throbber
Case 4:06-cv-04059-JPG-PMF Document 22 Filed 10/25/06 Page 1 of 12 Page ID #208
`
`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ILLINOIS
`
`CAPITOL RECORDS, INC., a Delaware
`corporation, UMG RECORDINGS, INC., a
`Delaware corporation, WARNER
`BROTHERS RECORDS, INC., a Delaware
`corporation, and SONY BMG MUSIC
`ENTERTAINMENT, a Delaware general
`partnership,
`
`Plaintiffs,
`
`v.
`
`JAMES MATTINGLEY,
`
`Defendant.
`
`Case No. 06-cv-4059-JPG
`
`MEMORANDUM AND ORDER
`
`This matter is before the Court on the Motion for Default Judgment and Permanent
`
`Injunction brought by Plaintiffs Capitol Records, Inc., UMG Recordings, Inc., Warner Brothers
`
`Records, Inc., and Sony BMG Music Entertainment against Defendant James Mattingley
`
`(Doc. 15). For the following reasons the motion is GRANTED and judgment is entered as
`
`follows: (1) Plaintiffs are awarded statutory damages under 17 U.S.C. § 504(c)(1) in the total
`
`amount of $3,750; (2) Plaintiffs are awarded $320 in costs under 17 U.S.C. § 505; and
`
`(3) Plaintiffs are awarded permanent injunctive relief under 17 U.S.C. §§ 502 and 503.
`
`BACKGROUND
`
`Plaintiffs filed this action against Defendant on March 17, 2006, seeking damages and
`
`injunctive relief for willful copyright infringement under the copyright laws of the United States,
`
`17 U.S.C. §§ 101 et seq. Plaintiffs allege they are the holders of copyrights or licenses in the
`
`following sound recordings: (1) “Drop Dead Legs,” on album “1984 (MCMLXXXIV),” by
`
`artist “Van Halen” (SR# 52-319); (2) “You Really Got Me,” on album “Van Halen,” by artist
`
`

`
`Case 4:06-cv-04059-JPG-PMF Document 22 Filed 10/25/06 Page 2 of 12 Page ID #209
`
`“Van Halen” (SR# 239); (3) “Something to Talk About,” on album “Luck of the Draw,” by artist
`
`“Bonnie Raitt” (SR# 133-193); (4) “My Heart Will Go On,” on album “Let’s Talk about Love,”
`
`by artist “Celine Dion” (SR# 248-109); and (5) “Freaky Thangs,” on album “Word of Mouf,” by
`
`artist “Ludacris” (SR# 304-605) (hereinafter, “the Copyrighted Recordings”). See Complaint
`
`(“Compl.”) ¶ 10 & Ex. A.
`
`Plaintiffs allege that Defendant, without their permission and consent, has “used, and
`
`continues to use, an online media distribution system to download the Copyrighted Recordings,
`
`to distribute the Copyrighted Recordings to the public, and/or to make the Copyrighted
`
`Recordings available for distribution to others.” Compl. ¶ 12. Plaintiffs allege that Defendant
`
`has infringed their exclusive rights of reproduction and distribution of the Copyrighted
`
`Recordings, in violation of the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., and that
`
`Defendant’s “acts of infringement have been willful and intentional, in disregard of and with
`
`indifference” to Plaintiffs’ rights in the Copyrighted Recordings. Id. ¶ 13. In their complaint
`
`Plaintiffs seek: (1) actual or statutory damages at their election pursuant to 17 U.S.C. § 504;
`
`(2) costs pursuant to 17 U.S.C. § 505; and (3) injunctive relief pursuant to 17 U.S.C. §§ 502
`
`and 503, prohibiting Defendant from further infringing Plaintiffs’ rights in the Copyrighted
`
`Recordings and ordering Defendant to destroy all copies of the Copyrighted Recordings. See id.
`
`¶¶ 14-15.
`
`Although Defendant was properly served with Plaintiffs’ complaint on July 3, 2006, he
`
`did not file an answer or otherwise respond to the complaint. On September 12, 2006, Plaintiffs
`
`filed a motion for entry of default, whereupon a default was entered by the Clerk of Court on
`
`September 13, 2006. Plaintiffs now have moved for entry of a default judgment against
`
`Defendant, requesting an award of statutory damages under 17 U.S.C. § 504(c)(1) in the total
`
`2
`
`

`
`Case 4:06-cv-04059-JPG-PMF Document 22 Filed 10/25/06 Page 3 of 12 Page ID #210
`
`amount of $3,750, an award of costs under 17 U.S.C. § 505 in the total amount of $320, and
`
`permanent injunctive relief under 17 U.S.C. §§ 502 and 503. Having reviewed carefully
`
`Plaintiffs’ submissions in support of their request for entry of a default judgment in this case, the
`
`Court now is prepared to rule.
`
`DISCUSSION
`
`A.
`
`Procedure for Obtaining Default Judgment
`
`Obtaining a default judgment entails two steps. First, the party seeking a default
`
`judgment must file a motion for entry of default with the clerk of a district court by
`
`demonstrating that the opposing party has failed to answer or otherwise respond to the
`
`complaint, and, second, once the clerk has entered a default, the moving party may then seek
`
`entry of a default judgment against the defaulting party. See Fed. R. Civ. P. 55; Conn-Selmer,
`
`Inc. v. Apex Indus., Inc., No. 04C0245, 2006 WL 752895, at *1 (E.D. Wis. Mar. 20, 2006).
`
`Cf. Keesh Constr., Inc. v. United States, No. 1:02-CV-899, 2004 WL 2536840, at *1 n.1
`
`(S.D. Ohio Sept. 28, 2004). Rule 55 of the Federal Rules of Civil Procedure provides that the
`
`clerk may enter a judgment by default when the plaintiff’s claim is for a sum certain or for a sum
`
`which can be computed with certainty and the defendant has been defaulted for failure to appear
`
`and is neither an infant nor incompetent. See Fed. R. Civ. P. 55(b)(1); Palladino v. General
`
`Crushed Stone Co., No. 96-CV-1355, 1997 WL 67792, at *1 (N.D.N.Y. Feb. 13, 1997). In all
`
`other cases, the party seeking a judgment by default must apply to the presiding district judge for
`
`entry of a default judgment. See Fed. R. Civ. P. 55(b)(2).
`
`In this instance, Plaintiffs request entry of a judgment of default by the Court pursuant to
`
`Rule 55, which provides, in relevant part,
`
`[T]he party entitled to a judgment by default shall apply to the court therefor; but
`
`3
`
`

`
`Case 4:06-cv-04059-JPG-PMF Document 22 Filed 10/25/06 Page 4 of 12 Page ID #211
`
`no judgment by default shall be entered against an infant or incompetent person
`unless represented in the action by a general guardian, committee, conservator, or
`other such representative who has appeared therein. If the party against whom
`judgment by default is sought has appeared in the action, the party . . . shall be
`served with written notice of the application for judgment at least 3 days prior to
`the hearing on such application. If, in order to enable the court to enter judgment
`or to carry it into effect, it is necessary to take an account or to determine the
`amount of damages or to establish the truth of any averment by evidence or to
`make an investigation of any other matter, the court may conduct such hearings or
`order such references as it deems necessary and proper . . .
`
`Fed. R. Civ. P. 55(b)(2). Thus, to procure a default judgment under Rule 55(b)(2), a party must
`
`establish the following: (1) when and against what party the default was entered;
`
`(2) identification of the pleading as to which default was entered; (3) whether the defaulting
`
`party is an infant or incompetent person; (4) that the defendant is not in military services such
`
`that the Soldiers’ and Sailors’ Civil Relief Act of 1940 does not apply; and (5) that notice has
`
`been served on the defaulting party, if required by Rule 55(b)(2). See Elektra Entertainment
`
`Group Inc. v. Crawford, 226 F.R.D. 388, 392 (C.D. Cal. 2005).
`
`In this case, all of the requirements for entry of a default judgment under Rule 55(b)(2)
`
`are satisfied. The record discloses that, as discussed, a default was entered against Defendant on
`
`September 13, 2006. Plaintiffs’ memorandum of points and authorities in support of their
`
`request for entry of a default judgment attaches a copy of the pleading as to which default was
`
`entered (Doc. 16, Ex. A). Both the memorandum and the uncontroverted affidavit of Alexis E.
`
`Payne, one of Plaintiffs’ attorneys, state that Plaintiffs have no reason to believe Defendant is
`
`either an infant or incompetent and that, after searching public military or military locator
`
`databases, Plaintiffs have discovered no evidence that Defendant is serving in the military
`
`4
`
`

`
`Case 4:06-cv-04059-JPG-PMF Document 22 Filed 10/25/06 Page 5 of 12 Page ID #212
`
`(Doc. 16 at 2 ¶ 4; id., Ex. B ¶ 5).1 Because Defendant has never entered an appearance in this
`
`action, the notice requirement of Rule 55(b)(2) does not apply. Therefore, the Court concludes
`
`that Plaintiffs have fully complied with the procedure for obtaining a judgment of default in this
`
`case. See Disney Enters. v. Farmer, 427 F. Supp. 2d 807, 815 & n.5 (E.D. Tenn. 2006) (finding
`
`on similar evidence that the procedural requirements for entry of a default judgment under
`
`Rule 55(b)(2) were satisfied). Cf. Elektra Entertainment Group, Inc. v. Bryant,
`
`No. CV 03-6381GAF(JTLX), 2004 WL 783123, at *3 (C.D. Cal. Feb. 13, 2004).
`
`B.
`
`Entry of Default Judgment
`
`1.
`
`Liability for Infringement
`
`As an initial matter the Court must determine whether Plaintiffs have established a prima
`
`facie case as to liability for copyright infringement. “As a general rule, a ‘default judgment
`
`establishe[s], as a matter of law, that defendants [are] liable to plaintiff as to each cause of action
`
`alleged in the complaint.’ . . . Upon default, the well-pleaded allegations of a complaint relating
`
`to liability are taken as true.” Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722
`
`F.2d 1319, 1323 (7th Cir. 1983) (quoting Breuer Elec. Mfg. Co. v. Toronado Sys. of Am., Inc.,
`
`687 F.2d 182, 186 (7th Cir. 1982)). See also In re Catt, 368 F.3d 789, 793 (7th Cir. 2004)
`
`(noting that although upon the entry of default, the well-pleaded allegations of a complaint
`
`relating to liability are taken as true, allegations regarding the amount of damages must be
`
`proven because “[e]ven when a default judgment is warranted based on a party’s failure to
`
`defend, the allegations in the complaint with respect to the amount of damages are not deemed
`
`1. After Plaintiffs moved for a default judgment, Ms. Payne and her firm withdrew as
`attorneys for Plaintiffs, although this of course does not affect the evidentiary weight of the
`affidavit.
`
`5
`
`

`
`Case 4:06-cv-04059-JPG-PMF Document 22 Filed 10/25/06 Page 6 of 12 Page ID #213
`
`true.”); United States v. Di Mucci, 879 F.2d 1488, 1497 (7th Cir. 1989) (“Although upon default,
`
`the well-pleaded allegations of a complaint relating to liability are taken as true, allegations in a
`
`complaint relating to the amount of damages suffered ordinarily are not.”). “Plaintiffs must
`
`satisfy two requirements to present a prima facie case of direct [copyright] infringement:
`
`(1) they must show ownership of the allegedly infringed material and (2) they must demonstrate
`
`that the alleged infringers violate at least one exclusive right granted to copyright holders under
`
`17 U.S.C. § 106.” A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001).
`
`Users of online music distribution systems are “direct infringers.” Metro-Goldwyn-Mayer
`
`Studios Inc. v. Grokster, Ltd., 125 S. Ct. 2764, 2776 (2005). “If the music is copyrighted,
`
`[computer file] swapping, which involves making and transmitting a digital copy of the music,
`
`infringes copyright. The swappers . . . are the direct infringers.” In re Aimster Copyright Litig.,
`
`334 F.3d 643, 645 (7th Cir. 2003). In particular, such users violate copyright holders’
`
`reproduction and distribution rights. See A & M Records, Inc., 239 F.3d at 1014.
`
`In this instance Plaintiffs’ complaint states that they each are the owners or licensees of
`
`the copyrights of the five Copyrighted Recordings, see Compl. ¶ 10, and that they possess the
`
`“exclusive rights to reproduce the Copyrighted Recordings and to distribute the Copyrighted
`
`Recordings to the public.” Id. ¶ 11. They further allege that Defendant, “without the permission
`
`or consent of Plaintiffs, has used, and continues to use, an online media distribution system to
`
`download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public,
`
`and/or to make the Copyrighted Recordings available for distribution to others.” Id. ¶ 12. Based
`
`on these allegations, Plaintiffs have sufficiently shown ownership of the infringed material, as
`
`well as actual infringement by Defendant through downloading and reproducing and/or
`
`distributing the five Copyrighted Recordings. Accordingly, the Court concludes that Plaintiffs
`
`6
`
`

`
`Case 4:06-cv-04059-JPG-PMF Document 22 Filed 10/25/06 Page 7 of 12 Page ID #214
`
`have established a prima facie case of liability for copyright infringement. Therefore, the Court
`
`turns to the question of the remedies to which Plaintiffs are entitled for the infringement.
`
`2.
`
`Remedies for Infringement
`
`a.
`
`Statutory Damages
`
`Under the Copyright Act of 1976, a plaintiff whose copyright has been infringed may
`
`elect to recover either the actual damages suffered and any profits made by the infringers or,
`
`instead of actual damages, the plaintiff may elect to receive statutory damages under 17 U.S.C.
`
`§ 504(c). See Peer Int’l Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1336 (9th Cir. 1990)
`
`(citing 17 U.S.C. § 504(c)(1)); Fitzgerald Publ’g Co. v. Baylor Publ’g Co., 807 F.2d 1110, 1114
`
`(2d Cir. 1986) (citing 17 U.S.C. §§ 504(b), 504(c)(1)). Title 17 of the United States Code
`
`provides, in relevant part:
`
`(c) Statutory Damages. –
`
`(1) Except as provided by clause (2) of this subsection, the copyright owner may
`elect, at any time before final judgment is rendered, to recover, instead of actual
`damages and profits, an award of statutory damages for all infringements
`involved in the action, with respect to any one work, for which any one infringer
`is liable individually, or for which any two or more infringers are liable jointly
`and severally, in a sum of not less than $750 or more than $30,000 as the court
`considers just. For the purposes of this subsection, all the parts of a compilation
`or derivative work constitute one work.
`(2) In a case where the copyright owner sustains the burden of proving, and the
`court finds, that infringement was committed willfully, the court in its
`discretion may increase the award of statutory damages to a sum of not more than
`$150,000 . . .
`
`17 U.S.C. § 504(c).
`
`In this case, Plaintiffs have elected to seek statutory damages against Defendant in the
`
`total principal amount of $3,750, or $750 per infringement of each of the five Copyrighted
`
`Recordings pursuant to 17 U.S.C. § 504. Statutory damages are to be awarded for infringement
`
`7
`
`

`
`Case 4:06-cv-04059-JPG-PMF Document 22 Filed 10/25/06 Page 8 of 12 Page ID #215
`
`of “any one” copyrighted “work.” 17 U.S.C. § 504(c)(1). Therefore it is appropriate in this case
`
`to award separate statutory damages for infringement for each of the five Copyrighted
`
`Recordings listed in the complaint. See WB Music Corp. v. RTV Communication Group, Inc.,
`
`445 F.3d 538, 540-41 (2d Cir. 2006) (holding that the plaintiffs should be granted thirteen
`
`statutory damage awards against a defendant who unlawfully sold compilation compact discs
`
`containing thirteen different copyrighted songs, because “[e]ach of the plaintiffs’ separate
`
`copyrighted works constitutes one work for purposes of § 504(c)(1).”). By his default,
`
`Defendant has admitted that he downloaded and distributed five of Plaintiffs’ copyrighted sound
`
`recordings without authorization. The Court concludes that an award of statutory damages does
`
`not require an evidentiary hearing in this case. See Virgin Records Am., Inc. v. Johnson, 441
`
`F. Supp. 2d 963, 965 (N.D. Ind. 2006) (citing Ortiz-Gonzalez v. Fonovisa, 277 F.3d 59, 63
`
`(1st Cir. 2002)) (“Because Plaintiffs seek only the minimum statutory damages [for copyright
`
`infringement] and these damages are clearly ascertainable from the complaint, no evidentiary
`
`hearing is necessary.”). Plaintiffs are awarded $750 per infringement, for a total statutory
`
`damages award of $3,750.
`
`b.
`
`Permanent Injunction
`
`Plaintiffs also seek a permanent injunction against Defendant pursuant to 17 U.S.C.
`
`§§ 502 and 503. Specifically, Plaintiffs’ complaint requests the following injunctive relief
`
`against Defendant:
`
`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,
`
`8
`
`

`
`Case 4:06-cv-04059-JPG-PMF Document 22 Filed 10/25/06 Page 9 of 12 Page ID #216
`
`or to make any of Plaintiffs’ Recordings available for distribution to the public,
`except pursuant to a lawful license or with the express authority of Plaintiffs.
`Defendant also shall destroy all copies of Plaintiffs’ Recordings that Defendant
`has downloaded onto any computer hard drive or server without Plaintiffs’
`authorization and shall destroy all copies of those downloaded recordings
`transferred onto any physical medium or device in Defendant’s possession,
`custody, or control.
`
`Compl., Prayer for Relief at 1.
`
`Title 17 of the United States Code states in pertinent part that “[a]ny court . . . may . . .
`
`grant temporary and final injunctions on such terms as it may deem reasonable to prevent or
`
`restrain infringement of a copyright.” 17 U.S.C. § 502(a). Title 17 provides also for the
`
`destruction of copies made in violation of a copyright. See 17 U.S.C. § 503(b). Although “the
`
`issuance of an injunction is in the discretion of the court, courts have traditionally granted
`
`permanent injunctions if liability is established and a continuing threat to a copyright exists.”
`
`Jobete Music Co. v. Johnson Communications, Inc., 285 F. Supp. 2d 1077, 1092 (S.D. Ohio
`
`2003). In Sailor Music v. IML Corp., 867 F. Supp. 565 (E.D. Mich. 1994), the court observed
`
`that permanent injunctions typically are granted in cases involving infringement of copyrights in
`
`sound recordings “because of the strong probability that unlawful performances of other
`
`copyrighted material will occur.” Id. at 569. Given “the public interest . . . in upholding
`
`copyright protections,” injunctions regularly are issued pursuant to 17 U.S.C. § 502. Arista
`
`Records, Inc. v. Beker Enters., Inc., 298 F. Supp. 2d 1310, 1314 (S.D. Fla. 2003) (quoting
`
`Autoskill, Inc. v. National Educational Support Sys., Inc., 994 F.2d 1476, 1499 (10th Cir. 1993)).
`
`Moreover, “[c]ourts also regularly issue injunctions as part of default judgments.” Id. (citing
`
`Sony Music Entertainment, Inc. v. Global Arts Prods., 45 F. Supp. 2d 1345, 1347-48 (S.D. Fla.
`
`1999)) (granting a permanent injunction as part of a default judgment in a copyright
`
`infringement case).
`
`9
`
`

`
`Case 4:06-cv-04059-JPG-PMF Document 22 Filed 10/25/06 Page 10 of 12 Page ID #217
`
`As discussed, Plaintiffs have established Defendant’s liability for infringement of their
`
`copyrights in the five Copyrighted Recordings. Moreover, Plaintiffs have submitted to the Court
`
`“screenshots” of Defendant’s activity as “concreteman1972@KaZaA” showing that he has
`
`downloaded literally hundreds of copyrighted sound recordings from a single Internet filesharing
`
`site. In this connection the Court notes that, just as Defendant never answered or otherwise
`
`appeared in response to Plaintiffs’ complaint, so despite notice of Plaintiffs’ request for a default
`
`judgment Defendant has never made any attempt to defend the charges of infringement leveled
`
`at him. The Court concludes that Plaintiffs have shown a strong likelihood of future
`
`unauthorized downloads which infringe their copyrights. Under the circumstances of this case,
`
`failure to grant the permanent injunction sought by Plaintiffs would expose them to further
`
`infringement of their copyrights by Defendant without any recourse. Therefore, the requested
`
`permanent injunction under 17 U.S.C. §§ 502 and 503 will be granted. See Virgin Records, 441
`
`F. Supp. 2d at 966-67 (granting a default judgment and a permanent injunction identical in scope
`
`to the injunction requested in this case where the record established ten instances of infringement
`
`and “[m]oreover, there is no evidence that Defendant has stopped infringing Plaintiffs’
`
`recordings or that, absent an injunction, Defendant would stop from doing so.”).
`
`c.
`
`Costs
`
`Finally, Plaintiffs request costs in the amount of $320. Title 17 of the United States Code
`
`provides that “the court in its discretion may allow the recovery of full costs by or against any
`
`party” who prevails in a copyright suit. 17 U.S.C. § 505. “Traditionally, ‘although not required
`
`to do so, courts routinely award costs to the prevailing party in copyright cases.’” Arclightz &
`
`Films Pvt. Ltd. v. Video Palace Inc., 303 F. Supp. 2d 356, 365 (S.D.N.Y. 2003) (quoting
`
`National Football League v. PrimeTime 24 Joint Venture, 131 F. Supp. 2d 458, 484 (S.D.N.Y.
`
`10
`
`

`
`Case 4:06-cv-04059-JPG-PMF Document 22 Filed 10/25/06 Page 11 of 12 Page ID #218
`
`2001)) (collecting cases). Attorney Alexis E. Payne states in her affidavit that Plaintiffs have
`
`incurred costs in the amount of $320 in prosecuting this suit (Doc. 16, Ex. B ¶ 6). The Court
`
`concludes that the requested $320 in costs is reasonable and should be awarded. See Wow &
`
`Flutter Music, Hideout Records & Distribs., Inc. v. Len’s Tom Jones Tavern, 606 F. Supp.
`
`554, 557-58 (W.D.N.Y. 1985) (awarding the prevailing plaintiff in a suit for copyright
`
`infringement $76.80 to cover the filing fee and fee for service).
`
`CONCLUSION
`
`The Motion for Default Judgment and Permanent Injunction brought by Plaintiffs Capitol
`
`Records, Inc., UMG Recordings, Inc., Warner Brothers Records, Inc., and Sony BMG Music
`
`Entertainment against Defendant James Mattingley (Doc. 15) is GRANTED, and judgment is
`
`entered in favor of Plaintiffs and against Defendant as follows. It is ORDERED that Plaintiffs
`
`are awarded statutory damages under 17 U.S.C. § 504(c)(1) in the total amount of $3,750, with
`
`interest to accrue on that amount as prescribed under 28 U.S.C. § 1961; additionally, Plaintiffs
`
`are awarded $320 in costs under 17 U.S.C. § 505.
`
`Pursuant to 17 U.S.C. §§ 502 and 503, it is FURTHER ORDERED that Defendant shall
`
`be and hereby is enjoined from directly or indirectly infringing Plaintiffs’ rights under federal or
`
`state law in the following copyrighted sound recordings: “Drop Dead Legs,” on album “1984
`
`(MCMLXXXIV),” by artist “Van Halen” (SR# 52-319); “You Really Got Me,” on album “Van
`
`Halen,” by artist “Van Halen” (SR# 239); “Something to Talk About,” on album “Luck of the
`
`Draw,” by artist “Bonnie Raitt” (SR# 133-193); “My Heart Will Go On,” on album “Let’s Talk
`
`about Love,” by artist “Celine Dion” (SR# 248-109); “Freaky Thangs,” on album “Word of
`
`Mouf,” by artist “Ludacris” (SR# 304-605); and in any other sound recording, whether now in
`
`existence or later created, that is owned or controlled by Plaintiffs (or any parent, subsidiary, or
`
`11
`
`

`
`Case 4:06-cv-04059-JPG-PMF Document 22 Filed 10/25/06 Page 12 of 12 Page ID #219
`
`affiliate record label of Plaintiffs) (“Plaintiffs’ Recordings”), including without limitation by
`
`using the Internet or any online media distribution system to reproduce (i.e., download) any of
`
`Plaintiffs’ Recordings, to distribute (i.e., upload) any of Plaintiffs’ Recordings, or to make any of
`
`Plaintiffs’ Recordings available for distribution to the public, except pursuant to a lawful license
`
`or with the express authority of Plaintiffs. Defendant also shall destroy all copies of Plaintiffs’
`
`Recordings that Defendant has downloaded onto any computer hard drive or server without
`
`Plaintiffs’ authorization and shall destroy all copies of those downloaded recordings transferred
`
`onto any physical medium or device in Defendant’s possession, custody, or control.
`
`IT IS SO ORDERED.
`
`DATED: October 25, 2006
`
`s/ J. Phil Gilbert
`J. PHIL GILBERT
`DISTRICT JUDGE
`
`12

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