Malibu Media, LLC v. DOE

Filing 14

REPORT AND RECOMMENDATION that 12 MOTION for Default Judgment against Brandon Giggs be granted in part and denied in part. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 6/19/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Malibu Media, LLC,

:

Plaintiff,

:

v.

:
:

Brandon Griggs,

Case No. 2:14-cv-558
JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

:

Defendant.

:
REPORT AND RECOMMENDATION

This matter is before the Court on a motion for default
judgment filed by plaintiff Malibu Media, LLC.

The Clerk entered

default against defendant Brandon Griggs on April 16, 2015.

The

Court will recommend that motion for default judgment be granted
as set forth below.
I.

Background

Malibu Media is a California limited liability company
claiming the copyright to 57 motion pictures.

Malibu Media

filed this action on June 12, 2014, alleging that a John Doe
defendant, identified only by an internet protocol address,
violated its copyright by downloading the motion pictures and
sharing them with others using a BitTorrent protocol or torrent,
a type of peer-to-peer file sharing software.

By order dated

June 25, 2014, the Court granted Malibu Media leave to take early
discovery which allowed Malibu Media to trace the IP address to
Mr. Griggs who was then named as a defendant in an amended
complaint.

Successful service of process was made and after Mr.

Griggs failed to plead or otherwise defend, the Clerk entered his
default.
Malibu Media seeks $128,250.00 in statutory damages, as well

as attorneys’ fees and costs.

Malibu Media also requests that

the Court permanently enjoin Mr. Griggs from infringing, directly
or indirectly, its rights in the motion pictures.
II.

Legal Standard

Federal Rule of Civil Procedure 55(b) 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 wellpleaded allegations relating to liability.

See Antoine v. Atlas

Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995).

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 v. Doe, No. 13-12178,
2013 WL 3945978, at *3 (E.D. Mich. July 31, 2013).

Here, the

amended complaint alleges all of the elements of plaintiff’s
claim and defendants’ default conclusively establish 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.”).
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 facts 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
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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 good-faith mistake or by
excusable or inexcusable neglect on the part of the
defendant.
Id.

(footnotes omitted).
III.

Analysis

Applying the above factors to the present case, the Court
will recommend the entry of default judgment against Mr. Griggs.
Consequently, the only issue remaining for the Court’s
consideration is that of damages.
As noted above, Malibu Media seeks $128,250 in statutory
damages which amounts to $2,250 for each motion picture
infringed.

The Copyright Act permits an award of statutory

damages in lieu of actual damages attributable to the
infringement.

17 U.S.C. § 504(a) - (c).

Statutory damages for

each individual act of infringement ordinarily range 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., 2007 WL 4207901, at *4 (S.D. Ohio Nov. 26, 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,

2012 WL 4794052, at *4 (S.D. Ohio Oct. 9, 2012) quoting H.S.I.,
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Inc., 2007 WL 4207901, at *6.
Malibu Media urges the Court to award $2,250 per
infringement because Mr. Griggs’s conduct was willful and because
Mr. Griggs participated in “the BitTorrent swarm of infringers,”
Malibu Media “lost sales of its content to those thousands of
infringers.”

Malibu Media has alleged facts that, when taken as

true, could support a finding of willful infringement.

However,

the facts presented here do not justify the amount of Malibu
Media’s requested award.
Although the entry of his default has established a
copyright infringement by Mr. Griggs, it is not necessarily the
case that he was the original user who made Malibu Media’s works
available to the public.

See Malibu Media, LLC v. Flanagan, 2014

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

There is also no

evidence that Mr. Griggs profited from the infringement.

The

nature of BitTorrent is such that Mr. Griggs likely would not
have reaped any profit from his participation in the infringement
of plaintiff’s copyrights except for the amount that he saved by
illegally downloading the motion pictures.

See AF Holdings, LLC

v. Bossard, 976 F.Supp.2d 927, 931 (W.D. Mich. Feb. 14, 2013).
Malibu Media argues that it lost sales for each of the thousands
of infringers in the BitTorrent swarm in which Mr. Griggs
participated.

However, Malibu Media suggests that BitTorrent

users download copyrighted motion pictures merely “because it’s
free,” not because they actually plan on purchasing the motion
pictures.

Moreover, a review of damage awards in other cases

involving copyright infringement of Malibu Media’s works by use
of the BitTorrent protocol reveals that an award of $750 to
$2,250 per infringement would adequately deter future
infringement.

See Malibu Media, LLC v. Funderburg, 2015 WL

1887754, *4 (N.D. Ill. April 24, 2015) ($750 per violation for a
total award of $9,000); Malibu Media, LLC v. Cui, 2014 WL

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5410170, *4 (E.D. Pa. Oct. 24, 2014)($750 per violation, for a
total award of $18,000); Malibu Media, LLC v. Schelling, 2014 WL
3400580 (E.D. Mich. July 8, 2014)($750 per violation, for a total
award of $6,000); Malibu Media, LLC v. Goodrich, 2013 WL 6670236,
*11 (D.Colo. Dec. 18 2013)($2,250 per violation, for a total
award of $36,000); Malibu Media, LLC v. Brenneman, 2013 WL
6560387, *2 (N.D. Ind. Dec. 13, 2013)($1,500 per violation, for a
total award of $16,500).

Here, the Court concludes that an award

of $750 per work will properly account for Mr. Griggs’s gain,
Malibu Media’s loss, and the public’s interest in deterring
future violations.
Malibu Media also asks that the Court enjoin Mr. Griggs from
directly or indirectly infringing its copyrighted works.

Such an

injunction would prohibit Mr. Griggs’s use of the internet to
reproduce or distribute Malibu Media’s motion pictures without
license or express permission.

Malibu Media also asks that the

Court order Mr. Griggs to destroy all copies of its copyrighted
works downloaded by him onto any computer hard drive or server or
transferred onto any physical medium or device in his possession,
custody, or control.

The Copyright Act authorizes temporary or

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
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

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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).
Here, Malibu Media has established Mr. Griggs’s past
infringement.

Considering the factual allegations of the amended

complaint, the nature of the BitTorrent system, and the nature of
the copyrighted works, Malibu Media has sufficiently established
a continuing threat to its copyrights.

Consequently, the Court

will recommend that the request for permanent injunctive relief
be granted.
Malibu Media also seeks $1,182 in attorneys’ fees and $475
in costs.

Malibu Media itemized its costs and its counsel

declared that he spent 1.9 hours prosecuting its claims at a rate
of $300 per hour and 7.2 paralegal hours at a rate of $85 per
hour.

See Declaration of Yousef M. Faroniya, Esq. attached to

the motion.

The Court has the discretion to award fees to the

prevailing party in a copyright infringement action.
§505.

17 U.S.C.

The United States Court of Appeals for the Sixth Circuit

has identified factors to be considered in determining whether to
award attorneys’s fees including such 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).
Court finds the attorney’s fees requested in this case to be
reasonable and will recommend that they be awarded.

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The

Turning to the issue of costs, Malibu Media seeks $475
representing the filing fee of $400 and service fees of $75.
“Costs” as enumerated in 28 U.S.C. §1920 include “[f]ees of the
clerk” but the cost of service of summons is not included in that
statutory definition.

TCYK, LLC v. Does, 2015 WL 763268, *5

(S.D. Ohio Feb. 23, 2015).

Rather, the expenses associated with

effecting service are recoverable if a defendant fails, without
good cause, “to sign and return a waiver requested by a
pliantiff....”

Fed.R.Civ.P. 4(d)(2).

The docket does not

reflect that Malibu Media ever requested Mr. Griggs to waive
service of process.

Consequently, the Court will recommend an

award of $400 in costs.
IV. Recommendation
For the reasons set forth above, it is recommended that the
motion for default judgment (Doc. 12) be granted in part and
denied in part.

Further, it is recommended that defendant

Brandon Griggs 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.

Additionally, it is recommended that

defendant Brandon Griggs be ordered to destroy all copies of
plaintiff’s motion pictures identified in Exhibit B of the
amended complaint that he 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
his possession, custody or control.

Finally, it is recommended

that plaintiff be awarded statutory damages against defendant
Brandon Griggs in the amount of $42,750 and attorney’s fees and
costs in the total amount of $1,582.
PROCEDURE ON OBJECTIONS

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If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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