As part of the music industry’s war on so-called ‘stream-ripping’, earlier this year Sony, Universal, and Warner, with assistance from Music Rights Australia and the Australasian Performing Right Association, demanded that ISPs in Australia block access to several YouTube-ripping platforms.
Following a Federal Court appearance in April, during which the music groups asked for action against four key players – 2conv, Flv2mp3, FLVto, and Convert2mp3 – Justice Perram handed down an order requiring most of the country’s ISPs to block the platforms.
This week, the Judge published the reasoning for his decision. While the blocking aspects are specific to Australian law, it contains some interesting comments about the activities of such platforms that may inform similar cases and actions in other regions.
In setting up his arguments, Justice Perram places an emphasis on the differences between streaming and downloading from YouTube.
While it has been argued that in practice there is only one difference (the former is a transient process while the latter goes a step further by retaining the data), the Judge indicates that is not for the end user to decide. The decision is made by the entity that uploads the data to YouTube and by YouTube itself.
“A person who uploads media to YouTube is required, as part of that process, to determine who can view that media and under what circumstances. It is possible as part of that process to grant permission to permit downloading of files,” the Judge writes.
In most cases uploading takes place after the user selects the ‘Standard YouTube License’, which only allows end users to stream the media, not download. Uploading under a ‘Creative Commons License’ can permit end users to download but the labels do not upload on this basis. In essence, the decision of whether to allow streaming or downloading from YouTube lies with the uploader, the Judge says.
YouTube then delivers that content to end users under the terms of the uploading agreement, which is “achieved by YouTube defaulting to delivery of the media via the HTML5 format which enables streaming but not downloading.”
Turning to the ripping sites themselves, the Judge notes that in testing the platforms a paralegal at a law firm was able to “strip music files” out of the musical works uploaded to YouTube by the record companies. Since she was given permission, that was fine, but the Judge noted that there is “no doubt” that anyone else doing so would have infringed copyright.
After ripping took place on the sites in question, the resulting content was made available to end users. That, the Judge notes, is a “communication to the public” so in respect of the musical works detailed in the case, that represents copyright infringement.
“It follows that the operators of the websites are infringing the relevant music and performance copyrights by copying the soundtracks out of music videos streamed from YouTube,” the Judge writes.
“They are also infringing the same copyrights by making soundtracks then available online and electronically transmitting them to users. The operators also facilitate the infringement of both kinds of copyright by permitting users to make a copy of the soundtrack.”
Given that uploaders can grant the ability to allow streaming or downloading, the Judge says that such ripping platforms will only be of use to anyone where YouTube does not allow download functionality, i.e “where no permission is given to make a copy of media on YouTube.”
A statement published on the ConvertMP3 platform, that claims that downloading from YouTube is “completely legal” when users have obtained permission from the copyright owner to do so, is described as “technically correct” by the Judge. However, he dismissed the disclaimer as “entirely without substance”, existing only to “underscore the dishonesty of the website operators.”
The traffic to the websites listed in the order is considerable (66.5 million visits to Convert2mp3.net in January 2019 and 112.4 million to Flvto.biz in January 2019 alone), something which indicates that they are “responsible for piracy of music from music videos on an industrial scale.”
While it’s important to repeat that the order was considered and granted under Australian law, there are common threads with legislation in other regions that may yet prove important in cases against similar platforms.
Justice Perram’s order can be downloaded here.