In response to a request from the Office of the US Trade Representative (USTR), the Entertainment Software Association (ESA) has submitted a list of so-called 'Notorious Markets' to the US government.
Representing some of the biggest names in video gaming, from Activision, EA, Nintendo, and Ubisoft, to Capcom, Microsoft, Konami, and Square Enix, the ESA acts as a voice for companies producing billions of dollars worth of content. According to the trade group, all are under threat from a wide range of piracy-focused or piracy facilitating platforms.
"As the U.S. association that represents companies that publish interactive games for video game consoles, handheld devices, personal computers, and the Internet, the Entertainment Software Association (ESA) regards the review of notorious markets as an important opportunity to shed light on markets that facilitate mass infringement or counterfeiting of industry products and services and that remain either sheltered from, or impervious to, the deterrent effects of enforcement actions," the ESA's submission begins.
Hyperlinking Websites
In line with previous submissions to the USTR, the ESA first highlights the threat posed by sites that don't host any infringing content themselves but link to third-party storage sites (file-hosting/cyberlockers).
These link sites typically generate revenue from user donations, advertising, or both, and the ESA selects a number due to their high levels of traffic and the volume of infringing links on offer. A key factor for a platform's inclusion is the claim that it is also non-responsive to notices sent by rightsholders to have infringing links removed.
At the top of the list is OceanofGames.com, which was found to have links leading to 5,100 pirated titles belonging to ESA members following an analysis carried out in August 2021.
According to the trade group, the site is now hosted in Ukraine having departed France last year, which perhaps explains why the site removed just 1% of the content listed in ESA member copyright infringement notices. OceanofGames is presented in a release blog format and can deliver sizeable games in just a single click, providing ease of use for visitors but irritation for the ESA's members.
Nsw2u.xyz (previously branded Switch-xci) offers links to pirated games for most platforms including PC. However, the ESA highlights the importance of the site to the Nintendo Switch piracy market. In September 2021, the site carried 5,500 posts carrying links to game downloads for the popular console, which include its most recently launched titles.
The ESA complains that the site uses various techniques to stymie anti-piracy enforcement, including by utilizing alternative .com and .org domains. The website reportedly ignores all ESA takedown notices and uses an unnamed "U.S.-based content delivery network" to conceal the identities of its operators. A cursory search reveals that CDN provider is Cloudflare.
Finally, the ESA calls out Darkw.pl for indexing more than 65,000 links to its members' titles to service more than 187,000 registered users. This site also uses Cloudflare and according to the ESA, blocks US IP addresses "in an effort to appear offline." At the time of writing, the site returns a 404 message when accessed from IP addresses inside or outside the United States.
Hosting Sites / Cyberlockers
In common with many anti-piracy groups, the ESA uses the pejorative term 'cyberlockers' to describe file-hosting platforms that carry a large amount of infringing content. These cyberlockers usually have no search facility themselves so work in tandem with the types of linking sites listed above in order to deliver content to users.
After making an appearance in earlier reports, the main thorn in the ESA's side remains 1fichier.com. At the time of writing, this huge platform enjoys around 35 million visits per month and in August was reportedly hosting at least 1,156 copies of ESA member video game titles. Takedown notices are sent to the platform but they are overwhelmingly ignored, with just 0.71% of notices receiving a response.
"1fichier's extremely low compliance rate for the removal of infringing content attracts more unauthorized uploaders to the platform due to the fact that the content will remain active on the platform for longer periods of time," the ESA's submission reads.
"Linking websites that index and manage the links to content hosted on 1fichier also benefit from the platform's low compliance rate as these websites derive greater advertising revenue from users clicking on the links to pirate content hosted on 1fichier."
The ESA is clearly frustrated by the lack of cooperation and highlights that despite losing criminal and civil cases in 2021, the French-based company behind 1fichier hasn't changed the way it operates.
In an April decision handed down by the Nancy Criminal Court, the company was convicted for not removing pirated content from its servers and ordered to pay a fine of 1.3 million euros (US$1.5 million). Its chairman was also handed a one-year suspended prison sentence. In May, a Paris court ruled against 1fichier in a civil case involving Nintendo, which also resulted in a million-dollar fine.
"Although the Court ordered provisional enforcement of its decision, which should have resulted in immediate compliance by the company, the company operating the 1fichier platform has failed to do so," the ESA notes.
Finally, file-hosting platform Rapidu.net is also called out for hosting 10,600 ESA members' games, while also using the services of Cloudflare.
Torrent Sites
Just two torrent sites are listed in the ESA's submission – TorrentFunk.com and TorrentDownloads.pro. They stand accused of hosting .torrent files (3,300 and 3,200 respectively) that link to ESA member game titles, according to analysis carried out in August. The sites are reportedly not responsive to takedown notices and in common with other platforms in the list, both utilize the services of Cloudflare.
Cheating and Digital Goods Platforms
Finally, the ESA highlights the problems it has with the unauthorized sale of in-game digital items on third-party platforms and the nuisance of services designed to help users cheat in multiplayer games.
On the cheating front, the ESA calls out unknowncheats.me for offering cheats and tutorials for 100+ games, and se7ensins.com for providing access to mods, boosting services, and support for reversing bans handed down by game publishers. Other sites include mpgh.net, iwantcheats.net and engineowning.com, which are all reported for similar behavior.
In respect of unauthorized marketplaces that allow users to list and sell digital items such as in-game currency and items, game accounts, and unlicensed game keys, the ESA reports threats from g2a.com, playerauctions.com, and g2g.com.
The ESA hopes that the USTR will designate all of the above as 'notorious markets' in its final report so that they can be held to account overseas.
"The resulting Notorious Markets List provides important insights that allow national and local policymakers, as well as law enforcement officials, in other countries to evaluate and fairly demand accountability from these markets and the services that support them, including through appropriate enforcement actions," the ESA concludes.
The ESA submission to the USTR can be found here (pdf)
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