Flava Works $1.5 Million Default Judgment: A Cautionary Tale
Fear is one of the most common gut reactions that people experience once they receive notice that their IP address has been linked to copyright infringement. But right after fear is the notion that “if I just ignore this, it will go away.” While ignoring a notice of a subpoena can be tempting, it is also a very risky position to take. One defendant in a Northern District of Illinois downloading lawsuit ignored his summons to court—and ended up with a default judgment of $1.5 million against him. This is the largest damage award in a BitTorrent case to date.
A default judgment is a judgment entered by a court once an entry of default has been entered against a party who has failed to appear in the case. In this case, defendant Kywan Fisher had not appeared in the case, or otherwise filed any motions or responsive pleadings—in other words, he simply ignored it. The court awarded plaintiff Flava Works, an adult film company, the maximum statutory damage award available, $150,000 per work that was infringed.
While the $1.5 million judgment seems shocking, it is important to note that this case differs in an important aspect from most common BitTorrent cases. In this case, the defendant was accused of uploading 10 videos to BitTorrent sites. Additionally, the plaintiffs had evidence that the defendant did, in fact, upload the videos that he purchased; the defendant was a paid subscriber of their video service, and each video downloaded by a subscriber contains an encrypted code unique to that subscriber. The movies that were uploaded matched the defendant’s encrypted code.
In many BitTorrent downloading cases, the evidence presented by the plaintiffs, particularly at an early stage of the case, is not nearly as strong—usually only an IP address. Of course, each case is different. But no matter how high or low the prospect of damage awards may be, it is important for recipients of notices of subpoenas from their ISPs to seek the advice of an attorney. Simply wishing that the lawsuit will just go away can backfire in a big way.
For more information about the Flava Works case:
https://www.bbc.co.uk/news/technology-20178171
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About Author
JAntonelli
Jeffrey Antonelli is a member of the federal trial bar of the Northern District of Illinois and is admitted to numerous federal courts around the country. He has been a civil litigator nearly 25 years in a broad range of actions representing corporations and individuals as plaintiffs and defendants in state and federal court. Jeffrey has been interviewed by the media many times, including Bloomberg BNA, NBC, The New York Times, Chicago Lawyer, Chicago Tribune, and the longstanding lawyer’s publication Chicago Daily Law Bulletin. Prior to forming Antonelli Law Ltd. in 2007 Jeffrey worked for several litigation boutiques in Chicago’s Loop as well as a full service firm. His litigation experience includes hotly contested issues in intellectual property, business, insurance, and consumer fraud. He is an adviser to the Illinois Board of Higher Education Advisory Council for Private Business and Vocational Schools (PBVS), and was a member of the Illinois State Bar Association Education Law Section Council from 2012-2013. Jeffrey is especially proud of his work representing hundreds of students defrauded by improperly accredited educational institutions, including as certified class counsel. Before attending law school, Jeffrey was interested first in business, and then in biomedical ethics. These interests led him to graduate from the nation’s largest philosophy department at Loyola University in Chicago, where some of his favorite (and most challenging) subjects were cognitive science and philosophy of science. During college he held positions at the University of Chicago’s Ben May Institute; as a medical assistant for a University of Chicago foot and ankle surgeon; and volunteered in the emergency room at the University of Chicago Hospitals. These experiences led to studying health law at the DePaul College of Law where Jeffrey earned his law degree and a certificate in health law. At that time DePaul’s Institute for Health Law was consistently ranked in the top 10 health law specialty programs nationwide. During law school Jeffrey immersed himself in studying the practical and public policy aspects of health care through internships at the American Medical Association in Chicago, and on Capitol Hill at the Governmental Relations Office of the Association of American Medical Colleges in Washington, DC. Jeffrey has concentrated in civil litigation throughout his legal career, and is a member of the federal trial bar of the Northern District of Illinois, the Central District of Illinois federal court, and all federal courts of Colorado, Wisconsin, Michigan, and Indiana. In addition, he is a member of the DuPage County Bar Association and the Illinois State Bar Association. Jeffrey prides himself on his strong personal ideals, passionate, ethical advocacy, and working hard to bring the best possible results for his clients. He also maintains a special interest in cases involving fraud. Whether due to good parenting, his family’s law enforcement employment, undergraduate studies in philosophy including ethics, or a fortuitous outcome of good breeding, one essence of Jeffrey’s character is a drive to root out the truth behind fraudulent practices.