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Malibu Media, LLC v. Funderburg

United States District Court, N.D. Illinois, Eastern Division

April 24, 2015

MALIBU MEDIA, LLC, Plaintiff,
v.
JACK FUNDERBURG, Defendant.

MEMORANDUM OPINION AND ORDER

ROBERT M. DOW, Jr., District Judge.

Plaintiff moves for default judgment [233] against Defendant, claiming that he used a peer-to-peer file sharing networking to distribute twelve of Plaintiff's copyrighted pornographic movies. For the reasons stated below, Plaintiff's motion is granted.

I. Background

The original complaint alleged that Defendant John Doe, a subscriber with the assigned IP address of 24.15.48.82, infringed twelve of Plaintiff's registered copyrights using BitTorrent. BitTorrent is an online peer-to-peer file sharing system that avoids the need to download an entire file from a single source. To distribute a large digital file, the BitTorrent protocol instead breaks a file into small bits and distributes the bits to users. Users then share their bits with each other, such that a given user eventually obtains all the bits in a given file. BitTorrent client software then reassembles the bits so that a user can open and view the file. Each bit of a BitTorrent file has a unique cryptographic hash value ("bit hash") that acts as the bit's digital fingerprint. An entire digital media file also has a unique cryptographic hash value ("file hash"), which similarly acts as the file's digital fingerprint.

Plaintiff's investigator allegedly established a direct TCP/IP connection with IP address 24.15.48.82 and then downloaded one or more bits associated with twelve of its copyrighted movies. The investigator then downloaded a full copy of each file hash from the BitTorrent file distribution network and confirmed that the file hash matched files containing Plaintiff's copyrighted films. According to Plaintiff's evidence, a user at this IP address exchanged bits of hundreds of other digital media files in just a three-month period.

Plaintiff then filed a complaint against John Doe, a subscriber with the assigned IP address of 24.15.48.82. After filing the complaint, Plaintiff moved for leave to serve a third-party subpoena on John Doe's Internet Service Provider ("ISP"), commanding it to provide the subscriber's name and contact information. The Court granted Plaintiff's motion, after which Plaintiff filed an amended complaint naming Defendant as the infringer. Plaintiff then moved for entry of default judgment. In a sworn declaration attached to her motion, Plaintiff's attorney states that Defendant's ISP identified him with the accused IP address and that Defendant is not a minor, incompetent, or in active military service.

II. Analysis

A. Default Judgment

Under Federal Rule of Civil Procedure 55, a court may enter a default judgment when a defendant fails to plead or otherwise defend. Fed.R.Civ.P. 55(a). On motion for default judgment, a court takes all well-pleaded allegations as to liability as true. Black v. Lane, 22 F.3d 1395, 1399 (7th Cir. 1994). The decision to enter a default judgment lies within the district court's discretion. O'Brien v. R.J. O'Brien & Assocs., 998 F.2d 1394, 1398 (7th Cir. 1993). A default judgment establishes as a matter of law that a defendant is liable as to each of a plaintiff's claims. Breuer Elec. Mfg. Co. v. Toronado Sys. of Am., Inc., 687 F.2d 182, 186 (7th Cir. 1982).

To receive a default judgment, a plaintiff must state a plausible claim. Plaintiff states a plausible claim that a user at the accused IP address committed direct copyright infringement. Copyright infringement requires "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." JCW Investments, Inc. v. Novelty, Inc., 482 F.3d 910, 914 (7th Cir. 2007). Plaintiff pleads the first element by alleging that it is the registered owner of the twelve copyrights listed in Exhibit B. [15-2]. It pleads the second element by alleging that the user at the accused IP address downloaded and distributed bits of the copyrighted works on BitTorrent. Because BitTorrent's purpose is to help a user collect bits that make a complete file viewable, the Court infers that by exchanging bits of Plaintiff's copyrighted movies, the user eventually compiled complete copies of the works. Even if the user didn't compile complete copies, he plausibly infringed Plaintiff's copyrights by copying "constituent elements" of those works. JCW Investments, 482 F.3d at 914; see also Malibu Media LLC v. Gilvin, 2014 WL 1260110, at *2 (N.D. Ind. Mar. 26, 2014). Accordingly, Plaintiff plausibly claims that this user violated its copyrights. See PHE, Inc. v. Does 1-122, 2014 WL 1856755, at *2 (N.D. Ill. May 7, 2014); Purzel Video GmbH v. Martinez, 13 F.Supp. 3d 1140, 1150-51 (D. Colo. 2014); Malibu Media, LLC v. Flanagan, 2014 WL 2957701, at *2 (E.D. Pa. July 1, 2014); Malibu Media, LLC v. Brenneman, 2013 WL 6560387, at *2 (N.D. Ind. Dec. 13, 2013).

Second, Plaintiff plausibly pleads that the infringing user is this Defendant. Courts have questioned what an ISP's identification of an account holder with an IP address actually says about the identity of the actual infringer. See, e.g., Elf-Man, LLC v. Cariveau, 2014 WL 202096, at *2 (W.D. Wash. Jan. 17, 2014) ("While it is possible that the subscriber is the one who participated in the BitTorrent swarm, it is also possible that a family member, guest, or freeloader engaged in the infringing conduct."); AF Holdings LLC v. Rogers, 2013 WL 358292, at *2 (S.D. Cal. Jan. 29, 2013) ("Because the subscriber of an IP address may very well be innocent of infringing activity associated with the IP address, courts take care to distinguish between subscribers and infringers."). But see Malibu Media, LLC v. John Does 1-11, 2013 WL 3732839, at *4 (S.D.N.Y. July 16, 2013) (collecting cases finding that copyright infringement claims were sufficiently pled where the defendant was only identified by an IP address). Plaintiff, however, does more than merely identify Defendant as the account holder at the relevant IP address. It also offers evidence linking that IP address to bit-exchanges involving hundreds of digital media files in just three months. Taken together, these facts plausibly suggest that Defendant-the controlling account holder of an IP address associated with frequent BitTorrent use-is the infringing user. See Malibu Media, LLC v. Doe, 2015 WL 857408, at *4 (D. Md. Feb. 26, 2015) ("That the Defendant's IP address was used to obtain 2, 034 other third party files through BitTorrent over an 18-month period supports the reasonable inference that the Defendant-and not some other person using the Defendant's IP address-was the infringer."). The Court therefore finds a plausible claim of direct copyright infringement.

Plaintiff also states a plausible claim for contributory copyright infringement. "A defendant is liable for contributory copyright infringement when it with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another." Monotype Imaging, Inc. v. Bitstream, Inc., 376 F.Supp.2d 877, 883 (N.D. Ill. 2005) (citations and internal quotation marks omitted); see also PHE, 2014 WL 1856755, at *2. Plaintiff alleges that Defendant contributed to the infringing conduct of other BitTorrent users by participating in the BitTorrent swarm-a group of users uploading and downloading bits from each other simultaneously. Plaintiff contends that Defendant's knowledge can be inferred from his use of the platform, as it is frequently used to share unlicensed content, and the fact that the film was free. Based on these allegations, Plaintiff alleges a plausible claim of contributory copyright infringement. See PHE, 2014 WL 1856755, at *2; Purzel, 13 F.Supp. 3d at1151; TCYK, LLC v. Martin, 2014 WL 6978149, at *1 (M.D. Fla. Dec. 9, 2014).

Defendant has had ample opportunity to respond to these claims, but he has not appeared before the Court or made any filings since being named as a Defendant on August 8, 2013. Having entered a default against Defendant for failure to answer or otherwise plead, the Court now finds it appropriate to enter a default judgment against him.

Rule 55 provides that "default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared." Fed.R.Civ.P. 55(b)(2). Because minors frequently use the internet and can download and distribute movies, it is generally advisable for plaintiff's counsel to provide more than her own assurances that a defendant is not a minor. See Malibu Media, LLC v. Brenneman, 2013 WL 6560387, at *1 (N.D. Ind. Dec. 13, 2013). Here, Plaintiff's attorney has made no assertions of Defendant's majority status, aside from offering her own ...


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