United States District Court, S.D. Ohio, Eastern Division
I.T. Productions LLC, Plaintiff,
Scott Huber, et al., Defendants.
OPINION AND ORDER
L. GRAHAM, UNITED STATES DISTRICT JUDGE.
copyright infringement action is before the court on
plaintiff I.T. Production LLC's motion for default
judgment against defendants Scott Huber, John Fox and James
Morelli. Plaintiff has its principal offices in Los Angeles,
California, and it owns the rights to a major motion picture
named I.T., released in 2016. The complaint alleges
that defendants violated plaintiff's rights under the
Copyright Act, 17 U.S.C. § 106, by downloading and
distributing I.T. without authorization through a
peer-to-peer file sharing protocol known as BitTorrent.
were served with the complaint on July 12, 2017. (Doc. 18).
Defendants have failed to plead or otherwise defend in this
action. The Clerk made an entry of default on August 14,
2017. See Fed.R.Civ.P. 55(a). Plaintiff filed its
motion for default judgment on August 23, 2017. Defendants
were served with the motion for default judgment by regular
examining a motion for default judgment under Fed.R.Civ.P.
55(b)(2), the court accepts plaintiff's well-pled
allegations as to defendants' liability as true. See
Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th
Cir. 1995); United States v. Allen, No.
2:12-CV-1034, 2014 WL 5305518, at *2 (S.D. Ohio Oct. 15,
2014) (“This is not to say, however, that every
allegation relating to liability in the Complaint is deemed
true; facts not established by the pleadings, claims which
are not well-pleaded, and unsupported conclusions of law are
not binding and cannot support a judgment.”). The court
reviews “the pleadings as a whole to determine whether
a ‘sufficient basis' exists entitling Plaintiff to
judgment pursuant to Rule 55(b).” Allen, 2014
WL 5305518, at *2 (quoting Nishimatsu Construction Co.,
Ltd. v. Houston National Bank, 515 F.2d 1200, 1206 (5th
review of the well-pled allegations of the complaint and the
evidentiary materials attached to the motion for default
judgment, the court finds that a sufficient basis exists for
granting default judgment to plaintiff. The elements of a
copyright infringement claim are: (1) ownership of a valid
copyright, and (2) copying of constituent elements of the
work that are original.” Feist Publications, Inc.
v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
Attached to the complaint is a certificate of registration
with the United States Copyright Office showing that
plaintiff has a registered copyright in the subject motion
picture. The certificate of registration is prima
facie evidence of the ownership and validity of the
copyright. See Lexmark Int'l, Inc. v. Static Control
Components, Inc., 387 F.3d 522, 533-34 (6th Cir. 2004).
respect to the second element, plaintiff has submitted the
business records of Maverickeye, a firm that provides
software services which detect and track activity on
peer-sharing networks with respect to particular titles.
Plaintiff's work was detected to have been downloaded and
accessed through Internet Protocol addresses belonging to the
named defendants. The Maverickeye reports show 27 instances
of sharing activity from defendant Huber's IP address
from September 30 to October 10, 2016; 27 instances from
defendant Fox's IP address from November 25 to November
29, 2016; and 32 instances from defendant Morelli's IP
address on September 30 and October 1, 2016. These reports
provide a sufficient basis for concluding that each defendant
copied plaintiff's work.
to damages, on a motion for default judgment the court does
not accept allegations as to damages as true. See
Antoine, 66 F.3d at 110. The court must
“‘conduct an inquiry in order to ascertain the
amount of damages with reasonable certainty.'”
Arthur v. Robert James & Assocs. Asset Mgmt.,
Inc., No. 3:11-CV-460, 2012 WL 1122892, at *1 (S.D. Ohio
Apr. 3, 2012) (quoting Osbeck v. Golfside Auto Sales,
Inc., No. 07-14004, 2010 WL 2572713, at *5 (E.D. Mich.
Jun. 23, 2010)). Rule 55(b)(2) “‘allows but does
not require the district court to conduct an evidentiary
hearing.'” Id. (quoting Vesligaj v.
Peterson, 331 Fed. App'x. 351, 354-55 (6th Cir.
2009)). The court may instead rely on affidavits or other
evidence submitted on the issue of damages, particular when,
as here, plaintiff elects to recover statutory damages rather
than actual damages. Id. at **2-3; Caterpillar
Fin. Servs. Corp. v. C & D Disposal Techs., No.
2:12-CV-00077, 2012 WL 12883333, at *1 (S.D. Ohio July 10,
2012); Malibu Media, LLC v. Schelling, 31 F.Supp.3d
910, 911-12 (E.D. Mich. 2014).
made a demand for statutory damages in the original and
amended complaints. In its motion, plaintiff seeks an award
of $15, 000 against each defendant and alleges that
defendants' infringing activities were willful. In
support of the allegation that defendants acted willfully,
plaintiff points to the Maverickeye reports mentioned above,
which indicate numerous instances of activity by each
17 U.S.C. § 504(c)(1), the court may award statutory
damages for infringements “with respect to any one
work” in a sum of “not less than $750 or more
than $30, 000.” Where plaintiff has established willful
infringement, 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). In determining
the proper amount of statutory damages, courts consider: (1)
whether defendant's infringement was willful, knowing, or
innocent; (2) whether defendants profited from the
infringement; (3) whether plaintiff suffered a loss from the
infringement; and (4) the need to deter future violations by
defendants 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).
court finds that an award of $750 per defendant is
appropriate. The complaint contains well-pled allegations
that utilizing BitTorrent required knowing acts by the
defendants. Even so, the Maverickeye reports show only that a
limited amount of copying activity occurred. The overall
activity of each defendant occurred in a short time span, and
the individual instances of activity typically lasted from
five to ten seconds in duration. While it is possible that
each defendant obtained a complete copy of plaintiff's
work and made it available for other BitTorrent users to
access, the reports do not establish that defendants
participated in distributing the work over a prolonged period
of time, that they were the original users who made
plaintiff's work available, or that later infringements
by other individuals would not have occurred absent
defendants' conduct. Nor is there any allegation that the
defendants profited from their infringement, other than
avoiding the cost of purchase of the work.
seeks attorney's fees in the amount of $2695.00.
“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
finds that the fees requested in this action represent a
reasonable number of hours expended (seven) and a reasonable
hourly rate ($385). Further, the requested amount does not
reflect attorney time expended with respect to the other
defendants named in the amended complaint. Accordingly, and
plaintiff is awarded $898.33 in attorney's fees as to
defendant Huber; $898.33 in attorney's fees as to
defendant Fox; and $898.33 in attorney's fees as to
plaintiff seeks to enjoin defendants from directly or
indirectly infringing its copyrighted work. The Copyright Act
authorizes injunctive relief as a remedy for infringement
“on such terms as [the court] may deem reasonable to
prevent or restrain infringement for a copyright.” 17
U.S.C. § 502(a). 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). Plaintiff has established past infringement by the
defendants. Considering the nature of the BitTorrent system
and the nature of the copyrighted work, plaintiff has
sufficiently established a continuing threat to its
court orders that a permanent injunction is entered against
defendants as follows:
Defendants Scott Huber, John Fox and James Morelli are
enjoined from directly or indirectly infringing
plaintiff's rights in the motion picture I.T.,
including without limitation by using BitTorrent or any
similar file-sharing protocol to reproduce or copy
I.T., to distribute I.T., or to make
I.T. available for distribution to the public,
except pursuant to a lawful license or with the express
authority of the plaintiff. Defendants Scott Huber, John Fox
and James Morelli are also ordered to destroy all copies of
I.T. that they have downloaded or ...