case 2:05-cv-00073-PPS-PRC document 15 filed 08/09/05 page 1 of 8
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF INDIANA
`HAMMOND DIVISION
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`No. 2:05-CV-73 PS
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`CAROLINE RECORDS, INC., a New York
`corporation; VIRGIN RECORDS
`AMERICA, INC., a California corporation;
`UMG RECORDINGS, INC., a Delaware
`corporation; BMG MUSIC, a New York
`general partnership; CAPITOL RECORDS,
`INC., a Delaware corporation; ATLANTIC
`RECORDING CORPORATION, a Delaware
`corporation; MAVERICK RECORDING
`COMPANY, a California joint venture;
`WARNER BROS. RECORDS INC., a
`Delaware corporation; and SONY BMG
`MUSIC ENTERTAINMENT, a Delaware
`general partnership,
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`
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`Plaintiffs,
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`v.
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`SHELLY NELSON,
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`Defendant.
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`OPINION AND ORDER
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`This matter is before the Court on Plaintiffs’ Motion for Default Judgment filed on July
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`18, 2005. [Doc. 12]. Plaintiffs allege that Defendant Shelly Nelson 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 Nelson has failed to appear,
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`plead, or otherwise defend as provided by the Federal Rules of Civil Procedure, Plaintiffs’
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`Motion for Default Judgment is granted.
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`

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`case 2:05-cv-00073-PPS-PRC document 15 filed 08/09/05 page 2 of 8
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`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. “Opposites Attract” by Paula Abdul
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`2. “Sorry Seems To Be The Hardest Word” by Elton John
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`3. “The Closer You Get” by Alabama
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`4. “Sweet Child O’Mine” by Sheryl Crow
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`5. “Ride the Wind” by Poison
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`6. “Sail Away” by David Gray
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`7. “Man On The Corner” by Genesis; and
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`8. “Far Behind” by Candlebox.
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`(See Compl. at Ex. A.) Plaintiffs allege that Nelson downloaded these recordings using an on-
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`line media distribution system and has made the copyrighted recordings available to the public in
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`violation of the Plaintiffs’ exclusive rights under the Copyright Act. (Compl. ¶ 17.)
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`Plaintiffs filed their complaint on February 28, 2005, and Nelson was served on March 5,
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`2005. (See [Doc. 8].) The Clerk entered default on June 10, 2005 ([Doc. 10]), and the Plaintiffs
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`moved for default judgment on July 18, 2005.
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`In response to the Court’s inquiry and order, Plaintiffs filed proof of Nelson’s age on
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`August 1, 2005. (See [Doc. 14].) This proof consists of Nelson’s properly redacted Indiana
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`driving record showing her year of birth as 1973. Accordingly, Nelson is not an infant.
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`case 2:05-cv-00073-PPS-PRC document 15 filed 08/09/05 page 3 of 8
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`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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`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 Nelson has not filed an answer or any responsive pleadings since the
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`complaint against her was filed on February 28, 2005. The defendant cannot be allowed to
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`completely ignore this suit. See In re Pyramid Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d
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`1058, 1062 (7th Cir. 1989) (“A trial court is entitled to say, under proper circumstances, that
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`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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`case 2:05-cv-00073-PPS-PRC document 15 filed 08/09/05 page 4 of 8
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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 Nelson 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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`barring Nelson 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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`case 2:05-cv-00073-PPS-PRC document 15 filed 08/09/05 page 5 of 8
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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. Mar. 13,
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`1991) (internal quotations omitted). Although the actual damage to Plaintiffs from one
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`individual downloading eight songs via online media distribution is likely minimal, default
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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. Mar. 28, 1980). Accordingly, an award of $6,000.00
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`representing the minimum statutory damage for each work infringed is appropriate.
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`In addition, Plaintiffs request a permanent injunction barring Nelson from reproducing or
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`distributing any of the Plaintiffs’ copyrighted works as well as requiring Nelson to destroy any
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`works that she has already reproduced or distributed via on-line media systems. Specifically, the
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`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
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`case 2:05-cv-00073-PPS-PRC document 15 filed 08/09/05 page 6 of 8
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`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. Feb. 13, 2004), Elekra brought suit against the
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`defendant alleging copyright infringement relating to the defendant’s use of an online media
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`distribution system to make copyrighted recordings available to the public. The court in that
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`case approved the exact same injunction sought here finding that “damages cannot begin to
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`adequately compensate Plaintiffs for the harm caused.” Id. at *7. Further, the court noted that
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`the “Defendant’s means of infringement – an online media distribution system with tens of
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`millions of potential users – has left Plaintiffs’ sound recordings vulnerable to massive, repeated,
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`near-instantaneous, and worldwide infringement.” Id. With these considerations in mind, we,
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`too, find that the 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 Nelson 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 this lawsuit for
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`over five months. Further, Plaintiffs request of $276.95 in total costs is quite reasonable.
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`Accordingly, Plaintiffs are entitled to $276.95 in total costs.
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`case 2:05-cv-00073-PPS-PRC document 15 filed 08/09/05 page 7 of 8
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`CONCLUSION
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`For the foregoing reasons, Plaintiffs’ motion for default judgment [Doc. 12] is hereby
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`GRANTED; the Court orders the following relief:
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`1.
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`Minimum statutory damages in the amount of $6,000.00 for the eight
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`infringements alleged in the complaint pursuant to the Section 504 of the Copyright Act ($750
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`for each infringement);
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`2.
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` A permanent injunction as follows:
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`The defendant shall be enjoined from directly or indirectly infringing
`Plaintiffs’ rights under federal or state law in the copyrighted sound
`recordings as shown in Exhibit A to Plaintiffs’ Complaint, and in any
`other sound recording, whether now in existence or later created, that
`is owned or controlled by the 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; 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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`$276.95.
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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: August 9, 2005
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`case 2:05-cv-00073-PPS-PRC document 15 filed 08/09/05 page 8 of 8
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`s/ Philip P. Simon
`PHILLIP P. SIMON, JUDGE
`UNITED STATES DISTRICT COURT
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