Thursday, September 9, 2021

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Digital Death Penalty? Legal Battle over Piracy Disconnections Heats Up in Appeals Court
Ernesto Van der Sar, 09 Sep 10:16 PM

cassette tape pirate musicTwo years ago Internet provider Cox Communications lost its legal battle against a group of major record labels.

A Virginia jury held Cox liable for pirating subscribers because it failed to terminate accounts after repeated accusations, ordering the company to pay $1 billion in damages.

The ISP was disappointed with the verdict and filed an appeal. In its opening brief, filed at the Court of Appeals for the Fourth Circuit last week, Cox argued that it's incorrectly being held liable for pirating subscribers.

Not only that, but the company also warned against the harm that a loss of Internet access can cause to businesses and individuals, equating the sanction to a "digital death penalty."

The music companies disagreed. They countered that Cox is not as innocent as it claims. Instead, they argued that the ISP deliberately prioritized its own profits over limiting piracy.

Cox Doesn't Want a 'Notice and Terminate' Policy

This week both sides filed their replies briefs, which highlights the differences in opinion even more. In its filing, Cox points out that the music companies want a "notice and terminate" scheme to boot persistent pirates off the Internet.

"Plaintiffs do not deny it: If the judgment is affirmed, ISPs will be required to terminate any internet connection accused of infringement just once — exiling anyone using that connection, infringer or not—on pain of crushing damages.

"They want to replace the flexible, fault-based doctrines of secondary copyright liability with notice-and-terminate … or else," Cox adds.

Cox Denies Liability

The current verdict against Cox indeed requires ISPs to terminate repeat copyright infringers. However, Cox argues that this ruling should be overturned.

Among other things, Cox's brief stresses it can't be held liable for vicarious copyright infringements because the company didn't directly profit from pirating subscribers. It also denies that "repeat infringers" were particularly profitable because they paid for high-speed connections.

On top of that, Cox says that it would be impossible to 'supervise' the activities of six million account holders in real-time, as a liability finding requires.

"The only action that could stop a subscriber from infringing is termination. But the power to impose a draconian punishment is no substitute for proving 'supervision'," Cox writes.

The ISP further believes that the court erred in holding it liable for contributory copyright infringement. On top of that, it notes that the $223 million damages for derivative works should not have been granted.

Music Companies See a Profit Motive

The music companies see things quite differently. They also submitted a reply brief, directly countering many of Cox's arguments.

They state, for example, that there is ample evidence to show that Cox kept pirating subscribers on board to earn extra money. This is an issue that was previously detailed during the trial.

"The trial evidence showed that Cox kept loosening (and ignoring) its policies to avoid having to terminate paying subscribers. The evidence further showed that Cox routinely determined not to terminate accounts so it could continue to collect those infringers' subscription fees," the brief reads.

600,000 Disconnections

The record labels also call Cox's concerns for the Internet connectivity of subscribers into question. They directly quote the comparison to a "digital death penalty," adding that Cox has terminated hundreds of thousands of subscribers on other grounds over the years.

Cox's Acceptable Use Policy allows the company to terminate customers for various reasons, which it has done repeatedly.

"And terminate Cox did — just not for copyright violations. Its termination decisions were money-driven. In 2013 and 2014, Cox terminated over 600,000 residential and 20,000 business customers for nonpayment — over 800 terminations a day.

"In Cox's view, the occasional termination for repeated and flagrant copyright infringement is 'downright monstrous.' Termination for nonpayment? Downright common," the music companies add.

Landmark Case

The above is just a selection of the arguments brought up by both sides. However, they clearly capture the tension, which isn't expected to subside anytime soon.

It is clear that the case will have a crucial impact on how pirating Internet subscribers will be handled going forward. As such, the appeal will be closely watched by Internet providers, copyright holders, and the public at large.

A copy of Cox's reply brief is available here (pdf) and the reply brief from the music companies can be found here (pdf)

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

Funimation DMCA Notices Shut Down Pirate Anime Apps, Force Others to Consider Future
Andy Maxwell, 09 Sep 11:51 AM

Pirate GirlWhile anime is still insanely popular in its home country of Japan, over recent years the popular animation format has enjoyed huge growth in the West, to some extent due to piracy.

With studios initially unable or reluctant to distribute their works through official channels, piracy platforms of all kinds sought to fulfill demand and as a result, gained a significant foothold in the market. However, with a wide range of companies such as Crunchyroll/Funimation, Disney and even Netflix now investing significant sums in anime, anti-piracy action is the obvious outcome.

Anti-Piracy Campaign Targets Pirate Apps

Starting early this week, reports began to surface of a new anti-piracy campaign being carried out on behalf of Funimation, which last month completed the acquisition of Crunchyroll from AT&T for a cool $1.175 billion.

Seeking to protect its investment and existing business, Funimation is using the services of brand protection company Corsearch, which began writing to the operators of anime piracy apps and services warning that they needed to shut down.

Taiyaki – Shut Down or Face Law Enforcement

One of the first notices appears to have targeted piracy app 'Taiyaki'. As the image below shows, its operator was asked to comply with a takedown notice or face a criminal referral to law enforcement.

Taiyaki DMCA

We haven't been able to secure a copy of the takedown notice itself but the operator of the platform confirms that in response to the notification, the project has been shelved.

"This app is now closed. Unfortunately it was hit by a DMCA by the monarchy company known as Funimation," he writes.

AnimeGlare – Cease-and-Desist

In an announcement to its users this week, anime app AnimeGlare announced that it too had been targeted by Funimation and had shut down.

"Y'all must be wondering why AnimeGlare is not working and why you are not being able to communicate with us, well I don't know how to tell you this bad news but AnimeGlare recently got a 'Cease & Desist' letter from 'Funimation Global Group, LLC', meaning we are being forced to shut down all operations immediately," operator 'BlackKnit' revealed.

"It was a wonderful journey and I really enjoyed working on AnimeGlare and talking to y'all lovely people, but all good things must come to an end and sadly it's our time to say Goodbye. As of September 06, 2021, AnimeGlare will no longer be functional, and our website will no longer be distributing any app files. AnimeGlare has officially been shutdown."

At the time of writing, the official AnimeGlare domain is redirecting to show tracking service SIMKL.

Shiro Receives DMCA Notice, Stops Development

Anime app 'Shiro' also reported receiving a DMCA takedown this week. Its developer didn't share the notice itself but it seems likely it followed a similar format to those received by Taiyaki and AnimeGlare. It was sent by Corsearch on behalf of Funimation and contained a threat to refer the matter to law enforcement in Sweden in the event of non-compliance.

Shiro DMCA

"I just received a DMCA takedown notice from funimation and I'll therefore cease all development on the Shiro app, but the site will likely stay," the Shiro developer informs his users.

At the time of writing, however, the project's Github page is down (archive copy here), and the developer also has some advice for others yet to receive contact from Funimation and its agents.

"All other developer should probably private their shit asap as this company [Corsearch] is hired specifically for DMCA notices," he adds.

It's advice that some appear to be taking.

Project Kamyroll and Yukino 'Go Private'

In response to the takedowns of the other projects, the developer of Project Kamyroll announced that development would cease for the foreseeable future.

"Due to many requests as well as the funimation chase that is happening right now, I have been forced to make Project Kamyroll (the Application) private. Currently this is not really a problem as I don't have time to develop the app, so there won't be any changes for a very long time," he explained.

"This weekend, I will publish download links for the current version on a server other than github in order to always offer the app to others. I therefore encourage you to talk about the application since it is no longer visible on my github."

A similar position can be found at Yukino, which also made a home on Github with its Android, Windows, MacOS, and Linux application. That project has now been removed (archive copy here) with the developer admitting that in the current climate, getting into legal trouble is something to be avoided.

TorrentFreak requested comment from Corsearch but at the time of writing we are yet to receive a response.

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

 
 
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