Case 3:10-cv-01773-BEN-NLS Document 22 Filed 02/08/11 Page 1 of 5
`Case 3:10—cv—O1773—BEN—NLS Document 22 Filed 02/08/11 Page 1 of 5
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`PERFECT 10, INC.,
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`CASE NO. 10cv1773 BEN (NLS)
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`ORDER GRANTING DEFAULT
`JUDGMENT AGAINST
`DEFENDANTS
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`NETSAITS B.V., et al.,
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`[Dkt. Nos. 15-16.]
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`INTRODUCTION
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`Plaintiff Perfect 10, Inc. moves for default judgment against Defendants Netsaits B.V.,
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`Netsaits Holding B.V., Jennsights, Inc., and Gerco Marsch seeking $780,000 in statutory damages,
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`$7,850 in costs and attomey’s fees, and an injunction against further infringing conduct. Dkt. No.
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`16. Defendants have not appeared or filed any opposition to the motion. Plaintiff brought this action
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`for copyright infringement and violation of California’s Unfair Competition Law (“UCL”) for
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`Defendants’ copy and display ofPlaintiffs copyrighted images. Dkt. No. 5. For the reasons set forth
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`below, the Court GRANTS Plaintiffs motion for default judgment, awards $292,500 in statutory
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`damages, $7,850 in attorney’s fees and costs, and issues a permanent injunction against further
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`infringement by Defendants.
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`Case 3:10-cv-01773-BEN-NLS Document 22 Filed 02/08/11 Page 2 of 5
`Case 3:10—cv—O1773—BEN—NLS Document 22 Filed ‘O2/O8/11 Page2of5
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`BACKGROUND
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`Plaintiff designs and creates copyrighted images, including photographs, magazines, and
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`video productions. First Am. Compl. (“FAC”) 1] 9. Plaintiff owns and operates a website where
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`consumers can pay a fee to access Plaintiffs copyrighted material. FAC 1] 12. Plaintiff’ s revenues
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`are primarily derived from sales of these membership fees. FAC 1] 13. Plaintiff owns thousands of
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`copyrighted photographs and video productions. FAC 11 14.
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`Plaintiff alleges that Defendants operate a number of infringing websites, some of which
`charge monthly memberships to access the content. FAC111] 4, 17-18. Defendants have allegedly
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`copied, stored, displayed, and distributed thousands ofPlaintiff’ s copyrighted images and video clips
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`without Plaintiffs permission. FAC 1111 5, 28-39.
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`Defendant Jennsights was served on October 1, 2010, and the other Defendants were served
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`on October 19, 2010. Dkt. Nos. 7-8, 10, 12. None of the Defendants have filed an answer or
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`otherwise responded. Dkt. No. 14. On December 6, 2010, the Clerk entered default against
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`Defendants based on their failure to answer or otherwise respond to the Complaint. Dkt. No. 14.
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`1.
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`Default Judgment
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`DISCUSSION
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`Plaintiff is entitled to default judgment against Defendants. Once default has been entered
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`by the Clerk, it is within the district court’s discretion to grant default judgment against that party.
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`FED. R. CIV. P. 55(b)(2); Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). When considering
`default judgment, “the factual allegations of the complaint, except those relating to the amount of
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`damages, will be taken as true.” Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987)
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`(citations omitted); see also FED. R. CIV. P. 8(b)(6) (“[a]n allegation — other than one relating to the
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`amount of damages — is admitted if a responsive pleading is required and the allegation is not
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`denied”).
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`The Court may consider the following factors, articulated in Eitel v. McCool, when
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`determining whether to grant default judgment: “(1) the possibility of prejudice to the plaintiff; (2)
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`the merits of plaintiff’ s substantive claim; (3) the sufficiency of the complaint; (4) the sum of money
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`at stake in the action; (5) the possibility ofa dispute concerning material facts; (6) whether the default
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`Case 3:10-cv-01773-BEN-NLS Document 22 Filed 02/08/11 Page 3 of 5
`Case 3:10—cv—O1773—BEN—NLS Document 22 Filed 02/08/11 Page 3 of 5
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`was due to excusable neglect; and (7) the strong policy .
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`. favoring decisions on the merits.” 782
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`F.2d at 1471-72.
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`All the Eitel factors weigh in favor of granting default judgment. “A plaintiff must meet two
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`requirements to establish a prima facie case ofcopyright infringement: (1) ownership ofthe allegedly
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`infringed material and (2) violation by the alleged infringer of at least one of the exclusive rights
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`granted to copyright holders.” LGS Architects, Inc. v. Concordia Homes ofNev., 434 F.3d 1150,
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`1 156 (9th Cir. 2006) (citingA&MRecords, Inc. v. Napster, Inc. , 239 F.3d 1004, 1013 (9th Cir. 2001)
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`and 17 U.S.C. § 106). As outlined above, Plaintiff has alleged all the necessary elements for a cause
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`of action for copyright infringement. Taking these allegations to be true, as the Court must, the FAC
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`supports Plaintiff’ s claim for copyright infringement. Further, because Plaintiffhas sufficiently plead
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`the claims asserted and provided the Court with evidence of Defendants’ display of Plaintiffs
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`copyrighted images, dispute as to material facts is unlikely. Phillip Morris USA, Inc. v. Casrworld
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`Prods, Inc., 219 F.R.D. 494, 500 (C.D. Cal. 2003).
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`Additionally, Plaintiff will be prejudiced if default judgment is not entered because Plaintiff
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`has no other means to recover for Defendants’ infringing conduct. There is nothing before the Court
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`that suggests that the lack of response from Defendants was the result of excusable neglect. The sum
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`of money at stake is not significant when the Court considers it in relation to Defendants’ conduct.
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`See Pepsico, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1176 (C.D. Cal. 2002). And finally, while
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`there is a strong policy favoring disposition on the merits, that option is not available where, as here,
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`defendants fail to appear.
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`Id. at 1177. Because all of the Eitel factors weigh in favor of granting
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`default judgment, the Court GRANTS Plaintiff’s motion for default judgment against Defendants.
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`II.
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`Damages
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`Plaintiff is entitled to $292,500 in statutory damages from Defendants. Plaintiff seeks
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`$780,000 in statutory damages under § 17 U.S.C. § 504. Section 504(c)(1) provides for statutory
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`damages between $750 and $30,000 for each work infringed “as the court considers just.” Damages
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`may be increased up to $150,000 per work on a finding that the infringement was committed willfully
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`and reduced to as little as $200 per work on a finding that the infringer did not know and had no reason
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`to know the conduct was infringing. 17 U.S.C. § 504(c)(2).
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`l0cv I 773
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`Case 3:10-cv-01773-BEN-NLS Document 22 Filed 02/08/11 Page 4 of 5
`Case 3:10—cv—O1.773—BEN—NLS Document 22 Filed 02/08/11 Page 4 of 5
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`Plaintiff has identified 390 works that have been directly infringed by Defendants. Decl. of
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`Dr. Norman Zada in Supp. of Perfect l0’s Appl. for Default J. Plaintiff seeks $2,000 per violation,
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`for a total of $780,000. Because Plaintiff has not established that Defendants’ infringement was
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`willful and Defendants have not appeared to assert a lack ofknowledge, enhanced or reduced statutory
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`damages are not warranted. But statutory damages are warranted for Defendants’ significant infringing
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`conduct. Accordingly, the Court awards Plaintiff $750 per violation, for a total of $292,500 in
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`statutory damages.
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`III.
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`Injunction
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`Plaintiff is entitled to a permanent injunction enjoining Defendants from infringing Plaintiffs
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`copyrighted materials pursuant to 17 U.S.C. § 502(a) and California Business and Professions Code
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`§ 17203. Section 502(a) authorizes the Court to issue injunctions “on such terms as it may deem
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`reasonable to prevent or restrain infringement of a copyright.” Section 17203 authorizes injunctive
`relief against any unfair competition. Based on Plaintiff’s evidence of ongoing infringement of its
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`copyrights, the Court orders that Defendants, and each of them, and each of their respective
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`subsidiaries, affiliates, successors, officers, directors, employees, agents, representatives, and any
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`entities owned or controlled by them, shall be and are hereby permanently restrained and enjoined
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`(A) Violating Plaintiff’ s exclusive rights under the Copyright Act, including but not limited
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`to copying, reproducing, distributing, displaying, adapting, offering or making available for
`sale or downloading, or otherwise infringing or contributing to the infringement of, any
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`copyrighted picture, image or video owned by Plaintiff; and
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`(B) Displaying, allowing to be downloaded, and/or selling access to any (1) likenesses of
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`celebrities or models or (2) copyrighted pictures, images, or videos from any website or by way
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`of any other form of electronic distribution, unless Defendants have received prior express
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`written permission from the models/licensees and the copyright holders.
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`Case 3:10-cv-01773-BEN-NLS Document 22 Filed 02/08/11 Page 5 of 5
`Case 3:10—cv—O1773—BEN—NLS Document 22 Filed 02/08/11 Page 5 of 5
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`IV.
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`Costs and Attorney’s Fees
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`Finally, Plaintiff is entitled to costs and attorney’s fees pursuant to 17 U.S.C. § 505. Section
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`505 authorizes recovery of the full costs of an action and reasonable attorney’s fees to the prevailing
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`party. Accordingly, the Court finds Plaintiff is entitled to $7,850 in attorney’s fees and costs.
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`CONCLUSION
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`Plaintiffs motion for default judgment and a permanent injunction against Defendants is
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`GRANTED. Judgment is entered in favor of Plaintiff and against Defendants to be jointly and
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`severally liable in the amount of $292,500 in statutory damages and $7,850 in attorneys fees and
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`costs. Plaintiffs motion to file exhibits under seal is GRANTED. The February 14, 2011 hearing
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`date is vacated.
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`IT IS SO ORDERED.
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`.
`r T. Benitez
`United States District Court Judge