case 3:13-cv-00162-PPS-CAN document 26 filed 06/02/14 page 1 of 7
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF INDIANA
`SOUTH BEND DIVISION
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`No. 3:13-cv-00162-PPS-CAN
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`MALIBU MEDIA, LLC,
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`Plaintiff,
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`v.
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`ALAN COWHAM,
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`Defendant.
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`OPINION AND ORDER
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`Plaintiff Malibu Media seeks a default judgment against Defendant Alan Cowham
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`claiming that Cowham used a peer-to-peer file sharing network to distribute Malibu’s
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`copyrighted movies [DE 24]. Because Cowham has failed to appear, plead, or otherwise defend
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`as provided by the Federal Rules of Civil Procedure, Plaintiff’s Motion for Default Judgment is
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`GRANTED.
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`BACKGROUND
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`In its Amended Complaint, Malibu Media alleges Cowham infringed its copyrights when
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`he disseminated without authorization all or portions of twenty-four copyrighted movies using
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`BitTorrent, a peer-to-peer file sharing protocol.
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`On March 5, 2013, Malibu Media filed its initial complaint against a Doe defendant
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`associated with a certain IP address [DE 1]. In response to a third party subpoena, Cowham’s
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`Internet Service Provider disclosed that Cowham was the person associated with the offending
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`IP address. Malibu filed its amended complaint naming Cowham as the Defendant on May 29,
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`2013 [DE 9]. Cowham was served via personal service on September 18, 2013, and has not
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`responded to the suit [DE 20]. The Clerk entered default on December 5, 2013 [DE 23], and
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`case 3:13-cv-00162-PPS-CAN document 26 filed 06/02/14 page 2 of 7
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`Malibu Media moved for default judgment on February 17, 2014 [DE 24].
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`DISCUSSION
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`Federal Rule of Civil Procedure 55(b) gives the Court the power to enter default
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`judgment in this situation. However, the Court must exercise sound judicial discretion in
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`entering default. O'Brien v. R.J. O'Brien & Assocs., Inc., 998 F.2d 1394, 1398 (7th Cir. 1993).
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`A court may look to a number of factors when deciding a motion for default judgment. These
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`factors include the amount of money potentially involved, whether material issues of fact or
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`issues of substantial public importance are at issue, whether the default is largely technical,
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`whether plaintiff has been substantially prejudiced by the delay involved, and whether the
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`grounds for default are clearly established. 10A C. Wright, A. Miller & M. Kane, Federal
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`Practice and Procedure: Civil 3d § 2685 (1998).
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`Malibu Media’s counsel stated in a sworn declaration that Cowham is not a minor,
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`incompetent, or in active duty military service [DE 24-1]. Since minors often access the internet
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`and could have downloaded and distributed the movies, I usually require more than counsel’s
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`assurances that the Defendant is not a minor. Here we also have the return of service filed by the
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`process server. In the return, the server affirms that she personally served Mr. Cowham at his
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`address in South Bend, Indiana, and describes Mr. Cowham as a forty-five-year-old man [DE
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`20]. Further, this is not a case where the alleged infringer is identified only through an online
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`screen name, where the risk that a minor could have been the offender is highest. Cowham was
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`identified because he was the account holder for the Comcast account associated with the
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`offending IP address.
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`The grounds for default are plainly established. First, the default goes beyond a mere
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`case 3:13-cv-00162-PPS-CAN document 26 filed 06/02/14 page 3 of 7
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`technicality, as Cowham has not filed an answer or any responsive pleadings since the complaint
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`against him was filed in May 2013. The defendant cannot be allowed to completely ignore this
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`suit. See In re Pyramid Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1062 (7th Cir.
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`1989) (“A trial court is entitled to say, under proper circumstances, that enough is enough.”).
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`Further, few material issues of facts are in dispute in here. In order for Malibu Media to
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`establish the prima facie case of direct copyright infringement, it must satisfy two requirements:
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`(1) it must show ownership of the allegedly infringed material; and (2) it must demonstrate that
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`the alleged infringers violate at least one exclusive right granted to copyright holders. 17 U.S.C.
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`§§ 106, 501(a). Here, Malibu has pled that it owned the copyrighted materials specified in
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`Exhibit A [DE 25-1] and that Cowham violated its exclusive right to distribute the copyrighted
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`works to the public by downloading and distributing them via BitTorrent, an online media
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`distribution system. Therefore, the facts as stated in the complaint establish direct copyright
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`infringement by the Defendant.
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`Finally, Malibu Media is entitled to the damages it requests. Malibu requests statutory
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`damages of $1,500.00 for each copyright violation for a total of $36,000.00. It seeks a
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`permanent injunction barring Cowham from continuing to infringe its copyrighted works and
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`ordering that he delete any infringing copies. It also requests an award of attorneys’ fees and
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`costs. As I will explain, these requests are reasonable and proper.
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`The Copyright Act provides for both monetary and injunctive relief. First, it provides
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`that “an infringer of copyright is liable for either (1) the copyright owner’s actual damages and
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`any additional profits of the infringer, as provided by subsection (b); or (2) statutory damages, as
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`provided by subsection (c).” Id. at § 504(a). Under § 504(c), the copyright owner may choose to
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`case 3:13-cv-00162-PPS-CAN document 26 filed 06/02/14 page 4 of 7
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`recover statutory damages in lieu of actual damages any time prior to the entry of final judgment.
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`Statutory damages are described as follows:
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`statutory damages for all infringements involved in the action, with
`respect to any one work, for which any one infringer is liable
`individually, or for which any two or more infringers are liable
`jointly and severally, in a sum of not less than $750 or more than
`$30,000 as the court considers just. For the purposes of this
`subsection, all the parts of a compilation or derivative work constitute
`one work.
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`Id. at § 504 (c). Second, § 502 authorizes the court to grant temporary and final injunctions on
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`such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” Id. at
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`§ 502. Finally, the Court has discretion to award costs and fees to the prevailing party. Id. at §
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`505.
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`Malibu Media requests statutory damages of $1,500.00 per copyrighted work for a total
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`award of $36,000.00. Awards of statutory damages “between the minimum and maximum
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`statutory limits for copyright infringement damages [are] wholly within the trial court’s
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`discretion and sense of justice.” Weintraub/OKUN Music v. Atlantic Fish & Chips, Inc., No. 90
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`c 4938, 1991 WL 34713 at *5 (N.D. Ill. Mar. 13, 1991) (internal quotations omitted). Although
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`the total amount of damages that Malibu is seeking is substantial, the request is reasonable.
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`First, Cowhan engaged in a lot of copyright infringement – infringing twenty-four of Malibu’s
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`copyrights. This means the total damages are bound to be significant even if the per-work award
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`is relatively low. Malibu’s request of $1,500.00 per work is, in fact, on the low end of the
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`statutory scale and is also in line with damages awarded in similar circumstances. See, e.g.,
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`Malibu Media, LLC v. Brenneman, No. 3:13-cv-332-PPS, 2013 WL 6560387, at *3 (N.D. Ind.
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`Dec. 13, 2013) (awarding statutory damages of $1,500.00 per infringed movie); PHE, Inc. v.
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`case 3:13-cv-00162-PPS-CAN document 26 filed 06/02/14 page 5 of 7
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`Does 1-122, No. 13-cv-786, 2014 WL 1856755, at *3 (N.D. Ill. May 7, 2014) (same). Finally,
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`statutory damages are intended to discourage infringement in addition to compensating copyright
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`holders. F.E.L. Publications, LTD v. Catholic Bishops of Chicago, 754 F.2d 216, 219 (7th Cir.
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`1985). Damages of $1,500.00 per work should suffice to compensate Plaintiff and deter future
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`infringement. Accordingly, an award of $36,000.00 is appropriate.
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`In addition, Malibu Media requests a permanent injunction barring Cowham from
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`continuing to infringe any of its copyrighted works and to delete the infringing copies of its work
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`that he still has. Specifically, Plaintiff requests an injunction:
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`(A)
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`(B)
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`(C)
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`Permanently enjoining Defendant and all other persons who
`are in active concert or participation with Defendant from
`continuing to infringe Plaintiff’s copyrighted Works;
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`Ordering that Defendant delete and permanently remove the
`digital media files relating to Plaintiff’s Works from each of
`the computers under such Defendant’s possession, custody or
`control; and
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`Ordering that Defendant delete and permanently remove the
`infringing copies of the Works Defendant has on the
`computers under Defendant’s possession, custody or control
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`[DE 25 at 10].
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`Section 502 of the Copyright Act authorizes the court to grant temporary and final
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`injunctions on such terms as it may deem reasonable to prevent or restrain infringement of
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`copyright. In cases of unlawful downloads, injunctive relief may be “appropriate to ensure that
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`the misconduct does not recur as soon as the case ends.” BMG Music v. Gonzalez, 430 F.3d 888,
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`893 (7th Cir. 2005). Injunctions can also include directing the destruction of all copies of
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`infringed works in a defendant’s custody and control. Virgin Records Am., Inc. v. Johnson, 441
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`F. Supp. 2d 963, 966 (N.D. Ind. 2006). Given Malibu Media’s allegations that the Cowham will
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`case 3:13-cv-00162-PPS-CAN document 26 filed 06/02/14 page 6 of 7
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`continue violating its copyrights unless enjoined from doing so and Cowham’s failure to respond
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`to the complaint, I find that a permanent injunction is proper.
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`Finally, Malibu Media requests an award of attorneys’ fees and costs as allowed under §
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`505. Specifically, Plaintiff requests an award of $1,182.00 in attorney’s fees and $425.00 in
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`costs for a total of $1,607.00. The assessment of fees and costs under this section “is as much to
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`penalize the losing party as to compensate the prevailing party” and “is a matter within the
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`Court’s discretion.” Weintraub, 1991 WL 34713 at *5. In this case, Cowham distributed
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`twenty-four of Plaintiff’s works in clear violation of its rights and completely failed to respond
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`in any way to this lawsuit. Plaintiff’s counsel has submitted an affidavit itemizing the time he
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`spent on this case [DE 24-1], and that amount is entirely reasonable. So the request of $1,607.00
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`in total costs is approved.
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`CONCLUSION
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`For the foregoing reasons, Plaintiff’s motion for default judgment [DE 24] is hereby
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`GRANTED IN PART and DENIED IN PART; the Court orders the following relief:
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`1.
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`Statutory damages in the amount of $36,000.00 for the twenty-four infringements
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`alleged in the complaint pursuant to the Section 504 of the Copyright Act ($1500.00 for each
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`infringement);
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`2.
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` A permanent injunction as follows:
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`Defendant and all other persons who are in active concert or
`participation with Defendant are permanently enjoined from
`continuing to infringe Plaintiff’s copyrighted Works.
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`Defendant is ordered to delete and permanently remove the digital
`media files relating to Plaintiff’s Works from each of the computers
`under his possession, custody or control.
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`case 3:13-cv-00162-PPS-CAN document 26 filed 06/02/14 page 7 of 7
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`Defendant is ordered to delete and permanently remove the infringing
`copies of the Works Defendant has on the computers under
`Defendant’s possession, custody or control
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`3.
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`Attorneys’ fees pursuant to Section 505 of the Copyright Act in the amount of
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`$1,607.00.
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`The Clerk is directed to enter FINAL JUDGMENT stating that the Plaintiffs are entitled
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`to the relief stated herein. The Clerk is further directed to treat this matter as TERMINATED.
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`SO ORDERED.
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`ENTERED: June 2, 2014
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`s/ Philip P. Simon
`PHILLIP P. SIMON, JUDGE
`UNITED STATES DISTRICT COURT
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