YouTube rippers FLVTO.biz and 2conv.com are requesting a full rehearing of the jurisdiction matter, which relates to the ongoing piracy lawsuit filed by several major record labels. The Court of Appeals for the Fourth Circuit concluded that the district court dismissed the case in error but the operator of the two sites disagrees and warns of a dangerous precedent.
Record labels see YouTube rippers as the most significant piracy threat on the Internet.
These sites, which can be used for a variety of purposes, are used by some to convert YouTube videos into playable music files.
Labels Sue YouTube Rippers
Two years ago a group of prominent music companies took the operator of two of the largest YouTube rippers to court. The labels, including Universal, Warner Bros, and Sony, accused FLVTO.biz and 2conv.com of facilitating copyright infringement.
Tofig Kurbanov, the Russian operator of the site, disagreed and 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, it 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 music companies were disappointed with this outcome and appealed the verdict, with success. Last month, Court of Appeals for the Fourth Circuit sent the matter back to the district court, concluding that Kurbanov purposefully conducted business in the US and specifically targeted US visitors.
YouTube Rippers Want a Full Rehearing
By sending the case back, the district court will have to reconsider the jurisdiction challenges in full. However, Kurbanov and his legal team don’t want it to get that far. A few days ago, they petitioned the appeals court for a rehearing en banc.
Kurbanov’s attorney, Evan Fray-Witzer, previously told us that the appeal decision would set a “horrible precedent” that would impact all foreign site operators. This concern is also repeated in the new petition, which highlights several key issues.
According to the defense team, the appeal court’s decision goes against previous rulings and warrants reconsideration.
“The panel’s decision – specifically the finding that personal jurisdiction could be premised on the Websites’ failure to geoblock visitors from the U.S. (and allowing advertising brokers to geotarget visitors) – is an issue of exceptional importance,” the petition reads.
Dangerous Geoblocking Precedent
Kurbanov’s legal team mentions, among other things, the ‘Triple Up‘ case where a D.C. circuit court upheld a district court ruling on a similar jurisdiction issue.
“The district court’s opinion there warned that accepting Plaintiff’s geoblocking argument would result in a ‘sea change in the law of internet personal jurisdiction,’ that would be ‘at odds with existing personal jurisdiction principles’,” the petition warns.
“If allowed to stand, the panel’s decision here would effectuate precisely the ‘sea change’ warned of. If this Court truly intends to effectuate a wholesale change in the law of personal jurisdiction, it should be done by the full court.”
In addition, the defense team also cites other cases that appear to go against the appeal court’s conclusions. This includes the relevancy of the location of the servers and the availability of a registered DMCA agent.
“The panel’s holding finding jurisdictionally relevant the fact that the websites named a DMCA agent is in conflict with decisions from this circuit, other federal circuits, and the Supreme Court, all of which have held that the appointment of an agent for service of process is irrelevant,” they write.
Visitor Numbers Don’t Show the Full Picture
The record labels had previously highlighted the high number of US visitors to the stream ripper sites. However, according to the defense team, this isn’t the full picture, as US visitors are still a small minority. In addition, not all US visitors use the sites to rip music.
“Ultimately, the raw number of visitors to the Websites from Virginia and the U.S. is irrelevant as it does not speak to claim-related contacts with the forum.”
In its decision, the appeals court also hinted that – given changes in technology – it may be time to reconsider the “Zippo approach” to jurisdiction issues. A rehearing would be ideal for that, the defense argues.
Based on these and a variety of other arguments, Kurbanov requests the appeals court to grant a rehearing en banc. That would effectively mean a do-over of the appeal before the full court, instead of a small panel of three judges.
A copy of Kurbanov’s petition for a rehearing en banc is available here (pdf)
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