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A wide variety of public interest groups, trade organizations, and law professors have come out to support ISP Cox Communications in its effort to reverse a piracy liability ruling. In various amicus briefs, they inform the Court of Appeals for the Fourth Circuit that if the current verdict stands, many people risk having their Internet access cut off based on one-sided piracy accusations, which would be extremely harmful. Two 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 disagreed 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. Cox is not alone in this assessment. This week, a variety of organizations and groups have submitted amicus curiae briefs to the court, supporting Cox’s call to reverse the verdict. All these groups highlight the harm Internet disconnections will cause. Law Professors Back Cox The first amici curiae brief comes from seventeen intellectual property law professors, who are connected to universities throughout the United States. They highlight various legal arguments. For example, the professors explain that Cox shouldn’t be held liable for vicarious copyright infringement, as there is no evidence that its policies acted as a ‘draw’ to potential pirates. On the contrary, Cox’s anti-piracy policy appeared to be more strict than those of its competitors. “There was no evidence in this case that customers subscribed to Cox because of any knowledge or expectation about how it treated infringement. Indeed, the record shows no evidence that customers subscribed to Cox for any reason other than to access the internet for its wide variety of legal uses,” the professors write. Disconnections are Disproportionate Keeping the current verdict intact will violate internet principles, the professors note. It causes disproportionate harm because ISPs have to closely monitor the traffic of subscribers, which invades privacy. Alternatively, they can terminate accounts of customers based on third-party allegations, which would be harmful as well. “If ISPs are forced to engage in proactive enforcement, they have a limited set of actions they can take to control alleged infringement. Their primary tool — terminating accused subscribers from the internet altogether — is a blunt instrument that would lead to remedies disproportionate to any violation. “The COVID-19 pandemic has reinforced the internet’s importance,” the professors add (pdf). “A loss of internet service, now more than ever, could seriously harm almost every aspect of an individual’s personal and professional life” EFF and Others Chime In Similar arguments were made by other amici curiae. This includes a broad coalition of the EFF, Public Knowledge, the Center for Democracy and Technology, and various library organizations. Their brief (pdf) stresses that Internet terminations are not required under the DMCA, as there are other options to deter pirates. If ISPs are required to disconnect users, based simply on third-party complaints, it will lead to catastrophic consequences. “More aggressive termination policies would punish the innocent and guilty alike,” the organizations warn the court. “Distance learning, telework, and telemedicine have become essential during the pandemic and are likely to remain so. For many or even most subscribers, loss of internet access would be catastrophic.” Internet Association’s Power Company Analogy A similar warning is repeated in the amicus curiae brief from the Internet Association. The group argues that ISPs can indeed stop piracy by terminating Internet access, but that doesn’t make it a reasonable solution. If an ISP can be held liable for copyright infringement because it fails to terminate alleged pirates, would the same apply to the power company that supplies the energy for the pirating device? “Termination of internet access to a house, business, or smaller ISP is not like removing or disabling access to infringing content,” the Internet Association writes (pdf). “It is more like cutting off electricity to a building. Doing so may stop illegal downloading from occurring on the property, but failure to do so does not make the power company contributorily liable for whatever takes place.” Using a Cannon to Shoot a Mosquito In yet another amici curiae brief, the broadband and wireless organizations CTIA, NTCA, and USTelecom, present another analogy. In addition to various legal arguments, the groups equate the use of Internet terminations to stop piracy to shooting cannons to kill a mosquito. It may work, but at what cost? “This is a quintessential case of using a cannon to kill a mosquito. The consequences of denying consumers access to the internet based on unverified allegations of prior copyright infringement cannot be overstated,” the organizations write (pdf). “It has become particularly evident over the past year that the internet has become not only an essential platform for the exercise of free speech, but a critical means of access to education, employment opportunities, vaccines, medical care, defense and vindication of legal rights, and access to food and other essential products and services.” All the highlighted briefs support Cox’s request to reverse the district court’s liability ruling. In the weeks to come, the music companies are expected to share their arguments, which will likely be backed by other copyright holders in various amicus briefs.

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Every day, people who download and share pirated content receive DMCA notices via their ISPs, warning them to cease and desist their infringing behavior. While the majority of these notices are accurate, one Ubuntu user says he has just been targeted by an anti-piracy company alleging that by torrenting an OS ISO released by Ubuntu itself, he breached copyright law. Two decades ago, the BitTorrent protocol revolutionized peer-to-peer (P2P) file-sharing. The content-agnostic system allowed people to efficiently share and download even the largest files and soon grew to become the dominant method of transfer for millions of file-sharers. Over the years, people have shared all kinds of content using torrents and it quickly became associated with mass copyright infringement of movies, TV shows, music and everything in between. However, BitTorrent is also used to distribute large volumes of data with the blessing of rightsholders, with the sharing of Linux distros a prime example. Indeed, large companies such as Ubuntu owner Canonical actively encourage the distribution of their packages via BitTorrent, even going as far as operating their own tracker. This is effectively a green light for users to obtain Ubuntu using BitTorrent and is universally considered to be entirely safe. However, a development yesterday caused mass confusion when a user was accused of copyright infringement via a notice from his ISP. Anti-Piracy Firm Sends DMCA Notice Against Comcast User Posting to Reddit’s /r/linux sub-Reddit, a forum with more than 656K subscribers, ‘NateNate60’ reported the unthinkable. After downloading an official Ubuntu ISO package (filename ubuntu-20.04.2.0-desktop-amd64.iso) he says he received a notice from Comcast’s Infinity claiming that he’d been reported for copyright infringement. “We have received a notification by a copyright owner, or its authorized agent, reporting an alleged infringement of one or more copyrighted works made on or over your Xfinity Internet service,” the posted notice reads. NateNate60 wisely redacted the notice to remove the ‘Incident Number’ and the precise time of the alleged infringement to protect his privacy but the clam was reported filed with Comcast on May 24, 2021. “The copyright owner has identified the IP address associated with your Xfinity Internet account at the time as the source of the infringing works,” it continues, adding that NateNate60 should search all of his devices connected to his network and delete the files mentioned in the complaint. Detail of the Allegedly-Infringing Content and DMCA Notice The allegedly infringing content is the 64-bit Ubuntu 20.04.2.0 LTS release but the first big question is whether the file is actually the official release from Canonical. Given that the listed hash value is 4ba4fbf7231a3a660e86892707d25c135533a16a and that matches the hash of the official release, mislabeled or misidentified content (wrong hash, mislabeled file etc) appears to be ruled out. Indeed, the same hash value is listed on Ubuntu’s very own BitTorrent tracker and according to NateNate60, this is where he downloaded the torrent that led to the DMCA notice. It doesn’t get much more official than that. According to the DMCA notice sent by Comcast, the complainant wasn’t Ubuntu/Canonical but an anti-piracy company called OpSec Security, which according to its imprint is based in Germany. TorrentFreak has contacted OpSec for a comment on the DMCA notice but at the time of writing the company is yet to respond. Implications of the DMCA Notice It is certainly possible for someone to fake a DMCA notice (and also cause outrage by choosing controversial content such as Ubuntu) so we have also contacted Canonical for its take on the claims being made. While we wait for the company to weigh in, it seems possible that this is some kind of error, one that could be easily triggered by someone cutting-and-pasting the wrong hash value into a BitTorrent monitoring system. That being said, there can be consequences even when erroneous DMCA notices aren’t properly handled. Presuming the notice is genuine (albeit sent in error), Comcast needs to be informed that mistakes have been made. The ISP has a repeat infringer policy and given the current hostile environment, terminating users is certainly on the agenda. Indeed, the notice states just that. “We remind you that use of our service in any manner that constitutes an infringement of any copyrighted work is a violation of Comcast’s DMCA Policy and may result in the suspension or termination of your service and account,” it warns. Arguably unwisely, however, NateNate60 says he isn’t going to take the matter up with Comcast. “I really don’t want to risk them shutting off my Internet access over this stupid thing so I’m probably just going to ignore it,” he wrote on Reddit. Again, we need to wait for responses from OpSec and Ubuntu explaining why this notice was sent but not contesting an erroneous DMCA notice has implications. For example, should NateNate60 suddenly get another couple of similar notices (regardless of whether they are genuine or sent in error), Comcast may feel that in order to retain its safe harbor under the DMCA, terminating the account might be its only option. At that point the damage has been done and it could prove even more difficult to get the account reinstated. Also, if this notice is indicative of a broader issue, it seems unlikely that NateNate60 will be the only recipient of a ‘strike’ against his account for downloading/sharing official Ubuntu torrents. Raising the issue quickly will allow the parties to see what went wrong here (if that’s indeed the case) and prevent it from happening again.

Deep Impact

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Njalla is a privacy-focused domain name service founded by Pirate Bay founder Peter Sunde. The company helps to keep domain name owners anonymous and is generally skeptical of legal threats. Over the past weeks, however, Njalla found itself in a position where it had to take several accused 'pirate' sites offline, to keep other customers safe. Four years ago Pirate Bay founder Peter Sunde helped to launch Njalla, a privacy-oriented domain registration startup. The company offers a proxy for domain name registrars who don’t want their personal details listed in Whois records. As such, it’s effectively operating as a privacy shield. “Njalla is needed because we’re going the wrong way in society regarding people’s right to be anonymous. With social media pressuring us to be less anonymous and services being centralized, we need alternatives,” Sunde told us at the time. This approach has attracted thousands of customers who, for various reasons, choose to hide their identities. While these website operators are happy, copyright holders have criticized Njalla for protecting pirate sites. Copyright Holders are Not Happy Last fall the RIAA and MPAA reported the company to the US Trade Representative, characterizing it as a notorious market that aids pirate sites. While Njalla disagrees with this characterization, the company is known for digging its heels in the sand when it comes to legal pressure. Njalla complies with ‘appropriate’ court orders but it has also brushed off several legal complaints and requests, even from the US Government. Recently, however, the pressure became too large for Njalla to ignore. ‘Pirate’ Domains Go Offline Over the past week, TorrentFreak noticed that several domain names registered by Njalla had become unavailable. This includes 1337x.is, Flixtor.is, Getpopcorntime.is, and stream2watch.is. The domains were updated to Njalla-owned nameservers and simply stopped resolving. As it turns out, Njalla took this action in response to legal pressure from Iceland. Local copyright holders went after the .is domain registry (ISNIC), which received several abuse complaints and legal threats over Njalla-registered domains. Take Action Or Lose All .is Domains ISNIC then referred the matter to Njalla, urging the company to take action. If not, Iceland’s registry would have the right to suspend Njalla’s NIC-handle, and all domains connected to it. A Njalla spokesperson informs TorrentFreak the company’s hand was forced, and it saw no other option than to take the domains ‘offline’. If Njalla had decided to ignore the request, all other .is domains under their control would have been at risk. That includes the domains of many other customers. In an ideal situation, Njalla would fight this type of pressure tooth and nail but in this case, it would’ve done more harm than good. Flixtor Understands At the time of writing, all of the affected sites using .is domains have continued doing business under new domains. The operator of Flixtor told us that he is happy with how Njalla handled the matter, as there was clearly no other option. The only downside for Flixtor is a significant loss of Google traffic. As a result, many users now end up at fake sites, filled with malware and phishing scams. ISNIC Takes Stand Against Abuse When we asked ISNIC about the matter, the registry said that it has seen a rise in abuse complaints, which it has to address properly and swiftly. “An increasing number of what is called ‘abusive domain registrations’ is a real problem/concern for all serious domain name Registries. For us at ISNIC, the integrity of the .is domain as such plays an important role in our day-to-day work,” ISNIC CEO Jens Pétur Jensen says. ISNIC confirmed that if Njalla had not have taken action, it would’ve suspended the company’s NIC-handle based on Article 12 of the .is domain rules. As mentioned earlier, that would mean that all Njalla-registered .is domains would’ve gone offline. Pressure After talking to various parties it is clear that a lot of legal pressure is being applied in the background. Copyright holders are pressuring ISNIC which in turn has been pressuring Njalla. Ultimately, copyright holders are trying to find out the identities of those who operate these alleged pirate domains. However, since Njalla is the official owner according to Whois data, ISNIC can’t help with this. Unless they change the rules to prohibit proxy registrations, perhaps. According to Njalla, there is also an ongoing court case in Iceland to find out who the end-users of these domains are, so it’s likely that we haven’t heard the last of this.

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