case 2:04-cv-00479-PPS-PRC document 13 filed 06/17/05 page 1 of 7
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF INDIANA
`HAMMOND DIVISION
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`UMG RECORDINGS, INC., a Delaware
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`corporation; SONY BMG MUSIC
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`ENTERTAINMENT, a Delaware general
`partnership; CAPITOL RECORDS, INC., a )
`Delaware corporation; WARNER BROS.
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`RECORDS INC., a Delaware corporation;
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`and ARISTA RECORDS LLC, a Delaware )
`limited liability company,
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`No. 2:04cv479 PS
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`Plaintiffs,
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`v.
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`CHRISTINA DAVITO,
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`Defendant.
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`OPINION AND ORDER
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`The matter is before the Court is Plaintiffs Motion for Default Judgment filed on April 7,
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`2005. [Doc. 10]. Plaintiffs allege that Defendant Christina Davito used an online media
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`distribution system to obtain copyrighted sound recordings owned by the Plaintiffs and/or to
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`distribute those recordings to other users of the system. Because Davito has failed to respond to
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`the Complaint, Plaintiffs’ Motion for Default Judgment is GRANTED.
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`I. BACKGROUND
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`The Plaintiffs in this action, various recording companies, are the copyright owners or
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`licensees of rights under the Copyright act of various recordings including:
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`1. “Old Time Rock & Roll” by Bob Segar
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`2. “Cowboy Take Me Away” by The Dixie Chicks
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`3. “Fragile” by Sting
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`case 2:04-cv-00479-PPS-PRC document 13 filed 06/17/05 page 2 of 7
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`4. “Take My Breath Away” by Berlin
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`5. “Good Riddance (Time of Your Life)” by Green Day
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`6. “Wheel of Fortune” by Ace of Base
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`7. “Santa Monica” by Everclear; and
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`8. “Most Girls” by Pink.
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`(Complaint Ex. A). Plaintiffs allege that Davito downloaded these recordings an on-line media
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`distribution system and has made them available to the public in violation of the Plaintiffs’
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`exclusive rights under the Copyright Act. (Complaint at ¶ 13).
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`Plaintiffs filed their complaint on November 18, 2004 and Davito was served on
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`December 8, 2004. [Doc. 6]. Despite two letters of warning from Plaintiffs’ counsel, Davito
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`failed to respond to the Complaint. (Plf. Mot. at Exs. 4, 5). The Clerk entered default on March
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`2, 2005 and the Plaintiffs moved for default judgment on April 7, 2005.
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`In response to the Court’s inquiry and order, Plaintiffs filed proof of Davito’s age on June
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`13, 2005. [Doc. 12]. This proof consists of Davito’s properly redacted Illinois driving record
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`showing her year of birth as 1981. Accordingly, Davito is not an infant.
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`II. DISCUSSION
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`Federal Rule of Civil Procedure 55(b) gives the Court the power to enter default
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`judgment in this situation. It provides:
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`In all other cases the party entitled to judgment by default shall apply
`to the court therefore; but no judgment by default shall be entered
`against an infant or incompetent person . . . .
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`Fed. R. Civ. P. 55(b). However, the Court must exercise sound judicial discretion in entering
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`default. O’Brien v. R.J. O’Brien & Assocs., Inc., 998 F.2d 1394, 1398 (7th Cir. 1993). A court
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`may look to a number of factors when deciding a Motion for Default Judgment. These factors
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`case 2:04-cv-00479-PPS-PRC document 13 filed 06/17/05 page 3 of 7
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`include the amount of money potentially involved, whether material issues of fact or issues of
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`substantial public importance are at issue, whether the default is largely technical, whether
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`plaintiff has been substantially prejudiced by the delay involved, and whether the grounds for
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`default are clearly established. 10A C. Wright, A. Miller & M. Kane, Federal Practice and
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`Procedure: Civil 3d § 2685 (1998).
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`Here, the grounds for default are clearly established. First, the default goes beyond a
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`mere technicality, as Davito has not filed an answer or any responsive pleadings since the
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`complaint against her was filed on November 18, 2004. Plaintiffs went so far as to send two
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`warning letters prior to applying for default and, still, Davito did not respond. The defendant
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`cannot be allowed to completely ignore this suit. In re Pyramid Energy, Ltd. v. Heyl &
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`Patterson, Inc., 869 F.2d 1058, 1062 (7th Cir. 1989) (“A trial court is entitled to say, under
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`proper circumstances, that enough is enough.”) .
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`Further, few material issues of facts are in dispute in here. In order for the Plaintiffs to
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`establish the prima facie case of direct copyright infringement, they must satisfy two
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`requirements: (1) they must show ownership of the allegedly infringed material; and (2) they
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`must demonstrate that the alleged infringers violate at least one exclusive right granted to
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`copyright holders. 17 U.S.C. §§ 106, 501(a). Here, the Plaintiffs have pled that they owned the
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`copyrighted materials specified in Exhibit A and that Davito violated their exclusive rights to
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`reproduce and distribute the copyrighted recordings to the public by downloading and
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`distributing the copyrighted recordings via an online media distribution system. Therefore, the
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`facts as stated in the Complaint establish direct copyright infringement by the Defendant.
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`Finally, the Plaintiffs are entitled to the damages which they request. Plaintiffs request
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`minimum statutory damages for each copyright violation as well as a permanent injunction
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`case 2:04-cv-00479-PPS-PRC document 13 filed 06/17/05 page 4 of 7
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`barring Davito from further infringing activity. They also request an award of attorneys fees and
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`costs. These requests are both proper and reasonable.
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`The Copyright Act provides for both monetary and injunctive relief. First, it provides
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`that “an infringer of copyright is liable for either (1) the copyright owner's actual damages and
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`any additional profits of the infringer, as provided by subsection (b); or (2) statutory damages, as
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`provided by subsection (c).” Id. at § 504(a). Under § 504(c), the copyright owner may choose to
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`recover statutory damages in lieu of actual damages any time prior to the entry of final judgment.
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`Statutory damages are described as follows:
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`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.
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`Id. at § 504 (c) . Second, § 502 authorizes the court to grant temporary and final injunctions on
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`such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” Id. at
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`§ 502. Finally, the Court has discretion to award costs and fees to the prevailing party. Id. at §
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`505.
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`Plaintiffs request the minimum statutory damages for infringement in this case. The
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`minimum statutory damage is calculated per work. Thus, $750 x 8 works = $6,000.00. Awards
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`of statutory damages “between the minimum and maximum statutory limits for copyright
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`infringement damages is wholly within the trial court’s discretion and sense of justice.”
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`Weintraub/OKUN Music v. Atlantic Fish & Chips, Inc., 1991 WL 34712 at *5 (N.D. Ill. March
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`13, 1991) (internal quotations omitted). Although we note that the actual damage to Plaintiffs by
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`one individual downloading eight songs via online media distribution is likely minimal, default
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`case 2:04-cv-00479-PPS-PRC document 13 filed 06/17/05 page 5 of 7
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`judgment does establish that Plaintiffs are entitled to damages as a matter of law. Doehrer v.
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`Caldwell, 1980 WL 1158 at * 2 (N.D. Ill. 1980). Accordingly, we find an award of $6,000.00
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`representing the minimum statutory damage for each work infringed to be appropriate.
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`In addition, Plaintiffs request a permanent injunction barring Davito from reproducing or
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`distributing any of the Plaintiffs’ copyrighted works as well as requiring Davito to destroy any
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`works that she has already reproduced or distributed via on-line media systems. Specifically,
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`the Plaintiffs request the following:
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`Defendant shall be and hereby is enjoined from directly or indirectly
`infringing Plaintiffs’ rights under federal or state law in the
`Copyrighted Recordings and any sound recording, whether now in
`existence or later created, that is owned or controlled by Plaintiffs (or
`any parent, subsidiary, or affiliate record label of Plaintiffs)
`(“Plaintiffs’ Recordings”), including without limitation by using the
`Internet or any online media distribution system to reproduce (i.e.
`download) any of Plaintiffs’ Recordings, to distribute (i.e., upload)
`any of Plaintiffs’ Recordings, or to make any of Plaintiffs’
`Recordings available for distribution to the public, except pursuant
`to 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.
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`(Pl. Mot. at 8).
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`Although courts in the Seventh Circuit have yet to address the propriety of a permanent
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`injunction in cases where an individual unlawfully downloads copyrighted musical works, courts
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`in other circuits have approved such injunctions. For example, in Elektra Entertainment Group,
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`Inc. v. Bryant, 2004 WL 783123 (C.D. Cal. 2004), Elekra brought suit against the Defendant
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`alleging copyright infringement relating to Bryant’s use of an online media distribution system
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`to make copyrighted recordings available to the public. The court in that case approved the
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`exact same injunction sought here finding that “damages cannot begin to adequately compensate
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`case 2:04-cv-00479-PPS-PRC document 13 filed 06/17/05 page 6 of 7
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`Plaintiffs for the harm caused.” Id. at *7. Further, the Court noted that the “Defendant’s means
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`of infringement – an online media distribution system with tens of millions of potential users –
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`has left Plaintiffs’ sound recordings vulnerable to massive, repeated, near-instantaneous, and
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`worldwide infringement.” Id. With these considerations in mind, we, too, find that the
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`requested permanent injunction is proper.
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`Finally, Plaintiffs request an award of attorneys fees and costs as allowed under § 505.
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`The assessment of fees and costs under this section “is as much to penalize the losing party as to
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`compensate the prevailing party” and “is a matter within the Court’s discretion.” Weintraub,
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`1991 WL 34713 at *5. In this case, not only did Davito download eight of Plaintiffs’ works in
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`clear violation of their rights, she also completely failed to respond in any way to either of
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`Plaintiffs’ warning letters or this lawsuit. Further, Plaintiffs request of $177.00 in total costs is
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`quite reasonable. Accordingly, we find that Plaintiffs are entitled to $177.00 in total costs.
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`III. CONCLUSION
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`In the end, in weighing these competing factors, we GRANT Plaintiffs’ motion for
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`default judgment [Doc. 10] and orders the following:
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`1.
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`The minimum statutory damages of $6,000.00 for the eight infringements alleged
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`in the Complaint pursuant to the Section 504 of the Copyright Act ($750 for each
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`infringement);
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`2.
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` Permanent injunction as follows:
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`The defendant shall be enjoined from directly or indirectly infringing
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`Plaintiffs’ rights under federal or state law in the copyrighted sound
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`recordings as shown in Exhibit A to Plaintiffs’ Complaint, and in any
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`other sound recording, whether now in existence or later created, that
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`case 2:04-cv-00479-PPS-PRC document 13 filed 06/17/05 page 7 of 7
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`is owned or controlled by the Plaintiffs (or any parent, subsidiary, or
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`affiliate record label of Plaintiffs) (“Plaintiffs’ Recordings”),
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`including without limitation by using the Internet or any online media
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`distribution system to reproduce (i.e., download) any of Plaintiffs’
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`Recordings, to distribute (i.e., upload) any of Plaintiffs’ Recordings,
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`or to make any of Plaintiffs’ Recordings available for distribution to
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`the public, except pursuant to a lawful license or with the express
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`authority of Plaintiffs. Defendant also shall destroy all copies of
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`Plaintiffs’ Recordings that Defendant has downloaded onto any
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`computer hard drive or server without Plaintiffs’ authorization and
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`shall destroy all copies of those downloaded recordings transferred
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`onto any physical medium or device in Defendant’s possession,
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`custody, or control; and
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`3.
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`Attorneys fees pursuant to the Section 505 of the Copyright Act in the amount of
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`$ 177.00.
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`The Clerk is directed to enter FINAL JUDGMENT stating that the Plaintiffs are entitled
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`to the relief stated herein. The Clerk is further directed to treat this matter as TERMINATED.
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`SO ORDERED.
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`ENTERED: June 17, 2005
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` s/ Philip P. Simon
`PHILLIP P. SIMON, JUDGE
`UNITED STATES DISTRICT COURT