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.
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27
28

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2
3
4

BACKGROUND
I.

Facts
The following allegations were made in Plaintiffs’ First

Amended Complaint (1AC).

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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

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Music Entertainment, Paragon Music Corp., Roxta Music and

United States District Court
For the Northern District of California

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Spot/Monky Global.

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corporation based in Seoul, Korea.

12

Plaintiffs were issued by the United States Copyright Office and

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cover various Korean pop songs and their corresponding album

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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

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kpopexplorer.wordpress.com and bingyang.co.cc.

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also uses the name “Kpop Explorer” on the online blogging site

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Wordpress and the names “Bingyang,” “Bingyang.co.cc” and

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“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

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Kpopsounds.

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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,

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koreanmusicswave.blogspot.com/2010/04/freeq-free-4-all.html and

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kpopsounds.blog127.fc2.com.

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names “Asian Loud” on the social networking site Facebook, “Korean

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Wave” and “Clarrie” on the online blogging site Blogger,

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“Koreanmusicfans” on the online payment processing site PayPal,

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“joehanny” on the online advertisement site Linkbucks, file

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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

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Sounds” on the online blogging site FC2.

Id.

12

Using the aliases identified above and others, Defendants

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search for, collect, index and post on their websites links to

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content available on third-party websites, which include material

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that infringes on Plaintiffs’ copyrights.

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allege that Defendants’ websites provide to “Internet users” links

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to material that would otherwise be inaccessible to them and that,

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by compiling and indexing the links to the infringing content,

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Defendants make the infringing content “easily accessible to

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users.”

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contain images of the copyrighted artwork that is associated with

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Plaintiffs’ albums, in order to enhance the “user interface” on

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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.

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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.

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uploaded Plaintiffs’ copyrighted work to the third party websites.

4

Id.

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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

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their websites.

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links are offered are surrounded by advertisements.”

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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

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Google.”

12

Id.

Plaintiffs allege that “Defendants have acted in willful

13

disregard of laws protecting” their copyrights and that this has

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caused “substantial damage to the value of their creative works.”

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Id. at ¶ 31.

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copyright infringement, contributory copyright infringement and

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inducing copyright infringement.

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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

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Defendants or their respective agents are doing business in this

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District; and (b) the DFSB Plaintiffs are informed and believe,

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and upon that basis allege, that a substantial part of the

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wrongful acts committed by Defendants has occurred in interstate

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commerce in the State of California and Northern District of

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California.”

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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,

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Plaintiffs completed service in this manner on January 6, 2012.

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Docket Nos. 19, 23, 24.

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Defendants have not appeared or filed an answer to the 1AC.

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On February 16, 2012, the Clerk entered default as to both

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Defendants.

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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.

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Docket No. 34.

On August 1, 2012, Plaintiffs filed an objection to the

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report and recommendation.

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the Court take judicial notice of a declaration that Bernie Cho,

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the President of DFSB, filed in a similar case in this district.

26

Docket No. 37.

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notice of the Cho Declaration, but not of the truth of the facts

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asserted therein.

Docket No. 36.

They also request that

The Court grants this request and takes judicial

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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

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recommendations made by the magistrate.”

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§ 636(b)(1)(c); see also Fed. R. Civ. P. 72(b)(3).

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United States District Court
For the Northern District of California

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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

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A. Subject Matter Jurisdiction

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Plaintiffs bring claims against Defendants for copyright

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infringement in violation of 17 U.S.C. § 501, contributory

19

copyright infringement and inducement of copyright infringement.

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The Court has subject matter jurisdiction over these claims

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pursuant to 28 U.S.C. sections 1331 and 1338.

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B. Personal Jurisdiction

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“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

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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;

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(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.

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1421 (9th Cir. 1987).

22

to assert jurisdiction.

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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.”

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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

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“Interest shall be allowed on any money judgment in a civil

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case recovered in a district court.”

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Plaintiffs are awarded such interest, which “shall be calculated

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from the date of the entry of the judgment, at a rate equal to the

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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

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published by the Board of Governors of the Federal Reserve System,

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for the calendar week preceding the date of the judgment.”

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Id.

CONCLUSION

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For the reasons set forth above, the Court declines to adopt

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the Magistrate Judge’s Report and Recommendation (Docket No. 34)

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and GRANTS Plaintiffs’ motion for default judgment (Docket No.

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28).

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A permanent injunction shall be entered separately.
The Clerk shall enter default judgment for $315,000 against

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Bing Yang, $900,000 against Indrawati Yang and post-judgment

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interest on these amounts and close the file.

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recover their costs from Defendants.

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Plaintiffs shall

IT IS SO ORDERED.

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Dated: 3/28/2013

CLAUDIA WILKEN
United States District Judge

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