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French government says stream-ripping can be covered by the private copy exception

By | Published on Tuesday 6 July 2021

Digital Music

Stream-ripping services have been the top piracy target of the music industry for several years now. However, the French government has thrown a bit of a spanner in the works by saying that the ripping of streams is entirely legal under the private copy exception of the country’s copyright system. Well, sort of. Before you move to France to set up such an operation – or to start ripping all the music off YouTube – there are a number of conditions that need to be met in order to stay within the law.

Whenever a stream-ripping site has been targeted with legal action or sent a cease-and-desist letter by the record industry, the operator of that site has immediately exclaimed “but what we are doing is entirely legal!” Although shortly after that exclamation, most operators quietly close down their sites, not willing to test that argument in court. However, some have stood their ground and kept on allowing users to rip permanent copies of temporary streams on the basis that doing so is, well, “entirely legal”.

There are two questions regarding whether or not stream-rippers are liable for copyright infringement. Firstly, are the websites that provide stream-ripping services liable by providing such services, even if they never actually store any unlicensed content on their servers? And second, is the user initiating the stream ripping process and downloading the resulting MP3 liable for copyright infringement, assuming they don’t own the track being ripped or have permission from whoever does?

Most attention tends to fall on the former question, given it’s the stream-ripping sites that tend to be targeted with threats of legal action. Does simply facilitating a stream rip constitute a ‘communication to the public’ under copyright law? Or could the website be liable for authorising or contributory infringement by encouraging and helping the user to download a file without licence? Although for the stream-ripping site to be liable for authorising or contributory infringement, the user would definitely have to be liable for direct infringement by creating and downloading the ripped file.

Anyway, where these questions have been asked in court – either as a result of litigation against stream-ripping sites or when the music industry seeks web-blocking injunctions against such sites – it’s generally been decided that there is some copyright infringement going on, and there is some liability on the part of the stream-ripping platforms.

However, the French Ministry Of Culture has possibly fudged things a little when responding to Philippe Latombe, a member of the French National Assembly, who asked the government department whether or not stream-ripping was illegal.

According to Torrentfreak, the ministry’s answer was “not necessarily”. Why? Well, because stream-ripping might fall under the private copy exception that exists in most copyright systems, whereby people can make private copies of recordings without the copyright owner’s permission. That said, there are some key requirements to meet for that to be the case.

“[Stream-ripping] is legal and the resulting copy falls under the exception for private copying as provided by law if several conditions are met”, the ministry said. “It must be made from a lawful source at the request of the user, without being stored by the converter, and no circumvention of technical protection measures must be carried out”.

The latter of those points is particularly interesting, not least because it’s arguably the condition that unfudges the French fudge, in that the music industry would argue that most stream-ripping sites are definitely seeking to the circumvent technical measures employed by streaming platforms, especially YouTube, to stop stream-ripping from occurring.

Although one stream-ripping site, Yout, is currently disputing that interpretation of the service it offers through the US courts. Yout is actually suing the record industry – rather than the other way around – accusing the Recording Industry Association Of America of damaging its business by seeking to get it de-listed from the Google search engine on copyright grounds.

When seeking to get Yout removed from Google, the RIAA argued that the stream-ripping site circumvents “YouTube’s rolling cipher, a technical protection measure, that protects our members’ works on YouTube from unauthorised copying [and] downloading”. And that, the trade group added, violated the US Digital Millennium Copyright Act.

However, in its lawsuit against the RIAA, the stream-ripping operator said: “Contrary to defendants’ allegations, Yout’s software platform is not designed to descramble, decrypt, avoid, bypass, remove, deactivate, or impair the YouTube rolling cypher technology. In fact, any digital mechanism in place designed as anti-circumvention technology stops Yout users from recording and saving that protected work, thereby demonstrating Yout’s compliance with any anti-circumvention protections in place”.

So who knows? Of course, how the private copy exception works differs greatly from country to country – and the exception doesn’t exist at all under UK copyright law. So, the French fudge would only work in France anyway. But still, it’s a development that makes it all the more important for the RIAA to convince the courts that Yout is circumventing technical protection measures when facilitating any YouTube ripping.