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Injterscope Records v. Mark Sharp

December 19, 2007

INTERSCOPE RECORDS, A CALIFORNIA GENERAL PARTNERSHIP; SONY BMG MUSIC ENTERTAINMENT, A DELAWARE GENERAL PARTNERSHIP; UMG RECORDINGS, INC., A DELAWARE CORPORATION; CAPITOL RECORDS, INC., A DELAWARE CORPORATION; MAVERICK RECORDING COMPANY, A CALIFORNIA JOINT VENTURE; AND BMG MUSIC, A NEW YORK GENERAL PARTNERSHIP, PLAINTIFFS,
v.
MARK SHARP, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On July 22, 2005, pursuant to the copyright laws of the United States, 17 U.S.C. § 101 et seq., Plaintiffs filed their complaint against Defendant, seeking statutory damages and injunctive relief against him for his alleged infringement of certain of their copyrighted sound recordings.

See Complaint at ¶¶ 1, 12. Specifically, Plaintiffs contend that they are the copyright owners or licensees of exclusive rights under United States copyright with respect to certain copyrighted sound recordings (the "Copyrighted Recordings") [and that they believe] that Defendant, without the permission or consent of 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 make the Copyrighted Recordings available for distribution to others. . . .

See id. at ¶¶ 12, 14.

As a result of Defendant's alleged infringement, Plaintiffs assert that they are "entitled to statutory damages pursuant to 17 U.S.C. § 504(c) . . . [and] are entitled to their attorneys' fees and costs pursuant to 17 U.S.C. § 505." See id. at ¶ 17. Finally, Plaintiffs claim that, "[p]ursuant to 17 U.S.C. §§ 502 and 503, [they] are entitled to injunctive relief prohibiting Defendant from further infringing [their] copyrights, and ordering Defendant to destroy all copies of sound recordings made in violation of [their] exclusive rights." See id. at ¶ 18.

Since Defendant did not answer their complaint or otherwise appear within the required time-frame, Plaintiffs filed with the Clerk of the Court and served on Defendant a request for entry of default, together with an affidavit supporting that request, on November 30, 2005. See Dkt. Nos. 6-7. As a result of that request, the Clerk of the Court entered default on December 5, 2005. See Dkt. No. 8. One year later, on December 7, 2006, Plaintiffs filed and served the pending motion for default judgment against Defendant. See Dkt. No. 10.

II. DISCUSSION

A. The Effect of Defendant's Default

"A defendant's default is deemed to constitute a concession of all well-pleaded allegations of liability, but is not considered an admission of damages." Brigiotta's Farmland Produce & Garden Ctr., Inc. v. Przykuta, Inc., No. 05-CV-273S, 2006 WL 3240729, *1 (W.D.N.Y. July 13, 2006) (citation omitted). Therefore, although "a finding of liability can be predicated solely on a facially valid complaint, damages must be proven before a final default judgment is entered." Id. (citations omitted).

Applying these legal standards to this case, the Court concludes that Defendant used an online media distribution system to copy the copyrighted sound recordings listed on Exhibit "A" to Plaintiffs' complaint and to distribute those recordings to other users of the system. See Complaint at ¶¶ 12, 14. Moreover, these facts, which the Court must consider "established," constitute direct copyright infringement. See In re Aimster Copyright Litig., 334 F.3d 643, 645 (7th Cir. 2003), cert. denied sub nom., Deep v. Recording Indus. Ass'n of Am., Inc., 540 U.S. 1107 (2004) (holding that, "[i]f the music is copyrighted, such swapping, which involves making and transmitting a digital copy of the music, infringes copyright. The swappers, who are ignorant or more commonly disdainful of copyright and in any event discount the likelihood of being sued or prosecuted for copyright infringement, are the direct infringers"); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014-15 (9th Cir. 2001) (stating that individuals who upload and download files from systems similar to the one that the defendant used commit direct copyright infringement). Accordingly, the Court holds that Defendant is liable to Plaintiffs for infringement of those copyrighted sound recordings that Plaintiffs listed in Exhibit "A" to their complaint by the means alleged in the complaint.

B. Damages

Section 504(a) of the Copyright Act provides, in pertinent part, that "an infringer of copyright is liable for . . . (2) statutory damages, as provided by subsection (c)." 17 U.S.C. § 504(a)(2). Section 504(c), in turn, provides, in pertinent part, that 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 . . . in a sum of not less than $750 or more than $30,000 as the court considers just. 17 U.S.C. § 504(c)(1); see also Fitzgerald Publ'g Co., Inc. v. Baylor Publ'g Co., Inc., 807 F.2d 1110, 1114 (2d Cir. 1986) (holding that "[t]he owner may elect to recover -- instead of actual damages and profits -- statutory damages under [17 U.S.C.] § 504(c)(1) for those works whose copyrights were registered at the time the infringement occurred").

Moreover, "[a] plaintiff may elect statutory damages 'regardless of the adequacy of the evidence offered as to his actual damages and the amount of the defendant's profits.'" Columbia Pictures Television, Inc. v. Krypton Broad. of Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir. 2001) (quotation omitted); see also Los Angeles News Serv. v. Reuters Television Int'l, Ltd., 149 F.3d 987, 996 (9th Cir. 1998) (holding that "a plaintiff may recover statutory damages 'whether or not there is adequate evidence of the actual damages suffered by plaintiff or of the profits reaped by defendant,' . . . in order '"to sanction and vindicate the statutory policy" of discouraging infringement'" (quotations omitted)).

In the present case, rather than seek and/or attempt to prove actual damages, Plaintiffs have opted to seek the minimum statutory damages to which they are entitled as a result of Defendant's infringement. Specifically, Plaintiffs seek $750 for each of the ten infringements that they allege in their complaint, the minimum provided for in ยง 504, for a total of $7,500.00. Since Plaintiffs seek the minimum statutory damages and have established infringement as a result of Defendant's default, it is not necessary for the Court to conduct a damage hearing before awarding such damages. See Motown Record Co. v. Armendariz, No. ...


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