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YouTube ‘Stream Ripper’ FLVTO.biz Aggressively Responds to the RIAA’s Lawsuit — Starting With a Motion to Dismiss

Posted on June 28, 2017 by Ella
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U.S. District Court for the Eastern District of Virginia, where UMG Recordings, et. al. vs. Tofig Kurbanov d/b/a FLVTO.biz is currently assigned.

U.S. District Court for the Eastern District of Virginia, where UMG Recordings, et. al. vs. Tofig Kurbanov d/b/a FLVTO.biz is currently assigned.

After a period of silence, FLVTO.biz and 2conv.com operator Tofig Kurbanov has emerged with an army of lawyers.

You can call him a kingpin of YouTube stream rippers.  Now, Russia-based Tofig Kurbanov is aggressively battling back against an RIAA-led lawsuit, with multiple law firms at his side.

According to legal documents and information shared with Digital Music News, Kurbanov has retained the legal support of US-based attorneys from Boston Law Group, PC, Virginia-based Sands Anderson PC, and Boston-based Ciampa Fray-Witzer, LLP.

That legal team, undoubtedly versed in both U.S. and Virginia legal statutes, has quickly moved to dismiss the entire case filed by the RIAA, based on jurisdictional issues.

In a filing with the Court, lawyers from all three firms quickly moved to remove the case entirely, partly based on the collective sites’ relatively small impact in the State of Virginia.

“Defendant Tofig Kurbanov (individually and d/b/a FLTVO.biz and 2CONV.com) hereby moves this Honorable Court, pursuant to Federal Rule of Civil Procedure 12(b)(2), to dismiss Plaintiffs’ Complaint in its entirety for lack of personal jurisdiction,” the filing demanded.

Barring an outright dismissal, the team is moving to shift the case to California:

“In the alternative, even if the Court were to find sufficient contacts with the United States as a whole, Mr. Kurbanov moves to dismiss the Complaint for forum non conveniens or to transfer the case to the Central District of California.”

In a statement signed by Mr. Kurbanov, it was noted that both FLVTO.biz and 2conv.com are actually hosted in Germany.

In a previous hosting arrangement, the sites were handled by Amazon Web Services (AWS), with a possible co-location server located in Virginia (though even that is unclear).

In a co-location setup, a central server hub is complemented by peripheral servers throughout the world to deliver faster results to various regions.  It’s likely that FLVTO.biz and 2conv.com are still deploying a distributed co-location setup post-AWS, given the heavy volume of traffic the site receives.  But it’s unclear if a co-located server currently resides in Virginia.

Furthermore, Kurbanov’s attorneys noted that the U.S. represents a minor percentage of total FLVTO and 2conv users, with Virginia 11th on the list of U.S. states within that total.  In total, Kurbanov noted that just 5.87% of 2conv.com’s traffic comes from the United States, with countries like Brazil, Mexico, and Italy commanding higher shares. “This means that over 94% of the users of the 2conv.com website come from outside the United States,” Kurbanov declared.

Within the United States traffic total, users from the State of Virginia account for just 1.75% of the total.  That raises serious questions over whether the U.S. District Court for the Eastern District of Virginia is indeed the correct venue for this case.

Of all 50 states, California unsurprisingly tops the list, hence the motion to shift to the Central District of California if an outright dismissal isn’t granted.

Then there’s the matter of Kurbanov himself, who resides in Rostov-on-Don in Russia.  In fact, Kurbanov states that he’s never set foot in the United States, and doesn’t even have a visa to travel into the U.S.

We’ve reached out to RIAA attorneys Jenner & Block LLP, which has several attorneys assigned to this case.

So far, there’s no response, though we suspect that Jenner attorneys selected the Eastern District of Virginia to increase its chances of a forceful victory.

Whether the legal team expected Kurbanov to even respond — much less lawyer up — is unclear.  Earlier, Jenner & Block attorneys were attempting to serve Tofig Kurbanov by email, and potentially looking for a no-show victory over a seemingly shadowy site operator.

The RIAA, via its Jenner & Block counsel, first filed paperwork against Tofig Kurbanov in early August of this year.

In their lawsuit, the RIAA indicated that Kurbanov was identified as a past or present owner of the URLs in question, while numerous ‘John Does’ were also listed as defendants.

It all looked like some pretty half-baked investigatory work.  But maybe that was on purpose. In numerous cases involving overseas piracy sites, ‘John Doe’ defendants simply fail to appear.  That outcome makes the next steps easy, with Google de-rankings and federal law enforcement assistance typically next.

According to Electronic Frontier Foundation senior staff attorney Mitch Stoltz, the major labels and the RIAA love it when an overseas defendant doesn’t respond.

“These sites, run from outside the U.S., don’t bother appearing in U.S. court to defend themselves—and the labels know this. When one party doesn’t show up to court and the other wins by default, judges often grant the winning party everything they ask for. Record labels, along with luxury brands and other frequent filers of copyright and trademark suits, have been using this tactic to write sweeping orders that claim to bind every kind of Internet intermediary: hosting providers, DNS registrars and registries, CDNs, Internet service providers, and more. Some of these requested orders claim to cover payment providers, search engines, and even Web browsers. Judges  often sign these orders without much scrutiny.”

This case is obviously playing out a little differently, with Kurbanov’s attorneys already filing hundreds of pages of legal paperwork (some of which we’ll be publishing shortly).

But the motion to dismiss is just a first strike in a lengthy battle.

In fact, it’s unclear if YouTube stream rippers are actually violating copyright law, and this case could test that question.  A lot depends on how the site is set up, though Kurbanov’s legal team has already offered a hint at its future defense strategy.  In further paperwork, Kurbanov pointed to ‘substantial non-infringing uses’ and file conversion capabilities that go far beyond YouTube.

In other words: Kurbanov’s team is likely to argue that FLVTO and 2conv are merely conversion tools, not copyright infringement machines.  After all, YouTube has a lot more content than just music videos, including instructional videos and YouTube shows that people want to watch offline.  Whether users are converting copyrighted music videos isn’t FLVTO’s concern.

Earlier, the EFF’s Stoltz argued that YouTube stream rippers are completely legal, unless the site operator is distributing copyrighted work to third parties without permission.  But the details do matter here.

In the case of recently-shuttered YouTube-MP3.org, a similar cross-Atlantic legal battle also emerged.  But YouTube-MP3 ended up settling with the RIAA, raising questions over whether site owner Philip Matesanz could have secured a victory — or at least some legal clarity — in a full court trial.

A hearing to discuss the motion has been set for November 9th before District Court judge Claude M. Hilton.  At this stage, it’s entirely unclear if Kurbanov will be able to appear.