Case 1:18-cv-00957-CMH-TCB Document 140 Filed 12/30/21 Page 1 of 19 PageID# 2763
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`
`UMG RECORDINGS, INC., et al.,
`Plaintiffs,
`v.
`KURBANOV, et al.,
`Defendants.
`
`Case No. 1:18-cv-00957-CMH-TCB
`
`DEFENDANT’S OBJECTIONS TO MAGISTRATE JUDGE’S DECEMBER 16, 2021
`REPORT AND RECOMMENDATION AS TO DAMAGES AND
`PERMANENT INJUNCTIVE RELIEF
`
`Pursuant to Fed. R. Civ. P. 72(b), Defendant Tofig Kurbanov (“Mr. Kurbanov”) hereby
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`submits his objections to the Magistrate Judge’s December 16, 2021 Report and Recommendation
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`as to the award of damages to the Plaintiffs and the grant of permanent injunctive relief. In support
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`thereof, Mr. Kurbanov states as follows.
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`INTRODUCTION
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`On December 16, 2021, following a default issued against Mr. Kurbanov, Magistrate Judge
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`Theresa Carroll Buchanan entered a Report and Recommendation in which she recommended that
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`this Court award Plaintiffs damages of almost $83 million and issue a worldwide permanent
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`injunction against Mr. Kurbanov. Both recommendations, however, are in direct contravention of
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`the law and should not be adopted by this Court.
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`In support of their request for damages and permanent injunctive relief, Plaintiffs chose
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`not to provide the Court with evidence of actual damages, instead electing statutory damages under
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`17 U.S.C. §504. This was, of course, Plaintiffs’ right. Having done so, however, it was incumbent
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`on Plaintiffs to provide evidence to the Court of actual instances of infringement by United States-
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`based visitors to Mr. Kurbanov’s websites, www.flvto.biz and www.2conv.com (the “Websites”),
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`as statutory damages are premised on a certain amount being awarded to the Plaintiffs for each
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`infringement.
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`Remarkably, though, despite submitting to the Court more than 450 pages worth of
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`materials, Plaintiffs failed entirely to provide any evidence of the one thing that is a prerequisite
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`to any recovery: namely, proof of the existence of even a single improper download of Plaintiffs’
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`copyrighted materials within the United States. This is not mere hyperbole. The Plaintiffs
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`produced no evidence whatsoever that even a single person in the United States ever utilized Mr.
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`Kurbanov’s Websites to improperly download one of their copyrighted songs.
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`In her Report and Recommendation, the Magistrate held improperly that Plaintiffs did not
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`need to prove any infringements of their works because such proof was presumed by virtue of her
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`having ordered the default against Mr. Kurbanov. In addition, the Magistrate incorrectly
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`recommended that this Court award Plaintiffs duplicative damages pursuant to two overlapping
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`statutes.
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`Finally, the Magistrate incorrectly recommended that this Cout issue a broad, worldwide
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`injunction, which is in contravention of the Copyright Act itself as well as the limits on this Court’s
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`legal authority.
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`In further support of his Objection, Mr. Kurbanov states as follows.
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`ARGUMENT
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`I.
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`The Magistrate Incorrectly Held That Plaintiffs Did Not Need to Prove Their
`Entitlement to Statutory Damages.
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`In their motion, Plaintiffs correctly noted that a successful Plaintiff in a copyright action
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`(who has registered its copyrights) is entitled to elect to receive either an award of actual damages
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`2
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`

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`or an award of statutory damages, as provided for by statute. Plaintiffs’ Request, p. 14, citing 17
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`U.S.C. §504. For seemingly obvious reasons (namely that Plaintiffs were unable to prove that they
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`suffered any actual damages from the alleged infringement),1 Plaintiffs elected to receive statutory
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`damages.
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`1 See, e.g., The Copia Institute, The Sky is Rising 2019: A detailed look at the state of the
`entertainment industry, pp. 2-3 (April 2019) https://skyisrising.com/TheSkyIsRising2019.pdf (“In
`January of 2012, we released the very first Sky is Rising report, highlighting how – despite
`numerous doom and gloom stories about the impact of the internet on the creative communities –
`nearly all of the actual data showed tremendous, and often unprecedented, growth in both earnings
`and creative output.... [S]tepping back and looking at the data, frequently from the industry itself,
`showed that the sky wasn’t falling because of the internet – it was rising.... It has been over seven
`years since that first report, and plenty has changed, so it felt like time to revisit the original
`questions explored in that original report: how is the global market for entertainment faring – and
`is the sky now rising or falling? Has the internet decimated entertainment, or enabled a golden
`era? The data in this report show that, once again, the sky is rising. We are in, as Professor Joel
`Waldfogel has noted, a true ‘Digital Rennaissance.’ [Sic] No matter where you look, there are
`signs of an incredible abundance of not just creation of new content, but myriad ways to make
`money from that content. Contrary to clockwork complaints of content creation being killed off –
`all evidence points to an internet that has enabled stunning growth and opportunity for content.
`The internet has provided new tools and services that have enabled more creation, more
`distribution, more promotion, more access to fans and more ways to make money than ever before.
`There is almost no evidence we can find anywhere of the internet decreasing content creation or
`the size of any aspect of the content creation industry. If anything, the internet has opened up the
`opportunity for millions of new content creators to create, promote, distribute and profit off their
`works.... [T]here is no evidence whatsoever to support the idea that either content creators or the
`general public have been harmed by the internet revolution.”); Newsweek, “Inside the Piracy Study
`the European Union Hid: Illegal Downloads Don’t Harm Overall Sales” (Sept. 22, 2017)
`https://www.newsweek.com/secret-piracy-study-european-union-669436
`(“Your
`illegal
`downloads of video games, top music acts and even e-books don’t harm sales, according to a
`landmark report on piracy that the European Commission ordered but then buried when the
`findings didn’t tell officials what they wanted to hear. The 300-page study offered the
`counterintuitive conclusion that illegal downloads actually help the gaming industry and have no
`negative impact on music sales by big stars or on e-book profits.”); BBC News, “Music sales are
`not affected by web piracy, study finds” (March 20, 2013) https://www.bbc.com/news/technology-
`21856720 (“A report published by the European Commission Joint Research Centre claims that
`music web piracy does not harm legitimate sales.... They also found that freely streamed music
`provided a small boost to sales figures.”); TechDirt, “GAO Concludes Piracy Stats Are Usually
`Junk, File Sharing Can Help Sales Studies” (April 13, 2010) https://tdrt.io/a7q (“The GAO’s study
`unsurprisingly found that U.S. government and industry claims that piracy damages the economy
`to the tune of billions of dollars ‘cannot be substantiated due to the absence of underlying studies.’
`3
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`

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`Plaintiffs based their request for statutory damages on their assertion that 1,618 copyrighted
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`sound recordings were infringed upon by users of Mr. Kurbanov’s Websites. Plaintiffs and their
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`declarants conceded, however, that they are unable to state “the full extent of Plaintiffs’ harm from
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`Defendant’s infringement.” Plaintiffs’ Reply, pp. 16-17, citing Declarations of Cohen, Lean, and
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`McMullen. Understandably, Plaintiffs attributed their inability to calculate the “full extent” of
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`their damages to Mr. Kurbanov’s failure to cooperate with discovery in this case. If the relevant
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`question had been how many times each of the 1,618 recordings were infringed, Plaintiffs might
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`have had a point. However, the scope of the infringement of each recording only becomes relevant
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`once Plaintiffs have first established that there has been any infringement of a given file by a
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`website user within the United States. In other words, if Plaintiffs had proven that a given song
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`had been downloaded by a user in the United States, then an entitlement to statutory damages
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`would be triggered and the scope of the infringement of that song would be relevant to the Court’s
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`determination of the precise amount of statutory damages to be awarded. (The statute provides
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`that, in general, an award can range between $750 and $30,000 per file infringed, though that
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`amount can be increased to $150,000 for willful infringement, or reduced to $200 for innocent
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`infringement).
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`Here, however, Plaintiffs failed to provide evidence that any of their copyrighted works
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`were infringed by even one user of Kurbanov’s Websites (much less by a user located in the United
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`States). Indeed, the closest that Plaintiffs come to explaining their assertion that there are 1,618
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`copyrighted sound recordings at issue in this case is the declaration of their expert witness, Robert
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`Schumann. Mr. Schumann does not say that he himself downloaded any of the works in suit from
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`The full GAO report ... not only argues that claims of economic impact have not been based on
`substantive science – but that file sharing can actually have a positive impact on sales....”).
`4
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`

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`the Websites, but rather says that he “understand[s]” that the Plaintiffs’ investigator did so.
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`Schumann Declaration, ¶31 (Docket Entry 131-1). Oddly, though, Plaintiffs failed to submit a
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`declaration from their investigator providing this Court with any first-hand evidence that such
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`downloads took place or – crucially – that they took place from within the United States. See,
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`e.g., Elsevier Ltd. v. Chitika, Inc., 826 F. Supp. 2d 398, 402-03 (D. Mass. 2011)(finding no
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`actionable infringement to have occurred where Plaintiff’s investigator downloaded copies of
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`works from outside the United States because it “is well established that copyright laws generally
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`do not have extraterritorial application…” and in “order for U.S. copyright law to apply, at least
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`one alleged infringement must be completed entirely within the United States.”)
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`The same holds true here. Plaintiffs provided the Court with no competent evidence from
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`which the Court could conclude that any infringement took place at all in connection with the
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`1,618 works in suit, much less that such infringement took place within the boundaries of the
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`United States. Without such evidence, the Magistrate could not properly find that Plaintiffs were
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`entitled to any statutory damages, since the evidence of actual infringement did not exist.
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`In reaching her conclusion, however, the Magistrate held that Plaintiffs were absolved of
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`having to provide evidence of the alleged infringements because such infringement could be
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`presumed as a matter of law by virtue of the default entered against Mr. Kurbanov by the Court.
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`See Report and Recommendation, p. 19 (“This entry of default judgment is equivalent to a finding
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`of liability on all counts of Plaintiff’s Complaint, including the violations alleged under the
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`Copyright Act. … The Plaintiffs therefore do not have the burden of proving the elements of the
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`alleged Copyright Act violations, and merely need to survive, as they have, a 12(b)(6) evaluation
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`5
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`of the Complaint.”)2 This is an incorrect statement of law, at least insofar as it applies to the
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`present case.
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`Although it is certainly true that a “defendant, by his default, admits the plaintiff's well
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`pleaded allegations of fact… and is barred from contesting on appeal the facts thus established,”
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`it is equally true that this applies only to the well-pleaded facts of the complaint and, even then,
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`only insofar as those facts relate to a finding of liability and not insofar as the allegations relate to
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`either an issue of law or questions of damages. Ryan v. Homecomings Fin. Network, 253 F.3d
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`778, 780-81 (4th Cir. 2001), quoting Nishimatsu Constr. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d
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`1200, 1206 (5th Cir. 1975) (itself quoting Thomson v. Wooster, 114 U.S. 104, 113, 29 L. Ed. 105,
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`5 S. Ct. 788 (1884)). “In short, … a default is not treated as an absolute confession by the defendant
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`of his liability and of the plaintiff's right to recover.” Id. Instead, the Court “must, therefore,
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`determine whether the well-pleaded allegations in Appellants' complaint support the relief sought
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`in this action.” Id.
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`In the present case, Plaintiffs have not even alleged in their Complaint that someone within
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`the United States used Mr. Kurbanov’s Websites to infringe on Plaintiffs’ copyrighted works.
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`Instead, the Magistrate extrapolated from Plaintiffs pleading that Mr. Kurbanov was liable for
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`various forms of copyright infringement and that Plaintiffs, therefore, were able to plead the
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`necessary facts to support this legal conclusion. They were not and they did not, as is further
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`evidenced by their inability, even now, to substantiate such facts as part of their 450-plus page
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`submission to this Court.
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`2 It is unclear what “12(b)(6) evaluation of the complaint” the Magistrate is referring to: Mr.
`Kurbanov moved for dismissal of Plaintiffs’ complaint under Rule 12(b)(2) for lack of personal
`jurisdiction, not rule 12(b)(6).
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`6
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`Moreover, the Magistrate was mistaken in believing that a default judgment serves to admit
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`allegations concerning the Plaintiffs’ damages. It does not, and it remains Plaintiffs’ burden to
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`prove such damages. See, e.g., Commodity Futures Trading Comm’n v. Tate St. Trading, 2021
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`U.S. Dist. LEXIS 215358, at *15 (E.D. Va. June 1, 2021)(“Although well-pleaded factual
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`allegations are accepted as true for default judgment purposes, a party who defaults does not admit
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`the allegations in the claim as to the amount of damages. … Thus, once liability is established, the
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`Court must independently determine damages”); BMO Harris Bank N.A. v. 64 Ways
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`Trucking/Hauling LLC, 2020 U.S. Dist. LEXIS 231376, at *3 (E.D. Va. Dec. 9, 2020)(same);
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`Wilcox v. Transmodal Sols., LLC, 473 F. Supp. 3d 574, 584 (E.D. Va. 2020)(“when a court
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`determines that liability has been established in a default judgment setting, the court cannot accept
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`damage-related allegations as true, and must ‘make an independent determination regarding
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`damages’”)(citations omitted); Augustin v. Sectek, Inc., 2012 U.S. Dist. LEXIS 202493, at *11-13
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`(E.D. Va. Mar. 1, 2012)(“even if Plaintiff's Complaint stated a claim for a breach of the duty of
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`fair representation, the motion for default judgment must still fail because Plaintiff's claim for
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`damages is unsupported. …Although a defendant in default admits the allegations set forth in the
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`complaint, the Court must make an independent determination of the amount of damages a plaintiff
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`is entitled to recover. … Plaintiff seeks a significant amount of damages—two million dollars—
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`but has provided no materials in support of that damage award. The application for default
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`judgment provides no information regarding the nature of damages sought or the legal bases for
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`entitlement to those categories of damages. Simply put, Plaintiff has not legally or factually
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`substantiated his entitlement to the precise damages sought. Therefore, even if Plaintiff established
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`Defendants' liability in this action, the undersigned would still recommend that default judgment
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`be denied.”); Dundee Cement Co. v. Howard Pipe & Concrete Products, Inc., 722 F.2d 1319 (4th
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`7
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`Cir.1983) (finding that upon default judgment, allegations relating to damages are not taken as
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`true) (citing Pope v. United States, 323 U.S. 1 (1944)); Amini Innovation Corp. v. KTY Intern.
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`Marketing, 768 F.Supp.2d 1049 (CD. Cal. 2011), quoted in Augustin, supra (“If [a] plaintiff is
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`seeking money damages through default judgment, [the] plaintiff must prove-up its damages; [that
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`is, a] plaintiff is required to provide evidence of its damages”); United States v. Vardoulakis, 2010
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`U.S. Dist. LEXIS 130327, at *12-16 (D. Md. Dec. 9, 2010)(“An allegation ‘relating to the amount
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`of damages’ is not deemed admitted based on a defendant's failure to deny in a required responsive
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`pleading”; Trs. of the Elec. Welfare Trust Fund v. MH Passa Elec. Contracting, Inc., 2009 U.S.
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`Dist. LEXIS 83737 (D. Md. Sept. 14, 2009)(“Upon default, the well-pled allegations in a
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`complaint as to liability are taken as true, although the allegations as to damages are not."); Pentech
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`Fin. Servs. v. Old Dominion Saw Works, Inc., 2009 U.S. Dist. LEXIS 55786 (W.D. Va.
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`2009)(“Upon default judgment, Plaintiff's factual allegations are accepted as true for all purposes
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`excluding determination of damages.")
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`The law on this point is exceedingly clear: regardless of the fact that the Court defaulted
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`Mr. Kurbanov, Plaintiffs were required to prove the facts that would entitle them to recover the
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`damages sought. Here, they neither alleged, nor proved, the facts necessary for an award of either
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`actual or statutory damages. As such, the Court should reject the recommendation of the
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`Magistrate, find that Plaintiffs have failed to make a showing of monetary damages and deny them
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`recovery of the same.
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`II.
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`Even if Statutory Damages Were Appropriate, the Magistrate Erred In
`Recommending That the Court Award Plaintiffs More Than the
`Minimal Amount Available Under the Statute.
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`Even if the Court had been presented with evidence from which it could conclude that
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`actionable infringement had occurred (which it was not), the Magistrate, for a variety of reasons,
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`8
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`erred in not recommending that the Court utilize its discretion to award only the lowest level of
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`statutory damages available. First, it is important to remember that the infringement at issue in
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`this case was not direct, but rather contributory. The allegation was not that Mr. Kurbanov himself
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`utilized the Websites to download copyrighted materials, but rather that visitors to his Websites
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`used the Websites’ functionality to do so.
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`Next, the Court can (and should) consider the fact that Mr. Kurbanov is an individual who
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`has, for his entire life, lived in Russia; who created the Websites in Russia; and who is (as a result)
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`not conversant in the laws that apply to copyright infringement within the United States.
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`Most significantly, though, in considering the proper amount of statutory damages to award
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`(assuming that any are awardable) is the fact that the Websites simply utilized open-source
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`software, freely available to anyone on the Internet. This open-source software is known as
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`“youtube-dl.” It is Plaintiffs’ contention that the youtube-dl software (which Mr. Kurbanov did
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`not himself create) circumvents technological measures put in place by Youtube (and not by the
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`Plaintiffs). It is far from clear, however, that youtube-dl “circumvents” anything and, indeed,
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`many experts have concluded that it does not.
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`Backing up for a moment, it is important to remember that Plaintiffs make all of the
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`relevant works readily available at no cost to anyone with an internet connection. In other words,
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`the music which Plaintiffs complain has been infringed by visitors to Mr. Kurbanov’s Websites is
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`music which those visitors could legally stream for free simply by going to YouTube.com and
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`watching the music videos that Plaintiffs permit YouTube to transmit to anyone with an internet
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`connection. The issue here is not that visitors to Mr. Kurbanov’s Websites were able to listen to
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`the relevant songs – the issue is that Mr. Kurbanov’s Websites enabled users to save those songs
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`9
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`(presumably so that they could listen to them at a different time or in a different location)3 by virtue
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`of their use of the youtube-dl software.
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`With that in mind, YouTube incorporates what is sometimes known as a “rolling cipher”
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`when providing music videos to its visitors. The Electronic Frontier Foundation (“EFF”) explains
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`the use of this “cipher” thusly:
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`For a subset of videos, YouTube employs a mechanism it calls a “signature.” Here
`is our understanding of how it works: when a user requests certain YouTube videos,
`YouTube’s servers send a small JavaScript program to the user’s browser,
`embedded in the YouTube player page. That program calculates a number referred
`to as “sig.” That number then forms part of the Uniform Resource Locator that the
`user’s browser sends back to YouTube to request the actual video stream. This
`mechanism is completely visible to the user simply by viewing the source code of
`the player page. The video stream is not encrypted, and no secret knowledge is
`required to access the video stream. JavaScript is a ubiquitous technology found on
`millions of websites and understandable by numerous software programs. Any
`software capable of running JavaScript code can derive the URL of the video stream
`and access the stream, regardless of whether the software has been approved by
`YouTube. To borrow an analogy from literature, travelers come upon a door that
`has writing in a foreign language. When translated, the writing says “say ‘friend’
`and enter.” The travelers say “friend” and the door opens. As with the writing on
`that door, YouTube presents instructions on accessing video streams to everyone
`who comes asking for it.
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`See Exhibit 1, Letter from EFF to Github.
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`As the EFF explains, the youtube-dl software does nothing more than provide YouTube’s
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`servers with the same code that any web browser would provide if an individual went to YouTube
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`looking to play one of the songs that Plaintiffs make freely available to the entire world:
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`youtube-dl works the same way as a browser when it encounters the signature
`mechanism: it reads and interprets the JavaScript program sent by YouTube,
`derives the “signature” value, and sends that value back to YouTube to initiate the
`video stream.
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`3 Given the Supreme Court’s landmark case of Sony Corp. of America v. Universal City Studios,
`Inc., 464 U.S. 417 (1984), where the court found that individuals had the right to create a personal
`recording of a broadcast television show so that the individual might “time shift” when he or she
`viewed the program, Mr. Kurbanov had every reason to believe that downloading freely available
`songs from YouTube was similarly non-infringing conduct.
`10
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`youtube-dl contains no password, key, or other secret knowledge that is required to access
`YouTube videos. It simply uses the same mechanism that YouTube presents to each and
`every user who views a video.
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`Id.
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`From this, the EFF concluded that youtube-dl does not circumvent technological measures
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`as that term is defined under the law:
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`youtube-dl does not “circumvent” it as that term is defined in Section 1201(a) of
`the Digital Millennium Copyright Act, because YouTube provides the means of
`accessing these video streams to anyone who requests them. As federal appeals
`court recently ruled, one does not “circumvent” an access control by using a
`publicly available password. Digital Drilling Data Systems, L.L.C. v. Petrolink
`Services, 965 F.3d 365, 372 (5th Cir. 2020). Circumvention is limited to actions
`that “descramble, decrypt, avoid, bypass, remove, deactivate or impair a
`technological measure,” without the authority of the copyright owner. “What is
`missing from this statutory definition is any reference to ‘use’ of a technological
`measure without the authority of the copyright owner.” Egilman v. Keller &
`Heckman, LLP., 401 F. Supp. 2d 105, 113 (D.D.C. 2005). Because youtube-dl
`simply uses the “signature” code provided by YouTube in the same manner as any
`browser, rather than bypassing or avoiding it, it does not circumvent, and any
`alleged lack of authorization from YouTube or the RIAA is irrelevant.
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`Similarly, youtube-dl does not violate section 1201(b) of the DMCA because the
`“signature” code does not “prevent[], restrict[], or otherwise limit[] the exercise of
`a right of a copyright owner”—in other words, the code does not prevent copying
`of video data. Any program capable of running JavaScript programs can run
`YouTube’s “signature” code, regardless of whether it can also save a copy of the
`video streams it receives.
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`Id. See also Exhibits 2-4.
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`The point here is not that Mr. Kurbanov was asking the Court to find that the Websites did
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`not circumvent technological measures (although they did not). That would be an example of a
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`liability argument that Plaintiff waived by virtue of his having been defaulted in this case.
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`However, the operation of the Websites – and their use of freely available open-source software –
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`is still relevant to the Court in its determination of the proper level of statutory damages to be
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`awarded. Here, given that even some industry experts say that the use of the youtube-dl software
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`11
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`Case 1:18-cv-00957-CMH-TCB Document 140 Filed 12/30/21 Page 12 of 19 PageID# 2774
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`does not circumvent technological measures, and given that Mr. Kurbanov did not himself use the
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`software to download Plaintiffs’ songs (but rather visitors to his Websites did), this Court can find
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`that Mr. Kurbanov’s infringement of Plaintiffs’ works was innocent in nature, meriting only the
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`lowest amount of statutory damages, or $200 per work in suit.
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`In rejecting this argument, the Magistrate simply ignored the evidence referenced above
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`and instead said that a higher amount of damages was appropriate because Mr. Kurbanov had been
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`informed by the Plaintiffs that his Websites were infringing and circumventing technological
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`measures. Report and Recommendation, p. 19. It is, however, simply Plaintiffs’ contention that
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`the Websites are infringing and circumventing technological measures – a contention that has been
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`disputed by independent groups such as the EFF. Again, this is not to say that the Court should
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`find that the youtube-dl software does not circumvent technological measures, but rather that – to
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`the extent that Mr. Kurbanov’s knowledge and intent are relevant to the Court’s exercise of
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`discretion, the Magistrate erred in concluding that Mr. Kurbanov “knew” that his Websites
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`circumvented technological measures when the evidence suggests to the contrary.
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`III. The Magistrate Erred In Her Recommendation that Plaintiffs Be Awarded
`Duplicative Damages.
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`The Magistrate also erred in recommending that, separate and apart from an award of
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`statutory damages for copyright infringement, the Court should award duplicate damages for the
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`same 1,680 works because (Plaintiffs argued) each instance of infringement is also an instance of
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`circumvention of technological measures. As with the Plaintiffs’ failure to prove that any
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`infringements took place or that they took place within the United States, Plaintiffs also failed to
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`show that any circumvention took place or that it took place within the United States. For that
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`reason alone, damages should be denied for circumvention of technological measures.
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`12
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`Case 1:18-cv-00957-CMH-TCB Document 140 Filed 12/30/21 Page 13 of 19 PageID# 2775
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`Even if Plaintiffs had presented the Court with evidence of circumvention occurring within
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`the United States, awarding statutory damages to Plaintiffs for such circumvention would be
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`duplicative of any amounts awarded to Plaintiffs for the infringement itself, as the circumvention
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`and the infringement are each part of a single violation. See, e.g., Echostar Satellite LLC v. Rollins,
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`2008 U.S. Dist. LEXIS 8173, at *10-11 (S.D. W. Va. Feb. 4, 2008)(denying duplicative recovery
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`under copyright statute and overlapping statutes because, “In most jurisdictions, ‘it is well settled
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`that where a defendant is found to have violated [multiple] statutes, the court should award
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`damages pursuant to the mo[st] severe statutory damages provision’”)(citations omitted).
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`Here, where the means by which the songs were infringed was also the circumvention (had
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`there actually been proof of either infringement or circumvention), Plaintiffs cannot recover twice
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`for the same “injury” and the Magistrate erred in recommending otherwise. See, e.g., Cengage
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`Learning, Inc. v. Shi, 2017 U.S. Dist. LEXIS 40554, at *8 (S.D.N.Y. Mar. 21, 2017)(“the Report's
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`conclusion that a plaintiff should not be awarded statutory damages under both the Copyright Act
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`and the Lanham Act… is not clearly erroneous. …I agree with Magistrate Judge Maas that a
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`recovery of statutory damages under both Acts seems inappropriate here, as the awards would
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`compensate the same injury and ‘[a] plaintiff seeking compensation for the same injury under
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`different legal theories is of course entitled to only one recovery.’ Further, I agree with Magistrate
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`Judge Maas's conclusion that recovery under the Copyright Act, rather than the Lanham Act, is
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`the appropriate remedy here because ‘Defendants' unauthorized sale of Plaintiff's copyrighted
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`materials is the substantial cause of their damages.’”)(citations omitted). Here too, Plaintiffs are
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`impermissibly seeking compensation for the same injury under different legal theories.
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`Additionally, under 17 U.S.C. §1203(c)(5), this Court is permitted to remit – in part or in
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`whole – any amount that it would otherwise award as statutory damages for circumvention if it
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`finds that Mr. Kurbanov “was not aware and had no reason to believe that [his] acts constituted a
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`violation.” Once again, given the fact that even legal experts question whether the youtube-dl
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`software utilized by the Websites circumvents any technological measures, Mr. Kurbanov – a lay
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`person – could hardly be expected to know that use of that software might be considered a
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`circumvention of technological measures. Accordingly, the Court should reject the Magistrate’s
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`recommendation that the Court order duplicative damages under §1203(c).
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`IV.
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`Plaintiffs Are Not Entitled to the Injunctive Relief Recommended
`By the Magistrate.
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`Finally, the Magistrate recommended the entry of a permanent injunction against Mr.
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`Kurbanov which, as written at least, would seem to preclude Mr. Kurbanov from allowing visitors
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`to the Websites from anywhere in the world to utilize the Websites’ functionality. In its current
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`form, the proposed injunction exceeds this Court’s jurisdictional powers and so, at a minimum,
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`should only be adopted insofar as it enjoins Mr. Kurbanov and his Websites from providing certain
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`services to visitors from the United States. And, indeed, given that Mr. Kurbanov voluntarily
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`blocked access to the Websites from the United States, it is questionable as to whether any such
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`injunction is necessary.
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`As a starting point, it is widely recognized that United States copyright laws have no
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`extraterritorial application and, as such, United States Courts have no jurisdiction over acts of
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`infringement that occur outside of the United States. See, e.g., Tire Eng'g & Distribution, Ltd.
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`Liab. Co. v. Shandong Linglong Rubber Co., 682 F.3d 292, 306 (4th Cir. 2012) (“As a general
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`matter, the Copyright Act is considered to have no extraterritorial reach.”); Nintendo of Am., Inc.
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`v. Aeropower Co., 34 F.3d 246, 249 n.5 (4th Cir. 1994) (“[T]he Copyright Act is generally
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`considered to have no extraterritorial application.”). See, also, Palmer v. Braun, 376 F.3d 1254,
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`1258 (11th Cir. 2004) (“Federal copyright law has no extraterritorial effect, and cannot be invoked
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`to secure relief for acts of infrin