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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Hydentra HLP Int. Limited,
Plaintiff,

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ORDER

v.

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No. CV-15-00451-PHX-DGC

Porn69.org, et al.,

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Defendants.

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After the Clerk of the Court entered default against Defendants Tan Bao Anh

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Pham, Nguyen Le Tran, and Henry Jay (Doc. 30), Plaintiff Hydentra HLP Int. Limited

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(“Hydentra”) moved for default judgment. Doc. 34. The Court will grant the motion.

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I.

Background.

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On March 12, 2015, Plaintiff initiated this action against a group of four

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pornographic websites (collectively “Porn69”), asserting claims for copyright

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infringement based on Porn69’s publication of certain videos copyrighted by Plaintiff.

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Doc. 1. Plaintiff filed a motion requesting leave to conduct discovery to determine the

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owners and operators of Porn69. Doc. 8. The Court granted the motion. Doc. 11.

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Thereafter, Plaintiff amended its complaint to add as Defendants the owners and

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operators of Porn69: Tan Bao Anh Pham, Nguyen Le Tran, and Henry Jay. Doc. 17.

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Defendant Tan Bao Anh Pham was personally served with the first amended complaint.

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Doc. 22. With leave of court, Plaintiff served Defendants Nguyen Le Tran and Henry Jay

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by email. Docs. 23, 26.

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Defendants failed to appear after receiving service, and on January 21, 2016, the

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Clerk of the Court entered default. Doc. 30. Plaintiff now moves for default judgment,

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seeking (1) $12,600,000 in statutory damages, (2) $24,917 in attorney’s fees and costs,

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(3) and a permanent injunction enjoining Defendants and their respective agents,

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servants, and employees from infringing Plaintiff’s copyrighted works. Doc. 34-1 at 17.

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II.

Analysis.

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A.

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In deciding whether to grant default judgment, the Court may consider: (1) the

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merits of the claim, (2) the sufficiency of the complaint, (3) the amount of money at

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stake, (4) the possibility of prejudice to the plaintiff, (5) the possibility of a dispute

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concerning material facts, (6) whether default was due to excusable neglect, and (7) the

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policy favoring a decision on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th

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Cir. 1986). In applying the Eitel factors, “the factual allegations of the complaint, except

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those relating to the amount of damages, will be taken as true.” Geddes v. United Fin.

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Group, 559 F.2d 557, 560 (9th Cir. 1977).

Whether Plaintiff is Entitled to Default Judgment.

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The first two factors favor a default judgment. A copyright infringement claim

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must show that (1) the plaintiff owns a valid copyright and (2) the defendant infringed the

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copyright. See Funky Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d 1072, 1076

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(9th Cir. 2006). Plaintiff alleges that it owns the copyright to certain erotic films and

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Defendants displayed 84 of these films.

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substantiates these allegations through declarations. Docs. 34-2, ¶¶ 8, 23; 34-3, ¶¶ 19,

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24. Plaintiff has advanced a meritorious claim for copyright infringement.

Doc. 17, ¶¶ 28, 58-61, 72-73.

Plaintiff

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The third factor disfavors entry of default judgment. Plaintiff seeks over $12

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million – a significant sum of money. Rule 55 does not limit the amount of money that

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can be awarded in a default judgment, and courts have entered default judgments for even

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greater sums. See, e.g., State St. Bank & Trust Co. v. Inversiones Errazuriz Limitada,

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246 F. Supp. 2d 231, 233 (S.D.N.Y. 2002) (refusing to vacate default judgment for $140

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million), aff’d, 374 F.3d 158 (2d Cir. 2004). Nonetheless, courts are ordinarily reluctant

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to enter a default judgment when the stakes are high.

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The fourth factor favors entry of default judgment. Plaintiff has been injured by

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websites hosted in Arizona (Doc. 34-3, ¶ 26), and has brought suit in Arizona. If Plaintiff

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cannot recover here, it is doubtful it can recover anywhere. “Plaintiff[] will likely be

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without other recourse” if its motion is not granted. PepsiCo, Inc. v. Cal. Sec. Cans, 238

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F. Supp. 2d 1172, 1177 (C.D. Cal. 2002).

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The fifth factor favors entry of default judgment.

Plaintiff has provided

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declarations indicating that Plaintiff owned copyrights to certain erotic films and

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Defendants infringed upon these copyrights. There is nothing to indicate that these facts

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can be reasonably disputed.

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The sixth factor favors a default judgment. Although Defendants were properly

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served with the summons and the complaint, they made no effort whatsoever to respond

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to Plaintiff’s claims or participate in this proceeding. Further, Plaintiff presents evidence

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that Defendants stopped using Porn69 upon being served with this lawsuit, and

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established new websites where they continued to display Plaintiff’s works without

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authorization. Doc. 34-3, ¶¶ 38-39. This indicates that Defendants were aware of this

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lawsuit and that their failure to participate was willful, not negligent.

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The seventh factor disfavors entry of default judgment. “Cases should be decided

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upon their merits whenever reasonably possible.” Eitel, 782 F.2d at 1472. This concern

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is alleviated somewhat by the fact that Plaintiff presents a strong case and would likely

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prevail if the matter were litigated on the merits. “Moreover, Defendant[s’] failure to

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answer Plaintiff[’s] Complaint makes a decision on the merits impractical, if not

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impossible.” Cal. Sec. Cans, 238 F. Supp. 2d at 1177.

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Weighing these factors, the Court concludes that entry of default judgment is

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appropriate.

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supported by evidence.

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disfavored procedural mechanism, Defendants were aware of the stakes in this case and

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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

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B.

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In granting default judgment, the Court may not simply accept a plaintiff's

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requested damages. Rather, “[t]here must be an evidentiary basis for the damages sought

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by plaintiff, and a district court may determine there is sufficient evidence either based

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upon evidence presented at a hearing or upon a review of detailed affidavits and

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documentary evidence.” Cement & Concrete Workers Dist. Council Welfare Fund v.

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Metro Found. Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012) (citations omitted); see

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also Taylor Made Golf Co. v. Carsten Sports, Ltd., 175 F.R.D. 658, 661 (S.D. Cal.1997).

Extent of Damages.

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A copyright owner may elect to recover statutory damages in lieu of actual

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damages if the copyright in question was registered with the U.S. Copyright Office

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before the date of infringement. 17 U.S.C. §§ 412, 504(a). “In a case where the

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copyright owner sustains the burden of proving, and the court finds, that infringement

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was committed willfully, the court in its discretion may increase the award of statutory

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damages to a sum of not more than $150,000.” § 504(c)(2).

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Plaintiff requests the maximum statuary award for each infringement. The Court

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concludes that such an award is appropriate. Plaintiff has alleged, and substantiated with

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declarations, that all of the films at issue here were registered with the Copyright Office

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before the date of Defendants’ infringement. Docs. 17, ¶¶ 28, 70; 34-2, ¶ 8. Plaintiff is

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therefore entitled to statutory damages.

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infringement was willful. Doc. 17, ¶¶ 77, 83-84. This allegation is accepted as true. See

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Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008) (“all factual

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allegations in the complaint are deemed true, including the allegation of [defendant’s]

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willful infringement of [plaintiff’s] trademarks”).

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evidence that Defendants continue to infringe their copyrights – on new websites – after

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service in this case. Doc. 34-3, ¶¶ 38-39. “[C]ourts have repeatedly emphasized that

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defendants must not be able to sneer in the face of copyright owners and copyright laws,”

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Int’l Korwin Corp. v. Kowalczyk, 665 F. Supp. 652, 659 (N.D. Ill. 1987), and have

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awarded the maximum statutory damages in cases involving willful infringement. See,

Plaintiff has also alleged that Defendants’

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Moreover, Plaintiff has provided

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e.g., Perfect 10, Inc. v. Talisman Communs., Inc., No. CV 99-10450(RAP)(Mcx), 2000

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U.S. Dist. LEXIS 4564, at *10-11 (C.D. Cal. Mar. 27, 2000) (awarding maximum

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statutory damages based on defendant’s “willful and egregious” infringement on

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plaintiff’s erotic photos).

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statutory award per infringed work – $150,000 for each of the 84 works infringed upon,

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for a total of $12,600,000.

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2.

The Court will therefore award Plaintiffs the maximum

Attorney’s Fees.

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A prevailing copyright owner may recover costs and reasonable attorney’s fees if

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the copyright in question was registered with the U.S. Copyright Office before the date of

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the infringement. 17 U.S.C. §§ 412, 505. “An award of attorneys’ fees is appropriate

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where . . . there is a finding of willful infringement.” Warner Bros. Entm’t, Inc. v. Duhy,

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No. CV 09-5798-GHK (FMOx), 2009 U.S. Dist. LEXIS 123332, at *8-9 (C.D. Cal. Nov.

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30, 2009) (citing Kepner-Tregoe, Inc. v. Vroom, 186 F.3d 283, 289 (2d Cir. 1999)). The

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Court has already determined that the infringement in this case was willful. Plaintiffs’

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request – which reflects 51.6 hours of attorney work at a rate of $450 per hour and certain

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costs (Doc. 34-4) – is reasonable and proportionate to the needs of this case. The Court

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will therefore award $24,220 in attorney’s fees and costs.

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C.

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A court with jurisdiction over a copyright infringement action may “grant

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temporary and final injunctions on such terms as it may deem reasonable to prevent or

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restrain infringement of a copyright.” 17 U.S.C. § 502. In copyright cases, courts have

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awarded permanent injunctive relief as part of default judgment where the defendant

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continued to violate the plaintiff’s rights and the balance of equities and the public

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interest favored such an injunction. See, e.g., Sony Music Entm’t, Inc. v. Glob. Arts

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Prods., 45 F. Supp. 2d 1345, 1348 (S.D. Fla. 1999). Plaintiff provides evidence that

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Defendants continue to violate its copyrights, and that Defendants’ infringement has

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caused it significant harm.

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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.

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The Court

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laws favor an injunction.

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Defendants and their respective agents, servants, and employees from infringing upon

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Plaintiff’s copyrighted works.

The Court will grant a permanent injunction prohibiting

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IT IS ORDERED:

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1.

Plaintiff’s motion for default judgment (Doc. 34) is granted.

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2.

The Clerk of the Court shall enter judgment awarding Plaintiff

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$12,600,000 in statutory damages and $24,917 in attorney’s fees and costs.
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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.

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