ME2 Productions, Inc. v. Does 1-14

Filing 63

ORDER granting in part and denying in part 55 Motion for Default Judgment; granting 60 Motion to Dismiss. Signed by Judge James L. Graham on 8/24/2017. (ds)(This document has been sent 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
ME2 Productions, Inc.,
Plaintiff,
v.

Case No. 2:16-cv-1062

John Funtes, et al.,
Defendants.
ORDER
Plaintiff has filed a motion for default judgment against
defendants Jessica Murphy and Christopher Henslee.

See Doc. 55.

As to each of these defendants, plaintiff seeks statutory damages
for copyright infringement in the amount of $15,000, and attorney
fees in the amount of $962.50.

Defendants did not respond to the

motion.
On July 25, 2017, an order was filed directing plaintiff to
submit

any

additional

information

it

had

concerning

circumstances of the violations within fourteen days.

the

On August

10, 2017, plaintiff filed a declaration supported by records from
MaverickEye

which

indicated

that

defendant

Murphy

shared

one

version of the film at least eight times and another unauthorized
version of the film eight times, and that defendant Henslee shared
the film forty-six times.

However, no information has been

submitted as to whether this sharing occurred automatically through
the BitTorrent or Torrent network.
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 range from $750 to $30,000.

17 U.S.C. §504(c)(1).

Where the copyright owner establishes willful infringement, 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, 2007).

In ruling on the motion

for default judgment, this court must determine whether the amount
of statutory damages sought by plaintiff is reasonable.

In doing

so, the court considers: “‘(1) whether [d]efendants’ infringement
was willful, knowing, or innocent; (2) [d]efendants’ profit from
the infringement; (3) [p]laintiffs’ loss from infringement; and (4)
determining

future

situated entities.’”

violations

by

[d]efendants

and

similarly

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 *4).
Although the entry of default has established a copyright
infringement

by

defendants

Murphy

and

Henslee,

it

is

not

necessarily the case that they were the original users who made
plaintiff’s work available to the public. The nature of BitTorrent
is such that defendants likely would not have reaped any profit
from

their

participation

in

the

infringement

of

plaintiff’s

copyrights except for the price of a movie theater ticket or DVD
that they saved by illegally downloading the emotion pictures. See
AF Holdings, LLC v. Bossard, 976 F.Supp.2d 927, 931 (W.D. Mich
2013).

There is no evidence that defendants profited from the

infringement by using the film commercially.

The court concludes

that an award of statutory damages in the amount of $1,500 against

2

defendant Murphy and an award of statutory damages in the amount of
$1,500 against defendant Henslee will properly account for the
defendants’ gain, plaintiff’s loss and the public’s interest in
deterring future violations.
Plaintiff also seeks attorney’s fees in the amount of $962.50.
“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 attorney’s fees requested in this case are

reasonable, and plaintiff is awarded $481.25 in attorney’s fees as
to defendant Murphy and $481.25 in attorney’s fees as to defendant
Henslee.
Plaintiff also seeks to enjoin defendants from directly or
indirectly infringing its copyrighted work.

The Copyright Act

authorizes

as

temporary

or

injunctive

relief

a

remedy

for

infringement “on such terms as [the court] may deem reasonable to
prevent or restrain infringement fo a copyright.”
§502(a).

A

showing

of

past

infringement

and

a

17 U.S.C.
substantial

likelihood of future infringement justifies issuance of a permanent
injunction.
470,

492

Bridgeport Music, Inc. v. Justin Combs Pub., 507 F.3d

(6th

cir.

2007).

Plaintiff

infringement by the defendants.

has

established

past

Considering the nature of the

BitTorrent system and the nature of the copyrighted work, plaintiff
has sufficiently established a continuing threat to its copyright.
The court orders that a permanent injunction is entered
against defendants Jessica Murphy and Christopher Henslee, as
follows:

3

Defendants Jessica Murphy and Christopher Henslee are
enjoined
from
directly
or
indirectly
infringing
plaintiff’s rights in the motion picture Mechanic:
Resurrection, including without limitation by using the
Internet to reproduce or copy Mechanic: Resurrection, to
distribute Mechanic: Resurrection, or to make Mechanic:
Resurrection available for distribution to the public,
except pursuant to a lawful license or with the express
authority of the plaintiff. Defendants Jessica Murphy
and Christopher Henslee are also enjoined to destroy all
copies of Mechanic: Resurrection that defendant Jessica
Murphy and Christopher Henslee have downloaded or
transferred, without plaintiff’s authorization, onto any
physical medium device in the defendants’ possession,
custody or control.
In accordance with the foregoing, plaintiff’s motion for
default judgment against defendants Jessica Murphy and Christopher
Henslee (Doc. 55) is granted in part and denied in part.
shall

enter

default

judgment

in

favor

of

The clerk

plaintiff

against

defendants Jessica Murphy and Christopher Henslee in accordance
with the foregoing.
Plaintiff has also filed a motion to dismiss with prejudice
its claim against defendant David Brown, and to adopt the proposed
consent restraining order.

The motion (Doc. 60) is granted.

claim against David Brown is dismissed with prejudice.

The clerk

is directed to file the proposed restraining order.

Date: August 24, 2017

s/James L. Graham
James L. Graham
United States District Judge

4

The