Hydentra HLP Int. Limited v. Porn69.org et al

Filing 35

ORDER granting Plaintiff's 34 Motion for Default Judgment. The Clerk of the Court shall enter judgment awarding Plaintiff $12,600,000 in statutory damages and $24,917 in attorney's fees and costs. Defendants and their respective agents, servants, and employees are permanently enjoined from infringing on Plaintiff's copyrighted works. Signed by Judge David G Campbell on 6/10/2016. (ATD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Hydentra HLP Int. Limited, Plaintiff, 10 11 ORDER v. 12 No. CV-15-00451-PHX-DGC Porn69.org, et al., 13 Defendants. 14 15 After the Clerk of the Court entered default against Defendants Tan Bao Anh 16 Pham, Nguyen Le Tran, and Henry Jay (Doc. 30), Plaintiff Hydentra HLP Int. Limited 17 (“Hydentra”) moved for default judgment. Doc. 34. The Court will grant the motion. 18 I. Background. 19 On March 12, 2015, Plaintiff initiated this action against a group of four 20 pornographic websites (collectively “Porn69”), asserting claims for copyright 21 infringement based on Porn69’s publication of certain videos copyrighted by Plaintiff. 22 Doc. 1. Plaintiff filed a motion requesting leave to conduct discovery to determine the 23 owners and operators of Porn69. Doc. 8. The Court granted the motion. Doc. 11. 24 Thereafter, Plaintiff amended its complaint to add as Defendants the owners and 25 operators of Porn69: Tan Bao Anh Pham, Nguyen Le Tran, and Henry Jay. Doc. 17. 26 Defendant Tan Bao Anh Pham was personally served with the first amended complaint. 27 Doc. 22. With leave of court, Plaintiff served Defendants Nguyen Le Tran and Henry Jay 28 by email. Docs. 23, 26. 1 Defendants failed to appear after receiving service, and on January 21, 2016, the 2 Clerk of the Court entered default. Doc. 30. Plaintiff now moves for default judgment, 3 seeking (1) $12,600,000 in statutory damages, (2) $24,917 in attorney’s fees and costs, 4 (3) and a permanent injunction enjoining Defendants and their respective agents, 5 servants, and employees from infringing Plaintiff’s copyrighted works. Doc. 34-1 at 17. 6 II. Analysis. 7 A. 8 In deciding whether to grant default judgment, the Court may consider: (1) the 9 merits of the claim, (2) the sufficiency of the complaint, (3) the amount of money at 10 stake, (4) the possibility of prejudice to the plaintiff, (5) the possibility of a dispute 11 concerning material facts, (6) whether default was due to excusable neglect, and (7) the 12 policy favoring a decision on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th 13 Cir. 1986). In applying the Eitel factors, “the factual allegations of the complaint, except 14 those relating to the amount of damages, will be taken as true.” Geddes v. United Fin. 15 Group, 559 F.2d 557, 560 (9th Cir. 1977). Whether Plaintiff is Entitled to Default Judgment. 16 The first two factors favor a default judgment. A copyright infringement claim 17 must show that (1) the plaintiff owns a valid copyright and (2) the defendant infringed the 18 copyright. See Funky Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d 1072, 1076 19 (9th Cir. 2006). Plaintiff alleges that it owns the copyright to certain erotic films and 20 Defendants displayed 84 of these films. 21 substantiates these allegations through declarations. Docs. 34-2, ¶¶ 8, 23; 34-3, ¶¶ 19, 22 24. Plaintiff has advanced a meritorious claim for copyright infringement. Doc. 17, ¶¶ 28, 58-61, 72-73. Plaintiff 23 The third factor disfavors entry of default judgment. Plaintiff seeks over $12 24 million – a significant sum of money. Rule 55 does not limit the amount of money that 25 can be awarded in a default judgment, and courts have entered default judgments for even 26 greater sums. See, e.g., State St. Bank & Trust Co. v. Inversiones Errazuriz Limitada, 27 246 F. Supp. 2d 231, 233 (S.D.N.Y. 2002) (refusing to vacate default judgment for $140 28 million), aff’d, 374 F.3d 158 (2d Cir. 2004). Nonetheless, courts are ordinarily reluctant -2- 1 to enter a default judgment when the stakes are high. 2 The fourth factor favors entry of default judgment. Plaintiff has been injured by 3 websites hosted in Arizona (Doc. 34-3, ¶ 26), and has brought suit in Arizona. If Plaintiff 4 cannot recover here, it is doubtful it can recover anywhere. “Plaintiff[] will likely be 5 without other recourse” if its motion is not granted. PepsiCo, Inc. v. Cal. Sec. Cans, 238 6 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002). 7 The fifth factor favors entry of default judgment. Plaintiff has provided 8 declarations indicating that Plaintiff owned copyrights to certain erotic films and 9 Defendants infringed upon these copyrights. There is nothing to indicate that these facts 10 can be reasonably disputed. 11 The sixth factor favors a default judgment. Although Defendants were properly 12 served with the summons and the complaint, they made no effort whatsoever to respond 13 to Plaintiff’s claims or participate in this proceeding. Further, Plaintiff presents evidence 14 that Defendants stopped using Porn69 upon being served with this lawsuit, and 15 established new websites where they continued to display Plaintiff’s works without 16 authorization. Doc. 34-3, ¶¶ 38-39. This indicates that Defendants were aware of this 17 lawsuit and that their failure to participate was willful, not negligent. 18 The seventh factor disfavors entry of default judgment. “Cases should be decided 19 upon their merits whenever reasonably possible.” Eitel, 782 F.2d at 1472. This concern 20 is alleviated somewhat by the fact that Plaintiff presents a strong case and would likely 21 prevail if the matter were litigated on the merits. “Moreover, Defendant[s’] failure to 22 answer Plaintiff[’s] Complaint makes a decision on the merits impractical, if not 23 impossible.” Cal. Sec. Cans, 238 F. Supp. 2d at 1177. 24 Weighing these factors, the Court concludes that entry of default judgment is 25 appropriate. 26 supported by evidence. 27 disfavored procedural mechanism, Defendants were aware of the stakes in this case and 28 willfully ignored it, making adjudication on the merits impossible. Plaintiff has advanced a meritorious claim for copyright infringement, Although Plaintiff seeks a significant judgment through a -3- 1 B. 2 In granting default judgment, the Court may not simply accept a plaintiff's 3 requested damages. Rather, “[t]here must be an evidentiary basis for the damages sought 4 by plaintiff, and a district court may determine there is sufficient evidence either based 5 upon evidence presented at a hearing or upon a review of detailed affidavits and 6 documentary evidence.” Cement & Concrete Workers Dist. Council Welfare Fund v. 7 Metro Found. Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012) (citations omitted); see 8 also Taylor Made Golf Co. v. Carsten Sports, Ltd., 175 F.R.D. 658, 661 (S.D. Cal.1997). Extent of Damages. 9 A copyright owner may elect to recover statutory damages in lieu of actual 10 damages if the copyright in question was registered with the U.S. Copyright Office 11 before the date of infringement. 17 U.S.C. §§ 412, 504(a). “In a case where the 12 copyright owner sustains the burden of proving, and the court finds, that infringement 13 was committed willfully, the court in its discretion may increase the award of statutory 14 damages to a sum of not more than $150,000.” § 504(c)(2). 15 Plaintiff requests the maximum statuary award for each infringement. The Court 16 concludes that such an award is appropriate. Plaintiff has alleged, and substantiated with 17 declarations, that all of the films at issue here were registered with the Copyright Office 18 before the date of Defendants’ infringement. Docs. 17, ¶¶ 28, 70; 34-2, ¶ 8. Plaintiff is 19 therefore entitled to statutory damages. 20 infringement was willful. Doc. 17, ¶¶ 77, 83-84. This allegation is accepted as true. See 21 Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008) (“all factual 22 allegations in the complaint are deemed true, including the allegation of [defendant’s] 23 willful infringement of [plaintiff’s] trademarks”). 24 evidence that Defendants continue to infringe their copyrights – on new websites – after 25 service in this case. Doc. 34-3, ¶¶ 38-39. “[C]ourts have repeatedly emphasized that 26 defendants must not be able to sneer in the face of copyright owners and copyright laws,” 27 Int’l Korwin Corp. v. Kowalczyk, 665 F. Supp. 652, 659 (N.D. Ill. 1987), and have 28 awarded the maximum statutory damages in cases involving willful infringement. See, Plaintiff has also alleged that Defendants’ -4- Moreover, Plaintiff has provided 1 e.g., Perfect 10, Inc. v. Talisman Communs., Inc., No. CV 99-10450(RAP)(Mcx), 2000 2 U.S. Dist. LEXIS 4564, at *10-11 (C.D. Cal. Mar. 27, 2000) (awarding maximum 3 statutory damages based on defendant’s “willful and egregious” infringement on 4 plaintiff’s erotic photos). 5 statutory award per infringed work – $150,000 for each of the 84 works infringed upon, 6 for a total of $12,600,000. 7 2. The Court will therefore award Plaintiffs the maximum Attorney’s Fees. 8 A prevailing copyright owner may recover costs and reasonable attorney’s fees if 9 the copyright in question was registered with the U.S. Copyright Office before the date of 10 the infringement. 17 U.S.C. §§ 412, 505. “An award of attorneys’ fees is appropriate 11 where . . . there is a finding of willful infringement.” Warner Bros. Entm’t, Inc. v. Duhy, 12 No. CV 09-5798-GHK (FMOx), 2009 U.S. Dist. LEXIS 123332, at *8-9 (C.D. Cal. Nov. 13 30, 2009) (citing Kepner-Tregoe, Inc. v. Vroom, 186 F.3d 283, 289 (2d Cir. 1999)). The 14 Court has already determined that the infringement in this case was willful. Plaintiffs’ 15 request – which reflects 51.6 hours of attorney work at a rate of $450 per hour and certain 16 costs (Doc. 34-4) – is reasonable and proportionate to the needs of this case. The Court 17 will therefore award $24,220 in attorney’s fees and costs. 18 C. 19 A court with jurisdiction over a copyright infringement action may “grant 20 temporary and final injunctions on such terms as it may deem reasonable to prevent or 21 restrain infringement of a copyright.” 17 U.S.C. § 502. In copyright cases, courts have 22 awarded permanent injunctive relief as part of default judgment where the defendant 23 continued to violate the plaintiff’s rights and the balance of equities and the public 24 interest favored such an injunction. See, e.g., Sony Music Entm’t, Inc. v. Glob. Arts 25 Prods., 45 F. Supp. 2d 1345, 1348 (S.D. Fla. 1999). Plaintiff provides evidence that 26 Defendants continue to violate its copyrights, and that Defendants’ infringement has 27 caused it significant harm. 28 concludes that the balance of equities and the public interest in enforcement of copyright Injunctive Relief. Docs. 34-3, ¶¶ 38-39; 34-2, ¶¶ 19, 24-27. -5- The Court 1 laws favor an injunction. 2 Defendants and their respective agents, servants, and employees from infringing upon 3 Plaintiff’s copyrighted works. The Court will grant a permanent injunction prohibiting 4 IT IS ORDERED: 5 1. Plaintiff’s motion for default judgment (Doc. 34) is granted. 6 2. The Clerk of the Court shall enter judgment awarding Plaintiff 7 8 9 10 $12,600,000 in statutory damages and $24,917 in attorney’s fees and costs. 3. Defendants and their respective agents, servants, and employees are permanently enjoined from infringing on Plaintiff’s copyrighted works. Dated this 10th day of June, 2016. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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