Sony Music, UMG, and WMG Forcefully Respond to FLVTO.biz’s Motion to Dismiss
Major labels UMG, Sony, and WMG are now fighting to keep their case alive against YouTube ‘stream rippers’ FLVTO.biz and 2conv.com. But is Virginia really the best venue?
Earlier this week, DMN first reported that YouTube ‘stream ripper’ FLVTO.biz had aggressively responded to a lawsuit from major labels Universal Music Group, Sony Music Entertainment, and Warner Music Group with a motion to dismiss the entire case.
Now, that trio — working with the Recording Industry Association of America (RIAA) — is aggressively fighting back.
In legal documents shared with Digital Music News this morning, major label attorneys Jenner & Block LLP argued that the U.S. District Court for the Eastern District of Virginia is indeed the correct venue for UMG Recordings, Inc. et. al. v. FLVTO.biz, 2conv.com, and Tofig Kurbanov. Attorneys for Kurbanov, who owns both sites, had filed a Motion to Dismiss the entire case, based on numerous jurisdictional issues.
The reasons for FLVTO.biz’s motion seem logical enough. For starters, only a tiny sliver of users to both FLVTO.biz and 2conv.com actually reside in the State of Virginia. Overall, the percentage is a fraction of 1%, according to stats supplied by the defendant, and the sites themselves are mostly served out of Germany.
On top of that, Kurbanov himself has never visited the United States in his life, much less Virginia. Currently, Kurbanov doesn’t have a visa to travel into the United States to appear in court — though he has retained law firms from both Virginia and Massachusetts to help him litigate.
Barring an outright dismissal, Kurbanov’s litigators suggested California as a far better venue for this case. The reasoning is that California easily comprises the biggest audience for both sites (Virginia ranks 11th). Additionally, YouTube itself has its headquarters in the state, making it easier to arrange appearances by executives from the platform.
Hogwash, Jenner & Block attorneys stated, armed with a litany of precedents and fiery accusations.
In its opposition filing, Jenner’s attorneys noted that both FLVTO.biz and 2conv.com have attracted 542,000 users in Virginia, and further knows the exact location of its visitors. “Defendant Tofig Kurbanov operates two of the world’s most notorious illegal music websites, FLVTO.biz and 2conv.com, which together have millions of users from the United States, including hundreds of thousands of users in Virginia,” the filing states.
The major labels also argued that YouTube has offices in Virginia, though it’s unclear what the Virginia satellite actually does (probably local advertising).
So why Virginia, again?
Jenner’s lengthy 35-page opposition document struggles with this basic question, while relying on explanations like this one: “Defendant is keenly aware that he and his websites traffic in illegal copies of popular sound recordings owned by U.S. record companies and protected under U.S. copyright law.”
Of course, U.S. Copyright Law applies to all 50 U.S. States, making the selection of Virginia appear random. More likely, Jenner and the RIAA chose Virginia hoping for an easier panel of judges, especially if FLVTO’s operators declined to respond. That strategy of ‘forum shopping’ works well with a no-show, but is more difficult to justify if the defendant actually responds.
Earlier, Electronic Frontier Foundation (EFF) staff attorney Mitch Stoltz outlined a well-worn litigation strategy used against sites like FLVTO.biz. That strategy banks on the operator(s) of the site failing to appear, which triggers a carte blanche ruling that can then be used to cripple or shut down the site in question.
“These sites, run from outside the U.S., don’t bother appearing in U.S. court to defend themselves — and the labels know this,” Stoltz wrote. “When one party doesn’t show up to court and the other wins by default, judges often grant the winning party everything they ask for.”
Unfortunately, that approach fails to define clear precedents and guidelines for tech companies. Earlier, the RIAA has privately settled with a number of YouTube stream rippers, most notably YouTube-mp3.org, which raises questions of whether the group is trying to avoid a concrete decision on the matter.
In fact, the RIAA might be strategically avoiding an actual precedent in this arena.
Earlier, Stoltz argued that stream rippers aren’t actually illegal, unless they are actively distributing copyrighted works to third parties. On that thread, Kurbanov has already argued that FLVTO.biz and 2conv.com have ‘substantial non-infringing uses,’ which includes instructional videos, episodes by YouTube personalities, and language videos.
Jenner & Block most certainly disagrees with that, arguing that sites like FLVTO exclusively exist to illegally convert copyrighted music videos. “FLVTO and 2conv attract millions of users, including hundreds of thousands of users from Virginia, and they exist for the sole purpose of engaging in and enabling the unauthorized extraction, copying, and distribution of sound recordings — including, especially, Plaintiffs’ highly-popular sound recordings — that are contained in music videos,” the Jenner opposition brief declares.
The actual structure of both the FLVTO.biz and 2conv.com sites will be very important if the case proceeds. If high-demand videos are pre-stored as downloads for quicker delivery on FLVTO servers, for example, an infringement ruling could result.
In fact, that could be an interesting debate. In the pre-stored structure, users think that they are converting files on the fly, and receiving the format-converted copies quickly. In reality, they are effectively direct downloading the tracks, creating a new form of infringement.
If the case is deliberated, we’d also expect some interesting debates on format-shifting, including references to the Supreme Court’s ‘Sony Betamax‘ decision from 1984. That decision ruled that VCR manufacturers could not be held liable for contributory infringement because of ‘substantial non-infringing uses,’ language that has already been alluded to in Kurbanov’s initial court statements.
The Betamax decision also argued that format-shifting constitutes fair use, particularly for broadcast television. Modern-day digital platforms certainly introduce a lot more complexities, especially if site owners are actively ‘inducing’ piracy.
Actually, we’d love to hear some testimony from YouTube on this one.
After all, if YouTube decided to block FLVTO.biz, the site would stop working overnight. So why aren’t they doing that? That seems to be the giant elephant in the room, with the major labels somehow unwilling to clamp down on YouTube itself.
Perhaps a case in California could facilitate greater participation from key executives at YouTube, a site that is highly integral to the format-shifting issues being discussed.