Last year a group of prominent record labels, all members of the RIAA, filed a lawsuit against ISP Cox Communications. 

The labels argue that Cox categorically failed to terminate repeat copyright infringers and that it substantially profited from this ongoing ‘piracy’ activity. All at the expense of the record labels and other rightsholders.

As part of the discovery phase, both parties requested relevant information from each other. The labels, for example, were interested in finding out the names and addresses of Cox business subscribers that received copyright infringement warnings. 

In addition to regular households, Cox also offers Internet connections to business clients and many of these – 2,793 to be precise – were flagged as pirates.

After some back and forth Cox and the record labels agreed on a stipulated court order, requiring the ISP to disclose this information. While the court signed off on this, not all affected subscribers are happy with this decision. One of them objected in court this week. 

The company in question appeared as “John Doe” and explained that it’s a  non-profit corporation that provides hospital and medical care facilities outside of Virginia. 

As is quite common today, the non-profit operates a secured network that’s only accessible to its employees. In addition, it offers public WiFi access to patients and visitors. The latter was provided by Cox in the relevant time period.

“Like other medical care providers, John Doe provides an unsecured, public
wireless network that can be accessed by patients and other visitors who agree to abide by John Doe’s terms of use for the Public WiFi network. Cox is the internet service provider for this Public WiFi network,” the company notes

It was this unsecured network that triggered the referenced copyright infringement notifications. This, despite the fact that all users had to agree to the terms of service, which specifically prohibited illegal downloading.

The health care provider doesn’t refute that visitors or patients may have used the network to share copyright-infringing content. However, it notes that there’s not much it can do to identify these infringers. Not then and not now.

The health care provider doesn’t track MAC addresses of people who connected to the network, and even if it did, that would only identify a device, not a person. 

Given this background, the “John Doe” company doesn’t see any reason why its details should be shared with the record labels. That won’t help to identify any copyright infringers. However, it does breach the health care provider’s privacy rights. 

“Thus, disclosure of John Doe’s subscriber information will not lead to the discovery of the individual(s) who are alleged by Plaintiffs to have engaged in copyright infringement through the misuse of John Doe’s network in violation of the access agreement,” the company informs the court.

“All disclosure will accomplish is a breach of John Doe’s privacy rights under the Cable Communications Privacy Act, 47 USC § 551, and the imposition of time and expense burdens on John Doe, all without furthering any claim or defense in this case.”

It is now up to the court to decide whether the details of the company can be handed over by Cox. Meanwhile, it remains unclear why the record labels are interested in this information at all, and how this will help their case.

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A copy of John Doe’s objection to the disclosure is available here (pdf).

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In the early 2000s, the RIAA started going after against tens of thousands of alleged music pirates.

The music industry had just defeated Napster, but P2P file-sharing remained a massive problem. Applications such as KaZaA, Morpheus, Grokster, and eDonkey, had millions of users each.

Since filing federal lawsuits is relatively expensive, the RIAA attempted to take a shortcut by applying for so-called DMCA subpoenas. These are not reviewed by a judge, as regular subpoenas are, and only require a signature from the court clerk.

While this worked initially, Internet providers soon started to object. They argued that DMCA subpoenas are only valid when an Internet service stores or links to the infringing content, not when they merely pass on traffic.

Several courts, including the DC Circuit Court of Appeals, agreed with the ISPs and effectively banned the practice. If copyright holders want to go after individual downloaders, they have to file a complaint and request a regular subpoena.

While these rulings were established at the start of the last decade, Hawaii attorney Kerry Culpepper sees things differently. Representing the rightsholders of the movie “Hunter Killer,” he recently requested a DMCA subpoena against Verizon.

Culpepper and his client are not new to copyright litigation. Far from it. They have been involved in several lawsuits against alleged pirates, obtaining regular subpoenas. However, in this case, they are taking the shortcut.

Instead of filing a complaint, Culpepper applied for a DMCA subpoena to compel Verizon to identify the account holders behind 20 IP-addresses which allegedly shared a copy of the movie “Hunter Killer” via BitTorrent.

The court clerk signed off on this request, without oversight from a judge. This is pretty significant, as it means that the movie company can obtain the identities of the alleged pirates with limited expense, without having to file a lawsuit.

If this becomes common practice, it will become a goldmine for so-called copyright trolls. Now that more and more federal courts are pushing back against these cases, refusing to issue regular subpoenas, they could simply request DMCA subpoenas and avoid filing a lawsuit altogether.

There’s a big IF of course, as we noted that appeals courts outlawed similar practices over a decade ago. So how is this different now?

Looking at the filing, we see that Hunter Killer’s attorney is well aware of the precedents. They are mentioned in the subpoena application, but Culpepper argues that these earlier cases don’t necessarily apply here.

The rulings in the DC Circuit and Eighth Circuit appeals courts both concluded that DMCA subpoenas can’t be issued against ISPs that are mere conduits. This is because the “notifications” described in the DMCA could not be applied to ISPs that don’t store infringing material. As such, DMCA subpoenas were not an option.

Culpepper counters that the Ninth Circuit Appeals Court, which Hawaii and other states such as California fall under, never ruled on the mere conduit issue in a case like this. Hence, it’s an open question. In fact, Hunter Killer’s attorney notes that more recent decisions suggest that the DMCA notifications are valid in this case.

In the more recent repeat infringer cases against ISPs such as Cox and Grande, courts have concluded that these providers have no right to a DMCA safe harbor because they failed to act on DMCA notifications. This suggests that these notices are valid and apply to conduit providers.

Commenting in a personal capacity, not on behalf of his client, Culpepper informs TorrentFreak that these decisions suggest that DMCA subpoenas are valid too.

“The Fourth Circuit in BMG v. Cox, determined that Cox had no safe harbor preventing them from liability for infringement because of Cox’s failure to terminate the accounts of repeat infringers based upon the notifications received from Rightscorp among other reasons,” Culpepper says.

“These are the same types of notifications the DC Circuit and Eighth Circuit said were not valid for a 512(h) subpoena, yet here they were deemed sufficiently valid for triggering loss of safe harbor.”

Culpepper has many other counterpoints as well, but in this instance, these were not needed. The clerk issued the subpoena, which is what he and Hunter Killer were after.

The question remains, of course, is what they will do with the personal details of the alleged infringers. In theory, the information could be used to demand settlements, however, they could also serve as evidence for a bigger case.

In the past, Culpepper has approached file-sharers, not to sue or settle with them, but to build a case against the pirate apps there were using. This is what happened in a Showbox-related lawsuit, for example, and could happen here as well.

That said, the revival of the DMCA subpoena is definitely a major event that will be watched closely by rightsholders and ISPs. In this case, we see no evidence that Verizon objected, but if the practice becomes more common, the matter may end up in court.

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A copy of Culpepper’s application and the signed DMCA Subpoena, spotted by Cashman, is available here (pdf). 

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As part of the RIAA, Universal Music is known for being the aggressor in dozens of copyright infringement complaints concerning the unlicensed use of its music.

Now, however, it now finds itself on the other side of the fence, following a copyright infringement complaint filed against it in the United States.

The man behind the action is Allan Tannenbaum, an award-winning photographer known for his works depicting the New York art, music and nightlife scene in the 70s and early 80s.

Tannenbaum’s portfolio contains many iconic photographs of John Lennon and Yoko Ono, including a very well known one that depicts the couple in bed laughing. (shown below)

“John Lennon cracks a joke while he and Yoko are nude in bed filming a video for ‘Just Like Starting Over’ in a SoHo studio, November 26, 1980,” says a description of the image on Tannenbaum’s site.

“Tannenbaum is the author of the Photograph and has at all times been the sole owner of all right, title and interest in and to the Photograph, including the copyright thereto,” Tannenbaum’s complaint reads.

According to the complaint, filed under Section 501 of the Copyright Act, Universal Music is the operator of uDiscoverMusic, a website that takes an in-depth look at “some of the most influential music in the world – and the artists that created it.”

At issue is an article published on the site titled “John Lennon – Milk and Honey” which ran Tannenbaum’s image alongside to the right, as shown in the screenshot below.

According to the Universal-owned site, the article was first published during July 2015, but Tannenbaum says that he only discovered the unlicensed use of his work in May 2019. The article is still live at the time of writing.

“Universal Music infringed Plaintiff’s copyright in the Photograph by reproducing and publicly displaying the Photograph on the Website,” the complaint notes.

“Universal Music is not, and has never been, licensed or otherwise authorized to reproduce, publically display, distribute and/or use the Photograph.”

It further alleges that Universal’s actions were willful, intentional, and purposeful, in “disregard of and indifference to Plaintiff’s rights.”

Demanding a trial by jury, Tannenbaum says he is entitled to damages and profits generated as a result of Universal’s “unlawful conduct”. Alternatively, he demands statutory damages of up to $150,000 for the infringed work.

The complaint, obtained by TorrentFreak, was filed just yesterday so Universal Music has not yet responded. It can be viewed here (pdf)

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Last June, popular ‘pirate’ IPTV service SET TV went offline after being sued by DISH Network and encryption partner NagraStar.

In a Florida court, the defendants were accused of creating and selling subscriptions to the SET TV service which, among other things, offered numerous television channels that were unlawfully obtained from DISH’s satellite service and retransmitted to customers.

The $20-per-month platform had offered its subscribers a package of 500 live channels, including on-demand content and PPV broadcasts, sometimes via pre-configured hardware devices.

Last November that case ended in DISH and NagraStar’s favor, with the former awarded statutory damages of $90,199,000 ($500 for each of the 180,398 subscribers SET TV had) following an agreement with SET TV.

“The judgment and injunction against the SetTV service marks a significant victory in the ongoing fight against pay-TV piracy, and a win for consumers who subscribe to legitimate pay-TV services,” DISH said in a statement.

But while the case against SET TV was being wrapped up, another case lay pending. In a second complaint, filed in Florida May 1, 2018, DISH and NagraStar targeted Julie Bishop and her company A-Box TV, which they accused of acting as a reseller for the SET TV service.

“Defendants sell subscriptions and devices for a pirate streaming television service called ‘SET TV’, which includes numerous television channels that were received without authorization from DISH’s satellite service and subsequently retransmitted without authorization on the SET TV pirate streaming service,” the complaint reads.

The filing goes on to list several now-defunct A-Box URLs (including a-boxtv.com, shop.a-boxtv.com, and store.a.boxtv.com) from where the service and associated devices were sold to customers.

In common with SET TV, A-Box was accused of offering packages costing $20 per month and selling set-top devices pre-loaded with the SET TV service. Among the illegal broadcasts offered to customers was the record-setting Mayweather v. McGregor boxing match, grabbed from the DISH service and unlawfully distributed.

Following the judgment in the SET TV case last year, it seemed unlikely that the case against A-Box would end well for the defendants. That was confirmed Tuesday with District Judge Mary S. Scriven signing off on an agreed judgment and injunction.

The order states that Julie Bishop and A-Box TV LLC are, among other things, permanently enjoined from “redistributing or retransmitting any DISH satellite signal or over-the-top (‘OTT’) signal” and/or “distributing, copying, reproducing, performing, hosting, streaming, or displaying any video programming” owned by DISH or its affiliates.

There are damages too, which are significant.

The defendants are ordered to pay DISH $2,000,000 which represents $10,000 for each violation cited in the complaint. Whether or not that amount will ever be paid is likely to remain unknown but the parties will cover their own attorney’s fees and costs.

The original complaint can be found here and the consent judgment here

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With over a million visitors per day, Pelispedia.tv was one of the most popular streaming sites in Latin America. 

Just a few weeks ago, it was highlighted by the US Trade Representative as a notorious pirate site, following a referral from Hollywood’s MPAA. 

By then, rightsholders and enforcement authorities already had their eyes focused on the site’s alleged operators, a couple from Uruguay. Following collaborative efforts from Interpol, rightsholders, and Uruguayan authorities, this culminated in two arrests last week.

According to Uruguayan prosecutor Mónica Ferrero, the alleged operators are charged with “a continuing offense of making available a digital broadcast for profit without the written authorization of their respective holders or successors, and a crime of money laundering.”

The two, who are referred to in local media by their initials JAGR and MJHG, will remain in custody for  30 days. Their case is being handled by a court specialized in organized crime, which will take a closer look at the allegations. 

Initially, Pelispedia.tv remained online following the arrests, but since yesterday it is no longer available. The sister site Pelisplus is still accessible but is also expected to shut down.

The pair reportedly have no other employment and made roughly $5,000 per month from the business. In addition to the arrests, several assets were seized including hardware, a 2008 Peugeot, a 2014 Volkswagon, $1,257 in cash, and two Payoneer cards. 

The Alliance for Creativity and Entertainment collaborated with the authorities and is pleased with the outcome thus far.

“We thank Interpol, the Uruguayan police, and prosecutors for their leadership in this important action against a major illegal streaming service operator,” ACE spokesperson Richard VanOrnum said, commenting on the news.

MPAA Chairman and CEO Charles Rivkin agrees and sees the shutdown of Pelispedia.tv as another example of ACE’s successful and ongoing global effort to reduce piracy.

“Each time we collaborate with law enforcement authorities to disrupt major piracy operations like Pelispedia.tv, we support the millions of people around the world working in the film and television industry and the dynamic legal marketplace for creative content,” Rivkin notes.

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