Case 1:08-cv-00315-JAW Document 12 Filed 05/26/09 Page 1 of 9 PageID #: 69
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MAINE
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`CV-08-315-B-W
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`ELEKTRA ENTERTAINMENT
`GROUP INC., et al.,
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`Plaintiffs,
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`v.
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`ALBERT CARTER,
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`Defendant.
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`ORDER ON MOTION FOR ENTRY OF DEFAULT JUDGMENT
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`Six copyright owners and licensees sued Albert Carter, alleging that he infringed their
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`exclusive rights of reproduction and distribution by sharing copyrighted songs on a peer-to-peer
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`file-sharing network. Mr. Carter defaulted and Plaintiffs move for default judgment pursuant to
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`Rule 55(b)(2). The Court grants their motion.
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`I.
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`STATEMENT OF FACTS
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`Plaintiffs filed their Complaint on September 19, 2008, Compl. for Copyright
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`Infringement (Injunctive Relief Sought) (Docket # 1) (Compl.), and by virtue of the entry of
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`default, the Court considers the alleged facts “established as a matter of law.” Libertad v.
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`Sanchez, 215 F.3d 206, 208 (1st Cir. 2000). Plaintiffs are copyright owners or licensees of
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`exclusive rights protected by the Copyright Act, 17 U.S.C. § 101 et seq. Compl. ¶ 11. They
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`have distribution and reproduction rights in ten copyrighted sound recordings, a list of which
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`they attached to the Complaint.1 Compl. Ex. A (Docket # 1-2). At 6:36 a.m. on May 8, 2007,
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`Mr. Carter, whom Plaintiffs identified by his unique Internet Protocol address, was distributing
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`1 One Plaintiff, UMG Recordings, Inc., claimed rights in three sound recordings. Two others, Elektra Entertainment
`Group Inc., and Sony BMG Music Entertainment, claimed rights in two. The remainder, Interscope Records,
`Atlantic Recording Corporation, Capitol Records, LLC, claimed rights in one. Compl. Ex. A (Docket # 1-2).
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`Case 1:08-cv-00315-JAW Document 12 Filed 05/26/09 Page 2 of 9 PageID #: 70
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`852 audio files over the Internet on a peer-to-peer network. Compl. ¶ 15. Among these 852
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`audio files were the ten specific sound recordings in which Plaintiffs have rights protected by the
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`Copyright Act. Id. The peer-to-peer network of which Mr. Carter was a member enabled him to
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`download audio files stored on other computers and to distribute audio files stored on his
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`computer. Id. ¶¶ 13-14.
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`Plaintiffs claimed that Mr. Carter had downloaded and/or distributed all ten specified
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`sound recordings without their consent or permission. Id. ¶ 15. Moreover, Plaintiffs contended
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`that Mr. Carter‟s infringing activity was willful, because notices of copyright pursuant to 17
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`U.S.C. § 401 with respect to the ten sound recordings were placed on their respective album
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`covers, which were published and widely available to the public, including Mr. Carter. Id. ¶¶ 17-
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`18. Plaintiffs sought statutory damages, attorney fees, costs, and injunctive relief. Id. ¶¶ 19-20.
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`Plaintiffs initially had trouble locating Mr. Carter to serve him with the Complaint and
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`Summons, and sought an extension of time in which to do so pursuant to Rule 4(m). See Fed. R.
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`Civ. P. 4(m); Pls.’ Mot. for Extension of Time to Effectuate Service (Docket # 6). Less than a
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`month after the Magistrate Judge granted their motion, Order (Docket # 7), Plaintiffs‟ process
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`server tracked Mr. Carter down in an apartment in Orono, Maine, and served him with the
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`Complaint and Summons on February 16, 2009. Aff. of Service (Docket # 8). Pursuant to Rule
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`12, Mr. Carter had twenty days within which to serve an answer on Plaintiffs. Fed. R. Civ. P.
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`12(a)(1)(A)(i). He failed to do so, and on March 11 Plaintiffs moved for entry of default, which
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`the Clerk granted the next day pursuant to Rule 55(a). Mot. for Entry of Default (Docket # 9);
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`Order (Docket # 10). Plaintiffs immediately moved for default judgment. Mot. for Entry of Default
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`J. by the Court (Docket # 11) (Pls.’ Mot.). Plaintiffs seek statutory damages in the amount of $7,500,
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`costs in the amount of $620, and a permanent injunction. Pls.’ Mot. at 3.
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`2
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`Case 1:08-cv-00315-JAW Document 12 Filed 05/26/09 Page 3 of 9 PageID #: 71
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`II.
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`DISCUSSION
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`A.
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`Entering Default Judgment
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`Generally, a court may enter default judgment without a hearing if it “has jurisdiction over
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`the subject matter and parties, the allegations in the complaint state a specific, cognizable claim for
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`relief, and the defaulted party had fair notice of its opportunity to object.” Banco Bilbao Vizcaya
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`Argentaria v. Family Rests., Inc. (In re The Home Rests., Inc.), 285 F.3d 111, 114 (1st Cir. 2002).
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`On the other hand, a default judgment that inevitably would be set aside should not be entered in the
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`first place. 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
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`Procedure § 2685, at 40-41 (3d ed. 1998). The Court therefore first assesses its jurisdiction and the
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`sufficiency of the Complaint to establish Mr. Carter‟s liability. See M & K Welding, Inc. v. Leasing
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`Partners, LLC, 386 F.3d 361, 364 (1st Cir. 2004) (“[A] default judgment issued without jurisdiction
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`over a defendant is void . . . [and] remains vulnerable to being vacated at any time.”); United States
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`v. V & E Eng’g & Constr. Co., 819 F.2d 331, 336-37 (1st Cir. 1987) (noting doctrine that in some
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`circumstances a defaulting party may appeal a default judgment entered on a complaint that is
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`“insufficient to support the judgment”) (collecting cases); Katahdin Paper Co. v. U&R Sys., Inc., 231
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`F.R.D. 110, 112 (D. Me. 2005) (noting that liability is “not necessarily established as a result of the
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`default”).
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`1.
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`Personal Jurisdiction
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`“In the ordinary course, the district court acquires jurisdiction over a defendant only by
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`service of process.” Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d 1555, 1559 (1st Cir. 1989).
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`Pursuant to Rule 4(e)(1), service of process on an individual within the District of Maine is governed
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`by Maine law. Fed. R. Civ. P. 4(e)(1); see M & K Welding, 386 F.3d at 364. Here, Plaintiffs‟
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`process server personally delivered a copy of the Summons and Complaint to Mr. Carter at an
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`3
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`Case 1:08-cv-00315-JAW Document 12 Filed 05/26/09 Page 4 of 9 PageID #: 72
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`address in Orono, Maine, which is sufficient under Maine law. Aff. of Service; Me. R. Civ. P.
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`4(d)(1). The Court has personal jurisdiction over Mr. Carter.
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`2.
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`Subject Matter Jurisdiction
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`The Court has jurisdiction over Plaintiffs‟ claims of copyright infringement pursuant to
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`28 U.S.C. §§ 1331, 1338.
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`3.
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`Sufficiency of the Complaint to Establish Liability
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`There are only two elements of a copyright infringement claim: “(1) ownership of a valid
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`copyright, and (2) copying of constituent elements of the work that are original.” T-Peg, Inc. v.
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`Vt. Timber Works, Inc., 459 F.3d 97, 108 (1st Cir. 2006) (internal quotation omitted). Copying,
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`when not susceptible to proof by direct evidence, “is demonstrated when someone who has
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`access to a copyrighted work uses material substantially similar to the copyrighted work in a
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`manner which interferes with a right protected by 17 U.S.C. § 106.” Gamma Audio & Video,
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`Inc. v. Ean-Chea, 11 F.3d 1106, 1115 (1st Cir. 1993); see S.O.S., Inc. v. Payday, Inc., 886 F.2d
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`1081, 1085 n.3 (9th Cir. 1989) (“The word „copying‟ is shorthand for the infringing of any of the
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`copyright owner‟s five exclusive rights, described at 17 U.S.C. § 106.”). Section 106 protects
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`the rights to copy and distribute copies of copyrighted works. 17 U.S.C. § 106. Thus, if
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`Plaintiffs alleged facts that prove (1) ownership of valid copyrights in specific works, and (2)
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`Mr. Carter‟s copying of those works and interference with Plaintiffs‟ exclusive rights of
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`distribution and reproduction, the Complaint is sufficient to establish Mr. Carter‟s liability for
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`copyright infringement.
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`Plaintiffs alleged copyright ownership in specific sound recordings. Compl. ¶ 11. They
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`also alleged that Mr. Carter was a member of a file-sharing network, and that he continuously
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`distributed 852 audio files, including Plaintiffs‟ copyrighted sound recordings, over that network.
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`4
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`Case 1:08-cv-00315-JAW Document 12 Filed 05/26/09 Page 5 of 9 PageID #: 73
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`Id. ¶ 13-15. Moreover, Plaintiffs alleged that Mr. Carter had downloaded at least some of the
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`copyrighted sound recordings he distributed over the file-sharing network. Id. Plaintiffs
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`contended that these allegations amount to infringement of their exclusive reproduction and
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`distribution rights. Id. ¶ 15.
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`As a defaulting party, Mr. Carter “is taken to have conceded the truth of the factual
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`allegations in the complaint as establishing the grounds for liability as to which damages will be
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`calculated.” Ortiz-Gonzalez v. Fonovisa, 277 F.3d 59, 62-63 (1st Cir. 2002) (internal quotation
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`omitted) (approving of trial court‟s liability finding where defaulting party was taken to have
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`conceded distribution of unauthorized reproductions of copyrighted songs); Universal City
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`Studios Prods. LLLP v. Bigwood, 441 F. Supp. 2d 185, 191 (D. Me. 2006). Based on these
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`allegations, the Court finds there is a factual basis for liability for copyright infringement. See
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`Katahdin Paper, 231 F.R.D. at 112. Having determined that it has jurisdiction over the subject
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`matter and the parties, and that the Complaint is sufficient to support the default judgment, the Court
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`turns to damages.
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`B.
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`Plaintiffs’ Requested Relief
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`1.
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`Statutory Damages
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`Pursuant to 17 U.S.C. § 504(a)(2), at the copyright owner‟s election in lieu of actual
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`damages and profits, an infringer of copyright is liable for statutory damages as provided in §
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`504(c). 17 U.S.C. § 504(a)(2). Section 504(c)(1) states that a copyright owner can recover
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`statutory damages “for all infringements involved in the action, with respect to any one work, for
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`which any one infringer is liable individually, or for which any two or more infringers are liable
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`jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers
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`just.” 17 U.S.C. § 504(c)(1). In other words, “the total number of „awards‟ of statutory damages
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`that a plaintiff may recover in any given action against a single defendant depends on the number
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`5
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`Case 1:08-cv-00315-JAW Document 12 Filed 05/26/09 Page 6 of 9 PageID #: 74
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`of works that are infringed . . . and is unaffected by the number of infringements of those works.”
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`Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 194 (1st Cir. 2004) (emphasis omitted).
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`Plaintiffs have elected to pursue statutory damages. They claim that Mr. Carter infringed
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`ten works and seek the minimum amount of $750 per work, or $7,500 in total statutory damages.
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`Pls.’ Mot. at 3. They also argue that because this measure of damages is “easily . . .
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`ascertainable from the Complaint, no evidentiary hearing is necessary.” Id. at 5. The Court
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`agrees with both propositions, and grants their motion with respect to statutory damages. See
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`HMG Prop. Investors, Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 919 (1st Cir. 1988)
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`(“It is settled that, if arriving at the judgment amount involves nothing more than arithmetic—the
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`making of computations which may be figured from the record—a default judgment can be
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`entered without a hearing of any kind.”).
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`2.
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`Permanent Injunction
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`A court adjudicating a claim of copyright infringement may “grant temporary and final
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`injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a
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`copyright.” 17 U.S.C. § 502(a). The standard for issuing a permanent injunction ordinarily
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`requires the Court to find that
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`(1) plaintiffs prevail on the merits; (2) plaintiffs would suffer irreparable injury in
`the absence of injunctive relief; (3) the harm to plaintiffs would outweigh the
`harm the defendant would suffer from the imposition of an injunction; and (4) the
`public interest would not be adversely affected by an injunction.
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`A.W. Chesterton Co. v. Chesterton, 128 F.3d 1, 5 (1st Cir. 1997). However, in copyright actions
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`“[c]ourts generally grant permanent injunctions where liability is clear and there is a continuing
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`threat to the copyright.” Bigwood, 441 F. Supp. 2d at 192; see Concrete Machinery Co. v.
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`Classic Lawn Ornaments, Inc., 843 F.2d 600, 611 (1st Cir. 1988) (noting, in a discussion of the
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`similar preliminary injunction standard, that “irreparable harm is usually presumed if likelihood
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`Case 1:08-cv-00315-JAW Document 12 Filed 05/26/09 Page 7 of 9 PageID #: 75
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`of success on the copyright claim has been shown” and “it is virtually axiomatic that the public
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`interest can only be served by upholding copyright protections”).
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`Plaintiffs contend that Mr. Carter‟s infringing activities on the peer-to-peer file-sharing
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`network exposed their copyrighted sound recordings to “massive, repeated, near-instantaneous,
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`and worldwide infringement.” Pls.’ Mot. at 8. They also point to a lack of evidence that Mr.
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`Carter has ceased these activities.2 Id. at 9. Plaintiffs propose a permanent injunction that
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`enjoins future infringement not only of the ten copyrighted sound recordings in this action, but
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`also of all other copyrights Plaintiffs currently own or may own in the future. Id. at 9-10 (citing
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`Princeton Univ. Press v. Mich. Doc. Servs., Inc., 99 F.3d 1381, 1392-1393 (6th Cir. 1996) (en
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`banc), cert. denied, 520 U.S. 1156 (1997)).
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`There is a considerable body of authority that permanent injunctions may extend to future
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`works upon a showing of a threat of future infringements.3 Considering the possibility that
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`future activity on a peer-to-peer network may lead to exponential infringement and the fact that
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`the ten works for which Mr. Carter is being held liable represent only a fraction of his file-
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`sharing activity, the Court grants Plaintiffs‟ request for a permanent injunction.4
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`2 The Plaintiffs also contend that “Defendant‟s failure to respond to the Complaint suggests that Defendant does not
`take seriously the illegality of the infringing activity.” Pls.’ Mot. at 9. The Court is unwilling to draw this inference.
`The Defendant‟s failure to respond could just as easily be an acknowledgement that he has no defense.
`3 See, e.g., UMG Recordings, Inc. v. Green, No. 1:08-CV-273 (GLS/DRH), 2009 U.S. Dist. LEXIS 39305
`(N.D.N.Y. May 7, 2009); Disney Enters., Inc. v. Crim, No. 08-12387, 2009 U.S. Dist. LEXIS 152 (E.D. Mich. Jan.
`5, 2009); Warner Bros. Records, Inc. v. Brown, No. C 08-01040 WHA, 2008 U.S. Dist. LEXIS 95171 (N.D. Cal.
`2008); Sony Pictures Home Entm’t Inc. v. Lott, 471 F. Supp. 2d 716 (N.D. Tex. 2007); Warner Bros. Records Inc. v.
`Hughes, No. 06-3112, 2007 U.S. Dist. LEXIS 6800 (C.D. Ill. Jan. 31, 2007); Arista Records, Inc. v. Becker Enters.,
`Inc., 298 F. Supp. 2d 1310 (S.D. Fla. 2003); Picker Int’l Corp. v. Imaging Equip. Servs., Inc., 931 F. Supp. 18 (D.
`Mass. 1995); 4-14 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.06[C][2][c] (2009); see also
`Bigwood, 441 F. Supp. 2d at 192 (recognizing authority but declining to enjoin infringement of future works based
`on an inadequate showing of a threat of future infringement where defendant was deemed to have admitted to
`distributing only two movies over a file-sharing network).
`4 The complete injunction appears at the end of this Order. Instead of accepting exactly Plaintiffs‟ proposed
`language, the Court has made three clarifying changes: First, the injunction makes no reference to state law,
`because Plaintiffs‟ copyrights are protected by federal statute. Second, Plaintiffs, the Defendant, and the ten sound
`recordings that are the subjects of this action are named individually. Third, no reference is made to direct or
`indirect copyright infringement; liability for infringement will arise in either case, and Mr. Carter is permanently
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`Case 1:08-cv-00315-JAW Document 12 Filed 05/26/09 Page 8 of 9 PageID #: 76
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`3.
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`Costs of Suit
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`Pursuant to 17 U.S.C. § 505, the Court has discretion to “allow the recovery of full costs
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`by or against any party.” In addition, Rule 54 provides that costs “should be allowed to the
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`prevailing party.” Fed. R. Civ. P. 54(d)(1). As regards the Plaintiffs‟ claim for costs, the Court
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`awards costs generally. See D. Me. Loc. R. 54.3 (describing the process by which the Clerk
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`taxes costs).
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`III. CONCLUSION
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`The Court GRANTS Plaintiffs‟ Motion for Entry of Default Judgment by the Court
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`(Docket # 11). The Court AWARDS Plaintiffs statutory damages in the amount of $7,500 plus
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`costs. The Court PERMANENTLY ENJOINS the Defendant, Albert Carter, as follows:
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`Albert Carter (“Defendant”) shall be and hereby is enjoined from infringing the
`copyrights protected under federal law of Elektra Entertainment Group Inc.,
`Interscope Records, Sony BMG Music Entertainment, Atlantic Recording
`Corporation, Capitol Records, LLC, and UMG Recordings, Inc. (collectively,
`“Plaintiffs”) in (1) “Keepin It Gangsta” by Fabolous, (2) “I‟ve been Delivered” by
`Wallflowers, (3) “Pardon Me” by Incubus, (4) “I‟m A Thug” by Trick Daddy, (5)
`“Still the Same” by Bob Seger, (6) “Closer To You” by The Wallflowers, (7)
`“Criminal” by Fiona Apple, (8) “Pictures of You” by The Cure, (9) “Blind” by
`Lifehouse, and (10) “Bullet The Blue Sky” by U2, and any sound recording,
`whether now in existence or later created, that is owned or controlled by Plaintiffs
`(or any parent, subsidiary, or affiliate record label of Plaintiffs) (“Plaintiffs‟
`Recordings”), including without limitation by using the Internet or any online
`media distribution system to reproduce (i.e., download) any of Plaintiffs‟
`Recordings, to distribute (i.e., upload) any of Plaintiffs‟ Recordings, or to make
`any of Plaintiffs‟ 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.
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`enjoined from infringing Plaintiffs‟ copyrights. The Court retains pursuant to 17 U.S.C. § 503(b) the requirement
`that Mr. Carter destroy all infringing copies of Plaintiffs‟ Recordings.
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`Case 1:08-cv-00315-JAW Document 12 Filed 05/26/09 Page 9 of 9 PageID #: 77
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`SO ORDERED.
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`/s/ John A. Woodcock, Jr.
`JOHN A. WOODCOCK, JR.
`CHIEF UNITED STATES DISTRICT JUDGE
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`Dated this 26th day of May, 2009
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