On the responsibility of advertisers placing advertisements on torrents and file hosting
Dear Colleagues,
in particular, those engaged in the advertising business on the Internet. Increasingly, the question has arisen about the responsibility of advertising networks for cooperation with sites that violate copyrights. This issue is initiated by major rightholders and sites like Google, as well as human rights organizations affiliated with them, and aims to remove competitors from the market that not only lead to lost profits for the film and audio studios, but also attract a significant amount of traffic.
In an effort to deprive the site, placing counterfeit content content, copyright advocates decided to knock out from them the financial basis.
The first big swallow (apart from the case of megaupload) considers PayPal’s decision to refuse to work with pirates.
Currently, the trend has turned to the fight against another source of welfare of torrents and file hosting sites - advertising agencies. I will tell about this in more detail below, and also give a small overview of judicial practice.
So, the main reactions of rights holders or human rights organizations in relation to sites violators:
- the requirement to close the resource;
- the requirement to disband the resource;
- the requirement to conduct an investigation in order to find out the direct violator of rights;
- lobbying interests;
- protection of interests in court.
Experts divide illegal content into two types:
1. It is downloaded by the user and stored on his computer (p2p-network);
2. It is downloaded directly by the moderator or administrator of the Internet resource and is stored on the site server (filehost).
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The procedure for notification of copyright infringement, as well as the responsibility of the parties to the relationship, are different in both cases.
The administrator of the resource does not bear responsibility for the content downloaded by the user, if he followed the procedure for notifying the offender, the procedure for removing illegal materials, and also used all the necessary methods and methods of protecting the site that restrict the download and distribution of illegal materials.
In the second case, the responsibility is completely shifted to the shoulders of the resource administrator. When creating such sites, first of all, it is necessary to consider whether the procedure of data exchange between users is well thought out so that the resource does not become a platform for the exchange of illegal materials. In other words - how to transfer responsibility to users of the resource.
The main method of fighting human rights defenders at the moment is to limit the funding of pirated sites.
The restriction occurs both from the reduction of the number of advertisers working with the resource, and from the restriction of payment processing methods for the resource itself.
In practice, this happens by engaging advertisers as accomplices in laundering illegally obtained funds, imposing bans on advertisers, imposing sanctions on financial agents working with file-sharing networks, or simply by blocking the violator’s current account.
The main problem for advertisers is that they may not be aware of the placement of their materials on a file-sharing resource, which may violate their rights.
Example of court practice:
1) Warner Bros., Disney vs. Triton Media is the first use case that affected file-sharing network advertisers.
The free-tv-video-online.info sites, supernovatube.com, donogo.com, watch-movies.net, watchmovies-online.tv, havenvideo.com and thepiratecity.org have links to pirated video content. The plaintiff claimed that Triton Media was guilty of complicity in copyright infringement, as carried out the placement of banners and direct links to infringing video materials.
Although most of these sites contained only referral links to films stored on third-party resources, the investigation revealed that 2 sites — supernovatube.com and donogo.com — did contain some pirated materials, and the resources themselves belong to managed directly by Triton Media.
The result - a fine of $ 400,000; sites are closed; a ban on the opening of new sites like this; a ban on the turnover of the products of the plaintiffs without a separate agreement of the Parties; ban on advertising sites that contain illegal materials.
2) Clicksor, Chitika, Enom vs. Elsevier, John Wiley & Sons
On the website pharmatext.org in the public domain posted pirated copies of electronic books.
Publishers have decided not to sue the site owners, because they were unknown, and go to court with the requirement for their advertisers and hosting providers to stop funding the illegal activities of the site operator and disclose all information about the owner of the resource.
Despite the fact that direct copyright infringement by the website (advertising platform) can be easily proved, the representative of Chitika (advertising network) said that he was just a software developer that allows downloading ads on several resources at once and keeping track of advertising campaigns / statistics , the developer does not have a mechanism to determine whether the content of a specific site is illegal.
The representative of the advertising network added that the plaintiffs did not provide enough evidence to make an unequivocal conclusion that the respondent knew or should have known about the presence on the site of any materials that violate copyrights.
The court agreed with the arguments of the defendants.
By decision of the court, WHOIS Privacy Services (Enom) is obliged to exclude the site pharmatext.org from public access, provide all available information about the owner of the resource (administrator, current account), as well as prevent the transfer of the blocked resource to third parties. The advertising network Chikita and Clicksor was forbidden to make any transfer of funds to pharmatext.org and in general to conduct joint projects with the site.
Experts believe that the plaintiff should have acted differently: before filing a lawsuit in court, it was necessary to send a notice to the advertising network that the content of the site on which the advertising materials are placed violates the interests of the right holder. Then, in their opinion, the court’s decision would have been different (the ad network could have been recognized as an accomplice in copyright infringement), at least because at the time of filing the claim the defendant should have been aware of his complicity in the crime.
3) Resource Uploaded.to was connected through the resource manager to the DC Remix file-sharing resource, through which users could place their ads on Uploaded.to. DC Remix urged its users to upload illegal content to Uploaded.to in exchange for payments from the file sharing resource for every 1000 downloads. Thus, the companies were recognized as “technical partners” (“technical cooperation”) in order to provide the possibility of illegal distribution of musical works and profit from illegal activities.
4) ItalianShare - according to the police, the torrent tracker in 2011, the resource earned 580'000 EUR from the sale of advertising on its site, i.e. from attracted visitors to the site containing illegal information. Also, it turned out that the site was selling its database to ad networks that used this database to send ads. When submitting financial statements, the administration of the resource hid accounts in the amount of 100'000 EUR, which saved 83'000 EUR. Taking into account the number of facts of copyright infringement (31'000), an especially large amount of income obtained by illegal means, as well as collusion of a group of persons, the resource administrator was sentenced to a fine of 6,400'000 EUR.
Experts believe that the only way to get out of the situation can be active filtering of content uploaded by users from the administration of the resource and the system for notifying users of violations, or an established system of blocking a resource containing illegal information.
Human rights activists take a positive view of participation in the program of cooperation between advertisers and human rights defenders in order to promptly detect the facts of offenses.
Also, human rights organizations are actively working to limit payment processing options for file-sharing services.
Until judicial recognition as illegal of one or another file-sharing resource, advertising on such a resource cannot be considered as illegal activity of one or another advertising agent. For this, the fact of collusion of the advertising platform and the advertiser, or their affiliation, must be proved, but in any case, in order to be held accountable, the fact of the deliberate actions of the parties must be proved.
This whole company to combat advertising networks is aimed at ending the cooperation of major brands with copyright violators, to urge brands to work only with legal advertising sites (YouTube).
in particular, those engaged in the advertising business on the Internet. Increasingly, the question has arisen about the responsibility of advertising networks for cooperation with sites that violate copyrights. This issue is initiated by major rightholders and sites like Google, as well as human rights organizations affiliated with them, and aims to remove competitors from the market that not only lead to lost profits for the film and audio studios, but also attract a significant amount of traffic.
In an effort to deprive the site, placing counterfeit content content, copyright advocates decided to knock out from them the financial basis.
The first big swallow (apart from the case of megaupload) considers PayPal’s decision to refuse to work with pirates.
Currently, the trend has turned to the fight against another source of welfare of torrents and file hosting sites - advertising agencies. I will tell about this in more detail below, and also give a small overview of judicial practice.
So, the main reactions of rights holders or human rights organizations in relation to sites violators:
- the requirement to close the resource;
- the requirement to disband the resource;
- the requirement to conduct an investigation in order to find out the direct violator of rights;
- lobbying interests;
- protection of interests in court.
Experts divide illegal content into two types:
1. It is downloaded by the user and stored on his computer (p2p-network);
2. It is downloaded directly by the moderator or administrator of the Internet resource and is stored on the site server (filehost).
')
The procedure for notification of copyright infringement, as well as the responsibility of the parties to the relationship, are different in both cases.
The administrator of the resource does not bear responsibility for the content downloaded by the user, if he followed the procedure for notifying the offender, the procedure for removing illegal materials, and also used all the necessary methods and methods of protecting the site that restrict the download and distribution of illegal materials.
In the second case, the responsibility is completely shifted to the shoulders of the resource administrator. When creating such sites, first of all, it is necessary to consider whether the procedure of data exchange between users is well thought out so that the resource does not become a platform for the exchange of illegal materials. In other words - how to transfer responsibility to users of the resource.
The main method of fighting human rights defenders at the moment is to limit the funding of pirated sites.
The restriction occurs both from the reduction of the number of advertisers working with the resource, and from the restriction of payment processing methods for the resource itself.
In practice, this happens by engaging advertisers as accomplices in laundering illegally obtained funds, imposing bans on advertisers, imposing sanctions on financial agents working with file-sharing networks, or simply by blocking the violator’s current account.
The main problem for advertisers is that they may not be aware of the placement of their materials on a file-sharing resource, which may violate their rights.
Example of court practice:
1) Warner Bros., Disney vs. Triton Media is the first use case that affected file-sharing network advertisers.
The free-tv-video-online.info sites, supernovatube.com, donogo.com, watch-movies.net, watchmovies-online.tv, havenvideo.com and thepiratecity.org have links to pirated video content. The plaintiff claimed that Triton Media was guilty of complicity in copyright infringement, as carried out the placement of banners and direct links to infringing video materials.
Although most of these sites contained only referral links to films stored on third-party resources, the investigation revealed that 2 sites — supernovatube.com and donogo.com — did contain some pirated materials, and the resources themselves belong to managed directly by Triton Media.
The result - a fine of $ 400,000; sites are closed; a ban on the opening of new sites like this; a ban on the turnover of the products of the plaintiffs without a separate agreement of the Parties; ban on advertising sites that contain illegal materials.
2) Clicksor, Chitika, Enom vs. Elsevier, John Wiley & Sons
On the website pharmatext.org in the public domain posted pirated copies of electronic books.
Publishers have decided not to sue the site owners, because they were unknown, and go to court with the requirement for their advertisers and hosting providers to stop funding the illegal activities of the site operator and disclose all information about the owner of the resource.
Despite the fact that direct copyright infringement by the website (advertising platform) can be easily proved, the representative of Chitika (advertising network) said that he was just a software developer that allows downloading ads on several resources at once and keeping track of advertising campaigns / statistics , the developer does not have a mechanism to determine whether the content of a specific site is illegal.
The representative of the advertising network added that the plaintiffs did not provide enough evidence to make an unequivocal conclusion that the respondent knew or should have known about the presence on the site of any materials that violate copyrights.
The court agreed with the arguments of the defendants.
By decision of the court, WHOIS Privacy Services (Enom) is obliged to exclude the site pharmatext.org from public access, provide all available information about the owner of the resource (administrator, current account), as well as prevent the transfer of the blocked resource to third parties. The advertising network Chikita and Clicksor was forbidden to make any transfer of funds to pharmatext.org and in general to conduct joint projects with the site.
Experts believe that the plaintiff should have acted differently: before filing a lawsuit in court, it was necessary to send a notice to the advertising network that the content of the site on which the advertising materials are placed violates the interests of the right holder. Then, in their opinion, the court’s decision would have been different (the ad network could have been recognized as an accomplice in copyright infringement), at least because at the time of filing the claim the defendant should have been aware of his complicity in the crime.
3) Resource Uploaded.to was connected through the resource manager to the DC Remix file-sharing resource, through which users could place their ads on Uploaded.to. DC Remix urged its users to upload illegal content to Uploaded.to in exchange for payments from the file sharing resource for every 1000 downloads. Thus, the companies were recognized as “technical partners” (“technical cooperation”) in order to provide the possibility of illegal distribution of musical works and profit from illegal activities.
4) ItalianShare - according to the police, the torrent tracker in 2011, the resource earned 580'000 EUR from the sale of advertising on its site, i.e. from attracted visitors to the site containing illegal information. Also, it turned out that the site was selling its database to ad networks that used this database to send ads. When submitting financial statements, the administration of the resource hid accounts in the amount of 100'000 EUR, which saved 83'000 EUR. Taking into account the number of facts of copyright infringement (31'000), an especially large amount of income obtained by illegal means, as well as collusion of a group of persons, the resource administrator was sentenced to a fine of 6,400'000 EUR.
Experts believe that the only way to get out of the situation can be active filtering of content uploaded by users from the administration of the resource and the system for notifying users of violations, or an established system of blocking a resource containing illegal information.
Human rights activists take a positive view of participation in the program of cooperation between advertisers and human rights defenders in order to promptly detect the facts of offenses.
Also, human rights organizations are actively working to limit payment processing options for file-sharing services.
Until judicial recognition as illegal of one or another file-sharing resource, advertising on such a resource cannot be considered as illegal activity of one or another advertising agent. For this, the fact of collusion of the advertising platform and the advertiser, or their affiliation, must be proved, but in any case, in order to be held accountable, the fact of the deliberate actions of the parties must be proved.
This whole company to combat advertising networks is aimed at ending the cooperation of major brands with copyright violators, to urge brands to work only with legal advertising sites (YouTube).
Source: https://habr.com/ru/post/172653/
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