Business DMCA Unanswered Loses Safe Harbor

[AmeliaG]

So, if I understand the law correctly, a filelocker or pirate board or tube which fails to promptly and properly answer a takedown notice loses safe harbor protection. Is that correct? If so, what is the process by which they lose protection? Is there someone to report to at their host or someone who can advise other copyright holders or is this just something where then they can be sued for statutory damages?

Please no ask-a-lawyer responses. I like lawyers who like to litigate, but a lawyer who likes to litigate is likely to advise litigating, whatever the answer is.

[AdultKing]

There are lots of ifs and buts in this question, so it's not a straight forward answer and will vary with:

Does the site have any connection to the United States e.g.: domain, hosting, ownership, domicile etc ?

Is the site taking content down but not replying to DMCA notices ?

Has the notice been issued to the site in it's proper form ?

Does the site have a registered DMCA agent in the USA ?

[The Porn Nerd]

Originally Posted by AdultKing

There are lots of ifs and buts in this question, so it's not a straight forward answer and will vary with:

Does the site have any connection to the United States e.g.: domain, hosting, ownership, domicile etc ?

Is the site taking content down but not replying to DMCA notices ?

Has the notice been issued to the site in it's proper form ?

Does the site have a registered DMCA agent in the USA ?

Let's cut to the chase here and just assume they are NOT doing anything they should (taking down content, complying, etc). The offender is basically saying Fuck You Bite My Gonads.

What then?

[epitome]

You can sue them for infringement. They no longer have a get out of jail free card to skirt your lawsuit.

The big scary letterbox warning at the beginning of movies mentions $100,000, but you can realistically expect to get upwards of $25k in statutory damages per work. It's all up to the court.

The next step for you if they do not have safe harbor protection is to file a lawsuit.

[Paully]

Go after everyone and I mean everyone associated with them. Often times a DMCA to their host will work if not go to their upstream host. We go after everyone including Google now and it's very effective. The content may still be there but if no one can find it, obviously it can't be monetized.

Go after them all and be relentless. Unfortunately it's the only way.

I haven't had to come on here and act like a douche in a long time.

People have no doubt we won't give up.

[Barry-xlovecam]

Legally, in a civil case, you will have an uphill battle mainly for the reason of international or foreign (in another state's) jurisdiction. Criminal infringement is a real long shot.

[Grapesoda]

Originally Posted by epitome

You can sue them for infringement. They no longer have a get out of jail free card to skirt your lawsuit.

The big scary letterbox warning at the beginning of movies mentions $100,000, but you can realistically expect to get upwards of $25k in statutory damages per work. It's all up to the court.

The next step for you if they do not have safe harbor protection is to file a lawsuit.

also copyright all your content

[AdultKing]

Originally Posted by The Porn Nerd

Let's cut to the chase here and just assume they are NOT doing anything they should (taking down content, complying, etc). The offender is basically saying Fuck You Bite My Gonads.

What then?

Then it's likely they never had safe harbour in the first place.

Think about this, a file locker paying uploaders doesn't have safe harbour because it's paying for the acts of infringement to take place directly.

On the other hand tube site with no DMCA agent in the US may have safe harbour if it's located outside of the US because it actually has not been tested in court that an offshore entity must register a DMCA agent within the US if it's domicile is outside of the US.

This is all complex stuff. The first question that should be asked is if the site currently has safe harbour.

Also it's all very well knowing one way or the other, but then what is going to be done about it? I can cite several examples of aggravated infringement where rights holders just won't sue because they don't know if there is a pile of cash on the other side of a lawsuit - in other words if there's nothing to be gained from a judgement then why spend the money ?

[SilentKnight]

I still remember the Suze Randall v. Max Sheridan infringement case back in 2000.

Copyright damages awarded

[The Porn Nerd]

Originally Posted by Paully

I haven't had to come on here and act like a douche in a long time.

People have no doubt we won't give up.

Hey I miss that Paully! Bring back Douche Paully!! LOL

Originally Posted by AdultKing

Then it's likely they never had safe harbour in the first place.

Think about this, a file locker paying uploaders doesn't have safe harbour because it's paying for the acts of infringement to take place directly.

On the other hand tube site with no DMCA agent in the US may have safe harbour if it's located outside of the US because it actually has not been tested in court that an offshore entity must register a DMCA agent within the US if it's domicile is outside of the US.

This is all complex stuff. The first question that should be asked is if the site currently has safe harbour.

Also it's all very well knowing one way or the other, but then what is going to be done about it? I can cite several examples of aggravated infringement where rights holders just won't sue because they don't know if there is a pile of cash on the other side of a lawsuit - in other words if there's nothing to be gained from a judgement then why spend the money ?

This was my thinking as well. Bottom line is this (and it' the #1 issue the Internet is facing): how do you prosecute unprosecuteable people? If I am in Romania fuck you and your laws, courts, judgements and so on. MASSIVE problem.

[AmeliaG]

Originally Posted by AdultKing

Then it's likely they never had safe harbour in the first place.

Think about this, a file locker paying uploaders doesn't have safe harbour because it's paying for the acts of infringement to take place directly.

On the other hand tube site with no DMCA agent in the US may have safe harbour if it's located outside of the US because it actually has not been tested in court that an offshore entity must register a DMCA agent within the US if it's domicile is outside of the US.

This is all complex stuff. The first question that should be asked is if the site currently has safe harbour.

Also it's all very well knowing one way or the other, but then what is going to be done about it? I can cite several examples of aggravated infringement where rights holders just won't sue because they don't know if there is a pile of cash on the other side of a lawsuit - in other words if there's nothing to be gained from a judgement then why spend the money ?

The site is filelocker terafile.co They list email contact for DMCA and appear to use GoDaddy for reg.

Their reg info is fake, but ICANN says they are not responsible for it.

Cloudflare supplied an email for a supposedly responsible host, but they don't respond either.

I'm not an attorney, but I'm pretty sure the notices were correctly structured and delivered.

[celandina]

I have many issues with Russian ISP and torrents.... They have Putin, they do not need safe harbour they do not care any more then the islamists about DMCA or any US or EU laws.

[pornguy]

Originally Posted by Paully

Go after everyone and I mean everyone associated with them. Often times a DMCA to their host will work if not go to their upstream host. We go after everyone including Google now and it's very effective. The content may still be there but if no one can find it, obviously it can't be monetized.

Go after them all and be relentless. Unfortunately it's the only way.

I haven't had to come on here and act like a douche in a long time.

People have no doubt we won't give up.

I do that. and if you want to see a fast reply send to the upstream provider of the host. Man they fly to get that shit down.

[SplatterMaster]

Our Partner Agencies ? National Intellectual Property Rights Coordination Center

[marcop]

Originally Posted by Grapesoda

also copyright all your content

So Playboy stole (published in the magazine) one of my copyrighted images. But the couple of IP attorneys I spoke to want $2k to send them a letter and for the expected follow up. In theory I could get $150k for the infringement, but with having to pay $2k up front, I'm thinking I may as well just go to Vegas and put that amount on any number on a roulette table.

Am I being too cynical? Or just realistic?

[AmeliaG]

Originally Posted by marcop

So Playboy stole (published in the magazine) one of my copyrighted images. But the couple of IP attorneys I spoke to want $2k to send them a letter and for the expected follow up. In theory I could get $150k for the infringement, but with having to pay $2k up front, I'm thinking I may as well just go to Vegas and put that amount on any number on a roulette table.

Am I being too cynical? Or just realistic?

If I were you, I'd just invoice Playboy with a pay in 60 days or the rate goes to statutory penalty level.

Playboy probably just made an error and will likely make it right.

Disclaimer: but I'm not an attorney, so please don't take this as legal advice.

[AdultKing]

Originally Posted by AmeliaG

The site is filelocker terafile.co They list email contact for DMCA and appear to use GoDaddy for reg.

Their reg info is fake, but ICANN says they are not responsible for it.

Cloudflare supplied an email for a supposedly responsible host, but they don't respond either.

I'm not an attorney, but I'm pretty sure the notices were correctly structured and delivered.

Terafile don't have safe harbour, they pay uploaders, they don't respond and often don't comply with DMCA requests. They do use ENOM as a registrar, they do not have a domain managed by the USA, their domicile is outside of the US, their servers are outside of the US but they do use Cloudflare.

The ugly truth is that if Terafile dropped using Cloudflare, changed to a non US owned registrar and remain hosted and domiciled outside of the US then the DMCA does not apply to them and they are free to ignore it.

Your reliance on legal recourse in this case falls to provisions in the Berne Convention if their country of domicile is a signatory, however even then you'd be better off suing the man on the moon unless you have a big war chest and lots of evidence.

[edgeprod]

Originally Posted by marcop

So Playboy stole (published in the magazine) one of my copyrighted images. But the couple of IP attorneys I spoke to want $2k to send them a letter and for the expected follow up. In theory I could get $150k for the infringement, but with having to pay $2k up front, I'm thinking I may as well just go to Vegas and put that amount on any number on a roulette table.

Am I being too cynical? Or just realistic?

Hit those fucks hard, and fast. Fuck those clowns.

[pornguy]

AG are you talking about this Domain? Terafile.co

Is it hosted at CloudFlare? They tend to tell you to kiss off. But since they reside in the US just send it to the BBB of the city that the domain comes back to. If that domain is correct it would be:

Hostname terafile.co ISP CloudFlare, Inc. (AS13335)
Continent North America Flag US
Country United States Country Code US (USA)
Region California Local time 29 Jan 2015 13:34 PST
Metropolis* San Francisco-Oakland-San Jose Postal Code 94107
City San Francisco Latitude 37.77
IP Address 104.28.21.78 Longitude -122.393


Send the DMCA to the BBB of San Fran. Send to the Upstream provider as well. Trust me they will get it solved.

[AmeliaG]

Originally Posted by pornguy

AG are you talking about this Domain? Terafile.co

Is it hosted at CloudFlare? They tend to tell you to kiss off. But since they reside in the US just send it to the BBB of the city that the domain comes back to. If that domain is correct it would be:

Hostname terafile.co ISP CloudFlare, Inc. (AS13335)
Continent North America Flag US
Country United States Country Code US (USA)
Region California Local time 29 Jan 2015 13:34 PST
Metropolis* San Francisco-Oakland-San Jose Postal Code 94107
City San Francisco Latitude 37.77
IP Address 104.28.21.78 Longitude -122.393


Send the DMCA to the BBB of San Fran. Send to the Upstream provider as well. Trust me they will get it solved.

[email protected] claims they are just using CloudFlare as something like a host cloaking service and the actual host is contactable at [email protected] . . . which is in Holland and does not reply. Suggestions on who to pursue next?

[AmeliaG]

Originally Posted by AdultKing

Terafile don't have safe harbour, they pay uploaders, they don't respond and often don't comply with DMCA requests. They do use ENOM as a registrar, they do not have a domain managed by the USA, their domicile is outside of the US, their servers are outside of the US but they do use Cloudflare.

The ugly truth is that if Terafile dropped using Cloudflare, changed to a non US owned registrar and remain hosted and domiciled outside of the US then the DMCA does not apply to them and they are free to ignore it.

Your reliance on legal recourse in this case falls to provisions in the Berne Convention if their country of domicile is a signatory, however even then you'd be better off suing the man on the moon unless you have a big war chest and lots of evidence.

I pointed out to ENOM that the whois was fake, but they have not replied.

[AdultKing]

Originally Posted by pornguy

AG are you talking about this Domain? Terafile.co

Is it hosted at CloudFlare? They tend to tell you to kiss off. But since they reside in the US just send it to the BBB of the city that the domain comes back to. If that domain is correct it would be:

Hostname terafile.co ISP CloudFlare, Inc. (AS13335)
Continent North America Flag US
Country United States Country Code US (USA)
Region California Local time 29 Jan 2015 13:34 PST
Metropolis* San Francisco-Oakland-San Jose Postal Code 94107
City San Francisco Latitude 37.77
IP Address 104.28.21.78 Longitude -122.393


Send the DMCA to the BBB of San Fran. Send to the Upstream provider as well. Trust me they will get it solved.

Cloudflare won't do a thing.

The upstream host is Ecatel, which is a criminal hosting network, who also won't do a thing.

Originally Posted by AmeliaG

[email protected] claims they are just using CloudFlare as something like a host cloaking service and the actual host is contactable at [email protected] . . . which is in Holland and does not reply. Suggestions on who to pursue next?

Ecatel is a criminal hosting network, there's a lot of information out there about them but short story is they won't take down Terafile.

Originally Posted by AmeliaG

I pointed out to ENOM that the whois was fake, but they have not replied.

You can report false WHOIS to ICANN.

https://forms.icann.org/en/resources...naccuracy-form

Terafile is site we have been working on for more than two years. They have both the resources and finances to keep switching hosts and domain registrars ad infinitum. They are connected to other file locker services and run by a group of organised criminals.

The only way to deal with this group is to sue them, I can tell you who to sue and where to serve them, I can also provide you with a very detailed map of their infrastructure in order to target Ecatel and other hosts involved, however much bigger companies have decided not to engage them, so you need to weigh up the cost / benefit of doing so.

[AmeliaG]

Originally Posted by AdultKing

Cloudflare won't do a thing.

The upstream host is Ecatel, which is a criminal hosting network, who also won't do a thing.



Ecatel is a criminal hosting network, there's a lot of information out there about them but short story is they won't take down Terafile.




You can report false WHOIS to ICANN.

https://forms.icann.org/en/resources...naccuracy-form

Terafile is site we have been working on for more than two years. They have both the resources and finances to keep switching hosts and domain registrars ad infinitum. They are connected to other file locker services and run by a group of organised criminals.

The only way to deal with this group is to sue them, I can tell you who to sue and where to serve them, I can also provide you with a very detailed map of their infrastructure in order to target Ecatel and other hosts involved, however much bigger companies have decided not to engage them, so you need to weigh up the cost / benefit of doing so.

I did use that form to report the bad whois to ICANN and they told me to take it up with ENOM, who have failed to respond.

What do you mean when you describe them as organized criminals?

If it is easy, you can drop me particulars at bluebloodsupport (at) gmail

I'm not opposed to going the court route, but they would probably have to be infringing more.

[Paully]

You may want to consider bringing Visa and Mastercard into it, at least file complaints of copyright infringement and show proof. You probably won't be the one who already has.

[AdultKing]

Originally Posted by AmeliaG

What do you mean when you describe them as organized criminals?

What most people don't get about some of these file lockers is that they are run by people for whom monetizing the theft of IP is just a side benefit of running a service through which they are able to launder money acquired through other criminal activity ranging from drugs to credit card fraud.

In several cases these sites are run in collaboration with very nasty people. I mean really nasty.

Ecatel and the Russian Business Network have had ties in the past:

Russian Business Network - Wikipedia, the free encyclopedia

Further analysis and network forensics supports that ZeroAccess is being hosted and originates from the Ecatel Network, which is controlled by the cybercrime syndicate RBN (Russian Business Network).

ZeroAccess Malware Part 4: Tracing the Crimeware Origins by Reversing Injected Code - InfoSec Institute

Dutch ISP Attempts False Police Report

[AdultKing]

Originally Posted by Paully

You may want to consider bringing Visa and Mastercard into it, at least file complaints of copyright infringement and show proof. You probably won't be the one who already has.

https://www.interkassa.com/about-system/contacts

Good luck.

[Paully]

Originally Posted by AdultKing

https://www.interkassa.com/about-system/contacts

Good luck.

I'd still do it. Only takes a minute.

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Digital Millennium Copyright Act (?DMCA?) Notice

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Please provide the following notice:

1. Identify the copyrighted work or other intellectual property that you claim has been infringed;
2. Identify the material on the Site that you claim is infringing, with enough detail so that MasterCard may locate it on the Site;
3. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
4. A statement by you declaring under penalty of perjury that (a) the above information in your notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
5. Your address, telephone number, and email address; and
6. Your physical or electronic signature.

MasterCard may give notice to its users of any infringement notice by means of a general notice on any of its websites, electronic mail to a user?s e-mail address in its records, or by written communication sent by first-class mail to a user?s physical address in its records. If you receive such an infringement notice, you may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:

1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
4. Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.

[Paully]

Payment security | Visa USA

Report Intellectual Property Abuse

While the growth of e-commerce provides merchants immense opportunity to sell their products globally, it also creates an opportunity for criminals to attempt to conduct illegal transactions. From money laundering to deceptive offers, or illegal gambling to selling counterfeit goods that infringe upon Intellectual Property (“IP”) rights, Visa is committed to preventing the use of its payment brand and system for illegal transactions. It’s not an easy job, nor is it one that Visa can always handle on its own absent the support of IP Owners and law enforcement, but it is critical to maintaining the trust of all the participants in the payment system. To that end, Visa has a long track record of working closely with IP Owners and cooperating with law enforcement to combat IP infringement on the internet. If you are an IP Owner, please read more to learn about how you can report IP infringing transactions to Visa.
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Visa voluntarily provides assistance to IP Owners to address e-commerce transactions involving IP infringing products. Upon receiving complete information and credible evidence directly from the IP Owner establishing that a merchant (“Merchant”) is engaged in transactions involving the sale of infringing goods on the Internet using Visa-branded payment cards, Visa’s will attempt to identify and notify the Merchant’s Acquiring Bank (“Acquirer”). The Acquirer will be asked to investigate the allegations of infringement and take any appropriate action, which may include, but is not limited to, directing the Merchant to cease selling infringing goods identified by the IP Owner or terminating the merchant account.
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If you are an IP Owner whose previous enforcement efforts with the Merchant have been unsuccessful, and have a good faith belief that a website is accepting Visa as a form of payment for products that infringe your IP rights, please provide all of the following information to us at [email protected]. Please note that we cannot process your complaint until we are provided with complete responses to #1-5 as set forth below.

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[AdultKing]

Yep and you should do it, however just be realistic about what the outcomes will be.

Visa & MasterCard are divided up into regions and each region deals with acquirers, banks, aggregators in a multi tiered organisational structure.

Some of those tiers are corrupt, especially in places like Russia. How do you think organisations like Webmoney, who process peer to peer payments for all sorts of cybercrime and real world crime activities maintain a relationship with MasterCard ?

When you start getting into markets like China & Eastern Europe the picture of what goes on becomes very blurry and unless MasterCard & Visa bring out the big stick and start pounding the corruption in their network then nothing will change.

To get things to change requires a sustained group effort and a lot of lobbying. You won't effect change by yourself, no matter how persistent you are. The adversary is just way too big and way out of your league.

[Paully]

Originally Posted by AdultKing

Yep and you should do it, however just be realistic about what the outcomes will be.

Visa & MasterCard are divided up into regions and each region deals with acquirers, banks, aggregators in a multi tiered organisational structure.

Some of those tiers are corrupt, especially in places like Russia. How do you think organisations like Webmoney, who process peer to peer payments for all sorts of cybercrime and real world crime activities maintain a relationship with MasterCard ?

When you start getting into markets like China & Eastern Europe the picture of what goes on becomes very blurry and unless MasterCard & Visa bring out the big stick and start pounding the corruption in their network then nothing will change.

To get things to change requires a sustained group effort and a lot of lobbying. You won't effect change by yourself, no matter how persistent you are. The adversary is just way too big and way out of your league.

I feel ya AK

That's why I would recommend going after everyone involved, repeatedly. Google will pull down those search results no problem and they will do it quickly.

Do a quick search of Max Hardcore you'll see the chillingeffects.org pulled links.

https://www.google.com/search?newwin....0.30LEksn_yps

[SplatterMaster]

Originally Posted by Paully

[email protected]

[email protected] and [email protected] work for me.

http://www.mastercard.com/us/wce/PDF...acy_Policy.pdf

[Paully]

Originally Posted by SplatterMaster

[email protected] and [email protected] work for me.

http://www.mastercard.com/us/wce/PDF...acy_Policy.pdf

Yup ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^What he said

[celandina]

Originally Posted by Paully

You may want to consider bringing Visa and Mastercard into it, at least file complaints of copyright infringement and show proof. You probably won't be the one who already has.

Visa and Mastercard are the biggest supporters to the pirates. We have over 50 copyrighted movies and just about every one of them is sold on Amazon or eBay ( Visa and MC is used) and when I do send DMCA take down notice they tell me to go and file a complaint in Delaware.... I am in Europe I may as well to go and file an complaint in Somalia. And please do not mention PayPal ... One of our movies was pirated whole on Youtube and it took us about 20 emails ( go to Delaware kind of shit) until we went to another dept. and stated it contains exploitation of women. It was gone the next day

Good old censorship works against all pirates.