Some defendants grab these accusations by the horns, fighting back in court with varying results. This response can prove costly, however, and there’s no guarantee that defendants will come out on top with a victory. That said, when faced with a spirited defense, some plaintiffs find themselves trying to back away.
The other option, which isn’t generally advised, is to mount no defense at all. This tactic, which for poorer defendants may be their only option, is a risky one. If infringement is considered willful, they could be on the hook for $150,000 in statutory damages. On the other hand, cases might go in a much more acceptable direction.
Defendants in Default Treated Relatively Leniently
As reported last week, a three-year-old case filed in Utah targeting 30 alleged pirates ended relatively well for one defendant who failed to defend herself.
London Has Fallen owner LHF Productions accused the woman of pirating its movie and demanded considerable damages. However, Judge David Nuffer flat-out rejected LHF’s demand for $10,000 in statutory damages, awarding just $750 instead.
There are now clear signs that his reasoning in that case is spreading to others.
Six More Defendants in Other Cases Given The Same Treatment
The first case, which has LHF Productions accuse defendant Daniel Patrick of pirating the movie London Has Fallen, resulted in the movie company demanding a default judgment, again accompanied by $10,000 in statutory damages. The company also requested a permanent injunction to prevent future infringement by the defendant, plus attorney fees and costs.
The second, which targets defendants Johnothan Cox, Kaylie Goins, Jacqueline Lopez, Becky Martinez, and Trent Nicol, has Bodyguard Productions, Inc. accusing the individuals of pirating the movie ‘The Hitman’s Bodyguard.’ Bodyguard Productions used the same lawyer as LHF, which appears to have led to a similar legal strategy, ending with a demand for $10,000 in statutory damages plus costs.
The perhaps predictable outcome here is that given the similarities, including the same presiding judge, the court has handed down decisions that match those in the LHF case.
$10,000 in Damages is Too Much, $750 Will Suffice
The judgments reveal that Judge Nuffer was satisfied that a default was warranted in both cases and accepted the plaintiffs’ assertions that the infringement was willful. This meant that the defendants faced a potential damages award of up to $150,000, at the Judge’s discretion.
However, both LHF and Bodyguard Productions opted to ask for a much smaller amount, ‘just’ $10,000, arguing that it was high enough to address the damages caused and deter future infringement. Citing earlier decisions, as he did in the previous LHF case, the Judge said that the amount was too high and that damages awards of $10,000 handed down by other courts had been handed down without any “meaningful analysis”.
In the current cases, the Judge ultimately fell back on his reasoning in the previously-reported LHF lawsuit. LHF and Bodyguard Productions failed to show that the defendants were original seeders of the movies, there was no data to describe the scale of the BitTorrent swarm, and no evidence to show how many people had downloaded the films from the defendants’ computers.
Furthermore, in his estimates, the losses to LHF and Bodyguard Productions amounted to the loss of a movie rental or sale. Equally, the defendants’ gain was not paying for those services or products. Noting that a $10,000 award against each would result in a “windfall” for the plaintiffs, he again settled on $750 in statutory damages, an amount that would also act as a deterrent.
More Cases Could Go This Way in Future
It’s unclear how many alleged pirates default in this manner but given this type of judgment appears to be gaining momentum with some judges, absent defendants could certainly benefit, in this jurisdiction at least. There are still attorneys fees and costs to factor in, of course, but considering some of the larger judgments of days gone by, these decisions represent a much less scary proposition.