The web is riddled with copyright infringing content, ranging from full-length blockbuster films, through small music samples, to reposted celebrity photos on social media.

Not all of these offenses are equally problematic. Law enforcement authorities may go after the operators of large-scale pirate sites or services, but posting short film clips without permission typically doesn’t lead to trouble.

Sharing Nude Scenes of Reddit

Last year, we reported on a Danish case where a then-anonymous person shared small clips of films online in a subreddit. This type of ‘organized’ copyright infringement is seen as more problematic by rightsholders and in this case, the nature of the clips was all-important too.

Instead of posting random clips, the group was dedicated to nude scenes of Danish female actors. These were taken out of context and posted online, for the group’s more than 6,000 members to enjoy. In addition, the same clips appeared on pornographic websites.

The unauthorized activity was considered a slap in the face by the actresses, many of whom complained to local media. They felt violated by the actions and called on Reddit and the authorities to respond.

Actress Andrea Vagn Jensen, who has had one of her explicit scenes shared online, told DR that there’s a huge difference between appearing naked in a film and being posted on Reddit.

“It’s just abuse. You deliver something for the production and the story, and then you end up being molested that way,” Jensen said.

Police Arrest 39-Year-Old Man

The complaints caught the attention of Rights Alliance , which reported the issue to the police on behalf of the Danish Actors’ Association and the respective rightsholders. While these clips may not directly hurt revenues, copyrights also have moral rights which include the right to integrity, which could come into play here.

Rights Alliance also called on Reddit to take the matter seriously. While many of the problematic clips were already removed at that point, the group urged Reddit to implement upload filters to prevent future trouble. That included banning external URLs.

It’s unclear whether these demands were translated into action by Reddit but the police certainly took the matter seriously. This week, the National Unit for Serious Crime (NSK) announced that a 39-year-old man from Valby had been arrested and charged with copyright infringement.

“The arrested person is suspected of being behind extensive sharing of video clips with nude scenes from Danish feature films and series on various pornographic websites and the social media Reddit,” NSK writes.

The r/SeDetForPlottet subreddit is no longer online today. After the earlier media coverage, the group was made private and eventually shut down but for the suspect, this case is far from over.

Real People

NSK Police Commissioner Anders-Emil Kelbæk is pleased with the arrest. Not just in the interest of rightsholders, but also the actresses who felt abused by the unauthorized activity.

“I am satisfied that we have now been able to make an arrest in this case. Both actors and rights holders have rightly felt offended when nude scenes have suddenly been shared in an entirely different context than the one they were intended for,” Kelbæk says.

Rights Alliance Director Maria Fredenslund is happy with the outcome as well, as it sends a clear message that there are serious consequences for posting short copyright-infringing clips out of context.

“The case here deeply affects the rights holders involved and emphasizes what can be at stake when content is shared without permission and out of context,” Fredenslund notes.

“Any film or television production is created by real people with personal boundaries and artistic visions that are seriously violated by this kind of illegal sharing. Great praise must go to NSK for their effort in investigating the case,” she adds.

The r/SeDetForPlottet group, allegedly operated by the suspect, was inspired by the popular English-language subreddit r/WatchItForThePlot . The latter remains online today and has over 1.4 million subscribers.

From: TF , for the latest news on copyright battles, piracy and more.

In 2020, publishers Hachette, HarperCollins, John Wiley and Penguin Random House sued the Internet Archive (IA) for copyright infringement, equating its ‘Open Library’ to a pirate site.

IA’s library is a non-profit organization that, among other things, scans physical books in-house so these can be lent out to patrons as e-books.

This “Controlled Digital Lending” (CDL) practice allows for only one copy of a book to be lent at a time, mirroring the traditional library lending model. At the same time, however, CDL bypasses the publishers’ e-book licensing model.

Publishers vs. Internet Archive

The in-house scanning service at the Internet Archive (IA) differs from the licensing agreements entered into by other libraries. These agreements see libraries license ‘official’ e-book versions from publishers, who charge for every book that’s lent out to patrons.

The major book publishers eventually ran out of patience with IA’s DIY approach, filing a lawsuit that kicked off a major legal battle four years ago. The publishers equated IA’s lending operation to piracy and, last year, a New York federal court concluded that the library is indeed in the wrong .

The court’s decision effectively put an end to IA’s self-scanning library, at least for books from the publishers in suit. However, IA was not giving up that easily; in December the non-profit filed its opening brief at the Second Circuit Court of Appeals, hoping to reverse the judgment .

Publishers Win at Court of Appeal

During a hearing in June, both sides defended their positions. At the time, the court didn’t appear to be entirely convinced by IA’s arguments. This was confirmed by an opinion and judgment from the three judge panel published a few hours ago.

After reviewing the evidence, circuit judges Steven Menashi, Beth Robinson, and Maria Kahn, affirmed the lower court’s order. They conclude that IA’s self-scanning approach can’t be classified as fair use under U.S. copyright law.

The court understands that libraries are burdened by e-book licensing fees, which can make book lending relatively expensive. However, that doesn’t give IA the right to create its own e-books and lend those out instead.

“IA asks this Court to bless the large scale copying and distribution of copyrighted books without permission from or payment to the Publishers or authors,” the appeal court’s opinion reads.

“Such a holding would allow for widescale copying that deprives creators of compensation and diminishes the incentive to produce new works. This may be what IA and its amici prefer, but it is not an approach that the Copyright Act permits.”

Fair Use?

The Internet Archive hoped to rely on a fair use determination. It stressed that the in-house e-book scanning approach is transformative, because it enhances access to books, especially for those who cannot easily visit physical libraries.

The fact that the organization has no profit motive and only lends out as many digital copies as they have physical copies, should also favor fair use, they argued.

The Second Circuit Court of Appeals ultimately disagrees. For one, the court emphasized that simply digitizing a book is not transformative, as it does not create a new purpose or character. The digital copies served the same function as the original books – reading.

The court reasons that IA’s free digital lending could serve as a substitute for purchasing or licensing e-books, potentially harming the publishers’ revenue. That also goes against a fair use determination.

The court further stresses that while IA is a non-profit, its activities to have a commercial aspect, as it indirectly benefits from its partnerships and donations. That, again, weighs against fair use.

Harmful

The court of appeal had to find a balance between the interests of rightsholders and IA. In this case, it concludes that the scale tilts in favor of the book publishers.

In essence, the court prioritized the publishers’ right to control the reproduction and distribution of their works over IA’s goal of expanding access to knowledge. While IA’s actions are potentially beneficial in some ways, they ultimately harm the market for the publishers’ books, the court concludes.

“While IA claims that prohibiting its practices would harm consumers and researchers, allowing its practices would―and does―harm authors. With each digital book IA disseminates, it deprives Publishers and authors of the revenues due to them as compensation for their unique creations,” the opinion reads.

The decision means that IA’s e-book lending approach remains off-limits, as it applies to these copyrighted works. This may not signal the end of the legal battle, however.

IA is clearly disappointed by the outcome, but it hasn’t thrown in the towel yet.

“We are disappointed in today’s opinion about the Internet Archive’s digital lending of books that are available electronically elsewhere. We are reviewing the court’s opinion and will continue to defend the rights of libraries to own, lend, and preserve books,” IA writes.

—

A copy of the opinion from the Second Circuit Court of Appeals is available here (pdf) , and the associated judgment can be found here (pdf) .

From: TF , for the latest news on copyright battles, piracy and more.

In June 2022, Canada’s Federal Court handed down a ‘dynamic’ blocking order to prevent live NHL games from being viewed via pirate IPTV streams.

Obtained by companies including Rogers, Bell, The Sports Network, and Groupe TVA, the injunction was the first of its kind in Canada and had flexibility built-in by design. That was only the beginning and just like the UK and other countries in Europe, more applications resulted in more blocking injunctions being granted, each more adaptive than the preceding one.

In April 2024, a new application caught the eye. Led by Bell, Fubo TV, Rogers, and The Sports Network, the rightsholders requested permission to block pirate streams of three different sports; NHL and NBA games, plus matches played in the UK’s Premier League.

Greater Efficiency Through Collaboration

Since obtaining an injunction is a time-consuming and expensive process, the application in April aimed to significantly improve efficiency. Instead of separate proceedings for each sports league’s content and each time new content is broadcast, the applicants bundled everything into a single track process.

An announcement this morning by anti-piracy company Friend MTS confirms that collaboration to increase efficiency in court, also extends to pirate IPTV monitoring and blocking activities under the authority of the injunction.

“Friend MTS, the leading provider of video content security solutions, today reported that numerous video service providers in Canada have uniformly chosen Friend MTS as their partner of choice to prevent piracy with Dynamic Delivery Server Blocking (DDSB),” the announcement reads.

While Friend MTS describes the formation of “an industry-first collaboration” it doesn’t actually name any of the companies involved.

However, it does mention NBA, NHL, and a “nationwide court order to dynamically block access to any servers hosting broadcasters’ pirated content,” which certainly narrows things down.

An additional note, that the collaboration “saves money and time by reducing court application fees and appearances while simultaneously protecting billions of dollars of sports content rights,” leads directly to the following copyright owners or exclusive licensees.

Rogers Media Inc., Rogers Communications, Inc., BCE Inc., Bell Media Inc., CTV Specialty, Television Enterprises, Inc., The Sports Network Inc., Le Reseau des Sports, (RDS) Inc., and Groupe TVA Inc.

The above companies are clearly listed in the April application and the dynamic injunction handed down in July . Interestingly, it appears that the flexibility of the injunction was utilized before the ink even had a chance to dry.

UFC and MLB Enter Pirate IPTV Blocking Arena

On July 9, 2024, the same day the injunction was granted by the Federal Court, the applicants filed a motion to expand the scope of the injunction with additional content owned by other rightsholders.

These received no mention in the injunction but since a provision in the order allows for additional rightsholders to be added, these were somewhat more quietly introduced via amendment.

The addition of UEFA seems to be limited to the coverage of Euro 2024 but in respect of Major League Baseball (MLB) and Ultimate Fighting Championship (UFC), ongoing protection of events seems logical, and indeed turns out to be the case.

To the extent of our knowledge, the involvement of UFC and MLB hasn’t been widely publicized. However, the details of content to be blocked by Canadian ISPs (Bell Canada, Eastlink, Cogeco, Fido, Rogers, Sasktel, Teksavvy, Telus, Videotron, and Vmedia) appears as a subsequent amendment to Schedule 1 of the order handed down on July 9, 2024.

Confirmation that rightsholders are working together, and that all monitoring and IPTV target acquisition will take place under one roof at Friend MTS, indicates a blocking program capable of expansion without causing too many headaches.

If other countries’ programs are taken as guidance, expansion is almost guaranteed.

From: TF , for the latest news on copyright battles, piracy and more.

For a torrent site, TorrentGalaxy is still a relative newcomer. The site is barely seven years of age while others have been around for over two decades.

In that timespan, however, TorrentGalaxy secured a key place in the torrent ecosystem. Not only does it serve millions of users directly, its ‘release’ groups also distribute torrents across other popular sites, including The Pirate Bay and 1337x.

This role has been challenged over the past few days. On Sunday, the site replaced its usual appearance with a cryptic message, “TGX Forever” , without any further explanation. Meanwhile, the site’s health status page was replaced by an even more ominous note: “Executing End-Program.exe…,” it read.

Without a word from the site’s operators or moderators, users were left guessing. Was this just a temporary ‘outage’, similar to the one a few weeks earlier , or were there serious issues behind the scenes?

TorrentGalaxy Returns

Today, after three days, the site reappeared in its usual form, as if nothing ever happened. TorrentGalaxy.to works just fine, and the same is true for the status page, which makes no mention of the recent drama.

In addition to the websites, the TGx upload bots have also resumed their normal operation, it seems. The TGxGoodies account on 1337x uploaded more than a dozen new torrents in the past hour.

Over the past days, we have received multiple reports citing unconfirmed “moderators” who claimed that the site had indeed shut down. These conclusions were premature, it seems.

Why?

The main question is why TorrentGalaxy’s operators have spooked users. It’s clear that they fancy this ‘mystery’ approach, but they wouldn’t take the site offline without a reason either.

Legal issues and hosting problems are often a reason for outages, but we have seen no signs of either. Maintenance or other technical problems could also offer an explanation. For example, it appears that one of TorrentGalaxy’s SSL certificates expired on August 31, after which it went offline.

Whatever the reason, the next time the site puts up a “TGx Forever” banner, it’s likely not the end of the site. Until it is, of course.

From: TF , for the latest news on copyright battles, piracy and more.

Pirate IPTV providers have a tendency to come and go, and some struggle to provide consistently high-quality streams.

Through reliability, stability and quality, subscribers were attracted to the SmoothStreams brand; the availability of masses of unlicensed content was obviously the main reason to stay.

SmoothStreams had been under investigation since 2018 and in the summer of 2022, major entertainment industry companies were at Canada’s Federal Court aiming to bring it all crashing down.

After filing a complaint mid-June, by the end of the month Bell Media, Rogers Media, Columbia Pictures, Disney Enterprises, Paramount Pictures, Universal City Studios, Universal City Studios Productions, and Warner Bros., had the permission they needed.

An interim order containing an interim injunction, required SmoothStreams’ alleged operators, Marshall Macciacchera and Antonio Macciacchera, to shut down the entire SmoothStreams system and hand control of its infrastructure to an independent supervising solicitor (ISS).

The order enjoined the men from dissipating, transferring, or concealing assets, and required them to authorize banks and other financial entities to disclose details of their assets. Court authorization, which allowed the plaintiffs to search premises linked to Marshall and Antonio and seize evidence – without having to give any prior warning – arrived courtesy of a controversial Anton Piller order.

Details of the operation , which spanned the homes of the defendants and other locations, appear in our earlier coverage .

SmoothStreams before being dismantled

Yet despite those events taking place over two years ago, the lawsuit against Marshall and Antonio Macciacchera (dba SmoothStreams), plus companies allegedly under one or the other’s control – Arm Hosting Inc., Star Hosting Limited, and Roma Works Limited – has thus far focused on the alleged conduct of the defendants during the raids, not necessarily the alleged conduct that led to the raid taking place.

Contempt of Court (Antonio): Serious and Expensive

As reported late 2023 , after failing in various ways to comply with the Court’s orders in 2022, both defendants faced the prospect of being held in contempt.

By “steadfastly refusing” to permit the Independent Supervising Solicitor (ISS) to enter his home and execute the order, and after he “deliberately deprived the plaintiffs of the element of surprise,” on December 13, 2023, Antonio Macciacchera was found in contempt of court and ordered to pay the plaintiffs over US$70,800 in legal fees and other costs.

Even before this decision, the costs of defending the lawsuit in general were clearly taking their toll. Precise figures are unknown but even if close to the costs being incurred by the plaintiffs, legal bills of hundreds of thousands of dollars are a massive burden for most defendants. For the plaintiffs, still relatively small change, when all things are considered.

Marshall Macciacchera, who is said to have controlled SmoothStreams support companies Arm Hosting Inc., Star Hosting Limited (Hong Kong), and Roma Works Limited (Hong Kong), faced allegations that he failed to comply with the terms of the order which contained, among other things, the Anton Piller order and a range of injunctive relief.

An order handed down by Justice Rochester at the Federal Court in Ontario last month, made available to the public in the last few days, paints a grim picture of what has become a slow-motion nightmare for all parties, and a potentially ruinous money pit for the defendants.

Contempt of Court (Marshall): Serious and Horrendously Expensive

Following the execution of the interim order in 2022, the plaintiffs sought an order charging Marshall Macciacchera, and three of the corporate defendants (Arm Hosting Inc., Star Hosting Limited, and Roma Works Limited) with contempt for refusing to comply with many aspects of the order.

Justice Rochester describes Marshall as the president of Arm Hosting Inc. and the sole director of the other companies [corporate defendants]. In 2022, Justice Lafrenière concluded that Marshall and the corporate defendants had, on a prima facie basis, failed to comply with the order by “deliberately failing to make the required financial disclosures, refusing to answer numerous questions regarding their assets, various login credentials, and certain unauthorized streaming services.”

Marshall and the corporate defendants were charged and a contempt hearing took place in April 2023 before Justice Rochester, with further submissions filed up until January 2024.

Defendants Alleged Bias

The plaintiffs alleged that the defendants “lied, concealed and attempted to conceal evidence” and all remained in breach.

The defendants appear to have built their defense on the alleged misconduct of the independent supervising solicitor; searches that “robbed” Marshall of his dignity, allegations that the ISS is not independent but is biased and therefore lacks integrity, met similar claims including doubts over expert evidence, even suggestions that the Court may not be impartial.

These allegations were examined in detail, but it’s clear from the order they were poorly received.

“The Charged Defendants have failed to call into question ISS Drapeau’s independence and integrity. There is no indication that anything untoward occurred, despite the Charged Defendants attempts to make it appear that way,” Justice Rochester’s order reads.

“Allegations of bias or a lack of independence against a member of the legal profession acting as an independent supervising solicitor should not be made lightly. Such allegations strike at the very core of the duties incumbent on an ISS. In the present case, I consider that not only were they made lightly, considerable Court time was used seeking to call into question the integrity of ISS Drapeau when there was no foundation for doing so.”

Allegations that the Court acted with “partiality, unfairness, and in essence, bias,” faired no better. Justice Rochester notes that the defendants provided “no cogent evidence” and relied on “bald allegations” instead.

Breaches of the Interim Order

Justice Rochester’s 80-page order is detailed; in respect of the details surrounding the execution of the order in 2022, oftentimes excruciatingly so for the defense. The full order is linked below and the Judge’s key findings follow:

• Marshall failed to disclose the required technical information associated with SSTV Services
• Defendants failed to provide credentials for the required accounts, domains, subdomains and servers
• Marshall provided login credentials for the registrar account of armhosting.ca
• Marshall did not provide credentials for live247.tv or credentials for the Live247 streaming server
• Court satisfied that Marshall is able to access the required credentials to comply with the order
• Marshall intentionally failed to disclose information relating to the two Hong Kong companies
• Star Hosting Limited and Roma Works Limited intentionally failed to comply
• Marshall intentionally failed to disclose assets, accounts, and details of overseas cryptocurrency
• Marshall intentionally failed to disclose his computer password

“Having found that the requisite elements of contempt have been established beyond a reasonable doubt, I nevertheless retain a discretion to find the Charged Defendants not guilty of contempt,” Justice Rochester notes.

“I am not satisfied that a finding of guilt would be an injustice in the present case.”

Costs and Penalties

Having found the defendants guilty of contempt of the interim order, the next stage is a hearing to determine the appropriate penalty. But before that takes place, the issue of the plaintiff’s costs needed to be addressed.

“The Plaintiffs seek an all-inclusive lump sum in the amount of $375,312.93 [~US$277,000], payable forthwith, comprised of (i) 50% of their total legal fees incurred for the contempt proceedings; and (ii) their reasonable disbursements,” the order reads.

When deciding the actual amount to be awarded, many factors are considered, including the conduct of the parties involved. The defendants argued they should pay no costs given the manner in which the interim order was executed. Justice Rochester’s order delivers the bad news in a paragraph (item 6).

The Charged Defendants are, jointly and severally, liable to the Plaintiffs for costs, payable forthwith, in a lump sum amount of $375,312.93, which is inclusive of legal fees, disbursements, and taxes thereon.

With costs of US$277,000 for contempt alone and the “appropriate penalty” yet to be decided, how this case continues to its ultimate conclusion is currently unknown.

SmoothStreams reportedly made around US$1.1 million per year, which sounds like a lot, at least until the unknown costs of the next year, or years, are factored in.

Justice Rochester’s order is available here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

Manga and anime have become increasingly popular in recent years. These formats originate in Japan, but they are now popular all over the world .

Available in static and animated form, ‘hentai’ describes the adult versions of the above. With a growing audience of many millions of fans, hentai is also benefiting from the boom.

As with any type of media, not all consumers are paying for access. Anime and manga piracy is more prevalent than music piracy today, and hentai is no exception. The nHentai.net website, for example, had nearly 80 million visits in June this year.

Copyright holders are not happy with the unauthorized distribution of their content. Many take countermeasures, which often involves sending DMCA takedown notices to the ‘pirate’ platforms, but not all recipients respond by taking content offline.

Rightsholder Targets nHentai

California company PCR Distributing is one of the affected copyright holders. The company does business under various brands, including J18 and JAST USA, and sees nHentai as a major threat to its operation.

PCR obtained a DMCA subpoena a few weeks ago, requiring Cloudflare to unmask the people behind the site, which allegedly failed to process takedown notices. As is frequently the case, a court clerk swiftly granted the subpoena, requiring Cloudflare to comply. In this case, however, that wasn’t straightforward.

A few days after the DMCA subpoena was issued, lawyers representing nHentai slammed on the brakes. They argued that no personal data should be disclosed as the subpoena should have never been granted .

At the time of writing, the matter is still pending in court. NHentai’s opposition is well argued and certainly has a chance of success. However, even if the subpoena is quashed, nHentai’s legal issues are far from over, as PCR has just filed a full-blown copyright infringement lawsuit.

PCR Sues nHentai for Copyright Infringement

In a complaint filed last Friday at a California federal court, PCR describes nHentai as a popular ‘pirate’ site with dozens of millions of visitors. The site shares copyrighted material without permission, taken from digital or physical books, while the operators don’t allow users to upload content.

“NHentai.net is a widely visited platform for adult manga and doujinshi content, attracting over 79,000,000 visits per month,” the complaint reads.

“The website hosts a vast collection of hentai works, including commercially produced content, much of which, based on information and belief, is shared without proper authorization from the owners.”

The lawsuit emphasizes that nHentai doesn’t rely on user-generated content. Those types of services can typically rely on a safe harbor under the DMCA. In this case, however, nHentai can’t claim this protection, PCR argues.

“nHentai is not a user-generated content website. There is no user upload capability. Defendants are not ‘service providers,’ are not engaged in the storage of content at the direction of users, and thus are not entitled to any of the safe harbors afforded under Section 512 of the [DMCA].”

Failed Settlement Attempt

The complaint doesn’t identify the owners of nHentai, who have yet to be named. However, PCR and nHentai are certainly no strangers. Last October, attorneys for the alleged pirate site offered to confidentially settle all copyright infringement claims with PCR.

The proposed terms of the agreement are unknown, but PCR declined and insisted that nHentai should take down pirated copies of their works.

“In October 2023, the nHentai Defendants […] attempted to have PCR enter into a ‘HIGHLY CONFIDENTIAL SETTLEMENT AND RELEASE AGREEMENT’ to settle claims, including copyright infringement, between the Plaintiffs and Defendants in this case. PCR declined the agreement and further requested the removal of its works from nHentai.”

Despite these efforts, nHentai allegedly failed to remove any of the infringing works in response to PCR’s takedown requests.

“Plaintiff or its agents sent DMCA compliant takedown notices identifying infringing works on Defendants’ website to the email address provided for reporting abuse. Additional DMCA-complaint takedown notices were sent to nHentai’s known service providers. However, 100% of the reported URLs remain active.”

Damages and a Broad Injunction

PCR accuses nHentai of various forms of copyright infringement and demands damages as compensation. In addition, the company seeks a broad injunction to effectively shut down the site.

The injunction should prohibit the site’s operator from infringing the copyrights of PCR’s works going forward and require the registrar of nHentai.net to transfer the domain to PCR.

If a domain transfer isn’t granted, the proposed injunction requires third-party intermediaries to block the domain in the United States. That would apply to search engines, hosting providers, ISPs, domain name registrars, domain name registries, and other service or software providers.

At the time of writing, nHentai has yet to comment on or respond to the complaint. However, given the site’s previous opposition to the DMCA subpoena request, we expect that it will file a response in due course.

—

A copy of PCR Distributing’s complaint, filed at the U.S. District Court for the Central District of California, is available here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

Released Time for Religious Instruction (RTRI) is a mechanism in the United States which allows schoolchildren to receive religious instruction during school hours.

The law says that this can only take place off-site, with teachers and authorities’ involvement limited to releasing children into the hands of third-party organizations for instruction elsewhere.

In Ohio, parent Zachary Parrish became concerned by the actions and teachings of an organization called LifeWise, which recently described itself as a “privately funded Christian non-profit” that provides “religious instruction in traditional, character-based, Biblical teaching.”

To raise awareness of LifeWise and what Parrish describes as its spreading of “Evangelical Christianity, Purity Culture, Christian Nationalism, homophobic beliefs, transphobia, and hateful rhetoric,” Parrish and the like-minded Molly Gaines teamed up to found an opposition group: Parents Against LifeWise .

Parrish Publishes LifeWise’s Children’s Curriculum, LifeWise Sues

In the belief that the curriculum contains information supportive of the opposition group’s cause, Parrish obtained a copy of the closely-guarded documents and, in the public interest, posted them publicly online. When he refused to comply with LifeWise’s demands to take the content down, LifeWise responded with a potentially crushing copyright infringement lawsuit.

Filed in the Northern District of Indiana (Fort Wayne Division) on July 2, 2024, plaintiff LifeWise Inc. of Indiana described Parrish as a willful infringer whose goal was to “gather information and internal documents with the hope of publishing information online which might harm LifeWise’s reputation and galvanize parents to oppose local LifeWise Academy chapters in their communities.”

After the complaint was filed, Parrish immediately received an offer to settle. That was perceived as an attempt to bring the matter to an end but on unacceptable terms; no recognition of Parrish’s right to use the material under the doctrine of fair use and a potentially devastating effect on raising awareness and future criticism of the religious group.

These components unsurprisingly attracted the attention of the EFF, which is now defending Parrish against LifeWise’s copyright infringement allegations. That began in earnest last week with a motion to dismiss for failure to state a claim.

Copyright Is Not a Tool to Punish or Silence Critics

EFF’s approach to this litigation is encapsulated in the heading above, as explained by EFF IP Litigation Director Mitch Stoltz and Staff Attorney Tori Noble.

“Copyright law is not a tool to punish or silence critics. This is a principle so fundamental that it is the ur-example of fair use, which typically allows copying another’s creative work when necessary for criticism,” EFF begins.

“But sometimes, unscrupulous rightsholders misuse copyright law to bully critics into silence by filing meritless lawsuits, threatening potentially enormous personal liability unless they cease speaking out. That’s why EFF is defending Zachary Parrish, a parent in Indiana, against a copyright infringement suit by LifeWise, Inc.”

A Perfect Example and Classic Fair Use

In a motion to dismiss dated August 26, EFF notes that some infringement lawsuits amount to “baseless shakedowns” where the expense of discovery heightens the incentive to settle rather than defend a frivolous lawsuit.

EFF informed the Court that the lawsuit against Parrish “is a perfect example.”

“As we explained to the court, Mr. Parrish’s posting of the curriculum was a paradigmatic example of fair use, an important doctrine that allows critics like Mr. Parrish to comment on, criticize, and educate others on the contents of a copyrighted work. LifeWise’s own legal complaint shows why Mr. Parrish’s use was fair,” the EFF notes, referencing LifeWise’s claim that Parrish hoped to gather information to publish online to harm the group’s reputation.

“This is a mission of public advocacy and education that copyright law protects. In addition, Mr. Parrish’s purpose was noncommercial: far from seeking to replace or compete with LifeWise, he posted the curriculum to encourage others to think carefully before signing their children up for the program.”

Returning to LifeWise’s assertion that Parrish aimed to harm LifeWise by publishing its curriculum, EFF points out that if a film critic uses scenes from a movie to support a devastating review, that’s considered fair use under copyright law. Likewise, if a concerned parent wishes to educate other parents “about a controversial religious school program by showing them the actual content of that program,” that’s permitted too.

Factors of Fair Use

A. LifeWise Concedes Mr. Parrish’s Transformative and Noncommercial Purpose

According to the motion to dismiss, LifeWise’s description of itself and its mission, of Parrish and his actions, show that LifeWise and Parrish had very different uses in mind for the curriculum.

For a fee, the former allows use of the document for “traditional, character-based, Biblical teaching during school hours.” For no fee, the latter’s use of the document was to “publish information online which might harm LifeWise’s reputationand galvanize parents to oppose local LifeWise chapters in their communities.”

B.The Nature of the Works Is Neither Disputed Nor Dispositive

The second factor of fair use concerns the creativity of the allegedly-infringed work. Creative content receives more protection than factual content, meaning that a finding of fair use is more or less likely depending on the content mix.

According to LifeWise, the curriculum is biblical instruction that includes videos, activity pages, leader guides, cards and printables; it is therefore a mix of creative work, passages from the Bible, plus other factual and non-creative elements.

“Given this jumble of characteristics, the ‘creativity’ subfactor is not likely to offer much illumination to the analysis,” EFF informs the court.

“Moreover, if the disputed use of the work ‘is not related to its mode of expression but rather to its historical facts’ then creativity matters even less to the analysis. Here, Mr. Parrish posted the Curriculum in order to make parents and the public aware of its content, not to appropriate its creative aspects.”

C. Mr. Parrish Used What Was Necessary for His Critical Purpose

It’s often claimed that using only small parts of a copyrighted work is key to a finding of fair use. While that may be helpful in some cases, copying of an entire work can be fair use in appropriate circumstances, when ‘time-shifting’ for example.

In this case, the entire curriculum was published and according to EFF, that was necessary given the purpose of the use. LifeWise provides a public 27-page summary of the curriculum and describes it as “comprehensive” but the EFF begs to differ.

“It is not plausible to infer that a 27-page summary, created by LifeWise itself —not exactly an objective source — would be adequate to fully educate parents or the public about what public school children might be learning during school hours from first grade through fifth grade, any more than a summary of the New Testament could substitute for actually reading it,” EFF informs the court.

D. LifeWise Does Not and Cannot Plausibly Allege Market Harm

The fourth and final factor of fair use considers the effect of the use of a copyrighted work on the potential market for that work. Put differently, whether use of the work deprived the copyright owner of income or undermined a new or even potential market. EFF argues that the complaint fails to show that any harm was caused.

“Where, as here, a use is highly transformative, only a strong showing of harm will weigh against fair use. When a use is transformative and non-economic, as in this case, market harm is less likely to exist or weigh against a finding of fair use,” EFF notes.

“LifeWise would never license the Curriculum for what it describes as Mr. Parrish’s intended use to ‘galvanize parents to oppose local LifeWise chapters in their communities. It concedes it would only license to Mr. Parrish, or anyone else, subject to ‘the restrictions that LifeWise is entitled to and would place on” use of the Curriculum, “including the right to deny permission altogether.”

LifeWise alleged that internet users may have downloaded the Curriculum for the purposes of religious instruction, contrary to the purpose envisioned by Parrish.

“Even taking this alleged harm at face value, Mr. Parrish cannot be held liable for what other people might hypothetically do; the question before the Court is whether Mr. Parrish’s own use is unlawful.”

Conclusion

EFF concludes that the posting of the LifeWise Curriculum “was a self-evident fair use”, and did not infringe any copyright. “This Court should dismiss the complaint and end LifeWise’s improper attempt to punish a critic.”

EFF ends a summary of recent events with a cautionary note that deserves to be highlighted.

Fair use is not the freedom to use copyrighted material with impunity. Fair use is a possible defense in a copyright lawsuit, not an immunity card that makes allegations disappear when waved in the air.

Parrish is fortunate to have EFF on his side; defending a fair use case not only requires legal experts, it can also get horribly expensive, extremely quickly. It’s hoped that the motion to dismiss filed by Parrish and EFF last week may help to end this lawsuit before it becomes unnecessarily costly for everyone, including the plaintiff.

Defendant’s motion to dismiss & EFF’s supporting brief are available here and here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

Three years ago, Bungie filed a complaint at a federal court in Seattle, accusing Destiny 2 cheat seller AimJunkies.com of copyright and trademark infringement, among other things.

The same accusations were also leveled against Phoenix Digital Group, the operating company behind the website, and third-party developer James May.

Bungie Wins Landmark Trial

After years of legal back-and-forth, the case went to trial in May, where both sides presented their arguments. AimJunkies, in particular, emphasized that the defendants never accessed or modified any of Destiny 2’s copyrighted game code.

Bungie, on the other hand, argued that AimJunkies’ copyright-infringing activities were blatant and obvious. At the end of the trial, the Seattle jury ruled in favor of the video game company.

After the hearings concluded, the jury found all defendants liable for direct, vicarious, and contributory copyright infringement. Phoenix Digital Group and all individual defendants were ordered to pay damages equivalent to the actual profits they earned, a total of $63,210 .

Court Denies AimJunkies a New Trial

The jury verdict was a clear victory for Bungie, but it didn’t mark the end of the legal battle. AimJunkies had previously filed a motion for judgment as a matter of law, contending that it was evident they hadn’t infringed on Destiny 2’s copyrights.

The district court was therefore asked to overrule the jury’s decision and enter a new verdict. Alternatively, the court could order a new trial, offering AimJunkies another chance to defeat Bungie.

Last week, United States District Judge Thomas Zilly denied the request for a do-over. Judgment as a matter of law may be granted if the evidence only allows for one reasonable conclusion , which runs contrary to the jury’s verdict. That’s not the case here.

Judge Zilly writes that Bungie was required to prove that it owned the copyrights and that these were infringed by AimJunkies. The presented evidence supports that, he concludes.

“[A]t trial Bungie needed only to establish that the ‘Cheat Software’ distributed by Defendants had copied protected aspects of Destiny 2. Bungie could show that Defendants copied protected aspects of Destiny 2 with either direct or circumstantial evidence of copying. Both types of evidence were presented at trial.”

For example, both Bungie and AimJunkies agreed that the cheat software affected the audiovisual output of Destiny 2. That alone, is sufficient to support the jury’s verdict that defendants engaged in copyright infringement.

$4.3 Million Arbitration Award

Before the trial took place, several of the claims presented in the lawsuit had already been resolved by an arbitrator. The arbitration process was conducted behind the scenes and resulted in a resounding win for the game developer. Bungie was awarded almost $4.4 million in damages and fees.

The bulk of the award was DMCA-related damages. According to arbitration Judge Ronald Cox, the evidence made it clear that AimJunkies and third-party developer James May bypassed Bungie’s technical protection measures in violation of the DMCA.

In addition to breaching the DMCA’s anti-circumvention provisions, the defendants were also found liable for trafficking in circumvention devices. Or, put differently, selling and shipping the cheats.

The AimJunkies defendants were disappointed in the arbitration outcome and decided to challenge it at the court of appeal . According to the cheat sellers, the arbitration process was not fair and correct.

The arbitrator relied heavily on evidence from Bungie’s witness, Dr. Kaiser, and denied cross-examination of the same witness, the defendants argued. This prevented AimJunkies from challenging the credibility of this key witness.

Appeals Court Denies AimJunkies’ Arbitration Appeal

Last week, the Ninth Circuit Court denied AimJunkies’ appeal. The court found that the district court did not err in confirming the $4.3 million arbitration award, concluding that the arbitrator didn’t prevent the defendants from challenging the witness.

“The Arbitrator did not entirely dismiss AimJunkies’ attempt or ability to impeach Dr. Kaiser,” Judges Nguyen, Johnstone and Ezra concluded

“For example, AimJunkies’ counsel could have tried to rephrase its question, question Dr. Kaiser about his transcripts, or read Dr. Kaiser’s transcripts into the record to impeach Dr. Kaiser. AimJunkies’ counsel did not attempt to do so.

“Instead, counsel abandoned the line of questioning entirely. This in no way amounts to an error […], especially not an error that was ‘in bad faith or so gross as to amount to affirmative misconduct’ […] and thus deprived the parties of a ‘fundamentally fair’ hearing.”

The arbitrator did not show “a manifest disregard” of law, no clear errors were made, and the scale of the award was not “completely irrational.”

As a result, the court of appeal affirmed the $4.3 million arbitration award.

As a result, Bungie emerges the clear winner once again. AimJunkies won’t get a new trial and the arbitration award, which was previously put on hold pending the appeal, can now be collected.

While there may still be further challenges ahead, AimJunkies’ outlook is ever more grim.

—

A copy of the Seattle District Court’s order is available here (pdf) . The order from the Ninth Circuit Court of Appeals can be found here (pdf) .

From: TF , for the latest news on copyright battles, piracy and more.

The demise of pirate streaming giant Fmovies in June, followed by the closure of Aniwave and more than a dozen others in the space of a few hours Monday night, will be remembered for a very long time.

When the Alliance for Creativity and Entertainment modestly confirmed on Thursday it had supported Vietnamese authorities to shut down the sites, the focus was on huge but easily digested numbers. When combined, fmovies, bflixz, flixtorz, movies7, myflixer, and aniwave, reportedly drew more than 6.7 billion visits between January 2023 and June 2024.

The popularity of these sites obviously made them a target, but significance can also be found elsewhere. For reasons we’re aware of and have reported previously, and likely many more besides, shutting down these sites was never going to be straightforward.

Frustrations date back years but more recently, at the same time domain names were being handed over to the MPA, presumably as part of an agreement, site resurrections were also underway.

The big question is whether Fmovies, Aniwave, and the other sites will attempt something similar.

Giving Up Was Never an Option

Some believed that nothing could be done about the piracy situation in Vietnam in the short term. Both Hollywood and Japan’s major anime studios seemed to have few options left, but that didn’t mean no options at all.

What follows is a sample of events relating to Vietnam that show the type of environment Fmovies and the other sites were up against. To what extent the background to these events affected the outcome, if they did so at all, is hard to quantify. What’s fairly clear is that when business needs are met in a mutually beneficial manner, momentum can take on a life of its own. As part of the overall vision for the Hollywood/Vietnam relationship, the sites’ existence may have simply become untenable.

International Symposium on Copyright Enforcement

As previously reported , Vietnam played host to the International Symposium on Copyright Enforcement starting June 17; those in attendance included the World Intellectual Property Organization (WIPO), the World Trade Organization (WTO), Vietnam’s Copyright Office under the Ministry of Culture, the MPA and who’s-who of major rightsholders and specialist anti-piracy companies.

The symposium ended on June 21 and Fmovies reportedly stopped updating June 22/23. One day later, MPA Chairman/CEO Charles Rivkin appeared in a photograph alongside Nguyen Quoc Dzung, Vietnam’s Ambassador to the United States.

Topics discussed over lunch included the importance of Vietnam’s streaming market to the Hollywood studios, and “how to strengthen the bonds between our creative economies and protect the livelihoods of the creative workforce driving this shared growth.”

That was June 24 and just a few hours earlier, Fmovies had suddenly started to fail. On life support for a few days, the world’s most popular streaming site would soon be declared dead.

The obvious beneficiary was Hollywood but as we noted in an earlier report, other meetings were also taking place elsewhere in Vietnam. One event attended by the Vice Chairman of Sony Pictures mentioned potential funding mechanisms for local films.

Vietnam Tourism – Cinema Promotion Program in the United States

Official government documents dated July 2024 show that a “tourism and cinema promotion program” will take place in Los Angeles in the “third and fourth quarters of 2024” with exhibitions on Vietnamese cinema and tourism and a program to “introduce the potential of Vietnam’s cinema scene and policies towards international cinema activities.”

The goals of the program in the United States include the promotion of tourist destinations and potential filming destinations in Vietnam, plus the following:

Attract Hollywood film studios to Vietnam to film movies with great appeal, capable of creating international media attention, to promote and attract tourists to Vietnam.

And there’s more;

– Take advantage of the prestige and influence of Hollywood partners to organize the Program, attract public attention, and widely promote Vietnamese tourism. Promote tourism promotion through cinema, effectively exploit tourism from cinema, and create a breakthrough in tourism promotion.

– Introduce the image and brand of friendly, quality, and sustainable Vietnamese tourism destinations. Create opportunities for Vietnamese tourism service providers to meet and connect with US businesses and partners.

– Strengthening cooperation and exchange; promoting the signing and commitment to effectively implementing cooperation agreements on tourism and cinema between relevant agencies, localities, Vietnamese enterprises and US partners, contributing to concretizing and deepening tourism and cinema cooperation between the two countries.

– Contact, exchange and work with a number of US tourism and film organizations (US Travel Association, Motion Picture Association of America), a number of large tourism corporations and businesses, media corporations, airlines, cruise lines, and relevant US partners to promote cooperation in tourism and film development.

The documents suggest that the MPA agreed to ensure that producers, studio directors, directors, film set directors, and Hollywood stars, attend a special event on an unspecified date. The MPA was asked to make a speech on the same day.

Japanese Animation Movie Screening

As part of the 2024 Japan-Vietnam Copyright Cooperation Project, a meeting took place on July 23, 2024, between staff from the Copyright Office of Vietnam, Japanese publishers, and anti-piracy group CODA.

After a presentation, those in attendance took part in a “lively discussion, during which participants exchanged views on topics such as the Vietnamese government’s anti-piracy measures, cooperation with copyright awareness activities, and Vietnam’s intellectual property laws and their implementation.”

Another Vietnamese government document dated May 2024, details “The organization of the Program ‘Japanese Animation Film Screening’.”

If everything went according to plan, that event took place on Friday, August 23, 2024. Coincidentally or not, the world’s largest anime piracy site Aniwave closed down on August 26, just three days later.

What kind of effect the closure will have on the local anime market is unclear, but for Vietnam’s Beta Media and Japan’s Aeon Entertainment, any reduction in availability of pirated content will be considered good news.

On July 31, the partnership committed to building more than 50 premium cinema complexes across Vietnam under the Aeon Beta Cinema brand by 2035. The first is scheduled to open in 2025 and with overall investment reported as “tens of billions” of yen (one billion yen currently US$64.4 million), confidence in Vietnam’s cinema business seems fairly high right now.

Momentum Builds Pressure

These events are just a few examples of recent activity in Vietnam; when combined, they show that despite the existence of Fmovies, bridge building work has never stopped. Indeed, after U.S. President Joe Biden met with Nguyen Phu Trong, General Secretary of the Communist Party of Vietnam Central Committee, in Hanoi last September, forging closer ties is expected under the U.S.–Vietnam Comprehensive Strategic Partnership .

General reports and details of progress were reported several times in June; Daniel J. Kritenbrink, Assistant Secretary of State for East Asian and Pacific Affairs, spent June 21/22 in Hanoi where he met senior government officials. On June 25, with Fmovies drifting away in the background, Jose W. Fernandez, Under Secretary for Economic Growth, Energy, and the Environment, welcomed Vietnam’s Minister of Planning and Investment, Nguyen Chi Dung, to Washington, D.C.

Surfacing Anytime Soon Would Be….Complicated

On balance then, it seems fairly unlikely that Fmovies2 will debut anytime soon. With Hollywood pulling and pushing in the same direction as Vietnam, whatever appears on the table can be obtained or achieved much more easily. That’s something that money can’t buy, at least not directly. Transactions like these often find themselves settled through the bank of goodwill instead.

If pushed to highlight a negative, Vietnamese media reports on Fmovies’ demise seem limited to repeating what has already been reported in Western media. At least far as we can determine, government officials and the police have made no official comments. Government websites, which include news resources, haven’t reported the news at all.

Two people were indeed arrested, but nobody has yet been charged. ACE, meanwhile, has a local trademark application underway; all fingers will be crossed that moving forward, any use for it will be strictly limited.

From: TF , for the latest news on copyright battles, piracy and more.