Case 8:18-cv-02559-GJH Document 25 Filed 12/27/19 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
`Southern Division
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`MALIBU MEDIA, LLC,
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`v.
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`JOHN DOE,
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`Plaintiff,
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`Defendant.
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`Case No.: GJH-18-2559
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`MEMORANDUM OPINION
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`Plaintiff Malibu Media, LLC brought this action against Defendant John Doe for
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`copyright infringement under the United States Copyright Act of 1976 (“Copyright Act”), 17
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`U.S.C. § 101 et seq. ECF No. 9. Following Defendant’s failure to answer or otherwise defend in
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`this action, the Clerk of the Court entered default against Defendant on August 8, 2019. ECF No.
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`19. Now pending before the Court is Plaintiff’s Motion for Entry of Default Judgment pursuant
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`to Federal Rule of Civil Procedure 55(b). ECF Nos. 21, 22.1 No hearing is necessary. See Loc. R.
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`105.6 (D. Md. 2016). For the following reasons, Plaintiff’s Motion for Entry of Default
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`Judgment is granted, in part, and denied, in part.
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`I.
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`BACKGROUND
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`Plaintiff, a California-based company doing business as X-Art.com, alleges that
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`Defendant violated the Copyright Act by using the BitTorrent file distribution network to
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`download, copy, and distribute six adult pornographic films subject to copyrights held by
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`Plaintiff. ECF No. 9 ¶ 23.
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`1 Plaintiff filed two versions of the Motion for Entry of Default Judgment: an unsealed redacted version, ECF No.
`21, and a sealed unredacted version, ECF No. 22. The Motions are substantively identical.
`1
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`Case 8:18-cv-02559-GJH Document 25 Filed 12/27/19 Page 2 of 10
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`BitTorrent is a peer-to-peer file sharing system that allows users to distribute large
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`amounts of data, including, but not limited to, digital movie files. Id. ¶ 10. Individuals often use
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`BitTorrent to obtain and circulate infringed copyright content. ECF No. 21-4 at 1–2.2 In order to
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`distribute a large file, the BitTorrent protocol breaks a file into many small pieces, or “bits”. ECF
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`No. 9 ¶ 12. Users then exchange these bits among each other instead of attempting to distribute a
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`much larger digital file. Id. Plaintiff alleges that its investigator, IPP International UG,
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`downloaded one or more bits of six of Plaintiff’s copyrighted films from Defendant’s Internet
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`Protocol address (“IP address”), an address assigned to a customer on a specific date by an
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`Internet Service Provider (“ISP”). Id. ¶¶ 17–19.
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`Initially, Plaintiff identified Defendant only by an IP address. ECF No. 1 ¶ 9, 10.
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`Accordingly, Plaintiff filed a Complaint for copyright infringement in this Court on August 19,
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`2018, ECF No. 1, and moved for leave to file a subpoena on Defendant’s ISP to obtain
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`Defendant’s identity prior to a Rule 26(f) conference, ECF No. 3. The Court granted the Motion
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`on August 22, 2018, subject to conditions and limitations dictated by the sensitive nature of the
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`action and the uncertainty surrounding the specificity of IP addresses. ECF No. 6. Plaintiff then
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`filed an Amended Complaint against Defendant on January 3, 2019, ECF No. 9, to which
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`Defendant has not responded. The Clerk entered default against Defendant on August 8, 2019,
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`ECF No. 19, and Plaintiff subsequently filed the pending Motion for Entry of Default Judgment
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`on August 15, 2019, seeking an award of statutory damages, injunctive relief, and costs, ECF
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`Nos. 21, 22.
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`2 Pin cites to documents filed on the Court’s electronic filing system (CM/ECF) refer to the page numbers generated
`by that system.
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`2
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`Case 8:18-cv-02559-GJH Document 25 Filed 12/27/19 Page 3 of 10
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`II.
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`STANDARD OF REVIEW
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`“When a party against whom a judgment for affirmative relief is sought 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). “A defendant’s default does not automatically
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`entitle the plaintiff to entry of a default judgment; rather, that decision is left to the discretion of
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`the court.” Educ. Credit Mgmt. Corp. v. Optimum Welding, 285 F.R.D. 371, 373 (D. Md. 2012).
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`Although “[t]he Fourth Circuit has a ‘strong policy’ that ‘cases be decided on their merits,’”
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`Choice Hotels Intern., Inc. v. Savannah Shakti Carp., Case No. DKC–11–0438, 2011 WL
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`5118328, at *2 (D. Md. Oct. 25, 2011) (citing United States v. Shaffer Equip. Co., 11 F.3d 450,
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`453 (4th Cir. 1993)), “default judgment may be appropriate when the adversary process has been
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`halted because of an essentially unresponsive party[.]” Id. (citing S.E.C. v. Lawbaugh, 359 F.
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`Supp. 2d 418, 421 (D. Md. 2005)).
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`“Upon default, the well-pled allegations in a complaint as to liability are taken as true,
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`although the allegations as to damages are not.” Lawbaugh, 359 F. Supp. 2d at 422. Thus, the
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`court first determines whether the unchallenged factual allegations constitute a legitimate cause
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`of action. Agora Fin., LLC v. Samler, 725 F. Supp. 2d 491, 494 (D. Md. 2010). In determining
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`whether the factual allegations constitute a legitimate cause of action, courts typically apply the
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`Iqbal/Twombly pleading standard. See Baltimore Line Handling Co. v. Brophy, 771 F. Supp. 2d
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`531, 544 (D. Md. 2011) (finding Iqbal “relevant to the default judgment inquiry”). Under that
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`standard, a complaint fails to state a claim entitling the pleader to relief if the complaint offers
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`only “‘labels and conclusions’” or “‘naked assertion[s]’ devoid of ‘further factual
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`enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
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`Twombly, 550 U.S. 544, 555–57 (2007)). As the Fourth Circuit has recognized, “‘the court need
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`Case 8:18-cv-02559-GJH Document 25 Filed 12/27/19 Page 4 of 10
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`not accept the legal conclusions drawn from the facts, and [ ] need not accept as true unwarranted
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`inferences, unreasonable conclusions, or arguments.’” Monroe v. City of Charlottesville, 579
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`F.3d 380, 385–86 (4th Cir. 2009) (citation omitted), cert. denied, 559 U.S. 992 (2010); accord
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`Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011). Indeed, “where
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`the well-pleaded facts do not permit the court to infer more than the mere possibility of
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`misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to
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`relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
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`If liability is established, the court then makes an independent determination of damages.
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`Agora Fin., LLC, 725 F. Supp. 2d at 494. Fed. R. Civ. P. 54(c) limits the type of judgment that
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`may be entered based on a party’s default: “A default judgment must not differ in kind from, or
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`exceed in amount, what is demanded in the pleadings.” In entering default judgment, a court
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`cannot, therefore, award additional damages “because the defendant could not reasonably have
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`expected that his damages would exceed th[e] amount [pled in the complaint].” In re Genesys
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`Data Techs., Inc., 204 F.3d 124, 132 (4th Cir. 2000). While the Court may hold a hearing to
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`prove damages, it is not required to do so; it may rely instead on “detailed affidavits or
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`documentary evidence to determine the appropriate sum.” Adkins v. Teseo, 180 F. Supp. 2d 15,
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`17 (D.D.C. 2001)) (citing United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979));
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`see also Laborers’ District Council Pension, et al. v. E.G.S., Inc., Case No. WDQ–09–3174,
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`2010 WL 1568595, at *3 (D. Md. Apr. 16, 2010) (“[O]n default judgment, the Court may only
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`award damages without a hearing if the record supports the damages requested.”).
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`Case 8:18-cv-02559-GJH Document 25 Filed 12/27/19 Page 5 of 10
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`III. DISCUSSION
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`A. Liability
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`To establish liability for copyright infringement, 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 U.S. 340,
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`361 (1991). Because Defendant has failed to appear or otherwise defend, the Court accepts as
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`true the well-pleaded factual allegations in the Amended Complaint. See Ryan v. Homecomings
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`Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001). Those allegations establish that Plaintiff owns
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`the six copyrights that Defendant downloaded, copied, and distributed using BitTorrent. ECF No.
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`9 ¶¶ 3, 22, 23, 29; ECF No. 9-1; ECF No. 9-2. Defendant is therefore liable to Plaintiff for
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`copyright infringement.
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`B. Relief
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`Having established Defendant’s liability, the Court next considers Plaintiff’s requests for
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`statutory damages, injunctive relief, and costs.
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`i.
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`Statutory Damages
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`Plaintiff requests statutory damages of $1,500.00 per infringement, for a total of $9,000.
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`ECF No. 21-1 at 10. Under § 504(a) of the Copyright Act, a copyright infringer is liable for
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`either: (1) the copyright owner’s actual damages and any additional profits of the infringer; or (2)
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`statutory damages as provided by § 504(c). Section 504(c)(1) provides:
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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 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.”
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`Case 8:18-cv-02559-GJH Document 25 Filed 12/27/19 Page 6 of 10
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`17 U.S.C. § 504(c)(1); see also Patrick Collins, Inc. v. Gillispie, Case No. AW–11–1776, 2012
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`WL 666001, at *3 (D. Md. Feb. 23, 2012). The Court has broad discretion in setting the amount
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`of statutory damages under the Copyright Act. See Microsoft Corp. v. Grey Computer, 910 F.
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`Supp. 1077, 1091 (D. Md. 1995) (citing Shell Oil Co. v. Commercial Petroleum, Inc., 928 F.2d
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`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 that the defendant willfully committed the infringement. See 17 U.S.C. § 504(c)(2).
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`Courts have determined that an award of enhanced damages under § 504(c)(2) is only
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`appropriate when the plaintiff shows the infringer “either had actual knowledge that it was
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`infringing the owner’s copyright or acted in reckless disregard of those rights.” See Lowry’s
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`Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 737, 753 (D. Md. 2003). Plaintiff does not
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`seek enhanced damages, and judges in this district have routinely refused to grant enhanced
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`damage awards in cases similar to this. See, e.g., Malibu Media, LLC v. [Redacted], CCB–15–
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`1700, 2016 WL 245235, at *1 (D. Md. Jan. 21, 2016). Accordingly, enhanced damages are not
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`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 $30,000.000 per infringement, courts consider the following 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) plaintiff’s 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 plaintiff’s protected content.
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`Malibu Media, LLC v. [Redacted], 2016 WL 245235, at *2. The recent trend in this District and
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`across the country is to award the minimum statutory award of $750.00 per violation to Plaintiff
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`Case 8:18-cv-02559-GJH Document 25 Filed 12/27/19 Page 7 of 10
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`or other plaintiffs in similar infringement actions. See Malibu Media, LLC v. [Redacted], Case
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`No. PWG–14–261, 2017 WL 633315, at *3 (D. Md. Feb. 15, 2017) (citing cases from the
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`District of Maryland and other district courts across the country involving copyright
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`infringement actions brought by Plaintiff awarding Plaintiff $750.00 per work). “Many of the
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`recent cases, however, note the growing judicial concern with the ‘rise of so-called copyright
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`trolls in the adult film industry, meaning copyright holders who seek copyright infringement
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`damages not to be made whole, but rather as a primary or secondary revenue stream and file
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`mass lawsuits against anonymous Doe defendants with the hopes of coercing settlements.’” Id.
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`(quoting Malibu Media, LLC v. Brenneman, Case No. 3:13–cv–00332–PPS–CAN, 2013 WL
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`6560387, at *3 (N.D. Ind. Dec. 13, 2013)).
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`Here, the record provides “no evidence suggesting the defendant was the original seed or
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`provider of the protected content on the BitTorrent network,” Malibu Media, LLC v. [Redacted],
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`Case No. DKC–15–750, 2016 WL 3668034, at *4 (D. Md. July 11, 2016) (internal quotations
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`omitted), or that “Defendant profited from Plaintiff’s copyrighted films,” id. Moreover, Plaintiff
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`has provided no evidence as to actual losses it suffered due to Defendant’s conduct. Finally,
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`although the Amended Complaint asserts that Defendant’s conduct was willful, ECF No. 9 ¶ 33,
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`Defendant is only deemed to have admitted the factual allegations against him on default; “he is
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`not deemed to have accepted [Plaintiff]’s legal argument as to willfulness.” Malibu Media, LLC,
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`2016 WL 245235, at *2. “[O]n the available evidence, the extent and nature of [Defendant]’s
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`willfulness cannot be known.” Id. Accordingly, an award of the minimum statutory damages—
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`$750.00 per infringement for each of the six infringements, totaling $4,500.00—is more than
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`adequate to compensate Plaintiff and to help deter future copyright infringement.
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`ii.
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`Injunctive Relief
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`In addition to monetary damages, Plaintiff seeks injunctive relief pursuant to 17 U.S.C.
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`§§ 502(a) and 503(b). Specifically, Plaintiff requests that the Court (1) permanently enjoin
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`Defendant from continuing to infringe the company’s copyrights; (2) order Defendant to delete
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`and forever remove digital files relating to Plaintiff’s copyrights from all of Defendant’s
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`computers; and (3) order Defendant to delete and forever remove the infringing copies of the
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`copyrights from all of Defendant’s computers. ECF No. 21-1 at 12.
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`As to Plaintiff’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 … 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 Plaintiff’s second and third requests, § 503(b) provides that “the court
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`may order the destruction … of all copies … found to have been made or used in violation of the
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`copyright owner’s exclusive rights….” 17 U.S.C. § 503(b). To obtain a permanent injunction, “a
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`plaintiff must show (1) irreparable injury, (2) remedies at law are ‘inadequate to compensate for
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`that injury,’ (3) ‘the balance of hardships between the plaintiff and defendant’ warrants a
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`remedy, and (4) an injunction would not disserve the public interest.” Raub v. Campbell, 785
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`F.3d 876, 885 (4th Cir. 2015) (quoting Monsanto Co. v. Geerston Seed Farms, 561 U.S. 139,
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`156–57 (2010)).
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`Plaintiff has established each of the four requirements for permanent injunctive relief.
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`Plaintiff has demonstrated irreparable injury and the inadequacy of remedies at law because so
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`long as Defendant retains copies of the infringed work on his computers, they will continue to be
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`disseminated through BitTorrent, thus continuously compounding Plaintiff’s injuries. The
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`balance of hardships also favors Plaintiff because any injury that Defendant would suffer as the
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`result of the injunction would “be a result of [Defendant] ceasing the allegedly infringing
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`conduct.” Malibu Media, LLC v. [Redacted], 2017 WL 633315, at *4 (quoting Medias & Co. v.
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`Ty, Inc., 106 F. Supp. 2d 1132, 1140 (D. Colo. 2000)). Finally, the prevention of copyright
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`infringement serves the public interest. Thus, the Court will grant Plaintiff’s request for a
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`permanent injunction pursuant to 17 U.S.C. §§ 502(a) and 503(b) of the Copyright Act.
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`Defendant will be permanently enjoined from continuing to infringe Plaintiff’s copyrights and
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`ordered to delete and forever remove digital files relating to Plaintiff’s copyrights and all
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`infringing copies of the copyrights from all of Defendant’s computers.
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`iii.
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`Costs
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`Finally, Plaintiff requests $631.15 in costs. ECF No. 21-1 at 16; ECF No. 21-3. “In any
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`action under [the Copyright Act], the court may allow the full recovery of costs….” 17 U.S.C. §
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`505; see also Malibu Media, LLC v. [Redacted], 2016 WL 245235, at *1. “Costs that may be
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`charged include ‘those reasonable out-of-pocket expenses incurred by the attorney which are
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`normally charged to a fee-paying client, in the course of providing legal services.’” Trs. of the
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`Nat’l Automatic Sprinkler Indus. Welfare Fund v. Westland Fire Prot., Inc., Case No. DKC–12–
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`1421, 2014 WL 824121, at *3 (D. Md. Feb. 28, 2014) (quoting Spell v. McDaniel, 852 F.2d 762,
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`771 (4th Cir. 1988)). Here, Plaintiff’s costs include a statutory filing fee, process service fees,
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`ISP fees, and postage. ECF No. 21-3 ¶ 8. These are reasonably incurred expenses. Accordingly,
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`the Court awards Plaintiff costs totaling $631.15.
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`IV. CONCLUSION
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`For the foregoing reasons, Plaintiff’s Motion for Entry of Default Judgment is granted, in
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`part, and denied, in part. Judgment is entered against Defendant in the amount of $5,131.15, with
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`$4,500.00 in statutory damages and $631.15 in costs. Defendant is also permanently enjoined
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`from continuing to infringe Plaintiff’s copyrights and ordered to delete and forever remove
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`digital files relating to Plaintiff’s copyrights and all infringing copies of the copyrights from all
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`of Defendant’s computers. A separate Order shall issue.
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`Date: December 27 , 2019
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` __/s/________________________
`GEORGE J. HAZEL
`United States District Judge
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