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Stream-ripping doesn’t necessarily constitute ripping off, says EFF

By Chris Cooke | Published on Monday 23 October 2017

The Electronic Frontier Foundation has hit out at the US record industry’s criticism of the stream ripping sites, accusing the Recording Industry Association Of America of misstating copyright law in its recent submission to the American government’s notorious markets review. EFF also claims that the music and movie industries have presented a “misleading picture” of the role companies like Cloudflare play in online piracy.

As previously reported, the music industry has become increasingly vocal of late about stream-ripping, sites where users can grab MP3 downloads of audio that is streaming on the internet. The US record industry successfully took the biggest stream-ripping platform– YouTube-mp3.org – offline by suing its German operator. Meanwhile earlier this year, a report from the UK’s Intellectual Property Office and collecting society PRS For Music said that growth in the use of streaming-ripping sites since 2014 meant they were now “overwhelmingly overshadowing all other illegal music services”.

In its annual submission to the US government’s notorious markets survey, which informs America’s trade negotiations around the world, the RIAA said that since the demise of YouTube-mp3.org, “several other stream-ripping sites have ‘doubled down’ and carry on in this illegal behaviour, continuing to make this form of theft a major concern for the music industry. The overall popularity of these sites and the staggering volume of traffic [they] attract evidences the enormous damage being inflicted on the US record industry”.

However, says the EFF, the RIAA is “mis-stating” the copyright liabilities of stream-ripping sites, in a bid to encourage the US government to put pressure on other governments to force such sites offline. “Websites that simply allow users to extract the audio track from a user-selected online video are not ‘illegal sites’ and are not liable for copyright infringement, unless they engage in additional conduct that meets the definition of infringement”, the EFF says in its own recent submission to the notorious markets review.

The main defence of stream-ripping sites, including the now defunct YouTube-mp3.org, is that they have legitimate uses as well as illegitimate uses. Which is to say that, some content creators are happy for people to grab their streamed audio as MP3 files, while even where the content owner doesn’t approve, the stream-ripping may be covered by the concept of ‘fair use’, in the US at least.

Similar defences were made in the early days of file-sharing about P2P technologies like Napster, Grokster, Kazaa and LimeWire, and in more recent years about file-sharing hubs like KickassTorrents and The Pirate Bay. In the main these technologies and sites were nevertheless found liable in court for so called contributory or authorising infringement, where you knowingly facilitate the infringement of others, and don’t do enough to stop your technology being used for illegitimate rather than legitimate purposes.

Had the RIAA’s YouTube-mp3.org litigation got to court – and assuming the stream-ripping site had used the “but we have legitimate uses too” defence – the record industry would almost certainly have cited precedents in the various file-sharing cases. Whether or not the stream-ripping platform would have been deemed liable for copyright infringement would therefore have depended on how the court chose to interpret contributory infringement laws. The pesky safe harbour may also have been thrown into the mix.

Either way, the outcome of that legal battle, had it got to court, wouldn’t have been a foregone conclusion from the off. Yet – argues the EFF – the RIAA talks about the stream-ripping sites as if its interpretation of copyright law is fully endorsed.

The EFF reckons that the American government “must apply US law as it is, not as particular industry organisations wish it to be. Accordingly, it is inappropriate to describe ‘stream-ripping’ sites as engaging in or facilitating infringement. That logic would discourage US firms from providing many forms of useful, lawful technology that processes or interacts with copyrighted work in digital form, to the detriment of US trade”.

As for criticism by the music and movie industries of Cloudflare – the internet services company that counts some piracy sites among its large client base – the EFF reckons that the content industries are misleading government officials there too. Among other things, reps for the record and film companies have moaned about how – by utlising Cloudflare’s platform and its ‘reverse proxy service’ – piracy sites are able to obscure the IP addresses they are operating from, making the operators of said sites harder to locate.

The EFF writes: “RIAA describes [Cloudflare et al] as services used by ‘pirate sites … to obfuscate their IP address, creating obstacles to enforcement against such sites’. [The Motion Picture Association Of America] repeatedly describes CloudFlare … as a service that ‘masks the IP location of the website’. MPAA also states without evidence that a site’s purpose for using a reverse proxy service is ‘to curb rights holders’ ability to identify its precise host'”.

“What these commenters fail to mention is that nearly any service that stands between a website and its users will inherently cause users to see a different IP address than the one used by the website’s own server”, adds EFF. “This is neither nefarious nor particularly difficult to circumvent, given that [firms like Cloudflare] are well-established, largely US-based companies that respond to valid court process requesting the IP address of a website”.

Noting that Cloudflare and its ilk provide vital services that make websites faster and more secure, EFF then adds the customary ‘these companies can’t be the police of the internet’ line that Cloudflare itself routinely rolls out. Which is to say, these companies will act against copyright infringing clients on their platforms if told to do so by a court of law, but – they argue – they can’t themselves decide what sites are or are not infringing copyright.

States EFF: “[These companies] are not required to seek out or police infringement by their customers, nor to render alleged infringers easily identifiable by copyright holders. Pressure on these services … to engage in more private copyright enforcement than the law requires risks diminishing the benefits that the services provide for US trade competitiveness and for the preservation of robust free speech”.