Broadcast Music, Inc et al v. Roascio

Filing 27

JUDGMENT. Signed by Judge Yvonne Gonzalez Rogers on 8/23/2013. (Attachments: # 1 Exhibit A)(fs, COURT STAFF) (Filed on 8/23/2013)

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Case4:12-cv-04740-YGR Document20 Filed07/18/13 Page1 of 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 17 BROADCAST MUSIC, INC.; MJ PUBLISHING TRUST d/b/a MIJAC MUSIC; FOURTEENTH HOUR MUSIC INC.; COTILLION MUSIC, INC. d/b/a PRONTO MUSIC; HOUSE OF CASH, INC.; RICK’S MUSIC, INC.; RED SEA SONGS; RONDOR MUSIC INTERNATIONAL, INC. d/b/a IRVING MUSIC; SONGS OF UNIVERSAL, INC.; KINGS ROAD MUSIC; PAUL SIMON MUSIC; EMI VIRGIN SONGS, INC. d/b/a EMI LONGITUDE MUSIC; SONY/ATV SONGS LLC; THE BERNARD EDWARDS COMPANY LLC; PAINTED DESERT MUSIC CORPORATION, No. C 12-04740 LB ORDER REASSIGNING CASE REPORT AND RECOMMENDATION TO GRANT PLAINTIFFS’ MOTION FOR DEFAULT JUDGMENT [RE: ECF NO. 15] 18 Plaintiffs, 19 20 v. RHONDA ROSE ROASCIO, individually and d/b/a MOM & POP’S SALOON, 21 22 Defendant. _____________________________________/ INTRODUCTION 23 24 Plaintiffs – Broadcast Music Inc. (“BMI”), a licensor of the right to publicly perform 25 copyrighted music compositions, and the copyright owners of the ten compositions that are the 26 subject of this lawsuit – sued Defendant Rhonda Roascio individually and doing business as Mom & 27 28 ORDER; REPORT AND RECOMMENDATION C 12-04740 LB Case4:12-cv-04740-YGR Document20 Filed07/18/13 Page2 of 14 1 Pop’s Saloon for copyright infringement. Compl., ECF No. 1.1 The complaint alleges that 2 Defendant infringed ten copyrights that Plaintiffs either own or have the right to license by publicly 3 performing the songs in Mom & Pop’s Saloon. Id. ¶¶ 20, 23. On March 25, 2013, the Clerk of the 4 Court entered default against Defendant, and Plaintiffs now move for default judgment. See Entry 5 of Default, ECF No. 12; Motion for Default Judgment (“Motion”), ECF No. 15. Plaintiffs consented 6 to the undersigned’s jurisdiction but Defendant has not appeared yet. See Plaintiffs’ Consent, ECF 7 No. 8. For the reasons below, the undersigned ORDERS that the case be reassigned to a district 8 court judge and RECOMMENDS that the district court grant the motion for default judgment, 9 award $17,593.40 in total statutory damages, attorney’s fees, and costs, and enjoin Defendant from 10 continuing to infringe the musical compositions at issue in this lawsuit. STATEMENT 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 I. FACTUAL ALLEGATIONS 13 Plaintiff BMI is a corporation that has the right to license the public performance rights of 14 approximately 7.5 million copyrighted musical compositions, including the ten that are the subject 15 of this lawsuit. Compl., ECF No. 1, ¶ 4. The other plaintiffs are the copyright owners of at least one 16 of ten musical compositions licensed to BMI and allegedly infringed by Ms. Roascio. Id. ¶¶ 5-19. 17 Defendant Rhonda Roascio operates, maintains, and controls Mom & Pop’s Saloon, located at 18 205 Third Street, San Juan Bautista, California, 95045. Compl. ¶ 20. She is the sole owner of Mom 19 & Pop’s Saloon and has a direct financial interests in the establishment and the right and ability to 20 supervise its employees. Id. ¶ 21. 21 22 23 The ten compositions at issue were registered with the Copyright Office, which issued a registration certificate for the compositions. Id. ¶ 2. They are as follows: Song Title Performer Copyright Owner Copyright Registration #s Billie Jean Michael Jackson MJ Publishing Trust d/b/a Mijac Music PA 158-77 24 25 26 27 28 1 Citations are to the Electronic Case File (“ECF”) with pin cites to the electronicallygenerated page number at the top of the document. ORDER; REPORT AND RECOMMENDATION C 12-04740 LB 2 Case4:12-cv-04740-YGR Document20 Filed07/18/13 Page3 of 14 1 Aretha Franklin Chain of Fools Fourteenth Hour Music Inc.; Cotillion Music, Inc. d/b/a Pronto Music Ep 244288, RE 742-859 Folsom Prison Blues Johnny Cash House of Cash, Inc. RE 196-295, RE 153-380, Ep 102326 Funkytown Lipps, Inc. Rick’s Music, Inc.; Steve Greenberg, an individual d/b/a Red Sea Songs Pau 167-962 Hard to Handle The Black Crowes Rondor Music International, Inc. d/b/a Irving Music Eu 58360, Ep 254414 Magic Carpet Ride Steppenwolf Songs of Universal, Inc.; Philip H. Gillin, an individual d/b/a Kings Road Music Eu 83717 Slip Slidin’ Away Paul Simon Paul Simon, an individual d/b/a Paul Simon Music Eu 827814, PA 10-908 That’s The Way (I Like It) KC and The Sunshine Band EMI Virgin Songs, Inc. d/b/a EMI Longitude Music Eu 606200, Ep 359557 We Are Family Sister Sledge Sony/ATV Songs LLC; The Bernard Edwards Company LLC Pau 76-307, PA 106-660 Ring of Fire Toucher & Rich Painted Desert Music Corporation RE 498-587, Ep 167400 2 3 4 5 6 7 8 9 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 17 18 19 20 21 See Compl., ECF No. 1 at 6-10; Exhibit A to Steven’s Decl., ECF No. 15-2 at 9-16. Plaintiffs allege that at some point before February 2011, BMI learned that Mom & Pop’s Saloon 22 was offering musical entertainment without a license from BMI or permission from the copyright 23 owners. Stevens Decl., ECF No. 15-1, ¶ 3. On February 18, 2011, BMI sent a letter to the business 24 notifying it that a license was required to authorize the performance of such works. Id. ¶ 2. BMI 25 received no response. Id. BMI sent similar letters on at least thirteen different occasions between 26 March 31, 2011, and November 18, 2011, but still received no response. See Stevens Decl. ¶ 5; id. 27 Ex. B, ECF No. 15-3 (copies of correspondence). On November 1, 2011, BMI sent Ms. Roascio two 28 copies of a cease and desist notice, one via FedEx and the other by certified mail. Stevens Decl. ¶ 6. ORDER; REPORT AND RECOMMENDATION C 12-04740 LB 3 Case4:12-cv-04740-YGR Document20 Filed07/18/13 Page4 of 14 1 The FedEx letter was returned as refused by recipient and the certified mail was returned unclaimed. 2 Id. BMI sent additional letters on six different occasions between December 2, 2011, and April 11, 3 2012. Id. 4 During the same period, BMI licensing personnel telephoned Mom & Pop’s Saloon on forty-four 5 occasions and, “on a number of those occasions spoke to persons associated with the establishment’s 6 operation.” Id. ¶ 8. Nevertheless, the parties failed to enter into a license agreement. Id. ¶ 10. 7 On May 4, 2012,2 BMI had Victor Adams visit Mom & Pop’s Saloon to make an audio 8 recording and written report of the music being publicly performed at the business. Id. ¶ 11. Adams 9 filled out a “Certified Infringement Report” in which he “certif[ied] . . . under penalty of perjury” subject of this dispute. Stevens Decl. ¶ 11, Ex. A at 3. BMI analyzed Adams’s audio recording 12 For the Northern District of California that he heard two of the recordings – “Slip Slidin’ Away” and “We Are Family” – that are the 11 UNITED STATES DISTRICT COURT 10 using song identification technology and identified three additional compositions. Id. ¶ 12. Then, a 13 BMI Performance Identification employee reviewed the recording and identified all ten allegedly 14 infringed compositions. Id. ¶ 13. 15 On June 5, 2012, BMI sent a letter of the investigation results to Mom & Pop’s via FedEx and 16 First Class mail. Id. ¶ 14. The letter sent by FedEx was refused by the recipient. Id. BMI sent an 17 additional letter on June 8, 2012. Id. BMI has not received any response to its letters and believes 18 that Mom & Pop’s is still publicly performing music licensed by BMI. Id. ¶ 17. 19 BMI alleges that the estimated license fees between February 2011 and January 2013 would 20 have been approximately $2,745.00. Id. 21 II. PROCEDURAL HISTORY 22 Plaintiffs filed their complaint on September 11, 2012. Compl., ECF No. 1. On September 24, 23 2012, Plaintiffs served Ms. Roascio with the Summons, Complaint and related papers by substitute 24 service, as permitted by Federal Rule of Civil Procedure 4(e)(1) and California Code of Civil 25 Procedure § 415.20(a). Frank Decl., ECF No. 15-5, ¶ 4. Plaintiffs subsequently mailed additional 26 27 28 2 The Stevens Declaration says that Mr. Adams visited Mom & Pop’s Saloon on May 5, 2012, see ¶¶ 11-12, but the attached “Certified Infringement Report” indicates the date was May 4, See Stevens Decl. Ex. A, ECF No. 15-2 at 2. ORDER; REPORT AND RECOMMENDATION C 12-04740 LB 4 Case4:12-cv-04740-YGR Document20 Filed07/18/13 Page5 of 14 1 copies of the papers to her. Id. Ms. Roascio has not filed an Answer or otherwise appeared in this 2 matter. See generally Docket. 3 On December 12, 2012, February 20, 2013, April 3, 2013, and June 20, 2013, Plaintiffs filed 4 several case management statements, all of which were served on Defendant. See ECF Nos. 9, 10, 5 13, 16. All said that Plaintiffs had been in touch with Defendant to try to negotiate a settlement, and 6 the last two said that the efforts had not been fruitful. See id. 7 On March 18, 2013, Plaintiffs moved for entry of default against Ms. Roascio, which the Clerk 8 of the Court granted on March 25. ECF Nos. 11-12. Plaintiffs filed the motion for default judgment 9 on June 4, 2013, which they served on Defendant, and asked for an injunction to prevent Defendant $17,593.40. ECF Nos. 15 at 2, 15-7 (proof of service). The court held a hearing on July 18, 2013, 12 For the Northern District of California from infringing the copyrighted music and damages, costs, and attorney’s fees in the amount of 11 UNITED STATES DISTRICT COURT 10 and Defendant did not appear. 13 14 15 ANALYSIS I. JURISDICTION AND SERVICE Before entering default judgment, a court must determine whether it has subject matter 16 jurisdiction over the action and personal jurisdiction over the defendant. See In re Tuli, 172 F.3d 17 707, 712 (9th Cir. 1999). A court must also ensure the adequacy of service on the defendant. See 18 Timbuktu Educ. v. Alkaraween Islamic Bookstore, No. C 06–03025 JSW, 2007 WL 1544790, at *2 19 (N.D. Cal. May 25, 2007). Plaintiffs have satisfied all three requirements. 20 First, the court has subject matter jurisdiction because this action arises under the Copyright Act 21 of 1976 and federal district courts have original jurisdictions over such actions. See Compl., ECF 22 No. 1, ¶ 1; 17 U.S.C. § 101, et seq. (the “Copyright Act”); 28 U.S.C. § 1338(a). Second, the court 23 has personal jurisdiction over Ms. Roascio and Mom & Pop’s Saloon because the infringement took 24 place at the saloon, which is located within this judicial district, and because Ms. Roascio owns the 25 saloon and has the right and ability to supervise the employees there. Compl. ¶¶ 20-21; see, e.g., 26 S.E.C. v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007); Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 27 1986). 28 Plaintiffs also adequately served Ms. Roascio. Federal Rule of Civil Procedure 4(e)(1) allows ORDER; REPORT AND RECOMMENDATION C 12-04740 LB 5 Case4:12-cv-04740-YGR Document20 Filed07/18/13 Page6 of 14 1 for service “following state law for serving a summons in an action brought in courts of general 2 jurisdiction in the state where the district court is located or where service is made.” Fed. R. Civ. P. 3 4(e)(1). California law permits service 4 5 6 7 8 9 10 by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first- class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing. Cal. Code Civ. Proc. § 415.20(a). Ms. Roascio was served by substitute service on September 24, 2012. Frank Decl., ECF No. 155, ¶ 4; See also Proof of Service, ECF No. 11-1. Plaintiffs also mailed additional copies of the 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 Summons, Complaint and related papers on September 25, 2012. Frank Decl., ECF No. 15-5, ¶ 4. 13 As summarized above in the case’s procedural history, Plaintiffs served Defendant with all papers in 14 the case along the way. Plaintiffs adequately served Ms. Roascio. 15 II. DEFAULT JUDGMENT 16 Plaintiffs move for default judgment under Federal Rule of Civil Procedure 55(b)(2). 17 See Motion, ECF No. 15. A plaintiff may apply to the district court for – and the court may grant – 18 a default judgment against a defendant who has failed to plead or otherwise defend an action. See 19 Draper, 792 F.2d at 925. Whether to enter a judgment lies within the court’s discretion. Pepsico, 20 Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1175 (C.D. Cal. 2002). Still, “[a] defendant’s default 21 does not automatically entitle the plaintiff to a court-ordered judgment.” Draper 792 F.2d at 924- 22 25. Default judgments generally are disfavored because “cases should be decided on their merits 23 whenever reasonably possible.” Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). Where the 24 clerk has already entered default, courts generally take as true the factual allegations of the 25 complaint (except as to damages) and may consider other competent evidence submitted. See Fair 26 Hous. of Marin v. Coombs, 285 F.3d 899, 906 (9th Cir. 2002); TeleVideo Sys., Inc. v. Heidenthal, 27 826 F.2d 915, 917 (9th Cir. 1987). 28 In deciding whether to enter a default judgment, the court should consider the following: (1) the ORDER; REPORT AND RECOMMENDATION C 12-04740 LB 6 Case4:12-cv-04740-YGR Document20 Filed07/18/13 Page7 of 14 1 possibility of prejudice to the plaintiff; (2) the merits of plaintiff’s substantive claims; (3) the 2 sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a 3 dispute about the material facts; (6) whether the default was due to excusable neglect; and (7) the 4 strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 5 Eitel, 782 F.2d at 1471-72. The court analyzes the individual factors below. 6 A. Possibility of Prejudice to the Plaintiff (The First Eitel Factor) 7 First, Plaintiffs will be prejudiced if default judgment is not entered. Because Defendant has 8 refused to take part in the litigation, Plaintiffs will not be able to stop Ms. Roascio and her business 9 from continuing to infringe Plaintiffs’ copyrighted works. See PepsiCo, Inc. v. California Security 10 Cans, 238 F. Supp.2d 1172, 1177 (C.D. Cal. 2002). B. The Merits and Sufficiency of the Complaint (The Second and Third Eitel Factors) 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 The merits of Plaintiffs’ claims and the sufficiency of the complaint favor entry of default 13 judgment. To establish a claim for copyright infringement, a plaintiff (1) “must show ownership of 14 the allegedly infringed material,” and (2) “must demonstrate that the alleged infringer[] violate[d] at 15 least one exclusive right granted to copyright holders under 17 U.S.C. § 106.” A&M Records, Inc. v. 16 Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). Plaintiffs allege that each of the ten 17 compositions at issue in this case is the subject of a valid copyright and that the Copyright Owner 18 “complied in all respects with the requirements of the Copyright Act and received from the Register 19 of Copyrights Certificates of Registration bearing the number(s) listed” in the complaint. Compl. at 20 4, 6-10; see also Three Boys Music Corp. v. Bolton, 212 F.3d 477, 488-89 (9th Cir. 2000) 21 (“Registration is prima facie evidence of the validity of a copyright.”). Moreover, for each work, 22 Ms. Roascio allegedly performed and/or caused the musical composition to be performed publicly 23 without a license or permission to do so. Compl. ¶ 28; see 17 U.S.C. § 501(a) (infringement occurs 24 when alleged infringer engages in activity listed in § 106); 17 U.S.C. § 106(4) (affording copyright 25 owners of musical works the exclusive rights to perform the copyrighted work publicly or to 26 authorize another to do so). Because the Clerk of the Court has entered default, all well-pleaded 27 allegations in Plaintiffs’ complaint regarding liability should be taken as true, except as to the 28 amount of damages. See Fair Hous. of Marin, 285 F.3d at 906; TeleVideo Sys., Inc., 826 F.2d at ORDER; REPORT AND RECOMMENDATION C 12-04740 LB 7 Case4:12-cv-04740-YGR Document20 Filed07/18/13 Page8 of 14 1 917-18. Accordingly, Plaintiffs have adequately alleged valid claims for copyright infringement, 2 and the second and third Eitel factors favor entry of default judgment. 3 C. The Sum of Money at Stake (The Fourth Eitel Factor) 4 When the money at stake in the litigation is substantial or unreasonable, default judgment is 5 discouraged. See Eitel, 782 F.2d at 1472 (three-million dollar judgment, considered in light of 6 parties’ dispute as to material facts, supported decision not to enter default judgment); Tragni v. 7 Southern Elec. Inc., No. 09-32 JF, 2009 WL 3052635, at *5 (N.D. Cal. Sept. 22, 2009); Board of 8 Trustees v. RBS Washington Blvd, LLC, No. C 09-00660 WHA, 2010 WL 145097, *3 (N.D. Cal. 9 Jan. 8, 2010) (citing Eitel, 782 F.2d at 1472). When the sum of money at stake is tailored to the of the Sheet Metal Workers Health Care Plan v. Superhall Mechanical, Inc., No. C–10–2212 EMC, 12 For the Northern District of California specific misconduct of the defendant, default judgment may be appropriate. See Board of Trustees 11 UNITED STATES DISTRICT COURT 10 2011 WL 2600898, at *3 (N.D. Cal. June 30, 2011) (the sum of money for unpaid contributions, 13 liquidated damages, and attorneys fees were appropriate as they were supported by adequate 14 evidence provided by plaintiffs). 15 Here, Plaintiffs’ requested relief is not so large or burdensome to necessitate denying the motion 16 solely on this basis. The Copyright Act authorizes statutory damages of $750 to $30,000 per 17 infringed work. 17 U.S.C. § 504(c)(1). Plaintiffs seeks statutory damages of $1,000 per copyrighted 18 recording ($10,000 total) and $7,943.40 in court costs and attorney’s fees. Motion at 2. These 19 amounts are not so large in light of the evidence provided by Plaintiffs. Accordingly, this factor also 20 supports default judgment. 21 D. Possibility of a Factual Dispute or Excusable Neglect (The Fifth and Sixth Eitel Factors) 22 Because Ms. Roascio has not presented a defense or otherwise communicated with the Court, 23 there is no indication that her default is due to excusable neglect or that the material facts are subject 24 to dispute. See Twentieth Century Fox Film Corp. v. Streeter, 438 F. Supp. 2d 1065, 1071-72 (D. 25 Ariz. 2006). Further, BMI’s many letters and calls to Ms. Roascio and Mom & Pop’s Saloon prior 26 to and during this action reduce the likelihood of excusable neglect. 27 E. Policy Favoring Merits Decisions (The Seventh Eitel Factor). 28 Finally, although strong public policy favors decisions on the merits, see Pena v. Seguros La ORDER; REPORT AND RECOMMENDATION C 12-04740 LB 8 Case4:12-cv-04740-YGR Document20 Filed07/18/13 Page9 of 14 1 Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985), it does not appear that litigation of the merits 2 will be possible due to Ms. Roascio’s refusal to litigate. 3 In sum, the court finds that all of the Eitel factors weigh in favor of granting the default 4 judgment. The court recommends the district court grant Plaintiffs’ motion for entry of default 5 judgment. 6 III. THE RELIEF SOUGHT 7 8 9 Plaintiffs request a judgment awarding them statutory damages, injunctive relief, costs, and attorney’s fees. See Motion, ECF No. 15. The court addresses each in turn. A. Statutory Damages Under 17 U.S.C. § 504(c) in lieu of actual damages at the plaintiff’s option. See 17 U.S.C. § 504(c). The standard spectrum of 12 For the Northern District of California Plaintiffs seek statutory damages under the Copyright Act, which provides for statutory damages 11 UNITED STATES DISTRICT COURT 10 statutory damages ranges from $750 to $30,000 “for all infringements involved in the action, with 13 respect to any one work, . . . as the court deems just.” Id. Within those limits, a district court “has 14 wide discretion in determining the amount of statutory damages to be awarded.” Peer Int’l Corp. v. 15 Pausa Records, Inc., 909 F.2d 1332, 1336 (9th Cir. 1990). The court’s assessment should be guided 16 by “the nature of the copyright [and] the circumstances of the infringement.” Id. (quoting F.W. 17 Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 232 (1952)). 18 Here, Plaintiffs seek statutory damages of $1,000.00 per infringed work for a total of $10,000.00. 19 According to Plaintiffs’ evidence, this is slightly less than four times what it would have cost Ms. 20 Roascio to purchase a BMI license agreement covering the period between February 2011 and 21 January 2013. Stevens Decl., ECF No. 15-1, ¶ 17 (the estimated license fee for this period is 22 approximately $2,745.00 and the current annual license fee is approximately $1,425.00). There is 23 no information about how much Defendant made or continues to make from the alleged 24 infringement. 25 On this record, and in the context of a default judgment, the court does not recommend granting 26 the $10,000.00 based on the value of the BMI license agreement and instead recommends granting it 27 as reasonable statutory damages. As to whether the cost of a BMI license agreement is a fair 28 measure upon which to base the statutory damages award here, BMI grants licenses to “publicly ORDER; REPORT AND RECOMMENDATION C 12-04740 LB 9 Case4:12-cv-04740-YGR Document20 Filed07/18/13 Page10 of 14 1 perform any of the works in BMI’s repertoire by means of ‘blanket license agreements.’” Wolfe 2 Decl., ECF No. 15-4, ¶ 2. But BMI’s blanket license agreements cover “over 7.5 million musical 3 compositions.” See id. ¶ 5. Ms. Roascio infringed only 10 of them. Even considering the cases that 4 base infringement awards on the cost of a blanket license agreement, “the four-fold multiple of 5 license fees is at the upper range of many statutory damages awards throughout the county.” 6 Broadcast Music, Inc. v. Kiflit, No. 12-CV-00856-LHK, 2012 WL 4717852, at *4 (N.D. Cal. Oct. 2, 7 2012) (collecting cases and reducing statutory damages award to three time the cost of a BMI 8 blanket license agreement); accord Broadcast Music, Inc. v. Paden, No. 5:11-02199-EJD, 2011 WL 9 6217414, at *5 (N.D. Cal. Dec. 14, 2011) (same).3 Kiflit, $1,000.00 per infringed work is on the low end of the statutory damages range. See 17 U.S.C. 12 For the Northern District of California That being said, while the $10,000.00 is greater than the damages awards deemed common in 11 UNITED STATES DISTRICT COURT 10 § 504(c). In addition, Plaintiffs (through BMI and their outside counsel) acted diligently for over 13 two years to try to arrange a license or a settlement. The undersigned recommends the award as 14 appropriate. 15 16 17 B. Injunctive Relief Under 17 U.S.C. § 502(a) 1. Injunctive Relief is Appropriate Plaintiffs ask the court to issue a permanent injunction barring “Defendant, her agents, servants, 18 employees, and all persons acting under her permission and authority . . . from infringing, in any 19 manner the copyrighted musical compositions licensed by BMI, pursuant to 17 U.S.C. [§] 502.” 20 Complaint at 5; see Motion at 2. 21 The Copyright Act, 17 U.S.C. § 502(a), allows a court to “grant temporary and final injunctions 22 on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” 17 23 U.S.C. § 502(a). “As a general rule, a permanent injunction will be granted when liability has been 24 established and there is a threat of continuing violations.” MAI Systems Corp. v. Peak Computer, 25 Inc., 991 F.2d 511, 520 (9th Cir. 1993). 26 On this record, the court finds that injunctive relief is appropriate. As discussed, Plaintiffs have 27 28 3 With only ten copyright owners joined, the court is disinclined to peg relief to a portfolio approach for reasons similar to those discussed infra in note 4 about the scope of injunctive relief. ORDER; REPORT AND RECOMMENDATION C 12-04740 LB 10 Case4:12-cv-04740-YGR Document20 Filed07/18/13 Page11 of 14 1 established that Ms. Roascio is liable for copyright infringement. On the record presented, there is 2 also a threat of continuing violations. First, it would be relatively easy for Ms. Roascio to continue 3 to infringe Plaintiffs’ compositions by playing them at Mom & Pop’s Saloon. Ms. Roascio infringed 4 Plaintiffs’ copyrights more than a year after BMI began sending her cease and desist letters. See 5 Stevens Decl. Ex. B, ECF No. 15-3 at 3 (2/8/11 cease and desist letter); Id. Ex. A, ECF No. 15-2 at 3 6 (5/10/12 Certified Infringement Report). Second, despite BMI’s ongoing attempts to engage with 7 her, Ms. Roascio failed to respond or appear in this action. 8 2. The Scope of the Injunction injunction is an abuse of discretion.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009) 11 (quoting Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991)) (internal 12 For the Northern District of California The scope of an injunction “must be tailored to remedy the specific harm alleged. An overbroad 10 UNITED STATES DISTRICT COURT 9 citation omitted). In the copyright context, “the scope of the injunction should be coterminous with 13 the infringement.” 4 Nimmer & Nimmer, Nimmer on Copyright, § 14.06[C]. 14 In addition, Federal Rule of Civil Procedure 65 requires “[e]very order granting an injunction” to 15 “state its terms specifically” and to “describe in reasonable detail – and not by referring to the 16 complaint or other document – the act or acts restrained or required.” Fed. R. Civ. P. 65(d)(1)(B)- 17 (C). “‘[O]ne basic principle built into Rule 65 is that those against whom an injunction is issued 18 should receive fair and precisely drawn notice of what the injunction actually prohibits.’” Columbia 19 Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1047-48 (9th Cir. 2013) (quoting Fortyune v. Am. 20 Multi-Cinema, Inc., 364 F.3d 1075, 1086–87 (9th Cir. 2004)). “The Rule was designed to prevent 21 uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible 22 founding of a contempt citation on a decree too vague to be understood.” Id. Generally speaking, 23 “an ordinary person reading the court’s order should be able to ascertain from the document itself 24 exactly what conduct is proscribed.” Id. (citing 11A Charles A. Wright et al., Federal Practice & 25 Procedure § 2955 (2d ed.)). 26 Plaintiffs ask the court to bar Ms. Roascio from infringing “the copyrighted musical 27 compositions licensed by BMI.” Complaint at 5. An issue here is that Plaintiffs have established 28 Ms. Roascio’s liability for infringing only 10 of the 7.5 million works in BMI’s nonexclusive ORDER; REPORT AND RECOMMENDATION C 12-04740 LB 11 Case4:12-cv-04740-YGR Document20 Filed07/18/13 Page12 of 14 1 licensing portfolio, and only the copyright owners for those works are Plaintiffs in the case. The 2 broad language in the proposed injunction covers works that Ms. Roascio has not infringed and that 3 the copyright owners do not own.4 The proposed injunction also does not list the 7.5 million works 4 BMI licenses, which – even without the interplay with Plaintiffs’ ownership – is a notice issue. A 5 narrower injunction that still accomplishes BMI’s purpose is to enjoin only the copyrighted musical 6 compositions listed on the chart on pages 2 and 3 of this report and recommendation. That is the 7 recommendation here. As the court discussed with BMI at the hearing, this accomplishes what BMI 8 wants: a money judgment as a consequence for infringement, an injunction against future 9 infringement of the BMI-licensed works that are listed in the chart, and notice of the consequences C. Costs and Attorney’s Fees Under 17 U.S.C. § 505 12 For the Northern District of California of future infringement of BMI-licensed copyrighted works. 11 UNITED STATES DISTRICT COURT 10 Under Section 505 of the Copyright Act, courts have discretion to award reasonable attorney’s 13 fees and costs to the prevailing party in a copyright action. 17 U.S.C. § 505. The Ninth Circuit 14 employs the lodestar approach to determine whether a fee request is reasonable. Jordan v. 15 Multnomath County, 815 F.2d 1258, 1262-63 (9th Cir. 1987). “The ‘lodestar’ is calculated by 16 multiplying the number of hours the prevailing party reasonably expended on the litigation by a 17 reasonable hourly rate.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). See 18 also Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar is deemed to be presumptively 19 reasonable, though the district court has the discretion to consider an upward or downward 20 adjustment. Camacho, 523 F.3d at 978. 21 22 23 24 25 26 27 28 4 BMI’s licensing agreement with the copyright owners is explained in ECF No. 18, which it filed in response to the undersigned’s order for clarification of the arrangement. See Order, ECF No. 17. The copyright owners (called affiliates in the licensing agreements) retain their right to separately grant permission to a particular user for public performance of their copyrighted songs. At the pleadings stage, with the joinder of the copyright owners for the ten works at issue, without any argument to the contrary by the defaulting defendant, and only on this record, the undersigned concludes that the complaint’s allegation of licensing and ownership are sufficient to survive the “plausibility” standard and allow the relief that the copyright owner Plaintiffs request collectively with BMI for the ten works at issue in the lawsuit. That being said, the record does not support a broad injunction for the entire BMI catalogue given the interplay between non-exclusive licensing and ownership and instead supports the more tailored injunction that the court recommends granting. ORDER; REPORT AND RECOMMENDATION C 12-04740 LB 12 Case4:12-cv-04740-YGR Document20 Filed07/18/13 Page13 of 14 1 Here, Plaintiffs seek an award of $6,892.50 in attorney’s fees and $700.90 in costs. Frank Decl., 2 ECF No. 15-5, ¶ 9. According to attorney Karen Frank, she billed $3,622.50 (6.3 hours at $575 per 3 hour). Ms. Frank states that she has “represented BMI in many copyright infringement litigations in 4 Northern California” and is “very familiar with the law, the issues and the procedures in this kind of 5 litigation.” Id. ¶ 2. Ms. Frank also states that her associate Jeremiah Burke billed $3,270.00 (10.9 6 hours at $300 per hour). Id. Ms. Frank’s declaration describes the tasks the attorneys completed 7 and the amount of time spent on each task in one-tenth hour increments. Id. ¶ 10. The specified 8 tasks are appropriate for this type of litigation and the hours billed appear reasonable. provide documentation supporting either attorney’s hourly rate. In similar cases, courts required 11 supplemental declarations justifying their hourly rates. See, e.g., Kiflit, 2012 WL 471852, at *5; 12 For the Northern District of California Plaintiffs’ submissions do not describe Mr. Burke’s relevant qualifications and experience or 10 UNITED STATES DISTRICT COURT 9 Broadcast Music Inc. v. Antigua Cantina & Grill, LLC, No. 2:12-cv-1196 KJM DAD, 2012 WL 13 2244641 (E.D. Cal. May 21, 2013). The court does not require the submissions here because those 14 cases confirm that the rates are normal and appropriate, given counsel’s experience with these cases. 15 The rates also are in line with those charged in the San Francisco market for partners and associates 16 in copyright litigation. Accordingly, the undersigned recommends the fee request of $6,892.50. 17 18 The costs are $490.00 in filing fees and $210.90 in process server fees for a total of $700.90. Frank Decl. ¶ 11. These are reasonable, and the court recommends an award of them. 19 D. Interest Under 28 U.S.C. § 1961 20 Plaintiff asks for interest on the judgment under 28 U.S.C. § 1961, which provides that interest is 21 allowed on “any money judgment recovered in a district court.” The undersigned recommends it. 22 See Broadcast Music Inc., 2012 WL 4717852 at *5 (awarding it in like circumstances). 23 CONCLUSION 24 For the above reasons, the court the undersigned ORDERS that the case be reassigned to a 25 district court judge and RECOMMENDS that the district court GRANT Plaintiffs’ motion for 26 default judgment and award them a total monetary award of $17,593.40 as follows: $10,000.00 in 27 statutory damages, $6,892.50 in attorney’s fees, $700.90 in costs, and interest on the judgment. The 28 court also RECOMMENDS that the district court enjoin Defendant from infringing the BMI- ORDER; REPORT AND RECOMMENDATION C 12-04740 LB 13 Case4:12-cv-04740-YGR Document20 Filed07/18/13 Page14 of 14 1 licensed copyrighted musical compositions listed on the chart on pages 2 and 3. 2 Plaintiffs must serve Ms. Roascio with a copy of this report and recommendation. Any party 3 may file objections to this Report and Recommendation with the district judge within fourteen days 4 after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); N.D. Cal. Civ. L.R. 5 72. Failure to file an objection may waive the right to review of the issue in the district court. This 6 disposes of ECF No. 15. 7 8 IT IS SO ORDERED AND RECOMMENDED. Dated: July 18, 2013 9 _______________________________ LAUREL BEELER United States Magistrate Judge 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER; REPORT AND RECOMMENDATION C 12-04740 LB 14

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