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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGfNIA
`Alexandria Division
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`IL
`FEB 1 ~ 20l9
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`CLERK, U.S. DISTRICT COURT
`ALEXANDRIA VIRGINIA
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`MALIBU MEDIA, LLC,
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`Plaintiff,
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`V.
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`JAMES HOW ARD,
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`Defendant.
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`Civil Action No. I: 18cv0832 (CM I-I/JF A)
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`PROPOSED FINDINGS OF FACT AND RECOMMENDATIONS
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`This matter is before the court on plaintiff Malibu Media, LLC's ("plaintiff' or "Malibu
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`Media") amended motion for default judgment (Docket no. 23) against defendant James Howard
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`("defendant" or "Howard"). Pursuant to 28 U.S.C. § 636(b)( l )(C), the undersigned magistrate
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`judge is filing with the court his proposed findings of fact and recommendations, a copy of
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`which will be provided to all interested parties.
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`Procedural Background
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`On July 5, 20 I 8, plaintiff filed a complaint against a John Doe defendant associated with
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`a certain known Internet Protocol ("lP") address. (Docket no. I). On July 9, 2018, this court
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`granted plaintiff's request (Docket no. 5) to serve a third-party subpoena prior to a Federal Rule
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`of C ivil Procedure 26(f) conference on John Doe's internet service provider ("ISP"). (Docket
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`no. 8). In response to the third-party subpoena, the ISP disclosed that James Howard was the
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`person associated with the IP address identified in the complaint. On September 20, 2018,
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`plaintiff filed an amended complaint substituting James Howard as defendant in this matter.
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`(Docket no. I 0) (" Am. Compl."). In its amended complaint, plaintiff alleges that Howard
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`willfully downloaded, copied, and distributed without authorization all or portions of eight
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`Case 1:18-cv-00832-CMH-JFA Document 25 Filed 02/22/19 Page 2 of 13 PageID# 181
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`copyrighted films owned by plaintiff using BitTorrent, a peer-to-peer file sharing protocol, in
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`violation of 17 U.S.C. §§ 106(1), 106(3)-(5), and 501. (Am. Compl. 112, 10-25). The amended
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`complaint seeks statutory damages, injunctive relief, attorney's fees, and costs. (Am. Compl. at
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`6).
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`On September 20, 2018, a summons was issued for service on defendant. (Docket no.
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`11). On October 3, 2018, plaintiff filed a motion for an extension of time to serve the summons
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`and the complaint (Docket no. 12), which this court granted on October 4, 2018 (Docket no. 14 ).
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`On October 19, 2018, a return of service was filed by plaintiff confirming that Howard was
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`personally served with the summons and the amended complaint on October 5, 2018. (Docket
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`no. 15). In accordance with Federal Rule of Civil Procedure 12(a), defendant's responsive
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`pleading was due October 26, 2018, twenty-one days after defendant was served with a copy of
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`the summons and the amended complaint. Defendant has not filed a responsive pleading and the
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`time for doing so has expired.
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`On January 14, 2019, plaintiff filed its request for entry of default as to defendant
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`pursuant to Federal Rule of Civil Procedure 55(a). (Docket no. 16). On January 15, 2019, the
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`Clerk of Court entered default as to defendant pursuant to Federal Rule of Civil Procedure 55(a).
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`(Docket no. 17). On January 22, 2019, the court ordered plaintiff to promptly file a motion for
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`default judgment, an accompanying memorandum in support, and a notice setting the hearing.
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`(Docket no. 18). On January 26, 2019, plaintiff filed a motion for default judgment (Docket no.
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`19), a memorandum in support (Docket no. 20), a declaration of John C. Decker, II (Docket no.
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`20-2), exhibits (Docket nos. 20-1, 20-3, 20-4, 20-5), and a notice setting the hearing for February
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`22, 2019 (Docket no. 21 ). On February 1, 2019, the court entered an order requiring plaintiff to
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`file a notice indicating whether it had served the appropriate Roseboro warning on defendant as
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`2
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`Case 1:18-cv-00832-CMH-JFA Document 25 Filed 02/22/19 Page 3 of 13 PageID# 182
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`required by Local Civil Rule 7(K). (Docket no. 22). That same day, plaintiff filed an amended
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`motion for default judgment with the appropriate notice. (Docket no. 23). On February 22,
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`2019, plaintiffs counsel appeared before the undersigned pursuant to the notice of hearing and
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`no one appeared on behalf of the defendant.
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`Factual Background
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`The following facts are established by the amended complaint. Plaintiff Malibu Media,
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`LLC (d/b/a "X-Art.com") is a limited liability company organized under the laws of California,
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`with its principal place of business in Westlake Village, California. (Am. Compl.118).
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`Defendant James Howard is an individual residing in Ashburn, Virginia. (Am. Compl. 11 9).
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`Plaintiff is the owner of the eight copyrighted films at issue in this action, which are detailed in
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`Exhibit B of plaintiff's amended complaint (Docket no. 10-3) and attached to this proposed
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`findings of fact and recommendations as Exhibit A. (Am. Compl. 111 3, 22, 29).
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`The BitTorrent file distribution network ("BitTorrent") is a peer-to-peer file sharing
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`system that allows users to interact with one another to distribute large amounts of data,
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`including digital movie files. (Am. Compl. 11 10). BitTorrent allows individual users to
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`distribute large files, broken into small pieces called "bits," with other users without the use of an
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`intermediary host website. (Am. Compl. 111 11-12). After a user receives all of the bits of a
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`digital media file from other users, the user's BitTorrent client software reassembles the bits in
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`order to open and utilize the file. (Am. Compl. 1 13).
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`Between October 13, 2017 and June 10, 2018, plaintiff's investigator, IPP International
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`UG ("plaintiff's investigator"), established direct TCP/IP connections with defendant's IP
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`address and downloaded one or more bits of each of the eight copyrighted films at issue in this
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`action through BitTorrent. (Am. Compl. 111 17-24; Docket no. 10-2). Plaintiffs investigator
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`3
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`Case 1:18-cv-00832-CMH-JFA Document 25 Filed 02/22/19 Page 4 of 13 PageID# 183
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`further downloaded a full copy of each copyrighted film at issue from BitTorrent. (Am. Compl.
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`120). Through this process, plaintiff's investigator established that defendant downloaded,
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`copied, and distributed a complete copy of each copyrighted film at issue on BitTorrent without
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`authorization from plaintiff. (Am. Compl. 11 17-24). Plaintiff's evidence of multiple downloads
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`from defendant to plaintiff's investigator indicates that defendant is a persistent BitTorrent user.
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`(Am. Compl. 1 25).
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`Proposed Findings and Recommendations
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`Rule 55 of the Federal Rules of Civil Procedure provides for the entry of a default
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`judgment when "a party against whom a judgment for affinnative relief is sought has failed to
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`plead or otherwise defend." Fed. R. Civ. P. 55(a). Based on defendant's failure to file a
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`responsive pleading, the Clerk of Court has entered a default as to James Howard. (Docket no.
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`17). A defendant in default admits the factual allegations in the complaint. See Fed. R. Civ. P.
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`S(b )( 6) (" An allegation-other than one relating to the amount of damages-is admitted if a
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`responsive pleading is required and the allegation is not denied."); see also Globa/SantaFe Corp.
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`v. G/obalsantafe.com, 250 F. Supp. 2d 610,612 n.3 (E.D. Va. 2003) ("Upon default, facts
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`alleged in the complaint are deemed admitted and the appropriate inquiry is whether the facts as
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`alleged state a claim."). Rule 55(b)(2) of the Federal Rules of Civil Procedure provides that a
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`court may conduct a hearing to detennine the amount of damages, establish the truth of any
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`allegation by evidence, or investigate any other matter when necessary to enter or effectuate
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`judgment.
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`Jurisdiction and Venue
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`A court must have both subject matter and personal jurisdiction over a defaulting party
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`before it can render a default judgment. Plaintiff brings this cause of action under the Copyright
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`4
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`Case 1:18-cv-00832-CMH-JFA Document 25 Filed 02/22/19 Page 5 of 13 PageID# 184
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`Act of 1976, 17 U.S.C. § 101 et seq. This court has subject matter jurisdiction over the claim
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`under 28 U.S.C. §§ 1331 and 1338. This court also has personal jurisdiction over defendant
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`because defendant committed tortious acts in Virginia, resides in Virginia, and engaged in
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`substantial and non-isolated activity in Virginia. (Am. Compl. ,i,i 5, 9). Pursuant to 28 U.S.C. §
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`1391(b), venue is proper in this District because a substantial part of the events or omissions
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`giving rise to the claim occurred in this District and defendant resides in this District. (Am.
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`Com pl. ,i,i 7, 9).
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`Given that defendant is in default, and therefore admits the factual allegations in the
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`amended complaint, the undersigned magistrate judge recommends a finding that this court has
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`subject matter jurisdiction over this action, that this court has personal jurisdiction over
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`defendant, and that venue is proper in this court.
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`Service
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`Federal Rule of Civil Procedure 4(e)(2) provides that an individual may be served in a
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`judicial district of the United States by "delivering a copy of the summons and of the complaint
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`to the individual personally." Plaintiff's process server personally delivered a copy of the
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`summons and amended complaint to defendant on October 5, 2018. (Docket no. 15). Pursuant
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`to this court's order, plaintiff was required to serve defendant by October 29, 2018. (Docket no.
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`14). Based on the foregoing, the undersigned recommends a finding that service of process has
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`been accomplished in this action.
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`Grounds for Entry of Default
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`In accordance with Federal Rule of Civil Procedure 12(a), defendant was required to file
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`a responsive pleading by October 26, 2018, twenty-one days after defendant was served with a
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`copy of the summons and the amended complaint. No responsive pleading has been filed by
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`5
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`Case 1:18-cv-00832-CMH-JFA Document 25 Filed 02/22/19 Page 6 of 13 PageID# 185
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`defendant and the time for doing so has expired. On January 14, 2019, plaintiff filed a request
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`for entry of default against defendant by the Clerk of the Court pursuant to Federal Rule of Civil
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`Procedure 55(a). (Docket no. 16). The certificate of service accompanying the filing indicates
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`that plaintiff's counsel sent a copy to defendant at his mailing address. (Id at 2). The Clerk of
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`Court entered a default against defendant on January 15, 2019. (Docket no. 17).
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`On January 26, 2019, plaintiff filed a motion for default judgment (Docket no. 19), a
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`memorandum in support (Docket no. 20), a declaration of John C. Decker, II (Docket no. 20-2),
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`exhibits (Docket nos. 20-1, 20-3, 20-4, 20-5), and a notice setting the hearing for February 22,
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`2019 (Docket no. 21 ). The certificates of service accompanying the motion and memorandum in
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`support indicate that plaintiffs counsel sent a copy of the motion, memorandum, exhibits, and
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`declaration to defendant at his mailing address, but neither filings contain the Roseboro notice
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`required by Local Civil Rule 7(K). (Docket nos. 19, 20). On February 1, 2019, this court
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`entered an order requiring plaintiff to file a notice with the court indicating whether it had
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`provided defendant with the appropriate Roseboro notice. (Docket no. 22). Plaintiff responded
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`that same day by filing an amended motion for default judgment with the required Roseboro
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`notice. (Docket no. 23). For these reasons, the undersigned magistrate judge recommends a
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`finding that the Clerk of Court has properly entered a default as to defendant and that defendant
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`has notice of these proceedings.
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`Liability
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`According to Federal Rule of Civil Procedure 54(c), a default judgment .. must not differ
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`in kind from, or exceed in amount, what is demanded in the pleadings." Because defendant
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`failed to file a responsive pleading and is in default, he admits the factual allegations in the
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`amended complaint. See Fed. R. Civ. P. 8(b)(6).
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`6
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`Case 1:18-cv-00832-CMH-JFA Document 25 Filed 02/22/19 Page 7 of 13 PageID# 186
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`As alleged in the amended complaint, defendant willfully infringed upon plaintiffs
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`copyrighted works in violation of 17 U.S.C. §§ 106(1), 106(3)-(5), and 501. (Am. Compl. ,i,i
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`32-33). To establish a case of direct copyright infringement, plaintiff must establish two
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`elements: (1) ownership of the copyright; and (2) that the alleged infringer violated at least one
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`exclusive right granted to the copyright holder. 17 U.S.C. §§ 106, 501(a); see also Feist Publ'ns,
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`Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,361 (1991).
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`First, the facts set forth in the amended complaint establish that plaintiff owns the
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`copyrights to the eight films at issue in this matter, as enumerated in Exhibit B to the amended
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`complaint (Docket no. 10-3) and Exhibit A to this proposed findings of fact and
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`recommendations. (Am. Compl. ,i,i 3, 22, 29). Second, between October 13, 2017 and June 10,
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`2018, plaintiff's investigator established direct TCP/IP connections with defendant's IP address
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`and downloaded one or more bits of each of the eight copyrighted films at issue, many of which
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`were bundled in siterips, through BitTorrent. (Am. Compl. ,i~ 17-21 ). Plaintiffs investigator
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`recorded the unique "file hash," the electronic identification of the digital film or siterips, of the
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`files that it downloaded from defendant's IP address and the date and time it did so, as detailed in
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`Exhibit A to the amended complaint. (Am. Compl. ,i,i 18-21, 24; Docket no. 10-2). Thus,
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`plaintiff has shown that defendant copied and distributed elements of the eight copyrights at
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`issue through BitTorrent without plaintiffs authorization, permission, or consent. (Am. Compl.
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`,i,i 30-32). Plaintiff has furthermore established that defendant's violation was willful, given the
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`nature of the BitTorrent network. (Am. Compl. ,i,i 25, 33). Based on the foregoing, the
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`undersigned recommends a finding that plaintiff has established defendant's liability for
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`copyright infringement of the eight copyrights at issue in this action.
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`7
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`Case 1:18-cv-00832-CMH-JFA Document 25 Filed 02/22/19 Page 8 of 13 PageID# 187
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`Relief Sought
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`Plaintiffs motion for default judgment and incorporated memorandum in support seeks:
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`(i) $12,000.00 in statutory damages; (ii) a permanent injunction enjoining defendant from
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`directly, contributorily, or indirectly continuing to infringe plaintiffs copyrighted works; (iii) an
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`order that defendant delete and permanently remove the copyrighted films at issue in this action
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`and any other copyrighted works of plaintiff from each of the computers and devices under
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`defendant's possession, control, or custody; and (iv) $540.00 in costs. (Docket no. 20 at 16-17).
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`Statutory Damages
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`Pursuant to 17 U .S.C. § 504( c )( 1 }, a copyright owner may recover "an award of statutory
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`damages for all infringements involved in the action, and with respect to any one work, ... in a
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`sum of not less than $750 or more than $30,000 as the court considers just" for unintentional
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`infringement. For infringement committed willfully, the court "may increase the award of
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`statutory damages to a sum of not more than $150,000." 17 U.S.C. § 504(c)(2).
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`Plaintiff alleges that defendant willfully infringed on its works and that a statutory
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`damages award ofup to $150,000.00 would be appropriate. (Docket no. 20 at 10). However,
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`plaintiff seeks $1,500.00 in statutory damages per infringement in this action, two times the
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`minimum statutory damages award under 17 U.S.C. § 504(c)(l), which amounts to a total of
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`$12,000.00 for the eight copyrighted films at issue. 1 (Id.). In similar cases, this court has held
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`awards exceeding $1,500.00 per infringement but still well below the statutory maximum were
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`appropriate. See, e.g., Malibu Media, LLC v. Richard Buka, No. I: 15-cv-0384 (LMB/JF A}, ECF
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`25 (E.D. Va. Dec. 23, 2015) (awarding $2,250.00 per infringement); Malibu Media, LLC v.
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`1 The minimum award of statutory damages may be reduced to $200 in the event an "infringer was not
`aware and had no reason to believe that his or her acts constituted an infringement of copyright." 17 U.S.C. §
`504(c)(2). However, the alleged infringer bears the burden of proof under section 504(c)(2). Because defendant has
`neither appeared in this action nor filed a responsive pleading, the undersigned does not consider such a reduction.
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`8
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`Case 1:18-cv-00832-CMH-JFA Document 25 Filed 02/22/19 Page 9 of 13 PageID# 188
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`Megha Bakshi, No. 1:14-cv-0931 (TSEffCB), ECF 26 (E.D. Va. June 29, 2015) (awarding
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`$2,250.00 per infringement). Plaintiff alleges its actual damages far exceed this sum because
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`defendant materially aided thousands of BitTorrent participants with infringing on its works,
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`resulting in thousands oflost sales. (Docket no. 20 at 11). Given defendant's willful
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`infringement and considering that plaintiff's actual damages likely exceed the amount of
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`statutory damages requested by plaintiff, the undersigned recommends a finding that statutory
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`damages in the amount of$12,000.00 is reasonable.
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`Permanent Injunction
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`The Copyright Act provides the court with the power to grant injunctions in order to
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`prevent or restrain infringement of a copyright. 17 U.S.C. § 502(a). In order for the court to
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`provide injunctive relief, '"a plaintiff must show (1) irreparable injury, (2) remedies at law are
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`inadequate to compensate for that injury, (3) the balance of hardships between plaintiff and
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`defendant warrants a remedy, and (4) an injunction would not disserve the public interest." Raub
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`v. Campbell, 785 F.3d 876,885 (4th Cir. 2015) (internal quotation marks omitted) (quoting
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`Monsanto Co. v. Geerston Seed Farms, 561 U.S. 139, 156-57 (2010)).
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`Regarding the first prong, "[i]rreparable injury often derives from the nature of copyright
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`violations, which deprive the copyright holder of intangible exclusive rights." Christopher
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`Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 544 (4th Cir. 2007). As alleged in the
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`amended complaint, defendant's conduct has made plaintiff's copyrighted works available on
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`BitTorrent for an extended period of time, and as a result, has exposed the works to widespread
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`infringement. (Am. Compl. ,i,i 11, 17-25). Because defendant's conduct has made it unlikely
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`that plaintiff will ever gain exclusive control over the copyrighted works at issue, plaintiff has
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`9
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`Case 1:18-cv-00832-CMH-JFA Document 25 Filed 02/22/19 Page 10 of 13 PageID# 189
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`suffered irreparable harm. See EM/ Apr. Music, Inc. v. White, 618 F. Supp. 2d 497,510 (E.D.
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`Va. 2009).
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`Regarding the second prong, "the requisite analysis ... inevitably overlaps with that of
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`the first." MercExchange, LLC v. eBay, Inc., 500 F. Supp. 2d 556,582 (E.D. Va. 2007). Here,
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`absent an injunction, defendant's continued distribution of plaintiffs copyrighted works on
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`BitTorrent makes any calculation of future damages entirely speculative. See generally
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`Galloway, 492 F.3d at 544 ("[W]hile the calculation of future damages and profits for each
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`future [infringement] might be possible, any such effort would entail a substantial amount of
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`speculation and guesswork that renders the effort difficult or impossible .... "). Accordingly,
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`plaintiff has demonstrated that any remedy at law is inadequate.
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`The court must next consider whether the remedy of an injunction is warranted given the
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`balance of hardship between plaintiff and defendant. Here, defendant would only suffer the
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`hardship of conforming his actions to comply with the Copyright Act if an injunction is entered.
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`On the other hand, plaintiff faces great difficulty in enforcing its copyrights absent an injunction.
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`Consequently, the balance of hardship weighs in favor of issuing a permanent injunction.
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`Finally, the court must consider whether the public interest favors a permanent
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`injunction. Here, an injunction would prevent copyright infringement, which in turn furthers the
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`public's interest in preserving the integrity of copyright laws. See Apple Comput., Inc. v.
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`Franklin Comput. Corp., 714 F.2d 1240, 1255 (3d Cir. 1983) ("Since Congress has elected to
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`grant certain exclusive rights to the owner of a copyright in a protected work, it is virtually
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`axiomatic that the public interest can only be served by upholding copyright protections .... ")
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`(internal quotation marks and citation omitted).
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`10
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`Case 1:18-cv-00832-CMH-JFA Document 25 Filed 02/22/19 Page 11 of 13 PageID# 190
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`For these reasons, the undersigned recommends that defendant be enjoined from
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`continuing to infringe plaintiffs copyrighted works.
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`Destruction Order Pursuant to 17 U.S.C. § 503(b)
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`Pursuant to 17 U.S.C. § 503(b), a court may order, as part of a final judgment or decree,
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`"the destruction or other reasonable disposition of all copies . . . found to have been made or
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`used in violation of the copyright owner's exclusive rights." Specifically, plaintiff requests that
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`the court require defendant to delete and permanently remove the digital media files and copies
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`relating to plaintiffs copyrighted works from each computer and device under defendant's
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`possession, custody, or control. (Am. Compl. at 6; Docket no. 20 at 12). Consistent with this
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`statutory provision and to ensure against any future infringement of plaintiff's copyrights, the
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`undersigned recommends that defendant be ordered to delete and permanently remove any of
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`plaintiff's copyrighted works from any computer or device in his possession, custody, or control.
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`Attorney's Fees and Costs
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`Pursuant to section 505 of the Copyright Act, the court may authorize the recovery of full
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`costs and an award of reasonable attorney's fees to the prevailing party in a copyright action. 17
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`U.S.C. § 505. Plaintiff requests costs in the amount of $540.00 (consisting of the statutory filing
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`fee of $400.00, process service fees of $60.00, and ISP fees of $80.00). (Docket no. 20-2 ,i 8).
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`Plaintiff does not request attorney's fees. (Docket no. 20 at 16-17). After reviewing the
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`applicable submissions by counsel, the undersigned recommends a finding that plaintiff is the
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`prevailing party, the costs incurred by plaintiff were associated with this action, and plaintiff's
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`request for $540.00 in costs is reasonable. Accordingly, the undersigned recommends that
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`plaintiff be awarded $540.00 in costs.
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`11
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`Case 1:18-cv-00832-CMH-JFA Document 25 Filed 02/22/19 Page 12 of 13 PageID# 191
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`Conclusion
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`For these reasons, the undersigned magistrate judge recommends that a default judgment
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`be entered in favor of Malibu Media, LLC and that an order be entered that enjoins James
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`Howard from continuing to infringe plaintiffs copyrighted works. It is also recommended that
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`an order be entered that requires James Howard to delete and permanently destroy any digital
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`files or copies of plaintiff's copyrighted works from any computers or devices that are under his
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`possession, custody, or control. The undersigned further recommends that judgment be entered
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`against James Howard in the amount of $ 12,540.00 (consisting of $12,000.00 in statutory
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`damages arising from the copyright infringement claim and $540.00 in costs).
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`Notice
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`By means of the court's electronic filing system and by mailing a copy of this proposed
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`findings of fact and recommendations to James Howard at 21799 Omeara Terrace, Apartment
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`203, Ashburn, Virginia 20 147, the parties are notified that objections to this proposed findings of
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`fact and recommendations must be filed within fourteen (14) days of service of this proposed
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`findings of fact and recommendations and a failure to file timely objections waives appellate
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`review of the substance of the proposed findings of fact and recommendations and waives
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`appellate review of any judgment or decision based on this proposed findings of fact and
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`recommendations.
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`ENTERED this 22nd day of February, 2019.
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`,--,-----,--/s/ __ ::S-=-~- 9 __
`-
`John F. Anderson
`I loited States Magistrate .l11dge
`John F. Anderson
`United States Magistrate Judge
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`Alexandria, Virginia
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`12
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`Case 1:18-cv-00832-CMH-JFA Document 25 Filed 02/22/19 Page 13 of 13 PageID# 192
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`Exhibit A: Copyrights-at-Issue for Civil Action No. 1:18cv0832 (CMH/JFA)
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`Title
`
`1
`2
`3
`4
`s
`6
`7
`8
`
`Mv Sweet Surrender
`Deeper and Deeper
`Purely Perfect Pink
`Definitely Not So Shy
`Purely Passionate
`The Tightest Blonde
`Russian Girls Are Perfection
`Deep Inside Gina
`
`Copyright Registration
`Number
`PA0002120152
`PA0002104189
`PA0002120139
`P A0002081983
`PA0002103843
`PA0002093333
`PA0002094753
`P A0002042043
`
`Date of First
`Publication
`05/31/2018
`02/03/2018
`05/26/2018
`07/15/2017
`01/13/2018
`10/28/2017
`11/04/2017
`03/03/2017
`
`Registration
`
`06/05/2018
`02/13/2018
`06/05/2018
`08/30/2017
`02/01/2018
`11/07/2017
`11/28/2017
`03/13/2017
`
`1
`
`