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.
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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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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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A post-Machinima landscape.
And for a while, we might have agreed. "Well, I guess I don't really need a local copy. My hard drive has limited space after all. And it's basically all there on demand." It was a covenant of convenience.
Then this week, Machinima happened.
Nearly a decade of influential, meaningful, trailblazing video content. All of it memory-holed on the whim of some corporation, who had no hand in its creation.
So well done corporate America. Well done for transforming stream ripping from the bogeyman you claim it is, into the moral imperative to preserving internet culture!
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Is that icon next to Napster on your desktop?
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Re: A post-Machinima landscape.
As I say - "If you love Copyright, you love Corporations." That is how this works.
The corporation doesn't want it - but it doesn't want anyone else to have it either.
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The threat of SLAPP fines can be just as much a deterrent to lawsuits as the SLAPP itself.
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This is the fundamental problem with the Berne-convention model of copyright: it strongly favors destruction of value over the mere possibility that someone not related to the feudal lord might benefit from it.
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'I reject your reality, and substitute my own. Now, believe it!'
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.
By any sane measure it does, however you explained nicely why they are acting as though it doesn't yourself in the second half of the paragraph.
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.
They failed to kill the VCR, but by ignoring a clear reading of the law and going after smaller players they have been able to kill off the current incarnation of it, such that the odds of a modern-day Betamax, and a ruling making it clear that it's legal too, ever making it to the market is all but non-existent.
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Except that's not the reality. Very little real music comes out of the recording industry anymore. Those of us who would have been happy to spend a lot of money on great music started boycotting the industry back in the '90s when they started suing everyone for sharing (aka free advertising) new music they loved--music which people would ultimately buy because most people are basically honest to begin with. Except a certain class of kids. And basically the only customers the industry has now are kids who get most of their money from their parents and feel free to waste it on whatever trash everyone else is buying because there's a flashy video with hot-looking guys and/or girls. Music? ...not usually.
Just think how rich they'd all be if they'd never decided to attack human nature ("Well, I'd like to try before I buy.").
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Huh?
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Nope.
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Re: A post-Machinima landscape.
Of course the likes of the RIAA have to raise a stink about it, I'll be damned if they leave anything useful on the internet without painting it as the threat to "creative minds" or whatever. Let's hope they don't actually point their fingers at YouTube for stream ripping. I certainly wouldn't want DRM on every single video you could watch for free because of their self-inflicted licensing hell.
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People will ALWAYS find a way.
Remove all stream ripper browser plugins and still there will be ways to do it.
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Now, sharing and redistributing what you've downloaded could be piracy in many (dare I say most) situations. If they allowed or encouraged that, it might cause them some trouble, but the ability to make copies for personal use is a deeply enshrined policy of copyright.
I'm all in favor of finding ways to prevent the Pirate Bays and Putlockers of the internet who exist primarily to publish legally-protected content for free, but that is as different from this case as "painting along with Bob Ross" is from "selling photocopies of Boss Ross's paintings."
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Re: People will ALWAYS find a way.
I have seen it's possible to obtain download links for MP3's from certain mainstream music streaming services by checking my browser's media connections. I could also do that on the level of the computer's connection to the network or the network's connection to the internet. This can be made more difficult by breaking it up into many little media files instead of one, but the same procedure still works.
And to get analog with it, copying it before or after it goes from the CPU to the display with screen recording software (or hardware) is equally impossible to circumvent.
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Re: A post-Machinima landscape.
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