The Russian operator of stream-ripping sites FLVTO.biz and 2conv.com has formally petitioned the US Supreme Court to hear his case. Fighting litigation from the major record companies, Tofig Kurbanov wants the top court to consider whether he and his business, based outside the US, can be subject to a copyright action through the American judicial system.
FLVTO.biz and 2conv.com are among a number of stream-ripping operations to have been targeted with legal action – or at least the threat of legal action – by the music industry in recent years. For music companies, stream-ripping services – which allow people to turn temporary streams into permanent downloads – remain a top piracy concern.
Most stream-ripping sites targeted by the music industry have ultimately – or in some cases immediately – shut themselves down. However, Kurbanov decided to fight the lawsuit that was filed against him and his websites in a district court in Virginia.
And at first instance he successfully got the labels’ lawsuit dismissed on jurisdiction grounds, on the basis that his Russian websites had no direct business dealings with the US, even though Americans used those sites to illegally stream-rip content.
The labels then took the case to the Fourth Circuit appeals court which overturned the lower court’s ruling. The appeal judges listed various reasons why it could be deemed that FLVTO.biz and 2conv.com were actively trading in the US, even though the websites are formally based in Russia and don’t require any sign-up from users.
Shortly after the Fourth Circuit ruling, legal reps for Kurbanov indicated that they planned to take the matter to the US Supreme Court, reckoning that the jurisdiction issues they had raised in this case are important and have never been properly considered at the highest level.
Those plans were then confirmed last month back at the Virginia court where the lawsuit began, which is considering the case anew following the Fourth Circuit ruling. Kurbanov’s lawyers have asked the district court to pause the ongoing proceedings there pending their application to the Supreme Court.
That application was submitted earlier this week. It argues that the top court should consider the case, because some Supreme Court style consideration is required on the issue of whether or not “the ‘due process clause’ of the United States Constitution is violated when a foreign citizen is subjected to personal jurisdiction based entirely on: (1) his operation of a website that is popular both within the United States and worldwide, but which is not specifically aimed at the United States; and (2) minor internet-based and internet-initiated transactions entered into by the foreign citizen entirely from outside the United States”.
Kurbanov’s court filing adds that this question comes up frequently in other cases, that it has never been addressed by the Supreme Court, and that lower courts have been inconsistent on this point. It then concludes: “A proper determination is crucial to respect the sovereignty of foreign nations and to avoid the widespread imposition of de facto national jurisdiction over the operators of any popular website wherever the internet is accessible”.
Jurisdiction issues have always been a challenge for copyright owners seeking to fight online piracy, with the operators of piracy platforms often deliberately basing themselves, or their servers, in countries where fighting copyright cases is more tricky.
A Supreme Court win for Kurbanov in this case would definitely be a setback for those seeking to enforce their copyrights online. And would also likely further motivate US copyright owners to push for full-on web-blocking in the US – mirroring systems already operating in various other countries – such blockades being seen as a practical though not perfect fix to overcome jurisdiction issues in piracy cases.
Previous efforts to get web-blocking up and running in the US back in 2011 and 2012 resulted in a big backlash from the tech-sector that pushed the idea well off the agenda in Washington. However, in more recent years, some copyright owners – especially the movie studios – have been trying to sneak it back onto that agenda.
A legal rep for Kurbanov has told Torrentfreak that he is hopeful the Supreme Court might accept his client’s case, because the issues it centres on are super important.
Evan Fray-Witzer said: “If you operate a website that is popular, then you’re subject to jurisdiction anywhere – and everywhere – that people access the website. And that’s not a precedent that anyone should want to stand, because if Kurbanov can be dragged into court here from Russia, then any US citizen who creates a popular website can expect to be dragged into court anywhere in the world”.
The lawyer also told Torrentfreak that the major labels should support his client’s bid to get the Supreme Court to provide clarity on this issue.
“If the record companies are so certain that the Fourth Circuit got this question right, then they should be anxious for the Supreme Court to take up the case”, he added. “We invite them to join our petition and ask the Supreme Court to weigh in on these crucial jurisdictional questions. But I’m not holding my breath that they’ll do so”.