CCB Awards $1,500 for Infringed PhD Thesis Interview

In May 2018, Catalina Maria Jaramillo interviewed Jairo Velásquez, better known as “Popeye.” At the time, Jaramillo was a PhD student at the University of Edinburgh and had flown to Colombia for the interview as part of her thesis work.
Velásquez, up until his arrest in 1992, had been a high-ranking member of the Medellín Cartel and was known to be a hitman for the cartel. In the interview, which lasted almost an hour, Velásquez talked a great deal about his past, and it was one of the last interviews he gave before his death in February 2020.
Jaramillo never wanted the interview released. It was meant to be used solely for her thesis and nothing else. However, according to Jaramillo, the videographer she hired, Sebastian Lugo Xibille, distributed portions of the interview on various platforms, including YouTube, Instagram and Facebook, starting in early 2021.
To make things more bizarre. Though the interviews contained the same material, Lugo had another woman, Juliana Andrea Duque, sit in Jaramillo’s place. Though the questions were the same and Velásquez’s answers were original, Durque replaced Jaramillo in both appearance and voice.
Jaramillo then filed DMCA takedown notices against the services, only to have Xibille file counternotices against the videos. This, in turn, prompted Jaramillo to file the claim before the Copyright Claims Board in December 2022.
The board ultimately sided with Jaramillo, awarding her $1,500 in damages. But while it’s a victory for Jaramillo, it’s also bittersweet. Duque, not Xibillie, was found liable, and no one responded to the case, making this a default judgment.
Background of the Case
When Jaramillo first filed the claim, she only listed YouTube as a respondent. However, the board ordered her to amend the complaint, and when she did, she added Xibille and Duque as respondents.
However, YouTube quickly opted out of the case, removing them as a potential respondent. Though she completed service to Duque, she could not do so with Xibille. After multiple failed attempts, the Copyright Claims Board dropped Xibille as a respondent.
This only left Duque as a respondent, and the case moved forward with that. However, Duque never participated in the case, missing every deadline and request for an appearance. As such, the CCB has issued a Default Final Determination in the case, ordering her to pay $1,500 in damages.
How the board reached that amount is unusual. Historically, the CCB has used a multiplier of the actual damages (usually 3X) to determine damages. However, in this case, there were no actual damages. Jaramillo openly acknowledged that this was not commercial and that she lost no revenue from its publication.
Instead, she was deprived of her right to decide when, where, if and how the interview should be published. Usually, when there are no actual damages, the CCB has opted to award the minimum statutory damages, $750.
However, in this case, the board opted to apply its “sense of justice” and double that amount to $1,500. That is how the board reached the final amount.
In addition to the copyright question, the board also weighed in on Jaramillo’s misrepresentation claim. She argued that the respondents had repeatedly misrepresented information when filing counter-notices.
However, the board found no evidence that Durque had been a party to those counternotices. The board noted that there was evidence against Xibille but not Durque. As such, the board dismissed those claims without prejudice.
Analysis of the Case
The facts of this case are truly bizarre. It’s not often that a copyright case features a cartel hitman, a dubbed-over interviewer and a PhD thesis interview being made public.
However, the board’s ruling makes it clear that the outcome was due to pretty mundane facts. YouTube opted out. Xibille was never properly served. For Durque, the infringement was relatively straightforward.
Given that Jaramillo has a registration in the original video and Durque did not respond in any way, there wasn’t much for the board to consider. Jaramillo owns the original interview, and Durque contributed to an unlicensed derivative of that video.
Even the misrepresentation claim is straightforward. Durque’s name wasn’t on any of the counternotices. Though she participated in making the infringing work, she didn’t participate in the misrepresentation.
What is interesting is the total damages. This is the first time the CCB has used its “sense of justice” to raise damages like this. While it is an appropriate time, it took an extreme case for that to happen.
According to Jaramillo, she never wanted to release this work. So, in addition to committing copyright infringement, the respondent(s) took that decision out of her hands. This is known as the right of first publication, and courts have historically come down hard on infringers that took that from creators.
This, in turn, is another consideration potential claimants must think about when trying to predict what damages the board is likely to award.
Bottom Line
Though the case is a victory for Jaramillo, I imagine it may not feel like one. Not only was the main infringer, Xibille, not involved in the decision, but none of this guarantees that the videos are down and/or stay down.
While the decision and damages will help some, they don’t resolve the core issue of the case.
However, this may be the best that she can reasonably do. Given the nature of the case, it’s unlikely that a judgment against Xibille is practical. It’s a frustrating case in that regard.
While this may appear to be further evidence of the CCB’s weakness, what would have happened if it wasn’t an option? Probably nothing. A full lawsuit wasn’t likely practical, especially given that Jaramill resides in Ireland, and there isn’t much money at stake.
Jaramillo did its best in a terrible situation, and I think the CCB also did. While the decision to double the damages likely won’t change Jaramillo’s calculus, it does send a message.
The right of first publication matters, and the CCB’s rulings will reflect as such.
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