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Malibu Media, LLC v. Cowham

United States District Court, N.D. Indiana, South Bend Division

June 2, 2014

ALAN COWHAM, Defendant.


PHILLIP P. SIMON, District Judge.

Plaintiff Malibu Media seeks a default judgment against Defendant Alan Cowham claiming that Cowham used a peer-to-peer file sharing network to distribute Malibu's copyrighted movies [DE 24]. Because Cowham has failed to appear, plead, or otherwise defend as provided by the Federal Rules of Civil Procedure, Plaintiff's Motion for Default Judgment is GRANTED.


In its Amended Complaint, Malibu Media alleges Cowham infringed its copyrights when he disseminated without authorization all or portions of twenty-four copyrighted movies using BitTorrent, a peer-to-peer file sharing protocol.

On March 5, 2013, Malibu Media filed its initial complaint against a Doe defendant associated with a certain IP address [DE 1]. In response to a third party subpoena, Cowham's Internet Service Provider disclosed that Cowham was the person associated with the offending IP address. Malibu filed its amended complaint naming Cowham as the Defendant on May 29, 2013 [DE 9]. Cowham was served via personal service on September 18, 2013, and has not responded to the suit [DE 20]. The Clerk entered default on December 5, 2013 [DE 23], and Malibu Media moved for default judgment on February 17, 2014 [DE 24].


Federal Rule of Civil Procedure 55(b) gives the Court the power to enter default judgment in this situation. However, the Court must exercise sound judicial discretion in entering default. O'Brien v. R.J. O'Brien & Assocs., Inc., 998 F.2d 1394, 1398 (7th Cir. 1993). A court may look to a number of factors when deciding a motion for default judgment. These factors include 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. 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 3d § 2685 (1998).

Malibu Media's counsel stated in a sworn declaration that Cowham is not a minor, incompetent, or in active duty military service [DE 24-1]. Since minors often access the internet and could have downloaded and distributed the movies, I usually require more than counsel's assurances that the Defendant is not a minor. Here we also have the return of service filed by the process server. In the return, the server affirms that she personally served Mr. Cowham at his address in South Bend, Indiana, and describes Mr. Cowham as a forty-five-year-old man [DE 20]. Further, this is not a case where the alleged infringer is identified only through an online screen name, where the risk that a minor could have been the offender is highest. Cowham was identified because he was the account holder for the Comcast account associated with the offending IP address.

The grounds for default are plainly established. First, the default goes beyond a mere technicality, as Cowham has not filed an answer or any responsive pleadings since the complaint against him was filed in May 2013. The defendant cannot be allowed to completely ignore this suit. See In re Pyramid Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1062 (7th Cir. 1989) ("A trial court is entitled to say, under proper circumstances, that enough is enough.").

Further, few material issues of facts are in dispute in here. In order for Malibu Media to establish the prima facie case of direct copyright infringement, it must satisfy two requirements: (1) it must show ownership of the allegedly infringed material; and (2) it must demonstrate that the alleged infringers violate at least one exclusive right granted to copyright holders. 17 U.S.C. §§ 106, 501(a). Here, Malibu has pled that it owned the copyrighted materials specified in Exhibit A [DE 25-1] and that Cowham violated its exclusive right to distribute the copyrighted works to the public by downloading and distributing them via BitTorrent, an online media distribution system. Therefore, the facts as stated in the complaint establish direct copyright infringement by the Defendant.

Finally, Malibu Media is entitled to the damages it requests. Malibu requests statutory damages of $1, 500.00 for each copyright violation for a total of $36, 000.00. It seeks a permanent injunction barring Cowham from continuing to infringe its copyrighted works and ordering that he delete any infringing copies. It also requests an award of attorneys' fees and costs. As I will explain, these requests are reasonable and proper.

The Copyright Act provides for both monetary and injunctive relief. First, it provides that "an infringer of copyright is liable for either (1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or (2) statutory damages, as provided by subsection (c)." Id. at § 504(a). Under § 504(c), the copyright owner may choose to recover statutory damages in lieu of actual damages any time prior to the entry of final judgment. Statutory damages are described as follows:

statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30, 000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

Id. at § 504 (c). Second, § 502 authorizes the court to grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright." Id. at § 502. Finally, the Court has discretion to ...

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