Last year, a group of prominent record labels filed a piracy lawsuit against the Russian operator of YouTube-ripping sites FLVTO.biz and 2conv.com.
The labels hoped to shut the sites down, but this effort backfired.
In January, US District Court Judge Claude M. Hilton dismissed the case due to a lack of jurisdiction. The Court carefully reviewed how the sites operate and found no evidence that they purposefully targeted either Virginia or the United States.
Many copyright cases against foreign operators result in default judgments. However, this lawsuit transformed into a landmark case that will determine when such operators can be sued in the United States. As such, the record labels swiftly appealed the District Court’s dismissal.
Tofig Kurbanov, the Russian operator of the stream-ripping sites, is not backing off though. With help from his US-based legal team, he maintained that US courts have no jurisdiction over the matter. If the record labels want a legal battle, they should come to Russia instead.
In a reply brief filed at the Court of Appeals for the Fourth Circuit this week, the record labels counter the defense’s arguments. The operator of the stream-ripping sites argued that his contacts with the U.S. were “random, fortuitous, or attenuated,” but the music companies state that the opposite is true.
The labels note that the site operator knows exactly where all users are located. Millions are in the U.S., and together these people ripped close to 100 million streams last year. Many of these ripped streams were of copyrighted content, the music companies argue.
“Appellee knows down to the person the geographic location of the 32 million U.S. users and more than half-a-million Virginian users who visited the Flvto.biz and 2conv.com websites in 2018. Those users engaged in almost one hundred million stream-ripping sessions,” the reply brief reads.
“During a substantial number of those sessions, the websites transmitted illegal copies of appellants’ sound recordings to users’ home computers in the U.S. and Virginia. Indeed, the United States is appellee’s third largest market globally, both by number of users and number of stream-ripping
The United States is the third largest market for the stream ripping websites, the labels argue. Not just that, but it’s also a market that’s specifically targeted with geo-located advertisements.
In his defense, Kurbanov stressed that the advertisements are outsourced to third-party advertising brokers. However, the labels counter that the website owner willingly hired these and that he, therefore, bears responsibility.
“Moreover, appellee earns huge revenues from the advertisements his U.S. users view while conducting their stream-ripping sessions—advertisements specifically targeted to users’ geographic location in the U.S. because of the geotargeting technology that appellee uses. Appellee knows full well this geo-targeting is occurring,” the reply brief reads.
The record labels also point out that the site operator cited various contacts with the U.S. to then argue that, in isolation, these are not sufficient to warrant jurisdiction. However, the rightsholders say that a different picture emerges when all elements are taken together.
Looking at the big picture, a US Court should be allowed to take on this case, the record labels conclude.
The alternative would be to sue the site operator in Russia. This is what the defense has suggested, admitting that this would be somewhat burdensome for the U.S. companies. The record labels, however, believe that would be absurd.
“In short, nothing in the Constitution requires that U.S. copyright holders travel to Rostov-on-Don, Russia to sue for violations of U.S. law that occur in the United States and that generate huge profits for appellee from ads targeted at U.S. users.
“The decision of the district court should be reversed,” the labels add.
It is clear that both sides have a completely different take on the matter and with various rightsholder groups and EFF jumping in as well, the gravity of this case is obvious.
It is now up to the Court of Appeals to weigh the arguments from both sides and come to a conclusion.
A copy of the record labels’ reply brief is available here (pdf).