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Malibu Media, LLC v. Ofiesh

United States District Court, N.D. New York

June 19, 2017

MALIBU MEDIA, LLC, doing business as X-Art.com, Plaintiff,
v.
KYLE OFIESH, Defendant.

          THE JAMES LAW FIRM Attorneys for Plaintiff.

          KYLE OFIESH Defendant pro se

          JACQUELINE M. JAMES, ESQ.

          NO APPEARANCE

          MEMORANDUM-DECISION AND ORDER

          FREDERICK J. SCULLIN, JR. DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff 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.

         Pursuant 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.

         II. BACKGROUND

         In its 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 ¶ 34.

         On 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.[1]

         III. DISCUSSION

         A. Plaintiff's copyright claims

         "[A] 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 ...


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