Brazzers Owner Awarded $36.5m in ‘YesPornPlease’ Copyright Lawsuit
MG Premium, part of the Mindgeek adult empire, had been homing in piracy platforms YesPornPlease.com and VShare.io for some time.
In 2019 the Brazzers owner obtained a DMCA subpoena requiring Cloudflare to hand over the personal details of the sites’ owners. In January 2020, YesPornPlease had around 100 million visitors per month (SimilarWeb stats) so any information would’ve been useful to MG Premium.
Sources within unlicensed adult site circles soon indicated that Cloudflare had little to offer but according to MG, the sites infringed its copyrights on a grand scale so something needed to be done about them.
MG Premium Files Copyright Lawsuit
Late February 2020, MG Premium filed a full-blown copyright lawsuit in a Washington court against the then-unknown operators of the platforms. It alleged that the platforms operated under the guise of being user-generated content sites but were in fact directly and knowingly involved in the “trafficking of tens of thousands of pirated works.”
Almost immediately the sites went offline but MG Premium’s claims stood and were further honed in an amended complaint filed in December 2020.
MG Premium named Thomas Zang (Belize), Howard Stroble (US), Matthew Bradley (Gibraltar or GB), Michael Goal (Columbia), Mateusz Czajka (Poland), plus Viktor Ivanov and Aleksey Samokhinas as defendants. The adult content company alleged egregious and willful violations of its copyrights by defendants who failed to comply with the requirements of the DMCA, including by failing to register a DMCA agent, failing to respond to takedown notices, and failing to implement a repeat infringer policy.
As a result, MG said they could claim no safe harbor as a service provider.
“The YesPornPlease Web Site is a pirate website, displaying copyrighted adult entertainment content without authorization or license,” MG Premium wrote in its amended complaint.
“The YesPornPlease Web Site is operated in conjunction with the VShare Web Site, wherein purported Internet users desiring to post videos on the YesPornPlease Web Site must actually upload the video to the VShare Web Site and then are directed to ‘copy and paste’ the URL assigned to the uploaded video on the VShare Web Site onto the YesPornPlease Web Site.”
MG Premium further alleged that users were encouraged to upload content in exchange for monetary rewards based on the length of the video, the amount of content downloaded and the time actually watched. The YesPornPlease site generated revenue via pop-up ads, MG added.
Stating that the defendants engaged in “intentional, knowing, negligent, or willfully blind conduct”, MG Premium alleged direct copyright infringement and inducement of copyright infringement relating to 3,078 of its copyrighted works, demanding the maximum of $150,000 in statutory damages for each.
The adult company also requested broad preliminary and permanent injunctions plus a freeze on the sites’ domains.
MG Premium Claims Losses of $727 Million
Since none of the defendants appeared in court to respond to the complaint, MG Premium served them via email, enabling it to move for a default judgment. Interestingly, the 3,078 allegedly infringed works were subsequently trimmed down to 2,433 since the remainder were displayed before MG had registered them at the US Copyright Office.
Nevertheless, 2,433 copyrighted works is still a high number considering the maximum statutory damages of $150,000 per work available – a total of almost $365 million.
To support this claim, MG Premium settled on YesPornPlease having 3.2 million users per month for the 24 months preceding the lawsuit, arguing that a subscription to Brazzers is $9.99 per month, therefore it “lost” revenues of $727,232,000 during that period.
Judge Issues Default Judgment
In a default judgment handed down Tuesday, Judge Benjamin H. Settle writes that he wasn’t happy with the losses being claimed and wasn’t convinced that maximum statutory damages were warranted either.
“[W]hile MG Premium has demonstrated that maximum statutory damage awards are often affirmed when the infringement is willful, it has not cited a case making or affirming a statutory damages award anywhere near the sum it seeks, particularly against individual defendants,” his judgment reads.
“Further, MG Premium’s claimed lost revenue is speculative; the 3.2 million users it cites admittedly did not pay Defendants the sum it claims it charges for access to its adult videos. In other words, MG Premium did not lose, and Defendants did not make, $727 million when Defendants provided free access to MG Premium’s protected works. $365 million is similarly not a fair or accurate estimation of any lost revenue, or of illicit profit.”
Describing the damages claim as “obscene”, the Judge says that a more reasonable (albeit massive) award is appropriate and will act as a deterrent, even though it’s unlikely the judgment will be paid.
Defendants to Pay $36.5 Million
“In its discretion and in the interests of justice, the Court will therefore award statutory damages of $15,000 for each of the 2,433 offending videos, for a total of $36,495,000. The award is against the five individual defendants, jointly and severally,” Judge Settle writes in his judgment.
Noting that it is unlikely that MG Premium will recover the damages, the Judge then turns to the requested injunction to restrain the defendants moving forward. All things considered, a broad permanent injunction is warranted in this case.
The judgment also orders Verisign to disable the domain ‘yespornplease.com’ and transfer it to MG Premium. At the time of writing, it appears to drive traffic to a webcam site. References to VShare.io are absent from the judgment.
Supporting court documents can be found here (1,2, pdf)
From: TF, for the latest news on copyright battles, piracy and more.