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Civil Action No. 13–cv–01172–WYD–MEH
Paul Alan Lesko, Simmons Browder Gianaris Angelides & Barnerd, LLC, Alton, IL, for Plaintiff.
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Civil Action No. 13–cv–01172–WYD–MEH
Paul Alan Lesko, Simmons Browder Gianaris Angelides & Barnerd, LLC, Alton, IL, for Plaintiff.
Wiley Y. Daniel, Senior United States District Judge
Paul Alan Lesko, Simmons Browder Gianaris Angelides & Barnerd, LLC, Alton, IL, for Plaintiff.
Wiley Y. Daniel, Senior United States District Judge
THIS MATTER is before the Court in connection with Plaintiff's Amended Motion and Memorandum for Entry of Default Judgment Against Defendant Jesus Sanchez (“Sanchez”) filed November 13, 2013. This motion was referred to Magistrate Judge Hegarty for a recommendation. A Recommendation was issued on December 10, 2013, and is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B) ; Fed. R. Civ. P. 72(b).
Magistrate Judge Hegarty recommends therein that Plaintiff's Amended Motion and Memorandum for Entry of Default Judgment against Defendant Jesus Sanchez be granted in part and denied in part. (See Recommendation at 1, 16.) Specifically, he first notes that Defendant Sanchez did not answer or respond to the Amended Complaint before the deadline, and that an Entry of Default was docketed by the Clerk of the Court on October 15, 2013. (Id. at 8.) He further notes that Sanchez did not respond to the motion for default judgment. (Id. )
It is then recommended that default judgment be entered in Plaintiff's favor against Sanchez pursuant to Fed. R. Civ. P. 55(b)(2). (Recommendation at 9.) In support of this, Magistrate Judge Hegarty finds that the Court has jurisdiction and that “Plaintiff has established a violation of its copyrighted work by Defendant Sanchez, in that a computer at Sanchez's residence participated in an illegal download of its motion picture.” (Id. at 10.) Magistrate Judge Hegarty then finds that “Plaintiff has established that Sanchez copied Plaintiff's copyright protected work” and “recommends that the District Court find Sanchez has committed a direct infringement of the Copyright Act against Plaintiff as set forth in Count I of the Amended Complaint. (Id. at 13.) He recommends, however, that the Court find that “Plaintiff has failed to demonstrate Sanchez's liability as to contributory infringement as set forth in Count II of the Amended Complaint. (Id. ) As to damages, it is recommended that Sanchez be ordered to pay Plaintiff $2,250.00 in statutory damages as authorized by 17 U.S.C. § 504(c)(1), and $676.66 for attorney's fees and costs as authorized by 17 U.S.C. § 505. (Id. at 13–15.)
Finally, Magistrate Judge Hegarty recommends that the Court grant in part and deny in part Plaintiff's request for injunctive relief. (Recommendation at 15–16.) Thus, it is recommended that Plaintiff's request for an order directing Sanchez to “destroy all copies of Plaintiff's Motion Picture” from “any computer hard drive or server without Plaintiff's authorization” that are within Sanchez's “possession, custody, or control” be granted as reasonable. (Id. at 15.) On the other hand, Magistrate Judge Hegarty recommends that the Court deny Plaintiff's request for an order enjoining Sanchez from directly or indirectly infringing on Plaintiff's copyrighted work, as he finds that Plaintiff failed to proffer evidence sufficient to justify this request. (Id. at 15–16.)
Magistrate Judge Hegarty advised the parties that written objections were due within fourteen (14) days after service of the Recommendation. (Recommendation at 1 n. 1.) Despite this advisement, no objections were filed to the Recommendation. No objections having been filed, I am vested with discretion to review the Recommendation “under any standard [I] deem[ ] appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.1991) ; see also Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (stating that “[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings”). Nonetheless, though not required to do so, I review the Recommendation to “satisfy [my]self that there is no clear error on the face of the record.”See Fed. R. Civ. P. 72(b) Advisory Committee Notes.
Note, this standard of review is something less than a “clearly erroneous or contrary to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review, Fed. R. Civ. P. 72(b).


Having reviewed the Recommendation, I am satisfied that there is no clear error on the face of the record. The Recommendation is well reasoned and persuasive. I agree that Plaintiff should be granted default judgment against Defendant Sanchez for direct infringement of the Copyright Act. I further agree with the recommendation on damages—that Sanchez should pay Plaintiff $2,250.00 in statutory damages and $676.66 for attorney's fees and costs. Finally, I agree that Plaintiff's request for injunctive relief should be granted in part and denied in part as set forth in the Recommendation. Accordingly, it is


ORDERED that the Recommendation of United States Magistrate Judge dated December 10, 2013 (ECF No. 65) is AFFIRMED and ADOPTED. In accordance therewith, it is
ORDERED that Plaintiff's Amended Motion and Memorandum for Default Judgment Against Defendant Jesus Sanchez (ECF No. 62) is GRANTED IN PART AND DENIED IN PART; namely, it is granted as to the request for a default judgment and for damages, and granted in part and denied in part as to the request for injunctive relief. Therefore, it isORDERED that the Clerk of Court shall enter judgment in Plaintiff's favor against Defendant Jesus Sanchez for direct copyright infringement of Plaintiff's copyrighted work as set forth in Count I of the Amended Complaint. It is
FURTHER ORDERED that Defendant Sanchez shall pay Plaintiff the sum of $2,250.00 in statutory damages and $676.66 for attorney's fees and costs. It is
FURTHER ORDERED that Defendant Sanchez shall permanently destroy all the digital media files relating to, and copies of, Plaintiff's copyrighted work made or used by him in violation of Plaintiff's exclusive rights, as well as all master copies in his possession, custody or control from which such copies may be reproduced. Finally, it is
ORDERED that Plaintiff's request for “entry of preliminary and permanent injunctions providing that [Sanchez] shall be enjoined from directly or indirectly infringing Plaintiff's rights in the copyrighted Motion Picture” is denied.
Michael E. Hegarty, United States Magistrate Judge.
Plaintiff has filed an Amended Motion and Memorandum for Default Judgment against Defendant Jesus Sanchez [filed November 13, 2013; docket # 62 ]. Pursuant to 28 U.S.C. § 636(b)(1)(B) and D.C. Colo. LCivR 72.1.C, the motion was referred to me for a Report and Recommendation. The matter is briefed to the extent allowed by court rules and the prevailing law, and the Court finds that oral argument is not necessary for the adjudication of the motion. Based upon the record and for the reasons that follow, the Court recommends that the District Court grant in part and deny in part the motion as set forth herein.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676–83, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) ; 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991) ; Niehaus v. Kansas Bar Ass'n, 793 F.2d 1159, 1164 (10th Cir.1986).
In this case, Plaintiff's allegations involve a complicated technical process used to download copyrighted works (here, motion pictures) through the BitTorrent program; therefore, this Court finds it necessary first to explain how BitTorrent works, then to note its findings of fact in this case.
Fortunately, several courts in this country have researched, defined and described the protocol in such a way that even technologically challenged individuals may understand the intricacies of the BitTorrent program. This Court finds particularly instructive and gratefully adopts the description provided by the Honorable Thomas L. Ludington, District Judge for the Eastern District of Michigan, in Patrick Collins, Inc. v. John Does 1–28, No. 12–13670, 2013 WL 359759 (E.D.Mich. Jan. 29, 2013), in which Judge Ludington first defines terms used with the protocol, then describes how BitTorrent operates. Id. at *1–*3. First, the vocabulary used in the technology:
Patrick Collins, Inc., 2013 WL 359759, at *1–*2 (citations omitted). Judge Ludington proceeds to describe the protocol and how BitTorrent works:
1. Plaintiff is the copyright owner of a motion picture entitled “Creampie Young Girls 1” (the “copyrighted film”). Docket # 37–2. The film was registered on September 10, 2012 under registration number PAU003631765. Id.
2. Plaintiff has not authorized the motion picture to be copied or distributed on BitTorrent. Declaration of Matthias Schroeder Padewet, April 30, 2013 (“Padewet Declaration”), ¶ 7, docket # 5.
3. Plaintiff's investigator, Copyright Defenders, Inc., used the BitTorrent file distribution network to download its motion picture, identified by file hash number 840DCF35EA1BOEA81724D0385604461FDF532606 (“Hash 840D”), from IP address 71.221.104.93. Id. at ¶ 23; Docket # 37–3. As set forth in more detail below, IP address 71.221.104.93 has been identified by Internet Service Provider (“ISP”), Century Link, as belonging to Defendant Sanchez. Dockets # 37, ¶ 22, 26; # 37–1.
4. Copyright Defenders used the search function of the BitTorrent protocol to look for network users who were offering for distribution audiovisual files that were labeled with the names of Plaintiff s copyrighted Motion Picture. Copyright Defenders then conducted a download of the respective content and a careful and thorough review of that data. The Hash 840D was extracted from the original torrent file as soon as the content had been verified as a valid copy of Plaintiff s copyrighted Motion Picture.
5. Copyright Defenders started searching for individuals making the content identified by the hash value available to the public. When a network user was located who was making that content available for distribution, Copyright Defenders downloaded a part of that file and stored other specific information in order to confirm that copying was occurring and to identify the copier by the unique IP address assigned to that individual by his/her ISP on the date and at the time of the copying activity.
6. Copyright Defenders identified Defendant Sanchez as follows: its software is connected to the “Creampie Young Girls 1” file, an illegal version of the Plaintiff's copyrighted film. All individuals connected to the file (“users”) were investigated through downloading a part of the file placed on their computers. Evidence of these connections are saved on Copyright Defenders' server.
7. Copyright Defenders then obtained the IP address of each user offering the file for download. It also downloaded or otherwise collected publicly available information about the user, which is designed to help Plaintiff identify the user. Among other things, the investigator downloaded or recorded for each file downloaded: (a) the time and date at which the file or a part of the file was distributed by the user; (b) the IP address assigned to each user at the time of copying; (c) the ISP for each user; and, in some cases, (d) the video file's metadata (digital data about the file) such as title and file size, that is not part of the actual video content, but that is attached to the digital file and helps identify the content of the file, (e) the BitTorrent client application used by each user, (f) the global unique identifier for each file downloaded by each user, and (g) the location of most users (by state) at the time of download as determined by geolocation technology. Copyright Defenders then created evidence logs for each user and stored the information in a database.
8. Copyright Defenders has confirmed that the digital audiovisual files downloaded by Copyright Defenders are actual copies of the Plaintiff's copyrighted film. Because it is possible for digital files to be mislabeled or corrupted, Copyright Defenders does not rely solely on the labels and metadata attached to the files themselves to determine which motion picture is copied in the downloaded file, but also to confirm through a visual comparison between the downloaded file and the motion picture itself.
9. As to Plaintiff's copyrighted film, the staff at Copyright Defenders has watched a copy of the copyrighted film provided by Plaintiff. The downloaded files have been carefully reviewed and compared by a visual comparison with the original motion picture. Copyright Defenders confirms that the downloaded files contain a substantial portion of the Plaintiff's copyrighted film.
10. Plaintiff's evidence reveals that the IP Address 71.221.104.93, identified as belonging to Defendant Jesus Sanchez, connected to the invalid file containing Plaintiff's copyrighted film on February 9, 2013 at 11:24 p.m. for a total of 340 seconds. See Logged Evidences of IP Address 71.221.104.93, docket # 37–3.11. Defendant Jesus Sanchez is an individual residing at 2402 W. Payne Circle, Colorado Springs, Colorado 80916. Defendant Sanchez was served with a summons and the Amended Complaint in this action on August 29, 2013. Affidavit of Service, docket # 47.
12. Sanchez did not answer or otherwise respond to the Amended Complaint.
13. The Clerk of this Court entered default against Sanchez on October 15, 2013.
14. Plaintiff seeks statutory damages, costs and attorney's fees, and injunctive relief in this case. Docket # 37.
Plaintiff initiated this action on May 2, 2013 against various Doe defendants, then filed a motion to amend the caption on May 3, 2013. Dockets ## 1, 9. On August 14, 2013, Plaintiff filed an Amended Complaint as a matter of course naming Jesus Sanchez and two other defendants. Docket # 37. Plaintiff served a summons and the Amended Complaint upon Defendant Sanchez on August 29, 2013; thus, Sanchez's answer or other response was due to be filed on or before September 19, 2013. Docket # 47. However, Sanchez filed no answer or other response before the deadline; therefore, on October 10, 2013, Plaintiff filed a Motion for Entry of Clerk's Default Pursuant to Fed. R. Civ. P. 55(a) against Sanchez. Docket # 49. An Entry of Default was docketed by the Clerk of the Court on October 15, 2013. Docket # 55. Plaintiff filed a Motion for Default Judgment against Defendant Sanchez on November 8, 2013, but the motion was denied without prejudice for procedural deficiencies. Accordingly, Plaintiff filed the present Amended Motion and Memorandum for Default Judgment Against Defendant Sanchez on November 13, 2013. Docket # 62. Sanchez did not respond to the motion within the 21–day time period as required by D.C. Colo. LCivR 7.1(d).
The Court is now sufficiently advised and recommends as follows.
Fed. R. Civ. P. 55 governs motions for default judgment. Rule 55(b)(2) provides the authority for the District Court to enter default judgment. After an entry of default, a defendant cannot defend a claim on the merits. See Olcott v. Delaware Flood Co., 327 F.3d 1115, 1125 (10th Cir.2003) (“ ‘[D]efendant, by his default, admits the plaintiff's well-pleaded allegations of fact[.]’ ”) (quoting Jackson v. FIE Corp., 302 F.3d 515, 525 (5th Cir.2002) (finding that “[a] default judgment is unassailable on the merits.”)); see also Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir.1990) (“[A] default judgment generally precludes a trial of the facts except as to damages.”).
Even after entry of default, however, it remains for the court to consider whether the unchallenged facts constitute a legitimate basis for the entry of a judgment. See McCabe v. Campos, No. 05–cv–00846–RPM, 2008 WL 576245, at *2 (D.Colo. Feb. 28, 2008) (unpublished) (citing Black v. Lane, 22 F.3d 1395, 1407 (7th Cir.1994) ). In determining whether a claim for relief has been established, the well-pleaded facts of the complaint relating to liability are deemed true. Id. (citing Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir.1983) ); see also Personal Indus. Loan Corp. v. Forgay, 240 F.2d 18, 20 (10th Cir.1957) (“By failing to appear and permitting a default judgment to be entered, [defendant] admitted only facts well pleaded”). In addition, the court accepts the undisputed facts set forth in any affidavits and exhibits. Deery American Corp. v. Artco Equip. Sales, Inc., No. 06–cv–01684–EWN–CBS, 2007 WL 437762, at *3 (D.Colo. Feb. 6, 2007) (unpublished).
“[A] party is not entitled to a default judgment as of right; rather the entry of a default judgment is entrusted to the ‘sound judicial discretion’ of the court.” Cablevision of Southern Connecticut, Ltd. P'ship v. Smith, 141 F.Supp.2d 277, 281 (D.Conn.2001) (quoting Shah v. New York State Dep't of Civil Serv., 168 F.3d 610, 615 (2d Cir.1999) ). A trial court is vested with broad discretion in deciding whether to enter a default judgment. Grandbouche v. Clancy, 825 F.2d 1463, 1468 (10th Cir.1987) ; see also Weft, Inc. v. G.C. Inv. Assocs., 630 F.Supp. 1138, 1143 (E.D.N.C.1986) (citing Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.1975) ) (“upon a default, a plaintiff is entitled to a determination of liability unless he has failed to state a legal basis for relief or it is clear from the face of the complaint that the allegations are not susceptible of proof”).
Upon review of the record, the Court recommends finding that default judgment be entered in Plaintiff's favor against Defendant S
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