Stream Ripping - Young Turks Recordings v British Telecommunications

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Jane Lambert

Chancery Division (Mr Justice Miles) Young Turks Recordings Ltd ad others v British Telecommunications Plc and others [2021] EWHC 410 (Ch) (25 Feb 2021)


This case appears to be the first decision in the UK on "stream ripping".   It took the form of an application by the British sound recording industry for orders requiring the 6 largest internet service providers in the United Kingdom to block their subscribers' access to a number of stream ripping sites under s.97A of the Copyright, Designs and Patents Act 1988  ("CDPA") or alternatively s.37 Senior Courts Act 1981. 

Background

The claimants and defendants, in this case, were the same as in Capitol Records and others v British Telecommunications Plc and others [2021] EWHC 409 (Ch) which I discussed in Blocking Orders - Capitol Records v British Telecommunications Plc on 6 March 2021. The application was heard by Mr Justice Miles who was the judge who decided Capitol Records. His lordship heard both applications on the same day and granted the relief sought in both cases.  Large parts of his judgment in Young Turks was the same as his judgment in Capitol Records.  The two cases were brought by different law firms and the barrister who represented the claimants without a leader in Capitol was led in Young Turks.  

Stream Ripping

The claimants sought the order on the grounds that the websites mentioned below had participated in or facilitated "stream ripping".  "Ripping" refers to the extraction of audio files from music videos that are offered on YouTube and other streaming services.   Audio content is converted into permanent audio downloads that can be stored for future consumption or shared.  According to the claimants, stream ripping is one of the fastest growing forms of online copyright infringement and also the most prevalent.  The judge described the process of "stream ripping" in more detail between paras [19] and [29] of his judgment in Young Turks Recordings Ltd and others v British Telecommunications Plc and others [2021] EWHC 410 (Ch) (25 Feb 2021). Between paras [31] and [34] he said that audio files could be extracted from the videos and saved as MP3 files either by one of the target websites or by downloading apps on users' computers.

The Target Websites  

The allegedly infringing sites were Flvto.biz ("Flvto"), Flv2mp3.by ("Flv2mp3") Flvtool.com ("Flvtool"), 2Conv.com ("2Conv"), 2Convert.net ("2Convert"), H2Converter.com ("H2Converter.com"), H2Download.org ("H2Download"), Ytbapi.com ("Ytbapi") and MP3.Studio ("MP3Studio").   The judge found that the Flvto, Flv2mp3, 2Conv and H2Converter sites each provided a stream ripping service to visitors whereas MP3 Studio offered download apps to the public and other sites.  One of the individuals behind one of the sites was a MrTofig Kurbanov.   The judge noted that Mr Kuganov had given evidence in American proceedings that there were legitimate uses for stream ripping technology. Mr Justice Miles was not persuaded by his contention.  While it may be uncertain whether stream ripping is unlawful in the USA Mr Justice Miles had no doubt that it was unlawful in this country if for no other reason than that it circumvented technical measures to stop unlicensed downloading and copying of YouTube videos.

Blocking Injunctions

The power to require internet service providers to block access to sites that infringe copyright is set out in s.97A (1) of the CDPA:

"The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright."

There is now a substantial body of case law on how that power is to be exercised which I discussed in my case note on Capitol Records.   The judge directed himself to s.97A and the same cases that he had considered in Capitol when deciding the Young Turks' application.

Whether the Defendants were "Service Providers"

As in Capitol Records, the judge considered whether the defendant ISPs were "service providers" within the meaning of s.97A (1) between paras [46] and [47] and concluded that they were.

The Copyrights

At para [17] the judge said that the claimants owned the copyright in approximately 99% of all sound recordings legally consumed in the UK and in all the videos that had been stream ripped.

Alleged Infringements

The claimants alleged that their copyrights had been infringed by:
  • users of the infringing sites and/or the apps, in copying recordings of their music and their videos;
  • operators of the infringing sites, in authorizing users' infringements within s. 16 (2) of the CDPA
  • the operators, as joint tortfeasors with the users; and 
  • the operators, in communicating works to the public.
Copying

The judge found at para [49] that when a visitor to an infringing site or user of a download app clicks on a link or button to convert and download audio content, he or she copies that content onto his or her computer. As the visitor or user would not have the licence of the copyright owner to do such copying, he or she necessarily infringes copyright.

Authorizing Infringement

As in Capitol Records, the learned judge referred to para [90] of Mr Justice Kitchin's judgment in Twentieth Century Fox Film Corporation and another v Newzbin Ltd. [2010] ECC 13, [2010] EMLR 17, [2010] ECDR 8, [2011] Bus LR D49, [2010] FSR 21, [2010] EWHC 608 (Ch):

"…The grant or purported grant to do the relevant act may be express or implied from all the relevant circumstances. In a case which involves an allegation of authorisation by supply, these circumstances may include the nature of the relationship between the alleged authoriser and the primary infringer, whether the equipment or other material supplied constitutes the means used to infringe, whether it is inevitable it will be used to infringe, the degree of control which the supplier retains and whether he has taken any steps to prevent infringement. These are matters to be taken into account and may or may not be determinative depending upon all the other circumstances"

The circumstances that Mr Justice Miles took into account were as follows.   

First, he found that the sites and app exist and are operated to enable users to obtain copyright works illegally. For instance, the reason they provide "conversion" is to defeat technical protection measures.  Secondly, the sites and apps provide the means that enable users to infringe copyright by defeating YouTube's technical measures to prevent copying and downloading.  Thirdly, it is obvious that infringement is the probable if not inevitable consequence of using the sites' services.  Fourthly, the sites generate revenue from the users' unlawful activity either from advertising or periodic payments from users of the download apps. Fifthly, the site operators could prevent downloads if they so wished but had chosen not to do so.  Sixthly, the purported takedown and other anti-piracy measures that the sites claim to provide are essentially window dressing and worthless.

For all these reasons, the judge decided at [65] that the operators of the sites authorize users to infringe the claimants' copyrights.

Joint Tortfeasance

His lordship found that the site operators had induced, incited or procured users to infringe copyright and that they had profited from so doing, and that they and the users had acted pursuant to a common design.  First, the sites had been designed to provide a service that enables users to make infringing copies. The whole purpose of the technology they provide was to circumvent the copyright-protecting safeguards built into the streaming services. Secondly, the service was provided in a user-friendly fashion. Thirdly, users had access to massive amounts of protected, commercial, material. Fourthly, the greater the amount of activity on the sites and downloader apps the greater the profits from advertising and payments from users. Fifthly, the steps taken by the sites to prevent copying were wholly inadequate. Sixthly, the ownership and control of the sites were deliberately obscure and confusing leading to an inference that they wished to avoid protective steps being taken by commercial rights holders. The operators were therefore jointly liable with the users for the users' infringements.

Communicating Works to the Public

As in Capitol Records, Mr Justice Miles referred to Mr Justice Birss's decision in Warner Music UK Ltd v TuneIn Inc [2019] EWHC 2923 (Ch)  and directed himself that there were three main questions to be answered:
(a) Was there a communication of copyright works by way of electronic transmission? 
(b) Was the communication to the public? 
(c) Did the act of communication to the public take place in the UK? If the communication originated from outside the UK, was it targeted at the public in the UK?

Whether there was a Communication of Copyright Works by way of Electronic Transmission

Again as in Capitol Records, the learned judge referred to the following test at para [26] of the judgment of the Court of Justice of the European Union in Case C-610/15 Stichting Brein v Ziggo BV and others [2018] CEC 191, [2017] WLR(D) 406, [2017] Bus LR 1899, [2017] EUECJ C-610/15, EU: C:2017:456, ECLI:EU: C:2017:456, [2017] ECDR 19:

"[A] user makes an act of communication when he intervenes, in full knowledge of the consequences of his action, to give his customers access to a protected work, particularly where, in the absence of that intervention, those customers would not be able to enjoy the broadcast work, or would be able to do so only with difficulty"

Yet again as in Capitol Records, his lordship was satisfied that the reference to "users" applied equally to site operators.

The judge was satisfied that the sites made an intervention by converting the music on the YouTube videos into downloadable MP3 files.   

In Twentieth Century Fox Film Corporation and others v Sky UK Ltd and others [2015] EWHC 1082 (Ch) (28 April 2015), Mr Justice Birss had held that the provider of the "Popcorn Time" app was not directly liable for any communication to the public because the provider did not transmit content but merely supplied a device that had enabled the transmission. Mr Justice Miles distinguished that case on the ground that it had been decided before Brein.   In that case, the Court held that a party may commit acts of communication to the public even where it does not transmit content. In C-527/15 Stichting Brein v Wullems (t/a Filmspeler) EU: C:2017:300, [2017] Bus LR 1816, [2017] EUECJ C-527/15, ECLI:EU: C:2017:300, the wrongdoer was liable for communication to the public where he had supplied hardware that came pre-installed with links to pirate sites. The judge said that the provision of downloader apps was at least analogous to that situation. In his view, it constituted a sufficient material intervention even though the app did not itself transmit content because it gave users access to protected works. 

Referring to Mt Justice Arnold's judgment in Paramount Home Entertainment International Ltd and others v British Sky Broadcasting Ltd and others [2013] EWHC 3479 (Ch) (13 Nov 2013), Mr Justice Miles added that it was also relevant that the communication was of a profit-making nature in that the operators received advertising and users' payment.

Whether the Communication was to the Public

Following the Court of Justice's decision in Brein, Mr Justice Miles was satisfied that deliberate facilitation of a communication is sufficient to establish an act of communication and that this is shown if the operator had an intention when providing the service to facilitate infringements.  He accepted that that requirement had been established in the case before him.

Whether the Act of Communication to the Public took Place in the UK and if not whether it was targeted at the Public in the UK

The learned judge was satisfied that that requirement had been met for the following reasons.  First, the default language of the sites and app was English. Secondly, English was also the language of the advertisements that appear when the Sites were accessed or the app was used. Thirdly, in the 12 months between Sept 2017 and Aug 2018, there had been 76.3m visits from the UK to Flvto, 21.7m to 2Conv, 1.156m to Flv2mp3 and 2.42m to H2Converter. In the 18 months between June 2019 and Nov 2020, the equivalent figures were 77.36m to Flvto, 40.53m to 2Conv, 474,998 to Flv2mp3, 1.44m to MP3Studio and 255,920 to H2Converter. Fourthly, in the US proceedings, Mr Kurbanov has stated that Flvto and 2Conv were both "targeted at the entire world of eligible internet users". Fifthly, the app had been made available via these sites and ii offered pricing in sterling and enabled payments to be made by a UK credit card.

Conclusion

The judge was satisfied that there had been copyright infringement under each of the heads alleged by the claimants. It was not therefore necessary to consider the alternative ground that the sites were circumventing technological measures and otherwise infringing under ss. 296ZA and 296ZD of the CDPP.

Use of the Defendants' Services to infringe

At para [86], his lordship said that it was clear that both users and operators use the defendants' services to infringe the claimants' copyrights.

Actual Knowledge

The judge was satisfied that the defendants had actual knowledge of the infringements as they been informed by the claimants in pre-action correspondence and by the evidence in support of the application.

Proportionality and Discretion

His lordship reminded himself that his jurisdiction under s.97A was discretionary and had to be exercised proportionately.  The relevant principles for considering such applications were to be found at para [41] of Mr Justice Birss's judgment in Nintendo Co Ltd v Sky UK Ltd and others 2019] WLR(D) 504, [2019] EWHC 2376 (Ch), [2019] Bus LR 2773:

"The injunction must be (i) necessary, (ii) effective, (iii) dissuasive, (iv) not unduly costly or complicated, (v) avoid barriers to legitimate trade, (vi) a fair balance between the fundamental rights engaged, (vii) proportionate and (viii) safeguarded against abuse."

Mr Justice Miles considered a blocking order was proportionate for the following reasons.  He was satisfied that the injunction sought was necessary to prevent or at least reduce stream ripping. There was evidence of very substantial use of the infringing sites, much or all of which must involve the claimants' and their members' recordings.  The judge could not think of any realistic alternative measures which were less onerous than a blocking order. The identity and location of the operators of the sites were obscure. Correspondence with the operators of the H2Converter in the USA had got nowhere. Mr Kurbanov said that he was based in Russia. Seeking to pursue him (or enforce judgments of the High Court) would be very difficult. The judge noted that various infringing sites had been blocked in Italy, Russia, Denmark, Spain and Australia and that infringement targeted at the UK continued.   His lordship was also satisfied that the measures sought would at least seriously discourage users from accessing the target websites. Previous authorities of the English Courts had recorded that blocking orders had been effective in reducing visitor numbers to target websites. Moreover, the statistics shown to the judge indicated that previous blocking orders obtained by BPI had resulted in a very substantial reduction in UK visitors;   The learned judge was also satisfied that it was reasonable to infer that a well-publicized blocking order would dissuade other site operators and users from embarking on stream ripping of this type.

As to the costs and complexity of the proposed orders, the claimants considered it worth incurring the costs involved in protecting their rights and the incremental costs of the ISPs would be reimbursed. Blocking orders were now well-established and could be implemented without difficulty.

The evidence indicated that there was no commercially significant legitimate use of the infringing sites as his lordship had advised earlier in this judgment.

It was necessary to consider the comparative importance of the rights that were engaged and the justifications for interfering with them. It appeared that stream ripping caused very substantial damage to the claimants' and their members' intellectual property rights. There was no evidence of any commercially significant legitimate business operating from the infringing sites. There was no reason for thinking there would be significant interference with users' rights of privacy or data protection. The claimants' recordings were of course all available to be enjoyed by using legal digital music services.

Moreover, the evidence showed that it was not just copyrights in music recordings that had been infringed. The exploitation by the Infringing Sites of sound recordings would also involve the exploitation of the musical compositions (comprising copyright musical works and literary works) embodied in those recordings as well as copyrights in the videos.

The order sought included an express permission to apply to anyone affected by it.

The defendant ISPs did not oppose the making of the order and had agreed to its terms in principle. The order could therefore be taken to be proportionate as between the parties.

Further Information

Anyone wishing to discuss this article or stream stripping or blocking orders generally is welcome to call me on  +44 (0)20 7494 5252 or send me a message through my contact page. 

Comments

Andy J said…
I think it is just as well the learned judge did not make findings in respect of the alleged circumvention/infringement of TPMs. I'm not sure if Mr Walsh the IT specialist who gave evidence on behalf of the claimants was accorded expert witness status, but since there was no counsel for the defendants his evidence clearly wasn't tested in cross-examination. Thus the judge seems to have accepted [21 - 22] without question that there were TPMs in place and necessarily these must have been circumvented by the dowloaders.
Streaming does not employ any TPMs of the sort defined by s. 296ZA "effective technological measures have been applied to a copyright work". A streaming download in identical in its composition to a standard download; there is no encryption of the stream other than the ovedrall encrytion which operates on all data passing between two computers employing the https protocol. In other words it is not a measure applied to the work, but rather a measure applied to the overall transmission of data. The receiving computer cannot be said to circumvent the encryption because decrypting forms part of the normal data transmission protocol. If a user looks in their internet cache at the end a stream download they will usually find a complete copy of the stream residing there, unless the stream was so long (for instance a feature length movie) that an earlier part was overwritten by a later part of the stream. Cache files are usually overwritten as a routine part of the operation of the computer's memory management. The stream ripping software is exceptionally unsophisticated, in that all it does is to intervene in where the satream is stored within the host computer so that it is easily accessible to the user/downloader. The whole process is analogous to the old practice of recording songs from the radio using a built-in cassette-tape recording device which formed part of older music centres/ghetto blasters.
In the Meltwater case (UKSC 2013/18) before the Supreme court, the copy of a work held in cache was found [at 38] to be non-infringing as it fell within the section 28A exception, due to its transient nature, even though the court accepted the copy could in fact remain in the cache for several days.

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