A federal court in Illinois has handed down the largest ever damages award in a BitTorrent case. In a default judgment defendant Kywan Fisher from Hampton, Virginia is ordered to pay $1,500,000 to adult entertainment company Flava Works for sharing 10 of their movies on BitTorrent. The huge total was reached through penalties of $150,000 per movie, the maximum possible statutory damages under U.S. copyright law. It’s expected that the verdict will be used to motivate other BitTorrent defendants to settle their cases.
Since early 2010, hundreds of thousands of people in the U.S. have been sued for downloading and sharing copyrighted content on BitTorrent.
Nearly all of these cases end up dismissed or settled, but one involving Kywan Fisher from Hampton, Virginia, has turned into a financial disaster.
In 2011 Fisher and several other defendants were sued by adult entertainment company Flava Works. The case in question differs from the so-called “John Doe” lawsuits as the copyright holder had detailed information on the defendants who had paid accounts on the company’s movie portal.
For Fisher the trouble started when instead of just viewing the films for personal entertainment, he allegedly went on to share copies on BitTorrent. These illicit copies were traced directly back to his account through a code embedded in the videos.
“Plaintiff has proprietary software that assigns a unique encrypted code to each member of Plaintiff’s paid websites. In this case, every time the Defendant downloaded a copy of a copyrighted video from Plaintiff’s website, it inserts an encrypted code that is only assigned to Defendant. In this case, the encrypted code for Defendant is: ‘xvyynuxl’,” Flava informed the court.
Copying films was expressly forbidden in the user agreement Fisher signed with the video portal, allowing Flava to claim willful copyright infringement for 10 titles.
According to Flava the copies uploaded to BitTorrent by Fisher went on to be downloaded thousands of times.
“Defendant’s conduct was willful to the extent that he copied or distributed Flava Works, Inc.’ intellectual property at least 10 times and caused the videos to be infringed or downloaded at least 3,449 times.”
Because Fisher failed to defend himself Judge John Lee had little choice but to find Fisher guilty.
This week the Judge handed down the largest ever damages award in a BitTorrent case, 10 times the maximum statutory damages for willful infringement, totaling $1,500,000.
“Given the materials submitted by Plaintiff in support of its motion and in light of the absence of any objection by Defendant, Plaintiff’s motion for entry of default against defendant 11 is granted. Judgment is entered in favor of the Plaintiff Flava Works, Inc., and against the Defendant Kywan Fisher in the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00),” the judgment reads.
The verdict will be welcomed by Flava and the many other copyright holders involved in BitTorrent lawsuits in the United States. DieTrollDie, a close follower and critic of these cases, points out that it will be widely cited in settlement letters to other defendants, but that the case itself is notably different.
“This was not the normal Copyright Troll case – there was some actual evidence beyond a public IP address. Not a smoking gun by far, but certainly enough to show a preponderance of evidence,” DTD writes.
Fisher has a few options to respond according to attorney Blair Chintella.
“The most common way is the “collaterally” attack the judgment by arguing that there was some jurisdictional defect in the lawsuit. For example, that service of process was improper or that the Court lacked personal jurisdiction,” Chintella told TorrentFreak.
While the guilty verdict is no surprise considering the failure of Fisher to appear before court, the $150,000 in damages per movie, which translates to $435 per alleged download, definitely raises eyebrows.