Opinion
Civil Action 19-CV-10524-LAK
10-14-2021
BEDFORD, FREEMAN & WORTH PUBLISHING GROUP, LLC d/b/a MACMILLAN LEARNING, CENGAGE LEARNING, INC., ELSEVIER INC., MCGRAW-HILL GLOBAL EDUCATION HOLDINGS, LLC, and PEARSON EDUCATION, INC., Plaintiffs, v. TRUNG KIEN NGUYEN, DUY ANH NGUYEN, DUONG THI BAY, XUAN CHINH NGUYEN, TUAN ANH NGUYEN, VINH NGOC NGUYEN, LE TRANG, VAN QUYNH PHAM, THI LIEN PHUONG NGUYEN, VAN TUAN DANG, HIEN VO VAN, QUANG NGUYEN, VU NGUYEN KHANG, GINGER BOTTORFF, SHERRY FLOYD, JESSICA GOLDBERG, MAXIM GUBCEAC, KELLI LANE, TRACEY LUM, RODNEY MOUZONE, ZAINEE JALLAL, BIN LI, PAN PAN CAO, MICHAEL MCEVILLEY, ION SOBOL, HASEEB ANJUM, WALESKA CAMACHO, ANJUM AKHTER, SUSAN RAGON, ALIFF SYUKRIHAMDAN, KIM HAI LONG, KHUYEN NGUYEN, ERIKA DEMETEROVA, ROSTISLAV ZHURAVSKIY, STEFAN DEMETER, SHAHBAZ HAIDER, VALENTINA RODRIGUEZ, CHANTELLE MELENDEZ, and DOE 28 d/b/a PANTHEREBOOK. COM, Defendants.
[PROPOSED] DEFAULT JUDGMENT, PERMANENT INJUNCTION, AND POST-JUDGMENT RELIEF ORDER
LEWIS A. KAPLAN, DISTRICT JUDGE
Plaintiffs Bedford, Freeman & Worth Publishing Group, LLC d/b/a Macmillan Learning ("Macmillan Learning"), Cengage Learning, Inc. ("Cengage"), Elsevier Inc. ("Elsevier"),
McGraw Hill LLC, formerly McGraw-Hill Global Education Holdings, LLC ("McGraw Hill"), and Pearson Education, Inc. ("Pearson") (collectively, "Plaintiffs") initiated this action on November 13, 2019 against Doe Defendants. Compl., ECF No. 1. At the same time that they filed the Complaint, Plaintiffs filed an Ex Parte Application for Temporary Restraining Order, Order to Show Cause Why a Preliminary Injunction Should Not Issue, Order Authorizing Expedited Discovery, and Order Authorizing Alternative Service (the "Application"), which the Court granted on November 13, 2019. Ex Parte Order, ECF No. 3. Plaintiffs served the Doe Defendants by email with the original Complaint, Summons, Ex Parte Order, and papers filed in support of the Application. See Decl, of Service, ECF No. 6. After a show cause hearing, at which the Doe Defendants did not appear, the Court issued a Preliminary Injunction on December 10, 2019. Prelim. Inj., ECF No. 13. After conducting expedited discovery, Plaintiffs filed an Amended Complaint on June 11, 2020 (ECF No. 23) and a Second Amended Complaint on December 11, 2020 (ECF No. 78), naming as defendants Trung Kien Nguyen, Duy Anh Nguyen, Duong Thi Bay, Xuan Chinh Nguyen, Tuan Anh Nguyen, Vinh Ngoc Nguyen, Le Trang, Van Quynh Pham, Thi Lien Phuong Nguyen, Van Tuan Dang, Hien Vo Van, Quang Nguyen, Vu Nguyen Khang, Jessica Goldberg, Maxim Gubceac, Tracey Lum, Rodney Mouzone, Zainee Jallal, Bin Li, Pan Pan Cao, Michael McEvilley, Ion Sobol, Haseeb Anjum, Waleska Camacho, Anjum Akhter, Susan Ragon, Aliff Syukri Hamdan, Kim Hai Long, Khuyen Nguyen, Erika Demeterova, Rostislav Zhuravskiy, Stefan Demeter, Shahbaz Haider, and Doe 28 d/b/a pantherebook.com ] (hereinafter, "Defendants").
On January 1, 2020, McGraw Hill LLC became the successor in interest to McGraw-Hill Global Education Holdings, LLC.
In the Amended Complaint, in connection with pantherebook.com, Plaintiffs named two persons who later claimed to be victims of identity theft. Accordingly, per agreement of the parties, Plaintiffs voluntarily dismissed them from the suit. In the Second Amended Complaint, Plaintiffs reverted the name of this Defendant, whose true identify remains unknown, to Doe 28 d/b/a pantherehook.com.
Plaintiffs served the Amended Complaint and Summons on Defendants by email pursuant to the Court's June 17, 2020 and July 18, 2020 Orders allowing continued service by email (ECF Nos. 31 & 51), other than with respect to Defendants Zhuravskiy and McEvilley, whom Plaintiffs served on June 27, 2020 and August 31, 2020, respectively, Affid. of Service, ECF No. 44; Certificate of Service, ECF Nos. 53, 84. Plaintiffs served the Second Amended Complaint on Defendants by email on December 11, 2020, other than Defendants Zhuravskiy and McEvilley, whom Plaintiffs served on the same date by certified mail and email to counsel with consent, respectively. Certificate of Service, ECF No, 81. No Defendant filed an Answer or otherwise responded to the Complaint, Amended Complaint, or Second Amended Complaint.
On January 7, 2021 and March 15, 2021, the Clerk of Court entered a Certificates of Default as to Defendants. Certificates of Default, ECF No. 87. 90.
On May 12, 2021, Plaintiffs submitted a motion, a memorandum of law, and declarations in support of their request for a default judgment, a permanent injunction, and post-judgment relief ("Motion") against Defendants pursuant to, inter alia, Rules 55(b) and 65(d) of the Federal Rules of Civil Procedure. On September 8, 2021, Plaintiffs submitted a letter with a superseding Proposed Default Judgment, Permanent Injunction, and Post-Judgment Relief.
Having reviewed the Second Amended Complaint, Plaintiffs' papers filed in support of the Motion, and the entire record herein, the Court HEREBY FINDS that:
A. Plaintiffs are higher education publishers. Plaintiffs' publications include physical and digital textbooks that are widely available in the United States to consumers and sold through direct sales channels and legitimate distributors and stores, including through online sales.
B. Defendants own and/or operate websites through which they have infringed Plaintiffs' federally registered copyrighted works or derivative works identified on Appendix A hereto. Defendants' websites at issue in this action ("Infringing Sites") are identified on Appendix B hereto. Appendix B also lists Defendants' names, "Group" numbers if applicable, aliases, and email addresses as identified by Plaintiffs through expedited discovery. The Defendants in Groups 1 through 5, as identified on Appendix B, jointly operate then respective Infringing Sites and, therefore, are jointly and severally liable to Plaintiffs as set forth herein.
C. Defendants have been properly served in this action with the Complaint, Amended Complaint, Second Amended Complaint, and Summonses;
D. Because Defendants have not filed Answers or otherwise responded to the Complaint, Amended Complaint, or Second Amended Complaint or otherwise appeared in this action, the Clerk of Court entered default against Defendants on January 7, 2021;
E. The Court has personal jurisdiction over Defendants pursuant to N.Y. C.P.L.R. §§ 302(a)(1) and (3) (and over Defendant Zhuravskiy pursuant to N.Y. C.P.L.R. § 301);
F. Plaintiffs own or exclusively control the rights in copyright in and to their respective copyrighted works described on Appendix A hereto;
G. Defendants have willfully infringed Plaintiffs' copyrights in connection with Defendants' reproduction and/or distribution of unauthorized digital copies of Plaintiffs' textbooks, and Defendants, therefore, are liable for willful copyright infringement under the Copyright Act, 17 U.S.C. §§ 101, et seq.;
H. Defendants' willful infringement of Plaintiffs' copyrights has caused Plaintiffs irreparable harm;
I. As a result of Defendants' unlawful conduct, Plaintiffs are entitled to the entry of a final judgment and permanent injunction against Defendants.
NOW, THEREFORE, IT IS HEREBY ORDERED, in accordance with Federal Rule of Civil Procedure 65(d) and the Copyright Act, that Defendants, their officers, agents, servants, employees, and attorneys, and all those in active concert or participation with any of them, who receive actual notice of this Order, are permanently enjoined from directly or indirectly infringing the copyrights owned or exclusively controlled by any of the Plaintiffs, or any parent, subsidiary, or affiliate of a Plaintiff, whether now in existence or later created ("Plaintiffs' Copyrights"), including any copyrighted work published under any of the imprints identified on Appendix C hereto.
Without limiting the foregoing, IT IS FURTHER ORDERED that Defendants, their officers, agents, servants, employees, and attorneys, and all those in active concert or participation with any of them, who receive actual notice of this Order, are permanently enjoined from engaging in any of the following acts:
1) Copying, reproducing, manufacturing, importing, downloading, uploading, transmitting, distributing, selling, offering for sale, advertising, marketing, promoting, or otherwise exploiting any of Plaintiffs' Copyrights without Plaintiffs' express written authorization; or enabling, facilitating, permitting, assisting, soliciting, encouraging, or inducing others to engage in such activities; and
2) Using, hosting, operating, maintaining, creating, providing, or registering any computer server, website, domain name, domain name server, cloud storage, e-commerce platform, online advertising service, financial service, or social media platform to infringe or to enable, facilitate, permit, assist, solicit, encourage, or induce the infringement of Plaintiffs' Copyrights.
IT IS FURTHER ORDERED that after ten (10) business days following actual notice of this Order, the registries and/or the individual registrars shall transfer the domain names of all
Infringing Sites listed in Appendix B to the ownership and control of Plaintiffs, through the registrar of Plaintiffs' choosing, or at Plaintiffs' direction release such domain names.
IT IS FURTHER ORDERED that, pursuant to 17 U.S.C. § 504(c), Plaintiffs' request for statutory damages under the Copyright Act is granted, and Plaintiffs are awarded statutory damages against Defendants for their willful infringement as follows:
IT IS FURTHER ORDERED that, in accordance with the Federal Rules of Civil Procedure and this Court's inherent equitable powers to issue remedies ancillary to its authority to provide final relief, Defendants, their officers, agents, servants, employees, and attorneys, and all those in active concert or participation with any of them, who receive actual notice of this Order, and any credit card companies, credit card processing agencies, merchant acquiring banks, or other /Companies or agencies that engage in the processing or transfer of money and/or other assets 'Financial Institutions") who receive actual notice of this Orden m«k. immediately cease transferring, withdrawing, or otherwise disposing of any money or other assets in accounts holding or receiving money or other assets of Defendants', or in which Defendants have an interest (with "Defendants" for purposes of this provision meaning those persons described by the names, aliases, and/or email addresses identified on Appendix B hereto), including but not limited to those accounts specified on Appendix D hereto ("Defendants' Accounts"), or allowing such money or other assets in Defendants' Accounts to be transferred, withdrawn, or otherwise disposed of, until such time as the judgment set forth herein is satisfied.
IT IS FURTHER ORDERED that the stay to enforce a judgment imposed by Federal Rule of Civil Procedure 62(a) is hereby dissolved, and Plaintiffs may immediately enforce the judgment set forth herein.
IT IS FURTHER ORDERED that in accordance with the Federal Rules of Civil Procedure and this Court's inherent equitable powers to issue remedies ancillary to its authority to provide final relief, Financial Institutions holding currently restrained assets in Defendants' Accounts shall release such assets to Plaintiffs in partial satisfaction of the damages award set forth herein within ten (10) business days following actual notice of this Order.
IT IS FURTHER ORDERED that Defendants shall deliver to Plaintiffs for destruction all copies of Plaintiffs' textbooks, other copyrighted works, or derivative works thereof, that Defendants have in their possession, custody, or control, and all devices by means of which such copies have been created, pursuant to 17 U.S.C. § 503.
IT IS FURTHER ORDERED that this Court shall retain jurisdiction over the parties and the subject matter of this litigation for the purpose of interpretation and enforcement of this Permanent Injunction, FINAL JUDGMENT is hereby entered in favor of Plaintiffs against Defendants Trung Kien Nguyen, Duy Anh Nguyen, Duong Thi Bay, Xuan Chinh Nguyen, Tuan Ann Nguyen, Vinh Ngoc Nguyen, Le Trang, Van Quynh Pham, Thi Lien Phuong Nguyen, Van Tuan Dang, Hien Vo Van, Quang Nguyen, Vu Nguyen Khang, Jessica Goldberg, Maxim Gubceac, Tracey Luna, Rodney Mouzone, Zainee Jallal, Bin Li, Pan Pan Cao, Michael McEvilley, Ion Sobol, Haseeb Anjum, Waleska Camacho, Anjum Akhter, Susan Ragon, Aliff Syukri Hamdan, Kim Hai Long, Khuyen Nguyen, Erika Demeterova, Rostislav Zhuravskiy, Stefan Demeter, Shahbaz Haider, and Doe 28 d/b/a pantherebook.com in the total amount of $6,150,000, as described above, plus post- judgment interest calculated at the rate set forth in 28 U.S.C. § 1961.
It is SO ORDERED.