Af Holdings LLC v. Bossard
Decision Date | 14 February 2013 |
Docket Number | Case No. 1:12–CV–1101. |
Citation | 976 F.Supp.2d 927 |
Parties | AF HOLDINGS LLC, Plaintiff, v. Nicholas BOSSARD, Defendant. |
Court | U.S. District Court — Western District of Michigan |
OPINION TEXT STARTS HERE
Jonathan Wells Tappan, Jonathan W. Tappan PLLC, Troy, MI, for Plaintiff.
ORDER PARTIALLY GRANTING PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT JUDGMENT
On October 8, 2012, AF Holdings LLC (“AF”) sued Nicholas Bossard for infringingits exclusive copyright to the film Sexual Obsession. AF claims that Bossard unlawfully obtained a copy of Sexual Obsession and then, without AF's authorization, used BitTorrent, an online file sharing protocol, to distribute portions of the film to thousands of people. (Compl., doc. # 1, at ¶ 1.) AF's Complaint alleges four counts against Bossard. Count I alleges that Bossard infringed AF's copyright by downloading Sexual Obsession from BitTorrent. (Id. at ¶¶ 25–35.) Count II alleged that Bossard infringed AF's copyright by distributing Sexual Obsession over BitTorrent. ( Id. at ¶¶ 36–44.) Count III alleged that, by sharing his copy of Sexual Obsession with other BitTorrent users, Bossard contributed to those users' infringement of AF's copyright. ( Id. at ¶¶ 45–52.) Count IV alleged that Bossard engaged in a civil conspiracy to infringe AF's copyright by using BitTorrent's peer-to-peer file distribution method to help other users illegally download Sexual Obsession. (Id. at ¶¶ 46–58.)
AF served Bossard with process on November 2, 2012. (Verified Return of Service, doc. # 5.) On November 30, 2012, Bossard not having appeared, AF moved for entry of a default against him. (Mot. for Entry of Default, doc. # 7, at 1.) The Clerk entered the default on January 2, 2013 and, twelve days later, AF filed the motion for default judgment now before the Court. (Default, doc. # 9; Mot. for Default J., doc. # 10.) In its Motion, AF requests $150,000 in statutory damages, $525 in attorney's fees, and $391.75 in costs. (Mot. for Default J., doc. # 10, at 9.) As of this Order, Bossard has still not responded to any of the filings in this case.
Once the Clerk has entered a default against a defendant, the Court must treat all well-pleaded allegations in the Complaint as true. Thomas v. Miller, 489 F.3d 293, 299 (6th Cir.2007) ( ); see also Brockton Savings Bank v. Peat, Marwick, Mitchell & Co., 771 F.2d 5, (1st Cir.1985) (). Thus, by virtue of the Clerk's entry of a default against Bossard in this matter, AF has conclusively established that Bossard is liable on all four counts of AF's Complaint.
The mere fact of Bossard's liability, however, does not automatically entitle AF to a default judgment. Even after entry of default, the decision to grant a default judgment is within the Court's discretion. Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir.1974); see also10A Charles A. Wright et al., Federal Practice and Procedure § 2685 (3d ed. 1998) (). In determining whether to enter a default judgment, courts typically consider factors such as:
the amount of money potentially involved; whether material issues of fact or issues of substantial public importance are at issue; whether the default is largely technical; whether plaintiff has been substantially prejudiced by the delay involved; and whether the grounds for default are clearly established or are in doubt.
10A Wright et al. at § 2685. Those factors all point toward granting AF's motion for a default judgment in this case.
The only remaining question, then, is the amount of the judgment. The owner of a copyright may collect either actual damages or statutory damages from an infringer. 17 U.S.C. § 504(a). In its Complaint, AF notified Bossard that it might pursue either actual damages or statutory damages. (Compl., doc. # 1, at 11.) AF has since chosen to seek statutory damages of $150,000, which is the maximum statutory damages award available in cases involving infringement of a single copyright. 17 U.S.C. § 504(c)(2). In the absence of wilfulness, the maximum statutory damages for infringing a single copyright are $30,000. Id. at § 504(c)(1). AF contends that a $150,000 award is appropriate because Bossard wilfully infringed its copyright. (Br. in Supp. of Mot. for Default J., doc. # 10–1, at 8.)
To recover the statutory maximum, AF must first prove that Bossard wilfully infringed its copyright. 17 U.S.C. § 504(c)(2) (). There are factual allegations in the Complaint—which the Court must now accept as true—that would support a finding that Bossard wilfully infringed AF's copyright. (Compl., doc. # 1, at ¶ 28 (); id. at ¶ 20 (); id. at ¶ 37 ().) But the factual record is necessarily sparse in the default judgment context, and simple conclusory assertions of wilful conduct are less persuasive than a finding based on a fully litigated record.
Moreover, merely proving wilfulness does not automatically entitle a copyright holder to the statutory maximum. The Court retains broad discretion to determine an appropriate damages figure in each case. See17 U.S.C. § 504(c)(2) () (emphasis added); Zomba Enterprises, Inc. v. Panorama Records, Inc., 491 F.3d 574, 578 (6th Cir.2007). In exercising that discretion, courts typically consider factors such as the expenses saved and the profits reaped by the defendants in connection with the infringement and the revenues lost by the plaintiff as a result of the infringement. See N.A.S. Import, Corp. v. Chenson Enters., Inc., 968 F.2d 250, 252 (2d Cir.1992). As there is no evidence of how much money AF actually lost as a...
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