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

That didn’t mean an end to the ISP’s legal trouble though. Cox remains caught up in another lawsuit filed by a group of major music labels, all members of the RIAA.

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.

Most of these alleged copyright-infringers are situated in regular households. However, Cox also offers Internet connections to business clients and many of these – 2,793 to be precise – were also flagged as pirates.

This essentially means that the ISP received copyright infringement notices for activity that took place on the IP-addresses that were assigned to these companies. This is a group of customers the RIAA labels are particularly interested in. 

During discovery, the labels have asked Cox to identify these business subscribers. The ISP initially only shared some billing and payment data, but that was not enough for the music companies, which want names and addresses as well. 

This is a rather broad request that we haven’t seen before, one that puts the Internet provider in a tough spot. Not least because handing over personal data of customers without a court order goes against its privacy policy.

This week Cox and the labels submitted a proposed stipulated order in which the ISP agrees to hand over the information. There doesn’t appear to have been any opposition from the ISP, but both parties request a signed court order to address the privacy policy restrictions. 

The order, swiftly signed by U.S. District Court Judge Liam O’Grady, requires the ISP to identify the 2,793 business subscribers for which it received copyright infringement notices between February 1, 2013 and November 26, 2014.

“It is hereby stipulated and agreed by and between Plaintiffs and Cox that Cox shall make reasonable efforts to notify the Business Subscribers, within five days of entry of this Stipulated Order, of Cox’s intent to disclose their name and contact information to Plaintiffs pursuant to this Order,” it reads.

The order also requires Cox to alert the affected business subscribers, who will then have the option to protest the decision. If that doesn’t happen, the personal information will be handed over to the labels.

The names and addresses of the business subscribers won’t be made public, as they fall under an earlier signed protective order. This states that any personal information of subscribers is classified as “highly confidential” data which means that it’s for attorneys’ eyes only.

While the paperwork is in order, one burning question remains. Why are the RIAA labels interested in knowing which businesses were flagged for copyright infringement?

There are no signs that any of these companies will be pursued individually.  What is clear, however, is that the music companies see the information as substantial evidence that will help to argue their case. Time will tell what the exact purpose is.

—

A copy of the stipulated order to product identifying information concerning certain Cox business subscribers is available here (pdf).

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Under U.S. law, streaming and downloading piracy are seen as two different offenses. Not just from a technical point of view, but also in the way they are punished.

Unauthorized streaming is categorized as a public performance instead of distribution, which is punishable as a misdemeanor, not a felony.

Lawmakers tried to change this with the Commercial Felony Streaming Act in 2011, and later with the SOPA and PIPA bills. These bills were met with public outrage and didn’t pass.

As a result, the gap between streaming and traditional file-sharing still remains today. However, calls to change this continue to resurface, especially now that streaming piracy is much more prevalent than file-sharing and downloading.

During a hearing at the Senate Committee on the Judiciary last week, two major US sports organizations renewed their calls to criminalize streaming.

Among the speakers were Michael Potenza, vice president and intellectual property counsel for the NBA, as well as Riché McKnight, who’s the Global Head Of Litigation at the UFC’s parent company Endeavor. Both sounded the alarm bell about streaming piracy, live streaming in particular. 

Potenza informed the subcommittee on Intellectual Property that his organization relies on streaming and that it has benefited from the technological advancements that were made in recent years. However, these same technologies are abused by pirates.

To fight streaming piracy, the NBA has implemented a multi-pronged approach, of which takedown notices are an important part. The sports league uses a combination of human reviewers and technology to spot illegal broadcasts and tries to shut these down as soon as possible. Unfortunately, many of these reappear soon after.

“Even when the NBA is successful in shutting down an illegal streaming website or social media accounts, continued vigilance during all live games is important, as the illegal streams often reappear at a new domain extension or social media account,” Potenza said. 

In some cases, illegal streams are operated or promoted by criminal enterprises. These sell dedicated pirate streaming boxes, unauthorized subscriptions, or offer web-based streaming portals. These dedicated streams can be virtually impossible to shut down, as they are hosted by companies that ignore takedown notices.

“Some of these bad actors actively promote non-compliance with DMCA notices as a reason to sign-up for their ‘DMCA Ignored Hosting’ services. Platforms that utilize these services and fail to respond to take down notices in a timely manner do so intentionally,” Potenza noted. 

McKnight shared many of the same concerns. He pointed out that UFC events are severely impacted by piracy and hinted that social media and other digital platforms should step up their game. This includes terminating accounts of known infringers, but these companies could do more.

“In addition, digital platforms should consider sending out piracy notices to their users before live events — or if that is not feasible, then at least periodically — reminding them that piracy is illegal. Much like the copyright notices at the start of a movie, these warnings can remind law-abiding viewers that unauthorized streaming is illegal,” McKnight said.

Another common theme was a renewed call to criminalize online streaming. Both witnesses said that this could help to deter people from getting involved in the pirate streaming business. 

“Without a real fear of criminal prosecution, pirates are emboldened to continue engaging in illegal activity to distribute sports content – whether it is manufacturing and selling ISDs or operating an illegal streaming service,” NBA’s Potenza said.

“It is important to revise the criminal law to recognize illegal streaming of copyrighted content as a felony, which would provide a more effective way to deter illegal streaming,” he added.

This call was backed by Endeavor’s Global Head Of Litigation, who added that criminalizing streaming could motivate other countries to follow suit.

“Strengthening the penalties will deter illegal streaming and increase the likelihood of prosecutors bringing these cases to court. In addition, it will send a message to the rest of the world that the United States takes this issue seriously, and will provide other countries an incentive to take similar actions,” McKnight noted.

While the NBA and the UFC’s parent company agree that penalties for streaming should be similar to those of other forms of piracy, both witnesses stressed that this criminalization should target organized operations, not casual users. 

“I would clarify that, in terms of proportionality, we’re not seeking these types of penalties for people who simply log onto a pirated stream. Or even just for people who upload a pirated stream or two onto a social media platform,” McKnight said.

“I think the casual viewer who’s streaming a game in his or her own home shouldn’t be subject to felony liability, or even misdemeanor liability,” Potenza added.   

Interestingly, the subcommittee Chairman, Senator Thom Tillis, jumped in at this point noting that he believes some penalties are warranted. Just the other day, he was tempted to look for a pirated copy of Game of Thrones, and potential penalties could motivate people to turn to legal sources more often.

“I’m a Game of Thrones fan and I missed the Sunday night episode. Fortunately, I have HBO on demand, so I caught up last night, but there was a temptation for me to go out on the internet and see if I can find some way to get it. I didn’t do it, but if I had, I think it would have been fair if I had some minor penalty,” Tillis said.

“That may at least make the general public a little bit more mindful that if you get caught you’re going to pay for it. You need to be aware of that and make sure that you’re going to sites that are legally disseminating the information. I don’t want to completely let the consuming public off the hook,” the Senator added.

Based on this response, it seems that there is at least some support in Congress to criminalize unauthorized streaming. However, for now, there are no concrete proposals on the table yet.

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Despite the increased availability of legal options, millions of people still stream, rip, or download MP3s from unofficial sources.

These sites are a thorn in the side of the RIAA, one of the music industry’s leading anti-piracy outfits. 

The RIAA has a long history of going after, what it sees as, pirate sites. The problem, however, is that many owners of such sites operate anonymously. The group, therefore, often has to turn to third-party intermediaries to find out more. 

While some services may be willing to voluntarily share information with the music industry group, many don’t. Cloudflare falls into the latter category. While the CDN service does voluntarily reveal the true hosting locations of some of its users, it doesn’t share any personal info. At least, not without a subpoena. 

Luckily for rightsholders, getting a subpoena isn’t very hard in the US. Under the DMCA, copyright holders only have to ask a court clerk for a signature to be able to demand the personal information of alleged copyright infringers. That’s exactly what the RIAA did last week. 

In a letter sent by Mark McDevitt, the RIAA’s vice president of online anti-piracy, the music group informs Cloudflare that it requests personal details including names, addresses and payment information relating to the operators of six domains, which are all Cloudflare users. 

The domains in question include those connected to the file-hosting site DBREE,  music release site RapGodFathers, file-host AyeFiles, and music download portal Plus Premieres. The sites are accused of sharing copyrighted tracks from artists such as Pink, Drake, and Taylor Swift.

“We have determined that users of your system or network have infringed our member record companies’ copyrighted sound recordings. Enclosed is a subpoena compliant with the Digital Millennium Copyright Act,” the RIAA’s McDevitt writes.

“As is stated in the attached subpoena, you are required to disclose to the RIAA information sufficient to identify the infringers. This would include the individuals’ names, physical addresses, IP addresses, telephone numbers, e-mail addresses, payment information, account updates and account history.”

The RIAA stresses that the mentioned files are offered without permission and it asks Cloudflare to consider the widespread and repeated infringing nature of the sites and whether these warrant a termination under its repeat infringer policy. 

At the time of writing the sites are still using Cloudflare’s services. However, the allegedly infringing files are no longer available. These were presumably removed by the site owners.

There is no obvious connection between all the targeted sites. However, RapGodFathers is a familiar name when it comes to anti-piracy enforcement. Nearly ten years ago, the site was targeted by the U.S. Government, but the name is still around today.  

It is unclear what RIAA plans to do with the requested information. It could form the basis of a legal complaint, but the music group may also use it to contact the site operators more directly. The letter only mentions that the information will be used to protect the rights of RIAA member companies.

“The purpose for which this subpoena is sought is to obtain the identities of the individuals assigned to these websites who have reproduced and have offered for distribution our members’ copyrighted sound recordings without their authorization.

“This information will only be used for the purposes of protecting the rights granted to our members, the sound recording copyright owner, under Title II of the Digital Millennium Copyright Act,” the letter adds.

What this “protection” entails remains a mystery for now. 

While the court clerk signed the DMCA subpoena, Cloudflare still has the option to object, by asking the court to quash it. However, thus far there are no signs that the company plans to do so.

—

A copy of the letter RIAA sent to Cloudflare, obtained by TorrentFreak, is available here (pdf).

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Getting the public to stop downloading movies, TV shows, music, software, and other content from the Internet is a huge task.

For at least two decades, the public has been presented with Public Service Announcements (PSA) aimed at doing just that, but nothing seems to do the trick.

Most readers will be familiar with the “Piracy, It’s a Crime” campaign from 2004. It was so over the top it ended up becoming its own meme (before memes had a name) and was eventually lampooned by the IT Crowd.

With this experience in the bank, one would’ve thought that people producing these PSAs might get the message that scare tactics don’t work. However, year after year similar ads have appeared, most of which had the same non-effect on the public but perhaps with fewer laughs.

Reaching out to people to prevent them doing what many perceive as a victimless crime is difficult. But even when PSAs focus on this very aspect, that creators and the entertainment industry can suffer due to piracy, few get even close to the mark.

These days much effort seems to be centered around convincing pirates that they’ll have their devices reduced to virus-infested junk while “cybercriminals” pillage their networks and empty their bank accounts. These are classic scare tactics that work no better than most sex infection videos pumped out in the 80s.

The problem is that while in some cases people might indeed experience malware, few pirates know anyone who has experienced such a thing to the degrees stated. That means that once there’s no evidence to the claims, people simply ignore the entire message and discard it as pure propaganda.

Another issue centers around the over-dramatization of the effects of piracy. Constant claims that films or music won’t be made anymore is already provably false – one only has to look around at all the legal services today for evidence of that.

Furthermore, the average pirate really doesn’t make the connection between piracy and “real” crime, a point overlooked by this recent PSA from Film Ireland. It manages to pack in plenty of drama while also threatening the end of the movie industry.

While the above may have some effect on casual pirates, the fact that it currently has less than 400 views on YouTube shows, bluntly, that no one cares about this type of PSA. There are zero comments too, which seems to show that it’s not even controversial. Cruelly, perhaps, it’s quite boring.

The problem is that the vast majority of ads and campaigns fail to see the issue of piracy from the user’s perspective. Hardcore pirates are unlikely to be moved to “correct” their ways no matter what they see, but there’s a huge population of casual and potential pirates that, given a bit of thought, might reconsider.

Given these people make up the bulk of the entire media-consuming public, a new anti-piracy PSA produced by content-awareness group Agorateka in conjunction with the EU Intellectual Property Office caught our attention.

Instead of all the scare tactics, they appear to have sat down and actually considered what the average person (who isn’t highly proficient in piracy techniques) might encounter when looking for content to watch online. In fact, it doesn’t mention piracy directly at all and instead focuses on the end goal – getting people to use legal sites.

In summary, the PSA seems to suggest that regular Internet users and casual, non-technical pirates have a choice. They can spend a long time looking around trying to sort the wheat from the chaff, or they can go straight to a legal source and enjoy content immediately.

There’s no malware suggested, no decaying cinemas, no dying actors, and no police raids. Piracy itself doesn’t even get a mention.

Of course, there will be no shortage of people viewing the video noting that it only takes them a few minutes to find whatever they want on their favorite pirate sites, so this doesn’t apply. There’s no arguing with that, but skilled pirates do not make up the bulk of the public.

So what this video attempts to do, it appears, is ask the viewer a simple question – what do you value more? Is time your most precious commodity or are a few euros, dollars or pounds spent online each month an effective trade? For many, especially those with the cash to spare, time can invariably come out on top.

The message may even ring true with some proficient pirates too.

Many reports show that pirates have access to Netflix or similar services, so it seems unlikely that many will head over to the nearest streaming site or legally questionable platform when the legal variant is so much more simple. Kodi add-ons might be the weapon of choice for some ordinarily, but none guarantee a flawless trip.

In short, the PSA won’t be for everyone but it’s definitely not annoying, it’s non-judgmental, and it doesn’t come over as propaganda. It merely suggests that an easy and quick alternative to piracy are legal resources and they can be found via the Agorateka portal.

That’s a great starting point for those who want to prevent people from downloading a car but don’t want to alienate them.

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Last year, a group of prominent record labels filed a piracy lawsuit against the Russian operator of YouTube-ripping sites FLVTO.biz and 2conv.com.

The labels hoped to shut the sites down, but this effort backfired.

In January, US District Court Judge Claude M. Hilton dismissed the case due to a lack of jurisdiction. The Court carefully reviewed how the sites operate and found no evidence that they purposefully targeted either Virginia or the United States.

Many copyright cases against foreign operators result in default judgments. However, this lawsuit transformed into a landmark case that will determine when such operators can be sued in the United States.  As such, the record labels swiftly appealed the District Court’s dismissal.

Tofig Kurbanov, the Russian operator of the stream-ripping sites, is not backing off though. With help from his US-based legal team, he maintained that US courts have no jurisdiction over the matter. If the record labels want a legal battle, they should come to Russia instead.

In a reply brief filed at the Court of Appeals for the Fourth Circuit this week, the record labels counter the defense’s arguments. The operator of the stream-ripping sites argued that his contacts with the U.S. were “random, fortuitous, or attenuated,” but the music companies state that the opposite is true.

The labels note that the site operator knows exactly where all users are located. Millions are in the U.S., and together these people ripped close to 100 million streams last year. Many of these ripped streams were of copyrighted content, the music companies argue.

“Appellee knows down to the person the geographic location of the 32 million U.S. users and more than half-a-million Virginian users who visited the Flvto.biz and 2conv.com websites in 2018. Those users engaged in almost one hundred million stream-ripping sessions,” the reply brief reads.

“During a substantial number of those sessions, the websites transmitted illegal copies of appellants’ sound recordings to users’ home computers in the U.S. and Virginia. Indeed, the United States is appellee’s third largest market globally, both by number of users and number of stream-ripping
sessions conducted.”

The United States is the third largest market for the stream ripping websites, the labels argue. Not just that, but it’s also a market that’s specifically targeted with geo-located advertisements.

In his defense, Kurbanov stressed that the advertisements are outsourced to third-party advertising brokers. However, the labels counter that the website owner willingly hired these and that he, therefore, bears responsibility.

“Moreover, appellee earns huge revenues from the advertisements his U.S. users view while conducting their stream-ripping sessions—advertisements specifically targeted to users’ geographic location in the U.S. because of the geotargeting technology that appellee uses. Appellee knows full well this geo-targeting is occurring,” the reply brief reads.

The record labels also point out that the site operator cited various contacts with the U.S. to then argue that, in isolation, these are not sufficient to warrant jurisdiction. However, the rightsholders say that a different picture emerges when all elements are taken together.

Looking at the big picture, a US Court should be allowed to take on this case, the record labels conclude.

The alternative would be to sue the site operator in Russia. This is what the defense has suggested, admitting that this would be somewhat burdensome for the U.S. companies. The record labels, however, believe that would be absurd.

“In short, nothing in the Constitution requires that U.S. copyright holders travel to Rostov-on-Don, Russia to sue for violations of U.S. law that occur in the United States and that generate huge profits for appellee from ads targeted at U.S. users.

“The decision of the district court should be reversed,” the labels add.

It is clear that both sides have a completely different take on the matter and with various rightsholder groups and EFF jumping in as well, the gravity of this case is obvious.

It is now up to the Court of Appeals to weigh the arguments from both sides and come to a conclusion.

—

A copy of the record labels’ reply brief is available here (pdf).

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