Porn to Cost Virginia Man $1.5 Million - The UpStream

Porn to Cost Virginia Man $1.5 Million

posted Friday Nov 2, 2012 by Scott Ertz

Porn to Cost Virginia Man $1.5 Million

Porn can be an extremely expensive habit, especially if you pay for it. Uploading it to the Internet can be even more expensive, as one Virginia man has come to discover this week. About a year ago, Kywan Fisher and several others were sued by Flava Works for copyright infringement. It was claimed that the defendants uploaded porn videos owned by the company to Internet sites for free download. Flava Works, who is known to be litigious, appeared in court this week, where defendant Fisher did not. That was his mistake.

For failing to appear, the judge imposed the maximum penalty of $1.5 million. That is a pretty steep price, especially when you consider the fact that Fisher is only charged with uploading 10 files from Flava Works. The company says it can definitely prove that the defendant was responsible, claiming the company "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."

While clever, it is not exactly a new concept. In fact, the concept is called DRM (see the title of our media segment on F5 Live). Even with DRM being commonplace, many cases like this have not been successful, and yet the judge chose to impose the maximum fine despite seemingly circumstantial evidence. This cost, when spread over the 3,449 downloads claimed, works out to $435 per download - a pretty steep fee for an industry that lives in the $9.99 price range.

So, why was the penalty so steep? If I had to guess, I would imagine that the judge was not pleased that the defendant did not even show up for his trial. Because of that, it is my guess that the judge chose the $150,000 per download (for "willful" infringement) instead of the more reasonable $750 minimum that could have been imposed. This is a case of a federal judge making a point by making an example of a single defendant.

What do you think? Is it fair to impose a $1.5 million penalty on circumstantial evidence just to make a point? Sound off in the comments.

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