Foreign Stream-Ripping Site Wins Against Music Labels Based On Jurisdiction

from the not-like-this dept

It's been quite frustrating to watch the music industry continually turn its legal gaze to whatever it insists is the "new" threat. From the traditional piratey-scapegoats like Napster, to torrent sites, and on to file-lockers, before finally moving over to stream-ripping sites -- it's been quite predictable, if a bit silly. As with so many industry-led crusades against technology tools, this attack on these types of sites carries with it the misguided notion that because a site or tool can be used to infringe on music copyrights, it therefore is an enemy and must be shut down entirely. We've seen this same tactic used against tons of technology tools that have had perfectly legal uses in the past, but in the case of stream-ripping sites, most have decided to simply fold.

Which makes it somewhat noteworthy that one foreign site is fighting back and winning against a legal challenge in the US, if only on jurisdictional grounds.

FLVTO.biz and 2conv.com, owned by Russian developer Tofig Kurbanov, remained online despite being sued by several record labels last August. Where other site owners often prefer to remain in the shadows, Kurbanov filed a motion to dismiss the case. According to the defense, the court has no jurisdiction over the matter. Only a small fraction of the visitors come from the US, and the site is managed entirely from Russia, it argued.

The RIAA labels involved in the suit disagreed, of course. As with all lawsuits of this kind, the labels merely see a tool that American users can get to, and can use to infringe, therefore it must be killed off. FLVTO pointing out that it doesn't do anything to entice American users to its site, nor does it engage in any commercial activity on the site other than displaying advertisements, did nothing to keep the RIAA from suing. It did, however, convince the judge to toss the case on jurisdictional grounds.

“Even if the Websites’ servers knew exactly where the users were located, any interaction would still be in the unilateral control of the users as they initiate the contacts,” Judge Hilton’s opinion reads.

There could be personal jurisdiction if there’s a “commercial contract” involved. However, that’s not the case here. The site generates revenue from users through advertisements, but that’s not seen as a basis for a commercial contract, the court concludes.

In other words, an American company can't sue a foreign operator in the US simply because the internet works as intended.

While this is a good ruling generally, it might be nice to get the courts to establish some clarity on the legal status of stream-ripping sites. Again, these are essentially dumb sites that don't care whether the rip is infringing or not. They are a tool, nothing more. Given that, the fact that these sites are shutting themselves down under the mere threat of lawsuits represents a pretty clear chilling effect on the dissemination of otherwise legal tools and technology to the internet writ large.

This is especially true given that we already have a pretty clear precedent for this issue. Stream ripping is little different from the VCR in effect. It is taking a "stream" of live content, and "recording" it for personal use and storage. Thirty-five years ago, the Supreme Court made it clear that this was perfectly legal in the famous Sony Betamax case. In that case, the court found that there were substantial non-infringing uses of the technology -- as is true of stream rippers -- and that "time shifting" of content that was being streamed live was a perfectly legitimate use. As the ruling in the Betamax case found:

The question is thus whether the Betamax is capable of commercially significant noninfringing uses. In order to resolve that question, we need not explore all the different potential uses of the machine and determine whether or not they would constitute infringement. Rather, we need only consider whether, on the basis of the facts as found by the District Court, a significant number of them would be noninfringing. Moreover, in order to resolve this case, we need not give precise content to the question of how much use is commercially significant. For one potential use of the Betamax plainly satisfies this standard, however it is understood: private, noncommercial time-shifting in the home. It does so both (A) because respondents have no right to prevent other copyright holders from authorizing it for their programs, and (B) because the District Court's factual findings reveal that even the unauthorized home time-shifting of respondents' programs is legitimate fair use.

It is difficult to see how that same standard does not apply to stream ripping as well -- but so far, the RIAA (in particular) is acting as if the Supreme Court ruled the opposite way in the Betamax case, and because many of these sites are small, they have little desire to actually fight a huge, costly legal battle. And thus, the RIAA has mostly been able to kill off the modern VCR. This case turned on jurisdiction issues, which is a good start, but a clear ruling that stream ripping is legal, a la the Betamax, would be even better.

Filed Under: copyright, fair use, intermediary liability, jurisdiction, recording, stream ripping, substantial non-infringing uses, time shifting, tofig kurbanov
Companies: 2conv, flvto.biz


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  1. identicon
    Anonymous Coward, 25 Jan 2019 @ 4:29pm

    Copyright law generally gives jurisdiction to the location from which the protected work was "stolen," i.e., the US in this case.

    However, RealPlayer has a "download this video" feature built into its software, that would also appear to be infringing, yet which continues to exist. Numerous other programs also allow recording of what's on the computer screen so I don't see how ripping a publicly available stream would be an issue.

    Wouldn't the proper strategy be to require YouTube to stop these uploads?

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