Private's Suit Against DrTuber.com Is Rejected

Mar 10, 2012 11:30 AM PST

CEDAR RAPIDS, Iowa — A federal judge this week rejected Private Media Group's copyright infringement suit against Russian citizen Igor Kovalchuk, who was said to operate tube site DrTuber.com.

U.S. District Judge Mark Bennett dismissed the suit after ruling that Private hasn't "sufficient minimum contacts with Iowa to satisfy due process and permit the exercise of personal jurisdiction over him."

The case, filed last year at federal court in Iowa, alleged that DrTuber.com streamed 31 of its videos. Private was asking for $4.65 million in damages, as well as attorneys fees and court costs.

Private, in its complaint through its Fraserside IP unit, asserted that DrTuber is "one of the rogue pirates running such a site and willfully violating its copyrights and trademarks in the process."

But on Monday Bennett ruled that Kovalchuk, DrTuber's reported operator, would be entitled to succeed in a motion to dismiss for lack of personal jurisdiction because Private could not establish that he actually operated the site.

"[Private] asserts that specific jurisdiction over Kovalchuk exists because Kovalchuk has directed tortious conduct at it, an Iowa business, through his ownership and operation of the website  DrTuber.com," Bennett wrote. "Although I accept as true [Private]'s allegations that the website  DrTuber.com has infringed Kovalchuk’s registered copyrights and trademarks, these allegations, alone, fail to demonstrate that Kovalchuk 'uniquely or expressly aimed' any tortious acts at Iowa."

Bennett, who made a similar ruling in another Private suit against xHamster earlier this year, said he considered five factors developed by the 8th U.S. Circuit Court of Appeals, which presides over federal cases in Iowa, determining whether a nonresident defendant has sufficient minimum contacts with the forum state to exercise personal jurisdiction over it. 

Those factors include, Bennett said, the nature and quality of the contacts with the forum state; the quantity of the contacts with the forum state; the relation of the cause of action to the contacts; the interest of the forum state in providing its residents a forum; and the convenience of the parties.

"Kovalchuk has no employees in Iowa, no telephone number in Iowa and no agent for service of process in Iowa, "Bennett said. "Kovalchuk has never visited Iowa and has never conducted any business in Iowa. He does not own or lease any real estate in Iowa."

The DrTuber judgment Tuesday's decision is another setback for Private, which has vowed to appeal Bennett's similar xHamster dismissal to the 8th Circuit. At post time, it wasn't clear whether Private would appeal the DrTuber ruling, as well.

Meanwhile, Private apparently has reached a deal with operator Joe Olivero and tube site TubeRip.com over copyright infringement charges in which Barcelona-based Private was seeking $7.65 million in damages.Terms of the apparent settlement were not disclosed.

TubeRip was alleged to have poached and streamed 51 Private movies.

With the settlement, Bennett signed off on dismissing that suit on Wednesday.

Private did not respond by post time for XBIZ comment on the pair of cases.

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