Opinion
Civil No. 3:05cv1771 (JBA).
July 28, 2006
RULING ON MOTION FOR DEFAULT JUDGMENT [Doc. # 15]
Plaintiffs in this copyright infringement case move for default judgment [Doc. # 15] against defendant Greg Armstrong, who was defaulted on January 30, 2006, for failure to appear or plead, see [Doc. # 10]. Defendants seek statutory damages in the amount of $7,500 and costs in the amount of $407.05. For the reasons that follow, defendants' motion will be granted.
I. Factual Background
The complaint [Doc. # 1] alleges the following facts, which are presumed to be true following entry of default. See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004) ("[A] default is an admission of all well-pleaded allegations against the defaulting party."); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981) (following default, court should accept "as true all of the factual allegations of the complaint, except those relating to damages."); Charter Communs. v. Rodriguez, 425 F. Supp. 2d 282, 284 (D. Conn. 2006) (same).
Plaintiffs are London-Sire Records, Capitol Records, Sony BMG Music Entertainment, Atlantic Recording Corporation, Arista Records, Warner Bros. Records, and UMG Recordings, who are the copyright owners and/or licensees of ten songs listed in Appendix A to the complaint. Defendant is an individual residing in Connecticut. Plaintiffs allege that "Defendant, without the permission or consent of Plaintiffs, has used, and continues to use, an online media distribution system to download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public, and/or make the Copyrighted Recordings available for distribution to others." Compl. ¶ 15.
II. Liability
"Plaintiffs must satisfy two requirements to present a prima facie case of direct [copyright] infringement: (1) they must show ownership of the allegedly infringed material and (2) they must demonstrate that the alleged infringers violate at least one exclusive right granted to copyright holders under 17 U.S.C. § 106." AM Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). Users of online music distribution systems are "direct infringers." Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., ___ U.S. ___, 125 S. Ct. 2764, 2776 (2005); see also In re Aimster Copyright Litig., 334 F.3d 643, 645 (7th Cir. 2003) ("If the music is copyrighted, [computer file] swapping, which involves making and transmitting a digital copy of the music, infringes copyright. The swappers . . . are the direct infringers."). In particular, such users "violate plaintiffs' reproduction rights." AM Records, Inc., 239 F.3d at 1014.
Plaintiffs' complaint states that they each are the owners or licensees of the copyrights of the ten listed songs, Compl. ¶ 13, and that they possess the "exclusive rights to reproduce the Copyrighted Recordings and to distribute the Copyrighted Recordings to the public," id. ¶ 14. They further allege that they have placed notice of their copyrights on "each respective album cover. . . ." Id. ¶ 16. Based on these allegations, plaintiffs have sufficiently shown ownership of the infringed material, and actual infringement by defendant through downloading and reproducing and/or distributing the ten copyrighted recordings.
III. Statutory Damages
Title 17 U.S.C. § 504(c)(1) provides for minimum statutory damages of $750 for each act of copyright infringement. If the infringement is found to be willful, damages may be increased up to $150,000, or if a court finds that a defendant committed innocent infringement, "the court in its discretion may reduce the award of statutory damages to a sum of not less than $200." 17 U.S.C. § 504(c)(2). Plaintiffs in this case do not claim willfulness damages, and a defaulting defendant cannot, as a matter of law, sustain his burden of proving innocent infringement. D.C. Comics Inc. v. Mini Gift Shop, 912 F.2d 29, 35 (2d Cir. 1990). Therefore the standard amount of statutory damages applies. Id.
In addition, plaintiffs need not prove actual damages to be entitled to statutory damages. Columbia Pictures Television, Inc. v. Krypton Broad. of Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir. 1997), cert. denied, 534 U.S. 1127 (2002) ("A plaintiff may elect statutory damages regardless of the adequacy of the evidence offered as to his actual damages and the amount of defendant's profits."); see also Twin Peaks Productions, Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1380 (2d Cir. 1993) ("Once a plaintiff has elected statutory damages, it has given up the right to seek actual damages. . . .").
Statutory damages are to be awarded for infringement of "any one" copyrighted "work." 17 U.S.C. § 504(c)(1). Therefore it is appropriate in this case to award separate statutory damages for infringement for each of the ten songs listed in the complaint.WB Music Corp. v. RTV Communication Group, Inc., 445 F.3d 538, 540-41 (2d Cir. 2006) (holding plaintiffs should be granted 13 statutory damage awards against defendant who unlawfully sold compilation CD with 13 different copyrighted songs, because "[e]ach of the plaintiffs' separate copyrighted works constitutes one work for purposes of § 504(c)(1)."). Accordingly, defendants are entitled to statutory damages of $7,500.
IV. Injunction
Under 17 U.S.C. § 502, a court may grant "temporary or final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright." A permanent injunction generally is proper where liability for infringement has been established, see Malden Mills, Inc. v. Regency Mills, Inc., 626 F.2d 1112, 1114 (2d Cir. 1980); Lottie Joplin Thomas Trust v. Crown Publishers, Inc., 592 F.2d 651, 654-55 (2d Cir. 1978), and is particularly appropriate where money damages are insufficient to deter future violations. See D.C. Comics, 912 F.2d at 36; Lauratex Textile Corp. v. Allton Knitting Mills, Inc., 519 F. Supp. 730, 732 (S.D.N.Y. 1981).
As plaintiffs argue, defendant's infringement via an online media distribution system has left them vulnerable to further infringement because other users of the system can download the infringed songs repeatedly. Defendant Armstrong, by failing to appear or plead, has indicated his unwillingness to be bound by the copyright laws and forego use of this online media distribution system to download and copy the ten infringed works. Thus a permanent injunction against further infringing plaintiffs' ten recordings or any future recordings is appropriate, as is an injunction requiring defendant to destroy any copies of plaintiffs' recordings that defendant has downloaded, and defendant will be so enjoined.
V. Costs
Plaintiffs also seek costs in the amount of $407.05. Title 17 U.S.C. § 505 provides that "the court in its discretion may allow the recovery of full costs by or against any party" who prevails in a copyright suit. "The categories of costs allowable under the Copyright Act and Rule 54 are the same. Traditionally, `although not required to do so, courts routinely award costs to the prevailing party in copyright cases.'" Arclightz and Films Pvt. Ltd. v. Video Palace Inc., 303 F. Supp. 2d 356, 365 (S.D.N.Y. 2003) (quoting Nat'l Football League v. PrimeTime 24 Joint Venture, 131 F. Supp. 2d 458, 484 (S.D.N.Y. 2001)) (collecting cases).
Attorney Alexander D. Pencu has submitted an affidavit attesting to the total amount of plaintiffs' costs, but has provided no information or supporting documentation identifying the nature of those costs. Local Rule 54 requires a party seeking costs to "file with the Clerk and serve on all other parties a verified bill of costs . . . setting forth each item of costs that is claimed." D. Conn. L. Civ. R. 54(a).
Although plaintiffs have not submitted a verified bill of costs, the Court takes judicial notice of documentation in the file indicating that plaintiffs paid a filing fee of $250 [Civil Cover Sheet] and service of process fees of $157.05. Return of Service [Doc. # 4]. Accordingly, plaintiffs may recover costs in the amount of $407.05.
VI. Conclusion
Accordingly, plaintiffs' motion for default judgment [Doc. # 15] is GRANTED and default judgment shall enter in plaintiffs' favor in the amount of $7,907.05 ($7,500 statutory damages + $407.05 costs).
Defendant is hereby permanently enjoined from directly or indirectly infringing plaintiffs' rights under federal or state law in the following copyrighted sound recordings
1. "Can't Take Me Home," on album "Can't Take Me Home," by artist Pink (SR# 279-958)
2. "Hot for Teacher" on album "1984 (MCMLXXXIV)" by artist Van Halen (SR# 52-319)
3. "Mysterious Ways" on album "Achtung Baby" by artist U2 (SR# 139-599)
4. "Sunday Bloody Sunday" on album "War" by artist U2 (SR# 42-944)
5. "One Step Beyond" on album "One Step Beyond" by artist Madness (SR# 16-959)
6. "Girls on Film" on album "Duran Duran" by artist Duran Duran (SR# 32-401)
7. "Smooth Operator" on album "Diamond Life" by artist Sade (SR# 69-105)
8. "Tonight, Tonight, Tonight" on album "Genesis Archive 2 — 1976-1992" by artist Genesis (SR# 303-765)
9. "One Flight Down" on album "Come Away With Me" by artist Norah Jones (SR # 320-120)
10. "When Love Comes to Town" on album "Rattle Hum" by artist U2 (SR # 99-818)
and any other sound recording, whether now in existence or later created, that is owned or controlled by the plaintiffs (or any parent, subsidiary, or affiliate record label of plaintiffs) ("plaintiffs' recordings"), including without limitation by using the Internet or any online media distribution system to reproduce (i.e., download) any of plaintiffs' recordings, to distribute (i.e., upload) any of plaintiffs' recordings, or to make any of plaintiffs' recordings available for distribution to the public, except pursuant to a lawful license or with the express authority of plaintiffs.
Defendant also shall destroy all copies of plaintiffs' recordings that defendant has downloaded onto any computer hard drive or server without plaintiffs' authorization and shall destroy all copies of those downloaded recordings transferred onto any physical medium or device in defendant's possession, custody or control.
IT IS SO ORDERED.