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.