United States District Court, N.D. New York
JAMES LAW FIRM Attorneys for Plaintiff.
OFIESH Defendant pro se
JACQUELINE M. JAMES, ESQ.
MEMORANDUM-DECISION AND ORDER
FREDERICK J. SCULLIN, JR. DISTRICT JUDGE
filed its complaint in this action on February 21, 2016,
alleging that an unnamed Defendant had illegally copied and
distributed certain of Plaintiff's copyrighted works
through the peer-to-peer file sharing software BitTorrent.
See Dkt. No. 1.
to Rule 26(d) of the Federal Rules of Civil Procedure, the
Court issued an Order authorizing the issuance of a Rule 45
subpoena on a certain Internet Service Provider, Time Warner
Cable, to determine Defendant's identity based on his
Internet Protocol ("IP") address. See Dkt.
No. 6. On October 11, 2016, Plaintiff filed its amended
complaint, naming Kyle Ofiesh as Defendant. See Dkt.
No. 13 at ¶ 10. Defendant failed to answer the amended
complaint or otherwise appear in this action.
amended complaint, Plaintiff alleges that it "is the
owner of the Copyrights-in-Suit, as outlined in Exhibit B,
each of which covers an original work of authorship."
See Dkt. No. 13 at ¶ 31. Plaintiff further
asserts that, "[b]y using BitTorrent, Defendant copied
and distributed the constituent elements of each of the
original works covered by the Copyrights-in-Suit"
without Plaintiff's authorization, permission or consent.
See Id. at ¶¶ 32-33. As a result of these
actions, Plaintiff contends, Defendant violated its exclusive
right to (1) "[r]eproduce the works in copies, in
violation of 17 U.S.C. §§ 106(1) and 501"; (2)
"[r]edistribute copies of the works to the public by
sale or other transfer of ownership, or by rental, lease or
lending, in violation of 17 U.S.C. §§ 106(3) and
501"; (3) "[p]erform the copyrighted works, in
violation of 17 U.S.C. §§ 106(4) and 501, by
showing the works' images in any sequence and/or by
making the sounds accompanying the works audible and
transmitting said performance of the works, by means of a
device or process, to members of the public capable of
receiving the display"; and (4) "[d]isplay the
copyrighted works, in violation of 17 U.S.C. §§
106(5) and 501, by showing individual images of the works
nonsequentially and transmitting said display of the works by
means of a device or process to members of the public capable
of receiving the display[.]" See Id. at ¶
December 8, 2016, Plaintiff requested a Clerk's Entry of
Default, see Dkt. No. 22, which the Clerk of the
Court entered on December 9, 2016, see Dkt. No. 24.
Plaintiff now moves for entry of a default judgment against
Defendant for statutory damages, a permanent injunction to
prevent Defendant from further infringing its copyrights, and
an award of costs and reasonable attorney's fees
associated with the litigation of this action. See
Dkt. No. 26.
Plaintiff's copyright claims
party's default is deemed to constitute a concession of
all well pleaded allegations of liability[.]"
Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty
Corp., 973 F.2d 155, 158 (2d Cir. 1992) (citation
omitted); see also Granite Music Corp. v. Center St.
Smoke House, Inc., 786 F.Supp.2d 716, 726 (W.D.N.Y.
2011) (citation omitted). The court, however, must still
decide "whether, based on the complaint's
well-pleaded allegations, the complaint states a claim upon
which relief can be granted." Granite Music
Corp., 786 F.Supp.2d at 726 (citations omitted). If the
court determines that the defendant is liable, "the ...