Automattic Inc. v. Steiner

• Decision Date: 02 March 2015
• Docket Number: No. C 13–5413 PJH,C 13–5413 PJH
• Citation: 82 F.Supp.3d 1011,115 U.S.P.Q.2d 1710
• Court: U.S. District Court — Northern District of California
• Parties: Automattic Inc., et al., Plaintiffs, v. Nick Steiner, Defendant.

82 F.Supp.3d 1011

115 U.S.P.Q.2d 1710

Automattic Inc., et al., Plaintiffs

v.Nick Steiner, Defendant.

No. C 13–5413 PJH

United States District Court, N.D. California.

Signed March 2, 2015

Joseph Charles Gratz, Durie Tangri LLP, San Francisco, CA, for Plaintiffs.

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; ORDER GRANTING MOTION FOR DEFAULT JUDGMENT

PHYLLIS J. HAMILTON, District Judge

The court has reviewed Magistrate Judge Joseph C. Spero's report and recommendation regarding plaintiffs' motion for default judgment. The report and recommendation was filed on October 6, 2014. During the intervening time, plaintiffs Automattic, Inc. (“Automattic”) and Oliver Hotham (“Hotham”) have been attempting to serve defendant Nick Steiner (who resides in the United Kingdom) with a copy of the report and recommendation, but have to date been unsuccessful.

Although defendant was not served with the report and recommendation, and thus did not file any objections, the court is satisfied by Judge Spero's detailed findings that the summons and complaint were properly served on defendant. There is no clear requirement in 28 U.S.C. § 636(b) that a report and recommendation be served on the opposing party. However, the court normally requests that the moving party do so, out of an abundance of caution. In this case, given that defendant was properly served (notwithstanding the difficulty of service in the U.K. under the Hague Convention) yet chose to default, the court will require no further expenditure of resources.

The court finds the report correct, well-reasoned and thorough, and adopts it in every respect. Accordingly, plaintiffs' motion for default judgment is GRANTED. Judgment shall be entered for the plaintiffs, and the court awards plaintiffs damages in the amount of $960.00 for Hotham's work and time, $1,860.00 for time spent by Automattic's employees, and $22,264.00 for Automattic's attorney's fees, for a total of $25,084.00.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION RE MOTION FOR DEFAULT JUDGMENT

Dkt. No. 22

JOSEPH C. SPERO United States Magistrate Judge

I. INTRODUCTION

This action arises under subsection (f) of the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”), which provides a cause of action against any person who “knowingly materially misrepresents” that material or activity infringes a copyright to utilize the DMCA's takedown notice procedures. See 17 U.S.C. § 512(f). Plaintiffs Automattic Inc. (“Automattic”) and Oliver Hotham (“Hotham”) allege that Defendant Nick Steiner (“Defendant”) violated subsection 512(f) by knowingly misrepresenting that Hotham published material on Automattic's website that infringed Defendant's copyright. Defendant has not filed an answer or otherwise responded to this action, and default has been entered by the clerk. Docket No. 21.

On May 22, 2014, Plaintiffs filed a Motion for Default Judgment (“Motion”). A hearing was held at which the Court requested supplemental evidence regarding damages. For the reasons explained below, it is recommended that Plaintiffs' Motion for Default Judgment be GRANTED.

II. BACKGROUND

A. Digital Millennium Copyright Act (“DMCA”),

Congress passed the DMCA in 1998, adding § 512 to Title 17 of the U.S.Code. See 17 U.S.C. § 512. The purpose of the DMCA was to create an environment that facilitated electronic commerce, digital technology, and expression while protecting intellectual property rights. S. Rep. No. 105190, at 2 (1998). Subsection 512(c) provides a detailed procedure through which a copyright owner may request removal of infringing content from a web-publishing platform. Id. § 512(c). If a copyright owner believes in good faith that content is infringing, the owner may send a “takedown notice” to the service provider pursuant to subsection 512(c)(3), and the service provider then must remove or disable access to the material “expeditiously” or face infringement liability itself. Id. §§ 512(c)(1)(C), (c)(3).

The DMCA also creates liability for individuals who abuse the takedown notice system by filing meritless claims of infringement. 17 U.S.C. § 512(f). Subsection 512(f) provides that any person who makes knowing, material misrepresentations in filing a DMCA takedown notice “shall be liable for any damages, including costs and attorneys' fees[ ] incurred by the alleged infringer ... or by a service provider ...” Id.

B. Factual Allegations & Evidence re Takedown Notices

Hotham is a student journalist residing in London who maintains a blog on WordPress.com, a web-publishing platform operated by Automattic. Compl. ¶¶ 10, 12–13. Automattic is a corporation based in San Francisco that operates WordPress as an open source for users to “work on, change or contribute to” in an effort to “empower a community of bloggers.” Sieminski Decl. (Dkt. 22–6) ¶¶ 13–14. While Automattic's free and user-friendly hosting of digital content promotes expression, it also creates potential for copyright infringement. See Doe v. Ge ll er, 533 F. Supp. 2d 996, 1001 (N.D.Cal.2008) (finding potential for copyright and trademark infringement in content hosted by YouTube).

In May or June of 2013, Hotham read an article about an organization called Straight Pride UK on the blog BuzzFeed. Compl. ¶ 21. On July 26, 2013, Hotham contacted Straight Pride UK, identifying himself as “a student and freelance journalist.” Compl. ¶ 22. Hotham asked if he could send Straight Pride UK “some questions about [the] organisation ... to find out a bit about who's involved and what [it] hope[d] to accomplish.” Id.

On July 29, 2013, a staffer from Straight Pride UK responded affirmatively, and Hotham promptly sent a list of questions. Compl. ¶¶ 23–24. Defendant responded to Hotham's questions on August 1, 2013. Compl. ¶ 25. In his email response, Defendant identified himself as the “Press Officer” for Straight Pride UK, and attached a PDF file named “Press Statement—Oliver Hotham.pdf” Compl. ¶ 26, Ex. A (“Press Statement”).

On August 3, 2013, Hotham posted an article to his blog on WordPress in which he discussed the information provided by Straight Pride UK in the Press Statement. Hotham wrote:

There has never been a better time to be gay in this country. LGBTI people will soon enjoy full marriage equality, public acceptance of homosexuality is at an all time high, and generally a consensus has developed that it's really not that big of a deal what consenting adults do in the privacy of their bedrooms. The debate on Gay Marriage in the House of Commons was marred by a few old reactionaries, true, but generally it's become accepted that full rights for LGBTI people is inevitable and desirable. Thank God.

But some are deeply troubled by this unfaltering march toward common decency, and they call themselves the Straight Pride movement.

Determined to raise awareness of the “heterosexual part of our society”, Straight Pride believe that a militant gay lobby has hijacked the debate on sexuality in this country, and encourage their members, among other things, to “come out” as straight, posting on their Facebook page that:

“Coming out as Straight or heterosexual in todays politically correct world is an extremely challenging experience. It is often distressing and evokes emotions of fear, relief, pride and embarrassment.”

I asked them some questions.

Compl. ¶ 29. Hotham also posted the questions he sent to Straight Pride UK and the corresponding answers in the Press Statement. Compl. ¶ 30.

On the same day that Hotham posted the article on the blog at WordPress, Defendant sent an email to both Hotham and Automattic with the subject line: “Digital Millennium Copyright Act—Removal Request”. Compl. ¶ 31. Defendant wrote:

Digital Millennium Copyright Act—Removal Request

This letter is official notification under the provisions of Section 512(c) of the Digital Millennium Copyright Act (“DMCA”) to effect removal of the above-reported infringements.

It is requested that you immediately remove any posts and or images including this one http://oliverhotham.wordpress.com/2013/08/03/its-great-when-youre-straight-yeah/ and http://oliverhotham.files.wordpress.com/2013/08/straight-pride-website.jpg from your website, it is advised that this post and image is ‘Powered by Wordpress.’

User http://oliverhotham.wordpress.com did not have my permission to reproduce this content, on Wordpress.com or twitter account or tweets, no mention of material being published was made in communications.

Copies of this page have been taken and you shall receive a formal letter should this post not be removed within 24 hours from your blog. A DMCA has also submitted with a copyright breach to your website company.

Please be advised that law requires you, to “expeditiously remove or disable access to” the infringing photographs, images and blog text upon receiving this notice. Non-compliance may result in a loss of immunity for liability under the DMCA and will result in legal action for Copyright Breach and possible defamation.

It is of good faith belief that use of the material in the manner complained of here is not authorized by me, the copyright holder, or the law. The information here is accurate to the best of my knowledge. It is hereby sworn under penalty of perjury that the copyright holder of the said text, article and image that are in the website post and format.

Please send at the address noted below a prompt response indicating the actions you have taken to resolve this matter.

Sincerely,

For the Straight Forward Project

Gratz Decl. (Dkt. 22–1) Ex. B.

Automattic responded to Defendant and informed him that the “DMCA Takedown Notice has been received and reviewed for completeness,” and that Automattic “disabled access to the material identified as infringing.” Id. Automattic also informed Defendant that Hotham would have an opportunity to formally challenge this removal. Id. Plaintiffs allege that Automattic disabled access to Hotham's blog post in reliance on Defendant's takedown notice. See Compl. ¶ 36 (“But for those...