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Malibu Media, LLC v. Doe

United States District Court, D. Maryland, Southern Division

January 5, 2018

MALIBU MEDIA, LLC, Plaintiff,
v.
JOHN DOE, Defendant.

          REPORT AND RECOMMENDATION

          Charles B. Day United States Magistrate Judge

         This 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.

         The 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.

         It is 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 forth herein.

         I. Procedural History and Background

         The 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.

         Plaintiff 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.

         II. Discussion

         A. Statutory Damages

         Plaintiff 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 $24, 000.

         In 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).

         These 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.

         Having 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.

         B. ...


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