BitTorrent Uploader Ordered To Pay $1.5 Million After Not Showing Up In Court
from the default-judgment dept
Torrentfreak has the story of a default judgment against someone for infringement of some porn videos, in which Kywan Fisher has been ordered to pay $1.5 million for uploading 10 movies. Default judgments are basically what happens when the other party doesn't show up in court. Many judges will then enter a judgment against them, more or less accepting everything that the plaintiff says and asks for. Courts don't have to accept the plaintiff's claims in default judgment cases, but too many judges just rubberstamp such requests, and that seems to be the case here.Unfortunately, copyright trolls will now use this ruling to threaten more people into paying up. They'll ignore that the facts here are a bit different than ordinary cases. Here, beyond it being a default judgment, the copyright holder, Flava Works (whose name you might recognize from another case where they haven't fared well) has additional evidence against Fisher. Apparently Flava Works watermarks files that paying customers access. In this case, Fisher was a paying customer who then took the works -- with watermarks intact -- and posted them online for others to download. So, there's significantly more evidence against Fisher, beyond just an IP address.
Even so, it's a bit disappointing that the judge simply accepted what Flava Works asked for in terms of the award. Flava Works justification for the $1.5 million figure is tremendously disingenuous:
Plaintiff seeks statutory damages for willful infringement of $1,500,000 for the willful infringements of 10 videos that were downloaded 3,449 times. Exhibit “E”. Defendant caused 3,449 infringements of the Plaintiff’s videos. Plaintiff is seeking the maximum statutory damages of $150,000 per infringement. $150,000 times 3,449 infringements is over $517,000,000. Thus, Plaintiff, Flava Works, Inc.’s request for an award of $1,500,000 is very reasonable.Except... Flava Works is being misleading. The statute on statutory damages (17 USC 504) makes it clear that statutory damages are to be awarded per work, not per infringement. So the whole point about 3,449 infringements and a possible award of $517 million is way outside of what the law actually says is allowed. Yes, others have tried this "per infringement" argument rather than "per work" before, most memorably in the Limewire case, where the judge outright rejected that request, noting that statutory damages are to be awarded per work infringed, not per infringement. In the end, the court in this case goes with $1.5 million, which is the upper bound for what it can really provide as statutory damages, so it doesn't appear that the court went beyond what was allowed, but hopefully it wasn't influenced by that ridiculous $517 million claim into thinking that $1.5 million "is very reasonable."
In all likelihood, as often happens, the fact that it was a default judgment situation led the judge to just go with $1.5 million -- the maximum possible amount under the law. The problem, of course, is that this number isn't "very reasonable" at all. It's way way out of line with the action. Even if we grant that 3,449 people downloaded the work, and each would have paid, say, $20 otherwise (to choose an arbitrarily high number) we're still talking less than $70,000. And that's even assuming that everyone who downloaded would have bought at such a ridiculously high price -- an obviously laughable assertion. In other words, while statutory damages don't need to relate to actual damages, it's not difficult to look at this and think that the award is still ridiculous, even if you feel that there's sufficient evidence to suggest Fisher did break the law.
And, once again, we're left with a situation that creates even less respect for copyright law. From the (one-sided) evidence presented by Flava Works, it certainly seems much more likely that Fisher broke the law, and as such I don't think there's any issue with him losing the lawsuit (though, as a default judgment we have no idea if he has a legitimate defense). But a $1.5 million award just seems so out of proportion to reality that the court really ought to have gone with something slightly more reasonable. Not that Flava Works will ever collect from Fisher, but it's doubtful anyone really cares about that. The whole point of this is to get the judgment on the books so that Flava Works and others can now use it on tons of others.
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Filed Under: bittorrent, copyright trolls, default judgment, statutory damages, uploads
Companies: flava works
Reader Comments
The First Word
“Attention idiots:
"From the (one-sided) evidence presented by Flava Works, it certainly seems much more likely that Fisher broke the law, and as such I don't think there's any issue with him losing the lawsuit"The "Mike has never once come out against pirates" bullshit is officially over. Granted, it was over long before this, but I'm stamping this one as being a completely invalid argument, for ever and ever, A-fucking-men.
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Attention idiots:
The "Mike has never once come out against pirates" bullshit is officially over. Granted, it was over long before this, but I'm stamping this one as being a completely invalid argument, for ever and ever, A-fucking-men.
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Re: Attention idiots:
Not that that's going to even slow down the troll's use of it.
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Re: Attention idiots:
Sorry, but that won't matter one iota to inbred fools like ootb and bob. They will continue to post the same crap despite evidence to the contrary.
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Re: Re: Attention idiots:
Then he compares the judgement to the cost of buying the good legitimately. That's not how punishment works. You don't get to rob the bank and, if you're caught, hand over the ATM card and say, "Okay. Go ahead. Take the money out of my account." You don't get to beat up somebody and then simply pay their doctors' bills afterwards. Punishment exists as a deterrence.
Only a loon around here would call this a hard-hitting editorial that's coming out against piracy.
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Re: Re: Re: Attention idiots:
Do you think that this poor bastard cost this company 1.5 million dollars? Do you think it's even close?
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It's quite clear that bob and numbers don't mix well.
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Good info, though.
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Re: Attention idiots:
I wish all piracy could actually be stopped.
This would remove one of the purported reasons for wanting to censor the Internet. No more trying to stop legitimate technology just because it can be or even is being used for piracy. No more shutting down servers on mere accusation without any due process.
Why stop piracy? I'll use an example. As a Linux guy, I have for fifteen years wished that every user of a pirated Windows system had to pay full retail price for the software. Piracy of vendor lock-in products diminishes the motive to get unlocked from the vendor's shackles.
Similarly as with software, forcing everyone to pay extraordinarily high monopoly prices for music, tv, movies and books would help grow the 21st century competition. (Gee, just as it is doing for scientific journals and college textbooks.)
The dinosaurs would either compete on features, availability, easy of use and price, or they would go extinct much quicker. Just as big screen tvs and nice sound systems are diminishing theater attendance.
So STAMP OUT PIRACY! Please.
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Re: Re: Attention idiots:
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Re: Re: Attention idiots:
The governments around the world aren't trying to censor the Internet because of piracy. The governments want to censor the Internet, and piracy is just a convenience excuse. If all piracy stopped tomorrow, we'd see the same bogus break-the-Internet legislation coming up time and again, and this time the justification would be "child pornography" or "terrorism" or something else.
The governments around the world are literally frightened by this whole Internet thing that caught them completely by surprise. The Internet represents the best communications platform known to man.
With the Internet, the average man on the street has access to practically the entire world's knowledge. That means more educated citizens, which makes it harder for the government to deceive and confuse its people. The Internet has enabled things like Wikileaks, making it far harder for governments to hide their dirty laundry than ever before. The Internet enables the average person to broadcast their views, opinions, and analyses to the whole world, diluting the propaganda power of the traditional news networks that usually say whatever the government or their corporate masters want. The Internet has also enabled average people to communicate with each other over long distances in ways that the governments can't spy on.
That's why most governments around the world--and especially the US government (and Obama's administration most of all)--view the Internet as the greatest threat to their power. That's why these governments will go all-out to try to tame it or shut it down.
Maybe, just maybe, when the current generation of politicians die off, we will see an improvement to this situation as more people that grew up with the Internet take seats of power. But we'll still probably have to endure another 40 years or so of fighting off SOPA, PIPA, ACTA, TPP, etc. as they emerge in new forms every few months.
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Re: Re: Re: Attention idiots:
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Re: Re: Re: Attention idiots:
Ever wonder why the most administrations are just like the old ones?
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Re: Re: Attention idiots:
Easily done. Kill copyright.
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Re: Re: Attention idiots:
It can. Things that are freely available, like Linux, cannot be pirated.
Fix the business models built on artificial scarcity of easily copied material and piracy will be gone.
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Re: Re: Attention idiots:
And wouldn't change the outcome ONE BIT cause the darn bastards behind these things are out for control and not above using any far-fetched reason to get there.
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Re: Attention idiots:
So he admits that an obvious pirate is an obvious pirate. So what? Stating that obvious fact doesn't mean he's not anti-copyright and pro-piracy.
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Re: Re: Attention idiots:
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Re: Re: Attention idiots:
You include those two descriptions as if they go hand-in-hand. They don't.
You can be opposed to current copyright laws while also not being in favor of "piracy."
If you can't see the nuance, your bias is getting in the way.
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Re: Re: Re: Attention idiots:
You can be opposed to current copyright laws while also not being in favor of "piracy."
If you can't see the nuance, your bias is getting in the way.
LMAO. Yeah, Pirate Mike hates copyright, but he's not siding with the pirates, who also hate copyright. Bullshit. Mike never supports a right holder who enforces its right against a pirate. There is no nuanced bullshit middle ground where Mike hates copyright with every cell in his body, but at the same time he's rooting for the victims of the pirates, i.e., the rights holders. Absolute bullshit. And Mike is too fundamentally dishonest of a person to ever, even once, just admit directly what he honestly believes.
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Re: Re: Re: Re: Attention idiots:
Its all of you, and Mike who always encourage him to continue his verbal diarrhea.
Idiots.
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Re: Re: Re: Re: Attention idiots:
that's the only message I ever get reading an article by mike
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Re: Attention idiots:
/s
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Re: Attention idiots:
are you actually even reading the same article ? he's backing the pirate all the way, far as he can, even as he is admitting his guilt !!..
and you call that 'against pirates', read it again DH, or even for the first time !!.. OMFG,
talk about rose colored glasses.
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Re:
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It's clear Mike is against the copyright holder:
... [blockquote] ...
Except... Flava Works is being misleading."
"even if you feel that there's sufficient evidence"
This one is a classic Mike-ism:
"From the (one-sided) evidence presented" -- by one party to a law suit, as if parties EVER present the other side. It's a basically stupid notion of what goes on in courts. - And IN A DEFAULT JUDGEMENT where defendant (for whatever reason) didn't show, Mike sez it's one-sided!
So, yes, fanboys / trolls / pirates, Mike is FOR piracy. [I made the mistake of reading comments. But thanks for advance build-up, guys, gives my posts so much more attention.]
Anyway, if Mike would stick to railing against excesses -- whether it's "damage" awards like this, or indefinite extension of copyright, or Google scraping up and storing every bit it possibly can, or Bill Gates getting tens of billions for the mountain of crap that is Windows -- then we'd be largely aligned.
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Re: It's clear Mike is against the copyright holder:
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Re: Re: It's clear Mike is against the copyright holder:
Hasn't_got_a_clue said that in the Open Wifi is a Good thing article.
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Re: It's clear Mike is against the copyright holder:
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Re: It's clear Mike is against the copyright holder:
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Wait...People actually PAY for porn????
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Lesson learned...don't pay for porn.
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He probably doesn't even know how to torrent if hes paying for porn, and likely had his files taken off his computer unwillfully and now has a multi-million dollar judgement against him... his only crime being that he paid for porn and didnt know how to protect it.
Lesson: dont ever EVER pay for pron.
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Re:
Now, most people can't make it though the day without *inadvertently* infringing, let alone those that do it willfully-- and all without much, if any, up front cost. This means that people who have little to no extra income can infringe on a scale that copyright holders will notice, but without any money being involved.
The law just needs to be adjusted to where your average citizen sharing not-for-profit doesn't break the law. Of course, since that will never happen, we're better off just ignoring the law all together, and maybe it will go away.
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1.5 Million is BULLSHIT !!!
FUCK YOU JUDGE & Your Corrupted Damn Court.
So, the guy shared some films............Big Frakkin Deal.
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Damages computations for infringement
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Commercial vs. noncommercial infringement
I really think we need a separate set of damage limits for instances that are non-commercial in nature.
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Default Judgment
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Re: Default Judgment
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Stupidity
1. Pay for porn.
2. Putting up files that could be traced back to him.
3. Not showing up in court and...
4. For not getting his money back!
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Enslaved
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let me do some math
150,000,000,000 haha
lets see that will take me
1.5 billion months
i hope you take the all new DEADcard a visa that keeps working after your dead....
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Numbers so high, they cease to have meaning
Because when it comes down to it, to your average citizen, 1.5 million may as well be 100 billion, in that both are amounts that they are never going to be able to pay off, and so a 'reasonable' fine like this is something that's going to be affecting them the rest of their lives.
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Let me get this right. So even though the case against him was FILED OVER A YEAR AGO, you think that his failure to respond to the summons or participate in the proceedings FOR THE PAST YEAR are because of Hurricane Sandy. Right. You fit in well around Techdirt, my nonthinking, noncritical, and moronic friend. Pirate Mike welcomes you to his fold.
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The "Mike has never once come out against pirates" bullshit is officially over. Granted, it was over long before this, but I'm stamping this one as being a completely invalid argument, for ever and ever, A-fucking-men.
"Except... Flava Works is being misleading."
"The problem, of course, is that this number isn't "very reasonable" at all. It's way way out of line with the action."
In other words, while statutory damages don't need to relate to actual damages, it's not difficult to look at this and think that the award is still ridiculous, even if you feel that there's sufficient evidence to suggest Fisher did break the law.
(though, as a default judgment we have no idea if he has a legitimate defense).
YOU KNOW HE DOES NOT, otherwise he would have provided it.
(though, as a default judgment we have no idea if he has a legitimate defense).
DH, it seems to me, that masnick is doing everything, his little brain can think up to be an apoligist for the pirates.
if you can show please DH how masnick has actually "come out against pirates" I for one would like to see it, but it is no where to be seen here.. NO WHERE...
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