infringers, the music companies argue.

“Pursuant to its terms of service, Charter reserves the right to terminate users’ accounts if they engage in copyright infringement. As courts have repeatedly held, it does not matter that Charter cannot prevent users from accessing infringing material online through other means.”

In addition to the control part, the music companies also state that the Internet provider profited from the alleged infringements, which is another crucial element of vicarious liability.

The music companies and other rightsholders sent the ISP many infringement notices, identifying the accounts of specific subscribers. Even though Charter had the ability to terminate the accounts of frequent offenders, it took no action, allegedly for a profit motive.

“The reason for Charter’s refusal to act is simple: by tolerating users’ infringement, Charter reaps millions of dollars in subscription fees that it would have to forgo if it terminated infringing users’ accounts,” the music companies argue.

This failure to terminate pirates then acted as a ‘draw’ for other potential pirates, the music companies add.

“From Charter’s failure to act, users came to understand that they could infringe Plaintiffs’ works with impunity, which constituted a further draw to the service,” they write.

Based on the above, the music companies argue that Charter’s motion to dismiss the vicarious liability claims should be denied. This would also allow the rightsholders to obtain further evidence for their arguments during discovery. 

The Colorado federal court will now review the arguments from both sides and make a decision whether the case should continue based on the allegations of both vicarious liability and contributory infringement, or just the latter.

In tandem with this case, the music companies have also filed a complaint against Charter subsidiary Bright House in a Florida court. Bright House previously responded to this lawsuit with a near identical motion to dismiss, which was followed with a similar reply from the music companies this week.

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A copy of the music companies’ opposition to Charter Communications’ motion to dismiss the claim for vicarious liability is available here (pdf).

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Spanish ISP Euskaltel is one of the few ISPs in the world to be putting up a fight against so-called copyright trolls.

These mostly movie-related companies obtain the IP addresses of computers said to be participating in BitTorrent swarms and then apply to the courts to force related ISPs to hand over their customers’ data for further action.

This usually takes the form of “pay-up-or-else” letters, demanding hundreds or even thousands of euros or dollars, to make supposed lawsuits go away. In Spain, however, things aren’t going as planned.

Euskaltel reports that the Commercial Court No. 2 of Bilbao has dismissed demands by producer She Fighter Ltd against a customer alleged to have downloaded and shared the movie Lady Bloodfight.

According to a detailed summary of the case, success rested on three elements: the existence of unlawful action, showing damages, and the causal relationship between the damages and the unlawful action. In respect of the damages element, the rightsholder opted for a “hypothetical royalty” but failed to provide evidence to justify why 150 euros was demanded. This is what caused the case to fail.

“This is one of the first decisions in the trials against those affected after being reported by various film producers for what they considered ‘illegal downloading of movies on P2P networks’,” Euskaltel said in a statement.

The ruling, which was handed down June 25, denies the producer an opportunity to appeal and requires it to pay the full costs of the process.

While the ISP has welcomed the decision, the battle against copyright trolls appears to be heating up in other areas of the country. Euskaltel is just one of the ISPs being targeted by movie companies and courts in other areas of the country have received similar requests.

“The fact that the first people affected have been clients of Euskaltel, is due to the fact that the Bilbao Courts – the headquarters of the Basque operator – have been the first in the State to meet and resolve these demands, for reasons of distribution and work management, while the Madrid courts – which deal with the demands of the clients of the operators based in the capital of Spain – are still in a preliminary phase of the process,” the ISP explained.

Meanwhile, Euskaltel says it will continue to fight to protect its customers’ rights. As reported last month, the ISP reported copyright troll Venice PI to Spain’s data protection agency (AEPD) after being forced by a court to hand over the personal details of subscribers said to have downloaded the Bruce Willis movie Once Upon a Time in Venice.

The ISP said that Venice PI’s use of that data, which involved contacting subscribers with demands to pay a 150 euro settlement, constituted a breach of Spain’s Data Protection regulations. According to Euskaltel, the movie outfit was not “free to decide what to do with the data” once it had obtained it.

In addition to the earlier Venice PI referral to the AEPD, Euskaltel says that on June 7 it referred Reliance Entertainment Productions LLC to the data protection watchdog. Then, just three days later, it filed a similar complaint against Wind River Production LLC, highlighting potential abuses of customer data.

“In the latter complaint, in addition to asking the AEPD to analyze the reported facts to verify whether the alleged administrative violations have incurred, the AEPD has also been requested to adopt provisional measures, consisting of ordering the production company to stop sending more letters to users,” Euskaltel says.

“In this complaint, as in the two previous ones, the possible criminal responsibility which the producers may have incurred has been placed on the table,” the ISP concludes.

Euskaltel has published advice to customers being targeted by copyright trolls, including that they should report potential data protection abuses to the authorities.

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This week we have five newcomers in our chart.

Dumbo is the most downloaded movie.

The data for our weekly download chart is estimated by TorrentFreak, and is for informational and educational reference only. All the movies in the list are Web-DL/Webrip/HDRip/BDrip/DVDrip unless stated otherwise.

RSS feed for the articles of the recent weekly movie download charts.

This week’s most downloaded movies are:

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Anyone involved in the piracy ecosystem could stake claim to being ‘in the scene’ but for those with a discerning interest in pirate matters, terminology is all important.

After decades of existence, The Scene has attained mythical status among pirates. It’s not a site, a place, a person, or a group. ‘The Scene’ is all of these things, combined in a virtual world to which few people ever gain access.

In basic terms, The Scene is a collection of both loose and tight-knit individuals and groups, using Internet networks as meeting places and storage vessels, in order to quickly leak as much pirated content as possible. From movies, TV shows and music, to software, eBooks and beyond. Almost anything digital is fair game for piracy at the most elite level.

These people – “Sceners” – are as protective of ‘their’ content as they are meticulous of their privacy but that doesn’t stop huge volumes of ‘their’ material leaking out onto the wider Internet. And occasionally – very occasionally – one of their members breaking ranks to tell people about it.

TorrentFreak recently made contact with one such individual who indicated a willingness to pull back the veil. However, verifying that ‘Sceners’ are who they say they are is inherently difficult. In part, we tackled this problem by agreeing for a pre-determined character string to be planted inside a Scene release.

With a fairly quick turnaround and as promised, the agreed characters appeared in a specific release. That the release had been made was confirmed by the standard accompanying text-based NFO file, which collectively are both widely and publicly available.

In respect of the group’s identity, we were asked to say that it has been active since 2018, but nothing more. We can confirm, however, that it already has dozens of releases thus far in 2019.

Our contact, who we will call “Source”, also claims to work with groups involved with so-called WEB releases, such as video content obtained and decrypted using sources including Netflix and Prime Video.

For security reasons, he wasn’t prepared to prove membership of that niche in the same fashion. However, the information he provided on those activities (to be covered in an upcoming part 2 of this article) is very interesting indeed. But first, an introduction to the basics, for those unfamiliar with how The Scene operates.

Basics of ‘The Scene’ – “Source’s” summary (in his own words)

• Topsites: Top-secret, highly protected FTP servers storing up to hundreds or thousands of terabytes of copyrighted material. Users have to be authorized to the topsite by pre-existing members, and the users can only connect from specific IP-ranges.
• Topsites usually always have an IRC channel where they announce the releases made on the specific topsite, alongside other things such as newly traded releases, requests and chat. These IRC chatrooms are encrypted using encryption tools on top of SSL.
• Topsites can either be home hosted or rented. Rented sites are avoided by members of The Scene who are higher up in the food chain, since those are generally riskier due to being located at hosting companies’ datacenters. Users of a topsite are usually one of the following:
  • Traders / Racers
  • Release Groups (Affiliates)
  • Site Operator: User who owns or administrates a topsite
• Release Groups (Affiliates): A single or group of users, who work together to download/rip, prepare, pack and pre a release. These groups usually compete against each other to get a release out as fast as possible, beating other groups.
• Traders / Racers: A user who moves releases between topsites. For example: As soon as the group -XYZ releases an MP3 album on topsite -ASD, multiple traders instantly grab the new release and transfer it to their other topsites. When the release lands on the other topsites, traders there start sharing it further and further until every single topsite has the release. In some cases it only takes minutes for every single topsite to have the release in question.

Becoming a member of The Scene

Despite “Source’s” own group being relatively new, he says his history with The Scene dates back three years. Intrigued at the possibility of becoming a member but with no prior experience, he contacted a Scene group using an email address inside an NFO, offering his coding skills.

“I was able to convince the group to slowly adopt me into The Scene by providing them scripts and tools to make their job easier and faster, alongside other programming related tasks. The thing with Scene groups is that they don’t trust outsiders,” he explains.

Given that not granting access to the wrong people is fundamental to the security of The Scene, we asked how this “vetting” took place. “Source” explained that it was conducted over a period of time (around four months), with a particular Scene group carrying out its own investigations to ensure he wasn’t lying about himself or his abilities.

“The groups who vet new members also often try their best to dox the recruit, to make sure that the user is secure. If you’re able to be doxed (based on the info you give, your IP-addresses, anything really) you will lose your chances to join. The group won’t actually do anything with your personal info,” he adds, somewhat reassuringly.

Once the group was satisfied with his credentials, “Source” gained access to his very first topsite, which he describes as small and tight-knit. Topsites often use IRC (Internet Relay Chat) for communications so from there it was a matter of being patient while simultaneously attempting to gain the trust of others in the channel.

“Most Sceners are very cautious of new users, even after being vetted in, due to the risk of a user still being insecure, an undercover officer or generally unwanted in terms of behavior. Once you’ve been idling in the chats and such for months, you slowly start gaining some basic recognition and trust,” he says.

Branching out

Once he’d gained access via the first topsite, “Source” says he decided to branch out on his own by creating his own Scene group and gathering content to release. From there he communicated with other users on the topsite in an effort to gain access to additional topsites as an affiliate.

As mentioned earlier, his own releases via his own group (the name of which we aren’t disclosing here) number in the dozens over the past several months alone. They are listed on publicly available ‘pre-databases‘ which archive information and NFO files which provide information related to Scene releases.

However, his own group isn’t the only string to the Source bow. Of particular interest is his involvement with so-called WEB releases, i.e pirate releases of originally protected video content obtained from platforms like Netflix and Prime Video.

“Content for WEB releases are obtained by downloading the source content. Whenever you stream a video online, you are downloading chunks of a video file to your computer. Sceners simply save that content and attempt to decrypt it for non-DRM playback later,” Source explains.

“Streams from these sites are protected by DRM. The most common, and hard to crack DRM is called Widevine. The way the Scene handles WEB-releases is by using specialized tools coded by The Scene, for The Scene.”

This is a particularly sensitive area, not least since Source says he’s acted as a programmer for multiple Scene groups making these releases. He’s understandably cautious so until next week (when we’ll continue with more detail specifically about WEB content) he leaves an early cautionary note for anyone considering joining The Scene.

“You can become Sceners with friends, but not friends with Sceners,” he concludes.

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