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`MALIBU MEDIA, LLC,
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`Plaintiff,
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`» v.
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`[REDACTED]
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`Defendant.
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`7%
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`7':
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`Case No.: PWG-14—261
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`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 1 of 9
`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF MARYLAND
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`Southern Division
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`MEMORANDUM OPINION
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`Plaintiff Malibu Media, LLC (“Malibu”) filed this action for copyright infringement
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`under 17 U.S.C. §§ 101—122 against Defendant on January 28, 2014. Compl, ECF No.1.
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`Malibu has since filed a Motion for Default Judgment, ECF No. 34, to which Defendant has not
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`responded. Having reviewed the filings, I find that a hearing is unnecessary in this case. See
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`Loc. R. 105.6 (D. Md). Malibu has demonstrated Defendant’s liability and has established its
`entitlement to the damages and injunctive relief it seeks. Accordingly, I will grant Plaintiffs
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`Motion for Default Judgment.
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`mm
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`Malibu, a California—based company doing business as X-Artcom, alleges that Defendant
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`violated the United States Copyright Act of 1976 (“Copyright Act”) by using the BitTorrent file
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`distribution network to distribute adult pornographic films subject to copyrights held by Malibu.
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`Am. Compl. W 29—30, ECF No. 19.
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`BitTorrent is a peer-to-peer file sharing system that allows users to interact with one
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`another to distribute large files, including digital movie files. Am. Compl. fl 10.
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`Individuals
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`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 2 of 9
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`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 2 of 9
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`often use BitTorrent to obtain and circulate infringed copyright content. George Ou, Princeton
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`Study — 99% ofBitTorrenl‘ Files Pirated, Digital Society (Jan. 29, 2012), ECF No. 34-3. The
`system allows users to distribute an entire file by sending small “bits” individually. Am. Compl.
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`1] 12. Malibu alleges that its investigator, IPP International UG, downloaded one more or more
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`“bits” of 25 of Malibu’s copyrighted films from Defendant’s Internet Protocol address (“IP
`address”). Am. Compl. 1] 18.. Those downloads are the basis for this claim.
`Initially, Malibu identified Defendant only by an IP address assigned to a customer on a
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`- specific date by an Internet Service Provider (“ISP”). Compl. 11 9. Accordingly, Malibu moved
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`to expedite discovery and serve a third~party subpoena on the ISP to obtain the identity of
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`Defendant prior to a Rule 26(f) conference. ECF No. 4. The court granted the motion subject to
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`conditions and limitations dictated by the sensitive nature of the action and the uncertainty
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`surrounding the specificity of IP addresses. ECF No. 6. Malibu then filed an Amended
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`Complaint against Defendant,
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`to which Defendant has not responded. The Clerk entered a
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`default, ECF No. 32, and Malibu then filed the pending motion for default judgment seeking an
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`award of statutory damages, injunctive relief, and attorney’s fees and costs, ECF No. 34.
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`Standard of Review
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`Rule 55 of the Federal Rules of Civil Procedure establishes a two—step process when a
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`party applies for default judgment. First, the rule provides that “when a party .
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`.
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`. has failed to
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`plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must
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`enter the party's default.” Fed. R. Civ. P. 55(a). Following the Clerk’s entry of default, “the
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`plaintiff [then may] seek a default judgment.” Godlove v. Martinsburg Senior Towers, LP, No.
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`14-CV—132, 2015 WL 746934, at *1 (N.D.W. Va. Feb. 20, 2015); see also Fed. R. Civ. P. 55(b).
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`“The Fourth Circuit has a ‘strong policy’ that ‘cases be decided on their merits.’ ” SE. C. v.
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`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 3 of 9
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`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 3 of 9
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`Lawbaugh, 359 F. Supp. 2d 418, 420 (D. Md. 2005) (citing Dow v. Jones, 232 F. Supp. 2d 491,
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`494 (D. Md. 2002)). However, “default judgment may be appropriate when the adversary
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`process has been halted because of an essentially unresponsive party.” Id. at 420—22.
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`In determining whether to grant a motion for default judgment, the Court takes as true the
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`well-pleaded factual allegations in the complaint, other than those pertaining to damages. Ryan
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`v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001).
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`If the Court finds that
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`“liability is established, [it] must then determine the appropriate amount of damages. Agora
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`Fin, LLC v. Samler, 725 F. Supp. 2d 491, 484 (citing Ryan, 253 F.3d at 780—81).
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`In order to do
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`so, “the court may conduct an evidentiary hearing, or may dispense with a hearing if there is an
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`adequate evidentiary basis in the record from which to calculate an award.” Mata v. G. 0.
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`Contractors Grp., Ltd, No. TDC-14-3287, 2015 WL 6674650, at *3 (D. Md. Oct. 29, 2015); see
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`also Fed. R. Cin P. 55(b).
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`‘
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`W
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`Plaintiff moves for default judgment against Defendant for direct copyright infringement
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`and seeks an award of statutory damages, injunctive relief, and attorney's fees and costs.
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`To establish copyright infringement liability, a plaintiff must prove two elements: (1)
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`ownership of the copyright; and (2) copying of original constituent elements by the alleged
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`defendant. 17 U.S.C. § 501(a); see also Feist Publ’ns, Inc. v. Rural Tel. Serv. Co, 499 US. 340,
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`361 (1991). Malibu has met its burden through its pleadings by alleging it owns the 25
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`copyrights that Defendant obtained and distributed through BitTorrent. See Am. Compl. fl 17.
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`Exhibit B of the Amended Complaint supports Malibu’s assertion of ownership over the 25
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`copyrights, and Exhibit A supports its assertion that those copyrights were downloaded, copied,
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`and distributed from Defendant's IP address using BitTorrent. Am. Compl. Exs. A, B, ECF Nos.
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`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 4 of 9
`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 4 of 9
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`19-1, 19-2. Because the court takes the well-pleaded allegations in a complaint as true upon
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`entry of default, Malibu has established Defendant’s liability for copyright infringement by
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`default. See Ryan, 253 F.3d at 780. Accordingly, only questions of the appropriate relief remain.
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`Statutory Damages
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`Malibu requests statutory damages of $750.00 per Video, for a total of $18,750.00. Pl.’s
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`Mem. 9. Under § 504(a) of the Copyright Act, an infringer of copyright is liable for either: (1)
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`the copyright owner’s actual damages and any additional profits that the infringer has obtained;
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`or (2) statutory damages as provided by the statute.
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`17 U.S.C. § 504(a). Section 504(c)(1)
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`authorizes statutory damages in an amount “not less than $750 or more than $30,000 as the court
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`considers just.”
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`17 U.S.C § 504(c)(1); see also Patrick Collins, Inc. v. Gillispie, No. 11-cv-
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`01776-AW, 2012 WL 666001, at *3 (D. Md. Feb. 23, 2012). The court has broad discretion in
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`setting the amount of statutory damages under the Copyright Act. Microsoft Corp. v. Grey
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`Comput, 910 F. Supp. 1077, 1091 (D. Md. 1995) (citing Shell Oil Co. v. Commercial Petroleum,
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`Inc, 928 F.2d 104, 108 (4th Cir. 1991)).
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`The court may also award a maximum of $150,000.00 in enhanced damages if a plaintiff
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`proves the defendant committed the infringement willfully. 17 U.S.C. § 504(c)(2). Courts have
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`determined that an award of enhanced damages under § 504(c)(2) is only appropriate when the
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`plaintiff shows the infringer “either had actual knowledge that it was infringing the owner’s
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`copyrights or acted in reckless disregard of those rights.” See Lawry’s Reports, Inc. v. Legg
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`Mason, Inc, 271 F. Supp.2d 737, 753 (D. Md. 2003). Plaintiff does not seek enhanced damages,
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`and judges in this district have routinely refused to grant enhanced damage awards in cases
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`similar to this. See, Malibu Media, LLC v. [Redacted], CCB—15-1700, 2016 WL 245235, at *1
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`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 5 of 9
`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 5 of 9
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`(D. Md. Jan. 21, 2016); Gillispie, 2012 WL 666001, at *3. Accordingly, enhanced damages are
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`not appropriate in this case.
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`When awarding statutory damages pursuant to § 504(c)(1), which allows awards between
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`$750.00 and $30,000.00 per infringement, courts consider a variety of factors. See Malibu
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`Media, LLC v. [Redacted], 2016 WL 245235, at *2. Judge Blake identifies these factors:
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`(1) [W]hether the defendant was the original provider of the infringed content to
`its distribution network; (2) whether, and how much, the defendant profited or
`saved in connection with the infringement;
`(3) plaintiffs actual
`losses;
`(4)
`whether the plaintiff‘s request would result in a “windfall”; (5) the deterrent effect
`of statutory damages; and (6) the defendant's willfulness and intent in infringing
`the plaintiffs protected content.
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`Id. Under the above analysis, Judge Blake determined the statutory minimum of $750.00 per
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`infringed work was not only sufficient, but excessive. 1d. at *2 n.2.
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`The recent trend in courts across the country is to award the minimum
`statutory award of $750.00 per violation to Malibu or other plaintiffs in similar
`infringement actions. See, e.g., Malibu Media, LLC v. [Redacted], 2016 WL
`245235, at *1 (awarding $750.00 per work, totaling $92,250.00); Malibu Media,
`LLC v. Powell, No. 1:15-CV-1211, 2016 WL 26068, at *1 (MD. Pa. Jan. 5,2016)
`(awarding $750.00 per work, totaling $39,750.00); Malibu Media, LLC v. Saari,
`No. 1:14-cv-00860—JMS-MJD, 2015 WL 5056887, at *2 (SD. Ind. Aug. 26,
`2015) (awarding $750.00 per work, totaling $9,750.00); Malibu Media, LLC v.
`Caswell, No. 2:14-cv-837, 2015 WL 3822904, at *2 (SD. Ohio June 19, 2015)
`(awarding $750.00 per work,
`totaling $21,750.00); Malibu Media, LLC v.
`Funderburg, No. 1:13-cv-02614, 2015 WL 1887754, at *4 (ND. Ill. April 24,
`2015) (awarding $750.00 per work, totaling $9,000.00). Prior to 2015, courts
`often awarded statutory damages between $1,500.00 and $2,500.00 per violation.
`See, e.g., Malibu Media, LLC v. Cowham, No. 3:13—cv-00162-PPS-CAN, 2014
`WL 2453027, at *2 (ND. Ind. June 2, 2014) (awarding $1,500.00 per work,
`totaling $36,000.00); Malibu Media, LLC v. Goodrich, No. 12-cv—01394, 2013
`WL 6670236, at *11 (D. Colo. Dec. 18, 2013) (awarding $2,250.00 per work,
`totaling $36,000.00); Malibu Media, LLC v. Brenneman, N0. 3:13-cv-00332-PPS-
`CAN, 2013 WL 6560387, at *3 (ND. Ind. Dec. 13, 2013)(awarding $1,500.00
`per work,
`totaling $16,500.00). Many of the recent cases, however, note the
`growing judicial concern with “the rise of so-called ‘copyright trolls’ in the adult
`film industry, meaning copyright holders who seek copyright
`infringement
`damages not to be made whole, but rather as a primary or secondary revenue
`stream and file mass lawsuits against anonymous Doe defendants with the hopes
`of coercing settlements.” Malibu Media, LLC v. Brenneman, 2013 WL 6560387,
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`5
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`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 6 of 9
`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 6 of 9
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`at *3 (citing Third Degree Films v. Does 1—47, 286 F.R.D. 188, 189-90 (D. Mass.
`2012); James DeBriyn, Shedding Light on Copyright Trolls: An Analysis of Mass
`Copyright Litigation in the Age ofStatutory Damages, 19 UCLA Ent. L. Rev. 79,
`86 (2012)).
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`Malibu Media, LLC v. [Redacted], No. DKC015-750, 2016 WL 3668034, at *3 (D. Md. July 11,
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`2016). An award of the statutory minimum for each of the 25 infringed works accomplishes will
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`accomplish Malibu’s goal of deterring infringers from engaging in piracy of its works.
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`Accordingly, I will award Malibu the requested $18,750.00.
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`Injunctive Relief
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`In addition to monetary damages, Malibu seeks injunctive relief pursuant to 17 U.S.C. §§
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`502(a) and 503(b). Specifically, Malibu requests the Court (1) permanently enjoin Defendant
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`from continuing to infringe the company’s copyrights; (2) order Defendant to delete and forever
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`remove digital media files relating to Malibu’s copyrights from all of Defendant’s computers;
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`and (3) order Defendant to delete and forever remove the infringing copies of the copyrights
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`Defendant has on his computers. P1.’s Mem. 10.
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`As to Malibu’s first request, § 502(a) provides that “[a]ny court having jurisdiction of a
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`civil action arising under [the Copyright Act] may .
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`.
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`. 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). As to Malibu’s second and third requests, § 503(b) provides further relief,
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`stating that “the court may order the destruction .
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`.
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`. of all copies .
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`.
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`. found to have been made or
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`used in violation of the copyright owner's exclusive rights .
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`.
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`. .” 17 U.S.C. § 503(b). To obtain a
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`permanent injunction, “a plaintiff must show (1) irreparable injury, (2) remedies at law are
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`inadequate to compensate for that injury, (3) the balance of hardships between the plaintiff and
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`defendant warrants a remedy, and (4) an injunction would not disserve the public interest.”
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`and 503(b) of the Copyright Act.
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`Attorney’s Fees and Costs
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`Malibu requests $1,182.00 in attorney’s fees and $475.00 in costs. Pl.’s Mem. 12—13;
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`Hoppe Decl. 1]] 8—9, ECF No. 34-5. “In any action under [the Copyright Act], the court in its
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`discretion may allow the full recovery of Costs .
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`.
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`.
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`the court may also award a reasonable
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`attorney's fee to the prevailing party as part of the costs.”
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`17 U.S.C. § 505; see also Malibu
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`Media, LLC v.
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`[Redacted], 2016 WL 245235, at *1.
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`“The most useful starting point for
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`determining the amount of a reasonable fee is the number of hours reasonably expended on the
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`litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 US. 424, 433
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`(1983). This approach is commonly known as the “lodestar” method. Grissom v. The Mills
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`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 7 of 9
`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 7 of 9
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`Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015) (quoting Monsanto Co. v. Geerston Seed
`Farms, 561 US. 139, 156-57 (2010)).
`V
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`I find that Malibu has established each of the [four elements. Damages cannot make
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`Malibu whole because so long as Defendant retains copies of the infringed work on his
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`computers, they will continue to be disseminated through BitTorrent, continuously compounding
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`Malibu’s injuries. See Pl.’s Mem. 11. Thus, Malibu has demonstrated irreparable injury and the
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`inadequacy of remedies at law. The balance of hardships also favors Mailbu because any injury
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`that Defendant would suffer as the as a result of the injunction would “be a result of [Defendant]
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`ceasing the allegedly infringing conduct.” Medias & Ca, Inc. v. Ty, Inc, 106 F.Supp.2d 1132,
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`1140 (D. Colo. 2000).
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`Finally,
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`the prevention of copyright infringement serves the public
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`interest. Accordingly, I will grant Malibu’s request for permanent injunction and destruction of
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`digital media files and infringing copies of the company’s work pursuant to 17 U.S.C. §§ 502(a)
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`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 8 of 9
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`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 8 of 9
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`Corp, 549 F.3d 313, 320 (4th Cir. 2008).
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`In assessing reasonableness, the Fourth Circuit has
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`instructed district courts to consider certain factors, including:
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`(1) the time and labor expended; (2) the novelty and difficulty of the questions
`raised; (3) the skill required to properly perform the legal services rendered; (4)
`the attorney's opportunity costs in pressing the instant litigation; (5) the customary
`fee for like work; (6) the attorney's expectations at the outset of the litigation; (7)
`the time limitations imposed by the client or circumstances; (8) the amount in
`controversy and the results obtained; (9) the experience, reputation and ability of
`the attorney; (10) the undesirability of the case within the legal community in
`which the suit arose; (11) the nature and length of the professional relationship
`between attorney and client; and (12) attorney's fees awards in similar cases.
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`Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978).
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`Here, Malibu’s request for attorney’s fees in the amount of $1,182.00 for 9.1 hours of
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`work is reasonable. Plaintiffs counsel, Jon A. Hoppe, provides a declaration in support of the
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`requested fees attesting that he devoted 1.9 hours to the litigation, while his paralegal devoted 7.2
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`hours to it. Hoppe Decl. 11 9. Counsel requests $300.00 per hour for himself and $85.00 per hour
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`for the paralegal.
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`Id. Because the hourly rates sought for both attorney and paralegal fees fall on
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`the lower end of the guidelines set forth in the Local Rules, see Loc. R., App. B, additional
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`documentation as to prevailing market rates is unnecessary in this case. Counsel’s declaration
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`includes sufficient detail, and the paralegal completed the vast majority of tasks,
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`thereby
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`demonstrating an effort to minimize the costs of litigation. Moreover, the time record does not
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`reflect any overly redundant, excessive, or unnecessary work, and the number of hours is
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`reasonable and well documented. Accordingly, there is no reason to adjust the lodestar, and the
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`entire fee is approved.
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`Malibu also seeks $475.00 for costs incurred, $400.00 for a statutory filing fee and
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`$75.00 for process service fees. Hoppe Decl. 11 8. “Costs that may be charged include ‘those
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`reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a
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`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 9 of 9
`Case 8:14-cv-00261-PWG Document 36 Filed 02/15/17 Page 9 of 9
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`fee—paying client,
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`in the course of providing legal services.’ ” Trs. 0f the Nat’l Automatic
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`Sprinkler Indus. Welfare Fund v. Westland Fire Prat, Inc, No. DKC 12-1421, 2014 WL
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`824121, at *3 (D. Md. Feb. 28, 2014) (citing Spell v. McDaniel, 852 F.2d 762, 771 (4th Cir.
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`1988)). Here, the requested costs are reasonable.
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`Because Plaintiffs requests as to both attorney's fees and costs attributable to this claim
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`are reasonable, the court will award Malibu attorney’s fees and costs totaling $1,657.00.
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`Conclusion
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`For the foregoing reasons, the Malibu’s Motion for Default Judgment will be granted.
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`Judgment will be entered for Malibu in the amount of $18,75200\in damages and $1,657.00 in
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`attorney’s fees and costs. A separate order will follow.
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`~
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`j
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`- Mm
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`Paul W. Grimm
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`United States District Judge
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