Case 1:07-cv-00287-SJM Document 42 Filed 03/31/10 Page 1 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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`C.A. No. 07-287 Erie
`District Judge McLaughlin
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`WARNER BROS. RECORDS INC., et al.,
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`v.
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`JEREMY WALKER,
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`Plaintiffs,
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`Defendant.
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`MEMORANDUM OPINION
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`McLAUGHLIN, SEAN J., J.
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`This matter is before the Court upon Plaintiffs’ motion for summary judgment. The matter
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`is fully briefed and is now ripe for disposition. For the reasons which follow, Plaintiffs’ motion will
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`be granted.
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`I. BACKGROUND
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`Plaintiffs Warner Brothers Records, Inc., Virgin Records America, Inc., Capital Records,
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`LLC, UMG Recordings, Inc., and Sony BMG Music Entertainment (“Plaintiffs”) are recording
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`companies that own or control exclusive rights to copyrighted sound recordings. (Complaint ¶ 11).
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`Collectively, Plaintiffs are the undisputed owners of the copyrights to the following 19 sound
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`recordings relevant to the instant action:1
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`Copyright
`Plaintiff
`
`Artist
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`Song Title
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`Album Title
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`SR #
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`Capital Records
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`Poison
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`Unskinny Bop
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`Flesh and Blood
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`UMG Recordings
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`50 Cent
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`Don’t Push Me
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`Get Rich Or Die Tryin’
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`119-355
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`337-801
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`1
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`For convenience, the 19 copyrighted works at issue here will be referred to as
`the “Copyrighted Recordings.”
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`1
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`Case 1:07-cv-00287-SJM Document 42 Filed 03/31/10 Page 2 of 15
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`Warner Bros.
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`A-Ha
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`Take On Me
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`Hunting High and Low
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`UMG Recordings
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`Def Leppard
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`Pour Some Sugar
`on Me
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`Hysteria
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`SONY BMG
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`Cyndi Lauper
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`Time After Time
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`She’s So Unusual
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`UMG Recordings
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`Bon Jovi
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`Livin’ on a Prayer
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`Slippery When Wet
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`Warner Bros.
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`Blake Shelton
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`Some Beach
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`Some Beach (single)
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`Warner Bros.
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`My Chemical
`Romance
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`Helena
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`Three Cheers for Sweet
`Revenge
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`UMG Recordings
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`Tiffany
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`Could’ve Been
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`Tiffany
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`SONY BMG
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`Bonnie Tyler
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`Total Eclipse of the
`Heart
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`Total Eclipse of the Heart
`(single)
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`63-603
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`90-420
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`50-827
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`71-794
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`359-307
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`360-197
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`83-157
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`50-640
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`Warner Bros.
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`The Pretenders
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`I’ll Stand By You
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`Last Of The Independents
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`191-975
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`Virgin Records
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`UB40
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`Red Red Wine
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`Labour of Love
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`Capital Records
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`Billy Idol
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`Rebel Yell
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`Rebel Yell
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`49-244
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`52-131
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`UMG Recordings
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`Archie Eversole
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`We Ready
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`Ride Wit Me Dirty South Style
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`316-541
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`SONY BMG
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`Bruce Springsteen
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`Hungry Heart
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`The River
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`UMG Recordings
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`The Police
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`Every Breath You
`Take
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`Synchronicity
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`25-235
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`44-862
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`Capital Records
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`Capital Records
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`Poison
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`Poison
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`SONY BMG
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`Michael Bolton
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`I Want Action
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`Look What the Cat Dragged In
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`82-349
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`Every rose has its
`thorn
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`How Can We Be
`Lovers
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`Open Up & Say....Ahh!
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`93-741
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`Soul Provider
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`106-829
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`(Complaint, Ex. 3).
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`In an effort to protect their copyrighted works from being illegally downloaded and
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`distributed across the internet, Plaintiffs employ a third party service, MediaSentry, to attempt to
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`detect possible copyright violations. (Declaration of Chris Connelly, ¶ 2-3) (“Connelly Decl.”).
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`Many of these violations occur using peer-to-peer (“P2P”) file sharing networks in which individual
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`internet users can search for, download and transfer exact copies of files (including sound
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`recordings) from one computer to another over the internet.
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`2
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`

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`Case 1:07-cv-00287-SJM Document 42 Filed 03/31/10 Page 3 of 15
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`On March 6, 2007 at 11:28 p.m. EST, MediaSentry detected an individual identified with
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`the username “walker15” using a peer-to-peer file sharing program known as Ares. (Connelly Decl.
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`¶ 9). At the time of the detection, approximately 285 digital audio files, including the 19
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`Copyrighted Recordings, were contained in the “shared” folder of walker15's Ares program, meaning
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`that those audio files were available for download and distribution from his computer to other users
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`of the Ares network. (Id.) MediaSentry ascertained that the Internet Protocol (“IP”) address of the
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`user identified as “walker15” was 141.195.141.144. Further investigation revealed that Allegheny
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`College was the Internet Service Provider that had assigned that particular IP address. Allegheny
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`College later identified Defendant as the assignee of that IP address. (Plaintiffs’ Concise Statement,
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`Ex. 5).
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`On March 6, 2007, MediaSentry downloaded complete copies of ten of the sound
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`recordings contained in Defendant’s shared folder as a sample of the 285 audio files available for
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`download to other Ares users. (Connelly Decl. ¶ 9). MediaSentry also downloaded a complete list
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`of all 285 files in the shared folder on Defendant’s computer at that time. (Connelly Decl. ¶ 9).
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`Finally, MediaSentry captured the “User Log” from Defendant’s IP address. The User Log is a text
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`file containing all of the contents of the user’s shared folder, including the names and sizes of files
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`and additional information about each file referred to as “metadata.” (Connelly Decl. ¶ 12). The
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`information contained in the metadata of an audio file may include keywords, comments and
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`identifiers added by an individual other than the copyright owner. Metadata is automatically
`2
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`transferred from one computer to another when the file is downloaded. The UserLog from
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`Defendant’s computer indicates that 17 of the 19 Copyrighted Recording files contain keywords
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`and/or descriptions in the metadata that would not have been included in sound recordings and
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`2
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`For example, the metadata for the audio file on Defendant’s computer of the
`Bon Jovi song “Livin’ on a Prayer” contains the comment “This song I have to
`say is one of Jons greatest.” A comment contained in the metadata for the
`Bruce Springsteen song “Hungry Heart” reads “this is for the hungry hearted.”
`(See Connelly Decl., Ex C).
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`3
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`

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`Case 1:07-cv-00287-SJM Document 42 Filed 03/31/10 Page 4 of 15
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`compact discs sold through legitimate retail outlets and online sources. (Connelly Decl. ¶ 12;
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`Connelly Decl. Ex. C).
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`On October 18, 2007, Plaintiffs filed a copyright infringement action seeking damages and
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`injunctive relief as a result of the allegedly unauthorized use of Plaintiffs’ sound recordings detected
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`by MediaSentry. Plaintiffs initially filed this action as a “Doe” lawsuit and subsequently amended
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`the Complaint after Defendant’s identity was obtained from Allegheny College pursuant to a Rule
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`45 subpoena. In their Amended Complaint, Plaintiffs request injunctive relief pursuant to 17 U.S.C.
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`§§ 502-503, statutory damages in the amount of $750 per song pursuant to 17 U.S.C. § 504(c), and
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`costs pursuant to 17 U.S.C. § 505.
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`At his deposition, Defendant testified that the Ares program had been installed on his
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`computer by a friend of his and that he “occasionally” used the program. (Walker Deposition, March
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`13, 2009, pp. 38, 60-62, 65). Defendant admits that he used Ares to search for and download songs
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`from other Ares users. (Walker Depo., pp. 68-69, 71-72, 76, 81, 84, 93, 96). Defendant did not pay
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`for those downloads. (Walker Depo., p. 93, 96). Defendant acknowledged that he placed music into
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`the shared folder of his Ares program and that, by doing so, he was making that music available to
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`other Ares users for illegal download and distribution, although he was not aware of that at the time.
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`(Walker Depo., pp. 91, 93-96). Defendant admits that he did so without the permission of the
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`owners of the copyrights for those sound recordings. (Walker Depo., p. 95). Defendant further
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`testified that he never added comments or keywords to the metadata of any of his music files and,
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`indeed, had no knowledge of how to do so. (Walker Depo., pp. 41-42).
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`At all times relevant to this action, Defendant shared a dorm room with various roommates,
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`each of whom had their own computers. (Walker Depo., pp. 9-13, 43). Defendant’s computer was
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`located in his bedroom, rather than a common area, but did not have a password or other form of
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`protection designed to restrict access. (Walker Depo., p. 50). Defendant never gave permission to
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`any of his roommates to use his computer and could not recall any specific instance in which anyone
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`other than himself used it. (Walker Depo., pp. 50-51, 56).
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`4
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`

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`Case 1:07-cv-00287-SJM Document 42 Filed 03/31/10 Page 5 of 15
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`The Court has jurisdiction over Plaintiffs’ claims of copyright infringement pursuant to 28
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`U.S.C. §§ 1331, 1338.
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`II. STANDARD FOR REVIEW
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`Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall be granted
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`if the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there
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`is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
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`law.” Rule 56(e) further provides that when a motion for summary judgment is made and supported,
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`“an opposing party may not rely merely on allegations or denials in its own pleading; rather, its
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`response must – by affidavits or as otherwise provided in this rule – set out specific facts showing
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`a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if
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`appropriate, be entered against that party.”
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`A district court may grant summary judgment for the defendant when the plaintiff has failed
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`to present any genuine issues of material fact. See Fed. R. Civ. P. 56(c); Krouse v. American
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`Sterilizer Company, 126 F.3d 494, 500 n.2 (3 Cir. 1997). The moving party has the initial burden
`rd
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`of proving to the district court the absence of evidence supporting the non-moving party's claims.
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`Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v. Partnership Composed of
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`Gepner and Ford, 930 F.2d 1056, 1061 (3 Cir. 1990). Further, “[R]ule 56 enables a party
`rd
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`contending that there is no genuine dispute as to a specific, essential fact ‘to demand at least one
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`sworn averment of that fact before the lengthy process of litigation continues.’” Schoch v. First
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`Fidelity Bancorporation, 912 F.2d 654, 657 (3 Cir. 1990) (quoting Lujan v. National Wildlife
`rd
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`Federation, 497 U.S. 871 (1990)).
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`The burden then shifts to the non-movant to come forward with specific facts showing a
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`genuine issue for trial. Matsushita Elec. Indus. Company v. Zenith Radio Corp., 475 U.S. 574
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`(1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3 Cir. 1989) (the
`rd
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`non-movant must present affirmative evidence - more than a scintilla but less than a preponderance
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`5
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`

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`Case 1:07-cv-00287-SJM Document 42 Filed 03/31/10 Page 6 of 15
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`- which supports each element of his claim to defeat a properly presented motion for summary
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`judgment). The non-moving party must go beyond the pleadings and show specific facts by affidavit
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`or by information contained in the filed documents (i.e., depositions, answers to interrogatories and
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`admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322;
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`Country Floors, 930 F.2d at 1061.
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`A material fact is a fact whose resolution will affect the outcome of the case under
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`applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although the court
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`must resolve any doubts as to the existence of genuine issues of fact against the party moving for
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`summary judgment, Rule 56 “does not allow a party resisting the motion to rely merely upon bare
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`assertions, conclusory allegations or suspicions.” Firemen’s Ins. Company of Newark, N.J. v.
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`DuFresne, 676 F.2d 965, 969 (3 Cir. 1982). Summary judgment is only precluded if the dispute
`rd
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`about a material fact is “genuine,” i.e., if the evidence is such that a reasonable jury could return a
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`verdict for the non-moving party. Anderson, 477 U.S. at 247-249.
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`A.
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`The Copyright Act
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`III. ANALYSIS
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`The Copyright Act of 1976, codified at 17 U.S.C. § 101 et seq., grants the copyright owner
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`of a sound recording the exclusive right to “reproduce the copyrighted work in copies or
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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). To prevail on a claim of copyright infringement, a copyright owner must
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`establish that it owns a valid copyright in the sound recording and that the defendant engaged in
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`unauthorized copying or distribution of those recordings. See, e.g., Fest Publ’ns, Inc. v. Rural Tel.
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`Serv. Co., 499 U.S. 340, 345 (1991); Dunn & Bradstreet Software Servs., Inc. v. Grace Consulting,
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`Inc., 307 F.3d 197, 206 (3 Cir. 2002). “Once a plaintiff has proven that he or she owns the
`rd
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`copyright on a particular work, and that defendant has infringed upon those ‘exclusive rights,’ the
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`6
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`

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`Case 1:07-cv-00287-SJM Document 42 Filed 03/31/10 Page 7 of 15
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`defendant is liable for the infringement and this liability is absolute.” Pinkham v. Sara Lee Corp.,
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`983 F.2d 824, 829 (8 Cir. 1992).
`th
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`“Innocent intent is generally not a defense to copyright infringement.” Williams Electronics
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`v. Artic Int’l, Inc., 685 F.2d 870, 878 (3 Cir.1982). Thus, a defendant is liable “even for ‘innocent’
`rd
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`or ‘accidental’ infringements,” see Pinkham, 983 F.2d at 829, and a plaintiff need not demonstrate
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`intent or even knowledge of infringement to prove a copyright claim. See, e.g., Chavez v. Arte
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`Publico Press, 204 F.3d 601, 607 (5 Cir. 2000) (“Copyright infringement actions . . . ordinarily
`th
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`require no showing of intent to infringe.”); Pinkham, 983 F.2d at 829 (“The defendant’s intent is
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`simply not relevant [to demonstrate copyright infringement]”); Fitzgerald Publ’g Co., Inc. v. Baylor
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`Publ’g Co., 807 F.2d 1110, 1113 (2 Cir. 1986) (“In actions for statutory copyright infringement,
`nd
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`the innocent intent of the defendant will not constitute a defense to a finding of liability”); Williams,
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`685 F.2d at 878.
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`B.
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`Ownership of the Copyrighted Recordings
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`Plaintiffs have submitted Certificates of Registration of Copyright for each of the 19
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`Copyrighted Recordings, demonstrating that Plaintiffs are the owners or licensees of each of those
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`recordings. See Plaintiff’s Concise Statement of Material Facts, Ex. 6; see Southco, Inc. v.
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`Kanebridge Corp., 390 F.3d 276, 299 (3 Cir. 2004) (“A certificate of registration constitutes prima
`rd
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`facie evidence of the validity of the copyright and ownership of the registered work . . .”). Defendant
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`does not dispute Plaintiffs’ ownership of the Copyrighted Recordings or the validity of the
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`certificates of registration. As such, there is no material issue of fact as to the first element of
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`Plaintiffs’ copyright infringement claim.
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`C.
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`Unauthorized Reproduction Pursuant to Section 106(1)
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`As to the second element, Plaintiffs contend that Defendant infringed upon their exclusive
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`right to reproduce their copyrighted sound recordings by using the Ares software to download the
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`Copyrighted Recordings onto his computer. See 17 U.S.C. § 106(1) (granting a copyright owner the
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`exclusive right “to reproduce the copyrighted work in copies or phonorecords.”). Courts have
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`7
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`

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`Case 1:07-cv-00287-SJM Document 42 Filed 03/31/10 Page 8 of 15
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`uniformly held that downloading sound recordings on a peer-to-peer network without the
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`authorization of the copyright holder constitutes an unlawful reproduction of the work in violation
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`of § 106(1) of the Copyright Act. See, e.g., BMG Music v. Gonzalez, 430 F.3d 888, 890 (7 Cir.
`th
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`2005) (affirming summary judgment against a party that downloaded copyrighted sound recordings
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`over a peer-to-peer network); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9 Cir.
`th
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`2001) (“Napster users who download files containing copyrighted music violate plaintiffs’
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`reproduction rights.”); UMG Recordings v. Alburger, 2009 WL 3152153, *3 (E.D. Pa. 2009)
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`(“District courts in the Third Circuit (and elsewhere) agree . . . that downloading music from the
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`internet, without paying for it or acquiring any rights to it, is a direct violation of the Copyright
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`Act.”); MGM Studios Inc. v. Grokster, Ltd., 259 F.Supp.2d 1029, 1034-35 (C.D. Cal. 2003) (holding
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`that users who download copyrighted music violate the copyright owner’s exclusive reproduction
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`right).
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`In his deposition, Defendant admits that he used Ares to download music from the internet,
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`including the Copyrighted Recordings at issue in this case:
`
`Q:
`
`A:
`
`Q:
`
`A:
`
`Q:
`
`[D]id you actually use Ares to search for songs? I don’t
`need the specific songs but do you recall actually using the
`Ares program and typing, searching for any particular
`song?
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`Yes, I’ve searched for songs.
`
`*
`*
`*
`*
`*
`*
`*
`Do you remember downloading anything off of Ares at
`all?
`
`I would believe that I did because if the program was there,
`I would imagine that I did use it for that.
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`And so basically you just thought there just – generally
`there was music out there that you could access and
`download?
`
`A:
`
`Yes.
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`8
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`

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`Case 1:07-cv-00287-SJM Document 42 Filed 03/31/10 Page 9 of 15
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`Q:
`
`A:
`
`Q:
`
`A:
`
`Q:
`
`A:
`
`Q:
`
`A:
`
`Q:
`
`Was the only thing you downloaded on Ares, would that
`have been music?
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`For the most part, yes.
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`And did you . . . did you search Ares for any particular
`music?
`
`Specifically I can’t remember.
`
`Generally?
`
`Generally, yes.
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`Do you recall specifically what you would need to do in
`order to download?
`
`I don’t know – I don’t remember the specifics as far as
`anything. From what I can remember it was just as easy as
`searching.
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`I don’t need to get into the specifics, just generally
`speaking would you have downloaded some of the
`[Copyrighted Recordings]?
`
`A:
`
`Yes.
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`Q:
`
`. . . are you aware now that others would have been
`uploading CDs to their shared folders and that’s where you
`were accessing those songs from?
`
`A:
`
`Yes, I somewhat understand that now.
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`Q:
`
`And you were aware that by downloading those songs
`from Ares, that you were doing so for free and not paying
`for them?
`
`A:
`
`Yes.
`
`9
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`

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`Case 1:07-cv-00287-SJM Document 42 Filed 03/31/10 Page 10 of 15
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`(Walker Depo., pp. 68-69, 71-72, 76, 81, 84, 93, 96). Plaintiffs have further provided evidence that
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`the metadata associated with 17 of the 19 Copyrighted Recordings contained user-added comments
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`and keywords that would not have been contained in legitimately purchased copies of those audio
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`files. Defendant admits that he had “no knowledge of what [metadata] even was or how to access
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`[it]” and that he “never put in extra information” such as comments and keywords. (Walker Depo.,
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`pp. 41-42). Given that neither the copyright owners nor Defendant placed those comments in the
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`metadata, those comments could only have been inserted into the metadata by other Ares’ users from
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`whom Defendant downloaded the files. See Alburger, 2009 WL 3152153, *2 (noting that “[t]he
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`metadata collected by MediaSentry contained user comments attached to some of the audio files;
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`however, Defendant states that he does not know how to add comments.”).
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`Despite Defendant’s admission that he used Ares to download copyrighted recordings, he
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`contends in his Brief in Opposition that “it is possible one of the many third parties with access to
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`[Defendant’s] computer downloaded the Recordings.” (Brief in Opposition, p. 10). However, at
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`deposition, Defendant could not recall an instance where another individual used his computer, nor
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`does he suggest any possible reason why an individual would download music for personal use onto
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`someone else’s computer. (Walker Depo., pp. 50-51, 56). Defendant admits that his roommates
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`each had their own computers and that he never willingly gave them access to his own. (Walker
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`Depo., pp. 43, 50). It is well-established that a party cannot escape summary judgment by relying
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`“merely upon bare assertions, conclusory allegations or suspicions.” See, e.g., Firemen’s Ins., 676
`
`F.2d at 969. Here, as previously discussed, Defendant admitted at deposition to downloading
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`Defendant’s Copyrighted Recordings. His contention that others may have utilized his computer to
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`download copyrighted files is conclusory and speculative. I find that Defendant has failed to raise
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`a triable issue of fact as to the identity of the individual who downloaded the 19 Copyrighted
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`Recordings. 3
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`3
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`Given Defendant’s admissions at deposition relative to downloading Plaintiffs’
`(continued...)
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`10
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`Case 1:07-cv-00287-SJM Document 42 Filed 03/31/10 Page 11 of 15
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`D.
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`Unauthorized Distribution Pursuant to Section 106(3)
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`As an alternative basis for infringement, Plaintiffs contend that Defendant also violated the
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`Copyright Act by distributing the Copyrighted Recordings without authorization. See 17 U.S.C. §
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`106(3). It is undisputed that MediaSentry downloaded actual copies of nine of the Copyrighted
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`Recordings from Defendant’s computer, establishing unauthorized distribution as to those nine
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`recordings. (Connelly Decl. ¶ 9; Connelly Decl., Ex. B). See Capital Records v. Thomas, 579
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`F.Supp.2d 1210, 1216 (D. Minn. 2008) (holding that “distribution to MediaSentry can form the basis
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`of an infringement claim”); Atlantic Recording Corp. v. Howell, 554 F.Supp.2d 976, 985 (D. Ariz.
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`2008) (holding that “‘[T]he investigator’s assignment was part of the [recording companies’] attempt
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`to stop [the defendant’s] infringement,’ and therefore the 12 copies obtained by MediaSentry are
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`unauthorized.”). As to the other ten files, however, Plaintiffs attempt to establish unauthorized
`4
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`distribution primarily on the basis that Defendant made those recordings available for distribution.
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`Courts are sharply divided as to the viability of the so-called “making available” theory of liability.
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`Compare Alburger, 2009 WL 3152153, *3 n. 41 (“[A]n individual violates the exclusive-distribution
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`right by ‘making available’ that illegally downloaded work to other internet users. . . . There is no
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`requirement that plaintiffs show that the files were actually downloaded by other users from
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`Defendant, only that the files were available for downloading.”), with Howell, 554 F.Supp.2d at 983
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`(collecting cases and noting a split in the caselaw before agreeing with the “great weight of authority
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`3
`
`(...continued)
`Copyrighted Recordings, the significance of the metadata discussed above, and
`the failure of Defendant to have produced evidence of third party use, Plaintiff
`has met its burden of demonstrating that Defendant was responsible for
`downloading all 19 of the Copyrighted Recordings.
`
`4
`
`Defendant cites Howell for the proposition that “courts have rejected
`MediaSentry’s download of a copyrighted recording during a process of
`investigation on behalf of a Plaintiff record company as actual distribution.”
`(Brief in Opposition, p. 12). In fact, Howell reached the opposite conclusion,
`holding that the 12 copyrighted sound recordings that were downloaded from
`defendant’s computer by MediaSentry were unauthorized distributions in
`violation of the Copyright Act. Howell, 554 F.Supp.2d at 986.
`11
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`

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`Case 1:07-cv-00287-SJM Document 42 Filed 03/31/10 Page 12 of 15
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`that § 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of
`
`the work to a member of the public”). Given the fact that Plaintiff has already established a right to
`
`recover statutory damages for each of the 19 Copyrighted Recordings on the basis that Defendant
`
`copied them without authorization, I find it unnecessary to reach the merits of Plaintiffs’ alternative
`
`assertion that Defendant violated the Copyright Act by making the Copyrighted Recordings available
`
`to download.
`
`E.
`
`Damages and Relief
`
`Section 504(c)(1) of the Copyright Act provides that a plaintiff may elect to collect statutory
`
`damages in lieu of actual damages once copyright infringement has been established. 17 U.S.C. §
`
`504(c)(1). In seeking to collect a statutory damage award, plaintiffs need not provide evidence of
`
`actual damages. Id.; see also Alburger, 2009 WL 3152153, *4 (citing Fitzgerald Pub. Co., 807 F.2d
`
`at 1114). Here, Plaintiffs have elected to pursue statutory damages in the statutory minimum amount
`
`of $750 per violation. Courts in this district “routinely award statutory damages in these types of
`5
`
`copyright infringement cases.” Alburger, 2009 WL 3152153, *4; see also, e.g., Frank Music Corp.
`
`v. Emerson’s Pub, Inc., 2009 WL 744964 (M.D. Pa. 2009). I will award statutory damages in the
`
`minimum amount of $14,250, representing $750 for each of the nineteen violations.
`
`Plaintiffs also seek a permanent injunction under Section 502 of the Copyright Act which
`
`states:
`
`Any court having jurisdiction of a civil action arising under this
`title may . . . grant temporary and final injunctions on such terms
`as it may deem reasonable to prevent or restrain infringement of
`a copyright.
`
`5
`
`Section 504(c)(1) authorizes statutory damages “in a sum of not less than $750
`or more than $30,000 as the court considers just.” Consequently, this Court
`lacks the discretion to impose a statutory fine less than the minimum of $750
`per violation.
`
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`Case 1:07-cv-00287-SJM Document 42 Filed 03/31/10 Page 13 of 15
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`17 U.S.C. § 502(a). In copyright cases, injunctive relief “is regularly provided to prevailing
`
`plaintiffs due to the ease of further violation and the insufficiency of legal remedies.” Alburger,
`
`2009 WL 3152153, *4 (citing Fonovisa, Inc. v. Merino, 2006 WL 3437563, *2 (D.N.J. 2006))
`
`In determining whether injunctive relief is appropriate, “well-established principles of
`
`equity” require a court to consider the following factors: (1) whether Plaintiffs would face irreparable
`
`injury if the injunction did not issue, (2) whether Plaintiffs have an adequate remedy at law, (3)
`
`whether granting the injunction is in the public interest, and (4) whether the balance of the hardships
`
`tips in Plaintiffs’ favor. eBay inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) (citing
`
`MercExchange, L.L.C. v. eBay, Inc., 275 F.Supp.2d 695 (E.D. Va. 2003)). In evaluating these
`
`equitable factors in the unique context of online infringement, courts have acknowledged “the
`
`possibility that future activity on a peer-to-peer network may lead to exponential infringement,” the
`
`fact that “online infringement is easy to accomplish, but difficult to detect,” and the “difficulty of
`
`measuring damages.” See Capitol Record, Inc. v. Thomas-Rasset, 2010 WL 291763, *11-13
`
`(D.Minn. 2010); Lava Records, LLC v. Ates, 2006 WL 1914166, *4 (W.D. La. 2006) (finding that
`
`“a permanent injunction is appropriate because of the strong public interest in copyright protection;
`
`the need to prevent irreparable harm to Plaintiffs, which will not be remedied by a damage award
`
`that may or may not be collectible; and the need to deter future infringement by Defendant and
`
`others.”); BMG Music v. Gonzalez, 430 F.3d 888, 893 (7 Cir. 2005) (upholding a permanent
`th
`
`injunction in a peer-to-peer infringement case “to ensure that the misconduct does not recur as soon
`
`as the case ends.”). Moreover, it is well-established that “the public interest is the interest in
`
`upholding copyright protections.” Autoskill Inc. v. Nat’l Educ. Support Sys., 994 F.2d 1476, 1499
`
`(10 Cir. 1993); see also Elektra Ent’mt Group, Inc. v. Carter, 618 F.Supp.2d 89, 94 (D. Maine
`th
`
`2005) (noting that “it is virtually axiomatic that the public interest can only be served by upholding
`
`copyright protections”) (quoting Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600,
`
`611 (1 Cir. 1988)). Finally, “the balance [of hardships] weighs strongly in favor of [an injunction]
`st
`
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`

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`Case 1:07-cv-00287-SJM Document 42 Filed 03/31/10 Page 14 of 15
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`where all that is requested is that Defendant comply with the Copyright Act.” Ates, 2006 WL
`
`1914166, *4.
`
`Having fully considered each of the four factors described above, I find that injunctive relief
`
`is appropriate here. The following injunction will be entered:
`
`Defendant is hereby enjoined from infringing Plaintiffs' rights
`under federal law in the Copyrighted Recordings, including
`without limitation by using Internet or any online media
`distribution system to reproduce (i.e., download) any of Plaintiffs'
`Copyrighted Recordings, to distribute (i.e., upload) any of
`Plaintiffs' Copyrighted Recordings, or to make any of Plaintiffs'
`Copyrighted Recordings available for distribution to the public,
`except pursuant to a lawful license or with the express authority of
`Plaintiffs. Defendant also shall destroy all copies of Plaintiffs'
`Recordings that Defendant has downloaded onto any computer
`hard drive or server without Plaintiffs' authorization and shall
`destroy all copies of those downloaded recordings transferred onto
`any physical medium or device in Defendant's possession, custody,
`or control.
`
`Finally, Section 505 of the Copyright Act authorizes recovery of “full costs” of the suit, as
`
`well as attorney’s fees. 17 U.S.C. § 505. An award of costs is routinely granted pursuant to Section
`
`505 in order to “(1) deter future copyright infringement; (2) ensure that all holders of copyrights
`
`which have been infringed will have equal access to the court to protect their works; and (3) penalize
`
`the losing party and compensate the prevailing party.” A&N Music Corp. v. Venezia, 733
`
`F.Supp.955, 959 (E.D. Pa. 1990). Whether to grant an award of costs is within the court’s discretion.
`
`17 U.S.C. § 505; Alburger, 2009 WL 3152153, *4 (citing Lieb v. Topstone Indus., 788 F.2d 151,
`
`155-56 (3 Cir. 1986)).
`rd
`
`Here, Plaintiffs request $350 in costs. Finding the request reasonable, costs will be assessed
`
`in that amount.
`
`IV. CONCLUSION
`
`For the reasons stated herein, Plaintiffs’ motion for summary judgment is granted. An
`
`appropriate order follows.
`
`14
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`

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`Case 1:07-cv-00287-SJM Document 42 Filed 03/31/10 Page 15 of 15
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
`
`C.A. No. 07-287 Erie
`District Judge McLaughlin
`
`))
`
`)
`)
`)
`
`))
`
`)
`
`WARNER BROS. RECORDS INC., et al.,
`
`v.
`
`JEREMY WALKER,
`
`Plaintiffs,
`
`Defendant.
`
`ORDER
`
`AND NOW, this 31st day of March, 2010, and for the reasons set forth in the accompanying
`
`Memorandum Opinion,
`
`IT IS HEREBY ORDERED that Plaintiffs’ Motion for Summary Judgment is GRANTED
`
`and this action is DISMISSED. Judgment is entered in favor of Plaintiffs and against Defendant in
`
`the amount of $14,600 representing the total of the minimum statutory damages in the amount of
`
`$14,250 and costs in the amount of $350.
`
`IT IS FURTHER ORDERED that the following permanent injunction shall be entered against
`
`Defendant:
`
` Defendant is hereby enjoined from infringing Plaintiffs' rights under
`federal law in the Copyrighted Recordings, including without
`limitation by using Internet or any online media distribution system
`to reproduce (i.e., download) any of Plaintiffs' Copyrighted
`Recordings, to distribute (i.e., upload) any of Plaintiffs' Copyrighted
`Recordings, or to make any of Plaintiffs' Copyrighted Recordings
`available for distribution to the public, except pursuant to a lawful
`license or with the express authority of Plaintiffs. Defendant also
`shall destroy all copies of Plaintiffs' Recordings that Defendant has
`downloaded onto any computer hard drive or server without
`Plaintiffs' authorization and shall destroy all copies of those
`downloaded recordings transferred onto any physical medium or
`device in Defendant's possession, custody, or control.
`
`/s/ Sean J. McLaughlin
`United States District Judge
`
`cm: All parties of record. ___
`
`15