United States District Court, S.D. New York
MCGRAW-HILL GLOBAL EDUCATION HOLDINGS, LLC, ELSEVIER, INC., JOHN WILEY & SONS, INC., CENGAGE LEARNING, INC., and PEARSON EDUCATION, INC., Plaintiffs,
FARUKH KHAN, JOONWON PARK, JEONG HYUN CHU, MASUD KARIM, MD. RABIUL ISLAM, and JOHN DOES 1-10 d/b/a/ www.testbanksolution.com, www.testbankpdfdownload.com, www.testbankonline.com, www.testbankcart.com, www. digitaltestbank. com, www.testbank007.com, www. solutionmanualcenter. com, www.testbank- official.com, and www.solutionmanualonline.com, Defendants.
G. Gardephe United States District Judge.
McGraw-Hill Global Education Holdings, LLC, Elsevier, Inc.,
John Wiley & Sons, Inc., Cengage Learning, Inc., and
Pearson Education Inc. publish educational works. In this
action, Plaintiffs allege that Defendants Farukh Khan,
Joonwon Park, Jeong Hyun Chu, Masud Karim, Rabiul Islam, and
John Does 1-10 have infringed on Plaintiffs' copyrights
in their educational works, in violation of 17 U.S.C.
§§ 106(1), 106(3), and 501. (Cmplt. (Dkt. No.
1)¶¶ 1-2, 40-46)
allege that Defendants own, control, and operate multiple
illegal online websites and forums to create, store, and sell
unauthorized digital copies of Plaintiffs' WorkSi
(Id. ¶¶ 23-28) Defendants operate these
infringing websites under multiple names or aliases and
through the use of multiple email addresses. (Id.
¶¶ 24-25) At Defendants' websites, purchasers
or potential purchasers can search for listings of
unauthorized digital copies of Plaintiffs' instructor
solutions manuals and test banks. (Id. ¶ 28)
Defendants also host "product pages" where visitors
can download free sample copies of the instructor solutions
manuals and test banks. (Id. ¶¶ 29-30)
Defendants have also registered multiple domain names and
established corresponding websites, some with identical or
duplicative content, all to avoid interruption of their
illegal business should any one website or payment account be
shut down. (Id. ¶ 39)
have made test purchases and downloaded free samples from
Defendants' websites, confirming that Defendants are
providing customers with digital copies of Plaintiffs'
instructor solutions manuals and test banks. (Id.
¶ 33) Plaintiffs allege that Defendants'
reproduction and distribution of Plaintiffs' copyrighted
works has occurred without authorization and without
compensation to Plaintiffs, their authors, and others in the
legitimate chain of commerce. (Id. ¶ 35)
action was commenced on November 21, 2016. (See id.)
That same day, this Court issued an order to show cause why a
preliminary injunction should not be entered. (Order (Dkt.
No. 3)) This Court also granted Plaintiffs' motion for an
order authorizing alternative service, and directed
Plaintiffs to make service on Defendants pursuant to
Fed.R.Civ.P. 4(f)(3), by delivering electronic copies of the
order, summons, and Complaint to Defendants' email
addresses. (Id. at 7-8) On November 23, 2016,
Plaintiffs certified that they had served copies of "(1)
Plaintiffs' Complaint with Exhibit A. (2) the Summonses,
(3) the Order, and (4) Plaintiffs' moving papers along
with all supporting declarations and exhibits on Defendants
on November 23, 2016 via electronic mail at Defendants'
Email Addresses as specified in [this Court's]
Order." (Certificate of Service (Dkt. No. 11) at 1)
December 5, 2016, this Court held a hearing on
Plaintiffs' request for a preliminary injunction, and the
Court subsequently entered an order granting Plaintiffs'
motion for a preliminary injunction. (Order (Dkt. No. 15))
The preliminary injunction (1) enjoined Defendants from
infringing Plaintiffs' works; (2) enjoined Defendants
from transferring ownership or control of the websites or
domain names associated with Defendants' websites; and
(3) directed Defendants to locate all accounts connected to
Defendants websites and refrain from transferring or
withdrawing any funds from therein. (Order (Dkt. No. 3) at
February 27, 2017, Plaintiffs moved for entry of default
against Defendants, given their failure to appear or
otherwise respond to the Complaint. (Request for Default
(Dkt. No. 19)) On February 28, 2017, the Clerk of Court
issued a certificate of default. (Clerk's Certificate of
Default (Dkt. No. 21))
8, 2018, this Court issued an Order to Show Cause why a
default judgment and permanent injunction should not be
entered against Defendants. (Order to Show Cause (Dkt. No.
22)) This Court ordered that service by email be made by June
11, 2018, and scheduled a hearing for June 22, 2018 at 10:00
a.m. (Id. at 2) On June 8, 2018, Plaintiffs filed an
Affidavit of Service, attesting that copies of this
Court's Order to Show cause and the accompanying
memorandum of law and declaration had been served on
Defendants via electronic mail in accordance with this
Court's November 21, 2016 Order authorizing alternative
service. (Aff. of Service (Dkt. No. 25))
have not filed an opposition and did not appear at the June
22, 2018 hearing.
plaintiff's factual allegations, except those relating to
damages, must be accepted as true where, as here, the
defendant defaults." Gucci Am., Inc. v.
Tvrrell-Miller, 678 F.Supp.2d 117, 119 (S.D.N.Y. 2008).
'"[B]efore a court grants a motion for default
judgment, [however, ] it must first assure itself that it has
personal jurisdiction over the defendant."' City
of New York v. Mickalis Pawn Shop. LLC, 645 F.3d 114,
133 (2d Cir. 2011) (citation omitted) (alteration in
original); see also Sinoving Logistics Pte Ltd. v. Yi Da
Xin Trading Corp., 619 F.3d 207, 214 (2d Cir. 2010)
("It was ... correct for the District Court... to
inquire into its personal jurisdiction over [defendant] ...
In so doing the Court was ... 'exercis[ing] its
responsibility to determine that it ha[d] the power to enter
[a] default judgment.'" (quoting Williams v.
Life Sav. &Loan, 802 F.2d 1200, 1203 (10th Cir.
1986))). Where, as here, a plaintiff is proceeding under a
federal statute that does not contain its own jurisdictional
provision, "federal courts are to apply the personal
jurisdiction rules of the forum state, provided that those
rules are consistent with the requirements of Due
Process." Penguin Group (USA) Inc. v. Am.
Buddha, 609 F.3d 30, 35 (2d Cir. 2010) (citations
New York's Long-Arm Statute
New York CPLR § 302(a)(1)
York's long-arm statute provides, in relevant part, that
a court may exercise specific personal jurisdiction over a
non-domiciliary who "transacts any business within the
state or contracts anywhere to supply goods or services in
the state." N.Y. CPLR § 302(a)(1). To establish
personal jurisdiction under this provision, a plaintiff must
show that "(1) defendant purposefully availed himself of
the privilege of doing business in the forum state such that
the defendant could foresee being brought into court there;
and (2) plaintiff's claim arises out of or is related to
the defendant's contacts with the forum state."
Aqua Products, Inc. v. Smartpool. Inc., No. 04 Civ.
5492 (GBD), 2005 WL 1994013, at *5 (S.D.N.Y. Aug. 18, 2005).
analyzing whether a defendant's internet activity rises
to the level of purposeful activity sufficient to satisfy
Section 302(a)(1), courts apply a 'sliding scale'
test based on the level of a website's
interactivity." Audiovox Corp. v. S. China Enter.,
Inc., No. 11 Civ. 5142 (JS) (GRB), 2012 WL 3061518, at
*3 (E.D.N.Y. July 26, 2012) (citing Best Van Lines. Inc.
v. Walker, 490 F.3d 239, 251 (2d Cir. 2007)
("'[T]he likelihood that personal jurisdiction can
be constitutionally exercised is directly proportionate to
the nature and quality of commercial activity that an entity
conducts over the Internet.'" (quoting Zippo
Mfg. Co. v. Zippo Dot Com. Inc., 952 F.Supp. 1119, 1124
(W.D. Pa. 1997)))). "A website that merely passively
provides information that is accessed by individuals in New
York is not grounds for the exercise of personal
jurisdiction." Id. at *3 (collecting cases).
"However, if a website is interactive and allows a buyer
in New York to submit an order online, courts typically find
that the website operator is 'transacting business'
in New York and is therefore subject to the court's
jurisdiction." Audiovox, 2012 WL 3061518, at *3
(collecting cases); Hsin Ten Enter. USA, Inc. v. Clark
Enterprises, 138 F.Supp.2d 449, 456 (S.D.N.Y. 2000)
("Generally, an interactive website supports a finding
of personal jurisdiction over the defendant.").
Plaintiffs allege and have proffered evidence that Defendants
own and operate "highly interactive" online
websites and forums, through which Defendants distribute
digital copies of Plaintiffs' works to customers for a
fee. (Cmplt. (Dkt. No. 1) ¶¶ 23-26, 28; Lichtman
Decl. (Dkt. No. 5) ¶¶ 5, 8-10, 12-17)
Defendants' websites have received thousands of visits
from customers located throughout the United States,
including in this District. (Cmplt. (Dkt. No. 1) ¶ 34;
Lichtman Decl. (Dkt. No. 5) ¶ 10) Moreover,
Defendants' websites are "highly interactive,"
allowing prospective customers in New York to browse and
purchase unauthorized digital copies of Plaintiffs'
works. (Cmplt. (Dkt. No. 1) ¶¶ 26-34; Lichtman
Decl. (Dkt. No. 5) ¶¶ 10-16) Because
Defendants' "website is interactive and allows a
buyer in New York to submit an order online,"
Audiovox, 2012 WL 3061518, at *3, Plaintiffs have
established this Court's personal jurisdiction over
Defendants pursuant to N.Y. CPLR § 302(a)(1).
New York CPLR § 302(a)(3)(ii)
CPLR. § 302(a)(3)(h) provides that "any
non-domiciliary who in person or through an agent
'commits a tortious act without the state causing injury
to person or property within the state may be subject to
personal jurisdiction if he .. . expects or should reasonably
expect the act to have consequences in the state and derives
substantial revenue from interstate or international
commerce....'" V Cars. LLC v. Israel Corp.,
902 F.Supp.2d 349, 366 (S.D.N.Y 2012) (quoting Bank
Brussels Lambert v. Fiddler Gonzalez & Rodriguez,
171 F.3d 779, 790-91 (2d Cir. 1999)). In a copyright
infringement action, the situs of the injury - for purposes
of long-arm jurisdiction under N.Y. CPLR § 302(a)(3)(h)
- is the residence or "location of the copyright
holder." Penguin Grp. (USA) Inc. v. Am. Buddha,
16N.Y.3d295, 301-02, 304 (2011) ("[A] New York copyright
owner alleging infringement sustains an in-state injury
pursuant to CPLR 302(a)(3)(h) when its printed literary work
is uploaded without permission onto the Internet for public
the situs of Plaintiffs' injury is New York, where the
majority of Plaintiffs have their principal place of
business, or are incorporated. (See id.;
Cmplt. (Dkt. No. 1) ¶¶ 6-10) "It is [also]
reasonably foreseeable that the provision of materials that
infringe the copyrights and trademarks of a New York company
will have consequences in New York."
McGraw-Hill Companies, Inc. v. Ingenium Techs.
Corp., 375 F.Supp.2d 252, 256 (S.D.N.Y. 2005). Moreover,
Plaintiffs have demonstrated that Defendants derive
substantial revenue from sales throughout the United States.
(See Cmplt. (Dkt. No. 1) ¶ 34 (citing report indicating
that there were almost 40, 000 visits to one of
Defendants' websites, 67% of which came from visitors
located in the United States)). Accordingly, this Court
concludes that it also has personal jurisdiction over
Defendants pursuant to New York CPLR § 302(a)(3).