United States District Court, D. Maryland, Southern Division
REPORT AND RECOMMENDATION
Charles B. Day United States Magistrate Judge
Report and Recommendation addresses the Motion for Entry of
Default Judgment (“Plaintiff's Motion”) (ECF
No. 29) filed by Malibu Media, LLC (“Plaintiff”).
On October 20, 2015, Plaintiff brought this action against
John Doe (“Defendant”) for copyright infringement
under 17 U.S.C. §§ 101 et seq. ECF No. 1.
Plaintiff alleges that Defendant used a file-sharing system
to illegally distribute copyrighted materials owned by
Plaintiff. (See Am. Compl., ECF No. 11, ¶ 3).
The Clerk of the Court entered default against Defendant on
March 22, 2017. ECF No. 27. Pursuant to 28 U.S.C. Section
636, and Local Rules 301 and 302, the Honorable Theodore D.
Chuang referred this matter to the undersigned for the making
of a Report and Recommendation concerning default judgment
and/or damages. ECF No. 30.
Court held a hearing on October 19, 2017, (the
“Hearing”), addressing Plaintiff's Motion as
it related to the award of attorneys' fees. The Court
also allowed Plaintiff additional time to supplement the
record. Of continuing concern are the business practices set
forth by trial counsel (“Counsel”) in the
Declaration of Jon A. Hoppe, Esq. In Support of Motion for
Entry of Default Judgment Against [John Doe] (ECF No. 29-5)
(“Counsel's Declaration”), Counsel's
statements at the hearing and subsequent research.
my recommendation that the Court enter default judgment,
GRANT Plaintiff's requested statutory damages in the
amount of $24, 000 as well as its request for permanent
injunctive relief. However, I recommend that Plaintiff's
request for attorney's fees be denied for the reasons set
Procedural History and Background
Amended Complaint asserts that Plaintiff holds the copyrights
to various adult films. Am. Compl., ECF No. 11, ¶ 1; Ex.
2. Individuals can access these films through a website,
X-Art.com, which Plaintiff operates. Mot. for Leave, Field
Decl. ¶¶ 3, 12, ECF No. 2-2. In order to access
these films, Plaintiff's customers pay a subscription fee
of $24.95 per month or $99.95 per year. Id. ¶
12. Plaintiff alleges that many of its films are infringed
upon using a file distribution network known as BitTorrent.
Id. ¶ 16.
identifies BitTorrent as a peer-to-peer file sharing system
used to distribute all manner of electronic content. Am.
Compl. ¶ 10, ECF No. 11. Plaintiff alleges that
Defendant used the BitTorrent network to download, copy, and
distribute at least one bit from each of Plaintiff's
sixteen copyrighted works listed in the Amended Complaint.
Id. ¶ 19; ECF No. 11-1. Defendant did not
respond to these allegations. In reviewing Plaintiff's
Motion, this Court identified certain shortcomings in
Counsel's Declaration, leading this Court to hold the
Hearing and ordering Counsel to provide additional
documentation to support its request for attorney's fees.
requests statutory damages in the amount of $1, 500 per
video, for a total of $24, 000. In lieu of actual damages and
profits, a plaintiff may recover “an award of statutory
damages for all infringements involved in the action . . . in
a sum of not less than $750 or more than $30, 000 as the
court considers just;” for willful violations, the
Court may increase the award of statutory damages to a sum of
not more than $150, 000.” See 17 U.S.C. §
504(c)(1)-(2). “A district court has ‘wide
discretion' and is ‘not required to follow any
rigid formula' in setting damages within the statutory
range. PHE, Inc. v. Does 1-122, Case No. 13-cv-786,
2014 WL 1856755, at *2 (N.D. Ill. May 7, 2014) (citing
Chi-Boy Music v. Charlie Club, Inc., 930 F.2d 1224,
1229 (7th Cir. 1991)). For the reasons that follow, I
recommend granting Plaintiff's Motion for statutory
damages in the amount of $1, 500 per video, for a total of
setting a statutory damages award in similar cases, courts
have considered a variety of factors, including (1) whether
the defendant was the original provider of the infringed
content to its distribution network; (2) whether, and how
much, the defendant profited or saved in connection with the
infringement; (3) the plaintiff's actual losses; (4) the
deterrent effect of statutory damages; and (5) the
defendant's willfulness and intent in infringing the
plaintiff's protected content. See, e.g.,
Malibu Media, LLC v. Flanagan, Civ. Ac. No.
2:13-cv-5890, 2014 WL 2957701, at *4 (E.D. Pa. July 1, 2014)
(considering factors 1, 2, 3, and 4); Malibu Media, LLC
v. Goodrich, Civ. Ac. No. 12-cv-013940-WYD-MEH, 2013 WL
6670236, at *11 (D. Colo. Dec. 18, 2013) (considering factor
5); Malibu Media, LLC v. Cowham, No.
3:13-cv-00162-PPS-CAN, 2014 WL 2453027, at *2 (N.D. Ind. June
2, 2014) (considering factors 3 and 4).
factors, along with careful consideration of previous
courts' deliberations, weigh in favor of granting
Plaintiff's request here for reasonable statutory
damages. While Plaintiff is unable to provide evidence that
Defendant was the original provider of the infringed content
or profited in any way from the infringement, I am persuaded
by Plaintiff's uncontested assertions that Plaintiff
suffered losses in the form of lost business (through
subscriptions or otherwise) and that a reasonable award of
$1, 500 per infringed work would have a deterrent effect on
Defendant and potential future infringers. Additionally,
while Plaintiff could have chosen to seek the upper echelon
of the statutory limits, Plaintiff's “request of
$1, 500 per work is, in fact, on the low end of the statutory
scale and is also in line with damages awarded in similar
circumstances.” Cowham, 2014 WL 2453027, at
*2; see also, e.g., Flanagan, 2014 WL
2957701, at *4 (granting an award of $1, 500 per
infringement); Malibu Media, LLC v. Brenneman, No.
3:13-332-PPS-CAN, 2013 WL 6560387, at *3 (N.D. Ind. Dec. 13,
2013) (likewise granting an award of $1, 500 per
infringement); and PHE, Inc., 2014 WL 1856755, at
*3. Because Plaintiff chose not to seek a higher amount per
infringement, the issue of willfulness need not be discussed.
considered the relevant factors and applicable case law, I
recommend that the Court grant Plaintiff's request for
statutory damages in the amount of $1, 500 per film, for a
total of $24, 000.