In Appeal of Russian Stream-Ripper Ruling, RIAA Says Court Gave 'Carte Blanche to Internet Pirates'

The Recording Industry Association of America has filed its official appeal of a federal judge's ruling that sided with the Russian operator of two of the Internet's most popular stream-ripping websites. In January, Judge Claude M. Hilton of the Eastern District of Virginia said he lacked jurisdiction to take on the major labels' case against Tofig Kurbanov, who runs FLVTO.biz and 2conv.com.   

In his decision, Judge Hilton ruled that Kurbanov's sites were "semi-interactive" with users, and that even those interactions would be considered non-commercial. Further, the judge concluded that the defendant "did not purposefully avail himself" to any benefits or protections of doing business in Virginia or the U.S. as a whole.

"That was  error," the RIAA appeal, filed March 12 in the Fourth Circuit Court of Appeals, asserts. "There is nothing  random, fortuitous, or attenuated about appellee’s contacts with Virginia or with the  United  States. [Kurbanov] cannot seriously contend that he lacks 'fair warning' that he might be sued in U.S. courts under U.S. law when he violates U.S. copyrights by transmitting hundreds of millions of infringing files to U.S. devices on U.S. soil, and then profits from ads targeted to his U.S. customer base."

Plaintiffs, including several major labels, filed the lawsuit against Kurbanov on Aug. 3, 2018, arguing that the sites -- which convert audio from videos on YouTube and other sources into MP3 files -- are vessels for copyright infringement. FLVTO.biz received over 263 million visits between October 2017 and September 2018, according to court documents, with nearly 10 percent of site traffic coming from the United States. Because that included 500,000 visitors from the Commonwealth of Virginia, the record labels believed the court had jurisdiction in the case, arguing that FLVTO's geo-targeted ads meant it was purposely targeting Virginia residents and others in the U.S.

To illustrate the popularity of the sites, the RIAA cites data showing that between July and September of 2018, FLVTO and 2conv were the 264th and 829th most popular websites across the entire Internet.

In its appeal, the RIAA asserts that there is no precedent that it "violates due process to assert specific jurisdiction over a defendant with such deep contacts in what he knows to be his third-biggest market world-wide, and there is no case holding unconstitutional the assertion of personal jurisdiction over a defendant with contacts that are so numerous and substantial."

The appeal adds, "The district court’s decision thus gives carte blanche to Internet pirates to set up shop outside of the United States, safe in the knowledge that they are effectively immune from the reach of U.S. courts seeking to vindicate the rights of U.S. plaintiffs for violations of U.S. copyright law, even as they cater to U.S. users."

Plaintiffs in this case included UMG, Capitol, Warner Bros., Atlantic, Elektra, Fueled by Ramen, Nonesuch, Sony Music, Sony Music Latin, Arista, LaFace and Zomba. The record labels believed the court had jurisdiction in the case because many of the site's U.S. visitors originated in Virginia, arguing that FLVTO's geo-targeted ads meant it was purposefully targeting Virginians and others in the U.S.

The two sites, with domains registered through Arizona-based GoDaddy, are free to use but earn revenue through ads, much of it geo-targeted based on a user's location. The court found that the defendant does not have a commercial relationship with users because its revenue is derived from third party advertisers.

The labels argue that the websites are "highly interactive" due to the sheer volume of users, and that the court's interpretation of a "typical commercial arrangement" on the internet was overly simplistic.

"Many  of  the  Internet’s  most  popular  sites  generate revenue not from  directly  charging  users,  but  rather  by  enticing  millions  of  use with 'free' content and then selling advertisements to entities wishing to target this captive audience," the appeal states. "A typical commercial arrangement on the Internet is thus a three-way relationship:  Websites attract users with content; users access content on the websites and make available their "eyeballs" and "data"; and websites and their advertisers send ads to these "eyeballs," often using user-specific  data  (such  as location) to make the ads more effective.

The RIAA's appeal goes on, "To isolate the content from the revenue-generating advertisements as the district court did here would be to say that Google, Facebook, Snapchat, and countless other Internet companies’ relationships with their users is non-commercial. That position is absurd."