ALEXANDRIA, Va. — A published ruling by a Virginia court in a case brought forth by several record companies against the Russian owner of audio streaming ripping sites has set an important precedent for copyright cases involving adult content being pirated by non U.S.-based platforms, including tube sites.
The Russia-based owner and operator of audio streaming ripping sites FLVTO and 2Conv, Tofig Kurbanov, had been sued in 2018 by 12 top U.S.-based record companies for copyright infringement. Kurbanov’s lawyers had argued that all his work had been done in Russia and that, since he has no ties to the U.S., the court had no jurisdiction over his operation.
After a ruling in Kurbanov’s favor by the circuit court, the record companies filed an appeal. Friday’s published ruling in favor of the record companies remanded the case to the circuit court for trial.
In a ruling published on Friday, U.S. District Court for the Eastern District of Virginia Chief Judge Roger Gregory, joined by the two other judges, wrote that “in sum, we conclude Appellants’ copyright infringement claims arise out of Kurbanov’s activities directed at Virginia.”
“As previously discussed,” the ruling added, “we also find Kurbanov’s contacts sufficiently show he purposefully availed himself of the privilege of conducting business in Virginia. Therefore, the exercise of specific personal jurisdiction under Rule 4(k)(1) is appropriate if it is constitutionally reasonable.”
Connections to the United States
The court looked into Kurbanov’s business practices and concluded that “since visitors do not pay to use streaming ripping services, virtually all revenues generated by the Websites come from advertisements.”
Kurbanov himself did not sell advertising space directly to advertisers and used “advertising brokers, most of whom are based in Ukraine, but at least two are based in the United States.” The advertising brokers then resold those spaces to advertisers.
According to the complaint, the judge wrote, “some of the advertising brokers and advertisers are interested in the Websites’ ‘geolocation’ or ‘geotargeting’ capabilities. That is, advertising brokers or advertisers might want to display specific advertisements to specific blocks of countries, states or even cities.”
According to Kurbanov, he “has little control over the relationship between advertising brokers and advertisers” and “does not have any direct relationship or communication with any of the advertisers, only brokers.”
However, the court also found that, according to Kurbanov’s own data, between October 2017 and September 2018, his websites attracted well over 300 million visitors from over 200 countries. 30 million visitors (or about 10% of all traffic) came from the U.S., with 500,000 FLVTO visitors (or about 2% of all domestic visitors) coming from Virginia.
The court considered in their ruling that, beyond visitors, Kurbanov’s websites “have some other connections to the United States generally and Virginia more specifically,” including the domains being registered with U.S.-based GoDaddy, the top-level domains being administered by Virginia-headquartered companies Neustar and VeriSign.
A Judicial Precedent
According to legal experts familiar with the matter, this published ruling will relate to many adult industry piracy cases, including the Porn.com case.
“What is important is that this is a published opinion, it means the case can be cited in pleadings,” a source told XBIZ. “It establishes a new bar and it more clearly defines what is needed to establish personal jurisdiction over a foreign defendant.”
Judge Gregory’s published ruling also provides a judicial precedent on what elements may be taken as relevant to establish that a site is expressly aiming for U.S. traffic.
Battleship Stance’s Jason Tucker — whose copyright management and enforcement clients include many important players in the adult industry — celebrated the ruling, commenting that "a number of non-U.S. site owners appear to believe that if they or their servers are not physically located in the United States, that compliance with the Digital Millennium Copyright Act (DMCA) is 'voluntary.'"
“This case illustrates that compliance with the DMCA is likely mandatory. Failure to adhere to the law could result in significant liability,” Tucker added.
For U.S.-based copyright holders, including studios and models who own content, the UMG Recordings, etc. v. Kurbanov ruling, allowing for U.S.-court jurisdiction on many web-based disputes, could open the door to more cases against non-U.S.-based platforms and services, including tube sites.
