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US judge recommends that the majors should get $83 million in damages from stream-ripper

By | Published on Tuesday 21 December 2021


A US judge has recommended that the major labels should be granted a neat $82,922,500 in damages from the Russian operator of stream-ripping websites FLVTO and 2conv because of, well, you know, all the super bad stream-ripping those sites have enabled.

The music industry has filed – or threatened to file – litigation against various stream-ripping services in recent years, of course, those being services that turn temporary streams, often YouTube streams, into permanent downloads.

Most targeted services either ignore the legal threats or quickly shutdown their operations, but FLVTO and 2conv owner Tofig Kurbanov decided to fight the labels in court when they sued in the US.

He began by trying to get the case dismissed on jurisdiction grounds, because he was a Russian citizen running a Russian internet business from Russia, meaning – he argued – the US courts had no jurisdiction. That tactic actually worked initially and the case was dismissed.

However, it was reinstated on appeal and the US Supreme Court declined to consider Kurbanov’s jurisdiction arguments, so then things moved onto the labels’ copyright arguments, and whether or not the provider of a stream-ripping service is liable for any copyright infringement that service might enable.

Things then progressed as you might expect, until the labels asked the court to force Kurbanov to hand over his server logs so that they could see what content his users were ripping and where those users were based. Kurbanov said that he didn’t have any such data. The majors countered that he should do.

Of course, Kurbanov could gather that data if he wanted to, but he argued that doing so would be a major hassle, and also pose all sorts of privacy and data protection concerns. However, the court did not agree and ordered him to start storing the data the labels wanted – and to then share it with the music companies.

At that point Kurbanov decided to bail on the case entirely, with his American lawyers telling the judge in July: “Mr Kurbanov has made clear that he does not intend to cooperate further with the present litigation”. That meant a default judgement in the labels’ favour was assured and, indeed, it duly followed.

Having got their default judgement, the labels then returned to court seeking damages, both for the actual copyright infringement that Kurbanov’s services had facilitated, and also because his sites violated rules in the US Digital Millennium Copyright Act that prohibit the circumvention of copyright protection measures, like those put in place by YouTube to stop stream-ripping.

That latter point is actually under dispute in another legal battle between the record industry and a stream-ripping operation, in that case Yout. It argues that YouTube doesn’t really have any substantial copyright protection measures for sites like Yout, FLVTO and 2conv to circumvent when they facilitate the ripping of a stream.

But in this litigation, with Kurbanov having bailed on the case, the stream ripper is deemed liable for circumventing copyright protection measures, as well as having contributed to actual copyright infringement. Although, in financial terms, it’s the contributory copyright infringement that is most costly.

In their lawsuit, the labels identified 1618 specific copyrights violated by FLVTO and 2conv, and – after winning the default judgement in their favour – they requested $1250 in damages per work in relation to the stream ripping sites circumventing copyright protection measures. But they asked for $50,000 per work for the contributory infringement.

Reps for Kurbanov did respond to the labels’ damages claim, arguing that the court should award only $200 per work, which is the lowest amount allowed under the statutory damages system in US copyright law. A court is actually only allowed to set damages that low if a defendant unknowingly infringed copyright material.

But, having considered all the arguments, magistrate judge Theresa Buchanan has recommended that the labels be awarded the damages they requested. A total of $51,250 per work is appropriate, she wrote in a report last week, “given plaintiffs’ lost profits and defendant’s advertising revenue, history of infringement, knowledge of copyright laws, and overfall wilfulness”.

The judge conceded that the court doesn’t actually know what kind of profits Kurbanov made from his stream-ripping operation, because he declined to share financial documents, however, she wrote: “It is reasonable to infer that defendant’s financial documents would have reflected that defendant has generated significant profit from his highly popular stream-ripping websites”.

Kurbanov and his team now have two weeks to respond to Buchanan’s recommendation before a final judgement on damages is made. It seems unlikely they’ll radically alter the final decision at this stage. Although, it also seems pretty unlikely that Kurbanov, being based in Russia, will ever pay the damages any way.