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The Entertainment Software Association, an industry group representing Activision, EA, Epic, Nintendo and other major game companies, is once again taking interest in several major “pirate” sites. All are accused of large-scale distribution of pirated video games. ESA now wants to identify and track them.
Like similar groups and their rights-holding partners in other industries, the Entertainment Software Association (ESA) plays a key role in the video game industry.
Counting gaming giants Nintendo, EA, Activision, Epic and Ubisoft among its members, the ESA is an advocate of strong intellectual property protection and enforcement against piracy. This work includes submitting an annual report to the United States Trade Representative (USTR) in which major “pirate” platforms are designated for “notorious market” status.
Not all ESA nominees have made the following USTR report, but that doesn’t mean the ESA has forgotten about these opponents.
Indeed, court documents filed in the United States this month show that several pirate sites are still on the radar.
Nsw2u.xyz – A thorn in Nintendo’s side
Nsw2u.xyz (formerly called Switch-xci) has links to pirated games for most platforms, including PC. In particular, the ESA has previously highlighted the importance of the site to the Nintendo Switch piracy market. As of September 2021, the site featured 5,500 posts related to game downloads for the popular console, including its most recently launched titles.
The ESA recently reported that takedown notices sent to Nsw2u.xyz are routinely ignored, and because the site uses Cloudflare, its operators are harder to identify.
In an attempt to remedy the latter, the ESA this month obtained a DMCA subpoena against Cloudflare ordering the disclosure of names, physical addresses, IP addresses, phone numbers, email addresses, payment information and Nsw2u.xyz operator account updates/history.
Darkw.pl and Rapidu.net
When nominated for “notorious market” status last year, the ESA called out Darkw.pl for indexing more than 65,000 links to pirated copies of its members’ video game titles and making them available. available to 187,000 registered users.
File hosting platform Rapidu.net has been criticized for hosting 10,600 games from ESA members. Both sites used Cloudflare, so in order to identify their operators, the ESA subpoena requires the CDN company to pass on their contact information as well.
Darkw.pl is currently returning a Cloudflare error, but it may still be functional since the site is known to block IP addresses from certain regions. Rapidu.net, on the other hand, seems to be down. The domain has not been functional for weeks and there are reports that some downloaders may not have been paid as promised.
Torrent Sites
Torrent sites TorrentFunk.com and TorrentDownloads.pro are no strangers to ESA criticism. Last year, each was accused of hosting more than 3,300 .torrent files related to ESA member game titles and then failing to respond to DMCA takedown notices demanding their removal.
In common with the rest of the domains listed in this article, TorrentFunk and TorrentDownloads also use Cloudflare’s services. So, having been listed in the ESA subpoena, site operators now face the surrender of their identities for enforcement action – if they registered their correct identities. details, of course.
Although the court clerk does not appear to have had a problem issuing a DMCA subpoena against Cloudflare, a review of case materials suggests that the official ESA request did not provide all of the information required by law. This raises the question of whether Cloudflare will comply with the subpoena as it stands.
Why the app seems deficient
Section 512(h) of the DMCA grants copyright owners the power to subpoena companies such as Cloudflare to obtain “information sufficient to identify” an otherwise anonymous infringer. Simply put, the copyright owner files a request with the court that includes a proposed subpoena and a copy of the DMCA takedown notice targeting the allegedly infringing content.
The takedown notice must meet the criteria set forth in subsection (c)(3)(A) and must identify the copyrighted work that is allegedly infringed or, in the case of multiple works on the same site covered by a single notice, a representative list of these works.
The material claimed to be infringing (and therefore should be removed) must also be identified in the notice, along with “reasonably sufficient information” (such as URLs) to permit the service provider to locate the material.
The DMCA notice filed by the ESA in support of its DMCA subpoena request fails to identify the original copyrighted works and omits any information that could help locate infringing copies of those works mysterious.
This legally required (but missing) information may exist somewhere, but nothing on file says it does. There may be something else going on here, but at least on the surface, it looks like a DMCA notice that doesn’t mention any copyrighted material could be used to gain access to private information.
Of course, the operators of pirate sites don’t care because they probably used false information when registering on Cloudflare. But for anyone else who might find themselves accused of unidentified infringement of non-specific content, that’s not exactly much comfort.
Each document in the file can be consulted here (1,2,3,4,5, pdf)
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