FLVTO.biz Challenges $83 Million Damages Recommendation in RIAA Lawsuit, Citing Lack of Infringement Evidence

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The Zhivopisny Bridge in Moscow, Russia. Photo Credit: Alexander Smagin

Late last month, a federal judge recommended that FLVTO.biz be ordered to pay $83 million in damages as part of its much-publicized legal battle with the RIAA. Now, the Russian stream-ripper has officially challenged the ruling.

In brief, the back-and-forth courtroom confrontation kicked off in 2018, when the major labels sued FLVTO.biz (as well as the platform’s owner, Tofig Kurbanov, and a similar website called 2conv.com). The stream-ripper defendants secured an early victory in the marathon suit, as a judge dismissed the complaint due to lack of jurisdiction.

But an appellate court subsequently overturned the ruling, and several dismissal efforts from FLVTO.biz – including the argument that the RIAA should be made to pursue the action in Russia – failed to produce the desired result for the defendants.

The court ultimately ordered the latter parties to turn over users’ data logs (encompassing their locations, IP addresses, and other information), and the defendants’ attorneys withdrew from the case last summer, specifying that their client didn’t intend to comply with discovery.

As mentioned at the outset, FLVTO.biz and Kurbanov are pushing back against the $83 million damages recommendation as well as the proposed “worldwide permanent injunction,” stating that both “are in direct contravention of the law.”

Beginning with the $83 million in damages, the defendants in a new filing take aim at the alleged lack of specific infringement instances outlined by the RIAA, reiterating that the sought “statutory damages are premised on a certain amount being awarded to the Plaintiffs for each infringement.

“Remarkably, though, despite submitting to the Court more than 450 pages worth of materials, Plaintiffs failed entirely to provide any evidence of the one thing that is a prerequisite to any recovery: namely, proof of the existence of even a single improper download of Plaintiffs’ copyrighted materials within the United States.

“This is not mere hyperbole. The Plaintiffs produced no evidence whatsoever that even a single person in the United States ever utilized Mr. Kurbanov’s Websites to improperly download one of their copyrighted songs,” the text emphasizes on this front.

And after indicating that the defendants’ previously noted lack of cooperation with discovery could impact the number of infringement instances but not the overarching identification of infringed songs, the document describes as “incorrect” the idea that the plaintiffs need not provide evidence of the alleged infringement because of the default judgement.

Finally, the opposition disputes the recommended damages total, highlighting that the alleged infringement at the case’s center was contributory and that visitors to Kurbanov’s websites – not the Russia-based individual himself – allegedly downloaded the copyrighted materials in question.

“The Websites simply utilized open-source software, freely available to anyone on the Internet,” the filing continues, echoing statements expressed in other lawsuits between the RIAA and stream-rippers.

Bearing the point in mind, the judge “also erred in recommending that, separate and apart from an award of statutory damages for copyright infringement, the Court should award duplicate damages for the same 1,680 works because (Plaintiffs argued) each instance of infringement is also an instance of circumvention of technological measures,” the defendants maintain.

In closing, FLVTO.biz notes that the recommended preliminary injunction would seemingly block worldwide visitors from using the service (and 2conv.com) – and that the order “exceeds this Court’s jurisdictional powers” as a result. The stream-rippers ceased operating in the United States over the summer.