Crazy: Judge Grants Copyright Troll Maximum Statutory Damages In Default Case

from the don't-ignore-cases dept

We’ve talked plenty of times about issues with “default judgments” in lawsuits. Generally speaking, if the party being sued doesn’t show up, judges will usually grant the plaintiff’s claim, and issue a default judgment in their favor. The thing is, courts don’t have to issue default judgments, but many courts act as if they do. Even then, the courts have significant power in then determining what the awards are in those cases. So while it’s not surprising that a court issued a default judgment against someone in a copyright trolling case where the person (Gerald Glover) chose not to respond to the lawsuit, it’s somewhat ridiculous that the judge then granted the maximum statutory damages of $150,000 for the claimed copyright infringement (plus another $1425 in fees and costs). As you probably know, statutory damages for copyright range from $750 to $30,000 per work infringed (not per infringement…), but then also allow for the court to increase it up to a maximum of $150,000 in the case where a copyright holder has proven that the infringement was willful.

Given that, it’s somewhat troubling that the court awarded the absolute maximum here. It’s unclear how there is proof of willful infringement. The complaint against Glover just makes general allegation of using BitTorrent to download and share the copyright-covered work, but does nothing to show willful infringement. I recognize that judges will often rubber stamp motions for default judgment, but can’t they at least take the minimum amount of time necessary to note if the awarded amount is proper?

While the DieTrollDie site (which alerted us to this story) notes that it’s unlikely that the copyright holder CP Productions will actually see any money from Glover, what’s much more worrisome is that other copyright trolls will point to this default ruling as proof that simple downloading can get you hit with a $150,000 judgment (skipping over the fact that it’s a default judgment).

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Companies: cp productions

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Comments on “Crazy: Judge Grants Copyright Troll Maximum Statutory Damages In Default Case”

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28 Comments
Anonymous Coward says:

This makes me more worried on the circumstances in which Glover decided not to respond to it. Maybe he thought it was a joke? Maybe he wasn’t properly served? Perhaps he was intimidated to not show up?

I wouldn’t put any of it past trolls, they seem more akin to dealing with the mafia instead of actual lawyers running a business.

Anonymous Coward says:

Re: Re:

I agree, something seems fishy here.

Perhaps Glover isn’t even the correct person, does not exist at all, or maybe he’s dead.

You never know with these jackals, I wouldn’t put it past them.

On the other hand, its a shame the judge granted the maximum penalty for the default, he probably thinks he’s just going by the book… However, as long as there remains some doubt, awarding such ridiculous damages is wrong.

Good luck collecting one cent, or even finding this guy, CP productions…

Anonymous Coward says:

Re: Re: Re:

That’s the truly scary thing, they could very well have the wrong name, or wrong address, or even the wrong person. Someone may have just been hit with a 150K judgement without ever actually being served or being aware of it.

I don’t think it holds up if that is the case, but it’s spooky to think the Judge may have just wrote a blank check for 150K to this questionable company where all the company has to sign in is the name of the poor bastard who has to pay for it.

That Anonymous Coward (profile) says:

Re: Re:

I read the proof of service, they claim he was served in person. No description of the party served given.

The defendant is officially listed as a III (3rd) and the fractional information I could locate about him online suggested that might be his parents home. The troll specifically raised the he might be military but we can’t tell because we lack information. They put a whole bunch of effort into looking into this… a whole couple hours.

This is not the first, most likely will not be the last, where attempting to Google a served party will result in a goose egg.

There was less of a trail for this person than for the party served in a FL case where we got suspicious that the target might have been deceased. The court accepted service to an unrelated female at an address that was not in the defendants name as proof. We located some of the last posts made by the defendant and there was talk of a medical issue and silence for a couple years after those posts.

There is an amazing history of service failures in trolling cases.

BentFranklin (profile) says:

The argument I hear a lot is that torrenting is not willful because people set it up naively and don’t understand they are now serving files to other people. I find this argument rather tenuous. It’s true there are many, many naive users in the wild, but people should be responsible for what they are doing, whether they realize it or not. Second, torrenters are constantly bombarded with messages like “Don’t be a leech”, so I have to think a great many of them do know what they are doing.

Anonymous Coward says:

Re: Re:

Second, torrenters are constantly bombarded with messages like “Don’t be a leech”, so I have to think a great many of them do know what they are doing.

The don’t be a leecg is simply requesting that people play by the rules of torrents. It has nothing to do with indicating legaklity of the file beingg shared.

Anonymous Coward says:

Given that, it’s somewhat troubling that the court awarded the absolute maximum here. It’s unclear how there is proof of willful infringement. The complaint against Glover just makes general allegation of using BitTorrent to download and share the copyright-covered work, but does nothing to show willful infringement.

Order: http://ia700807.us.archive.org/24/items/gov.uscourts.insd.40564/gov.uscourts.insd.40564.25.0.pdf

Amended Complaint: http://ia600807.us.archive.org/24/items/gov.uscourts.insd.40564/gov.uscourts.insd.40564.15.0.pdf

The Order states: “CP seeks statutory damages of $150,000 under the Copyright Act, 17 U.S.C. ? 504, for Mr. Glover?s alleged willful infringement of CP?s copyright. *** The Court finds that CP?s allegations in the Amended Complaint ? which the Court takes as true due to Mr. Glover?s default ? are sufficient to establish that CP is entitled to statutory damages for Mr. Glover?s willful infringement of CP?s copyright, and for attorneys? fees and costs under the Copyright Act.”

The amended complaint alleges willful infringement:

Para. 20: “The torrent file used to access the copyrighted material was named in a manner that would have provided an ordinary individual with notice that the Video was protected under the copyright laws of the United States.”

Para. 27: “Defendant and his joint tortfeasors knew or had constructive knowledge that their acts constituted copyright infringement.”

Para. 28: “Defendant?s and his joint tortfeasors? conduct was willful within the meaning of the Copyright Act: intentional, and with indifference to the Plaintiff?s rights.”

Para. 42: “Defendant and his joint tortfeasors knew of the infringement, were each conscious of their own infringement, and Defendant and his joint tortfeasors were fully conscious that their actions resulted in multiple other persons derivatively downloading the file containing Plaintiff?s Video.”

The part you don’t appear to grasp is that well-pleaded allegations are taken as true in a default judgment. The law in the Seventh Circuit, where this district court sits:

?As a general rule, a ?default judgment establishe[s], as a matter of law, that defendants [are] liable to plaintiff as to each cause of action alleged in the complaint.? … Upon default, the well-pleaded allegations of a complaint relating to liability are taken as true.? Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir.1983) (quoting Breuer Elec. Mfg. Co. v. Toronado Sys. of Am., Inc., 687 F.2d 182, 186 (7th Cir.1982)).

UMG Recordings, Inc. v. Stewart, 461 F. Supp. 2d 837, 842 (S.D. Ill. 2006).

While allegations as to liability are taken as true, allegations as to damages are not. The judge could have given any amount in the statutory range. But as you know, statutory damages are not actual damages. Regardless, you don’t seem to grasp the difference between liability and damages. Since willful infringement was well-plead, the defendant’s default means those allegations are considered to be true. The plaintiff doesn’t have to PROVE it, only ALLEGE it. Sorry you don’t like it, but there it is.

Anonymous Coward says:

Re: Re:

Very informative, thank you


Para. 20: “The torrent file used to access the copyrighted material was named in a manner that would have provided an ordinary individual with notice that the Video was protected under the copyright laws of the United States.””

Hahahaha, now I’m curious what the file was named, or if anyone is even aware that torrents work just fine when they’re renamed or mirrored on another site.

That Anonymous Coward (profile) says:

Re: Re:

IIRC they went after the defendant and his joint foreteasers in those happy legal terms that jointly and severally (sp) liable.
The joint foreteasers should be happy as the matter is now settled and CP has no course of action against them. Defendant could pursue a claim against them for their share of the damages but not CP.

One does wonder if any of the joint foreteasers were sent letters demanding settlements after this case was adjudicated.

Austin (profile) says:

Re: Re:

As noted, willful infringement only requires an allegation, not proof. The only way to defeat the “willful” clause is to defeat the infringement part.

However, since MERE USE OF BITTORRENT is not infringement, that should’ve been easy here. The problem is that, without Glover bothering to answer the lawsuit (Remember, complaints cost money, but ANSWERS ARE FREE!), we have no counter-proof that what he used bittorrent FOR wasn’t infringing. Was it? Probably not, but without an Answer filed, the Judge is legally bound to assume everything in the complaint is fact.

The real issue here is that Glover didn’t respond at all. That’s the problem. Accordingly, there’s nothing as a matter of law or procedure wrong with this judgment, unless Glover wasn’t properly served. As long as service was perfected, this is all, sadly, totally legit and the way the legal system is supposed to work.

Hopefully we will find out he was served at the wrong address or not at all, etc. A LOT of these trolling operations will pay a “process server” (not a REAL process server, but someone who claims to be one) to just sit around and sign affidavits all day claiming they couldn’t serve the guy. Then, they run an ad in the local newspaper with the narrowest circulation (service by publication) and, when the defendant doesn’t somehow hear about the ad in 30 days, boom, default judgment granted.

It’s sneaky, and if the process server didn’t make a good faith effort, it’s illegal. But if he did, or if they tried certified mail and it was rejected, it’s totally legit.

ralph says:

Well, I’m not sure all judges are legal eagles or even have particularly good minds. Mostly, they seem wrapped up in intricate procedures that may or may not make sense. I’d be interested to see a list of judges and how they did in law school.

A lot of them seem very clueless about issues of technology, and they are trying cases intimately tied to technology.

I guess somebody has to be the judge…best to get a VPN and avoid the whole screwed up process.

Austin (profile) says:

Re: Re:

It depends on the specific position, but some judges – including the magistrate judges that often hear administrative law hearings (including trademark, though not copyright) – don’t even have to be lawyers. Neither do probate judges. One county in my state (Alabama) has a cotton farmer as probate judge. Not even kidding.

It’s hilarious the kind of rulings you regarding people’s estates from down there, heh.

Mike says:

Of defaults

I’ll just note that in the absence of evidence to the contrary, an affirmative pleading with sufficient specificity as to the elements of willfulness is usually enough. It’s basically like admitting everything in the complaint (or amended complaint) is true. That’s really all that’s required to prove it.

Now if the complaint/amended complaint was deficient on an element of willfulness (that is, the plaintiffs didn’t allege facts with respect to every element), then the judge could have ignored it. My guess (and based on the comments above), it seems like they did allege stuff to make the case.

Moral of the story: show up to court when served.

Jason says:

It's actually not ridiculous at all

In the event of a default judgment, the facts as alleged by the plaintiff are deemed true (since they have not been challenged by the defendant as our adversarial system provides for). If the alleged (now “true”) facts support the maximum penalty, then it is perfectly sound for the judge to rule that way.

I haven’t read the complaint yet (I’m about to), but I’m guessing that your claim that nothing in the complaint supports a finding of willful infringement is based on a knee-jerk, anti-courts, anti-copyright bias that causes you to cling to this fantasy that people who use BitTorrent aren’t willful infringers when we know damn well that they are. It’s almost certainly not an abuse of discretion for the judge to rule that they are.

Also, I couldn’t help but laugh at this: “The argument I hear a lot is that torrenting is not willful because people set it up naively and don’t understand they are now serving files to other people. “

Is that really how self-serving and completely illogical the thinking on this has become? It’s like saying, “Your honor, I didn’t know she was 17.” (Yes, I realize statutory rape is a strict liability crime).

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