Case 5:07-cv-00593-FJS-GJD Document 17 Filed 02/04/08 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF NEW YORK
`______________________________________________
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`PARAMOUNT PICTURES CORPORATION,
`a Delaware Corporation,
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`Plaintiff,
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`v.
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`WAYNE HOPKINS,
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`Defendant.
`______________________________________________
`
`ATTORNEYS
`
`OF COUNSEL
`
`5:07-CV-593
` (FJS/GJD)
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`HISCOCK & BARCLAY LLP
`One Park Place
`300 South State Street
`Syracuse, New York 13202
`Attorneys for Plaintiff
`
`WAYNE HOPKINS
`Defendant pro se
`
`SCULLIN, Senior Judge
`
`RICHARD K. HUGHES, ESQ.
`JOHN D. COOK, ESQ.
`
`NO APPEARANCE
`
`MEMORANDUM-DECISION AND ORDER
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`I. INTRODUCTION
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`Plaintiff, one of the world's leading creators and distributors of motion pictures, retained
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`MediaSentry to combat infringement of its copyrighted motion pictures on peer-to-peer ("P2P")
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`networks. See Declaration of Karen R. Thorland dated October 19, 2007 ("Thorland Decl."), at
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`¶ 3. MediaSentry is a company that provides online antipiracy and copyright protection services
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`to identify direct infringers of Plaintiff's copyrights on P2P networks. See id.
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`MediaSentry searched several P2P networks for infringing copies of Plaintiff's
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`Case 5:07-cv-00593-FJS-GJD Document 17 Filed 02/04/08 Page 2 of 12
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`copyrighted motion pictures. See Declaration of Elizabeth Hardwick dated October 25, 2007, at
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`¶ 4. When MediaSentry located a user offering Plaintiff's copyrighted works for download, it
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`sought to download those files while obtaining information to confirm the infringement and to
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`identify the infringer. See id. at ¶ 5.
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`Defendant used a fictitious network name or pseudonym to copy and distribute Plaintiff's
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`copyrighted works. See Thorland Decl. at ¶ 5. Therefore, Plaintiff initially could only identify
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`Defendant by the unique Internet Protocol ("IP") address that his internet service provider
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`("ISP"), Time Warner Cable, had assigned to him on the date and at the time of the infringement.
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`See id. Based upon this information, Plaintiff filed a "John Doe" lawsuit against Defendant and
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`others in the Southern District of New York, where Time Warner Cable is located. See id.
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`ISPs keep track of the IP addresses that they assign to their subscribers in "user logs." See
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`id. at ¶ 6. These user logs provide the most accurate means to connect an infringer's identity to
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`its infringing activity. See id. In its "John Doe" lawsuit, Plaintiff moved for leave to serve a
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`subpoena on Time Warner Cable seeking Defendant's true identity. See id. The court granted the
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`motion and, on December 27, 2005, Plaintiff served the subpoena. See id. In response, Time
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`Warner Cable identified Defendant as the individual using the IP address that MediaSentry had
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`obtained at the time of the infringement. See id. at ¶ 7.
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`According to the information that Time Warner Cable provided, Defendant did not reside
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`in the Southern District of New York. See id. at ¶ 8. Therefore, Plaintiff dismissed that suit
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`against Defendant without prejudice and sought to negotiate an out-of-court settlement with him.
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`See id. Defendant refused to settle the dispute. See id.
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`On June 6, 2007, Plaintiff filed the complaint in this action to prevent Defendant from
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`copying and distributing to others over the Internet unauthorized copies of one of Plaintiff's
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`copyrighted motion pictures and for damages in connection with Defendant's past infringements
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`of this motion picture. See Plaintiff's Memorandum of Law at 1. Plaintiff served Defendant with
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`a copy of the summons and complaint on July 24, 2007. See id.; Thorland Decl. at ¶ 10.
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`Defendant did not answer or otherwise appear within the statutory period, see Thorland Decl. at
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`¶ 11; and, therefore, on August 16, 2007, Plaintiff sent him a letter advising him that he was in
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`default and that, if he failed to answer, Plaintiff would seek a default judgment against him, see
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`id. Defendant did not respond to Plaintiff's letter. See id. Defendant did, however, send a letter
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`to the Court dated August 21, 2007. See Dkt. No. 9. The Court responded to that letter by
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`informing him that the "letter was not in proper form to be considered an 'answer'" and directing
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`him to "review the complaint [and] forward [any further responses] to the court no later than
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`September 7, 2007." See Dkt. No. 10. Defendant did not file any additional documents.
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`On October 4, 2007, Plaintiff requested and the Clerk of the Court entered a Notice of
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`Default against Defendant. See Dkt. Nos. 11-12. Currently before the Court is Plaintiff's motion
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`for entry of a default judgment against Defendant pursuant to Rule 55 of the Federal Rules of
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`Civil Procedure. See Dkt. No. 15.
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`A.
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`Default judgment standard
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`II. DISCUSSION
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`Rule 55 of the Federal Rules of Civil Procedure provides a two-step procedure for entry
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`of a default judgment. First, "[u]nder Rule 55(a), a clerk must . . . enter the default against a
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`party who fails to plead or otherwise defend." Time Warner Entm't/Advance Newhouse P'ship v.
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`Stockton, No. 5:00-CV-1989, 2004 WL 1739520, *1 (N.D.N.Y. Aug. 3, 2004) (citing Fed. R.
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`Civ. P. 55(a)). Second, the plaintiff must "move the court for default judgment." Id. (citation
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`omitted). "In considering a motion for default judgment, the court will treat the well-pleaded
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`factual allegations of the complaint as true, and the court will then analyze those facts for their
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`sufficiency to state a claim." Id. (citation omitted). Since, at Plaintiff's request, the Clerk of the
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`Court entered default against Defendant, Plaintiff's motion for entry of a default judgment is
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`appropriately before the Court.
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`In support of its motion, Plaintiff asserts that its complaint sets forth the following facts
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`that establish Defendant's liability for willful copyright infringement: (1) Plaintiff owns the
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`applicable exclusive distribution rights to the copyrighted motion picture, Four Brothers; (2) this
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`motion picture is the subject of a valid Certificate of Copyright Registration that the Register of
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`Copyrights issued; (3) Defendant infringed Plaintiff's exclusive rights by distributing to others,
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`without authorization, copies of this copyrighted motion picture by using a P2P network on the
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`Internet; and (4) Defendant's infringement was willful because he either was aware or had reason
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`to be aware that his actions constituted an infringement of Plaintiff's rights. See Plaintiff's
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`Memorandum of Law at 2 (citing Complaint). Based upon these facts, Plaintiff requests statutory
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`damages in the amount of $6,000, a permanent injunction enjoining Defendant from infringing
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`Plaintiff's copyrights, both those currently existing and those later granted, and attorney's fees and
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`costs in the amount of $2,778.44. See id.
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`B.
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`Statutory damages
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`Section 504(c) of Title 17 of the United States Code provides, in pertinent part, that
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`Case 5:07-cv-00593-FJS-GJD Document 17 Filed 02/04/08 Page 5 of 12
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`the copyright owner may elect, at any time before final judgment is
`rendered, to recover, instead of actual damages or profits, an award
`of statutory damages for all infringements involved in the action,
`with respect to any one work . . . in a sum of not less than $750 or
`more than $30,000 as the court considers just.
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`17 U.S.C. § 504(c)(1).
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`Moreover, where a defendant commits an infringement willfully, "the court in its
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`discretion may increase the award of statutory damages to a sum of not more than $150,000" per
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`infringement. See 17 U.S.C. § 504(c)(2). In this context, "[w]illfulness . . . means that the
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`defendant 'recklessly disregarded' the possibility that 'its conduct represented infringement.'"
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`Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 112 (2d Cir. 2001) (quotation and other citation
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`omitted).
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`"[S]tatutory damages are not meant to be merely compensatory or restitutionary. . . . The
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`statutory award is also meant 'to discourage wrongful conduct.' . . ." Id. at 113-14 (internal
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`citation and quotation omitted). Moreover, the amount of statutory damages that the court
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`awards should "further the Copyright Act's dual objectives of compensating copyright owners for
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`past infringement and deterring future infringement." Getaped.com, Inc. v. Cangemi, 188 F.
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`Supp. 2d 398, 403 (S.D.N.Y. 2002) (default judgment awarding $30,000 statutory damages for a
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`single infringement). Thus, factors that a court should consider in determining the amount of the
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`award "include the 'expenses saved and profits reaped by the infringers,' the revenues lost by the
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`plaintiff, the infringers' state of mind (wilful, knowing or merely innocent), the value of the
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`copyright and the deterrent effect on both the defendant and others." Id. (quotation omitted).
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`Finally, "'[e]ven for uninjurious and unprofitable invasions of copyright the court may, if it
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`deems just, impose a liability within statutory limits to sanction and vindicate the statutory policy
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`Case 5:07-cv-00593-FJS-GJD Document 17 Filed 02/04/08 Page 6 of 12
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`[of discouraging wrongful conduct].'" Id. (quotation omitted).
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`Plaintiff asserts, among other things, that, because it "has established that Defendant
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`downloaded and distributed, with willful disregard for and indifference to Plaintiff's rights, at
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`least one of Plaintiff's copyrighted motion pictures," it could request statutory damages up to
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`$150,000. See Plaintiff's Memorandum of Law at 3. However, Plaintiff seeks to recover only
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`$6,000 in statutory damages because it believes that this amount is reasonable and justified under
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`the circumstances of this case and the costs that it incurred in seeking to protect its exclusive
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`rights under copyright law. See id. at 3-4 (citation omitted).
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`In light of Plaintiff's assertion that it expended $3,000 to $5,000 to develop the
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`information and evidence necessary to bring this suit, See Declaration of Lauren Nguyen dated
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`October 23, 2007, at ¶ 11, together with Defendant's refusal to enter into settlement negotiations
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`or to answer the complaint or otherwise appear, even after Plaintiff warned him that he would be
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`in default if he did not do so, Plaintiff's request for $6,000 in statutory damages is reasonable.
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`Accordingly, the Court awards Plaintiff the full amount of statutory damages that it seeks.
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`C.
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`Permanent injunction
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`"As a general rule, a permanent injunction will be granted when liability has been
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`established and there is a threat of continuing violations." MAI Sys. Corp. v. Peak Computer,
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`Inc., 991 F.2d 511, 520 (9th Cir. 1993) (citations omitted). Moreover, Section 502 of the
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`Copyright Act provides, in pertinent part, that any court may "grant . . . final injunctions on such
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`terms as it may deem reasonable to prevent or restrain infringement of a copyright." 17 U.S.C.
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`§ 502(a). Finally, as one court noted, "[t]he weight of authority supports the extension of
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`Case 5:07-cv-00593-FJS-GJD Document 17 Filed 02/04/08 Page 7 of 12
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`injunctive relief to future works." Princeton Univ. Press v. Michigan Document Servs., 99 F.3d
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`1381, 1392 (6th Cir. 1996) (citations omitted); see also Ortho-O-Vision, Inc. v. Home Box Office,
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`Inc., 474 F. Supp. 672, 686 (S.D.N.Y. 1979) (holding that, "[w]here . . . liability has been
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`determined adversely to the infringer, there has been a history of continuing infringement and a
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`significant threat of future infringement remains, it would be inequitable to grant the copyright
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`owner partial summary judgment on the issue of liability without enjoining the infringement of
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`future works").
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`Since, by reason of his default, Defendant has admitted that he willfully infringed
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`Plaintiff's copyright and there is nothing in the record to suggest that Defendant would not
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`continue to violate Plaintiff's copyrights, the Court grants Plaintiff's request for a permanent
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`injunction that encompasses both its present and its future copyrighted motion pictures.
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`D.
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`Attorney's fees and costs
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`Section 505 of the Copyright Act provides that a court may, in its discretion, award full
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`costs to a prevailing party in a civil copyright action, including attorney's fees. See 17 U.S.C.
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`§ 505. Although "[a]n award of attorney's fees under Section 505 is discretionary, . . . any award
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`must be consistent with the purposes of the Copyright Act: compensation and deterrence."
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`Getaped.com, Inc., 188 F. Supp. 2d at 406 (citation omitted). The court should base its "decision
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`to award fees . . . on factors such as 'frivolousness, motivation, objective unreasonableness (both
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`in the factual and in the legal components of the case) and the need in particular circumstances to
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`advance considerations of compensation and deterrence.'" Id. (quotation and other citation
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`omitted).
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`Case 5:07-cv-00593-FJS-GJD Document 17 Filed 02/04/08 Page 8 of 12
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`In this Circuit when a party seeks an award of attorney's fees, it must support its request
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`with contemporaneous time records that show "'for each attorney, the date, the hours expended,
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`and the nature of the work done.'" Whitten v. Cross Garage Corp., No. 00 Civ. 5333, *6
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`(S.D.N.Y. July 9, 2003) (quotation omitted). Then, the court determines reasonable attorney's
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`fees by using the lodestar method, which involves multiplying the number of hours that the
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`plaintiff's attorney spends on the matter by a reasonable hourly rate. See id. (citation omitted).
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`The Second Circuit has "suggest[ed] that the district court consider, in setting the
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`reasonable hourly rate it uses to calculate the 'lodestar,' what a reasonable, paying client would be
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`willing to pay . . . ." Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany,
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`493 F.3d 110, 112 (2d Cir. 2007). Moreover, the district court should
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`bear in mind all of the case-specific variables that [the Second
`Circuit] and other courts have identified as relevant to the
`reasonableness of attorney's fees in setting a reasonable hourly rate.
`. . . In determining what rate a paying client would be willing to
`pay, the district court should consider, among others, the Johnson
`factors; it should also bear in mind that a reasonable, paying client
`1
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` In Arbor Hill Concerned Citizens Neighborhood Ass'n, the Second Circuit set out the
`1
`twelve Johnson factors:
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`(1) the time and labor required; (2) the novelty and difficulty of the
`questions; (3) the level of skill required to perform the legal service
`properly; (4) the preclusion of employment by the attorney due to
`acceptance of the case; (5) the attorney's customary hourly rate; (6)
`whether the fee is fixed or contingent; (7) the time limitations
`imposed by the client or the circumstances; (8) the amount
`involved in the case and the results obtained; (9) the experience,
`reputation, and ability of the attorneys; (10) the "undesirability" of
`the case; (11) the nature and length of the professional relationship
`with the client; and (12) awards in similar cases. Johnson, 488
`F.2d at 717-19.
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`(continued...)
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`Case 5:07-cv-00593-FJS-GJD Document 17 Filed 02/04/08 Page 9 of 12
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`wishes to spend the minimum necessary to litigate the case
`effectively. The district court should also consider that such an
`individual might be able to negotiate with his or her attorneys,
`using their desire to obtain the reputational benefits that might
`accrue from being associated with the case. The district court
`should then use that reasonable hourly rate to calculate what can
`properly be termed the "presumptively reasonable fee."
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`Id. at 117-18.
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`Recently, this Court determined, based upon these factors, that the reasonable hourly rates
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`in this District, i.e., what a reasonable, paying client would be willing to pay, were $210 per hour
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`for an experienced attorney, $150 per hour for an attorney with four or more years experience,
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`$120 per hour for an attorney with less than four years experience, and $80 per hour for
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`paralegals. See New Paltz Cent. Sch. Dist. v. St. Pierre, No. 1:02-CV-981, 2007 WL 655603, *2
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`(N.D.N.Y. Feb. 26, 2007).
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`Given Defendant's willful infringement of Plaintiff's copyright, the Court concludes that
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`an award of attorney's fees and costs would serve the Copyright Act's dual purposes of
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`compensation and deterrence. Accordingly, the Court grants Plaintiff's request for an award of
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`attorney's fees and costs calculated as follows.
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`Although Plaintiff submitted contemporaneous time records, it did not submit any
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`information about the qualifications and experience of the attorneys and paralegals who
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`expended time in prosecuting this matter. The Court, however, was able to find the necessary
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`information for all but two of the individuals who are associated with Loeb & Loeb LLP on its
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`website. Three of these individuals, "TB Cummins," "L Chen," and "J A Barton," are
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`(...continued)
`1
`Arbor Hill Concerned Citizens Neighborhood Ass'n, 493 F.3d at 114 n.3.
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`Case 5:07-cv-00593-FJS-GJD Document 17 Filed 02/04/08 Page 10 of 12
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`paralegals. With regard to the attorneys associated with Hiscock & Barclay LLP, the Court
`2
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`consulted www.martindale.com to determine that John D. Cook is an attorney who was admitted
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`to the New York Bar in 2002 and that Richard K. Hughes is an attorney who was admitted to the
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`New York Bar in 1973. Therefore, the Court will calculate the attorney's fees using the
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`following rates:
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`Name
`TB Cummins
`L Chen
`J A Barton
`John Cook
`Richard Hughes
`Total
`
`Hours Worked
`.2
`.2
`10.2
`3.2
`.8
`
`Hourly Rate
`$80
`$80
`$80
`$150
`$210
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`Total
`$ 16.00
`$ 16.00
`$ 816.00
`$ 480.00
`$ 168.00
`$1,496.00
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`Plaintiff also incurred costs in the amount of $561.72 for copying, postage, messenger
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`service, and computer research as well as the fees associated with service of process and filing
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`the action in this Court.
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`III. CONCLUSION
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`After carefully reviewing Plaintiff's submissions, the relevant parts of the record, and the
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` On the contemporaneous time records that Plaintiff submitted for the work of the Loeb
`2
`& Loeb individuals, there are entries for persons named "S S Park" and "E Doisy." Neither of
`these individuals is listed on Loeb & Loeb LLP's website. Since it is Plaintiff's responsibility to
`establish the qualifications and experience of its attorneys, the Court will not award attorney's
`fees for the work of the individuals it could not identify.
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`applicable law, and for the reasons stated herein, the Court hereby
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`ORDERS that Plaintiff's motion for entry of a default judgment against Defendant is
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`GRANTED; and the Court further
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`ORDERS that Plaintiff's request for statutory damages in the amount of $6,000 is
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`GRANTED; and the Court further
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`ORDERS that Plaintiff's request for an award of attorney's fees and costs is GRANTED
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`in the amount of $2,057.72; and the Court further
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`ORDERS that Plaintiff's request for a permanent injunction is GRANTED according to
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`the following terms:
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`Defendant shall be and hereby is enjoined from directly or
`indirectly infringing Plaintiff's rights under federal or state law in
`the following copyrighted motion picture:
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`Four Brothers; and
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`any other motion picture, whether now in existence or later created,
`that is owned or controlled by Plaintiff (or any parent, subsidiary,
`or affiliate of Plaintiff) (Plaintiff's Motion Pictures"), including
`without limitation by using the Internet or any online media
`distribution system to reproduce (i.e., download) any of Plaintiff's
`Motion Pictures, or to make any of Plaintiff's Motion Pictures
`available for distribution to the public, except pursuant to a lawful
`license or with the express authority of Plaintiff. Defendant also
`shall destroy all copies of Plaintiff's Motion Pictures that
`Defendant has downloaded onto any computer hard drive or server
`without Plaintiff's authorization and shall destroy all copies of
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`those downloaded recordings transferred onto any physical
`medium or device in Defendant's possession, custody or control.
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`IT IS SO ORDERED.
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`Dated: February 4, 2008
`Syracuse, New York
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