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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    Dark Helmet (profile), Nov 2nd, 2012 @ 9:42am

    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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      Chris-Mouse (profile), Nov 2nd, 2012 @ 9:48am

      Re: 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.

      Not that that's going to even slow down the troll's use of it.

       

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      Zakida Paul (profile), Nov 2nd, 2012 @ 9:51am

      Re: Attention idiots:

      "The "Mike has never once come out against pirates" bullshit is officially over"

      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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        bob, Nov 2nd, 2012 @ 12:48pm

        Re: Re: Attention idiots:

        Uh, this is coming out against piracy? He first calls the evidence "one sided". Then he mixes in other words like "laughable", "misleading", and "ridiculous". You don't even need to scroll back to see whether he aimed these hard-hitting words at the pirates or the copyright owners. Of course he insulted the copyright owners all the way through.

        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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          The Infamous Joe (profile), Nov 2nd, 2012 @ 1:05pm

          Re: Re: Re: Attention idiots:

          Statutory rates aren't meant as punishment. They're meant to make it easy to get a number when the math is hard.

          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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            Anonymous Coward, Nov 2nd, 2012 @ 2:01pm

            Re: Re: Re: Re: Attention idiots:

            bob thinks that three billion people worldwide are artists and the other half (yeah, half) of the world's population is ripping them off.

            It's quite clear that bob and numbers don't mix well.

             

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            Ophelia Millais (profile), Nov 2nd, 2012 @ 3:10pm

            Re: Re: Re: Re: Attention idiots:

            True, statutory damages are not meant as punishment, and they are meant to be an option for when actual damages are hard to ascertain. But at least when it comes to copyright infringement, the range was increased in 1999 specifically in response to online piracy, with the intent of being a deterrent. [Refs: here and here.] So, legally, it doesn't really matter that the numbers are unlikely to even in the ballpark of actual damages.

             

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              The Infamous Joe (profile), Nov 2nd, 2012 @ 3:23pm

              Re: Re: Re: Re: Re: Attention idiots:

              Further proof of a broken law that has been twisted away from it's original purpose, and should be struck down.

              Good info, though.

               

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      DannyB (profile), Nov 2nd, 2012 @ 9:53am

      Re: Attention idiots:

      Amen.

      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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        Zakida Paul (profile), Nov 2nd, 2012 @ 9:57am

        Re: Re: Attention idiots:

        It's just a pity that 'piracy' is impossible to stamp out completely, just like murder, terrorism and drug use. The only way to fight piracy is to give people a product that is better than the illegal options.

         

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        Anonymous Coward, Nov 2nd, 2012 @ 10:11am

        Re: Re: Attention idiots:

        I agree with you regarding open source stuff, but I think you've got it the wrong way around regarding piracy and Internet censorship.

        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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          Anonymous Coward, Nov 2nd, 2012 @ 1:11pm

          Re: Re: Re: Attention idiots:

          Open source pron?

           

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          Anonymous Coward, Nov 2nd, 2012 @ 2:51pm

          Re: Re: Re: Attention idiots:

          Mostly I agree with you but there is one point I disagree in part and that is the Obama administration, it is not ONLY the Obama administration is the whole government infra-structure that wants those things, policies don't get perpetuated by presidents but by the infra-structure underneath them that guides them, this is why groups of people have lists to positions they want filled in.

          Ever wonder why the most administrations are just like the old ones?

           

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        Dave Xanatos, Nov 2nd, 2012 @ 10:24am

        Re: Re: Attention idiots:

        "I wish all piracy could actually be stopped."

        Easily done. Kill copyright.

         

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        Michael, Nov 2nd, 2012 @ 10:46am

        Re: Re: Attention idiots:

        "I wish all piracy could actually be stopped"

        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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        Anonymous Coward, Nov 3rd, 2012 @ 11:18am

        Re: Re: Attention idiots:

        This would remove one of the purported reasons for wanting to censor the Internet.

        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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      Anonymous Coward, Nov 2nd, 2012 @ 10:01am

      Re: Attention idiots:

      The "Mike has never once come out against pirates" bullshit is officially over.

      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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        Zakida Paul (profile), Nov 2nd, 2012 @ 10:20am

        Re: Re: Attention idiots:

        Obvious idiot is obvious

         

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        MrWilson, Nov 2nd, 2012 @ 11:41am

        Re: Re: Attention idiots:

        "anti-copyright and pro-piracy."

        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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          Anonymous Coward, Nov 2nd, 2012 @ 1:08pm

          Re: 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.


          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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            Anonymous Coward, Nov 2nd, 2012 @ 1:24pm

            Re: Re: Re: Re: Attention idiots:

            See, this is what you get for replying to a admitted industry shill.Nothing but more raving and douche behavior.

            Its all of you, and Mike who always encourage him to continue his verbal diarrhea.
            Idiots.

             

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              MrWilson, Nov 2nd, 2012 @ 4:22pm

              Re: Re: Re: Re: Re: Attention idiots:

              On occasion the shills will present actual arguments rather than just saying "but...but...piracy!" and it does help to understand the perspective of people who don't give a damn about anything but their own profit. It helps to determine what you believe that you haven't been able to articulate yet when you have to explain to an absurd troll why they're wrong.

               

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                Shadow Dragon (profile), Nov 2nd, 2012 @ 5:49pm

                Re: Re: Re: Re: Re: Re: Attention idiots:

                To me,If they don't want their work pirated,then don't publish it.It's just like on YouTube if they don't like their work being criticized,parodied,sqtired,mashed up then they shouldn't upload on YouTube.I even told a blogger who made a stupid story after I criticized his story,he went off on me about how I was harrasing him when I trying point out how stupid his post was and told if he didn't like people criticism then he shouldn't be blogging. The nerve of people who can't take the heat,why can't they just stay out of the fucking kitchen.

                 

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            Anonymous Coward, Nov 2nd, 2012 @ 1:41pm

            Re: Re: Re: Re: Attention idiots:

            the only victims are those of us who are having our HUMAN rights trampled in the name of copyright. there are MUCH bigger things at stake than a few lost sales

            that's the only message I ever get reading an article by mike

             

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          Anonymous Coward, Nov 2nd, 2012 @ 5:09pm

          Re: Re: Re: Attention idiots:

          I think the fact that he wrote both of them as their own separate terms clearly indicates he doesn't consider them to the one and the same.

           

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      Josh in CharlotteNC (profile), Nov 2nd, 2012 @ 11:37am

      Re: Attention idiots:

      Oh no. I'll have to start calling Mike insulting names and spamming every post with nonsense, because you know, I'm a pirate and if Mike doesn't agree with me 100% of the time he must be a shill for Big Content and I'm entitled to be a jerk.

      /s

       

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      Anonymous Coward, Nov 5th, 2012 @ 8:10am

      Re: Attention idiots:

      your kidding DH !!!! you call that 'against pirates' ??

      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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    Anonymous Coward, Nov 2nd, 2012 @ 9:49am

    If the judgement would be per infringement, what's to stop rightsholders from downloading a torrent repeatedly before suing?

     

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    out_of_the_blue, Nov 2nd, 2012 @ 10:08am

    It's clear Mike is against the copyright holder:

    "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:
    ... [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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    PlagueSD (profile), Nov 2nd, 2012 @ 10:15am


    Apparently Flava Works watermarks files that paying customers access.


    Wait...People actually PAY for porn????

     

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      Michael, Nov 2nd, 2012 @ 10:51am

      Re:

      and apparently if you do, you get a DRM filled piece of **** and is likely to cause you to get sued at some point

      Lesson learned...don't pay for porn.

       

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        Anonymous Coward, Nov 2nd, 2012 @ 1:00pm

        Re: Re:

        That's all I learned from this. The guy probably didnt show up in court cause he thought this was some kind of spam.

        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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      John Fenderson (profile), Nov 2nd, 2012 @ 12:34pm

      Re:

      And there's proof positive that the trolls who claim people will never pay for what they can get for free are wrong.

       

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    Anonymous Coward, Nov 2nd, 2012 @ 11:08am

    what this shows, more than anything else is that the judge (and probably most others) dont really check 'evidence' and follow their own law. who, in all honesty, expects to get this amount of money from an ordinary citizen? the ruling may well be valid but the amount is pure fantasy. one other problem is that sooner or later, someone in the public eye or a position of power is gonna get caught. i wonder what will happen in that situation? i seem to remember the son of some music label exec or something getting caught illegally downloading, but i dont remember what happened to him. i bet 'not a lot' which enhances the discrimination used when it suits/doesn't suit

     

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      The Infamous Joe (profile), Nov 2nd, 2012 @ 11:24am

      Re:

      The problem is that when the law was written, it took considerable resources up front to commit copyright infringement on a scale that would matter to any copyright holder. Due to this overhead, it was assumed that there would be some kind of monetary reward for the acts of copyright infringement-- that is, that the infringer would be making money from the infringement, to recoup the costs of carrying out copyright infringement at that scale. So, the logic presumably goes, that a large fine would be appropriate for large scale infringement because large quantities of money would be involved.

      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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    gorehound (profile), Nov 2nd, 2012 @ 11:21am

    Real Nice of the Asshole Judge to hammer this man as much as he did for some filthy Porn.
    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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    cpt kangarooski, Nov 2nd, 2012 @ 11:31am

    Damages computations for infringement

    In the Tenenbaum case, I recall that the plaintiffs suggested a jury instruction that determined statutory damages per infringement. It was accepted by the judge and defense counsel without question, much to the surprise of those of us in the gallery who instantly saw the mistake.

     

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    DCX2, Nov 2nd, 2012 @ 12:20pm

    Commercial vs. noncommercial infringement

    If I recall correctly, the legislation that set these statutory damage limits was designed for going after commercial pirates, the kind who do this thing for profit.

    I really think we need a separate set of damage limits for instances that are non-commercial in nature.

     

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    Aliasundercover, Nov 2nd, 2012 @ 12:22pm

    Default Judgment

    It seems to me default judgments are all too often judges abandoning their role as neutral arbiters of the law for jealous defense of their absolute power. Disrespect me? Don't come kneel before me in my court? You will be crushed!

     

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      John Fenderson (profile), Nov 2nd, 2012 @ 12:36pm

      Re: Default Judgment

      In fairness, default judgements are absolutely necessary. If there was no such thing, every lawsuit could be stopped cold simply by having the defendant never show up.

       

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        Anonymous Coward, Nov 2nd, 2012 @ 1:01pm

        Re: Re: Default Judgment

        Default judgements are fine. Judges granting "the max" by default is not fine.

         

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          John Fenderson (profile), Nov 2nd, 2012 @ 2:07pm

          Re: Re: Re: Default Judgment

          I agree, but I don't think this is because the courts feel some kind of need to punish lack of respect. It's more likely this is a time-saving thing (either laziness or because the docket is overloaded) where the judge is simply rubber-stamping what the plaintiff asked for.

           

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    Anonymous Coward, Nov 2nd, 2012 @ 12:29pm

    Stupidity

    The guy deserves what he gets if for nothing else as being so fucking stupid as to:
    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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    OccupyTechDirt, Nov 2nd, 2012 @ 1:05pm

    Enslaved

    Wouldn't a fine that's greater than the income most people make in a lifetime be considered cruel and unusual punishment? This guy has just been forced into slavery. If he makes $25k a year (after taxes) it will take him 60 years to pay off this fine. Since he can't afford to eat, rent shelter, or seek medical treatment when he is ill, he won't live to work any longer than that.

     

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    lolzzzzz, Nov 2nd, 2012 @ 2:39pm

    let me do some math

    ive uploaded 1000000 movies all these years i owe you
    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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    That One Guy (profile), Nov 2nd, 2012 @ 8:14pm

    Numbers so high, they cease to have meaning

    I'd love it if the judges and lawyers in cases like these were forced, 1 month out of 12, to only be able to spend as much as the average citizen in their state earns in a month on all their bills, expenses and everything else. Maybe then they'd change their tune about how 'reasonable' amounts like this are.

    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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    fb39ca4 (profile), Nov 3rd, 2012 @ 11:42am

    The other thing you left out is the defendant lives in Virginia, and he was expected to travel all the way to a court Illinois, which is quite unreasonable in the aftermath of Hurricane Sandy.

     

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      Anonymous Coward, Nov 4th, 2012 @ 5:33am

      Re:

      The other thing you left out is the defendant lives in Virginia, and he was expected to travel all the way to a court Illinois, which is quite unreasonable in the aftermath of Hurricane Sandy.

      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.

       

      reply to this | link to this | view in chronology ]

  •  
    icon
    Ninja (profile), Nov 5th, 2012 @ 2:51am

    Hopefully they won't see a dime of this money.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 5th, 2012 @ 8:28am

    "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.


    "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...

     

    reply to this | link to this | view in chronology ]


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