case 3:13-cv-00332-PPS-CAN document 17 filed 12/13/13 page 1 of 8
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF INDIANA
`SOUTH BEND DIVISION
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`No. 3:13-cv-00332-PPS-CAN
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`MALIBU MEDIA, LLC,
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`
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`Plaintiff,
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`v.
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`JOHNATHAN BRENNEMAN,
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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 Johnathan
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`Brenneman claiming that Brenneman used a peer-to-peer file sharing network to distribute
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`Malibu’s copyrighted movies [DE 15]. Because Brenneman has failed to appear, plead, or
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`otherwise defend as provided by the Federal Rules of Civil Procedure, Plaintiff’s Motion for
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`Default Judgment is GRANTED IN PART and DENIED IN PART .
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`BACKGROUND
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`In its Amended Complaint, Malibu Media alleges Brenneman infringed its copyrights
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`when he disseminated without authorization all or portions of eleven copyrighted movies using
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`BitTorrent, a peer-to-peer file sharing protocol.
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`On April 19, 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, Brenneman’s
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`Internet Service Provider disclosed that Brenneman was the person associated with the offending
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`IP address. Malibu filed its amended complaint naming Brenneman as the Defendant on July 8,
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`2013 [DE 9]. Brenneman was served via personal service on July 26, 2013, and has not
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`responded to the suit [DE 11]. The Clerk entered default on August 29, 2013 [DE 14], and
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`
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF INDIANA
`SOUTH BEND DIVISION
`
`No. 3:13-cv-00332-PPS-CAN
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`MALIBU MEDIA, LLC,
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`
`
`Plaintiff,
`
`v.
`
`JOHNATHAN BRENNEMAN,
`
`Defendant.
`
`OPINION AND ORDER
`
`Plaintiff Malibu Media seeks a default judgment against Defendant Johnathan
`
`Brenneman claiming that Brenneman used a peer-to-peer file sharing network to distribute
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`Malibu’s copyrighted movies [DE 15]. Because Brenneman has failed to appear, plead, or
`
`otherwise defend as provided by the Federal Rules of Civil Procedure, Plaintiff’s Motion for
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`Default Judgment is GRANTED IN PART and DENIED IN PART .
`
`BACKGROUND
`
`In its Amended Complaint, Malibu Media alleges Brenneman infringed its copyrights
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`when he disseminated without authorization all or portions of eleven copyrighted movies using
`
`BitTorrent, a peer-to-peer file sharing protocol.
`
`On April 19, 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, Brenneman’s
`
`Internet Service Provider disclosed that Brenneman was the person associated with the offending
`
`IP address. Malibu filed its amended complaint naming Brenneman as the Defendant on July 8,
`
`2013 [DE 9]. Brenneman was served via personal service on July 26, 2013, and has not
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`responded to the suit [DE 11]. The Clerk entered default on August 29, 2013 [DE 14], and
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`
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`case 3:13-cv-00332-PPS-CAN document 17 filed 12/13/13 page 2 of 8
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`Malibu Media moved for default judgment on September 26, 2013 [DE 15].
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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 Brenneman is not a minor,
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`incompetent, or in active duty military service [DE 16-1]. 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. Brenneman at his
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`address in Elkhart, Indiana, and describes Mr. Brenneman as a thirty-eight-year-old man [DE 11
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`at 1]. 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. Brenneman
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`was 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-00332-PPS-CAN document 17 filed 12/13/13 page 3 of 8
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`technicality, as Brenneman has not filed an answer or any responsive pleadings since the
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`complaint against him was filed on July 8, 2013. The defendant cannot be allowed to completely
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`ignore this suit. See In re Pyramid Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1062
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`(7th Cir. 1989) (“A trial court is entitled to say, under proper circumstances, that enough is
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`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 16-2] and that Brenneman 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 most of the damages it requests. Malibu requests
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`statutory damages of $2,250.00 for each copyright violation for a total of $24,750.00. It seeks a
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`permanent injunction barring Brenneman 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. While the requests for the injunction and attorneys’ fees are reasonable and proper, I find
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`the amount of statutory damages requested excessive. As I will explain below, I have reduced
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`the statutory damages to a more reasonable award of $1500.00 per work.
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`The Copyright Act provides for both monetary and injunctive relief. First, it provides
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`3
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`case 3:13-cv-00332-PPS-CAN document 17 filed 12/13/13 page 4 of 8
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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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`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 $2,250.00 per copyrighted work, three times
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`the minimum statutory damages of $750 per work, for a total award of $24,750.00. Awards of
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`statutory damages “between the minimum and maximum statutory limits for copyright
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`infringement damages [are] wholly within the trial court’s discretion and sense of justice.”
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`Weintraub/OKUN Music v. Atlantic Fish & Chips, Inc., No. 90 c 4938, 1991 WL 34713 at *5
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`(N.D. Ill. Mar. 13, 1991) (internal quotations omitted). Plaintiff’s actual damages from
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`Brenneman’s online distribution of its films are likely minimal as Brenneman was merely one
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`participant in a group of users sharing bits and pieces of Malibu’s works [DE 9 at 3-4] and there
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`are no special circumstances regarding the availability of Malibu’s films that Brenneman’s
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`4
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`case 3:13-cv-00332-PPS-CAN document 17 filed 12/13/13 page 5 of 8
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`activity interfered with. Universal City Studios Productions, LLLP v. Franklin, No. 2:06 cv 136,
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`2007 WL 1042146 at *4 (N.D. Ind. April 5, 2007) (awarding statutory damages of $3000 per
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`work because the pirated work had not yet been released to the public on DVD). Moreover, I am
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`troubled, as are other courts around the country, by the rise of so-called “copyright trolls” in the
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`adult film industry, meaning copyright holders who seek copyright infringement damages not to
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`be made whole, but rather as a primary or secondary revenue stream and file mass lawsuits
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`against anonymous Doe defendants with the hopes of coercing settlements. See, e.g. Third
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`Degree Films v. Does 1-47, 286 F.R.D. 188, 189-90 (D. Mass. 2012); James DeBriyn, Shedding
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`Light on Copyright Trolls: An Analysis of Mass Copyright Litigation in the Age of Statutory
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`Damages, 19 UCLA Ent. L. Rev. 79, 86 (2012). Although I do not believe that Malibu Media
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`has in fact engaged in any disreputable practices in this litigation, the existence of this trend
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`informs my consideration of Malibu Media’s request for damages.
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`Statutory damages are intended to discourage infringement in addition to compensating
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`copyright holders. F.E.L. Publications, LTD v. Catholic Bishops of Chicago, 754 F.2d 216, 219
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`(7th Cir. 1985). However, the deterrent aspect of statutory damages should not be turned into a
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`windfall where, as here, the Plaintiff has suffered only minimal damages. Doehrer v. Caldwell,
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`79 C 394, 1980 WL 1158 at *2 (7th Cir. March 28, 1980). I find damages of $1500.00 per work
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`will suffice to compensate Plaintiff and deter future infringement. Accordingly, an award of
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`$16,500.00 is appropriate.
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`In addition, Malibu Media requests a permanent injunction barring Brenneman 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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`5
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`case 3:13-cv-00332-PPS-CAN document 17 filed 12/13/13 page 6 of 8
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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 16 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 Brenneman
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`will continue violating its copyrights unless enjoined from doing so and Brenneman’s failure to
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`respond 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 $2,550.00 in attorneys’ fees and $445.00 in
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`costs for a total of $2,995.00. 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, Brenneman distributed
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`eleven of Plaintiff’s works in clear violation of its rights and completely failed to respond in any
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`6
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`case 3:13-cv-00332-PPS-CAN document 17 filed 12/13/13 page 7 of 8
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`way to this lawsuit. Plaintiff’s counsel has submitted an affidavit itemizing the time he spent on
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`this case [DE 16-1], and that amount is entirely reasonable. So the request of $2,995.00 in total
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`costs is approved.
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`CONCLUSION
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`For the foregoing reasons, Plaintiff’s motion for default judgment [DE 15] 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 $16,500.00 for the eleven 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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`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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`$2,995.00.
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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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`7
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`case 3:13-cv-00332-PPS-CAN document 17 filed 12/13/13 page 8 of 8
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`SO ORDERED.
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`ENTERED: December 13, 2013
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`s/ Philip P. Simon
`PHILLIP P. SIMON, JUDGE
`UNITED STATES DISTRICT COURT
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`8
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