Case3:07-cv-01451-JSW Document22 Filed08/14/07 Page1 of 15
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`WARNER BROS. RECORDS INC., ET AL.,
`Plaintiffs,
`
`v.
`JULIAN ROMERO,
`Defendant.
`_____________________________________/
`
`No. C-07-01451 JSW (JCS)
`
`REPORT AND RECOMMENDATION
`RE MOTION FOR ENTRY OF DEFAULT
`JUDGMENT BY THE COURT
`[Docket No. 12]
`
`I.
`
`INTRODUCTION
`Plaintiffs, Warner Bros. Records Inc., Sony BMG Music Entertainment, BMG Music,
`Priority Records LLC, Virgin Records America, Inc., Elektra Entertainment Group Inc., and
`Interscope Records, bring a Motion for Entry of Default Judgment by the Court (the “Motion”) in
`this copyright infringement action. Plaintiffs seek $7,500 in statutory damages, $480 (revised down
`from $550) in costs, and a permanent injunction. On May 24, 2007, the Clerk of the Court entered
`default against Defendant, Julian Romero. The Court held a hearing on the Motion on August 3,
`2007. Plaintiffs filed supplemental materials in support of the Motion on August 6, 2007. Having
`considered Plaintiffs’ Motion, the accompanying submissions and all other evidence of record, the
`Court recommends that the Motion be GRANTED.
`II.
`BACKGROUND
`Plaintiffs are recording companies bringing suit against Defendant under the Copyright Act
`of 1976, 17 U.S.C. §§ 101, et seq. (“Copyright Act”), for infringement of Plaintiffs’ copyrighted
`sound recordings. See June 26, 2007 Declaration of Thomas Kerr In Further Support of Motion For
`Default Judgment Against Defendant Julian Romero (“Kerr Decl.”), Ex. 1 (Complaint). Plaintiffs
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`Case3:07-cv-01451-JSW Document22 Filed08/14/07 Page2 of 15
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`contend that the Copyright Act grants each Plaintiff the exclusive right to reproduce and distribute to
`the public their respective copyrighted recordings (“Copyrighted Recordings”). Compl. ¶ 14.
`Plaintiffs also allege that they are, and at all relevant times have been, the copyright owners or
`licensees of exclusive rights under United States copyright with respect to the Copyrighted
`Recordings. Compl. ¶ 13. The Copyrighted Recordings at issue in this case include ten specified
`recordings listed in Exhibit A of the Complaint as well as certain recordings listed in Exhibit B of
`the Complaint.1 Compl. ¶ 13, Exs. A-B. Plaintiffs provided copies of the copyright registrations for
`these songs following oral argument, in response to the Court’s request. See Supplemental
`Declaration of Matthew Franklin Jaska in Further Support of Motion for Default Judgment Against
`Defendant Julian Romero (“Jaska Suppl. Decl.”), Exs. B-K.
`Plaintiffs allege that Defendant violated their copyrights by using, and continuing to use, an
`online media distribution system to download copyrighted recordings, to distribute them to the
`public, and/or make them available for distribution to others. Compl. ¶ 15; Kerr Decl. ¶ 3. Plaintiffs
`submitted a declaration detailing how they uncovered Defendant’s alleged acts of copyright
`infringement. See Kerr Decl. ¶¶ 3-7. Specifically, in August 2004, Plaintiffs’ investigator detected
`an individual using the KaZaA online media distribution system over a peer-to-peer file-sharing
`network. Kerr Decl. ¶ 3. The identified individual had 1,529 music files on his computer and was
`distributing the files to “millions of people” through the peer-to-peer network. Id. MediaSentry
`
`C
`C
`C
`C
`C
`C
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`1 The ten Copyrighted Recordings listed in Exhibit A of the Complaint are:
`“Longview,” on album “Dookie,” by artist “Green Day” (SR# 185-457)
`“Ether,” on album “Stillmatic,” by artist “Nas” (SR# 305-698)
`“Sweet Lady,” on album “Tyrese,” by artist “Tyrese” (SR# 237-788)
`“All or Nothing,” on album “O-Town,” by artist “O-Town” (SR# 294-872)
`“Until We Rich,” on album “War & Peace: Vol. 2,” by artist “Ice Cube” (SR# 287-151)
`“Zero,” on album, “Mellon Collie and the Infinite Sadness,” by artist, “Smashing
`Pumpkins” (SR# 183-904)
`“Cold Day In July,” on album “Fly,” by artist “Dixie Chicks” (SR# 275-086)
`C
`“Dreams,” on album “Rumours,” by artist “Fleetwood Mac” (N39857)
`C
`“Keep On,” on album “Bad As I Wanna B,” by artist “MC Lyte” (SR# 225-726)
`C
`“Housewife,” on album “2001,” by artist “Dr. Dre” (SR# 277-983).
`C
`Compl. ¶ 13 & Ex. A. The Copyrighted Recordings also include “certain of the sound recordings listed
`on Exhibit B,” which is a list of recordings on KazZaA, an online media distribution system, under the
`username “Jay-R@kazaa.” Compl., Ex. B.
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`obtained the alleged infringer’s IP address as well as “screenshots” of the individual’s “share”
`folder. Kerr Decl. ¶ 5. Through serving a subpoena on Pacific Bell Internet Services, the Internet
`Service Provider associated with the IP address, Plaintiffs identified Julian Romero as the user of the
`IP address committing the alleged acts of copyright infringement. Kerr Decl. ¶¶ 6-7. Plaintiffs
`found Defendant’s current address by searching SmartLinx Person Summary Report through Lexis
`Nexis. Kerr Decl. ¶ 15. The SmartLinx Report generated an address of 350 E. Taylor Street, Apt.
`1217, San Jose, California 95112, and is where Plaintiffs subsequently served Mr. Romero with the
`Summons and Complaint. Kerr Decl., Ex. 5; Docket No. 6 (Summons).
`
`Upon discovering Defendant’s identity, Plaintiffs’ counsel sent Mr. Romero a letter
`informing him of the detection of copyright infringement and encouraged him to contact Plaintiffs’
`representatives to resolve the matter prior to the commencement of litigation. Kerr Decl. ¶ 8.
`Defendant never contacted Plaintiffs’ representatives and Plaintiffs initiated this copyright
`infringement action on March 13, 2007. Kerr Decl. ¶ 9; Docket No. 1 (Complaint). Plaintiffs
`served the Summons and Complaint on Mr. Romero on April 12, 2007, at the Taylor Street address
`in San Jose, California (see above), by substitute service on Christina “Doe.” Docket No. 6; Kerr
`Decl. ¶ 10. Defendant failed to answer or otherwise respond to the Complaint. Kerr Decl. ¶ 11.
`Plaintiffs sent a letter to Defendant on May 14, 2007, at the same address, explaining that he was in
`default and urging him to contact Plaintiffs’ representatives to resolve the matter. Kerr Decl. ¶ 12,
`Ex. 2. On May 24, 2007, the Clerk of the Court entered default against Defendant. Docket No. 9
`(Entry of Default). The Clerk notified Defendant of the entry of default on May 25, 2007. Docket
`No. 10 (Notification of Default).
`On June 12, 2007, Plaintiffs filed this Motion seeking entry of default judgment and the
`following relief: 1) $7,500, constituting the minimum statutory amount of $750 for each of the ten
`acts of infringement alleged in Exhibit A of the Complaint; 2) $550 in costs pursuant to Section 505
`of the Copyright Act (later revised down to $480); and 3) a permanent injunction pursuant to Section
`502 of the Copyright Act. Mot. at 1. Plaintiffs’ Motion does not seek an award of attorneys’ fees.2
`
`2 In the Complaint, Plaintiffs requested “reasonable attorneys’ fees incurred herein.” Compl.
`¶ 19. However, in their Motion, Plaintiffs explicitly forego this request. Mot. at 5 n.2.
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`On June 13, 2007, Judge White referred Plaintiffs’ Motion to the undersigned magistrate judge for
`Report and Recommendation. See Docket No. 16.
`Following oral argument, on August 6, 2007, Plaintiffs filed additional materials in response
`to the Court’s request. See Jaska Suppl. Decl. & Exhibits. In particular, Plaintiffs provided an
`additional declaration addressing discrepancies in the moving papers regarding the cost of service of
`process, as well as copies of the copyright registrations for the ten songs at issue. Plaintiffs clarified
`that the cost of service of process was $130 rather than $200, as originally stated in the Motion.
`III.
`ANALYSIS
`A.
`Service of Process
`The Court must “assess the adequacy of the service of process on the party against whom
`default is requested.” Bd. of Trustees of the N. Cal. Sheet Metal Workers v. Peters, No. C-00-395
`VRW, 2000 U.S. Dist. LEXIS 19065, at *2 (N.D. Cal. Jan. 2, 2001); accord Hartford Fire Ins. Co.
`v. Cameron, No. 05-4818 SC, 2006 WL 3646941, at *1 (N.D. Cal. Dec. 12, 2006). In this case,
`Plaintiffs served the Summons and Complaint on Mr. Romero by substituted service on Christina
`“Doe” in San Jose, California. See Docket No. 6; Kerr Decl. ¶ 10. The Summons describes
`Christina “Doe” as “a competent member of the household . . . at the dwelling house or usual place
`of abode of the party.” Docket No. 6. To comply with the Federal Rules of Civil Procedure, service
`may be effected upon an individual “by leaving copies [of the summons and complaint] at the
`individual’s dwelling house or usual place of abode with some person of suitable age and discretion
`then residing therein . . . .” Fed. R. Civ. P. 4(e)(2). Accordingly, the Court concludes that service of
`process on Defendant was adequate.
`B.
`Legal Standard for Awarding Default Judgment
`Pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure, the court may enter a
`default judgment where the clerk, under Rule 55(a), has previously entered the defendant’s default
`based upon a failure to plead or otherwise defend an action. Fed. R. Civ. P. 55; see PepsiCo, Inc. v.
`Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002). The Court, however, may not enter a
`default judgment against an infant or incompetent person unless they are represented in the action by
`a guardian or other such representative. Fed. R. Civ. P. 55(b)(2). Default judgment also cannot be
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`entered against an individual in military service until after the court appoints an attorney to represent
`the defendant. See 50 U.S.C. App. § 521. Here, Plaintiffs have provided sufficient evidence
`demonstrating that Mr. Romero is not an infant, incompetent person, nor a person in the armed
`services. See Kerr Decl. ¶¶ 15-16 & Exs. 5-6. The Court, therefore, may consider entering a default
`judgment against Defendant.
`Entry of default against a defendant, however, does not automatically entitle a plaintiff to a
`court-ordered default judgment. See Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)
`(affirming the district court’s denial of default judgment despite the defendant’s alleged failure to
`answer the complaint). The decision to grant or deny a motion for default judgment is at the
`discretion of the district court. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In
`deciding whether to enter a default judgment, a federal court may consider the following “Eitel”
`factors:
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`(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 v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). “In applying this discretionary standard,
`default judgments are more often granted than denied.” PepsiCo v. Triunfo-Mex, Inc., F.R.D. 431,
`432 (C.D. Cal. 1999).
`Upon an entry of default, the factual allegations of the plaintiff’s complaint are assumed to
`be true, except those relating to damages. See Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th
`Cir. 1977); Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987). See also Fed. R.
`Civ. P. 8(d) (“Averments in a pleading to which a responsive pleading is required, other than those
`as to the amount of damage, are admitted when not denied in the responsive pleading.”). A
`defendant, however, is not held to admit facts that are not “well-pleaded” or to admit conclusions of
`law. Nishmatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). Relief
`accompanying a default judgment is further constrained by the remedies sought in the complaint.
`See Fed. R. Civ. P. 54(c) (“A judgment by default shall not be different in kind from or exceed in
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`amount that prayed for in the [complaint].”); see also Cal. Sec. Cans, 238 F. Supp. 2d at 1175.
`Application of the Eitel Factors
`C.
`After assessing the Eitel factors, the Court finds that they weigh in favor of granting
`Plaintiffs’ Motion For Entry of Default Judgment. Accordingly, the Court recommends that
`Plaintiffs’ Motion be granted.
`1.
`Prejudice to Plaintiffs
`With respect to the first Eitel factor, the Court concludes that Plaintiffs will be significantly
`prejudiced if a default judgment is not entered in their favor. Without an entry of default judgment,
`Plaintiffs would be denied the right to judicial resolution of their claims and would likely be
`“without other recourse for recovery.” Cal. Sec. Cans, 238 F. Supp. 2d at 177. Absent entry of
`default judgment, Plaintiffs also could not receive injunctive relief and Defendant’s infringement
`could continue. See Capitol Records v. Barrera, No. C 06-07212 JSW, 2007 WL 1113949, at *2
`(N.D. Cal. Apr. 13, 2007). As Defendant allegedly continues to engage in acts of infringement
`(Compl. ¶ 15), Plaintiffs would suffer substantial prejudice if the Court declined to enter a default
`judgment.
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`2.
`
`Sufficiency of the Complaint and the Merits of Plaintiffs’ Substantive
`Claims
`Plaintiffs have adequately stated and supported their claim of copyright infringement.
`Section 106 of the Copyright Act provides that “the owner of [a] copyright . . . has exclusive rights
`to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or
`phonorecords; . . . (3) to distribute copies or phonorecords of the copyrighted work to the public by
`sale or other transfer of ownership, or by rental, lease, or lending. . . .” 17 U.S.C. § 106. The statute
`entitles the “legal or beneficial owner of an exclusive right under a copyright . . . to institute an
`action for any infringement of that particular right committed while he or she is the owner of it.” 17
`U.S.C. § 501(b).
`A prima facie case of direct copyright infringement requires that a plaintiff establish: (1)
`ownership of the allegedly infringed material; and (2) that the alleged infringer violated at least one
`exclusive right granted to the copyright holders under 17 U.S.C. § 106. See Marder v. Lopez, 450
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`F.3d 445, 453 (9th Cir. 2006); A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.
`2001); Barrera, 2007 WL 1113949, at *3. Plaintiffs here have satisfied both elements of a copyright
`claim. They have alleged that they own the copyright registrations for the ten sound recordings
`listed
`in Exhibit A of the Complaint. Compl. ¶ 13. They have also provided copies of the copyright
`registrations for these recordings. Jaska Suppl. Decl., Exs. B-K. Plaintiffs also have demonstrated
`that Mr. Romero used an online media distribution system to download the Copyrighted Recordings
`and distribute them to the public or make them available for distribution to others. See Kerr Decl. ¶¶
`3-7; Compl. ¶ 13. The allegations and evidence are therefore sufficient to support a claim for
`copyright infringement.
`3.
`The Sum of Money at Stake
`The sum of money at issue in this action is not disproportionate or unreasonable. See
`Barrera, 2007 WL 1113949, at *3. Plaintiffs seek to recover the minimum amount of statutory
`damages for each of the ten alleged instances of infringement under 17 U.S.C. § 504(c) and costs
`incurred in bringing suit pursuant to 17 U.S.C. § 505. Mot. at 8, 13; 17 U.S.C. §§ 504(c), 505.
`While the Copyright Act allows for an award of attorneys’ fees, Plaintiffs are only seeking to
`recover their costs. See 17 U.S.C. § 505. As Plaintiffs request only the minimum amount of
`statutory damages and costs, this factor also weighs in favor of granting Plaintiffs’ Motion.
`4.
`The Possibility of a Dispute of Material Facts
`There is no apparent dispute concerning the material facts of this case. Defendant has failed
`to appear in the action, and because default has been entered, all well-pleaded allegations in the
`Complaint, except those relating to damages, are assumed to be true. See Discovery Commc’ns, Inc.
`v. Animal Planet, Inc., 172 F. Supp. 2d 1282, 1288 (C.D. Cal. 2001). Furthermore, as noted above,
`Plaintiffs sufficiently alleged and supported the elements of a copyright infringement claim with
`evidence of both copyright ownership and acts of infringement.
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`Whether Default was Due to Excusable Neglect
`5.
`There is also no evidence in the record to suggest that default resulted from Defendant’s
`excusable neglect. Upon discovering Mr. Romero’s identity, Plaintiffs’ counsel sent him a letter
`alerting him to the acts of infringement and advising him to contact Plaintiffs’ representatives to
`resolve the matter before the initiation of litigation. Kerr Decl. ¶ 8. Defendant never responded.
`Kerr Decl. ¶ 9. As discussed above, Plaintiffs properly served Defendant with the Summons and
`Complaint on April 12, 2007 by substituted service. See Docket No. 6 (Summons); Kerr Decl. ¶ 10.
`Plaintiffs also sent Defendant a letter on May 14, 2007, notifying him that he was in default and
`urging Defendant to respond to the Complaint or to contact Plaintiffs’ representatives. Kerr Decl. ¶
`12, Ex. 2. Defendant was also notified on May 25, 2007, that the Clerk of this Court had entered
`default against him. Docket No. 10; Kerr Decl. ¶ 13, Ex. 3. Despite service and notification,
`Defendant has not responded to Plaintiffs’ Complaint or otherwise made an appearance before the
`Court. Accordingly, the Court finds that the default did not result from excusable neglect.
`6.
`Policy Favoring Decisions on the Merits
`The federal courts prefer to decide cases on their merits when “reasonably possible.” Eitel,
`728 F.2d at 1472. This preference, however, is not dispositive. See Kloepping v. Fireman’s Fund,
`No. C 94-2684, 1996 U.S. Dist. LEXIS 1786, at *10 (N.D. Cal. Feb. 13 1996). When a defendant
`fails to answer a plaintiff’s complaint, a decision on the merits is “impractical, if not impossible.”
`Cal. Sec. Cans, 238 F. Supp. at 1177. Therefore, “the preference to decide cases on the merits does
`not preclude a court from granting default judgment.” Kloepping, 1996 U.S. Dist. LEXIS 1786, at
`*10. The Court, therefore, may enter default judgment against Defendant.
`D.
`Relief Sought
`Pursuant to Rule 54(c) of the Federal Rules of Civil Procedure, the relief requested in a
`motion for entry of default judgment may not exceed the remedies sought in the complaint. Fed. R.
`Civ. P. 54(c). Plaintiffs originally sought statutory damages for each infringement of the
`Copyrighted Recordings, costs, reasonable attorneys’ fees and permanent injunctive relief. See
`Docket No. 1; Compl. ¶ 19. Plaintiffs are now seeking $7,500 in statutory damages, $480 in costs
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`and a permanent injunction. Mot. at 1. Plaintiffs have the burden of proving their damages. See
`Cal. Sec. Cans, 238 F. Supp. 2d at 1173.
`1.
`Statutory Damages
`The Copyright Act provides that a “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 . . . in a sum of
`not less than $750 or more than $30,000 as the court considers just.” 17 U.S.C. § 504(c)(1).
`Plaintiffs here have requested only the minimum amount of statutory damages - $750 for each of the
`ten acts of infringement listed in Exhibit A of Plaintiffs’ Complaint.3 The total amount of statutory
`damages sought is $7,500.
`Under Section 504 of the Copyright Act, a plaintiff need not prove actual damages in order
`to receive an award of statutory damages. See L.A. News Serv. v. Reuters Television Int’l, Ltd., 149
`F.3d 987, 996 (9th Cir. 1998), cert. denied 525 U.S. 1141 (1999) (“Because awards of statutory
`damages serve both compensatory and punitive purposes, a plaintiff may recover statutory damages
`whether or not there is adequate evidence of the actual damages suffered by plaintiff. . . .”) (quoting
`Harris v. Emus Records Corp., 734 F.2d 1329, 1335 (9th Cir. 1984)). Statutory damages under the
`Copyright Act are particularly appropriate in cases in which the “defendant has failed to mount any
`defense or to participate in discovery, thereby increasing the difficulty of ascertaining plaintiff’s
`actual damages.” Jackson v. Sturkie, 255 F. Supp. 2d 1096, 1101 (N.D. Cal. 2003).
`Here, the damages sought by Plaintiffs are reasonable and appropriate in light of the finding
`that at least ten of the Plaintiffs’ Copyrighted Recordings were illegally downloaded and distributed.
`See, e.g., Warner Bros. Records Inc. v. Novak, 06-5342 (FLW), 2007 WL 1381748 (D.N.J. May 9,
`2007) (awarding plaintiffs the minimum amount of statutory damages for each instance of
`infringement, costs and injunctive relief); Barrera, 2007 WL 1113949 (same); Priority Records LLC
`v. Rodriguez, CV F 06-0484 AWI LJO, 2007 WL 120033 (E.D. Cal. Jan. 11, 2007) (same); Sony
`Music Entm’t Inc. v. Elias, CV03-6387DT (RCX), 2004 WL 141959 (C.D. Cal. Jan. 20, 2004)
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`3 Plaintiffs are not seeking damages for any of the Copyrighted Recordings listed in Exhibit B.
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`(same). Accordingly, the Court recommends that Plaintiffs be awarded $7,500 in statutory damages
`as requested in the Complaint and Motion.
`2.
`Costs
`Rule 54 of the Federal Rules of Civil Procedure states that “[e]xcept when express provision
`therefor is made either in statute of the United States or in these rules, costs other than attorneys’
`fees shall be allowed as of course to the prevailing party. . . .” Fed. R. Civ. P. 54(d)(1). Entry of
`default judgment constitutes success on the merits. See Sony Music Entm’t v. Global Arts Prods., 45
`F. Supp. 2d 1345, 1347 (S.D. Fla. 1999). Plaintiffs have incurred cost of $350 for filing the lawsuit
`and $130 for service of process. Kerr Decl. ¶ 17 (filing fee); Jaska Suppl. Decl., ¶ 3 & Ex. A
`(service of process fee). Local Rule 54-3(a) specifically allows the Court to award such expenses.
`N.D. Cal. Civ. R. 54-3(a). The Court therefore recommends that Plaintiffs receive $480 in costs.
`3.
`Injunctive Relief
`Plaintiffs also request that the Court issue a permanent injunction to enjoin Defendant’s
`copyright infringement. Specifically, Plaintiffs request that the Court issue the following injunction:
`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 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 these downloaded
`recordings transferred onto any physical medium or device in
`Defendant’s possession, custody, or control.
`
`Mot. at 8-9. This is the same injunction prayed for in the Complaint. See Docket No. 1.
`The Copyright Act authorizes the Court to grant a permanent injunction “on such terms as it
`may deem reasonable to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502(a). In
`general, evidence of copyright infringement and the threat of future violations is sufficient to
`warrant the granting of a permanent injunction. Sega Enters. Ltd. v. Maphia, 948 F. Supp. 923, 940
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`United States District Court
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`Case3:07-cv-01451-JSW Document22 Filed08/14/07 Page11 of 15
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`(N.D. Cal. 1996) (finding that continued access to the equipment that allowed defendant to illegally
`download and distribute game programs constituted a threat of future copyright violations); see also
`MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 520 (9th Cir. 1993) (finding that a computer
`servicing company that maintained computers in its inventory with protected software presented a
`threat of future copyright violations and warranted an injunction); Twentieth Century Fox Film
`Corp. v. Streeter, 438 F. Supp. 2d 1065, 1072 (D. Ariz. 2006) (granting a permanent injunction upon
`entry of default judgment in a copyright infringement action).
`The Court may consider four factors in determining whether to issue a permanent injunction:
`(1) irreparable harm; (2) success on the merits; (3) a balancing of competing claims of injury to the
`parties; and (4) consideration of the public interest. Global Arts Prods., 45 F. Supp. 2d at 1347.
`“Injunctive relief is a traditional remedy for copyright infringement and is especially favored where
`there is a history of continuing infringement and a substantial threat of continued infringement. In
`such a case, a district court ought not only to issue a broad permanent injunction protecting present
`works, but can protect works not yet created.” Id (citations omitted).
`The elements required for issuing a permanent injunction are satisfied here. Evidence of
`copyright infringement is presumed to give rise to irreparable harm. See Elektra Entm’t Group Inc.
`v. Bryant, No. CV 03-6381GAF (JTLX), 2004 WL 783123, at *17 (C.D. Cal. Feb. 13, 2004); see
`also Micro Star v. Formgen Inc., 154 F.3d 1107, 1109 (9th Cir. 1998) (“[I]n a copyright
`infringement claim, a showing of a reasonable likelihood of success on the merits raises a
`presumption of irreparable harm.”). The entry of default against Defendant establishes success on
`the merits for Plaintiffs and therefore irreparable harm is presumed. See Rodriguez, 2007 WL
`120033, at *5.
`Plaintiffs also have adequately demonstrated that they will suffer irreparable harm if
`Defendant is not permanently enjoined. Defendant’s use of an online media distribution system to
`download and distribute copyrighted materials leaves Plaintiffs’ Copyrighted Recordings vulnerable
`to “massive, repeated, and worldwide infringement.” Twentieth Century Fox, 438 F. Supp. 2d at
`1073. “When digital works are distributed via the internet . . . every downloader who receives one
`of the copyrighted works from Defendant is in turn capable of also transmitting perfect copies of the
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`For the Northern District of California
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`United States District Court
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`Case3:07-cv-01451-JSW Document22 Filed08/14/07 Page12 of 15
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`works. Accordingly, the process is potentially exponential rather than linear, threatening virtually
`unstoppable infringement of the copyright.” Id. at 1073 n.2. Furthermore, Defendant’s failure to
`appear in this action provides the Court with no assurance that the Defendant’s infringement will not
`continue. See Jackson, 255 F. Supp. 2d at 1103. The Court also cannot discern any detriment to
`Defendant that would outweigh the harm to Plaintiffs if an injunction were issued.
`The public interest also weighs in favor of granting a permanent injunction in this case.
`Injunctions issued pursuant to Section 502 of the Copyright Act serve the public interest by
`upholding copyright protections. See Autoskill Inc. v. Nat’l Educ. Support Sys., Inc., 994 F.2d 1476,
`1499 (10th Cir. 1993). As noted by the Third Circuit, “the public interest can only be served by
`upholding copyright protections and . . . preventing the misappropriation of the skills, creative
`energies, and resources which are invested in the protected work.” Apple Computer, Inc. v. Franklin
`Computer Corp. 714 F.2d 1240, 1255 (3d Cir. 1983). Accordingly, the Court finds that permanent
`injunctive relief is appropriate in this case.
`Rule 65 of the Federal Rules of Civil Procedure requires that “[e]very order granting an
`injunction . . . shall set forth the reasons for its issuance; shall be specific in terms; [and] shall
`describe in reasonable detail . . . the act or acts sought to be restrained. . . .” Fed. R. Civ. P. 65(d).
`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. ” Iconix, Inc. v. Tokuda, 457 F.
`Supp. 2d 969, 998-1002 (N.D. Cal. 2006) (citing Price v. City of Stockton, 390 F.3d 1105, 1117 (9th
`Cir. 2004). As recently noted by the Court in a nearly identical action with plaintiffs seeking the
`same injunction as requested here, the form and scope of Plaintiffs’ proposed injunction is in large
`part reasonable and appropriate.4 See 06-04913 JSW (JCS) Warner Bros. Records Inc. v. Pinheiro.
`Plaintiffs justifiably seek to prohibit the infringement not only of Plaintiffs’ existing
`copyrighted recordings, but also future copyrighted recordings not yet created. Mot. at 12. An
`injunction protecting against infringement of future copyrighted works is permitted, and it is
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`4 The Court acknowledges that judges both within and outside of this District have come to
`differing conclusions with respect to the specific language of permanent injunctions issued in this type
`of copyright infringement action.
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`For the Northern District of California
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`United States District Court
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`Case3:07-cv-01451-JSW Document22 Filed08/14/07 Page13 of 15
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`appropriate to grant such an injunction upon entry of default judgment. Universal City Studios v.
`Martinez, No. 06-01128 OWW-SMS, 2007 WL 587185, at *5 (E.D. Cal. Feb. 26, 2007) (citing
`Princeton Univ. Press v. Michigan Document Serv. Inc., 99 F.3d 1381, 1392-93 (6th Cir. 1996))
`(“The weight of authority supports the extension of injunctive relief to future works.”); see also
`Global Arts Prods., 45 F. Supp. 2d at 1347-48 (granting a permanent injunction protecting both
`current and future copyrighted works). It is also proper upon a showing of infringement to order the
`destruction of all copies or phonorecords made or used in violation of the copyright owner’s
`exclusive rights. 17 U.S.C. § 503(b); Martinez, 2007 WL 587185, at *5.
`Plaintiffs are also entitled to an injunction that covers the Copyrighted Recordings and any
`sound recordings owned or controlled by Plaintiffs or to which Plaintiffs are the licensees of
`exclusive rights. See Capitol Records, Inc. v. Schmidt, No. 06-5433 SC, 2007 WL 155577, at *5
`(N.D. Cal. June 7, 2007) (citin