Opinion
Case No. 1:15CV1757
09-27-2018
SUZANNE SHELL, Plaintiff, v. RAY R. LAUTENSCHLAGER, Defendant.
MEMORANDUM AND ORDER
The pro se plaintiff Suzanne Shell filed suit in this court against pro se defendant Ray R. Lautenschlager, as well as against several parties who have since been dismissed. Shell's amended complaint alleged copyright infringement against the defendant concerning three works with copyrights registered and owned by Shell. (R. 15, Am. Compl.) Shell subsequently filed a Motion for Partial Summary Judgment (R. 138), which the court granted in part, and denied in part. (R. 144.)
The matter was then set for trial. (R. 149.) At the pretrial conference, however, Shell waived her right to a jury trial, elected to pursue statutory damages on the claims on which she prevailed on summary judgment, and elected the minimum amount of the applicable statutory damages. (R. 151.) Shell declined to pursue the claims on which she did not prevail on summary judgment. Id. Defendant Lautenschlager objected on the record, and stated his desire to continue to a jury trial. Id. The court overruled his objection, and accepted Shell's election to proceed on briefs to the court. Id.
Shell has filed a motion for summary judgment seeking statutory damages, costs, and other relief, with supporting documentation. (R. 155.) Lautenschlager has filed a brief in opposition (R. 158), and Shell filed a reply brief (R. 159).
I. SUMMARY JUDGMENT
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). Non-moving parties may rest neither upon the mere allegations of their pleadings nor upon general allegations that issues of fact may exist. See Bryant v. Commonwealth of Kentucky, 490 F.2d 1273, 1275 (6th Cir. 1974). The Sixth Circuit in Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th Cir. 1989), points out that the movant has the initial burden of showing "the absence of a genuine issue of material fact" as to an essential element of the non-movant's case. This burden may be met by pointing out to the court that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case. Street, 886 F.2d at 1479.
The respondent cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must "present affirmative evidence in order to defeat a properly supported motion for summary judgment." Id. In ruling on a motion for summary judgment, the court must construe the evidence, as well as any inferences to be drawn from it, in the light most favorable to the party opposing the motion. Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 229 (6th Cir. 1990).
The standard is slightly different for a plaintiff-movant, who would bear the burden of proof at trial. Shell must present evidence that would entitle her to a directed verdict if that evidence were not controverted at trial. If the defendant responds to the motion with controverting evidence which demonstrates a genuine issue of material fact, Shell's motion must be denied. However, if, after analyzing the combined body of evidence presented by both parties, the evidence is such that no reasonable jury could find in favor of the defendant, then summary judgment will be entered on behalf of the plaintiff-movant. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). See also Saab Cars USA, Inc. v. United States, 434 F.3d 1359, 1368-1369 (Fed. Cir. 2006); Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986) (movant must establish all essential elements of claim or defense); Orozco v. County of Yolo, 814 F.Supp. 885, 890 (E.D. Cal. 1993); McGrath v. City of Philadelphia, 864 F.Supp. 466, 473 (E.D. Pa. 1994) (citing National State Bank v. Federal Reserve Bank of N.Y., 979 F.2d 1579, 1582 (3d Cir. 1992)).
The court awarded summary judgment to Shell on the merits of several counts of her amended complaint. See generally R. 144. Shell declined to pursue her remaining claims, and waived her right to a jury trial, electing to pursue statutory damages on her prevailing claims, and electing the minimum amount of the applicable statutory damages. (R. 151.) As mentioned above, Lautenschlager objects to proceeding to a determination of damages and costs on briefs, and stated his desire to continue to a jury trial. (R. 151; see also R. 152.) Under these circumstances, there is no right to a jury trial on the question of the amount of statutory damages to be awarded for copyright infringement where the plaintiff only requests the statutory minimum. GoPets Ltd. v. Hise, 657 F.3d 1024, 1034 (9th Cir. 2011) (citing BMG Music v. Gonzalez, 430 F.3d 888, 892-893 (7th Cir. 2005), cert. denied, 547 U.S. 1130 (2006)); Sky Cable, LLC v. Coley, No. 5:11CV00048, 2013 WL 5963027, at *3 (W.D. Va. Nov. 7, 2013) (citing BMG Music); Simpleville Music v. Mizell, 451 F. Supp. 2d 1293, 1300 (M.D. Ala. 2006) (citing cases). The court in BMG Music reasoned that, "[w]hen there is a material dispute of fact to be resolved or discretion to be exercised in selecting a financial award, then either side is entitled to a jury; if there is no material dispute and a rule of law eliminates discretion in selecting the remedy, then summary judgment is permissible." BMG Music, 430 F.3d at 892-893.
In her current motion for summary judgment, Shell seeks minimum statutory damages on the claims on which she prevailed in her earlier motion. (R. 155, PageID #: 1705; see generally R. 144.) Shell's complaint sought damages under the following statutes: 17 U.S.C. § 504(c); 17 U.S.C. § 512 ; and, 17 U.S.C. §§ 1201-1202. (R. 15, PageID #: 201-202.) She also seeks costs, prejudgment interest, and injunctive relief. (R. 155, PageID #: 1705.)
Section 512 is entitled "Limitation on liability relating to material online," applicable to "service providers." 17 U.S.C. § 512(a). The section does not apply to the case before this court. --------
The defendant's opposition to the current motion for summary judgment contests the court's earlier ruling on the merits, by stating, in part, "this was a falsely filed case and ... [Shell] is not the party whose original thought created the documents which she has claimed as her own." (R. 158, PageID #: 1831.) The court has already ruled on the merits of Shell's claims. The defendant's response to Shell's first motion for partial summary judgment (R. 138) was due on June 1, 2017, see, e.g., R. 143, PageID #: 1545, and Lautenschlager did not file a timely brief in opposition to that motion, thus the court ruled on the motion in the order dated October 31, 2017, referenced above. (R. 144.) At this late date, the court will not entertain objections to the rulings on the merits.
II. STATUTORY DAMAGES
A. Copyright Infringement
The amended complaint alleged three counts of copyright infringement. See generally R. 15, Am.Compl., PageID #: 186-192; see also R. 138, PageID #: 1406-1422. Summary judgment was granted on Count One as to willful copyright infringement. (R. 144, PageID #: 1557.) Summary judgment was granted on Counts Two and Three as to copyright infringement, but denied as to willfulness. (R. 144, PageID #: 1561-1562.) The relevant statutory provisions for damages for copyright infringement are contained in Section 504(c) which reads, in pertinent part:
(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 . . . 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.17 U.S.C. § 504(c). Thus, for the three copyright infringement violations in Counts One, Two, and Three, minimum statutory damages in the amount of $2,250.00 will be awarded to Shell, pursuant to Section 504(c)(1).
(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.
The statute provides that, when 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." 17 U.S.C. § 504(c)(2). Although the court granted judgment on Count One as willful copyright infringement (R. 144, PageID #: 1557), Shell has confirmed that she does not request that the court award discretionary damages for the willful infringement in Count One, thus the court will limit its award on Count One to the statutory minimum.
B. Alteration of Copyright Management Information
Count Four of the amended complaint alleged that Lautenschlager altered or removed copyright management information ("CMI") when publishing the copyrighted works, in violation of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 1202. (R. 15, ¶¶ 138-153, PageID #: 192-195.) Judgment was granted on two of the sub-claims, but denied on the other two sub-claims. (R. 144, PageID #: 1571-1572; see also 1562-1569.)
Section 1202 pertains to the integrity of copyright management information. The remedy for the violation of this section is located at 17 U.S.C. § 1203(c), which provides for either actual damages, 17 U.S.C. § 1203(c)(1)(A), or statutory damages, 17 U.S.C. § 1203(c)(1)(B). Shell has elected statutory damages. Section 1203(c)(3) reads, in pertinent part:
(3) Statutory damages.-17 U.S.C. § 1203(c)(3)(B). Summary judgment was granted on Count 4 for two violations of Section 1202, thus minimum statutory damages in the amount of $5,000.00 will be awarded to Shell, pursuant to Section 1203(c)(3)(B).
* * * * * *
(B) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000.
C. Circumvention of Copyright Protection Systems
Count Five of the amended complaint alleged a violation of the DMCA, 17 U.S.C. § 1201(a)(1)(A), regarding the password protection on Shell's website for a particular work. (R. 15, ¶ 155, PageID #: 196.) Summary judgment was granted on this claim. (R. 144, PageID #: 1570.)
Section 1201 pertains to the circumvention of copyright protection systems, and the remedy for the violation of this section is located at 17 U.S.C. § 1203(c). Section 1203(c)(3) reads, in pertinent part:
(3) Statutory damages.-17 U.S.C. § 1203(c)(3)(A). Summary judgment was granted on Count 5 for one violation of Section 1201(a)(1)(A), thus minimum statutory damages in the amount of $200.00 will be awarded to Shell, pursuant to Section 1203(c)(3)(A).
(A) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1201 in the sum of not less than $200 or more than $2,500 per act of circumvention, device, product, component, offer, or performance of service, as the court considers just.
The court awards to Shell, for violations alleged in Counts One, Two, Three, Four, and Five, and summary judgment granted on the same (R. 144), statutory damages in the amount of $7,450.00.
III. PREJUDGMENT INTEREST
Shell asserts that she is entitled to prejudgment interest, and requested the same in her amended complaint. (R. 155, PageID #: 1708, citing R. 15, PageID #: 202.) "The Copyright Act neither expressly allows nor prohibits awarding prejudgment interest in copyright infringement cases." Robert R. Jones Assocs., Inc. v. Nino Homes, 858 F.2d 274, 282 (6th Cir. 1988). See generally Goldman v. Healthcare Mgmt. Sys., Inc., 559 F. Supp. 2d 853, 864-865 (W.D. Mich. 2008) (no consensus in federal circuits whether prejudgment interest may be awarded, discussing cases); Broadcast Music, Inc. v. Nortel Grill, Inc., No. CIV-89-1278E, 1991 WL 172079, at *2 (W.D. N.Y. Aug. 27, 1991) (split among courts whether prejudgment interest should be granted, citing cases). The majority of circuits that have examined whether courts may award prejudgment interest under the Act have found that such an award is permissible. Goldman, 559 F. Supp. 2d at 865 (citing cases). Whether an award of prejudgment interest is permissible, and whether such an award is appropriate in a particular case are separate issues.
In Robert R. Jones, the leading Sixth Circuit case on the subject, the court of appeals vacated the district court's decision to award prejudgment interest. See 858 F.2d at 282. The court noted that, in the absence of legislative direction, the decision to grant or deny prejudgment interest should hinge on the congressional purposes underlying the statute. Id. (quoting Bricklayers' Pension Trust Fund v. Taiariol, 671 F.2d 988, 989 (6th Cir. 1982) (discussing Rodgers v. United States, 332 U.S. 371 (1947)). The Sixth Circuit indicated that the district court had granted plaintiff's motion for prejudgment interest "in order to provide an effective sanction against copyright infringement." Id. The court of appeals, however, asserted that the measure of damages awarded in that case was sufficient to advance the purposes of the Copyright Act. Id.
The congressional purposes underlying the Copyright Act of 1976 are expressed in the provision which entitles the copyright owner "to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages." Taylor v. Meirick, 712 F.2d 1112, 1120 (7th Cir. 1983) (quoting 17 U.S.C. § 504(b)). In other words, the purpose of actual damages is "to compensate the copyright owner and to discourage the infringer by disgorging his profits." U.S. Payphone, Inc. v. Executives Unlimited of Durham, Inc., 931 F.2d 888, 1991 WL 64957 at *4 (4th Cir. 1991) (per curiam) (TABLE, text in WESTLAW). See also Nintendo of Am., Inc. v. Ketchum, 830 F. Supp. 1443, 1445 (M.D. Fla. 1993) (purposes of the Act include restitution to prevent unjust enrichment, reparation of injury, and deterrence of further wrongful conduct).
Some courts have held that prejudgment interest is not available when the underlying damage award consists entirely of statutory damages. Granville v. Suckafree Records, Inc., No. CIV.A. H-03-3002, 2006 WL 2520909, at *6 (S.D. Tex. June 28, 2006) (citing cases). "[W]hen courts have granted prejudgment interest, the underlying awards were based, in full or in part, on actual damages and/or profits, not on statutory damages alone." Broadcast Music, 1991 WL 172079, at *2. For example, one court noted that: "Prejudgment interest compensates the plaintiff for the loss of the use of money that would have been hers but for the wrongful conduct of the defendant." Murray v. Shaw Indus., Inc., 990 F. Supp. 46, 48 (D. Mass. 1997); see also John G. Danielson, Inc. v. Winchester-Conant Properties, Inc., 322 F.3d 26, 51 (1st Cir. 2003) (reasoning in Murray is sound). In Murray, the court declined to award prejudgment interest because such an award would have allowed plaintiff to recover funds that would not otherwise have been hers. Murray, 990 F. Supp. at 48.
Shell requests prejudgment interest "based on the dilatory, abusive and malicious conduct of the defendant" during the course of the litigation. (R. 155, PageID #: 1712.) Shell does not provide any evidence of actual damages or lost profits to support an award of prejudgment interest. See generally R. 155, and supporting exhibits. As in Murray, an award of prejudgment interest here would allow plaintiff to recover funds that would not otherwise have been hers. Murray, 990 F. Supp. at 48. The court finds that the measure of statutory damages awarded ($7,450.00) is sufficient to advance the purposes of the Copyright Act. See generally Robert R. Jones, 858 F.2d at 282.
IV. COSTS
Shell asserts that she is entitled to reimbursement of costs, in the total amount of $5,280.23, pursuant to 17 U.S. Code § 505, and Fed. R. Civ. P. 54(d). (R. 155, PageID #: 1712; R. 155-2, PageID #: 1730-1731, 1734.) Lautenschlager has filed a detailed opposition. (R. 158.) Lautenschlager contests Shell's accounting, and asserts that Shell has "fail[ed] to show proof that she has had any claimable expenses." (R. 158-1, PageID #: 1863.)
Under the Copyright Act, a court has discretion to award "full costs." Capitol Records, Inc. v. Zahn, No. 3:06-0212, 2007 WL 542816, at *3 (M.D. Tenn. Feb. 16, 2007) (citing 17 U.S.C. § 505); see also Nash v. CBS, Inc., 750 F. Supp. 328, 330 (N.D. Ill. 1990). This court has long held that a prevailing plaintiff in a copyright infringement case is entitled to a full bill of costs. See, e.g., Sebring Pottery Co. v. Steubenville Pottery Co., 9 F. Supp. 384, 390 (N.D. Ohio 1934); see generally Walker v. Roth, No. 00-2512, 2002 WL 169605, at *1 (6th Cir. Jan. 31, 2002) (costs allowed as a matter of course to prevailing party, citing Fed.R.Civ.P. 54(d)). There is a strong presumption in favor of the award of costs to the prevailing party. Lewis v. Pennington, 400 F.2d 806, 819 (6th Cir.), cert. denied, 393 U.S. 983 (1968).
"Although Rule 54(d) allows a party to be reimbursed for its 'costs,' this term is given a far narrower interpretation than its vernacular meaning might suggest." Hadix v. Johnson, 322 F.3d 895, 899 (6th Cir. 2003), cert. denied, 540 U.S. 854 (2003); see generally Sai v. Dep't of Homeland Sec., 179 F. Supp.3d 128, 134 (D.D.C. 2016) (not all expenses are taxable as "costs;" pro se plaintiff is limited to costs allowed under Section 1920). The costs taxable under Section 505 are limited to those enumerated in 28 U.S. Code § 1920. Tempest Publ'g, Inc. v. Hacienda Records & Recording Studio, Inc., 141 F. Supp. 3d 712, 723 (S.D. Tex. 2015); see generally In re Cardizem CD Antitrust Litig., 481 F.3d 355, 359 (6th Cir. 2007) (costs that may be taxed under Rule 54(d)(1) are confined to costs itemized in § 1920) (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987)).
Section 1920 provides as follows:
A judge or clerk of any court of the United States may tax as costs the following:28 U.S.C. § 1920 (Taxation of Costs).
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.
In order to award costs to a prevailing party, the court must determine that the expenses are allowable cost items and that the amounts are reasonable and necessary. Baker v. First Tenn. Bank, N.A., 142 F.3d 431, 1998 WL 136560, at *2 (6th Cir. 1998) (TABLE, text in WESTLAW) (citing Northbrook Excess and Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 642 (7th Cir. 1991)). The unsuccessful party has the burden of overcoming the presumption that favors the award of costs under Rule 54(d). Donahoo v. Ohio Dep't of Youth Servs., No. 5:01CV1137, 2002 WL 31685727, at *1 (N.D. Ohio Oct. 23, 2002) (citing White & White, Inc. v. American Hosp. Supply Corp., 786 F.2d 728, 732 (6th Cir. 1986)). The Sixth Circuit has identified factors which may overcome the presumption, including,
. . . determining whether taxable expenditures by the prevailing party are "unnecessary or unreasonably large," whether the prevailing party should be penalized for unnecessarily prolonging trial or for injecting non-meritorious issues, whether the prevailing party's recovery is so insignificant that the judgment amounts to a victory for the defendant, whether the case is "close and difficult," the good faith of a losing party in filing the action, and the necessity of the costs.Donahoo, 2002 WL 31685727, at *1 (citing White & White, 786 F.2d at 732-733).
Shell has filed a "Bill of Costs" that requests taxing the following as "costs." (R. 155-2, PageID #: 1734-1736.) First, she seeks $177.50 for fees for service of summons and subpoena. Id. at 1734. Shell asserts that defendant refused to waive personal service, that the U.S. Marshall Service was unable to effect service, and therefore she was compelled to rely on a process server. Id. at 1738. The defendant contests this item, and argues that Shell's lack of due diligence resulted in the need for a process server. (R. 158-2, PageID #: 1870.) The court finds $177.50 for fees for service of summons and subpoena to be an allowable cost item, and the amount to be reasonable and necessary, under the circumstances of this case. See Evans v. Tennessee Dep't of Corr., 514 F.2d 283, 284 (6th Cir. 1975) (per curiam); Kennedy v. Joy Techs., Inc., 484 F. Supp. 2d 502, 504 (W.D. Va. 2007) (most courts recognize process server fees are taxable). The amount of $177.50 will be taxed as costs.
The remainder of Shell's "Bill of Costs" requests taxing an amount of $5,102.73 as "other costs." (R. 155-2, PageID #: 1734.) Shell describes the "other costs" as follows:
| Cost of service, mailing | $218.15 |
| Travel September 2016 Status Conference | $1249.23 |
| Travel April 2018 Pre-trial Conference | $1620.37 |
| Travel June Jul[y] 2016 Status Conference(cancelled by Court) | $1473.68 |
| Legal research | $718.80 |
Shell next seeks reimbursement for travel expenses, meals, airport parking, and taxi fares, for three separate trips from Colorado to Cleveland. (R. 155-2, PageID #: 1736, 1755-1773, 1776-1777.) Section 1920 makes no provision for the recovery of parking, airfare, hotel or other travel expenses, and these expenses are thus not recoverable as costs. Wahl v. Carrier Mfg. Co., 511 F.2d 209, 217 (7th Cir. 1975) (citing cases); Cobb v. City of Roswell, Ga., 987 F. Supp. 2d 1319, 1326-1327 (N.D. Ga. 2013) (citing cases); Walters v. President & Fellows of Harvard Coll., 692 F. Supp. 1440, 1442 (D. Mass. 1988); Bass v. Spitz, 522 F. Supp. 1343, 1358 (E.D. Mich. 1981).
The last item of "other costs" is listed as "legal research," in the amount of $718.80. (R. 155-2, PageID #: 1736.) Shell seeks reimbursement for legal research expenses billed by the Legal Research Center for VersusLaw access. Id. at 1780-1821. This court has found that expenses for computer-assisted legal research are not recoverable under Section 1920. Cleveland Area Bd. of Realtors v. City of Euclid, 965 F.Supp. 1017, 1023 (N.D. Ohio 1997) (citing United States v. Merritt Meridian Const. Corp., 95 F.3d 153, 173 (2d Cir.1996); Haroco, Inc. v. American Natl Bank & Trust Co. of Chicago, 38 F.3d 1429, 1440-41 (7th Cir.1994); and other cases); Arthur S. Langenderfer, Inc. v. S.E. Johnson Co., 684 F.Supp. 953, 960-961 (N.D. Ohio 1988) (citing cases); see also Anderson v. Wilson, 357 F. Supp. 2d 991, 1001 (E.D. Ky. 2005) (citing cases) (costs incurred from computer assisted legal research are not recoverable); Roberts v. Charter Nat. Life Ins. Co., 112 F.R.D. 411, 413 (S.D. Fla. 1986).
V. INJUNCTIVE RELIEF
Shell seeks injunctive relief under 17 U.S.C. § 502. (R. 155, PageID #: 1705, 1712-1729.) This court has found that defendant infringed Shell's copyrights, thus the court will consider whether injunctive relief, in addition to the statutory damages awarded, is appropriate. See Bridgeport Music, Inc. v. Justin Combs Pub., 507 F.3d 470, 492 (6th Cir. 2007) (Copyright Act authorizes injunctive relief); Columbia Pictures Indus., Inc. v. T & F Enterprises, Inc., 68 F. Supp. 2d 833, 841 (E.D. Mich. 1999) (issuance of injunction is in discretion of the court, citing 17 U.S.C. § 502(a)). The Southern District of New York has provided a useful discussion of the applicability of injunctive relief in the context of copyright infringement:
Under the Copyright Act, the Court may "grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright." 17 U.S.C. § 502. "An injunction, however, is not mandatory and does not automatically follow a determination that a copyright has been infringed." Pearson Educ., Inc. v. Ishayev, 963 F.Supp.2d 239, 253-54 (S.D.N.Y.2013). "A copyright plaintiff seeking a permanent injunction still must satisfy the traditional four-factor test [set forth in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006) ] before the district court may use its equitable discretion to grant such relief." Warner Bros. Entm't v. RDR Books, 575 F.Supp.2d 513, 551 (S.D.N.Y.2008). Thus, as a threshold matter, a plaintiff must establish: "(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 the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." eBay, 547 U.S. at 391, 126 S.Ct. 1837.
"[T]he critical question for a district court in deciding whether to issue a permanent injunction is whether there is a reasonable likelihood that the wrong will be repeated." TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 504 (2d Cir.2014) (quoting SEC v. Manor Nursing Ctrs., Inc., 458 F.2d 1082, 1100 (2d Cir.1972)) (ellipsis omitted). Thus, in copyright cases, the prevailing plaintiff must show some "probability that [the defendant] would resume its infringement in the future." Dolori Fabrics, Inc. v. Limited, Inc., 662 F.Supp. 1347, 1358 (S.D.N.Y.1987). Although courts may not "presume irreparable harm," Salinger, 607 F.3d at 82, courts have consistently found that "[h]arm can be irreparable, and adequate remedies at law lacking, where ..., absent an injunction, the defendant is likely to continue infringing the copyright," Broadcast Music, Inc. v. PAMDH Enters., Inc., No. 13 Civ.
2255(KMW), 2014 WL 2781846, at *4 (S.D.N.Y. June 19, 2014); see, e.g., Complex Sys., Inc. v. ABN AMRO Bank N.V., No. 08 Civ. 7497(KBF), 2014 WL 1883474, at *11 (S.D.N.Y. May 9, 2014); Hounddog Prods., L.L.C. v. Empire Film Grp., Inc., 826 F.Supp.2d 619, 633 (S.D.N.Y.2011).HarperCollins Publishers, LLC v. Open Road Integrated Media, LLP, 58 F.Supp.3d 380, 385-386 (S.D. N.Y. 2014); see also Salinger v. Colting, 607 F.3d 68, 77 (2d Cir. 2010) (eBay applies to injunctions for copyright infringement); Calibrated Success, Inc. v. Charters, 72 F. Supp. 3d 763, 774 (E.D. Mich. 2014) (permanent injunction standard).
Courts have traditionally granted permanent injunctions where liability is established, and there is a substantial likelihood of future copyright infringements. Calibrated Success, 72 F. Supp. 3d at 773 (citing Bridgeport Music, 507 F.3d at 492); Columbia Pictures, 68 F. Supp. 2d at 841 (citing cases). Defendant has maintained that Shell does not have valid copyrights in the works at issue, even after the court ruled against such arguments on the merits. See, e.g., R. 144, PageID #: 1557, 1561-1562 (granting summary judgment on copyright infringement). Despite the defendant's litigation posture regarding the intellectual property rights of the plaintiff, it is not apparent that plaintiff will experience future copyright violations at the hands of defendant. Moreover, it is not apparent that, if future copyright violations occur, plaintiff would sustain irreparable harm for which the law could provide no adequate remedies.
The third factor, the balance of hardships, weighs in Shell's favor since Lautenschlager has not identified any hardships for the court to consider. See generally R. 158; Hounddog Prods., L.L.C. v. Empire Film Grp., Inc., 826 F. Supp. 2d 619, 633 (S.D.N.Y. 2011). In addition, "[i]t is axiomatic that an infringer cannot complain about the loss of ability to offer its infringing product." WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 287 (2d Cir. 2012), cert. denied, 568 U.S. 1245 (2013). As to the fourth factor, the court finds that injunctive relief does not disserve the public interest. "Indeed, it is a premise of copyright law that 'the public has a compelling interest in protecting copyright owners' marketable rights to their work.'" HarperCollins, 58 F.Supp.3d at 386 (quoting WPIX, 691 F.3d at 287). The court concludes that no distinct harm to the public would result from an appropriately narrow injunction.
After considering the aforementioned factors, however, the court does not find that such equitable relief would be proper because the first two factors weigh against entering a permanent injunction.
VI. CONCLUSION
IT IS HEREBY ORDERED that Shell's motion for summary judgment (R. 155) is GRANTED in part, and DENIED in part, as discussed more fully above.
IT IS FURTHER ORDERED that judgment shall be entered in favor of Shell and against defendant Lautenschlager (1) in the amount of $2,250.00 in statutory damages pursuant to 17 U.S.C. § 504(c) for three copyrighted works infringed by defendant; (2) in the amount of $5,000.00 in statutory damages pursuant to 17 U.S.C. §§ 1202, 1203(c)(3)(B), for two violations by defendant; and, (3) in the amount of $200.00 in statutory damages pursuant to 17 U.S.C. §§ 1201(a)(1)(a), 1203(c)(3)(A), for one violation by defendant, for a total damage award of $7,450.00. The court declines to award prejudgment interest on the statutory damages award.
IT IS FURTHER ORDERED that the court taxes $177.50 against defendant as allowable costs, pursuant to 17 U.S.C. § 505, 28 U.S.C. § 1920 and Fed. R. Civ. P. 54(d). The remainder of the items on Shell's Bill of Costs are not included in Section 1920, and thus not recoverable as a costs.
IT IS SO ORDERED.
s/ David A. Ruiz
David A. Ruiz
United States Magistrate Judge Date: September 27, 2018