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`Case No.: 10-CV-01917-LHK
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`ORDER GRANTING IN PART MOTION
`FOR DEFAULT JUDGMENT
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` Defendants.
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`Plaintiff Autodesk, Inc., moves for default judgment against Defendants Guillermo Flores,
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`Greg Flowers, and Gregorio Flores. Although Plaintiff initially had some contact with Defendants
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`regarding possible settlement of the case, Defendants did not file an Answer or otherwise appear in
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`this case. The Court has considered the motion and declarations submitted by Plaintiff. Pursuant
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`to Civil Local Rule 7-1(b), the Court finds that this motion is appropriate for determination without
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`oral argument and vacates the motion hearing scheduled for February 3, 2011. For the reasons set
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`forth below, the Court grants Plaintiff’s motion for default judgment, permanent injunction,
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`statutory damages, and post-judgment interest. The Court denies Plaintiff’s request for costs and
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`attorney’s fees without prejudice.
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`Case No.: 10-CV-01917-LHK
`ORDER GRANTING IN PART MOTION FOR DEFAULT JUDGMENT
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`AUTODESK, INC., a Delaware
`corporation,
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` Plaintiff,
`v.
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`GUILLERMO FLORES, an individual;
`GREG FLOWERS, an individual;
`GREGORIO FLORES, an individual; and
`DOES 1 through 10, inclusive,
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`Case5:10-cv-01917-LHK Document43 Filed01/31/11 Page2 of 17
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`I. Background
`Plaintiff Autodesk, Inc., develops, markets, distributes, and licenses a variety of
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`copyrighted software products, including computer aided design programs. First Amended Compl.
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`(“FAC”) ¶¶ 11, 16-17. Its copyrights are registered with the Copyright Office and cover products
`including AutoCAD® 2009 software and AutoCAD® 2010 software, as well as numerous other
`products. FAC ¶ 16. Autodesk also owns trademarks associated with its products, including the
`trademarks AutoCAD® and Autodesk®, which are registered with the United States Patent and
`Trademark Office. FAC ¶19.
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`According to the memorandum and declarations submitted in support of its motion for
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`default judgment, Autodesk began investigating the conduct underlying this action in October
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`2009, when it received an email notifying it that advertisements offering illegal copies of Autodesk
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`products had been posted on the website www.craigslist.org (“Craigslist”). Decl. of Evelyn R.
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`LaHaie (“LaHaie Decl.”) ¶ 9 & Ex. A. The initial advertisement was titled “AutoCAD 2009
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`AutoCAD 2010” and indicated that the seller was located in San Diego, California. The
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`advertisement offered to sell copies of the two Autodesk products and stated “you’re getting a
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`$4,000.00 program for 70 bucks.Please [sic] save the questions like, does it come with the manual
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`and box, etc. It’s the full program, it works. You save tons of money.” Decl. of Eric A. Handler
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`(“Handler Decl.”) ¶ 2 & Ex. A. At the time, the suggested retail price for the Autodesk products
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`was $3,995. LaHaie Decl. ¶ 4. The ad also instructed interested buyers to “Call, text, or email”
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`and provided a telephone number. Handler Decl. ¶ 2 & Ex. A. The person who emailed Autodesk
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`about the ad stated that when he contacted the seller and asked if the products were original, the
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`seller responded with the following email:
`They’re backed up from an original bro. I sell several a week and have no
`complaints about me on craigslist or anything negative for that matter. I can help
`install prior to payment to show you it works just fine. If not no problem however
`you won't find this 4,000 dollar program for such a good price. Take care.
`- Memo
`LaHaie Decl. Ex. A.
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`Case No.: 10-CV-01917-LHK
`ORDER GRANTING IN PART MOTION FOR DEFAULT JUDGMENT
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`Case5:10-cv-01917-LHK Document43 Filed01/31/11 Page3 of 17
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`Subsequent investigation indicated that Defendant Gregorio Flores, aka Greg Flowers,1 had
`posted numerous ads on Craigslist offering various versions of several different Autodesk products,
`including AutoCAD® software, AutoCAD® Civil 3D® software, Autodesk® Revit® software, and
`Autodesk® 3ds Max® software. Handler Decl., ¶¶ 6, 7, 10-13, Ex. D. Autodesk’s investigator
`purchased one of the products advertised by Defendants on Craigslist and received by mail a
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`recordable digital videodisc (“DVD+R”) on which was hand-written “AUTOCAD 2010.” Id. at
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`¶ 5 & Ex. E. Autodesk subjected the disc to forensic analysis and determined that it contained an
`unauthorized copy of AutoCAD® 2010 software, as well as software used to circumvent the
`copyright protection measures built into the AutoCAD® 2010 software. LaHaie Decl. Ex. C. The
`disc also contained instructions for installing the AutoCAD® software in conjunction with the
`circumvention software so that the AutoCAD® software could be run without an activation code
`from Autodesk. Id.
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`Based on the information from its investigations, Autodesk filed the instant action on May
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`4, 2010, against Defendants Greg Flowers and Gregorio Flores, asserting the following four claims:
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`(1) copyright infringement in violation of 17 U.S.C. § 501; (2) violation of the circumvention
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`technology provisions of the Digital Millennium Copyright Act, 17 U.S.C. §§ 1201(a), (b); (3)
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`trademark infringement and counterfeiting, in violation of 15 U.S.C. §§ 1114(1) and 1125(a); and
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`(4) false designation of origin, in violation of 15 U.S.C. § 1125(a). Further investigation revealed
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`that Guillermo Flores was the owner of the telephone number listed on the Craigslist ads and had
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`lived at the return address listed on the package received by Autodesk’s investigator. Accordingly,
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`on May 12, 2010, Autodesk filed a First Amended Complaint adding Guillermo as a defendant.
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`Handler Decl. ¶ 7. By June 18, 2010, Autodesk had served all Defendants with the First Amended
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`Complaint. See Certificate of Service, ECF Nos. 12-14. Around the same time, Autodesk also
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`contacted Defendants to determine whether litigation might be avoided. Id. at ¶ 9. In an initial
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`phone conference, Autodesk was able to confirm that Defendants used the names, addresses, and
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`phone number associated with the ads, and Defendants gave Autodesk access to one PayPal
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`1 It appears that Gregorio Flores uses the name “Greg Flowers” as an alias and that Gregorio Flores
`and Greg Flowers are in fact one person. See Handler Decl. ¶ 10.
`3
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`Case No.: 10-CV-01917-LHK
`ORDER GRANTING IN PART MOTION FOR DEFAULT JUDGMENT
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`For the Northern District of California
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`United States District Court
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`Case5:10-cv-01917-LHK Document43 Filed01/31/11 Page4 of 17
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`account apparently owned by Gregorio and used by Guillermo to conduct business. Id. at ¶ 13.
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`However, out-of-court talks eventually broke down, and Autodesk gave Defendants notice that it
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`would seek entry of default if Defendants did not file and serve responses to the First Amended
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`Complaint by August 23, 2010. Id. at 23. Defendants failed to respond to the Autodesk’s
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`pleadings, and on September 2, 2010, the clerk entered default. Autodesk now moves for entry of
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`default judgment and issuance of a permanent injunction against all Defendants. Autodesk also
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`seeks an award of attorney’s fees incurred in this action.
`II. Motion for Default Judgment
`A. Default Judgment
`Under Federal Rule of Civil Procedure 55(b)(2), a party may apply to the court for entry of
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`judgment by default. “The district court’s decision whether to enter a default judgment is a
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`discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In exercising
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`discretion to enter default judgment, courts typically consider the following factors: (1) the
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`possibility of prejudice to plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the
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`sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a
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`dispute concerning the material facts, (6) whether the default was due to excusable neglect, and (7)
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`the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.
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`Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).
`1.
`After entry of default, “well-pled allegations in the complaint regarding liability are deemed
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`Merits of Plaintiff’s Claims and Sufficiency of the Complaint
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`true.” Fair Housing of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). The Court will
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`therefore consider the merits of Autodesk’s claims and the sufficiency of its pleadings together. In
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`addition to the allegations in its FAC, Autodesk has also submitted extensive documentation of
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`Defendants’ advertisements on Craiglist and on-line transactions via PayPal, as well as detailed
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`declarations documenting Autodesk’s investigation of Defendants’ activities. The Court will also
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`consider these submissions in evaluating the merits of Autodesks’s substantive claims.
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`Case No.: 10-CV-01917-LHK
`ORDER GRANTING IN PART MOTION FOR DEFAULT JUDGMENT
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`Case5:10-cv-01917-LHK Document43 Filed01/31/11 Page5 of 17
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`a. Copyright Infringement
`Autodesk’s first cause of action asserts copyright infringement in violation of 17 U.S.C.
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`§ 501. The Copyright Act grants the copyright owner the exclusive right to reproduce a
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`copyrighted work, to distribute copies of the work, and to authorize reproduction or distribution.
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`See 17 U.S.C. § 106(1)-(3). To establish copyright infringement, a plaintiff must prove: (1)
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`ownership of a valid copyright, and (2) that the defendant violated at least one exclusive right
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`granted to plaintiff under 17 U.S.C. § 106. A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004,
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`1013 (9th Cir. 2001). Autodesk has clearly met this standard. As to the first element, the FAC
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`alleges that Autodesk owns copyrights in at least fourteen different Autodesk products, including
`the AutoCAD® 2010 and AutoCAD® 2009 software explicitly offered in Defendants’ Craiglist
`advertisements. See FAC ¶ 17 & Ex. A; Handler Decl. Exs. A-D. These copyrights are registered
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`with the Copyright Office, and Autodesk has provided a list of the registration numbers,
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`registration dates, and product titles as an exhibit to the FAC. FAC Ex. A. As to the second
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`element of infringement, Autodesk alleges that Defendants copied and distributed copyrighted
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`Autodesk products without authorization. FAC ¶ 22. Autodesk has also submitted declarations
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`stating that forensic analysis of a product purchased from Defendants included an unauthorized
`copy of AutoCAD® 2010 software. LaHaie Decl. ¶ 11 & Ex. C. These allegations are sufficient to
`establish a claim for copyright infringement pursuant to 17 U.S.C. § 501.
`b. Circumvention of Technological Measures
`Autodesk’s second cause of action alleges that Defendants sold, distributed, or trafficked in
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`circumvention technology, in violation of the Digital Millennium Copyright Act (“DMCA”), 17
`U.S.C. §§ 1201(a)-(b).2 FAC ¶¶ 22, 29-31. The DCMA prohibits the sale or trafficking in “any
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`2 The FAC does not identify which subsections within §§ 1201(a) and (b) Defendants allegedly
`violated. In its motion, however, Autodesk indicates that it intended to allege violations of 17
`U.S.C. §§ 1201(a)(1)(A), (a)(2), and (b)(1). The Federal Circuit has described the differences
`between these sections as follows: “Defendants who traffic in devices that circumvent access
`controls in ways that facilitate infringement may be subject to liability under § 1201(a)(2).
`Defendants who use such devices may be subject to liability under § 1201(a)(1) whether they
`infringe or not. Because all defendants who traffic in devices that circumvent rights controls
`necessarily facilitate infringement, they may be subject to liability under § 1201(b).” Chamberlain
`Group, 381 F.3d at 1195 (emphasis added). The FAC is focused on allegations that Defendants
`sold or trafficked in circumvention technology and does not allege that they actually used the
`technology themselves. Thus, Autodesk does not appear to have pled a claim under
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`Case No.: 10-CV-01917-LHK
`ORDER GRANTING IN PART MOTION FOR DEFAULT JUDGMENT
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`For the Northern District of California
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`United States District Court
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`Case5:10-cv-01917-LHK Document43 Filed01/31/11 Page6 of 17
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`technology, product, service, device, component, or part thereof” that is primarily designed “for the
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`purpose of circumventing a technological measure that effectively controls access to a work
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`protected under [federal copyright laws].” 17 U.S.C. § 1201(a)(2). The Federal Circuit has stated
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`that a plaintiff alleging a violation of § 1201(a)(2) must prove:
`(1) ownership of a valid copyright on a work, (2) effectively controlled by a
`technological measure, which has been circumvented, (3) that third parties can
`now access (4) without authorization, in a manner that (5) infringes or facilitates
`infringing a right protected by the Copyright Act, because of a product that (6) the
`defendant either (i) designed or produced primarily for circumvention; (ii) made
`available despite only limited commercial significance other than circumvention;
`or (iii) marketed for use in circumvention of the controlling technological
`measure.
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`Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178, 1203 (Fed. Cir. 2004). The
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`DCMA provides that a technological measure “effectively controls access to a work” if the
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`measure, in the ordinary course of its operation, requires the application of information, with the
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`authority of the copyright owner, to gain access to the work. Id. § 1201(a)(3)(B). The DMCA
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`defines “circumvent a technological measure” to include avoiding, bypassing, removing,
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`deactivating, or impairing a technological measure, without the authority of the copyright owner.
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`17 U.S.C. § 1201(a)(3)(A).
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`Here, Autodesk alleges that Defendants trafficked in technology primarily designed to
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`circumvent a technological measure that effectively controls access to one or more of Autodesk’s
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`software products. FAC ¶¶ 14(b), 22(b)-(c). Autodesk also provides declarations establishing that
`the AutoCAD® 2010 software includes technology that controls access to the copyrighted work by
`requiring users to input an activation code provided by Autodesk. See LaHaie Decl. ¶ 12.
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`Autodesk claims, moreover, that the disc its investigator purchased from Defendants contained
`software and instructions designed to permit access to the AutoCAD® 2010 software without an
`activation code, thereby bypassing Autodesk’s access controls. Id. at ¶ 11-12 & Ex. C. These
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`§ 1201(a)(1)(A). In addition, although the difference between § 1201(a)(2) and (b)(1) is not
`entirely clear, Autodesk’s claim appears to better correspond to § 1201(a)(2), which bars
`circumvention of measures that require authorization to access a work, than to § 1201(b), which
`bars circumvention of measures that prevent the exercise of rights belonging to the copyright
`owner. Because Autodesk seeks damages only for a single violation of § 1201, the Court will
`consider its claim solely under § 1201(a)(2).
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`Case No.: 10-CV-01917-LHK
`ORDER GRANTING IN PART MOTION FOR DEFAULT JUDGMENT
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`allegations are sufficient to establish that Defendants trafficked in technology primarily designed to
`circumvent the technological measures that control access to Autodesk’s copyrighted AutoCAD®
`2010 software. Accordingly, Autodesk has established a claim for violations of the DCMA.
`c. Trademark Infringement and Counterfeiting
`Autodesk’s third cause of action alleges trademark infringement and counterfeiting under
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`Sections 32(1) and 43(a) of the Lanham Act, 15 U.S.C. §§ 1114(1) and 1125(a). To prove
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`trademark infringement, Autodesk must show: (1) it has a valid, protectable trademark; (2)
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`Defendants have used in commerce without authorization a copy, reproduction, counterfeit or
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`colorable imitation of Autodesk’s mark in connection with the sale, distribution, or advertising of
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`goods and services; and (3) Defendants’ use of the mark is likely to cause confusion. See Applied
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`Info. Scis. Corp. v. eBay, Inc., 511 F.3d 966, 969 (9th Cir. 2007); Brookfield Communications, Inc.
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`v. West Coast Entertainment Corp., 174 F.3d 1036, 1046 & n.6 (9th Cir. 1999); 15 U.S.C.
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`§§ 1114(1), 1125(a). Registration of a mark on the principal register in the Patent and Trademark
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`Office is prima facie evidence of the validity of the mark. See Applied Info., 511 F.3d at 970.
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`Autodesk alleges that it owns trademarks registered with the Patent and Trademark Office,
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`including the AutoCAD® and Autodesk® marks, and Autodesk lists its trademarks, registration
`numbers, and registration date in an exhibit to the FAC. FAC ¶ 19 & Ex. B. The FAC also alleges
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`that Defendants used Autodesk’s trademarks, without authorization, in Internet commerce and on
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`unauthorized copies of Autodesk products, and that such use has caused consumer confusion as to
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`the source, quality, or nature of the unauthorized and unlicensed goods sold by Defendants. FAC
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`¶¶ 34-39. In support of these allegations, Autodesk has submitted copies of Craigslist ads allegedly
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`posted by Defendants that offer “AutoCAD” and “Autodesk” software. Handler Decl. Exs. B, D.
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`These ads also include claims that the product offered is “the full suite, not a trial or demo,” a “full
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`version program,” and “the full suite, fully activated license guaranteed.” Id. This use of
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`Autodesk’s marks could certainly cause confusion and lead consumers to believe that they are
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`purchasing software authorized and licensed by Autodesk, when in fact they are not. Accordingly,
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`the Court agrees that Autodesk has sufficiently established a claim for trademark infringement.
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`Case No.: 10-CV-01917-LHK
`ORDER GRANTING IN PART MOTION FOR DEFAULT JUDGMENT
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`d. False Designation of Origin and False Descriptions
`Autodesk’s fourth and final cause of action alleges false designation of origin and false
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`descriptions in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Section 43(a)
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`prohibits the use in commerce of
`any word, term, name, symbol, or device, or any combination thereof, or any false
`designation of origin, false or misleading description of fact, or false or
`misleading representation of fact, which –
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`(A) is likely to cause confusion, or to cause mistake, or to deceive as to the
`affiliation, connection, or association of such person with another person, or as to
`the origin, sponsorship, or approval of his or her goods, services, or commercial
`activities by another person, or
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`(B) in commercial advertising or promotion, misrepresents the nature,
`characteristics, qualities, or geographic origin of his or her or another person's
`goods, services, or commercial activities,
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`15 U.S.C. § 1125(a). Autodesk alleges that Defendants used the Autodesk trademark to falsely
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`designate the origin of their products and made misleading descriptions of fact concerning those
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`products. FAC ¶ 44. Autodesk further alleges that these false designations and descriptions have
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`caused consumer confusion regarding the affiliation of Autodesk with Defendants’ products and
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`the approval by Autodesk of Defendants’ products. FAC ¶ 45. In addition, as discussed above,
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`Autodesk has submitted copies of advertisements in which Defendants used the Autodesk
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`trademark and suggest that they are selling fully licensed versions of Autodesk software. Handler
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`Decl. Exs. B, D. This false description of Defendants’ products and use of Autodesk’s trademarks
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`could lead consumers to believe that Defendants are offering products affiliated with and
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`originated by Autodesk. Thus, Autodesk has sufficiently established a claim for false designation
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`of origin and false description.
`2.
`Remaining Eitel Factors
`Based on the above analysis, the Court concludes that Autodesk’s well-pleaded complaint
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`and the merits of its substantive claims favor entry of default judgment. The Court also finds that
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`the remaining Eitel factors support Autodesk’s motion. First, Autodesk will be prejudiced if
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`default judgment is not entered. Because Defendants have refused to respond to the FAC or
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`Case No.: 10-CV-01917-LHK
`ORDER GRANTING IN PART MOTION FOR DEFAULT JUDGMENT
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`otherwise take part in the litigation, Autodesk will be denied the right to adjudicate its claims and
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`obtain relief if default judgment is not granted. Second, as to the sum of money at stake, Autodesk
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`seeks $102,500 in statutory damages. Although entry of default judgment may not be appropriate
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`where a large sum of money is at stake, see Eitel v. McCool, 782 F.2d at 1472, here the damages
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`sought are statutory, and the amount is left to the Court’s discretion. Moreover, Autodesk seeks
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`damages based only on two instances of copyright and trademark infringement and one instance of
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`trafficking in circumvention technology, even though there is evidence to suggest that Defendants’
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`infringing activities may have been more extensive. Third, given Defendants’ admissions to
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`Autodesk and the evidence submitted with Autodesk’s motion, it seems unlikely that the case
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`would be subject to serious disputes concerning the material facts. Fourth, it does not appear that
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`Defendants’ default was due to excusable neglect. Autodesk had two telephone conferences with
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`Defendants, served them with all litigation documents, and gave notice that Autodesk would seek
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`default judgment if Defendants failed to respond to the First Amended Complaint by a specified
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`date. Handler Decl. ¶¶ 20-22. Defendants thus had notice and plenty of opportunity to appear in
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`this litigation before Autodesk moved for default judgment. Finally, although federal policy favors
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`decisions on the merits, it does not appear that resolution on the merits will be possible in this case.
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`Based on this analysis of the Eitel factors, the Court concludes that entry of default judgment is
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`appropriate and GRANTS the motion for default judgment.
`B. Determination of Relief
`In its motion for default judgment, Autodesk seeks a permanent injunction and statutory
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`damages in the amount of $102,500 based on two instances of copyright infringement, two
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`instances of trademark infringement, and one instance of trafficking in circumvention technology.
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`Autodesk also seeks an award of costs, reasonable attorney’s fees, and post-judgment interest. The
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`Court will consider each form of requested relief in turn.
`1.
`Autodesk seeks issuance of a permanent injunction under the Copyright Act, 17 U.S.C.
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`Injunctive Relief
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`§ 502(a), the Digital Millennium Copyright Act, 17 U.S.C. § 1203(b)(1), and the Lanham Act, 15
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`U.S.C. §§ 1114(2) and 1116(a). These statutes permit the issuance of a permanent injunction to
`9
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`Case No.: 10-CV-01917-LHK
`ORDER GRANTING IN PART MOTION FOR DEFAULT JUDGMENT
`
`For the Northern District of California
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`United States District Court
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`prevent future infringement. A plaintiff seeking a permanent injunction must demonstrate: “ (1)
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`that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary
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`damages, are inadequate to compensate for that injury; (3) that, considering the balance of
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`hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the
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`public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange,
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`L.L.C., 547 U.S. 388, 391 (2006).
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`In this case, each of these four factors supports granting a permanent injunction. With
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`regard to the first two factors, copyright and trademark infringement are generally presumed to
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`give rise to irreparable harm for which there is no adequate remedy at law. Marlyn Nutraceuticals,
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`Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 877 (9th Cir. 2009) (“[i]n a trademark
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`infringement claim, irreparable injury may be presumed from a showing of likelihood of success
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`on the merits”) (quotation marks and citation omitted); Cadence Design Systems, Inc. v. Avant!
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`Corp., 125 F.3d 824, 826-27 (9th Cir. 1997) (“a presumption of irreparable injury arises if the
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`plaintiff is able to show a likelihood of success on the merits of its copyright infringement claim”);
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`Century 21 Real Estate Corp. v. Sanlin, 846 F.2d 1175, 1180-81 (9th Cir. 1988) (“Injunctive relief
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`is the remedy of choice for trademark and unfair competition cases, since there is no adequate
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`remedy at law for the injury caused by a defendant’s continuing infringement.”). As to the third
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`factor, while Autodesk will be harmed by continued infringement, the Court perceives no potential
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`harm to Defendants as an injunction would simply require them to comply with the Copyright and
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`Lanham Acts. As to the fourth factor, a permanent injunction would likely serve the public interest
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`by reducing consumer confusion, see Internet Specialties West, Inc. v. Milon-DiGiorgio
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`Enterprises, Inc., 559 F.3d 985, 993 (9th Cir. 2009), and by “upholding” the rights that “Congress
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`has elected to grant . . . to the owner of a copyright in a protected work.” Apple Computer, Inc. v.
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`Franklin Computer Corp., 714 F.2d 1240, 1255 (3d Cir. 1983) (quoting Klitzner Industries, Inc. v.
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`H. K. James & Co., Inc., 535 F. Supp. 1249, 1259-60 (D. Pa. 1982)).
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`The Court notes, in addition, that Autodesk has submitted evidence indicating that
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`Defendants posted numerous advertisements during 2009 and 2010 offering products that infringed
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`Autodesks copyrights and trademarks. Defendants’ unwillingness to appear in this matter has
`10
`
`Case No.: 10-CV-01917-LHK
`ORDER GRANTING IN PART MOTION FOR DEFAULT JUDGMENT
`
`For the Northern District of California
`
`United States District Court
`
`

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`given the Court no assurance that they will cease their infringing activities and makes it difficult
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`for Autodesk to prevent further infringement. Based on these facts and the analysis above, the
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`court finds that Autodesk is entitled to a permanent injunction.
`2.
`The Copyright Act authorizes statutory damages of up to $30,000 per infringed work. 17
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`Statutory Damages
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`U.S.C. § 504(c)(1). In cases where the copyright owner sustains the burden of proving that the
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`infringement was committed willfully, the Copyright Act authorizes enhanced statutory damages of
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`up to $150,000 per infringed work. Id. § 504(c)(2). The Lanham Act, similarly, authorizes
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`statutory damages of up to $200,000 per mark, as well as enhanced statutory damages of up to $2
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`million per mark for willful infringement. 15 U.S.C. § 1117(c). In addition, under the DMCA, a
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`copyright owner can receive an award of up to $2,500 in statutory damages for each act of
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`circumvention or for each circumventing product. 17 U.S.C. § 1203(c)(3). Here, Autodesk argues
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`that Defendants acted willfully and requests the following statutory damages: enhanced statutory
`damages of $30,000 each for infringement of the copyrighted AutoCAD® 2009 and AutoCAD®
`2010 software ($60,000 total); enhanced statutory damages of $20,000 each for infringement of the
`AutoCAD® and Autodesk® trademarks ($40,000 total); and the statutory maximum of $2,500 for
`one instance of trafficking in circumvention technology, as documented by Autodesk’s
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`investigator. In the aggregate, Autodesk seeks $102,500 in statutory damages.
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`As a threshold matter, the Court agrees that there is sufficient evidence to support a finding
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`that Defendants’ conduct was willful. Under the Copyright and Lanham Acts, willfulness may be
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`found where the defendant’s infringing actions are undertaken either with knowledge that the
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`conduct constitutes infringement or with reckless disregard for the copyright or trademark owner’s
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`rights. See In re Barboza, 545 F.3d 702, 707-08 (9th Cir. 2008) (discussing willfulness standard in
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`copyright cases); Philip Morris USA, Inc. v. Castworld Products, Inc., 219 F.R.D. 494, 501 (C.D.
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`Cal. 2003) (noting that “courts faced with determining statutory damages under the [Lanham] Act
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`have analogized to the body of case law interpreting a similar provision in the Copyright Act”).
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`Willfulness may also be inferred or admitted based on a defendant’s failure to defend. See Derek
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`Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008) (“all factual allegations in
`11
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`Case No.: 10-CV-01917-LHK
`ORDER GRANTING IN PART MOTION FOR DEFAULT JUDGMENT
`
`For the Northern District of California
`
`United States District Court
`
`

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`the complaint are deemed true, including the allegation of [defendant’s] willful infringement”);
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`Philip Morris, 219 F.R.D. at 500 (accepting allegations of willfulness as true upon default).
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`In this case, Autodesk has both alleged willful infringement, FAC ¶¶ 23, 25, 29, 33, and
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`submitted evidence that strongly supports a finding of willfulness. As noted above, Defendants
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`posted numerous ads that used Autodesk’s registered trademarks, without authorization, to sell
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`pirated copies of Autodesk’s copyrighted software. Many of these ads contained a “disclaimer”
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`stating that “you’re getting a $4,000.00 program for 70 bucks.Please save the questions like, does it
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`come with the manual and box, etc.” Handler Decl. Ex. A, B. Other ads state, “if it’s cardboard
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`and a piece of paper you want, you can pay over 1-2,000 dollars.” Id. Ex. C. This language
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`suggests that Defendants knew that they were offering unauthorized versions of Autodesk’s
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`software and were at least reckless in their disregard for Autodesk’s rights in its copyrighted
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`software and registered trademarks. Moreover, Defendants’ products contained software and
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`instr