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.