Opinion
18-CV-10951 (GBD) (OTW)
09-28-2022
MALIBU MEDIA, LLC, Plaintiff, v. MATTHEW TAGLIALAVORE, Defendant.
Honorable George B. Daniels, United States District Judge
REPORT & RECOMMENDATION
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE
I. Introduction
Plaintiff Malibu Media, LLC (“Plaintiff”) filed suit on November 22, 2018 against Defendant, whose identity was then unknown, for copyright infringement. (ECF 1). After the issuance of a third-party subpoena, Defendant's Internet Service Provider (“ISP”) disclosed Defendant's true identity to Plaintiff. (ECF 37). Plaintiff then filed an Amended Complaint against Matthew Taglialavore (“Defendant”). (ECF 37). Plaintiff served Defendant with a Summons and Amended Complaint on May 11, 2019. (ECF 29).
After Defendant failed to respond to the complaint, Plaintiff obtained a clerk's certificate of default on June 10, 2019. (ECF 34). Judge Daniels subsequently granted Plaintiff's motion for default judgment. (ECF 39). The matter was then referred to me for an inquest on damages. (ECF 38). Having reviewed Plaintiff's submissions, for the reasons below, I recommend that Plaintiff be awarded $9,000.
II. Background
Plaintiff, a limited liability media company, registered with the U.S. Copyright Office various original works. (Amended Complaint (“Am. Compl.”) (ECF 21) ¶ 22). Plaintiff alleges that Defendant used the BitTorrent file distribution network (“BitTorrent”) to download, copy, and distribute a complete copy of Plaintiff's works without authorization. (Am. Compl. ¶¶ 17-22). Plaintiff now brings a claim of copyright infringement, seeking an award of statutory damages, attorney's fees and costs, and injunctive relief.
III. Discussion
a. Inquest Standard
Even though a complaint's factual allegations are presumed true in the event of a default, damages allegations are not entitled to the same presumption. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). Plaintiff must still supply an evidentiary basis for the specific damages amount sought. Santana v. Latino Express Restaurants, Inc., 198 F.Supp.3d 285, 292 (S.D.N.Y. 2016).
An inquest into damages may be conducted without an evidentiary hearing. See Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53-54 (2d Cir. 1993); Maldonado v. La Nueva Rampa, Inc., No. 10-CV-8195 (LLS) (JLC), 2012 WL 1669341, at *2 (S.D.N.Y. May 14, 2012) (“[A] hearing is not required where a sufficient basis on which to make a calculation exists.”). In this case, no hearing was requested or held, as the damages awarded can be ascertained “with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999).
b. Jurisdiction and Venue
This Court has proper subject-matter jurisdiction over the case as Plaintiff brings his claim under the Copyright Act. See 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1338(a) (copyrights). The Court also has general personal jurisdiction over Defendant; as Plaintiff alleges in the Amended Complaint, Am. Compl. ¶ 9, Defendant resides at 330 East 39th Street, Apt. 4N, New York, New York. Venue is also proper, as Defendant's address is in Manhattan which is within the Southern District of New York.
c. Liability
Copyright infringement contains two elements: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” See Arista Records, LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010). Here, Plaintiff alleges that he is the sole holder of the copyrights in question, and that Defendant used distributed those copyrights without obtaining Plaintiff's permission. (Am. Compl. ¶ 23). Plaintiff further alleges that Defendant is a “habitual and persistent” BitTorrent user and copyright infringer. (Am. Compl. ¶ 25). Accordingly, Plaintiff has adequately pleaded a copyright infringement claim.
d. Damages
Pursuant to 17 U.S.C. §504(a), Plaintiff has elected to recover statutory damages instead of its actual damages. (ECF 42 at 2). The relevant statute allows for up to $30,000 for infringements of a particular work, or, if the plaintiff can show that the infringement “was committed willfully,” up to $150,000. 17 U.S.C. § 504(c)(1)-(2). Although willfulness may be shown through the defendant's knowledge, willfulness may also be “inferred from a failure to appear and defend the action.” Van Der Zee v. Greenidge, No. 03-CV-8659 (RLE), 2006 WL 44020, at *3 (S.D.N.Y. Jan. 6, 2006). Because Defendant has failed to respond to the complaint or appear in this action (ECF 39), the Court can infer that Defendant's infringement was willful.
Although statutory damages are capped at $150,000 for willful infringement, the “district judge has wide discretion in setting the statutory damage award.” See Island Software and Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 265 (2d Cir. 2005). In determining the amount of statutory damages, courts in this Circuit consider the following factors in determining the amount of statutory damages:
(1) the infringer's state of mind; (2) the expenses saved, and profits earned, by the infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the infringer and third parties; (5) the infringer's cooperation in providing evidence concerning the value of the infringing material; and (6) the conduct and attitude of the parties.Myeress v. Elite Travel Group USA, No. 18 Civ. 340 (AJN), 2018 WL 5961424, at *3 (S.D.N.Y. Nov. 14, 2018) (quoting Bryant v. Media Right Productions, 603 F.3d 135, 144 (2d Cir. 2010)).
Because Defendant has failed to appear or provide any records or discovery in this action, the Court is unable to determine his state of mind (factor 1), the value of the infringing material (factor 5), the expenses Defendant saved or the profits he gained (factor 2), or the exact revenues that Plaintiff lost as a result of his infringement (factor 3). The Court is able to evaluate the deterrent effect on Defendant and third parties (factor 4) and Defendant's conduct (factor 6). The Court has already determined that Defendant's conduct in infringing the copyrighted material was willful, and the deterrent effect on Defendant and other potential copyright infringers is significant. CJ Prod. LLC v. Your Store Online LLC, No. 11-cv-9513 (GBD) (AJP), 2012 WL 2856068, at *3 (S.D.N.Y. July 12, 2012), report and recommendation adopted, No. 11-cv-9513 GBD AJP, 2012 WL 4714820 (S.D.N.Y. Oct. 3, 2012) (noting that “the goal of deterring similar conduct by other enterprises requires a substantial award”).
The Court finds that the above two factors weigh in favor of awarding statutory damages to Plaintiff. Here, Plaintiff seeks an award of $9,000 in statutory damages, or $1,500 per work, which is twice the minimum statutory damages. (ECF 43 at 7). Such an award is eminently reasonable. Plaintiff contends that its actual damages “far exceed” this sum because Defendant “materially aided” a “swarm of infringers” that continues to unlawfully violate Plaintiff's copyright. (ECF 43 at 7-8). Plaintiff has further demonstrated that other federal courts have found similar statutory awards reasonable.
See e.g., PHE, Inc. v. Does 1-122, 2014 WL 1856755 (N.D. Ill. May 7, 2014); Malibu Media, LLC v. Brenneman, 2013 WL 6560387 (N.D. Ind. Dec. 13, 2013); Malibu Media, LLC v. Cowham, 2014 WL 2453027 (N.D. Ind. June 2, 2014); Malibu Media, LLC v. Goodrich, 2013 WL 6670236 (D. Colo. Dec. 18, 2013).
e. Attorney's Fees and Costs
A court may award reasonable attorney's fees and costs to a prevailing party in a copyright infringement action pursuant to 17 U.S.C. §505. Although Section 505 still leaves it to the Court's discretion on whether the prevailing party should be awarded fees and costs, willful infringement by the defendant, as here, warrants such an award. See Kepner-Tregoe, Inc. v. Vroom, 186 F.3d 283, 289 (2d Cir. 1999).
Here, Plaintiff does not seek attorney's fees, but does seek to recover the costs of suit. (ECF 43 at 11). Plaintiff seeks reimbursement in the amount of $907.00, consisting of (1) the statutory filing fee of $400.00; (2) ISP fees of $75.00 and $75.00; and (3) process server fees of $119.00 and $238.00. (ECF 37 ¶ 8; ECF 40). While Plaintiff has provided documentation supporting its requests for costs related to process server fees (see ECF 40-3), it has not provided documentation of its ISP fees or statutory filing fee beyond counsel's representation. Plaintiff is therefore not entitled to full recovery of costs. See Whitehead v. Mix Unit, LLC, No. 17-cv-9476 (VSB) (JLC), 2019 WL 384446 at *6 (S.D.N.Y. Jan. 31, 2019), report and recommendation adopted, No. 17-cv-9476 (VSB), 2019 WL 1746007 (S.D.N.Y. Apr. 18, 2019) (declining to award full amount of requested costs absent documentation); Sanchez v. Jyp Foods Inc., No. 16-cv-4472 (JLC), 2018 WL 4502008, at *17 (S.D.N.Y. Sept. 20, 2018) (noting that a party is not entitled to recover costs without adequate substantiation). Courts have, however, taken judicial notice of costs reflected on the docket and awarded those costs even when counsel does not provide supporting documentation. See Whitehead, 2019 WL 384446, at *6 (taking judicial notice of $400 filing fee and denying other costs for lack of documentation); BWP Media USA, Inc. v. Uropa Media, Inc., No. 13-cv-7871 (JSR) (JCF), 2014 WL 2011775, at *4 (S.D.N.Y. May 16, 2014) (taking judicial notice of $350 filing fee and denying other costs for lack of documentation); Malibu Media, LLC v. Greenwood, No. 17-cv-1099 (PAE) (SLC), 2019 WL 7580083, at *5 (S.D.N.Y. Dec. 17, 2019), report and recommendation adopted, No. 17-cv-1099 (PAE) (SLC), 2020 WL 209140 (S.D.N.Y. Jan. 14, 2020). The Court takes judicial notice of the court filing fee of $400, and along with the process server fees of $357.00, recommends an award of $757.00 for costs and denial of all other costs for lack of documentation.
f. Injunctive Relief
While this matter has been referred for an inquest on damages, Plaintiff also asks as part of his inquest papers that injunctive relief be awarded against Defendant. (ECF 43 at 8). In an abundance of caution, I evaluate Plaintiff's request to permanently enjoin Defendant and all other persons in concert or participation with Defendant from continuing to infringe Plaintiff's copyrighted works; and ordering that Defendant delete and permanently remove the digital media files and copies relating to Plaintiff's works from each of the computers in Defendant's possession, custody, and control. (ECF 43 at 8).
The Copyright Act authorizes courts to order permanent injunctive relief to prevent or restrain copyright infringement. 17 U.S.C. § 505(a). The Copyright Act further provides that the court may order the destruction of copies found to have been made or used in violation of the copyright owners' exclusive rights. 17 U.S.C. § 503(b).
To obtain a permanent injunction, a plaintiff “must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006).
Plaintiff has demonstrated that each of these factors are met. Plaintiff has established that Defendant's conduct exposes Plaintiff's works to “viral” copyright infringement. The BitTorrent protocol allows users in a “swarm” to simultaneously upload and download the copyrighted works between and among innumerable other uses, leading to unabated and exponential infringement. (Am. Compl. ¶ 11). Monetary damages are accordingly inadequate to compensate Plaintiff for the injury. See Malibu Media, LLC v. Ofiesh, No. 16-CV-202 (FJS/DEP), 2017 U.S. Dist. LEXIS 93463 at *7 (N.D.N.Y. June 19, 2017) (“[M]onetary damages are insufficient to compensate Plaintiff for the injury it has suffered because such damages will not prohibit future infringement.”); Microsoft Corp. v. Big Boy Distribution LLC, 589 F.Supp.2d 1308, 1321 (S.D. Fla. 2008) (“Generally, a showing of copyright infringement liability and threat of future violations is sufficient to warrant entry of a permanent injunction”). Moreover, there is no hardship to Defendant because a permanent injunction will not require Defendant to do more than simply stop engaging in infringement. Finally, a permanent injunction is in the public interest because “it will protect copyrighted material and encourage compliance with the Copyright Act.” See Malibu Media, LLC v. Ofiesh at 8.
IV. Conclusion
For the foregoing reasons, I recommend that Plaintiff be awarded $9,757 and that the Court grant Plaintiff's request for an injunction permanently enjoining Defendant and any in concert with Defendant from continuing to infringe on Plaintiff's works.
V. Objections
In accordance with 28 U.S.C. §636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also FED. R. CIV. P. 6. A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable George B. Daniels, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Daniels.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
Respectfully submitted,