The makers of the film Hellboy have suffered another setback in court after their second attempt to convince a judge that a $270,000 judgment against torrent site and uploader MKVCage failed. The filmmakers calculated the damages amount by multiplying the alleged infringements by the Blu-ray retail price, but this is not sufficient.
Until last summer, uploads from MKVCage frequently appeared on popular torrent sites. In addition, the ‘group’ also operated its own website.
This changed when the makers of the film ‘Hellboy’ took the alleged mastermind behind MKVCage to court last year.
In a lawsuit filed at a Hawaii federal court, HB Productions identified a Pakistani man named Muhammad Faizan as the operator. Soon after, the website went offline and the uploads stopped.
Hellboy’s makers weren’t pleased, however. When Faizan failed to show up in court, the movie company asked the court clerk to issue a default judgment, totaling more than $270,000 in infringement damages.
According to the movie company’s attorney, this amount was warranted. It represented the price of a Blu-ray copy of the film, multiplied by 16,942 US people who shared MKVCage’s Hellboy torrents.
When reviewing the request, Magistrate Judge Kenneth J. Mansfield wasn’t convinced. He advised the court to deny the damages request, as the “sum” is not as “certain” as Hellboy’s attorney makes it out to be.
At this point, it’s good to mention that “sum certain” mentions refer to a legal concept where the damages amount is obvious or easily calculated. For example, when a tenant fails to pay rent. However, in this case the damages number is not that straightforward.
After Judge Mansfield recommended denying the request for a default judgment, Hellboy’s attorney filed a supplement. He clarified that $15.95 per infringement is fair, as it represents the price of a Blu-ray disc at Walmarts across the US.
While that may be true, it wasn’t good enough for Judge Mansfield. Last week he issued a new recommendation where he again stated that Hellboy’s arguments are not sufficient.
The problem doesn’t appear to be the valuation of the Blu-ray. Instead, Judge Mansfield is not convinced that using the retail price multiplied by the number of infringements qualifies as a ‘sum certain.’
“The Complaint does not allege that $15.95 is a fair representation of the nationwide price for the Hellboy Blu-ray,” Judge Mansfield writes.
“Even if it did, however, the Motion and the Supplement fail to explain why an alleged ‘fair representation’ of the price for a Blu-ray of a motion picture is sufficient to render a copyright infringement claim ‘sum certain’ for purposes of Rule 55(b)(1).”
As there is no case law to support this type of damages for a clerk-issued default judgment, the Judge recommended that the court should deny the motion. This means that Hellboy must go back to the drawing board, again.
Late last week, a few days after the recommendation, the movie company did indeed reply. In a written objection, Hellboy’s attorney argued that their calculation of the damages “sum” is as “certain” as it gets.
“Plaintiff’s allegation that the retail price of a Blu-ray copy of the motion picture is $15.95 is deemed true.
Accordingly, the calculation of 15.95 x 16,942 = $270,902.58 is as certain and straight forward calculation that can be done.”
It’s now up to the court to make a final decision.
A copy of Magistrate Judge Kenneth J. Mansfield’s latest findings and recommendations is available here. Hellboy’s opposition brief can be found here (pdf).