$1.5 Million Default Judgment Against Kywan Fisher (Flava Works INC., 1:12-cv-01888, NDIL)

19 Apr 13 – Update

Not directly related to the Kywan Fisher case, but recent developments in another Flava legal battle are of interest.  Thank you Raul for finding this gemCourthouse News Article – Porn Studio Fluffed Case With Forged Signature   Flava_06306(IL)

This is for Flava Works Inc., v. Lee Momient, 1:11-cv-06306, Northern District of IL (Eastern Division).  I don’t have much detail on this case, but from what the judge writes, it is a “piece of work.”

It appears that Flava submitted a document showing Mr. Momient agreed to work for hire.  The problem with the document according to Mr. Momient is it is a FAKE.  The judged looked at the various signatures on submitted documents and agreed that it was a forgery.  Danger Danger Danger!!!    The case started in September 2011, but Flava only submitted the ‘questionable’ document in March 2013.  Such a delay (over a year!) in submitting what would have been a key piece of evidence for Flava did not escape the attention of the judge.

What, then, is the appropriate judicial response to such an egregious abuse of the judicial system by such a blatant fraud on the Court?   {Judge Milton I. Shadur}

The judge stated he would allow Flava to respond to these allegations, but he believes the case will be dismissed with prejudice and sanctions may be applied to Flava.

This court anticipates the dismissal of Flava’s TAC [Third Amended Complaint] and its action against Momient with prejudice. But although it is difficult to conceive any predicate for Flava’s refutation of the skillfully-put-together presentation that demonstrates its fraud, this court will give Flava the opportunity to do so.

The judge also noted that Flava’s attorney may be questioned as to his knowledge on how the document came into existence.   Eject Eject Eject!

This one is going to be fun to watch.

DieTrollDie :)——————————————————————————————–

20 Nov 12 Update.  As I stated when this post went out, the Trolls will be using this default judgment to get people to pay their settlement demands.  Prenda Law Inc., took the bait and decided to provide a Web link to a Torrentfreak news story on a new settlement letter.  :)

—————————————————

Let me just start off by saying this is not your typical pornography Copyright Troll case.  At the start it looked like a typical one where Plaintiff/Troll filed a single case against 15 named defendants (27 Oct 11).  On 7 Mar 12, the court agreed with one of the defendant’s motion and severed all the defendants because there was no evidence to support joinder.  A separate case was initiated against Fisher and Plaintiff paid the $350 filing fee.   2ndComplaint_01888(IL)   Docket

In the Second Amended Complaint (SAC), Plaintiff states all of the defendants resided outside of IL, with one even living in Fiorenzoula, Italy.  Plaintiff claims the jurisdiction is correct because IL is one of its primary places of its business and also due to the IL Long Arm Statute.  On 7 Dec 11, Plaintiff served a summons/complaint on Fisher at his residence in Hampton, VA.   Fisher_Summons_01888(IL)   Fisher declined to respond to the summons and Plaintiff moved for a default judgment.   Default_Motion_01888(IL)   On 9 Aug 12, Fisher failed to appear for a default motion hearing and the court granted the default judgment for Plaintiff.   Plaintiff later submitted a memorandum and affidavit in support of damages against Fisher.   Flava_Affidavit_01888(IL)   Affidavit_Notice_01888(IL)   On 30 Oct 12, the court issued an order against Fisher for $1.5 million, plus costs; Plaintiff was also awarded reasonable attorneys fees and costs.   Default_Order_01888(IL)   The court granted Plaintiff the maximum statutory damages for 10 movies (10 X $150K). 

So What Is The Difference?

The case against Fisher was different because he was a paid member of a Flava site.  When he joined the Web site, Fisher agreed to not copy and distribute Plaintiff’s movies.   Fisher_Billing_01888(IL)   Plaintiff stated Fishers’s account downloaded 10 movies and they were later found on two torrent Web site.  One of the torrent Web sites showed the 10 movies were downloaded a total of 3416 times.   BT_ScreenShot_01888(IL)    Plaintiff told the court they knew the movies found via the torrent Web site were from Fisher’s account because each time a person downloads a movie, a small code identifying the account is written to the file.  Flava’s account code was “xvyynuxl”.  Here is a screenshot of the code found after downloading the movie files via BitTorrent and examining it – Analysis_01888(IL).    The code is at the bottom of screenshot.

It does look pretty bad for Fisher, but there are other possibilities to consider.  First off, the information provided by Plaintiff does tie back to Fisher’s ACCOUNT.  It is extremely possible Fisher was responsible for this, but what if a roommate or a friend took the movies from Fisher’s computer without his knowledge and decided to upload them as a torrent?  Yes I’m playing Devil’s Advocate for a reason.   Or his system was hacked or infected with malware and the user name and password was exfiltrated off the system.  Note the simple password; that is an indication of piss-poor security at that Web site.  Plaintiff shows Fisher’s AOL email account and IP address.  Did they bother to get a subpoena and see who the registered account holder of these accounts was?  Or from the credit card account?  In all likelihood, these will probably come back to Fisher, but that is something Plaintiff should have done.  As Fisher decided to ignore the summons, the Troll only had to do the minimal amount of work to prove their case.   

So What Does This Mean For The Rest Of Us?

I assume the Trolls will be updating their settlement letters and emails to reflect this default judgment.  I also expect we will have John Steele make a few drunken posts claiming a victory against piracy.   This should be an example of what NOT to do – ignore a court summons.  This was not the normal Copyright Troll case – there was some actual evidence beyond a public IP address.  Not a smoking gun by far, but certainly enough to show a preponderance of evidence.

I expect Fisher has little to no assets the Plaintiff will be able to come after, but the judgment in my opinion is more beneficial as a threatening story to scare Does into settling.  I did like it that Plaintiff was taking some steps to protect its content.  I bet after this gets out, people will be editing out the code section once they locate it.      

One unexpected thing this judgment may bring out is if Plaintiff may not be able to sue anyone else who downloaded the same movies (with Fisher’s account code “xvyynuxl”).  I would certainly make a claim that the 3416+ personnel who downloaded these movies were jointly and severally liable with Fisher – his account downloaded and shared the movies).  That would mean that only fisher could go after those people for damages.  I’m not a lawyer, but I have certainly heard worse arguments from some Trolls. 

DieTrollDie :)     

About DieTrollDie

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link - http://www.eff.org/issues/copyright-trolls
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37 Responses to $1.5 Million Default Judgment Against Kywan Fisher (Flava Works INC., 1:12-cv-01888, NDIL)

  1. Doesidoe says:

    Unfortunately since he decided not to show the court really didn’t have a lot of choice here. I do think this one is a LOT different since, yeah, the evidence pretty much points straight at him, and unless he could show he was hacked he probably would have been liable no matter what. Personally I’ve always thought some kind of “tagging” would be the smartest way for a company to cut off piracy at the source (and if that’s what everyone in this lawsuit was doing and the evidence was the same then it apparently works)–or at least back-track to the most likely offender. The evidence here is much more than an I.P. address, so I really don’t have too much of a problem with that. When the evidence is that strong it’s really up to Fisher to prove that he didn’t do it–I know if I were sitting on a jury and this is the evidence I was given I’d have a hard time not siding with the plaintiff. Now, in no way shape or form would I have given them 1.5 MILLION as that’s insane, but I could see a reasonable judgement being awarded. Don’t pirate kids (especially stuff you’ve paid for yourself–I like sharing and all, but if it’s not yours to share don’t share it!) as it could be costly!

    • I agree that “tagging” a video file to a person’s account is a good way to stop piracy at the source. Now whether Fisher’s account was hacked or not, I agree that it was not smart to ignore the lawsuit. Nobody fought the case or examined the evidence, and as a result, everything the plaintiff had was assumed to be legitimate. At the very minimum, he could have hired an attorney and had the attorney call the plaintiffs and explain Fisher’s circumstances to them. Perhaps — and there are so many things someone can do — there would have been a different outcome.

  2. The Tod says:

    The next thing the defendant is going to google is ‘How to file bankruptcy’.

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  4. At the VERY MINIMUM, he could have filed an answer and let the plaintiff prove their case. Copyright cases have a “more likely [that he did it] than not” standard, and any reasonable judge would force the plaintiff to really prove their case before hitting a kid with a million-dollar judgement. The judge probably just wanted to teach him a lesson not to ignore a court summons.

    • Johndoe says:

      Submitting him to a life of economic slavery or forcing him into BK sure is a just lesson. Damn this system. Nobody’s life should be this screwed up by an ego-bruised judge and opportunistic slime lawyers. This is just the kind of rigging and abuse that’s going to destroy Romerica.

      But as already said, at least they went after someone that they had more than vague circumstantial “evidence” for a change. As unfair and retarded as our legal system is, this is a perfect example that you can’t just ignore it.

    • omillais says:

      I’m not a lawyer, but just looking at the amended complaint and the damages memo, it’s pretty clear to me that the filings had multiple problems, both procedural and substantive. Is there any way to appeal, or is it over?

      • DieTrollDie says:

        Well first it would take Mr. Fisher to contact the court and give a good reason why he didn’t respond to the summons. If the judge thought he had a good reason, it is likely he would be allowed to respond. There may be some issues with the complaint and other Plaintiff documents, but they are minor compared to the fact that his account was tied back to the movies uploaded to BT. He would have to somehow explain it to the court. At that time Plaintiff would be seeking to examine his computers for additional evidence.

        DTD :)

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  12. Adrian says:

    I just want your opinion… I don’t support this shitty copyright but…

    Assume the police comes to my house and says:
    72 hours ago a gun was bought with you ccard.
    24 hours ago a body was found in you car in some unknown forest.
    You haven’t filled a complain about your missing car/money.

    I will argue that somebody cloned cc and stole my car.

    Really , how many of you will back me up?
    I know , the situation are 1000% more serious and we shouldn’t compare them seriously but still…
    How many of you will believe my story?

    To be a pirate means also to have more brain in your head than rum.

    • DieTrollDie says:

      The comparison doesn’t fit (many differences in criminal v. civil matters), but you are generally right that most people are not going to believe you. Note: In these civil matters, the Troll is not trying to prove or disprove the allegation. They only want to obtain a settlement or a judgment in their favor. As I stated, the evidence points to Fisher’s account. An adequate investigation would have then taken the time to tie that account activity back to Fisher personally. As Fisher decided to ignore the summons, the Troll had it easy. And I will beg to differ that being a true pirate requires more brains than rum. “Pirates” have the same range of intellect and foolhardy behavior as the rest of us. Some just happen to get caught.

      DTD :)

    • I agree with @DTD that that the comparison does not fit because the burden of establishing proof is on the COPYRIGHT TROLL. The defendant does not need to prove his innocence — technically, he can sit back and let the troll try to find evidence. If there is none, there is NOTHING a troll can do.

      As for ignoring the summons — not smart. A simple “wasn’t me” letter to the court [even though that's not the proper form] would have at least gotten the ball rollin’ forcing the plaintiffs to prove their case.

      The analogy that I like to tell clients is… “You are sitting at a stoplight. Someone RAMS INTO YOU from the side, and then he has the gall to SUE YOU for being there.” Obviously it’s a bad analogy, but it does drive home the point that EVEN IF IT IS NOT YOUR FAULT AND YOU HAVE DONE NOTHING, YOU STILL MUST DEFEND YOURSELF.

      The problem with piracy is that most people who do download don’t realize it’s illegal, and those who know its illegal think they will never get caught. While it is better not to download at all, a smart pirate will download knowing they could get caught, and they arrange cannons around them (IP masking and VPN proxies) so that they hide their tracks. I mean, if you join a bittorrent swarm and you see people from Burma, Bangladesh, or Tajikistan online with you, chances are those people are from the U.S. and are properly protecting their connections. So why aren’t you?

      • I wasn’t encouraging piracy there in my last comment. I’m just discussing the difference between a smart pirate (one who covers their tracks), a naive pirate (who thinks he’ll never get caught), and an pirate who doesn’t know he’s a pirate (one who doesn’t even know piracy is illegal).

        On a personal note, I do encourage everyone to use VPN proxies and to only use https:// SSL encryption in your web browsing, and to remove all ads and tracking cookies (e.g., Doublecick) for simple PRIVACY reasons. If Fisher did even this, he would never have a lawsuit in the first place, even if they watched him download.

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  14. that anonymous coward says:

    Its one of those little things I do…
    I look at the proof of service and wonder how little is actually required.
    So based on a statement made by someone working for a company paid $55 to take care of this, the document was given to defendant. No description of defendant… and we end up with he said he said in the end. But the process server swears he delivered a document to a person he has never seen, met, or spoken to previously…
    On the internet no one knows your a dog, in one of these cases no one but the process server knows if they actually just served the dog.
    As written it wasn’t served until December, it took them 3 months to effect service… seems like something to do to someone who might be away on vacation to help your case.

    Meh

    • DieTrollDie says:

      Yes it was odd to see that document and and think a $55 fee resulted in a $1.5M judgment.

      DTD :)

      • that anonymous coward says:

        If one looks at service in many of these cases, that actually get to that point (so few do), one starts to find real questionable things.
        Addresses in the middle of lakes, addresses not actually attached to the defendants name (there was a case in a DC court where service by mail was accepted… except the address used did not match a single court document for the defendant), the recent FL case where we can’t attach the address to the defendant and service was given to a 3rd party with no apparent connection to the defendant (who we can’t even confirm is still alive.) , service made in states outside of the courts jurisdiction using the originating states standards for service and disguising the accused is in another state, and we can find more if we look.
        There is an assumption by the courts that lawyers adhere to the law, I think given the recent multiple violations of court orders in these cases by these lawyers Judges need to consider the option of trust but verify.

    • Anonymous says:

      When entry of judgment is sought against a party who has failed to plead or otherwise defend, a district court has an affirmative duty to look into its jurisdiction over both the subject matter and the parties. See Williams, 802 F.2d at 1203. A judgment entered without personal jurisdiction over the parties is void. See, e.g., Thos. P. Gonzalez Corp. v. Consejo Nacional De Produccion De Costa Rica, 614 F.2d 1247, 1255-56 (9th Cir. 1980), Veeck v. Commodity Enterprises, Inc., 487 F.2d 423, 426 (9th Cir.1973).

      • Anonymous says:

        “Because it is clear from the record that the District Court did not have personal jurisdiction over the Consejo and the judgment was, therefore, void, the District Court had a _nondiscretionary duty to grant relief from the default judgment._” Thos. P. at 1256.

      • that anonymous coward says:

        They need to look beyond jurisdiction and actually verify that they were in fact actually served. Some trolls claim we tell people to ignore it all and it will go away, while what we suggest is ignore threat letters but read everything sent to you to make sure you don’t miss that rare event of service.
        Trolls always try to make sure they proceed in the named cases in the proper court, but the question of personal jurisdiction is often ignored by some former lobbyists turned Judges and others who seek to punish those merely accused of a “crime” involving porn. They only want to hear what the troll has to say and ignore the mounting pile of evidence that these cases are extortion attempts dressed up with smoke and mirrors. One really has to question why a single Judge hasn’t once asked for their own expert to verify the claims of the trolls experts.

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  19. DieTrollDie says:

    Here is the Forbes article, “Gay Porn Website Gets $3 Million In Damages From BitTorrent Uploaders,” – http://www.forbes.com/sites/kashmirhill/2012/11/02/gay-porn-website-gets-3-million-in-damages-from-bittorrent-uploaders/

    “The site — which specializes in ethnic gay porn — got a set of $1.5 million default judgments against a Virginia man, Kywan Fisher, and a Delaware man, Cormelian Brown, both of whom used their paid memberships on Flava Works sites to download porn movies (legally) and then distribute them for free on BitTorrent sites (illegally), letting downloaders watch Flava Works’ movies — such as Mixxxed Nuts and its Thug Boy series about “gay black thugs” — without having to go through the site’s pay wall.”

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  21. paul says:

    it is the uploading that infringes, not the downloading. there is a big difference. This will definitely open the flood gates for many more legal actions, as the damages are so high. The incentive to settle will be overwhelming (as every recipient of a letter claiming infringement is guilty or a member of their household is).

  22. sharksman says:

    I got a letter and I paid. I was loosing sleep and was constantly worried. Now that it is over for me I still watch to see what is going on. I do not use bittorent for anything anymore, so in my case it worked as far as a detterent. BUT going after the uploader in my opinion makes perfect sense. Get the person that is actualy downloading from their site and uploading it to the bittorent for everyone to share. Most peple (myself included) had no idea that we would be targeted for a lawsuit by downloading. Yes i had downloaded movies from bittorent sites (not neccisarily the one i was acused of) but what it cost me in money and sleep was unfair but then again so is life. On the flipside people say that bittorent are costing the companies money are wrong. I downloaded stuff that I never watched or saw a portion and delted it. . So I have not spent money on their products since and I am very unlikly to do anytime soon. The practice of these lawsuits is a black eye to the justice system. But in this case if it would have went to trial and some real investigation was done and this person was in fact the person that dowloaded from their site and then uploaded to the internet then that person should be punished as the courts see fit. The amount rewarded is stupid because they will never get it and the trolls will just use it for more of a scare tactic. Like I said in my case it wasnt worth it to fight but this whole proccess reeks of something. Thank you all for the education and keeping up the blog. as the title of this blog says “DIE TROLL DIE”

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