Thursday, May 6th, 2021

Time	Event
6:28a	Cox Sues Rightscorp and BMG over ‘Abusive’ DMCA Notice Campaign Internet provider Cox Communications has been on the losing end of several piracy lawsuits in recent years. In December 2015, a Virginia federal jury held Cox Communications responsible for pirating subscribers, ordering the company to pay music publisher BMG Rights Management $25 million in damages. This damages figure was reduced in a settlement agreement but, soon after, the Internet provider was hit with a $1 billion jury verdict in a similar case, which is still under appeal. Overhauling the Takedown System These lawsuits were a wake-up call for Cox. To cope with the constant stream of DMCA notices, the company spent millions to improve its takedown systems and processes. In 2017, DMCA notices were separated from other abuse complaints. After that, rightsholders were directed to use a new email address which is also listed as the registered agent at the Copyright Office. While pretty much all copyright holders immediately started using the new takedown email, Rightscorp and BMG continued to use the old abuse@cox.net address. Cox has reminded the companies through repeated emails and certified letters, but they still use the old email address today. This situation presents a problem for the ISP. It can either incur significant costs to properly process the notices or ignore them and risk massive liability claims and damages. Cox Takes Rightscorp and BMG to Court To get more clarity Cox Communications has decided to take Rightscorp and BMG to court. In a complaint filed at a California federal court, the ISP accuses the companies of intentionally sending thousands of invalid DMCA notices with the goal of fabricating massive secondary infringement claims. “If Defendants were truly trying to notify Cox’s subscribers of allegations of copyright infringement, they would be sending notices to Cox’s registered agent, as required by law. Cox has informed Defendants of this numerous times, yet Defendants persist in misdirecting their notices to an improper email address,” the ISP writes. “It is obvious that Defendants’ tactic is a thinly veiled attempt to exploit the procedures set forth by the [DMCA], with the goal of leveraging their improper notices to attempt to extract windfall judgments for BMG and Rightscorp’s other prospective clients. Their approach is improper and unlawful, and should be stopped.” Multiple Warnings and Alerts The complaint describes in great detail how Cox has tried to get Rightscorp and BMG to use the correct email address. In 2018, Cox’s Senior IP Counsel sent an email to Rightscorp alerting it about the new DMCA address. This went unanswered, and so did a reminder that was sent in early 2019. While Rightscorp didn’t reply, it briefly stopped sending DMCA notices after the second email. This prompted Cox to reach out again, making sure that everything was in order. However, Rightscorp did not respond. After a few months, in July 2019, Rightscorp started sending DMCA notices again, still to the old abuse address. To prevent potential liability claims, Cox forwarded these to the correct address, investing significant resources to make sure that no errors occurred. After nearly a year had passed Cox reached out to Rightscorp again, this time by sending certified letters to three different addresses. These letters informed the company that DMCA notices sent to the old address would no longer be processed. While the letters were received in good order, Rightscorp didn’t respond. However, the company stopped sending DMCA notices for several months. As indicated, Cox went ahead and reconfigured its main servers to no longer forward DMCA notices that were sent to the old address. But that wasn’t the end of it. Rightscorp Continues to Use the Wrong Address In December last year, Rightscorp started sending DMCA notices to the old email address again. This was no longer in use for this purpose, but Cox had configured ‘bounce’ reports which showed that tens of thousands of emails were sent. “Since December 2020, when Cox stopped forwarding Defendants’ improper notices to CoxDMCA@cox.net, and Cox had begun sending bounce-back notifications, Defendants have sent tens of thousands of notices to Cox, all of which are improper and legally invalid under the DMCA. Indeed, in the month of April 2021 alone, Rightscorp sent Cox more than 75,000 invalid notices,” Cox writes. The ISP sent yet another certified letter but that went unanswered once again. The company now hopes that the court can help it to resolve the matter. ‘Corrupt’ and ‘Extortionate’ Business Model In addition to describing the context of the dispute, Cox is very critical of Rightscorp’s practices in general. It accuses the company of intentionally sending duplicate notices to trigger ‘repeat infringer’ allegations and extort alleged pirates in the process. “Rightscorp’s business plan is simple, and corrupt: it floods an ISP with an enormous number of notices, each of which purports to accuse an internet subscriber of copyright infringement. It demands that the ISP forward the notices to the accused subscribers,” the complaint reads. “And with each notice that is forwarded, Rightscorp attempts to extort the receiving subscriber into making a monetary settlement with Rightscorp, by threatening them with loss of internet service, federal litigation, and potentially ruinous statutory damages.” Declaratory Judgment and Damages To solve the matter once and for all, Cox asks the court to issue a declaratory judgment confirming that DMCA notices sent to the old abuse@cox.net email address are invalid. In addition, the ISP accuses Rightscorp and BMG of causing irreparable harm and injury through their incorrect DMCA notices. This amounts to negligence and electronic trespass to chattels, for which Cox demands the maximum amount in damages. — A copy of the complaint, filed by Cox Communications at the US District Court for the Central District of California, is available here (pdf) From: TF, for the latest news on copyright battles, piracy and more. (Comment on this)
10:31a	Triller Wants Google & YouTube To Unmask Jake Paul vs Ben Askren Pirates Triller’s widely publicized $100m lawsuit against sites that allegedly streamed the Jake Paul vs. Ben Askren fight on April 17 has hit complications. In its complaint, Triller identified several domains and what appears to be individuals, describing them as “business entities” that breached its copyrights. The lawsuit also referenced 100 John Does. This week, Triller offered an amnesty package to those who watched the fight without permission but the main lawsuit is already facing some pushback from the court. Triller Provided No Evidence to Show That Defendants Acted Jointly Triller’s initial targets included FilmDaily.com, AccessTVPro.co, Online2LiveStreams.us, CrackStreamsLive.com, Sports-Today.club, My-Sports.club, BilaSport.com, Trendy Clips, Mike, Your Extra, Eclipt Gaming, and ItsLilBrandon. The company later added the H3 Podcast and H3H3 Productions in an amended complaint but the court isn’t convinced they should all be included in one lawsuit. In an order to show cause, Judge Percy Anderson highlights Triller’s claims that the defendants’ actions were “undertaken jointly and with the consent, conspiracy, cooperation, and joint participation of all defendants” and that “each defendant was the agent, joint venture, and/or employee of each and every other defendant.” The Judge isn’t convinced, at least from the evidence at hand, that is actually the case, stating that the defendants have no apparent connection to one another. “Other than these conclusory allegations, the Complaint does not contain any well-pleaded facts that plausibly support even an inference that Defendants acted jointly,” he writes. “For these reasons, the Court orders Plaintiff to show cause in writing no later than May 10, 2021, why one or more of the Defendants should not be dropped from this case for improper joinder.” Triller Believes The Defendants Are Properly Joined In its response to the order to show cause, Triller argues that the defendants are properly joined because they are jointly and severally liable for Triller’s claims under the Copyright Act and that Triller’s claims against the defendants arise from the same transaction, i.e the broadcast of the Jack Paul boxing event. Triller says it is also “aware of certain facts” that demonstrate that the defendants had knowledge that other defendants illegally uploaded and distributed the broadcast. “For example, while unlawfully re-distributing the Broadcast, certain Defendants informed their viewers, subscribers, and fans of other Defendants’ unlawful redistributing of the Broadcast,” the company writes. However, Triller seems to acknowledge that at least at the moment, it will have difficulty showing other connections between the defendants because it doesn’t yet know who they are. As a result, Triller is asking the court not to dismiss any defendants from the lawsuit before it has had a chance to identify them. And it wants to do that quickly. Ex Parte Application for Expedited Discovery In an application filed Wednesday, Triller says that it is seeking limited discovery on an expedited basis in order to learn more about the “nature and extent” of alleged ongoing infringement by the defendants. The company says that it needs this in order to obtain evidence to support an imminent request for a preliminary injunction. “In particular, Triller seeks to serve subpoenas upon various online platforms — including YouTube LLC and Google LLC — and domain name registrars to learn Defendants’ true identities,” the company writes. “Registrars are required to maintain records of the individuals who and entities that register domain names. Such records will assist Triller in ascertaining Defendants’ true identities. Without the discovery in order to unearth Defendants’ true identities from behind their online aliases, Triller will be unable to seek an injunction halting Defendants’ unlawful conduct.” While observers will note that the fight card began and indeed ended on April 17, Triller says it needs to act quickly to prevent the defendants from rebroadcasting its original broadcast, infringing its copyrights. As such, it needs permission to conduct discovery quickly in order to avoid irreparable harm. The company adds that since the court acknowledges that additional evidence is required to show that the defendants acted jointly, granting discovery before the court’s May 10 deadline is a good reason to press ahead. Triller Wants to Subpoena Google and YouTube In its application, Triller provides a pair of proposed subpoenas – one targeting Google and the other YouTube. They are substantially the same in respect of the information demanded, i.e “All personal identifying information, including, but not limited to (i) name, (ii) mailing address, (iii) email address, (iv) phone number, and (v) history of credit card purchases” related to the defendants. What is curious about the first request to Google is that Triller does not identify any specific Google accounts, users, URLs, or other identifying information specific to its platform. It merely demands that Google hands over all information it holds on the various domains listed in the original and amended complaints. The proposed YouTube subpoena is more specific. While demanding the same personal information, it lists various YouTube channels such as Trendy Clips, Mike, Your Extra, Eclipt Gaming, ItsLilBrandon, the H3 Podcast, and H3H3 Productions. The request is not without its issues. The URLs supplied for Your Extra, Eclipt Gaming, and ItsLilBrandon are all the same and point to the Mike channel, so will presumably lead to the same entity. However, the URL for the Mike channel itself is wrong and in fact leads to absolutely nothing. While the proposed subpoena to YouTube seems like it could yield more fruit than the one targeting Google, Triller appears to have left out an important aspect of its expedited discovery application. The company mentions domain registrars as having the ability to assist Triller in ascertaining the defendants’ true identities but has filed no request to subpoena any. Triller’s response to the order to show cause and its application for discovery can be found here and here (pdf) From: TF, for the latest news on copyright battles, piracy and more. (Comment on this)
8:08p	Movie Tycoon Sues YouTube over Piracy and Exposes Content-ID ‘Caveat’ To protect copyright holders, YouTube uses an advanced piracy recognition system that flags and disables videos that are uploaded without permission. This copyright filter, known as Content-ID, works reasonably well but its use is limited to a select group of major copyright holders. The Spanish-born movie tycoon Carlos Vasallo should fall into this category. Through several companies, the actor and producer owns the rights to the world’s largest collection of Mexican and Latin American movies. Unfortunately, many of these are illegally shared on YouTube. In 2015, Vasallo reached out to YouTube, hoping to fix this piracy problem. The video platform was open to explore several options and Mr. Juanjo Duran, Google’s Director of Latin Media and Entertainment, suggested the “Content-ID” system as an ideal solution. This sounds like a typical approach YouTube would have when dealing with major copyright holders. However, unlike others, Vasallo refused to use Content-ID system because it came with a major caveat. Mr. Vasallo had to release YouTube from all possible piracy claims that took place in the past. Movie Tycoon Sues YouTube in Florida Instead, the movie tycoon opted to send old-fashioned DMCA takedown notices. However, according to a lawsuit filed in a Florida federal court this week, that did little to stop people from pirating his films. Vasallo hired a New York law firm to police YouTube and send takedown notices when pirated copies appeared. While the takedown process worked, new copies were added constantly. Even banned users reportedly returned using new names. “Once a pirated movie was found, Mr. Vasallo and Plaintiff would send YouTube a takedown notice. YouTube would then remove the pirated video movie in its entirety. However, YouTube would not remove all matching videos, as YouTube would specifically only remove the one video from the one infringer related to the single infringing upload identified in the takedown notice. “The same infringer would be free to upload the video again until three takedown notices were filed against him within a ninety-day period. Then and only then, would YouTube cancel the infringer’s username. The same infringer could then create a new username and begin the process of posting the pirated videos all over again,” the complaint notes. Over the past several years, the law firm sent over 10,000 takedown notices for pirated films that were viewed more than 500 million times on YouTube. The video service maintains that this is how the DMCA works, but the movie tycoon argued that the company should do more. Content-ID Comes With a Caveat The complaint mentions the earlier discussions with YouTube about joining the Content-ID platform. At the time, YouTube said that it could “very easily” detect and block infringing content. However, in order to join, the movie tycoon had to sign a release. Under U.S. law, YouTube is not obliged to actively monitor for pirated content. The company told the movie tycoon that it’s protected by the DMCA. But what is the purpose of the release then, Vasallo wonders. “[I]f Defendants confidently rely on the protections afforded to them by the DMCA, then why did Defendants adamantly insist that Mr. Vasallo, as well as Plaintiff, release Defendants from all claims associated with Defendants’ prior acts of piracy? “The clear answer to this question is the following: Defendants consistently use the DMCA as both a shield and sword against the average copyright owner, such as Plaintiff in this case,” the complaint adds. ‘YouTube Should Proactively Monitor Piracy’ The lawsuit argues that YouTube should be required to take reasonable steps to anticipate and filter potential copyright infringements. This effectively means opening up the Content-ID system to all rightsholders without caveats. According to the movie mogul, YouTube has intentionally decided not to use the Content-ID process for all rightsholders. By doing so, it can monetize the billions of views these videos generate. “Accordingly, Defendants knowingly and willingly induced, facilitated, engaged, and promoted the infringement of Plaintiff’s copyrighted materials for their own financial benefit,” the complaint reads. Through the lawsuit, Vasallo requests damages for YouTube’s alleged copyright infringing activity. With over 700 copyrighted titles, the potential statutory damages add up to more than $100 million. In addition to ruling that YouTube willfully infringed copyrights, the movie tycoon also requests a permanent injunction to require the video platform to implement reasonable technologies to prevent or limit copyright infringement going forward. That sounds a lot like the EU’s ‘upload filter’ requirement. — A copy of the complaint Mr. Vasallo’s company Athos Overseas filed against YouTube at the US District Court for the Southern District of Florida is available here (pdf) From: TF, for the latest news on copyright battles, piracy and more. (Comment on this)

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