Opinion
8:01CV201.
March, 2002.
MEMORANDUM AND ORDER
This matter is before the court on plaintiffs' (hereinafter, "the distributors") motion for summary judgment. Filing No. 26. This is an action for copyright infringement under 17 U.S.C. § 102. By previous order, this court entered a temporary restraining order prohibiting defendant Pyong Hwangpo from "using, copying, selling, renting, imitating, or infringing" videotapes of certain Korean television programs copyrighted by the plaintiffs and ordered seizure of the infringing videotapes. Filing No. 6. The distributors' motion for a preliminary and permanent injunction was originally scheduled for a hearing, but was continued on the Hwangpo's oral motion for a continuance to enable him to secure representation by an attorney. Filing No. 17. Hwangpo has not secured representation, but filed a pleading construed as an answer. See Filing Nos. 21 and 22. The distributors now move for summary judgment. Hwangpo, proceeding pro se, has not responded to the distributors' motion for summary judgment.
The subject programs are set forth in this court's earlier orders and need not be repeated here. See Filing Nos. 6, 16 and 20. The record reflects that pursuant to the orders approximately 1,800 videotapes were seized by U.S. Marshals on May 8, 2001.
In their motion, the distributors seek a judgment of infringement. They further contend that the evidence establishes that Hwangpo's conduct was willful, and they seek statutory damages under 17 U.S.C. § 504(c)(1) in the amount of $10,000 per instance of infringement, or $390,000. They also seek an award of costs and attorneys' fees.
That statute provides:
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200."
I. FACTS
In support of its motion, plaintiffs have shown that they are authorized distributors of videotaped copies made from mastertapes of Korean television programs copyrighted by three Korean networks, MBC-TV, KBS-TV and SBS-TV. They have thus shown they are the licensees of the legal owners of the subject copyrights. See Attachments to Filing No. 5 (Certificates of Registration of Copyrights). The uncontroverted evidence establishes that Hwangpo has infringed the copyrights. See Attachments to Filing No. 5 (affidavits of Min J. Kim, Kyong Pak Kwon, and Young Sun Lee). Hwangpo essentially admits infringement in his answer. He states, "I had trouble with the distributor. So I did not buy tapes from them and I bought tapes from Chicago." Hwangpo contends in defense only that procuring the videotapes from the distributors was too costly for him. Hwangpo further asserts that he has not profited form the sale of the videotapes. The distributors have also shown that they contacted Hwangpo by letter on March 16, 2001, informed him of his unlawful conduct and requested that he cease renting the videotapes. See Attachments to Filing No. 5 (affidavits of Min J. Kim, Kyong Pak Kwon, and Young Sun Lee).
Hwangpo alleges in his answer that the video store in Chicago had rights from its distributor to "sell, copy, rent" the videotapes and that he acquired those same rights from the Chicago store. There is no evidence to support this bald assertion.
II. DISCUSSION
On a motion for summary judgment, the question before the court is whether the record, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(C); Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995). Where unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Id.
The burden of establishing the nonexistence of any genuine issue of material fact is on the moving party. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Therefore, if a party does not meet its initial burden with respect to an issue, summary judgment must be denied notwithstanding the absence of opposing affidavits or other evidence. Adickes, 398 U.S. at 159-60. However, once a party meets its initial burden of showing there is no genuine issue of material fact, the opposing party may not rest upon the allegations of his or her pleadings but rather must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. See Fed.R.Civ.P. 56(e); Chism v. W.R. Grace Co., 158 F.3d 988, 990 (8th Cir. 1998). The party opposing the motion must do more than simply show that there is some metaphysical doubt as to the material facts; he or she must show there is sufficient evidence to support a jury verdict in his or her favor. Id.
The Copyright Act "seeks to protect `original works of authorship fixed in any tangible medium of expression,' by granting to the author certain exclusive rights," including "the right to reproduce the copyrighted work, and the right to create derivative works from the copyrighted work." United Tel. Co. v. Johnson Publ'g Co., 855 F.2d 604, 607 (8th Cir. 1988) ( quoting 17 U.S.C. § 102). A copyright also grants to the owner the exclusive rights to reproduce the copyrighted work and to distribute copies to the public. Olan Mills v. Linn Photo, 23 F.3d 1345, 1347 (8th Cir. 1994). Copyright infringement is the violation of one of these exclusive rights of the copyright owner. United Tel. Co., 855 F.2d at 607. To establish a successful claim for copyright infringement, "the plaintiff must prove: (1) ownership of the copyright; and (2) `copying' of protectible expression by the defendant." Id. There is a presumption of copyright validity attendant to a certificate of copyright registration. Id.
Once a plaintiff has proven that he or she owns the copyright on a particular work and that the defendant has infringed upon its "exclusive rights," the defendant is liable for the infringement and this liability is absolute. Cass County Music Co. v. C.H.L.R., Inc., 88 F.3d 635, 637 (8th Cir. 1996). The defendant's intent is relevant only to the issue of damages — the fact that infringement is either "innocent" or unknowing, or "willful" or knowing, may have a bearing on the amount of the statutory damages award but cannot affect liability. Id.
On a showing of infringement, a copyright owner is entitled to recover either the copyright owner's actual damages and any additional profits of the infringer, under 17 U.S.C. § 504(b), or statutory damages under 17 U.S.C. § 504(c). If the copyright owner sustains the burden of proving that an infringement was committed willfully, the court in its discretion may increase the award of statutory damages to $150,000 per infringement. 17 U.S.C. § 504(c)(2); Cass County Music Co, 88 F.3d at 637.
In the context of the enhanced statutory damages provision, "willfully" means knowledge that the defendant's conduct constitutes copyright infringement. RCA/Ariola Int'l. v. Thomas Grayston Co., 845 F.2d 773, 779 (8th Cir. 1988). Thus, one who has been notified that his conduct constitutes copyright infringement, but who reasonably and in good faith believes the contrary, is not "willful" for these purposes. Id. This analysis is "subject to the corollary that reckless disregard of the copyright holder's rights (rather than actual knowledge of infringement) suffices to warrant award of the enhanced damages." Id.
The uncontroverted evidence shows that Hwangpo infringed the distributors' copyrights. The distributors have established that they are the licensee of valid copyrights and that Hwangpo either copied the copyrighted works or purchased them to sell or rent from an unlicensed source. Hwangpo has produced no evidence to the contrary and his factual allegations provide no defense to the distributors' claim. The distributors are thus entitled to a judgment of infringement.
The distributors have not, however, sustained their burden of showing that the infringement was willful. Construing the evidence in the light most favorable to Hwangpo, the court is unable to find that Hwangpo understood that his actions infringed on the distributors' copyrights. The record shows Hwangpo's lack of understanding of or familiarity with copyright law and reflects language and cultural differences. Hwangpo's willfulness, or lack of it, awaits fuller development at trial.
Similarly, the present record does not provide the court with a sufficient basis for an award of statutory damages. Determination of the amount of statutory damages is dependent on the determination of willfulness. The law commits to the trier of facts, within the named limits, discretion to apply the measure of damages specified in the statute. See Cass County Music Co., 88 F.3d at 643-44. The court is the finder of such facts in this case since Hwangpo has not requested a jury trial. Accordingly, the matter will proceed to trial for determination of damages. The distributors' request for attorneys' fees and cost will similarly await resolution of the other issues at trial. Accordingly,
A party is entitled to a jury determination of the actual amount of statutory damages under the Copyright Act, if he so demands. Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 355 (1998). A party entitled to a jury trial on an issue, however, "must request one `no later than ten days after the service of the last pleading directed to such issue.'" Spear v. Dayton's, 711 F.2d 1140, 1144 (8th Cir. 1985) ( quoting Fed.R.Civ.P. 38(b)). Failure to make a timely demand constitutes a waiver of the right to jury trial. Id. Pro se litigants are not afforded any special leniency under Rule 38. Id. Although the court in its discretion may excuse the waiver, id., there has been no showing of any circumstances that would excuse Hwangpo's failure to demand a jury trial. Waiver by failure to make a timely demand is complete even though it is inadvertent or unintended. Sharnhorst v. Independent Sch. Dist. #170, 686 F.2d 637, 641 (8th Cir. 1982) (involving a pro se litigant). Accordingly, the court finds that the determination of the amount of statutory damages rests properly with the court.
IT IS HEREBY ORDERED that:
1. A judgment of infringement is entered against Pyong Hwangpo, d/b/a Mison's Oriental Food Mart, for infringing the following copyrighted works:
(a) A Fairy Tale of Autumn (#1-4);
(b) The Fairy Tale of Autumn (#5-10);
(c) A Fairy Tale of Autumn (#11-16);
(d) Because of You (#1-4);
(e) Deary Mother Sister (#1-2);
(f) Duggi (#1-3, 5-11, 13-37);
(g) Forgiveness (#3, 8-16, 19-24, 26-28);
(h) Happy Everyday (#1-2);
(i) Hard to Stop Them (#1-3, 5);
(j) Heating the Sunlight (#1-6);
(k) Heating the Sunlight (#7-12);
(l) Hurray Woman (#3-8);
(m) Jump (#1-4);
(n) Kokji (#30-34);
Lee Hong-Loul Show (#57);
Married Woman (#1-2);
Men and Women (#1);
Mok-Min-Shim-Suh (#47-54);
More Than Words Can Say (#79-87);
More Than Words Can Say (#88-102);
More Than Words Can Say (#103-135);
Promise (#1-10);
R.N.A. (#17);
The R.N.A. (#1-2);
Rookie (#1-1, 1-2, 2, 3, 4, 6, 7, 8);
Snow Fall (#1-2);
Soon Ja (#1-8);
The Class (#21-23);
The Dandelion (#132-137);
The Dandelion (#138-149);
The Dandelion (#150-155);
The Emperor Wang Guhn (#41-48);
The Emperor Wang Guhn (#49-56);
The Emperor Wang Guhn (#57-62);
The Empire of Woman (#1-4);
The Love of Giving (#9-14);
The Sound of Thunder (#1-2);
The Sound of Thunder (#3-4); and
Want to See Again and Again (#1-9, 11-18, 20-25, 27).
2. This case is referred to Magistrate Judge Kathleen Jaudzemis for the progression of the remainder of this case.