Activision and Infinity Ward were hit with a copyright infringement lawsuit in February alleging that the companies made a direct copy of a character called "Cade Janus" and relabeled her as "Mara" in Call of Duty: Modern Warfare. In a response filed this week, the defendants provide a laundry list of affirmative defenses including fair use and the existence of an implied license. Early February, writer, photographer and videographer Clayton Haugen filed a copyright infringement lawsuit against Activision, Infinity Ward, and Major League Gaming Corp. Haugen claimed to be the copyright owner of two literary works and 22 photographs of a character he named ‘Cade Janus’, the main figure in his story ‘November Renaissance’. He hoped that his story would be made into a film and in 2017 he hired actress, cosplayer, and Twitch streamer Alex Zedra (aka Alex Rogers) to portray ‘Cade Janus’. A series of photographs were taken, which together with his story were presented to film studios, published on Instagram, and in a series of calendars. In his complaint, Haugen alleged that the defendants were on the lookout for a “strong, skilled female fighter” for their game Call of Duty: Modern Warfare but instead of creating their own character, used contractors to hire Zedra. She was allegedly asked to obtain and wear the same clothing and gear used in the original photoshoot, the same makeup artist was hired, and photographs from the original shoot were used as a framing guide, Haugen added. As a result, Haugen said that the defendants had breached his exclusive right to make copies and derivatives of his work and his exclusive right of distribution, demanding all profits attributable to the alleged infringement as compensation. Activision, Infinity Ward and Major League Gaming Fire Back This week the defendants filed their answer to the complaint, admitting various facts such as presenting a female fighter in their game, hiring Zedra/Rogers directly and makeup artist Aeni Domme through a contractor. The companies further admit to using the ‘Mara’ character to market downloadable content for Modern Warfare and acknowledge various claims about the companies’ corporate structures. In respect of most other claims made by Haugen, the companies claim that they “lack knowledge or information” sufficient to “form a belief” as to the truth of the allegations so summarily deny them. However, the defendants did provide some meat in their response. The companies acknowledge that certain works created by Haugen are registered at the Copyright Office but flat-out deny that they “copied Haugen’s Cade Janus photographs without his knowledge or permission, had access to his Cade Janus photographs, or used them as a guide to create ‘Mara’. Claims that the makeup artist was instructed to copy the hair and makeup of Janus are also denied. In respect of Haugen’s claim that he never authorized the defendants to make copies of any part of his ‘November Renaissance’ works and his Cade Janus photographs, including the depictions of the character Cade Janus, the gaming companies admit that Haugen never gave them a “direct, express license to any work identified in the complaint.” Nevertheless, they deny all allegations of copyright infringement. Haugen “Not Entitled” To Jury Trial, Affirmative Defenses In their response, Activision, Infinity Ward, and Major League Gaming Corp first object to Haugen’s call for a trial by jury. “A claim for infringer’s profits is an equitable one and is not triable of right by a jury. Furthermore, a claim for statutory damages is not triable of right by a jury,” they write, adding that in their opinion, Haugen is not entitled to any of the relief requested in the complaint. They also provide a laundry list of affirmative defenses that could excuse them from liability, even if Haugen’s allegations were true. Among these are failure to state to a claim on which relief can be granted but also a free speech and/or fair use angle. “Any use of Plaintiff’s copyrighted materials is protected by the First Amendment of the United States Constitution and/or 17 U.S.C. § 107,” the companies write, adding that Haugen has “unlean hands” after engaging in inequitable behavior. The gaming companies also state that Haugen’s claims are barred in whole or in part by the doctrine of laches, suggesting that the complaint had been filed in an untimely manner and as a result, an equitable claim can not be brought. The defendants also list the doctrine of acquiescence, which infers a form of permission that results from inaction over an extended period of time, along with a failure to mitigate. On the rights front, the Modern Warfare creators say that Haugen is barred from making a claim since he does not own the exclusive rights to “some” of the works, noting that the ‘Mara’ character was independently created and the defendants “had an implied license” to use the materials at issue. Perhaps more fundamentally, the gaming giants note that Haugen is barred from pursuing claims in the Eastern District of Texas because he agreed to the exclusive jurisdiction of state or federal courts in Los Angeles to resolve claims for copyright infringement.

Vulture

Laguna Beach

Raspberry

Czech file-sharing and hosting site Ulož.to has successfully appealed a preliminary court order that required it to block files that contain the word "Charlatan." The broad measure, requested by movie distributor CinemArt, was overturned on appeal and the file-sharing site is now looking for more than $36,000 in compensation. To the global audience Ulož.to may not be a familiar name, but in the Czech Republic it is huge. The file-sharing service is listed among the 40 most-visited sites in the country, and its mobile apps are frequently used as well. Like many services of its kind, Ulož can be used to share a wide variety of files. This is a thorn in the side of many copyright holders whose works appear without permission. This includes the RIAA, which reported Ulož as a notorious pirate site on several occasions. Court Approves ‘Word’ Filter Locally, the site has received pushback from copyright holders as well. Late last year, the Municipal Court in Prague ruled that Ulož must filter and block files that reference the word “Šarlatán” (‘Charlatan’) which is also the name of a Czech movie. The order, requested by movie distributor Cinemart, was set to remain in place until August 2030 but the file-sharing site immediately appealed. According to Ulož, the filtering obligation was too broad. It could also impact files that have nothing to do with the film, violating freedom of speech. “The problem is that the word charlatan is not just a movie charlatan. Widespread censorship of the word would also affect the amount of content that does not violate any rules, thus restricting the freedom of many Internet users,” an Ulož spokesperson says. ‘Charlatan’ Filter Overturned After hearing both sides, the High Court in Prague agreed with Uloz and immediately overturned the preliminary filtering requirement. This is welcomed as a big win by the site, but that’s not enough. The site argues that it made substantial investments to make sure that the filter operated correctly while not harming users in the process. Ulož wants the movie distributor to compensate for these costs. Compensating Costs Specifically, Ulož is seeking 585,000 Czech Koruna (~$27,320) to compensate for the filtering and monitoring costs, and another 200,000 (~$9,340) to cover the legal costs and fees. “The amount of compensation required by us is based on the complexity of the process of assessing individual files while taking into account all exceptions to copyright law,” Ulož notes. “In addition, it took four months before the court acknowledged that this requirement was unjustified and annulled the interim measure, which increased the costs of complying with the interim measure. The costs are high, but it was Cinemart’s decision to use this exceptional tool and bear the risk.” Among other things, Ulož says it hired an external agency to help with the process. This turned out to be quite resource-intensive and, since it was such an extreme measure, compensation is warranted. Legal Battle Continues The damages request is expected to trigger another legal battle where the court will take a detailed look at the allegations from both sides, but the file-sharing site is confident that it will prevail in the end. In any case, using a simple word filter to block copyrighted content is probably not the best solution. Imagine what would happen if YouTube had to filter all videos that use “Charlatan” in the title? That said, there are more effective filtering techniques based on file hashes. These are less prone to false positives as well. As far as we know, Ulož doesn’t use any of these. Not for the Czech translation of Charlatan at least, because a search for Šarlatán returns plenty of results.

Elk

Haiti

Social networking service Triller has filed a $100m lawsuit against 12 'business entities' and 100 John Does who it claims were involved in the illegal streaming of the Jake Paul vs Ben Askren boxing match on April 17. According to Triller, these "cyber-criminals" are responsible for diverting two million PPV buys away from the event. As one of the world’s most recognizable YouTubers, Jake Paul has leveraged his fame to become one of the most controversial names in boxing. Rather than working his way up through the ranks, Paul hand-picks his opponents to appear in so-called “money fights”, ones that have their roots in entertainment rather than the framework of traditional boxing. On April 17, he squared up against MMA veteran Ben Askren, an accomplished wrestler and UFC fighter well known for his lack of striking ability. Paul finished Askren in the first round. The pay-per-view event was a success but according to Triller, the social media platform behind the promotion, the card was dogged by massive piracy. Via a lawsuit filed in a California court, Triller is now hoping to claw back a cool $100m in damages from a number of entities and individuals who streamed the card illegally online. $100m Lawsuit Targets 12 ‘Business Entities’ and 100 John Does Covering several domains and what appear to be individuals, the lawsuit describes FilmDaily.com, AccessTVPro.co, Online2LiveStreams.us, CrackStreamsLive.com, Sports-Today.club, My-Sports.club, BilaSport.com, Trendy Clips, Mike, Your Extra, Eclipt Gaming, and ItsLilBrandon as “unknown business entities” involved in the illegal streaming of the event. 100 John Does also make an appearance. “Through this action, Triller seeks in excess of $100,000,000.00 against Defendants and each of them all of whom are cyber-criminals, for their outright theft and diversion of upwards of 2,000,000 unique viewers by providing them with illegal and unauthorized viewings of the Broadcast of the Jake Paul vs. Ben Askren boxing event,” the complaint reads. According to Triller, the defendants utilized various torrent and streaming sites, including YouTube, to unlawfully upload, distribute, and publicly display the broadcast to the users of the websites, without authorization. The complaint alleges that this was done for-profit via shareable links, including PayPal links, which allowed users to send the defendants money in return for watching the event. “Through their egregious conduct, Defendants also encourage other online users to copy, share, download, distribute and share the Broadcast on the aforementioned websites. Defendants further unlawfully facilitate, participate, and induce other users to engage in the unauthorized reproduction, adaptation, distribution and public display of Plaintiff’s copyrighted Broadcast all to line their own pockets with monies that belong to Plaintiff,” Triller adds. The Defendants According to Triller At this stage, Triller doesn’t appear to know much about its targets. FilmDaily.com is confusingly described as a Nevada entity doing business via FilmDaily.co, a platform that exists to facilitate and induce the sharing of videos and live programming, including that owned by Triller, among its users. AccessTvPro is said to be registered in Arizona while Online2LiveStreams, CrackStreamsLive, Sports-Today.club, BilaSport, and My-Sports.club are all said to do business in California and are broadly accused of the same offenses. Trendy Clips, Mike, Your Extra, Eclipt Gaming, and ItsLilBrandon are all said to do business in California and are separately accused of running a single YouTube channel operating under the ‘Mike’ branding. “Plaintiff is informed and believes, and thereon alleges, that the actions and omissions that serve as the basis for this complaint were undertaken jointly and with the consent, conspiracy, cooperation, and joint participation of all defendants,” Triller claims. Copyright Infringement and Various Other Offenses Triller’s complaint covers several counts, beginning with copyright infringement. The company says that the event was broadcasted via encrypted satellite signal and then retransmitted to cable systems, satellite companies and other licensed content distributors, including Triller’s online platforms. As such, Triller claims copyright in the broadcast and the exclusive right to copy, publicly perform and distribute it. According to Triller, the defendants obtained the broadcast through Internet websites and/or via their own pay-per-view purchases that were intended for private use only. As they failed to obtain permission from Triller when they utilized “various torrent and streaming websites” to upload and distribute the broadcast for profit, they violated the Copyright Act (17 U.S.C. § 501). “As such, Plaintiff is entitled to disgorgement of Defendant’s profits directly and indirectly attributable to Defendants’ infringement of the Broadcast, in an amount to be established at trial, but in no event less than $100,000,000.00,” the complaint adds. Triller goes on to allege breaches of the Federal Communications Act, demanding between $60,000 and $110,000 for each violation, plus acts of conversion that caused damages of “no less” than $100m. All defendants are further accused of breach of contract on the basis that they bought the event from Triller or one of its outlets and then breached the agreed terms by infringing the company’s rights. All of the defendants are further accused of conspiracy to unlawfully access, copy and distribute Triller’s broadcast in exchange for payment from website users, while generating revenue from advertising and causing loss of business to Triller. The company also asks the court to restrain the defendants from any further acts of infringement.

Ted Lasso

IEKA

Reprehensible

Unreal Tournament 2004

Quirky

Bulletstorm

Dozens of major anti-piracy groups and other interested parties are pressuring the European Commission to enhance "know your business customer" checks as part of the planned Digital Services Act. The stakeholders want to ensure that pirate sites can't disappear from one host only to seamlessly reappear at another but believe current plans are too limited. One of the major problems faced by anti-piracy companies and their entertainment industry partners is that of anonymity. A key element of enforcement action is to be able to identify individuals and entities responsible for infringing activity but currently that can prove to be a problem. In many instances, domain companies, hosts and other providers that enable pirate sites to stay online do no conduct due diligence when platforms sign up for service. As a result, putting real-world names to their operators is problematic. Tighten Legislation To Defeat “Bad Actors” As reported last summer, representatives from Europol, the MPA and similar groups bemoaned the “increasingly cross-border dimension of piracy” while championing a verified “Know Your Business Customer” (KYBC) as a practical way to tackle pirate operators. “This type of approach would allow us to combat anonymity on the web, now a constant of those who work illegally to exploit and earn through the unauthorized use of audiovisual works, through the verification of the information provided in the context of the purchase of services such as hosting, domains, storage etc,” anti-piracy group FAPAV said. Last September, a large group of anti-piracy organizations and copyright holders including the MPA, BREIN, BPI, IFPI, and Rights Alliance, increased pressure on the European Commission by demanding stricter online identity checks as part of the planned Digital Services Act. Specifically, they called for measures to support Article 5 of the e-Commerce Directive which requires businesses to identify themselves but is frequently ignored. Dedicated Portal To Lobby For KYBC Upping the pressure on the European Commission to tackle the problem, dozens of entities representing the rights of the entertainment, publishing, broadcasting, advertising, pharmaceutical, cosmetics and electronics industries now have their own dedicated KYBC lobbying portal. Yesterday the companies and groups published an open letter with demands that the EC expands its current plans that thus far only impose KYBC obligations on online marketplaces under the Digital Services Act. “With regard to KYBC obligations, we welcome the inclusion of a provision ensuring the traceability of traders in Article 22. We acknowledge that this represents a step forward. However, the Commission’s proposed Article 22 only introduces KYBC obligations in the context of online marketplaces,” they write. “Such a limited approach is a missed opportunity to address the broad range of illegal content and counterfeit, unsafe, non-compliant and substandard products online.” While the signatories also include companies such as Heinken and Philips, the overwhelming majority are players in the entertainment industries. The MPA, BREIN, IFPI, BPI, Rights Alliance, FAPAV (which operates the portal), TTVK, IVF, VAP, plus the BBC and Sky, are all calling for the same thing – a tightening of rules that would make it much harder for pirate sites and services to operate with impunity by ignoring Article 5. “A business cannot go online without a domain name, without being hosted, or without advertisement or payment services. These intermediary services, having a direct relationship with the business, are therefore best placed to make sure that only businesses that are willing to comply with the law have access to their services,” their letter reads. “This does not mean monitoring their business customers’ behavior, but merely asking them to identify themselves and applying simple due diligence checks on the basis of publicly available data. Should the information provided prove to be manifestly wrong, or the intermediary be notified that the business customer isn’t who it claims to be, the intermediary should stop providing services until the business customer remedies the situation.” The companies behind the letter have a clear bias towards protecting unlicensed content from being distributed online. However, they also claim that an enhanced KYBC regime will help to protect consumers too by hindering not only ‘pirate’ operators but also those involved in scam websites, counterfeit medicines, sexual abuse materials, and malware. “These illegal activities can cause serious harm to EU citizens’ physical, psychological and financial wellbeing. In some cases, especially during the COVID-19 pandemic, they can even pose a threat to life. All of these operators and all intermediary service providers enabling them to operate should be subject to KYBC provisions,” they note. According to the signatories, the Digital Services Act presents an opportunity for the European Commission to address these and related issues that are currently underserved in the e-Commerce Directive, including by requiring customer verification that will allow intermediaries to determine who they should be doing business with. “We therefore urge [the European Commission] to ensure that all intermediaries – not just online marketplaces – know who their business customers really are,” they conclude. In a supporting statement published by BREIN, the anti-piracy group says that without the ability to identify the operators of commercial-scale infringing platforms, it is too easy for them to switch to another host after being taken online. “It is therefore necessary that the hosting and upstream provider verify the identity of their business customers and also require that of contracting parties who (re) sell their services,” BREIN writes. The anti-piracy group adds that it is currently taking legal action against a number of Dutch hosting companies to compel them to hand over crucial evidence associated with pirate services. One of those companies is Worldstream, which previously offered services to the now-defunct pirate CDN Moonwalk. Having previously been known for having a number of pirate services on its books, including various IPTV providers, Worldstream now appears to be working with the authorities. Earlier this month, 275 participants, including representatives from law enforcement in 43 different countries, discussed how piracy could be tackled across borders in an INTERPOL and Audio-Visual Anti-Piracy Alliance hosted webinar. Among them was Worldstream Chief Legal Operations Officer Wouter van Zwieten, who reportedly explained how the private sector is able to contribute to enforcement activity through training, intelligence sharing, analytical support, and support for operations.

Uganda

Suzuki

Mermaid

The Philippines Government and local Internet service providers have agreed to establish a voluntary mechanism through which pirate sites can be more effectively blocked. After receiving a verified complaint, the plan is for ISPs to block infringing platforms within two hours, although new legislation may be needed to speed up the initial verification process. Alongside various initiatives to discourage Internet users from visiting pirate sites, including improved legitimate offerings, governments, rights holders and service providers are pressing ahead with their site blocking plans. Broadly speaking, site blocking takes place under two regimes – court-ordered injunctions and voluntary arrangements between stakeholders. The former can prove effective but there are considerable costs involved and blocking doesn’t always happen as swiftly as rightsholders would like. Voluntary arrangements, on the other hand, are less formal and have the advantage of being less adversarial, not to mention less expensive. Philippines’ Authorities and ISPs Reach Agreement In common with most regions of the world, the Philippines has a problem with piracy but a new agreement announced this morning hopes to reduce the number of citizens being able to directly access pirate sites for their fix. A joint announcement by the Intellectual Property Office of the Philippines (IPOPHL), the National Telecommunications Commission (NTC) and the country’s internet service providers reveals that a voluntary agreement has been reached to block pirate sites in a streamlined and swift manner. The proposal was tabled last week by IPOPHL Director General Rowel S. Barba during a focus group discussion attended by around 50 representatives from government agencies and ISPs, including Globe Telecom, Inc., Smart Communications, Inc., PLDT, Inc., Sky Cable Corp., Converge ICT Solutions Inc., and DITO Telecommunity Corp. How the System Will Work Via a memorandum of understanding, the parties have agreed to form an alliance that will define coordination protocols that will enable pirate sites to be quickly blocked following an official complaint of infringing activity. The system will work as follows: In the first instance, rightsholders will present a complaint to IPOPHL which will work to assess the evidence and the need for action. “The duration of IPOPHL’s investigations will depend on the merits of the case and evidence submitted, but we always ensure a speedy and thoroughly validated decision,” says IPOPHL’s IP Rights Enforcement Office (IEO) Officer-in-Charge Director Ann N. Edillon. Edillon says that the complaints validation process is a “fine-toothed comb” that aims to ensure that all evidence points to infringing activity before a blocking order is handed down. The requirements for blocking are yet to be published so at this stage the relevant thresholds are unclear. When IPOPHL is satisfied that blocking is warranted it will hand down an order to the National Telecommunications Commission (NTC), the government body responsible for the supervision and control of all telecoms services, television and radio networks in the country, including ISPs. Once received and validated by NTC, the blocking order will be distributed among the participating ISPs listed above, which will then go about the practicalities of blocking. At this point, the ISPs believe that blocking can be put in place within two hours but according to the government, further streamlining is not out of the question. Reducing the Steps Before Blocking The validation process carried out by NTC after receiving a blocking order from IPOPHL can reportedly take a few days, a delay that rightsholders would like to reduce. The government says that some of the ISPs are willing to cut out the ‘middle man’ and take their blocking orders directly from IPOPHL. Others, on the other hand, say that this would require a new law that would formalize IPOPHL’s authority to directly block pirate sites, without the involvement of NTC. Another scenario would see IPOPHL hand down a blocking order to NTC, which would immediately forward it to ISPs. IPOPHL Signs MoU With Anti-Piracy Group AVIA Earlier this week the IPOPHL announced the signing a memorandum of understanding with the Asia Video Industry Association (AVIA), an anti-piracy group responsible for protecting the interests of video and TV rightsholders in the region. The MoU envisions cooperation on several fronts including the sharing of information to help prevent and reduce piracy in the Philippines, the development of piracy monitoring and site-blocking processes and their implementation, and assisting local authorities to build their anti-piracy expertise. “I eagerly look forward to the work with AVIA in the months ahead,” said IPOPHL Director General Rowel S. Barba during a virtual signing ceremony. “Together, may IPOPHL and AVIA successfully stamp out the infringers and enable Filipino film and video producers, artists and contributors to wholly enjoy the rewards they deserve and to continue creating fresh original works for the benefit of society, culture and economy.” AVIA CEO Louis Boswell said that piracy is on the increase in the region and since hosts of pirated content are often outside the country, site blocking is the obvious solution. “Site blocking is a responsible means of not allowing access to pirated sites. We have experience now in multiple markets all around the region that site blocking, where it is done properly, can be incredibly effective at reducing the levels of piracy in a market,” Boswell said. As part of the agreement, the IPOPHL has agreed to take action against pirates based on information provided by AVIA.

Maldives

Kellogg's

Braveheart

Seduction

Asymptomatic

Asrock