On June 26, a panel of the U.S. Court of Appeals for the Fourth Circuit issued its decision in UMG Recordings, Inc. v. Kurbanov (2020), a case involving two of the world's most high-trafficked websites offering stream-ripping services. As Free State Foundation President Randolph May and I have explained in our book, Modernizing Copyright Law for the Digital Age – Constitutional Foundations for Reform, and also in a recent Perspectives from FSF Scholars paper, stream-ripping is the most prevalent method for mass online piracy of copyrighted sound recordings.
Mr. Kurbanov, a Russian national and the respondent in the case, generates revenues from ads targeted to the large numbers of users of his stream-ripping websites. As the Fourth Circuit explained, spaces on the websites are sold to ad brokers who resell spaces to advertisers. Apparently, a majority of streams ripped using those websites derive unlawfully from YouTube videos. The U.S. District Court had dismissed the case for lack of jurisdiction, prompting an appeal.
Importantly, the Fourth Circuit held that Mr. Kurbanov's activities in connection with his stream-ripping websites satisfied the purposeful availment prong of the federal courts' standard for exercising specific personal jurisdiction. It concluded that the copyright claims of several plaintiff owners of sound recordings arose from activities connected to the state of Virginia. Rightly, the Fourth Circuit rejected the District Court's conclusion that user visits to those stream-ripping sites were non-commercial in nature and that there were no acts by the defendant in targeting Virginia:
Here, the visitors' acts of accessing the Websites (and downloading the generated files) are themselves commercial relationships because Kurbanov has made a calculated business choice not to directly charge visitors in order to lure them to his Websites. Kurbanov then requires visitors to agree to certain contractual terms, giving him the authority to collect, among other information, their IP addresses and country of origin. Far from being indifferent to geography, any advertising displayed on the Websites is directed towards specific jurisdictions like Virginia. Kurbanov ultimately profits from visitors by selling directed advertising space and data collected to third-party brokers, thus purposefully availing himself of the privilege of conducting business within Virginia.
The case is now being remanded for a determination of whether the exercise of specific personal jurisdiction would be constitutionally reasonable. The Fourth Circuit's decision preserves access to justice for the copyright owners who are pressing their case against websites that they allege have facilitated massive online piracy. Perhaps the precedent established by the court also will bolster the prospects for copyright owners in pursuing civil justice against online piracy in future cases.
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