Case 1:08-cv-00112-AWI-SMS Document 24 Filed 08/14/08 Page 1 of 16
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` UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA
`
`1:08-cv-00112-AWI-SMS
`FINDINGS AND RECOMMENDATION RE:
`PLAINTIFF’S MOTION FOR DEFAULT
`JUDGMENT (DOC. 16)
`
`UMG RECORDINGS, INC., a )
`corporation, et al., )
`)
`Plaintiffs,
`)
`
`v.
`CHRISTINA HIGAREDA,
`Defendant. )
`)
` )
`
`))
`
`))
`
`Plaintiffs are proceeding with a civil action in this Court.
`The matter has been referred to the Magistrate Judge pursuant to
`28 U.S.C. § 636(b) and Local Rules 72-302(c)(19) and 72-303.
`Pending before the Court is Plaintiffs’ motion for a default
`judgment against Defendant Christina Higareda, filed on June 27,
`2008, including a notice of motion and motion, a declaration of
`Dawniell Alise Zavala with exhibits, and a proposed order. A
`declaration regarding service and an amended proposed order were
`also submitted. By separate order the Court has vacated the
`hearing on the motion and has deemed the matter submitted to the
`Court for decision.
`I. Legal Standards on a Motion for Default Judgment
`A court has the discretion to enter a default judgment
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`Case 1:08-cv-00112-AWI-SMS Document 24 Filed 08/14/08 Page 2 of 16
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`against one who is not an infant, incompetent, or member of the
`armed services where the claim is for an amount that is not
`certain on the face of the claim and where 1) the defendant has
`been served with the claim; 2) the defendant’s default has been
`entered for failure to appear; 3) if the defendant has appeared
`in the action, the defendant has been served with written notice
`of the application for judgment at least three days before the
`hearing on the application; and 4) the court has undertaken any
`necessary and proper investigation or hearing in order to enter
`judgment or carry it into effect. Fed. R. Civ. P. 55(b); Alan
`Neuman Productions, Inc. v. Albright, 862 F.2d 1388, 1392 (9th
`Cir. 1988). Factors that may be considered by courts in
`exercising discretion as to the entry of a default judgment
`include the nature and extent of the delay, Draper v. Coombs, 792
`F.2d 915, 924-925 (9 Cir. 1986); the possibility of prejudice to
`th
`the plaintiff, Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th
`Cir.1986); the merits of plaintiff's substantive claim, id.; the
`sufficiency of the allegations in the complaint to support
`judgment, Alan Neuman Productions, Inc., 862 F.2d at 1392; the
`amount in controversy, Eitel v. McCool, 782 F.2d at 1471-1472;
`the possibility of a dispute concerning material facts, id.;
`whether the default was due to excusable neglect, id.; and the
`strong policy underlying the Federal Rules of Civil Procedure
`that favors decisions on the merits, id.
` A default judgment generally bars the defaulting party from
`disputing the facts alleged in the complaint, but the defaulting
`party may argue that the facts as alleged do not state a claim.
`Alan Neuman Productions, Inc. v. Albright, 862 F.2d 1388, 1392.
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`Case 1:08-cv-00112-AWI-SMS Document 24 Filed 08/14/08 Page 3 of 16
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`Thus, well pleaded factual allegations, except as to damages, are
`taken as true; however, necessary facts not contained in the
`pleadings, and claims which are legally insufficient, are not
`established by default. Cripps v. Life Ins. Co. of North America,
`980 F.2d 1261, 1267 (9 Cir. 1992); TeleVideo Systems, Inc. av.
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`Heidenthal, 826 F.2d 915, 917 (9 Cir. 1987).
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`II. Service, Entry of Default, Notice, and Status of
` Defendant
`The declaration of Dawniell Alise Zavala, Plaintiffs’
`counsel, establishes that after Defendant was identified,
`Plaintiffs’ counsel sent Defendant a letter advising her that
`copyright infringement had been detected and providing contact
`information for her to use to communicate with Plaintiffs’
`representatives to resolve the matter without litigation. When
`there was no response, Plaintiffs filed suit. Zavala was informed
`and believed that on April 10, 2008, Plaintiffs’ settlement
`representatives were contacted by Defendant, but settlement
`discussions were unsuccessful, and multiple attempts to reach
`Defendant to follow up were likewise unsuccessful. (Decl. ¶¶ 8-
`11.) The sworn proof of service filed on April 2, 2008, reflects
`that on March 9, 2008, the summons and complaint were personally
`served on Defendant by a registered process server. (Doc. 6.)
`This service is sufficient pursuant to Fed. R. Civ. P.
`4(e)(2)(A).
`After Defendant failed to respond to the complaint,
`Plaintiffs sent a letter to Defendant informing her that she was
`in default, urging her to respond, and stating that if she failed
`to answer, a judgment for damages and an injunction would be
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`Case 1:08-cv-00112-AWI-SMS Document 24 Filed 08/14/08 Page 4 of 16
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`entered. Defendant did not respond to the letter. (Decl. of
`Zavala, Ex. 2.)
`Pursuant to Plaintiffs’ request, the Clerk entered default
`as to Defendant on May 9, 2008. (Doc. 12.) Plaintiffs served the
`clerk’s certificate of default on Defendant by mail on the same
`date. (Doc. 13.) Defendant was served with the motion for default
`judgment by mailing on June 27, 2008. Thus, Defendant has
`received the notice required by Fed. R. Civ. P. 55(b)(2).
`Further, the notice was adequate pursuant to Fed. R. Civ. P.
`55(d) and 54(c), which require that a judgment by default shall
`not be different in kind from or exceed in amount that prayed for
`in the demand for judgment. Plaintiff expressly sought in the
`complaint the types of relief sought by the instant application
`for default judgment, including injunctive relief, statutory
`damages at the election of Plaintiff, and costs and fees. (Compl.
`at p. 5.) The failure to allege a specific sum in the complaint
`does not prevent entry of a default judgment for a certain sum or
`a sum that can be made certain where appropriate notice has
`otherwise been given. See Appleton Elec. Co. v. Graves Truck
`Line, 635 F.2d 603, 611 (7 Cir. 1980).
`th
`Thus, the Court finds that Plaintiff gave adequate notice of
`the nature and amount of its claim.
`Finally, in the declaration, Zavala states that she is
`informed and believes that Defendant is neither a minor nor an
`incompetent person; further, a search for Defendant’s name
`conducted in the Department of Defense-Manpower Data Center
`revealed no evidence that Defendant is on active duty in the
`military service. (Decl. ¶¶ 16-17.)
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`Case 1:08-cv-00112-AWI-SMS Document 24 Filed 08/14/08 Page 5 of 16
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`Thus, it appears that with respect to notice and status, a
`default judgment would be appropriate with respect to Defendant
`Christina Higareda.
`III. Legal Sufficiency of the Complaint
`An infringer of copyright is liable for actual damages and
`any additional profits of the infringer attributable to the
`infringement. 17 U.S.C. § 504(a). An infringer is anyone who
`violates any of the exclusive rights of the copyright owner as
`provided by sections 106 through 118. 17 U.S.C. § 501(a).
`Copyright protection subsists in original works of authorship,
`including pictorial and graphic works and sound recordings. 17
`U.S.C. § 102. The owner of a copyright has the exclusive rights
`to perform or authorize the reproduction of the copyrighted work
`in copies, prepare derivative works based on the copyrighted
`work, distribute copies to the public by sale or other transfer
`of ownership, and display the copyrighted work publicly. 17
`U.S.C. § 106.
`Thus, to prevail on a claim for infringement of copyright
`under 17 U.S.C. § 501, Plaintiffs must establish that Defendant
`violated an exclusive right of the copyright owner as provided in
`17 U.S.C. §§ 106, 501(a). Elektra Entertainment Group Inc. v.
`Crawford, 226 F.R.D. 388, 392-93 (C.D.Cal. 2005). This means that
`to establish a prima facie case of direct infringement,
`Plaintiffs must show 1) ownership of the allegedly infringed
`material, and 2) the infringer’s violation of at least one
`exclusive right granted to copyright holders under 17 U.S.C. §
`106. Marder v. Lopez, 450 F.3d 445, 453 (9 Cir. 2006).
`th
`Here, Plaintiffs alleged that Plaintiffs owned the
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`Case 1:08-cv-00112-AWI-SMS Document 24 Filed 08/14/08 Page 6 of 16
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`copyrights or were the licensees of exclusive rights under the
`United States copyright law with respect to eight specific
`recordings ; each sound recording was the subject of a valid
`1
`certificate of copyright registration issued by the Register of
`Copyrights; Plaintiffs owned the exclusive rights under copyright
`law in the United States to reproduce and distribute the
`copyrighted recordings. (Cmplt. p. 3 , ¶¶ 11-12.) Plaintiffs then
`2
`alleged that without Plaintiffs’ permission or consent, Defendant
`used and continues to use an online media distribution system to
`download the recordings and distribute them to the public in
`violation of Plaintiffs’ exclusive rights of reproduction and
`distribution; Defendant thereby infringed Plaintiffs’ exclusive
`rights. (Cmplt. p. 4.) Plaintiff further alleged expressly that
`the acts of infringement were willful, intentional, and with
`disregard and indifference for Plaintiffs’ rights. (Id. at ¶ 18.)
`Accordingly, Plaintiffs have adequately stated claims for
`copyright infringement.
`IV. Discretionary Considerations
`Here, it does not appear that there is any risk of mistake
`or excusable neglect on the part of anyone with a potential
`interest in the subject matter of the instant action. Further,
`there is no apparent likelihood of a dispute as to a material
`fact essential to the Plaintiffs’ case. No just cause for delay
`appears. It is apparent from the declaration submitted to the
`
`1
` The recordings’ titles were listed as Kryptonite, Here It Goes Again, Just Stop, Poison, Waiting, Atomic,
`LBC and ING, and Show Me How to Live. (Cmplt. at 8, Ex. A.)
`
`2
` References to page numbers of documents filed with the Court are to the numbers assigned by the Court’s
`filing system reflected in the heading at the top of each page of a filed document, as distinct from the pagination
`indicated by the author of the document.
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`Case 1:08-cv-00112-AWI-SMS Document 24 Filed 08/14/08 Page 7 of 16
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`Court that Defendant is not an infant, incompetent, or member of
`the armed services. There does not appear to be any reason why
`the general policy in favor of a decision on the merits would
`warrant refusing to enter the requested default judgment.
`Accordingly, the Court finds that Plaintiffs have shown
`their entitlement to a default judgment.
`V. Damages
`Plaintiffs request statutory damages pursuant to 17 U.S.C. §
`504(c) for Defendant’s infringement of each of the eight
`recordings.
`Title 17 U.S.C. § 504 provides in pertinent part:
`(a) In General. Except as otherwise provided by
`this title, an infringer of copyright is liable
`for either--
`(1) the copyright owner’s actual damages
`and any additional profits of the infringer,
`as provided by subsection (b); or
`(2) statutory damages, as provided by
`subsection (c).
`....
`(c) Statutory Damages.--
`(1) Except as provided by clause (2) of this
`subsection, the copyright owner may elect, at
`any time before final judgment is rendered,
`to recover, instead of actual damages and
`profits, an award of statutory damages for
`all infringements involved in the action,
`with respect to any one work, for which any
`one infringer is liable individually, or for
`which any two or more infringers are liable
`jointly and severally, in a sum of not less
`than $750 or more than $30,000 as the court
`considers just. For the purposes of this
`subsection, all the parts of a compilation or
`derivative work constitute one work.
`(2) In a case where the copyright owner
`sustains the burden of proving, and the court
`finds, that infringement was committed
`willfully, the court in its discretion may
`increase the award of statutory damages to a
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`Case 1:08-cv-00112-AWI-SMS Document 24 Filed 08/14/08 Page 8 of 16
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`sum of not more than $150,000. In a case
`where the infringer sustains the burden of
`proving, and the court finds, that such
`infringer was not aware and had no reason to
`believe that his or her acts constituted an
`infringement of copyright, the court in its
`discretion may reduce the award of statutory
`damages to a sum of not less than $200. The
`court shall remit statutory damages in any
`case where an infringer believed and had
`reasonable grounds for believing that his or
`her use of the copyrighted work was a fair
`use under section 107, if the infringer was:
`(i) an employee or agent of a nonprofit
`educational institution, library, or archives
`acting within the scope of his or her
`employment who, or such institution, library,
`or archives itself, which infringed by
`reproducing the work in copies or
`phonorecords; or (ii) a public broadcasting
` entity which or a person who, as a regular
` part of the nonprofit activities of a public
` broadcasting entity (as defined in subsection (g)
` of section 118) infringed by performing a published
` nondramatic literary work or by reproducing a
` transmission program embodying a performance of
` such a work. (Emphasis added.)
`A district court has wide discretion in determining the amount of
`statutory damages to be awarded and should consider what is just
`in the particular case in light of the nature of the copyright
`and the circumstances of the infringement. Los Angeles News
`Service v. Reuters Television International, Ltd., 149 F.3d 987,
`996 (9 Cir. 1998). The statutory damages serve both compensatory
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`and punitive purposes, so in order to effectuate the statutory
`policy of discouraging infringement, recovery of statutory
`damages is permitted even absent evidence of the actual damages
`suffered by a plaintiff or of the profits reaped by a defendant.
`Id.
`
`Defendant seeks the minimum statutory amount of $6,000.00,
`or $750.00 for each of the eight infringements. Statutory damages
`are particularly appropriate for cases in which the defendant
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`Case 1:08-cv-00112-AWI-SMS Document 24 Filed 08/14/08 Page 9 of 16
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`defaults because the difficulty of ascertaining the plaintiff’s
`actual damages is increased in such cases. Jackson v. Sturkie,
`255 F.Supp.2d 1096, 1101 (N.D.Cal. 2003). Further, the Court
`considers the fact that the copyright relates to a sound
`recording. Considering all of the pertinent circumstances as
`demonstrated by the declaration and attachments submitted by
`Plaintiffs, and in order to effectuate the purposes of the
`statute, the Court concludes that the minimum amount of
`$6,000.00 in damages for the multiple infringements is just and
`reasonable.
`VI. Injunctive Relief
`Plaintiffs pray for an injunction that states the following:
`Defendant shall be and hereby is enjoined from
`directly or indirectly infringing Plaintiffs’ rights
`under federal or state law in the Copyrighted
`Recordings and any sound recording, whether now in
`existence or later created, that is owned or controlled
`by Plaintiffs (or any parent, subsidiary, or affiliate
`record label of Plaintiffs) (“Plaintiffs’ Recordings”),
`including without limitation by using the Internet or
`any online media distribution system to reproduce
`(i.e., download) any of Plaintiffs’ Recordings, to
`distribute (i.e., upload) any of Plaintiffs’
`Recordings, or to make any of Plaintiffs’ Recordings
`available for distribution to the public, except
`pursuant to a lawful license or with the express
`authority of Plaintiffs. Defendant also shall destroy
`all copies of Plaintiffs’ Recordings that Defendant has
`downloaded onto any computer hard drive or server
`without Plaintiffs’ authorization and shall destroy all
`copies of those downloaded recordings transferred onto
`any physical medium or device in Defendant’s
`possession, custody, or control.
`(Mot. pp. 8-9, Cmplt. p. 4.)
`Title 17 U.S.C. § 502 states:
`(a) Any court having jurisdiction of a civil
`action arising under this title may, subject to the
`provisions of section 1498 of title 28, grant temporary
`and final injunctions on such terms as it may deem
`reasonable to prevent or restrain infringement of a
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`Case 1:08-cv-00112-AWI-SMS Document 24 Filed 08/14/08 Page 10 of 16
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`copyright.
`(b) Any such injunction may be served anywhere in
`the United States on the person enjoined; it shall be
`operative throughout the United States and shall be
`enforceable, by proceedings in contempt or otherwise,
`by any United States court having jurisdiction of that
`person. The clerk of the court granting the injunction
`shall, when requested by any other court in which
`enforcement of the injunction is sought, transmit
`promptly to the other court a certified copy of all the
`papers in the case on file in such clerk's office
`(emphasis added).
`As a general rule, absent a great public injury, a permanent
`injunction will be granted when liability has been established
`and there is a threat of a continuing violations. Cadence Design
`Systems, Inc. v. Avant! Corp., 125 F.3d 824, 829 (9 Cir. 1997);
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`MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 520 (9th
`Cir. 1993) (issuing an injunction against further infringement of
`protected software rights where the plaintiff demonstrated that
`the defendant had computers in its loaner inventory with the
`protected software on it). Generally a party seeking a
`preliminary injunction must show either a likelihood of success
`on the merits and the possibility of irreparable injury, or that
`serious questions going to the merits were raised and the balance
`of hardships tips sharply in its favor; however, because in a
`copyright infringement claim a showing of a reasonable likelihood
`of success on the merits raises a presumption of irreparable
`harm, a plaintiff need only show a likelihood of success on the
`merits to obtain a preliminary injunction. Micro Star v. Formgen,
`Inc., 154 F.3d 1107, 1109 (9 Cir. 1998).
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`Here, Plaintiffs seek a permanent injunction. They have
`already shown actual success on the merits because their
`complaint states a claim for infringement, and Defendant has
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`Case 1:08-cv-00112-AWI-SMS Document 24 Filed 08/14/08 Page 11 of 16
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`defaulted; further, Plaintiffs have alleged that unless
`restrained, Defendant will continue to cause irreparable injury
`for which there is no full monetary compensation. (Cmplt. pp. 4-
`5.) This is sufficient for a permanent injunction. Sony Music
`Entertaniment, Inc. v. Global Arts Productions, 45 F.Supp.2d
`1345, 1347 (S.D.Fla. 1999). An injunction against further
`infringement and even infringement of future works is permitted,
`and it is appropriate to grant an injunction on an application
`for default judgment. Princeton University Press v. Michigan
`Document Services, Inc., 99 F.3d 1381, 1392-93 (6 Cir. 1996)
`th
`(noting that an injunction of works copyrighted in the future is
`supported by the weight of authority); Elektra Entertainment
`Group Inc. v. Crawford, 226 F.R.D. 388, 393-94 (C.D.Cal. 2005)
`(granting a final injunction on default judgment to enjoin
`defendant from directly or indirectly infringing plaintiffs'
`rights under federal or state law in copyrighted recordings,
`whether then in existence or later created, where the requested
`terms of the injunction were the same as those prayed for in
`complaint, proposed injunctive relief was appropriate, the
`plaintiffs sent two letters to defendant before plaintiffs sought
`entry of default which warned of default judgment, defendant
`failed to respond to serious claims brought against him despite
`receiving adequate notice, and failure to grant injunction would
`have resulted in plaintiffs' continued exposure to harm with no
`method of recourse). If infringement is established, then it is
`appropriate as part of a final judgment to order the destruction
`or other reasonable disposition of all copies or phonorecords
`found to have been made or used in violation of the copyright
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`Case 1:08-cv-00112-AWI-SMS Document 24 Filed 08/14/08 Page 12 of 16
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`owner’s exclusive rights and of all other articles by means of
`which such copies might be reproduced. 17 U.S.C. § 503(b).
`Here, Plaintiffs alleged that Defendant infringed and
`wilfully continues to use the on-line distribution system to
`distribute to the public the obviously copyrighted sound
`recordings and thereby is causing irreparable injury that cannot
`be measured or compensated in money. Further, it is alleged that
`Plaintiffs have no adequate remedy at law. (Cmplt. ¶¶ 14, 18.)
`The requested terms of the injunction are the same as those
`prayed for in the complaint. Defendant’s lack of intent to comply
`with the copyright restrictions is demonstrated by the
`Defendant’s failure to reply to the letter that Plaintiffs sent
`to the Defendant which warned of enforcement of a default
`judgment, and by Defendant’s further failure to respond to
`serious claims brought against her despite receiving adequate
`notice. It appears that the failure to grant the requested
`injunction would result in Plaintiffs' continued exposure to harm
`with no method of recourse. There does not appear to be any
`public injury that would result from issuance of the injunction.
`Accordingly, the Court concludes that injunctive relief is
`appropriate.
`However, the injunctive relief sought is too broad.
`Generally an injunction must be narrowly tailored to remedy only
`the specific harms shown by the plaintiffs rather than to enjoin
`all possible breaches of the law; injunctive relief concerning a
`copyright will be limited to works that infringe on the
`Plaintiffs’ copyright. Iconix, Inc. v. Tokuda, 457 F.Supp.2d 969,
`998-1002 (N.D.Cal.2006) (preliminary injunction in copyright
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`Case 1:08-cv-00112-AWI-SMS Document 24 Filed 08/14/08 Page 13 of 16
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`case). Further, it is established that every order granting an
`injunction shall set forth the reasons for its issuance; shall be
`specific in its terms; shall describe in reasonable detail, and
`not by reference to the complaint or other document, the act or
`acts sought to be restrained; and is binding only upon the
`parties to the action, their officers, agents, servants,
`employees, and attorneys, and upon those persons in active
`concert or participation with them who receive actual notice of
`the order by personal service or otherwise. Fed. R. Civ. P.
`65(d). Even without objections by a party, a court has an
`independent duty to assure that an injunction is specific in its
`terms and describes in reasonable detail the acts sought to be
`restrained. See, EFS Marketing, Inc. v Russ Berrie & Co., 76 F.3d
`487, 493-94 (2 Cir. 1996); 4 Nimmer on Copyright, § 14.06(C)
`nd
`(2006).
`Here, the injunction purports to forbid infringing
`Plaintiffs’ rights under “federal or state law” in the
`copyrighted recordings. However, the sole subject of the
`complaint and this action is infringement of rights created by
`the Copyright Act, not any other federal or state law.
`Further, the injunction sought would enjoin infringement not
`only of copyrighted sound recordings, but also of any sound
`recording owned or controlled by Plaintiffs; thus, it would
`include recordings that are not copyrighted. This exceeds the
`scope of the infringement, which was limited to copyrighted
`works.
`Likewise, the proposed injunction would cover infringement
`not only of recordings copyrighted by Plaintiffs, but also those
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`Case 1:08-cv-00112-AWI-SMS Document 24 Filed 08/14/08 Page 14 of 16
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`owned or controlled by any parent, subsidiary, or affiliate
`record label of Plaintiffs. Such a provision does not give
`reasonable notice of what conduct would be included within the
`scope of the injunction because a reasonable person would not
`know what entities or operations constitute parents,
`subsidiaries, or affiliate record labels of Plaintiffs. This
`aspect of the injunction would be unclear and also would exceed
`the scope of the infringement.
`Accordingly, these aspects should be eliminated from the
`injunctive relief sought.
`
`VII. Costs
`Plaintiffs seek $550.00 in costs, consisting of $350.00 in
`filing fees and $200.00 for service of process. (Decl. of Zavala
`¶ 18.)
`Title 17 U.S.C. § 505 states:
`In any civil action under this title, the court
`in its discretion may allow the recovery of full
`costs by or against any party other than the
`United States or an officer thereof. Except as
`otherwise provided by this title, the court may
`also award a reasonable attorney's fee to the
`prevailing party as part of the costs.
`Plaintiffs are thus entitled to costs of $550.00.
`VII. Recommendation
`Accordingly, it IS RECOMMENDED that
`1) Plaintiffs’ motion for default judgment against Defendant
`Christina Higareda BE GRANTED; and
`2) The Clerk BE DIRECTED to enter judgment in favor of
`Plaintiffs and against Defendant Christina Higareda in the amount
`of $6,000.00 of statutory damages, and $550.00 in costs; and
`3) The Clerk BE DIRECTED to enter judgment in favor of
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`Case 1:08-cv-00112-AWI-SMS Document 24 Filed 08/14/08 Page 15 of 16
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`Plaintiffs and against Defendant Christina Higareda enjoining
`Defendant from directly or indirectly infringing Plaintiffs’
`rights in the following copyrighted sound recordings:
`“Kryptonite,” on album “The Better Life,” by artist “3 Doors
`Down” (SR# 277-407); “Here It Goes Again,” on album “Oh No,” by
`artist “OK Go” (SR# 377-392); “Just Stop,” on album “Ten Thousand
`Fists,” by artist “Disturbed” (SR# 380-289); “Poison,” on album
`“Trash,” by artist “Alice Cooper” (SR# 107-959); “Waiting,” on
`album “Someone In Control,” by artist “Trapt” (SR# 375-267);
`“Atomic,” on album “Eat to the Beat,” by artist “Blondie” (SR#
`12-739); “LBC and ING,” on album “The Recipe,” by artist “Mack
`10" (SR# 264-565); “Show Me How to Live,” on album “Audioslave,”
`by artist “Audioslave” (SR# 322-103); and any copyrighted sound
`recording, whether now in existence or later created, which is
`owned or controlled by Plaintiffs (“Plaintiffs’ recordings”),
`including without limitation by using the Internet or any online
`media distribution system to reproduce (i.e., download) any of
`Plaintiffs’ recordings, to distribute (i.e., upload) any of
`Plaintiffs’ recordings, or to make any of Plaintiffs’ recordings
`available for distribution to the public, except pursuant to a
`lawful license or with the express authority of Plaintiffs;
`Defendant also shall destroy all copies of Plaintiffs’ recordings
`that Defendant has downloaded onto any computer hard drive or
`server without Plaintiffs’ authorization and shall destroy all
`copies of those downloaded recordings transferred onto any
`physical medium or device in Defendant’s possession, custody, or
`control.
`This report and recommendation is submitted to the United
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`Case 1:08-cv-00112-AWI-SMS Document 24 Filed 08/14/08 Page 16 of 16
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`States District Court Judge assigned to the case, pursuant to the
`provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the
`Local Rules of Practice for the United States District Court,
`Eastern District of California. Within thirty (30) days after
`being served with a copy, any party may file written objections
`with the Court and serve a copy on all parties. Such a document
`should be captioned “Objections to Magistrate Judge’s Findings
`and Recommendations.” Replies to the objections shall be served
`and filed within ten (10) court days (plus three days if served
`by mail) after service of the objections. The Court will then
`review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636
`(b)(1)(C). The parties are advised that failure to file
`objections within the specified time may waive the right to
`appeal the District Court’s order. Martinez v. Ylst, 951 F.2d
`1153 (9th Cir. 1991).
`IT IS SO ORDERED.
`Dated: August 11, 2008
`icido3
`
` /s/ Sandra M. Snyder
`UNITED STATES MAGISTRATE JUDGE
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