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Stream-ripper says judge got it wrong when proposing $83 million damages bill
By Chris Cooke | Published on Monday 10 January 2022
Legal reps for the Russian operator of stream-ripping websites FLVTO and 2conv have responded to the recent recommendation by a US magistrate judge that he be ordered to pay the major record companies nearly $83 million in damages. Brace yourself for a shock. They don’t think he should be ordered pay the major record companies nearly $83 million in damages.
Somewhat unusually, Tofig Kurbanov decided to fight legal action filed by the US record industry in 2018 against his FLVTO and 2conv websites, which allow people to download permanent copies of YouTube streams. Usually when stream-ripping sites are sued by the music industry they quietly take their services offline – or sometimes just ignore the litigation entirely.
As a Russian citizen running websites out of Russia, Kurbanov initially argued that the US courts didn’t have jurisdiction in this case. That argument initially worked, but not for long. Which meant Kurbanov found himself arguing with the labels over whether or not providing stream-ripping services constitutes contributory copyright infringement.
Along the way the labels demanded access to the user-logs of FLVTO and 2conv, so to better ascertain what content people were stream-ripping via the sites, and which countries the stream-rippers were based in. Unwilling to hand over any such data, Kurbanov decided to bail on the case instead. Which meant the labels won a default judgement in their favour.
Which is why magistrate judge Theresa Buchanan last month spent some quality time considering what damages the labels should get for all the copyright infringement enabled by FLVTO and 2conv.
In their lawsuit, the labels identified 1618 specific copyrights infringed by FLVTO and 2conv. They then requested $50,000 in statutory damages per work for the actual infringement, plus another $1250 per work because Kurbanov’s sites circumvent copyright protection measures put in place by YouTube, in violation of the US Digital Millennium Copyright Act.
Having considered that request from the labels, Buchanan basically decided that their claims were reasonable, and thus recommended that the court order Kurbanov to pay the music companies a neat $82,922,500 in damages.
But needless to say, Kurbanov’s reps reckon Buchanan got it wrong. Because, they argue, while the labels may have won a summary judgement in their favour by default – because their client bailed on the case – they still need to demonstrate that their recordings were actually infringed by US users of FLVTO and 2conv in order to claim statutory damages.
“It was incumbent on plaintiffs to provide evidence to the court of actual instances of infringement by United States-based visitors to Mr Kurbanov’s websites”, the lawyers write in a formal response, “as statutory damages are premised on a certain amount being awarded to the plaintiffs for each infringement”.
“Remarkably”, they go on, “despite submitting to the court more than 450 pages worth of materials, plaintiffs failed entirely to provide any evidence of the one thing that is a prerequisite to any recovery: namely, proof of the existence of even a single improper download of plaintiffs’ copyrighted materials within the United States”.
“This is not mere hyperbole”, they insist. “The plaintiffs produced no evidence whatsoever that even a single person in the United States ever utilised Mr Kurbanov’s websites to improperly download one of their copyrighted songs”.
“In her report and recommendation, the magistrate held improperly that plaintiffs did not need to prove any infringements of their works because such proof was presumed by virtue of her having ordered the default against Mr Kurbanov”, they add.
That was an “improper” conclusion, they argue, because “the law on this point is exceedingly clear: regardless of the fact that the court defaulted Mr Kurbanov, plaintiffs were required to prove the facts that would entitle them to recover the damages sought”.
“Here, they neither alleged, nor proved, the facts necessary for an award of either actual or statutory damages. As such, the court should reject the recommendation of the magistrate, find that plaintiffs have failed to make a showing of monetary damages and deny them recovery of the same”.
Team Kurbanov also take issue with the size of the statutory damages recommended by Buchanan. Even if the court does ultimately decide statutory damages are due – they argue – $51,250 per work is way over the odds. Indeed, Kurbanov’s reps previously said $200 per work would be more reasonable, and they are sticking with that argument.
The lawyers provide various reasons for setting much lower damages, including that Kurbanov is only liable for contributory infringement, not direct infringement, because he didn’t himself download any of the labels’ recordings, users of his websites did.
Another reason cited relates to an argument that has come up in another big legal battle between the US labels and a stream-ripping site – that being the Yout case – ie the argument that stream-ripping sites aren’t actually circumventing any technical protection measures put in place by YouTube.
Kurbanov’s sites make use of the open-source download manager youtube-dl. The legal status of that software – ie whether or not it actually circumvents any technical protection measures – has also been discussed elsewhere, mainly after the Recording Industry Association Of America tried to get it removed from Github in 2020. Some argue that youtube-dl – like Yout – doesn’t actually do any circumventing.
Now, Kurbanov lost the opportunity to make similar arguments in relation to FLVTO and 2conv when he bailed on the litigation. However, his lawyers say, those arguments are still relevant when it comes to damages. “The operation of the websites – and their use of freely available open-source software – is still relevant to the court in its determination of the proper level of statutory damages to be awarded”, they write.
“Here, given that even some industry experts say that the use of the youtube-dl software does not circumvent technological measures, and given that Mr Kurbanov did not himself use the software to download plaintiffs’ songs (but rather visitors to his websites did), this court can find that Mr Kurbanov’s infringement of plaintiffs’ works was innocent in nature, meriting only the lowest amount of statutory damages, or $200 per work in suit”.
We await to see if the court pays attention to any of this – or if it just rubber stamps Buchanan’s $83 million damages proposal.
