Kink Sues DrTuber for Copyright, Trademark Infringement

SAN FRANCISCO—Noted BDSM and fetish producer Kink.com has filed a copyright and trademark infringement lawsuit worth in excess of $10 million against DrTuber.com, Igor Kovalchuk, Extron Worldwide Corporation and Era Technologies Limited. The lawsuit, which was filed April 13 in U.S. Federal Court in the Southern District of Florida, claims that over 70 of Kink.com’s protected works have been infringed by the defendants.  The case is Cybernet Entertainment LLC v. Igor Kovalchuk. Cybernet is the corporate parent for Kink.com.  According to the complaint, "Defendant Igor Kovalchuk owns and operates www.drtuber.com, using a shell corporation called Extron Worldwide Corporation, which is incorporated in Panama." In a statement issued Monday, Kink.com founder and CEO Peter Acworth commented, “We will not sit still while others illegally steal and profit from our work. We will protect our work, we will protect our brands, and we will certainly protect our affiliates." The 55-page complaint contains an exhaustive catalogue of alleged instances of direct infringement that is alleged to have occurred in February 2012. "On or about January 2012, an initial search of Defendants’ website revealed and documented over 75 separate instances of copyright infringement of Plaintiff’s copyrighted and trademarked intellectual property. As of the date of this Complaint, a total of 75 instances of infringement, identified by name and registration number in the following paragraphs, were documented as being displayed and distributed on DrTuber.com," the complaint states. "Each of these films were displayed and distributed by Defendants and the Doe Defendants, each individually and acting in concert with each other, without the consent of, or licensing by, Cybernet, the copyright owner and registrant of the motion picture." The complaint also states that "the DrTuber.com website is visited by over 5 million internet surfers per month," and that "Alexa, a website rating service, ranks DrTuber.com as the #319 most visited website in the world." It continues, "Defendants’ website, DrTuber.com, is arguably one of the most visited websites in the world. These enormous numbers of visitors result in Plaintiff’s copyrighted works being viewed thousands or even hundreds of thousands of times on Defendants’ website. Defendants proudly display the number of instances in which a particular piece of media has been played on its website as number of 'views.' One video has been viewed over 247,000 times!" In terms of the accumulated views of Kink.com content, the complaint alleges, "Plaintiff's intellectual property has been viewed over six hundred thousand (600,000) times, available for months and for some videos, years, on Defendants’ website. With the enormous amount of internet users on Defendants’ website, the number of uncompensated views grows daily thus furthering the number of copyright infringements and contributing to the further dilution of the Plaintiff's trade and service marks." DrTuber's business model is directly targeted in the complaint. "Defendants pay third parties to send web users, also known as traffic, to Defendants’ website," it states. "Defendants currently pay third parties between $1.25 and $1.75 USD for every one thousand (1,000) unique visitors from the United States that are sent to Defendants’ website." Kink also alleges that DrTuber.com allows third parties to display infringed content on third party websites "for the purpose of driving traffic back to DrTuber. DrTuber has 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 DrTuber does not reflect the number of views on those sites. This significantly increases the number of views." Adding that "Defendant DrTuber is truly a subscription membership web site hiding behind the veneer of a simple user-generated content exchange site," the complaint argues that the defendants do not qualify for safe harbor protection under the DMCA. "DrTuber does not initially allow users to view high quality versions of Plaintiff’s films or download Plaintiff’s film to the user’s computer, although a user may view the films by lower quality streaming," the complaint states. "If the Internet user wishes to view the film in High Definition, or download the video, the user is presented with the option of becoming a Premium Member. The website user is presented with a one (1) month Premium Membership for $29.95 that renews every 30 days until cancelled. "DrTuber," it adds, "uses the services of a Florida-based payment processor, SegPay, to collect credit and debit card payments from users who sign up for a premium membership." The complaint also alleges that DrTuber.com removed or blurred Kink.com watermarks and logos, "causing consumers to be confused as to the origin of the audio-video content. The manipulation of identifying marks is also evidence of knowledge and intent to infringe Plaintiff’s intellectual property rights." Kink.com is seeking $10 million in direct and enhanced penalties, the transfer of DrTuber.com and other domains into its possession, attorney fees and other considerations. The Kink.com complaint can be read here.