US Porn Company Wins Default Judgment Against File Sharer In Canada; Guy Told To Pay $64k
from the suing-fans-is-not-a-business-model dept
Suing fans is not a business model. And yet, so many companies still do it. We've written a few times about porn producer Corbin Fisher/Liberty Media, who has become a very aggressive supporter of mass lawsuits against fans who it accuses of sharing its works. This is a dumb business strategy. The company, obviously, thinks it will reduce infringement, but I can't fathom how it thinks this will get anyone to ever want to purchase from the company again. Perhaps it thinks it can stay in business through legal fees collected. For example, it sued some guy in Canada for sharing two of its movies, and since he didn't come to the US (though he had sent a letter) to defend himself, the court granted a default ruling in favor of the company, though (thankfully) it disagreed with the company's ridiculous assertion that merely using BitTorrent proves willful infringement. There are some who believe that a default judgment (when the defendant doesn't show up), means that the plaintiff always wins. It doesn't need to work that way, and we have seen courts actually rule against plaintiffs even under such circumstances though it's incredibly rare. Still, the end result is that the court has ordered the guy to pay nearly $64,000.
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Filed Under: canada, copyright, default judgment, movies
Companies: corbin fisher, liberty media
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Simply because someone claims you've violated copyright on a movie, you're stuck with either A) Bankrupt yourself on trips to the US to defend yourself in front of a Judge that doesn't even understand basic jurisdiction issues and/or doesn't care, or B) Bankrupt yourself when said judge places a default judgment on you for more than fifty thousand times the value of the video because he doesn't care whether or not you as a private citizen can properly defend yourself from potentially halfway across the continent?
This is why this extortion racket BS has to be put down like a rabid dog already.
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What are you talking about? San Diego is closer than Toronto.
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This isn't Apple vs. Microsoft here, this is copyright bully vs. private citizen. Civil suits against private citizens have jurisdictional procedures for exactly such reasons as this, so that the defendant cannot be financially bullied into these scenarios. This is why even Sony's lawsuit against Hotz was tied up in jurisdictional issues for so long.
While the fact that he did not defend himself could count against him under normal circumstances, the absurdity of the expectation that he defend himself over such a long distance could potentially still allow him to make the case on appeal that he did not do so out of the fact that it would have been just as financially devastating for him to do so than to simply allow a default judgment. Especially when faced with a judge that apparently cares so little about the defendant's location or his capacity to defend himself.
Even Eastern Texas judges are smart enough to kill mass infringement suits within the states based on jurisdiction.
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Just curious, why don't you think there's jurisdiction? I'm not saying there is, but I'm wondering if this is based on any sort of legal analysis or just a gut feeling.
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I'm not saying for sure that he wouldn't have any connections since I obviously don't know about his personal life, but I find it unlikely that he would, and in the absence of any indication that there are, it is supposed to put the burden of proof on the plaintiff to show that the defendant does.
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Add to this the international implications (he lives in Canada) and the proper thing would have been to sue him IN HIS JURISDICTION, not the companies.
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Remember that to show it they would of had to have actual probable evidence from his computer, that is housed in Canada, where no subpoena to produce that computer as evidence has ever been filed?
As for the Default ex parte judgement... The long arm of US Courts in civil matters for private individuals that have NOT been found guilty whether on preponderance of evidence or upon balance has no jurisdictional weight anywhere other than the jurisdiction where the court resides and definitely no jurisdiction in another country.
In fact in this matter the judge themselves should of transfered this to a more appropriate jurisdiction, Canada no matter what some think does actually have courts that can hear this, under forum non conveniens.
In fact I do not see how the plaintiff in this case, knowing the respondent was wholly within Canada, could show that justice required the action to take place in the court where it did. Seems that both the court and the plaintiff has fallen down on their obligations towards the respondent, and their obligations under comity especially since their was foreknowledge that this was going to be an ex parte matter.
My advise would be for the respondent to immediately seek injunctive relief against the plaintiff (and the court???) to either set aside (best outcome but low probability) or to transfer to a Canadian court under Doctrine of Comity. Then both the plaintiff and the respondents can show causes and defences against what they want in the jurisdiction where the actual allegation of infringement actually would of taken place!
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You look at where you are getting your stuff from, you limit yourself to a single IP as source, that IP is from Calgary. Bingo, he was making the file available in California, and was helping to transport it to California (interstate commerce rules may apply).
As this is related to porn, please note that almost every porn obscenity prosecution that has happened has occurred as a result of porn being made available in a place where it is considered illegal, or that the community standards for porn are very low. The location of prosecution was where the material was received.
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No, actually, the alleged infringement would have occurred in Calgary, thus removing them from the jurisdiction. Since no one argued this before the judge, default judgement. Some judges really don't care so long as they get the docket cleared.
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Good for you, Still has no relevance to the case at hand.
Bingo, he was making the file available in California, and was helping to transport it to California (interstate commerce rules may apply).
No you were receiving the file, he was allegedly making the file available from Canada and you were KNOWINGLY pulling that file(s) from Calgary to wherever you are in the USA across international lines.. Interstate commerce rules are only relevant if it is in the same country.
As this is related to porn, please note that almost every porn obscenity prosecution that has happened has occurred as a result of porn being made available in a place where it is considered illegal, or that the community standards for porn are very low. The location of prosecution was where the material was received.
Whether this download was Porn (which is not a defined word under law), or even obscene to any reasonable person is absolutely irrelevant to this case and you are just creating a strawman argument. Porn has nothing to do with the case and I can guarantee that if it did Mr Randazza would of been very hesitant to of been lead counsel for the plaintiff since he is adamant about 1st Ammendment situations in regard to so called porn (or Obscenity as it is really known as). Also I highly doubt the Movie in question was illegal in the place where it was allegedly 'made available' since if that was the case the plaintiff's would of had no cause of action since you cannot sue for someone being an accessory to your own illegal criminality.
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Since the defendant didn't challenge jurisdiction, it's hard to know why the plaintiffs supposed basis for jurisdiction wouldn't be enough.
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Great
Actually that's not much of a loss.
Blame Canada!
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But when your paying top dollar to a firm, that has created honeypots in the past, to get you IP addresses you need to strike while the iron is hot.
I thought after the terms of service on the CF website being changed to the ridiculous "even if your hacked you owe us $25,000" fiasco, that "Mr." (I use the term loosely) Randazza tried to claim never existed, they might figure out that the backlash would be greater than any reward or wins.
While Randazza is currently trying to get pass the Nevada bar so he can work from the new studio based there, one might want to consider how well they will do as more people grow weary of their tired content and public displays of stupidity. Heck even the German IP gathering firm opened a strip mall office there, so this might just be ramping up. As people grow more weary of this studios antics I hope to see them decline even faster to the same level as Perfect 10, filing lawsuits rather than doing anything.
When a "classic" (HA!) gay for pay studio then opens a division to show them in bi-sexual scene to help prop up the illusion of them being straight, you might think they could figure out what they were doing wasn't working any more.
Before Randazza shows up and calls me a pirating evil scum, I did actually support you suing the guy selling your movies on eBay. That is exactly what copyright law is meant to stop. However maybe the money you think your studio is loosing to "filesharing" isn't actually why your loosing money.
Maybe its because people are tired of the recycled "plots"... I mean a formula is a good thing, but when you just keep sticking the same blonde toned guy into the same step by step formula every time the viewer eventually gets bored. Considering the movies being shared are from the "golden age" of the studio should also point out that your market share is slipping because you just expected people to keep paying for the same thing that worked before.
Oh and given your "colorful" public statements, that have been so well received by your target demographic... do you think you might have anything to do with a bigger dip in your profits?
You'd like to create the illusion you have money to burn on this antipiracy crusade to help keep extorting people, but demands of $25,000 aren't likely to get many people to pay up. Oh and the well you were a customer once so its only $12,500, well thats an awesome reason to sign right up.
So kudos on "winning" again, I'm sure you can scare some of the uninformed into just accepting you can actually prove your claims against them. But remember, some of us out here are actually educated on your scam and if your dumb enough to take us to court we'll tear apart the honeypot companys methods... and then you won't have any business model left.
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Umm..
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The Canadian court may or may not do so, depending on how they treat default judgments and jurisdiction issues.
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But think about it. The US judge got paid, the porn industry got paid. It's pure and simple money from a foreigner for these guys, why not take advantage of it? I'm surprised we don't heard about that sort of corruption more... then again, it looks pretty normal there, so yeah.
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What? He get's paid regardless of whether this case is filed.
"the porn industry got paid."
Um, link? A judgment =/= payment.
I don't think you really know what you're talking about, but have fun with your speculation.
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Not in the traditional sense, but this becomes another one of the weapons being used in these mass shakedown cases.
Even Steele pointed to the $250,000 judgement LMH managed to get in one of their cases. Now on the surface, that adds a level of terror to people guilty or innocent of the allegations. The offer of a couple thousand to avoid public embarrassment and awards reaching well beyond the means of most people sounds so much better.
However when you look into this $250,000 "award", it was a negotiated settlement. The terms of the settlement read as long as the poor SOB they scared into admitting his guilt (by matching the records of his logins on CF and the times up uploads on a torrent site.) makes his regular payments the $250,000 amount is reduced. As long as he behaves and never ever violates anyones copyright every again the amount keeps going down. Given the claims of playing music for cows violates copyright, I think hes screwed. The Win was psychological, and the coverage of that win, but not the terms, scared more people into accepting "settlements" with just as draconian terms, including if you ever violate anyones copyright ever again your on the hook for the remainder of the $25,000 the settlement is for.
So this is a wonderful PR device and not much more. They will get a few more people to sign up for future shakedowns by LMH et al.
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These cases are about not about the law.
These cases are to get thousands of names for $350.00, and then scare those people into settling the allegations for a small amount.
When the 60 yr old who had the cable guy hook up the upsold wireless router, he had no idea it was open. Then he gets a letter telling him we can prove you downloaded gay porn and we are being nice and before we tell the world your gay, pay us an it all goes away.
If your not very Google savvy, you find the reports of the judgements handed out in these cases. You see these huge awards and decide its better to pay this extortion than to try to defend yourself against a case naming you.
But the case isn't naming you yet, and several Judges have ruled the Does have no right to keep their records from being released.
The methodology in these cases has never been questioned, despite several attempts by various porn lawyers using dubious techniques and outright lying to file these cases.
So this is not about case law, this is about scaring people with reports of large awards in these cases so they pay up faster to settle what could be factually deficient allegations.
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Internet companies do not generally install open wireless units anymore. They understand the liablity, and now install units with appropriate protections on them. The only open wireless units would be one that the end user added themselves, which creates liablity for them.
Second, a default judgement can't be used to establish any case law, nor for that matter can any settlement before judgement. If you look only for argued and settled cases, you won't find many.
That being said, almost all of the famous cases in this area have been lost by the defendants. There is certainly caselaw out there now.
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The goal of this "win" in court is to add another dollar amount to the large reported number they have won against people they have sued. They use this large pool of money they have "won" to scare people who lack the resources to get someone to explain the law to them. They use this huge number to create more fear, and help ensure a settlement is paid without much fuss.
Companies also should avoid the liability of leaving cables draped across peoples yards, but they do. Best practices on a handbook and reality are often in opposition.
And for all of the "famous" lost cases, lets not forget the people who didn't own computers who were sued for downloading. Let us not forget the man who spend his last dying days fight off these vultures, and then they lawyers gave the family a few days to grieve and then claimed the father was going to settle with them. Let us not forget the laser printer that has gotten multiple take down notices for sharing the motion picture "The Matrix", something that is IMPOSSIBLE for that machine to do. And lets put the cherry on top of the latest USCG filing including the public Google DNS address 8.8.8.8 as a downloader.
You seem to be disingenuously trying to suggest these settlements are reached in court and these cases are being filed naming individuals, you might want to stop lying. I know its in your nature as a lawyer, but truth is still truth.
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Blizzard - $88 million dollar default judgement
Jammie Thomas Raisset - $1.5 million dollar judgement
Whitney Harper - $30,000 "Innocent Infringer" defense
So here's the question. How does this make copyright even more respected?
How does it stop infringements? How does this cause others to settle these lawsuits?
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Home ownership
Boat ownership
Event attendance
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(Hint: 4F16)
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The porn industry will then everything to get their money. So.. I don't think you really know what you're talking about, but have fun with your speculation.
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That is why if you are found guilty in a court of law matters globally.
That is what you support, when you pay anything to those people, that is why they won't see a penny from me ever.
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I can't find either movie listed.
http://www.ic.gc.ca/app/opic-cipo/cpyrghts/dsplySrch.do?lang=eng
Canadian Policemen seize him, for what?
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To enforce it in Canada they need a Canadian court order which if the defended decides to fight can turn into a retrial according to Canadian law.
The most they can do is hire a collection agency to harass him and cease any assets he might have in states.
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Uhm... no. The US warrant/ruling is NOT valid in Canada. Cops in Canada would never go to his house. If US cops tried to, he could get them arrested for stealing (not seizing) and kidnapping (not arresting). That's what his lawyer most likely told him. Ignore it, and don't go back there... who would want to, anyway?
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Bs
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Might as well be a $4 judgement.
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Might as well be a $4 judgement.
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I thought Canadians didn't fight, they play hockey.
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It seems that Sperlein does not even collect IPs - he picks random AT&T dymanic addresses and makes up dates. (http://fightcopyrighttrolls.wordpress.com/2011/06/16/does-1-244-is-the-entire-complaint-bogus/). Randazza is Sperlein's buddy, so I'm sure there was a fruitful know-how exchange.
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Work it off...
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Not really an issue...
Right?
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pretty sure copyright doesn't... well, at least as long as he doesn't want to visit the US for any reason. not so sure then.
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Cost of two movies - ~ $20 (on DVD, assumed from normal costs of DVDS)
Cost of infringing both movies - $30,000 per infringement and a permanent injunction of "stealing" from Corbin Fisher.
"Corbin Fisher has won a number of judgments against illegal file sharers, including notable victories which shut down tube site DudeVu and a $1.75 million judgment against DVD counterfeiter Eric Brown."
Corbin Fisher - Confirmed copyright troll. Also, confirmed asshole for outing someone that just wants to live life.
Now here's a good question. What judge in their right mind agrees that statutory damages makes logical sense to someone out of the country?
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Oh, there's no judge of the internet? Good.
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http://www.xbiz.com/news/135137
Nope hes not using this to scare others into settling...
Not even a little bit...
Wanna buy a bridge in Brooklyn?
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What would happen if the defendant sued the plaintift in Canada for this?
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Throw it at the wall - maybe it will stick
Think of the starving artists. Traveling thousands of miles for a court appearance in a foreign country is a small price to pay for the outstanding product you love to steal.
I'm just doing my job. You give me that "juris-my-dick-tion" crap... you can cram it up your ass.
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Re: Throw it at the wall - maybe it will stick
Couldn't the US extradite the guy? The US could lie to a Canadian court (again) to get the guy extradited?
Or try this one. Since this involves being accused of a crime of the highest order (alleged copyright infringement!), couldn't the US send in a secret seal team to capture the guy? Cost and personnel should be no issue -- THIS IS ALLEGED COPYRIGHT INFRINGEMENT we're talking about for God's sake! All resources and powers of the US government must be used! Get DHS involved! Get TSA to give someone a really through patdown! Twice!
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Good luck collecting it
I have seen a tax cases where the IRS tried claimed claim revenue, an over seas casino attempt to collect, etc. The list goes own... Canada does not enforce an external claim of allegedly owed money (even back taxes from another country).
As this owed money is typically a civil action it does not mean squat. In rare cases, when the US federal government is involved it might impact your ability to enter the US.
Now if they could actually dream up some International commerce rule related to porn then the police would be evolved and the individual might get arrested but in the end he still does not need to fork over a dime to the copyright holder.
In this case the copyright holder just wasted their money on their lawyer as the possible net return is zero.
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What, so anyone who steals from a particular manufacturer is a "fan" !!
First, how on earth could you call him a "fan" ?
No, he is not a fan he is a criminal. He buys ONE copy and sells at LEAST 2 others, therefore the original sellers only made 1 sale when they should of made 3.
He is not a fan he is a direct competitor, and criminal.
Mike, do you believe the person who sells Rolex watches that are fake does so because he is a massive fan of Rolex ? and the quality of their product ?
It's a bizzare world you live in sometimes Mike..
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Re: What, so anyone who steals from a particular manufacturer is a "fan" !!
He bought merchandise from the company, therefore he is a fan.
"No, he is not a fan he is a criminal. He buys ONE copy and sells at LEAST 2 others, therefore the original sellers only made 1 sale when they should of made 3."
Infringement is not a criminal offense: he is not a criminal until after he is found guilty of criminal (not civil) charges.
I see you're also employing the **AA's proven to be false method of counting lost sales.
"He is not a fan he is a direct competitor, and criminal."
Since you missed it, here it is again: bought product=fan; had civil charges brought against him /= criminal.
Clear yet? (don't answer, I already know)
"Mike, do you believe the person who sells Rolex watches that are fake does so because he is a massive fan of Rolex ? and the quality of their product ?"
I can't answer for Mike, but my answer is no, and no. But this has absolutely nothing to do with this case and you know it. Nice red herring though! ;)
"It's a bizzare world you live in sometimes Mike.."
We all live in it and yes, it is bizarre. No one is arguing that.
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Re: What, so anyone who steals from a particular manufacturer is a "fan" !!
He was accused of copyright infringement for either uploading or downloading via BitTorrent. He at no point was paid by each person who allegedly got any portion of the content from his alleged sharing of the file.
And yes he would qualify as a fan, because I can not see someone allegedly spending their money and time to share gay porn when they are getting NOTHING in return.
You sound like one of those smart pornstars who write open letters and have no grasp of the real concepts at play other than what the xbiz checklist of issues tells you to care about and mention.
Given the outcome of the MPAA and RIAA campaigns that proceeded the wave of porn producers declaring war on their fans, I would have hoped that an industry known for innovation would have tried something better.
But the porn industry is filled with people who face greater competition from amateurs putting out more desired product for free. They make their money by offering limited things, and they connect with their fans rather than sit behind a paywall and trying to stuff 40 ads per inch on each screen. They understand that if people can see what you offer, they will buy more if they enjoy it and the price is right.
Rather than be stuck in the VHS business model, maybe wake up and look at how much reproduction of digital media really costs and adapt the market. Buggy makers used to make alot of money from their product, they aren't around much these days, but a few when from horses and used their skills to create railroad cars. Adapt or die...
That or sue everyone and see your sales die off even faster.
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Can't win if you don't play.
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