Malibu Media, LLC v. Doe

Filing 66

ORDER: re 65 Report and Recommendations. For the reasons stated above, Judge Gorenstein's R&R (Dkt. No. 65) is adopted in its entirety. Plaintiff is awarded $18,000 in statutory damages and $400 in costs, plus post- judgment int erest in accordance with 28 U.S.C. § 1961(a). The Clerk of Court is directed to enter judgment and to close this case. Chambers will mail a copy of this Order to Defendant and note service on the docket. So Ordered (Signed by Judge Paul G. Gardephe on 3/11/2021) (js) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MALIBU MEDIA, LLC,
Plaintiff,
ORDER
- against 18 Civ. 346 (PGG) (GWG)
JOHN RIOS,
Defendant.
PAUL G. GARDEPHE, U.S.D.J.:
Plaintiff Malibu Media, LLC, d/b/a X-Art.com, has sued Defendant John Rios for
copyright infringement. (See generally Second Am. Cmplt. (“SAC”) (Dkt. No. 34)) This Court
entered an Order of Default against Defendant (Dkt. No. 58) and referred this case to Magistrate
Judge Gabriel W. Gorenstein for an inquest on damages. (Dkt. No. 60) Judge Gorenstein has
issued a Report & Recommendation (“R&R”) in which he recommends that Plaintiff be awarded
$18,000 in damages and $400 in costs. (R&R (Dkt. No. 65) at 1, 8) 1 For the reasons stated
below, the R&R will be adopted in its entirety.
BACKGROUND 2
I.

FACTS
Plaintiff is a California-based limited liability company that owns copyrights to

certain adult films. (SAC (Dkt. No. 34) ¶¶ 3, 8; SAC, Ex. B (Dkt. No. 34-2)) Defendant is an

1

All references to page numbers in this Order are as reflected in this District’s Electronic Case
Files system.
2
As no objections were filed, the Court adopts the R&R’s account of the facts in full. See
Silverman v. 3D Total Sols., Inc., No. 18 Civ. 10231 (AT), 2020 WL 1285049, at *1 n.1
(S.D.N.Y. Mar. 18, 2020) (“Because the parties have not objected to the R&R’s characterization
of the background facts . . . , the Court adopts the R&R’s ‘Background’ section”). Given
Defendant’s default, these facts are assumed to be true. Idir v. La Calle TV, LLC, No. 19-CV6251 (JGK), 2020 WL 4016425, at *2 (S.D.N.Y. July 15, 2020) (“In the event of a defendant’s
default, the plaintiff’s properly pleaded allegations in the complaint, except those related to
damages, are accepted as true.”).

individual who resides in New York City. (Id. ¶ 9) According to the Second Amended
Complaint, Defendant used a BitTorrent file-sharing network to illegally download, copy, and
distribute twelve of Plaintiff’s copyrighted digital works. 3 (Id. ¶¶ 23-25, 30; SAC Ex. A (Dkt.
No. 34-1), Ex. B (Dkt. No. 34-2))
II.

PROCEDURAL HISTORY
The Complaint was filed on January 14, 2018 (Dkt. No. 1), the Amended

Complaint was filed on May 30, 2018 (Dkt. No. 26), and the Second Amended Complaint was
filed on July 21, 2018. (Dkt. No. 34) Defendant was served with the Second Amended
Complaint on August 13, 2018. (Dkt. No. 39) Defendant has not responded to the Second
Amended Complaint or otherwise appeared in this action.
On November 19, 2018, the Court ordered Defendant to show cause – at a hearing
scheduled for December 20, 2018 – why a default judgment should not be entered against him.
(Dkt. No. 48) The hearing was ultimately adjourned to January 24, 2019. (Dkt. No. 54) Despite
being served with the order to show cause (see Dkt. No. 55), Defendant did not appear at the
January 24, 2019 hearing. (See Dkt. No. 58) On February 20, 2019, this Court issued an Order
of Default as to Defendant (id.), and on August 27, 2020, this Court referred this case to Judge

3

“The BitTorrent file distribution network (‘BitTorrent’) is one of the most common peer-topeer file sharing systems used for distributing large amounts of data, including, but not limited
to, digital movie files.” (SAC (Dkt. No. 34) ¶ 10) “BitTorrent’s popularity stems from the
ability of users to directly interact with each other in order to distribute a large file without
creating a heavy load on any individual source computer and/or network.” (Id. at ¶ 11) “In order
to distribute a large file, the BitTorrent protocol breaks a file into many small pieces. Users then
exchange these small pieces among each other instead of attempting to distribute a much larger
digital file.” (Id. ¶ 12) “After the infringer receives all of the pieces of a digital media file, the
infringer’s BitTorrent client software reassembles the pieces so that the file may be opened and
utilized.” (Id. ¶ 13)
2

Gorenstein for an inquest on damages. (Dkt. No. 60)
On August 27, 2020, Judge Gorenstein directed Plaintiff to file proposed findings
of fact and conclusions of law. (Dkt. No. 61) On October 11, 2020, Plaintiff filed a
“Memorandum of Law in Support of Inquest on Damages.” (Dkt. No. 62)
On February 23, 2021, Judge Gorenstein issued an 11-page R&R recommending
that Plaintiff be awarded $18,000.00 in damages and $400.00 in costs. (R&R (Dkt. No. 65) at 1,
8) In his R&R, Judge Gorenstein notifies the parties that they have 14 days to file any
objections, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil
Procedure. (Id. at 9) The R&R further states that, “[i]f a party fails to file timely objections, that
party will not be permitted to raise any objections to this [R&R] on appeal.” (Id.) Neither side
has filed objections to the R&R.
DISCUSSION
I.

LEGAL STANDARDS
In reviewing a report and recommendation, a district court “may accept, reject, or

modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1)(C). Where, as here, no objections are filed to a magistrate judge’s R&R –
despite clear warning that a failure to file objections will result in a waiver of judicial review –
judicial review has been waived. See Thomas v. Arn, 474 U.S. 140, 147-48 (1985); see also
Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Where parties receive clear
notice of the consequences, failure timely to object to a magistrate’s report and recommendation
operates as a waiver of further judicial review of the magistrate’s decision.” (citing Small v.
Sec’y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam))); see also
Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000)

3

(“Failure to timely object to a report generally waives any further judicial review of the findings
contained in the report.”). This Court has nonetheless reviewed the R&R for clear error and, as
explained below, finds no error – let alone clear error – in Judge Gorenstein’s findings. See
Wingate v. Bloomberg, No. 11-CV-188 (JPO), 2011 WL 5106009, at *1 (S.D.N.Y. Oct. 27,
2011) (noting that a district court’s review of an R&R, where no objections are made, is limited
to a consideration of whether there is any clear error that precludes acceptance of the
recommendations).
II.

ANALYSIS
A.

Liability
As Judge Gorenstein explains, “‘a defendant who defaults thereby admits all well-

pleaded factual allegations contained in the complaint,’” such that a court will accept as true all
“properly pleaded allegations . . . except those related to damages.” (R&R (Dkt. No. 65) at 2
(quoting City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011); citing
Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009))) “To establish a claim of copyright
infringement, [a plaintiff] ‘must show: (i) ownership of a valid copyright; and (ii) unauthorized
copying of the copyrighted work.’” (Id. at 4 (quoting Jorgensen v. Epic/Sony Records, 351 F.3d
46, 51 (2d Cir. 2003))) Judge Gorenstein correctly concludes that these requirements are
satisfied in this case, because Plaintiff “has proven ownership of a valid copyright,” and “has
shown unauthorized copying by alleging facts showing [that Defendant] downloaded and
distributed its copyrighted works via BitTorrent without its permission.” (Id. at 5; see also SAC,
Ex. B (Dkt. No. 34-2); SAC (Dkt. No. 34) ¶¶ 17-24) Accordingly, liability is established.
B.

Damages
As Judge Gorenstein notes, “[a]s to damages, ‘[t]he district court must . . .

4

conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.’” (Id.
at 2-3 (quoting Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir.
1999))) Further, “a court need not hold a hearing ‘as long as it ensure[s] that there [is] a basis for
the damages specified in a default judgment[.]’” (Id. at 3 (quoting Fustok v. ContiCommodity
Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989))) Here, neither side requested an evidentiary
hearing, despite being given an opportunity to do so. (Id.)
As Judge Gorenstein explains, under Section 504(a) of the Copyright Act, “‘an
infringer of copyright is liable for either’ actual damages or statutory damages.” (Id. at 5
(quoting 17 U.S.C. § 504(a)(1)-(2)) (alteration and marks omitted)) Here, Plaintiff seeks
statutory damages. (Pltf. Br. (Dkt. No. 62) at 6, 12) Where statutory damages are sought, a
copyright owner “may recover ‘with respect to any one work, . . . no[] less than $750 or more
than $30,000 as the court considers just.’” (R&R (Dkt. No. 65) at 5 (quoting 17 U.S.C.
§ 504(c)(1))) 4 Here, Plaintiff seeks $18,000 in statutory damages, which corresponds to an
award of $1,500 per infringed work. (Pltf. Br. (Dkt. No. 62) at 15)
Courts consider the following factors in determining an award of statutory
damages:
(1) the infringer’s state of mind; (2) the expenses saved, and profits earned, by the
infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on
the infringer and third parties; (5) the infringer’s cooperation in providing
evidence concerning the value of the infringing material; and (6) the conduct and
attitude of the parties.
4

A court may award as much as $150,000 in statutory damages where the infringement was
willful. (R&R (Dkt. No. 65) at 5-6 (citing 17 U.S.C. § 504(c)(2))) “In order to ‘prove that a
copier’s infringement was willful [a copyright holder] must show that the infringer had
knowledge that its conduct represented infringement or . . . recklessly disregarded the
possibility.’” (Id. at 6 (quoting Bryant v. Media Right Prods., Inc., 603 F.3d 135, 143 (2d Cir.
2010) (internal citation omitted))) “‘Courts frequently infer willfulness where a defendant
defaults.’” (Id. (quoting Hounddog Prods., L.L.C. v. Empire Film Grp., Inc., 826 F. Supp. 2d
619, 631 (S.D.N.Y. 2011)))
5

(R&R (Dkt. No. 65) at 5 (quoting Bryant v. Media Right Prods., Inc., 603 F.3d 135, 144 (2d Cir.
2010)))
As to the first factor, Judge Gorenstein concludes that – given Defendant’s default
– his state of mind should be deemed willful. (Id. at 6) Judge Gorenstein further finds that the
second and third factors “weigh in favor of an increased statutory damages award,” because
Plaintiff’s films typically require viewers to pay a subscription fee. (Id.) Accordingly, Plaintiff
lost revenue as a result of Defendant’s actions. (Id. at 6-7) As to the fourth factor, Plaintiff’s
requested award of $1,500 per each infringed work, although “modest[,] . . . will have a deterrent
effect on [Defendant] and other infringers.” (Id. at 7) As to the fifth factor, Defendant has not
cooperated. (Id.) As to the sixth factor, Judge Gorenstein reports that he “has no information as
to either party’s conduct that would bear on the amount of statutory damages.” (Id.)
Judge Gorenstein concludes that Plaintiff “has justified the modest amount it has
requested, that is, $1,500 per infringed work or a total of $18,000 in statutory damages.” (Id. at
7-8)
As to costs, Judge Gorenstein notes that a “court may, ‘in its discretion[,] . . .
allow the recovery of full costs[,]’ and ‘award a reasonable attorney’s fee to the prevailing party
as part of the costs’ for copyright infringement.” (Id. at 8 (quoting 17 U.S.C. § 505)) Here,
Plaintiff does not seek an award of attorney’s fees, but it does seek $615 in costs. (Pltf. Br. (Dkt.
No. 62) at 17-18) Judge Gorenstein notes that while Plaintiff has submitted an attorney
declaration in support of its requested costs, “[c]ourts in this district regularly decline to award
costs where [the application for costs is] not supported by documentary evidence.” (R&R (Dkt.
No. 65) at 8 (citing cases)) Accordingly, Judge Gorenstein takes judicial notice of the $400
filing fee paid by Plaintiff, but declines to award Plaintiff fees for service and other alleged

6

expenses. (Id.)
This Court finds no error in Judge Gorenstein’s analysis. Accordingly, the Court
will adopt his recommendation and award Plaintiff $18,000 in statutory damages and $400 in
costs.
CONCLUSION
For the reasons stated above, Judge Gorenstein’s R&R (Dkt. No. 65) is adopted in
its entirety. Plaintiff is awarded $18,000 in statutory damages and $400 in costs, plus postjudgment interest in accordance with 28 U.S.C. § 1961(a). The Clerk of Court is directed to
enter judgment and to close this case. Chambers will mail a copy of this Order to Defendant and
note service on the docket.
Dated: New York, New York
March 11, 2021

7