Case 2:17-cv-00892-RSL Document 56 Filed 03/14/19 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`Plaintiff,
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` v.
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`UN4 PRODUCTIONS, INC.,
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`LIBAN HARO, et al.,
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`Case No. C17-0892RSL
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`ORDER GRANTING IN PART UN4’S
`MOTIONS FOR DEFAULT
`JUDGMENT
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`Defendants.
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`I.
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`INTRODUCTION
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`This matter comes before the Court on plaintiff UN4’s motions for default
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`judgment against defendants Andrei Saar (Dkt. #49), Andrey Savin (Dkt. #51), and Eric
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`McClain (Dkt. #53). Having reviewed the relevant briefing and the remainder of the
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`record, UN4’s motions for default judgment are GRANTED IN PART and DENIED IN
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`PART.
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`II.
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`BACKGROUND
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`The three motions for default judgment that are the subject of this Order are just
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`a portion of the more than one hundred default judgment motions filed by plaintiff’s
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`counsel in twenty-six cases before the undersigned. All of the cases assert essentially
`ORDER GRANTING IN PART MOTIONS
`FOR DEFAULT JUDGMENT - 1
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`Case 2:17-cv-00892-RSL Document 56 Filed 03/14/19 Page 2 of 15
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`the same causes of action based on remarkably similar allegations, although the motion
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`picture at issue, the owner of the copyright, and the defendants vary. For purposes of
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`these motions, UN4 alleges that 60 individual defendants unlawfully infringed its
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`exclusive copyright to the motion picture Boyka Undisputed 4, which it developed and
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`produced, by copying and distributing the film over the Internet through a peer-to-peer
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`network using the BitTorrent protocol. Plaintiff served internet service providers
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`(“ISP”s) with subpoenas in order to identify the alleged infringers. Amended complaints
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`identifying defendants by name were subsequently filed.
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`Defendants Saar, Savin, and McClain (collectively “Defendants”) are named in
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`the same complaint because, given the unique identifier associated with a particular
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`digital copy of Boyka Undisputed 4 and the timeframe in which the internet protocol
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`address associated with each Defendant accessed that digital copy, UN4 alleges the
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`named Defendants were all part of the same “swarm” of users that reproduced,
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`distributed, displayed, and/or performed the copyrighted work. According to UN4,
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`Defendants directly or indirectly shared, downloaded, and distributed a single unique
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`copy of Boyka Undisputed 4 that had been seeded to the torrent network at some
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`undefined point in the past.
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`Defendants did not respond to UN4’s complaint. The Clerk of Court therefore
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`entered default against Defendants at UN4’s request. See Dkts. #45-47. UN4 now seeks
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`judgment against each Defendant.
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`ORDER GRANTING IN PART MOTIONS
`FOR DEFAULT JUDGMENT - 2
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`Case 2:17-cv-00892-RSL Document 56 Filed 03/14/19 Page 3 of 15
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`III. DISCUSSION
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`Federal Rule of Civil Procedure 55(b) authorizes a court to grant default
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`judgment. Prior to entering judgment in defendant’s absence, the Court must determine
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`whether the allegations of a plaintiff’s complaint establish his or her liability. Eitel v.
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`McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). The court must accept all well-pled
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`allegations of the complaint as established fact, except allegations related to the amount
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`of damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).
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`Where the alleged facts establish a defendant’s liability, the court has discretion, not an
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`obligation, to enter default judgment. Alan Neuman Productions, Inc. v. Albright, 862
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`F.2d 1388, 1392 (9th Cir. 1988). If plaintiff seeks an award of damages, it must provide
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`the Court with evidence to establish the amount. TeleVideo Sys., 826 F.2d at 917-18.
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`A. Liability Determination.
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`The allegations in UN4’s complaint establish Defendants’ liability for direct
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`copyright infringement. To establish direct infringement, UN4 must demonstrate
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`ownership of a valid copyright and that Defendants copied “constituent elements of the
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`work that are original.” L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 846
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`(9th Cir. 2012) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361
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`(1991)). Here, UN4 alleges it owns the exclusive copyright to the motion picture Boyka
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`Undisputed 4 and that Defendants participated in a “swarm” to unlawfully copy and/or
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`distribute the same unique copy of Boyka Undisputed 4. These allegations were
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`established by entry of default against Defendants. Accordingly, UN4 has established
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`Defendants’ liability for direct copyright infringement.
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`ORDER GRANTING IN PART MOTIONS
`FOR DEFAULT JUDGMENT - 3
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`Case 2:17-cv-00892-RSL Document 56 Filed 03/14/19 Page 4 of 15
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`B. Default Judgment is Warranted.
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` Having established liability, plaintiff must also show that default judgment is
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`warranted. Courts often apply the factors listed in Eitel, 782 F.2d at 1471-72, to make
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`this determination. Those factors are:
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`“(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's
`substantive claim, (3) the sufficiency of the complaint, (4) the sum of money
`at stake in the action; (5) the possibility of a dispute concerning material
`facts; (6) whether the default was due to excusable neglect, and (7) the strong
`policy underlying the Federal Rules of Civil Procedure favoring decisions on
`the merits.”
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`The majority of these factors weigh in favor of granting default judgment against
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`Defendants. UN4 may be prejudiced without the entry of default judgment as it will be
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`left without a legal remedy. See Landstar Ranger, Inc. v. Parth Enters., Inc., 725 F.
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`Supp.2d 916, 920 (C.D. Cal. 2010). UN4’s complaint sufficiently alleges a claim of
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`direct copyright infringement, and Defendants did not present any evidence or argument
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`to the contrary. Additionally, the Court finds there is a low probability that default against
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`Defendants was due to excusable neglect: Defendants were given ample opportunity to
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`respond to the filings in this matter between the time they were served with UN4’s
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`complaint and the date of this Order. Finally, although there is a strong policy favoring
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`decisions on the merits, the Court may consider Defendants’ failure to respond to UN4’s
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`requests for default and default judgment as admissions that the motions have merit. LCR
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`7(b)(2).
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`The Court acknowledges that a dispute concerning the material facts alleged by
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`UN4, including the identity of the alleged infringers, could arise in this case. The Court
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`ORDER GRANTING IN PART MOTIONS
`FOR DEFAULT JUDGMENT - 4
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`Case 2:17-cv-00892-RSL Document 56 Filed 03/14/19 Page 5 of 15
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`also acknowledges that the amount at stake may be significant depending on the means
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`of each Defendant. UN4 seeks enhanced statutory damages in the amount of at least
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`$1,500 along with attorneys’ fees in excess of $1,550 and costs in excess of $150 from
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`each individual Defendant. Notwithstanding these considerations, the Eitel factors
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`weigh in favor of granting default judgment against Defendants.
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`C. Appropriate Relief.
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`UN4 requests entry of a default judgment against each Defendant providing the
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`following three categories of relief: (1) permanent injunctive relief; (2) statutory
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`damages; and (3) attorney’s fees and costs. Each category is discussed below.
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`i. Permanent Injunctive Relief
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`Permanent injunctive relief is appropriate. Section 502(a) of Title 17 of the
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`United States Code allows courts to “grant temporary and final injunctions on such
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`terms as it may deem reasonable to prevent or restrain infringement of a copyright.” As
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`part of a default judgment, courts may also order the destruction of all copies of a work
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`made or used in violation of a copyright owner’s exclusive rights. 17 U.S.C. § 503(b).
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`Given the nature of the BitTorrent protocol and Defendants’ participation therein, the
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`Court finds Defendants possess the means to continue infringing in the future. MAI Sys.
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`Corp. v. Peak Comput., Inc., 991 F.2d 511, 520 (9th Cir. 1993) (granting permanent
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`injunction where “liability has been established and there is a threat of continuing
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`violations.”). Consequently, the Court will issue a permanent injunction enjoining
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`Defendants from infringing UN4’s rights in Boyka Undisputed 4 and directing them to
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`destroy all unauthorized copies of Boyka Undisputed 4.
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`ORDER GRANTING IN PART MOTIONS
`FOR DEFAULT JUDGMENT - 5
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`Case 2:17-cv-00892-RSL Document 56 Filed 03/14/19 Page 6 of 15
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`ii.
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`Statutory Damages
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`Plaintiff requests an award of statutory damages in the amount of at least $1,500
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`against each Defendant for his or her participation in the BitTorrent swarm that resulted
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`in the unauthorized download and/or distribution of the seed file containing Boyka
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`Undisputed 4. Although the actual economic damages associated with a lost video rental
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`are likely minimal, plaintiff correctly points out that Congress has authorized statutory
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`damages in significant amounts to compensate for difficult-to-prove downstream losses
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`and to deter future infringement. Los Angeles News Serv. v. Reuters Int’l, Ltd., 149
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`F.3d 987, 996 (9th Cir. 1998) (quoting Peer Int’l Corp. v. Pausa Records, Inc., 909 F.2d
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`1332, 1336 (9th Cir. 1990)). Under 17 U.S.C. § 504(c)(1), the Court may award
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`statutory damages “for all infringements involved in the action, with respect to any one
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`work, . . . for which any two or more infringers are liable jointly and severally, in a sum
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`of not less than $750 or more than $30,000 as the court considers just.” The Court has
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`wide discretion when determining the amount of statutory damages and takes into
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`consideration the amount of money requested in relation to the seriousness of the
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`defendant’s conduct, whether large sums of money are involved, and whether “the
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`recovery sought is proportional to the harm caused by defendant’s conduct.” Curtis v.
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`Illumination Arts, Inc., 33 F. Supp.3d 1200, 1212 (W.D. Wash. 2014) (citing Landstar,
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`725 F. Supp. 2d at 921).
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`Copyright violations come in all shapes and sizes, from the unauthorized copying
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`of a Halloween word puzzle for a child’s party to the unauthorized manufacture and sale
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`of millions of bootleg copies of a new release. While Defendants’ alleged copyright
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`ORDER GRANTING IN PART MOTIONS
`FOR DEFAULT JUDGMENT - 6
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`Case 2:17-cv-00892-RSL Document 56 Filed 03/14/19 Page 7 of 15
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`violation is of concern in that it represents a theft of intellectual property, it is a
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`relatively minor infraction causing relatively minor injury. UN4 has not shown that any
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`of the Defendants is responsible for the “seed” file that made UN4’s copyrighted work
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`available on the BitTorrent network, nor has UN4 presented evidence that Defendants
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`profited from the infringement in any way. Given the range of statutory damages
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`specified in the Copyright Act, the Court finds that an award of $750 for the swarm-
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`related infringements involved in this action is appropriate. Each of the Defendants is
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`jointly and severally liable for this amount.
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`This award is in line with the awards made by other courts in the Ninth Circuit
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`and appears adequate to deter Defendants from infringing on plaintiff’s copyright in the
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`future.1 Plaintiff argues that a significantly higher award is necessary to force people
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`like Defendants to appear and participate in these BitTorrent cases. Plaintiff apparently
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`wants the Court to raise the statutory damage award to an amount that is at or above the
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`anticipated costs of defending this action. A defendant may, however, decide that
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`conceding liability through default is the best course of action given the nature of the
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`claims and the available defenses. The “punishment” for that choice is the entry of
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`default judgment and an award of damages under the governing standards. As discussed
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`above, those standards lead to the conclusion that the minimum statutory penalty should
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`1 UN4 has presented no evidence that Defendants will not be dissuaded from infringing in the future. The
`judgment entered in this case, including statutory damages, attorney’s fees, and costs, may be recovered
`by garnishing Defendants’ wages and/or seizing and selling their non-exempt property. This is a steep
`penalty for having been too lazy to go to the local Redbox or too cheap to pay a few dollars for an
`authorized download. Plaintiff offers no evidence to support its contention that personal liability for a
`judgment in excess of $500 is of no consequence to the judgment debtor.
`ORDER GRANTING IN PART MOTIONS
`FOR DEFAULT JUDGMENT - 7
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`Case 2:17-cv-00892-RSL Document 56 Filed 03/14/19 Page 8 of 15
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`apply in this case. Plaintiff offers no support for the proposition that participation in
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`federal litigation should be compelled by imposing draconian penalties that are out of
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`proportion to the harm caused by Defendants’ actions or any benefits derived therefrom.
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`Statutory damages are not intended to serve as a windfall to plaintiffs and will not be
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`used to provide such a windfall here.
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`The Court will award UN4 $750 in statutory damages for the infringements
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`involved in this action, for which defendants are jointly and severally liable.
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`iii. Attorneys’ Fees and Costs
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`Finally, UN4 asks the Court to award between $1,551.00 and $1,796.00 in
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`attorneys’ fees and $153.00 in costs against each Defendant in this matter. Pursuant to
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`17 U.S.C. § 505, the Court “in its discretion may allow the recovery of full costs by or
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`against any party,” and “may also award a reasonable attorney’s fee to the prevailing
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`party as part of the costs.”
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`The Court agrees that UN4 should be awarded attorneys’ fees. Courts consider
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`several factors, including “(1) the degree of success obtained, (2) frivolousness,
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`(3) motivation, (4) objective unreasonableness (legal and factual), and (5) the need to
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`advance considerations of compensation and deterrence,” when making attorneys’ fee
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`determinations under the Copyright Act. Smith v. Jackson, 84 F.3d 1213, 1221 (9th Cir.
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`1996) (citing Jackson v. Axton, 25 F.3d 884, 890 (9th Cir. 1994)). Because UN4 has
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`succeeded on its non-frivolous direct infringement claim2 and because an award would
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`2 Despite the entry of default, the Court specifically declines to enter judgment in plaintiff’s favor on its
`indirect and contributory infringement claims.
`ORDER GRANTING IN PART MOTIONS
`FOR DEFAULT JUDGMENT - 8
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`Case 2:17-cv-00892-RSL Document 56 Filed 03/14/19 Page 9 of 15
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`advance considerations of compensation and deterrence, UN4 is entitled to attorneys’
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`fees.
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`However, despite counsel’s efforts to allocate the fees and costs to each
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`individual defendant, the overall fee request is problematic. Courts determine the
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`amount of a fee award by determining a “lodestar figure,” which is obtained by
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`multiplying the number of hours reasonably expended on a matter by a reasonable
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`hourly rate. Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 622 (9th Cir. 1993). Courts
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`may then adjust the lodestar with reference to factors set forth in Kerr v. Screen Extras
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`Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975), to the extent those factors are not
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`already subsumed in counsel’s hourly rates or the number of hours expended on the
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`litigation. The relevant Kerr factors here are: (1) the time and labor required; (2) the
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`novelty and difficulty of the questions; and (3) the skill requisite to perform the legal
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`services properly.
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`1. Reasonableness of Rate Requested
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`In the Ninth Circuit, the determination of a reasonable hourly rate “is not made
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`by reference to rates actually charged the prevailing party.” Chalmers v. City of Los
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`Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). Instead, the reasonable hourly rate is
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`determined with reference to the prevailing rates charged by attorneys of comparable
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`skill and experience in the relevant community. Blum v. Stenson, 465 U.S. 886, 895
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`(1984). “Generally, when determining a reasonable hourly rate, the relevant community
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`is the forum in which the district court sits.” Camacho v. Bridgeport Fin., Inc., 523 F.3d
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`973, 979 (9th Cir. 2008). Courts may also consider “rate determinations in other cases,
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`ORDER GRANTING IN PART MOTIONS
`FOR DEFAULT JUDGMENT - 9
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`Case 2:17-cv-00892-RSL Document 56 Filed 03/14/19 Page 10 of 15
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`particularly those setting a rate for the plaintiffs’ attorney” as “satisfactory evidence of
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`the prevailing market rate.” United Steelworkers of Am. v. Phelps Dodge Corp., 896
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`F.2d 403, 407 (9th Cir. 1990).
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`Identifying counsel’s hourly rate is more challenging than it should be. His
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`hourly rate for “normal” intellectual property cases is now $545/hour, but he has agreed
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`to a reduced rate of $350/hour in this case. Dkt. #50 at ¶7. In a similar BitTorrent matter
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`involving another copyright holder, counsel stated that his reduced rate was $450/hour
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`(LHF Prods., Inc. v. Acosta, C16-1175RSM, Dkt. #71 at ¶7), which is the rate he posits
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`is “reasonable and warranted in the Seattle area” in this case (Dkt. #50 at ¶9). The Court
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`assumes, based on the fee calculation charts set forth in counsel’s declarations, that he
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`seeks an hourly rate of $350 in this case. This hourly rate is generally within the norm
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`for BitTorrent cases in this district and is a reasonable rate for the type of formulaic
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`legal work performed in these matters.
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`2. Reasonableness of Hours Requested
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`Turning to the reasonableness of the hours requested, plaintiff has the burden of
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`documenting the hours expended on this matter and establishing their reasonableness.
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`Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The Court will exclude hours that are
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`“excessive, redundant, or otherwise unnecessary” and therefore not reasonably
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`expended. Id. at 434. Counsel has attempted to calculate the hours spent in connection
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`with UN4’s claims against each individual Defendant by dividing the total number of
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`hours spent on collective efforts by the total number of defendants at the time the action
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`was taken. Time spent working solely in pursuit of claims against an individual are
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`ORDER GRANTING IN PART MOTIONS
`FOR DEFAULT JUDGMENT - 10
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`Case 2:17-cv-00892-RSL Document 56 Filed 03/14/19 Page 11 of 15
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`allocated wholly to that individual. Dkt. #50 at ¶10. Taking Saar as an example, counsel
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`seeks compensation for the following activities:
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`Activity
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`Review evidence of BitTorrent activity giving rise to
`potential claims
`Prepare complaint and supporting exhibits
`Prepare and file motion to expedite discovery
`Communicate with client
`Review Court orders
`Prepare subpoena and letter to ISPs
`Review ISP response and prepare communications
`with Defendant
`Review Defendant’s “status and history”
`Prepare amended complaint and review
`Prepare, review, and file waivers and/or summons
`Review file
`Prepare and file motion for default
`Prepare and file motion for default judgment
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`Total:
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`Attorney
`Time
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`.4 hours
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`.4 hours
`.4 hours
`.1 hours
` .2 hours
`.1 hours
`.1 hours
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`.3 hours
` .6 hours
`.9 hours
`≈ .1 hours
`≈ .2 hours
`1 hour
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`4.8 hours
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`Legal
`Assistant
`Time
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`.3 hours
`.2 hours
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`.3 hours
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`.8 hours
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`These seemingly modest time expenditures mask the reality of counsel’s fee request.
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`Until recently, the BitTorrent cases filed in this district all proceeded in a similar
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`manner.3 The original complaints list Doe defendants, identified only by IP addresses,
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`and allege infringement of the client’s exclusive rights in a specified motion picture.
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`Groups of Doe defendants are named in the same complaint because they allegedly
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`infringed the same digital copy of the copyrighted material by participating in the same
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`3 The Honorable Thomas S. Zilly has required certain additional disclosures or proffers in BitTorrent
`cases pending before him. See Venice PI, LLC v. O’Leary, C17-0988TSZ, Dkt. # 32.
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`ORDER GRANTING IN PART MOTIONS
`FOR DEFAULT JUDGMENT - 11
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`Case 2:17-cv-00892-RSL Document 56 Filed 03/14/19 Page 12 of 15
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`BitTorrent “swarm.” The nearly identical complaints are accompanied by nearly
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`identical motions for expedited discovery. Once the Court grants leave to conduct
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`expedited discovery, subpoenas are served on the ISP associated with the addresses
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`identified in the log attached to the complaint as Exhibit B. Once in possession of the
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`Doe defendants’ identities, counsel attempts to obtain a settlement of the claims and
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`files amended complaints against any non-settling defendants. Service, additional
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`settlements, and defaults/default judgments follow, with the exception of a handful of
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`defendants who are actively litigating the cases in this district. On occasion, counsel
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`seeks an extension of time in which to serve.
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`Almost every filing in this cause of action was essentially copied from scores of
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`other cases filed by the same counsel. There is nothing wrong with utilizing form
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`documents to pursue identical infringement claims arising from identical activities. As
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`has been previously noted, however, it is wrong for UN4’s counsel to file identical
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`complaints and motions with the Court and then expect the Court to believe that he
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`labored over each filing. LHF Prods., C16-1175RSM, Dkt. #73 at 12. To arrive at his
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`per Defendant fee request, counsel divided time entries related to specific activities by
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`the number of defendants then in the case. When the relatively small time allotments set
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`forth in counsel’s declaration related to Kirwan are multiplied by the number of
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`defendants, counsel is seeking compensation for an excessive number of hours. Counsel
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`apparently spent 5.6 hours studying the log of infringing transactions and IP addresses
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`ORDER GRANTING IN PART MOTIONS
`FOR DEFAULT JUDGMENT - 12
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`Case 2:17-cv-00892-RSL Document 56 Filed 03/14/19 Page 13 of 15
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`that gave rise to this particular lawsuit.4 He spent another 5.6 hours generating a
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`complaint that is virtually identical to the complaints UN4 filed in other cases (not to
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`mention the scores of BitTorrent cases filed on behalf of other clients). Altering the
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`form complaint to initiate a new lawsuit is, at this point, a word processing chore: the
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`preparer checks to make sure the correct plaintiff and film are identified, changes the
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`number of Doe defendants in the caption, inserts the correct IP addresses in the section
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`of the complaint describing the defendants, and attaches the investigator’s log regarding
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`the relevant swarm as Exhibit B. Charging 5.6 hours of attorney time for this task is
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`unreasonable. Counsel seeks to recover fees for another 4.2 hours spent preparing an
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`amended complaint that was identical to the original except for the caption and the
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`correlation of the IP addresses with the subscribers’ names.
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`A form pleading and motions practice such as this simply does not take the type
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`of expertise or time that is normally associated with intellectual property matters. Nor
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`does it justify the number of cumulative hours that counsel seeks here. Having reviewed
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`the billing records and dockets in this and other similar matters, the Court finds that the
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`bulk of the “legal” work in these cases was performed and compensated years ago, that
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`these actions now involve far more word processing than drafting or legal analysis, and
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`that the attorney time necessary to tailor documents to each case and/or individual is
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`minimal. The Court will award 1 hour, at an hourly rate of $350, to compensate UN4
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`for counsel’s time spent pursuing its claims against each named Defendant, and .8
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`4 This case was originally filed against fourteen Doe defendants.
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`ORDER GRANTING IN PART MOTIONS
`FOR DEFAULT JUDGMENT - 13
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`Case 2:17-cv-00892-RSL Document 56 Filed 03/14/19 Page 14 of 15
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`hours, at an hourly rate of $145.00, to compensate UN4 for legal assistant time altering
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`pleadings, motions, and service documents. The Court is satisfied that an attorneys’ fee
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`of $466.00 per Defendant is reasonable and sufficient to cover the form-pleading work
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`required by this case.
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`3.
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`Costs
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`UN4 requests $153.00 in costs from each Defendant. Recovery of a pro rata
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`portion of the filing fee and the individual costs associated with the third-party
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`subpoena and service is appropriate.
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`IV. CONCLUSION
`The Court, having reviewed the motions for default judgment and the remainder
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`of the record, finds adequate bases for default judgment. Accordingly, the Court hereby
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`finds and ORDERS:
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`1. UN4’s motions for default judgment are GRANTED IN PART and DENIED
`IN PART.
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`2. Defendants Saar, Savin, and McClain are hereby permanently enjoined
`infringing UN4’s exclusive rights in the motion picture film Boyka
`Undisputed 4, including without limitation by using the Internet to reproduce
`or copy Boyka Undisputed 4, to distribute Boyka Undisputed 4, or to make
`Boyka Undisputed 4 available for distribution to the public, except pursuant
`to lawful written license or with the express authority of UN4;
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`3. To the extent any unauthorized reproduction or copy of Boyka Undisputed 4
`is in Defendants’ possession or subject to their control, they are directed to
`destroy it;
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`4. Defendants are jointly and severally liable for statutory damages in the
`amount of $750;
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`ORDER GRANTING IN PART MOTIONS
`FOR DEFAULT JUDGMENT - 14
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`Case 2:17-cv-00892-RSL Document 56 Filed 03/14/19 Page 15 of 15
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`5. Defendant Andrei Saar is individually liable for attorneys’ fees in the amount
`of $466.00 and costs in the amount of $153.00.
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`6. Defendant Andrey Savin is individually liable for attorneys’ fees in the
`amount of $466.00 and costs in the amount of $153.00.
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`7. Defendant Eric McClain is individually liable for attorneys’ fees in the
`amount of $466.00 and costs in the amount of $153.00.
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`IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment in
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`favor of plaintiff and against defendants in the amounts specified in this Order.
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`Dated this 14th day of March, 2019.
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`A
`Robert S. Lasnik
`United States District Judge
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`ORDER GRANTING IN PART MOTIONS
`FOR DEFAULT JUDGMENT - 15
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