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  1. #881
    Amias's Avatar

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    Feb 2018
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    Cox Asks Court to Sanction Labels Over Destroyed Tracking Evidence

    Internet provider Cox Communications has asked a federal court in Virginia to preclude piracy tracking evidence from the liability lawsuit several music companies have filed. The case relies on evidence collected by MarkMonitor. However, according to Cox, the piracy tracking outfit destroyed crucial data that backs up these claims.

    Last year, Cox ended its piracy liability lawsuit with music company BMG, agreeing to a “substantial settlement.”

    The ISP is now in the clear, however, Cox is still caught up in another lawsuit filed by a group of major music companies, all members of the RIAA.

    The music outfits, including Capitol Records, Warner Bros, and Sony Music, argue that Cox categorically failed to terminate repeat copyright infringers and that the ISP substantially profited from this ongoing ‘piracy’ activity. All at the expense of the record labels and other rightsholders.

    Over the past several months, both parties have conducted discovery and the case is currently scheduled to go to trial in December. While there were talks of a potential settlement a few weeks ago, things look rather different now.

    Last week we reported that the ISP canceled a scheduled settlement discussion. As a result, the music outfits called for sanctions, accusing the ISP of gamesmanship. Now, it’s Cox’s turn to ask for sanctions, this time with a formal request.

    Cox submitted a motion for discovery sanctions at the Virginia federal court, where it accuses the plaintiffs of relying on unsubstantiated evidence.

    The concerns relate to the piracy evidence which the music companies are relying on. This is the data that was used to send copyright infringement notices to Cox, pointing out how its subscribers allegedly shared infringing material. As such, it is the basis of the “repeat infringer” claims that are central to the lawsuit.

    The data in question was collected by the anti-piracy firm MarkMonitor, which keeps a close eye on global BitTorrent activity. For the lawsuit, these infringement allegations were summarized in two spreadsheets. However, Cox notes that underlying evidence has since been deleted.

    “MarkMonitor failed to retain critical portions of this evidence, and the document that Plaintiffs intend to rely on is, at best, a partial and inaccurate summary of these analyses,” Cox informs the Court.

    As such, Cox requests sanctions. Specifically, it asks the court for a ruling that the piracy evidence in question can’t be used to back up any claims.

    “Because Plaintiffs’ agent destroyed the underlying data, leaving no way to assess the accuracy of this summary, Cox respectfully requests that the Court enter discovery sanctions against Plaintiffs in the form of a preclusion order prohibiting Plaintiffs from relying on the incomplete and unreliable MarkMonitor evidence.”

    According to Cox, MarkMonitor deleted data which showed that claimed copyright infringements were indeed linked to copyrighted files. These data concern the “matching” logs it received from the fingerprinting service Audible Magic.

    During discovery, Cox learned that MarkMonitor used data from Audible Magic to reach its infringement conclusions. A subsequent subpoena explained how this worked, and a deposition of Audible Magic later revealed that MarkMonitor deleted the transaction logs.

    “Ultimately, Cox learned in a deposition on the last day of discovery that MarkMonitor did not produce the transaction logs at issue or the relevant database because it had destroyed them,” Cox informs the Court.

    The deleted data was crucial according to the ISP, as it’s the only way to prove that the alleged infringements detailed in the spreadsheet are correct. In addition, the routinely deleted data “strongly suggests” that MarkMonitor’s spreadsheet is inaccurate.

    “The destroyed Audible Magic data was undeniably material and foundational to the MarkMonitor Spreadsheet,” Cox notes.

    The ISP backs up its ‘inaccuracy’ claims in redacted parts of its memorandum, mentioning that it was a “coin flip” whether or not a claimed infringement actually took place.

    Coin flip
    Cox argues that the record labels withheld unfavorable information so sees no other option than to scrap the spreadsheets as evidence. In their current form, they can’t be backed up.

    “Because Plaintiffs failed to preserve and produce the best and most complete—indeed, the only—evidence of the alleged direct infringements, the Court should preclude Plaintiffs from relying on the ‘236 and ‘431 Spreadsheets, and any derivative documents, which are merely incomplete and inaccurate summaries of what the data would have shown,” Cox concludes.

    It the Court agrees with Cox and excludes the piracy data as evidence, the case could be severely impacted.

    Interestingly, this isn’t the first time that Cox has complained about spoilt evidence. The company did the same a few years ago in the BMG case, after it found out that anti-piracy company Rightscorp destroyed older versions of its piracy tracking code.

    At the time the Court ruled that sanctions were indeed appropriate. However, the copyright infringement claims were not disregarded and Cox’s request to dismiss the case in its entirety was denied.

  2. #882
    Amias's Avatar

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    Vader Streams Was Shut Down By ACE, Must Pay $10m Damages

    Vader - formerly one of the most visible brands in the pirate IPTV space - shut down in May amid mysterious circumstances. As was initially suspected, it's now confirmed the platform was targeted by the Alliance for Creativity and Entertainment. Following a secret legal process in Canada, the service is now on the hook for $10 million in damages.

    There are several large IPTV providers with brands that are well known across the unlicensed industry. One of those was Vader, otherwise known as Vader Streams, or just Vaders.

    Notable for its Darth Vader logo, the platform served large numbers of direct customers and subscription re-sellers with at least 1,300 TV channels and a library of VOD content running close to 3,000 titles.

    This May, however, something went seriously wrong.

    “We have no choice but to close down Vader. We can’t reveal much publically, but by now some of you should know through the other means what happened,” a notice posted to the site’s Telegram channel read.

    “We tried everything in our power to avoid this, to avoid any outage, but enough people worked against us.”

    With that, Vader
    went down, never to appear again. As highlighted in our subsequent review of the Vader closure, we had strong suspicions that anti-piracy giant the Alliance for Creativity and Entertainment (ACE) had become involved.

    We’d obtained an unverified copy of what looked like a cease-and-desist notice, apparently sent by ACE members to Vader, over its VOD content. Unable to confirm its authenticity, we made a decision not to publish it.

    However, it’s now 100% clear that ACE, the global anti-piracy company made up of dozens of powerful content companies, did indeed shutter Vader. And it’s now evident why they refused to comment.

    ACE proceeded against Vader through a secret court proceeding in Canada through which it obtained a so-called “Anton Piller” order, a civil search warrant that grants plaintiffs no-notice permission to enter a defendant’s premises in order to secure and copy evidence to support their case, before it can be destroyed or tampered with. A similar process was used against TVAddons founder
    Adam Lackman in 2017.

    While the case against Lackman is moving forward at glacial speed more than two years later, the Vader matter now appears to be over. After obtaining a permanent injunction from the Federal Court in Canada, ACE has shuttered the service and landed Vader with a bill for $10 million in damages.

    According to ACE, Vader must also “cede administrative control” over its entire “piracy infrastructure”, permanently cease-and-desist from doing anything in future connected to offering, selling, or promoting unlicensed streams, and/or developing, updating, hosting or promoting any Kodi add-ons connected to pirated content.

    “On behalf of all ACE members, I applaud the Court’s decision to permanently put an end to piracy operations conducted by Vader Streams,” Charles Rivkin, Chairman and CEO of the Motion Picture Association of America, said in a statement.

    “Actions like these can help reduce piracy and promote a dynamic, legal marketplace for creative content that provides audiences with more choices than ever before, while supporting millions of jobs in the film and television industry.”

    Robert Malcolmson, Senior Vice President Regulatory Affairs and Government Relations, Bell Canada – a prominent ACE member – described the action by the Federal Court as “strong and appropriate”, adding that “illegal streaming services like Vader Streams cause serious harm to creators and distributors, the entire broadcasting and cultural sectors and ultimately Canadian consumers.”

    While ACE says that Vader must “cede administrative control” over its entire “piracy infrastructure”, it remains unclear what that means in real terms.

    At the time of the shutdown, Vader said that it was “going to make sure, no Email, IP, account + reseller name goes to the wrong hands. Everything will be wiped clean and that’s all.”

  3. #883
    Amias's Avatar

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    Omniverse Fears Criminal Investigation Into Alleged IPTV Piracy

    Streaming TV provider Omniverse has ceased operating, but its legal troubles are far from over. Hollywood studios continue to search for more evidence on its allegedly infringing activities. This week Omniverse asked the court to halt this process, and compel the copyright holders into mediation. The court documents further reveal that the streaming provider fears a potential criminal investigation.

    In February, several major Hollywood studios filed a lawsuit against Omniverse One World Television.

    Under the flag of anti-piracy group ACE, the companies accused Omniverse and its owner Jason DeMeo of supplying of pirate streaming channels to various IPTV services.

    Omniverse sold live-streaming services to third-party distributors, such as Dragon Box and HDHomerun, which in turn offered live TV streaming packages to customers. According to ACE, the company was a pirate streaming TV supplier, offering these channels without permission from its members.

    Omniverse disagreed with this characterization and countered that it did everything by the book. It relied on a deal from the licensed cable company Hovsat, which has a long-standing agreement with DirecTV to distribute a broad range of TV-channels with few restrictions.

    As time went on, however, it transpired that the streaming provider was clearly worried about the legal threat. After several of its distributors distanced themselves from the service, Omniverse decided to wind down its business.

    An earlier statement that the service was “fully licensed” was replaced by more reserved language. In a court filing in June, Omniverse said that if any infringement took place, it was without the company’s explicit knowledge.

    “To the extent there was any infringement, such infringement was, on information and belief, without malice or bad intent by Omniverse or its management and was caused or contributed to by third-parties such as HovSat,” the company stated.

    Fast forward a few weeks and the case remains unresolved. According to recent court records, Omniverse would like to settle the matter. It has made several offers to do so, but the Hollywood studios were not interested. Instead, ACE would like to know all the ins and outs of the alleged infringements.

    To break this impasse, Omniverse asked the court to compel the Hollywood studios to engage in a mediation process yesterday. At the same time, the company would like to bring the ongoing discovery efforts to a halt.

    According to the court filing, the ACE members were willing to agree to a stipulated judgment where the streaming provider would admit certain wrongdoings. However, this goes too far according to Omniverse, which fears that the rightsholders could use this to fuel a criminal investigation.

    “The parties have exchanged drafts of a stipulated judgment, but the parties reached an impasse when Plaintiffs demanded that Defendants admit to what amounts to egregious conduct in exchange for settlement,” Omniverse writes.

    “Defendants fear Plaintiffs intend to use such a stipulated judgment as part of a criminal investigation against Defendants. To resolve the impasse, Defendants proposed a mediation, which Plaintiffs have flatly refused,” the company adds.

    The mention of a potential criminal investigation is new. While it’s not a secret that Hollywood studios have referred several streaming piracy cases to the Department of Justice, Omniverse was never mentioned in this regard. Whether the streaming provider has any concrete indication that it’s a criminal target is unknown.

    The request to compel mediation was submitted “ex parte,” meaning that ACE’s members weren’t made aware of it beforehand. However, the rightsholders were quick to respond.

    In a filing submitted a few hours ago they object to the request. Instead, the Hollywood studios want to complete the discovery process, so they can find out more about the infringing activity. When that’s done, they are open to mediation.

    The rightsholders further point out that, while the Omniverse brand may have ceased operating, the company’s CEO appears to be involved in another potentially troublesome IPTV service, OSTV Now, which is set to launch next month.

    “While Defendants represented to the Court that they have ceased operations, it appears that Defendant DeMeo is merely shifting from one infringing operation (Omniverse) to another (OSTV Now), advertised as a new ‘One-Stop For TV Entertainment’ to launch on September 1.

    “Whatever the branding, Defendants appear to be continuing their infringing practices. These and other important facts are exactly why discovery needs to move forward,” the studios add.

    The new “OSTV Now” service doesn’t mention Omniverse CEO Jason DeMeo by name. However, as Lightreading pointed out previously, the service is promoted on DeMeo’s personal website.

    Given the potential threat and several outstanding questions the studios have, they ask the court to deny Omniverse’s request to compel mediation at this stage of the case.

    “Only when the facts are known to both sides (not just Defendants) can the parties meaningfully engage in a mediation. Defendants’ ex parte is a transparent attempt to avoid the very discovery that would reveal those facts, seemingly so they can continue infringing in the meantime,” they write.

    Unlike Omniverse, the rightsholders make no mention of a potential criminal case. Whether that threat is indeed warranted, has yet to be seen.

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