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A tragic tale of ignorance, naked genitals and a record file-sharing penalty

By Simon Davies

In case you missed it, earlier this month an enthusiastic Illinois Federal court levied a record $1.5 million fine against a lone bitTorrent exponent who unlawfully shared ten somewhat unremarkable porn movies.

Maybe this latest case wasn’t the sort of battle that the Motion Picture Association of America and its ilk would have wanted as a landmark penalty, but it was an epic win nonetheless.

The vids were produced by Flava Works – those famed purveyors of Latino gay genitalia who have given us such memorable brands as ThugBoy and CocoBoyz.

Until now the company’s claim to fame in the legal world was that in 2009 it tried to carve a cyberspace precedent in Miami. The company argued that it should get away with running an unlicensed porn studio in a residential area on the grounds that the studio wasn’t really a business. All transactions were conducted in virtual space, not in a geographic location and so the City of Miami had no business imposing a license or a zoning restriction.

The local District Court – bless them – couldn’t really grasp this Internet thing (or indeed much of the existing case law) and found in favour of Flava. A year later the 11th Circuit Court of Appeal trashed that verdict and handed victory to the City of Miami.

And so from that celebrated epic battle of rights and morality the company moved this year to another of a completely different genre. Maybe this latest case wasn’t the sort of battle that the Motion Picture Association of America and its ilk would have wanted as a landmark penalty, but it was an epic win nonetheless.

In the red corner slouched the lawbreaking and metaphorically hunched file-sharer. In the blue corner, the aggrieved corporate citizen striving to make an honest buck tastefully monetising human talent by leveraging imagery of racism and brutality.

In the blue corner, the aggrieved corporate citizen striving to make an honest buck tastefully monetising human talent by leveraging imagery of racism and brutality.

Well… this might have been an epic battle had the defendant shown up to court, which it appears he didn’t. Perhaps he was doing that geekish thing of not checking his mail for three months, or maybe he was watching vids at the time. Who knows.

Still, contested or not, the magnitude of the penalty is breathtaking. In some respects Flava and the enemies of Peer-to-Peer file sharing struck it lucky with this case. The defendant was a naive fool. He used his own identity and bank details to access the legitimate video sites. He then started sharing the stream that he had pulled from those sites without realising that the company had embedded an encrypted code into the videos. Flava knew the source of every shared stream.

Flava and the enemies of Peer-to-Peer file sharing struck it lucky with this case. The defendant was a naive fool.

Had the prosecution been forced to rely solely on the IP address of the accused they’d have encountered a much tougher struggle. Courts are falling over themselves to establish that IP addresses are not sufficient evidence to secure a prosecution.

This whopper of a fine might be great news for property rights enforcement and litigious porn pedlars, but what about the feelings of the guys who got their tackle out in front of the camera? I’m curious to discover what Pinky Towers and Thug Nasty think of pirated viewing of their exploits on Bareback Booty Bandits, Dark Nut Rises and Class for Ass. Did they feel devalued and degraded by all those non-paying views?

More important – since we’re talking about morality – I’d love to know if the company intends handing out some bonuses to the boys. I’m guessing not. Flava probably despises the idea of profit sharing more than it hates file sharing.