Case 1:18-cv-00957-CMH-TCB Document 143 Filed 01/20/22 Page 1 of 17 PageID# 2815
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
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`
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`UMG RECORDINGS, INC., et al.,
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`Plaintiffs,
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`v.
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`KURBANOV, et al.,
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`Defendants.
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`
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`Case No. 1:18-cv-00957-CMH-TCB
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`
`PLAINTIFFS’ RESPONSE TO DEFENDANT’S OBJECTIONS TO MAGISTRATE
`JUDGE’S DECEMBER 16, 2021 REPORT AND RECOMMENDATION AS TO
`DAMAGES AND PERMANENT INJUNCTIVE RELIEF
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`In his objections to the Magistrate Judge’s Report and Recommendation on remedies,
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`Defendant raises the same arguments that he made in opposing Plaintiffs’ motion for remedies.
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`In a carefully reasoned decision based on well-settled law and the evidence in the record,
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`Magistrate Judge Buchanan soundly rejected those arguments. Defendant’s arguments fare no
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`better the second time around. For all the reasons set forth in the Magistrate Judge’s Report and
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`Recommendation, and as discussed below, Defendant’s objections should be rejected.
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`INTRODUCTION
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`Defendant Tofig Kurbanov (“Defendant”) engages in and facilitates massive copyright
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`infringement through a pair of illegal websites that he owns and operates, located at
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`www.flvto.biz and www.2conv.com (collectively, the “Websites”). The Websites are tools to
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`convert authorized streams of music videos on third-party streaming sites, including YouTube,
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`into unauthorized permanent downloadable audio files. This type of online music piracy, called
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`“stream-ripping,” causes substantial and irreparable harm to Plaintiffs, who own or control the
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`1
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`Case 1:18-cv-00957-CMH-TCB Document 143 Filed 01/20/22 Page 2 of 17 PageID# 2816
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`copyright to many of the sound recordings pirated on Defendant’s Websites. As already
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`determined, and as the record establishes, Defendant’s conduct amounts to copyright
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`infringement in violation of the Copyright Act, 17 U.S.C. § 106, and unlawful circumvention of
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`a technological measure in violation of the Digital Millennium Copyright Act (the “DMCA”),
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`17 U.S.C. § 1201.
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`Using Plaintiffs’ copyrighted music as a lure, Defendant has caused and profited from
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`piracy on a tremendous scale. As the Fourth Circuit observed, Defendant’s Websites are “two of
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`the most popular stream-ripping websites in the world and are among the most popular websites
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`of any kind on the Internet.” UMG Recordings, Inc. v. Kurbanov, 963 F.3d 344, 349 (4th Cir.
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`2020). In 2018 alone, the Websites had almost 32 million United States users, who collectively
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`conducted over 96 million stream-ripping sessions. Defendant has achieved this success by
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`touting the free availability of Plaintiffs’ sound recordings on his Websites. At times, the
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`Websites prominently displayed a list of the “Top 100 most converted and downloaded MP3s” or
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`videos that were “Most Watched Today,” virtually all of which showcased Plaintiffs’ popular
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`recordings. The Websites also included step-by-step tutorials, featuring well-known recordings
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`owned by Plaintiffs, that showed users how to download “music for free.”
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`Defendant not only violated the Copyright Act and Section 1201 of the DMCA, but he
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`willfully disobeyed this Court’s orders. Attempting to hide the full scope of his unlawful
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`conduct, as well as his ill-gotten gains, Defendant refused to comply with the Court’s orders to
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`produce web server data and a variety of financial information. Defendant’s repeated
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`noncompliance with this Court’s orders ultimately led to entry of default judgment sanctions
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`against him under Federal Rule of Civil Procedure 37.
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`2
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`With liability already determined, Defendant now objects to the Magistrate Judge’s
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`recommendation concerning the relief this Court should award.
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`FACTUAL BACKGROUND
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`Plaintiffs’ Memorandum in Support of Their Request for Damages, a Permanent
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`Injunction, and Attorneys’ Fees and Costs (the “Memorandum”) laid out in detail the facts
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`relevant to Plaintiffs’ request for remedies. ECF 131. Magistrate Judge Buchanan’s Report and
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`Recommendation on Plaintiffs’ request for remedies (“R&R”) further discussed the relevant
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`facts. ECF 139. Instead of repeating the facts in full, Plaintiffs respectfully incorporate the
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`Memorandum, pleadings, and R&R herein by reference and address key facts below.
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`PROCEDURAL BACKGROUND
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`In August 2021, Plaintiffs filed a motion for default judgment pursuant to Federal Rule of
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`Civil Procedure 37 based on Defendant’s willful disobedience of two Court orders and his
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`refusal to appear for his deposition. ECF 119; ECF 120. The Magistrate Judge granted
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`Plaintiffs’ motion for default judgment, ECF 125, and ordered the parties to submit briefing on
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`remedies, ECF 127. The Magistrate Judge’s Report and Recommendation found that “Defendant
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`acted in bad faith in failing to comply with the Court’s two orders requiring him to respond to
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`Plaintiffs’ discovery requests fully and completely and by refusing to attend his scheduled
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`deposition” and that Defendant’s misconduct “substantially prejudice[d] Plaintiffs’ ability to
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`litigate this case.” ECF 128 at 4. The Magistrate Judge also found that “there is a clear need to
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`deter Defendant’s behavior in this case.” Id. at 5. The Court adopted the Magistrate Judge’s
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`Report and Recommendation on liability, granted Plaintiffs’ motion for default judgment, and
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`ordered the entry of default judgment in favor of Plaintiffs. ECF 129.
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`3
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`On October 5, 2021, Plaintiffs filed a memorandum in support of their request for
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`damages, permanent injunctive relief, and attorneys’ fees and costs. ECF 131. Defendant filed
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`his opposition to Plaintiffs’ request on October 19, 2021. ECF 136. On December 16, 2021,
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`Magistrate Judge Buchanan issued her R&R recommending that this Court grant Plaintiffs’
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`request for damages and other relief. ECF 139. With liability already determined by the grant of
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`default judgment, Magistrate Judge Buchanan evaluated Plaintiffs’ Complaint against the
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`standards of Federal Rule of Civil Procedure 12(b)(6) and concluded once again that Plaintiffs
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`properly stated claims against Defendant for direct copyright infringement and contributory
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`copyright infringement under the Copyright Act, and for circumvention of technological
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`measures under the DMCA. R&R at 12–16. Magistrate Judge Buchanan next conducted an
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`independent determination of the relief to be granted, concluding that the Court should (1) award
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`Plaintiffs statutory damages for Defendant’s Copyright Act and DMCA violations in the amount
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`of $82,922,500 (R&R at 16–21); (2) enter a permanent injunction against Defendant’s further
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`Copyright Act and DMCA violations (R&R at 21–23); and (3) award reasonable attorneys’ fees
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`and costs to Plaintiffs (R&R at 23–24).
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`On December 30, 2021, Defendant filed his Objections to the Magistrate Judge’s R&R,
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`ECF 140 (“Obj.” or the “Objections”), objecting to four aspects of Magistrate Judge Buchanan’s
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`recommendations.
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`LEGAL STANDARD
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`Pursuant to 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72(b), the district court
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`reviews de novo a magistrate judge’s decision on dispositive matters to which a party has
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`specifically objected. Fed. R. Civ. P. 72(b)(3). “The district judge may accept, reject, or modify
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`the recommended disposition; receive further evidence; or return the matter to the magistrate
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`4
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`Case 1:18-cv-00957-CMH-TCB Document 143 Filed 01/20/22 Page 5 of 17 PageID# 2819
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`judge with instructions.” Fed. R. Civ. P. 72(b)(3). Because the Rule 72 process is “designed to
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`allow the district court to ‘focus on specific issues, not the report as a whole,’” objections must
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`be “specific and particularized.” Nichols v. Colvin, 100 F. Supp. 3d 487, 497 (E.D. Va. 2015)
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`(quoting United States v. Midgette, 478 F.3d 616, 621 (4th Cir. 2007)). A mere restatement of
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`the arguments raised in the relevant filings “does not constitute an ‘objection’ for purposes of
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`district court review.” Id. (citing Abou-Hussein v. Mabus, 2010 WL 4340935, at *1 (D.S.C. Oct.
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`28, 2010), aff’d 414 F. App’x 518 (4th Cir. 2011)).
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`ARGUMENT
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`I.
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`Magistrate Judge Buchanan Correctly Held That Plaintiffs Are Entitled to
`Statutory Damages.
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`Defendant argues that Plaintiffs have failed to establish that anyone used his Websites to
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`infringe any of the 1,618 works in suit, or to circumvent any technological measures. Obj. at 2–
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`8. This argument fundamentally mischaracterizes the procedural posture of this case, the law,
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`and does not withstand even the slightest scrutiny.
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`In the default judgment context, all well-pleaded factual allegations in the Complaint are
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`deemed admitted. See McDonald v. Robinson, No. 1:18-cv-697 (LMB/TCB), 2020 WL
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`10456846, at *11 (E.D. Va. Sept. 4, 2020) (citing JTH Tax, Inc. v. Grabert, 8 F. Supp. 3d 731,
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`736 (E.D. Va. 2014)); see also Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702
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`(9th Cir. 2008); Tiffany (NJ) Inc. v. Luban, 282 F. Supp. 2d 123, 124 (S.D.N.Y. 2003). The law
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`does not require a party to provide evidence to “prove” or “show” that a defaulting party is liable
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`for the claims asserted in the case. Anderson v. Found. for Advancement, Educ. & Emp. of Am.
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`Indians, 1999 WL 598860, at *1 (4th Cir. Aug. 10, 1999) (per curiam) (affirming district court’s
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`award of damages after finding the pleadings supported entry of default judgment).
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`5
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`Before entering default judgment, a court must review the facts as alleged in the
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`Complaint against the standards of Federal Rule of Civil Procedure 12(b)(6) to ensure that the
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`complaint properly states a claim upon which relief can be granted. See Globalsantafe Corp. v.
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`Globalsantafe.com, 250 F. Supp. 2d 610, 612 n.3 (E.D. Va. 2003). A complaint meets the
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`requirements of Rule 12(b)(6) if the complaint “contain[s] sufficient factual matter, accepted as
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`true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
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`(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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`Magistrate Judge Buchanan followed the letter of the law in conducting such an inquiry
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`into Plaintiffs’ allegations. She reviewed the applicable law and the facts alleged in the
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`Complaint and ultimately concluded that Plaintiffs’ allegations sufficiently stated claims for
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`direct infringement, contributory infringement, and circumvention of technological measures.
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`R&R 6–16. In particular (and contrary to Defendant’s objections), the allegations indisputably
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`establish that people used Defendant’s Websites to infringe Plaintiffs’ copyrighted works and to
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`circumvent technological measures. Those allegations included that Defendant: reproduced and
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`distributed Plaintiffs’ copyrighted works, including but not limited to the 1,618 works listed in
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`Amended Exhibit A (R&R at 13); had actual knowledge of and materially contributed to the
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`infringement of those works (R&R at 13–14); induced others to infringe those works (R&R at
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`14); and circumvented technological measures to gain access to those works (R&R at 14–16).
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`See also ECF 1, ¶¶ 49, 54, 62, 70, 79–80, 89-91; ECF 79-1. In short, based on the admitted
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`allegations, it is already established that Defendant engaged in unlawful infringement and
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`circumvention with respect to the 1,618 works in suit.
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`To the extent Defendant suggests there is doubt that the unlawful conduct occurred in the
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`United States, see Obj. at 5–6, Plaintiffs’ allegations put that concern to rest, too. See, e.g.,
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`6
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`ECF 1 ¶ 54 (“Defendants, without authorization or consent from Plaintiffs, reproduce and
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`distribute into the United States unauthorized reproductions of Plaintiffs’ copyrighted sound
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`recordings, including but not limited to those copyrighted sound recordings listed in Exhibit A
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`hereto.”); id. ¶ 11 (alleging that Defendant has committed copyright infringement in Virginia);
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`id. ¶ 12 (alleging that Defendant distributed unlawful copies of sound recordings to users in the
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`United States). Similarly, the Fourth Circuit concluded that Defendant “actively facilitated the
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`alleged music piracy through a complex web involving Virginia visitors, advertising brokers,
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`advertisers, and location-based advertising” and “directly profited from a substantial audience of
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`Virginia visitors.” UMG Recordings, Inc. v. Kurbanov, 963 F.3d 344, 355 (4th Cir. 2020).
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`Indeed, Magistrate Judge Buchanan considered and squarely rejected Defendant’s
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`argument that Plaintiffs “failed to provide evidence” of actual infringement and circumvention:
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`[Defendant] argues that Plaintiffs are not entitled to any relief because they have
`failed to prove that any United States-based Users have illegally downloaded the
`copyrighted content. Defendant’s arguments mischaracterize the relevant burden
`of proof in this case. This Court has entered default judgment against Defendant
`Kurbanov for his willful discovery violations and repeated contentions that he is
`not subject to the personal jurisdiction of this Court. This entry of default judgment
`is equivalent to a finding of liability on all counts of Plaintiffs’ Complaint,
`including the violations alleged under the Copyright Act. Furthermore, as
`discussed above, the Plaintiffs’ Complaint sufficiently states claims for violations
`of the Copyright Act under multiple theories of liability. The Plaintiffs therefore
`do not have the burden of proving the elements of the alleged Copyright Act
`violations, and merely need to survive, as they have, a 12(b)(6) evaluation of the
`Complaint.
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`R&R at 19. Additionally, as the Magistrate Judge noted, Plaintiffs’ expert, Robert W.
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`Schumann, provided a declaration that states in relevant part that “over 300 million U.S. users
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`have accessed Defendant’s Websites.” ECF 131-3 ¶ 30; R&R at 18.
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`Defendant also claims that the Magistrate Judge “believ[ed] that a default judgment
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`serves to admit allegations concerning the Plaintiffs’ damages.” Obj. at 7–8. He likewise asserts
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`that Plaintiffs failed to prove the facts that would entitle them to recover the damages sought. Id.
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`7
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`at 8. Defendant misses the mark. Magistrate Judge Buchanan analyzed the relevant legal
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`frameworks for statutory damages under the Copyright Act and the DMCA and applied the legal
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`standards in each statutory scheme to the facts of this case. Id. She clearly explained why the
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`facts in the record support an award of statutory damages in the amounts requested by Plaintiffs
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`under the Copyright Act and the DMCA. Id.
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`The cases that Defendant cites are not to the contrary. They simply require courts, in the
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`context of default judgment, to make a determination regarding damages that is separate from the
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`determination of liability. See, e.g., CFTC v. Tate St. Trading, 2021 U.S. Dist. LEXIS 215358,
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`at *15 (E.D. Va. June 1, 2021) (“[O]nce liability is established, the Court must independently
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`determine damages.”); Augustin v. Sectek, Inc., 2012 WL 13194725, at *5 (E.D. Va. Mar. 1,
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`2012) (“[T]he Court must make an independent determination of the amount of damages a
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`plaintiff is entitled to recover.”). While courts do not deem admitted all allegations concerning
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`the amount of damages, courts do accept as true well-pleaded factual allegations that are relevant
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`to the amount of damages. E.g., Sonoco Prods. Co. v. Guven, 2015 WL 127990, at *3 (D.S.C.
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`Jan. 8, 2015). Thus, in making an “independent determination” of damages in the context of
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`default judgment, courts properly consider well-pleaded allegations along with other evidence in
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`the record relevant to the issue of damages. E.g., Tate St. Trading, 2021 U.S. Dist. LEXIS
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`215358, at *15 (“[T]he Court need not conduct an evidentiary hearing and may rely, instead,
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`upon affidavits or documents attached to the plaintiff’s motion for default judgment.”). This is
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`precisely what Magistrate Judge Buchanan did in this case. R&R at 12–16.
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`The evidence in the record amply supports Magistrate Judge Buchanan’s
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`recommendation that the Court award statutory damages in the amounts requested. Plaintiffs’
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`allegations and the evidence in the record “demonstrated . . . that Defendant Kurbanov violated
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`8
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`Case 1:18-cv-00957-CMH-TCB Document 143 Filed 01/20/22 Page 9 of 17 PageID# 2823
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`Plaintiffs’ 1,618 copyrights.” R&R at 17 (citing ECF 1 ¶¶ 56, 64, 72; ECF 131 at 15–16). With
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`respect to Defendant’s violations of the Copyright Act, Plaintiffs requested an award of $50,000
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`per work infringed, for a total of $80,900,000. Id. (citing ECF 1 ¶¶ 57, 65, 73; ECF 131 at 22).1
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`Magistrate Judge Buchanan specifically considered and discussed a number of factors supporting
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`her determination that this request was appropriate, including: (1) the statutory range for
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`damages awards, including enhanced statutory damages in cases of willful infringement;
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`(2) Plaintiffs’ “los[t] profits and streaming revenue because of the enormous internet traffic to
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`and use of the Websites’ stream-ripping functions”; (3) Defendant’s wrongful profits from this
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`scheme stemming from his selling digital advertising on the Websites; (4) Defendant’s “storied
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`history of infringement,” including Defendant’s continued infringement of Plaintiffs’
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`Copyrighted Works despite infringement notices, cease-and-desist letters, and findings by other
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`courts that the Websites provide illegal stream-ripping functionality; (5) Defendant’s knowledge
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`of United States copyright law; and (6) Defendant’s “actual and constructive knowledge that he
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`is violating the Plaintiffs’ copyrights.” R&R at 17–19.
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`With respect to Defendant’s DMCA violations, Plaintiffs requested an award of $1,250
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`per act of circumvention, for a total of $2,022,500. ECF 131 at 22. Magistrate Judge Buchanan
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`1 Section 504(c) of the Copyright Act provides that a copyright owner may elect to recover an award of statutory
`damages in an amount ranging between $750 and $30,000 for each work infringed. 17 U.S.C. § 504(c)(1). In cases
`involving willful infringement, the Court may award up to $150,000 per work infringed. Id. § 504(c)(2). Here, an
`award of $50,000 per work infringed is justified considering Defendant’s willful infringement of Plaintiffs’
`copyrighted works and his active encouragement of others to infringe those works; the substantial harm to Plaintiffs;
`Defendant’s disobedience of the Court’s orders, including his refusal to comply with orders to produce data essential
`to revealing the full scope of his stream-ripping scheme and his profits from it; the fact that the purpose of
`Defendant’s Websites is to facilitate and profit from piracy; the need for deterrence; and Defendant’s continued
`operation of the Websites despite numerous court decisions around the world that his Websites are illegal. See ECF
`131 at 15–18.
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`Under Section 1203(c)(3) of the DMCA, a party may elect to recover an award of statutory damages in an
`amount between $200 and $2,500 per act of circumvention. 17 U.S.C. § 1203(c)(3)(A). An award of $1,250 per act
`of circumvention is reasonable here, where Defendant’s conduct has been willful and egregious, Defendant designs
`and operates his Websites specifically to bypass YouTube’s protective technological measures that prevent
`unauthorized access and downloads, the scope of Defendant’s circumvention is massive, and Defendant has
`unlawfully profited from his scheme. See ECF 131 at 19–21.
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`9
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`determined that this request was appropriate, considering (1) the statutory range for damages
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`awards; (2) Defendant’s willfulness in circumventing YouTube’s technological measures
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`protecting copyrighted works; and (3) the large scale of Defendant’s circumvention. R&R at 20–
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`21. No more is required.
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`II. Magistrate Judge Buchanan Did Not Err in Recommending Statutory Damages
`in an Amount Greater Than the Minimum.
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`Defendant contends that the Magistrate Judge erred in awarding more than the bare
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`minimum of statutory damages. Obj. at 8–12. There is no valid basis for this objection. The
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`evidence in the record fully supports Magistrate Judge Buchanan’s award of statutory damages.
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`Defendant is an international scofflaw who facilitated and profited from massive infringement,
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`flouted this Court’s authority, and continued his illegal activity for years during this case. In
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`support of their request for statutory damages, Plaintiffs submitted fact witness declarations, an
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`expert declaration, and documentary evidence from the record. By contrast, Defendant failed to
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`offer any declarations or record evidence to rebut Plaintiffs’ request or to support a lower award.
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`First, Defendant contends that “it is important to remember that the infringement at issue
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`in this case is not direct, but rather contributory.” Obj. at 9. That is a patently false statement.
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`Plaintiffs’ Complaint asserted claims not only for contributory copyright infringement, but also
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`for direct copyright infringement, among other claims. See ECF 1 ¶¶ 53–96; ECF 129. With
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`respect to direct infringement, the Complaint specifically alleged that Defendant made
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`unauthorized copies of Plaintiffs’ copyrighted sound recordings on his servers and distributed
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`those copies to users of Defendant’s Websites. ECF 1 ¶ 47. In awarding statutory damages, the
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`Magistrate Judge conducted a thorough review of the record and concluded that “Plaintiffs have
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`sufficiently pled a direct infringement claim under the Copyright Act.” R&R at 12–14, 19.
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`10
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`Defendant simply ignores these facts. Regardless, infringement is infringement. There is no
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`legal basis to award lower damages for contributory infringement.
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`Second, Defendant seeks a lower damages award because he alleges that he is “not
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`conversant” in U.S. copyright law. Obj. at 9. But this claim is neither credible nor persuasive.
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`Based on the record in this case, Magistrate Judge Buchanan found, “Defendant has knowledge
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`of United States copyright law. . . . His websites include citations to the DMCA, and the
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`Websites have a registered DMCA agent with the U.S. Copyright Office.” R&R at 18–19; see
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`also Kurbanov, 963 F.3d at 354. Those facts cannot be squared with Defendant’s claim that he is
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`unfamiliar with U.S. copyright law. In addition, the undisputed facts in the record show that in
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`2016 and 2017, the RIAA on behalf of Plaintiffs sent seven copyright infringement notices to
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`Defendant’s Websites; and that in May 2018, as the Magistrate Judge found, the RIAA sent a
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`cease-and-desist letter “demanding that Defendant disable this circumvention function.” R&R at
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`21; ECF 131 at 10–11 & Exs. 29, 30. If Defendant was not previously aware that he was
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`violating U.S. law (which he was), this correspondence ensured that he became aware, as did the
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`filing of this lawsuit in August 2018. Yet Defendant continued to engage in his unlawful
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`conduct. Defendant’s claims of ignorance of U.S. law are further belied by the fact that he has
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`been represented by U.S. counsel throughout this litigation at the trial court and appellate levels.
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`Third, while Defendant concedes that he waived the argument that his Websites do not
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`circumvent technological measures in violation of Section 1201 of the DMCA, he contends that
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`the award of statutory damages should be lower because the evidence “suggests” that Defendant
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`may not have known that his Websites circumvented technological measures. Obj. at 11–12.
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`The facts do not support this suggestion. Defendant seems to believe that his use of the
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`youtube-dl software to circumvent YouTube’s technological protections is somehow relevant to
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`11
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`Case 1:18-cv-00957-CMH-TCB Document 143 Filed 01/20/22 Page 12 of 17 PageID# 2826
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`the amount of statutory damages for his circumvention liability. See Obj. at 9. But Defendant is
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`no less responsible for his violation of Section 1201 simply because he built his illegal Websites
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`by incorporating some software developed by others instead of building the Websites from
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`scratch.
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`Defendant also contends that “many experts” believe that the youtube-dl software does
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`not circumvent technological measures. Obj. at 9–11. This claim is irrelevant given that the
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`Court has already established that Defendant is liable for circumvention. Regardless, the only
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`expert witness in this case is Plaintiffs’ expert, Robert W. Schumann, who takes the opposite
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`view. Defendant did not disclose any experts, serve any expert reports during discovery, or
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`provide any expert declarations. Instead, Defendant cites a letter from the Electronic Frontier
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`Foundation (“EFF”) that was not written in relation to this case. The EFF letter is no substitute
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`for an expert report. EFF is a partisan advocacy group that regularly sides with infringers but has
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`not submitted a declaration in this case.2 Nor does the EFF letter speak to Defendant’s state of
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`mind or knowledge; he provides no declaration to suggest that he relied on (or was even aware
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`of) EFF’s opinions. To the contrary, as Magistrate Judge Buchanan explained, “Defendant
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`installed the youtube-dl software to the [Websites] for the purpose of circumventing YouTube’s
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`technological and rolling cipher protections” and “with the knowledge that YouTube videos are
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`protected.” R&R at 20 (emphasis added). In determining the amount of statutory damages, it
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`was entirely appropriate for Magistrate Judge Buchanan to consider Defendant’s use of this
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`software to facilitate infringement of Plaintiffs’ copyrighted works and to award damages of
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`2 EFF publicly acknowledges that “[i]t’s no secret that EFF doesn’t like Section 1201” of the DMCA. “GitHub
`Reinstates youtube-dl After RIAA’s Abuse of the DMCA” (Nov. 17, 2020),
`https://www.eff.org/deeplinks/2020/11/github-reinstates-youtube-dl-after-riaas-abuse-dmca (last accessed Jan. 20,
`2022).
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`12
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`Case 1:18-cv-00957-CMH-TCB Document 143 Filed 01/20/22 Page 13 of 17 PageID# 2827
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`$1,250 per act of circumvention, which is in the middle of the statutory range. See Tate St.
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`Trading, 2021 U.S. Dist. LEXIS 215358, at *15.
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`Finally, Defendant’s claim that the statutory damages award should be lower because
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`Plaintiffs “make all of the relevant works readily available at no cost to anyone with an internet
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`connection” is misleading and incorrect. Obj. at 9. Plaintiffs authorize online streaming
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`services, such as YouTube, to stream their copyrighted works pursuant to licensing agreements
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`by which Google (which owns YouTube) makes payments to Plaintiffs and commits to
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`protecting their copyrighted sound recordings from unauthorized access and copying. ECF 131
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`at 3–4; see also R&R at 16 (quoting EMI April Music, Inc. v. White, 618 F. Supp. 2d 497, 508
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`(E.D. Va. 2009)) (noting that in determining the amount of damages, “courts consider ‘expenses
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`saved by the defendant in avoiding a licensing agreement’”). Plaintiffs of course have not
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`licensed Defendant to turn authorized streams of their copyrighted works into unauthorized
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`permanent downloads. Yet that is precisely what Defendant has done. By using Defendant’s
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`illicit service, the Websites’ users have no need to pay for downloaded copies of the sound
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`recordings or to subscribe to streaming services and compensate the record companies for the
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`exercise of their exclusive rights. Defendant reaps ill-gotten profits by facilitating this unlawful
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`reproduction of the record companies’ copyrighted sound recordings. R&R at 18.
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`III. Magistrate Judge Buchanan Did Not Recommend an Award of “Duplicative”
`Damages.
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`Defendant’s argument that the Magistrate Judge erroneously awarded “duplicative
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`damages” is wrong as a matter of law. Obj. at 12–14. First, Defendant’s objection that Plaintiffs
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`“failed to show that any circumvention took place or that it took place within the United States”
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`fails for the same reasons as described above. Magistrate Judge Buchanan analyzed the
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`allegations in Plaintiffs’ Complaint concerning circumvention and found that they satisfied the
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`
`
`13
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`

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`Case 1:18-cv-00957-CMH-TCB Document 143 Filed 01/20/22 Page 14 of 17 PageID# 2828
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`requirements of Rule 12(b)(6). Plaintiffs need not do more, and the Court’s entry of default
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`judgment against Defendant “is equivalent to a finding of liability.” See R&R at 19.
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`Second, this case does not involve “duplicative damages.” It is well-settled that Plaintiffs
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`may recover both statutory damages for copyright infringement under the Copyright Act and
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`statutory damages for circumvention of technological measures under the DMCA because the
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`different statutes seek to address distinct acts and interests. See, e.g., Point 4 Data Corp. v. Tri-
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`State Surgical Supply & Equip., Ltd., 2012 WL 3306600, at *4–5 (E.D.N.Y. June 13, 2012)
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`(distinguishing between the “very distinct behaviors” of circumvention of digital walls guarding
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`copyrighted material and the subsequent use of those materials after circumvention has
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`occurred); Goulet v. Oculus Architecture Ltd., 2019 WL 7841926, at *4–6 (C.D. Cal. Sept. 5,
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`2019) (awarding statutory damages for copyright infringement and circumvention);
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`Sweepmasters Professional Chimney Servs., LLC v. Vanessa Servs., 2017 WL 3927626, at *6
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`(E.D. Va. July 5, 2017) (Buchanan, M.J.) (recommending statutory damages awards for both
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`copyright infringement and unauthorized removal and alteration of copyright management
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`information in violation of DMCA § 1202), report and recommendation adopted, 2017 WL
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`3927602 (E.D. Va. Sept. 7, 2017). Magistrate Judge Buchanan correctly recognized that
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`damages for copyright infringement and circumvention are not duplicative. See R&R at 20, n.7.
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`Courts have rejected Defendant’s argument that damages awards under both the
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`Copyright Act and the DMCA result in double recovery for a single injury: “‘Because the
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`Copyright Act and the DMCA protect different interests’—that is, they create separate tort
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`causes of action designed to remedy different harms—the awards here compensate distinct
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`injuries.” GC2 Inc. v. Int’l Game Tech., 391 F. Supp. 3d 828, 851 (N.D. Ill. 2019) (quoting
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`Agence France Presse v. Morel, 2014 WL 3963124, at *10 (S.D.N.Y. Aug. 13, 2014)); see also
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`
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`14
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`Case 1:18-cv-00957-CMH-TCB Document 143 Filed 01/20/22 Page 15 of 17 PageID# 2829
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`Universal City Studios, Inc. v. Corley, 273 F.3d 429, 443 (2d Cir. 2001) (“[T]he DMCA targets
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`the circumvention of digital walls guarding copyrighted material (and trafficking in
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`circumvention tools), but does not concern itself with the use of those materials after
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`circumvention has occurred.” (emphasis in original)).
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`Lacking any response to these numerous cases, Defendant simply ignores them and
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`instead cites Cengage Learning and Echostar Satellite, neither of which involved separate claims
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`for infringement under the Copyright Act and circumvention under the DMCA. See Cengage
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`Learning, Inc. v. Shi, 2017 WL 1063463 (S.D.N.Y. Mar. 21, 2017) (claims under Copyright Act
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`and Lanham Act); Echostar Satellite LLC v. Rollins, 2008 WL 314145 (S.D. W. Va. Feb. 4,
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`2008) (claims under DMCA, Federal Communications Act, Electronic Communications Act, and
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`Lanham Act). These cases, which involved unauthorized activity that resulted in both copyright
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`and trademark infringement, and not the question of assessing damages for infringement and
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`circumvention, are inapposite.
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`Plaintiffs’ unrebutted evidence from their expert witness, Robert W. Schumann, shows
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`that Defendant’s acts of circumventing YouTube’s technological protective measures and
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`accessing Plaintiffs’ protected content from YouTube’s servers are “very distinct” from
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`subsequent acts of unauthorized copying and distribution of Plaintiffs’ copyrighted sound
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`recordi