FLVTO.biz Petitions SCOTUS To Hear Jurisdiction Argument In Stream-Ripping Lawsuit

from the we-are-not-the-world dept

While the music industry's war on stream-ripping sites -- sites that have perfectly legitimate and legal uses -- continues, it's true that this is a war in which one side has almost universally surrendered. Facing legal opposition with well-funded industry groups, most stream-ripping sites simply close up shop when staring down litigation. But Russia-based FLVTO.biz has been an exception. We first wrote about the site's decision to defend itself back in early 2019. At that point, the owner of the site, Tofig Kurbanov, had successfully argued in a Florida court that the United States legal system had no jurisdiction over his site, given that it operates in Russia and makes no effort to entice American patronage.

It was a sensible ruling. After all, why should anyone want websites in one nation to be subject to the laws of every other nation's laws just because the internet is designed to be international? And, yet, the RIAA labels appealed the ruling and got it reversed. The case was sent back to the lower courts where it was supposed to once again proceed, except that Kurbanov's team has asked the Supreme Court to consider its jurisdiction arguments once more.

Those plans were then confirmed last month back at the Virginia court where the lawsuit began, which is considering the case anew following the Fourth Circuit ruling. Kurbanov’s lawyers have asked the district court to pause the ongoing proceedings there pending their application to the Supreme Court.

That application was submitted earlier this week. It argues that the top court should consider the case, because some Supreme Court style consideration is required on the issue of whether or not “the ‘due process clause’ of the United States Constitution is violated when a foreign citizen is subjected to personal jurisdiction based entirely on: (1) his operation of a website that is popular both within the United States and worldwide, but which is not specifically aimed at the United States; and (2) minor internet-based and internet-initiated transactions entered into by the foreign citizen entirely from outside the United States”.

This is indeed just the sort of important due process argument in the age of the internet that a sober SCOTUS should be weighing in on. And, while we could get lost in the legality of it all, common sense really should rule the day here. Does American law have jurisdiction over foreign entities not making any real effort to do commerce on American soil or does it not? And, if so, what precedent does that set for every other nation out there in terms of how American-based businesses conduct business over the internet?

Shall legal pornography websites in America be subject to the more prudish laws of other nations? Should news organizations in America face litigation from countries with far fewer press and free speech protections? Hell, should American entities legitimately selling RIAA label music themselves face threats from countries with obscenity laws and the like?

Evan Fray-Witzer said: “If you operate a website that is popular, then you’re subject to jurisdiction anywhere – and everywhere – that people access the website. And that’s not a precedent that anyone should want to stand, because if Kurbanov can be dragged into court here from Russia, then any US citizen who creates a popular website can expect to be dragged into court anywhere in the world”.

The lawyer also told Torrentfreak that the major labels should support his client’s bid to get the Supreme Court to provide clarity on this issue.

“If the record companies are so certain that the Fourth Circuit got this question right, then they should be anxious for the Supreme Court to take up the case”, he added. “We invite them to join our petition and ask the Supreme Court to weigh in on these crucial jurisdictional questions. But I’m not holding my breath that they’ll do so”.

It can be hard for the labels to see past the ends of their own noses, but they should realize that they could truly be biting themselves in their own asses if SCOTUS refuses to hear this case and this precedent gets set. The internet is international, but American laws are not.

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Filed Under: copyright, jurisdiction, russia, streaming, supreme court, us
Companies: flvto, flvto.biz


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  • identicon
    Bobvious, 22 Oct 2020 @ 8:13pm

    hard for the labels to see past the ends of their own noses,

    "It can be hard for the labels to see past the ends of their own noses, but they should realize that they could truly be biting themselves in their own asses"

    I think you have identified exactly why this opto-proctological contortion has resulted in such shortsightedness.

    It is surprising that the MAFIAA haven't yet patented procto-myopia, seeing as they are constantly engaged in it.

    reply to this | link to this | view in chronology ]

  • identicon
    DenHague, 22 Oct 2020 @ 8:57pm

    Wikipedia: American_Service-Members%27_Protection_Act

    I think that gives a good answer, where the answers to your questions would fall.

    Problem there is, the same people who made that law, most probably would absolutely agree that the US should hold jurisdiction over everyone.

    Manifest Destiny and somesuch.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Bo 'Dice' Ripper, 22 Oct 2020 @ 9:30pm

    Specious argument. Using copyright products is theft wherever.

    There's no limitation or any ruling that the physical location where theft of copyright products takes place matters. Only a matter of getting at the thieves.

    This is in part trying to raise a complex argument that he likes to try and make the court simply forget about main point.

    Didn't work at appeal level, won't at SC. You should often overlook what trial courts decide during maneuvering -- especially when given a novel but well-presented argument that'd throw an entire system out -- because purpose can be to kick the case up and get precedent nailed down, instead of litigating specious argument over and again in new cases. When the Plaintiff as here is large and rich, trial judge can be assured that the right decision will be obtained above. As has been. And will be.

    Another point you pirates ALWAYS overlook: at his request, lawyer may be going all out even though knows it's one-in-thousand chance. Being a pirate, he doubtless has stolen millions with which to make trouble -- just like Kim Dotcom -- so gambles away. And of course the lawyer doesn't mind, it's all fun and gravy. Even the trial court may enjoy this: lawyers LOVE arguing minutia.

    However, a key item is this pirate has a DMCA agent, which means he wants certain protections and accepted that deal. I'm sure that IF SC does look at this, then must decide that he's agreed to be subject to ALL US jurisdiction. You can't both accept protections of our laws AND retain complete immunity from them at same time: it's absurd. (I say "retain" in my most judicial neutrality though don't believe it applies.)

    Tell ya, kids, "law" is a bit tricker than ya think. Your pirate view as always blinds you to reality. This is NOT going to "legalize" all foreign ripping and copytheft. Period.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 22 Oct 2020 @ 10:53pm

      Re: Specious argument. Using copyright products is theft whereve

      Oh wow, lying about other people being pirates, because lying about them is the only way you can address the argument in your head that falls apart when you have to address reality..

      You're really desperate to bring out all the greatest hits, aren't you? Are you going to bring back the whining about lack of civility while screaming about your rape fantasies next?

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Bo 'Dice' Ripper, 22 Oct 2020 @ 9:40pm

    @"any US citizen who creates a popular website can expect..."

    "... to be dragged into court anywhere in the world”.

    That is actuality right now. However, if you don't show up, they're pretty much out of luck.On the reverse side, Kim Dotcom has stayed out of reach by spending freely of stolen millions. Only gov't has the means to actually go get such persons, and they simply don't in civil cases.

    This person hired US lawyer (besides DMCA agent) and showed up (I suppose just represented) in court. That's again trying to have it both ways at once.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Oct 2020 @ 11:03pm

      Re: @"any US citizen who creates a popular website can expect...

      What freely stolen millions are those, exactly?

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 22 Oct 2020 @ 11:48pm

        Re: Re: @"any US citizen who creates a popular website can expec

        The ones that independent artists were getting when they used MegaUpload to distribute their music, and the costs incurred by people who suddenly lost access to documents they were using MegaUpload to distribute.

        Wait... that might not be what he meant, I think he's talking about the imaginary sales that didn't magically re-appear when the market shifted from people using MegaUpload to using Spotify once they had a decent legal option to access things

        reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 23 Oct 2020 @ 3:59am

      Re: @"any US citizen who creates a popular website can expe

      [having lawyer appear in court is "showing up"]

      Well, not exactly. If the lawyer makes a special appearance to contest jurisdiction, then that is neither conceding jurisdiction nor having it both ways. It is not uncommon for defendants to have attorneys show up to contest jurisdiction, including for lack of proper service, and the rules provide for this.

      The classic example is probably World Wide Volkswagen v. Woodson, 444 U.S. 286 (1980). There, customer bought car in NY. He later drove across OK and had road accident. Court said that dealer and regional distributor should not expect to be haled into OK court merely because car was movable and to be found in OK.

      The opposite ruling would lead to no end of mischief. If I sell perishable pies, and a buyer carries one across the country and lets it spoil, should I have to haul my wide ride to California to defend the frivolous claim? Alternatively, should I be defaulted because someone carried a pie too far away to plausibly defend? That is the result sought with "internet anywhere" jurisdiction.

      The current wisdom appears to be a sort of sliding scale: the more contact you have with a forum state, the better its claim to jurisdiction over you. Zippo Mfg. v. Zippo.com, 952 F.Supp. 1119 (W.D. PA 1997). There, the web site had PA subscribers and deals with PA ISPs for easier access by subscribers, so there was reason to expect to be in PA court. But mere accessibility from a state is not sufficient. Compare Carefirst of Maryland v. Carefirst Pregnancy Centers, Inc, 334 F.3d 390 (US 4th Cir. 2003).

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Oct 2020 @ 9:51pm

    That's again trying to have it both ways at once.

    Not true. A court is always supposed to consider whether it is the proper venue for a suit.

    Rhat's why, if you had read actual decisions (this blog links to a lot of them), you'd have noticed the first paragraph nearly always says "venue is proper because ...". The foreign person is asking the court to recognize that venue is not proper. That is a decision that the court must make if ANY of the parties are beyond its legal jurisdiction--and the facts relating to venue can be pointed out by any party without subjecting themselves to that court's ruling in any other matter.

    If a court finds that venue is NOT proper, it might refer the case to some other court. For instance, a state court would refer a copyright case to a federal court. You don't see this so often, because mostly lawyers are not so stupid as to sue in the wrong court.

    Copyright ambulance-chasing lawyers are the notable exception: you'd almost be surprised to see them filing suit in the RIGHT court. (Hi, Prenda! how's the business model working out for you these days? Filmed any good porno movies lately?)

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Bo 'Dice' Ripper, 22 Oct 2020 @ 10:23pm

      Re: TD fanboy quote-and-contradict so looks as though answered.

      That's again trying to have it both ways at once.

      Not true. A court is always supposed to consider whether it is the proper venue for a suit.

      You seem to miss my point. He's got a DMCA Agent, willingly entered jurisdiction in my view... But also wants to complete immunity.

      Been found proper venue at appeals level. Still in play. Not going to overturn all copyright cases against foreigners.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Oct 2020 @ 11:10pm

        Re: Re: TD fanboy quote-and-contradict so looks as though answer

        You seem to miss my point. He's got a DMCA Agent, willingly entered jurisdiction in my view

        Or otherwise, "Hey, you have zero jurisdiction over me, but as a halfway decent business operator, I try to work with the copyright industry (probably among other things) in various countries because it's generally a better thing to do, and better for a business. But since you all want to be dicks about everything, I'll play your court game. If you continue to act like idiots, I'll leave and good luck trying to get your petty revenges on me. Block my site in your shithole country, who gives a fuck?"

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 23 Oct 2020 @ 12:27am

          Ah the Megaupload trick again... 'You tried to follow our laws even though you didn't have to and that involved hiring an american or doing business with an american company, that means you are under US jurisdiction! ... what's that? The message that this sends is to ignore US laws and if an individual or company from the US complains to tell them to get bent because trying to play nice only backfires?'

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Oct 2020 @ 6:51am

        Re: Re:

        How's that Fox Rothschild defense fund coming along bro?

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Oct 2020 @ 11:01pm

    Being realistic here

    This suit is a joke.
    But not because of weather the merits are in question or not.
    But becuase he expects a us court to go against US Interest especially this one.
    Or that even if he won that the powerbrokers in charge would let it stand.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 23 Oct 2020 @ 12:31am

      Re: Being realistic here

      Funnily enough while the idiots trying to sue him may think that a 'win' would be a good thing for them long-term 'US interests' are very much on his side, as 'if your site is available in a country that means you fall under their laws, whether you intent to serve people in that country or not' would not be a good precedent for basically any website in the US.

      Of course if the intent is to make hosting any content legally risky and therefore create a chilling effect that would change things, but I can't imagine why anyone would want that...

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 23 Oct 2020 @ 1:51am

        Re: Re: Being realistic here

        "as 'if your site is available in a country that means you fall under their laws, whether you intent to serve people in that country or not' would not be a good precedent for basically any website in the US."

        It would be fun trying to see those people reconcile their incompatible arguments, though. The reason why net neutrality and section 230 are such hotly contested issues in the US and not anywhere else is because the things they protect are essentially already baked in to the laws of many other countries without the need to carve out special definitions. This is combined with stricter controls on things like data protection and consumer protection that could make life tricky, even without thinking about things like censorship and cultural demands.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2020 @ 12:42am

    If the judgement stands we could get us citizens arrested in a foreign country eg people who work for pornhub for displaying content that is illegal in some country's,eg promoting homosexuality is illegal in some country'
    A forum supporting lgbt rights would be illegal in russia
    If a Russian website is in the Russian language but
    streams American pop music does it really effect
    the market for apple music or Spotify or cds in America.
    Country's like Iran or dubai do not host porn streaming websites
    Alot of legal content on American websites would be illegal to produce in Turkey or Poland
    We have already seen Western company's changing the content of gamres to remove content
    that might offend Chinese censors
    Hollywood films now only feature gangsters , Russians or vague Eastern Europeans as villains,
    China is a big market for films,
    No point in having Chinese person as a villain
    Any court that says us law applys to any content
    on a foreign website is setting a dangerous precedent
    It should be a general principal if its legal to produce or stream content in country x it should not
    Be possible to be sued for that content in a American Court or any other court
    especially if that website is not in English
    and is not marketed at an American audience

    If there's mass piracy going on in Russia of TV or music this can be addressed by international treatys between the USA and russia on the protection of Intellectual property
    Of course maybe the riaa is so stupid they don't care if their actions break the Internet or put American citizens at risk of arrest

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Oct 2020 @ 5:06am

      Re:

      Of course maybe the riaa is so stupid they don't care if their actions break the Internet

      They are not stupid, they want to break the Internet so that their members regain total control over the sale of recorded music.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 23 Oct 2020 @ 5:26am

        Re: Re:

        Which is really dumb, of course. No matter what they tell themselves, they never had that. The only things that have really changed is that all the teens swapping mix tapes happened over Napster instead of physical media, and people began to realise that paying $20 for a CD with 2 good tracks and 15 filler tracks wasn't value for money. They stopped the first part, although that's now transferred to legal services, but they can never really reverse the second.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 23 Oct 2020 @ 5:34am

          Re: Re: Re:

          Piracy is just a useful drum, their real targets are the destruction of all the ways that independent musicians can make a living without letting them take 90% plus of the profits.

          reply to this | link to this | view in chronology ]

  • icon
    tp (profile), 23 Oct 2020 @ 5:20am

    Easy solution

    Let the legal eagles just limit themselves to the international law. Then lawyers are just limited to the rules that apply everyone on the planet. Then USA courts can decide russia's business, and russia can decide issues from USA. They just need to obtain skillful enough lawyers that can handle international issues.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 23 Oct 2020 @ 5:27am

      Re: Easy solution

      "They just need to obtain skillful enough lawyers that can handle international issues."

      That still won't get you leads from your bus ads or make your software worth using instead of Pixar and Blender, though.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2020 @ 9:05am

    helpful

    Now I know another stream downloader to turn to. Thanks, music industry.

    reply to this | link to this | view in chronology ]

  • icon
    Vikarti Anatra (profile), 25 Oct 2020 @ 9:01pm

    just for information:
    it looks like S.B.A Music Publishing (I think they worked on RIAA's behalf here) tried to sue in Russia (there is special procedure for such cases).
    They also didn't even tried to sue site owner. They sued Hetzner (German hosting provider) instead. Hetzner's representatives didn't come to court session.

    Results:

    • Hetzner is to pay (small) court fees.
    • Hetzner is to stop providing hosting for this site (or prevent rights violations).
    • Site is to be blocked in Russia and it's blocked by ISP. Given that blocking is used for many other other things except copyright issues, A LOT of Russian users just use tools to ignore such blocks. All people who works in IT have to do that sometimes because sometimes even github got blocked (due to 'sucicide content')

    how to get details (in Russian): https://isitblockedinrussia.com/?host=FLVTO.biz (site shows 'by Мосгорсуд' it's court decision using this special procedure). details (in Russian) https://mos-gorsud.ru/mgs/services/cases/first-civil/details/1d14a33a-5a26-429f-8681-c0dead69915d )

    reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 25 Oct 2020 @ 11:15pm

    "All people who works in IT have to do that sometimes because sometimes even github got blocked (due to 'sucicide content')"

    Well, that's a great example of why blocking entire sites is just an idiotic move. The entire country loses access to a highly important industry tool that hosts code that is depended upon by millions of websites, because a single account there (I presume) put something up that's objectionable, but completely unrepresentative of what's normally hosted there? Utterly ridiculous.

    Do you know if other methods were tried before the block (e.g. telling GitHub to remove the objectionable content, blocking the single account page where the objectionable content was hosted, etc.)? If not, I can't imagine any way such a block makes sense unless you want to encourage people to find a reliable way to bypass the blocks. It's a dumb move either way, but it would only make sense if other methods had been tried and GitHub refused to comply.

    reply to this | link to this | view in chronology ]

    • icon
      Vikarti Anatra (profile), 31 Oct 2020 @ 5:27am

      Re:

      As far as I knew, other methods should be tried with github per applicable laws. Not sure if they were tried in this case.

      Github later started to accept such notices - check https://github.com/stevebest/suicide (another 'methods of sucide' list, I think it was posted as joke ), doesn't open from Russian IPs, redirects to https://github.com/github/roskomnadzor/blob/master/2014-11-27-roskomnadzor.md )
      (you can google translate and check how seriuous was methods are)

      Problem with blocking specific pages is that it's not possible due to https.

      Nobody really lost anything (Except some time to establish workarounds for tools which are not regular web browsers).

      As for 'blocking is idiotic' - there was whole story with Telegram.
      They were asked to provide encryption keys for monitoring terrorists. Telegram responded that they can.
      Blocking was attempted.

      Results:
      A LOT of sites got blocked (if you do block AWS ranges by /16 - you will block something legitimate after all). Sometimes Google's infrastructure gots blocked.
      Telegram worked.
      MT-PROTO proxies were also added to it.
      Some goverment agencies have 'official' channels and while TG was blocked.
      Telegram was ublocked some time after 'gram' issue.

      There was NO attempt to order Apple and Google to remove Telegram from Russian sections of AppStore/PlayStore (it's not that Apple/Google refused, Roskomnadzor didn't even publish press release (as far as I knew) about asked).
      (usual system here is that Roskomnadzor is involved in implementing all such decicisions).

      This whole idiocity just forces people to learn how to ignore those blocks.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 31 Oct 2020 @ 6:23am

        Re: Re:

        Thanks for the added info. I agree that the main result of these things is to teach people more about how to bypass them.

        “ Problem with blocking specific pages is that it's not possible due to https”

        Are you thinking of VPNs by any chance? It certainly is just as possible to block an https url as it is http. But, vpns make any block trivial to route around at most levels. HTTPS just means a third party can’t snoop on the content.

        reply to this | link to this | view in chronology ]

        • icon
          Vikarti Anatra (profile), 31 Oct 2020 @ 8:48pm

          Re: Re: Re:

          Of course I (and many others) use VPN for this purposes. There is no anti-VPN (like Chinese one) blocks in place in Russia as far I'm aware. VPN providers should implement block list too (per another Russian law) but they either ignore it or said that they don't work in Russia so it's not apply to them).

          I meant that block hardware (it's not always full-scale and costly DPI device) can't filter specific pages on site due to https.
          (Correct way per Russian law is send site and it's hoster notices anyway but they sometimes ignored. One example - Youtube only partially honor those notices and this mean it SHOULD be blocked per Russian law but somehow it's not blocked).

          reply to this | link to this | view in chronology ]


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