QOTD Film Investment Ltd. v. Doe-24.20.43.126

Filing 27

Opinion and Order - Plaintiff's motion for default judgment (ECF 47 ) is GRANTED. Defendant is ordered to (1) pay Plaintiff statutory damages of $750; (2) cease all activities infringing on Plaintiff's rights in the motion picture Queen of the Desert; and (3) destroy all unauthorized copies of Queen of the Desert in the possession of Defendant. Signed on 1/31/2017 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

QOTD FILM INVESTMENT LTD.,
Plaintiff,

Case No. 3:16-cv-715-SI
OPINION AND ORDER

v.
ERIN BRADFORD,
Defendant.
Michael H. Simon, District Judge.
Plaintiff QOTD Film Investment Ltd. brings this action against Defendant Erin Bradford.
Plaintiff alleges that Defendant copied and distributed Plaintiff’s motion picture Queen of the
Desert through a public BitTorrent network in violation of Plaintiff’s exclusive rights under the
Copyright Act. Before the Court is Plaintiff’s motion for entry of default judgment under Federal
Rule of Civil Procedure 55(b). For the following reasons, the Court grants Plaintiff’s motion, and
will enter a default judgment against Defendant in the amount of $750, along with injunctive
relief.
STANDARDS
Under Federal Rule of Civil Procedure 55(a), the Clerk of the Court is required to enter
an order of default if a party against whom affirmative relief is sought fails timely to answer or
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otherwise defend an action. Fed. R. Civ. P. 55(a) (“When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by
affidavit or otherwise, the clerk must enter the party’s default.”). Upon the entry of default, the
Court accepts “the well-pleaded factual allegations” of the complaint “as true.” DIRECTV, Inc. v.
Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (quoting Cripps v. Life Ins. Co. of N. Am., 980
F.2d 1261, 1267 (9th Cir. 1992)); see also Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th
Cir. 1977). The court, however, does not accept as admitted facts that are not well-pleaded,
conclusions of law, or facts relating to the amount of damages. DIRECTV, 503 F.3d at 854;
Geddes, 559 F.2d at 560; see also Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702
(9th Cir. 2008) (“‘The general rule of law is that upon default the factual allegations of the
complaint, except those relating to the amount of damages, will be taken as true.’” (quoting
TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987))).
After default has been entered against a defendant, a court may enter a default judgment
against that defendant. See Fed. R. Civ. P. 55(b). “The district court’s decision whether to enter a
default judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980);
see also Dreith v. Nu Image, Inc., 648 F.3d 779, 786 (9th Cir. 2011) (noting that a district’s court
decision whether to enter a default judgment is reviewed for abuse of discretion). In Eitel v.
McCool, 782 F.2d 1470 (9th Cir. 1986), the Ninth Circuit set out factors to guide a district
court’s consideration of whether to enter a default judgment. See DIRECTV , 503 F.3d at 852
(noting that Eitel “set[] out factors to guide district court’s determination regarding the
appropriateness of granting a default judgment”).
The Ninth Circuit in Eitel held:
Factors which may be considered by courts in exercising discretion
as to the entry of a default judgment include: (1) the possibility of
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prejudice to the plaintiff, (2) the merits of plaintiff's substantive
claim, (3) the sufficiency of the complaint, (4) the sum of money at
stake in the action; (5) the possibility of a dispute concerning
material facts; (6) whether the default was due to excusable
neglect, and (7) the strong policy underlying the Federal Rules of
Civil Procedure favoring decisions on the merits.
Eitel, 782 F.2d at 1471-72 (punctuation in original). The “starting point” of the court’s analysis,
however, “is the general rule that default judgments are ordinarily disfavored.” Id. at 1472.
BACKGROUND
Beginning in 2014, counsel for Plaintiff has filed hundreds of cases in this District
asserting that Doe defendants, originally identified only by their Internet Protocol (“IP”)
addresses, violated the Copyright Act by downloading movies on the internet using a peer-topeer BitTorrent file sharing protocol. On April 26, 2016, Plaintiff filed its complaint in this case,
identifying a doe defendant’s IP address as a person who illegally downloaded Queen of the
Desert using the BitTorrent network. Plaintiff identified Richard Bradford as the subscriber
associated with the infringing IP address. Mr. Bradford telephoned Plaintiff’s counsel and
identified his son, Erin Bradford, as the party who downloaded Plaintiff’s motion picture.
Mr. Bradford stated that his son had confirmed that he downloaded the movie and that he knew
how to handle these type of lawsuits. Mr. Bradford further indicated that he believed his son
would not respond to the lawsuit. Defendant has not communicated with Plaintiff’s counsel.
On July 6, 2016, Plaintiff filed an amended complaint, naming Erin Bradford as the
defendant. Defendant was personally served with process. Defendant did not respond to
Plaintiff’s Amended Complaint and the Court issued an Order of Default on August 29, 2016.
On September 14, 2016, Plaintiff filed a motion for default judgment. Plaintiff seeks statutory
damages in the amount of at least $5,000.

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On September 22, 2016, the Court appointed pro bono counsel to represent Defendant.
Appointed counsel made numerous attempts to contact Defendant, and during this time
continued seeking from the Court extensions of time to respond to Plaintiff’s motion. At one
point, appointed counsel was able to contact Defendant and indicated a settlement might be
possible. But Defendant did not continue communications with appointed counsel. Accordingly,
the Court took Plaintiff’s motion under advisement as of January 27, 2017.
DISCUSSION
To establish a claim of copyright infringement, a “plaintiff must show ownership of the
copyright and copying by the defendant.” Fox Broad. Co. v. Dish Network L.L.C., 747
F.3d 1060, 1066-67 (9th Cir. 2013) (quotation marks omitted). The factual allegations of
Plaintiff’s Amended Complaint, which the Court accepts as true upon default, establish these
elements. Accordingly, a judgment of default is appropriate in this case. See Glacier Films
(USA), Inc. v. Tenorio, 2016 WL 3766465, at *2 (D. Or. June 22, 2016); Voltage Pictures, LLC
v. Martinez, 2015 WL 4772856, at *2 (D. Or. Aug. 11, 2015).
Under the Copyright Act, a plaintiff may elect an award of statutory damages “in a sum
of not less than $750 or more than $30,000” per infringement, in lieu of an award representing
actual damages. 17 U.S.C. § 504(c)(1). If a court finds the infringement to be willful, “the court
in its discretion may increase the award of statutory damages to a sum of not more than
$150,000.” 17 U.S.C. § 504(c)(2). The court has broad discretion in setting the amount of
statutory damages. See Columbia Pictures Television, Inc. v. Krypton Broad. of Birmingham,
Inc., 259 F.3d 1186, 1194 (9th Cir. 2001) (“If statutory damages are elected, the court has wide
discretion in determining the amount of statutory damages to be awarded, constrained only by
the specified maxima and minima.”) (quotation marks and alteration omitted).

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Plaintiff concedes that the amount of economic damages suffered as a result of
Defendant’s infringing activity is highly speculative and incalculable. Thus Plaintiff seeks only
statutory damages. Plaintiff argues that Defendant’s conduct was willful and that because he has
refused to participate in the legal process, indicated that he “knew how to handle these types of
cases,” and continued his infringing activity even after receiving notice of this lawsuit, statutory
damages of at least $5,000 are warranted. The Court disagrees.
Defendant has not admitted to Plaintiff that he engaged in infringing conduct. Although
the Court deems the factual allegations of Plaintiff’s Amended Complaint true because of
Defendant’s default, the evidence relied on by Plaintiff is a hearsay statement from Defendant’s
father stating that Defendant was the infringing party.
Additionally, although Defendant has declined to participate in this proceeding, including
refusing to communicate with his court-appointed attorney, that is not by itself a reason to award
higher statutory damages. On this point, and others, the Court agrees with the reasoning of U.S.
Magistrate Judge Stacie Beckerman in Glacier Films. In her opinion dated June 22, 2016, Judge
Beckerman declined to award statutory damages of $2,500 and instead awarded the minimum
statutory damages of $750. Glacier Films, 2016 WL 3766465, at *3. Judge Beckerman
explained:
[C]ommon sense supports a conclusion that a $750 financial
penalty for illegal downloading one movie is more than
sufficiently punitive to deter others from illegally downloading
free movies on the BitTorrent network. With knowledge that it will
now cost $750 to watch a single movie on the BitTorrent network,
consumers should be motivated instead to spend a few dollars to
rent the same move legally. This Court believes that the problem is
not with the magnitude of the damages awarded, but the fact that
the general public does not appear to be aware of the dozens of
BitTorrent copyright infringement actions filed by Plaintiffs’
counsel in this district alone. The Court declines Plaintiffs’
invitation to punish Defendant with a statutory damages award
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higher than $750 because he chose not to defend against this
copyright infringement action. The Court is not aware of the
reasons why Defendant chose not to appear and present a defense
in this case, but notes that some individuals may choose to default
merely due to the cost of federal court litigation, not for any
nefarious reason that would support the award of enhanced
statutory damages. In sum, Plaintiffs have failed to present
evidence to demonstrate that the infringing conduct in this action
differs from the several other actions in which judges in this
district have awarded the minimum statutory damages.
Id. (citations and footnote omitted) (alteration in original). The considerations noted by Judge
Beckerman apply in this case and the Court similarly declines to award greater than the
minimum statutory damages in this case.
Plaintiff also seeks injunctive relief preventing Defendant from future infringing activity
against Plaintiff’s motion picture Queen of the Desert. The Court agrees that this case merits
injunctive relief under 17 U.S.C. §§ 502 and 503. Under these sections, the Court may “grant
temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain
infringement of a copyright.” § 502(a). The Court may also “order the destruction or other
reasonable disposition of all copies or phonorecords found to have been made or used in
violation of the copyright owner’s exclusive rights.” § 503(b). Accordingly, the Court orders a
permanent injunction enjoining Defendant from directly, indirectly, or contributorily infringing
on Plaintiff’s rights, including without limitation by using the internet to reproduce or copy
Plaintiff’s motion picture Queen of the Desert, to distribute Queen of the Desert, or to make
Queen of the Desert available for distribution to the public except pursuant to a lawful license or
with the express authority of Plaintiff. The Court also orders Defendant to destroy all
unauthorized copies of Queen of the Desert.

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CONCLUSION
Plaintiff’s motion for default judgment (ECF 47) is GRANTED. Defendant is ordered to
(1) pay Plaintiff statutory damages of $750; (2) cease all activities infringing on Plaintiff’s rights
in the motion picture Queen of the Desert; and (3) destroy all unauthorized copies of Queen of
the Desert in the possession of Defendant.
IT IS SO ORDERED.
DATED this 31st day of January, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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