Opinion
Case No. C-3-07-cv-072.
June 13, 2007
This matter involves a complaint for copyright infringement brought by Warner Bros. Records, Inc., Virgin Records America, Inc., UMG Recordings, Inc., Sony BMG Music Entertainment, Arista Records LLC, BMG Music and Capitol Records, Inc. (collectively the "Plaintiffs") against Defendant Christa Henry ("Henry"). A summons and a copy of the complaint were served on Henry on March 12, 2007. (Doc. 6.) Henry did not respond and on April 25, 2007, a Default By Clerk was entered against her. (Doc. #9.)
Now before the Court is Plaintiffs' Application for Entry of Default Judgment brought pursuant to Fed.R.Civ.P. 55. (Doc. #11.) Neither this Application nor the Clerk's Entry of Default have been served on Henry.
FACTUAL BACKGROUND
A party who has defaulted has conceded the truth of the factual allegations in the complaint. Ortiz-Gonzalez v. Fonovisa, 277 F.3d 59, 62 (1st Cir. 2002); Black v. Lane, 22 F.3d 1395, 1399 (7th Cir. 1994). Henry has, therefore, conceded to the truth of the factual allegations in Plaintiffs' Complaint and those relevant are as follows:
Plaintiffs are the copyright owners or licensees of exclusive rights with respect to certain "Copyrighted Recordings." (Compl. ¶ 13.) The Copyright Recordings include copyrighted sound recordings identified in Exhibits A and certain recordings identified in Exhibit B to the Complaint. (Id.) The Plaintiffs have exclusive rights under the Copyright Act to reproduce and distribute the Copyright Recordings. (Compl. ¶ 14.) Finally, Plaintiffs have properly noticed their copyrights on each respective album cover of the albums identified in Exhibit A.
Henry, without permission or consent of the Plaintiffs, has used and continues to use, an online media distribution system to download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public, and/or to make the Copyrighted Recordings available for distribution to others. (Compl. ¶ 15.) Further, Henry's infringements have been willful and intentional. (Compl. ¶ 16.) Finally, Henry's violation of the copyrights is causing and will continue to cause Plaintiffs great and irreparable injury. (Compl. ¶ 19.)
VIOLATION OF COPYRIGHT LAWS
The Court must next consider whether these facts constitute a violation of the law. Pope v. United States, 323 U.S. 1, 12 (1944). The elements of a copyright infringement claim are: (1) the plaintiff had ownership of a valid copyright claim and (2) the defendant copied a protected interest in the copyrighted work. Coles v. Wonder, 283 F.3d 798, 801 (6th Cir. 2002).
In this case, the factual allegations in Plaintiffs' Complaint establish that Plaintiffs have ownership of a valid copyright claim in the Copyright Recordings and that Henry, without permission, was downloading the Copyright Recordings and distributing them to the public. This is enough to establish a copyright infringement claim.
Plaintiffs present evidence that Henry is not an infant or incompetent person or in active military service. (Clerk's Entry of Default, Doc. #9; Declaration of Brian J. O'Connell ("O'Connell Decl.") ¶ 5, May 2, 2007.) Therefore, judgment is hereby entered in favor of the Plaintiffs. See United Coin Meter Co. v. Seaboard Coastline Railroad, 705 F.2d 839, 844 (6th Cir. 1983) (although a drastic measure, judgment by default may be entered by the court if the defendant has not appeared.)
DAMAGES
The district court has discretion as to whether to conduct a hearing on damages. Ortiz-Gonzalez, 277 F.3d at 64. If it is necessary "to take an account or to determine the amount of damages or to establish the truth of any averment or to make an investigation of any other matter," the court may conduct a hearing on damages. HMG Property Investors, Inc. v. Parque Industrial Rio Canas, Inc., 847 F.2d 908, 919 (1st Cir. 1988). If, however, determining the amount of damages "involves nothing more than arithmetic — the making of computations which may be figured from the record — a default judgment" may be entered without a hearing. Id.
In this case, the damages awarded by this Court involve nothing more than the making of computations which may be figured from the record. Therefore, a hearing on damages will not be conducted.
The Plaintiffs here seek minimum statutory damages, an injunction and costs, all of which are a available under the Copyright Act. Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 457 (6th Cir. 2001), cert. denied, 534 U.S. 1114 (2002). Each will be addressed seriatim.
Statutory Damages
Section 504(a) of the Copyright Act provides that a copyright infringer is liable for either actual damages and any additional profits of the infringer as provided by subsection (b) or statutory damages as provided by subsection (c). 17 U.S.C. § 504(a)(2). Subsection (c) provides that the copyright owner may elect, at any time before final judgment is rendered, to recover statutory damages in lieu of actual damages and profits. 17 U.S.C. § 504(c).
Statutory damages may be not less than $750 or more than $30,000 with respect to any one work. Id. The court has wide discretion to award statutory damages within this range. Columbia Pictures Television, Inc. v. Krypton Broadcasting of Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir. 2001), cert. denied, 534 U.S. 1127 (2002).
Each work infringed may form the basis of one statutory award. Columbia Pictures, 259 F.3d at 1193. Further, "separate copyrights are not distinct works unless they can `live their own copyright life.'" Id. (quoting Walt Disney Co. v. Powell, 897 F.2d 565, 569 (D.C. Cir. 1990)).
The Supreme Court has determined that the Seventh Amendment guarantees a defendant the right to a jury trial on statutory damages pursuant to a copyright infringement. Columbia, 259 F.3d at 1191 (citing Feltner v. Columbia Pictures Television, 523 U.S. 340 (1998)). However, in this case, the Defendant has not appeared and has, therefore, not requested a jury trial on statutory damages. Therefore, statutory damages in this case will be determined without a jury trial.
In this case, the Plaintiffs have elected statutory damages in the amount of $750 for infringement of each of the eleven (11) separate works identified in Exhibit A to their Complaint. This is the minimum amount of statutory damages per work and the total is easily computed from the record. Therefore, Plaintiffs are entitled to a total of $8,250 in statutory damages obtained by multiplying eleven (the separate infringed works) times $750 (the minimum award per work).
Injunction
In addition to statutory damages, Section 502(a) of the Copyright Act provides for injunctive relief. 17 U.S.C. § 501(a). Past infringements and a substantial likelihood of future infringements normally entitle the copyright holder to a permanent injunction against the infringer. Pacific and Southern Company, Inc. v. Duncan, 744 F.2d 1490, 1499 (11th Cir. 1984), cert. denied, 471 U.S. 1004 (1985); see also Monogram Models, Inc. v. Industro Motive Corp., 492 F.2d 1281, 1287-88 (6th Cir. 1974), cert. denied, 419 U.S. 843 (1974). Further, when there are past infringements and a substantial likelihood of future infringements, a district court may protect copyrighted works not yet created. Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381, 1392 (6th Cir. 1996), cert. denied, 520 U.S. 1156 (1997). Finally, an injunctive order must give clear and specific instructions to the defendant as to the prohibited activity. See Fed.R.Civ.P. 65(d).
When determining whether to issue a permanent injunction, the court considers; (1) whether the plaintiff has succeeded on the merits, (2) whether plaintiff has an adequate remedy at law, (3) the public interest and (4) the balance of equities. Southern Packaging and Storage Co., Inc. v. United States, 588 F.Supp. 532, 544 (D.S.C. 1984). Plaintiff need not show irreparable injury although the inadequacy of a legal remedy may be established by showing irreparable injury. Id.
The Plaintiffs in this case have succeeded on the merits. The first requirement for a permanent injunction has thus been satisfied.
Also, Plaintiffs have no adequate remedy at law. Actual damages and profits of the infringer are unable to be calculated because the amount of past and future infringement is unknown and, most likely, unable to be determined. Further, the facts indicate that the Plaintiffs have been irreparably harmed.
As to the public interest, in 1999, the piracy of recordings was known to be a 5-billion dollar-a-year industry worldwide. Sony Music Entertainment, Inc. v. Global Arts Productions, 45 F.Supp.2d 1345, (S.D.Fla. 1999). This piracy causes record labels to raise prices and dampens their desire to produce more recordings. On a larger scale, the public interest favors a strong, workable copyright system which permits artists to be remunerated for their creativity.
Finally, the harm to the Plaintiffs if an injunction is denied outweighs the harm to Henry if an injunction is issued. Not issuing an injunction would render the Plaintiffs' copyrights and their investments in preparing and distributing the copyrighted recordings worthless. An injunction would not harm Henry in that she has shown no legal entitlement to use the copyrighted recordings.
All four of the elements required for issuing a permanent injunction are met in this case. Also, the Copyright Act provides that a permanent injunction is an available remedy for infringement.
In addition, there is reason to enjoin unauthorized use of future copyrighted material. Henry's infringements are widespread. (See Compl. Ex. B.) Further, Henry's means of infringement — an online media distribution system with many potential users — has rendered Plaintiffs' copyrighted recordings vulnerable to massive and repeated infringements.
Henry's failure to respond to the Complaint suggests that she may not recognize the copyright laws and the specific copyrights at issue here. Also, there is no evidence that Henry has stopped infringing or that, absent an injunction, she would stop infringing. Limiting an injunction to existing works would require new litigation to address each future infringement and would, thus, not be a wise use of judicial resources.
Therefore, the following permanent injunction is hereby issued:
Defendant shall be and hereby is enjoined from directly or indirectly infringing Plaintiffs' rights under federal law or state law in the following copyrighted sound recordings:
a. "The Chain" on album "Rumors" by artist "Fleetwood Mac" (SR# N39857)
b. "Sharp Dressed Man" on album "Eliminator" by artist "ZZ Top" (SR # 45-132)
c. "Are You Gonna Go My Way" on album "Are You Gonna Go My Way" by artist "Lenny Kravitz" (SR# 149-143)
d. "From This Moment On" on album "Come On Over" by artist "Shania Twain" (SR# 243-502)
e. "Any Man of Mine" on album "The Woman in Me" by artist "Shania Twain" (SR# 207-884)
f. "My Favorite Mistake" on album "The Globe Sessions" by artist "Sheryl Crow" (SR# 279-383)
g. "Freak On a Leash" on album "Follow the Leader" by artist "Korn" (SR# 263-749)
h. "Unpretty" on album "Fanmail" by artist "TLC" (SR# 298-454)
I. "Crash Into Me" on album "Crash" by artist "Dave Matthews Band" (SR# 212-572)
j. "Give It Away" on album "Blood Sugar Sex Magik" by artist "Red Hot Chili Peppers" (SR# 135-276)
k. "Sabotage" on album "Ill Communication" by artist "Beastie Boys" (SR# 213-461)
and any other copyrighted sound recording, whether now in existence or later created, that is owned or controlled by the Plaintiffs (or any parent, subsidiary, or affiliate record label of Plaintiffs) ("Plaintiffs' Recordings"), including without limitation by using the Internet or any online media distribution system to reproduce (i.e., download) any of Plaintiff's Recordings, to distribute (i.e., upload) any of Plaintiffs' Recordings, or to make any of Plaintiffs' Recordings available for distribution to the public, except pursuant to a lawful license or with the express authority of Plaintiffs. Defendant also shall destroy all copies of Plaintiffs' Recordings that Defendant has downloaded onto any computer hard drive or server without Plaintiffs' authorization and shall destroy all copies of those downloaded recordings transferred onto any physical medium or device in Defendant's possession, custody or control.
Costs
Section 505 of the Copyright Act provides for the award of costs and attorney's fees at the district court's discretion. Johnson v. Jones, 149 F.3d 494, 504 (6th Cir. 1998). In this case, there is evidence that Plaintiffs have incurred costs in the amount of $420. (O'Connell Aff. ¶ 6.) Therefore, Henry shall pay Plaintiffs' costs of suit in the amount of $420.SUMMARY
Default Judgement is hereby entered in favor of Plaintiffs on their copyright claim against Henry. Plaintiffs are awarded statutory damages in the amount of $8,250 and costs in the amount of $420.
Finally, Henry is enjoined from directly or indirectly infringing upon Plaintiffs' copyrights as more fully set forth above.
The Clerk is hereby ordered to mail a copy of this Entry and Order to Defendant Christa Henry at her last known address of record. The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
DONE and ORDERED in Dayton, Ohio.