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: