Friday, June 16, 2023

TorrentFreak's Latest News

 

IBCAP/DISH Prevail in Jadoo TV Piracy Lawsuit, CEO Held Personally Liable
Andy Maxwell, 16 Jun 10:36 AM

jadoo-tvIn November 2018, DISH Network filed a copyright complaint against Jadoo TV, a distributor of self-branded set-top IPTV boxes and later various software apps. DISH also sued Jadoo TV CEO, Sajid Sohail.

The complaint described Jadoo TV's operation as a "wide-ranging, deliberate, multi-year effort" to distribute the plaintiffs' exclusively-licensed TV channels without authorization. Alleging violations of 17 U.S.C. Section 501, DISH filed claims for direct, contributory, and vicarious infringement.

DISH took the position that Sohail could be held personally liable because he authorized, directed, or participated in Jadoo TV's copyright-infringing activities.

In their answer filed in February 2019, Jadoo TV and Sohail denied the allegations, and in July 2020, DISH filed an amended complaint. A month later, Sohail filed his answer and a motion to dismiss for failure to state a claim.

Jadoo TV's CEO insisted that DISH could not hold him personally liable, but in September 2020, the court found that allegations in the amended complaint raised a "plausible inference" that Sohail "authorized, directed, or participated in the alleged infringement" so denied his motion to dismiss.

Motions for Summary Judgment

Four-and-a-half years after filing its original complaint, on March 13, 2023, DISH filed a motion for summary judgment. On the same day, Sohail also filed a motion for summary judgment. An order handed down this week by District Court Judge Charles R. Breyer granted DISH's motion and denied Sohail's.

In respect of direct infringement, the court found that there is "no genuine dispute that DISH owned the copyrighted material, that Defendants violated DISH's exclusive right, that Defendants acted with volition, and that Sohail was personally liable as Jadoo's director."

On the contributory infringement front, Jadoo TV fared no better.

"There is no genuine dispute that Jadoo knew about the infringement and could have implemented several simple measures to prevent it," the order finding in favor of DISH reads. "Accordingly, Jadoo materially contributed to the infringement, and thus is liable for contributory infringement."

DISH's claim for vicarious infringement, that Jadoo TV received a direct financial benefit from the infringement and declined to exercise a right and ability to control it, also went in the broadcaster's favor.

"Defendants do not contest that the infringement provided some financial benefit, which is all that is needed to find Defendants liable for vicarious infringement," the order reads, adding that "the only evidence offered — including evidence from Defendants' expert —unequivocally demonstrates that Jadoo profited from the infringement."

DISH Wins Summary Judgment

After granting DISH's motion for summary judgment, the court ordered the parties to submit a joint filing on the subject of what relief the court should provide to DISH within 45 days. DISH says it is entitled to statutory damages, Jadoo's profits, attorneys' fees, and a permanent injunction.

If the maximum of $150,000 per work is accepted by the court, statutory damages could reach $14.5 million for the 97 works in suit, with damages or profits for works published outside the United States to go on top. The final amount is yet to be determined, but it seems there will be no escape for Sohail.

As a result of the DISH lawsuit, which was coordinated by the International Broadcaster Coalition Against Piracy (IBCAP), Jadoo TV previously filed for bankruptcy, but after Sohail was found personally liable, options for recovery remain open.

"This ruling goes further than many other copyright cases coordinated by IBCAP. Here, the owner and CEO of one of the most popular South Asian services offering infringing content will not be permitted to hide behind a corporate shield and has been found personally liable for the damages caused by his and his company's copyright infringement," said Chris Kuelling, executive director of IBCAP.

"IBCAP and its members will not tolerate piracy, and the U.S. courts have once again not only sided with us by handing down a judgment against an infringing service, but also holding an owner personally accountable."

The order granting summary judgment is available here (pdf)

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

Former Megaupload Executives Sentenced to 2.5 Years in Prison
Andy Maxwell, 15 Jun 03:47 PM

megauploadFaced with extradition to the United States to face copyright infringement, racketeering, and money laundering charges, last year Mathias Ortmann and Bram van der Kolk made a big decision.

In May 2022, the former Megaupload executives revealed that they had signed a deal to avoid extradition and would be charged with crimes in New Zealand instead. One month later, the men pleaded guilty to a raft of crimes, safe in the knowledge that any sentence would be served in New Zealand, not in a U.S. prison cell. Megaupload founder Kim Dotcom was not part of the deal.

The summary of charging facts stated that Ortmann was a 25% shareholder of Megaupload Limited and made around US$19 million from Megaupload. Colleague van der Kolk had a 2.5% share of the company and received approximately US$3 million.

"The defendants' technical knowledge was indispensable to the creation and growth of Megaupload. Mr Dotcom ultimately determined matters of policy and direction but lacked the practical expertise to carry his wishes into effect," the statement of facts noted.

Bram van der Kolk's Coding Journeybram-van-der-kolk

"[Dotcom] relied on the defendants to set up and run the technical infrastructure of Megaupload. The offending would not have been possible without their involvement."

Charges and Convictions

In June 2022, Ortmann and van der Kolk were convicted on four charges in total. Charges 1 and 2 related to offenses contrary to sections 98A and 7A of the Crimes Act 1961.

Section 98A of the Crimes Act 1961 states that a person is liable to imprisonment for participating in an organized criminal group; three or more people with an objective to obtain material benefits from the "commission of offenses" that are locally punishable by a four-year prison term. Section 7A of the Crimes Act 1961 relates to offenses that occurred wholly outside New Zealand but can be prosecuted locally.

The first charge related to offenses under 98A and 7A which carry a maximum sentence of five years imprisonment. The second charge was identical but carries a ten-year maximum sentence. The third charge related to offenses contrary to section 240(1)(d) and section 310 of the Crimes Act 1961. The fourth related to offenses contrary to sections 228 and 310 of the Crimes Act 1961.

Prison Sentences Handed Down at the High Court

At the High Court in Auckland today, Justice Sally Fitzgerald sentenced Mathias Ortmann to two years and seven months in prison. Bram van der Kolk received a prison sentence of two years and six months. Both will begin their sentences at Mt Eden Corrections Facility (MECF) is in the central Auckland suburb of Mt Eden.

Ortmann had faced a prison sentence of up to 10 years and six months, van der Kolk up to ten years, but their guilty pleas, cooperation – including with the FBI, rehabilitation, and an agreement to surrender NZ$10 million in overseas bank accounts, all played a part in reducing their sentences.

Since 2009, Bram has been married to Junelyn Alexis "Asia" Unana Agcaoili, a Filipina actress, television host, and model who previously appeared on the cover of FHM. Together they have a son, who was born and raised in New Zealand.

Through her company Cloud Innovations Limited, Agcaoili is a shareholder in Mega, the company built by the pair after the collapse of Megaupload. A trust in the name of Kim Dotcom's wife, Elizabeth Donnelly, also retains shares in Mega.

According to a report from New Zealand Herald earlier this week, Bram and Mathias were hoping that the reputation 'Mega' had built inside the New Zealand government as a good corporate citizen would stand them in good stead.

The men were not immediately sent to serve their sentences today. Justice Sally Fitzgerald deferred imprisonment until August 1 to allow Ortmann to be present at the birth of his second child and for van der Kolk to spend time with his mother, who is in poor health.

Both men remain targets in civil lawsuits filed in the United States by the Motion Picture Association (MPA) and the Recording Industry Association of America (RIAA) related to their work on Megaupload.

So What About Kim Dotcom?

During sentencing today, Crown lawyer David Boldt suggested that had Dotcom been in court today, he would've been facing a possible sentence of 16 years in prison.

To date, Dotcom has chosen to fight back against all charges, something that may now prove more difficult after Ortmann and van der Kolk, who haven't spoken with Dotcom for close to a decade, agreed to testify against him.

After the Supreme Court ruled that Kim Dotcom can indeed be extradited to face a laundry list of criminal charges in the United States, the decision to send Dotcom northeast across the Pacific lies with Minister of Justice Kiri Allan.

The extradition warrant requires her signature, but even after pen is eventually put to paper, it's likely that Dotcom would seek a judicial review to buy more time in New Zealand.

"I have received detailed submissions from Mr Dotcom. In due course I will receive further advice on those matters before making any decision," Allen told New Zealand Herald this week. "Unfortunately, I cannot say how long that will take."

Dotcom Reacts to Sentencing

On Twitter this morning, Dotcom said that the US Department of Justice charged members of the so-called "Megaupload conspiracy" with 185 years in jail.

"They raided us with 72 cops and dragged us though NZ Courts for 12 yrs. Today my co-defendants got 2.6 and 2.5 yrs. This could be converted to home detention in a few months?" Dotcom questioned.

"That's why my former partners took the deal. Not because they actually believe that they are criminals. They are not. But they were tired of fighting and gave up in exchange for a 98.5% discount of the 185 yrs we were charged with. I don't blame them. They have been through hell."

dotcom-sentencing-comment

After earlier criticism of his former colleagues, this morning Dotcom paused to congratulate them.

"My legal team says that my co-defendants in the Megaupload case are eligible for parole after 10 months and will likely get parole as part of the deal they made with the US Govt. They will serve less than a year instead of the 185 years we were charged with. Good for them," Dotcom wrote.

Dotcom is the only remaining Megaupload executive still facing extradition to the United States. Megaupload marketing man Finn Batato passed away last year after succumbing to cancer.

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

Music Companies Sue Twitter Over Mass Copyright Infringement
Ernesto Van der Sar, 15 Jun 01:12 PM

pirate twitterUnder U.S. law, online service providers need to respond to takedown notices and implement a meaningful policy to terminate the accounts of repeat infringers.

Many of the large social media platforms stick to these rules, but according to a lawsuit filed this week by several prominent music companies, Twitter is not among them.

'Breeding Mass Copyright Infringement'

Universal Music, Sony Music, EMI and others filed a complaint at a federal court in Nashville, Tennessee, accusing Twitter's parent company X Corp of "breeding" mass copyright infringement. The company allegedly fails to respond properly to takedown notices and lacks a proper termination policy.

As a result, Twitter is reportedly rife with music piracy. This activity generates many millions of views which are monetized by the social media platform, while rightsholders are not compensated.

"Twitter fuels its business with countless infringing copies of musical compositions, violating Publishers' and others' exclusive rights under copyright law," the complaint reads.

"While numerous Twitter competitors recognize the need for proper licenses and agreements for the use of musical compositions on their platforms, Twitter does not, and instead breeds massive copyright infringement that harms music creators."

The music companies say that while many online platforms have agreed to licensing deals, Twitter has shown little interest in compensating musicians. This hasn't changed since Elon Musk took over. Instead, the attitude towards rightsholders seems to have worsened.

The lawsuit specifically mentions a tweet from Musk which described the Digital Millennium Copyright Act (DMCA) as a "plague on humanity."

"This statement and others like it exert pressure on Twitter employees, including those in its trust and safety team, on issues relating to copyright and infringement," the music companies note.

musk twitter

The same DMCA provides the ammunition for this multi-million dollar lawsuit. With a provisional list of over 1,600 musical works, the potential damages run to hundreds of millions of dollars.

'Music Piracy Fuels Revenue'

Twitter's revenue partly relies on advertising which, in turn, is boosted by additional views. According to the music companies, these advertisements are also clearly visible around infringing content.

The complaint lists several examples of infringing tweets with advertisements and promoted users surrounding them, each with many thousands of views.

In many cases, users upload infringing music videos to the platform. These tend to be quite popular and engaging, but unlike other platforms such as TikTok, Facebook and YouTube, rightsholders are not compensated.

According to the music companies, these tweets are the kind of quintessential copyright infringement explicitly prohibited by U.S. copyright law. They are quite popular, however, and can collect hundreds of thousands of views, as is the case with the Rihanna tweet below.

"The tweet, which simply states, '15 years ago, rihanna [sic] released 'umbrella' [sic]', contains over two minutes of the official music video for Rihanna's performance of 'Umbrella.' The infringing tweet garnered over 221,000 views and nearly 15k 'likes'," the music companies write.

rihanna

These numbers don't mean that the platform itself is doing anything wrong. Under the DMCA, which Musk referred to as a plague, services such as Twitter are shielded from liability under certain conditions. But this safe harbor doesn't apply here, the music companies suggest.

DMCA Takedowns & Repeat Infringers

The complaint alleges that Twitter's response to DMCA takedown notices is sub-par. Since December 2021, the National Music Publishers Association (NMPA) has sent over 300,000 formal infringement notices, many of which didn't lead to immediate removals.

"Despite claiming to take down tweets in response to an infringement notice within hours or minutes, Twitter routinely waits much longer before acting, if it acts at all."

"Twitter's incentive not to act expeditiously is clear. Twitter wants to maximize the benefit it receives from the infringing content on its platform before the tweet is deleted. As a general proposition, the value to Twitter of a tweet decreases over time."

Under the DMCA, online platforms are required to implement a repeat infringer policy that allows for the termination of accounts that persistently share copyrighted content without permission.

The music companies note that Twitter used to have the term "terminate" in its copyright policy but in 2018 that wording was changed to "suspend." These suspensions are not always permanent, the labels say.

"Even on the rare occasions where Twitter suspends an account used to infringe repeatedly, Twitter often reactivates that account after a short period of time. Twitter has suspended and reactivated certain accounts multiple times," the complaint reads.

When accounts come back online, Twitter is more lenient to accounts with larger follower counts according to the music companies. The suggestion is that these accounts are more valuable to Twitter's business model.

Hundreds of Millions

Based on these and other arguments, the complaint holds Twitter liable for both direct and contributory copyright infringement. Twitter's actions cause substantial irreparable harm and the rightsholders seek compensation in return.

The complaint comes with a provisional list of over 1,600 musical works. For each of these, the rightsholders demand the maximum statutory damages of $150,000 per work, which means that there is roughly a quarter of a billion dollars at stake.

Interestingly, this isn't the first lawsuit of this size against Twitter. Earlier this year, celebrity photo agency Backgrid filed a similar case against Twitter, demanding $229 million in damages.

A copy of the music publishers' complaint against Twitter, filed at the U.S. District Court for the Middle District of Tennessee in Nashville is available here (pdf)

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

 
 
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