UMG Recordings, Incorporated v. Tofig Kurbanov ( 2020 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1124
UMG RECORDINGS, INC.; CAPITAL RECORDS, LLC; WARNER BROS
RECORDS INC.; ATLANTIC RECORDING CORPORATION; ELEKTRA
ENTERTAINMENT GROUP INC.; FUELED BY RAMEN LLC; NONESUCH
RECORDS INC.; SONY MUSIC ENTERTAINMENT; SONY MUSIC
ENTERTAINMENT US LATIN LLC; ARISTA RECORDS LLC; LAFACE
RECORDS LLC; ZOMBA RECORDING LLC,
Plaintiffs – Appellants,
v.
TOFIG KURBANOV, d/b/a FLVTO.BIZ, a/k/a 2CONV.COM; DOES 1-10,
Defendants – Appellees.
________________________
COPYRIGHT ALLIANCE; INTERNATIONAL ANTICOUNTERFEITING
COALITION; MOTION PICTURE ASSOCIATION OF AMERICA, INC.;
ASSOCIATION OF AMERICAN PUBLISHERS,
Amici Supporting Appellants,
ELECTRONIC FRONTIER FOUNDATION,
Amicus Supporting Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:18–cv–00957–CMH–TCB)
Argued: April 24, 2020 Decided: June 26, 2020
Before GREGORY, Chief Judge, FLOYD, and THACKER, Circuit Judges.
Reversed and remanded by published opinion. Chief Judge Gregory wrote the opinion, in
which Judge Floyd and Judge Thacker joined.
ARGUED: Ian Heath Gershengorn, JENNER & BLOCK LLP, Washington, D.C., for
Appellants. Evan M. Fray-Witzer, CIAMPA FRAY-WITZER, LLP, Boston, Massachusetts,
for Appellees. ON BRIEF: Ishan K. Bhabha, Alison I. Stein, Jonathan A. Langlinais,
JENNER & BLOCK LLP, Washington, D.C., for Appellants. Valentin Gurvits, BOSTON
LAW GROUP, PC, Newton, Massachusetts; Matthew Shayefar, LAW OFFICE OF
MATTHEW SHAYEFAR, PC, West Hollywood, California, for Appellees. David E. Weslow,
Megan L. Brown, Ari S. Meltzer, WILEY REIN LLP, Washington, D.C., for Amicus
Association of American Publishers. Robert H. Rotstein, Los Angeles, California,
J. Matthew Williams, MITCHELL SILBERBERG & KNUPP LLP, Washington, D.C., for
Amicus The Motion Picture Association of America, Inc. Michael E. Kientzle,
Washington, D.C., John C. Ulin, ARNOLD & PORTER KAYE SCHOLER LLP, Los
Angeles, California, for Amici The Copyright Alliance and International
Anticounterfeiting Coalition. Mitchell L. Stoltz, ELECTRONIC FRONTIER
FOUNDATION, San Francisco, California, for Amicus Electronic Frontier Foundation.
2
GREGORY, Chief Judge:
This appeal concerns whether a defendant, sued by twelve U.S. record companies
for alleged copyright infringement, is subject to specific personal jurisdiction in Virginia.
The district court, in granting the defendant’s motion to dismiss, concluded that he is not
subject to personal jurisdiction in any federal forum. We disagree and, for the reasons that
follow, reverse the ruling of the district court and remand for further proceedings.
I.
On August 8, 2018, Plaintiffs–Appellants—twelve record companies that produce,
distribute, and license approximately 85% of commercial sound recordings in the United
States 1—commenced this action against Defendant–Appellee Tofig Kurbanov. Appellants
are all Delaware corporations, with eight having their principal place of business in New
York, three in California, and one in Florida. Kurbanov, born in Rostov-on-Don, Russia,
is a Russian citizen who still resides in Rostov-on-Don.
According to Appellants’ complaint, Kurbanov owns and operates the websites
www.flvto.biz (“FLVTO”) and www.2conv.com (“2conv,” and together, the “Websites”).
The Websites offer visitors a “stream-ripping” service through which audio tracks may be
extracted from videos available on various platforms (e.g., YouTube) and converted into a
1
More specifically, they are UMG Recordings, Inc.; Capitol Records, LLC; Warner
Bros. Records Inc.; Atlantic Recording Corporation; Elektra Entertainment Group Inc.;
Fueled by Ramen LLC; Nonesuch Records Inc.; Sony Music Entertainment; Sony Music
Entertainment US Latin LLC; Arista Records LLC; LaFace Records LLC; and Zomba
Recording LLC.
3
downloadable format (e.g., mp3). A large portion, perhaps a majority, of the streams
ripped using the Websites is alleged to derive unlawfully from YouTube videos.
The Websites, however, are capable of ripping the audio components from a wide
variety of sources. According to Kurbanov, “professors or students might choose to
download the audio portions of lectures for later reference and playback,” “bands may want
to capture the audio tracks from their live performances that they have captured on video,”
or “parents may want the audio portion of a school concert that they recorded.” J.A. 68.
Neither Appellants nor YouTube have sanctioned any illicit ripping of audio streams.
Indeed, according to Appellants, the Websites’ conversion process circumvents the
technological measures implemented by YouTube to control access to content maintained
on its servers and to prevent illicit activities such as stream ripping.
The Websites are free to use, and visitors need not create an account or register any
information to use the stream ripping services. Visitors, however, must agree to the
Websites’ Terms of Use by checking a box before they can download any audio files. The
Terms of Use explain that they “constitute a contractual agreement between [the visitor]
and [FLVTO or 2conv]” and that they give Kurbanov “the right to take appropriate action
against any user . . . including civil, criminal, and injunctive redress.” J.A. 158, 168. The
Terms of Use also compel visitors to submit and consent to personal jurisdiction in Russia
and anywhere else they can be found. Beyond requiring visitors to accept the Terms of
Use, Kurbanov does not maintain any relationship with visitors to the Websites.
Since visitors do not pay to use stream ripping services, virtually all revenues
generated by the Websites come from advertisements. Kurbanov does not sell advertising
4
space on the Websites directly to advertisers. Instead, he sells spaces on the Websites to
advertising brokers, most of whom are based in Ukraine but at least two are based in the
United States (i.e., MGID in New York and Advertise.com in California). The advertising
brokers then resell those spaces to advertisers. According to the complaint, some of the
advertising brokers and advertisers are interested in the Websites’ “geolocation” or “geo-
targeting” capabilities. That is, advertising brokers or advertisers might want to display
specific advertisements to specific blocks of countries, states, or even cities.
Notably, according to Kurbanov, he has little control over the relationship between
advertising brokers and advertisers. For instance, neither the Websites themselves nor
advertising spaces for sale are advertised in any way in the United States or anywhere else.
Kurbanov also does not have any direct relationship or communication with any of the
advertisers, only brokers. He further has no control over the selection of any location-
specific advertising. The privacy policies on the Websites, though, explain that visitors’
IP addresses, countries of origin, and other non-personal information may be collected “to
provide targeted advertising.” J.A. 176, 178.
The Websites are successful, in part, because they are two of the most popular
stream-ripping websites in the world and are among the most popular websites of any kind
on the Internet. According to Kurbanov’s own data, between October 2017 and September
2018, the Websites attracted well over 300 million visitors from over 200 distinct countries
around the world. 2 Together, the Websites attracted over 30 million visitors (or about 10%
2
The Websites are also available in approximately two dozen languages.
5
of all traffic) from the United States. Indeed, of all the visitors to FLVTO and 2conv, the
United States was the third and fourth most visited country, respectively.
Within the United States, hundreds of thousands of visitors came from Virginia
during the same period. Of all visitors to FLVTO, nearly 500,000 (or about 2% of all
domestic visitors) came from Virginia, making it the 13th most popular state. Similarly,
about 95,000 (or about 2%) of 2conv’s domestic visitors came from Virginia, making it the
11th most popular state. 3
Beyond visitors, the Websites have some other connections to the United States
generally and Virginia more specifically. The Websites’ domain names are registered with
www.GoDaddy.com, a U.S.-based registrar of domain names. The Websites’ top-level
domains—the suffixes “.com” and “.biz”—are administered by the companies Neustar,
Inc. (FLVTO) and VeriSign, Inc. (2conv), both of which are headquartered in Virginia.
The Websites have also registered a Digital Millennium Copyright Act agent with the U.S.
Copyright Office. Finally, until July 2018, the Websites’ servers were hosted by Amazon
Web Services, which has servers physically located in Virginia. 4
Essentially all of the work that Kurbanov has performed on the Websites has been
performed in Russia, and he has never performed any work on the Websites from within
the United States. He also operates the Websites entirely from Russia. He has never had
3
The figures for the number of visits, as opposed to unique visitors, are
proportionally similar.
4
Since July 2018, the Websites have been hosted by Hetzner Online GmbH, a
German-based company without servers anywhere in the United States.
6
employees anywhere in the United States or owned or leased real estate anywhere here.
Neither has he held a bank account or paid taxes in the United States. Kurbanov has never
been to Virginia or anywhere else in the United States and claims that it would be extremely
burdensome and costly for him to travel to Virginia or anywhere else in the United States
for trial and other proceedings. Among other reasons, he does not currently have a visa to
visit, has never applied for, or has never obtained a visa to visit the United States, and it
would be extremely difficult for him to do so. 5
In their complaint, Appellants alleged that the Websites are a facilitator of music
piracy and asserted five claims for separate violations of the Copyright Act. As to personal
jurisdiction, Appellants alleged the district court had specific jurisdiction under Federal
Rule of Civil Procedure 4(k)(1) because of Kurbanov’s contacts with Virginia and, in the
alternative, under Rule 4(k)(2), because of his contacts with the United States more
generally. In response, Kurbanov timely filed a motion to dismiss for lack of personal
jurisdiction, or in the alternative, transfer the action to the district court for the Central
District of California.
On January 12, 2019, the district court granted Kurbanov’s motion to dismiss for
lack of personal jurisdiction. The district court found the Websites are semi-interactive,
visitors’ interactions with them are non-commercial in nature, and there were no other acts
5
According to the Department of State, visa services are available in Moscow,
Yekaterinburg, and Vladivostok. See https://ru.usembassy.gov/visas (saved as ECF
opinion attachment). Kurbanov states that, from where he lives in Rostov-on-Don, it is a
12-hour drive to Moscow, a 28-hour drive to Yekaterinburg, and nearly a 12-hour flight to
Vladivostok.
7
by Kurbanov that established purposeful targeting. As a result, Kurbanov did not
purposefully avail himself of the benefits and protections of either Virginia or the United
States. The district court then concluded that exercising personal jurisdiction over
Kurbanov in any federal forum would violate due process under both Rule 4(k)(1) and
4(k)(2). 6
On January 31, 2019, Appellants filed a timely notice of appeal.
II.
We review de novo the district court’s ruling that it lacked personal jurisdiction
under Federal Rule of Civil Procedure 12(b)(2). Tire Eng’g & Distrib., LLC v. Shandong
Linglong Rubber Co., Ltd., 682 F.3d 292, 300 (4th Cir. 2012). Under Rule 12(b)(2), a
defendant “must affirmatively raise a personal jurisdiction challenge, but the plaintiff bears
the burden of demonstrating personal jurisdiction at every stage following such a
challenge.” Grayson v. Anderson, 816 F.3d 262, 267 (4th Cir. 2016). The plaintiff must
establish personal jurisdiction by a preponderance of the evidence but need only make a
prima facie showing. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). In considering
whether a plaintiff has met this burden, a court may look beyond the complaint to affidavits
and exhibits in order to assure itself of personal jurisdiction. Grayson, 816 F.3d at 269. A
court must also “construe all relevant pleading allegations in the light most favorable to the
6
Having reached this conclusion, the district court declined to engage in a
reasonability analysis and denied Appellants’ request for jurisdictional discovery. The
court also found that it need not address whether transfer to the Central District of
California would be appropriate as that venue would also be without jurisdiction.
8
plaintiff, assume credibility, and draw the most favorable inferences for the existence of
jurisdiction.” Combs, 886 F.2d at 676.
III.
As a threshold matter, the parties agree that there is no general personal jurisdiction
over Kurbanov in Virginia. They instead dispute whether there is specific personal
jurisdiction over Kurbanov in Virginia, which Appellants assert under Rule 4(k)(1) or, in
the alternative, Rule 4(k)(2).
Rule 4(k)(1) provides that the district court may exercise personal jurisdiction over
Kurbanov if he is “subject to the jurisdiction of a court of general jurisdiction in the state
where the district court is located,” i.e., Virginia. Fed. R. Civ. P. 4(k)(1). That exercise of
personal jurisdiction over Kurbanov is lawful “if [1] such jurisdiction is authorized by the
long-arm statute of the state in which it sits and [2] the application of the long-arm statute
is consistent with the due process clause of the Fourteenth Amendment.” Consulting
Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 277 (4th Cir. 2009). Here, Virginia’s long-
arm statute 7 extends personal jurisdiction over nonresident defendants to the full extent
permitted by the Fourteenth Amendment’s Due Process Clause. See, e.g., CFA Inst. v. Inst.
of Chartered Fin. Analysts of India, 551 F.3d 285, 293 (4th Cir. 2009); Peninsula Cruise,
Inc. v. New River Yacht Sales, Inc., 257 Va. 315 (1999). “Because Virginia’s long-arm
7
Virginia’s long-arm statute specifically provides that a court “may exercise
personal jurisdiction over a person . . . as to a cause of action arising from the person’s . . .
transacting any business in [the state].” Va. Code Ann. § 8.01–328.1(A)(1).
9
statute is intended to extend personal jurisdiction to the extent permissible under the due
process clause,” the statutory and constitutional inquiries merge into one inquiry.
Consulting Eng’rs Corp., 561 F.3d at 277 (citation omitted). Thus, the district court has
jurisdiction over a nonresident defendant, like Kurbanov, if the exercise of such jurisdiction
comports with the strictures of constitutional due process.
Rule 4(k)(2) similarly provides that the district court may exercise personal
jurisdiction over Kurbanov if he is “not subject to jurisdiction in any state’s courts of
general jurisdiction” and doing so would be consistent with constitutional due process.
Fed. R. Civ. P. 4(k)(2). The district court performs the same due process analysis as the
analysis under Rule 4(k)(1), only the analysis is applied to the entirety of the United States,
as opposed to Virginia. See Base Metal Trading v. OJSC Novokuznetsky Aluminum
Factory, 283 F.3d 208, 215 (4th Cir. 2002) (“Rule 4(k)(2) allows a federal court to assert
jurisdiction in cases ‘arising under federal law’ when the defendant is not subject to
personal jurisdiction in any state court, but has contacts with the United States as a
whole.”).
To meet the constitutional due process requirements for personal jurisdiction,
whether under Rule 4(k)(1) for Virginia or Rule 4(k)(2) for the United States, Kurbanov
must have “minimum contacts” such that “the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.” Consulting Eng’rs Corp., 561 F.3d
at 277 (quoting Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)). The minimum contacts
inquiry requires Appellants to show that Kurbanov “purposefully directed his activities at
the residents of the forum” and that Appellants’ causes of action “arise out of” those
10
activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (citation and
quotation omitted). The inquiry is designed to ensure that Kurbanov is not “haled into a
jurisdiction solely as a result of random, fortuitous, or attenuated contacts.” Id. at 475. In
other words, it protects him from having to defend himself in a forum where he did not
anticipate being sued. See World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980); see also ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 623 (4th Cir. 1997)
(underscoring that minimum contacts must have been so substantial that “they amount to a
surrogate for presence and thus render the exercise of sovereignty just”).
More recently, the Supreme Court also stressed that the minimum contacts analysis
must focus “on the relationship among the defendant, the forum, and the litigation.”
Walden v. Fiore, 571 U.S. 277, 283 (2014) (explaining that the “‘minimum contacts’
analysis looks to the defendant’s contacts with the forum State itself, not the defendant’s
contacts with persons who reside there”); see Bristol–Myers Squibb Co. v. Superior Court,
137 S. Ct. 1773, 1781 (2017) (“In order for a court to exercise specific jurisdiction over a
claim, there must be an affiliation between the forum and the underlying controversy,
principally, [an] activity or an occurrence that takes place in the forum State.”).
We have synthesized the due process requirements for asserting specific personal
jurisdiction into a three-prong test: “(1) the extent to which the defendant purposefully
availed itself of the privilege of conducting activities in the State; (2) whether the plaintiffs’
claims arise out of those activities directed at the State; and (3) whether the exercise of
personal jurisdiction would be constitutionally reasonable.” Consulting Eng’rs Corp., 561
F.3d at 278 (quoting ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712
11
(4th Cir. 2002) (quotations and citations omitted)). The district court concluded Kurbanov
did not take any actions to purposefully avail himself of Virginia, and Appellants’ claims
did not arise out of forum-related activities. We disagree with these determinations and
will now address each prong in turn.
A.
The first prong, purposeful availment, concerns whether and to what extent “the
defendant purposefully avail[ed] himself of the privilege of conducting business under the
laws of the forum state.” Consulting Eng’rs Corp., 561 F.3d at 278. We have previously
noted that this prong is not susceptible to a mechanical application and set forth a list of
various nonexclusive factors to consider:
(1) whether the defendant maintained offices or agents in the
State; (2) whether the defendant maintained property in the
State; (3) whether the defendant reached into the State to solicit
or initiate business; (4) whether the defendant deliberately
engaged in significant or long-term business activities in the
State; (5) whether a choice of law clause selects the law of the
State; (6) whether the defendant made in-person contact with a
resident of the State regarding the business relationship; (7)
whether the relevant contracts required performance of duties
in the State; and (8) the nature, quality, and extent of the
parties’ communications about the business being transacted.
Sneha Media & Entm’t, LLC v. Associated Broad. Co. P. Ltd., 911 F.3d 192, 198–99 (4th
Cir. 2018) (citing Consulting Eng’rs Corp., 561 F.3d at 278). Relevant to this analysis are
the quality and nature of the defendant’s connections, not merely the number of contacts
between the defendant and the forum state. Tire Eng’g, 682 F.3d at 301. Through an
analysis of these nonexclusive factors, if a court finds that Kurbanov has availed himself
of the privilege of conducting business in Virginia, specific personal jurisdiction exists.
12
See Consulting Eng’rs Corp., 561 F.3d at 278 (“[B]ecause [the defendant’s] activities are
shielded by the benefits and protections of the forum’s laws it is presumptively not
unreasonable to require him to submit to the burdens of litigation in that forum as well.”
(alterations in original) (quoting Burger King, 471 U.S. at 476)).
In the context of online activities and websites, as here, we have also recognized the
need to adapt traditional notions of personal jurisdictions. We have adopted the “sliding
scale” model articulated in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp.
1119 (W.D. Pa. 1997), to help determine when a defendant’s online activities are sufficient
to justify the exercise of personal jurisdiction. See ALS Scan, 293 F.3d at 707. 8 Regardless
of where on the sliding scale a defendant’s web-based activity may fall, however, “[w]ith
respect to specific jurisdiction, the touchstone remains that an out-of-state person have
engaged in some activity purposefully directed toward the forum state . . . creat[ing] a
substantial connection with the forum state.” ESAB Grp., Inc., 126 F.3d at 625 (internal
quotation marks and alteration omitted).
With these guiding principles in mind, we conclude that Kurbanov’s contacts with
Virginia are sufficient to establish purposeful availment. As an initial matter, the Websites
are certainly interactive to a degree, since they collect certain personal information from
visitors and visitors must agree to certain terms and conditions in order to access
8
The Zippo test establishes a sliding scale—interactive, semi-interactive, and
passive—and states that the exercise of personal jurisdiction is justified when a nonresident
defendant “(1) directs electronic activity into the State, (2) with the manifested intent of
engaging in business or other interactions within the State, and (3) that activity creates, in
a person within the State, a potential cause of action cognizable in the State’s courts.” ALS
Scan, 293 F.3d at 713–14 (citing Zippo, 952 F. Supp. at 1124).
13
downloadable files. Whether the Websites are highly interactive or semi-interactive,
however, is not determinative for purposes of personal jurisdiction. We recently
recognized that “[t]he internet we know today is very different from the internet of 1997,
when Zippo was decided.” Fidrych v. Marriott Int’l, Inc., 952 F.3d 124, 141 n.5 (4th Cir.
2020) (noting, on today’s Internet, “[i]t is an extraordinarily rare website that is not
interactive at some level”) (citation omitted). Were we to “attach too much significance
on the mere fact of interactivity, we risk losing sight of the key issue in a specific
jurisdiction case—whether the defendant has purposefully directed [his] activities at
residents of the forum.” Id. at 142.
Instead, we find there are more than sufficient facts raised to conclude that
Kurbanov has purposefully availed himself of the privilege of conducting business in
Virginia and thus had a “fair warning” that his forum-related activities could “subject [him]
to [Virginia’s] jurisdiction.” See Burger King, 471 U.S. at 472. To start, his contacts with
Virginia are plentiful. In the relevant period, between October 2017 and September 2018,
more than half a million unique visitors went to the Websites, totaling nearly 1.5 million
visits. These visits made Virginia one of the most popular states in terms of unique visitors
as well as number of visits.
In addition to the volume of visitors, we also find the nature of the repeated
interaction between the Websites and visitors to be a commercial relationship. Of course,
the Websites are free to use, and no cash is exchanged. But the mere absence of a monetary
exchange does not automatically imply a non-commercial relationship. It is hardly unusual
for websites to be free to use in today’s Internet because many corporations “make money
14
selling advertising space, by directing ads to the screens of computers employing their
software.” See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 926–
27 (2005).
Here, the visitors’ acts of accessing the Websites (and downloading the generated
files) are themselves commercial relationships because Kurbanov has made a calculated
business choice not to directly charge visitors in order to lure them to his Websites.
Kurbanov then requires visitors to agree to certain contractual terms, giving him the
authority to collect, among other information, their IP addresses and country of origin. Far
from being indifferent to geography, any advertising displayed on the Websites is directed
towards specific jurisdictions like Virginia. Kurbanov ultimately profits from visitors by
selling directed advertising space and data collected to third-party brokers, thus
purposefully availing himself of the privilege of conducting business within Virginia.
We are not persuaded by Kurbanov’s attempt to distance himself from this
commercial arrangement by contending that any commercial relationship that may exist
lies with advertising brokers, as opposed to directly with the advertisers or visitors.
According to Kurbanov, he lacks any control over what advertising is displayed because
of this lack of a commercial relationship. But at a minimum, Kurbanov facilitates targeted
advertising by collecting and selling visitors’ data. While he has outsourced the role of
finding advertisers for the Websites to brokers, the fact remains that he earns revenues
precisely because the advertising is targeted to visitors in Virginia. Moreover, as one court
appropriately concluded, “it is immaterial whether the third-party advertisers or [the
defendant] targeted California residents,” or Virginia residents in Kurbanov’s case. See
15
Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1230 (9th Cir. 2011). “The fact
that the advertisements targeted California [or here, Virginia] residents indicates that [the
defendant] knows—either actually or constructively—about its California [Virginia] user
base, and that it exploits that base for commercial gain by selling space on its website for
advertisements.” See id.; see also uBID, Inc. v. GoDaddy Group, Inc., 623 F.3d 421, 428
(7th Cir. 2010) (rejecting the defendant’s attempt to “distance itself from Illinois by casting
the Illinois market as simply one among many, a place of no particular interest to it”). In
this instance, we reject the notion that the relationship between Kurbanov’s Websites and
their visitors can hardly be labeled commercial.
We also find several other relevant facts, together with those already discussed,
suggest that Kurbanov intended to invoke the protections of Virginia and the United States
more generally. For instance, Kurbanov registered a Digital Millennium Copyright Act
agent with the U.S. Copyright Office, thereby qualifying the Websites for certain safe
harbor defenses to copyright infringement claims. Kurbanov has also contracted with U.S.-
based advertising brokers, registered his Websites with U.S.-based domain registers, and
until recently relied on U.S.-based servers. These facts might not be individually sufficient
to confer specific personal jurisdiction, but when viewed in the context of other
jurisdictionally relevant facts, they contradict Kurbanov’s contention that he could not have
anticipated being haled into court in Virginia.
In sum, we conclude Kurbanov’s contacts with Virginia are quantitatively and
qualitatively sufficient to demonstrate that he purposefully availed himself of the privilege
of conducting business here.
16
B.
The second prong, whether Appellants’ claims arise out of the activities directed at
the forum, concerns to what extent Kurbanov’s contacts with Virginia form the basis of the
suit. Consulting Eng’g, 561 F.3d at 278–79 (citations omitted). “The analysis here is
generally not complicated. Where activity in the forum state is ‘the genesis of [the]
dispute,’ this prong is easily satisfied.” Tire Eng’g, 682 F.3d at 303 (citing CFA Inst., 551
F.3d at 295). And Appellants’ claims arise out of activities directed at the forum state if
“substantial correspondence and collaboration between the parties, one of which is based
in the forum state, forms an important part of the claim.” See id. at 295–96.
Here, we find that Appellants’ claims arise out of activities directed at Virginia.
Kurbanov made two globally accessible websites and Virginia visitors used them for
alleged music piracy. In addition, Kurbanov knew the Websites were serving Virginian
visitors and yet took no actions to limit or block access, all while profiting from the data
harvested from the same visitors. It is hardly surprising, then, that Kurbanov’s contacts
with Virginia were “substantial and form[ed] a central part of [Appellants’] claims.” See
Tire Eng’g, 682 F.3d at 306.
Kurbanov, not directly addressing this prong, insists that Appellants are improperly
attempting to elevate the significance of non-claim related contacts with Virginia. For
instance, Kurbanov points to Appellants’ focus on the raw number of viewers and other
attenuated contractual agreements with U.S.-based businesses. But, contrary to
Kurbanov’s contention, the Websites’ large audience in Virginia for alleged music piracy
and the sale of visitors’ data to advertising brokers are what gave rise to Appellants’
17
copyright infringement claims. See Bristol–Myers Squibb Co., 137 S. Ct. at 1780
(recognizing there must be “an affiliation between the forum and the underlying
controversy, principally, [an] activity or an occurrence that takes place in the forum State”)
(citation omitted).
Indeed, this is not a situation where a defendant merely made a website that happens
to be accessible in Virginia. See, e.g., Scottsdale Capital Advisors Corp. v. The Deal, LLC,
887 F.3d 17, 21 (1st Cir. 2018). Rather, Kurbanov actively facilitated the alleged music
piracy through a complex web involving Virginia visitors, advertising brokers, advertisers,
and location-based advertising. From Virginia visitors, he collected personal data as they
visited the Websites. To the advertising brokers, he sold the collected data and advertising
spaces on the Websites. For end advertisers, he enabled location-based advertising in order
to pique visitors’ interest and solicit repeated visits. And through this intricate network,
Kurbanov directly profited from a substantial audience of Virginia visitors and cannot now
disentangle himself from a web woven by him and forms the basis of Appellants’ claims.
Thus, we find these facts to adequately establish an “affiliation between [Virginia] and the
underlying controversy.” See Bristol–Myers Squibb Co., 137 S. Ct. at 1780.
In sum, we conclude Appellants’ copyright infringement claims arise out of
Kurbanov’s activities directed at Virginia.
***
As previously discussed, we also find Kurbanov’s contacts sufficiently show he
purposefully availed himself of the privilege of conducting business in Virginia.
Therefore, the exercise of specific personal jurisdiction under Rule 4(k)(1) is appropriate
18
if it is constitutionally reasonable. 9 We recognize the district court did not perform a
reasonability analysis in the first instance, so we cannot address this prong on appeal. See
Lovelace v. Lee, 472 F.3d 174, 203 (4th Cir. 2006) (emphasizing that we are “a court of
review, not of first view” (internal quotation marks omitted)). Accordingly, the district
court on remand should perform the required reasonability analysis.
IV.
For the foregoing reasons, we reverse the district court’s ruling and remand for
proceedings consistent with this opinion.
REVERSED AND REMANDED
9
Having reached this conclusion, we need not address whether personal jurisdiction
is appropriate under Rule 4(k)(2).
19