PHOENIX, Ariz.—Kink.com corporate parent Cybernet Entertainment filed a copyright infringement lawsuit yesterday in U.S. District Court in Arizona against IG Media, which is based in Vancouver, British Columbia, and the sites it operates, including its flagship, YouJizz.com, which the complaint alleges "is visited by over 5 million internet surfers per month." The suit comes a month after Kink.com filed a similar lawsuit in Florida against Dr Tuber.
The allegations made against IG Media, owner Igor Gens and the YouJizz family of sites—which include, in addition to the aforementioned, JizzHut.com, JizzOnline.com, OnlyJizz.com, JizzBo.com, HotFunHouse.com, MoviesGuy.com and YouJizzPremium.com—reference over 400 instances of the alleged infringement of the plaintiff's video, and include, specifically:
* "Infringers, such as Defendant through the website Defendants, have taken advantage of the existence of legitimate Web sites that properly facilitate the exchange of user-generated content. Defendant websites are truly subscription membership web sites hiding behind the veneer of a simple user-generated content exchange site. Defendants sell premium memberships to its upsell website and pay third parties to send traffic to its websites like a membership website."
* "Defendants allow third parties to display Plaintiff's intellectual property to third parties on third party websites for the purpose of driving traffic back to Defendants. Defendants have enabled this feature by providing an 'embed code' for every video on its site. An internet user can copy and paste the embed code on another website where the video can then be viewed. The number of views displayed on Defendants’ websites does not reflect the number of views on those sites. This significantly increases the number of views. This number grows daily thus furthering the number of copyright infringements and contributing to the further dilution of the Plaintiff's trade and service marks."
* "Defendant does not qualify for safe harbor protection under the Digital Millennium Copyright Act (DMCA). Although Defendant registered a DMCA Agent in September 2011, Defendant does not meet all requirements for safe harbor."
* "Defendant websites draw from a common database, as seen by common features in the unique respective URL addresses. If a user uploads a video to one Defendant website, the other Defendant websites will draw upon and use that data to create unique pages to display the video. Therefore, Defendant may claim a video is user uploaded for one website, but the other websites are not displaying user uploaded content – rather those websites are sourcing their videos independently of the user. With full knowledge of their actions, Defendants are intentionally creating unique, search engine optimized web pages on completely separate websites for the purpose of earning revenue utilizing the display and distribution of Plaintiff’s videos without any license from the rightful owner."
* "Defendants have actual knowledge and clear notice of this extensive infringement of Plaintiff’s titles or else is willfully blind to the rampant infringement. The infringement is clear and obvious even to the most naïve observer. Plaintiff’s films are indexed, displayed and distributed on Defendant websites through Defendant and the Doe Defendants acting in concert. Plaintiff’s and other major producers’ trademarks are used to index infringing material along with obfuscation of watermarks and other identifiers which is evidence of knowledge and intent."
The majority of the 156-page complaint is comprised of the documentation of individual instances of alleged infringement, such as, "In March 2012, Plaintiff documented www.youjizz.com display and offer for viewing Plaintiff’s copyrighted work 15190, protected by Copyright Registration PA0001764829 and Trademark Registration 3396959; specifically located at http://www.youjizz.com/videos/fucking-machines-and-alysa-2305833.html. This copyrighted and trademark protected work was displayed on Defendants website without the consent of, or licensing by, Cybernet Entertainment LLC, the copyright owner of the motion picture and trademark owner. According to Defendant website, this video was viewed 101,100 times."
As with the Dr Tuber case, because Kink.com does not believe that any of the entities it is suing are service providers afforded DMCA protection, the company and its attorney do not believe that they have any responsibility to issue DMCA notices prior to filing lawsuits seeking statutory remuneration and other penalties for the alleged violations of federal copyright law.
The complaint also states, "Defendants have a common registered DMCA agent. Agent is listed as Larry G. Walters, Esq., Walters Law Group..." Walters is,. of course, a veteran industry attorney who has represented many adult companies and individuals over the years.
In a response to a query from AVN, Walters confirmed that in addition to being the defendants' DMCA agent, his firm will be involved in the case. We also asked him if, as the DMCA agent, he disagrees with the contention by the plaintiff's attorney, industry vet Chad Belville, that the "Defendant does not meet all requirements for safe harbor."
Walters replied, "Our client’s sites are fully-compliant with DMCA safe harbor requirements, and should not have been named in this suit. The Complaint does not specify any particular problem with safe harbor protection for these sites, and that is telling.
"In addition to being protected by DMCA safe harbor," he contiued, "our client participates in the FSC’s Anti-Piracy Protection Program (APAP), which Kink.com surprisingly does not. The APAP would have allowed Kink to block or monetize its content, and avoid any infringement issues. Instead, it has decided to pursue questionable litigation against foreign website operators, who are not even within the jurisdiction of the U.S. courts. We hope that eventually Kink realizes that these sites are not appropriate targets, and chooses to refocus its efforts on other operators who do not comply with the DMCA or participate in industry anti-piracy efforts."
A copy of Cybernet Entertainment vs.IG Media can be accessed here.
