Disney Enterprises v. Farmer, 1:05-CV-103.

427 F.Supp.2d 807

DISNEY ENTERPRISES, INC., et al., Plaintiffs, v. Kathy FARMER, Defendant.

No. 1:05-CV-103.

United States District Court, E.D. Tennessee, Chattanooga Division.

April 10, 2006.

COPYRIGHT MATERIAL OMITTED

Alexandra N. Deneve, Loeb & Loeb, LLP, New York, NY, Christopher T. Varner, Gearhiser, Peters, Lockaby & Tallant, PLLC, Chattanooga, TN, for Plaintiffs.

Kathy Farmer, Benton, TN, pro se.

ORDER

COLLIER, Chief Judge.

Plaintiffs Disney Enterprises, Inc.; Columbia Pictures Industries, Inc.; Warner Bros. Entertainment, Inc.; and Lions Gate Films, Inc. (collectively "Plaintiffs") filed a motion for entry of default judgment (Court File No. 7). Plaintiffs' motion for default judgment was referred to Magistrate Judge Susan K. Lee pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) (Court File No. 12). In accordance with Rule 72(b) of the Federal Rules of Civil Procedure, the magistrate judge filed a report and recommendation ("R & R") recommending judgment be entered as follows: (1) Plaintiffs be awarded statutory damages under 17 U.S.C. § 504(c)(1) in the total amount of $6,000; (2) Plaintiffs be awarded $2,298.57 in attorney's fees and $520.67 in costs under 17 U.S.C. § 505; and (3) Plaintiffs be awarded permanent injunctive relief under 17 U.S.C. §§ 502 and 503 (Court File No 13). Neither party filed objections within the given 10 days.

After reviewing the record, the Court agrees with the magistrate judge's report and recommendation. The Court thus ACCEPTS and ADOPTS the magistrate judge's findings of fact, conclusions of law, and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72(b).

Accordingly, pursuant to Fed.R.Civ.P. 58(a), the Court will set forth on a separate document a judgment in favor of Plaintiffs against Defendant Kathy Farmer.

SO ORDERED.

REPORT AND RECOMMENDATION

LEE, United States Magistrate Judge.

I. Introduction

Plaintiffs Disney Enterprises, Inc., Columbia Pictures Industries, Inc., Warner Bros. Entertainment Inc., and Lions Gate Films, Inc. (collectively the "Plaintiffs") filed an application for entry of a default judgment against defendant Kathy Farmer ("Farmer") pursuant to Fed.R.Civ.P. 55 [Doc. No. 7-1] ("Plaintiffs' motion"). No response to Plaintiffs' motion has been filed by Farmer. Plaintiffs' motion has been referred for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) [Doc. No. 12]. For the reasons set forth herein, it is RECOMMENDED Plaintiffs' motion [Doc. No. 7-1] be GRANTED and judgment be entered as follows: (1) Plaintiffs be awarded statutory damages under 17 U.S.C. § 504(c)(1) in the total amount of $6,000; (2) Plaintiffs be awarded $2,298.57 in attorneys' fees and $520.67 in costs under 17 U.S.C. § 505; and (3) Plaintiffs be awarded permanent injunctive relief under 17 U.S.C. §§ 502 and 503.

II. Background

The Plaintiffs filed this action against Farmer on April 13, 2005 seeking damages and injunctive relief for willful copyright infringement under the copyright laws of the United States, 17 U.S.C. § 101, et seq. [Doc. No. 1-1 at ¶¶ 1-3, 14]. Plaintiffs allege they are among the world's leading creators and distributors of motion pictures, and that they brought this action to stop Farmer from copying and distributing to others unauthorized copies of the Plaintiffs' copyrighted motion pictures over the Internet [id. at ¶ 4]. Plaintiffs allege they are the holders of copyrights in numerous commercially released motion pictures, including King Arthur, Harry Potter And The Prisoner of Azkaban, Spider-Man 2, The Forgotten, and Saw ("the Copyrighted Motion Pictures")¹ [id. at ¶ 11]. Plaintiffs allege Farmer, without their permission and consent, has "used, and continues to use, an online media distribution system to distribute to the public, including by making available for distribution to others, the Copyrighted Motion Pictures" and that Farmer has violated their exclusive rights of reproduction and distribution of the Copyrighted Motion Pictures in violation of the Copyright Act of 1976, 17 U.S.C. § 101 et seq. [Doc. No. 1-1 at ¶ 13]. Plaintiffs further allege Farmer's "acts of infringement have been willful, intentional, and in disregard of and with indifference" to their rights in the Copyrighted Motion Pictures [id. at ¶ 14]. In their complaint Plaintiffs seek: (1) actual or statutory damages at their election pursuant to 17 U.S.C. § 504, (2) attorneys' fees and costs pursuant to 17 U.S.C. § 505, and (3) injunctive relief pursuant to 17 U.S.C. §§ 502 and 503, prohibiting Farmer from further infringing the Plaintiffs' rights in the Copyrighted Motion Pictures and ordering Farmer to destroy all copies of the Copyrighted Motion Pictures [id. at 4-5].

Farmer did not file an answer or otherwise respond to the Plaintiffs' complaint. Plaintiffs then filed a motion for entry of default on August 10, 2005 [Doc. No. 5-1].² Thereafter, a default was entered by the clerk of the district court on August, 23, 2005 [Doc. No. 6], and Plaintiffs' motion was filed on February 10, 2006.

Along with Plaintiffs' motion, Plaintiffs Med a proposed default judgment and permanent injunction in which they elect to seek statutory, instead of actual, damages in the total amount of $6,000 for the infringement [Doc. No. 7-2]. Plaintiffs also seek a permanent injunction enjoining Farmer from further infringement of Plaintiffs' copyrights in the Copyrighted Motion Pictures and any other of their motion pictures and attorneys' fees and costs in the total amount of $2,819.24 [id.].

In the memorandum filed in support of Plaintiffs' motion [Doc. No. 8-1] ("Plaintiffs' memorandum"), Plaintiffs state they: seek to recover a total of only $6,000 in statutory damages, or $1,200 per infringement. Rather than just arbitrarily seeking the maximum amount of statutory damages per infringement, Plaintiffs are requesting what they believe to be the amount that is reasonable and justified under the circumstances of this case, and the costs incurred by Plaintiffs in seeking to protect their exclusive rights under copyright law.

[id. at 4]. Plaintiffs further state they are: requesting total statutory damages in the amount of $6,000 because they believe that this total amount is reasonable and conservative given [Farmer's] conduct and the harm to Plaintiffs. For technical reasons. . ., it is likely that the five works that Plaintiffs downloaded from [Farmer] are only a fraction of the copyrighted works that [Farmer] actually infringed. [Farmer] should not gain the benefit of a windfall because of the accident of how many separate works [Farmer] was caught infringing on a given day.

[id. at 5-6].³

The declaration of Alexandra N. DeNeve ("DeNeve"), an associate attorney representing the Plaintiffs, was filed in support of Plaintiffs' motion [Doc. No. 9-1]. De-Neve's declaration states that to combat infringement of Plaintiffs' copyrighted motion pictures on peer-to-peer ("P2P") networks, Plaintiffs retained MediaSentry ("MS"), a company which provides online anti-piracy and copyright protection services [id. at ¶ 3]. Under the supervision of Plaintiffs' counsel, MS searched several P2P networks for copies of Plaintiffs' copyrighted motion pictures [id. at ¶ 4]. MS then downloaded these files in order to obtain information to confirm the copyright infringement and identify the infringer [id.].

Initially, MS was only able to identify Farmer using the Internet Protocol ("IP") address assigned to her by her Internet Service Provider ("ISP"), BellSouth.net, Inc. [id. at ¶ 5]. Therefore, Plaintiffs filed a "John Doe" action in the Northern District of Georgia, the jurisdiction where Bell-South.net is located [id.]. In that action, Plaintiffs issued a subpoena to Bell-South.net, Inc. seeking the IP addressee's true identity [id. at ¶ 6]. In response to the subpoena, BellSouth.net, Inc. identified Farmer as the individual using the IP address obtained by MS at the time of one of the copyright infringements⁴ [id. at ¶ 7]. Farmer did not reside in the Northern District of Georgia according to the information provided, so Plaintiffs dismissed that action without prejudice, and filed the complaint at issue herein [id. at ¶ 8].

DeNeve's declaration also states after the complaint was filed on April 13, 2005: (1) the summons and complaint were served on Farmer on April 19, 2005, (2) Farmer failed to respond, and (3) on May 24, 2005, Plaintiffs sent Farmer a letter advising her she was in default and if she failed to answer, a default judgment would be sought [Doc. No. 9-1 at ¶ 11]. DeNeve's declaration states she has no reason, to believe Farmer is either an infant, incompetent, or in the military [id. at ¶¶ 13, 14].

With regard to attorneys' fees and costs, DeNeve's declaration states "Plaintiffs have incurred attorneys' fees in the amount of $2,298.57 (which amount reflects a 15% discount on the attorneys' fees of Loeb & Loeb LLP for the purposes of this action only) and litigation costs in this case in the amount of $520.67, for a total of $2,819.24, in attorneys' fees and costs." [id. at ¶ 16]. DeNeve's declaration further states "upon information and belief, the rates requested are commensurate with those generally charged for similar work in this district" [id.]. Billing statements are attached to DeNeve's declaration as Exhibit 5 [Doc. No. 9-6].

Plaintiffs also filed the declaration of Thomas Carpenter ("Carpenter") [Doc. No. 10-1]. Carpenter is the Director of Data Services for MS, which is a company that provides online anti-piracy services for the motion picture, music, game and business software, and print publishing sectors [id. at ¶ 1]. Carpenter's declaration also states Plaintiffs hired MS to monitor and identify copyright infringement of certain motion pictures on P2P networks [id. at ¶ 3]. On November 4, 2005, MS downloaded four movies — Harry Potter And The Prisoner of Azkaban, Spider-Man 2, The Forgotten and Saw — offered by a user with...