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Judge Tells Music Pirates to Knock It Off

(CN) - A federal judge ordered two webmasters in Asia to stop making a South Korean record company's music available for free downloads.

DFSB Kollective and subsidiaries sued Bing Yang and Indrawati Yang for copyright infringement: making its music available for download on several blog sites.

DFSB claimed the men illegally upload its music onto third-party websites and use its album artwork to direct users to those websites, where they can download the music.

Bing Yang lives in Vietnam and Indrawati Yang is from Indonesia. Neither one answered DFSB's complaint or made an appearance, so DFSB filed for default judgment.

A magistrate judge recommended that the court dismiss and deny judgment for lack of personal jurisdiction and improper venue.

DFSB's last attempt to prosecute foreign infringers in a U.S. courtroom ended last year with a different magistrate finding that DFSB failed to show it suffered harm in California.

But U.S. District Judge Claudia Wilken in San Francisco found that this case is different.

"Plaintiffs have now cited evidence which shows that many of the third-party advertisement on defendants' websites specifically targeted California residents," Wilken wrote. "For example, one of Indrawati Yang's websites showed advertisements for Groupon Los Angeles and AAA of Southern California. In addition, plaintiffs have provided evidence that the United States is their largest market for sales and that California accounts for a large share of their business in the United States, in part because the music appeals to the large population of residents of Korean descent in the state."

DFSB's previous case, against an Australian infringer, failed because it couldn't show that a substantial number of Californians downloaded its music or were targeted by the infringer's ads. Wilken found that this time the company showed both and sufficiently alleged harm.

"The magistrate judge concluded the plaintiffs made an insufficient showing that 'the brunt of the harm caused by defendants' alleged infringement of plaintiffs' copyrights was felt in California,'" Wilken wrote, citing the magistrate's recommendation. "However, the Ninth Circuit has recognized that the brunt of the harm need not be suffered in the forum state. If a jurisdictionally sufficient amount of harm is suffered in the forum state, it does not matter that even more harm might have been suffered in another state."

She added: "Here, although plaintiffs are not residents of California, they have offered evidence that defendants likely knew that they would cause harm in this state. Plaintiffs allege that, by making plaintiffs' material online for free, defendants significantly reduced the value of plaintiffs' works and decreased the volume of sales and corresponding revenue, including in California. Here, it was foreseeable that this economic loss would occur in California, as well as in Korea where plaintiffs are located. As explained above, a sizeable portion of the value of the music and cover art was based on potential sales in the United States market and in California in particular. That this was reasonably foreseeable is demonstrated in part by the California-targeted advertisements, the number of American users of defendants' websites and the evidence that the demand for Korean music within California is higher than in other parts of the United States. Because defendants caused plaintiffs to lose potential sales in California, a jurisdictionally significant amount of plaintiffs' harm was suffered within the state."

Wilken found default judgment warranted largely because the Yangs failed to make an appearance or file any sort of objection with the court. And since neither Vietnam nor Indonesia is a party to the Hague Convention, she found DFSB's process service by email appropriate under the circumstances.

She issued an injunction barring the Yangs from posting any more of DFSB's copyrighted content on their websites or "providing instructions and/or answering questions on how to find, download and/or stream unauthorized copies of the DFSB plaintiffs' works."

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