Case 2:23-cv-01401-TSZ Document 21 Filed 11/22/24 Page 1 of 10
`
`
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`Plaintiff,
`
`C23-1401 TSZ
`
`ORDER GRANTING
`DEFAULT JUDGMENT AND
`PERMANENT INJUNCTION
`AGAINST DEFENDANT
`
`XINLIANG SHI,
`
`
`
` v.
`
`JUN BIN ZHU, doing business as
`ruianshidonglaiguojimaoyiyouxiangongsi,
`
`
`
`
`
`
`
`Defendant.
`
`
`THIS MATTER comes before the Court on Plaintiff Xinliang Shi’s Motion for
`
`Entry of Default Judgment, docket no. 19. Having reviewed all papers filed in support of
`
`the motion, the Court enters the following order.
`
`Background
`
`Plaintiff Xinliang Shi registered with the United States Copyright Office a visual
`
`image with the registration number VA 2-293-200 pursuant to 37 C.F.R. § 202.3. Compl.
`
`at ¶ 3.2 (docket no. 1). The image is of the following copyrighted work:
`
`ORDER GRANTING DEFAULT JUDGMENT AND PERMANENT
`INJUNCTION AGAINST DEFENDANT - 1
`
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`
`
`
`
`

`

`Case 2:23-cv-01401-TSZ Document 21 Filed 11/22/24 Page 2 of 10
`
`
`
`See Ex. A to Compl. (docket no. 1-1 at 3). Plaintiff discovered that Jun Bin Zhu, doing
`
`business as ruianshidonglaiguojimaoyiyouxiangongsi (“Defendant”) offered a product for
`
`sale on Amazon.com depicting an identical visual image without permission or a license.
`
`Compl. at ¶ 3.3 (docket no. 1). The Amazon pages at issue are reproduced below:
`
`1. https://www.amazon.com/Sporacingrts-Motorcycle-Cleaner-Davidson-
`
`Sportster/dp/B0C581Y29W/ref=sr_1_11?m=A1J0GMKVNLNNSC&marketpl
`
`aceID=ATVPDKIKX0DER&qid=1689839547&s=merchant-items&sr=1-
`
`11&th=1
`
`2. https://www.amazon.com/sp?ie=UTF8&seller=A1J0GMKVNLNNSC&asin=
`
`B0C581Y29W&ref_=dp_merchant_link&isAmazonFulfilled=1
`
`
`
`ORDER GRANTING DEFAULT JUDGMENT AND PERMANENT
`INJUNCTION AGAINST DEFENDANT - 2
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`
`
`
`
`

`

`Case 2:23-cv-01401-TSZ Document 21 Filed 11/22/24 Page 3 of 10
`
`
`
`
`
`Id.; see Ex. 5 to Compl. (docket no. 1-5 at 1–2). Plaintiff sent Amazon a takedown notice
`
`under the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(3), claiming
`
`infringement and requesting that Amazon remove Defendant’s advertisements from its
`
`platform, while citing the above URLs. Compl. at ¶ 3.4 (docket no. 1). Defendant
`
`refused to acknowledge the infringement or voluntarily remove those advertisements. Id.
`
`at ¶ 3.5.
`
`Instead, Defendant sent a counter-notice denying infringement of Plaintiff’s
`
`copyright. Id. at ¶ 3.6. Through that document, which was signed under penalty of
`
`perjury under United States law, Defendant provided the following types of contact
`
`information: a phone number, an email address, and a mailing address. See Ex. B to
`
`ORDER GRANTING DEFAULT JUDGMENT AND PERMANENT
`INJUNCTION AGAINST DEFENDANT - 3
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`
`
`
`
`

`

`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`Case 2:23-cv-01401-TSZ Document 21 Filed 11/22/24 Page 4 of 10
`
`
`
`Compl. (docket no. 1-2). Defendant also consented to the jurisdiction of any judicial
`
`district in which Amazon may be found. Id.
`
`Plaintiff then filed this lawsuit against Defendant, alleging copyright infringement.
`
`Compl. at ¶ 4.1 (docket no. 1). According to the mailing address Defendant provided to
`
`Amazon, Defendant resides in China, and Plaintiff attempted to serve Zhu through a
`
`Hague Convention service request to the International Legal Cooperation Center of the
`
`Ministry of Justice of China. That effort failed because, as the Chinese government
`
`certificate of non-service stated, “The address provided does not exist and the recipient
`
`cannot be reached.” Ex. A to 3d Mot. for Alt. Serv. (docket no. 12-1 at 1, 4). As a result,
`
`10
`
`a magistrate judge granted Plaintiff leave for alternative service via email, and Plaintiff
`
`11
`
`served Defendant via the email address provided in the counter-notice. Order at 2, 4
`
`12
`
`(docket no. 13); Aff. of Serv. (docket no. 14). Defendant never appeared, and default
`
`13
`
`was entered against Zhu in July 2024. Order (docket no. 16).
`
`14
`
`Discussion
`
`15
`
`16
`
`A.
`
`Jurisdiction
`
`Before entering default judgment, a court must confirm that it has both subject
`
`17
`
`matter and personal jurisdiction. See Tuli v. Republic of Iraq (In re Tuli), 172 F.3d 707,
`
`18
`
`712 (9th Cir. 1999) (“When entry of judgment is sought against a party who has failed to
`
`19
`
`plead or otherwise defend, a district court has an affirmative duty to look into its
`
`20
`
`jurisdiction over both the subject matter and the parties.”).
`
`21
`
`Here, the Court has federal question jurisdiction because the action arises under
`
`22
`
`the Copyright Act of 1976, as amended, 17 U.S.C. §§ 501–13. See 28 U.S.C. § 1331.
`
`ORDER GRANTING DEFAULT JUDGMENT AND PERMANENT
`INJUNCTION AGAINST DEFENDANT - 4
`
`23
`
`
`
`
`
`

`

`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`Case 2:23-cv-01401-TSZ Document 21 Filed 11/22/24 Page 5 of 10
`
`
`
`The Court has personal jurisdiction because Defendant expressly consented in the
`
`counter-notice to Amazon. See Ex. B to Compl. (docket no. 1-2).
`
`B.
`
`Copyright Infringement
`
`To establish copyright infringement, Plaintiff must prove that (i) Plaintiff owns a
`
`valid copyright, and (ii) Defendant copied the “constituent elements of the work that are
`
`original.” See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). As a
`
`result of Defendant’s default, all allegations in the complaint, except those relating to the
`
`amount of damages, are deemed admitted. See Fed. R. Civ. P. 8(b)(6). “[N]ecessary
`
`facts not contained in the pleadings, and claims which are legally insufficient, are not
`
`10
`
`established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir.
`
`11
`
`1992).
`
`12
`
`In this case, the complaint and its attachments allege all of the facts necessary to
`
`13
`
`demonstrate copyright infringement. The record shows that Plaintiff owns a valid
`
`14
`
`copyright under the registration number VA 2-293-200. Ex. A to Compl. (docket no. 1-1
`
`15
`
`at 1–3). Defendant’s product listed on Amazon uses Plaintiff’s copyrighted work in its
`
`16
`
`entirety.
`
`17
`
`18
`
`C.
`
`Damages
`
`A copyright infringer is liable for either (1) the copyright owner’s actual damages
`
`19
`
`and any additional profits of the infringer, or (2) statutory damages. 17 U.S.C. § 504(a).
`
`20
`
`The copyright owner may elect to recover statutory damages in an amount of not less
`
`21
`
`than $750 or more than $30,000. Id. at § 504(c)(1). When an infringement was
`
`22
`
`committed willfully, statutory damages may be increased to a sum of not more than
`
`ORDER GRANTING DEFAULT JUDGMENT AND PERMANENT
`INJUNCTION AGAINST DEFENDANT - 5
`
`23
`
`
`
`
`
`

`

`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`Case 2:23-cv-01401-TSZ Document 21 Filed 11/22/24 Page 6 of 10
`
`
`
`$150,000. Id. § 504(c)(2). The copyright owner bears the burden of proving
`
`infringement was committed willfully. Id. The precise amount of statutory damages,
`
`whether for non-willful or willful infringement, is a matter within the Court’s discretion.
`
`Id. at §§ 504(c)(1) & (2).
`
`The Court does not find that Defendant’s infringement was “willful” within the
`
`meaning of the Copyright Act. “A determination of willfulness requires an assessment of
`
`a defendant’s state of mind.” Erickson Prods., Inc. v. Kast, 921 F.3d 822, 833 (9th Cir.
`
`2019) (quoting Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1186 (9th Cir.
`
`2016)). “[T]o prove willfulness under the Copyright Act, the plaintiff must show (1) that
`
`10
`
`the defendant was actually aware of the infringing activity, or (2) that the defendant’s
`
`11
`
`actions were the result of reckless disregard for, or willful blindness to, the copyright
`
`12
`
`holder’s rights.” Id. (quoting Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 991
`
`13
`
`(9th Cir. 2017)). The “[c]ontinued use of a work even after one has been notified of his
`
`14
`
`or her alleged infringement does not constitute willfulness so long as one believes
`
`15
`
`reasonably, and in good faith, that he or she is not infringing.” Evergreen Safety Council
`
`16
`
`v. RSA Network Inc., 697 F.3d 1221, 1228 (9th Cir. 2012).
`
`17
`
`Plaintiff claims that Defendant’s violations were willful because Defendant
`
`18
`
`provided Amazon with incorrect or invalid contact information, citing the remedies
`
`19
`
`provision of the Copyright Act, which provides as follows:
`
`In a case of infringement, it shall be a rebuttable presumption that the
`infringement was committed willfully for purposes of determining relief if
`the violator . . . knowingly provided . . . materially false contact information
`to a domain name registrar, domain name registry, or other domain name
`
`ORDER GRANTING DEFAULT JUDGMENT AND PERMANENT
`INJUNCTION AGAINST DEFENDANT - 6
`
`20
`
`21
`
`22
`
`23
`
`
`
`
`
`

`

`Case 2:23-cv-01401-TSZ Document 21 Filed 11/22/24 Page 7 of 10
`
`
`
`registration authority in registering, maintaining, or renewing a domain name
`used in connection with the infringement.
`
`17 U.S.C. § 504(c)(3)(A). “Domain name” means “any alphanumeric designation which
`
`is registered with or assigned by any domain name registrar, domain name registry, or
`
`other domain name registration authority as part of an electronic address on the Internet.”
`
`15 U.S.C. § 1127; see 17 U.S.C. § 504(c)(3)(C). Although Defendant provided a
`
`nonexistent mailing address to Amazon, Amazon is not a “domain name registrar,
`
`domain name registry, or other domain name registration authority.” Accordingly, the
`
`rebuttable presumption of § 504(c)(3)(A) does not apply in this case. Plaintiff does not
`
`otherwise demonstrate that Defendant’s violations were willful under either of the
`
`standards set forth in Erickson Products.
`
`Plaintiff seeks the maximum in statutory damages, but the Court does not consider
`
`such relief “just.” See 17 U.S.C. § 504(c)(1). Plaintiff states that 165 total product
`
`reviews appeared in the two advertisements featuring Plaintiff’s copyrighted image and
`
`that this figure “represent perhaps a fraction of the presumed total number of purchasers.”
`
`Motion at 7 (docket no. 19). Priced at $30.99 each, see Ex. 5 to Compl. (docket no. 1-5
`
`at 2), the 165 purchased products would have grossed Defendant $5,113.35. Plaintiff
`
`does not attempt to quantify what fraction of total sales is reflected in the total number of
`
`product reviews. The Court concludes that a “just” award of statutory damages is
`
`$15,000.00, which is roughly triple the amount of gross sales linked to product reviews,
`
`and which reflects a reasonable estimate that only one out of every three purchasers
`
`posted a review. Having considered the factors set forth in Eitel v. McCool, 782 F.2d
`
`ORDER GRANTING DEFAULT JUDGMENT AND PERMANENT
`INJUNCTION AGAINST DEFENDANT - 7
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`
`
`
`
`

`

`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`Case 2:23-cv-01401-TSZ Document 21 Filed 11/22/24 Page 8 of 10
`
`
`
`1470, 1471–72 (9th Cir. 1986), the Court exercises its discretion to enter default
`
`judgment in Plaintiff’s favor in this amount.
`
`D.
`
`Injunctive Relief
`
`Plaintiff also seeks an injunction against Defendant, requesting that the Court
`
`order Defendant to remove the product listing from Amazon and prohibit the product
`
`from being published again on Amazon or any other commercial site. A court may grant
`
`a final injunction “on such terms as it may deem reasonable to prevent or restrain
`
`infringement of a copyright.” 17 U.S.C. § 502(a). A plaintiff seeking permanent
`
`injunctive relief must demonstrate: “(1) that it has suffered an irreparable injury; (2) that
`
`10
`
`remedies available at law, such as monetary damages, are inadequate to compensate for
`
`11
`
`that injury; (3) that, considering the balance of hardships between the plaintiff and
`
`12
`
`13
`
`defendant, a remedy in equity is warranted; and (4) that the public interest would not be
`
`disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388,
`
`14
`
`391 (2006); Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 995-96 (9th
`
`15
`
`Cir. 2011) (holding that the eBay factors apply to copyright infringement cases).
`
`16
`
`“Irreparable injury often derives from the nature of copyright violations, which deprive
`
`17
`
`the copyright holder of intangible exclusive rights.” Christopher Phelps & Assocs., LLC
`
`18
`
`v. Galloway, 492 F.3d 532, 544 (4th Cir. 2007).
`
`19
`
`The Court finds that all four eBay factors favor entry of a permanent injunction.
`
`20
`
`First, Defendant’s copyright infringement has caused irreparable harm by falsely
`
`21
`
`associating Plaintiff with Defendant’s product and business. This conduct has deprived
`
`22
`
`Plaintiff of the intangible exclusive right to control the reproduction, sale, and public
`
`ORDER GRANTING DEFAULT JUDGMENT AND PERMANENT
`INJUNCTION AGAINST DEFENDANT - 8
`
`23
`
`
`
`
`
`

`

`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`Case 2:23-cv-01401-TSZ Document 21 Filed 11/22/24 Page 9 of 10
`
`
`
`distribution of copies of the work. See 17 U.S.C. §§ 106(1) & (3). Second, Plaintiff has
`
`shown that monetary damages alone will not prevent Defendant from engaging in further
`
`abusive and infringing conduct. Given Defendant’s decision not to appear, the Court
`
`cannot be assured that Defendant will no longer engage in the conduct at issue in this
`
`case. See Bungie, Inc. v. Bansal, No. 21-CV-1111, 2023 WL 3309496, at *8 (W.D.
`
`Wash. May 8, 2023). Third, the equities favor Plaintiff, who seeks to enjoin Defendant
`
`from engaging in illegal conduct that benefits only Defendant. Fourth, an injunction
`
`prohibiting Defendant from engaging in further conduct that infringes on Plaintiff’s
`
`copyright will serve the public interest. The Court GRANTS Plaintiff’s request for an
`
`10
`
`injunction against Defendant as follows:
`
`1. Defendant shall within fourteen (14) days of the date of this Order remove
`
`from Amazon’s website the infringing product and commercial advertising
`
`found at the following links (URLs):
`
`a. https://www.amazon.com/Sporacingrts-Motorcycle-Cleaner-Davidson-
`
`Sportster/dp/B0C581Y29W/ref=sr_1_11?m=A1J0GMKVNLNNSC&m
`
`arketplaceID=ATVPDKIKX0DER&qid=1689839547&s=merchant-
`
`items&sr=1-11&th=1
`
`b. https://www.amazon.com/sp?ie=UTF8&seller=A1J0GMKVNLNNSC&
`
`asin=B0C581Y29W&ref_=dp_merchant_link&isAmazonFulfilled=1
`
`2. Defendant shall not publish these products on Amazon again or on any other
`
`commercial website.
`
`ORDER GRANTING DEFAULT JUDGMENT AND PERMANENT
`INJUNCTION AGAINST DEFENDANT - 9
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`
`
`
`
`

`

`Case 2:23-cv-01401-TSZ Document 21 Filed 11/22/24 Page 10 of 10
`
`
`
`Conclusion
`
`For the foregoing reasons, the Court ORDERS:
`
`(1)
`
`Plaintiff’s motion for default judgment, docket no. 19, is GRANTED, and
`
`Plaintiff is AWARDED statutory damages in the amount of $15,000.00.
`
`(2)
`
`The Clerk is DIRECTED to enter default judgment consistent with this
`
`Order, to provide certified copies of this Order and the Judgment to Plaintiff and/or
`
`Plaintiff’s counsel so that Plaintiff may notify Amazon that the Court has entered the
`
`forgoing injunction against Defendant, and to CLOSE this case.
`
`IT IS SO ORDERED.
`
`Dated this 22nd day of November, 2024.
`
`A
`
`Thomas S. Zilly
`United States District Judge
`
`ORDER GRANTING DEFAULT JUDGMENT AND PERMANENT
`INJUNCTION AGAINST DEFENDANT - 10
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`
`
`
`
`