Last Thursday’s report and recommendation filed by Eastern District of Virginia Magistrate Judge Theresa Carroll Buchanan said that Tofig Kurbanov, the owner and operator of two pirated music sites, is liable and must compensate the plaintiff record labels for allowing users to repeatedly download about 1,615 songs free of charge. The 26-page decision comes after the case took a trip to the Fourth Circuit Court of Appeals, which reinvigorated the suit after finding that the district had personal jurisdiction over the Russian defendant.
After the trial court denied the defendant’s motion to dismiss, and discovery was supposed to be underway, the plaintiffs, including UMG Recordings Inc., Capitol Records LLC, Warner Bros. Records Inc., and Atlantic Recording Corporation filed a motion for default judgment following the defendant’s repeated failures to engage meaningfully in discovery, insisting he was not subject to the court’s jurisdiction. The court entered default judgment against Kurbanov in October.
Their 2018 complaint explains that the plaintiffs hold the exclusive copyrights to a vast collection of commercial recordings, including songs by chart-topping artists like One Direction, Beyonce, and Bruno Mars. The defendant’s websites permit users to convert URLs from streaming sites like YouTube.com into free downloadable MP3s through a few simple steps through a process known as “stream ripping.”
The site’s software allegedly bypasses YouTube’s media file protection controls. In addition, Kurbanov’s sites encourage users to continue pirating music, touting the stream ripping service as a way to obtain it for free.
Though his illicit services are free, Kurbanov earns revenue by selling advertisements on his website to capitalize on the high volume of traffic it receives, the opinion said. As such, the plaintiffs allege that he tangentially profits from the unauthorized copying and distribution of their music library. The record labels brought causes of action for direct, contributory, and vicarious copyright infringement, inducement of copyright infringement, and circumvention of technological measures under the Digital Millennium Copyright Act (DMCA).
After recounting Kurbanov’s refusal to comply with discovery and court orders, through bad faith and other conduct that ultimately led to the entry of default, the court considered liability and damages. Judge Buchanan awarded the plaintiffs statutory damages under copyright law of $50,000 per infringed work, considering the plaintiffs’ lost profits and defendant’s advertising revenue, willfulness, and several other factors.
As to the DMCA technological circumvention claim, the court awarded $25,000 per infraction after finding the defendant’s use and installation of the YouTube-circumvention software willful. The court recommended a permanent injunction against the defendant to prevent future harm, in part citing his unwillingness to participate in the lawsuit. Finally, Judge Buchanan granted an award of the attorneys’ fees and costs.
Objections to the report and recommendation are due December 30.
The plaintiffs are represented by Oppenheim + Zebrak LLP. Kurbanov is represented by Sands Anderson PC, Boston Law Group PC, and Ciampa Fray-Witzer LLP.