Saturday, January 2, 2021

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Record Labels Defeat False DMCA Takedown Claims in Court
Ernesto Van der Sar, 02 Jan 10:31 PM

pirate flagUnder US copyright law, Internet providers must terminate the accounts of repeat infringers "in appropriate circumstances."

In the past such drastic action was rare, but with the backing of legal pressure, ISPs are increasingly being held to this standard.

Repeat Infringer Lawsuits

Several major music industry companies including Artista Records, Sony Music Entertainment, Universal Music, and Warner Records, have filed lawsuits against some of the largest U.S. Internet providers. This also includes Bright House, which is owned by Charter.

Through this lawsuit, the music companies hope to win hundreds of millions of dollars in damages. While that may sound high, last year a federal jury handed down a billion-dollar award in a lawsuit against Cox Communications.

False DMCA Notices Counterclaim

Bright House would like to avoid this fate at all costs. In a countersuit, filed in July, the ISP hit back accusing the record labels of sending inaccurate and deceptive takedown notices. This is in violation of the DMCA as well as the Florida Deceptive and Unfair Trade Practices Act, the company argued.

A month later, the Internet provider asked the court for permission to add the RIAA and its anti-piracy partner MarkMonitor to the suit, as they are central to the wrongful conduct.

The record labels were not happy with these accusations and asked the court to dismiss the claims. While it's possible that some incorrect notices were sent, they argued that Bright House has no standing as the company failed to take any action based on their notices.

No Disconnections, No Harm

This defense points back to the basis of the "repeat infringer" issue. The labels sued the ISP because it didn't disconnect persistent pirates. So if there were false notices, there was no real harm done.

After hearing both sides, US District Court Judge Mary Scriven decided over the matter this week, clearly siding with the record labels.

"Bright House alleges that Plaintiffs violated Section 512(f) of the DMCA by sending knowingly false infringement notices. This counterclaim fails as a matter of law because Bright House does not allege that it removed or disabled access to any allegedly infringing content in response to the notices."

Judge Scriven notes that this case is similar to the one Charter filed against several record labels. That case was dismissed as well a few weeks ago, as Charter didn't show that it disconnected subscribers based on false DMCA notices.

False Notices Claim Dismissed

"Bright House's counterclaim suffers from the same fatal flaw and is therefore due to be dismissed," the District Court Judge writes.

The ISP's second claim, that the labels violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) fails as well, according to the court.

A proper FDUTPA claim requires Bright House to argue that the false notices were sent as part of "trade or commerce," which generally involves advertising or offering services, property, or something else of value. That's not the case here, Judge Scriven notes.

FDUTPA Claim Fails As Well

"The FDUTPA claim is defective because the infringement notices do not constitute 'advertising, soliciting, providing, offering, or distributing' any 'thing of value' to Bright House, its subscribers, or any other party.

"Plaintiffs sent the infringement notices as part of an alleged effort to enforce their legal rights in recordings and compositions they claimed to own," Judge Scriven writes.

This means that both counterclaims are dismissed. Bright House also put in a separate request to enforce the same claims against the RIAA and its anti-piracy partner RightCorp, but this is futile now that the underlying arguments don't hold up.

The case will now continue to trial without any counterclaims. Bright House will still have to defend itself against the repeat infringer claims and copyright infringement allegations.

A copy of US District Court Judge Mary Scriven's order is available here (pdf)

From: TF, for the latest news on copyright battles, piracy and more. We have some good VPN deals here for the holidays.

Pirate IPTV Won't Be Stopped in 2021 But User Fatigue Could Be Crucial
Andy Maxwell, 02 Jan 11:16 AM

IPTVDuring December, on the day world heavyweight champion Anthony Joshua was preparing to retain all three of his belts by defeating Bulgaria's Kubrat Pulev at Wembley, someone looking to watch the fight cheaply asked which pirate IPTV service would be the best to choose.

From the discussions seen by TF, this person had already subscribed to a package with another provider. However, for reasons that aren't entirely clear, after handing over money to that supplier and receiving the login details, all that appeared on the screen was…well…nothing. It was blank, no EPG, and certainly no picture.

Faced with a seller that had suddenly decided to stop responding to support questions by email, the person was directed to a Discord channel. With no experience of Discord, this additional hurdle for an individual with a busy schedule and a small child was an unneeded hassle. Nevertheless, after working out how to get Discord working and getting advice through the channel, support was forthcoming.

Initial advice suggested that his Internet service provider may be blocking the service. This is common in the UK so the customer was advised to sign up to a VPN, which in the vast majority of cases circumvents ISP blocking and allows access to the service. The increasingly frustrated user was provided with instructions to install the VPN on a Amazon Firestick or similar set-top device, but as the owner of straightforward smart TV, didn't have the suggested hardware.

Reaching a point where he "couldn't be bothered" to jump through any more hoops, the customer sought out a new IPTV provider, which according to online forums had performed well in the past. However, it transpired this service also required a VPN but was offering a workaround to exploit a VPN provider's free trial.

Nevertheless, a Firestick or similar was still advised and several hours later, after obtaining one and installing the necessary software, the service was up and running, ready for the fight. As things turned out, everything ran without a hitch but the hoops jumped through to get there were certainly noted.

Messing around for hours on a Saturday in preparation for a 45-minute fight isn't everyone's idea of fun. Not to mention that it took not one but two IPTV subscriptions to get the desired result. Add in that the free VPN 'trick' no longer works and it's not hard to see how some people (albeit not all) might be put off by the experience.

Indeed, if we switch around the circumstances a little and sprinkle on some creative license, this doesn't sound a million miles away from the hoops that some legitimate providers require their customers to jump through in order to watch an event. If we add in all the of the pirate costs, presuming they aren't to be spread over future viewing experiences, there aren't many savings either.

Of course, more seasoned IPTV pirates would've already had their ducks in a row. They'll have done all of the research, have a couple of providers to choose from, the necessary hardware already, plus a VPN kicking around that could be put to further use. But for the more casual or one-off type user, none of this represents a particularly streamlined or enjoyable experience.

This state of play is largely due to the disruption activities of copyright holders and the authorities. Where once it was simply a case of visiting a website, signing up, paying and watching, accessing an IPTV service today is a much more complicated affair.

More public services, with a website and the option to pay simply by PayPal, for example, are much rarer. Indeed, it is widely believed that these sellers and resellers are likely to attract negative attention much more quickly, and that certainly isn't conducive to a long-term business relationship for anyone involved.

On the other hand, those with more secure operational setups, with contact only available through invite-only chat channels and payments accepted only via cryptocurrencies, may prove to be much more reliable and durable. However, these present a whole new set of barriers to entry, ones that are likely to put off novices, casual customers, and/or those with less time on their hands.

With the majority of users falling into these categories, it's not hard to make the connection between various anti-piracy strategies, enforcement actions, and other disruption activities favored by the police, for example. All of these entities are under no illusions that piracy can be easily stopped. However, with strategies that are designed to disrupt in any number of ways, the aim is to create enough irritation and inconveniences among customers that cause costs to rise and valuable time to be expended.

Somewhere along the way, it's possible that the pirate business proposition starts to feel less of a bargain. Couple that with reduced prices and more convenience for official offerings and the gap closes further still. None of this may be enough to make pirate IPTV a thing of the past but with competition in the form of disruption and more sensible pricing, the playing field could improve for rightsholders in 2021.

Until the next set of pirate innovations, of course.

From: TF, for the latest news on copyright battles, piracy and more. We have some good VPN deals here for the holidays.

 
 
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