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EFF intervenes in key stream-ripping legal battle
By Chris Cooke | Published on Tuesday 23 April 2019
The US-based Electronic Frontier Foundation has submitted a so called amicus brief in support of FLVTO.biz and 2conv.com, the Russian stream-ripping sites which the American record industry is trying to sue out of business. The EFF supports the classic line of defence that the two sites have legitimate uses, presented by the man behind them, while also arguing that a US district court was right to dismiss the case on jurisdiction grounds earlier this year.
Stream-ripping, of course, has been at the top of the music industry’s piracy gripe list for a while now. And the record companies have successfully forced offline a number of sites that allowed users to turn temporary streams into permanent downloads. This was achieved by either suing them or – in many cases – simply threatening to sue them.
However, Tofig Kurbanov – operator of FLVTO.biz and 2conv.com – has chosen to fight back after the labels sued him for contributory copyright infringement in the US courts. In January the record industry’s initial lawsuit was dismissed when a district court in Florida said it had no jurisdiction over his sites.
That judgement was reached on the basis that the two sites are based in Russia, only a very small percentage of their users are based in the US, and no sign-up is required to rip a stream, meaning Kurbanov doesn’t have a direct business relationship with any US users.
Unsurprisingly, last month the Recording Industry Association Of America appealed that ruling, arguing that it set a dangerous precedent. The trade group wrote: “The district court’s decision gives carte blanche to internet pirates to set up shop outside of the US, safe in the knowledge that they are effectively immune from the reach of US courts seeking to vindicate the rights of US plaintiffs for violations of US copyright law, even as they cater to US users”.
Kurbanov responded last week by asking the Fourth Circuit appeals court to uphold the initial ruling in the case. The EFF’s submission followed that request, supporting Kurbanov’s arguments on both the copyright infringement and jurisdiction points.
Like pretty much every software maker and website operator accused of facilitating copyright infringement, Kurbanov argues that his website has both legitimate and illegitimate uses. He can’t be held responsible for policing how people use his technology, he says.
Although this argument hasn’t generally worked in past online piracy cases, the EFF reckons it’s a solid defence in this dispute. It writes in its court submission: “As with nearly every technological tool in the world, video converters like FLVTO and 2conv have both legal and illegal uses. And simply providing a tool for copying digital media does not give rise to infringement liability”.
Honing in on the legal uses, it goes on: “People around the world upload hundreds of hours of video and audio every minute to YouTube and other video sharing websites. Much of this content is uploaded with the rightsholder’s permission for users to download and save it. Millions of videos on YouTube are licensed under Creative Commons licenses, which grant permission for anyone to make copies. Millions more are uploaded with the intention that select people will download them, such as business associates and family members”.
Then there are the copyright exceptions or – as this is an American case – good old ‘fair use’. The EFF writes: “Even where a rightsholder has not granted permission for copying, there are numerous circumstances in which downloading audio and video from YouTube is a non-infringing fair use. These include using portions of a video or song as part of a critical review, in a parody, or as raw material for new and different creative work”.
To conclude, the EFF restates: “The law is clear that simply providing the public with a tool for copying digital media does not give rise to copyright liability”.
Of course, the judgement actually being appealed in this case didn’t reach any conclusion on the copyright liabilities – or not – of stream-ripping websites, because the record industry’s lawsuit was dismissed on jurisdiction issues alone. The EFF’s amicus brief deals with that too, first by arguing that the district judge’s reasons for concluding his court did not have jurisdiction over FLVTO.biz and 2conv.com were sound.
Secondly, it then criticises more generally copyright owners who pursue legal action in their home courts against foreign websites. Those foreign websites, the EFF argues, often choose not to fight lawsuits of that kind, meaning default judgements are awarded to the copyright owners without their legal arguments being properly scrutinised.
Those judgements may then be used to pressure domain registrars and server hosting companies to stop providing services to the targeted websites. In some countries – though not the US – a web-block injunction might follow, forcing internet service providers to stop their customers from accessing accused sites. Default judgements of this kind, the EFF argues, are not good for the law at large.
“Over the last several years”, it writes, “major copyright … holders … have sued foreign website owners who are unlikely, or indeed unable, to appear in a US court to respond. Upon the inevitable default, the plaintiffs request staggeringly broad injunctions that purport to bind nearly every type of intermediary business that forms part of the internet’s infrastructure, enlisting them to help make the foreign website disappear from the internet”.
When this happens, the EFF reckons, questions about the liabilities of websites and the companies that provide them services are not properly dealt with. Its court filing goes on: “Confronting these questions in cases that seem designed to lead to default risks short-changing the development of the law, effectively resolving challenging questions by default, without adversarial honing”.
As mentioned above, the “but we have legal uses too” defence has not generally stood up in past piracy lawsuits. Mainly because, when those accused of facilitating online infringement then say “and we can’t control how people use our technology”, the courts have ruled that that’s not in fact true. Such sites could install some kind of filtering system to try to stop their services from being used to infringe, even if such systems have limited success.
As for the jurisdiction point, the music industry will always point to those piracy platform operators which deliberately choose to base themselves or their servers in countries where copyright law is hard to enforce. Thus requiring copyright owners to seek injunctions or web-blocks back home.
In the main, precedents set in the US courts over the last two decades, in cases like this one, have generally favoured the copyright owners on points of liability or jurisdiction. Which is why the US record industry is so keen to get January’s ruling overturned. It remains to be seen if Kurbanov and his friends at the EFF can stop that from happening.
