reFX Audio Software Inc. v. Does 1-100

Filing 92

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's motion for default judgment 90 is GRANTED to the extent set out above. A separate Judgment in accordance with this Memorandum and Order will be entered this same date.. Signed by District Judge Rodney W. Sippel on 12/30/13. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
reFX AUDIO SOFTWARE, INC.,
Plaintiff,
vs.
BRIAN WILTOWSKI,
Defendants.

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Case No. 4:12 CV 2095 RWS

MEMORANDUM AND ORDER
This matter is before me on Plaintiff reFX Audio Software, Inc.’s motion for default
judgment against Defendant Brian Wiltowski. The present lawsuit alleges that Wiltowski used a
file sharing program known as BitTorrent to illegally obtain and distribute its copyrighted software.

Plaintiff properly served Wiltowski on July 24, 2013. On December 19, 2013, the Clerk
of Court entered a default against Wiltowski because he failed to file an answer or other
responsive pleading. In its motion for default judgment, Plaintiff requests statutory damages in
the amount of $9,250, in addition to attorney’s fees totaling $900. Plaintiff also requests a
permanent injunction to prevent Wiltowski from committing future acts of infringement.
Under the Copyright Act, 17 U.S.C. § 504(a), an infringer of a copyright is liable for
either (1) the copyright owner's actual damages and any additional profits of the infringer, or (2)
statutory damages. The measure of damages is elected by the copyright owner. § 504(b) and (c).
Here, Plaintiff has elected to seek statutory damages. 17 U.S.C. § 504(c) provides that a
copyright owner may recover an award of statutory damages, with respect to any one work, “in a
sum not less than $750 or more than $30,000 as the court considers just.” 17 U.S.C. § 504(c)(1).

Here, Plaintiff alleges that the infringement was committed willfully, which increases the range
of statutory damages “to a sum of not more than $150,000.” 17 U.S.C. § 504(c)(2).
Plaintiff’s complaint and filings support its allegations that Wiltowski infringed upon its
copyrighted software. Wiltowski failed to appear in this action to defend or offer any
justification for his actions. Accordingly, the entry of a default judgment pursuant to Rule
55(b)(2) is proper. Although Plaintiff has requested a statutory damages award of $9,250, I find
that a statutory damages award of $2,000 would sufficiently reimburse Plaintiff for Defendant’s
infringement and would adequately discourage future infringement. A statutory damages award
of $2,000 is consistent with damages awarded in similar infringement actions.
Plaintiff argues it is entitled to an injunction prohibiting Wiltowski from unlawfully
infringing upon its copyrighted software. Section 502(a) of Title 17 provides: “Any 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.”
When a “history of continuing infringement” is present and “a significant threat of future
infringement remains,” a permanent injunction is appropriate. Olan Mills, Inc. v. Linn Photo
Co., 23 F.3d 1345, 1349 (8th Cir. 1994) (citation omitted). I will also grant Plaintiff’s request
that Wiltowski be permanently enjoined from infringing upon any of Plaintiff’s copyrighted
works.
17 U.S.C. § 505 provides that “in any civil action under this title, the court in its
discretion may allow the recovery of full costs by or against any party other than the United
States or an officer thereof. Except as otherwise provided by this title, the court may also award
a reasonable attorney's fee to the prevailing party as part of the costs.” Using my discretion, I
will award Plaintiff reasonable attorney’s fees amounting to $900.

Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion for default judgment [#90] is
GRANTED to the extent set out above.
A separate Judgment in accordance with this Memorandum and Order will be entered this
same date.

_____________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 30th day of December, 2013.