substantial non-infringing uses – Techdirt (original) (raw)

Foreign Stream-Ripping Site Wins Against Music Labels Based On Jurisdiction

from the not-like-this dept

It’s been quite frustrating to watch the music industry continually turn its legal gaze to whatever it insists is the “new” threat. From the traditional piratey-scapegoats like Napster, to torrent sites, and on to file-lockers, before finally moving over to stream-ripping sites — it’s been quite predictable, if a bit silly. As with so many industry-led crusades against technology tools, this attack on these types of sites carries with it the misguided notion that because a site or tool can be used to infringe on music copyrights, it therefore is an enemy and must be shut down entirely. We’ve seen this same tactic used against tons of technology tools that have had perfectly legal uses in the past, but in the case of stream-ripping sites, most have decided to simply fold.

Which makes it somewhat noteworthy that one foreign site is fighting back and winning against a legal challenge in the US, if only on jurisdictional grounds.

FLVTO.biz and 2conv.com, owned by Russian developer Tofig Kurbanov, remained online despite being sued by several record labels last August. Where other site owners often prefer to remain in the shadows, Kurbanov filed a motion to dismiss the case. According to the defense, the court has no jurisdiction over the matter. Only a small fraction of the visitors come from the US, and the site is managed entirely from Russia, it argued.

The RIAA labels involved in the suit disagreed, of course. As with all lawsuits of this kind, the labels merely see a tool that American users can get to, and can use to infringe, therefore it must be killed off. FLVTO pointing out that it doesn’t do anything to entice American users to its site, nor does it engage in any commercial activity on the site other than displaying advertisements, did nothing to keep the RIAA from suing. It did, however, convince the judge to toss the case on jurisdictional grounds.

“Even if the Websites’ servers knew exactly where the users were located, any interaction would still be in the unilateral control of the users as they initiate the contacts,” Judge Hilton’s opinion reads.

There could be personal jurisdiction if there’s a “commercial contract” involved. However, that’s not the case here. The site generates revenue from users through advertisements, but that’s not seen as a basis for a commercial contract, the court concludes.

In other words, an American company can’t sue a foreign operator in the US simply because the internet works as intended.

While this is a good ruling generally, it might be nice to get the courts to establish some clarity on the legal status of stream-ripping sites. Again, these are essentially dumb sites that don’t care whether the rip is infringing or not. They are a tool, nothing more. Given that, the fact that these sites are shutting themselves down under the mere threat of lawsuits represents a pretty clear chilling effect on the dissemination of otherwise legal tools and technology to the internet writ large.

This is especially true given that we already have a pretty clear precedent for this issue. Stream ripping is little different from the VCR in effect. It is taking a “stream” of live content, and “recording” it for personal use and storage. Thirty-five years ago, the Supreme Court made it clear that this was perfectly legal in the famous Sony Betamax case. In that case, the court found that there were substantial non-infringing uses of the technology — as is true of stream rippers — and that “time shifting” of content that was being streamed live was a perfectly legitimate use. As the ruling in the Betamax case found:

The question is thus whether the Betamax is capable of commercially significant noninfringing uses. In order to resolve that question, we need not explore all the different potential uses of the machine and determine whether or not they would constitute infringement. Rather, we need only consider whether, on the basis of the facts as found by the District Court, a significant number of them would be noninfringing. Moreover, in order to resolve this case, we need not give precise content to the question of how much use is commercially significant. For one potential use of the Betamax plainly satisfies this standard, however it is understood: private, noncommercial time-shifting in the home. It does so both (A) because respondents have no right to prevent other copyright holders from authorizing it for their programs, and (B) because the District Court’s factual findings reveal that even the unauthorized home time-shifting of respondents’ programs is legitimate fair use.

It is difficult to see how that same standard does not apply to stream ripping as well — but so far, the RIAA (in particular) is acting as if the Supreme Court ruled the opposite way in the Betamax case, and because many of these sites are small, they have little desire to actually fight a huge, costly legal battle. And thus, the RIAA has mostly been able to kill off the modern VCR. This case turned on jurisdiction issues, which is a good start, but a clear ruling that stream ripping is legal, a la the Betamax, would be even better.

Filed Under: copyright, fair use, intermediary liability, jurisdiction, recording, stream ripping, substantial non-infringing uses, time-shifting, tofig kurbanov
Companies: 2conv, flvto.biz

New Study Highlights How Megaupload Took Down Over 10 Million Non-Infringing Files

from the seems-like-a-problem,-no? dept

One of the common arguments against file sharing and cyberlocker sites is that there’s just so much infringement going on there. Of course, when people point out that there are many non-infringing uses, copyright maximalists dismiss this as either not being important, or being such a tiny part of those sites as to not matter. However, that’s not the law. Under the Supreme Court’s ruling in the Sony Betamax case, the court noted that if the device was merely “capable of substantial non-infringing uses,” then it was legal.

The staple article of commerce doctrine must strike a balance between a copyright holder’s legitimate demand for effective — not merely symbolic — protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.

Furthermore, for those who argue about what “substantial” is, it’s important to note that, in the early days, nearly all of the usage of these new forms of content recording and delivery were mostly for infringement. But that’s due to the content industry’s own slow nature to adopt these tools. Indeed, when the Betamax was found legal, less than 9% of uses were found to be non-infringing — and that was deemed more than enough. Even the argument that all that other infringing use pulls people in was rejected in the Betamax lawsuit, where the court noted:

Unlike cameras, typewriters and Xerox machines, whose primary market is derived from non-infringing uses, there would be little, if any, market for VTRs if they could not be used for infringing purposes. Petitioners’ unwillingness to devise a technological means of preventing copying of copyrighted works makes plain that without the ability to make unconsented copies of the copyrighted motion pictures owned by respondents and amici, there would be little if any market for VTRs.

But they were still found to be legal.

Fast forward to today, and TorrentFreak points our attention to a new study looking at the substantial non-infringing uses of Megaupload, and finds that, as with the Betamax, even if there was wide infringement, not only was it “capable of substantial non-infringing uses,” but it was widely used that way.

For Megaupload (MU) the researchers found that 31% of all uploads were infringing, while 4.3% of uploads were clearly legitimate. This means that with an estimated 250 million uploads, 10.75 million uploads were non-infringing. For the remaining 65% the copyrighted status was either unknown, or the raters couldn’t reach consensus.

Using the most conservative estimate the findings show that the Megaupload raid took down at least 10.75 million legitimate files. In addition, the researchers found that FileFactory had a highest percentage of non-infringing uploads (14%).

Obviously, there are sample size issues here, and the fact that the majority of the files are “unknown” may be a limiting factor. But, at the very least, it appears that there were many, many, many legitimate uses of Megaupload, all shut down and destroyed without letting their owners get the data back, and without a trial to discuss those non-infringing uses, and whether or not the platform itself was legal.

Filed Under: copyright, substantial non-infringing uses
Companies: megaupload