DFSB Kollective Co., Ltd. et al v. John Does 1 through 10
Filing
38
ORDER by Judge Claudia Wilken DECLINING TO ADOPT MAGISTRATE JUDGES 34 REPORT AND RECOMMENDATION AND GRANTING PLAINTIFFS 28 MOTION FOR DEFAULT JUDGMENT. (ndr, COURT STAFF) (Filed on 3/28/2013)
1
IN THE UNITED STATES DISTRICT COURT
2
FOR THE NORTHERN DISTRICT OF CALIFORNIA
3
4
7
DFSB KOLLECTIVE CO., LTD.; NEGA
NETWORK; JUNGLE ENTERTAINMENT;
FOUNDATION RECORDS; WOOLIM
ENTERTAINMENT; AFTERMOON MUSIC
ENTERTAINMENT, INC.; PARAGON
MUSIC CORP.; ROXTA MUSIC; and
SPOT/MONKY GLOBAL,
8
Plaintiffs,
5
6
9
United States District Court
For the Northern District of California
10
11
12
13
No. C 11-1051 CW
ORDER DECLINING TO
ADOPT MAGISTRATE
JUDGE’S REPORT AND
RECOMMENDATION
(Docket No. 34)
AND GRANTING
PLAINTIFFS’ MOTION
FOR DEFAULT
JUDGMENT (Docket
No. 28)
v.
BING YANG; INDRAWATI YANG; and
JOHN DOES 3-10,
Defendants.
________________________________/
Plaintiffs DFSB Kollective Co. Ltd., Nega Network, Jungle
14
Entertainment, Foundation Records, Woolim Entertainment, Afternoon
15
Music Entertainment, Paragon Music Corp., Roxta Music and
16
Spot/Monky Global moved for default judgment on their claims
17
against Defendants Bing Yang and Indrawati Yang.
The motion was
18
referred to a Magistrate Judge, who issued an order to show cause
19
why the case should not be dismissed for lack of personal
20
jurisdiction and improper venue.
After receiving their response,
21
the Magistrate Judge recommended dismissing the case for lack of
22
personal jurisdiction and improper venue.
Plaintiffs object to
23
his report and recommendation.
Having considered the papers filed
24
by Plaintiffs, the Court declines to adopt the Magistrate Judge’s
25
recommendation and grants Plaintiffs’ motion for default judgment.
26
27
28
1
2
3
4
BACKGROUND
I.
Facts
The following allegations were made in Plaintiffs’ First
Amended Complaint (1AC).
5
Plaintiff DFSB Kollective Co. Ltd. is a Korean corporation
6
that has the right to promote, protect and enforce the musical-
7
recording copyrights owned by Plaintiffs Nega Network, Jungle
8
Entertainment, Foundation Records, Woolim Entertainment, Afternoon
9
Music Entertainment, Paragon Music Corp., Roxta Music and
United States District Court
For the Northern District of California
10
Spot/Monky Global.
11
corporation based in Seoul, Korea.
12
Plaintiffs were issued by the United States Copyright Office and
13
cover various Korean pop songs and their corresponding album
14
artwork.
15
1AC ¶¶ 7-15.
Each Plaintiff is a Korean
Id.
The copyrights owned by
Id. at ¶¶ 7, 16 & Ex. A.
Defendant Bing Yang is an individual who is a resident of
16
Vietnam and uses the following aliases on various websites: Kpop
17
Explorer, Bingyang, Bingyang.co.cc and Bingyang1411.
18
Bing Yang “conducts business” through websites located at
19
kpopexplorer.wordpress.com and bingyang.co.cc.
20
also uses the name “Kpop Explorer” on the online blogging site
21
Wordpress and the names “Bingyang,” “Bingyang.co.cc” and
22
“Bingyang1411” on various web lockers or third-party storage
23
sites.
Id.
Id. at ¶ 20.
Bing Yang
Id.
24
Defendant Indrawati Yang is an individual who is a resident
25
of Indonesia and uses the following aliases on various websites:
26
Asian Loud, Korean Wave, Clarrie, Koreanmusicfans, joehanny and
27
Kpopsounds.
28
through websites located at www.asianloud.co.cc,
Id. at ¶ 21.
Indrawati Yang “conducts business”
2
1
www.asianloud.net, kpopsounds.blogspot.com,
2
koreanmusicdownload.blogspot.com, koreanmusicswave.blogspot.com,
3
koreanmusicswave.blogspot.com/2010/04/freeq-free-4-all.html and
4
kpopsounds.blog127.fc2.com.
5
names “Asian Loud” on the social networking site Facebook, “Korean
6
Wave” and “Clarrie” on the online blogging site Blogger,
7
“Koreanmusicfans” on the online payment processing site PayPal,
8
“joehanny” on the online advertisement site Linkbucks, file
9
sharing site Mediafire and social networking site Twitter,
Id.
Indrawati Yang also uses the
United States District Court
For the Northern District of California
10
“Kpopsounds88” on the online video community YouTube and “Kpop
11
Sounds” on the online blogging site FC2.
Id.
12
Using the aliases identified above and others, Defendants
13
search for, collect, index and post on their websites links to
14
content available on third-party websites, which include material
15
that infringes on Plaintiffs’ copyrights.
16
allege that Defendants’ websites provide to “Internet users” links
17
to material that would otherwise be inaccessible to them and that,
18
by compiling and indexing the links to the infringing content,
19
Defendants make the infringing content “easily accessible to
20
users.”
21
contain images of the copyrighted artwork that is associated with
22
Plaintiffs’ albums, in order to enhance the “user interface” on
23
the websites.
24
Id. at ¶ 24.
Id. at ¶ 3.
Plaintiffs
In addition to links, Defendants’ websites
Id. at ¶¶ 23, 25.
To download or listen to a Plaintiffs’ copyrighted material
25
using Defendants’ website, an internet user clicks on a link,
26
which is next to an image of the cover associated with the
27
relevant album.
28
link, the user is directed to a third party website where the user
Id. at ¶ 26.
When an internet user clicks on the
3
1
“may be given the option to download all or part of the album.”
2
Id. at ¶ 27.
3
uploaded Plaintiffs’ copyrighted work to the third party websites.
4
Id.
5
located outside the United States.”
6
Plaintiffs allege that Defendants themselves have
These third party websites are “often hosted on servers
Id. at ¶ 24.
Defendants derive revenue by displaying advertisements on
7
their websites.
8
links are offered are surrounded by advertisements.”
9
Advertisers pay to be included in advertising on Defendants’
Id. at ¶ 26.
“The listings of albums for which
Id.
United States District Court
For the Northern District of California
10
websites, either “directly or through advertising brokers such as
11
Google.”
12
Id.
Plaintiffs allege that “Defendants have acted in willful
13
disregard of laws protecting” their copyrights and that this has
14
caused “substantial damage to the value of their creative works.”
15
Id. at ¶ 31.
16
copyright infringement, contributory copyright infringement and
17
inducing copyright infringement.
18
Plaintiffs assert claims against Defendants for
Id. at ¶ 4.
Plaintiffs allege that this Court has personal jurisdiction
19
over Defendants “because, among other things, (a) each of the
20
Defendants or their respective agents are doing business in this
21
District; and (b) the DFSB Plaintiffs are informed and believe,
22
and upon that basis allege, that a substantial part of the
23
wrongful acts committed by Defendants has occurred in interstate
24
commerce in the State of California and Northern District of
25
California.”
26
appropriate here because the “events giving rise to the claims
27
alleged herein occurred, among other places, within this judicial
28
district.”
Id. at ¶ 6.
They also allege that venue is
Id.
4
1
II.
2
Procedural history
Plaintiffs filed this action on March 7, 2011.
Docket No. 1.
3
After the Court granted permission to serve Defendants by email,
4
Plaintiffs completed service in this manner on January 6, 2012.
5
Docket Nos. 19, 23, 24.
6
Defendants have not appeared or filed an answer to the 1AC.
7
On February 16, 2012, the Clerk entered default as to both
8
Defendants.
9
Docket No. 26.
On March 23, 2012, Plaintiffs filed the instant motion for
United States District Court
For the Northern District of California
10
default judgment.
11
Magistrate Judge for a report and recommendation.
12
30.
Docket No. 28.
The motion was referred to a
Docket Nos. 29,
13
On May 21, the Magistrate Judge issued an order to show cause
14
why he should not recommend that the case be dismissed for lack of
15
personal jurisdiction and improper venue.
16
17
18
Docket No. 31.
On June 4, 2012, Plaintiffs responded to the order to show
cause.
Docket No. 32.
On July 18, 2012, the Magistrate Judge issued a report and
19
recommendation, recommending that the Court dismiss the complaint
20
for lack of personal jurisdiction and improper venue and deny the
21
motion for default judgment.
22
Docket No. 34.
On August 1, 2012, Plaintiffs filed an objection to the
23
report and recommendation.
24
the Court take judicial notice of a declaration that Bernie Cho,
25
the President of DFSB, filed in a similar case in this district.
26
Docket No. 37.
27
notice of the Cho Declaration, but not of the truth of the facts
28
asserted therein.
Docket No. 36.
They also request that
The Court grants this request and takes judicial
5
1
LEGAL STANDARD
2
When a party files a timely objection to a magistrate judge’s
3
report and recommendation, the district court must “make a de novo
4
determination of those portions of the report or specified . . .
5
recommendations to which objection is made,” and “may accept,
6
reject, or modify, in whole or in part, the findings or
7
recommendations made by the magistrate.”
8
§ 636(b)(1)(c); see also Fed. R. Civ. P. 72(b)(3).
9
United States District Court
For the Northern District of California
10
11
28 U.S.C.
DISCUSSION
I.
Jurisdiction
“When entry of judgment is sought against a party who has
12
failed to plead or otherwise defend, a district court has an
13
affirmative duty to look into its jurisdiction over both the
14
subject matter and the parties.”
15
(9th Cir. 1999).
In re Tuli, 172 F.3d 707, 712
16
A. Subject Matter Jurisdiction
17
Plaintiffs bring claims against Defendants for copyright
18
infringement in violation of 17 U.S.C. § 501, contributory
19
copyright infringement and inducement of copyright infringement.
20
The Court has subject matter jurisdiction over these claims
21
pursuant to 28 U.S.C. sections 1331 and 1338.
22
B. Personal Jurisdiction
23
“The party seeking to invoke jurisdiction has the burden of
24
establishing that jurisdiction exists.”
25
Harvey, 734 F.2d 1389, 1392 (9th Cir. 1984).
26
not conduct an evidentiary hearing regarding personal
27
jurisdiction, “the plaintiff need make only a prima facie showing
28
of jurisdictional facts.”
Id.
Flynt Distributing Co. v.
Where the court does
To satisfy this burden, the
6
1
plaintiff “need only demonstrate facts that if true would support
2
jurisdiction over the defendant.”
3
1495, 1498 (9th Cir. 1995).
4
the bare allegations of its complaint, but uncontroverted
5
allegations in the complaint must be taken as true.”
6
Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir.
7
2011) (internal quotation marks and citation omitted).
8
may not assume the truth of such allegations if they are
9
contradicted by affidavit.
Ballard v. Savage, 65 F.3d
“The plaintiff cannot simply rest on
Mavrix
The court
Data Disc, Inc. v. Systems Tech.
United States District Court
For the Northern District of California
10
Assocs., Inc., 557 F.2d 1280, 1284 (9th Cir. 1977).
11
factual disputes are resolved in the plaintiff’s favor.
12
Photo, 647 F.3d at 1223 (citing Pebble Beach Co. v. Caddy, 453
13
F.3d 1151, 1154 (9th Cir. 2006).
14
However,
Mavrix
There are two independent limitations on a court’s power to
15
exercise personal jurisdiction over a non-resident defendant: the
16
applicable state personal jurisdiction rule and constitutional
17
principles of due process.
18
(9th Cir. 1990).
19
co-extensive with federal due process requirements, jurisdictional
20
inquiries under state law and federal due process standards merge
21
into one analysis.
22
(9th Cir. 1993).
23
jurisdiction over a non-resident defendant will violate due
24
process unless the defendant has established such “minimum
25
contacts” with the forum state that the exercise of jurisdiction
26
“does not offend traditional notions of fair play and substantial
27
justice.”
Sher v. Johnson, 911 F.2d 1357, 1361
Because California’s jurisdictional statute is
Rano v. Sipa Press, Inc., 987 F.2d 580, 587
Under that analysis, the exercise of
Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
28
7
1
The court’s exercise of personal jurisdiction may be either
2
general or specific.
3
defendant maintains significant contacts with the forum state,
4
even if the cause of action is unrelated to those contacts.
5
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
6
414 (1984).
7
jurisdiction over Defendants.
8
9
General jurisdiction exists when the
Plaintiffs do not contend that the Court has general
Specific jurisdiction exists when the cause of action arises
out of the defendant’s contacts with the forum state, even if
United States District Court
For the Northern District of California
10
those contacts are isolated and sporadic.
11
1287.
12
whether they may assert specific jurisdiction in a particular
13
case: (1) the foreign defendant must purposefully direct its
14
activities or consummate some transaction with the forum or a
15
resident thereof, or perform some act by which it purposefully
16
avails itself of the privilege of conducting business in the
17
forum, thereby invoking the benefits and protections of its laws;
18
(2) the claim must be one which arises out of or results from the
19
defendant’s forum-related activities; and (3) the exercise of
20
jurisdiction must be reasonable.
21
1421 (9th Cir. 1987).
22
to assert jurisdiction.
23
Cruz, 649 F.2d 1266, 1270 (9th Cir. 1981).
Courts in this circuit use a three-prong test to determine
24
25
Data Disc, 557 F.2d at
Lake v. Lake, 817 F.2d 1416,
Each of these conditions must be satisfied
Insurance Co. of N. Am. v. Marina Salina
1. Purposeful direction or availment
The first factor of the test for specific jurisdiction can be
26
met by showing either purposeful availment or purposeful
27
direction.
Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d
28
8
1
1124, 1128 (9th Cir. 2010).
2
purposeful direction framework.
3
The Magistrate Judge applied the
Plaintiffs object to this.
The Ninth Circuit has explained that, although courts “often
4
use the phrase ‘purposeful availment’ in shorthand fashion,” these
5
are two distinct concepts.
6
Motor Co., 374 F.3d 797, 802 (9th Cir. 2004).
7
availment analysis is most often used in suits sounding in
8
contract.”
9
himself of the privilege of doing business in a forum state
Id.
See Schwarzenegger v. Fred Martin
“A purposeful
“A showing that a defendant purposefully availed
United States District Court
For the Northern District of California
10
typically consists of evidence of the defendant’s actions in the
11
forum, such as executing or performing a contract there.”
12
“By taking such actions, a defendant ‘purposefully avails itself
13
of the privilege of conducting activities within the forum State,
14
thus invoking the benefits and protections of its laws.’”
15
(quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).
16
purposeful direction analysis, on the other hand, is most often
17
used in suits sounding in tort.”
18
purposefully directed his conduct toward a forum state, by
19
contrast, usually consists of evidence of the defendant’s actions
20
outside the forum state that are directed at the forum, such as
21
the distribution in the forum state of goods originating
22
elsewhere.”
23
recently explained that, where, as here, “the underlying action is
24
copyright infringement, which is often characterized as a tort,”
25
purposeful direction is “the proper analytical framework.”
26
Brayton Purcell, 606 F.3d at 1128.
27
use of the purposeful direction framework was appropriate.
Id.
9
Id.
“A
“A showing that a defendant
Id. at 803 (citations omitted).
28
Id.
The Ninth Circuit
Thus, the Magistrate Judge’s
1
The Ninth Circuit “evaluates purposeful direction using the
2
three-part ‘Calder-effects’ test, taken from the Supreme Court's
3
decision in Calder v. Jones, 465 U.S. 783 (1984).”
4
Purcell, 606 F.3d at 1128.
5
allegedly must have (1) committed an intentional act,
6
(2) expressly aimed at the forum state, (3) causing harm that the
7
defendant knows is likely to be suffered in the forum state.’”
8
Id.
9
Brayton
“Under this test, ‘the defendant
A. Intentional Act
United States District Court
For the Northern District of California
10
The Magistrate Judge recommended finding that the first
11
element of the Calder effects test is met here because Defendants
12
acted intentionally in operating websites containing links to
13
material that allegedly infringes Plaintiffs’ copyrights.
14
No. 34, 7.
15
the Court finds that it is correct.
16
17
Docket
Plaintiffs do not object to that recommendation, and
B. Express Aiming
“The second part of the Calder-effects test requires that the
18
defendant’s conduct be expressly aimed at the forum.”
19
Purcell, 606 F.3d at 1129.
20
‘something more’ than mere foreseeability [is required] in order
21
to justify the assertion of personal jurisdiction and that
22
‘something more’ means conduct expressly aimed at the forum.”
Id.
23
(internal formatting, quotation marks and citations omitted).
In
24
the context of evaluating “whether tortious conduct on a
25
nationally accessible website is expressly aimed at any, or all,
26
of the forums in which the website can be viewed,” the Ninth
27
Circuit has identified several factors that it has considered to
28
determine whether a nonresident defendant has done “something
Brayton
The Ninth Circuit “has emphasized that
10
1
more.”
2
These factors include “the interactivity of the defendant’s
3
website . . . ; the geographic scope of the defendant’s commercial
4
ambitions . . . ; and whether the defendant ‘individually
5
targeted’ a plaintiff known to be a forum resident . . .”
6
(citations omitted).
7
Mavrix Photo, 647 F.3d at 1229 (citations omitted).
Id.
In their response to the Magistrate Judge’s order to show
8
cause, Plaintiffs argued that Defendants’ actions were expressly
9
aimed at California “given the highly interactive, commercial
United States District Court
For the Northern District of California
10
nature of Defendants’ websites.”
11
They also contended that Defendants’ websites and blogs were
12
hosted by companies located in California or whose parent
13
companies are located in California and that they used other
14
California companies, such as Twitter, Facebook and Youtube to
15
direct Internet users to their websites, as well as to host
16
infringing videos, artwork and links to unauthorized downloads.
17
Id. at 4-5.
18
California residents indiscriminately” and that they “profited
19
from Internet traffic through advertising displayed on their
20
respective Accounts.”
21
Magistrate Judge’s report and recommendation, Plaintiffs argue for
22
the first time that “the advertising on Defendants’ website . . .
23
targeted California residents.”
24
Defendants targeted California by taking revenue away from Apple
25
iTunes, which was a legitimate provider of Plantiffs’ material.
26
Id. at 6.
27
28
Resp. to Order to Show Cause, 4.
They further stated that Defendants “target[ted]
Id. at 4.
In their objection to the
Obj. at 5.
They also argue that
The Ninth Circuit examined a similar situation in Mavrix
Photo.
In that case, Mavrix Photo, a celebrity photo agency,
11
1
brought suit in California against Brand, an Ohio corporation,
2
which operated a website that “covers popular personalities in the
3
entertainment industry and features photo galleries, videos, and
4
short articles.”
5
at issue there had various interactive features: it allowed
6
visitors to comment on articles, vote in polls, subscribe to an
7
email newsletter, join a membership club and submit news tips and
8
photos of celebrities.
9
“court[ed] a national audience, not restricted to California,” it
Mavrix Photo, 647 F.3d at 1221-22.
Id. at 1222.
The website
Although the website
United States District Court
For the Northern District of California
10
had “some ties specific to California,” including that it made
11
“money from third-party advertisements for jobs, hotels, and
12
vacations in California.”
13
aimed his conduct at California, the court stated that it found
14
“most salient the fact that Brand used Mavrix’s copyrighted photos
15
as part of its exploitation of the California market for its own
16
commercial gain.”
17
18
19
20
21
22
23
24
25
Id.
Id. at 1229.
In concluding that Brand expressly
The court explained,
Brand makes money by selling advertising space on its
website to third-party advertisers: the more visitors
there are to the site, the more hits that are made on
the advertisements; the more hits that are made on the
advertisements, the more money that is paid by the
advertisers to Brand. A substantial number of hits to
Brand’s website came from California residents. One of
the ways we know this is that some of the third-party
advertisers on Brand’s website had advertisements
directed to Californians. In this context, it is
immaterial whether the third-party advertisers or Brand
targeted California residents. The fact that the
advertisements targeted California residents indicates
that Brand knows--either actually or constructively-about its California user base, and that it exploits
that base for commercial gain by selling space on its
website for advertisements.
26
Id. at 1230.
27
in California local media, he “operated a very popular website
28
with a specific focus on the California-centered celebrity and
Further, although Brand did not market its website
12
1
entertainment industries.”
2
matter, as well as the size and commercial value of the California
3
market,” the court concluded “that Brand anticipated, desired, and
4
achieved a substantial California viewer base.”
5
cautioned, “Not all material placed on the Internet is, solely by
6
virtue of its universal accessibility, expressly aimed at every
7
state in which it is accessed.”
8
held that, “where, as here, a website with national viewership and
9
scope appeals to, and profits from, an audience in a particular
Id.
“Based on the website’s subject
Id. at 1231.
Id.
The court
It nevertheless
United States District Court
For the Northern District of California
10
state, the site’s operators can be said to have ‘expressly aimed’
11
at that state.”
12
Id.
The Magistrate Judge acknowledged that the websites at issue
13
here are highly interactive but found that Plaintiffs “have not
14
shown that a California audience is an integral component of
15
defendants’ business model and profitability or that the economic
16
value of defendants’ websites depends in any way on their appeal
17
to California residents.”
18
However, Plaintiffs have now cited evidence which shows that, as
19
in Mavrix, many of the third party advertisements on Defendants’
20
websites specifically targeted California residents.
21
one of Indrawati Yang’s websites,
22
koreanmusicdownload.blogspot.com, showed advertisements for
23
Groupon Los Angeles and AAA of Southern California.
24
Default J., Ex. D, Docket No. 28-4, 14; Mot. for Default J., Ex.
25
H, Docket No. 28-7, 133; see also Mot. for Default J., Ex. H,
26
Docket No. 28-7, 35 (advertisement for livingsocial Los Angeles).
27
In addition, Plaintiffs have provided evidence that the United
28
States is their largest market for sales and that California
Report and Recommendation, 8-9.
13
For example,
Mot. for
1
accounts for a large share of their business within the United
2
States, in part because the music appeals to the large population
3
of residents of Korean descent in the state.
4
is further supported by the fact that many of the websites have
5
“hit counters” that show the number of visitors they have
6
received, by country, and reveal that a substantial percentage of
7
them were from the United States.
8
Ex. H, Docket No. 28-7, 43 (showing that the top two countries
9
from which users accessed the website were Korea, with 1,498
Cho Decl. ¶ 2.
This
See, e.g., Mot. for Default J.,
United States District Court
For the Northern District of California
10
visitors, and the United States, with 1,269 visitors).
11
Mavrix, these facts show that Defendants had actual or
12
constructive knowledge of their California users and that they
13
exploited that user base for profit.
As in
14
This evidence differentiates the present case from DFSB
15
Kollective Co. v. Bourne, 2012 U.S. Dist. LEXIS 131079 (N.D.
16
Cal.), in which the court adopted a magistrate judge’s
17
recommendation to deny a motion for default judgment based on lack
18
of personal jurisdiction.
19
found that the plaintiffs had not shown that the defendant
20
actually or constructively knew about his California user base
21
because they did not show that “a substantial number of hits to
22
defendant’s websites came from California” or “that defendant’s
23
websites displayed advertisements targeted to California
24
residents,” among other things.
25
offered such evidence.
26
In that decision, the district judge
Id.
Here, Plaintiffs have
Accordingly, the Court concludes that Mavrix controls the
27
outcome here and Plaintiffs have made a sufficient showing that
28
Defendants “expressly aimed” their activities at California.
14
1
C. Harm
2
The third part of the Calder effects test requires that
3
Defendants’ conduct “caused harm that [they] knew was likely to be
4
suffered in the forum.”
5
Yahoo! Inc. v. La Ligue Contre Le Racisme, 433 F.3d 1199, 1206
6
(9th Cir. 2006).
7
generally satisfied when the plaintiff resides in the forum
8
state.”
9
*8 (citing Brayton Purcell, 606 F.3d at 1131).
Brayton Purcell, 606 F.3d at 1131 (citing
“In copyright cases this requirement is
DFSB Kollective Co. Ltd. v. Bourne, 2012 WL 2376209, at
“In appropriate
United States District Court
For the Northern District of California
10
circumstances [however,] a corporation can suffer economic harm
11
both where the bad acts occurred and where the corporation has its
12
principal place of business.”
13
Watts, 303 F.3d 1104, 1113 (9th Cir. 2002)) (brackets in
14
original).
15
Id. (quoting Dole Food Co. Inc. v.
The Magistrate Judge concluded that Plaintiffs made an
16
insufficient showing that “the brunt of the harm caused by
17
defendants’ alleged infringement of plaintiffs’ copyrights was
18
felt in California.”
19
original).
20
‘brunt’ of the harm need not be suffered in the forum state.”
21
Yahoo! Inc., 433 F.3d at 1207.
22
amount of harm is suffered in the forum state, it does not matter
23
that even more harm might have been suffered in another state.”
24
Id.
25
Report and Recommendation, 12 (emphasis in
However, the Ninth Circuit has recognized “that the
“If a jurisdictionally sufficient
Here, although Plaintiffs are not residents of California,
26
they have offered evidence that Defendants likely knew that they
27
would cause harm in this state.
28
Plaintiffs’ material online for free, Defendants significantly
Plaintiffs allege that, by making
15
1
reduced the value of Plaintiffs’ works and decreased the volume of
2
sales and corresponding revenue, including in California.
3
economic loss caused by the intentional infringement of a
4
plaintiff’s copyright is foreseeable.”
5
Here, as in Mavrix, it was foreseeable that this economic loss
6
would occur in California, as well as in Korea, where Plaintiffs
7
are located.
8
of the music and cover art was based on potential sales in the
9
United States market and in California in particular.
“The
Mavrix, 647 F.3d at 1231.
As explained above, a sizeable portion of the value
That this
United States District Court
For the Northern District of California
10
was reasonably foreseeable is demonstrated in part by the
11
California-targeted advertisements, the number of American users
12
of Defendants’ websites and the evidence that the demand for
13
Korean music within California is higher than in other parts of
14
the United States.
15
potential sales in California, a jurisdictionally significant
16
amount of Plaintiffs’ harm was suffered within the state.
17
Because Defendants caused Plaintiffs to lose
2. Forum-Related Activities
18
Under the second prong of the personal jurisdiction analysis,
19
which the Magistrate Judge did not reach, the Court considers that
20
“the plaintiff’s claim must be one which arises out of or relates
21
to the defendant’s forum-related activities.”
22
F.3d 1050, 1058 (9th Cir. 2007).
23
‘but for’ test to determine forum-related conduct.”
24
Walden, 688 F.3d 558, 582 (9th Cir. 2012) (internal quotation
25
marks and citation omitted).
26
Menken v. Emm, 503
The Ninth Circuit “follows the
Fiore v.
Here, Defendants have created websites on which they place,
27
and link to, infringing content, and which are targeted to
28
California residents.
Plaintiffs would not have suffered injury
16
1
but for Defendants’ creation of these websites.
2
related conduct requirement for specific jurisdiction has been
3
met.
4
Thus, the forum-
3. Reasonableness of Exercise of Jurisdiction
5
Because Plaintiffs have met their burden to satisfy the first
6
two prongs of the test for establishing personal jurisdiction, the
7
burden shifts to Defendants “to satisfy the third part--
8
‘present[ing] a compelling case’ that the exercise of jurisdiction
9
would not be reasonable’” in California.
Fiore, 688 F.3d at 582
United States District Court
For the Northern District of California
10
(citations omitted).
11
factor.
12
jurisdiction, the Ninth Circuit balances seven factors: (1) the
13
extent of the defendants’ purposeful interjection into the forum
14
state’s affairs; (2) the burden on the defendants of defending in
15
the forum; (3) the extent of conflict with the sovereignty of the
16
defendants’ state; (4) the forum state’s interest in adjudicating
17
the dispute; (5) the most efficient judicial resolution of the
18
controversy; (6) the importance of the forum to the plaintiffs’
19
interest in convenient and effective relief; and (7) the existence
20
of an alternative forum.
21
at 1058).
22
The Magistrate Judge did not reach this
To determine the reasonableness of the exercise of
Id. at 582-83 (citing Menken, 503 F.3d
Because Defendants have not appeared or responded to the
23
motion for default judgment, they have not met their burden to
24
establish that the exercise of jurisdiction would be unreasonable.
25
In addition, based on its own analysis of the factors, the Court
26
concludes that the exercise of jurisdiction is not unreasonable.
27
28
First, because it is not clear exactly how many California
users accessed Defendants’ websites, the precise degree of
17
1
purposeful injection is unknown.
2
that there were a substantial number.
3
favor of exercising jurisdiction.
4
However, the evidence suggests
Thus, this factor weighs in
As to second factor, the “defendant’s burden in litigating in
5
the forum is a factor in the assessment of reasonableness, but
6
unless the ‘inconvenience is so great as to constitute a
7
deprivation of due process, it will not overcome clear
8
justifications for the exercise of jurisdiction.’”
9
Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1323 (9th Cir. 1998)
Panavision
United States District Court
For the Northern District of California
10
(citation omitted).
11
Vietnam and Indonesia, to litigate in California is significant.
12
However, the inconvenience is not so great as to deprive them of
13
due process, particularly given their purposeful availment of the
14
benefits of conducting business within the state.
15
Here, the burden on Defendants, who live in
The third factor “concerns the extent to which the exercise
16
of jurisdiction would conflict with the sovereignty of the
17
defendants’ state.”
18
1482, 1489 (9th Cir. 1993).
19
defendant creates a higher jurisdictional barrier than litigation
20
against a citizen from a sister state because important
21
sovereignty concerns exist.”
22
formatting and citation omitted).
23
weight to accord to this factor, the Ninth Circuit has “focused on
24
the presence or absence of connections to the United States in
25
general, not just to the forum state.”
26
weigh more heavily when the defendants have no United States-based
27
relationships.”
28
relationships with the companies that host their websites and
Id.
Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d
“Litigation against an alien
Id. (internal quotation marks,
When determining how much
Id.
“Sovereignty concerns
Here, Defendants have United States-based
18
1
content.
2
than if no United States-based relationships were established.”
3
Sinatra v. Nat’l Enquirer, Inc., 854 F.2d 1191, 1200 (9th Cir.
4
1988).
5
“Thus, sovereignty considerations weigh less heavily
Fourth, California has an interest in adjudicating this
6
dispute.
7
California residents, among others, to download infringing content
8
and to provide profit to Defendants based on their viewing of
9
advertisements.
United States District Court
For the Northern District of California
10
Plaintiffs have alleged that Defendants target
This factor favors the exercise of jurisdiction.
The fifth factor, the efficient resolution of the litigation,
11
“focuses on the location of the evidence and witnesses.”
12
Panavision, 141 F.3d at 1323 (citation omitted).
13
weighed heavily given the modern advances in communication and
14
transportation.”
15
outside of California, much of the evidence and witnesses,
16
including the companies who host Defendants’ websites, are within
17
California.
18
exercise of jurisdiction.
19
Id.
“It is no longer
Here, although the parties are located
Accordingly, this factor is neutral or favors the
As to the sixth factor, “evaluating the convenience and
20
effectiveness of relief for the plaintiff,” courts “have given
21
little weight to the plaintiff’s inconvenience.”
22
Plaintiffs are not residents of this forum and, thus, the
23
inconvenience that they may suffer from litigating elsewhere is
24
neutral.
25
Id. at 1324.
Finally, Defendants have not come forward to offer any
26
alternative forum in which this case could proceed.
27
clear whether Plaintiffs would be able to bring their claims
28
asserting infringement of copyrights registered in the United
19
It is not
1
States in Korea, Vietnam or Indonesia or in any other district
2
within the United States.
3
alternative forum, this factor weighs in favor of the exercise of
4
jurisdiction here.
5
6
Because there is no apparent
Based on a balancing of these factors, the exercise of
jurisdiction over Defendants is reasonable.
7
C. Service of Process
8
“Before considering the merits of a motion for default
9
judgment, the Court must first ‘assess the adequacy of the service
United States District Court
For the Northern District of California
10
of process on the party against whom default is requested.’”
11
Local No. 467 Pension Trust Fund v. Hydra Ventures Inc., 2013 U.S.
12
Dist. LEXIS 34931, at *13 (N.D. Cal.) (citation omitted).
13
U.A.
Plaintiffs, with Court approval, served Defendants by email.
14
See Docket Nos. 21, 23, 24.
15
provides, in pertinent part, “Unless otherwise provided by federal
16
law, service upon an individual from whom a waiver has not been
17
obtained and filed . . . may be effected in a place not within any
18
judicial district of the United States: . . . (3) by other means
19
not prohibited by international agreement as may be directed by
20
the court.”
21
by e mail, the Ninth Circuit has stated that “service of process
22
under Rule 4(f)(3) is neither a ‘last resort’ nor ‘extraordinary
23
relief.’ . . . It is merely one means among several which enables
24
service of process on an international defendant.”
25
Rio Int’l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002) (internal
26
citations omitted).
27
under Rule 4(f)(3) must be (1) directed by the court; and (2) not
28
prohibited by international agreement.
Federal Rule of Civil Procedure 4(f)
In approving service upon an international defendant
Rio Props. v.
“As obvious from its plain language, service
20
No other limitations are
1
evident from the text.”
2
the Constitution, “the method selected [must] be reasonably
3
calculated to provide notice and an opportunity to respond” when
4
considered under the circumstances of the case.
Id. at 1014.
However, to comport with
Id. at 1017-18.
5
Neither Indonesia nor Vietnam are parties to the Hague
6
Convention and there are no treaties between these countries and
7
the United States regarding service of documents.
8
no international agreements prohibiting service by e-mail.
9
Thus, there are
Further, Defendants structured their businesses such that
United States District Court
For the Northern District of California
10
they can be contacted only via their email addresses.
11
registering their websites with their internet service providers,
12
they provided email addresses but no valid street addresses.
13
was through those email addresses that Defendants conducted the
14
business alleged to be infringing here.
15
Defendants using their email addresses was not only reasonably
16
calculated to give them notice of the pendency of this action, but
17
was also, as in Rio Properties, the method of service most likely
18
actually to reach Defendants.
19
20
21
When
It
Thus, service upon
Accordingly, service of process upon Defendants was proper.
II.
Venue
Title 28 U.S.C. § 1400(a) provides that copyright actions
22
“may be instituted in the district in which the defendant or his
23
agent resides or may be found.”
24
this code section to mean that venue “is proper in any judicial
25
district in which the defendant would be amenable to personal
26
jurisdiction if the district were a separate state.”
27
Pictures Television v. Krypton Broad. of Birmingham, Inc., 106
28
F.3d 284, 289 (9th Cir. 1997), overruled on other grounds.
The Ninth Circuit has interpreted
21
Columbia
1
The Magistrate Judge concluded that venue was inappropriate
2
in this district because “defendants are not amenable to personal
3
jurisdiction in California.”
4
Because this Court has held to the contrary regarding personal
5
jurisdiction, it also concludes that venue is appropriate in this
6
district.
7
III. Merits of the Motion for Default Judgment
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
Report and Recommendation, 13.
Factors that the Court may consider when exercising its
discretion regarding the entry of default judgment include:
(1) the possibility of prejudice to the plaintiff,
(2) the merits of plaintiff’s substantive claim, (3) the
sufficiency of the complaint, (4) the sum of money at
stake in the action, (5) the possibility of a dispute
concerning material facts, (6) whether the default was
due to excusable neglect, and (7) the strong policy
underlying the Federal Rules of Civil Procedure favoring
decisions on the merits.
Eitel v. McCool, 782 F.2d 1470, 1471-1472 (9th Cir. 1986).
“The
15
general rule of law is that upon default the factual allegations
16
of the complaint, except those relating to the amount of damages,
17
will be taken as true.”
TeleVideo Systems, Inc. v. Heidenthal,
18
826 F.2d 915, 917-918 (9th Cir. 1987) (quoting Geddes v. United
19
Financial Group, 559 F.2d 557, 560 (9th Cir. 1977)).
In addition
20
to the allegations in their pleading, Plaintiffs have also
21
submitted evidence of Defendants’ infringing websites and
22
Plaintiffs’ investigations into their activities, which the Court
23
will also consider in evaluating this motion.
24
25
A. Sufficiency of the Complaint and Merits of Plaintiffs’
Claims
26
The second and third Eitel factors, the merits of the
27
Plaintiffs’ substantive claim and the sufficiency of the
28
complaint, favor default judgment.
22
“These two factors together
1
require plaintiffs’ allegations to state a claim on which the
2
plaintiff may recover.”
3
2013 U.S. Dist. LEXIS 34931, at *13 (internal quotation marks,
4
formatting and citation omitted); see also Danning v. Lavine, 572
5
F.2d 1386, 1388 (9th Cir. 1978) (“The issue here is whether the
6
allegations in the complaint are sufficient to state a claim on
7
which the [moving party] may recover.”).
U.A. Local No. 467 Pension Trust Fund,
8
In their first cause of action, Plaintiffs allege that
9
Defendants infringed their copyrights in violation of 17 U.S.C.
United States District Court
For the Northern District of California
10
§ 501.
11
prima facie case of direct infringement: (1) they must show
12
ownership of the allegedly infringed material and (2) they must
13
demonstrate that the alleged infringers violate at least one
14
exclusive right granted to copyright holders under 17 U.S.C.
15
§ 106.”
16
(9th Cir. 2007) (internal quotation marks and citation omitted).
17
These rights include to do and to authorize a number of acts
18
regarding the copyrighted works, including to reproduce and
19
distribute copies.
20
“Plaintiffs must satisfy two requirements to present a
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159
17 U.S.C. § 106.
Plaintiffs allege that they own the copyrights for more than
21
two hundred songs on fifteen different albums and their associated
22
artwork.
23
certificates for all fifteen albums.
24
No. 28-5.
25
unauthorized copies of these copyrighted works and have uploaded
26
those to third party websites for distribution.
27
They have submitted declarations attesting that Bing Yang did this
28
with sixty-three works and Indrawati Yang with one hundred and
1AC ¶ 16 & Ex. A.
They have submitted the registration
Cho Decl. ¶ 4, Ex. E, Docket
They have also alleged that Defendants have created
23
1AC ¶¶ 25, 27.
1
eighty works.
2
are sufficient to establish a claim for direct copyright
3
infringement.
4
Cho Decl. ¶¶ 5-10.
These allegations and evidence
In their second cause of action, Plaintiffs charge Defendants
5
with contributory copyright infringement.
6
knowledge of the infringing activity, induces, causes or
7
materially contributes to the infringing conduct of another may be
8
liable as a ‘contributory’ copyright infringer.”
9
Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (internal quotation
“One who, with
Ellison v.
United States District Court
For the Northern District of California
10
marks, citation and formatting omitted).
11
those with actual knowledge and who have reason to know of direct
12
infringement.”
13
This includes “both
Id.
Plaintiffs have alleged that third party websites host and
14
distribute the infringing content, in violation of 17 U.S.C.
15
§ 501, and that Defendants materially contributed to this conduct
16
by uploading the works to those sites and indexing them and
17
providing links to them from Defendants’ own websites.
18
26-27, 39.
19
files are infringing because they have received notices from
20
Plaintiffs and the third-party sites advising them of this fact.
21
Id. at ¶ 40.
22
claims against Defendants for contributory copyright infringement.
23
1AC ¶¶ 24,
Plaintiffs also allege that Defendants know that the
Accordingly, Plaintiffs have sufficiently alleged
In Plaintiffs’ third cause of action, they charge Defendants
24
with inducing copyright infringement.
25
decision in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.,
26
545 U.S. 913 (2005), inducement of copyright infringement appears
27
to be a particular type of contributory liability, rather than a
28
separate cause of action.
Under the Supreme Court’s
See id. at 930 (“One infringes
24
1
contributorily by intentionally inducing or encouraging direct
2
infringement.”); id. at 942 (Ginsburg, J., concurring) (“Liability
3
under our jurisprudence may be predicated on actively encouraging
4
(or inducing) infringement through specific acts (as the Court’s
5
opinion develops) or on distributing a product distributees use to
6
infringe copyrights, if the product is not capable of
7
‘substantial’ or ‘commercially significant’ noninfringing uses.”);
8
see also Columbia Pictures Indus. v. Gayr Fu Ng, 2013 U.S. App.
9
LEXIS 5597, at *2, 19-20, 23-48 (affirming the trial court’s
United States District Court
For the Northern District of California
10
finding of contributory infringement under an inducement theory of
11
liability); IO Group, Inc. v. Jordon, 708 F. Supp. 2d 989, 999
12
(N.D. Cal. 2010) (declining to find that inducement of
13
infringement is a cause of action separate from contributory
14
infringement).
15
additional damages or relief under this cause of action, other
16
than what they also seek under their other causes of action, the
17
Court need not reach this issue.
18
Tran, 2011 U.S. Dist. LEXIS 147538, at *22 (N.D. Cal.).
19
Because Plaintiffs do not appear to seek
See DFSB Kollective Co., Ltd. v.
Because Plaintiffs have sufficiently plead copyright
20
infringement and contributory infringement, the Court finds that
21
these factors favor entry of default judgment.
22
B. The Remaining Eitel Factors
23
The balance of the remaining factors also favors entry of
24
default judgment.
25
As to the first factor, Plaintiffs will be prejudiced if the
26
motion for default judgment is denied because they will likely be
27
left without any way to obtain a remedy.
28
25
1
Regarding the fourth Eitel factor, the sum of money at stake,
2
Plaintiff seeks a significant amount of money, $315,000.00 in
3
statutory damages against Bing Yang, and $900,000.00 in statutory
4
damages against Indrawati Yang.
5
infringing conduct and their refusal to participate in this
6
litigation, monetary damages are appropriate.
7
Supp. 2d at 999.
8
and the amount left to the Court’s discretion.
9
Co., Ltd. v. Tran, 2011 U.S. Dist. LEXIS 147538, at *23.
United States District Court
For the Northern District of California
10
However, in light of Defendants’
IO Group, 708 F.
Further, the damages sought here are statutory
DFSB Kollective
Nothing in the record suggests a “possibility of a dispute
11
concerning material facts,” the fifth Eitel factor.
12
Local No. 467 Pension Trust Fund, 2013 U.S. Dist. LEXIS 34931, at
13
*13 (finding nothing to suggest the possibility of a dispute of
14
material fact where “Defendant has not filed an answer to the
15
complaint or any other responsive pleading in this matter”).
16
Further, Plaintiffs have offered documentary evidence that makes
17
it unlikely that such a dispute would arise.
18
See U.A.
The sixth Eitel factor requires the Court to consider whether
19
Defendants’ default was due to excusable neglect.
20
above, Defendants were served with process at the email addresses
21
from which they conduct their business.
22
offered proof that they served Defendants with the request for
23
entry of default and motion for default judgment at these email
24
addresses as well.
25
opportunity to appear and litigate this case.
As explained
Further, Plaintiffs have
Defendants thus had notice and sufficient
26
Finally, as to the seventh Eitel factor, although cases
27
“should be decided on their merits whenever reasonably possible,”
28
Eitel, 782 F.2d at 1472, “Rule 55(b) allows entry of default
26
1
judgment in situations such as this, where the defendant has
2
refused to litigate,” Bd. of Trs. v. RBS Wash. Blvd, LLC, 2010
3
U.S. Dist. LEXIS 1693, at *9-10 (N.D. Cal.).
4
have not responded to the complaint or participated in the
5
proceedings, a decision on the merits is not possible.
6
Accordingly, this factor does not weigh against default judgment.
7
IV.
8
9
Because Defendants
Relief
In their motion for default judgment, Plaintiffs seek entry
of a permanent injunction against both Bing Yang and Indrawati
United States District Court
For the Northern District of California
10
Yang prohibiting them from further infringing any of Plaintiffs’
11
copyrights.
12
damages against Bing Yang and $900,000 in statutory damages
13
against Indrawati Yang.
14
pursuant to 28 U.S.C. § 1961.
15
They also request an award of $315,000 in statutory
Finally, they seek post-judgment interest
A. Injunctive Relief
16
The Copyright Act, 17 U.S.C. § 502(a), authorizes courts to
17
issue permanent injunctions on reasonable terms to prevent future
18
infringement of a copyright.
19
injunction must satisfy a four-factor test before a court may
20
grant such relief.”
21
391 (2006).
22
24
25
27
28
eBay Inc. v. MercExchange, LLC, 547 U.S. 388,
The plaintiff
must demonstrate: (1) that it has suffered an
irreparable injury; (2) that remedies available at law,
such as monetary damages, are inadequate to compensate
for that injury; (3) that, considering the balance of
hardships between the plaintiff and defendant, a remedy
in equity is warranted; and (4) that the public interest
would not be disserved by a permanent injunction.
23
26
“A plaintiff seeking a permanent
Id.
Here, each of these four factors favors entering a permanent
injunction.
Plaintiffs have shown that they will suffer
27
1
irreparable injury in the absence of an injunction and that
2
monetary damages are not adequate to compensate for this.
3
have offered evidence that Bing Yang and Indrawati Yang are “two
4
of the biggest illegal uploaders (and free download link
5
providers) of Korean music in the world.”
6
have also provided evidence that, “for every legitimate digital
7
download sale” of their music, about “19 downloads are lost to
8
piracy.”
9
to ‘massive, repeated, and worldwide infringement’ of their
Id.
They
Cho Decl. ¶ 11.
They
“This type of infringing conduct exposes Plaintiffs
United States District Court
For the Northern District of California
10
copyrighted sound recordings.”
11
2011 U.S. Dist. LEXIS 147538, at *25 (citing Twentieth Century Fox
12
Film Corp. v. Streeter, 438 F. Supp. 2d 1065, 1073 n.2 (D. Ariz.
13
2006) (“When digital works are distributed via the internet, as in
14
this case, every downloader who receives one of the copyrighted
15
works from Defendant is in turn capable of also transmitting
16
perfect copies of the works. Accordingly, the process is
17
potentially exponential rather than linear, threatening virtually
18
unstoppable infringement of the copyright.”)).
19
which addresses the balance of hardships between Plaintiffs and
20
Defendants, also favors entry of a permanent injunction.
21
without entry of the injunction, Plaintiffs face further harm from
22
ongoing infringement of their copyrights, while the injunction
23
would simply require Defendants to comply with the Copyright Act.
24
Id. at *26.
25
of the injunction.
26
LLC, 315 F.3d 1039, 1042 (8th Cir. 2003) (“The public interest is
27
served in protecting the holders of valid copyrights from
28
infringing activity.”).
DFSB Kollective Co., Ltd. v. Tran,
The third factor,
Here,
Finally, the public interest would be served by entry
See Taylor Corp. v. Four Seasons Greetings,
28
1
2
B. Monetary Damages
Plaintiffs seek statutory damages in the amount of $5,000 per
3
copyright infringed, for a total of $315,000 for Bing Yang’s
4
infringement of at least sixty-three of their copyrights and
5
$900,000 for Indrawati Yang’s infringement of at least one hundred
6
and eighty of their copyrights.
7
The Copyright Act authorizes statutory damages for
8
infringement of each work “in a sum of not less than $750 or more
9
than $30,000 as the court considers just.”
17 U.S.C. § 504(c)(1).
United States District Court
For the Northern District of California
10
“In a case where the copyright owner sustains the burden of
11
proving, and the court finds, that infringement was committed
12
willfully, the court in its discretion may increase the award of
13
statutory damages to a sum of not more than $150,000.”
14
§ 504(c)(2).
15
17 U.S.C.
“Under the Copyright Act, the court has wide discretion in
16
calculating statutory damages, ‘constrained only by the specified
17
maxima and minima.’”
18
22691, at *12-13 (N.D. Cal.) (quoting Harris v. Emus Records
19
Corp., 734 F.2d 1329, 1335 (9th Cir. 1984)).
20
statutory damages within the applicable limits may turn upon such
21
factors as the expenses saved and profits reaped by the defendants
22
in connection with the infringement, the revenues lost by the
23
plaintiff as a result of the defendant’s conduct, and the
24
infringer’s state of mind--whether willful, knowing, or merely
25
innocent.”
26
(N.D. Cal.) (citing N.A.A.S. Import Corp. v. Chenson Enters. Inc.,
27
968 F.2d 250, 252 (2d Cir. 1992); Nimmer on Copyright,
28
§ 1404(b)(1)(a)) (internal quotation marks omitted).
Chanel, Inc. v. Doan, 2007 U.S. Dist. LEXIS
“Determination of
Lamb v. Starks, 1997 U.S. Dist. LEXIS 11369, at *6
29
“It is
1
clear, however, that a plaintiff may recover statutory damages
2
whether or not there is adequate evidence of the actual damages
3
suffered by the plaintiff or of the profits reaped by defendant.”
4
Peer Int’l Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1337 (9th
5
Cir. 1990) (internal quotation marks and citation omitted).
6
Further, “[t]he Supreme Court has stated that ‘even for
7
uninjurious and unprofitable invasions of copyright the court may,
8
if it deems it just, impose a liability within [the] statutory
9
limits to sanction and vindicate the statutory policy’ of
United States District Court
For the Northern District of California
10
discouraging infringement.”
11
Contemporary Arts, Inc., 344 U.S. 228, 233 (1952)).
12
Id. (quoting F.W. Woolworth Co. v.
On the evidence offered here, an award of $5,000 for each
13
violation is reasonable.
14
each Defendant has created an extensive number of websites and
15
accounts to distribute Korean pop music illegally over the
16
internet and that they have denied Plaintiffs significant revenue
17
that they would have achieved from the legitimate sales of this
18
music.
19
the sales of advertisements on their websites.
20
offer evidence that Defendants’ infringement has been willful.
21
For example, Plaintiffs have shown that they have previously
22
attempted to address Defendants’ infringement by sending them
23
notices through their third-party service providers or having
24
these providers shut down the accounts, and that this did not
25
deter Defendants, who simply opened new accounts or transferred to
26
their old accounts to new providers.
Plaintiffs have offered evidence that
Further, Defendants profit from their misconduct through
27
28
30
Plaintiffs also
1
Thus, the Court concludes that an award of $5,000 for each
2
act of infringement is reasonable.
3
$315,000 against Bing Yang and $900,000 against Indrawati Yang.
The Court awards Plaintiffs
4
C. Post-Judgment Interest
5
“Interest shall be allowed on any money judgment in a civil
6
case recovered in a district court.”
7
Plaintiffs are awarded such interest, which “shall be calculated
8
from the date of the entry of the judgment, at a rate equal to the
9
weekly average 1-year constant maturity Treasury yield, as
28 U.S.C. § 1961(a).
Thus,
United States District Court
For the Northern District of California
10
published by the Board of Governors of the Federal Reserve System,
11
for the calendar week preceding the date of the judgment.”
12
Id.
CONCLUSION
13
For the reasons set forth above, the Court declines to adopt
14
the Magistrate Judge’s Report and Recommendation (Docket No. 34)
15
and GRANTS Plaintiffs’ motion for default judgment (Docket No.
16
28).
17
A permanent injunction shall be entered separately.
The Clerk shall enter default judgment for $315,000 against
18
Bing Yang, $900,000 against Indrawati Yang and post-judgment
19
interest on these amounts and close the file.
20
recover their costs from Defendants.
21
Plaintiffs shall
IT IS SO ORDERED.
22
23
24
Dated: 3/28/2013
CLAUDIA WILKEN
United States District Judge
25
26
27
28
31
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?