WILEY Y. DANIEL, SENIOR UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on Plaintiff's Motion and Memorandum for Default Judgment against Defendant Benito Smoak (ECF No. 69). In his Recommendation, Magistrate Judge Hegarty recommends that the pending motion be granted in part and denied in part. (Recommendation at 1, 16-17). The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b).
Magistrate Judge Hegarty advised the parties that written objections were due within fourteen (14) days after service of a copy of the Recommendation. (Recommendation at 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
Having reviewed the Recommendation, I am satisfied that there is no clear error on the face of the record. I find that Magistrate Judge Hegarty's Recommendation is thorough, well-reasoned and sound. I agree with Magistrate Judge Hegarty that the pending motion should be granted in part and denied in part for the reasons stated in both the Recommendation and this Order.
Based on the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge Hegarty (ECF No. 72) is
FURTHER ORDERED that Plaintiff's Motion and Memorandum for Default Judgment against Defendant Benito Smoak (ECF No. 69) is
1. Judgment shall enter in Plaintiff's favor against Defendant Benito Smoak for direct copyright infringement of Plaintiff's copyrighted work and contributory infringement, as set forth in Counts I and II of the Amended Complaint;
2. Defendant Smoak shall pay to Plaintiff the sum of $2,250.00 in statutory damages, as authorized by 17 U.S.C. § 504(c)(1), and $1,047.50 for attorney's fees and costs as authorized by 17 U.S.C. § 505;
3. Defendant Smoak 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; and
4. Plaintiff's request for "entry of preliminary and permanent injunctions providing that [Smoak] shall be enjoined from directly or indirectly infringing Plaintiff's rights in the copyrighted Motion Picture" is
Michael E. Hegarty, United States Magistrate Judge.
Plaintiff has filed a Motion and Memorandum for Default Judgment against Defendant Benito Smoak [filed May 30, 2014; docket # 69]. 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 required 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
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:
Id. at *2-*3 (citations omitted).
1. Plaintiff is the copyright owner of a motion picture entitled "Creampie Young Girls 1" (the "copyrighted film"). Docket
2. Plaintiff has not authorized the motion picture to be copied or distributed on BitTorrent. Declaration of Matthias Schroeder Padewet, May 2, 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 840DCF35EA1B0EA81724D03856044 61FDF532606 ("Hash 840D"), from IP address 71.56.192.189. Id. at ¶ 23; Docket # 21-3. As set forth in more detail below, IP address 71.56.192.189 has been identified by Internet Service Provider ("ISP"), Century Link, as belonging to Defendant Smoak. Dockets # 21, ¶ 20, 26; # 21-1.
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 Smoak 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
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 71.56.192.189, identified as belonging to Defendant Benito Smoak, connected to the invalid file containing Plaintiff's copyrighted film several times on February 5, 2013 for a total of 2,178 seconds. See Logged Evidences of IP Address 71.56.192.189, docket # 21-3.
11. Defendant Benito Smoak is an individual residing at 135 South Kendall Street, Lakewood, Colorado 80226. Defendant Smoak was served with a summons and the Amended Complaint in this action on September 25, 2013. Affidavit of Service, docket # 28.
12. Defendant Smoak filed an Answer and Counterclaim on October 24, 2013. Docket # 42.
13. On January 6, 2013, the District Court adopted this Court's Report and Recommendation to dismiss Smoak's counterclaims and to strike his affirmative defenses. Dockets # # 55, 57.
14. Plaintiff filed a Combined Motion to Compel Discovery Against Defendant Smoak, to Modify the Discovery Schedule, and for Attorney's Fees on March 25, 2014. Docket # 60.
15. On May 5, 2014, this Court ordered Defendant Smoak to show cause in writing by May 19, 2014 why default should not be entered against him. Docket # 64. Smoak did not respond to the Court's Order, and the Clerk of the Court entered default against him on May 29, 2014. Docket # 68.
16. Plaintiff seeks statutory damages, costs and attorney's fees, and injunctive relief in this case. Docket # 21.
Plaintiff initiated this action on May 2, 2013 against various Doe defendants. Docket # 1. On August 21, 2013, Plaintiff filed an Amended Complaint as a matter of course naming Benito Smoak and three other defendants. Docket # 21. Plaintiff served a summons and the Amended Complaint upon Smoak on September 25, 2013. Docket # 28. Smoak appeared at the Scheduling Conference on October 21, 2013 and was directed to file an Answer on or before October 25, 2013. Docket # 38. Defendant Smoak complied and filed an Answer and Counterclaims on October 24, 2013. Docket # 42. On January 6, 2014, the District Court adopted this Court's Recommendation to grant the Plaintiff's Motion to Dismiss Smoak's counterclaims and strike certain of his affirmative defenses. Docket # 57.
Plaintiff submitted to Defendant Smoak its Requests for Production, Interrogatories and Requests for Admission on November 25, 2013, which would allow Smoak thirty-three days, or until December 30, 2013 to respond. See docket # 60. When Smoak did not produce his Rule 26(a) initial disclosures or respond to Plaintiff's first set of discovery requests, Plaintiff filed a Combined Motion to Compel Discovery against Benito Smoak, to Modify the Discovery Schedule, and for Attorney's Fees on March 25, 2014. Id. When Defendant failed to respond to the Motion to Compel within the time set forth in D.C. Colo. LCivR 7.1(d), the Court issued an order requiring the Defendant to respond on or before April 30, 2014. (Docket
On May 5, 2014, this Court issued an Order to Show Cause in writing no later than May 19, 2014 why this Court should not recommend entry of default for Defendant's failure to defend this action. Docket # 64. Defendant Smoak did not respond to the Order to Show Cause, and Plaintiff filed a Motion for Default Judgment as to Benito Smoak on May 30, 2014. Docket # 69. Defendant Smoak has not responded to the present Motion for Default Judgment, and his opportunity to do so within the time set forth in D.C. Colo. LcivR 7.1(d) has expired. The Clerk of the Court entered default against Defendant Smoak on May 29, 2014. Docket # 69.
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. Decry 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 Niskimatsu 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").
The Court is now sufficiently advised and recommends as follows.
Upon review of the record, the Court recommends finding that default judgment be entered in Plaintiff's favor against Defendant
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 Say. & 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 Smoak is an individual residing at 135 South Kendall Street, Lakewood, Colorado 80226. See docket # 28. As such, the Court has personal jurisdiction over Smoak. 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 Smoak, in that a computer at Smoak's residence participated in an illegal download of Plaintiff's 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:
Motion, docket # 69 at pp. 5-6.
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)).
For the second element, Plaintiff must prove that Smoak "`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 [Smoak,] 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 1476, 1490 (10th Cir.1993), overruled on other grounds by TW Telecom Holdings, Inc. v. Carolina Internet Ltd., 661 F.3d 495 (10th Cir. 2011)). "Thus, while a plaintiff is not required to demonstrate the defendant's actual access to the work, `evidence that only creates a bare possibility that the defendant had access is not sufficient.'" Id. (quoting Mag Jewelry Co. v. Cherokee, Inc., 496 F.3d 108, 117 (1st Cir.2007)).
Once copying has been established, "`liability for copyright infringement will attach only where protected elements of a copyrighted work are copied.'" Id. at 1180 (quoting Country Kids 'N City Slicks, Inc., 77 F.3d at 1284). "The plaintiff must prove that there is a "substantial similarity between those aspects of Plaintiff's [work] which are legally protectable and the Defendants' [work]." Id. Substantial similarity is measured by whether an "ordinary observer," who is not specifically looking for disparities, would tend to overlook any differences between the works. Id.
In this case, Plaintiff has sufficiently alleged that Smoak copied its protected work by demonstrating, through verified testimony, that its investigator downloaded from Smoak's IP address a copy of the Hash 840D from the BitTorrent file distribution network (accessed by Smoak) and confirmed through independent review that the file hash matched Plaintiff's copyrighted work. Plaintiff's investigator then verified that the downloaded file contained a "substantial portion" of Plaintiff's copyrighted film. Thus, Plaintiff contends that on or about February 5, 2013, Smoak installed BitTorrent client software onto a computer to serve as the interface during the downloading/uploading process, visited a torrent site that contained an index of files being made available by other users for copying and downloading, and using the BitTorrent protocol, Smoak then joined a BitTorrent swarm where he downloaded the copyrighted film from and uploaded the film to the other members of the swarm. Taking these well-pled allegations as true, the Court finds that Plaintiff has established that Smoak copied Plaintiff's copyright protected work and recommends that the District Court find Smoak has committed a direct infringement of the
Plaintiff also asserts a claim for contributory infringement. Plaintiff alleges that Smoak participated in a BitTorrent "swarm" with other peers to cause the infringement of its copyrighted film by other Defendants and swarm members. Taking as true Plaintiff's allegations concerning Smoak's actual access to Hash 840D, the Court finds that he and at least one other Defendant accessed the file on the same date [see docket # 21-3] and, thus, the allegations demonstrate a plausibility that Smoak participated with that Defendant in the same BitTorrent swarm. See Patrick Collins, Inc., 2013 WL 359759, at *2 ("to constitute a swarm, all of the peers must be sharing the same file (identified by its unique hash identifier))." Accordingly, the Court recommends that the District Court find the Plaintiff has demonstrated Defendant Smoak's liability as to contributory infringement as set forth in Count II of the Amended Complaint.
Here, Plaintiff seeks statutory damages and costs for the February 5, 2013 copyright infringement. Under federal copyright law, "the copyright owner may ... recover ... an award of statutory damages for all infringements involved in the action, with respect to any one work ... a sum of not less than $750 or more than $30,000 as the court considers just." 17 U.S.C. § 504(c)(1). Damages may be increased to up to $150,000 if the infringement is willful. 17 U.S.C. § 504(c)(2). In this case, Plaintiff seeks $2,250.00 on the basis of its allegation of willful infringement. Plaintiff also seeks proportionate attorney's fees and costs, in the amount of $1,047.50.
Docket # 21 at 18. Notably, 17 U.S.C. § 503(b) provides that "the court may order the destruction ... of all copies ... found to have been made or used in violation of the copyright owner's exclusive rights."
This case is one of dozens of its type filed in this District and handled by me as Magistrate Judge. It is also one of hundreds or perhaps thousands filed around the country in recent years by Plaintiff and other owners of pornographic films. Many of the defendants named in these lawsuits settle very early in the case. Some of those who do not settle have denied any participation in copyright infringement. Other defendants allege that their wireless connection may have been used by someone else to participate in the
However, in this case, there is no evidence that anyone other than Smoak committed the infringements, and evidence exists of his infringement. Despite being informed both before and during this litigation of the allegations against him, Smoak has failed to answer or otherwise defend himself in this case. For these reasons, I believe that Plaintiff has established entitlement to willful infringement damages.
Furthermore, courts across the country have awarded $2,250.00 per infringement in cases of this type, and I have awarded that amount in cases nearly identical to this one. Thus, I find that a statutory damage award of $2,250.00 per infringement is appropriate and just in this case to accomplish the intent set forth by Congress in passing the Copyright Act. In addition, Plaintiff's request for $1,047.50 for attorney's fees and costs should be granted.
Finally, Plaintiff seeks injunctive relief prohibiting Smoak from infringing Plaintiff's copyrighted work and requiring Smoak to delete the torrent file relating to Plaintiff's movie from each computer in Smoak's possession, custody or control, and to delete any actual copy of Plaintiff's copyrighted work from such computers. The Court finds that Plaintiff's request for an order directing Smoak to "destroy all copies of Plaintiff's Motion Picture" from "any computer hard drive or server without Plaintiff's authorization" that are within Smoak's "possession, custody, or control" is a reasonable request and should be granted.
However, Plaintiff has failed to proffer evidence sufficient to justify its request to enjoin Smoak "from directly or indirectly infringing Plaintiff's rights in the copyrighted motion picture"; Plaintiff has produced no evidence that, as of this date, Smoak actually possesses the copyrighted work on his computer(s) and continues to upload it to others. The Court notes that, if the District Court were to grant Plaintiff's requested injunction for the deletion of Plaintiff's copyrighted work on Smoak's computer(s), he would be unable to continue uploading the work via the BitTorrent system. Therefore, the Court recommends that the District Court deny Plaintiff's request for an order enjoining Smoak from directly or indirectly infringing on Plaintiff's copyrighted work.
Based on the foregoing, and the entire record provided to the Court, I do respectfully RECOMMEND that the District Court
Dated at Denver, Colorado, this 26th day of June, 2014.
