Pirate Sites Must Pay Legal Costs of Own Blockade, Court Rules

stop-blockedContinuing with the blocking campaign spreading around Europe, several Hollywood studios recently applied to a court in Norway to have seven ‘pirate’ sites blocked at the ISP level.

Warner Bros, Paramount, Twentieth Century Fox, Universal, Sony, Disney, Columbia and several local industry groups argued that the sites – The Pirate Bay, ExtraTorrent, Viooz, PrimeWire, Swefilmer, DreamFilm and Movie4K – infringe their copyrights.

Local ISPs including Telenor, TeliaSonera, NextGenTel and Altibox were named as defendants in the case alongside Pirate Bay founder Fredrik Neij and the alleged operator of Viooz, Bakrie Abubakr.

The process was handled in writing by the Oslo District Court over the summer, so the public have had no access to proceedings. In fact, news of the lawsuit broke only yesterday, alongside estimates that the court would make up its mind sometime next week.

In the event the decision came much sooner. Early this afternoon the District Court sided with the mainly Hollywood studios and ordered the seven sites named in the lawsuit to be blocked by the leading ISPs in the country.

Telenor, Norway’s leading broadband provider, welcomed the decision.

“Telenor is very pleased with the ruling. The principles that have always been important for us are followed in the ruling,” said Communications Director Torhild Uribarri.

“For Telenor it has always been important to ensure that the legal system is being followed so that it is the courts, not the Internet providers, who will decide whether a site should be shut down.”

Also of importance to Telenor is the Court’s decision to treat all Internet service providers equally. When a blocking order is handed down today and in future, it should be directed at all ISPs

Telenor also praised the Court for “a very thorough examination of the case” and for ensuring that strict standards are applied before a blocking order is handed down.

“To block a site the damage it causes must be very large, the site must be popular in Norway, the site must not create its own content and infringement on the site should be extremely difficult to prevent or counteract,” Uribarri said.

Another issue tackled by the Court was that of costs. Normally the plaintiffs (the studios) and the ISPs would battle this out between themselves but in this case the Court ruled that the pirate sites should pay.

According to the ruling the owners of the file-sharing sites should each be billed 231,964 kroner ($28,100) to be divided up between various rightsholders and their associated groups. The split is as follows:

$1424 each to Disney, Paramount, Columbia, Twentieth Century Fox, Universal and Warner Bros, $8,500 to the Norwegian Society of Composers and Lyricists, $6,830 to the Norwegian Videograms Association, $1,900 to Video Industry Felleskontor and $2,280 to the Norwegian Film Distributers Association.

The ISPs were given two weeks to implement DNS blocks of several Pirate Bay domains including thepiratebay.se, thepiratebay.com, thepiratebay.net, thepiratebay.org, thepiratebay.mn, thepiratebay.gd and thepiratebay.la.

Three Extratorrent domains (.cc, .com and .ws), eight Movie4k domains, plus several for PrimeWire, Viooz, Swefilmer and DreamfilmHD complete the list.

The court indicated that the order (which is initially valid for five years) can be updated with new domains as they are put into action.

The sites themselves were also given two weeks to settle their bills with Hollywood. It seems unlikely that those will ever be paid.

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No Dallas Buyers Club Piracy Appeal in Oz, Company Considering Options

In April, Aussie file-sharers let out a collective groan when the company behind the movie Dallas Buyers Club (DBC) won the right to obtain the personal details of almost 4,800 individuals said to have downloaded and shared the movie without permission.

However, things didn’t go to plan. As six ISPs stood by ready to hand over the information, the Federal Court told DBC that before allowing the release of the identities it wanted to see the letters the company intended to send out to alleged infringers. Justice Nye Perram wanted to avoid the so-called ‘speculative invoicing’ practices seen in other countries in recent years.

In a mid-August ruling it became clear that Justice Perram was right to exercise caution.

DBC did intend to demand thousands from alleged infringers, from the cost of single purchase of the movie and a broad license to distribute, to attempting to factor in damages for other things people may have downloaded. All but the cost of the film and some legal costs were disallowed by the Court.

In the end and in order to make it financially unviable for DBC to go against the wishes of the court, the Judge told DBC it would have to pay a AUS$600,000 bond before any subscriber information was released. The company didn’t immediately accept that offer and was given a couple of weeks to appeal. That deadline expired last Friday.

But while those who believe they might have been caught in the dragnet breathe a sign of relief, the company is warning that it’s not done yet. Speaking with itNews, Michael Bradley of Marque Lawyers, the law firm representing DBC, said that while an appeal was considered risky, other options remain.

“Appeals are always hard, it’s an expensive course, and it’s unpredictable – if one judge has taken a particular view, you’re taking a gamble on whether three other judges are going to take a different view,” Bradley said.

“We think there may be another way of achieving the outcome [we want] without having to go through an appeal.”

DBC believes that by reworking the way it calculates its demands, the Judge will see its claim in a different light. One of the avenues being explored is the notion that pirates can not only be held liable for their own uploading, but also subsequent uploading (carried out by others) that was facilitated by theirs.

In his August ruling, Justice Perram said he had “no particular problem” with that theory but did not consider it in his ruling since DBC provided him with no information. Bradley believes that door remains open for negotiation.

“Whether an individual should be liable for damages based on other activity is not a closed subject,” Bradley says. “So there may be a different way of approaching it and coming up with something [Justice Perram] is more comfortable with.”

The idea that file-sharers should somehow be held liable for the activities of other file-sharers is an extremely complex one that will be hard if not impossible to prove from a technical standpoint.

While it could be shown that file-sharer ‘A’ entered a Dallas Buyers Club movie swarm before file-sharer ‘B’, there is no way of showing that ‘B’ benefited in any way from the activity of ‘A’. DBC has no access to any information that proves information was shared between the two, or even between the two via third parties.

The company could take a broader view of course, and claim that all pirates were equally responsible for the resulting infringement in the swarm. But that amounts to each person being held responsible for their own infringement and the judge has already determined that to be the purchase price of the movie.

While DBC may yet take a second bite at the cherry (it has little to lose having invested so much already in Australian legal action), it wouldn’t come as a surprise if the company decides to make its money elsewhere. There are easy pickings to be made in the United States and the UK, and parts of Scandinavia are now also being viewed as troll-friendly. Tipping money down the drain in Oz might not be the best option.

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US Govt. Denies Responsibility for Megaupload’s Servers

megaupload-logoIn a few months’ time it will be four years since Megaupload’s servers were raided by U.S. authorities. Since then, virtually no progress has been made in the criminal case.

Kim Dotcom and his Megaupload colleagues are still awaiting their extradition hearing in New Zealand and have yet to formally appear in a U.S. court.

Meanwhile, more than 1,000 Megaupload servers from Carpathia Hosting remain in storage in Virginia, some of which contain crucial evidence as well as valuable files from users. The question is, for how long.

Last month QTS, the company that now owns the servers after acquiring Carpathia, asked the court if it can get rid of the data which is costing them thousands of dollars per month in storage fees.

This prompted a response from a former user who wants to preserve his data, as well as Megaupload, who don’t want any of the evidence to be destroyed.

Megaupload’s legal team suggested that the U.S. Government should buy the servers and take care of the hosting costs. However, in a new filing (pdf) just submitted to the District Court the authorities deny all responsibility.

United States Attorney Dana Boente explains that the Government has already backed up the data they need and no longer have a claim on the servers.

“…the government has already completed its acquisition of data from the Carpathia Servers authorized by the warrant, which the defendants will be entitled to during discovery,” Boente writes.

“As such, there is no basis for the Court to order the government to assume possession of the Carpathia Servers or reimburse Carpathia for ‘allocated costs’ related to their continued maintenance.”

The Government says it handed over its claim on the servers early 2012 after the search warrant was executed and the hosting company was informed at the time. This means that the U.S. can and will not determine the fate of the stored servers.

The authorities say they are willing to allow Megaupload and the other defendants to look through the data that was copied, but only after they are arraigned.

In any case, the U.S. denies any responsibility for the Megaupload servers and asks the court to keep it this way.

“…the United States continues to request that the Court deny any effort to impose unprecedented financial or supervisory obligations on the United States related to the Carpathia Servers,” the U.S. Attorney concludes.

Previously the U.S. and MPAA blocked Megaupload’s plans to buy the servers, which is one of the main reasons that there is still no solution after all those years.

The MPAA also renewed its previous position last week (pdf). The Hollywood group says doesn’t mind if users are reunited with their files as long as Megaupload doesn’t get hold of them.

“The MPAA members’ principal concern is assuring that adequate steps are taken [to] prevent the MPAA members’ content on the Mega Servers in Carpathia’s possession from falling back into the hands of Megaupload or otherwise entering the stream of commerce,” they write.

The above means that none of the parties is willing to move forward. The servers are still trapped in between the various parties and it appears that only District Court Judge Liam O’Grady can change this.

It appears to be a choice between saving the 25 Petabytes of data or wiping all servers clean.

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Movie Studios and Record Labels Target Pirate Bay in New Lawsuit

tpbIn 2009, the IFPI and several local movie studios demanded that Norwegian ISP Telenor should block The Pirate Bay. The ISP refused and legal action commenced.

A subsequent ruling determined that there was no legal basis for site blocking and in 2010 a rightsholder appeal also failed. If sites were to be blocked, a change in the law was required.

In May 2011 the Ministry of Culture announced that it had put forward proposals for amendments to the Copyright Act, to include web blocking, and on July 1, 2013 the new law came into effect.

After more than two years of threats, local and international copyright holders have now made good on their promises to use the new legislation to stamp down on piracy.

In a lawsuit filed at the Oslo District Court, Disney, Warner Bros. and Sony plus local producers and representatives from the recording industry are teaming up to sue eleven local ISPs. Also targeted in the action are the alleged operators of eight ‘pirate’ sites.

Although the sites are yet to be publicly revealed, The Pirate Bay is among them and site co-founder Fredrik Neij is named as a party in the case.

According to Dagens Næringsliv, studios and labels filed an initial complaint with ISPs back in April via anti-piracy outfit Rights Alliance. It was sent to the country’s largest ISP Telenor plus others including Get, NextGenTel and Altibox.

The rightsholders’ demands are familiar. All the main local ISPs must block The Pirate Bay and related sites so that subscribers can no longer access the domains directly.

“We understand licensees’ struggle for their rights. For us it is important that the court must take these decisions, and that we do not assume a censorship role,” says Telenor communications manager Tormod Sandstø.

Also of interest is how the legal process is being handled. The Oslo District Court is dealing with the case in writing so the whole process is completely closed to the public. After processing the case during the summer, early estimations suggest that the court will have made its decision within the next 10 days.

The news follows several key Norwegian anti-piracy developments in 2015. In March, an investigation by Rights Alliance culminated in a police raid against local pirate site Norskfilm.

In July, Rights Alliance placed the blame for a piracy explosion firmly on the shoulders of Popcorn Time, with the group announcing last week that up to 75,000 users of the application could now be contacted by mail. The message they will receive remains unclear but comments from Rights Alliance during the past few days have leaned away from lawsuits.

Interestingly, Popcorn Time related sites are not among the batch of domains currently under consideration by the Oslo District Court as the service was not considered a priority when the original Rights Alliance complaint was being put together. Should the current blocking attempt prove successful, expect Popcorn Time domains to appear in an upcoming lawsuit.

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