| Copyright Report |
August 28, 2017 |
| Plaintiff’s “Sue-Then-Settle” Litigation Tactic Justifies Attorney Fees Award |
| The court granted defendant's motion for attorney fees following plaintiff's voluntary dismissal of its infringement claim in part because defendant showed the purposes of the copyright laws would be furthered by such award. "Plaintiff’s
motivation in this case is questionable given the multiplicity of suits each involving quick settlements, especially when considering the amount of damages it would be entitled to if successful. Defendant’s expert . . . explains
that Plaintiff’s lawsuit is in keeping with a 'sue-then-settle' strategy, by which it seeks to settle lawsuits because it expects to lose money by going to trial, given the small amount in controversy. This case began as a lawsuit
against the owners of thirty different IP addresses. The other defendants either settled out of court or had the cases against them voluntarily dismissed by Plaintiff. This litigation strategy thus hews closely to the concern evinced
by the second Fogerty factor given Plaintiff’s overriding desire to settle these small claims out of court. . . . [Additionally,] granting fees may deter similarly situated plaintiffs from bringing weak claims with the
hope of settling them and not awarding fees may incentivize those same plaintiffs continue the practice requiring future potentially innocent defendants to settle rather than exhaust copious resources defending themselves in court."
|
| Clear Skies Nevada, LLC v. Does 1-30, 1-15-cv-06708 (ILND 2017-08-23, Order) (Virginia M. Kendall) |
| Read Order ➞
Docket Sheet ➞
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| United States District Courts - New Cases (11) |
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| 2-17-cv-06303 (CACD) |
August 25, 2017 |
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| Judge |
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| Claim |
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| Defendant |
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| Plaintiff |
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| Copyrights |
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LA FINGERS. |
| Reg: VA0001883568 |
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| 2-17-cv-06308 (CACD) |
August 25, 2017 |
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| Claim |
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| Defendant |
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| Plaintiff |
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| Copyrights |
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LA Rocks I Love You to the Moon and Back: 440811. |
| Reg: VA0001912320 |
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LA Rocks I Love You to the Moon and Back: 451711CL, 451712CL, 451713, 451714, 451750BT, 451754, 537686. |
| Reg: VA0001889369 |
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LA Rocks Footnotes: 442638. |
| Reg: VA0001949421 |
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LA Rocks I Love You to the Moon and Back: 451578. |
| Reg: VA0001896337 |
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LA Rocks Footnotes: 426766. |
| Reg: VA0001954606 |
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| 2-17-cv-06312 (CACD) |
August 25, 2017 |
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| Claim |
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| Defendant |
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| Plaintiff |
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| Copyrights |
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57157-MD, 64824-MD3. |
| Reg: VA0001790489 |
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64648, et al. |
| Reg: VA0001761088 |
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| 5-17-cv-00432 (NCED) |
August 25, 2017 |
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| Judge |
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| Claim |
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| Defendant |
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| Plaintiff |
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| Copyrights |
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Once Upon a Time in Venice. |
| Reg: PA0002039391 |
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| 7-17-cv-00172 (NCED) |
August 25, 2017 |
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| Judge |
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| Claim |
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| Defendant |
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| Plaintiff |
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| Copyrights |
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Once Upon a Time in Venice. |
| Reg: PA0002039391 |
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| 5-17-cv-00155 (NCWD) |
August 25, 2017 |
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| Judge |
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| Claim |
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| Defendant |
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| Plaintiff |
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| Copyrights |
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Boyka Undisputed 4. |
| Reg: PA0002031176 |
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| 1-17-cv-05027 (NYED) |
August 25, 2017 |
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| Judge |
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| Claim |
| Copyright Infringement |
| DMCA Violation |
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| Defendant |
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| Plaintiff |
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| Copyrights |
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Anything You Synthesize. |
| Reg: SR0000713287 |
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| 1-17-cv-05053 (NYED) |
August 25, 2017 |
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| Claim |
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| Defendant |
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| Plaintiff |
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| Copyrights |
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| Reg: PA0001998057 |
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| 1-17-cv-05057 (NYED) |
August 25, 2017 |
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| Claim |
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| Defendant |
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| Plaintiff |
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| Copyrights |
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| Reg: CopyrightregistrationsinExhibitA |
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| 1-17-cv-06483 (NYSD) |
August 25, 2017 |
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| Claim |
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| Defendant |
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| Plaintiff |
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| Copyrights |
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The Dating, Relationships, and Love (DRL) podcast |
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| 1-17-cv-06493 (NYSD) |
August 25, 2017 |
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| Judge |
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| Claim |
| Copyright Infringement |
| DMCA Violation |
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| Defendant |
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| Plaintiff |
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| Copyrights |
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We Thought She Would Win. |
| Reg: PAu003810667 |
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We Thought She Would Win. |
| Reg: PA0002048297 |
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| United States District Courts - Significant Decisions (16) |
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| 1-17-cv-00188 (CAED) |
August 24, 2017 |
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| Default Judgment |
Rec'md Granting |
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Merits of Claims / Sufficiency of Complaint |
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Direct Infringement |
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The magistrate judge recommended granting plaintiff's motion for default judgment the balance of the Eitel factors tipped in plaintiff's favor. In particular, plaintiff sufficiently pled a prima facie case of infringement.
"Plaintiffs allege that they own valid copyrights for the musical compositions in the BMI Repertoire . . . . Plaintiffs further allege that Defendants are liable for the unauthorized public performance of these musical compositions,
and the Defendants were not licensed or otherwise authorized to publicly perform these musical compositions even though they were previously and repeatedly admonished regarding the need for a license. The Court finds that Plaintiffs’
complaint sufficiently states a claim for copyright infringement, and this factor weighs in favor of default judgment." (page 3) |
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Excusable Neglect |
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The magistrate judge recommended granting plaintiff's motion for default judgment the balance of the Eitel factors tipped in plaintiff's favor. In particular, plaintiff demonstrated that the default was not due to any excusable
neglect on defendant's part. "According to the Court’s docket, it appears that Plaintiffs properly served Defendant by personally delivering a copy of the summons and complaint to him . . . . Plaintiffs also properly served
[a second] Defendant . . . by substituted service . . . by leaving copies with . . . her son . . . . Service of process was therefore sufficient. . . . Moreover, Plaintiffs served Defendants with notice of the Clerk’s entry of
default and the motion for default judgment. Despite ample notice of this lawsuit and Plaintiffs’ intention to seek a default judgment, Defendants have not appeared in this action to date. Thus, the record suggests that they
have chosen not to defend this action, and not that the default resulted from any excusable neglect." (page 5) |
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| Motion for Permanent Injunction |
Rec'md Granting |
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Balance of Hardships |
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Irreparable Injury |
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No Adequate Remedy At Law |
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Public Interest |
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The court granted plaintiff's motion for a permanent injunction enjoining defendants from further public performances of plaintiff's copyrighted songs. "First, Plaintiffs have suffered an irreparable injury because, despite
repeated warnings by [plaintiff], Defendants continued to infringe on Plaintiffs’ copyrights. Second, monetary damages are inadequate to compensate for the injury because Defendants have failed to respond to [plaintiff's] warnings
and there is no assurance that they will stop any infringing activity. Third, as Plaintiffs point out, Defendants cannot claim any legitimate hardships as a result of being enjoined from committing unlawful copyright infringement,
and thus the balance of the hardships weighs in favor of Plaintiffs. Fourth, and finally, the public interest would not be disserved by a permanent injunction restraining Defendants from infringing Plaintiffs’ copyrights."
(page 6) |
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| Motion for Attorney Fees |
Rec'md Granting |
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Hourly Rate |
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Hours Worked |
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Default |
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The magistrate judge recommended granting plaintiff's motion for attorney fees, finding the requested rate and number of hours worked in the instant case to be reasonable. "At an hourly rate of $350, less than 14.5 hours would
be compensated in this case. At an hourly rate of $300, less than 17 hours would be compensated in this case. The Court therefore finds the amount of $5000 to be reasonable for the filing of a complaint, request for entry of
default and motion for default judgment. Plaintiffs additionally request an award of costs incurred in the amount of $830, which includes the filing fee of $400 and fees for service of process in the amount of $430. The Court
finds the requested costs reasonable." (page 8) |
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| 1-15-cv-06708 (ILND) |
August 23, 2017 |
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| Motion to Dismiss - Voluntary Dismissal (FRCP 41(a)) |
Granted |
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Dismissal With/Without Prejudice |
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The court dismissed plaintiff's claim following plaintiff's motion under Rule 41(a)(2), but against plaintiff's wishes the court dismissed the claim with prejudice. "The Court may deny a motion to dismiss without prejudice
when some of [factors in Pace v. S. Express Co., 409 F.2d 331, 334 (7th Cir. 1969) are present]. . . . Here, three of the Pace factors are satisfied. With respect to the first factor, Defendant and her attorneys
have spent a great deal of time and money litigating this case (according to the Defendant, over 150 billable hours at $285 per hour). . . . Pace indicates that a defendant can satisfy this factor by showing that it has
completed 'considerable discovery' at 'substantial cost.' Defendant and her attorneys have done that in the course of this litigation . . . . Regarding the second Pace factor, Plaintiff has caused significant delays, which
have extended the course of this litigation to two years. These delays include repeated failure to respond to communications from defense counsel, delays producing documents in discovery, and a request to extend the deadline
to complete discovery. . . . With respect to the third factor, Plaintiff has provided no explanation regarding its reasons for requesting a dismissal. Defendant compellingly suggests that Plaintiff moved for voluntary dismissal
so as to avoid ever having its claim judged on the merits knowing it had a low likelihood of success." (page 3) |
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| Motion for Attorney Fees |
Granted |
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Objective Reasonableness of Losing Party's Litigation Position |
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Frivolousness of Losing Party's Claims/Defenses |
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The court granted defendant's motion for attorney fees following plaintiff's voluntary dismissal of its infringement claim in part because defendant showed continued litigation by plaintiff would be frivolous and objectively unreasonable.
"Defendant has produced forensic evidence showing that the infringement may not have come from her IP address and that the methods used by Plaintiff to identify infringers are flawed. Given that Plaintiff has not, at this
late stage in the litigation process, made any attempt to examine Defendant’s computer nor produced any evidence to show that Defendant herself engaged in the alleged BitTorrent activity . . . any continued litigation beyond
this stage would be frivolous and objectively unreasonable. Accordingly, the first and third Fogerty lean in favor of Defendant." (page 5) |
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Goals of Compensation and Deterrence |
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Party's Motivation |
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The court granted defendant's motion for attorney fees following plaintiff's voluntary dismissal of its infringement claim in part because defendant showed the purposes of the copyright laws would be furthered by such award. "Plaintiff’s
motivation in this case is questionable given the multiplicity of suits each involving quick settlements, especially when considering the amount of damages it would be entitled to if successful. Defendant’s expert . . . explains
that Plaintiff’s lawsuit is in keeping with a 'sue-then-settle' strategy, by which it seeks to settle lawsuits because it expects to lose money by going to trial, given the small amount in controversy. This case began as a lawsuit
against the owners of thirty different IP addresses. The other defendants either settled out of court or had the cases against them voluntarily dismissed by Plaintiff. This litigation strategy thus hews closely to the concern
evinced by the second Fogerty factor given Plaintiff’s overriding desire to settle these small claims out of court. . . . [Additionally,] granting fees may deter similarly situated plaintiffs from bringing weak claims
with the hope of settling them and not awarding fees may incentivize those same plaintiffs continue the practice requiring future potentially innocent defendants to settle rather than exhaust copious resources defending themselves
in court." (page 6) |
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| 1-15-cv-07418 (ILND) |
August 24, 2017 |
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| Motion for Summary Judgment -- No Work for Hire |
Granted |
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Agency |
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The court granted summary judgment to plaintiff that its works of choreography for defendant dance company were not works for hire because plaintiff was an independent contractor rather than an employee. "[Defendant] issued
1099 forms to [plaintiff] for 2013, 2014, and 2015, listing her earnings as 'non-employee compensation.' [Defendant] did not withhold taxes, nor did it give [plaintiff] any benefits. Although [defendant] controlled the type of
dance (such as jazz, tap, or lyrical), set the time and location of the dance class, and retained the final decision-making authority about whether [defendant] students would perform the dances at the recital, there is no evidence
that [defendant] . . . exercised any creative or technical control over the choreography. . . . Defendants also argue that there is a dispute over how much control each party exercised. . . . [H]owever, the appropriate focus
is on the control of the creative aspect of the dance—the copyrighted material itself—into which [defendant] had essentially no input. The dance routines were refined when students tried them out during class, as Defendants
emphasize; but it was [plaintiff], not [defendant] or anyone else, who made the refinements." (page 18) |
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| Motion for Summary Judgment -- License |
Denied |
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Implied License |
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The court denied defendants' motion for summary judgment that it possessed a license to plaintiff's works of choreography because the terms, duration, and cancellation of an alleged implied license required further factual development.
"Whatever her intentions before she resigned, [plaintiff] argues that she revoked any implied license when she sent her text messages. Whether this was an effective revocation, however, is also disputed. Law governing this
issue is uncertain. . . . It is not clear whether [plaintiff] received consideration for her choreography. . . . [T]he record here does not establish that the payments to [plaintiff] were for choreography in addition to her teaching
services. The Illinois-based rule that [plaintiff] argues for also leaves questions unanswered. It is not clear whether any implied license in this case really was of unspecified duration. . . . [T]he facts could support a finding
that Defendants had an implied license to use [plaintiff's] choreography for a single dance season: a new dance season began every school year, after which participants were required to sign up for classes again and pay new fees,
and a new . . . dance team was selected. [Plaintiff] testified that she expected that students would perform her dances at the recital, meaning that whether the contract was of unspecified duration is disputed. Under either side’s
proposed rule, there is a dispute about whether the license was revocable." (page 22) |
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| Motion for Summary Judgment -- No Contributory Infringement |
Denied |
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Knowingly Induced/Materially Contributed to Infringement |
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The court denied defendants' motion for summary judgment of no contributory infringement because defendants failed to show they lacked knowledge of plaintiff's claims of copyright protection. "Defendants believe that they
had even less notice than the defendants in Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361 (N.D. Cal. 1995), because [plaintiff] had not yet applied for copyright registration
at the time of the performances. But Defendants arguably had even more notice than the defendants in Religious Technology Center, because Defendants knew that [plaintiff] had choreographed at least some of the dances at
issue. Defendants again invoke [a contract plaintiff had her dance students sign, but which defendants did not countersign] in support of their claim of fair use, but that document does not support a defense . . . . Indeed, all
of Defendants’ 'lack of knowledge' argument is directed at knowledge of [plaintiff's] claimed copyright; Defendants do not claim that they did not know of the infringing activity—that [defendant] students performed at the summer
talent shows—and Defendants had knowledge of at least some of these performances." (page 25) |
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| Motion for Summary Judgment |
Granted |
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Unclean Hands |
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The court granted plaintiff's motion for summary judgment as to several of defendants' affirmative defense of unclean hands. "Defendants warn that 'an award for Plaintiff would mean that every single dance studio teacher across
the country who wishes s/he were being paid more could simply quit working shortly before their students’ dance recital, and use the threat of costly copyright litigation and six-figure statutory damages to increase their paychecks
or bolster their own clientele.' The court does not share the assumption that all dance teachers are also choreographers. Nor does Plaintiff’s pursuit of statutory rights constitute unclean hands." (page 28) |
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| Motion for Summary Judgment -- No Infringement -- Fair Use |
Denied |
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Transformativeness |
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The court denied defendants' motion for summary judgment of no infringement because due to fair use in part because defendants failed to show their use of plaintiff's dance choreography was transformative. "The only support
for the claim that their use was 'transformative' is that the props and costumes that appear in the videos that [plaintiff] submitted to the Copyright Office were different from those used in the recital. This is not transformative
use. . . . In this case, that the videos that [plaintiff] submitted to the Copyright Office show specific performances of the dances does not mean that her copyright covers only those performances. Changing costumes does not
transform the choreography itself." (page 29) |
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| 1-14-cv-14373 (MAD) |
August 24, 2017 |
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| Default Judgment |
Rec'md Denying in Part, Granting in Part |
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Willful Infringement (17 USC § 504(c)(2)) |
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Default |
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The magistrate judge recommended partially granting plaintiff's motion for default judgment of infringement, because plaintiff demonstrated defendant's willful infringement of plaintiff's documentary film. "[Plaintiff] alleged
that he and [defendant] had a verbal agreement 'to protect' the film . . . that as part of that agreement, [defendant] was only to do with the film what [plaintiff] instructed . . . that [plaintiff] did not instruct [defendant]
to post the film on YouTube . . . that [plaintiff] informed [defendant] to take the film down from YouTube . . . and that [defendant] did not do so. [Defendant] initially appeared in this action, so he clearly was aware of [plaintiff's]
claims. These facts, along with [defendant's] default in this matter, are sufficient for a finding of willfulness." (page 9) |
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Lost Profits |
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Willful Infringement (17 USC § 504(c)(2)) |
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The magistrate judge recommended partially granting plaintiff's motion for default judgment and awarding statutory damages in the amount of $5,000. "[Plaintiff] has . . . provided evidence that the motion picture/video was
viewed 56 times on YouTube . . . and that at some point in time, the purchase price of the film ranged from $39.99 to $295.00 . . . and the rental price was $75.00. Given these facts and statutory damage awards in other cases,
this court concludes that $5,000 is reasonable and necessary as a statutory damage award in this case, and will have the requisite deterrent effect on the defendant." (page 11) |
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| 1-17-cv-02717 (NYED) |
August 24, 2017 |
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| Renewed Motion -- Motion for Expedited Discovery |
Denied |
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Expedited Discovery |
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Defendant Expectation of Privacy |
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After allowing plaintiff to serve third-party ISPs with Rule 45 subpoenas and extending plaintiff's time for service, the court denied plaintiff's renewed motion to take expedited discovery. The court held that potential defendants'
privacy concerns outweighed any efficiency plaintiff might achieve. "Hour long depositions of unserved potential defendants regarding whether they used the infringing devices, questions speaking directly to the merits of
Plaintiff's claim, not only lack specificity but weigh against the potential defendants' expectation of privacy. Additionally, alternative means of proceeding and advancing Plaintiff's claim exist. Namely, Plaintiff can serve
Defendants and seek information through traditional discovery." (page 1) |
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| 1-16-cv-07443 (NYSD) |
August 24, 2017 |
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| Motion to Dismiss -- Failure to State a Claim |
Denied In Part, Granted in Part |
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License for Authorized Use |
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Authorship |
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Sufficiency of Pleadings |
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The court largely granted defendants' motion to dismiss plaintiffs' infringement claims because a co-author of plaintiffs' work was freely entitled to create the allegedly infringing derivative work. "Where an author creates
a derivative work from a work he co-authored with others, the co-authors of the underlying work acquire no copyright ownership in the newly created work. . . . The Court holds that [the co-author] was not required to grant his
[derivative work] co-authors a license. A co-author enjoys 'the right to use or to license the work as he or she wishes.' [The co-author] was thus entitled to exploit [the original work] as he wished, which he did by co-writing
[the derivative work] with Defendants . . . and by allowing [defendants] to release, distribute, and manage [the derivative work]. [The co-author's] failure to grant a license to his co-authors of [the derivative work] does not
render Defendants liable for copyright infringement." (page 5) |
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| 2-16-cv-01062 (OHSD) |
August 24, 2017 |
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| Motion for Summary Judgment -- Re Damages |
Denied In Part, Granted in Part |
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Statutory Damages |
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The court partially granted plaintiff's motion for a judgment of statutory damages, decreasing the amount requested because there was little evidence of willful infringement or profit from the infringement. "Although the entry
of default has established a copyright infringement by defendants . . . it is not necessarily the case that they were the original users who made plaintiff’s work available to the public. The nature of BitTorrent is such that
defendants likely would not have reaped any profit from their participation in the infringement of plaintiff’s copyrights except for the price of a movie theater ticket or DVD that they saved by illegally downloading the emotion
pictures. There is no evidence that defendants profited from the infringement by using the film commercially. The court concludes that an award of statutory damages in the amount of $1,500 against defendant[s] . . . will properly
account for the defendants’ gain, plaintiff’s loss and the public’s interest in deterring future violations." (page 2) |
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| 2-16-cv-04786 (PAED) |
August 23, 2017 |
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| Motion to Amend or Supplement Pleading |
Granted |
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Undue Delay |
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Undue Prejudice |
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Amendment of Pleadings |
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The court granted plaintiff leave to amend its complaint because plaintiff had been diligent in its investigation of unknown defendants. "[L]ess than two months have passed since Plaintiff was granted permission to conduct
limited discovery to ascertain the identity of the Unknown Defendants. Having learned the true identity of [one defendant], Plaintiff promptly seeks leave to amend the complaint to assert claims against [a properly named individual],
remove [an unknown name], and to revise the remaining claims. Though it is not possible to know whether these new claims and/or amendments would be futile, it is fair to state that the amendments do not prejudice the other Defendants,
as they were aware that the limited discovery could result in Plaintiff's claims being amended and/or parties being added or removed. None of the Defendants had opposed Plaintiff's previous motion for limited discovery."
(page 2) |
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| 2-16-cv-01884 (WAWD) |
August 24, 2017 |
|
| Motion to Dismiss -- Failure to State a Claim |
Denied |
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Copying |
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Sufficiency of Pleadings |
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The court denied defendant's motion to dismiss plaintiff's infringement claim because plaintiff sufficiently pled the element of copying. "Plaintiff alleges that [the non-party ISP] assigned a distinct IP address to defendant
[defendant], that defendant['s] . . . IP address 'was observed infringing on plaintiff’s motion picture' on a certain date and time; that the 'physical make up and layout' of defendant['s] . . . residence and the security measures
taken by [the ISP] make it unlikely that the IP address was hijacked by others; and that the persistent nature of the infringing activity would have diminished the bandwidth of defendant['s] . . . internet connection such that
he would likely have been aware that it was occurring. Taking all reasonable inferences in favor of plaintiff as the nonmoving party, the fact that defendant [defendant's] IP address was observed copying [the work], considered
together with the other allegations in plaintiff’s complaint, supports a reasonable inference that defendant [defendant] engaged in the copyright infringement alleged in plaintiff’s complaint." (page 1) |
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