Author Archives: Hipparchia

A case where a motion for default is granted in part & denied in part

Riding Films Inc. (Plaintiff) Versus 129-193 John Does (Defendants)

In determining whether to enter judgment by default, courts often consider the following factors:

• the amount of money potentially involved;
• whether material issues of fact or issues of substantial public importance are at issue;
• whether the default is largely technical;
• whether plaintiff has been substantially prejudiced by the delay involved;
• and whether the grounds for default are clearly established or are in doubt.

The court may also consider;

• how harsh an effect of a default judgment might have
• or whether the default was caused by a good faith mistake or by excusable or inexcusable neglect on the part of the defendant

Defaulting defendant – considered to have admitted all the well-pleaded allegations relating to the liability. To succeed in this case,

Plaintiff must prove valid ownership of the motion picture copyright.

Defendant must be proven to have violated on or more of plaintiff’s exclusive rights (e.g. by copying and distributing plaintiffs copyrighted movie picture without authorization).

However, only within court’s discretion will the default judgment be granted and not through mere determination of the liability of the defendant.

In the Dawn Rider case, the factors militate in granting default judgment’s favour. Recommendation for the plaintiff’s motion for default judgment be granted in part and denied in part. The defendant James McLean;

Permanently Enjoined

– from directly or indirectly infringing plaintiff’s copyrighted works

Ordered

– to destroy all copies of Dawn Rider from his hard drive to any physical device in his possession where he may have transferred it to

Read the full report below:

Report & Recommendation on Mtn. for Default against J. Mclean

Review calculates statutory damages per infringement via BitTorrent protocol

OHIO – Plaintiff TCYK LCC filed two separate lawsuits against Does 1-47 and 48-98 for allegedly violating copyright laws by downloading and sharing plaintiff’s motion picture, The Company You Keep, via BitTorrent protocol. One of the IP addresses was traced to one Joe Snodgrass and another to one Charles Ghent. Judge Marbley presided over the cases.

In the Snodgrass case, TCYK LLC initially sought $150,000 in statutory damages. Nonetheless, the Court owns the substantial discretion to set the statutory damages within the allowable range, guided by certain variables:

“When determining the proper amount of statutory damages, courts have looked to: (1) whether defendants’ infringement was willful, knowing, or innocent; (2) defendants’ profit from infringement; (3) plaintiffs’ loss from infringement; and (4) deterring future violations by defendants and similarly situated entities.

The facts of this case do not justify plaintiff’s requested award. Although the entry of his default has established a copyright infringement by defendant, it is not necessarily the case that defendant was the original user who made plaintiff’s work available to the public. Moreover, there is no evidence that defendant profited from the infringement. The nature of BitTorrent is such that defendant would not likely have reaped any profit from his participation in the infringement of plaintiff’s copyright except for the amount that defendant saved by illegally downloading the motion picture.”

In both cases, the Court held that an award of $6,000 in statutory damages properly answers for the plaintiff’s loss, the defendant’s gain, and the public’s appeal to deter future copyright violations as “in the vast majority of [cases involving intentional copyright infringement by use of BitTorrent or other file sharing protocols], courts have found damages of no more than $6,500 per infringement to be sufficient compensation for the injured copyright holder.”

Motion for Default Filed for “The Company You Keep” Copyright Infringement

Failure to respond is almost always the reason behind a default judgment in courts, and this is exactly what happened to Richard Williams when TCYK, LLC filed a motion for default against him for downloading and sharing the motion picture, The Company You Keep, via BitTorrent.

Although 20 defendants were caught downloading the said movie at a specific time and date, Williams was filed with a motion for default for failing to plead or defend as required by law.

REPORT AND RECOMMENDATION

Part of the Report and Recommendation file dated January 8, 2015 says: “Plaintiff seeks $150,000 in statutory damages, $5,101.25 in attorneys’ fees, and $405.01 in costs; Plaintiff also asks that the Court permanently enjoin defendant Williams from infringing, directly or indirectly, Plaintiff’s copyrighted works.”

STATUTORY DAMAGES

The Plaintiff sought damages because “defendant’s conduct was wilful, because a maximum award will deter others, and because Plaintiff and the motion picture industry have suffered real and significant harm.” However, the court still had to determine the proper amount of statutory damages according to different factors.

THE COURT’S CONCLUSION

As a conclusion, the Plaintiff sought a permanent injunction that would “prohibit defendant’s use of the internet to reproduce or distribute Plaintiff’s motion pictures without license or express permission,” as well as to destroy all copies of The Company You Keep downloaded motion picture “onto any computer hard drive or server or transferred onto any physical medium or device in defendant’s possession, custody, or control.” The United States District Court of Ohio (Southern District) also concludes that aside from the statutory damages, the “Plaintiff is entitled to attorneys’ fees and costs, pursuant to 17 U.S.C. § 505, in the total amount of $1,905.01.”