Tag Archives: Motion For Default

Internet Subscriber Liability For BitTorrent Use

In a default judgment opinion, Judge Robert M. Dow, Jr., carefully scrutinized and questioned plaintiff’s motives and actions. After reviewing a number of the criticisms against BitTorrent infringement claims the Judge concluded:

Plaintiff, however, does more than merely identify Defendant as the account holder at the relevant IP address. It also offers evidence linking that IP address to bit-exchanges involving hundreds of digital media files in just three months. Taken together, these facts plausibly suggest that Defendant—the controlling account holder of an IP address associated with frequent BitTorrent use—is the infringing user. See Malibu Media, LLC v. Doe, 2015 WL 857408, at *4 (D. Md. Feb. 26, 2015) (“That the Defendant’s IP address was used to obtain 2,034 other third party files through BitTorrent over an 18–month period supports the reasonable inference that the Defendant-and not some other person using the Defendant’s IP address—was the infringer.”). The Court therefore finds a plausible claim of direct copyright infringement.

The court went on to find that even if the infringer was not the defendant, the defendant was still liable as the subscriber finding:

Plaintiff also states a plausible claim for contributory copyright infringement. “A defendant is liable for contributory copyright infringement when it with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another.” Monotype Imaging, Inc. v. Bitstream, Inc., 376 F. Supp. 2d 877, 883 (N.D. Ill. 2005) (citations and internal quotation marks omitted); see also PHE, 2014 WL 1856755, at *2.

And while declining to find willful infringement, contra Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008)(In a default, “all factual allegations in the complaint are deemed true, including the allegation of [] willful infringement …”) the court did award all costs and fees and entered an injunction against the defendant and awarded plaintiff $11,525.00.

Once again the courts continue to extend liability for BitTorrent infringement to the account holders and subscribers.  The lesson: If you pay the bill, make sure no one is using BitTorrent.

The full opinion is: Malibu Media v. Funderburg, 1:13-cv-02614, N.D. Ill. (April 24, 2014)

### UPDATE:  On review of the Amended Complaint it appears the Judge’s finding of contributory infringement was not plead by plaintiff.  The Judge appears to have brought an alternative finding of contributory infringement to this opinion on their own based on the evidence.

The filed Amended Complaint is: Amended Complaint : Malibu Media v. Funderburg, 1:13-cv-02614, N.D. Ill.

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

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.”