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EFF and GitHub’s Support for YouTube Rippers is Bad News for RIAA Lawsuits

The music industry is convinced. Downloading music from public streaming services, YouTube in particular, is the greatest piracy threat to the industry.

The RIAA and several key music labels are doing everything in their power to counter this menace. They’ve sued several YouTube download sites, removed streamripper URLs from search engines, and most recently they targeted the open-source tool youtube-dl as well.

The last move was a step too far for many. It immediately triggered outrage among developers and the public at large. The opposition reached new heights this week when GitHub and EFF drew a clear line in the sand. No further.

After some modifications, youtube-dl’s repository was reinstated. This was great news for the developers, users, and many stream-ripping sites that rely on the tool. But the decision and the reasoning behind it are much, much bigger than that.

In isolation, the youtube-dl code is a relatively small problem for the music industry. Similar tools will always be available. While the RIAA liked the message that was sent by the removal, they perhaps didn’t foresee that a refusal to take down the same code would be much worse.

‘YouTube Downloading Tools are Not Illegal’

Both GitHub and the EFF have made it very clear that YouTube downloading tools are not by definition illegal. On the contrary.

“Youtube-dl is a lot like the videocassette recorders of decades past: a flexible tool for saving personal copies of video that’s already accessible to the public,” the digital rights group wrote in a recent post on the topic.

GitHub also stressed that youtube-dl is a “socially beneficial tool” which can help researchers, journalists, and the public at large.

These comments, which are only a tiny selection of the broader message, are a potential game-changer. The backing from GitHub is particularly notable, as the company is owned by Microsoft, which in its own right is one of the largest copyright holders in the world.

github reinstates youtube-dl

That said, the legality of YouTube download tools is not impacted directly by the public commentary. Eventually, this is something that courts will have to decide over. In the US, there is no clear jurisprudence on this specific issue but that may change in the near future.

The RIAA’s main argument is that these tools violate DMCA section 1201, which prohibits the circumvention of technical protection measures. In YouTube’s case, the RIAA cites the “rolling cipher” protection that YouTube uses to make downloading from the site somewhat more complicated.

Rolling Cipher Encryption?

The question is whether this “rolling cipher” is indeed a protection measure under the DMCA. That’s up to a court to decide, but we have previously shown that anyone with a browser can easily download from YouTube without extra tools.

The RIAA’s position is strengthened by a 2017 order from a court in Germany, that was also cited in the GitHub takedown notice. There, the court ruled that the “rolling cipher” is a technical measure within the meaning of Germany’s Copyright Act.

However, not everyone believes that the court was correct here. EFF stated that, contrary to the court’s ruling, there is no encryption involved. YouTube’s video streams are visible to everyone who uses a regular web browser. The ‘rolling cipher’ simply refers to a changing signature, readable by Javascript, that’s used for some videos.

“The 2017 decision of the Hamburg Regional Court in Germany that RIAA references, which refers to YouTube’s “signature” mechanism, was wrongly decided and is not binding nor even persuasive under U.S. law,” EFF wrote.

GitHub also believes that the German court made an error. Following EFF’s lead, the company concluded that youtube-dl was not circumventing a technical protection measure. “We concluded that the allegations did not establish a violation of the law,” GitHub said.

Stream-Ripper Battle Continues in Court

These are strong statements that will eventually have to be tested before a judge and that may happen sooner rather than later. There are currently two major US lawsuits where the legality of YouTube rippers could be decided. While EFF and GitHub are not part of those cases, their input will likely prove a factor.

One of the lawsuits was filed by Jonathan Nader, the operator of the stream-ripper ‘Yout’, who sued the RIAA last month. Nader decided to be one step ahead of the music industry by demanding a declaratory judgment that his website doesn’t violate Section 1201 of the DMCA.

nader effTorrentFreak reached out to Nader, who said he prefers not to comment on the ongoing litigation. Especially since the RIAA has yet to formally reply.

However, the photo he shared with us reveals that he’s happy with EFF’s stance on the matter.

Nader’s lawsuit touches on the ‘rolling cipher’ argument as well, and he denies that anything is being decrypted or bypassed.

Another lawsuit where the same issue may be brought up was filed by several of the largest music labels two years ago, with support from the RIAA. They sued the YouTube ripping sites FLVTO.biz, 2conv.com, and their Russian operator Tofig Kurbanov.

Both sides are currently still fighting over whether a US court has jurisdiction. Kurbanov’s legal team recently petitioned the US Supreme Court to hear that matter.

If the court decides that the site operator has to defend himself, he is surrounded by a legal team that is confident that they can defeat the copyright and anti-circumvention allegations.

‘RIAA Opposed Every Technological Advance’

Speaking with TorrentFreak, Kurbanov’s defense attorney Evan Fray-Witzer equates stream-ripping to the other technological advances that were protested by the music industry over the years.

“It’s important to remember that the RIAA has consistently opposed virtually every technological advance from the 1970s forward including the advent of cassette tapes, compact discs, and MP3s. For 50 years they have been yelling that the sky is falling and yet – despite this hysteria – music continues not only to survive but to flourish.”

According to Fray-Witzer, this latest attack on stream-ripping is equally misguided and will eventually fail.

“Users have lots of legitimate uses for stream-ripping that have nothing to do with music. And, even when you’re talking about music, users have a legitimate right to time-shift, just as the courts found that people could record TV shows with their VCRs so that they could watch them at a different time,” he says.

2conv

The Yout.com and Kurbanov’s cases are not the first stream-ripper lawsuits. A few years ago, the record labels already sued YouTube-MP3. That site eventually settled the case privately and shut down. While the RIAA celebrated this as a major win, this outcome has little effect on the current cases.

“So far, the RIAA’s successes in court have been the result of defendants who lack the ability to fight back and to prove that these tools do not actually violate copyright law. Hopefully, that’s about to change,” Fray-Witzer notes.

“Stream-ripping sites and software are simply tools – tools with lots of legitimate uses, as the EFF has recognized,” the attorney adds.

DMCA Section 1201 Exceptions

It’s clear that the YouTube downloaders find themselves supported by the recent backing from GitHub and the EFF, but the moral support is just part of the story. In addition, both are also calling on the Copyright Office to broaden the DMCA Section 1201 exceptions.

“We are also advocating specifically on the anti-circumvention provisions of the DMCA to promote developers’ freedom to build socially beneficial tools like youtube-dl,” GitHub said this week, announcing their plan to get involved in the Copyright Office’s triannual review process.

Right now, US law makes it illegal for most developers to use or distribute code that bypasses technical protection measures, even if that technology or code can also be used for non-infringing or legal means.

Time will tell how these and other issues will develop over time but it’s clear that the RIAA’s takedown notice to GitHub was a wake-up call. Now we just have to see who and what it awakened.

TorrentFreak also reached out to the RIAA to hear their comments on these recent events but the group hasn’t responded. It’s not a stretch to conclude that they are not happy with GitHub’s reversal, to say the least.

From: TF, for the latest news on copyright battles, piracy and more.

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US Govt’s Pirate Site List Doesn’t Prove Anything, YouTube Rippers Tell Court

RIAA’s takedown request, targeting the open source stream-ripper software youtube-dl, generated a lot of media interest. However, it’s just one of the many YouTube-ripping disputes.

Over the past two years, for example, the operator of FLVTO.biz and 2conv.com has been fighting several record labels in US courts.

For now, this battle has been limited to jurisdiction questions. The operator of the site, Tofig Kurbanov, is from Russia and before the court can consider any copyright infringement claims, it has to decide whether it has jurisdiction.

After a district court ruling in Kurbanov’s favor and an appeals court judgment that reversed it, the Supreme Court was recently asked to consider the case. This means that a final verdict could be years away.

Record Labels Want Case to Continue

The record labels are not happy with this, especially because the site operator managed to put the district court case on hold in the meantime. This is why they asked the court to reconsider its ‘stay’ order and continue the proceedings.

“The stay order should stay discovery only to the extent necessary to allow the Court to resolve the jurisdictional issue as required by the Fourth Circuit on remand,” the record labels write, noting that the court’s decision was an “error of law”.

The stream ripper’s legal team disagreed and responded with a motion of its own, opposing the label’s arguments.

“This Court was well within its rights to issue a stay of proceedings pending the resolution of Mr. Kurbanov’s cert petition. This Court’s order was not an ‘error of law’ at all,” they counter.

USTR’s Notorious Market List

While this is mostly a battle over non-copyright issues, the discussion over potential injuries to the record labels raised our interest. Specifically, the mentions of the United States Trade Representative’s Notorious Markets report.

This annual list is an overview of alleged pirate sites that are reported to the US Government by copyright holders, including the RIAA, which represents the major record labels. The same labels are now using this report as evidence.

“[A]s the popularity of Defendant’s unlawful sites has grown, they have caught the attention of the United States government,” the music companies write.

“[I]n its annual report on Notorious Markets for Counterfeiting and Piracy, the U.S. Trade Representative named Defendant’s FLVTO website as ‘continu[ing] to threaten legitimate streaming audio and video services’ and copyright owners. Defendant’s piracy causes Plaintiffs substantial harm.”

From the label’s filing

labels reply

It is not unique for copyright holders to bring up the USTR report, which is often used for lobbying purposes. However, Kurbanov’s legal team notes that ‘evidence’ in this manner is misleading.

Misleading Evidence

“This is – to put it mildly – highly misleading. As Plaintiffs are well-aware, the process by which entities get named in the government’s report is by ‘nomination,’ primarily from self-interested industry groups.”

The defense lawyers don’t dispute that FLVTO.biz and 2conv.com were in the report. However, they inform the court that they were listed because copyright holders called them out.

And as the USTR report explicitly states, being listed does not constitute a legal finding of a violation, including copyright infringement.

“What Plaintiffs have not told this Court is that the Websites at issue here were ‘nominated’ for inclusion in the report by Plaintiffs’ own lobbying arm,” Kusbanov’s team informs the court.

“In other words, Plaintiffs themselves (through their lobbying arm), managed to get the Websites included in the government report and now point to the same report as ‘proof’ that the Websites ‘have caught the attention of the United States Government’.”

The back and forth over the USTR report is worth highlighting but, for the matter at hand, it’s only a minor issue. The court didn’t refer back to it in its final decision either.

After reading the arguments from both sides, the Federal Court in Virginia issued a one-page order rejecting the record labels’ request, simply stating that the previous order to stay the case was correctly decided.

A copy of the record labels’ request for reconsideration is available here (pdf), Kurbanov’s response here (pdf), and a copy of the final order from US District Court Judge Claude Hilton here (pdf)

From: TF, for the latest news on copyright battles, piracy and more.

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YouTube Rippers Petition U.S. Supreme Court to Overturn ‘Dangerous’ Precedent

YouTube rippers are seen as the largest piracy threat to the music industry, and record labels are doing their best to shut them down.

In 2017, YouTube-MP3, the world’s largest ripping site at the time, shut down after being sued, and several others followed voluntarily.

A group of music companies hoped to achieve the same with FLVTO.biz and 2conv.com. The sites’ Russian owner Tofig Kurbanov was taken to court in the United States in 2018, accused of facilitating mass copyright infringement.

Quick Dismissal and Appeal

The music companies were hoping for a quick win but they got the opposite. Kurbanov fought back and before the copyright issues were discussed, the complaint was already dismissed.

A Virginia federal court ruled that the music companies lacked personal jurisdiction as the sites were operated from abroad and didn’t ‘purposefully’ target or interact with US users.

The music companies were not happy with the ruling and appealed the matter at the Fourth Circuit Court of Appeals, with success. The appeals court found that there are more than sufficient facts to conclude that Kurbanov purposefully conducted business in the US, specifically the state of Virginia.

Supreme Court Petition

The outcome of the appeal came as a disappointment to Kurbanov and his legal team. They are convinced that the district court had it right and pointed out several seemingly conflicting jurisdiction rulings in US courts.

To obtain more clarity, they decided to take the matter to the Supreme Court. This week, Kurbanov’s lawyers officially submitted their petition which describes the problem at hand, as well as the questions they would like to see answered.

Specifically, Kurbanov asks the Supreme Court whether his due process rights are violated when he is subjected to the jurisdiction of a US Court, simply because his websites are frequently used there. Also, whether minor internet-based and internet-initiated transactions are sufficient to warrant jurisdiction.

Clashing Precedents

These jurisdiction questions are not new. There are several precedents from similar cases but many of these are contradictory. According to the petition, lower courts are deeply split on some core issues.

For example, rulings from the Fourth, Fifth, Eighth, and Ninth Circuits contradict the Seventh and Tenth Circuits on whether the use of “purely virtual” contacts are sufficient to warrant personal jurisdiction. That is particularly important for Internet-related cases such as this one.

Disagreement also exists on whether having a registered DMCA agent subjects a site operator to the jurisdiction of a US court, as the Fourth Circuit court concluded in this case.

“The Fourth Circuit held that it was jurisdictionally relevant that the Websites appointed a U.S. DMCA agent to receive infringement complaints. This decision conflicts with decisions from other circuits, other Fourth Circuit panels, and this Court, all of which have held the appointment of an agent for service of process is irrelevant,” the petition reads.

Geo-Blocking

Another fiercely contended issue relates to geoblocking. The Fourth Circuit Court of Appeals found that because FLVTO.biz and 2conv.com failed to block US visitors and allowed advertisers to geo-target US citizens, jurisdiction is warranted.

This is a dangerous conclusion, the petition notes. Using the same logic, a US citizen could be subject to the jurisdiction of a Chinese court, if he or she fails to block Chinese visitors.

“If allowed to stand, it will subject website operators to personal jurisdiction in every location where their website is accessible, regardless of whether the defendant has expressly aimed his conduct at the forum or otherwise has the constitutionally required minimum contacts,” the petition explains.

Because of the lack of clarity and disagreement in various courts, Kurbanov hopes that the Supreme Court will take on the matter. These questions come up in many cases and could have widespread consequences, so a detailed ruling would be welcome.

Clarity Is Needed

Evan Fray-Witzer, one of the attorneys representing Kurbanov, is hopeful that the petition will be granted. Not just for his client, but to resolve the present legal uncertainty for all website operators.

“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 U.S. citizen who creates a popular website can expect to be dragged into court anywhere in the world,” Fray-Witzer says.

The attorney invites the music companies to join their request. While they are on the opposite side of the argument, they can benefit from more clarity as well.

“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. 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.”

A copy of the petition for writ of certiorari, submitted to the US Supreme Court, is available here (pdf).

From: TF, for the latest news on copyright battles, piracy and more.

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YouTube Rippers ‘Flvto’ and ‘2Conv’ Will Take Legal Battle to US Supreme Court

In 2018, a group of prominent record labels sued two very popular YouTube rippers, FLVTO.biz and 2conv.com.

The labels, including Universal, Warner Bros, and Sony, accused the sites of copyright infringement and hoped to quickly shut them down.

That didn’t go as expected. The owner of the sites, a Russian man named Tofig Kurbanov, lawyered up and fought back. Before the copyright issues were even discussed in court, the complaint was already dismissed.

A Battle over Jurisdiction

A Virginia federal court ruled that the music companies lacked personal jurisdiction. The sites were operated from abroad and didn’t ‘purposefully’ target or interact with US users, it concluded.

This finding was not without controversy. The music companies disagreed and appealed the matter at the Fourth Circuit Court of Appeals, which sent the case back to the district court a few months ago.

The appeals court found that there are more than sufficient facts to conclude that Kurbanov purposefully conducted business in the US, specifically, the state of Virginia. Kurbanov and his legal team disagreed but their request for a rehearing was denied.

Going to the Supreme Court

Faced with this decision, which could potentially affect many other websites operated outside the United States, the owner of FLVTO.biz and 2conv.com has decided to petition the Supreme Court to take on the case.

The petition is expected to be filed later this month, but the plans were revealed this week. In a motion submitted at a Virginia federal, Kurbanov asks to put the district court case on hold until the Supreme Court has had a chance to rule on it.

The question that will be put to the Supreme Court is whether Kurbanov can be subjected to the jurisdiction of a US federal court when he lives in Russia, operates his sites from there, and doesn’t specifically target US citizens.

According to his legal team, the appeal court’s decision contradicts other rulings in similar cases. As such, they are confident that they have a strong case.

“In the present case, there is little question but that Mr. Kurbanov’s jurisdictional challenge could be rationally resolved in his favor – indeed, this Court did resolve the issue in Mr. Kurbanov’s favor,” they write.

“Viewed in the context of the Supreme Court’s traditional jurisprudence, however, it appears clear that this Court’s original dismissal of the present case was proper and that – given the opportunity – the Supreme Court would reinstate that dismissal.”

Staying the Case Until Further Order

If the district court case was allowed to continue while the Supreme Court is looking into the matter it would be a waste of resources. Kurbanov, therefore, is requesting that the discovery process and other proceedings are placed on hold for now.

“Mr. Kurbanov, a Russian national and citizen, who has never set foot in the United States, has a right to challenge this Court’s exercise of jurisdiction over him as violative of the Due Process Clause. And, of course, with that comes his right to be free from the expensive and onerous discovery obligations inherent in U.S. litigation.”

Aside from the Supreme Court decision, the lawyers also remind the district court that the original motion to dismiss is still in play. The court initially chose not to conduct a “reasonability test” because the other arguments were sufficient to warrant a dismissal. That changed when the appeal overturned that decision.

As such, Kurbanov’s legal team has filed a request to stay the case until the reasonability analysis is finalized and the Supreme Court has had its say.

kurbanov stay case

A copy of Tofig Kurbanov’s memorandum in support of the motion to stay the federal court proceeding pending the outcome of the Supreme Court matter is available here (pdf)

From: TF, for the latest news on copyright battles, piracy and more.

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YouTube Rippers Eye Supreme Court After Appeals Court Denies Rehearing

YouTube rippers are seen as the largest piracy threat to the music industry, and record labels are doing their best to shut them down.

In 2017, YouTube-MP3, the world’s largest ripping site at the time, shut down after being sued, and several others followed voluntarily.

A group of music companies hoped to achieve the same with FLVTO.biz and 2conv.com. The sites’ Russian owner Tofig Kurbanov was taken to court in the United States last year, accused of facilitating mass copyright infringement.

No Easy Win for the Music Companies

The music companies were hoping for a quick win but they got the opposite. Kurbanov fought back immediately and before the copyright issues were discussed, the complaint was already dismissed.

A Virginia federal court ruled that the music companies lacked personal jurisdiction as the sites were operated from abroad and didn’t ‘purposefully’ target or interact with US users.

This finding was not without controversy. The music companies disagreed and appealed the matter at the Fourth Circuit Court of Appeals, which sent the case back to the district court last month.

In a unanimous decision, the appeals court found that there are more than sufficient facts to conclude that Kurbanov purposefully conducted business in the US, specifically, the state of Virginia.

YouTube Rippers Request a Rehearing

The operator of the YouTube ripping sites was unhappy with the ruling so requested a rehearing of the matter before the full court. According to the defense team, the appeal court’s decision goes against previous rulings and warrants reconsideration.

The panel’s decision – specifically the finding that personal jurisdiction could be premised on the websites’ failure to geoblock visitors from the U.S. (and allowing advertising brokers to geotarget visitors) – is an issue of exceptional importance,” the petition read.

Rehearing Denied

The appeals court judges disagree, however. This week the petition for a rehearing was denied. In a short but clear order, the clerk writes that none of the judges took action.

“The petition for rehearing en banc was circulated to the full court. No judge requested a poll under Fed. R. App. P. 35. The court denies the petition for rehearing en banc,” the order (pdf) reads.

Supreme Court?

Previously, Kurbanov’s legal team warned that the appeals court set a dangerous precedent. Counsel Evan Fray-Witzer said that the ruling will have a broad impact on foreign site operators.

Speaking with TorrentFreak, the attorney now says that they are considering petitioning the Supreme Court. District court rulings on these personal jurisdiction issues have been mixed and a Supreme Court ruling could provide more clarity.

“The issue is important enough that we intend to file a petition for certiorari with the Supreme Court,” Fray-Witzer tells TorrentFreak.

“The Supreme Court has not yet decided a case concerning personal jurisdiction based on internet contacts and we think this case would be a good opportunity for the Court to address the issue head-on.”

If the matter doesn’t go to the Supreme Court, the case will go back to the district court for a review of the jurisdiction matter in full.

In its first decision on the motion to dismiss, the court chose not to conduct a “reasonability test” because the other arguments were sufficient to warrant a dismissal. This has now changed.

The district court can still dismiss the matter over a lack of jurisdiction if the complaint fails to pass the reasonability test. If the court does decide that it has jurisdiction, Kurbanov will have to defend himself and his sites against the record labels’ copyright infringement claims.

From: TF, for the latest news on copyright battles, piracy and more.

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YouTube Rippers Have to Face Piracy Claims in US Court, Appeals Court Rules

In 2018, a group of prominent record labels sued two very popular YouTube rippers, FLVTO.biz and 2conv.com.

The labels, including Universal, Warner Bros, and Sony, accused the sites of copyright infringement and hoped to shut them down quickly. But that didn’t go as planned.

The Russian operator of the sites, Tofig Kurbanov, fought back with a motion to dismiss. He argued that the Virginia federal court lacked personal jurisdiction as he operated the sites from abroad and didn’t target or interact with US users.

The district court agreed with this assessment. In a verdict released early last year, Judge Claude M. Hilton dismissed the case. The Court carefully reviewed how the sites operated and found no evidence that they purposefully targeted either Virginia or the United States.

The record labels and the RIAA were disappointed with the outcome and swiftly announced an appeal.

Appeals Court Reverses the Dismissal

Today, the Fourth Circuit Court of Appeals decided on the matter. In a unanimous decision, it reversed the District Court’s ruling. This means that the motion to dismiss is off the table and that the case will be revived.

The Fourth Circuit Court found that there are more than sufficient facts to conclude that Kurbanov purposefully conducted business in the US, specifically, the state of Virginia. That the site doesn’t charge users is not seen as being crucial.

“To start, his contacts with Virginia are plentiful. In the relevant period, between October 2017 and September 2018, more than half a million unique visitors went to the Websites, totaling nearly 1.5 million visits. These visits made Virginia one of the most popular states in terms of unique visitors as well as number of visits,” the Appeals Court notes.

“In addition to the volume of visitors, we also find the nature of the repeated interaction between the Websites and visitors to be a commercial relationship,” the order adds, stressing that the “mere absence of a monetary exchange does not automatically imply a non-commercial relationship.”

On top of that, the decision also weighs in the fact that the sites have a registered DMCA agent, worked with US-based advertisers, and used US-based servers and domain registrars at some point.

Contrary to the District Court, the Appeals Court also finds that FLVTO.biz and 2conv.com targeted Virginia users, as the websites were globally accessible. No attempts were made to block Virginia visitors while the site did profit from the data that was harvested from these people.

“In sum, we conclude Appellants’ copyright infringement claims arise out of Kurbanov’s activities directed at Virginia,” the Court concludes.

The result of the ruling is that the District Court dismissal is off the table, so the lawsuit at the lower court can continue. This doesn’t mean that Kurbanov has lost that case though, but he will have to defend himself and his sites against the record labels’ copyright infringement claims.

‘A Dangerous Precedent’

The record labels will be pleased with this decision but according to Kurbanov and his legal team, it sets a dangerous precedent. Counsel Evan Fray-Witzer informs us that, if this ruling stands, it will have a broad impact on foreign site operators.

“The idea that a website operator could be subject to personal jurisdiction because the site has a DMCA agent would be a horrible precedent if allowed to stand: all it will mean is that foreign website operators will forgo having a DMCA agent, something that is beneficial to content producers,” Fray-Witzer.

“If Mr. Kurbanov – who has never once visited the United States – can be haled into a U.S. Court simply because he created a website that turned out to be popular in the U.S., then any American who creates a website can expect to be subject to personal jurisdiction in China, Russia, and every other country in the world,” he adds.

Kurbanov and his legal team are still considering their options at this time but they don’t expect this to be the end of the jurisdictional battle, where further appeals are still possible.

A copy of the Fourth Circuit Court of Appeals’ decision is available here (pdf).

From: TF, for the latest news on copyright battles, piracy and more.

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YouTube Rippers and Record Labels Clash in US Appeals Court

In 2018, a group of prominent record labels filed a piracy lawsuit against two very popular YouTube rippers, FLVTO.biz and 2conv.com.

The labels, including Universal, Warner Bros, and Sony, hoped that the legal pressure would shut the sites down, but this plan backfired. At least in the short term.

The Russian operator of the sites, Tofig Kurbanov, fought back with a motion to dismiss. He argued that the Virginia federal court lacked personal jurisdiction as he operated the sites from abroad and didn’t target or interact with US users.

The district court agreed with this assessment. In a verdict released early last year, Judge Claude M. Hilton dismissed the case. The Court carefully reviewed how the sites operated and found no evidence that they purposefully targeted either Virginia or the United States.

The record labels and the RIAA were disappointed with the outcome and swiftly announced an appeal. The landmark verdict also raised the interest of other groups, including the Motion Picture Association and EFF, which both filed amicus briefs, supporting the opposing sides.

After several months had passed, the US Court of Appeals for the Fourth Circuit held a remote oral hearing this week, giving both sides the opportunity to share their arguments.

First up was Ian Heath Gershengorn, attorney for the record labels, who described FLVTO.biz and 2conv.com as sites that help millions of people to infringe the copyrights of his clients.

“Defendants operate wildly popular websites that engage in and facilitate massive infringement of plaintiffs U.S. copyrights in the United States. The United States is defendant’s third-biggest market, and each year defendants make handsome profits by sending hundreds of millions of infringing music files to their U.S. users,” he said.

This is no different than copies of hundreds of millions of vinyl records or CDs, the attorney informed the judges. The record labels believe that the district court made a grave mistake by ruling that it doesn’t have jurisdiction, one that provides “a roadmap” for pirate sites to “operate with impunity.”

According to the music companies, the lower court’s judgment should be overturned for various reasons. This includes the sheer volume of the infringements, the interactive characteristics of the sites, their commercial advertising agreements, and the sites’ failure to block US visitors.

In addition, their attorney points out that the sites had a registered DMCA agent listed at the US Copyright Office, which shows that he subjected himself to US law.

“The only point and I guess the principle point of that DMCA agent is to invoke the protections of the DMCA, the Digital Millennium Copyright Act. And so they have literally invoked the protections of U.S. law. The district court concluded otherwise,” Gershengorn said.

The attorney for FLVTO.biz and 2conv.com, Evan Fray-Witzer, has a completely different take on the case. He told the judges that the district court was right and that his client should not be dragged into a US lawsuit.

He describes Tofig Kurbanov as a Russian citizen from a small city in southern Russia who has never traveled to the United States and hasn’t done any business there. Kurbanov simply made a site that allows users to download audio from YouTube, which the attorney equates to a modern-day version of a tape recorder.

“Mr. Kurbanov created two Web sites, which he has operated entirely and exclusively from Russia. These Web sites, your honor, are the modern-day equivalent of an old fashioned tape recorder,” Fray-Witzer said.

Much of the discussion revolved around the interpretation of current personal jurisdiction precedents and how these apply to this case. That includes the advertisements that third parties placed on the site, the availability of the site in the US, and the absence of any geo-blocking restrictions.

The attorney stressed that Kurbanov simply made his websites available worldwide and did nothing to target the US specifically. He doesn’t decide which ads are served where, and what users do with the sites is up to them.

On top of that, he pointed out that the site has many different uses. This includes the option to download free lectures for offline use.

“And that’s really, I think, probably the best case argument here. Mr. Kurbanov has done nothing to target the United States. The websites are content-neutral,” Fray-Witzer said.

While the sites have a DMCA agent the attorney argues that they are not bound by the DMCA, which the site’s terms of service clearly state. In addition, he argues that registering a DMCA agent doesn’t automatically mean that a site subjects itself to US jurisdiction.

At the and of the hearing the microphone went back to the music companies’ attorney who, among other things, wasn’t convinced by the other side’s arguments. This includes the tape recorder analogy.

“If you had an old fashioned tape recorder and you recorded hundreds of millions of songs and then you sent those out to users across the world, including more than 100 million in the United States, yes, you would be subject to jurisdiction in the United States for that misuse and abuse of your tape recorder,” he said.

The music companies hope that the appeal court will agree. If not, then the US may have little recourse to deal with foreign pirates sites going forward.

“Then this court has created the recipe for infringement that every pirate Web site will adapt and it will eviscerate the U.S. copyright laws. That is not the purpose of personal jurisdiction. And it’s a perversion of due process,” the music companies’ attorney concluded.

From: TF, for the latest news on copyright battles, torrent sites and more. We also help you to find the best anonymous VPN.