DL then wrote to the individuals demanding several hundred pounds to make the threat of a lawsuit disappear. Some paid up, but many did not, and the only cases DL took to court were against those who didn’t defend themselves.

Generating revenue from porn proves controversial

Then the law firm overplayed its hand and got into bed with DigiProtect, the German piracy exploitation outfit with a catalog of hardcore porn titles to its name. The rights were signed over to the company by the copyright holders so that DigiProtect could use them to generate revenue – lots and lots of revenue.

After mountains of bad publicity, DL withdrew from this business model. In May this year, the exact same scheme reappeared with UK lawyers ACS:Law. TorrentFreak asked company owner Andrew Crossley about the connections between ACS and DL – his reply: “NONE”. However, it was crystal clear that there were many links, not least that staff from DL were now working at ACS:Law directly on these cases – known cyber-squatter Terence Tsang as one example.

We’ve known all along that if those threatened put up a spirited defense and refused to be cowed they were never taken to court, but we had no proof as to the mechanism employed. Then, out of nowhere, months ago someone from inside either Davenport Lyons or DigiProtect leaked lots of sensitive documents to German news outlet Gulli.

Having remained secret until now, the documents made very interesting reading and along with a helping hand from TorrentFreak and armed with the leaked personal details and email addresses of some of the letter recipients, Firebird77 at Gulli was able to confirm the authenticity of the documents.

Document 1 – Ranking alleged infringers in order to decide who to pursue

The first document reveals how the targets are ranked based on an estimation of how likely it is that they will pay up. Each alleged infringer has their details filled in on a form (download here from WikiLeaks). The document shows that despite the claims that an IP address alone is irrefutable evidence of an infringement and will lead to being taken to court, the reality is rather different.

Letter recipients are given a ranking based on many parameters. Does the law firm want to continue to pursue the person? What are the chances of success? A zero would mean “no action” up to ten which would mean the respondent is ripe for maximum pressure. One letter recipient hired Michael Coyle at Lawdit Solicitors to defend him and this earned him a “three”.

One part of the form is entitled “Circumstances” and this is a very surprising section indeed. Despite the “fact” that the law firms supposedly already have solid evidence of infringement that they say will lead to court action if recipients don’t comply, the section seems to show that they make their decisions on who to pursue based on the recipients’ personal circumstances.

One circumstance is labeled “impecuniosity”, i.e the letter recipient is flat broke. Another is whether the recipient is on state benefits – this is expected to be proven by way of copies of benefit books and/or letters. TorrentFreak has evidence that one gentleman was asked to prove that he was indeed disabled in order to make the claims go away. Other circumstances include whether the recipient is a pensioner, a student or a child.

One other circumstance is an eyebrow-raising “out of jurisdiction” (no rightful claim could be made the against the recipient) along with whether or not the individual was aware of that fact.

The form also lists possible defenses that recipients rely on, including the breach of their wireless router, a virus infected PC, not being at home when the infringement occurred, no knowledge of infringement or the possibility that someone else in the location carried out the infringement.

Document 2 – Letter from lawyer Dr Kornmeier from Kornmeier & Partner to Brian Miller at Davenport Lyons

The 14 page document (download from WikiLeaks) details the agreement DigiProtect enters into with rights holders in order to exploit their copyrights for profit.

Included is a section which confirms that the original rights holders sign over the rights to DigiProtect so that they are legally allowed to make the works (hardcore porn movies) publicly available on P2P networks such as BitTorrent. Dr Kornmeier asks: “Does this constitute any problem under UK law?”

According to page 2 of the letter, when the recipient of these letters pay up, the spoils are divided up as follows – 51% to DigiProtect, 37.5% to Davenport Lyons and 11% to DigiRights Solutions. The remaining pages detail the exact business arrangement along with a list of the hundreds of porn movies covered by the agreement.

TorrentFreak discussed the documents with staff at the excellent BeingThreatened.com, a site set up to support and inform those targeted by Davenport Lyons and ACS:Law in the UK.

“These documents confirm what we have long suspected,” they told us. “This scheme is not about getting justice for the rightsholders at all; it is there to fill the pockets of companies like DigiProtect by exploiting many innocent people. Everyone with an IP address has reason to be worried about becoming a victim of these exploitative practices, whether they use P2P networks or not.”

Indeed, John Stagliano, boss of porn company Evil Angel which also worked with DigiProtect, admitted to earning less than £50 from each infringement and told the BBC the scheme “…was completely misrepresented” to him.

Uk consumer magazine Which? earlier reported Davenport Lyons to the Solicitors Regulatory Authority for alleged “bullying”. It will be interesting to see how these documents develop that case.

Thus far just two documents have been made public. Stay tuned for further updates.

Article from: TorrentFreak, check out our new blog at FreakBits.

Continuing first from yesterday’s proceedings, ITnews reported an exchange between iiNet CEO Michael Malone and movie industry barrister Tony Bannon, over Malone’s understanding of BitTorrent.

Malone told the court that while he had an understanding of the protocol, he had never used uTorrent, the client used earlier by Bannon to give the court a technical demonstration. Bannon’s demo used iiNet’s own tracker (an installation of RivetTracker) which it has used to distributed several press releases which all relate to the trial.

It is difficult to see where Bannon was going with his questioning, but it began with an admittance by Malone that the torrent files were intended to be used by people with access to a BitTorrent client. Malone then denied that the releases were specifically targeted at iiNet customers, noting that anyone can access them

Under further questioning regarding the inclusion of a note in the torrent files dialogue box indicating the files were non-pirated, Malone reiterated that while he had an understanding of the BitTorrent protocol, he did not have experience of the client used by Bannon

Then, with an apparent deafness towards Malone’s perfectly clear response, and demonstrating an apparent ignorance between a BitTorrent client and the BitTorrent protocol, Bannon sought to press Malone into admitting to his 400,000 customers that he didn’t understand BitTorrent.

Again, Malone stated that he didn’t know how to put a comment on a torrent file, but Bannon persisted in trying to get Malone to admit that he knows how uTorrent 1.8.4 works, but Malone said he’d never used it. There could, however, be people in iiNet who had, he conceded.

Bannon then said that in the last 24 hours the torrent file functionality for the press releases had been removed. Malone said that if it had, he certainly hadn’t requested it, asking Bannon how he was attempting to access the Internet, suggesting that a firewall in the court was stopping the transfer.

TorrentFreak’s checks show a single seeder on each torrent and each one worked absolutely perfectly.

Moving on to iiNet’s handling of copyright infringement allegations, iTWire reports that Bannon tried to paint a picture that iiNet’s policy of forwarding AFACT notices to the police was little more than a cynical attempt to pretend that they were dealing with them, when in fact they were not.

For the umpteenth time in this case, Malone said that he was under no obligation to act on mere allegations from AFACT which were not backed up by a court order.

“AFACT was telling us to disconnect customers without further ado,” said Malone. “The question is, what should we do when confronted with illegal activity? And our response is, report it to the proper authorities.”

While iiNet said it had always been policy to forward the notices to the police, ITWire notes that evidence emerged that the company had sent notifications twice, although there was no indication of how many infringement notices were in each batch.

Yesterday Malone said that the evidence provided by tracking company DtecNet’s investigation was “compelling” and should be reviewed by a third party and the courts. In the face of this statement, Bannon asked Malone why he had not taken action based on AFACT’s allegations.

“This is a right,” said Malone, “not an obligation of iiNet.”

These days arguments in favor of anti-piracy action seem almost incomplete with the obligatory reference to child pornography, as we heard in yesterday’s propaganda piece from CBS. This case is no different.

Bannon put it to Malone that if the evidence provided was “compelling” and Malone had received “compelling evidence” that an iiNet customer was accessing child porn, would the company allow the user to do so “day after day?”

Of course, any allegations of this nature would involve the police, and the police or the courts would do the investigation, get the proper paperwork and order iiNet to comply, which they naturally would. Malone said that on mere AFACT allegations of civil infringement (as apposed to an infinitely more serious and jailable criminal offense), such action would not be permitted.

Bannone then pressured Malone to admit that “…you’re happy to tell your customers this from the witness box,” that iiNet will not disconnect subscribers for infringing copyright.

At this point one has to wonder if Bannon is deaf or just plain stubborn. It is absolutely crystal clear to anyone following these proceedings that yes, iiNet will disconnect customers for copyright infringement, providing there has been due process and a court has ruled that disconnection is appropriate.

The case continues tomorrow.

Article from: TorrentFreak, check out our new blog at FreakBits.

Once upon a time there was a popular TV show eD2K link site called The Real World. Of course, it wasn’t long before the site’s popularity caused it have legal problems, and in August 2005 it all came crashing down.

However, just as people recently copied The Pirate Bay when waters started to get choppy, the same thing also happened with The Real World, with the site’s database being shared around on eD2K. Soon after The Free World was born, run by an Austrian national, but that site didn’t last long either and was shut down following MPAA action.

On October 23rd 2005, exactly four years ago today, yet another site came out of the ashes. That site, TV Underground (TVU), remains to this today and claims to be the biggest site for eD2K link TV shows. TVU has a unique feature – it is believed to be the only site to run its very own eD2K server.

“We take pride in running the only P2P server sponsored by the P2P community
and not by some shady porn site,” TVU admin CheGuevara told TorrentFreak. For those interested, stats for the server (currently indexing 8.6million files) can be found here.

While eD2K remains popular, BitTorrent is the current darling of the P2P file-sharing world and is particularly popular with fans of TV shows. This is clearly something the TV Underground team wish to exploit.

“We have launched a new version of our site today to allow users to submit torrents,” CheGuevara told us. “At first we will allow users to submit torrents to seasons that already have eD2K links, but we are planning to expand to torrent-only seasons and per show torrents after the launch.”

So what motivated this development at TVU?

“We love ed2k, but we acknowledge that BitTorrent has it’s own advantages and some users prefer to use that,” they explained.

“Our mission is to spread quality TV Shows to every corner of the world. We think the current system of how the rest of the world has to wait months and years to see a show that has been shown in the US or elsewhere as totally unfair,” CheGuevara notes. “I myself am a big fan of House. It is on Season 6 right now, but where I live they are just only showing Season 4… Fair? No. You get the point.”

TV Underground will have to go a long way in the torrent world to catch up with the likes of EZTV, but with the site currently down because of maintenance, many will be grateful for an alternative.

Article from: TorrentFreak, check out our new blog at FreakBits.

This week alone we’ve had an Early Day Motion from a member of Lord Mandelson’s own party, and more recently ISPs have talked about the futility of the suggested legislation.

Mandelson reportedly started pushing it after a meeting with Hollywood mogul David Geffen, and was apparently uninterested in the whole situation prior to the meeting, although that claim was flatly denied.

Now, the All Party Parliamentary Communications Group (apComms) has released its own findings to its more broad consultation, and it’s not good reading for 3-strikes proponents.

There were significantly fewer responses than for other similar consultations, although the scope was much wider. It was also much more open, without assumptions or leading questions. It was, in fact, fairly neutral and seemed to be concerned with gathering information, rather than trying to solicit support for a predetermined policy. Most appropriately, it was titled “Can we keep our hands off the net?”

The topics covered included dealing with ‘bad traffic’ (which includes copyright infringement, P2P and botnets), behavioral advertising (such as Phorm), online privacy and child pornography procedures. Finally it dealt with the issue of who should foot the bill for Internet traffic, and whether network neutrality should be codified. The first and last questions are of particular concern to TorrentFreak, and the conclusions make for interesting reading.

On the subject of P2P and copyright enforcement, they came to the following conclusions;

58. We conclude that much of the problem with illegal sharing of copyrighted material has been caused by the rightsholders, and the music industry in particular, being far too slow in getting their act together and making popular legal alternatives available.
59. We do not believe that disconnecting end users is in the slightest bit consistent with policies that attempt to promote eGovernment, and we recommend that this approach to dealing with illegal file-sharing should not be further considered.
60. We think that it is inappropriate to make policy choices in the UK when policy options are still to be agreed by the EU Commission and EU Parliament in their negotiations over the “Telecoms Package”. We recommend that the Government terminate their current policy-making process, and restart it with a new consultation once the EU has made its decisions.

Network Neutrality and actual bandwidth availability was also a concern, with the following recommendations being made;

212. We recommend that Ofcom keep the issue of “network neutrality” under review and include a section in each annual report that indicates whether there are any signs of change.
214. We recommend that Ofcom regulate to require ISPs to advertise a minimum guaranteed speed for broadband connections.

We know that many of our UK readers will be happy with the last recommendation, especially after a study by OFCOM earlier this year found that many subscribers were seeing an average of 40% of their connection’s advertised speed. A more appropriate advertised speed will also prevent many BitTorrent clients from being setup for speeds they can’t actually achieve.

If you thought that such open minded, clearheaded and competent recommendations couldn’t have come from elected officials, well, the good news is they’re not all luddites. ApComms’s Joint-Chairman, Derek Wyatt MP was formerly Head of Programmes at WireTV, before becoming the director of BSkyB’s Computer Channel (later ‘.tv‘), leaving when he was elected to government. Other executives of apComms include a former BT researcher (Chris Mole MP), and Dr Nick Palmer MP, who has studied AI at MIT.

An extremely well-educated and technologically literate group making these recommendations should help carry some weight. Whether or not it will be enough to convince the Peter Mandelson’s and Sion Simon’s of the government, remains to be seen.

The full report is available here.

Article from: TorrentFreak, check out our new blog at FreakBits.

Torrent sites have been the target of these removal requests more than once, and Google usually removes the ‘infringing’ torrent detail pages from their search results fairly quickly.

According to Google the altered search results are caused by DMCA complaints the company receives from copyright holders. One of the most recent takedown requests, sent by a company that protects the copyrights of porn producers, was targeted at The Pirate Bay.

“In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed X result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org,” Google users can now read beneath the search results for The Pirate Bay and similar terms.

Now this wouldn’t be that odd if only a few adult film torrents were removed from the search results. However, those who take a closer look will notice that the takedown request resulted in a ban of the Pirate Bay frontpage from the search results.

As can be seen from the picture above the rest of the Pirate Bay domain is still indexed, but not the frontpage. This is not the end of the world of course but since there are no torrents listed on the Pirate Bay frontpage, Google has clearly made a mistake here.

The details of the takedown notice that was sent by Removeyourcontent are not yet available, but it may be that it included the Pirate Bay frontpage and that Google removed it without checking whether the claim was legitimate.

TorrentFreak has contacted Google for a response, but thus far we haven’t heard back from them. If it is indeed a mistake we assume that it will be corrected soon. Perhaps they can delete the scammy PirateBay.com site while they’re at it?

Update: Destined Enterprises, the company that operates the site that sent the takedown requests according to Google, claims they haven’t asked Google to remove the Pirate Bay homepage from the search results (although they are not completely sure). In a letter (pdf) the company’s lawyer has sent to Google a few minutes ago, they request a copy of the takedown notice, fearing that someone else might use their name to send these takedown notices.

Update 2: Google has lifted the Pirate Bay ban. The homepage appears in the search results again. The DMCA notice in question is also published and the Pirate Bay homepage is not listed there, so it’s likely that Google made a mistake.

Update 3 Google says the mistake was due to “takedown request that erroneously listed thepiratebay.org.” The company that sent the takedown notice denies this. “They are blaming us but it’s ok. We are used to it,” they told TorrentFreak.

Article from: TorrentFreak, check out our new blog at FreakBits.

James Monaghan from the company has recently taken part in the BERR consultation on file-sharing so has been watching this week’s developments closely. The government has set a deadline for responses to its plans (which include disconnecting alleged file-sharers from the Internet) of 29th September and, like many others, James has responded to the new statement by sending his thoughts in to the consultation. His feelings will resonate with many TorrentFreak readers. Here they are in full;

Monaghan Media Response To Latest BERR Statement

There are an estimated 7 million file-sharers (your figures) in the UK, and you want to reduce that number by 70%. 70% is 4.9 million. A fair trial is fundamental to democracy. To fairly prosecute 4.9 million citizens is an optimistic suggestion when currently Her Majesty’s Court System holds 200,000 criminal cases per year. This would suggest it is going to take 25 years to reduce file-sharing by 70%. This is only dealing with the 70% of today’s file-sharing with no regard to the expected increase of file-sharing. Research suggests that the number of file-sharers increases every day, 63% of people aged 14-24 now admit file-sharing, with 83% of those file-sharing every day.

To prosecute 4.9million people you will also need evidence. No evidence exists. Anywhere.

The ‘evidence’ championed by the failing sector of the media industry – the physical distribution sector – has been proven time and time again to be incredibly flawed. I refer here to the elderly couple who the copyright industry began legal proceedings against for downloading hardcore gay nazi pornographic film ‘Army Fuckers’ (1) among others. I also refer to the law firm Davenport-Lyons, who sent out 15,000 letters telling people to pay a small ‘fine’ (usually about £600) and they’d make a lawsuit against them (for file-sharing) go away. This is what is known as ‘extortion’.

Luckily for the consumers, and all of those of us who enjoy freedom from criminals, Davenport-Lyons were quickly picked up by BBC’s Watchdog program, and promptly disappeared.

I note though, that in today’s (25th August 2009) response, you don’t mention a fair trial. In fact you don’t mention any opportunity for those accused with this flawed and faulty evidence to defend themselves. Which rather gives the impression that there will be no opportunity for the accused to defend themselves. What you do say is this:

“…the previous proposals, whilst robust, would take an unacceptable amount of time to complete in a situation that calls for urgent action…”

So what you’ve stated, is that it is impossible for your draconian anti-file-sharing measures to be implemented fairly. Which is correct. What this means, is that this route of anti-file-sharing legislation, the ‘criminalise-7-million-of-your-citizens’ route is wholly unfeasible, impossible to implement without massive cost to the tax-payer, and impossible to implement without massive damage to the progress of the UK’s creative industries. What this does not mean is that instead of fair trials and the assumption that the accused are innocent until proven guilty, everyone should be presumed guilty until they are proven innocent. This is perverse as the accused would not then have the opportunity to be proven innocent.

In my previous contribution to this consultation, I briefly touched upon the fact that the industry has never been able to show any loss, financial or otherwise, has been caused by file-sharing. I’ve gone into a little more detail here, which shows, with numbers, evidence, and references, (rather than the usual hearsay provided by the industry) to show that there isn’t a financial loss to any of the most downloaded films this year (so far).

You’ll note that all of the top ten most downloaded films so far this year (3) are all incredible commercial successes, each making hundreds of millions of pounds. Watchmen, the most downloaded film with 16.9 million illegal downloads, still made $185,248,060. How can anyone argue that file-sharing has caused it a financial loss? Benjamin Button was the second most downloaded film so far, being downloaded 13.1 million times illegally. It made $332,860,689. A financial loss? I think not.

What we are seeing here, is the end of one type of business: the physical distribution of digital products. We are in a world where DVDs are old technology, in less than ten years Blu-ray disks will go the same way as LPs, as tape cassettes, as VHS tapes, and as DVDs. The internet however, has outlived the DVD. And it will outlive the Blu-ray disk. And it will outlive whatever format ‘succeeds’ the Blu-ray disk. The internet is here to stay. What we are seeing in the Creative Industry is a very small sector (distribution), which makes massive money from a system which is made redundant by the internet.

It is not the responsibility of the government, of the ISPs to prop up a failing business. If a business is failing, it is the responsibility of that business to look at itself, at its actions and rethink its operations in order to save itself.

It is wholly unfeasible to enforce any rule against filesharers, and impossible, literally impossible to enforce according to law.

I reiterate the statement I made in my first contribution to this consultation, the majority of my audiences watch my films over the BitTorrent system, a system so revolutionarily brilliant that it means I, an independent film-maker, can distribute a film in full High Definition to hundreds of millions of viewers with absolutely no cost incurred to me, where normally global film distribution costs several tens of millions of pounds. I think it is acceptable to say then, that my company and I are at the forefront of the industry.

As someone who uses file-sharing systems, not only to gain access to media which I never could’ve before, but also to distribute my own contributions to the UK’s Creative Industry, I am utterly shocked and appalled by the lengths to which your government will go to make my audiences, my peers and myself criminals.

This is not the end of the creative industry. I can say this with great confidence, as someone working in the industry. The industry is currently undergoing a change, a natural change, a change that it must undergo. Although this is not the end of the creative industry, it is the end of a disgusting sector of the industry which has been a parasite on the industry for the past half-century, milking it for as much money as it can, promoting false inflation of the rest of the industry only to increase its own profits.

The criminals here are not the teenagers downloading films and music, but the global corporations that extort money from artists and consumers alike, and who operate in a manner not unfamiliar with sinister global criminal networks.

It is the remit of democratically elected Government to protect the citizens, film-makers, and business-owners from the failing business model which threatens freedom, civil liberty, and creative business’ economic future.

Finally, I take this quote from your statement today:

“…As ever we would need to ensure any such measure fully complied with both UK and EU legislation…”

Disconnecting people from the internet does not fully comply with EU legislation. In fact it directly contravenes EU legislation. I am referring to amendment 138/46 which was adopted on the 6th May 2009 in response to French attempts to implement a system almost exactly the same as the one proposed here. A system which was declared unconstitutional by the French High Court. You will be aware that amendment 138/46 declared that access to the internet was a fundamental human right.

Not only do your proposals directly contravene European Law, but the certainty of wrongful sanctions being taken against citizens opens the government up to legal action. The fact that cutting off an entire household’s internet punishes everyone in that household and not just the ‘accused file-sharer’ is near-certain to breach the government’s ‘Every Child Matters’ directive where children are punished for others’ actions. The probability of cutting off the internet of those who need the internet to survive, the long-term sick, for example, or the disabled, further opens up the government to attack.

Is this the route that my government wants to pursue? Or should the government perhaps listen to its’ citizens’ outrage and stop neglecting them in favour of the power and massive wealth offered by the global corporations who’s only motivation is furthering said power and wealth?

Yours faithfully,
James Monaghan

Monaghan Media

Article from: TorrentFreak, check out our new blog at FreakBits.

Last year the chief of ISP iiNet Michael Malone labeled Conroy as “the worst Communications Minister we’ve had in the 15 years since the [Internet] industry has existed,” and this year the ISP pulled out of filtering trials, saying the filter would not work.

But criticism of Conroy don’t stop there. The proposed filtering system championed by Conroy – ostensibly for the protection of minors – isn’t even supported by those whose interests it claims to protect.

Last week Save the Children, Civil Liberties Australia and the National Children’s and Youth Law Center urged the government to abandon plans for Conroy’s filter saying that it will neither protect children from viewing explicit material, nor stop child pornography from being distributed. Let’s hope Conroy listens to these groups, because he doesn’t seem to listen to anyone else who says his plans are going nowhere.

Last night Senator Conroy unveiled a report entitled Australia’s Digital Economy: Future Directions while promising the government will “facilitate development of an appropriate solution to the issue of unauthorised file sharing”.

So what kind of imaginative, creative, pioneering ideas and solutions are available for Conroy to nurture and facilitate? From the report;

One solution proposed by copyright owners is a “three strikes” or “graduated response” proposal under which copyright owners would work together with ISPs to identify the ISP’s customers who are suspected of unauthorised file sharing and the ISP would then send a notice on behalf of the copyright owner to that customer advising of this allegation. After multiple notices, a series of escalated steps could be taken with respect to the customer’s account.

The “copyright owners” who submitted this proposal includes anti-piracy group AFACT, currently engaged in hugely expensive legal action against prominent ISP iiNet, blaming it for the copyright-infringing activities of its customers.

Good luck to Conroy in “facilitating” meaningful discussions between these outfits in the future. Their relationship must be at an all-time low already, and getting lower with every dollar-sapping court appearance in these difficult financial times.

But it’s not just the entertainment industry’s relationship with ISPs that’s proving problematic when attempting to find a “solution” to the piracy issue, it appears that ISPs have no time for Conroy either. Last week the Senator was awarded the accolade of “Internet Villain of the Year” by ISPs at the 11th annual Internet Industry Awards, even beating France’s President Sarkozy to the title.

Solving the piracy “problem” is hugely difficult and complex and will only be made more so by the already faltering relationships between parties who appear to have little respect for each other, even before the process begins.

The full report can be downloaded here (.pdf)

Article from: TorrentFreak, check out our new blog at FreakBits.

In their advice to the government, a working group consisting of four members of the Dutch parliament looked into the matter. They suggested criminalizing downloading once the entertainment industry has come up with sufficient legal alternatives.

The conclusions of the report were widely debated in the Dutch press. Worryingly, also some of the factual errors about Mininova that the parliamentarians dreamed up were recited in the media, which may hurt the BitTorrent site in the ongoing court case against the local anti-piracy outfit BREIN.

For instance, the report claims that Mininova ignores complaints form copyright holders and refuses to remove torrents from their site. This nonsense of course, since the site has had a copyright policy for years and is known to follow up every complaint.

Another inaccuracy in the report is the claim that Mininova adds “reviews” to the torrents their users have uploaded, something we’ve never heard before. The rumors that they actually host copyrighted content and that they filter porn from their site pro-actively don’t hold up either.

The Mininova staff are not happy with these allegations, especially since they are currently involved in a lawsuit against the entertainment industries that covers the same issues. “We are very displeased with the fact that the working group didn’t contact us prior to releasing this report, or even took a look at mininova.org,” Mininova co-founder Erik Dubbelboer said.

“We demand that the spreading of false information related to Mininova will be stopped. In addition, we demand that the working group removes the name Mininova from the report and places a rectification on the website of the Dutch parliament and in several national newspapers,” Dubbelboer added.

“We take this very seriously,” Erik Dubbelboer said. “If these demands are not met, we’ll consider to take legal steps,” he said to emphasize the seriousness of their demands.

Arda Gerkens, the head of the parliamentary working group pointed to her parliamentary immunity when she was confronted with the news. However, legal experts said that parliamentarians don’t have any immunity when they speak out in public, which she did.

Mininova demands that the rectifications are made before the verdict in their case against BREIN is due, so it wont influence the decision of the judges.

Article from: TorrentFreak, check out our new blog at FreakBits.

Politician Jörg Tauss left the SPD yesterday over concerns about Internet censorship. The German Pirate Party had been running a petition against an attempt by the German government to have a censorship list, which, although at first applied to child pornography, has already been considered for expansion to cover other areas.

Faced with this censorship system, which has not been proven to do anything to protect children or do anything except stifle free speech, Tauss decided to leave his party and join the Pirate Party instead.

In a statement the Pirate Party welcomes him into the party as “one of the most experienced politicians in the areas of education, research and new media,” and calls the defection the “culmination of a long chain of failures of the SPD (Social Democratic Party of Germany) in the areas of civil rights in the digital age and shows a dramatic loss of their credibility inside and outside.”

However, there is also controversy as Tauss is currently under investigation over allegations that he was improperly in possession of child porn images. Tauss claims that such images were sent to him during the basis of an investigation into that subculture, in line with his official government work. Criminal charges on the possession of the images may be pending soon, with Die Welt quoting the prosecutor as saying charges will be brought “within a few weeks”.

Regardless, the Pirate Party is standing by Tauss, who has been a member of the parliament since 1994, at least until a determination of charges is announced. “As long as there will be no criminal conviction against Mr. Tauss, the Piratenpartei has no reason to question Mr. Tauss’ innocence and moral integrity.”

With their seat in the German Parliament the Pirate Party hopes to do something about the increased censorship of the Internet and abuse of copyright by multi-billion dollar companies.

Article from: TorrentFreak, check out our new blog at FreakBits.

A video mixtape is a collection of bootleg clips from movies, tv shows, home grown videos or just about any other source. These tapes grew in popularity along with the advent of home VHS and Betamax videos – the masses now had the equipment to make their own shows and compilations. Of course, nowadays while they are still called ‘mixtapes’, they are more likely to exist in digital form on the Internet or on DVD.

Mixtapes are also known for the strange and unusual material they can contain. From weird B-movies to sporting accidents and dramatic news footage, through to unintelligible TV shows and rare pilots from countries far and wide, they contain all types of mind boggling clips that most people never knew existed. The heavy doses of porn and various stomach-churning activities and curiosities turn some of these tapes into controversial items, even on the underground.

Anyone Googling “Video mixtape” will be immediately exposed to links and references to the Retard-O-Tron (ROT (NSFW)) mixtapes – possibly the most controversial and popular mixtapes around. Already banned in the US, Canada and Ireland, we caught up with ZXQL3000, the creator of the ROT mixtapes, to find out why the hell he does it.

“Before the Internet was available in every household, many people around the world used to trade music with each other by taping stuff from their collections onto audio cassettes, and sending them to each other by snail mail,” ZXQL told TorrentFreak.

“These things were called mixtapes, and were a great source for discovering music. Getting new and unknown songs from all kinds of obscure sources was only part of the fun — MAKING your own mixtape was even better.”

Projects like ROT are the natural progression from purely audio based output to video, with the emphasis on fun. “They’re made for lazy Saturday nights after (or before!) going out, for having a drink and having a no-brainer laugh with your buddies,” says ZXQL.

As Internet availability became widespread, mixtapes traded by standard mail pretty much died out, taking the mixtape phenomenon with it. “And then P2P came along,” said ZXQL, “and like it did for commercial music and movies, it changed the rules — if you wanted it to or not.”

This new found ability for individuals to take control of their own distribution coupled with the availability of cheap and even free audio and video editing packages, gave mixtapes a new lease of life. But P2P wasn’t just used for the distribution of completed projects, it was to became a prime source of raw material.

“P2P offers you a nearly unlimited library of digital media: there’s no song obscure enough for you not to find it,” says ZXQL enthusiastically. “Even better: there is SO much stuff out there that still needs to be discovered, the chase is as much fun as the catch. Mixtapes help you show what’s out there.”

Finding the source material can be entertaining in itself, ZXQL explained. “There’s so much about today’s availability of media that makes this so much fun: hunting for that perfect clip to end your sequence, exploring new music by just typing in keywords and seeing what comes up.”

“Say you start your mixtape with one single video clip of Bill Gates getting a pie thrown in his face, but it needs some music in the background. So you start looking for a song that fits the clip. Maybe you just type in “pie” in Emule or Limewire, or Google for lyrics that contain the phrase “in your face”. Maybe that song makes for an excellent link to the next clip. You’ll be amazed with where your search can take you.”

Having laughed, cried, been bemused, shocked and sickened all within the space of a few minutes at Retard-O-Tron 2 – I can see what ZXQL meant by “be amazed” at the kind of footage available. While a lot of the footage is suitable for everyone (and some of the B-movies and obscure footage is amazing), overall it is definitely one for the over 18’s. Actually, better make that 25, with a very broad mind too.

To be honest I would have preferred fewer sex scenes, as I think I would’ve watched more of it. We understand ROT1 is more of an easy ride. “ROT3 is in the making, and it will feature less porn,” ZXQL reassured me. “Or at least easier to view with a group of people, so it won’t be as explicit. ROT2 kinda went overboard with the porn, I think so myself,” he added.

Of course, porn aside, many of these mixtapes can hardly be considered legal. Who knows how many instances of copyright infringement there are in each one – dozens would seem conservative – but since the mixtape scene is still fairly focused and most of the source material so obscure, the creators seem to be largely left alone.

For those wanting ROT1 or ROT2 on DVD, one is available from the site, but there are other ways to watch. ROT1 was already ripped and released by a group specializing in releasing cult and b-movies called PiMPRiPPaZ. ROT2 was ripped by a similar group called ViDEOCULT who ZXQL says did a much better job and delivered a high quality, scene-standard compliant rip. He’s happy for people to grab these rips of course, adding;

“In the end, I just want the ultimate thing I can create. Not held back by copyright, censorship, good taste, a commercial drive or other barriers. I wanted a DVD for when my buddies and I chill on the couch with a beer and a bong. I love making my mixtapes, and I love watching them. It’s a hobby, it’s underground and it might even be considered art – but it isn’t about money.”

Just in case you didn’t get the message – the ROT mixtapes are NOT for kids or anyone easily offended. Absolutely, categorically NSFW – you have been warned. And don’t forget, July is unofficial video mixtape month on The Pirate Bay – who knows what it will turn up.

Article from: TorrentFreak, check out our new blog at FreakBits.

Mininova’s lawyer argued that the site is already taking measures to ensure rights holders can protect their content, and this amounts to more than they are required to do under the law. The site has a ‘notice and takedown’ policy and recently started offering an infohash filter where content owners can blacklist torrents.

Mininova’s case against BREIN was heard at the Utrecht court. Three judges have been appointed to the case. One of them is a replacement for a judge who was taken off the case a few weeks ago because he was connected to the entertainment industry. The hearing started at 1 PM with BREIN’s lawyer Dirk Visser.

Visser began by informing the court that Mininova has over 5 million daily users who use the site to download copyrighted content. A brief look at the site’s homepage clearly shows that they link to illegal content, and their business models is to make money off the millions of ads that are displayed, he said.

Mininova’s attempt to offer a distribution platform to publishers through their “featured content” section is nonsense, BREIN’s lawyer insisted. According to research conducted by BREIN 92% of the torrents on Mininova point to ‘illegal’ content, and the tag cloud with popular searches also shows that illegal content is what people are mainly looking for on the site.

In 2006 and 2007 BREIN and Mininova had lengthy discussions on how to deal with copyrighted content, Visser said. Mininova wanted BREIN to come up with specific infohashes that should be in the filter, and BREIN wanted Mininova to cover the costs. They never reached an agreement and the negotiations ended.

All in all Visser is arguing that Mininova aids in distributing copyright infringing works, and BREIN demands that the site installs a filtering mechanism that will put an end to this. Mininova will have to cover the costs of such a copyright filter themselves, they say.

Next up was Mininova’s lawyer Vita Zwaan. She started out by informing the court that this is a landmark case because it’s the first to make a judgment about the legality of the BitTorrent platform in The Netherlands, pointing out that this case obviously has far reaching consequences.

Zwaan further told the court that, while the hearing was taking place, approximately 180 torrents would be added to the site’s database and that Mininova has no knowledge of the content currently tracked by these torrents. In addition Zwaan explained that Mininova has partnerships with content owners to distribute works though their distribution platform.

On top of this, Mininova offers several options for content owners to take ‘infringing’ torrents off the site, the lawyer explained. Together with the Motion Picture Association (MPA), Mininova started experimenting with a content filter through which torrents can taken off the site by the content owners.

The filter trial is a success according to Mininova’s lawyer, who quoted one of TorrentFreak’s recent articles to point this out. BREIN also had to option to participate in the filtering trial so they could see for themselves how it works, but BREIN rejected this offer.

It is unclear what BREIN’s demands actually are according to Zwaan. They want Mininova to implement “preventive measure” but are vague about the details. However, BREIN doesn’t want to provide the info-hashes for the torrents it wants removed, and argues that this is something Mininova should do themselves. This is the opposite of what the MPA (a member of BREIN) is doing now.

According to Mininova’s lawyer, this disagreement on who should provide information on what to filter is what the case is all about.

A keyword filter that was proposed by BREIN is unworkable according to Zwaan because it would result in too many false positives. A filter for the keyword ‘office’, as BREIN suggested, would result in the removal of 92 torrents linking to “Open Office” she said.

Mininova’s lawyer then discussed some of the costs Mininova made thus far to take down torrents upon request from copyright holders (though the old system). She said that 155,876 takedown requests have been reviewed which cost the site 250,000 euro ($350,000). In addition, Mininova invested several thousand euros in the content filter.

Zwaan went on to explain that Mininova is not a necessary nor sufficient part of the BitTorrent download process. Unlike The Pirate Bay they don’t host a public tracker, and neither do they offer a BitTorrent client through which users can download torrents. BREIN argued otherwise and this is incorrect Zwaan said.

Towards the end of her plea, Zwaan argued that Mininova is not infringing the rights of various copyright holders as BREIN stated. She cited several cases in and outside The Netherlands to make point out why, and pointed out that The Pirate Bay may not have been found guilty if they had a notice and takedown policy like Mininova has.

After a short break the hearing continued briefly and the judges asked both lawyers for clarification on some issues. Mininova’s lawyer was asked about the moderators that Mininova has, and why they remove porn but not copyrighted content. Mininova explained that the moderators handle problem reports from users (about virusses, porn, etc.), while the Mininova admins handle the copyright complaints. The site has around five moderators, a number which the changes from time to time.

After roughly three hours the hearing ended and it’s now up to the judges to come up with a decision. The verdict is due on July 15. Erik Dubbelboer and the other Mininova founders think they have the law on their side. “We have confidence in the outcome of the case and we believe Mininova will continue to exist,” Erik told TorrentFreak.

This is a developing story, info might be added.

Article from: TorrentFreak, check out our new blog at FreakBits.

Carl Lundström’s lawyer Per E Samuelsson continued with his client’s defense, reiterating the weakness of the links between him and the other defendants, and The Pirate Bay operation as a whole. Samuelsson also pointed to Lundström’s email correspondence in 2005 with Gottfrid and Fredrik, where they discussed the possibility of having to move the site to another country. This, he said, was an indication that the defendants kept an eye on the changes in the law and were mindful that they should operate legally within it.

In the meantime, it came to the court’s attention that Tobias Andersson, a future witness in the case, was sitting in the court. He was asked to leave the room, with permission to continue listening on the audio feed next door. He will testify later on.

After a break, the court’s attention switched to Fredrik Neij (TiAMO). The court heard that Fredrik was never a member of Piratbyran and he had no ideological motivation to join TPB. Instead, Fredrik was attracted to the site by the BitTorrent technology. He joined to “..play with The Pirate Bay, just as I wanted,” he said.

The defense said that Fredrik was always mindful of the law and had a desire to operate within it, consulting lawyers to ensure his activities were legal.

In a reference to companies like MediaDefender, Fredrik noted that “anti-p2p companies access our tracker and manipulate our statistics.” He said that although a torrent may have only been uploaded once, these anti-p2p activities inflate the stats on the tracker to indicate that more transfers took place than in reality.

Fredrik was then questioned about his relationship with advertiser Oded Daniel. When the prosecution asked if Oded was involved in the technical aspects of TPB, Fredrik replied.. “No, he’s not good at that. He uses Windows, so…” There was laughter heard on the live audio feed after that remark, not from the court room, but from the listening lounge next door where the bloggers are situated.

Fredrik was asked about the significance of the site’s name, but shrugged and repeated that his interest is merely in the technology.

Fredrik was further questioned by Håkan Roswall, with the Prosecutor pointing out that during his police interview, Fredrik admitted that there may be links to copyright works on TPB. Fredrik said he knew about these due to the legal complaints the site received, noting that the complaints referred only to inapplicable US laws. He went on to deny having received any of these personally, but while he admitted he seen them, he denied creating any of the infamous responses.

Roswall asked Fredrik if he had ever been a seeder on the site. Fredrik admitted to seeding torrents but noted that he only did this with copyright-free material.

When questioned about the situation of some torrents being removed from the site due to bad labeling, the court heard from the defense that TPB site is uncensored, with thousands of new torrents added every day and it is an impossible task to review them all. The tracker is completely open and anyone can and does add to it regularly, completely without any input or correspondence with TPB staff.

Just before lunch, Monique Wadsted for the movie companies took over questioning Fredrik. After a discussion over the way emails are handled at The Pirate Bay, out of the blue she began to introduce new evidence which had not previously been disclosed to the defense, in what is being viewed as an attempt to unsettle Fredrik.

She asked about Fredrik’s connections to other torrent sites, namely OscarTorrents and EurovisionTorrents and he denied being personally connected to them. Noting the breach of protocol, the judge asked if it was acceptable for the court to be considering evidence that was not already presented pre-trial. Monique Wadsted tried to shout down the judge, but that didn’t really help much. The court then took a break.

After the lunch break IFPI’s lawyer Peter Danowsky continued with Fredrik’s questioning. He tried to pin something on him, but Fredrik pointed out that the email he’s referring to is a reply, and that the quotes mean that he didn’t write that part of the email.

Fredrik’s lawyer is next up to ask questions, and the prosecution was educated on the subject of open BitTorrent trackers, BitTorrent swarms and the fact that torrent files can be distributed through means other than the TPB, like email or FTP.

Then the Prosecutor handed over a printed page from TPB and said: “This is a printout from a part of your web page. You call this a screenshot?” Fredrik answered: “This isn’t a screenshot, just a printed page.” Fredrik then explains what’s on the print (a Pink Panther torrent), and how the upload process on TPB works.

Next it’s Gottfrid’s turn to answer questions. The prosecution emphasizes the financial issues, and specifically the link with Oded. When asked if Gottfrid was in charge of ad sales he answered: “No, I tried to get away from that because of time issues. I had a business to run before you came and took it all away.”

The prosecution further questioned Gottfrid about moderation issues, replies to copyright holders and his involvement in developing the site. The prosecutor pushed hard on whether Peter Sunde had worked on the layout and graphics for the site. “To my knowledge, he is neither designer nor graphic artist,” Gottfried replied.

Wadsted later asked Gottfrid how they handle torrents that (allegedly) link to child porn. He said that in such a case they would inform the police. She then asked if they removed those torrents. He said “some”. “Not all?” was Wadsted’s reply. Gottfrid explained that it is not up to them to investigate crimes, but that they do inform the police. “We can’t do investigations of our own. And if the police say we should remove a torrent, we will,” he said.

Gottfrid further said that Peter Sunde has nothing to do with technical administration, design, layout, ad sales or any hands-on stuff with the site. He’s just been a spokesperson for The Pirate Bay. “Neither me or Neij work well in furnished rooms. Peter was better on the verbal issues and media,” he said.

Around 4 PM the Prosecutor announced that he wanted to bring in additional evidence, some actual torrent files on a diskette (he probably meant CD). The Prosecutor demanded a statement on it at 9 in the morning tomorrow. The defense wasn’t too happy about this, and Gottfrid demanded all torrents instead of four.

Update:Just a passing thought…..While Wadsted may have thought she was being clever mentioning possible child porn tracked by The Pirate Bay earlier, it’s not beyond reason that when Gottfrid said that they don’t remove all such torrents, this could be on the instruction of the police – presumably so they can track any offenders. In this situation, the police must understand that Pirate Bay neither committed any offense, nor encouraged it, nor know the people involved. Is there something important here? I guess the court will decide.

Article from: TorrentFreak, check out our new blog at FreakBits.

Media Protector operates in a similar way to tracking company Digiprotect, who currently work with lawyers Davenport Lyons in the UK. It connects to BitTorrent swarms, eD2k and other filesharing networks, and harvests IP addresses of those sharing copyright works without permission. Media Protector then works with lawyers to force ISPs to disclose the personal details of those allegedly sharing files, sending them letters ordering them to pay a ‘fine’ (out-of-court settlement) or face legal action.

“We are working today with a lot of international rights-holders and leading production companies — including Hustler, the world’s largest adult entertainment company — and have detected well over 200,000 copyright infringements in Germany alone,” Media Protector founder and Managing Director Rainer Strassmeir told Xbiz.

Strassmeir believes that aggressive anti-piracy enforcement is the key to embedding a type of fear in the illegal downloader. He claims it soon becomes known which content producers chase pirates, with those that do witnessing a corresponding decrease in illicit downloads. He also believes that the decrease in piracy leads to an increase in retail sales.

Anti-piracy company Digiprotect has been open about its aims – it says it helps clients “turn piracy into profit”, although the lawyers it works with in the UK deny that there is any profit motive, rather their actions are purely for anti-piracy purposes. Strassmeir isn’t embarrassed to say that he tries to generate profit from piracy either, as he states that his customers “enjoyed a new revenue stream by effectively monetizing copyright infringements.”

Last year, the evidence collected by Media Protector was called into doubt. A recipient of a 700 Euro compensation demand for unauthorized uploading was actually operating a client which was modified never to upload, thus making infringement impossible.

Article from: TorrentFreak, check out our new blog at FreakBits.

While some producers, directors and actors actually believe that BitTorrent and other filesharing tools help to boost the fanbase of films and TV-shows, this group disagrees. Signed by a staggering 116 names including the likes of directors Sir Alan Parker, Mike Leigh and supported by several entertainment industry groups, the letter claims:

At a time when so many jobs are being lost in the wider economy, it is especially important that this issue be taken seriously by the Government and that it devotes the resources necessary to enforce the law.

Ignoring for a moment that notably they make no mention of job losses in their sector, one of the problems with their demands is that the law they seek to enforce is civil law, not criminal.

Beyond employing judges there is nothing more that the government can do to enforce it. That is the problem with copyright law, it’s hard to know what’s legitimate and what’s not, what can be copied and what can’t, without checking with the rights holders first. This was exemplified perfectly earlier this year, when the IFPI sent out takedown notices for Travis tracks, despite the actual copyright holders, Travis, having already given permission to distribute.

The bigger problem comes from their data, the 98 million illegal downloads and streams. While we know TV shows are popular, our own data shows that British TV rarely features in the top 10. Movie downloads are more fleeting, with a certain bias towards the newest films, with a few exceptions. Their figures are also questionable; while we count downloads, we can’t quantify them with a figure for the UK.

Yet, if their stats on downloads are of questionable accuracy, it’s nothing compared to the power they ascribe to the ‘almighty ISP’. They believe that ISPs have the power to stamp out file sharing, stopping people from downloading TV shows and movies; they just need a prod. In this belief they are sadly mistaken.

Again, recent news has shown how hard it is to control access to even one image in the UK, on a cut-and-dried subject like child pornography. Being able to determine if something is infringing copyright or not would require huge lists of content, and real-time examination of all Internet traffic. Not just deep packet inspection, but an all-invasive Big Brother monitoring system, beyond the dreams of even the most totalitarian dictator.

Of course, those that bother to check facts know that not only is such a thing illegal (criminally illegal, not just civil) but that the tools they’ll want to use just don’t work. The problem is highlighted by Michael Malone, CEO of ISP iiNet, currently under attack from various movie studios, “I think they genuinely believe that ISPs have a secret magic wand that we are hiding and if we bring it out we can make piracy disappear just by waving it.”

And, when just this year it was reported that UK commercial TV broadcasters “enjoyed a bumper April with the highest viewing figures in five years”, that total TV viewing was up 10% year-on-year, and “the valuable yet hard-to-reach 16 to 24-year-old demographic [i.e the typical file-sharer] watched 4.9% more commercial TV in April year-on-year and saw 12% more ads,” you have to wonder exactly what the problem is.

Article from: TorrentFreak, check out our new blog at FreakBits.

The film, produced by Hiroyuki Kobayashi, is set for a Sony Pictures DVD release in the USA on December 30. A few days ago it leaked onto the Internet and since then it has already been downloaded a million times via BitTorrent.

This is not the first time that a movie quickly became popular online due to the release of a pirated copy. “The Man from Earth” is another example of a film that became immensely popular due to its distribution on BitTorrent. Contrary to the opinion of the big studios, many independent filmmakers see piracy as free promotion instead of a threat.

We doubt that Sony Pictures will respond similarly to the leak of ‘Resident Evil: Degeneration’, which tops our weekly download chart. Below is the full list of this week’s most downloaded movies on BitTorrent. The Dark Knight, which led the chart three weeks in a row, has dropped to third place. Later this week and following on from our top 10 most downloaded games chart, we will publish the top 10 most downloaded movies in 2008.

The data for our weekly download chart is collected by TorrentFreak, and is for informational and educational reference only. Currently both DVDrips, DVD Screeners and R5 rips are counted.

RSS feed for the weekly DVDrip chart.

Article from: TorrentFreak, check out our new blog at FreakBits.

Today, users searching Google for Empornium.us are met with a warning under the URL: “This site may harm your computer”. After ignoring the warning and clicking the link using Internet Explorer, the Empornium main page starts loading, but is then punctuated with virus/malware/exploit warnings from an up-to-date anti-virus scanner. Google reports “Malicious software includes 4 trojans, 3 exploits. Successful infection resulted in an average of 11 new processes on the target machine.”

During our tests we caught malware or exploits which seemed to originate from:

hxxp://hardmoviesporno.com/test/exp/update1.pdf
hxxp://ffseik.com/25/2/getfile.php?f=vispdf

At this point we deemed the Google Safe Browsing report to be correct and abandoned our own tests. Accessing the Empornium homepage using Firefox3 caused an immediate halt:

Google notes that the ‘malicious software’ is actually hosted on 4 domains, including gianttopnano.cn, mmcounter.com, filmmultimediaonline.cn. Furthermore it states that two domains appear to be “functioning as intermediaries for distributing malware to visitors of this site” including vxhost.cn, and filmmultimediaonline.cn.

TorrentFreak has contacted Empornium management for a comment, but so far there has been no response.

Update: Empornium Team contacted us, confirming that the malicious code has nothing to do with them and they are “taking action to shut down the infiltration & remove the code asap”. Their own tests so far show it is “exploiting a known & patched security hole in Acrobat”.

Article from: TorrentFreak, check out our new blog at FreakBits.

If you have received a letter from lawyers Davenport Lyons (or indeed any other law-firm operating the same business model) accusing you of illegally sharing games, videos or music, this article will provide serious food for thought and give you the tools and knowledge to make your voice heard at a government level. It is unacceptable that people are being wrongfully accused. We believe that your names and addresses should not have been handed over to these lawyers in the first place, and that you should not have received a threatening letter.

This is a guest post from Michael Coyle of Lawdit Solicitors who is currently defending many of those accused in the Dream Pinball, Colin McRae Dirt, Call of Juarez and more recently, the various porn titles cases brought by DigiProtect in the UK. (Intros, links, editing and letter template added by TorrentFreak/Penumbra)

Alleged File-Sharers: Why the Information Commissioner Has Let You Down

The Information Commissioner’s Office (ICO) is a non-departmental public body reporting directly to Parliament. It is the office dealing with the Data Protection Act 1998 and the Freedom of Information Act 2000, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Environmental Information Regulations 2004 in England and Wales.

UK ISPs were ordered earlier this year [and in 2007] by the High Court to disclose information relating to its customer’s data, based on information provided to them by amongst others, video games companies. The information sought was based on the customer’s IP address. Pursuant to CPR 31.18, lawyers applied for an order that the ISPs disclose the full name, postal address and telephone number of the subscriber of each of the IP addresses supplied.

The game plan was to match each IP address with an individual and write to them with a hefty threatening letter and a request for £500-600. If this sum was not paid, court action was threatened, costing tens of thousands of pounds. It all seemed fairly conclusive. The ISPs complied and the Lawyers [Davenport Lyons] commenced the enormous task of writing to over (so we understand) 25,000 potential infringers.

However it was only when responses started to flood in – many in their hundreds to Lawdit Solicitors – did it become clear that while IP addresses could reveal a name and real-life address, it did not reveal the culprit. It proved very little. It certainly did not prove that any copyright infringement had taken place, far from it. Only by inspecting the hard drive of the customer’s computer could you do this. If there were any other evidence to sit alongside the IP address, for example a user name or password of the file sharing software you could sympathize with the rights holder.

But to rely on the IP address alone is wholly disproportionate and has resulted in untold misery to many thousands of individuals. This whole affair sums up in my view how little the Information Commissioner (IC) is really concerned with an individual’s data. I am not aware of any publicly quoted concerns from the IC about this issue and he has remained silent as the forums and bulletin boards crackle with the indignation and invasion of individual’s data. You cannot blame the ISPs. As a Court Order was in place, why would an ISP go out on a limb for a few thousand customers?

But the IC ought to have been keeping a watchful eye out and at the very least issue a press release to offer individuals some comfort. The silence is even more deafening in that on 29 January 2008, the ECJ held that Community law does not require member states to oblige ISPs to disclose details of suspected file-sharers to enable a copyright owner to bring civil proceedings.

Personal data is protected generally in the EU by virtue of the EC Directive on the protection of individuals with regard to the processing of personal data (95/46/EC) (Data Protection Directive). Member states may provide exemptions to protection in order to conduct criminal investigations or safeguard national or public security or to protect the rights and freedom of others (Article 13(1), Data Protection Directive).

In the UK such an exception can be found under section 35 (1) of the Data Protection Act 1998 which provides that ‘Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.’ This exemption does not contain any further considerations for a Data Controller before making a disclosure in these circumstances.

The EC Directive on the processing of personal data and the protection of privacy in the electronic communications sector (2002/58/EC) (E-Privacy Directive) provides that national authorities may only lift the protection of data privacy in order to safeguard national or public security or to conduct investigations into criminal offences or the unauthorised use of an electronic communications system, where this is a “necessary, appropriate and proportionate measure” (Article 15(1), E-Privacy Directive).

The ECJ reached its conclusion(.pdf) following a Spanish case concerning Telefonica. The Juzgado de lo Mercantil No 5 de Madrid decided to stay the proceedings and referred the following question to the Court for a preliminary ruling:

Does Community law, specifically Articles 15(2) and 18 of Directive [2000/31], Article 8(1) and (2) of Directive [2001/29], Article 8 of Directive [2004/48] and Articles 17(2) and 47 of the Charter permit Member States to limit to the context of a criminal investigation or to safeguard public security and national defence, thus excluding civil proceedings, the duty of operators of electronic communications networks and services, providers of access to telecommunications networks and providers of data storage services to retain and make available connection and traffic data generated by the communications established during the supply of an information society service?

The ECJ, responded that the answer must be that Directives 2000/31, 2001/29, 2004/48 and 2002/58 do not oblige Member States to ensure effective protection of copyright in the context of civil proceedings to communicate personal data. A fair balance needs to be struck between the various fundamental rights and in particular the principle of proportionality. In Advocate General Kokott’s opinion she considered that it was compatible with Community law for member states to exclude operators of electronic communications networks and services from having to make available personal data relating to connection and traffic information in the context of a civil, as distinct from criminal, action.

While the decision is not binding on the ECJ it will generally follow the Advocate General’s opinion. For the vast majority if not all of the 25,000 recipients, this decision ought to have been interpreted as a request for information relating to a non criminal offence (i.e. any copying/file-sharing was non-commercial) and the request for the personal data ought to have been refused.

If you have received a letter accusing you of illicit file-sharing and you are innocent then please write to the Information Commissioner with your story and complain that the release of your personal data was a breach of the Data Protection Act 1998, while urging them to carry out a review of all subsequent releases.

The Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

For your convenience, a TorrentFreak reader Penumbra has created this template in order to streamline the complaints procedure: (Link)

Update: You may petition the government online by following this link.

Article from: TorrentFreak, check out our new blog at FreakBits.

When we broke the news on 18 November we noted that things would be very different this time, particularly when the frailties of the evidence gathering were exposed by the wrongful accusation of innocent parties.

It didn’t take long. On 29 November The Guardian reported that a couple in their sixties were horrified that they had been wrongfully accused of illegally sharing the gay porn movie Army Fuckers.

Many people have commented on these developments, and now it’s the turn of a sex writer. Placed by Forbes in their Web Celeb 25 and named by Wired in their Faces of Innovation 2008, Violet Blue is, amongst seemingly a million other things, sex columnist for the San Francisco Chronicle and a best seling author. She also lectures cyber-law classes at UC Berkeley and is a Geek Entertainment TV reporter.

Writing in her blog, Violet Blue headlines her article “The New Face of Porn Racketeering?” Pointing out that this isn’t just any old porn, but “a Nazi gay male hardcore flick”, she goes on:

It’s sort of like if someone came up to you on the street and said, ‘hey I think you slandered me in a way that could be really embarrassing to you if anyone found out — but if you give me a couple hundred bucks, I won’t take you to court [where you’d lose even more money].’

Having enjoyed the work of writer Roald Dahl in both written and TV form (Charlie and the Chocolate Factory, James and the Giant Peach and the genius of Tales of the Unexpected), Violet’s description of how she sees this operation reminded me again of something i’d mused upon earlier.

In 1987, Playboy published a short story by Dahl, entitled The Bookseller. The story features a gentleman called William Buggage who ran a rare book shop in London with his secretary Miss Tottle. Their business model was a little unconventional. Every day the pair read the newspaper obituaries looking for the deaths of married men who had left a wife behind. Armed with this information, they would send invoices to the grieving widows demanding payment for books their husbands had supposedly ordered. The books contained European hardcore pornography and ’sexual deviance’. Rather than face the ruination and humiliation of being named in court or the press, the widows would quietly pay up.

Those familiar with Dahl’s work will know that this master story teller is famous for the ‘twists’ revealed at the end of his stories, and The Bookseller is no different. In the end, Mr Buggage and Miss Tottle were found out when they tried to get money from a widow who revealed that her husband – far from quietly titillating himself with porn – was in fact, blind.

While most people acknowledge that Davenport Lyons have made some pretty big mistakes, no-one is suggesting that they or their clients simply make things up. However, for every set of allegations they get right (around 50% admit infringement and pay up), they absolutely get some wrong. They wouldn’t have expected that their allegations of sharing Atari’s Race 07 would’ve landed on the mat of a pair of pensioners and we will see if they choose to withdraw the allegations that the other pair of pensioners shared Army Fuckers. At the moment they find themselves in the position of the blind man – in receipt of a sordid accusation against them and absolutely no way of defending themselves.

In a statement to The Guardian, Davenport Lyons said: “We allow ample opportunity for the recipient to respond, and if they have done nothing wrong they have no reason to be concerned.”

The truth is much less straightforward. No matter how people defend themselves in the face of these allegations, Davenport Lyons continually argue that they are right, and the accused is wrong. When I pointed out the Dahl story to someone involved in the cases, this was the reply, which is an adaptation of a real response to those who try to plead their innocence:

It’s a shame for Mr. Buggage and Miss Tottle they didn’t have the knowledge and expertise of messrs Davenport Lyons. They could have easily argued in that case that “it is irrelevant for the purposes of our clients evidence how the European books of pornography and sexual deviance (”the Work”) came to be acquired in your blind late husband’s name. What our client’s evidence shows is that the Work was made available from an Internet connection registered in your late blind husband’s name on a certain date and time”

But while there are certain similarities with Dahl’s story, one point appears entirely mirrored. While the widows in The Bookseller pay up to avoid appearing in the press, those wrongfully accused by Davenport Lyons are going to the press for protection. Those that don’t have age on their side don’t find the going quite so easy.

Article from: TorrentFreak, check out our new blog at FreakBits.

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Article from: TorrentFreak, check out our new blog at FreakBits.

The latest development is one that file-sharing commentators have quietly been expecting. While some 40-60% of those threatened over video game sharing in the UK appear to pay up, there are other ways of increasing this amount substantially via social leverage. Unsurprisingly, Davenport Lyons are now going down this road which is likely maximize compliance rates.

According to recipients of fresh letters this weekend, the lawyers have now expanded into movie ‘protection’ – a gay hardcore porn movie to be precise. Set on a farm in the former Czechoslovakia, Gestapo officers apparently hand out ‘forced’ punishment in ‘Army Fuckers‘, a 2006 movie originally released by Dutch porn outfit Dream Logistics BV, on the ‘Eurocreme‘ label.

Strangely, however, Dream Logistics BV aren’t the rights holder anymore, or the ones that hired Davenport Lyons. It appears the new rights holder is German anti-piracy company DigiProtect, who managed to get this High Court order for disclosure of alleged file-sharer’s identities, based on evidence provided by lesser-known anti-piracy tracking company DigiRights Solution, of Darmstadt, Germany. Indeed, DigiRights Solution GmbH appear to have no obvious Internet presence.

Davenport Lyons are demanding £500 compensation, plus the costs from the ISP for disclosing the alleged infringer’s personal details. Recipients of the letter are given 21 days to pay up and are threatened with huge court costs and damages if they don’t, which is no different to all the other threats made by Davenport on other media they ‘protect’. It is worth noting that of a claimed 25,000 threats of legal action, no more than half a dozen have gone to court and of those, none were contested, meaning that Davenport Lyons won default judgments on them all. There is no evidence to suggest that anyone has ever contested a case with many people simply refusing to pay up.

Those accused and deciding to settle are asked to sign an undertaking that they will never infringe copyright on any media owned by DigiProtect in the future, which might be easier than you think – considering the number of titles they own the rights to. As previously pointed out by P2P-Blog, DigiProtect seem to be acquiring the ‘P2P Rights’ to many titles (including those of US porn company ‘Evil Angel’) and gathering their money via P2P tracking and subsequent legal threats.

However, most worrying is the leaked contract between DigiProtect and Evil Angel, as it contains the following paragraph, which one would believe applies to these UK cases too:

To achieve the purpose outlined in clause 1, LICENSOR grants DIGIPROTECT the exclusive right to make the movies listed in Appendix 1 worldwide available to the public via remote computer networks, so-called peer-2-peer and internet file sharing networks such as e-Donkey, Kazaa, Bitorrent, etc. for the duration of this agreement

This destroys claims that these actions are for strict anti-piracy purposes, this is a clearly a money-making operation, designed from the ground-up.

Since most people will want to avoid lining the pockets of DigiProtect and friends, here is a list of titles that include those that appear to be now owned by DigiProtect and ripe for IP harvesting.

Although not DigiProtect titles, the eagle-eyed reader will notice the inclusion on this list of Dream Pinball 3D, Colin McRae Rally and Call of Juarez – all titles targeted by Davenport Lyons. According to the list, DigiProtect also owns the rights to Atari’s dire ‘Alone in the Dark 5′.

Of course, we live in a world that has become much more liberal in recent years, so the stigma attached to porn of all flavors has diminished significantly. However, the damage that will be done to a family will be considerable if someone is incorrectly accused of sharing porn that doesn’t ‘fit’ the acceptance levels in that household.

There is a firestorm coming, there can be little doubt, and a simple apology from Davenport Lyons following an incorrect accusation won’t be enough.

Article from: TorrentFreak, check out our new blog at FreakBits.