case 2:06-cv-00096-PPS-APR document 11 filed 10/30/06 page 1 of 10
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF INDIANA
`HAMMOND DIVISION
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`NO: 2:06-CV-96
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`)))))))))))))))
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`FONOVISA, INC., a California corporation;
`SONY BMG MUSIC ENTERTAINMENT, a
`Delaware general partnership, and CAPITOL
`RECORDS, INC., a Delaware corporation,
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`Plaintiffs,
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`v.
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`BASILIO GUIFARRO,
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`Defendant.
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`OPINION AND ORDER
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`Before the Court is Plaintiffs’ Application for Entry of Default Judgment [Doc. 10].
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`Plaintiffs allege that Defendant Basilio Guifarro used an online media distribution system to
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`obtain copyrighted sound recordings owned by or licensed to Plaintiffs and distributed those
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`recordings to other users of the system and/or made the recordings available to the public.
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`(Compl. ¶¶ 9-11.) Because Defendant Basilio Guifarro has failed to answer or otherwise defend
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`this lawsuit, Plaintiffs’ Application for Entry of Default Judgment is granted.
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`I. BACKGROUND
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`Plaintiffs in this action are various recording companies, who are the copyright owners or
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`licensees of exclusive rights under the Copyright Act of various recordings, including:
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`1. “Dos Mujeres Un Camino” by Bronco
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`2. “Por Que Te Conci” by Los Temerarios
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`3. “Yo Te Necesito” by Los Bukis
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`4. “Te Quiero” by Los Temerarios
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`case 2:06-cv-00096-PPS-APR document 11 filed 10/30/06 page 2 of 10
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`5. “Flow” by Sade
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`6. “Mi Alma Reclama” by Los Temerarios
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`7. “Ti Hice Mal” by Los Temerarios
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`8. “Que No Quede Huella” by Bronco
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`9. “Tu Y Tu” by Thalia
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`10. “Tu Solo Tu” by Selena
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`(Compl. Ex. A.) In the one count asserted in their complaint, Plaintiffs claim that Defendant,
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`without their permission, used an online media distribution system to download, distribute, and
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`make available for distribution these copyrighted recordings for which Plaintiffs are the
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`copyright owners or exclusive licensees. (Id. at ¶¶ 9-11.) Plaintiffs allege that “Defendant's
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`actions constitute infringement of Plaintiffs’ copyrights and exclusive rights under copyright.”
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`(Id. at ¶ 11.)
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`Plaintiffs filed their complaint in this matter on March 17, 2006 [Doc. 1]. Defendant was
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`served with the Summons and Complaint on March 24, 2006 by personal service [Doc. 6].
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`Defendant failed to appear, plead or otherwise defend the lawsuit as provided by the Federal
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`Rules of Civil Procedure. Plaintiffs submitted an affidavit from Joel E. Tragesser, an attorney
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`licensed to practice law in Indiana, stating that he is “informed and believe[s] that Defendant is
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`not an infant or incompetent person and, after consulting available public databases, is not in the
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`military service.” (Tragesser Aff. ¶ 5 [Doc. 10-2].) Furthermore, the process server, in his
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`Affidavit of Service, estimated that Defendant was more than fifty years old. (See Aff. of
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`Service [Doc. 10-5].) Accordingly, Plaintiffs filed a Request to Enter Default with the clerk of
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`the court on June 19, 2006 [Doc. 7], which the clerk entered on June 21, 2006 [Doc. 8]. On July
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`24, 2006, Plaintiffs filed an Application for Entry of Default Judgment [Doc. 10], which is
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`case 2:06-cv-00096-PPS-APR document 11 filed 10/30/06 page 3 of 10
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`presently before this Court.
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`Plaintiffs seek an award totaling $7,828.00. This figure includes: (1) $7,500.00 for the
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`minimum statutory damages provided by 17 U.S.C. § 504 ($750 each) for the ten alleged
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`infringements; and (2) $328.00 in costs pursuant to 17 U.S.C. § 505. (Pls.’ App. ¶ 4.)
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`Additionally, Plaintiffs seek an injunction pursuant to 17 U.S.C. § 502. (Id.)
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`A. Entry of Default Judgment
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`II. DISCUSSION
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`Rule 55 of the Federal Rules of Civil Procedure governs the entry of default and default
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`judgment. See Lowe v. McGraw-Hill Cos., Inc., 361 F.3d 335, 339 (7th Cir. 2004) (“The Federal
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`Rules of Civil Procedure make a clear distinction between the entry of default and the entry of a
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`default judgment.”) Prior to obtaining a default judgment under Rule 55(b)(2), there must be an
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`entry of default as provided by Rule 55(a). See Hill v. Barbour, 787 F. Supp. 146, 148 n.4 (N.D.
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`Ill. 1992). Under Rule 55(a), the clerk is to enter the default of a party against whom a judgment
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`is sought when that party has failed to plead or otherwise defend. Fed. R. Civ. P. 55(a). “This
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`entry is recognition of the fact that a party is in default for a failure to comply with the rules.”
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`See Hill, 787 F. Supp. at 148 n.4 (citing 6 Moore et al., Moore’s Federal Practice ¶ 55.03 (2d ed.
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`1985)).
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`As the clerk has entered default against Defendant in this case [Doc. 8], this Court may
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`now enter a default judgment under Federal Rule of Civil Procedure 55(b)(2). Rule 55(b) gives
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`district courts the power to enter default judgment, but requires courts to exercise sound judicial
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`discretion when doing so. See O’Brien v. R.J. O’Brien & Assocs., Inc., 998 F.2d 1394, 1398 (7th
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`Cir. 1993); Davis v. Hutchins, 321 F.3d 641, 646 (7th Cir. 2003). To enter default judgment, the
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`Court must conclude that Plaintiffs are entitled to judgment as a matter of law. See Cass County
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`case 2:06-cv-00096-PPS-APR document 11 filed 10/30/06 page 4 of 10
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`Music Co. v. Muedini, 55 F.3d 263, 265 (7th Cir. 1995). “In making this inquiry, the court must
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`assume that the factual allegations are, by reason of the default, true.” Id. at 265-66.
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`When deciding a motion for default judgment, a court may consider a number of factors
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`presented in the record, including the amount of money potentially involved, whether material
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`issues of fact or issues of substantial public importance are to be decided, whether the default is
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`largely technical, whether plaintiffs have been substantially prejudiced by the delay involved,
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`and whether the grounds for default are clearly established or are in doubt. 10A C. Wright, A.
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`Miller & M. Kane, Federal Practice and Procedure: Civil § 2685 (3d ed. 1998); see also
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`American Nat’l Bank & Trust Co. of Chicago v. Alps Elec. Co., Ltd., No. 99 C 6990, 2002 WL
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`484845, at *1 (N.D. Ill. March 29, 2002) (citing Federal Practice and Procedure: Civil § 2685).
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`In this case, the grounds for default judgment are clearly established. First, the default
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`goes beyond a mere technicality, as Defendant has not filed an answer or any responsive
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`pleadings since Plaintiffs filed their complaint on March 17, 2006. Defendant cannot be allowed
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`to completely ignore this suit. See 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, material issues of fact are not in dispute. In order for Plaintiffs to establish the
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`prima facie case of direct copyright infringement, they must satisfy two requirements: (1) they
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`must show ownership of the allegedly infringed material; and (2) they must demonstrate that the
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`alleged infringers violated at least one exclusive right granted to copyright holders. See 17
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`U.S.C. §§ 106, 501(a). The Supreme Court and the Seventh Circuit Court of Appeals have each
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`recently relied upon the assumption that posting or downloading music files constitutes primary
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`copyright infringement. See BMG Music v. Gonzalez, 430 F.3d 888, 889 (7th Cir. 2005), cert.
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`case 2:06-cv-00096-PPS-APR document 11 filed 10/30/06 page 5 of 10
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`denied, 126 S. Ct. 2032 (U.S. May 15, 2006) (citing MGM Studios, Inc. v. Grokster, Ltd., 125 S.
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`Ct. 2764 (2005)); In re Aimster Copyright Litig., 334 F.3d 643, 645 (7th Cir. 2003). Here,
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`Plaintiffs pled that they owned the copyrighted materials specified in Exhibit A and that
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`Defendant violated their exclusive rights to reproduce and distribute the copyrighted recordings
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`to the public by downloading and distributing the copyrighted recordings via an online media
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`distribution system. Therefore, the facts as stated in the Complaint establish direct copyright
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`infringement by Defendant.
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`Finally, Plaintiffs are entitled to the damages they request. Plaintiffs request minimum
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`statutory damages for each copyright violation as well as a permanent injunction barring
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`Defendant from further infringing activity. They also request an award of the costs of bringing
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`this action. The total monetary award equals a relatively small figure ($7,828.00), and Plaintiffs’
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`requests are reasonable and proper.
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`B. Monetary and Injunctive Relief
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`Normally, upon considering a motion for default judgment, a court must have a hearing
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`to determine damages. See Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722
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`F.2d 1319, 1323 (7th Cir. 1983). However, a hearing is not required if damages can be
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`ascertained from the documentary evidence or in detailed affidavits. See id. An evidentiary
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`hearing is unnecessary in this case.
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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).” 17 U.S.C. § 504(a). Under § 504(c), the copyright owner may
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`choose to recover statutory damages in lieu of actual damages any time prior to the entry of final
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`case 2:06-cv-00096-PPS-APR document 11 filed 10/30/06 page 6 of 10
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`judgment. § 504(c)(1). “This section provides that the author’s entitlement, per infringed work,
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`is ‘a sum of not less than $750 or more than $30,000 as the court considers just.’” BMG Music,
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`430 F.3d at 891. 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.” 17
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`U.S.C. § 502(a). Finally, the Court has discretion to award costs and fees to the prevailing party.
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`See § 505.
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`Here, Plaintiffs seek the minimum statutory damages ($750.00) for each of the ten
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`infringements alleged in the Complaint, for a total of $7,500.00. (Pls.’ App. at ¶ 4.) Awards of
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`statutory damages within the “statutory limits for copyright infringement damages is wholly
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`within the trial court’s discretion and sense of justice.” Weintraub/OKUN Music v. Atlantic Fish
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`& Chips, Inc., No. 90 C 4938, 1991 WL 34713, at *5 (N.D. Ill. March 13, 1991) (citations and
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`internal quotations omitted). While the actual damage to Plaintiffs by one individual
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`downloading ten songs via an online media distribution system may be minimal, default
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`judgment establishes that Plaintiffs are entitled to damages as a matter of law. See Doehrer v.
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`Caldwell, No. 79 C 394, 1980 WL 1158, at *2 (N.D. Ill. March 28, 1980). Thus, the Court finds
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`that: the damages sought by the Plaintiff are ascertainable from the Complaint; an evidentiary
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`hearing is unnecessary; and an award of $7,500.00 representing the minimum statutory damages
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`for all ten works infringed is appropriate.
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`Additionally, Plaintiffs request a permanent injunction barring Defendant from
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`reproducing or distributing any of Plaintiffs' copyrighted works as well as requiring Defendant to
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`destroy any works that he has already reproduced or distributed via the online media system.
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`Specifically, Plaintiffs request the following:
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`case 2:06-cv-00096-PPS-APR document 11 filed 10/30/06 page 7 of 10
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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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`(Pls.’ App. at 8.)
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`District courts in the Seventh Circuit have approved permanent injunctions when
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`granting default judgments against individuals whose actions infringed copyright law. In
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`Columbia Pictures, the district court granted default judgment against a website operator who,
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`without authorization, allowed users to download copyrighted movies and television shows.
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`Columbia Pictures Indus., Inc. v. May, No. 04-C-1192, 2006 WL 1085120, at *1-2 (E.D. Wis.
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`April 24, 2006). In addition to granting statutory damages, the court, pursuant to 17 U.S.C. §
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`502(a), permanently enjoined the defendant from continuing to infringe the plaintiffs’
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`copyrights. See id. The court reasoned that the plaintiffs’ injuries were “irreparable” and could
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`not be adequately compensated by monetary damages alone. Id. at *1. The court concluded that
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`the plaintiffs risked continued injury unless the defendant was permanently enjoined from
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`infringing the plaintiffs’ copyrights. Id.
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`Similarly, this Court previously issued the same injunction sought in the present action,
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`thereby enjoining a defendant from unlawfully downloading and/or distributing copyrighted
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`recordings. See UMG Recordings, Inc. v. Davito, No. 2:04CV479, 2005 WL 3776349 (N.D. Ind.
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`case 2:06-cv-00096-PPS-APR document 11 filed 10/30/06 page 8 of 10
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`June 17, 2005). In UMG Recordings, this Court acknowledged that monetary damages
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`inadequately address the harm caused by copyright infringement through unauthorized use of
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`online media distribution systems accessible by “tens of millions of potential users.” Id., at *3
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`(internal citations omitted). With these considerations in mind, the Court finds that the
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`permanent injunction requested here is appropriate.
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`Finally, Plaintiffs request their costs of $328.00. (Pls.’ App. at ¶ 4.) 17 U.S.C. § 505
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`provides that “recovery of full costs” may be granted by the Court in the exercise of its
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`discretion. 17 U.S.C. § 505. Defendant failed to respond in any manner to this lawsuit.
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`Accordingly, an award of Plaintiffs’ full costs are appropriate, and Plaintiffs’ request of $328.00
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`is reasonable.
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`III. CONCLUSION
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`For the foregoing reasons, Plaintiffs’ Application for Entry of Default Judgment [Doc.
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`10] is GRANTED. It is also ORDERED that:
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`1. Plaintiffs seek the minimum statutory damages of $750 per infringed work, as
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`authorized under the Copyright Act (17 U.S.C. § 504(c)(1)), for each of the ten sound recordings
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`listed in Exhibit A to the Complaint. Accordingly, having been adjudged to be in default,
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`Defendant shall pay damages to Plaintiffs for infringement of Plaintiffs' copyrights in the sound
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`recordings listed in Exhibit A to the Complaint, in the total principal sum of Seven Thousand
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`Five Hundred Dollars ($7,500.00);
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`2. Defendant shall be and hereby is enjoined from directly or indirectly infringing
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`Plaintiffs’ rights under federal or state law in the following copyrighted sound recordings:
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`“Dos Mujeres Un Camino” on album “Oro 2000” by artist Bronco (SR# 259-010);
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`case 2:06-cv-00096-PPS-APR document 11 filed 10/30/06 page 9 of 10
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`“Por Que Te Conci” on album “Como Te Recuerdo” by artist Los Temerarios (SR# 250-
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`381);
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`“Yo Te Necesito” on album “Yo Te Necesito” by artist Los Bukis (SR# 149-684);
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`“Te Quiero” on album “Te Quiero” by artist Los Temerarios (SR# 233-242);
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`“Flow” on album “Lovers Rock” by artist Sade (SR# 298-354);
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`“Mi Alma Reclama” on album “Camino Del Amor” by artist Los Temerarios (SR# 232-
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`938);
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`“Te Hice Mal” on album “En La Madrugada Se Fue” by artist Los Temerarios (SR# 278-
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`322);
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`“Que No Queda Huella” on album “20 Exitos” by artist Bronco (SR# 256-014);
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`“Tu Y Yo” on album “Thalia” by artist Thalia (SR# 317-586); and
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`“Tu Solo Tu” on album “Dreaming of You” by artist Selena (SR# 210-307);
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`and in any other sound recording, whether now in existence or later created, that is owned or
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`controlled by Plaintiffs (or any parent, subsidiary, or affiliate record label of Plaintiffs)
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`(“Plaintiffs' Recordings”), 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' Recordings, to distribute (i.e.,
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`upload) any of Plaintiffs' Recordings, or to make any of Plaintiffs' Recordings available for
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`distribution to the public, except pursuant to a lawful license or with the express authority of
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`Plaintiffs. Defendant also shall destroy all copies of Plaintiffs' Recordings that Defendant has
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`downloaded onto any computer hard drive or server without Plaintiffs' authorization and shall
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`destroy all copies of those downloaded recordings transferred onto any physical medium or
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`device in Defendant's possession, custody, or control; and
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`3. Defendant shall further pay Plaintiffs’ costs of suit herein in the amount of Three
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`case 2:06-cv-00096-PPS-APR document 11 filed 10/30/06 page 10 of 10
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`Hundred and Twenty-Eight Dollars ($328.00).
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`The Clerk is directed to enter FINAL JUDGMENT stating that Plaintiffs are entitled to
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`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: October 30, 2006
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`s/ Philip P. Simon
`PHILIP P. SIMON, JUDGE
`UNITED STATES DISTRICT COURT
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