Case 3:05-cv-01314-RGJ-KLH Document 39 Filed 07/11/06 Page 1 of 10 PageID #: 392
`Case 3:O5—cv—O1314—RGJ—KLH Document 39 Filed 07/11/06 Page 1 of 10 Page|D #: 392
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`R E C E I V E D
`II HOWHOE, LA
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`JUL 1 1 2005
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`mm H%LL mm
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`wcsrm mam or l_bur5.4,L:,,q
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`UNITED STATES DISTRICT COURT
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`WESTERN DISTRICT OF LOUISIANA
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`MONROE DIVISION
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`LAVA RECORDS, LLC, ET AL.
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`CIVIL ACTION NO. 05-1314
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`VERSUS
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`JUDGE ROBERT G. JAMES
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`JENNIFER ATES, ET AL.
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`MAG. JUDGE KAREN L. HAYES
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`RULING
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`Pending before the Court is a Motion for Summary Judgment [Doc. No. 33] filed by
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`Plaintiffs Lava Records, LLC; Atlantic Recording Corporation; UMG Recordings, Inc.; Warner
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`Bros. Records Inc.; and Arista Records, LLC against Defendant Matthew Ates. Defendant has
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`filed no opposition to the motion.
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`For the following reasons, Plaintiffs’ Motion for Summary Judgment is GRANTED.
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`I.
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`FACTS
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`The facts in this case are undisputed. Plaintiffs are engaged in the creation, manufacture,
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`distribution andfor sale of sound recordings. In connection with their business, Plaintiffs
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`generally enter into contracts with musical performers, so that Plaintiffs own the copyrights in
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`the sound recordings featuring the performers or have exclusive reproduction andfor distribution
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`rights under copyright in sound recordings featuring the performers.
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`Plaintiffs have identified and provided evidence that they own valid copyrights or have
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`

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`the exclusive rights under copyright in twenty-five (25) registered sound recordings}
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`(1)
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`(2)
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`(3)
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`(4)
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`(5)
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`(5)
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`(7)
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`(3)
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`(9)
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`(10)
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`(11)
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`(12)
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`(13)
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`(14)
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`(15)
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`(16)
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`(17)
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`(13)
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`(19)
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`(20)
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`(21)
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`(22)
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`‘The sound recordings and their owners are as follows:
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`Atlantic Recording Corporation, owner of sound recording number 303-764 by artist Tracy
`Lawrence on the album Lessons Learned;
`UMG Recordings, Inc., owner of sound recording number 278-184 by the artist George Strait on
`the album Latest Greatest Strait Hits;
`Warner Bros. Records, Inc., owner of sound recording number 288-402 by the artist Linkin Park
`on the albtun Hybrid Theory;
`Lava Records LLC, the owner of sound recording number 284-961 by artist Trans-Siberian
`Orchestra on the album Beethoven ’s Last Night;
`Arista Records, LLC, the owner of sound recording number 138-302 by artist Alan Jackson on
`the album Don ‘t Rock the Jukebox;
`Arista Records, LLC, the owner of sound recording number 312-786 by artist Avril Lavigne on
`the album Let Go;
`Warner Bros. Records Inc., the owner of sound recording number 52-319 by artist Van Halen on
`the album 1984 (MCMLXXXIV);
`Arista Records LLC, the owner of sound recording number 302-233 by artist Aderna on the
`album Aderna;
`UMG Recordings, Inc., the owner of sound recording number 85-358 by artist Guns N Roses on
`the album Appetitefor Destruction;
`UMG Recordings, Inc., the owner of sound recording number 293-376 by artist Godsmack on the
`album Awake;
`Warner Bros. Records Inc., the owner of sound recording number 316-958 by artist Disturbed on
`the album Believe;
`Warner Bros. Records Inc., the owner of sound recording number 135-276 by artist Red Hot
`Chili Peppers on the album Blood Sugar Sex Magik;
`Warner Bros. Records Inc., the owner of sound recording number 174-922 by artist Red Hot
`Chili Peppers on the album Cahfornicaiion;
`Warner Bros. Records Inc., the owner of sound recording number 246-538 by artist Goo Goo
`Dolls on the album Dizzy Up the Girl;
`Atlantic Recording Corporation, the owner of sound recording number 24-682 by artist Phil
`Collins on the album Face Value;
`Arista Records, LLC, the owner of sound recording number 147-716 by artist Alan Jackson on
`the album Lot About Livin’ (And a Little ‘bout Love);
`UMG Recordings, Inc., owner of sound recording number 78-741 by the artist George Strait on
`the album Ocean Front Property;
`UMG Recordings, Inc., owner of sound recording number N8 871 by the artist Lynyrd Skynyrd
`on the album Pronounced Len ’-nerd Skin ’-nerd (the song Simple Man);
`UMG Recordings, Inc., owner of sound recording number N8871 by the artist Lynyrd Skynyrd
`on the album Pronounced Len ’-nerd Skin ’—nerd (the song Free Bird);
`UMG Recordings, Inc., owner of sound recording number 146-421 by the artist George Strait on
`the album Pure Country;
`Atlantic Recording Corporation, the owner of sound recording number 303-757 by the artist
`P.0.D. on the album Satellite;
`UMG Recordings, Inc., owner of sound recording number 71-794 by the artist Bon Jovi on the
`
`2
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`

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`The copyrights to these sound recordings are registered with the United States Copyright Office.
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`Somewhere during the year 2000 or 2001, Defendant put an online media distribution
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`system known as
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`on his mother’s computer. While he was in high school, between the
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`years of 2000 or 2001 and 2004, Defendant used the program to download or copy the twenty-
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`five identified sound recordings to his mother’s computer hard drive? Defendant did not have
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`Plaintiffs’ authorization to copy or distribute any of their sound recordings.
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`II.
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`LAW AND ANALYSIS
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`A.
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`Unopposed Motions for Summary Judgment
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`Summary judgment is appropriate only when the pleadings, depositions, answers to
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`interrogatories and admissions on file, together with any affidavits, show that there are no genuine
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`issues as to any material fact and that the moving party is entitled to judgment as a matter of law.
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`Fed. R. Civ. P. 56(0). The moving party bears the initial burden of informing the court of the basis
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`for its motion by identifying portions of the record which highlight the absence of genuine issues of
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`material fact. Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992). A fact is “material" if
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`proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law
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`in the case. Anderson v. Liberty Lobby, Inc, 4?‘? U.S. 242, 248 (1986). A dispute about a material
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`(23)
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`(24)
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`(25)
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`album Slippery When Wet;
`UMG Recordings, h1c., owner of sound recording number 227-407 by the artist 3 Doors Down
`on the album The Better Life;
`UMG Recordings, Inc., owner of sound recording number 107-674 by the Artist Vince Gill on
`the album When I Call Your Name; and
`UMG Recordings, Inc., owner of sound recording number 190-152 by the artist Vince Gill on the
`album When Love Finds You.
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`[Doc.No. 33.5, p. 1 & 33-6, p. 1].
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`2Plaint:iffs contend that Defendant downloaded hundreds of sound recordings, but they only seek
`recovery on the basis of the twenty-five identified sound recordings.
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`3
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`

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`fact is “genuine" if the evidence is such that a reasonable fact finder could render a verdict for the
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`nonmoving party. Id. The moving party cannot satisfy its initial burden simply by setting forth
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`conclusory statements that the nonmoving party has no evidence to prove its case. Ashe v. Carley,
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`992 F.2d 540, 543 (5th Cir. 1993).
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`Ifthe moving party can meet the initial burden, the burden then shifts to the nonmoving
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`party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache
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`Corp, 19 F.3d 1017, 1023 (5th Cir. 1994). The nonmoving party must show more than “some
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`metaphysical doubt as to the material facts.” Matsushita Eiec. Indus. Co., Ltd. v. Zenith Radio
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`Corp, 475 U.S. 574, 586 (1986). “The party opposing summary judgment is required to identify
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`specific evidence in the record and to articulate the precise manner in which the evidence
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`supports his or her claim. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)
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`A motion for summary judgment cannot be granted simply because there is no opposition,
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`even if the failure to oppose it violates a local rule. Hibernia Nat 7 Bank v. Administracion
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`Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985). However, when a nonmovant
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`fails to provide a response identifying the disputed issues of fact, the court may accept the
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`movant’s description of the undisputed facts as prima facie evidence of its entitlement to
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`judgment. Eversley v. Mbanic Dallas, 843 F.2d 172, 173-74(5th Cir. 1999); Nor-Dar Holdings,
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`Inc. v. W Sec. (USA) Ltd ., No. 3:96-CV-0427-H, 1996 WL 39019, *2 (N.D. Tex. Dec. 18,
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`1996)
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`B.
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`Copyright Infringement
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`The Copyright Act, 17 U.S.C. §§ 101, 106, 501-505 (2005), grants a copyright owner of a
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`sound recording the exclusive rights to “reproduce the copyrighted work in copies or
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`

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`phonorecords” and “distribute copies or phonorecords of the copyrighted work to the public.” 17
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`U.S.C. § 106(1) & (3).
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`In order to prevail on their copyright infiingement claim, Plaintiffs must prove that (1)
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`they own the copyrights in the sound recordings and (2) Defendant impermissibly copied those
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`sound recordings or otherwise infringed upon their copyrights. Quintanilla v. Texas Television
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`Inc. 139 F.3d 494, 500 (5th Cir. 1998) (citing DSC Communications Corp. v. DGI Techs., Inc,
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`81 F.3d 597, 600 (5th Cir. 1996)).
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`111 this case, it is undisputed that Plaintiffs meet both requirements. Plaintiffs have
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`provided summary judgment-appropriate evidence to show that they own the copyrights in the
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`sound recordings in question, and Defendant has failed to rebut that evidence. Further,
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`Defendant admitted in his deposition that he downloaded or copied the sound recordings without
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`Plaintiffs’ permission. [Doc. No. 33-7]; see, e.g., BMG Music v. Gonzalez, 430 F.3d 888, 893
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`(7th Cir. 2005) (upholding summary judgment where the defendant admitted to downloading
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`copyrighted sound recordings over the Internet); In re: Aimster Copyright Ling, 334 F.3d 643,
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`645 (7th Cir. 2003) (“[M]aking .
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`.
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`. a digital copy of [copyrighted] music .
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`.
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`. infringes
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`copyright"); A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001)
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`(“Napster users who download files containing copyrighted music violate plaintiffs’ reproduction
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`rights”).
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`Accordingly, there is no genuine issue of material fact for trial as to liability, and
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`Plaintiffs are entitled to summary judgment in this matter.
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`C.
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`Damages
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`Having found that Defendant is liable to Plaintiffs for copyright infringement, the Court
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`

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`must also determine whether Plaintiffs have presented sufficient evidence to support their claim
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`for damages as a matter of law.
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`With regard to damages, the Copyright Act provides as follows:
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`[T]he 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 infiinger is liable individually, or for which 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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`17 U.S.C. § 504(c)(1).
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`In this case, Plaintiffs seek the minimum statutory damages of $750.00 per work in lieu of
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`actual damages and profits. See Mason v. Montgomery Data, Inc, 967 F.2d 135, 143 (5th Cir.
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`1992) (In cases involving multiple infringements and multiple infringed works, “the total number
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`of ‘awards’ of statutory damages .
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`.
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`. that a plaintiff may recover in any given action depends on
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`the number of works that are infringed .
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`.
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`. regardless of the number of infringements of those
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`works”).
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`lfP1aintiffs sought more than the minimum statutory damages, then Defendant would be
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`entitled to a jury trial on the amount. See Feltner v. Columbia Pictures Television, Ina, 523 U.S.
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`340 (l998).“ However, if, as in this case, Plaintiffs seek only the minimum statutory amount,
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`3The statute further provides increased penalties for a “willful” infringement, see 17 U.S.C. §
`504(c)(2), but Plaintiffs do not contend that Defendant acted willfully, nor could they based on
`Defendant’s deposition testimony.
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`4111 Fettner, the Supreme Court “disce-rn[ed] no statutory right to a juiy trial when a copyright
`owner elects to recover statutory damages," but held that “the Seventh Amendment provides a right to a
`jury trial on all issues pertinent to an award of statutory damages under § 504(c) of the Copyright Act,
`including the amount itself.” Id. at 347-48.
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`

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`then courts have routinely held that an award of $750.00 per work is appropriately awarded by
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`summary judgment. See BMG Music v. Gonzalez, 430 F.3d 888, 892 (7‘“ Cir. 2005) (Discussing
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`Felmer and explaining that “cases under 504(0) are normal civil actions subject to the normal
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`allocation of functions between judge and jury. When there is a material dispute of fact to be
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`resolved or discretion to be exercised in selecting a financial reward, then either side is entitled to
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`a jury’; but where plaintiffs seek only the minimum statutory amount, then summary judgment
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`“is permissible”); see also, e.g., Capitol Records v. Lyons, No. Civ.A.3:03-CV-2018-L, 2004
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`WL 1732324 at *4 (N.D. Tex. Aug. 2, 2004)(Where defendant defaulted, his acts of infringement
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`were deemed admitted and no hearing was necessary prior to an award of the minimum $750.00
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`per work). This Court agrees and finds that Plaintiffs are entitled to an award of $750.00 per
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`work for a total statutory damage award in the amount of $18,750.00.
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`D.
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`Injunctive Relief
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`Plaintiffs further seek a permanent injunction against Defendant to ensure that he does
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`not again engage in infringement of their copyrights and an order requiring him to delete all
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`infringing materials from his mother’s computer?
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`Pursuant to 17 U.S.C. § 502(a), the Court “may .
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`.
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`. grant temporary and final injunctions
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`on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” In
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`determining whether to grant a request for permanent injunctive relief, the Court must consider
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`“traditional equitable considerations.” See eBay Inc. v. MercExchange, LL. C., 126 S.Ct. 1837,
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`1840 (2006) (“Like the Patent Act, the Copyright Act provides that courts ‘may’ grant injunctive
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`5Plaintiffs state that they seek an order requiring Defendant to delete the infringing materials
`from “his computer,” but the evidence clearly provides that he downloaded the materials to his mother’s
`computer.
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`

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`relief ‘on such terms as it may deem reasonable to prevent or restrain infringement of a
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`copyright’ .
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`.
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`. And as in our decision today, this Court has consistently rejected invitations to
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`replace traditional equitable considerations with a rule that an injunction automatically follows a
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`determination that a copyright has been infringed”).
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`The Court has considered the four-factor test approved by the Supreme Court for
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`determining injunctive relief: (1) whether Plaintiffs would face irreparable injury if the injunction
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`did not issue, (2) whether Plaintiffs have an adequate remedy at law, (3) Whether granting the
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`injunction is in the public interest, and (4) whether the balance of the hardships tips in Plaintiffs’
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`favor. Id. (The Supreme Court notes that the district court recited the traditional four-factor test
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`in Mercexchange, L.L. C. v. eBay, Inc, 275 F.Supp.2d 695, 711 (E.D. Va. 2003), but that neither
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`the district nor appellate court properly applied the test). After consideration, the Court finds that
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`a permanent injunction is appropriate because of the strong public interest in copyright
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`protection; the need to prevent irreparable harm to Plaintiffs, which will not be remedied by a
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`damage award that may or may not be collectible; and the need to deter future infringement by
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`Defendant and others. See BMG Music, 430 F.3d 888 at 893 (“An injunction remains
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`appropriate to ensure that the misconduct does not recur as soon as the case ends.). The Court
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`fitrther notes that the balance weighs strongly in favor of Plaintiffs where all that is requested is
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`that Defendant comply with the Copyright Act.
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`Accordingly, Plaintiffs are entitled to a permanent injunction as follows:
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`Defendant is permanently enjoined from directly or indirectly infringing
`Plaintiffs’ rights under federal or state law in the copyrighted sound recordings
`identified in this lawsuit 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
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`

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`limitation by using the Internet or any online media distribution system to
`reproduce or download any of Plaintiffs’ recordings, to distribute or 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 must also 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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`E.
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`Costs
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`Plaintiffs also seek recovery of court costs in the amount of $350.00 for filing fees and
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`service of process. The Copyright Act provides for recovery of costs:
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`In any civil action under this title, the court in its discretion may allow the
`recovery of full costs by or against any party other than the United States or an
`officer thereof. Except as otherwise provided by this title, the court may also
`award a reasonable attorney’s fee to the prevailing party as part of the costs.
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`17 U.S.C. § 505; see alsoA & NMusic Corp. v. Venezia, 733 F. Supp. 955, 959 (ED. Penn.
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`1990) (Section 505 authorizes recovery of costs to “(1) deter future copyright infiingement; (2)
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`ensure that all holders of copyrights which have been infringed will have equal access to the
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`court to protect their works; and (3) penalize the losing party and compensate the prevailing
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`Party”)-
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`The Court finds that Plaintiffs have properly supported their request for reasonable court
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`costs, and Defendant has not opposed their request. Thus, Plaintiffs are entitled to recover the
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`amounts they seek.
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`III.
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`CONCLUSION
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`For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment [Doc. No. 33] is
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`GRANTED, and judgment is entered in favor of Plaintiffs and against Defendant. The Court
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`

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`finds, as a matter of law, that Defendant Matthew Ates infringed Plaintiffs’ copyrights in twenty-
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`five (25) sound recordings in violation of the Copyright Act.
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`The Court further finds that statutory damages, injunctive relief, and costs should be
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`ordered against Defendant. Defendant is required to pay statutory damages in the amount of
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`$750.00 per recording, for a total award in the amount of $18,750.00, as well as Court costs in
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`the amount of $350.00. Defendant is also permanently enjoined as set forth above.
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`MONROE, LOUISIANA, this
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`I
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`1
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`day of
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`, 2006.
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`
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`ROBERT G
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`UNITED STATES DI
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`10