[This article was first published on Lexis®PSL TMT on 19 July 2017]

TMT analysis: A recent press release from the UK Intellectual Property Office (IPO) reveals that unlawful stream ripping remains a challenge despite the efforts of streaming giants such as Netflix and Spotify. Rob Guthrie, partner in Osborne Clarke’s intellectual property litigation department, explains the different forms that stream ripping can take and the current copyright framework surrounding stream ripping content.

What is stream ripping?

Stream ripping is the illegal creation of permanent copies of streamed content. In recent years it has become one of the most common forms of online music piracy, with recent research undertaken by PRS for Music and the UKIPO finding that the use of stream ripping services increased 141.3% between 2014–16.

Stream ripping services can take a variety of forms. The PRS for Music/UKIPO report divides them into five categories:

  • download apps—which source and download content from licensed streaming services and then deliver that content to the user through the app
  • download sites—which work in the same way as download apps but deliver the content through a website
  • stream ripping sites—which allow users to download content from the licensed service by inputting a relevant URL/link
  • stream ripping plug ins—which can provide an internet browser with stream ripping functionality, and
  • stream ripping software—which can be downloaded and then used to make permanent copies of streamed content

What are the legal issues with stream ripping?

An individual that uses a stream ripping service to make an unauthorised copy of copyright protected content will most likely be infringing copyright. However, as copyright owners have found for many years when dealing with illegal downloads, it can be difficult to identify and take action against individual infringers. As a consequence, copyright owners will naturally focus on potential legal claims against the providers of stream ripping services. If the stream ripping service is itself ripping and downloading content from a stream and then providing this content to its users, then it seems likely that it will be infringing copyright (although it may be difficult to determine in which jurisdiction such actions are taking place).

If the service only provides the means for its users to rip and download content, then the stream ripping service could still be liable for the actions of its users as a joint tortfeasor or through other forms of vicarious liability. UK courts have generally held that manufacturers of recording apparatus are not liable for any infringing use—the classic case being the twin tape deck in Amstrad—but the position may be different if stream ripping services are using software that is targeted at particular streaming services which prohibit stream ripping for all available content. Stream ripping services may also be liable for circumvention of technological measures that have been applied by authorised streaming services.

Finally, taking enforcement action against stream ripping services directly may also prove to be challenging as it will often be difficult to identify who is behind the service and where they are located. Copyright holders may therefore end up applying for blocking orders, requiring ISPs to block the websites of stream ripping services, as they have already done for websites engaging in other forms of copyright piracy such as peer-to-peer file sharing. What can providers like Spotify do about stream ripping?

In some cases, stream ripping services use the application programming interface (API) of a licensed provider (the API allows third parties to create applications for the streaming service). Licensed services can therefore help to reduce the problem by ensuring that the API keys are removed from any application that uses their API for stream ripping.

Providers of authorised streaming services can also look to put in place, or improve, technological protection measures to make it harder for their streams to be ripped. It seems that authorised providers are presently losing the battle with stream ripping services and that current protection measures are being circumvented. We are likely to see increased efforts by authorised streaming services to develop more effective protection measures (and increased pressure from copyright owners and industry bodies for those efforts to be effective).

What is on the horizon to combat stream ripping and other similar forms of copyright infringement?

Industry bodies are working closely with authorised streaming services and platforms to reduce the prevalence of stream ripping services. PRS for Music confirmed at the launch of the stream ripping report it commissioned with the UK IPO that it was working with SoundCloud and notifying them when their services and API are being used for stream ripping. At the same event, Google confirmed that it works closely with a number of industry bodies in a similar manner.

The major US record labels issued a claim in the US against Youtube-mp3.org, one of the most popular stream ripping sites, in September 2016 and this case is likely to be watched with interest. The claim centres on the stream ripping of music videos that appear on YouTube and alleges that Youtube-mp3.org is responsible for upwards of 40% of all unlawful stream ripping worldwide.

This article was first published on Lexis®PSL TMT on 19 July 2017.