United States District Court, D. Maryland
REPORT AND RECOMMENDATION
Timothy J. Sullivan United States Magistrate Judge.
Report and Recommendation addresses the Motion for Default
Judgment (“Motion”) (ECF No. 35) filed by
Plaintiff DISH Network L.L.C. (“DISH”) against
Defendant Tareq Hasweh (“Hasweh”). Hasweh has not
filed a response and the time for doing so has passed.
See Loc. R. 105.2(a). On March 21, 2019, in
accordance with 28 U.S.C. § 636 and pursuant to Local
Rule 301.6, Judge Chuang referred this case to me for a
report and recommendation on DISH's Motion. (ECF No. 38.)
I find that a hearing is unnecessary in this case.
See Fed. R. Civ. P. 55(b)(2); Loc. R. 105.6. For the
reasons set forth below, I respectfully recommend that the
DISH's Motion be granted.
FACTUAL AND PROCEDURAL HISTORY
DISH's First Amended Complaint (ECF No. 17), it sued
Defendants Dima Furniture, Inc. (“Dima”),
Mohammad Yusif (“Yusif”), and Hasweh,
individually and collectively doing business as Spider-TV
(collectively, the “Defendants”). In Count I,
DISH brought a claim for Direct Copyright Infringement, in
violation of 17 U.S.C. § 501, against Hasweh. In Count
II, DISH brought a claim for Contributory Copyright
Infringement, in violation of 17 U.S.C. § 501, against
Dima and Yusif. On May 23, 2018, based upon the joint
stipulation of DISH, Dima, and Yusif, the Court entered a
Final Judgment and Permanent Injunction awarding judgment to
DISH on Count II of its First Amended Complaint against Dima
and Yusif. (ECF No. 23.) Because of the Final Judgment and
Permanent Injunction, DISH's only remaining claim in this
case is the claim that it asserted against Hasweh.
was personally served with the First Amended Complaint and
summons (see ECF No. 28), but he did not file an
answer or responsive pleading within the requisite time
period. On October 2, 2018, DISH moved for the
Clerk's entry of default (ECF No. 31), and the Clerk
entered default against Hasweh on October 10, 2018 (ECF No.
32.) Thereafter, DISH sought leave of Court to file a motion
for default judgment against Hasweh, as required by the Case
Management Order. (ECF No. 33.) The Court granted DISH leave
to file its proposed motion (ECF No. 34), and on November 6,
2018, DISH filed the Motion. Hasweh has not responded.
Standard for Entry of Default Judgment
determining whether to award a default judgment, the Court
accepts as true the well-pleaded factual allegations in the
complaint as to liability. See Ryan v. Homecomings Fin.
Network, 253 F.3d 778, 780-81 (4th Cir. 2001);
United States ex rel. Durrett-Sheppard Steel Co. v. SEF
Stainless Steel, Inc., No. RDB-11-2410, 2012 WL 2446151,
at *1 (D. Md. June 26, 2012). Nonetheless, the Court must
consider whether the unchallenged facts constitute a
legitimate cause of action, since a party in default does not
admit mere conclusions of law. Ryan, 253 F.3d at
780. Although the Fourth Circuit has a “strong policy
that cases be decided on the merits, ” United
States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir.
1993), default judgment “is appropriate when the
adversary process has been halted because of an essentially
unresponsive party.” S.E.C. v. Lawbaugh, 359
F.Supp.2d 418, 421 (D. Md. 2005). If the Court determines
that liability is established, the Court must then determine
the appropriate amount of damages. CGI Finance, Inc., v.
Johnson, No. ELH-12-1985, 2013 WL 1192353, at *1 (D. Md.
March 21, 2013). The Court does not accept factual
allegations regarding damages as true, but rather must make
an independent determination regarding such allegations.
Durrett-Sheppard Steel Co., 2012 WL 2446151 at *1.
after entry of default, the plaintiff's complaint does
not specify a “sum certain” amount of damages,
the Court may enter a default judgment against the defendant
pursuant to Fed.R.Civ.P. 55(b)(2). A plaintiff's
assertion of a sum in a complaint does not make the sum
“certain” unless the plaintiff claims liquidated
damages; otherwise, the complaint must be supported by
affidavit or documentary evidence. United States v.
Redden, No. WDQ-09-2688, 2010 WL 2651607, at *2 (D. Md.
June 30, 2012). Rule 55(b)(2) provides that “the court
may conduct hearings or make referrals . . . when, to enter
or effectuate judgment, it needs to . . . determine the
amount of damages.” The Court is not required to
conduct an evidentiary hearing to determine damages, however;
it may rely instead on affidavits or documentary evidence in
the record to determine the appropriate sum. See,
e.g., Mongue v. Portofino Ristorante, 751
F.Supp.2d 789, 795 (D. Md. 2010).
establish copyright infringement liability, a plaintiff must
prove two elements: (1) ownership of the copyright; and (2)
copying of original constituent elements by the
defendant.” Malibu Media, LLC v. Redacted, No.
DKC-15-0750, 2016 WL 3668034, at *2 (D. Md. July 11, 2016)
(citing 17 U.S.C. § 501(a) and Feist Publ'ns,
Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)).
“[T]he Copyright Act does not require that the
infringer know that he is infringing or that his conduct
amount to a willful violation of the copyright owner's
rights.” CoStar Grp., Inc. v. LoopNet, Inc.,
373 F.3d 544, 549 (4th Cir. 2004) (noting that while
copyright infringement is a strict liability tort, “it
nonetheless requires conduct by a person who causes in some
meaningful way an infringement”).
following facts are taken from the First Amended Complaint
(ECF No. 17) and DISH's Memorandum in support of its
Motion (ECF No. 35-1). DISH alleges that it is the
“fourth largest pay-television provider in the United
States.” (ECF No. 17 ¶ 11.) It delivers
copyrighted programming to its subscribers throughout the
United States “by means of satellite delivery and
over-the-top (“OTT”) services whereby programming
is delivered using a public Internet infrastructure.”
(Id.) DISH contracts for and purchases rights for
the international channels that it distributes from networks
and their agents, including MBC FZ LLC, International Media
Distribution (Luxembourg) S.A.R.L., World Span Media
Consulting, Inc., Peninsula Production Company, and Dream
Media (collectively, the “Networks”).
(Id. ¶ 12.) Among other channels, DISH
distributes Arabic-language channels owned by the Networks,
including Al Arabiya, Al Hayah 1, Al Jazeera Arabic News, Al
Jazeera Mubasher, Al Nahar, Al Nahar Drama, Al Nahar Sport,
ART Cinema, Dream 2, Future TV, Hekayat, Iqraa, LBC, LDC,
MBC1, MBC Drama, MBC Kids (a/k/a MBC3), MBC Masr, Murr TV
(a/k/a MTV Lebanon), NBN, New TV (a/k/a Al Jadeed), Noursat,
ONTV, and OTV (collectively, the “Protected
Channels”). (Id.) The Networks own the
copyrights for the works that air on their respective
entered into contracts with the Networks for “the
exclusive right to distribute and publicly perform the works
that air on the Protected Channels in the United States by
means including satellite, OTT, Internet protocol television
(‘IPTV'), and Internet.” (Id. ¶
13.) In addition to the unregistered copyrighted works that
aired on the Protected Channels during the relevant times, at
least eight works that aired on the Protected Channels are
registered with the United States Copyright Office.
all relevant times, Defendants owned and operated a streaming
television service called Spider-TV (the
“Service”). (Id. ¶ 14.) Hasweh
established the Service and continues to own and control it,
as well as the computer servers that retransmit the Protected
Channels, and the Service's website. (Id. ¶
15.) Hasweh arranged for set-top boxes for the Service to be
shipped to the United States and sought out vendors to
distribute the set-top boxes for him within the United
States. (Id.) Yusif, the founder of Dima,
advertised, sold, and distributed set-top boxes and service
plans for the Service in the United States. (Id.
¶ 16.) Yusif registered “Spider-TV” as a
trade name of Dima with Maryland's Department of
Assessments and Taxation Charter Division on July 8, 2015.
use the Service to unlawfully retransmit DISH's Protected
Channels to customers of Spider-TV in the United States. To
do so, Hasweh captures live broadcast signals of the
Protected Channels and transmits the Protected Channels to
Spider-TV users in the United States through OTT delivery.
(Id. ¶ 18.) Hasweh has advertised his service
on Facebook and on the official website for the Service,
located at www.spider-tv.com. (Id. ¶¶
19-21.) Users of the Service may view the Protected Channels
by purchasing a set-top box on the Service's website for
$199, which includes 13 months of access to the Service.
(Id. 23.) Defendants also sell service plan
extensions. (Id. ¶ 24.)
have actual knowledge that their retransmission of the
Protected Channels through the Service infringes the
copyrights that DISH acquired through its contracts with the
Networks. (Id. ¶ 27.) DISH and the Networks
sent at least 32 notices of infringement to the Defendants in
2017, demanding that the Defendants cease the retransmission
of the Protected Channels. (Id. ¶ 27.)
Defendants did not respond to the notices of infringement or
cease violating DISH's copyrights as requested.
(Id.) DISH also sent at least 33 notices of
infringement to the Internet service providers associated
with the service in 2017. (Id. ¶ 28.) At least
some of the notices were forwarded to the Defendants.
(Id.) Rather than complying with DISH's
requests, the Defendants interfered with the efforts of the
Internet service providers to remove the unauthorized content
by transmitting the Protected Channels from different
Ownership of Valid Copyright
works shown on the Protected Cannels were authored and first
published in the United Arab Emirates, Qatar, Egypt, and
Lebanon, which are all parties to copyright treaties with the
United States. (Id. ¶ 31.) These works are
therefore subject to the protections afforded by the
Copyright Act pursuant to 17 U.S.C. 104(b)(2). By its agreements
with the Networks, DISH held the exclusive right to
distribute and publicly perform the works shown on the
Protected Channels at all relevant times. See 17
U.S.C. §§ 201(d), 204(a) (authorizing transfer of
rights protected under the Copyright Act by signed, written
agreement). As the exclusive licensee, DISH is permitted to
sue for Hasweh's infringement of its rights under the
Copyright Act. See 17 U.S.C. § 501(b)
(“The legal or beneficial owner of an exclusive right
under a copyright is entitled . . . to institute an action
for any infringement of that particular right committed while
he or she is the owner of it.”). Accepting the
allegations in DISH's First Amended Complaint as true,
DISH has established that it held the exclusive right to
distribute and publicly perform the works shown on the
Protected Channels in the United States at all relevant
times, and that it therefore holds the copyrights in the
violated DISH's exclusive rights under 17 U.S.C. §
106 by distributing and performing the copyrighted programs
that air on the Protected Channels in the United States
through use of the Service. (ECF No. 17 ¶ 32.) DISH has
not authorized Hasweh to distribute or publicly perform the
protected works. (Id.) Hasweh's distribution and
performance of the copyrighted programs render him a direct
infringer of DISH's copyrights pursuant to 17 U.S.C. 501
(“Anyone who violates any of the exclusive rights of
the copyright owner . . . is an infringer of the copyright or
right of the author.”). Accepting the allegations in
DISH's First Amended Complaint as true, DISH has
established that Hasweh infringed its copyrights in works
airing on the Protected Channels.
has established that it owned valid copyrights and that
Hasweh directly infringed on these copyrights by distributing
the Protected Works without authorization. DISH has therefore
established Hasweh's liability for direct copyright
infringement under Count I of its First Amended Complaint.
determined that DISH has established Hasweh's liability,
it is now appropriate to determine the damages to which DISH
is entitled. The damages that DISH seeks in its Motion are
appropriate under Rule 54(c) so long as “the record
supports the damages requested.” See Laborers'
Dist. Council Pension v. E.G.S., Inc., No. WDQ-09-3174,
2010 WL 1568595, at *3 (D. Md. Apr. 16, ...