Riding Films, Inc. v. Does 129-193

Filing 77

REPORT AND RECOMMENDATIONS re 59 MOTION for Default Judgment against James Mclean filed by Riding Films, Inc. Objections to R&R due by 1/26/2015. Signed by Magistrate Judge Norah McCann King on 1/8/2015. (pes1)(This document has been sent by the Clerks Office by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RIDING FILMS, INC.,
Plaintiff,
vs.

Civil Action 2:13-cv-46
Judge Marbley
Magistrate Judge King

JOHN DOES 129-193,
Defendants.
REPORT AND RECOMMENDATION

I.
Plaintiff Riding Films, Inc., a Canadian limited liability
company, claims the copyright to the motion picture Dawn Rider.
Plaintiff filed this action on January 16, 2013, alleging that sixtyfour defendants, identified only by internet protocol (“IP”)
addresses, each violated plaintiff’s copyright by downloading
plaintiff’s motion picture and sharing it with others using a
BitTorrent protocol or torrent, which is a type of peer-to-peer file
sharing software.

Through early discovery, see Order, ECF 4,

plaintiff traced one of the IP addresses to one James Mclean, who was
named as one of seven defendants in the Amended Complaint, ECF 15, and
served with process, Summons Returned Executed, ECF 36.

After

defendant failed to plead or otherwise defend in this cause as
required by law, the Clerk entered his default on April 16, 2014.
Entry of Default, ECF 55.

This matter is now before the Court,

pursuant to an order of referral, Order, ECF 76, on plaintiff's motion

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for default judgment against defendant James Mclean.

Motion for

Default Judgment, ECF 59.
Plaintiff seeks $150,000 in statutory damages, $4,042.50 in
attorneys’ fees, and $360.70 in costs; plaintiff also asks that the
Court permanently enjoin defendant Mclean from infringing, directly or
indirectly, plaintiff’s copyrighted works. Id.
II.
Rule 55(b) of the Federal Rules of Civil Procedure authorizes a
court to enter default judgment against a party whose default has been
entered by the clerk.

Once default has been entered, a defaulting

defendant is considered to have admitted all the well-pleaded
allegations relating to liability.
66 F.3d 105, 110 (6th Cir. 1995).

See Antoine v. Atlas Turner, Inc.,
In order to succeed on its claim of

copyright infringement under 17 U.S.C. § 101 et seq., plaintiff must
prove that it owns a valid copyright in the motion picture and that
defendant violated one or more of plaintiff’s exclusive rights by
copying or distributing plaintiff’s copyrighted motion picture without
authorization.

See Lexmark Int’l, Inc. v. Static Control Components,

Inc., 387 F.3d 522, 534 (6th Cir. 2004); Malibu Media LLC v. Doe, No.
13-12178, 2013 WL 3945978, at *3 (E.D. Mich. July 31, 2013).

Here,

the Amended Complaint alleges all the elements of plaintiff’s claim
and defendant’s default conclusively establishes those elements.

See

Thomas v. Miller, 489 F.3d 293, 299 (6th Cir. 2007) (entry of default
judgment “conclusively establishes every factual predicate of a claim
for relief”).

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The mere determination of defendant’s liability does not,
however, automatically entitle plaintiff to default judgment.

The

decision to grant default judgment falls within a court's discretion.
10A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. §
2685 (3d ed.).

In determining whether to enter judgment by default,

courts often consider such factors as
the amount of money potentially involved; whether material
issues of fact or issues of substantial public importance
are at issue; whether the default is largely technical;
whether plaintiff has been substantially prejudiced by the
delay involved; and whether the grounds for default are
clearly established or are in doubt.
Furthermore, the
court may consider how harsh an effect a default judgment
might have; or whether the default was caused by a goodfaith mistake or by excusable or inexcusable neglect on the
part of the defendant.
Id. (footnotes omitted).

In the case presently before this Court,

consideration of these factors militates in favor of granting default
judgment.

The only matter remaining, then, is the issue of damages.

As noted supra, plaintiff seeks $150,000 in statutory damages.
The Copyright Act permits an award of statutory damages in lieu of
actual damages attributable to the infringement.
(c).

17 U.S.C. § 504(a)-

Statutory damages for each individual act of infringement

ordinarily ranges from $750 to $30,000.

17 U.S.C. § 504(c)(1).

Where

the copyright owner establishes willful infringement, however, the
Court may increase the award of statutory damages, up to a maximum of
$150,000 per infringement.

17 U.S.C. § 504(c)(2).

“The Court has

substantial discretion to set statutory damages within the permitted
range, but it is not without guidance.”

Broadcast Music, Inc. v.

H.S.I., Inc., No. C2-06-482, 2007 WL 4207901 at *4 (S.D. Ohio Nov. 26,
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2007) (citing Douglas v. Cunningham, 294 U.S. 207, 210 (1935)).

When

determining the proper amount of statutory damages, “̔courts have
looked to: (1) whether [d]efendants' infringement was willful,
knowing, or innocent; (2) [d]efendants' profit from infringement; (3)
[p]laintiffs' loss from infringement; and (4) deterring future
violations by [d]efendants and similarly situated entities.’”
Broadcast Music, Inc. v. 4737 Dixie Highway, LLC, No. 1:12-cv-506,
2012 WL 4794052, at *4 (S.D. Ohio Oct. 9, 2012) (quoting H.S.I., Inc.,
2007 WL 4207901 at *6).
Plaintiff urges the Court to award the statutory maximum amount
of $150,000 because defendant’s conduct was willful, because a maximum
award will deter others, and because plaintiff and the motion picture
industry have suffered real and significant harm.

Plaintiff’s Motion,

PAGEID 626-35. In order to recover the statutory maximum, a plaintiff
must first prove that the defendant willfully infringed its copyright.
17 U.S.C. § 504(c)(2).

In this case, plaintiff has alleged facts

that, when taken as true, could support a finding of willful
infringement.

However, even proof of willfulness does not

automatically entitle a copyright holder to the statutory maximum; a
court retains broad discretion to determine an appropriate damages
figure in each case.

AF Holdings LLC v. Bossard, 976 F. Supp. 2d 927,

931 (W.D. Mich. 2013) (citing 17 U.S.C. § 504(c)(2)).
The facts of this case do not justify plaintiff’s requested
award.

Although the entry of his default has established a copyright

infringement by defendant, it is not necessarily the case that

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defendant was the original user who made plaintiff’s work available to
the public.

See Malibu Media, LLC v. Flanagan, 2:13-CV-5890, 2014 WL

2957701, at *4 (E.D. Pa. July 1, 2014).

Moreover, there is no

evidence that defendant profited from the infringement.

The nature of

BitTorrent is such that defendant would not likely have reaped any
profit from his participation in the infringement of plaintiff’s
copyright except for the amount that defendant saved by illegally
downloading the motion picture.

See Bossard, 976 F. Supp. 2d at 931.

Moreover, a review of damage awards in other cases involving copyright
infringement by use of the BitTorrent protocol reveals that a total
award closer to $6,000 would adequately deter future infringement.
See id. at 930-31 (“In the vast majority of [cases involving
intentional copyright infringement by use of BitTorrent or other filesharing protocols], courts have found damages of no more than $6,500
per infringement to be sufficient compensation for the injured
copyright holder.”) (collecting cases awarding between $750 and $6,500
per infringement); Flanagan, 2014 WL 2957701 at *4 (“[A]n award of
$1,500.00 per infringement is reasonable and will deter future
infringements as well as compensate the Plaintiff.”); Malibu Media,
LLC v. Cowham, No. 3:13-CV-00162, 2014 WL 2453027, at *2 (N.D. Ind.
June 2, 2014) ($1,500 per infringement); PHE, Inc. v. Does 1-122, No.
13-CV-786, 2014 WL 1856755, at *3 (N.D. Ill. May 7, 2014) (awarding
$1,500 per infringement and $6,000 total); W. Coast Prods., Inc. v.
Garrett, No. 4:12CV01551, 2014 WL 752670, at *3 (E.D. Mo. Feb. 25,
2014) (awarding $3,250 for one infringement); Purzel Video GmbH v.

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Biby, No. 13-CV-01172, 2014 WL 37299 (D. Colo. Jan. 6, 2014) (awarding
$2,250 for one infringement); Bait Prods. PTY Ltd. v. Aguilar, No.
8:13-CV-161-T-31DAB, 2013 WL 5653357 (M.D. Fla. Oct. 15, 2013) (“The
vast majority of other courts assessing statutory damages in similar
cases in which the defendants have downloaded copyrighted material via
bit torrent have assessed damages of approximately $6,000 based on an
inference of willfulness[.]”) (collecting cases); Collins v. Sangster,
No. 11-CV-01773, 2012 WL 458905 (D. Md. Feb. 10, 2012) (“[T]he Court
finds it unnecessary to determine whether Defendant's infringement
was ̔willful’ because it finds that a statutory damages award of
$6,000 pursuant to 17 U.S.C. § 504(c)(1) would sufficiently reimburse
Plaintiff for Defendant's participation in the infringing swarm and
would adequately discourage wrongful conduct. . . . .

[T]he vast

majority of courts to consider statutory damages in similar cases
regarding copyright infringement by use of BitTorrent or other online
media distribution systems have found damages of up to $6,000 per work
to be sufficient.”).

Indeed, this Court has recently held that an

award of $6,000 in statutory damages properly accounts for defendant’s
gain, plaintiff’s loss, and the public’s interest in deterring future
violations. The Power of Few, LLC v. John Does 1-11, Case No. 2:13-cv839 (S.D. Ohio Oct. 30, 2014). This Court now reaffirms that
conclusion.
Plaintiff also asks that the Court enjoin defendant from directly
or indirectly infringing plaintiff’s copyrighted works.

The

injunction sought by plaintiff would prohibit defendant’s use of the

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internet to reproduce or distribute plaintiff’s motion pictures
without license or express permission.

Plaintiff also asks that the

Court order defendant to destroy all copies of Dawn Rider downloaded
by him onto any computer hard drive or server or transferred onto any
physical medium or device in defendant’s possession, custody, or
control.

The Copyright Act authorizes temporary or final injunctive

relief as a remedy for infringement “on such terms as [the court] may
deem reasonable to prevent or restrain infringement of a copyright.”
17 U.S.C. § 502(a).

It is well established “that a showing of past

infringement and a substantial likelihood of future infringement
justifies issuance of a permanent injunction.”

Bridgeport Music, Inc.

v. Justin Combs Pub., 507 F.3d 470, 492 (6th Cir. 2007) (citations and
quotations omitted).

“Not only is the issuance of a permanent

injunction justified ‘when a copyright plaintiff has established a
threat of continuing infringement, he is entitled to an injunction.’”
Id. (emphasis in original) (quoting Walt Disney Co. v. Powell, 897
F.2d 565, 567 (D.C. Cir. 1990)).

Otherwise, an award of damages

without injunctive relief would amount to a “̔forced license to use
the creative work of another.’”

Id. (quoting Silverstein v. Penguin

Putnam, Inc., 368 F.3d 77, 84 (2d Cir. 2004)).
In the case presently before the Court, plaintiff has established
past infringement by defendant.

Considering the factual allegations

in the Amended Complaint, the nature of the BitTorrent system, see
Patrick Collins, Inc. v. Gillispie, No. 11-CV-01776, 2012 WL 666001,
at *4-5 (D. Md. Feb. 23, 2012) (“Given the nature of the BitTorrent

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system, the Court finds that a permanent injunction is necessary to
protect Plaintiff's ownership rights in this instance.”), and the
nature of the copyrighted work, see Malibu Media, LLC v. Schelling,
No. 13-11436, 2014 WL 3400580 (E.D. Mich. July 8, 2014) (“̔[P]ermanent
injunctions are typically granted in situations involving unlawful
infringement of copyrights in . . . compositions because of the strong
probability that unlawful performances of other copyrighted material
will occur.’”) (quotations omitted) (quoting Disney Enters., Inc. v.
Farmer, 427 F. Supp. 2d 807, 819 (E.D. Tenn. 2006)), the Court
concludes that plaintiff has sufficiently established a continuing
threat to its copyright.

See Jobete Music Co., Inc. v. Johnson

Commc'ns, Inc., 285 F. Supp. 2d 1077, 1092 (S.D. Ohio 2003) (“[C]ourts
have traditionally granted permanent injunctions if liability is
established and a continuing threat to a copyright exists.”)
(quotations omitted).

Plaintiff’s request for permanent injunctive

relief is therefore meritorious.
Plaintiff also seeks $4,042.50 in attorneys’ fees, and $360.70 in
costs.

Plaintiff itemized its costs and its counsel declared that he

spent 10.50 hours prosecuting plaintiff’s claims against defendant at
a rate of $385 per hour.

Declaration of Counsel in Support of Motion

for Default Judgment, attached to Plaintiff’s Motion.

The Court has

the discretion to award fees to the prevailing party in a copyright
infringement action.

17 U.S.C. § 505.

The United States Court of

Appeals for the Sixth Circuit has identified factors to be considered
in determining whether to award attorneys’ fees, including such

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factors as “̔frivolousness, motivation, objective unreasonableness
(both in the factual and in the legal components of the case) and the
need in particular circumstances to advance considerations of
compensation and deterrence.’”

Zomba Enters., Inc. v. Panorama

Records, Inc., 491 F.3d 574, 589 (6th Cir. 2007) (quoting Fogerty v.
Fantasy, Inc., 510 U.S. 517, 534 (1994)).

“The grant of fees and

costs ̔is the rule rather than the exception and they should be
awarded routinely.’”

Bridgeport Music, Inc. v. WB Music Corp., 520

F.3d 588, 592 (6th Cir. 2008) (quoting Positive Black Talk Inc. v.
Cash Money Records, Inc., 394 F.3d 357, 380 (5th Cir. 2004)).
The Court concludes that plaintiff is entitled to an award of
reasonable attorneys’ fees and costs.

However, the Court also

concludes that plaintiff’s request for $4,042.50 in attorneys’ fees is
unreasonable.

This action is one of numerous actions filed by

plaintiff through this counsel in this Court using nearly identical
pleadings and motions, and progressing in nearly identical fashion.
Every case names a group of John Doe defendants, who are identified
only by IP addresses, and alleges that the defendants conspired with
other infringers on the BitTorrent network to copy and/or distribute
plaintiff’s copyrighted motion picture.

Plaintiff then files a motion

for leave to serve discovery on internet service providers prior to
the Rule 26(f) conference in order to determine each defendant’s true
identity.

Once the defendant has been identified, plaintiff files an

amended complaint identifying the defendant or defendants by name.
Although there “is nothing inherently wrong with this practice,” it is

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“the essence of form pleading,” Schelling, 2014 WL 3400580 at *2, and
casts doubt on the number of hours expended by plaintiff’s counsel on
this matter.

This is compounded by the fact that plaintiff named

sixty-four John Doe defendants in the Complaint.

Despite the number

of defendants and plaintiff’s use of what are essentially form
complaints and motions, plaintiff’s counsel represents that 5.75 hours
were spent filing the complaint and the motion for expedited discovery
to prosecute plaintiff’s claims against this particular defendant.
Plaintiff’s counsel also billed one quarter-hour to review a two page
order issued by this Court and a notice issued by this Court, despite
the fact that the order and notice applied to multiple defendants and
were similar or even identical to the orders and notices issued in
many other cases prosecuted in this Court.

The Court also notes that

plaintiff’s requested attorneys’ fees far exceed what other courts
have awarded in similar circumstances.

See Schelling, 2014 WL 3400580

(awarding $555 as a reasonable attorneys’ fee when the plaintiff
requested $2,550 for eight and one-half hours of work billed at $300
per hour); Flanagan, 2014 WL 2957701 ($1,182 in attorneys’ fees);
Biby, 2014 WL 37299 ($676.66 in attorneys’ fees and costs); Bossard,
976 F. Supp. 2d at 931 ($525 in attorneys’ fees); Cowham, 2014 WL
2453027 at *3 ($1,182 in attorneys’ fees); Patrick Collins, Inc. v.
Lowery, No. 1:12-CV-00844-TWP, 2013 WL 6246462 (S.D. Ind. Dec. 3,
2013) ($2,550 in attorneys’ fees); PHE, Inc., 2014 WL 1856755 at *4
($2,573.32 in attorneys’ fees); Garrett, 2014 WL 752670, at *4 ($480
in attorneys’ fees); Aguilar, 2013 WL 5653357 ($1,300 in attorneys’

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fees); Sangster, 2012 WL 458905 ($500 in attorneys’ fees);
Achte/Neunte Boll King Beteiligungs GMBH & Co KG v. Palmer, No. 2:11CV-70-FTM-29SPC, 2011 WL 4632597 (M.D. Fla. Oct. 6, 2011) ($2,655 in
attorneys’ fees); Malibu Media, LLC v. Babb, No. 13-CV-00320, 2013 WL
5387435, at *9 (D. Colo. Sept. 26, 2013) ($2,550 in attorneys’ fees);
Gillispie, 2012 WL 666001 at *4 ($1,492 in attorneys’ fees). This
Court has held, in a similar case, that $1,500 is a reasonable
attorneys’ fee.

The Power of Few, LLC v. John Does 1-11, Case No.

2:13-cv-839 (S.D. Ohio Oct. 30, 2014). The Court is satisfied that
$1,500 is likewise a reasonable attorneys’ fee in this case.

The

Court therefore concludes that plaintiff is entitled to attorneys’
fees and costs, pursuant to 17 U.S.C. § 505, in the total amount of
$1,860.70.
III.
It is therefore RECOMMENDED that Plaintiffs’ Motion for Default
Judgment, ECF 59, be GRANTED in part and DENIED in part.
It is SPECIFICALLY RECOMMENDED that Defendant James Mclean be
PERMANENTLY ENJOINED from directly or indirectly infringing
plaintiff’s copyrighted works, including by use of the internet to
reproduce, copy, distribute, or make available for distribution to the
public plaintiff’s copyrighted works, unless plaintiff provides
defendant with a license or express permission.
It is RECOMMENDED that Defendant James Mclean be ORDERED to
destroy all copies of plaintiff’s motion picture Dawn Rider that
defendant James Mclean has downloaded onto any computer hard drive or

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server without plaintiff’s authorization and all copies that have been
transferred onto any physical medium or device in defendant James
Mclean’s possession, custody, or control.
It is also RECOMMENDED that plaintiff be AWARDED statutory
damages as against defendant James Mclean in the amount of $6,000 and
attorneys’ fees and costs in the total amount of $1,860.70.
IV.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure to object to the magistrate judge’s recommendations
constituted a waiver of [the defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s denial of pretrial motion by failing to timely object to

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magistrate judge’s report and recommendation).

Even when timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails to specify the issues of contention, does not suffice to
preserve an issue for appeal . . . .”) (citation omitted)).

January 8, 2015

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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