Record labels association the BPI has today won two significant new piracy cases, brought by major and independent record companies, confirming for the first time that cyberlockers and stream rippers – and those who use them – break the law.
The cases were dealt with following an online hearing by Mr Justice Miles at London’s High Court, who ruled that the operators and users of the websites use the services of internet companies (ISPs) to infringe copyright and that therefore the ISPs should block access to them. The infringing uses included providing or linking to a downloadable stream ripping app.
The two judgments are significant developments and benefit the whole music industry – artists, songwriters, music publishers and record companies large and small, as well as legitimate music streaming services. Stream ripping and cyberlockers are the music industry’s current biggest piracy threats. They are responsible for part of the £200 million a year that is illegally ripped out of the music industry ecosystem and which could otherwise be helping to boost the legal music streaming economy.
The landmark group litigation represents a hard-won legal victory in the ongoing fight against music piracy. The BPI has been developing the cases for two years, with 3,000 pages of evidence and months of negotiations with the UK’s six biggest ISPs – BT, EE, PlusNet, Sky, TalkTalk and Virgin Media.
The Court heard the industry’s legal arguments on 3rd February 2021 in an online hearing due to the pandemic. The cases were brought in relation to a major cyberlocker ‘Nitroflare’ and a number of stream ripping sites including two of the world’s biggest, ‘Flvto’ and ‘2Conv’. Some of these sites provided or linked to the downloadable app, ‘MP3 Studio’. Together these sites attract over a billion visits a year worldwide, and tens of millions a year from the UK alone.
Stream ripping sites like ‘Flvto’ are so problematic that they appear on the US Government’s ‘Notorious Markets List’ and on the European Commission’s ‘Counterfeit and Piracy Watch List’. When a user accesses an illegal stream ripping site, or downloads and uses a stream ripping app, a song is ripped from services like YouTube (or in some cases social media sites such as Facebook and Instagram) and downloaded, enabling the user to listen to the music over and over again illegally, without any payment to the songwriters, performers, music publishers and record companies who create and invest in that music. The operators of the illegal stream ripping sites make millions of pounds a year from advertising in the UK alone, but do not share a penny with the creators of the music they are exploiting.
As to cyberlockers, sites like Nitroflare are deliberately designed to encourage and reward users to upload music and other valuable copyright material, and illegally share links to it with others who can then illegally download it. Mr Justice Miles found that although music only represents around 10% of all files available on Nitroflare, the site warranted being blocked because it actively encouraged illegal sharing and it was highly unlikely that the site was being used for legitimate storage on a significant scale. The site also rewards those who illegally share music and penalises those who do not share by deleting their files.
The High Court’s decision also comes as a Parliamentary Select Committee inquiry is looking into Economics of Music Streaming, including the impact that piracy is having.
Legal music streaming now accounts for 80% of music consumption in the UK and is helping the industry return to growth after years of piracy-driven decline. But revenues have still not recovered to their pre-piracy levels and much more still needs to be done to help protect the music industry ecosystem and creators.
Although the BPI’s latest two cases are powerful tools to help protect the music industry from unacceptably high levels of online piracy, they are not silver bullets. That is why in its response to the Parliamentary inquiry, the BPI has called on Government to continue to do more to help reduce piracy and to grow the value of the legal streaming market for the benefit of the whole industry, in particular (1) by introducing a ‘duty of care’ for online platforms who use music in their business models; (2) by preventing such platforms misusing ‘safe harbour’ provisions to underpay for the music they use; (3) by introducing a statutory damages regime in the UK to deter illegal sites and (4) by introducing faster and more affordable ways for rightsholders to obtain website blocking orders against illegal sites.
The record industry continues to invest heavily in anti-piracy for the benefit of the wider music community. It started to take action against illegal streaming sites in 2017 when it shut down YouTube-mp3, the world’s biggest stream ripper at the time. The BPI has also been working with search engines to have stream ripper links demoted and delisted from search results, and with YouTube to prohibit ‘how to’ piracy tutorial videos.
The BPI’s two latest legal actions were group litigation cases by major label and independent record companies in a representative capacity on behalf of the members of BPI and PPL (Phonographic Performance Limited).
They were brought under section 97A of the Copyright, Designs and Patents Act 1988 against the six Defendant ISPs (BT, EE, PlusNet, Sky, TalkTalk and Virgin Media), who did not attend the hearing because, following negotiations with BPI, they agreed ultimately not to oppose the case and to comply with the Court’s decision.
In terms of usage, the BPI has today reviewed updated data for the period January 2018 – December 2020 showing that ‘Nitroflare’, the cyberlocker to be blocked, has received an average of 3.5 million annual UK visits over that three year period.
There are four currently active stream ripping sites to be blocked, varying in popularity – namely ‘Flvto’ (with an average 58 million annual UK visits over the last three years), ‘2Conv’ (25 million annual UK visits), ‘Flv2mp3’ (1.7 million annual UK visits) and ‘H2Converter’ (700,000 annual UK visits), plus the downloadable app provider ‘MP3 Studio’ (1.2 million annual UK visits).
Kiaron Whitehead, BPI General Counsel responsible for the UK litigation said:
“The High Court has confirmed what we all believed, namely that the operators and users of these egregious cyberlocker and stream ripping sites – together with the associated stream ripping app – infringe copyright in multiple ways and should be blocked in the UK. The illegal sites have more visits to them than even global brand websites like Coca-Cola and McDonalds, and they deprive those who create and invest in music from their rightful rewards. These two new judgments are important both legally and practically. They are not a silver bullet, but they develop existing European law and represent a significant step forwards in copyright law in the UK. We are grateful to the High Court in dealing with this group litigation so efficiently in an online hearing. The BPI will be taking further actions following these judgments.”
Amanda Solloway, Minister for Intellectual Property said:
“This result is good news for artists and performers, and I am grateful to BPI for its defence of our country’s intellectual property laws. These ‘stream ripping’ providers steal hundreds of millions of pounds which should be going to our world-renowned music industry. The Government will continue working closely with the music industry to combat piracy, protect jobs and maintain one of the strongest intellectual property frameworks in the world.”
Detective Constable Abdun Noor, The City of London Police’s Intellectual Property Crime Unit (PIPCU) said:
“Intellectual property crime causes significant harm. The BPI’s new High Court stream ripping and cyberlocker judgments assist the work we do nationally and internationally as the Police Intellectual Property Crime Unit, together with our law enforcement partners, to tackle IP crime. Intellectual property crime is not a victimless crime: the revenue lost through copyright infringement means people in the industry losing their jobs.”
Gee Davy, COO and Head of Legal & Business Affairs, Association of Independent Music (AIM) said:
“These judgments are not only a win for the independent music businesses named in the cases but the whole music ecosystem and AIM congratulates BPI on their expert handling of these cases. Getting music from illegitimate sites and services drives down the value of music and the money available to pay musicians and fund creativity. We hope that these judgments will serve as a strong deterrent to other illegitimate cyberlockers and stream rippers and raise awareness of legitimate ways to enjoy great music.”
Simon Bourn – Associate General Counsel, PRS for Music, said:
We welcome today’s High Court decisions, which recognise the harmful impact of stream-ripping and other piracy on the careers of music creators and the longer term health of the music industry. For five years, PRS for Music has closely monitored the growth of stream-ripping services, as evidenced in the independent research published in 2017 and 2020, with the latest research showing that overall usage of stream-ripping services dramatically increased by 1390% between 2016 and 2019. These two test case judgments are important legal precedents, reinforcing our longer term concerns about these types of illegal services and their increased proliferation as key facilitators of music piracy.”