This article was first published in Intellectual Property Magazine, November 2020.

The rise of music and video streaming via digital platforms such as YouTube, Spotify and Apple Music over the past decade has reshaped the music piracy landscape. Inevitably, competition from services that do not pay for music has arisen. Stream-ripping – the process of creating a downloadable file from content that is available for streaming online without the necessary permissions – is now the dominant illegal online music activity in the UK and elsewhere. A recent study commissioned by PRS for Music reveals that the growing popularity of streamripping services has continued on its upward trend since 2016,¹ amplifying the threat that stream-ripping poses to revenue streams in the music sector and making coordinated enforcement action against stream-ripping services increasingly important.

Growing popularity of streamripping

Research carried out by online rights monitoring company, Incopro, shows that stream-ripping services have grown significantly in popularity since 2016. In the UK alone, the use of these services increased by 1,390% between 2016 and 2019.² The growth in popularity of stream-ripping is such that websites promoting stream-ripping services now make up a notably larger proportion (80.2%) of the top 50 most popular music-only infringing websites than they did in 2016 – a rise of 12%. The same period has seen a decline in the popularity of BitTorrent sites, which in recent years have been the subject of concerted and effective enforcement efforts by those in the music industry. The displacement of BitTorrent by stream-ripping highlights the hydra-like nature of music piracy and the evolving enforcement challenges faced by the music sector.

Some aspects of the stream-ripping process, such as the major sources of ripped content, are clear. YouTube remains the most popular source of ripped content: 70 of the 100 stream-ripping services surveyed in the course of conducting the study exclusively offered ‘YouTube ripping’. Many other popular licensed platforms and legitimate service providers – such as Spotify, Deezer, Amazon Music, Tidal and SoundCloud – are also significantly affected, with Spotify overtaking SoundCloud to become the second most affected service. It is also clear that most of the stream-ripping sites sampled generate the majority of their revenue through advertising.

Other aspects of the provision of streamripping services, such as the location of their servers and the identity of their hosting providers, are less clear and may present difficulties for those wishing to enforce their rights. The report commissioned by PRS notes that the majority of the stream-ripping services analysed use Cloudflare’s content delivery network, which has the effect of obfuscating the location of the underlying hosting provider’s servers.

The problem

Stream-ripping has a severe and detrimental impact on the UK music market and on music rightsholders. Crucially, the use of streamripping services undermines licensing efforts and the ability of rightsholders to realise the full commercial value of their works.

Stream-ripping services – available via websites, apps and software programs – enable users to download, share and enjoy offline copies of audio or audio-visual content without adverts on an unlimited basis in direct competition with licensed services. Indeed, it provides a means for users to create a permanent library of content which they have not purchased. Users of websites offering stream-ripping services typically submit a URL relating to a video or to audio content that is streamable online and request conversion of the chosen content into a downloadable file. The stream-ripping service will then return a link which enables the user to download a mp3 file containing – depending on which service is used – the music or the music and video content extracted from the stream. Users of stream-ripping services thereby have access – for free – to the main capabilities and features of paid premium subscription services and download stores. While stream-ripping may seem an attractive option to those who have no regard for music rights (and indeed these services are becoming increasingly sophisticated, offering better quality downloads) it is not without risk. As noted in the Incopro report, for example, the funding model of stream-ripping download apps and stream-ripping plug-ins tend to rely almost entirely upon bundled software, including the installation of malware, adware and spyware.

Having downloaded the music or video content for free, users of stream-ripping services can listen to and consume the ‘ripped’ content outside of the licensed ecosystem. These users are less likely (if at all) to purchase the content from a download store, pay for premium subscriptions for streaming services and/or visit online platforms in order to enjoy the content in question. Accordingly, the popularity of stream-ripping has a direct and detrimental impact on the revenue streams of rightsholders and the operators of download stores and/or digital platforms: the sales of content and subscription services are lower than they would otherwise have been; royalties collected on behalf of music rightsholders from legitimate streaming services are lower; and advertising revenue that would have been generated by online streaming is lost.

Given that streaming royalties account for an increasingly large proportion of the income of music rightsholders, the growing popularity of stream-ripping is a pressing problem.³ The problem is made all the more acute by the recent changes the Covid-19 pandemic has wrought in the music industry: the majority of people working in the music industry have lost almost all income from live performances and are therefore more reliant than ever on the internet as a means of performing and distributing content, and on the revenue streams generated through licensed platforms.

Tackling the issue

Rightsholders who wish to prevent the unremunerated and unlicensed exploitation of their works by the providers and users of stream-ripping services can take action on a number of grounds.

The availability of legal redress is apparent from a number of actions taken in recent years. The closure of the YouTube-mp3.org service following a US court-approved settlement reached between its German-based operator and the Recording Industry Association of America (RIAA) provides one such example. The blocking of stream-ripping sites by internet service providers pursuant to intermediary injunctive orders granted in Denmark provides a further example.

From a UK perspective, potential routes to redress include the following, although each case will necessarily need to be considered on its specific facts:

• A rightsholder may commence proceedings for direct copyright infringement in the English courts against the operators of stream-ripping services on the grounds that the provision of stream-ripping services involves communicating protected works to the public in the UK contrary to section 20 of the Copyright, Designs and Patents Act 1988 (CDPA).

• By taking content that is made available on a website, extracting the audio from it and storing it as an mp3, the operator of the stream-ripping service clearly makes unlicensed copies of protected works for which no exception is applicable. If the acts of unlicensed copying have taken place within the UK, the rightsholder could also bring a claim on the grounds that these acts of copying contravene section 17 CDPA.

• Depending on the facts and the manner in which the use of a protected work has been restricted by the online platform in question, it may also be open to the rightsholder to argue that the provider of the streamripping service enables the circumvention of effective technological protection measures (TPMs) contrary to section 296ZD CDPA.

• The providers of stream-ripping services may also be liable in respect of their involvement in, or their authorisation of, infringing acts by the users of the stream-ripping services, though such arguments will inevitably turn on the relationship between the parties involved and the providers’ knowledge of the infringing activities in question.

• Seeking injunctive relief against third party intermediaries whose services are used for infringing purposes in connection with stream-ripping services, whether pursuant to section 97A of the CDPA or the court’s broad equitable jurisdiction to grant injunctive relief.

Establishing the jurisdiction of the English courts can be more complicated where direct action is to be taken against a stream-ripping service that is based and operated from outside the UK. Generally, the circumvention and the provision of services for circumvention are considered to take place in the country or countries where the servers of the streamripping service are located and where the service is operated. Following Sportradar,⁴ it may be possible to argue that stream-ripping services in question have been targeted at the UK and that infringement has therefore taken place in the UK.

These causes of action give rise in principle to damages, or an account of profits (in respect of damage suffered in the UK), and an injunction to restrain infringements in relation to the UK. The remedies may therefore not go far enough in restricting infringement taking place outside the UK. However, it is worth noting that the possibility of the English courts granting wider injunctions with extra-territorial effect in the context of copyright infringement is still live. The Supreme Court in Lucasfilm v Ainsworth⁵ observed that there was no objection in principle preventing the English courts from granting an injunction with extraterritorial effect in the context of copyright claims. Further, the Supreme Court’s more recent judgment in Unwired Planet v Huawei⁶ leaves open the possibility of the English courts granting an injunction to restrain acts of infringement taking place throughout the world in certain circumstances.

Enforcement in the online environment is not always straightforward against those who are intent on infringement, who make their identity difficult to ascertain and who will adapt their operations in efforts to circumvent the reach of the law. Identifying those intermediaries which provide the lifeblood to the infringing services may also provide a route for tackling the issue: be it search engines or app stores that point users to the service, internet service providers that enable user access, ad networks through which the services are able to generate revenue or the platforms from which the streams are taken.

Summary

The music sector, the owners and operators of App stores, software and plug-in platforms, YouTube and other licensed platforms all have an interest in preventing stream-ripping. Individual rightsholders can take enforcement action against the operators of stream-ripping services, but it is clear that tackling streamripping will require concerted effort by a range of players in the digital economy. While the data indicates that stream-ripping is on the rise, it is a challenge that can be met and addressed.

Footnotes

1. https://www.prsformusic.com/press/2020/usage-of-stream-ripping-services-increases-1390-percent-in-three-years
2. Id.
3. Streaming royalties now account for over 20% of the income of PRS members.
4. Case (C-173/11) Football Dataco Ltd v Sportradar GmbH.
5. Lucasfilm Ltd v Ainsworth [2011] UKSC 39.
6. Unwired Planet Intl Ltd v Huawei Technologies (UK) Co Ltd [2020] UKSC 37.