June 27, 2020

On Friday, June 26, a Jenner & Block team obtained a significant appellate win for the Recording Industry Association of America (RIAA) and its record company members in the United States.  In a unanimous decision, the US Court of Appeals for the Fourth Circuit reversed a lower court decision and reinstated an RIAA copyright infringement suit to stop notorious stream-ripping websites and from committing massive copyright infringement. 

The team included Appellate and Supreme Court Practice Chair Ian Heath Gershengorn, who argued the appeal, as well as Partners Ishan K. Bhabha and Alison I. Stein, and Associate Jonathan A. Langlinais. As the team argued in the RIAA’s lawsuit and appeal, FLVTO and 2conv engage in and enable infringement of US copyrights on a massive scale.  Hundreds of millions of times each year, FLVTO and 2conv “rip” music from YouTube videos without permission of copyright holders, convert that music into audio files, and then send those infringing files to their users in the United States.   The RIAA and its members, who own the copyrights on the vast majority of that music, sued in the Eastern District of Virginia in August 2018 to stop that infringement.

The district court dismissed the case for lack of personal jurisdiction, concluding that the US Constitution barred the lawsuit.  The district court ruled that the operators of the websites lacked sufficient contacts in the United States to be sued here, even though the United States is the websites' third-largest market, the websites send hundreds of millions of infringing files into the country annually, and the websites make substantial profits from advertisements that are targeted to their US users.

The RIAA and its members appealed, and today the Fourth Circuit reversed.  The Court found that “Appellants’ claims arise out of activities directed at Virginia” and that the defendant “made two globally accessible websites and Virginia visitors used them for alleged music piracy.“In addition, Kurbanov knew the Websites were serving Virginian visitors and yet took no actions to limit or block access, all while profiting from the data harvested from the same visitors,” the Court notes. The Court added that “[i]t is hardly surprising, then, that Kurbanov’s contacts with Virginia were “substantial and form[ed] a central part of [Appellants’] claims.” 

The Fourth Circuit’s decision sets a crucial precedent for US copyright holders.  The decision is of tremendous importance not only to the recording industry but to the broader copyright community.  Pirate websites’ copyright infringement costs copyright holders billions of dollars each year.  The district court decision, now reversed, had provided a road map for these websites to cause and facilitate massive copyright infringement in the United States while remaining beyond the reach of civil copyright enforcement.