The blocking of pirate sites is now common in many countries of the world. In Europe, it’s particularly prevalent but a case just concluded in Switzerland has just bucked that trend.

While Switzerland is located geographically in Europe, it is not in the EU, meaning that the rules that cover the 28 members of the Union do not automatically apply. In a case involving a local film producer brought against a major ISP, that has provided an interesting twist.

In 2015, Zurich film company Praesens-Film filed a lawsuit targeting local Swisscom. It demanded that the ISP prevent its customers from accessing pirate sites but the action was far from straightforward, with the Commercial Court of the Canton of Bern rejecting the action in 2017.

Praesens-Film refused to give up, eventually taking its complaint all the way to the highest court in the land – the Federal Supreme Court. Now, however, that action has also been dismissed due to a reluctance to hold Swisscom liable for the infringing actions of others.

“In order for Swisscom to be obliged to block the Internet sites in question, it would need to be a participant in a copyright infringement by third parties, by making a legally relevant contribution to it. That’s not the case,” the Court wrote this week.

The Court agreed that the operators of the sites in question (and the companies making the movies available via hosting services) are breaking the law, but it refused to connect the ISP to those infringements.

“[S]wisscom can not be accused of making a concrete contribution to these copyright infringements. The activity of Swisscom is limited to offering access to the worldwide Internet,” the Court added.

“The films are not [released by Swisscom] but released by third parties from unknown locations abroad. These Third parties are neither customers of Swisscom nor are they otherwise in a relationship with them.”

The Court said that the fact that Swisscom and other ISPs in Switzerland provide technical infrastructure to enable customers to access the Internet is insufficient to directly link them to the infringement. If it ruled otherwise, all ISPs could be found liable.

It’s at this point it becomes clear why the Swiss Court’s opinion differs from others around the EU, who – with guidance from the European Court of Justice – have found that ISPs can indeed be held liable for infringement of copyright.

The infringements in such cases are not only carried out by pirate sites, they’re also carried out by the customers of ISPs, who illegally stream or download copyrighted content to their home connections. In Switzerland, however, downloading or streaming content – even when that content is from an unlicensed source – is not illegal.

“[T]here is no copyright infringement on the part of the users,” the Court said.

“Copyright law allows this use of published works for personal use, regardless of whether the source is lawful or unlawful. Legislators rejected the copyright revision, which would have prohibited the duplication of works from illegal sources for their own use.”

In conclusion, the Court ruled that any decision on future blocking of pirate sites lies in the hands of legislators.

While tackling the problem of overseas pirate sites is an issue for most countries, it’s claimed that Switzerland is actually home to many. According to a recent submission to the USTR by the MPAA, the country’s copyright laws are “wholly inadequate”, meaning that it has become a significant base for pirate services.

The decision of the Federal Supreme Court can be found here (pdf)

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Hundreds – perhaps thousands – of companies and individuals around the globe provide IPTV services to the public.

It’s a rapidly expanding market but a significant number of providers operate without appropriate licensing, in some cases offering many thousands of channels to subscribers for extremely low monthly fees.

As a result, some of these services attract the attention of rightsholders, who target them with legal action for damages or, in many cases, blocking by Internet service providers to render their platforms less accessible to the public.

In Australia, a new action filed in the Federal Court by TV distributor International Media Distribution (IMD) targets Reelplay, an IPTV provider that specializes in Italian, Greek, and Arabic programming.

IMD says it’s “the leading aggregator and marketer of niche television services to various ethnic communities around the globe,” with the distribution rights for over 40 premium Arabic and Italian channels.

The company is registered in Luxembourg but has its marketing office headquartered in New York, where a local agent provides customer services under Reach Media. IMD claims to be the single largest provider of ethnic channels to US-based multi-billion dollar TV distributor, Dish Network.

According to court documents obtained by ComputerWorld and shared with TorrentFreak, IMD is joined in the case by two other applicants – Netherlands-based distributor Overlook Management BV and Lebanon-based pan-Arab TV station Al Jadeed (previously NewTV).

Together the applicants claim that Reelplay (which sells its Arabic package for US$150, complete with a ‘free’ Android-based hardware player) offers 15 TV channels for which they are the exclusive licensee. The channels include Al Arabiya, MTV Lebanon, and BBC Arabic. Al Jadeed (the third applicant) is listed as a copyright holder licensing its channel content to IMD.

The applicants claim that Reelplay’s IPTV service infringes their exclusive licenses in Australia so are now asking the Federal Court for an injunction under the Copyright Act to compel local ISPs to block the platform along with various ancillary services, all referred to as “online locations”.

“Without the license or other permission of the Applicants, the owners or operators of the Target Online Locations infringe, or facilitate infringement of, the copyright subsisting in the Applicants’ Copyright Broadcasts by facilitating users of the Infringing Application on the Reel Play Device to access Streaming Locations that, without license or other permission of the Applicants communicate the Applicants’ Copyright Broadcasts to Reel Play Device users…,” the application reads.

Describing the operators of Reelplay as demonstrating “a flagrant disregard for copyright”, the applicants state that disabling access to the “online locations” associated with the service (which include software update servers, an EPG, actual streams of infringing content, and a sales/registration portal) is both proportionate and in the public interest.

Reelplay says it offers a “best-in-class user experience” powered by a “proprietary streaming system, which we built from the ground up.” It also claims extensive logging of subscriber information and activities.

In addition to harvesting IP addresses and WiFi details, Reelplay claims to store users’ search histories (including any voice-activated searches), search results, any advertising viewed, plus channel viewing history including times and duration of reception.

Perhaps of most interest to the applicants in the case, however, Reelplay suggests it has no licenses for the content offered within its subscription package.

“Reelplay [is] not responsible for the content and do not guarantee nor claim any rights to the content. Reelplay devices provide streams of all the channels as they are available on the internet,” its documentation reads.

If granted by the Federal Court, an injunction would require ISP groups Telstra, Optus, Vocus, TPG, VHA, plus subsidiaries (52 providers total) to block the ‘online locations’ listed in the table above.

While such cases have the potential to become complicated, the Court has previously shown to be thorough, with rightsholders not automatically given an easy ride.

However, under the recently enhanced Section 115a of Australia’s Copyright Act the process is now a familiar one and if the operators of Reelplay fail to defend (or produce licensing), an injunction will be the most likely result.

Court documents (courtesy of CW) here and here (pdf)

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Over the past several years, hundreds of thousands of piracy warnings have been sent out to Canadian pirates under the ‘notice-and-notice’ scheme.

While these notices can no longer include settlement demands, following a recent update in legislation, accused pirates can still get in trouble. Several movie companies have filed for Norwich orders, asking the court to subpoena ISPs to hand over customer information, so they can contact these people directly.

These cases lead to the so-called ‘copyright trolling’ practices we’re seeing elsewhere in the world. They are filed by rightsholders of films such as The Hitman’s Bodyguard, Criminal, London Has Fallen, and Dallas Buyers Club. And with hundreds of IP-addresses being targeted per case, their scope is quite broad.

Most ISPs don’t challenge these subpoena requests but in a recent case Internet provider Teksavvy decided to take a stand. When ME2 Productions, the company behind the film Mechanic: Resurrection, requested the personal details of several customers, the ISP decided to appeal.

Among other things, TekSavvy argued that the evidence provided by the copyright holder is not sufficient enough to warrant handing over customer information.

Last week the Federal Court of Canada sided with the Internet provider.  Judge William Pentney concluded that the evidence put forward by the movie company was not sufficient. This is problematic, as it could result in the wrong persons being targeted, he concluded.

“This case illustrates why it is so important for the Court to have the best available evidence,” Judge Pentney writes.

For example, unlike the movie company claimed, it appeared that several of the targeted subscribers never received an initial notice of copyright infringement, which is a requirement in these cases.

“One can easily imagine the reaction of such individuals when this is the first notice they would have received of the matter. This is precisely what Parliament was seeking to avoid when it adopted the notice and notice regime in the Act,” the order reads.

Perhaps even worse, one of the IP-addresses that was listed didn’t even belong to TekSavvy. These and other issues make it clear that subpoenas should only be issued when there’s sufficient evidence.

James Plotkin of law firm CazaSaikaley, who has defended accused file-sharers in the past, notes that this is an important ruling.

“The Federal Court sent a strong message that copyright plaintiffs must put forward ‘the best available evidence’ in order to obtain a Norwich order, or otherwise explain why that evidence is unavailable,” Plotkin says.

Among the issues highlighted in the order is the declaration of Daniel Arheidt, who works for the German BitTorrent tracking outfit Maverickeye. His evidence is at the basis of the clerk’s affidavit, but it’s not a sworn statement, and nor is Mr. Arheidt available for cross-examination.

The court also highlighted the privacy aspect of this case. Specifically, the order states that ISPs have a legal obligation to protect the privacy of their customers. While most ISPs chose not to appeal the order, TekSavvy certainly has an interest in doing so.

“TekSavvy is in possession of the personal information of its customers. It has a legal obligation to protect such information and an obvious commercial interest in doing so,” Judge Pentney noted.

This important angle was also raised by Plotkin, who noted that because the accused file-sharers are no party at this stage, their ISPs are the only ones who can protect them.

“The subscribers are not parties to the motion, so they have no say in whether the Norwich order that would force disclosure of their information should issue. The ISPs are the only ones able to look after their subscribers’ interests,” Plotkin says.

In the present case, the court found that several mistakes were made. If TekSavvy didn’t stand up for its customers, the privacy of these people would have been at stake.

“Mistakes like this can result in violations of privacy on the basis of erroneous information furnished to the court by the plaintiff. This might be accidental and not malicious,” Plotkin says.

“But regardless of intent, the court should not countenance corner-cutting by plaintiffs when the privacy interests of subscribers, who are without a voice in the proceeding, are at stake.”

TekSavvy did not immediately reply to our request for comment (see update below). In a statement to The Wire Report, the ISP’s vice-president of regulatory affairs, Andy Kaplan-Myrth, said that they are pleased with the decision which confirms that copyright enforcement requires a balance of disclosure and privacy interests.

The Federal Court order is by no means the end of these type of cases. Movie companies and other copyright holders can still request Norwich orders going forward. However, they will have to make sure that they base their requests on the best available evidence.

Update: Shortly after publication, we received the following comments from TekSavvy’s Andy Kaplan-Myrth.

“TekSavvy works hard to protect our customers privacy rights. While we acknowledge that we have a role to play in copyright enforcement, we also have a responsibility to make sure that the privacy interests of our customers are respected. That is especially true in a proceeding like this one where the individuals themselves are not aware of the proceeding until it may be too late. In this case, we reviewed the evidence that the movie studios were relying on to get us to identify our customers, and we didn’t think it came up to the required standard. With this decision, the court agreed with us.”

“This decision builds on a line of earlier decisions that copyright enforcement requires a balancing of interests, in this case balancing the business interest for disclosure against the privacy concerns of subscribers. In this decision, the court outlines the type of evidence that should normally be provided for a Norwich order, and we expect courts and other ISPs to join us in holding plaintiffs to those obligations in the future to protect consumers.”

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It’s no secret that scammers are constantly trying to trick torrent users into downloading malicious content.

These files are generally easy to spot and swiftly removed from well-moderated sites. As such, they are mostly a nuisance for novices.

But, when a well-known uploader with a “trusted’ status on some torrent sites gets involved, things change. Last week we reported that “CracksNow,” who shared tens of thousands of cracked software titles in recent years, had been banned from several sites after posting torrents with ransomware.

While we have reported on the torrent ecosystem for more than a decade, a reputable uploader ‘going rogue’ was something we had never seen before. Was it another sign of a decaying torrent community? Or perhaps an uploader who wanted to “cash in” on his work?

To find out more, we reached out to “CracksNow” days before we published our article. We initially received no response, but this week the uploader contacted us, explaining that there was no malicious intent on his part.

The ransomware was real and it did harm the computers of an unknown number of downloaders. However, CracksNow says he didn’t upload these malicious files. In fact, he went to quite a bit of trouble to ensure that his releases did not trigger any alarm bells.

“I had a person who checked all the files for malware before they were uploaded. All the files were run in a sandbox and were dynamically analyzed for malware,” CracksNow tells us.

When the malware reports kept coming in, resulting in bans for the uploader, the files were checked again. That’s when he noticed that some uploads were different.

“When I was demoted on TorrentGalaxy, I was testing all the files again for malware to see which torrents were infected. During my testing, I discovered that the infohash of the torrent file on my server was different from those on the torrent sites.”

An admin at TorrentGalaxy shared some of the account logs which revealed that CracksNow torrents were being deleted and replaced with new files. These newer files, presumably uploaded by someone else, came with the ransomware which caused all the trouble.

TorrentFreak reached out to TorrentGalaxy admin LRS, who confirmed that the site logs indeed showed that torrents were deleted and reuploaded.

However, by then the damage had already been done. After an admin at 1337x helped TorrentGalaxy by pointing out the ransomware issues, both sites banned the Cracksnow account.

The upload irregularities could mean that CracksNow’s accounts were compromised by an outsider. While this is impossible to verify independently, it sounds like a plausible explanation.

The uploader has no idea how someone managed to get his credentials but he doesn’t want to hide behind any excuses either. Even if someone else uploaded the malware, CracksNow takes full responsibility for what happened.

“It’s my responsibility to keep my account secure and I failed in that. A lot of users who trusted CracksNow got infected and got their files encrypted. I feel really bad about this and I am sorry to everyone who got infected,” CracksNow says.

The result is that the uploader lost his accounts with thousands of torrents at several popular sites, but he understands this as well. There was no way to check which uploads were infected, so deleting everything was the logical option.

“I fully support the decision. All the torrents should be deleted so that nobody else gets infected. I don’t want anyone to get infected because of me. The damage done to the reputation of CracksNow is irreversible. I will never be able to upload on the torrent sites again and I understand that.”

The good news for the uploader is that he still has his own site. However, this was also affected by last week’s news. The site was hacked over the past week and infected with malware. As a result, Google’s ominous red warning banner is now showing up in many web browsers.

While we felt obliged to report CracksNow’s side of the story, we are not passing any judgment one way or the other. It’s impossible to verify the complete backstory. This means that, as always, people should tread with caution, which applies anywhere on the web.

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