Case 2:13-cv-00892-DOC-RNB Document 32 Filed 10/30/13 Page 1 of 9 Page ID #:311
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CIVIL MINUTES – GENERAL
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`JS-6
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`O
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`Case No. CV 13-0892-DOC (RNBx) Date: October 30, 2013
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`Title: WARNER BROS. HOME ENTERTAINMENT, INC., V. ERNEST SLAUGHTER
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`PRESENT:
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`THE HONORABLE DAVID O. CARTER, JUDGE
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` Julie Barrera
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`Deputy Clerk
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`ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:
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` N/A
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`Court Reporter
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`None Present
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`None Present
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`PROCEEDINGS (IN CHAMBERS): ORDER GRANTING PLAINTIFF’S
`MOTION FOR DEFAULT JUDGMENT
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`Plaintiff Warner Bros. Home Entertainment, Inc. (“Plaintiff”) moved for default
`judgment against Defendant Ernest Slaughter, d/b/a Amazon.com Seller Fox Media
`(“Defendant”). Plaintiff’s Motion for Default Judgment (“Motion”) (Dkt. 20). The Court finds
`this issue suitable for decision without oral argument. Fed R. Civ. P. 78; L.R. 7-15. Having
`reviewed the papers in support of Plaintiff’s Motion, the Court GRANTS Plaintiff’s Motion.
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`Plaintiff is a corporation engaged in a variety of businesses, including the production
`and distribution of motion pictures and television programs. Compl. ¶ 5. Plaintiff owns the
`exclusive rights to reproduce, distribute, or license the reproduction and distribution of motion
`pictures in video format, such as digital versatile discs (“DVDs”) and Blu-ray discs, in the
`United States. Compl. ¶ 6.
`
`Among these motion pictures, Plaintiff’s works include, but are not limited to, Harry
`Potter and the Sorcerer’s Stone, Harry Potter and the Chamber of Secrets, Harry Potter and
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`Background
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`
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`I.
`
`In light of the procedural posture of this case, the Court adopts the following facts as set
`out in the Plaintiff’s Complaint. (Dkt. 1).
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`

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`Case 2:13-cv-00892-DOC-RNB Document 32 Filed 10/30/13 Page 2 of 9 Page ID #:312
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CIVIL MINUTES – GENERAL
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`
`Date: October 30, 2013
`Case No. CV 13-0892-DOC (RNBx)
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` Page 2
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`the Prisoner of Azkaban, Harry Potter and the Goblet of Fire, Harry Potter and the Order of
`the Phoenix, Harry Potter and the Half-Blood Prince, and Harry Potter and the Deathly
`Hallows Parts I and II (the “Warner Bros. Works”). Compl. ¶ 1. Each of the Warner Bros.
`Works is entitled to copyright protection. Id.
`
`
`Defendant used an e-commerce platform to reproduce, advertise, offer, sell, and
`distribute unauthorized copies of counterfeit products owned by Plaintiff. Compl. ¶ 15.
`Defendant acted with willful disregard toward laws protecting Plaintiff’s copyrights. Id. ¶ 16.
`Specifically, Defendant operates a business by selling products on Amazon.com (“Amazon”)
`using the seller identity, “Fox Media.” Compl. ¶ 10. Amazon provides services to third-party
`sellers, including Defendant. Amazon’s services include, but are not limited to, design of the
`webpage describing the product being offered by third-party Amazon sellers, access to the
`Internet community seeking products offered by third-party Amazon sellers, and shipping
`goods from their warehouses. Compl. ¶ 13. Smaller third-party sellers use Amazon’s online
`platform to offer new, used, and collectible products at fixed prices to Amazon customers
`across the globe. Id. ¶ 14. Defendant is among the third-party sellers who use Amazon’s
`platform to market, offer, sell, and distribute their merchandise. Id. ¶ 15. Defendant has used
`Amazon to market, offer, sell, and distribute unauthorized copies of motion pictures owned by
`Warner Bros., including, but not limited to, the following Warner Bros. Works:
`
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`Copyright Registration Number
`PA 1-063-646
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`PA 1-105-748
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`PA 1-222-542
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`PA 1-279-121
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`PA 1-355-547
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`PA 1-647-906
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`PA 1-721-904
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`Title of Work
`HARRY POTTER AND THE
`SORCERER’S STONE
`HARRY POTTER AND THE
`CHAMBER OF SECRETS
`HARRY POTTER AND THE
`PRISONER OF AZKABAN
`HARRY POTTER AND THE GOBLET
`OF FIRE
`HARRY POTTER AND THE ORDER
`OF THE PHOENIX
`HARRY POTTER AND THE HALF-
`BLOOD PRINCE
`HARRY POTTER AND THE
`DEATHLY HALLOWS PART 1
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`

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`Case 2:13-cv-00892-DOC-RNB Document 32 Filed 10/30/13 Page 3 of 9 Page ID #:313
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CIVIL MINUTES – GENERAL
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`
`Date: October 30, 2013
`Case No. CV 13-0892-DOC (RNBx)
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` Page 3
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`PA 1-742-099
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`HARRY POTTER AND THE
`DEATHLY HALLOWS PART 2
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`Plaintiff filed suit for copyright infringement in this Court on February 7, 2013. Compl.
`at 1. On May 6, 2013, the Court granted Defendant a thirty-day extension to file an answer.
`Order (Dkt. 13). Defendant did not file an answer within the thirty days. On June 14, 2013,
`the Clerk entered default against Defendant. Default by Clerk (Dkt. 18). On that same day,
`Plaintiff’s attorney filed a request to appear pro hac vice. Notice of Discrepancy and Order
`(Dkt. 21). The Court denied the request, however, because it was not properly filed. Notice of
`Discrepancy and Order (Dkt. 21). On June 26, 2013 Defendant filed an Answer, but the Court
`rejected this filing because Defendant did not sign it. Notice of Discrepancy and Order (Dkt.
`22). Plaintiff then filed a Motion for Default Judgment against Defendant on June 27, 2013.
`Motion (Dkt. 20). However, because Defendant had attempted to respond and appear through
`counsel, the Court denied the motion. Order Denying Motion for Default Judgment (Dkt. 24).
`The Court instructed Defendant to properly file an answer that complied with the Local Rules.
`However, Defendant has not responded.
`
`
`Plaintiff again moved for default judgment on September 6, 2013. It seeks a permanent
`injunction, statutory damages for willful copyright infringement, and post-judgment interest at
`the statutory rate. Mot. at 9-16.
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`
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`II.
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`Legal Standard
`
`The decision to grant or deny a motion for default judgment is within the district court’s
`discretion. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). After the clerk has entered
`default against the Defendant, the factual allegations of the complaint (except those relating to
`damages) are deemed admitted by the defaulting party. Fed. R. Civ. P. 8(b)(6); see Geddes v.
`United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977). The district court considers seven factors
`when deciding whether to grant the motion: “(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.” Id. at 1471-72.
`Because the Plaintiff’s allegations of damages are not presumed true, a court granting a
`motion for default must “determine the amount and character of the relief” due. Landstar
`Ranger, Inc. v. Parth Enters., Inc., 725 F. Supp. 2d 916, 920 (C.D. Cal. 2010) (internal
`
`

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`Case 2:13-cv-00892-DOC-RNB Document 32 Filed 10/30/13 Page 4 of 9 Page ID #:314
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES – GENERAL
`
`
`Date: October 30, 2013
`Case No. CV 13-0892-DOC (RNBx)
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` Page 4
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`quotation marks omitted).
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`The Plaintiff has satisfied its obligations under Fed. R. Civ. P. 55(a) and Local Rules
`55-1 and 55-2. The Plaintiff has shown that it requests default judgment against Defendant
`Ernest Slaughter, that default was entered against Defendant as to Plaintiff’s Complaint on
`June 14, 2013, that the Defendant is not an infant or an incompetent person, and that the
`Servicemembers Civil Relief Act, 50 U.S.C. § 521, does not apply. Notice of Renewed
`Motion For Entry of Default Judgment (Dkt. 25) ¶ 1.
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`III. Discussion
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`A.
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`Local Rule 55-1
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`B.
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`Eitel Factors
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`1.
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`Possibility of Prejudice to the Plaintiff
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`The first Eitel factor supports granting default judgment because Plaintiff has no other
`means to collect compensation from the Defendant, leaving Plaintiff without a proper remedy
`absent default judgment. See Landstar, 725 F. Supp. 2d at 920; PepsiCo, Inc. v. Cal. Sec.
`Cans, 238 F. Supp. 2d 1172, 1176 (C.D. Cal. 2002).
`
`
`2. Merits of Plaintiff’s Claims and the Sufficiency of the
`Complaint
`
`The second and third Eitel factors look to whether the Plaintiff’s Complaint has
`sufficiently stated a claim for relief. PepsiCo, 238 F. Supp. 2d at 1175.
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`a.
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`Copyright Infringement
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`
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`In order to state a claim for copyright infringement, a plaintiff must allege “(1)
`ownership of the copyright by the plaintiff [and] (2) copying by the defendant.” Lamb v.
`Starks, 949 F. Supp. 753, 756 (N.D. Cal. 1996) (quoting 17 U.S.C. § 501(a)).
`
`

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`Case 2:13-cv-00892-DOC-RNB Document 32 Filed 10/30/13 Page 5 of 9 Page ID #:315
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES – GENERAL
`
`
`Date: October 30, 2013
`Case No. CV 13-0892-DOC (RNBx)
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` Page 5
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`
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`The Complaint sufficiently alleges these elements. Plaintiff claims to own the federally
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`registered copyrights relevant to this case. Compl. ¶ 1 Ex. A. Plaintiff alleges that Defendant
`copied material covered by said copyrights to sell its counterfeit products without permission.
`Id. ¶ 15.
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`3.
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`Sum of Money at Stake
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`
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`The fourth Eitel factor requires that the damages sought be “proportional to the harm
`caused by defendant’s conduct.” Landstar, 724 F. Supp. 2d at 921. Plaintiff claims statutory
`damages to remedy its lost profits for the infringing items it identified as sold by the
`Defendant. Mot. at 11-16; see 17 U.S.C. § 504(c)(1). Here, Plaintiff requests statutory
`damages of $25,000 for each of the eight copyright infringements, which totals $200,000.
`However, the requested award is substantially large relative to the harm caused by Defendant’s
`conduct. See, e.g., J & J Sports Productions. v. Cardoze, 2010 WL 2757106, at *5 (N.D. Cal.
`2010) (“a large sum of money at stake would disfavor default damages,” such as damages
`totaling $114,200); Joe Hand Promotions v. Streshly, 655 F. Supp. 2d 1136 (S.D. Cal.
`2009) (proposed award amount of $100,975 was “manifestly excessive under existing law”);
`see also Board of Trustees of the Sheet Metal Workers v. Vigil, 2007 WL 3239281, at *2 (N.D.
`Cal. 2007) (“[D]efault judgment is disfavored if there were a large sum of money involved.”).
`Taking the facts pled as true, the requested damages are disproportional to the harm
`caused by Defendant’s conduct. This factor thus weighs against default judgment.
`
`
`Where the Plaintiff’s complaint is well-pleaded and the defendant makes no effort to
`properly respond, the likelihood of disputed facts is very low. See Landstar, 725 F. Supp. 2d
`at 921-22. The Plaintiff’s claim is well-pleaded, and Defendant has not challenged its
`allegations with a proper answer or reply. This factor weighs in favor of default judgment.
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`5.
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`Possibility of Excusable Neglect
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`
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`The sixth Eitel factor favors default judgment when the defendant has been properly
`served or the plaintiff demonstrates that the defendant is aware of the lawsuit. Id. at 911.
`Defendant acknowledged receipt of the Complaint and requested an extension to answer.
`Moreover, Defendant was properly served and submitted an insufficient and improperly filed
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`
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`4.
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`Possibility of Dispute Concerning Material Facts
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`
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`

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`Case 2:13-cv-00892-DOC-RNB Document 32 Filed 10/30/13 Page 6 of 9 Page ID #:316
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CIVIL MINUTES – GENERAL
`
`
`Date: October 30, 2013
`Case No. CV 13-0892-DOC (RNBx)
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` Page 6
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`answer. Defendant was thus clearly aware of the lawsuit and yet refused to properly respond.
`The likelihood of excusable neglect is low, and this factor favors default judgment. See
`PepsiCo, 238 F. Supp. 2d at 1172.
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`
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`6.
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`Policy Favoring Decision on the Merits
`
`
`Although decisions on the merits are preferred, this does not prevent a court from
`entering judgment where the Defendant refuses to respond. See id. at 1177. Where the
`Defendant’s failure to appear makes decision on the merits impossible, default judgment is
`appropriate. Craigslist, Inc. v. Naturemarket, Inc., 694 F. Supp. 2d 1039, 1061 (N.D. Cal.
`2010). Defendant has not properly responded, and so this factor weighs in favor of default
`judgment.
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`IV. Remedies
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`
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`A.
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`Statutory Damages
`
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`Under the Copyright Act, the Plaintiff may recover a sum “not less than $750 or more
`than $30,000” for any one work, “as the court considers just.” 17 U.S.C. § 504(c)(2). A
`plaintiff seeking default judgment is “required to prove all damages sought in the complaint.”
`Philip Morris USA, Inc. v. Castworld Products, Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003).
`However, “A plaintiff may elect statutory damages ‘regardless of the adequacy of the evidence
`offered as to his actual damages or the amount of the defendant’s profits.’” Columbia Pictures
`Television v. Krypton Broad. of Birmingham, Inc., 259 F.3d 1186, 1195 (9th Cir.
`2001) (quoting Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.04[A] ).
`Plaintiff submits pictures of products and online labeling showing Defendant, using the
`seller identity “FoxMedia,” selling counterfeit versions of Plaintiff’s products on Amazon.
`Pearson Decl. Ex. A, at 6 (Dkt. 20-1). The pictures show seller “FoxMedia” selling a product
`titled, “Harry Potter: The Complete 8-Film Collection (2011),” for $33.89. Id. The product is
`said to ship from New York. Id. Plaintiff also avers that an examination of the product reveals
`that the digital content, quality, and format of the DVD disc art and case wrapping is
`inconsistent with and inferior to Plaintiff’s authorized versions of the product. Id. at 3. Taking
`all alleged facts as true, the Plaintiff has established willful copyright infringement.
`Plaintiff seeks statutory damages for willful copyright infringement totaling $200,000,
`or $25,000 for infringement of each of the eight copyrighted motion pictures. See 15 U.S.C. §
`504(c)(1). However, despite Defendant’s conduct being willful, the $25,000 per infringement
`
`

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`Case 2:13-cv-00892-DOC-RNB Document 32 Filed 10/30/13 Page 7 of 9 Page ID #:317
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES – GENERAL
`
`
`Date: October 30, 2013
`Case No. CV 13-0892-DOC (RNBx)
`
` Page 7
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`plaintiff seeks is “at the high end of the § 504(c)(1) scale.” See Warner Bros. Home
`Entertainment Inc. v. Jimenez, 2013 WL 3397672, at *5 (C.D. Cal. 2013) (holding plaintiff
`would receive a windfall if it received $25,000 for each of the 22 copyright infringements
`against Amazon third-party seller reproducing and selling counterfeit copies of plaintiff’s
`copyrighted motion pictures); Disney Enters., Inc. v. San Jose Party Rental, 2010 WL
`3894190, at *2 (N.D. Cal. 2010) (holding despite defendants’ conduct being willful, “$25,000
`per infringement is nonetheless at the high end of the §504(c)(1) scale . . .”).
`In the instant action, Plaintiff provides a copy of an Amazon invoice showing the
`allegedly infringed product’s sale price when Plaintiff purchased Defendant’s product
`($33.89). Pearson Decl. Ex. A, at 8 (Dkt. 20-1). However, other than this receipt, Plaintiff
`provides no baseline measure of actual damages to assist the Court in determining statutory
`damages. “In calculating statutory damages, some courts have looked to estimates of actual
`damages.” Microsoft Corporation v. Ricketts, 2007 WL 1520965, at *4 (N.D. Cal. 2007); see
`also Warner Bros. Home Entertainment Inc., 2013 WL 3397672, at *5 (in assessing statutory
`damages “plaintiff did not present any information or estimate about the number of counterfeit
`copies [of counterfeited motion pictures] sold by defendant, plaintiff’s lost profits, the number
`of visitors to defendant’s website, or the amount of money spent in the course of identifying
`defendant, to demonstrate that the amount sought is reasonable”). Although statutory damages
`are intended to serve as a deterrent against copyright infringement, such damages should not
`“justify such a windfall” for the plaintiff. Microsoft Corporation, 2007 WL 1520965, at *4.
` “The court has wide discretion in determining the amount of statutory damages to be
`awarded, constrained only by the specified maxima and minima.” Harris v. Emus Records
`Corp., 734 F.2d 1329, 1335 (9th Cir. 1984). Therefore, the court deems $3,000 for each of the
`eight infringements—totaling $24,000—to be the just and proper statutory award in this case.
`“In measuring the damages, the court is to be guided by ‘what is just in the particular case,
`considering the nature of the copyright, the circumstances of the infringement and the like…’”
`Peer Int’l Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1336 (9th Cir. 1990) (quoting F.W.
`Woolworth Co. v. Contemporary Arts, 344 U.S. 228, 232 (1952)). This award is within range
`of damages awarded by other courts. See Warner Bros. Home Entertainment Inc., 2013 WL
`3397672, at *6 (finding adequate a statutory damage award of $3,000 per infringement where
`defendant third-party Amazon seller willfully infringed by reproducing and selling counterfeit
`motion pictures); Microsoft Corp. v. Coppola, 2007 WL 1520964 (N.D. Cal. 2007) (awarding
`$2,500 per work where defendant sold counterfeit copies of software programs recorded on
`CD–ROMS). In light of the limited record in this case, the Court finds this amount sufficient
`for purposes of deterrence. Twentieth Century Fox Film Corp. v. Streeter, 438 F. Supp. 2d
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`

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`Case 2:13-cv-00892-DOC-RNB Document 32 Filed 10/30/13 Page 8 of 9 Page ID #:318
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES – GENERAL
`
`
`Date: October 30, 2013
`Case No. CV 13-0892-DOC (RNBx)
`
` Page 8
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`1065, 1073 (D. Ariz. 2006) (awarding $3,000 per work willfully infringed where defendant
`downloaded and sold counterfeit copies of copyrighted motion pictures).
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`
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`B.
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`Interest
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`
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`Plaintiff also requests post-judgment interest at the statutory rate. See 28 U.S.C. § 1961.
`The Court grants this request.
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`
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`C.
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`Injunctive Relief
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`
`
`
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`Plaintiff is entitled to permanent injunctive relief. The Copyright Act authorizes courts
`to grant permanent injunction on reasonable terms to prevent future violations. 17 U.S.C. §§
`502(a). For a court to grant a permanent injunction, a plaintiff must demonstrate: “(1) that it
`has suffered an irreparable injury; (2) that remedies available at law, such as monetary
`damages, are inadequate to compensate for that injury; (3) that, considering the balance of
`hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the
`public interest would not be disserved by a permanent injunction.” Ebay v. MercExchange,
`L.L.C., 547 U.S. 388, 391 (2006).
`Plaintiff alleges Defendant’s sales are causing irreparable injury that would
`inadequately be compensated by monetary relief unless the Court enjoins Defendant’s
`continuing infringements of Plaintiff’s copyrights. Compl. at 9. In copyright cases, irreparable
`harm is presumed on a showing of reasonable likelihood of success on the merits.
`See, e.g., Micro Star v. Formgen, Inc., 154 F.3d 1107, 1109 (9th Cir. 1998).
`Moreover, Defendant’s default makes it impractical to determine monetary damages.
`See Warner Bros. Home Entertainment Inc., 2013 WL 3397672, at *7 (noting “monetary
`damages alone are inadequate to compensate plaintiff because defendant’s refusal to
`participate in the action makes it impossible for plaintiff to determine defendant’s actual
`profits, the amount of lost income as a result of defendant’s conduct, or take any action to
`prevent further infringement”). Therefore, Plaintiff will be irreparably harmed and monetary
`damages are alone are insufficient to compensate Plaintiff.
`Without an injunction, Plaintiff will continue to suffer irreparable harm as Defendant’s
`use of Plaintiff’s intellectual property—reproducing substandard counterfeit reproductions of
`Plaintiff’s copyrights—harms its reputation with consumers. See Sennheiser Electronic Corp.
`v. Eichler, 2013 WL 3811775, at *10 (C.D. Cal. 2013) (noting that the injury caused by the
`presence of infringing products on the market such as damage to business reputation “will
`
`

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`Case 2:13-cv-00892-DOC-RNB Document 32 Filed 10/30/13 Page 9 of 9 Page ID #:319
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES – GENERAL
`
`
`Date: October 30, 2013
`Case No. CV 13-0892-DOC (RNBx)
`
` Page 9
`
`often constitute irreparable injury”). These same reputational harms tip the balance of
`hardships in Plaintiff’s favor. Defendant will not be harmed by ceasing the future infringement
`of Plaintiff’s copyrighted works.
`Finally, the public interest will be served with a permanent injunction, because it will
`protect Plaintiff’s copyrights against increased infringement. See Perfect 10 v. Google,
`Inc., 416 F. Supp. 2d 828, 859 (C.D. Cal. 2006), overruled on other grounds, Perfect 10 v.
`Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007) (“[T]he public interest is also served when the
`rights of copyright holders are protected against acts likely constituting infringement.”). The
`Court thus concludes that a permanent injunction is appropriate in this case.
`
`IV. Disposition
`
`
`
`
`For the reasons discussed above, the Court GRANTS the Motion for default judgment. As to
`Defendant Ernest Slaughter, the Court hereby:
`1. GRANTS Plaintiff default judgment on its claim for copyright infringement;
`2. GRANTS Plaintiff $24,000 in statutory damages under 17 U.S.C. § 504(c)(2);
`3. GRANTS Plaintiff’s request for post-judgment interest at the statutory rates
`provided in 28 U.S.C. § 1961; and
`4. GRANTS Plaintiff’s request for a permanent injunction.
`
`Plaintiff is ordered to submit forthwith a proposed judgment that conforms with this
`
`Order.
`
`
`Accordingly, Plaintiff’s Renewed Motion for Default Judgment filed October 24, 2013
`(Dkt. 30), is hereby DENIED AS MOOT.
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` Initials of Deputy Clerk: jcb
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`MINUTES FORM 11
`CIVIL-GEN