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Labels’ lawsuit against stream-ripping sites FLVTO.biz and 2conv.com can proceed in Virginia, court rules
By Chris Cooke | Published on Thursday 1 April 2021
A federal court in Virginia has ruled that the copyright case being pursued by the major labels against stream-ripping sites FLVTO.biz and 2conv.com can proceed, despite the owner of said sites – Tofig Kurbanov – being a 20 hour flight away from the US state, and a twelve hour drive from his nearest US embassy. Kurbanov has been busy trying to have the case against him dismissed on jurisdiction grounds.
Stream-ripping services – websites that turn temporary streams into permanent downloads – have been at the top of the music industry’s piracy gripe list for some time now. Numerous such sites have been targeted with legal action, or threats of legal action, by the labels and their trade bodies. Many of those targeted sites just shutdown once litigation looks like a very real prospect, but Kurbanov decided to fight the lawsuit filed against him by the US labels in a court in Virginia.
Initially he had some success with the argument that said court didn’t have jurisdiction over the websites he ran entirely from Russia. First time around the district court dismissed the record industry’s lawsuit on those grounds.
However, the labels then took the case to the Fourth Circuit appeals court where judges overturned the lower court ruling after concluding that there were various reasons why it could be deemed that FLVTO.biz and 2conv.com were actively trading in the US, even though the websites are formally based in Russia and don’t require any sign-up from users.
That ruling sent the case back to the district court. Though not before Kurbanov had a go at appealing the appeal, asking the US Supreme Court to intervene on the jurisdiction point. However, the top court declined to get involved earlier this year.
Back in the district court, there was still one more jurisdiction point to be addressed. Although the Fourth Circuit had deemed that FLVTO.biz and 2conv.com were actively trading in the US, there remained one more issue that hadn’t been considered by the district court or the appeals court that could still be grounds for dismissal.
In the words of the district court itself: “Acknowledging that the [lower] court did not reach the issue in its 22 Jan 2019 order, the Fourth Circuit remanded the case to the court with instructions to determinate the final requirement for personal jurisdiction: ‘Whether the exercise of personal jurisdiction would be constitutionally reasonable'”.
In a judgement published on Tuesday, judge Claude M Hilton considered whether making Kurbanov fight this litigation from his base in Russia was or was not “reasonable”. Along the way he noted that copyright cases can be complex and require repeat in-court appearances. And Kurbanov “resides in Rostov-on-Don, Russia, more than 20 hours by place from the Eastern District of Virginia”.
Moreover, the “defendant does not have a visa to visit the United States, and the nearest US embassy for him to obtain one is a twelve-hour drive from his home”.
But don’t be thinking all that geography is a get-out. Kurbanov has legal representation in the US, Hilton then noted, and those lawyers have made many filings on his behalf already. “Defendant appears to maintain satisfactory communication with his counsel”, the judge added, and “there is nothing to indicate defence counsel could not adequately represent defendant’s interest in the United States going forward”.
Adding that the state of Virginia has an interest in resolving this dispute, and stressing again the Fourth Circuit’s conclusion that Kurbanov was actively trading in the state, Hilton concluded: “Defendant has failed to present compelling reasons that litigating this case in the Eastern District of Virginia would unduly burden him”. And so, “defendant Kurbanov is subject to the jurisdiction of this court in this matter”.
Phew, we finally got there. And with the jurisdiction technicalities now dealt with, next the court can actually start considering the copyright infringement claims against FLVTO.biz and 2conv.com, and the various arguments Kurbanov’s lawyers are sure to present as to why a stream-ripping operation cannot in itself be held liable for infringing copyright.
