The Power of Few LLC v. Does 1-11
Filing
18
REPORT AND RECOMMENDATIONS re 16 MOTION for Default Judgment against Dennis Martini filed by The Power of Few LLC. Objections to R&R due by 10/27/2014. Signed by Magistrate Judge Norah McCann King on 10/8/2014. (pes1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
THE POWER OF FEW, LLC,
Plaintiff,
vs.
Case No. 2:13-cv-839
Judge Graham
Magistrate Judge King
JOHN DOES 1-11,
Defendants.
REPORT AND RECOMMENDATION
I.
Plaintiff TCYK, LLC, a California limited liability company,
claims the copyright to the motion picture The Power of Few.
Plaintiff filed this action on August 27, 2013, alleging that eleven
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 Dennis Martini, who was named as the only
defendant in the Amended Complaint, ECF 7, and served with process,
Summons Returned Executed, ECF 10. After defendant failed to plead or
otherwise defend in this cause as required by law, the Clerk entered
his default on May 28, 2014. Entry of Default, ECF 14. This matter is
now before the Court, pursuant to an order of referral, Order, ECF 17,
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on plaintiff's motion for default judgment against defendant Dennis
Martini. Motion for Default Judgment, ECF 16.
Plaintiff seeks $150,000 in statutory damages, $5,101.25 in
attorneys’ fees, and $405.01 in costs; plaintiff also asks that the
Court permanently enjoin defendant Martini 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,
3
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 271-79. 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.”).
Accordingly, the Court finds that an award of
$6,000 in statutory damages will properly account for defendant’s
gain, plaintiff’s loss, and the public’s interest in deterring future
violations.
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
internet to reproduce or distribute plaintiff’s motion pictures
without license or express permission.
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Plaintiff also asks that the
Court order defendant to destroy all copies of The Power of Few
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
system, the Court finds that a permanent injunction is necessary to
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protect Plaintiff's ownership rights in this instance.”), the nature
of the copyrighted work, see Malibu Media, LLC v. Schelling, No. 1311436, 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 $5,101.25 in attorneys’ fees, and $405.01 in
costs.
Plaintiff itemized its costs and its counsel declared that he
spent 13.25 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
factors as “̔frivolousness, motivation, objective unreasonableness
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(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 $5,101.25 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
“the essence of form pleading,” Schelling, 2014 WL 3400580 at *2, and
9
casts doubt on the number of hours expended by plaintiff’s counsel on
this matter.
This is compounded by the fact that plaintiff named
eleven 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 5.25 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 every
notice and order issued by this Court, despite the fact that the
notices and orders applied to multiple defendants or were similar or
even identical to the notices and orders 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-CV00844-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’ fees); Sangster,
2012 WL 458905 ($500 in attorneys’ fees); Achte/Neunte Boll King
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Beteiligungs GMBH & Co KG v. Palmer, No. 2:11-CV-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).
In this case, the Court is
satisfied that $1,500 is a reasonable attorneys’ fee.
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 $1,905.01.
III.
It is therefore RECOMMENDED that Plaintiffs’ Motion for Default
Judgment, Doc. No. 16, be GRANTED in part and DENIED in part.
It is SPECIFICALLY RECOMMENDED that Defendant Dennis Martini 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 Dennis Martini be ORDERED to
destroy all copies of plaintiff’s motion picture The Power of Few that
defendant Dennis Martini has downloaded onto any computer hard drive
or server without plaintiff’s authorization and all copies that have
been transferred onto any physical medium or device in defendant
Dennis Martini’s possession, custody, or control.
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It is also RECOMMENDED that plaintiff be AWARDED statutory
damages as against defendant Dennis Martini in the amount of $6,000
and attorneys’ fees and costs in the total amount of $1,905.01.
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
constituted
object
a
waiver
to
the
of
[the
magistrate
defendant’s]
judge’s
recommendations
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
magistrate
of
judge’s
pretrial
report
motion
and
by
failing
recommendation).
to
timely
Even
object
when
to
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.
12
2007) (“[A] general objection to a magistrate judge’s report, which
fails
to
specify
the
issues
of
contention,
does
not
suffice
preserve an issue for appeal . . . .”) (citation omitted)).
s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
October 8, 2014
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