The Eastern District of Virginia recently decided on an interesting case called Universal Music Group v. Kurbanov. The defendant, in this case, is a Russian citizen, which becomes important later on. What’s interesting about this case is the magnitude of both the foolishness of the defendant, and of the award for damages.
It wasn’t a good sign when the attorney for the defendant filed a motion to withdraw because his client would not cooperate — and, on the same document, the attorney maintained that the defendant claimed, as a Russian citizen, he was not subject to the court’s jurisdiction. The court denied the motion to withdraw, which I found pretty draconian, though I suspect it might be because the attorney continued to advocate for his client in the motion to withdraw. (Maybe if the attorney had simply said, “He won’t cooperate with me, your honor, I can’t do anything,” he would’ve been more successful.)
The magistrate judge found that the court indeed had personal jurisdiction over Kurbanov having weighed the “constitutional factors” set forth in a fabled Supreme Court case (most likely because his conduct engendered downloads of infringing music in Virginia); that the Eastern District of Virginia was the proper venue; and as a copyright case, the district court had subject matter jurisdiction.
The legal question at the kernel of this case was a website run by Kurbanov that allowed users to take a music video from YouTube and download the audio — not the video portion — as an MP3 that could be added to iTunes, etc. The website was full of verbiage about free music and how easy it was, as well as copious advertisements (which generated income to the defendant, of course).
UMG estimated some 1,618 recordings were infringed by the defendant’s software, which worked by unscrambling YouTube’s “Rolling Cypher” — the term used to describe YouTube’s dynamic process that ensures its videos cannot be downloaded or split into an audio-only file. This is important because the DMCA specifically prohibits circumventing technological measures that are designed to prevent copyright infringement.
The defendant turned over nothing for discovery, so the plaintiffs and the court had no idea what the revenue of the site was. As one of the top sites on the internet for a period of time, one must assume that the ad revenue was pretty substantial. Adding to the defendant’s culpability for willful infringement was a list of countries that had warned him about his infringing behavior.
The magistrate judge found, and the district court judge would later agree, that the infringement by the defendant was willful. The award range for intentional copyright infringement is between $30,000 and $150,000, per work infringed. The court awarded the plaintiffs only $50,000 for each infringement, putting the damages at some $89 million. Kurbanov was also found to have violated the DMCA by circumventing technological measures meant to impede copyright infringement.
Whether the plaintiffs collect is another issue for another day. Meanwhile, that pirate’s life does not seem like so much fun…
