Each year the Office of the United States Trade Representative (USTR) publishes a report on “online and physical marketplaces that reportedly engage in and facilitate substantial copyright piracy and trademark counterfeiting,” called the Notorious Markets List. As part of creating the report, the USTR requests the aid of the public to identify these marketplaces through the submission of comments to the Federal Register. The deadline for comments was October 2nd and the deadline rebuttal comment was October 16th.

As it also does every year, the Recording Industry Association of America (RIAA) submitted its list of “notorious” actors, which includes Cyberlockers, Chinese/Russian Counterfeit CD Distributors, and Stream Ripping Sites. Notably this year the Electronic Frontier Foundation (EFF) responded to the RIAA’s comment in a rebuttal specifically condemning the RIAA’s stance on stream ripping sites. EFF argues that these websites are not illegal and do not violate copyright laws because, among other reasons, these websites only facilitate a process which may or may not violate copyright law depending entirely on whether the content the users rip is copyright protected. In other words, that users illegally rip copyright materials using the website services doesn’t necessarily render the website itself illegal. In addition, EFF concludes that declaring stream ripping sites as illegal will harm U.S. trade because it “would discourage U.S. firms from providing many forms of useful, lawful technology that processes or interacts with copyrighted work in digital form.” Notably, this exchange comes shortly after a major victory by record labels in a settlement with youtube-MP3.org, who has agreed to shut down its services.

Stream ripping is an active issue and a difficult challenge for the music industry. But does the EFF have valid arguments? The fact that the YouTube-MP3.com case ended in settlement means that the issue won’t really get its day in court and it is still unclear if the USTR will include the RIAA’s listed stream ripping sites in this year’s Notorious Markets List. Though the major label’s case has settled, the issue certainly has not.

Dallin Earl is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).

Photo: “Backstreet Broken” by Brian Teutsch is licensed under CC BY 2.0

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