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Civil Action No. 13-cv-01173-WYD-MEH.
PURZEL VIDEO GMBH, Plaintiff, v. Anthony MARTINEZ, and Derrick Anderson, Defendants.
United States District Court, D. Colorado.https://leagle.com/images/logo.png
Paul Alan Lesko , Simmons Browder Gianaris Angelides & Barnerd, LLC, Alton, IL, for Plaintiff.
Anthony Martinez, Denver, CO, pro se.
United States District Court, D. Colorado.
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 Derrick Anderson ["Anderson"] filed November 13, 2013. This motion was referred to Magistrate Judge Hegarty for a recommendation. A Recommendation of United States Magistrate Judge were issued on December 11, 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 Derrick Anderson be granted in part and denied in part. (Recommendation at 1, 16.) Specifically, he first notes that Defendant Anderson 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 7-8.) He further notes that Anderson did not respond to the motion for default judgment. (Id. at 8.)
Finally, Magistrate Judge Hegarty recommends that the Court grant in part and deny in part Plaintiff's request for injunctive relief. (Recommendation at 15.) Thus, it is recommended that Plaintiff's request for an order directing Anderson to "destroy all copies of Plaintiff's Motion Picture" from "any computer hard drive or server without Plaintiff's authorization" that are within Defendant Anderson's "possession, custody, or control" be granted as reasonable. (Id.) On the other hand, Magistrate Judge Hegarty recommends that the Court deny Plaintiff's request for an order enjoining Anderson from directly or indirectly infringing on Plaintiff's copyrighted works, 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."1 See Fed. R. Civ. P. 72(b) Advisory Committee Notes.
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 Anderson for direct infringement of the Copyright Act and for contributory infringement as set forth in Counts I and II of the Amended Complaint. I further agree with the recommendation on damages — that Anderson should pay Plaintiff $2,250.00 in statutory damages and $650.00 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 11, 2013 (ECF No. 62) is AFFIRMED and ADOPTED. In accordance therewith, it is
ORDERED that Plaintiff's Amended Motion and Memorandum for Default Judgment Against Defendant Derrick Anderson (ECF No. 59) 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 is
FURTHER ORDERED that Defendant Anderson shall pay Plaintiff the sum of $2,250.00 in statutory damages and $650.00 for attorney's fees and costs. It is
FURTHER ORDERED that Defendant Anderson 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 [Defendant Anderson] 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 Derrick Anderson [filed November 13, 2013; docket #59]. 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. (Docket # 61). 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.1
In this case, Plaintiffs 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.
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 # 21-2. 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 ("Padewet Declaration"), ¶ 7, docket # 5.
3. Plaintiffs investigator, Copyright Defenders, Inc., used the BitTorrent file distribution network to download its motion picture, identified by file hash number 840DCF35EA1BOEA81724D038560446 1FDF532606 ("Hash 840D"), from IP address 98.245.66.22. Id. at ¶ 23; Docket # 21-3. As set forth in more detail below, IP address 98.245.66.22 has been identified by Internet Service Provider ("ISP"), Century Link, as belonging to Defendant Anderson. Dockets #21, ¶ 23; #21-1.
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 Anderson as follows: its software is connected to the "Creampie Young Girls 1" file, an illegal version of the Plaintiffs 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 Plaintiffs 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 98.245.66.22, identified as belonging to Defendant Derrick Anderson, connected to the hash file containing Plaintiff's copyrighted film on eighty-seven occasions from February 26, 2013 to February 27, 2013. See Logged Evidences of IP Address 98.245.66.22, docket # 21-3.
11. Defendant Derrick Anderson, formerly Doe # 170, is an individual residing at 3015 Vail Avenue, Pueblo, Colorado 81005. Docket #21, ¶ 23. Defendant Anderson was served with a summons and the Amended Complaint in this action on September 9, 2013. Affidavit of Service, docket # 39.
13. The Clerk of this Court entered default against Anderson on October 15, 2013.
14. Plaintiff seeks statutory damages, costs and attorney's fees, and injunctive relief in this case. Docket # 59.
Plaintiff initiated this action on May 2, 2013 against various Doe defendants. On August 22, 2013, Plaintiff filed an Amended Complaint naming Derrick Anderson and six other defendants. Plaintiff served a summons and the Amended Complaint upon Defendant Anderson on September 9, 2013; thus, Anderson's answer or other response was due to be filed on or before September 30, 2013. Docket # 39. However, Defendant Anderson filed no answer nor other response before the deadline; therefore, on October 11, 2013, Plaintiff filed a Motion for Entry of Clerk's Default Pursuant to Fed. R. Civ. P. 55(a) against Defendant Anderson. Docket # 51. An Entry of Default was docketed by the Clerk of the Court on October 15, 2013. Docket # 52. Plaintiff filed a Motion for Default Judgment against Defendant Anderson 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 Anderson on November 13, 2013. Docket # 59. 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 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 plaintiffs 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).
Upon review of the record, the Court recommends finding that default judgment be entered in Plaintiffs favor against Defendant Anderson pursuant to Fed. R. Civ. P. 55(b)(2) as follows.
In determining whether entry of default judgment is warranted, the court must first consider personal and subject matter jurisdiction. See, e.g., Williams v. Life Sav. & Loan, 802 F.2d 1200, 1203 (10th Cir.1986) (lack of subject matter jurisdiction constitutes good cause to set aside a default judgment); see also Dennis Garberg & Assoc. v. Pack-Tech Int'l Corp., 115 F.3d 767, 772 (10th Cir.1997) (district court erred in failing to determine personal jurisdiction issue before considering entry of default judgment). Here, the record reveals that Defendant Anderson resides in Colorado and was served with process at his place of abode, 1661 Washington St., Unit A, Denver, Colorado. See docket # 17. As such, the Court has personal jurisdiction over Defendant Anderson. In addition, this is a copyright infringement case, and the federal courts have original jurisdiction in such cases. See 28 U.S.C. § 1338. The Copyright Act creates a cause of action in favor of the owner of a copyright for direct infringement. 17 U.S.C. § 501.
Furthermore, taking its allegations as true, Plaintiff has established a violation of its copyrighted work by Defendant Anderson, in that a computer at Defendant Anderson's residence participated in an illegal download of its motion picture. A plaintiff is entitled to a determination of liability unless it 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. Weft, Inc., 630 F.Supp. at 1143. Here, Plaintiff alleges the following summarized claims:
There are two elements to a copyright infringement claim: "`(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.'" La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1177 (10th Cir. 2009) (quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)). The plaintiff bears the burden of proof on both elements. Id. (citing Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir.2005)).
Here, Plaintiff alleges it owns the copyrights to a motion picture, and provides the registration number, publication date and registration date for the film. Docket ## 21 and 21-2. The Court takes Plaintiff's well-pleaded allegations as true.
For the second element, Plaintiff must prove that Defendant Anderson "`unlawfully appropriated protected portions of the copyrighted work.'" La Resolana Architects, 555 F.3d at 1178 (quoting Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 832 (10th Cir.1993)). "This requires proving both: (1) that [Anderson,] as a factual matter, copied portions of Plaintiff's work; and (2) that those elements of the work that were copied were `protected expression and of such importance to the copied work that the appropriation is actionable.'" Id.; see also Jacobsen v. Deseret Book Co., 287 F.3d 936, 942 (10th Cir.2002).
"A plaintiff can indirectly prove copying (in a factual sense) `by establishing that a defendant had access to the copyrighted work and that there are probative similarities between the copyrighted material and the allegedly copied material.'" La Resolana Architects, 555 F.3d at 1178 (quoting Country Kids 'N City Slicks, Inc. v. Sheen, 77.F.3d 1280, 1284 (10th Cir.1996)). "A plaintiff may meet the initial burden of establishing access `by showing that the defendant had a reasonable opportunity to view or [an] opportunity to copy the allegedly infringed work.'" Id. (quoting Autoskill Inc. v. Nat'l Educ. Support Sys., Inc., 994 F.2d 1
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