There have been developments on both sides of the Atlantic in relation to the music industry’s legal efforts to tackle online piracy. In Europe, a German court has upheld a ruling in relation to the stream-ripping code known as youtube-dl. Meanwhile, in the US, the Supreme Court has invited the Solicitor General to express a view on the major label’s legal battle with internet service provider Cox Communications.
The youtube-dl case involved a hosting company that was home to a website giving information about how to use the stream-ripping code and which was ordered by the Hamburg Regional Court to take that page down. The hosting company appealed that judgement, but the Hamburg Appeal Court has now upheld it.
Welcoming the news, the International Federation Of The Phonographic Industry says the appeal court’s ruling sends “a powerful message not only to those operating ripping services that they should cease their illegal activity, but also to online intermediaries providing services to infringers that they cannot continue to benefit from illegal activities without consequences”.
Stream-ripping sites – which allow users to grab permanent downloads of temporary streams – have been a top piracy gripe of the music industry for some time. A number of stream-rippers have been targeted with legal action over the years, including YouTube-MP3, FLVTO and Yout.
Many of those sites use the youtube-dl code, which is public domain software created by a disparate community of hundreds of software engineers, each contributing improvements and fixes to the core code.
With the code of youtube-dl being released under an “unlicense license”, which puts it into the public domain, anyone can use that code for any purpose, including creating and distributing their own versions of the code, or amending and repackaging it for pretty much any purpose.
That means it’s very difficult – and some would argue futile – to go after any one individual or organisation involved in the creation of the code, which means there’s an almost perpetual game of whack-a-mole by organisations trying to enforce anti-piracy measures.
With this litigation the labels actually went after Uberspace, the hosting company that hosted a webpage that explained how to use youtube-dl.
The case reflected a trend in the music industry’s battle against online piracy, where labels increasingly target legitimate internet companies that they say provide services to piracy sites, seeking to force those companies to disconnect customers that they see as promoting or enabling piracy.
When the Hamburg courts ruled against Uberspace last year, the hosting company’s owner Jonas Pasche said it was “a shameful day for the freedom of speech” and that the court decision removed “the option of staying neutral for a hosting provider”. He is yet to comment on the appeals court ruling which, the IFPI adds, is final and cannot be further appealed.
For the music industry, the rulings in Germany are presumably more important because of the precedents they set – regarding stream-ripping and the obligations of hosting platforms – rather than in actually stopping the distribution of the youtube-dl code. After all, a simple web search throws up hundreds of places where people can find detailed step-by-step instructions on how to run youtube-dl on their own computers.
The Cox Communications case in the US has also seen the music industry attempt to force legitimate internet companies to do more to stop the actions of users who are infringing copyright. In the case of Cox this meant ‘everyday’ internet users who illegally access and share unlicensed music files.
The major record companies successfully argued that Cox didn’t do enough to deal with known repeat infringers among its customer base and therefore could not take advantage of the copyright safe harbour under US law as a legal defence, which allows internet companies to avoid liability when their customers infringe copyright.
As a result, in 2019, Cox was found liable for contributory and vicarious copyright infringement, for respectively contributing to and profiting from its users’ piracy. A jury then said it should pay the major record companies the enormous sum of $1 billion in damages.
Cox appealed the ruling. The appeals court agreed that the ISP was liable for contributory infringement, but not for vicarious infringement. This means the damages Cox has to pay will likely be lower, something the majors are unhappy about. However, Cox is still liable and will have to pay considerable damages, which the ISP is obviously unhappy about.
Both sides now want the US Supreme Court to intervene. The majors want it to restore the vicarious infringement ruling. Cox wants the contributory infringement quashed, arguing that it sets a dangerous precedent that will force ISPs to cut off any customer who is subject to a couple of unsubstantiated complaints that someone of their connection illegally downloaded music.
In a bid to persuade the Supreme Court to review the case, Cox said that – if the existing ruling is allowed to stand – “Grandma will be thrown off the internet because Junior visited and illegally downloaded songs” and “an entire dorm or corporation will lose internet because a couple of residents or customers infringed”.
The Supreme Court is currently considering whether it should review the case.
Yesterday the Supreme Court said that “the Solicitor General is invited to file a brief in these cases expressing the views of the United States”, which basically means Solicitor General Elizabeth Prelogar in the US Department Of Justice is now able to decide whether to submit her views on the judgement against Cox and what the potential ramifications for copyright law and internet provision might be.
While inviting Prelogar to offer a viewpoint doesn’t guarantee that the Supreme Court will consider the majors v Cox case, it does make it more likely. If they do, a very important ruling in the context of the music industry’s battle against piracy in the US will very much hang in the balance.