Malibu Media, LLC v. Doe

Filing 25

MEMORANDUM OPINION (c/m to Defendant 7/7/16 sat). Signed by Judge Deborah K. Chasanow on 7/7/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MALIBU MEDIA, LLC
:
v.

:

Civil Action No. DKC 14-3950

:
REDACTED
:
MEMORANDUM OPINION
Plaintiff Malibu Media, LLC (“Plaintiff” or “Malibu”) filed
this action for copyright infringement under 17 U.S.C. §§ 101 et
seq. against Defendant on December 18, 2014.

Presently pending

and ready for resolution is Plaintiff’s motion for entry of
default

judgment.

(ECF

No.

hearing deemed necessary.

21).

The

court

Local Rule 105.6.

now

rules,

no

For the following

reasons, the motion will be granted in part and denied in part.
IV.

Background
Plaintiff,

a

California-based

company

d/b/a

X-Art.com,

alleges Defendant violated the United States Copyright Act of
1976 (“Copyright Act”) by using the BitTorrent file distribution
network

to

distribute

adult

copyrights held by Plaintiff.
BitTorrent

is

a

pornographic

films

subject

to

(See ECF No. 9, at 1-2).

peer-to-peer

file

sharing

system

that

allows users to interact with one another to distribute large
files,

including

Individuals

often

digital
use

movie

files.

BitTorrent

to

(See
obtain

id.

at

2-3).

and

circulate

infringed copyright content.

(ECF Nos. 21-2, at 6; 21-4).

The

system allows users to distribute an entire file by sending
small

“bits”

individually.

Plaintiff

alleges

that

its

investigator, IPP International UG, downloaded “bits” of 23 of
Plaintiff’s copyrighted films from Defendant’s Internet Protocol
address (“IP address”).

(ECF No. 9, at 3-4).

Those downloads

are the basis for this claim.
Initially,

Plaintiff

identified

Defendant

only

by

an

IP

address assigned to a customer on a specific date by an Internet
Service

Provider

(“ISP”).

Accordingly,

Plaintiff

moved

to

expedite discovery and serve a third-party subpoena on the ISP
to

obtain

the

conference.

identity

of

Defendant

prior

to

a

Rule

26(f)

The court granted the motion subject to conditions

and limitations dictated by the sensitive nature of the action
and the uncertainty surrounding the specificity of IP addresses.
(ECF No. 6).

Plaintiff then filed an amended complaint against

Defendant, to which Defendant has not responded.

(ECF No. 9).

The clerk recorded an entry of default (ECF No. 18), and on
November
default

12,

2015,

judgment

Plaintiff

seeking

filed

an

award

the
of

pending

motion

statutory

for

damages,

injunctive relief, and attorney’s fees and costs (ECF No. 21).
V.

Standard of Review
Under Fed.R.Civ.P. 55(a), “[w]hen a party against whom a

judgment for affirmative relief is sought has failed to plead or
2

otherwise defend, and that failure is shown by affidavit or
otherwise,

the

clerk

must

enter

the

party’s

default.”

A

defendant’s default does not automatically entitle the plaintiff
to entry of a default judgment; rather, that decision is left to
the discretion of the court.
767 (5th Cir. 2001).

See Lewis v. Lynn, 236 F.3d 766,

The United States Court of Appeals for the

Fourth Circuit has a “strong policy” that “cases be decided on
their merits,” Dow v. Jones, 232 F.Supp.2d 491, 494 (D.Md. 2002)
(citing United States v. Shaffer Equip. Co., 11 F.3d 450, 453
(4th Cir. 1993)), but default judgment may be appropriate where a
party is unresponsive, see S.E.C. v. Lawbaugh, 359 F.Supp.2d
418, 421 (D.Md. 2005) (citing Jackson v. Beech, 636 F.2d 831,
836 (D.C.Cir. 1980)).
“Upon [entry of] default, the well-pled allegations in a
complaint as to liability are taken as true, but the allegations
as

to

damages

Fed.R.Civ.P.

are

54(c)

not.”
limits

Lawbaugh,
the

type

359

of

F.Supp.2d

judgment

at

that

422.

may

be

entered based on a party’s default: “A default judgment must not
differ in kind from, or exceed in amount, what is demanded in
the pleadings.”

Thus, where a complaint specifies the amount of

damages sought, the plaintiff is limited to entry of a default
judgment in that amount.

“[C]ourts have generally held that a

default judgment cannot award additional damages . . . because
the

defendant

could

not

reasonably
3

have

expected

that

his

damages

would

exceed

that

amount.”

In

re

Genesys

Technologies, Inc., 204 F.3d 124, 132 (4th Cir. 2000).

Data

While the

court may hold a hearing to consider evidence as to damages, it
is not required to do so; it may rely instead on “detailed
affidavits or documentary evidence to determine the appropriate
sum.”

Adkins

v.

Teseo,

180

F.Supp.2d

15,

17

(D.D.C.

2001)

(citing United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th
Cir. 1979)).
VI.

Analysis
Plaintiff moves for default judgment against Defendant for

direct copyright infringement and seeks an award of statutory
damages, injunctive relief, and attorney’s fees and costs.
To establish copyright infringement liability, a plaintiff
must prove two elements: (1) ownership of the copyright; and (2)
copying

of

defendant.

original

constituent

elements

by

the

alleged

17 U.S.C. § 501(a); see also Feist Publ’ns, Inc. v.

Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).

Plaintiff has

met its burden through its pleadings by alleging it owns the 23
copyrights
BitTorrent.

that

Defendant

obtained

(ECF No. 9, at 1-3).

and

distributed

through

Exhibit B of the amended

complaint supports Plaintiff’s assertion of ownership over the
23 copyrights, and Exhibit A supports its assertion that those
copyrights

were

downloaded,

copied,

Defendant’s IP address using BitTorrent.
4

and

distributed

from

(ECF Nos. 9-1; 9-2).

Because

the

complaint

court

as

takes

true

the

upon

well-pleaded

entry

of

allegations

default,

in

Plaintiff

a
has

established Defendant’s liability for copyright infringement by
default.

See

Ryan,

253

F.3d

at

780.

Accordingly,

only

questions of the appropriate relief remain.
A.

Statutory Damages

Plaintiff

requests

statutory

video, for a total of $34,500.00.

damages

of

$1,500.00

(ECF 21-2, at 9).

per

Under §

504(a) of the Copyright Act, an infringer of copyright is liable
for either: (1) the copyright owner’s actual damages and any
additional profits of the infringer; or (2) statutory damages as
provided

by

subsection

(c).

17

U.S.C.

504(a).

Section

504(c)(1) provides:
[T]he copyright owner may elect, at any time
before
final
judgment
is
rendered,
to
recover, instead of actual damages and
profits, an award of statutory damages for
all infringements involved in the action,
with respect to any one work, for which any
one infringer is liable individually, or for
which any two or more infringers are liable
jointly and severally, in a sum of not less
than $750 or more than $30,000 as the court
considers just.
17

U.S.C

§

504(c)(1);

see

also

Patrick

Collins,

Inc.

v.

Gillispie, No. 11-cv-01776-AW, 2012 WL 666001, at *3 (D.Md. Feb.
23, 2012).

The court has broad discretion in setting the amount

of statutory damages under the Copyright Act.

Microsoft Corp.

v. Grey Computer, 910 F.Supp. 1077, 1091 (D.Md. 1995) (citing
5

Shell Oil Co. v. Commercial Petroleum, Inc., 928 F.2d 104, 108
(4th Cir. 1991)).
The

court

may

also

award

a

maximum

of

$150,000.00

in

enhanced damages if a plaintiff proves the defendant committed
the infringement willfully.

17 U.S.C. § 504(c)(2).

Courts have

determined that an award of enhanced damages under § 504(c)(2)
is

only

appropriate

when

the

plaintiff

shows

the

infringer

“either had actual knowledge that it was infringing the owner’s
copyrights or acted in reckless disregard of those rights.”

See

Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F.Supp.2d 737,
753 (D.Md. 2003).

Plaintiff does not seek enhanced damages, and

judges in this district have routinely refused to grant enhanced
damage awards in cases similar to this.

See, Malibu Media, LLC

v. [Redacted], CCB-15-1700, 2016 WL 245235, at *1 (D.Md. Jan.
21,

2016);

Gillispie,

2012

WL

666001,

at

*3.

Accordingly,

enhanced damages are not appropriate in this case.
When awarding statutory damages pursuant to § 504(c)(1),
which

allows

awards

between

$750.00

and

$30,000.00

infringement, courts consider a variety of factors.
Media, LLC v. [Redacted], 2016 WL 245235, at *2.

per

See Malibu
Judge Blake

identifies these factors:
(1) [W]hether the defendant was the original
provider of the infringed content to its
distribution network; (2) whether, and how
much, the defendant profited or saved in
connection
with
the
infringement;
(3)
plaintiff’s actual losses; (4) whether the
6

plaintiff’s
request
would
result
in
a
“windfall”; (5) the deterrent effect of
statutory damages; and (6) the defendant’s
willfulness and intent in infringing the
plaintiff’s protected content.
Id.

Under

the

above

analysis,

Judge

Blake

determined

the

statutory minimum of $750.00 per infringed work was not only
sufficient, but excessive.

Id. at *2 n.2.

The recent trend in courts across the country is to award
the minimum statutory award of $750.00 per violation to Malibu
or other plaintiffs in similar infringement actions.

See, e.g.,

Malibu Media, LLC v. [Redacted], 2016 WL 245235, at *1 (awarding
$750.00 per work, totaling $92,250.00); Malibu Media, LLC v.
Powell, No. 1:15-CV-1211, 2016 WL 26068, at *1 (M.D.Pa. Jan. 5,
2016) (awarding $750.00 per work, totaling $39,750.00); Malibu
Media, LLC v. Saari, No. 1:14-cv-00860-JMS-MJD, 2015 WL 5056887,
at

*2

(S.D.Ind.

Aug.

26,

2015)

(awarding

$750.00

per

work,

totaling $9,750.00); Malibu Media, LLC v. Caswell, No. 2:14-cv837, 2015 WL 3822904, at *2 (S.D.Ohio June 19, 2015) (awarding
$750.00 per work, totaling $21,750.00); Malibu Media, LLC v.
Funderburg, No. 1:13-cv-02614, 2015 WL 1887754, at *4 (N.D.Ill.
April 24, 2015) (awarding $750.00 per work, totaling $9,000.00).
Prior to 2015, courts often awarded statutory damages between
$1,500.00 and $2,500.00 per violation.

See, e.g., Malibu Media,

LLC v. Cowham, No. 3:13-cv-00162-PPS-CAN, 2014 WL 2453027, at *2
(N.D.Ind. June 2, 2014) (awarding $1,500.00 per work, totaling
7

$36,000.00);
2013

WL

Malibu

6670236,

Media,

at

*11

LLC

v.

(D.Colo.

Goodrich,
Dec.

18,

No.

12-cv-01394,

2013)

(awarding

$2,250.00 per work, totaling $36,000.00); Malibu Media, LLC v.
Brenneman,

No.

3:13-cv-00332-PPS-CAN,

2013

WL

6560387,

at

*3

(N.D.Ind. Dec. 13, 2013)(awarding $1,500.00 per work, totaling
$16,500.00).

Many

of

the

recent

cases,

however,

note

the

growing judicial concern with “the rise of so-called ‘copyright
trolls’ in the adult film industry, meaning copyright holders
who seek copyright infringement damages not to be made whole,
but rather as a primary or secondary revenue stream and file
mass lawsuits against anonymous Doe defendants with the hopes of
coercing settlements.”

Malibu Media, LLC v. Brenneman, 2013 WL

6560387, at *3 (citing Third Degree Films v. Does 1-47, 286
F.R.D. 188, 189-90 (D.Mass. 2012); James DeBriyn, Shedding Light
on Copyright Trolls: An Analysis of Mass Copyright Litigation in
the Age of Statutory Damages, 19 UCLA Ent.L.Rev. 79, 86 (2012)).
The court notes the concerning nationwide trend, but makes no
determination as to Plaintiff’s motivation in this case.
Here, an award of the minimum statutory damages — $750.00
per

infringement

for

each

of

the

23

infringements,

totaling

$17,250.00 — is more than adequate to compensate Plaintiff and
help

deter

future

copyright

infringement.

The

record

here

provides “no evidence suggesting the defendant was the original
‘seed’ or provider of the protected content on the BitTorrent
8

network.”
*2.

Malibu Media, LLC v. [Redacted], 2016 WL 245235, at

Neither does the evidence show, nor even suggest, Defendant

profited

from

Plaintiff’s

copyrighted

films.

Moreover,

Plaintiff has provided barely a scintilla of evidence as to
actual

losses

suffered

because

of

Defendant’s

conduct.

Plaintiff asserts that “Defendant materially aided each of the
other participants in the BitTorrent swarm of infringers.”
No. 21-2, at 10).

(ECF

This swarm, according to Plaintiff, continues

to grow and contains “thousands of peers” whose conduct, taken
together,

results

$34,500.00.

(ECF

in

lost

No.

sales

21-2,

far

at

exceeding

10).

the

Plaintiff,

requested
however,

provides no evidence as to the actual make-up of the alleged
“swarm”

or

its

quantitative

effect

on

Plaintiff’s

profits.2

Finally, the available evidence does not establish the extent
and nature of Defendant’s willfulness.
The court appreciates Plaintiff’s desire to deter copyright
infringers from engaging in piracy of its works.
one

of

the

purposes

of

awarding

damages

Undoubtedly,

pursuant

to

the

Copyright Act is to deter copyright infringement.

An award of

the

dozen

statutory

2

minimum

for

each

of

nearly

two

works

Although Plaintiff is not required to prove actual damages
to be entitled to an award of statutory damages, see Gnossos
Music v. Mitken, Inc., 653 F.2d 117, 118 (4th Cir. 1981) (citing
Douglas v. Cunningham, 294 U.S. 207, 209 (1935)), a lack of
evidence as to actual damages can dissuade the court from
awarding statutory damages above the minimum. See Malibu Media,
LLC v. [Redacted], 2016 WL 245235, at *2.
9

accomplishes the goal of deterrence.
each

factor

as

well

as

recent

Thus, having considered

opinions

of

judges

in

this

district and others, the court is not persuaded that an award
above

the

statutory

minimum

is

warranted.

Accordingly,

Plaintiff will be awarded the statutory minimum of $750.00 per
infringement for each of the 23 infringements for a total award
of $17,250.00.
B.

Injunctive Relief

In addition to monetary damages, Plaintiff seeks injunctive
relief pursuant to 17 U.S.C. § 502(a) and 17 U.S.C. § 503(b).
Specifically, Plaintiff requests the court permanently enjoin
Defendant from continuing to infringe Plaintiff’s copyrights,
order Defendant to delete and forever remove digital media files
relating

to

Plaintiff’s

copyrights

from

all

of

Defendant’s

computers, and order Defendant to delete and forever remove the
infringing

copies

of

the

copyrights

computers.

Defendant

has

on

his

(ECF No. 21-2, at 11).

As to Plaintiff’s first request, § 502(a) provides that
“[a]ny court having jurisdiction of a civil action arising under
this title may . . . grant temporary and final injunctions on
such terms as it may deem reasonable to prevent or restrain
infringement

of

a

copyright.”

17

U.S.C.

§

502(a).

As

to

Plaintiff’s second and third requests, § 503(b) provides further
relief, stating that “the court may order the destruction . . .
10

of all copies . . . found to have been made or used in violation
of the copyright owner’s exclusive rights . . . [.]”
§ 503(b).

17 U.S.C.

To obtain a permanent injunction, “a plaintiff must

show (1) irreparable injury, (2) remedies at law are inadequate
to compensate for that injury, (3) the balance of hardships
between the plaintiff and defendant warrants a remedy, and (4)
an injunction would not disserve the public interest.”

Raub v.

Campbell, 785 F.3d 876, 885 (4th Cir. 2015) (internal quotation
marks omitted) (quoting Monsanto Co. v. Geerston Seed Farms, 561
U.S. 139, 156-57 (2010)).
Plaintiff

has

sufficiently

demonstrated

relief is appropriate in this action.
suffer

irreparable

harm

absent

an

that

Plaintiff will likely

injunction,

relief would be inadequate compensation.

injunctive

and

monetary

(ECF No. 21-2, at 12).

The nature of the BitTorrent system means the Plaintiff’s works
can continue to circulate the internet at a fast rate and reach
many users.

Should this distribution persist, Plaintiff would

likely be without legal recourse in regard to the copyrights
implicated in the current case.

As to the balance of hardships,

Defendant suffers no injury due to an injunction other than what
would

“be

infringing

a

result

conduct.”

of

[Defendant]

Medias

&

Co.,

F.Supp.2d 1132, 1140 (D.Colo. 2000).

ceasing
Inc.

v.

the
Ty,

Inc.,

106

Finally, the prevention of

copyright infringement serves the public interest.
11

allegedly

Accordingly,

the

court

will

grant

Plaintiff’s

request

for

permanent

injunction and destruction of digital media files and infringing
copies of Plaintiff’s work pursuant to 17 U.S.C. § 502(a) and 17
U.S.C. § 503(b) of the Copyright Act.
C.

Attorney’s Fees and Costs

Plaintiff requests $1,182.00 in attorney’s fees and $460.00
in costs.

“In any action under this title, the court in its

discretion may allow the full recovery of costs . . . the court
may also award a reasonable attorney’s fee to the prevailing
party as part of the costs.”

17 U.S.C. § 505; see also Malibu

Media, LLC v. [Redacted], 2016 WL 245235, at *1.

“The most

useful starting point for determining the amount of a reasonable
fee is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.”
461 U.S. 424, 433 (1983).
the “lodestar” method.
313,

320

Fourth

(4th

Circuit

Cir.
has

Hensley v. Eckerhart,

This approach is commonly known as

Grissom v. The Mills Corp., 549 F.3d

2008).

In

instructed

assessing
district

reasonableness,
courts

to

certain factors, including:
(1) the time and labor expended; (2) the
novelty and difficulty of the questions
raised; (3) the skill required to properly
perform the legal services rendered; (4) the
attorney’s opportunity costs in pressing the
instant litigation; (5) the customary fee
for
like
work;
(6)
the
attorney’s
expectations
at
the
outset
of
the
litigation; (7) the time limitations imposed
by the client or circumstances; (8) the
12

the

consider

amount
in
controversy
and
the
results
obtained; (9) the experience, reputation and
ability
of
the
attorney;
(10)
the
undesirability of the case within the legal
community in which the suit arose; (11) the
nature
and
length
of
the
professional
relationship between attorney and client;
and (12) attorney’s fees awards in similar
cases.
Barber v. Kimbrell’s Inc, 577 F.2d 216, 226 n.28 (4th Cir. 1978).
Here, Plaintiff’s request for attorney’s fees in the amount
of $1,182.00 for 9.1 hours of work is reasonable.

Plaintiff’s

counsel, Jon A. Hoppe, provides a declaration in support of the
fees requested attesting to the number of hours spent on this
matter

by

him

respectively.

and

the

paralegal:

(ECF No. 21-1, at 2).

1.9

hours

and

7.2

hours,

Counsel requests $300.00

per hour for himself and $85.00 per hour for the paralegal.
Because the hourly rates sought for both attorney and paralegal
fees fall on the lower end of the guidelines set forth in the
Local Rules, Local Rules App’x B, additional documentation as to
prevailing market rates is unnecessary in this case.

Counsel’s

declaration

paralegal

includes

sufficient

detail,

and

the

completed the vast majority of tasks, thereby demonstrating an
effort to minimize the costs of litigation.
record

does

not

reflect

any

overly

Moreover, the time

redundant,

excessive,

or

unnecessary work, and the number of hours is reasonable and well
documented.

Accordingly,

there

is

no

lodestar, and the entire fee is approved.
13

reason

to

adjust

the

Plaintiff also seeks $460.00 for costs incurred, $400.00
for a statutory filing fee and $60.00 for process service fees.
(ECF No. 21-1, at 2).

“Costs that may be charged include ‘those

reasonable out-of-pocket expenses incurred by the attorney which
are normally charged to a fee-paying client, in the course of
providing

legal

services.’”

Trs.

of

the

Nat’l

Automatic

Sprinkler Indus. Welfare Fund v. Westland Fire Prot., Inc., No.
DKC 12-1421, 2014 WL 824121, at *3 (D.Md. Feb. 28, 2014) (citing
Spell v. McDaniel, 852 F.2d 762, 771 (4th Cir. 1988)). Here, the
requested costs are reasonable.
Because Plaintiff’s requests as to both attorney’s fees and
costs attributable to this claim are reasonable, the court will
award Plaintiff attorney’s fees and costs totaling $1,642.00.
IV. Conclusion
For the foregoing reasons, the motion for default judgment
filed by Plaintiff Malibu Media, LLC will be granted in part and
denied in part.

Judgment will be entered for Plaintiff in the

amount of $17,250.00 in damages and $1,642.00 in attorney’s fees
and costs.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

14