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Case 4:18-cv-03020 Document 21 Filed on 07/16/19 in TXSD Page 1 of 11
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`CIVIL ACTION H-18-3020
`
`§§
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`§§
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`§
`§
`
`§§
`
`§
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`MALIBU MEDIA, LLC,
`
`Plaintiff,
`
`v.
`
`JIE ZHAO,
`
`Defendant.
`
`MEMORANDUM OPINION AND ORDER
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`Pending before the court is plaintiff Malibu Media, LLC’s (d/b/a “X-Art.com”) (“Malibu
`
`Media”) motion for default judgment. Dkt. 20. Having considered the amended complaint, motion,
`
`record evidence, and applicable law, the court is of the opinion that the motion should be
`
`GRANTED.
`
`I. BACKGROUND
`
`This case arises under the United States Copyright Act of 1976, as amended, 17 U.S.C.
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`§§ 101 et seq. (the “Copyright Act”). Dkt. 14 at 1. Malibu Media is a California corporation
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`engaged in the production and distribution of adult erotic films through its website “X-Art.com.” See
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`id. at 2; Dkts. 14-1, 14-2. Malibu Media brings this copyright infringement action against defendant
`
`Jie Zhao. Malibu Media alleges that it owns copyrights to five films (the “Copyrighted Works”) and
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`that Zhao used computer software known as BitTorrent to illegally download, copy, and distribute
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`the films. Id. at 4.
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`

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`Case 4:18-cv-03020 Document 21 Filed on 07/16/19 in TXSD Page 2 of 11
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`A.
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`BitTorrent
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`Malibu Media alleges that the copyright infringement occurred through the use of BitTorrent.
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`According to Malibu Media, BitTorrent is one of the most common computer programs that allows
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`people to share files over the Internet. Id. at 3. BitTorrent, a peer-to-peer file sharing system, is
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`primarily used for distributing large amounts of data, including digital movie files. Id. Malibu
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`Media claims that BitTorrent’s defining feature is that it allows files to be transferred among
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`multiple computers simultaneously without creating a heavy load on any individual source computer.
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`Id.
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`Malibu Media explains that, in order to distribute a large file, the BitTorrent protocol breaks
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`a file into smaller pieces and assigns each piece a “hash,” a unique alphanumeric identifier, similar
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`to an electronic fingerprint. Id. Every digital file has one hash value correlating to it. Id. The
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`BitTorrent protocol uses the hash values to ensure each piece is properly routed among BitTorrent
`
`users as they engage in file sharing. Id. The entire digital media file also has a hash value that acts
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`as a digital fingerprint to identify the media file or movie. Id. at 3–4. When a software user
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`completes downloading all the pieces of a digital media file, the BitTorrent software uses the file
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`hash to determine that the file is complete and accurate. Id. Once a BitTorrent file has been created,
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`other BitTorrent users may access and download the file. Id.
`
`B.
`
`Alleged Copyright Infringement
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`Malibu Media hired the investigator, IPP International UG (“IPP”), to identify individuals
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`who use BitTorrent to illegally download and distribute content. Id. at 4. Malibu Media claims IPP
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`established a direct Transmission Control Protocol/Internet Protocol (“TCP/IP”) connection with the
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`assigned IP address of 73.76.108.134, belonging to Zhao. Id. at 4–5. IPP states that it downloaded
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`2
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`

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`Case 4:18-cv-03020 Document 21 Filed on 07/16/19 in TXSD Page 3 of 11
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`a full copy of each file hash from the BitTorrent File Distribution Network and confirmed that the
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`file hash matched files containing Malibu Media’s Copyrighted Works. Id. at 4. IPP claims its
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`investigation revealed that a user at the IP address 73.76.108.134 had used BitTorrent to download,
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`copy, and distribute the Copyrighted Works without authorization. Id.
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`C.
`
`Procedural History
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`On August 30 , 2018, Malibu Media filed a complaint against an unnamed individual who
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`allegedly used BitTorrent to copy and distribute the Copyrighted Works without Malibu Media’s
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`consent, thereby infringing on its copyright. Dkt. 1. The original complaint alleged that defendant
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`John Doe, a subscriber with an IP address of 73.76.108.134, infringed on Malibu Media’s registered
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`copyrights using BitTorrent. Id. After filing the complaint, Malibu Media moved for leave to serve
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`a third-party subpoena on John Doe’s Internet Service Provider, commanding it to provide the
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`subscriber’s name and contact information. Dkt. 6. The court granted the motion, after which
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`Malibu Media filed an amended complaint naming Zhao as the infringer. Dkt. 14. Malibu Media
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`properly served Zhao by personally delivering documents to him. Dkt. 19. On May 27, 2018,
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`Malibu Media filed a motion for default judgment against Zhao, which it served by certified mail,
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`return receipt requested. Dkt. 20. Malibu Media’s attorney provides a sworn declaration stating that
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`Zhao is not a minor, incompetent, or in active military service. Dkt. 20-3 (Beik Dec.).
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`II. LEGAL STANDARD
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`Under Federal Rule of Civil Procedure 55(a), “[w]hen a party against whom judgment for
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`affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by
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`affidavit or otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). Under Rule
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`55(b)(2), a party may apply for the court to enter a default judgment, and the “court may conduct
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`3
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`

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`Case 4:18-cv-03020 Document 21 Filed on 07/16/19 in TXSD Page 4 of 11
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`hearings or make referrals—preserving any federal statutory right to a jury trial—when, to enter or
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`effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages;
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`(C) establish the truth of any allegation by evidence; or (D) investigate any other matter.” Fed. R.
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`Civ. P. 55(b)(2). Rule 4 of the Federal Rules of Civil Procedure requires the plaintiff to serve a copy
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`of the summons and complaint on the defendant. Fed. R. Civ. P. 4(c)(1). Under Local Rule 5.5, a
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`motion for default judgment must be served upon the defendant via certified mail, return receipt
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`requested. S.D. Tex. L.R. 5.5.
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`A default judgment is a “drastic remedy, not favored by the Federal Rules[,] and resorted to
`
`by courts only in extreme situations.” Sun Bank of Ocala v. Pelican Homestead & Sav. Ass’n,
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`874 F.2d 274, 276 (5th Cir. 1989). “The Federal Rules of Civil Procedure are designed for the
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`just, speedy, and inexpensive disposition of cases on their merits, not for the termination of litigation
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`by procedural maneuver.” Id.
`
`Zhao has failed to plead or otherwise defend against this lawsuit. Malibu Media properly
`
`served Zhao with this lawsuit under the Federal Rules and with the motion for default judgment
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`under the Local Rules. Dkts. 19, 20; see Tex. L.R. 5.5. Given Zhao’s failure to answer the
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`complaint in a timely manner, the court: (1) has the authority to enter default against Zhao, (2) accept
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`all well-pleaded facts in Malibu Media’s complaint as true, and (3) award the relief sought by Malibu
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`Media in this action. See Nishimatsu Constr. Co. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th
`
`Cir. 1975).
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`III. ANALYSIS
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`To receive a default judgment, a plaintiff must state a plausible claim for relief. Id. Malibu
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`Media argues that Zhao committed direct copyright infringement. Copyright infringement requires
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`4
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`

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`Case 4:18-cv-03020 Document 21 Filed on 07/16/19 in TXSD Page 5 of 11
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`two elements to be proven: (1) ownership of a valid copyright, and (2) copying of constituent
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`elements of the work that are original. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361,
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`111 S. Ct. 1282 (1991).
`
`A.
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`Ownership of a Valid Copyright
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`First, Malibu Media alleges that it is the registered owner of the five Copyrighted Works
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`listed in Exhibit B to its amended complaint. Dkt. 14-2. Exhibit B provides an overview of the
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`Copyrighted Works, including a hit date, date of first publication, registration date, and registration
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`number issued by the United States Copyright Office. Dkt. 14 at 4; Dkt. 14-2. Because Malibu
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`Media provides registration numbers for its five Copyrighted Works, the court finds that Malibu
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`Media has demonstrated ownership of a valid copyright of the five Copyrighted Works.
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`B.
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`Direct Copyright Infringement
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`The second element of a copyright infringement claim requires proof of unauthorized copying
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`of the original work. Peel & Co. v. The Rug Market, 238 F.3d 391, 395 (5th Cir. 2001). “Copyright
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`infringement actions . . . ordinarily require no showing of intent to infringe. Instead, knowledge and
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`intent are relevant in regard to damages.” Chavez v. Arte Publico Press, 204 F.3d 601, 607 (5th Cir.
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`2000).
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`Malibu Media claims that Zhao used “the BitTorrent protocol to illegally download,
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`reproduce, distribute, perform[,] and display” Malibu Media’s copyrighted audiovisual works.
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`Dkt. 20-1 at 8. Malibu Media alleges that its investigators established a direct TCP/IP connection
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`with Zhao’s IP address and downloaded one or more pieces of the digital media files identified by
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`the file hashes in Exhibit A. Id. (citing Dkt. 14-1 (Exhibit A)). Each file hash listed in Exhibit A
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`correlates to a copyrighted film in Exhibit B. Id.; compare Dkt. 20-2, with Dkt 14-1. Each digital
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`5
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`

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`Case 4:18-cv-03020 Document 21 Filed on 07/16/19 in TXSD Page 6 of 11
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`media file listed in Exhibit A was allegedly verified to be a copy identical or similar to Malibu
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`Media’s corresponding original work. Id. Malibu Media claims that Zhao copied and distributed
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`the original works listed in Exhibit B without Malibu Media’s authorization, thereby violating
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`Malibu Media’s exclusive copyrights.
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`Id. at 9.
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`Downloading and distributing audiovisual works without authorization through peer-to-peer
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`networks such as BitTorrent is a “distribution” prohibited by the Copyright Act. See Atl. Recording
`
`Corp. v. Anderson, No. H–06–3578, 2008 WL 2316551, at *8 (S.D. Tex. Mar. 12, 2008) (Gilmore,
`
`J.) (holding that making copyrighted works available for download through a peer-to-peer network
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`constituted a violation). Using an online file-sharing system contemplates “further distribution” and
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`therefore satisfies the second element of a copyright infringement claim. Id. Malibu Media argues
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`that Zhao’s unauthorized use of BitTorrent violated the Copyright Act. Dkt. 20-1 at 7–8.
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`Furthermore, Zhao’s IP address was documented distributing multiple pieces of a Malibu Media
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`copyrighted movie. Id. at 8–9. Because Malibu Media pled enough facts, when taken as true, to
`
`support the allegation of unauthorized copying and distribution of its original work, the court finds
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`that Malibu Media has satisfied the second element of copyright infringement.
`
`C.
`
`Default Judgment
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`Although a default judgment is a “drastic remedy, not favored by the Federal Rules[,] and
`
`resorted to by courts only in extreme situations,” Zhao failed to respond to Malibu Media’s
`
`complaint. Sun Bank of Ocala, 874 F.2d at 276. The court finds that Malibu Media made a
`
`sufficient showing with respect to the two elements of copyright infringement for five of the
`
`6
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`

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`Case 4:18-cv-03020 Document 21 Filed on 07/16/19 in TXSD Page 7 of 11
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`Copyrighted Works. The court therefore GRANTS Malibu Media’s motion and ENTERS default
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`judgment against Zhao for five of the Copyrighted Works.
`
`IV. DAMAGES
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`In its complaint, Malibu Media requests that the court issue an injunction against Zhao, and
`
`requests relief in the form of statutory damages and costs.. Dkt. 20-1 at 14–20. The court will
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`address each of these requests for relief in turn.
`
`A.
`
`Injunctive Relief
`
`Malibu Media requests the court to enter an injunction against Zhao as proposed in its
`
`complaint. Id. Specifically, Malibu Media seeks an order enjoining Zhao and all other persons who
`
`are in active concert or participation with Zhao from continuing to infringe on Malibu Media’s
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`copyrighted works. Id. Further, Malibu Media seeks a court order that Zhao delete and permanently
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`remove all infringing copies of Malibu Media’s works on Zhao’s computer. Id.
`
`Under section 502(a), a court may grant a permanent injunction on terms it finds reasonable
`
`to prevent or restrain copyright infringement. 17 U.S.C. § 502(a). For a permanent injunction, a
`
`party must demonstrate: (1) actual success on the merits; (2) no adequate remedy at law; (3) that the
`
`threatened injury outweighs any damage to the defendant; and (4) that the injunction will not
`
`disserve the public interest. See DSC Comms. Corp. v. DGI Tech., Inc., 81 F.3d 597, 600 (5th Cir.
`
`1996).
`
`In the present case, Malibu Media has succeeded on the merits against Zhao. Malibu Media
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`also has no adequate remedy at law because its injury cannot be fully compensated or measured in
`
`a dollar amount because the extent of distribution cannot be measured. Atl. Recording Corp., 2008
`
`WL 2316551, at *10. Without enjoining Zhao from further infringing on Malibu Media’s
`
`7
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`

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`Case 4:18-cv-03020 Document 21 Filed on 07/16/19 in TXSD Page 8 of 11
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`copyrighted content, Malibu Media would remain vulnerable to continued infringement. The
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`injunction does not burden Zhao, as he is merely required to comply with the law, and the public
`
`interest is served by upholding Malibu Media’s copyright protections.
`
`The court finds that Malibu Media has shown it is entitled to injunctive relief based on
`
`Zhao’s alleged violation of federal copyright law. Generally, an injunction must be narrowly tailored
`
`to remedy only the specific harms shown by Malibu Media, rather than to enjoin all possible
`
`breaches of the law. Fed. R. Civ. P. 65(d); see Daniels Health Scis., L.L.C. v. Vascular Health Scis.,
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`L.L.C., 710 F.3d 579, 587 (5th Cir. 2013). The court has reviewed the injunction Malibu Media
`
`proposes and finds that it is not over-broad and merely enjoins Zhao and those in active concert with
`
`Zhao from engaging in further offending conduct. The court GRANTS Malibu Media’s request for
`
`an injunction.
`
`B.
`
`Statutory Damages
`
`Malibu Media is seeking statutory damages as outlined in 17 U.S.C. § 504. A copyright
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`owner may elect to recover statutory damages for all infringements “with respect to any one
`
`work . . . in a sum of not less than $750 or more than $30,000 as the court considers just.” 17 U.S.C.
`
`§ 504(c)(1). A finding of willful infringement may “increase the award of statutory damages to a
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`sum of not more than $150,000.” 17 U.S.C. § 504(c)(2).
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`Malibu Media requests an award of $7,500 in statutory damages ($1,500 per work). Dkt. 20-
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`1 at14, 19. Malibu Media argues that the requested amount is reasonable because Zhao aided other
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`BitTorrent users by distributing the copyrighted material. Id. at 14. Malibu Media further alleges
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`that the actual damages due to lost subscriptions relate to the thousands of infringers that have access
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`to the copyrighted material. Id. However, Malibu Media has provided nothing to justify awarding
`
`8
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`

`

`Case 4:18-cv-03020 Document 21 Filed on 07/16/19 in TXSD Page 9 of 11
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`an amount that is both twice the minimum and twice what it has received and requested in previous
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`cases—which have shared near-identical pleadings, facts, and memoranda—in this court and others
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`in the Southern District. See Malibu Media, LLC v. Escobar, No. H-18-1042, 2019 WL 1003391,
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`at *4 (S.D. Tex. Feb. 28, 2019) (Miller, J.) (awarding $750 per Copyrighted Work, totaling $14,250
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`for nineteen Copyrighted Works); Malibu Media, LLC v. Gonzales, No. H-16-2406, 2017 WL
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`2985641, at *5 (S.D. Tex. July 13, 2017) (Miller, J.) (awarding $750 per Copyrighted Work); see
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`also Malibu Media, LLC v. Tran, No 4:16-cv-2412, slip op. at 2–3 (S.D. Tex. Feb. 2, 2017)
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`(Gilmore, J.) (same). As such, the court finds that $750 per Copyrighted Work is reasonable and
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`consistent with this court’s precedent. Therefore, the court GRANTS IN PART and DENIES IN
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`PART Malibu Media’s request for statutory damages. Malibu Media’s request for $1,500 per
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`Copyrighted Work is DENIED. Malibu Media is awarded $750 per Copyrighted Work, which
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`equates to $3,750.
`
`C.
`
`Costs
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`In any civil action under this title, the court in its discretion may allow the recovery of full
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`costs and award reasonable attorneys’ fees to the prevailing party. 17 U.S.C. § 505 (2012). To
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`collect costs, parties must maintain their own record of taxable costs, and an application for costs
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`shall be made by filing a bill of costs within 14 days of the entry of a final judgment. S.D. Tex.
`
`L.R. 54.2.
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`Here Malibu Media only seeks to recover its costs of court. Dkt. 20-1 at 19; see Dkt. 20-3
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`(Beik Dec.). The court GRANTS Malibu Media’s request for costs of court, which it shall pursue
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`in accordance with S.D. Tex. L.R. 54.2.
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`9
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`

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`Case 4:18-cv-03020 Document 21 Filed on 07/16/19 in TXSD Page 10 of 11
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`D.
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`Interest on the Judgment
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`Interest is allowed on any money judgment in a civil case recovered in a district court.
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`28 U.S.C. § 1961 (2000). Malibu Media is entitled to post-judgment interest. Granville v. Suckafree
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`Records, Inc., No. H-03-3002, 2006 WL 2520909, at *5 (S.D. Tex. June 28, 2006) (Werlein, J.).
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`Malibu Media is entitled to recover damages against Zhao as detailed above, plus post-judgment
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`interest at the rate of 1.97% per annum in accordance with 28 U.S.C. § 1961(a).
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`V. CONCLUSION
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`For the foregoing reasons, the court GRANTS Malibu Media’s motion for default judgment.
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`The court GRANTS IN PART AND DENIES IN PART the request for damages.
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`It is ORDERED that judgment by default be entered in favor of Malibu Media against Zhao
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`as follows;
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`1. Statutory damages in the amount of $3,750;
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`2. Post-judgment interest at the rate of 1.97% per annum from entry of judgment until the
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`judgment is paid in full; and
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`3. All costs of court as provided by law.
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`The court also ENJOINS Zhao as follows:
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`1. Zhao is enjoined from directly, contributorily, or indirectly infringing Malibu Media’s
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`rights under federal or state law in the Copyrighted Works, including, without limitation, by using
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`the internet, BitTorrent, or any other online media distribution system to reproduce (e.g., download)
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`or distribute the Copyrighted Works, or to make the Copyrighted Works available for distribution
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`to the public, except pursuant to a lawful license or with the express authority of Malibu Media; and
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`10
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`

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`Case 4:18-cv-03020 Document 21 Filed on 07/16/19 in TXSD Page 11 of 11
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`2. Zhao is ordered to destroy all copies of Malibu Media’s Copyrighted Works that Zhao has
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`downloaded onto any computer, hard drive, or server without Malibu Media’s authorization, and
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`shall destroy all copies of the Copyrighted Works transferred onto any physical medium or device
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`in Zhao’s possession, custody, or control.
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`Signed at Houston, Texas on July 16, 2019.
`
`___________________________________
` Gray H. Miller
` Senior United States District Judge
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`
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`11
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`

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