Court Awards Largest Damages Award to Date in Illegal File-Sharing Suit

An Illinois federal court handed down the largest damages award to date this week in a BitTorrent illegal file-sharing case. Judge John Lee ordered Kywan Fisher, of Virginia to pay $1,500,000 in damages to adult entertainment company Flava Works in a default judgment for sharing ten of their movies on BitTorrent. This total, reaching penalties of $150,000 per movie is the maximum statutory damages under U.S. copyright law.

BitTorrent since early 2010 has been the forum through which hundreds of thousands of people have been sued for downloading and sharing copyrighted material. The most well known case involves Voltage Pictures movie studio, which sued more than 27,000 people who allegedly downloaded “The Hurt Locker.” Most cases are typically dismissed or settled, as finding evidence against alleged file sharers is generally challenging. Multiple cases relied on using the IP addresses of alleged users as evidence, however this idea was struck down by a federal judge in May, ruling that an IP address alone was not enough to accuse someone of illegal downloading. The thrust behind this holding is that IP address identifies only the location at which any number of Internet-connected devices may be located. Discovering the identity of the individual associated with the device, i.e. the subscriber to an IP address, does not necessarily reveal the identity of the true defendant, as it could be the subscriber, a member of his family, an employee, neighbor, etc.

The current case avoids this hurdle by presenting additional evidence of encryption codes inserted in the original films that Fisher bought. Flava Works has software that assigns a unique encrypted code to each member of their paid websites, so every time Fisher downloaded a copyrighted video from Flava’s website the encrypted code attached. Flava Works was able to trace the shared illegal copies of the movies back to Fisher, who copied or distributed Flava Works copyrighted property at least ten times, leading to the videos to be infringed or download more than 3,449 times. The user agreement that Fisher signed expressly forbids copying films, which allowed Flava Works to claim willful copyright infringement for 10 titles that Fisher uploaded to BitTorrent. Fisher did not assert any defenses, as he did not appear in court.

Flava Works and other copyright holders involved in BitTorrent illegal file-sharing lawsuits will embrace this surprisingly sizable verdict as a huge win for copyright holders to combat the illegal file-sharing epidemic. It is likely that this case will be widely cited by plaintiffs, especially in settlement letters. Notably this case is different from other cases in that the encryption code adds the extra evidence needed beyond IP addresses, but it also presents more options for the copyright holders and shows how seriously the courts are taking these cases. Due to Fisher’s nonappearance, the judge entered a judgment in favor of the plaintiffs for one million, five hundred thousand dollars, the greatest amount statutorily allowed by copyright laws; however, Fisher will likely attack this judgment collaterally with a jurisdictional argument.