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Jake Paul PPV Boxing Piracy Amnesty Misled The Public, Lawsuit Claims
Andy Maxwell, 01 Feb 09:53 AM

TrillerIn a matter of weeks, the controversial Jake Paul vs. Ben Askren PPV boxing event will turn three years old and still be remembered for all that went wrong.

After the H3 Podcast aired a short clip of the event on YouTube, featuring a fight that lasted just 119 seconds, Triller filed a copyright infringement lawsuit against creators Ethan and Hila Klein. Even today, it still seems nowhere near done.

What began as a fairly bitter and personal affair has left both sides with little to celebrate since the lawsuit was filed in 2021. With no obvious benefit beyond money for the overall winner, not losing face down on the canvas appears to be the only discernible prize.

Convoluted Lawsuit Finds Knockout Punch Elusive

More detailed background on the case is available here. In summary, H3 says that when it showed the fight along with biting commentary on YouTube, that was fair use, even though the video shown was sourced from a pirated copy of the PPV event.

For its part, Triller disagrees, bitterly.

Last week, Ted Entertainment, Inc. (TEI), the company behind various H3-branded channels, filed a counter-complaint against counter-defendant Triller. TEI's focus is an amnesty program widely publicized by Triller in the wake of the Paul vs. Askren fight.

For a payment of just $49.99, Triller said that people who pirated the PPV could avoid being targeted in legal action that would demand $150,000 from each and every person who watched the fight without paying for it. TEI says the promotion of the amnesty program was misleading and deceptive.

"In the course of advertising and promoting its so-called 'amnesty program' Triller made false and misleading statements that TEI's podcast episode entitled Jake Paul Fight Was A Disaster….infringed the Broadcast and that anyone who viewed the Podcast engaged in copyright infringement," TEI informs the court.

"Even worse, Triller made false and misleading statements about the financial ramifications of watching the Podcast to persuade the public to pay Triller $49.99 each to participate in Triller's so-called amnesty program. This counterclaim is directed at exposing Triller's false and misleading statements and force it to account for its deception."

TEI Watched a Pirated Live Stream to Avoid Giving Paul Money

TEI's counter-complaint begins with a potted history of its critique of Jake Paul. TEI accuses Paul of engaging in "highly aggressive, manipulative and avaricious marketing practices to his child audience to induce them to purchase his merchandise." Jake's brother, Logan, is described as equally problematic, but the focus is on Jake's boxing career and TEI's scathing criticism.

"TEI produced episodes on the H3 Podcast Channel that criticized Jake Paul's boxing matches as being horribly lopsided in favor of Jake Paul because he was either significantly larger or younger than his opponents," TEI says.

"These episodes produced by TEI also criticized Jake Paul's boxing matches as cash grabs intended to bait the audience to pay steep pay-per-view prices in the hope of seeing Jake Paul defeated."

After describing Paul's matchup with Askren as a "farce that degraded the sport of boxing," at a PPV price point that was "prohibitively expensive for his target audience," TEI makes an unexpected admission.

Before reviewing the fight on YouTube, TEI employees necessarily needed to watch the fight. However, since that would mean handing over cash to the benefit of Jake Paul, that option was ruled out.

"TEI, however, did not want to provide any financial support for Jake Paul (or for any other endeavor involving Jake Paul). Consequently, on April 17, 2021 (i.e., the day of the Broadcast), TEI employees watched an unauthorized stream of the Broadcast on the Internet," TEI informs the court.

"TEI did not make a simultaneous copy of the Broadcast when it was viewed on April 17, 2021. TEI did pay the $49.99 viewing fee for the Broadcast at a later date."

Triller's Amnesty Program

TEI says that on or around May 3, 2021, Triller's head of piracy, Matt St. Claire, sent a press release to various media outlets that advertised and promoted Triller's amnesty program. TEI uses sections of a subsequent Reuters article to support its claims that Triller's statements not only misled the public, but did so at the expense of the podcast.

TEI-triller-statements

"The aforementioned statements from the Triller Press Release gave the false and misleading impression of fact that: (1) the Podcast itself constituted copyright infringement; (2) anyone who viewed the Podcast was liable for copyright infringement; (3) that the potential exposure for each view of the Podcast was up to $150,000 per view; (4) that TEI runs a criminal enterprise; and (5) TEI resold the Broadcast and profited from doing so," TEI continues.

Since Reuters articles are widely syndicated, Triller's statements also appeared in articles published elsewhere. TEI claims that the substantial audience led to "countless online posts" in which the company was labeled a criminal copyright infringer.

Overall, TEI says that a substantial number of people "were deceived (or had a tendency to be deceived)" into believing that since they watched the H3 podcast, they were also liable for infringement.

Reasons for People to Settle

TEI says that the above led some to believe that the only way to avoid liability was to participate in Triller's amnesty program. To encourage them to do so, it's alleged that Triller offered to drop the lawsuit against TEI if it paid a settlement of $900,000 and made the following public statement:

settleandshout

"By this statement, Triller requested TEI to falsely represent: (1) that TEI paid millions of dollars to settle the Initial Complaint – despite Triller demanding only $900,000; and (2) TEI was knowledgeable of Triller's watermark technology – as no such information was shared with TEI," the company adds.

"The clear purpose of this statement, just like Triller's Press Release, was to advertise and promote Triller's so-called amnesty program (in general) and to TEI's audience (in particular)."

TEI says that the alleged conduct above caused it to suffer financial loss and reputational damage. The company requests a judgment for disgorgement of Triller's profits, compensation for its losses, an award for treble damages under the Lanham Act, plus costs and attorneys' fees.

TEI's counter-complaint against Triller Fight Club II is available here (pdf)

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

ISP Suggests That Record Labels Can Sue Torrent Client Developers
Ernesto Van der Sar, 31 Jan 10:10 PM

justiceLate 2022, several of the world's largest music companies including Warner Bros. and Sony Music prevailed in their lawsuit against Internet provider Grande Communications.

The record labels accused the Astound-owned ISP of not doing enough following complaints about pirating subscribers. Specifically, the labels alleged that the company failed to terminate repeat infringers.

The trial lasted more than two weeks and ended in a resounding victory for the labels. A Texas federal jury found Grande guilty of willful contributory copyright infringement, and the ISP was ordered to pay $47 million in damages to the record labels.

$47 Million Appeal

Last September, Grande filed its opening brief in which it again argued that the lower court reached the wrong conclusion. Internet providers shouldn't be held liable for pirating customers based on third-party allegations, the company noted.

Among other things, the ISP believes that it shouldn't have to terminate Internet access so easily. This view was supported by several telecom industry groups, who all object to disconnecting subscribers' internet access based on copyright claims.

The record labels countered the appeal, arguing that the jury's verdict should be upheld. Any other outcome would make it almost impossible to tackle the online piracy problem.

The labels explained that ISPs play a central role in BitTorrent-based piracy, as they are the only ones who can link an IP-address to a subscriber. This means that when rightsholders or their anti-piracy partners sent infringement notifications to Grande, the ISP was the only party that could address this conduct.

Grande Responds to Labels

This week, Grande submitted a reply brief in which it counters the music companies' arguments. The ISP maintains that it shouldn't be held liable for pirating subscribers, citing last year's 'Twitter vs. Taamneh' Supreme Court ruling.

The U.S. Supreme Court held that social media platforms aren't liable for ISIS terrorists who used their services to recruit and raise funds. In a similar vein, Grande believes that it shouldn't be held liable for subscribers who pirate content.

The record labels previously argued that the Supreme Court ruling shouldn't be directly translated into a copyright context. That would essentially change the concept of contributory copyright infringement based on a case that has nothing to do with copyright, they reasoned.

Understandably, Grande believes that the Supreme Court decision is directly relevant and quite essential.

"The central contributory copyright infringement issue before the Court is whether providing internet service to a direct copyright infringer, standing alone, is sufficient to support contributory liability. The Supreme Court recently made clear that it is not," the ISP writes.

Grande cites the Supreme Court, which concluded that it would "run roughshod over the typical limits on tort liability" to "effectively hold any sort of communication provider liable for any sort of wrongdoing merely for knowing that the wrongdoers were using its services and failing to stop them."

"Dramatic Expansion of Copyright Liability"

The ISP notes that the record labels are essentially asking the Court to authorize a dramatic expansion of secondary copyright infringement liability. This means that if an ISP fails to take "simple measures" to stop piracy, it becomes responsible for the activity.

However, if the court of appeals relies on the recent Supreme Court ruling, Grande should not be held liable. This leaves the court with two options, Grande says.

(1) Follow the Supreme Court's precedents on the proper scope of secondary liability for copyright infringement (as Grande argues)

(2) Deem those precedents inapplicable and instead expand contributory liability (as the district court did) by adopting the Ninth Circuit's "simple measures"

In its attempt to avoid liability, Grande explicitly points a finger at other parties in the BitTorrent ecosystem, while also highlighting that rightsholders have the option to sue pirates directly.

Suing Pirates, Torrent Sites, or Torrent Client Devs

The record labels previously argued that it's important to hold ISPs liable because they are the only party that can match IP addresses to individual subscribers; Grande doesn't deny that. Instead, it points out that rightsholders can use the information to sue pirates directly.

"They can file a John Doe lawsuit against an alleged infringer known only by IP address and then serve a subpoena on the ISP to obtain their identity," Grande explains.

The Supreme Court rejected the claim that Twitter and others aided and abetted terrorist activity because it didn't "consciously and culpably" participate in the illegal activity. According to Grande, Internet providers are even further distanced from any wrongdoing.

Another option would be to go after the operators of torrent sites or the developers of BitTorrent clients, the ISP adds.

"The Labels can also pursue claims against people who actually induce and encourage BitTorrent file sharing, like the creators and distributors of BitTorrent software and the operators of BitTorrent websites," Grande writes.

"That it may be easier for the Labels to sue Grande is not a legitimate basis for expanding the scope of common law contributory liability."

torrent client dev

Grande doesn't explain why or when developers of torrent clients should be held liable for piracy. Popular torrent clients and sites that distribute this software are typically content-neutral and don't actively encourage piracy. That is similar to the defense Grande relies on.

"ISPs that actively encourage infringement — for example, by instructing customers on how to engage in piracy — would be contributorily liable. ISPs that merely provide content-neutral internet access to their subscribers would not."

Material Contribution

The ISP adds that it did not materially contribute to any copyright infringement. Instead, it argues that its actions remained distanced from any piracy activity.

"Grande neither 'facilitated' nor 'provided tools for' copyright infringement, however one might understand those terms. The only affirmative thing Grande did was provide content-neutral internet service to all its customers"

The reply again brings up the suggestion that there are many other actors who, unlike Grande, directly enable BitTorrent file-sharing. In addition to mentioning torrent client developers, BitTorrent inventor Bram Cohen, tracker operators, and hosting providers all get a mention.

piratesuggest

"Each of these actors plays a direct role in the sharing of copyrighted music files over BitTorrent. Grande, in contrast, stands far removed from the infringing conduct," Grande writes.

Going Forward

We assume that many of the mentioned parties will entirely disagree with the insinuation that they could be liable for piracy. Similarly, the record labels will have a different outlook on the matter as well, as will become clear as the case progresses.

The above is just a small selection of the arguments and counterpoints presented in the 70-page reply brief. Among other things, it also reiterates that would be a "draconian overreaction" to terminate Internet connections because someone in a household may be pirating.

What's clear, however, is that the stakes are high in this case. Not just for the $47 million that's on the line here, but also for other ISPs and their subscribers.

A copy of Grande's reply brief, filed at the U.S. Court of Appeals for the Fifth Circuit, is available here (pdf).

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

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