Manga and anime have become increasingly popular in recent years. These formats originate in Japan but are now popular all over the world.
Available in static and animated form, ‘hentai’ describes the adult versions of the above, which also has growing audience of many millions of fans.
As with any type of media, not all consumers are paying for access. Many people prefer ‘free’ websites instead, such as nHentai.net, which had nearly 80 million visits in June this year.
Target: nHentai
Rightsholders are not happy with these free platforms and many have classified nHentai as a brazen pirate site that shouldn’t be allowed to operate.
This summer, California company PCR Distributing, which operates under various brands, including J18 and JAST USA, took action. The company tried to obtain a DMCA subpoena requiring Cloudflare to hand over all identifying information it has on the site’s operators.
DMCA subpoenas have proven to be an effective legal tool to gather information. In this case, however, nHentai’s operators decided to intervene, asking the court to quash the subpoena. While that could have been an interesting legal battle, PCR voluntarily dismissed the matter and decided to file a full-fledged lawsuit instead.
PCR Sues nHentai
In a complaint filed at a California federal court in August, PCR described nHentai as a popular ‘pirate’ site with dozens of millions of visitors. The site shares copyrighted material without obtaining permission from rightsholders, the company informed the court.
“[Nhentai] hosts a vast collection of hentai works, including commercially produced content, much of which, based on information and belief, is shared without proper authorization from the owners,” the complaint reads.
PCR further argues that nHentai can’t rely on a DMCA safe harbor as the operators allegedly uploaded the infringing content directly and then failed to respond to takedown requests.
Early Discovery
PCR didn’t waste any time renewing its earlier efforts to unmask the operators of nHentai. The rightsholder filed a motion for early discovery, requesting subpoenas to obtain information from NameCheap, Cloudflare, and Lanoto Solutions.
The requested information includes names, addresses, login information, billing records, server logs, IP addresses, email exchanges, and IP login information related to the NHentai.net accounts.
“Plaintiff seeks the identities of Defendants, the owners and operators of nHentai, who have taken measures to conceal their identity,” PCR wrote, noting that the subpoenas would help to establish relevant detail.
Early Discovery
nHentai Opposes
Nhentai swiftly opposed this request, citing serious privacy concerns. The site doesn’t want its login information and financial records, including complete credit card numbers, to be exposed.
As a further precaution, the site also asked the court for a protective order, to ensure that if early discovery is granted, none of the identifying information will end up in public.
While this response was expected from the site, nHentai’s memorandum adds new information that puts the copyright infringement complaint in a new light. According to the defense, PCR previously gave the site permission to use its content.
Permission Granted?
Nhentai’s attorney says that a representative of plaintiff’s brands gave written permission via email to use J18 Publishing’s content. In the same email, it also inquired about running paid ads on the site.
“Plaintiff has repeatedly given Nhentai.net permission, in writing, to use Plaintiff’s content. Plaintiff expressed on multiple occasions that it does not want Nhentai.net to stop using its content,” nHentai informed the court.
“In fact, Plaintiff wants Nhentai.net to use it so that Plaintiff can amass even more money from the sexually explicit materials Plaintiff sells. Plaintiff has even offered to pay Nhentai.net to run ads on its website to accomplish this goal.”
One of the emails in question, posted below, clarifies that “this isn’t a takedown request or a DMCA”, offering a collaboration instead.
Permission?
In another email, also cited in the legal paperwork, PCR’s representative sent a spreadsheet of over 3,300 links, which nHentai was ‘permitted’ to share. In yet another email, the company indicated that it was considering paying nHentai for banner ads.
Banner?
PCR Responds
This week, PCR responded to nHentai’s opposition and the newly revealed details. According to the rightsholders, there’s nothing that should prevent the court from granting the subpoenas.
“Plaintiff is not seeking information about end users, their credit card numbers or any of the parade of horribles cited by Defendant. All of the information sought is limited to information about the operators of this website,” PCR notes.
The response doesn’t dispute that the cited emails are legitimate but even if they are, that doesn’t establish a license or consent to use PCR’s copyrighted content.
“Here, to support their non-exclusive license, Defendants merely cite invitations to bargain and prior negotiations. Under California law, an invitation to bargain is not an offer.”
In addition, PCR points out that after the ‘unauthenticated’ emails, it sent several DMCA takedown notices that were ignored. This is why PCR decided to go to court, hoping to identify the operators.
“Plaintiff’s brief also […] ignores the fact that before this case was filed Plaintiff sent multiple DMCA takedown notices and recently served a DMCA subpoena on in an attempt to identify Defendant, thus dispensing with the notion there was some sort of ‘permission’,” PCR writes.
The court has yet to rule on the motion for early discovery, but the details released so far suggest that this case may present some intriguing twists and turns as it progresses toward trial.
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A copy of nHentai’s motion for a protective order, citing the emails mentioned in this article ,is available here (pdf). PCR’s response can be accessed here (pdf).
From: TF, for the latest news on copyright battles, piracy and more.
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