YouTube Rippers Oppose $82 Million ‘Piracy’ Damages Recommendation

Last October, the RIAA secured a major victory in its piracy lawsuit against YouTube-rippers FLVTO.biz and 2conv.com and their Russian operator Tofig Kurbanov.

A Virginia federal court issued a default judgment in favor of several prominent music companies after the defendant walked away from the lawsuit.

According to the order, there is a clear need to deter the behavior of Kurbanov who failed to hand over evidence including server logs. “A less drastic sanction is unlikely to salvage this case,” the Judge wrote.

$82 million Damages Award?

Following this win, the RIAA asked for an injunction to stop the sites’ worldwide stream-ripping activities. In addition, the music group demanded $82 million in damages. Both of these requests were taken up in a report and recommendation issued by Magistrate Judge Buchanan last month.

“Defendant’s Websites caused the Plaintiffs to lose profits and streaming revenue because of the enormous internet traffic to and use of the Websites’ stream-ripping functions,” Judge Buchanan wrote.

The recommendation is yet to be accepted by the court but according to Kurbanov’s legal team, this shouldn’t happen. In an opposition brief filed late last week, they point out that the Judge made several errors.

The default judgment confirmed that the operator of the sites is liable. However, the defense believes that this doesn’t automatically mean that the music companies are entitled to damages. They still have to prove that the songs were ripped through the sites in the United States.

No Evidence of Infringements

The music companies provided hundreds of pages of evidence and argued that 1,618 works were infringed. However, there is no evidence of any of these infringements actually taking place, the defense argues.

“The law on this point is exceedingly clear: regardless of the fact that the Court defaulted Mr. Kurbanov, Plaintiffs were required to prove the facts that would entitle them to recover the damages sought,” Kurbanov’s opposition brief reads.

“Plaintiffs provided the Court with no competent evidence from which the Court could conclude that any infringement took place at all in connection with the 1,618 works in suit, much less that such infringement took place within the boundaries of the United States.”

Judge Buchanan stressed that the music companies were not required to provide this evidence because it can be presumed from the default judgment. However, Kurbanov’s lawyer points to jurisprudence that contests this.

‘Proposed Damages are Too High’

Even if the court agrees that statutory damages are appropriate in this case, the suggested amount of $50,000 per copyright infringement is too high, according to the defense.

The opposition brief points out that Mr. Kurbanov himself is not accused of downloading any songs. He simply built his site around the open-source software youtube-dl that is freely available to anyone on the Internet.

“It is Plaintiffs’ contention that the youtube-dl software (which Mr. Kurbanov did not himself create) circumvents technological measures put in place by Youtube (and not by the Plaintiffs). It is far from clear, however, that youtube-dl ‘circumvents’ anything and, indeed, many experts have concluded that it does not.”

This refers to a letter from the EFF which argued that youtube-dl does not circumvent technological measures. And since Mr. Kurbanov did not himself use the software to download any songs, his infringement should be considered “innocent,” resulting in the lowest amount of statutory damages, $200 per work.

Meanwhile, the additional damages per DMCA violation should be scrapped entirely. These damages apply to the same works and the music companies cannot recover damages twice for the same “injury”, the defense argues.

‘No Worldwide Injunction’

Finally, the court should not accept the permanent injunction suggested by the Judge. That order would apply worldwide, which means that it would apply outside of the court’s jurisdiction.

“In its current form, the proposed injunction exceeds this Court’s jurisdictional powers and so, at a minimum, should only be adopted insofar as it enjoins Mr. Kurbanov and his Websites from providing certain services to visitors from the United States.

“And, indeed, given that Mr. Kurbanov voluntarily blocked access to the Websites from the United States, it is questionable as to whether any such injunction is necessary,” the defense adds.

That last comment could have broader implications. The YouTube rippers did indeed block all traffic from the United States a few months ago. This means that an injunction that’s limited to the U.S. would have no additional effect.

There is another complication. If the music companies are indeed required to deliver additional evidence to show that infringements take place in the U.S., they can no longer do so because U.S. traffic remains blocked.

We expect that the last word hasn’t been said on this matter. Before the court reaches a final decision, the RIAA is likely to have its say as well.

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A copy of Mr. Kurbanov’s objections to Magistrate Judge Buchanan’s report and recommendations is available here (pdf)