DFSB Kollective Co., Ltd. et al v. John Does 1 through 10

Filing 38


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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

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