When President Trump took office in early 2017, copyright holders hoped to have found a new ally in their fight against piracy. 

The Copyright Alliance made this very clear in a public letter stressing that few presidents, if any, have had a more sizable and diverse copyright portfolio. 

In the two years that followed not a whole lot has changed in terms of U.S. copyright policies. However, Trump himself has made headlines on a few occasions, being accused of copyright infringement. 

This happened again yesterday when the US President posted, what many believed to be, a 2020 campaign video on Twitter. “MAKE AMERICA GREAT AGAIN!” Trump’s tweet reads, with the video made up of a variety of news clips underneath. 

The video in question has been floating around on YouTube for a few days and doesn’t appear to come from the White House, as some suggested. In fact, it was posted by a Reddit user “knock-nevisTDF,” last week, who says he made the clip himself.

The President appeared to like it though and was happy to share it via Twitter. However, what he may not have realized is that the video in question was set to music from “The Dark Knight Rises”, something that wasn’t well received by Warner Bros. Entertainment. 

The movie studio saw it as a clear case of copyright infringement and set its legal team on the ‘case.’

“The use of Warner Bros.’ score from ‘The Dark Knight Rises’ in the campaign video was unauthorized,” a Warner Bros. spokesperson said in a statement quoted by Variety. “We are working through the appropriate legal channels to have it removed.”

Shortly after this statement, Twitter did indeed take the video down, as can be seen below. The copy that was posted on YouTube and shared on Reddit has been removed as well, although it remains available elsewhere.

It’s an understatement to say that the President’s actions are being followed closely, so the removed video made headlines all over the world. Some reports even claim that the Warner Bros. is filing a “copyright infringement suit” against  Trump over his “2020 campaign video.”  

We haven’t seen any evidence of a pending lawsuit, nor is this an official campaign video, so this may just be another case of what President Trump would call ‘fake news.’ 

The reality is, however, that this isn’t the first time the President has been called out for sharing copyright-infringing content on Twitter. Just a few weeks ago, a video the R.E.M’s song, ‘Everybody Hurts,’ in the background, was removed by Twitter.

Twitter reportedly took this action after Mike Mills, the bassist for R.E.M., complained about the unauthorized use of the track. 

And just last week Electronic Arts reported one of President Trump’s tweets for using copyrighted audio from a Mass Effect 2 game trailer without permission. That is now ‘withheld’ from the public. 

And that’s not all. There is also a copyright claim on a tweet about a beautiful evening in El Paso, posted a few weeks ago. While more detail is not available, we assume that the President used copyrighted material without permission, again.

If that’s not enough, there are trademark issues as well. HBO didn’t like it when President Trump used a photo containing the Game of Thrones font and a play on the “Winter is Coming” message in a political context. 

The company said in a statement that it “would prefer our trademark not be misappropriated for political purposes,” hinting at trademark misuse, but it’s unclear whether it took any action in response. 

For now, none of the complaints are affecting the status of President Trump’s Twitter account.

In theory, Twitter reserves the right to suspend accounts that repeatedly receive copyright complaints. This is clearly stated in the company’s copyright policy. 

“If multiple copyright complaints are received Twitter may lock accounts or take other actions to warn repeat violators. These warnings may vary across Twitter’s services. Under appropriate circumstances we may suspend user accounts under our repeat infringer policy,” the policy reads.

How many “offenses” are needed to warrant a suspension is not mentioned, however. 

Finally, it’s worth noting that the “Dark Knight Rises” score, titled “Why Do We Fall?” was composed by Hans Zimmer. He previously shared the track on his YouTube account, but the video in question was recently removed, likely by himself. 

That said, the same music is used in hundreds if not thousands of other YouTube videos, and it’s widely shared on Twitter as well. Apparently, copyright takedowns have priority when the President is involved. 

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In 2009, anti-piracy group BREIN took News-Service Europe (NSE) – one of Europe’s largest Usenet providers at the time – to court.

Representing the movie and music industries, BREIN argued that NSE must delete all infringing content from its servers, and in 2011 the Court of Amsterdam sided with the anti-piracy group.

In its initial verdict, the Court concluded that NSE willingly facilitated online piracy through its services. As a result, the company was ordered to remove all copyrighted content and filter future posts for possible copyright infringements.

According to the Usenet provider, this filtering requirement would be too costly to achieve. It shut down its service but appealed the case.

After several more years of litigation, the Amsterdam appeals court then ruled that NSE wasn’t liable for pirating users after all, but that it is required to offer a fast and effective notice and takedown procedure, possibly with additional measures.

BREIN was not happy with this outcome and decided to take the matter to the Dutch Supreme Court. While NSE is no longer a threat, the case could prove crucial for many other Usenet providers.

BREIN has been very critical of some commercial Usenet companies, describing them as a refuge for pirates of all ilks, with uploaders, site owners and resellers working in tandem to facilitate copyright infringement.

The Dutch Supreme Court has taken on the case but it’s struggling with some key questions on the liability side. In an order last week, it, therefore, decided to ask the European Court of Justice (ECJ) for input.

The four questions all relate to the role of Usenet providers, similar to NSE, as third-party intermediaries. NSE argues that its role is no different than a regular hosting service that stores content, in the sense that it merely offers a platform where people can share content.

However, NSE also facilitated the availability of content, which was sometimes synchronized with that of other Usenet providers. In addition, it offered a search functionality which made it easier for customers to find files.

The Supreme Court questions whether NSE is “communicating to the public” and whether it’s liable for the infringements of users. Among other things, this depends on whether it has an “active” or “passive” role under EU law.

To get more clarity, the following questions (translated and summarized) are referred to the EU Court of Justice. These apply to Usenet providers that operate in a similar fashion to NSE. This includes selling subscriptions to its servers and offering a substantial quantity of copyright infringing works.

1. Is such a Usenet provider performing an act of communication to the public under EU law?

2. If the answer to question 1 is yes, is the Usenet provider liable for this act of communication or is it shielded under Article 14 of the E-commerce Directive?

3. If the answer to question 1 is no, is the Usenet provider playing an active role that would make it liable for copyright infringements?

4. If the Usenet provider is shielded from liability, it there anything else it can be required to do?

Interestingly, the Dutch Supreme Court also references “Article 13” (now Article 17) of the new EU Copyright Directive. This article requires online content sharing service providers to obtain licenses, or ensure that infringing content stays off their platforms once notified.

While the legal framework has yet to be adopted and implemented, the Supreme Court states that it’s unclear how this should be taken into account.

All in all, the answers from the EU court will be crucial for the NSE case and the future of many other Usenet providers in Europe that operate in a similar fashion. The Court previously ruled in similar cases against The Pirate Bay and a seller of fully-loaded streaming boxes, which were both held liable.

That liability based on EU law is not limited to pirate sites and media boxes, which became apparent in an order handed down by the Supreme Court of Italy last month.

In a case filed by the TV company Mediaset, the Italian court ruled that Yahoo! can be held liable for broadcasting infringing videos under certain conditions. The Supreme Court set specific guidelines for when a hosting service is seen as operating “actively” or “passively,” and sent the case back to a lower court.

BREIN obviously hopes that the EU Court of Justice will conclude that Usenet providers can indeed be held liable. If that’s the case, the anti-piracy group is likely to put pressure on other providers, similar to what it did with dozens of streaming box sellers last year.

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This week we have four newcomers in our chart.

Glass 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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A few weeks ago, we reported that anti-piracy company DMCAForce offered a rather unique partnership to torrent and streaming sites.

Where many companies in the advertising industry do their best to avoid sites that are linked to piracy, the San Diego-based company takes the opposite approach.

In an email, the company promised the sites a revenue-sharing opportunity. Instead of removing a link or file, they can remain up, if the site owner agrees to share part of its advertising space.

“DMCAForce recently launched a new way for File Sharing sites to work with content creators. Where you as the file sharing site can distribute their content for free, but in exchange provide the advertising space around the product,” the email read.

It’s a rather intriguing proposal which we were eager to hear more about. DMCAForce had clearly seen our article, as the company used it in its communication to prospective clients, which prompted us to reach out.

We spoke to Mark Bauman, the CEO of DMCAForce. He explained that the company sought a solution to keep both copyright holders and website operators happy.

“We chose this approach as corporations, large to small, constantly pay DMCAForce and our other companies like DigiRegs, for services to remove content all day every day,” Bauman said.

“It’s a loss on the content creators books to pay us, but a necessary job that needs to be done. To further that, it’s a loss on the books of the place it’s taken from, as it is technically ad space for users who are looking for their product.”

When copyright holders have to pay to remove content and site owners lose appealing content and advertising space, nobody wins.

This provided an opportunity for Bauman, who also has a strong footprint in the advertising business. Combining classic anti-piracy tools with advertising expertise, was a logical next step.

“Since I’m also the owner of an Ad Platform; TrafficHaus, which provides advertising and revenue to sites, including torrent sites, I decided it’s time to bridge that gap,” Bauman told us.

So, instead of removing content through takedown notices, the company now offers to show ads around it, with the websites and rightsholders sharing the revenue.

It’s a noteworthy move in a time where more and more advertisers are taking measures to avoid sites with a pirate stigma. The advertising and entertainment industry has been rather active on this front, with help from the Police Intellectual Property Crime Unit and Europol, among others.

Bauman says that his advertising company prefers not to ban or block any sites. It doesn’t want to reward piracy either but sees cooperation between site operators and copyright holders as a win-win.

“We don’t want to reward torrent sites for stealing, and we don’t want to deter their sites from operating,” Bauman said.

This works well, Bauman said. With the adult-oriented site Spankbang.com they were able to bring in $15,000 a month, which is nothing to sneeze at. And with that kind of extra income, copyright holders are happy too.

“Rightsholders liked it, they got a fair rate because we were able to drive solid revenues for their content that they invested in and worked so hard to create,” Bauman said.

With the revenue share model, copyright holders retain full control. If they don’t believe that they are generating enough revenue, they can still remove the content. Also, they can choose to exclude certain works, such as new releases.

This filtering can even be done automatically, through a fingerprinting API, which recognizes infringing content. This can then be removed, replaced, or monetized with ads. This technology can also come in handy when Article 13 (now 17) is implemented, Bauman adds.

The initial tests were conducted with adult-themed content, but DMCAForce is expanding its reach. While Bauman prefers not to name any clients, some music industry companies have shown an interest in the model.

The ultimate goal is to make sure that the system works for everyone involved.

Bauman believes that cooperation is key as pirates will always find a way to upload and share content somewhere. That’s not going to change anytime soon. So instead of fighting it, bringing both sides together may prove to be more fruitful.

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Every year, thousands of people are sued in the United States for allegedly sharing pirated video, mostly through BitTorrent.

These efforts, often characterized as “copyright trolling,” share a familiar pattern. After the film companies acquire a subpoena to obtain the personal details of an alleged pirate, they contact this person with a settlement request.

The cases are not intended to go to trial, however. Instead, the copyright holders often drop their complaint like a hot potato when the accused person lawyers up to fight back.

To an outsider, this may sound positive. If the complaint is dropped the legal threat is gone. However, hiring a lawyer is not cheap and without a case, the accused Internet subscriber has to pay the bills out of his or her own pocket.

This scenario has played out many times in the past but a woman from Illinois now has a chance to make the rightsholder pay her bills.

The case in question was filed by Malibu Media, a company best known for its ‘X-Art’ adult films. Malibu accused Najia Khan of pirating eight of these films using her IP-address as evidence. However, the woman fiercely denied the allegations.

With help from attorney Erin Russell, Khan fought back. She denied the claims and submitted two counterclaims. First, she accused Malibu Media of ‘abuse of process’ for suing her without proper evidence. In addition, Khan also requested a Declaratory Judgment of non-infringement.

In the past, such requests haven’t been very successful, but in Khan’s case, the trend was bucked.

In an order issued last week, US District Court Judge Harry Leinenweber dismissed the counterclaim for abuse of process. However, he ruled that the counterclaim for a Declaratory Judgment can proceed.

The Judge sided with the defense and ruled that the accused woman can pursue a final judgment. This gives Khan a chance to argue her case, clear her name, and ask for an award of costs and fees.

“There is tremendous pressure for a defendant to settle, even if the case is meritless. Khan’s counterclaim will offer protection should she choose to challenge Malibu Media’s case on the merits instead of submitting to settlement. As she points out, it also affords an opportunity for her to clear her name,” the Judge wrote.

TorrentFreak spoke to Khan’s attorney Erin Russell who sees this as a big win. If the entire case was simply dismissed, which is what usually happens, her client could only request sanctions, which would be much harder to do.

“Every time I file counterclaims I end up arguing to the judge that this is Malibu’s way of having its cake and eating it, too,” Russell says.

“They want to drag these defendants in on an IP address, then root around, force the person to defend themselves, and then when it starts to look like the defendant is innocent, they want to run off and not pay the defendant their fees.”

While most judges have dismissed such counterclaims, Judge Leinenweber deviated from this common pattern by allowing Khan to prove her innocence. Although she still has to succeed at that, her attorney is confident that she will. If that’s the case, Malibu will have to pay her legal bills.

This is obviously bad news for Malibu, and it certainly isn’t the only recent setback for the adult entertainment company.

Over at the US District Court of New York, a similar piracy case was thrown out before it got properly underway because Malibu filed the original complaint before the copyright registrations of the videos were approved. This is not allowed, as the US Supreme Court recently clarified.

Making matters worse, the court ‘slapped‘ Malibu’s attorney on the wrist for confusing the court by listing the application dates as registration dates. This is “troubling,” Judge Jesse Furman noted, adding that it’s hard to avoid the conclusion that Malibu’s use of the term was “deliberately misleading.”

In Khan’s case, all efforts will now go into proving that she is indeed innocent. This will obviously increase the legal bills, but if Malibu has to pick those up eventually, that’s not her problem.

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A copy of US District Court Judge Harry Leinenweber’s order on Najia Khan’s counterclaims is available here (pdf).

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