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A gay smut production company has won a $1.5m award against a bloke who shared ten of its movies via the Bittorrent protocol.

It's a very rare example of an ordinary individual being whacked with full US statutory damages for copyright infringement - $150,000 per infringement. That's because the defendant Kywan Fisher failed to show up in court, leaving the judge no option but to impose the default judgment.

Porn studio Flava Works Inc said Fisher's ten videos were downloaded 3,449 times. It was pursuing 15 infringers but the cases against the others were dropped for lack of evidence. In fact, Fisher was only nicked because he was a subscriber to Flava's websites including Flavamen.com, CocoBoyz.com and Thugboy.com. This allowed him to be identified by a unique digital code Flava had embedded in the files. The licence agreement, obviously, didn't extend to sharing the works or as US law puts it, "placing them in the stream of commerce".

Flava's case against Fisher can be found here.

The United States' statutory damages for copyright infringement were introduced as a deterrence; in the digital era only two internet users have been on the sharp end. But that's because both Jammie Thomas and Joel Tenenbaum were gagging for a fight and decided to challenge the copyright system in court - after getting wobbly legal advice.

Wisely, the recording industry decided that punitive damages against punters were counter-productive. The campaign against file sharers made justice look arbitrary, the RIAA lost money on the legal actions, and it made it look like a bully.

The US industry's current strategy is a voluntary "graduated response" scheme giving the infringer at least six warnings - but there are no strikes. No fines can be levied, the user will not be disconnected - but will be able to appeal to a process administered by the American Arbitration Association (AAA). The biggest ISPs including AT&T, Comcast, Time Warner Cable and Verizon have agreed to take part. ®

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