Automata Productions, Inc. v. Spicher

Filing 22

Opinion and Order - Plaintiff's motion for default judgment (ECF 14 ) is GRANTED IN PART. Defendant is ordered to (1) pay Plaintiff statutory damages of $1,500; (2) cease all activities infringing on Plaintiff's rights in the motion picture Automata; and (3) destroy all Defendant's unauthorized copies of Automata. Signed on 9/6/2016 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

AUTOMATA PRODUCTIONS, INC.,
Plaintiff,

Case No. 3:16-0797-AC
OPINION AND ORDER

v.
DEEANNA SPICHER,
Defendant.
Michael H. Simon, District Judge.
Automata Productions, Inc. (“Automata”) brings this action against DeeAnna Spicher
(“Spicher” or “Defendant”), alleging a claim for copyright infringement under the Copyright
Act, 17 U.S.C. §§ 101-1322. Defendant failed to answer or otherwise respond to Plaintiff’s
complaint, and on June 27, 2016, the Court entered an Order of Default against Defendant.
Plaintiff now moves for the entry of a default judgment against Defendant. Plaintiff seeks
statutory damages of no less than $5,000 and injunctive relief. For the reasons discussed below,
Plaintiff’s motion is granted in part, and the Court will enter a default judgment against
Defendant in the amount of $1,500, along with injunctive relief.

PAGE 1 – OPINION AND ORDER

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
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”).
PAGE 2 – OPINION AND ORDER

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
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. The “starting point” of the court’s analysis, however, “is the general
rule that default judgments are ordinarily disfavored.” Id. at 1472
BACKGROUND
On December 7, 2015, Plaintiff filed a complaint alleging that numerous unknown
persons, identified only by internet protocol (“IP”) addresses, illegally downloaded Plaintiff’s
movie, Automata. See Case No. 3:15-cv-2283-MO, ECF 1. Plaintiff alleged that these persons
downloaded copies of Automata on the internet using the peer-to-peer BitTorrent, or torrent, file
sharing protocol, in violation of the Copyright Act.
On or about February 9, 2016, Plaintiff received a subpoena response identifying
Kimyetta Moses of Portland, Oregon as the subscriber associated with one of the named IP
addresses, 73.164.153.48. In February and March, 2016, Ms. Moses communicated with
Plaintiff’s counsel. Ms. Moses confirmed that it was her adult daughter, Defendant Spicher, who
had engaged in the infringing activity.
In March 2016, Plaintiff’s counsel sent letters to Spicher notifying her of the alleged
infringement, presenting a settlement offer, and notifying her of her right to seek pro bono
counsel. Plaintiff’s counsel also spoke with Spicher, who indicated she had not yet received any
written correspondence but would look into Plaintiff’s allegations and get back in touch with
Plaintiff’s counsel. Plaintiff’s counsel received no further communications from Spicher.
PAGE 3 – OPINION AND ORDER

On May 8, 2016, Plaintiff filed its complaint in this action, alleging claims against
Spicher. On May 13, 2016, Spicher was served with the Summons and Complaint in this action.
She failed to appear, and on June 27, 2016, the Court entered an order of default against Spicher.
After Plaintiff filed its motion for entry of a default judgment against Defendant, the
Court appointed pro bono counsel to advise Defendant. Upon counsel’s request, pro bono
counsel was terminated after a few weeks because counsel could not get in contact with
Defendant.
After Defendant had been notified of the lawsuit against her for the alleged illegal
downloading of Automata using BitTorrent, a review of the IP address associated with Spicher
and her mother shows significant continued BitTorrent activity. ECF 15-3.
DISCUSSION
To establish a claim of copyright infringement, a “plaintiff must show ownership of the
copyright and copying by the defendant.” Fox Broad. Co., Inc. v. Dish Network L.L.C., 747 F.3d
1060, 1066-67 (9th Cir. 2013) (quotation marks omitted). The factual allegations of Plaintiff’s
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,
PAGE 4 – OPINION AND ORDER

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).
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 also notes that judges in this district have generally awarded the
statutory minimum damages of $750 in similar cases, particularly more recently, although
Plaintiff cites to some earlier cases granting higher statutory damages. Plaintiff argues, however,
that because of Defendant’s willful infringement, deliberate refusal to participate in this
litigation, and continued significant use of torrent protocol to download copyright-protected
materials even after the filing of this lawsuit, damages of greater than the statutory minimum are
warranted in this case. Accordingly, Plaintiff seeks statutory damages in the amount of no less
than $5,000. Although the Court agrees that statutory damages of greater than $750 are
warranted in this case, the Court does not believe that the facts and circumstances warrant
statutory damages of $5,000 or more.
Defendant verbally admitted to Plaintiff’s counsel that Defendant engaged in the
infringing activity, was personally served with process, and then refused to participate in this
proceeding. The Court appointed pro bono counsel to help Defendant, and pro bono counsel
could not make contact with Defendant. There is no indication that Defendant changed her
address or did not receive correspondence from the Court, pro bono counsel, and opposing
counsel. Importantly, after being notified that use of the torrent protocol to download copyrightprotected material is illegal and after being served with this lawsuit, the IP address associated
with Defendant and her mother continues to download significant material using the torrent

PAGE 5 – OPINION AND ORDER

protocol. Under these circumstances, the Court finds that the appropriate statutory damage award
is $1,500.
Plaintiff also seeks injunctive relief preventing Defendant from future infringing activity
against Plaintiff’s motion picture Automata. 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.” Id. § 502. 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.” Id. § 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 Automata, to distribute Automata, or to make Automata 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 Automata.
CONCLUSION
Plaintiff’s motion for default judgment (ECF 14) is GRANTED IN PART. Defendant is
ordered to (1) pay Plaintiff statutory damages of $1,500; (2) cease all activities infringing on
Plaintiff’s rights in the motion picture Automata; and (3) destroy all Defendant’s unauthorized
copies of Automata.
IT IS SO ORDERED.
DATED this 6th day of September, 2016.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 6 – OPINION AND ORDER