Strike 3 Holdings, LLC v. Doe
| Decision Date | 30 March 2022 |
| Docket Number | Civil Action 20-5122 |
| Parties | STRIKE 3 HOLDINGS, LLC, Plaintiff, v. JOHN DOE subscriber assigned IP address 100.11.204.106, Defendant |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Plaintiff Strike 3 Holdings, LLC moves for default judgment against Defendant Bernard S. Gray pursuant to Federal Rule of Civil Procedure 55(b)(2).[1] To date, Defendant has not answered the Amended Complaint or entered an appearance, despite multiple attempts at service at his home address and two successful instances of personal service on Defendant's wife at that address. For the reasons stated below, Plaintiff's motion will be granted.
Plaintiff is a Delaware limited liability company that owns and distributes pornographic films.[2] Plaintiff distributes these films in the United States through subscription-based websites licensing to third-party broadcasters, and the sale of physical DVDs.[3] Plaintiff regularly copyrights these films.
“BitTorrent is a system designed to quickly distribute large files over the Internet.”[4]BitTorrent allows a user to simultaneously download (or “torrent”) a file from multiple other BitTorrent users who each have copies of that file on their personal computers.[5] It does this by algorithmically assigning “Info Hashes” to fragments of data in each file, which can then be downloaded in parallel from multiple different computers and then reassembled.[6] These Info Hashes are each specific to the underlying data fragments, and together are specific to the digital file; any change to the data in the file will result in a different set of Info Hashes.[7]
Since Plaintiff's works are frequently pirated, Plaintiff “has developed, owns, and operates [a copyright] infringement detection system, named ‘VXN Scan '” which searches for unauthorized BitTorrent files that purport to be Plaintiff's copyrighted works.[8] VXN Scan torrents complete copies of the suspected files, which are reviewed by Plaintiff's staff and compared to Plaintiff's copyrighted works. If the files are determined to be copyrighted, VXN Scan then uses the Info Hash values to download the data fragments again and documents the IP addresses from which the fragments originate (i.e., the IP addresses whose users are distributing identical copies of the reviewed file).[9]
On October 15, 2020, Plaintiff filed suit under the Copyright Act against a John Doe defendant (assigned IP address 100.11.204.106) based on IP address information drawn from VXN Scan.[10] Shortly thereafter Plaintiff sought leave to serve a third-party subpoena on Verizon Fios, the internet service provider associated with this IP address, to determine to whom the IP address is assigned.[11] Verizon Fios's response to the subpoena identified the IP address as assigned to a Verizon Fios customer living at a specific residence in Philadelphia, Pennsylvania.[12]
This customer was not Defendant Bernard S. Gray.[13] However, investigation by Plaintiff indicated that Defendant lived at this residence during the period of infringement, that Defendant had public social media profiles indicating a professional interest in comedy, filmmaking, and screenwriting, and that the IP address associated with the Philadelphia residence had torrented multiple works relating to these interests, including a number of “Master Class” instructional videos related to comedy, filmmaking, and screenwriting.[14]
In January 2021, Plaintiff filed two versions of the Amended Complaint-the first a redacted version that did not name Defendant, [15] and the second an unredacted version filed under temporary seal by leave of the Court that provided identifying details of Defendant.[16] The First Amended Complaint and the associated summons was served on February 20, 2021 at Defendant's address on a woman who identified herself as Defendant's wife.[17] To date, Defendant has not responded to the Amended Complaint and has not sought an extension of the response deadline.
After the Clerk entered default, Plaintiff moved for entry of default judgment.[18] On February 1, 2022, the Court held a hearing on Plaintiff's Motion for Default Judgment. Prior to that hearing, and pursuant to the Court's orders, Plaintiff served notice of the hearing, the Motion for Default Judgment and another copy of the Amended Complaint on Defendant via personal service at Defendant's address to a woman who again identified herself as Defendant's wife.[19]Defendant did not attend the hearing.
Following the hearing, the Court ordered Plaintiff to again serve copies of Plaintiff's Motion for Default Judgment on Defendant and allowed Plaintiff to file supplemental briefs addressing “(a) whether the technical operation of the BitTorrent protocol and the operation of Plaintiff's VXN Scan software, as described in the Amended Complaint, sufficiently establishes that the identified BitTorrent uploader was in possession of readable files containing Plaintiff's intellectual property; and (b) whether the Amended Complaint sufficiently establishes that each piece of allegedly infringed copyrighted media qualifies as a separate ‘work' for the purposes of calculating statutory damages under 17 U.S.C. §504(c)(1).”[20] Plaintiff filed supplemental briefing and supporting affidavits in response to this order, and again attempted to serve relevant documents on Defendant by certified mail and personal service.[21] The Court now addresses Plaintiff's motion for default judgment and the related filings.
II.Legal Standard
Federal Rule of Civil Procedure 55(b)(2) authorizes a court to enter default judgment against a properly served defendant who fails to file a timely responsive pleading.[22]
When considering a motion for default judgment, “the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.”[23] To grant default judgment, a court first “must ascertain whether the unchallenged facts constitute a legitimate cause of action.”[24] If the complaint pleads a legitimate cause of action, the question of whether a court should grant default judgment is governed by the Chamberlain factors: (1) the potential for prejudice to the plaintiff if default judgment is denied; (2) whether the defendant appears to have a litigable defense; and (3) whether the defendant's failure to respond is due to culpable conduct.[25] III. Discussion
A. Default Judgment
As a threshold issue, the Court finds that Plaintiff has sufficiently served the Amended Complaint on Defendant.[26] Once service is established, the Court must then determine whether the Amended Complaint alleges facts that allow the Court to draw the reasonable inference that Defendant is liable for copyright infringement.[27] The elements of copyright infringement are “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”[28]
Plaintiff has alleged that it owns valid copyrights for each work, and provided a unique publication date, copyright registration date, and copyright registration number for each of the 97 works that Defendant allegedly infringed.[29] Plaintiff has also alleged that Defendant copied constituent elements of those works when Defendant “downloaded, reproduced, and distributed Plaintiff's works through the BitTorrent protocol.”[30] The detail about the operation of VXN Scan provided in the Amended Complaint and the description of Plaintiff's subsequent investigation sufficiently allege that Defendant, and not any other resident of the dwelling to which the IP address was assigned, was responsible for the infringements.[31]
Each of the three Chamberlain factors weighs in favor of granting default judgment. First, Plaintiff will be prejudiced if default judgment is denied because Defendant has failed to answer or otherwise defend this matter. Thus, “denying the request for default judgment will prejudice Plaintiff because it has no other means of vindicating its claims.”[32] Second, Defendant does not appear to have a litigable defense to Plaintiff's claim, as he has “not asserted any defense in this action, whether by responding to the Complaint or by responding to this Motion . . . or by otherwise contesting the allegations.”[33] Lastly, Defendant caused the default because he has failed “to engage in the litigation process and to offer [any] reason for this failure, ”[34] which can be considered culpable conduct.
B. Relief Sought
Plaintiff seeks multiple forms of relief. First, Plaintiff seeks a permanent injunction, enjoining Defendant from continued distribution of Plaintiff's copyrighted works and requiring Defendant to delete any infringing files from computers in Defendant's possession or control.[35] Next, Plaintiff seeks minimum statutory damages in the amount of $72, 750.[36] Finally, Plaintiff seeks a statutory award of certain litigation costs, in the total amount of $590.[37]
1. Permanent Injunction
A district court may “grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.”[38] “In deciding whether to grant a permanent injunction, the district court must consider whether: (1) the moving party has shown actual success on the merits; (2) the moving party will be irreparably injured by the denial of injunctive relief; (3) the granting of the permanent injunction will result in even greater harm to the defendant; and (4) the injunction would be in the public interest.”[39] Courts in this District applying these factors in granting default judgment have regularly held that injunctive relief is appropriate against a repeat infringer who has actively distributed copyrighted works, “to ensure the misconduct does not...
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