Last October, the RIAA secured a major victory in its piracy lawsuit against YouTube-rippers FLVTO.biz and 2conv.com, and their Russian operator Tofig Kurbanov.
A Virginia federal court issued a default judgment in favor of several prominent music companies after the defendant walked away from the lawsuit.
According to the order, there is a clear need to deter the behavior of Kurbanov who failed to hand over evidence including server logs. “A less drastic sanction is unlikely to salvage this case,” the Judge wrote.
Following this win, the RIAA asked for an injunction to stop the sites’ worldwide stream-ripping activities. In addition, the music group demanded $82 million in damages. Both of these requests were taken up in a report and recommendation issued by Magistrate Judge Buchanan in December.
YouTube Rippers Oppose Potential $82M Damages Award
Kurbanov’s legal team opposed this recommendation a few weeks ago. Through his lawyers, the operator argued that the Judge’s findings are in direct contravention of the law because the music companies failed to provide evidence of any infringing activity taking place in the United States.
In addition, the defense argued that, if damages are needed, these should be substantially lower as Mr. Kurbanov himself is not accused of downloading any songs. He simply built his site around the open-source software youtube-dl that is freely available to anyone on the Internet.
The opposition brief pointed out that it’s far from clear that youtube-dl ‘circumvents’ anything. It specifically referenced a letter the Electronic Frontier Foundation (EFF) sent to GitHub after it removed the youtube-dl software from its platform following an RIAA takedown notice in 2020.
EFF’s letter made GitHub reconsider its decision and soon after, the youtube-dl repository was restored.
RIAA Responds
Late last week, the RIAA responded to Kurbanov’s arguments, including the use of youtube-dl and EFF’s letter. According to the music group, it is irrelevant whether the stream-rippers relied on the open source software or not.
“Defendant is no less responsible for his violation of Section 1201 simply because he built his illegal Websites by incorporating some software developed by others instead of building the Websites from scratch.”
The music group points out that the Court has already established that Defendant is liable for circumvention. In addition, the music companies’ own experts testified before the court that youtube-dl software circumvents technological measures.
EFF ‘Sides with Infringers’
That the EFF holds a different view is true, but the letter wasn’t presented as an official expert report. In addition, the RIAA also questions the objectivity of the group, noting that it “regularly sides with infringers.”
“The EFF letter is no substitute for an expert report. EFF is a partisan advocacy group that regularly sides with infringers but has not submitted a declaration in this case,” RIAA’s response reads.
“Nor does the EFF letter speak to Defendant’s state of mind or knowledge; he provides no declaration to suggest that he relied on (or was even aware of) EFF’s opinions,” it adds.
Mr. Kurbanov also pointed out that the music companies failed to provide any evidence that FLVTO.biz and 2conv.com were used to download infringing music in the United States. As such, it would be impossible to conclude that infringements actually took place.
The RIAA counters this argument as well. The music group points out that, for a default judgment, there is no need to “prove” or “show” that the defendant is liable. Instead, they only have to show that the infringement claims are plausible, which the Magistrate Judge agreed on.
‘Geo-Blocking is No Escape’
The stream-rippers also argued that an injunction is no longer needed as they have already blocked traffic from US visitors.
While the RIAA doesn’t contend that the sites have blocked US traffic, the music group notes that an injunction is still needed as this voluntary blocking decision can be easily reversed in the future.
“[T]he law is clear that Defendant’s eleventh-hour geo-blocking effort does not vitiate the need for injunctive relief. An injunction is necessary because Defendant could flip a switch tomorrow and re-enable access to the Websites by users in the United States,” it concludes.
The above is just a selection of the various points that are contested in the RIAA response brief. A copy of the music companies’ full response to the stream-rippers objections is available here (pdf).
