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Case 8:22-cv-00516-CEH-SPF Document 30 Filed 03/20/23 Page 1 of 13 PageID 164
`
`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
`
`Plaintiff,
`
`
`NEXSTAR MEDIA, INC.,
`
`
`
`v.
`
`JENNIFER JAROS and JAY IS 4
`JUSTICE PODCAST, LLC,
`
`
`
`
`Defendants.
`
`Case No: 8:22-cv-516-CEH-SPF
`
`
`
`ORDER
`
`This cause comes before the Court upon Plaintiff Nexstar Media, Inc.’s Motion
`
`for Default Judgment against Defendant Jay is 4 Justice Podcast, LLC (“J4J”). Doc.
`
`29. On March 4, 2022, Plaintiff filed a one-count complaint alleging copyright
`
`infringement against Defendants Jennifer Jaros and J4J. Doc. 1. Plaintiff now moves
`
`for default judgment as to J4J. Doc. 29. The Court, having considered the Motion and
`
`being fully advised in the premises, will grant default judgment as to liability.
`
`However, Plaintiff will be required to prove its damages at an evidentiary hearing.
`
`I.
`
`FACTUAL ALLEGATIONS
`
`Nexstar Media, Inc. (“Nexstar”) is an American media company that operates,
`
`programs, or otherwise provides services to television stations in 116 markets across
`
`39 states. Doc. 1 ¶¶ 9–10. The company is the owner and authorized licensee of
`
`television station WFLA-TV (“WFLA”) based in Tampa, Florida. Id. ¶ 12. WFLA
`
`broadcasts seven hours of live news each weekday under the brand name
`
`

`

`Case 8:22-cv-00516-CEH-SPF Document 30 Filed 03/20/23 Page 2 of 13 PageID 165
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`NewsChannel 8 and also operates WFLA NOW, a digital live-streaming platform for
`
`local news. Id. ¶¶ 14–15.
`
`Between September 27 and October 21, 2021, WFLA reported extensively on
`
`the manhunt for Brian Laundrie. Id. ¶ 16. Laundrie was the former partner of Gabby
`
`Petito and a person of interest in her death, which was the subject of national and
`
`international press attention. Id. WFLA’s coverage included numerous videos,
`
`original descriptions made by its reporters, and compilations of audio and video put
`
`together by its producers. Id. ¶ 17. It also included the seven works that Nexstar claims
`
`were copied or redistributed without its permission (“the WFLA Works”).1 Id. ¶ 18.
`
`Nexstar is the exclusive owner of all copyrights in the WFLA Works and promptly
`
`sought to register them with the United States Copyright Office. Id. ¶¶ 19–20. Among
`
`the exclusive rights granted to Nexstar by the Copyright Act, 17 U.S.C. § 106, are the
`
`rights to reproduce the Works and distribute them to the public. Id. ¶ 21.
`
`Defendant J4J is a Florida limited liability company with a principal address in
`
`St. Petersburg, Florida. Id. ¶ 8. It creates and distributes true crime podcasts and videos
`
`through a number of platforms, including Twitter, Facebook, and YouTube. Id. ¶ 23.
`
`Nexstar believes that J4J is managed and operated by Defendant Jennifer Jaros. Id. ¶
`
`22. J4J released numerous podcasts and videos related to the search for Brian
`
`Laundrie. Id. ¶ 24. Included among these were numerous videos streamed or uploaded
`
`
`1 Although the Complaint lists eleven copyrighted works in Exhibit A (Doc. 1 at 10), Nexstar
`seeks default judgment as to J4J’s infringement of only the seven works that were registered
`within three months of initial publication. Doc. 29 at 8 n.3.
`
`
`
`
`2
`
`

`

`Case 8:22-cv-00516-CEH-SPF Document 30 Filed 03/20/23 Page 3 of 13 PageID 166
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`to YouTube and shared with the public. Id. ¶ 27. On multiple occasions, without
`
`Nexstar’s authorization, consent, or license, J4J’s podcasts and videos copied
`
`substantial portions of the WFLA Works. Id. ¶ 26. Defendant also placed a watermark
`
`on the infringing videos, branding them as “Jay is 4 Justice.” Id. ¶ 28. After discovering
`
`the infringement, a Nexstar attorney submitted several takedown notifications to
`
`YouTube seeking removal of the infringing works pursuant to the Digital Millennium
`
`Copyright Act, 17 U.S.C. § 512(c). Id. ¶ 30. YouTube promptly removed several of the
`
`works and notified J4J. Id. In turn, J4J submitted a counter-notification to YouTube,
`
`admitting to the use of another’s content but claiming that the videos fell within the
`
`fair use exception detailed in the Copyright Act. Id. ¶ 31. YouTube then reinstated the
`
`videos subject to a court determining the merits of Nexstar’s claims. Id. ¶ 33.
`
`Nexstar filed suit against both Jaros and J4J, asserting one count of copyright
`
`infringement. 2 Id. ¶¶ 37–41. Nexstar alleged that the infringement was “willful,
`
`intentional, and in reckless disregard of and indifferent to” its rights. Id. ¶ 39. After
`
`serving J4J with a copy of the Summons and Complaint, Nexstar moved for and
`
`obtained a Clerk’s default. Docs. 17, 18, 19. J4J, a limited liability company, then filed
`
`an answer pro se, which the Court struck pursuant to the Middle District of Florida’s
`
`Local Rules. Docs. 20, 23. See L.R. 2.02(b)(2), M.D. Fla. (“A party, other than a
`
`natural person, can appear through the lawyer only.”) The Court directed J4J to file
`
`an answer, signed by counsel, no later than June 30, 2022. Doc. 23. After J4J failed to
`
`
`2 The docket in this case does not reflect service on Defendant Jennifer Jaros. Nor has Plaintiff
`dismissed Defendant Jaros as a party to this litigation.
`
`
`
`3
`
`

`

`Case 8:22-cv-00516-CEH-SPF Document 30 Filed 03/20/23 Page 4 of 13 PageID 167
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`do so, Nexstar submitted a second motion for Clerk’s default (Doc. 24), and a default
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`was entered on July 13, 2022. Doc. 25.
`
`Now before the Court is Nexstar’s motion for default judgment. Doc. 29.
`
`Nexstar seeks (i) $10,000 dollars in statutory damages for each of the seven alleged
`
`infringements, totaling $70,000 in damages, (ii) entry of a permanent injunction
`
`against future infringement, and (iii) an award of reasonable attorney’s fees and costs
`
`incurred in prosecuting this action. Id. at 15–16.
`
`II.
`
`LEGAL STANDARD
`
`When a defendant fails “to plead or otherwise defend, and that failure is shown
`
`by affidavit or otherwise, the clerk must enter” the defendant’s default upon the
`
`plaintiff’s request. Fed. R. Civ. P. 55(a). After the clerk enters the default, the plaintiff
`
`may proceed by seeking default judgment. See Fed. R. Civ. P. 55(b).
`
`Default does not automatically warrant the entry of default judgment. Although
`
`a defendant who defaults is deemed to have “admit[ted] the plaintiff’s well-pleaded
`
`allegations of fact,” Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987), “[t]he
`
`defendant is not held to admit facts that are not well-pleaded or to admit conclusions
`
`of law.” Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir.
`
`1975).3 Similarly, a plaintiff is entitled to only those damages adequately supported by
`
`the record. See Adolph Coors Co. v. Movement Against Racism and the Klan, 777 F.2d 1538,
`
`
`3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit
`adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
`the close of business on September 30, 1981.
`
`
`
`
`4
`
`

`

`Case 8:22-cv-00516-CEH-SPF Document 30 Filed 03/20/23 Page 5 of 13 PageID 168
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`1544–1545 (11th Cir. 1985). Therefore, a court must conduct an analysis to determine
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`whether the well-pleaded factual allegations of the complaint provide a sufficient basis
`
`for a judgment against the defendant. Nishimatsu Constr. Co., 515 F.2d at 1206.
`
`III. DISCUSSION
`
`A. Service of Process and Clerk’s Default
`
`Under the federal rules, a plaintiff may serve a corporate defendant by:
`
`delivering a copy of the summons and of the complaint to an officer, a
`managing or general agent, or any other agent authorized by
`appointment or by law to receive service of process . . .
`
`Fed. R. Civ. P. 4(h)(1)(B).
`
`A plaintiff may also serve a corporate defendant “in the manner prescribed by
`
`Rule 4(e)(1) for serving an individual.” Fed. R. Civ. P. 4(h)(1)(A). Nexstar’s affidavit
`
`of service, filed on March 16, 2022, shows that Nexstar served the summons and
`
`complaint on Northwest Registered Agent LLC, the registered agent for Jay is 4 Justice
`
`Podcast LLC, at its business address. Doc. 17. Therefore, J4J was properly served
`
`pursuant to Federal Rule of Civil Procedure 4(h)(1)(B).
`
`Under Federal Rule of Civil Procedure 12(a)(1), Defendants were required to
`
`respond to Plaintiff's complaint within twenty-one (21) days from the date of service.
`
`They did not. The federal rules require that a defendant’s default be entered “[w]hen
`
`service of process is properly effected, but the served party fails to respond in a timely
`
`manner.” Kelly v. Florida, 233 F. App'x 883, 885 (11th Cir. 2007) (citing Fed. R. Civ.
`
`P. 55(a)). Thus, based on J4J’s failure to properly respond to the complaint or
`
`
`
`5
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`

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`Case 8:22-cv-00516-CEH-SPF Document 30 Filed 03/20/23 Page 6 of 13 PageID 169
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`otherwise appear in this action, the Clerk properly entered a default against J4J. Docs.
`
`23, 24, 25.
`
`B. Liability
`
`The sole count of the Complaint is for copyright infringement. Doc. 1 at ¶¶ 37-
`
`41. To establish a prima facie case of copyright infringement, “a plaintiff must show
`
`that (1) it owns a valid copyright in the work and (2) defendants copied protected
`
`elements from the work.” Code Revision Comm'n for Gen. Assembly of Georgia v.
`
`Public.Resource.Org, Inc., 906 F.3d 1229, 1236 (11th Cir. 2018). With respect to the first
`
`prong, a “certificate of a registration made before or within five years after first
`
`publication of the work shall constitute prima facie evidence of the validity of the
`
`copyright and of the facts stated in the certificate.” 17 U.S.C. § 410(c). With respect to
`
`the second prong, a plaintiff must “demonstrate that the alleged infringer[ ] violated at
`
`least one exclusive right granted to the copyright holder[ ].” Intenze Prod., Inc. v. Dead
`
`Man Supplies Corp., No. 8:15-CV-1074-CEH-AAS, 2016 WL 4158555, at *4 (M.D. Fla.
`
`Aug. 4, 2016).
`
`Nexstar sufficiently pleads its claim for willful copyright infringement. It
`
`satisfies the first prong by attaching copyright registration certificates showing that it
`
`registered the WFLA Works approximately two months after the works were first
`
`broadcast (Doc. 1 at 10–22). See BWP Media USA Inc. v. A.R. Commc’ns, LLC, No. 6:14-
`
`CV-120-ACC-KRS, 2014 WL 5038590, at *3 (M.D. Fla. Oct. 6, 2014) (“[C]opyright
`
`registrations are prima facie evidence of the validity of the copyrights.”).
`
`
`
`6
`
`

`

`Case 8:22-cv-00516-CEH-SPF Document 30 Filed 03/20/23 Page 7 of 13 PageID 170
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`Nexstar satisfies the second prong by alleging that Defendant copied and
`
`distributed the footage on YouTube without its permission (Doc. 1 ¶¶ 25–36). See
`
`Stockfood Am., Inc. v. Fernando Arcay Special Events Corp., No. 19-22286-CV, 2019 WL
`
`9904155, at *2 (S.D. Fla. Dec. 31, 2019), adopted by 2020 WL 4820472 (S.D. Fla. Jan.
`
`21, 2020) (holding that plaintiff satisfied the second prong of a copyright infringement
`
`claim by alleging that defendants “copied the photograph [at issue] without Plaintiff’s
`
`permission and displayed it on their company’s website”). Defendant has not appeared
`
`in this action. Therefore, the validity of Nexstar’s claim of copyright and the originality
`
`of the copyrighted material are unchallenged. As Nexstar has sufficiently pleaded all
`
`elements of its copyright infringement claim, the Court finds that it is entitled to default
`
`judgment as to liability.
`
`Further, the Court can infer that the infringement was willful based on J4J’s
`
`default. See Bowers v. David Jacobs-Publ’g Grp., LLC, No. 8:19-CV-1361-MSS-TGW,
`
`2019 WL 8989845, at *3 (M.D. Fla. Oct. 31, 2019) (“A court may infer that a
`
`defendant’s copyright infringement is willful based on the defendant’s default alone.”).
`
`The Court can also infer J4J’s willfulness from its decision to continue displaying the
`
`works after receiving takedown notices. See Broad. Music, Inc. v. CD Rest. Grp., LLC,
`
`No. 8:18-CV-363-MSS-JSS, 2019 WL 1905862, at *2 (M.D. Fla. Jan. 28, 2019)
`
`(holding that “Plaintiffs ha[d] adequately established that Defendants’ copyright
`
`infringement was willful” based on, among other things, defendants’ continued
`
`performance of the work “despite Plaintiffs’ notices and demands for Defendants to
`
`cease and desist”). The record shows that after Nexstar submitted takedown
`
`
`
`7
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`

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`Case 8:22-cv-00516-CEH-SPF Document 30 Filed 03/20/23 Page 8 of 13 PageID 171
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`notifications to YouTube and had the infringing works removed, J4J submitted
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`counter-notifications claiming that its videos fell within the “fair use” exception, at
`
`which point YouTube reuploaded them. Doc. 1 ¶¶ 30–34. Based on J4J’s continued
`
`infringement, as well as the fact that the Court can infer willfulness from default alone,
`
`the Court finds that willfulness has been established.
`
`C. Damages
`
`Having found that a default judgment is warranted, the Court turns to the issue
`
`of damages. Upon a motion for default judgment, the Court can conduct hearings or
`
`make referrals “when, to enter or effectuate a judgment, it needs to: (A) conduct an
`
`accounting; (B) determine the amount of damages; (C) establish the truth of any
`
`allegation by evidence; or (D) investigate any other matter.” Fed. R. Civ. P. 55(b)(2).
`
`When a request for monetary relief is made, the Court may enter judgment
`
`without a hearing only if “the plaintiff’s claim against [the] defendant is for a sum
`
`certain or for a sum which can by computation be made certain,” or if “the amount
`
`claimed is a liquidated sum or one capable of mathematical calculation.” S.E.C. v.
`
`Smyth, 420 F.3d 1225, 1231 (11th Cir. 2005); Adolph Coors Co., 777 F.2d at 1543. Thus,
`
`while an evidentiary hearing on damages is not required upon a motion for default
`
`judgment, Courts often hold such hearings when “all essential evidence” is not
`
`available in the record. Smyth, 420 F.3d at 1232, n.13.
`
`In a copyright infringement case, “a copyright owner may choose between two
`
`types of damages: actual damages and profits or statutory damages.” Jordan v. Time,
`
`Inc., 111 F.3d 102, 104 (11th Cir. 1997). “Courts have discretion to award between
`
`
`
`8
`
`

`

`Case 8:22-cv-00516-CEH-SPF Document 30 Filed 03/20/23 Page 9 of 13 PageID 172
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`$750 and $30,000 in statutory damages for all infringements of each work under 17
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`U.S.C. § 504(c).” StockFood Am., Inc. v. Smarter Changes, LLC, No. 6:19-CV-391-PGB-
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`DCI, 2019 WL 11499353, at *4 (M.D. Fla. Sept. 19, 2019), adopted by 2019 WL
`
`11499358 (M.D. Fla. Oct. 4, 2019). “When the copyright owner sustains the burden
`
`of proving that an infringement was committed willfully, the court may increase the
`
`award of statutory damages up to $150,000 for each infringement.” Id. Statutory
`
`damages must be calculated according to the number of separately copyrightable
`
`works infringed, not on the number of infringements. Disney Enters., Inc. v. Law, No.
`
`6:07-cv-1153-GKS-GJK, 2008 WL 203393, at *4 (M.D. Fla. Jan. 23, 2008). It is within
`
`the Court’s discretion to determine damages within the statutory limits. See
`
`Cable/Home Commc'n Corp. v. Network Prods., Inc., 902 F.2d 829, 852 (11th Cir. 1990).
`
`However, “statutory damages are not intended to provide a plaintiff with a windfall
`
`recovery; they should bear some relationship to the actual damages suffered.” Clever
`
`Covers, Inc. v. Sw. Fla. Storm Def., LLC, 554 F. Supp. 2d 1303, 1313 (M.D. Fla. 2008);
`
`Affordable Aerial Photography, Inc. v. Palm Beach Real Est., Inc., 2021 WL 2823270, at *3
`
`(S.D. Fla. July 7, 2021).
`
`In this case, Nexstar seeks $70,000 in statutory damages. Doc. 29 at 8. It argues
`
`that a $10,000 award for each of the seven infringed works would be reasonable and
`
`appropriate in light of the factors that courts normally use to calculate statutory
`
`damages. Id. at 8–11. These nonexclusive factors include: (1) the expenses saved and
`
`profits reaped by the defendant; (2) the revenues lost by the plaintiff; (3) the value of
`
`the copyright; (4) the deterrent effect on others besides the defendant; (5) whether the
`
`
`
`9
`
`

`

`Case 8:22-cv-00516-CEH-SPF Document 30 Filed 03/20/23 Page 10 of 13 PageID 173
`
`defendant’s conduct was innocent or willful; (6) whether the defendant has cooperated
`
`in providing particular records from which to assess the value of the infringing material
`
`produced; and (7) the potential for discouraging the defendant. McKennon v. NewsCastic
`
`Inc., 2018 WL 5847424, at *4 (M.D. Fla. Sept. 7, 2018), adopted by 2018 WL 5840687
`
`(M.D. Fla. Nov. 8, 2018).
`
`Nexstar argues that it has made a sufficient showing of damages. Doc. 29 at 8–
`
`11. First, it notes that statutory damages are normally tied to a plaintiff’s actual
`
`damages—and that lost licensing fees are a common method of quantifying such
`
`damages. Id. at 9. Because Nexstar does not generally offer licenses to copy or
`
`redistribute its news streams, it submits evidence of license fees that other television
`
`stations charge as “benchmark licenses.” Id. at 9–10. For example, Nexstar notes that
`
`WCPO-TV, an Ohio station, charges around $7,500 per minute of archived footage,
`
`whereas KXAS-TV, a Texas station, charges $90 per second of archived footage,
`
`meaning that each minute of footage would cost about $5,400. Id. at 10. Nexstar also
`
`attaches an affidavit from WFLA’s Vice President and General Manager, which states
`
`that a license for live streams or clips of very recent events would carry even greater
`
`value than one for archived news footage. Doc. 29-2 ¶ 9. Based on the benchmark
`
`figures, Nexstar asserts that the value of just one of J4J’s infringing works (specifically,
`
`a 45-minute video) would be almost $250,000. Doc. 29 at 10–11. Nexstar cites this
`
`figure to argue that the $10,000 it requests per infringement is reasonable, especially
`
`considering that it could seek treble damages based on Defendant’s willfulness. Id. at
`
`11.
`
`
`
`10
`
`

`

`Case 8:22-cv-00516-CEH-SPF Document 30 Filed 03/20/23 Page 11 of 13 PageID 174
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`“A reasonable license fee must be determined according to the fair market value
`
`of the copyrighted work and cannot be based on undue speculation.” Strober v. Harris,
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`No. 8:20-CV-2663-MSS-JSS, 2021 WL 7629457, at *3 (M.D. Fla. Nov. 23, 2021).
`
`Although Nexstar cites to the costs for archival footage from other news stations to
`
`reach its $10,000 licensing figure, it offers no basis to conclude that Defendant (or any
`
`other party) would have paid that amount to secure a license to distribute the WFLA
`
`Works. Nor does Nexstar present any evidence that it, or another station, has obtained
`
`a comparable licensing fee for its content. Because additional explanatory information
`
`is needed to prove the damages sought, particularly with respect to the fair market
`
`value of the footage, the Court will require an evidentiary hearing at which Nexstar
`
`may “endeavor to meet [its] burden of proof” as to damages. Baumann v. Bank of Am.,
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`N.A., 734 Fed. Appx. 664, 671 (11th Cir. 2018).
`
`D. Injunctive Relief
`
`Nexstar also seeks entry of a permanent injunction preventing J4J from further
`
`infringement of Nexstar’s copyrighted works. Doc. 29 at 12–13. The Copyright Act
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`“gives a court authority to grant injunctive relief to prevent further violations of
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`Plaintiff’s copyrighted material.” Markos v. Yacht Charters of Miami.com, LLC, No. 19-
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`22284-CV, 2019 WL 8989936, at *4 (S.D. Fla. Oct. 2, 2019) (citing 17 U.S.C. § 502),
`
`adopted by 2019 WL 8989935 (S.D. Fla. Oct. 23, 2019). To obtain a permanent
`
`injunction, a plaintiff must show: (1) that it suffered an irreparable injury; (2) that the
`
`remedies available at law, such as monetary damages, are inadequate to compensate
`
`for that injury; (3) that, considering the balance of hardships between the plaintiff and
`
`
`
`11
`
`

`

`Case 8:22-cv-00516-CEH-SPF Document 30 Filed 03/20/23 Page 12 of 13 PageID 175
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`defendants, a remedy in equity is warranted; and (4) that the public interest would not
`
`be disserved by a permanent injunction. Broadcast Music, Inc. v. Evie's Tavern Ellenton,
`
`Inc., 772 F.3d 1254, 1261 (11th Cir. 2014). The four-part test “is regularly satisfied at
`
`the default-judgment stage in copyright-infringement cases.” Garden World Images Ltd.
`
`v. WilsonBrosGardens.com LLC, No. 1:19-CV-01035-AT, 2019 WL 8017802, at *7 (N.D.
`
`Ga. Oct. 31, 2019).
`
`Permanent injunctive relief is appropriate here. J4J’s continued infringement
`
`causes Nexstar irreparable harm that cannot be adequately compensated with
`
`monetary damages. Further, Nexstar provides evidence of continuing infringement by
`
`demonstrating that at least one of J4J’s infringing videos is still available on YouTube.
`
`See Doc. 29 at 10. The Court finds that the equitable remedy of a permanent injunction
`
`is appropriate after balancing the hardships between the plaintiff and defendants, and
`
`that the public interest will not be disserved under these circumstances. Fernando Arcay
`
`Special Events Corp., 2019 WL 9904155, at *4; see also Arista Recordings, Inc. v. Beker Ent.,
`
`Inc., 298 F. Supp. 2d 1310, 1314 (S.D. Fla. 2003) (“Injunctions are regularly issued
`
`pursuant to the mandate of Section 502 [of the Copyright Act] because the public
`
`interest is the interest in upholding copyright protection.”). As previously stated,
`
`Nexstar has sufficiently pleaded the elements of its copyright infringement claim.
`
`Meanwhile, J4J has made no effort to defend against these claims. Absent an
`
`injunction, there can be no assurance that J4J will not continue the infringing conduct.
`
`Therefore, the Court finds that Nexstar is entitled to a permanent injunction on the
`
`basis of Defendant’s infringement.
`
`
`
`12
`
`

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`Case 8:22-cv-00516-CEH-SPF Document 30 Filed 03/20/23 Page 13 of 13 PageID 176
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`Accordingly, it is ORDERED:
`
`1. Plaintiff’s Motion for Default Judgment (Doc. 29) is GRANTED as to
`
`liability.
`
`2. The amount of damages will be determined at an evidentiary hearing. The
`
`Court will issue a separate notice setting a hearing date.
`
`3. A Permanent Injunction will be entered by separate Order, at the conclusion
`
`of this case.
`
`DONE and ORDERED in Tampa, Florida on March 20, 2023.
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`Copies furnished to:
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`Counsel of Record
`Unrepresented Parties
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`13
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`

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