Sony BMG Music Entertainment, et al. v. Cody, No. 1:2008cv00590 - Document 32 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS re 27 MOTION for DEFAULT JUDGMENT recommending that 1) Plaintiffs' motion for default judgment against Defendant Cody Heinsohn, aka Heinsohn Cody, BE GRANTED; and 2) The Clerk BE DIRECTED to enter judgment in favor of Plaintiffs and against Defendant Cody Heinsohn, aka Heinsohn Cody, in the amount of $7,500.00 of statutory damages, and $420.00 in costs; and 3) The Clerk BE DIRECTED to enter judgment in favor of Plaintiffs and against Defendant Cody H einsohn, aka Heinsohn Cody. Matter referred to Judge O'Neill. Within thirty (30) days after being served with a copy, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned " ;Objections to Magistrate Judges Findings and Recommendations." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections; and ORDER directing plaintiffs to serve these findings and recommendations on the defaulting defendant and file proof of such service within ten days of the date of service of this order, signed by Magistrate Judge Sandra M. Snyder on 10/26/2009.(Timken, A)
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Sony BMG Music Entertainment, et al. v. Cody Doc. 32 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 SONY BMG MUSIC ENTERTAINMENT, ) 1:08-cv-00590-LJO-SMS a Delaware general ) 11 partnership, et al., ) FINDINGS AND RECOMMENDATION RE: ) PLAINTIFFS’ MOTION FOR DEFAULT 12 Plaintiffs, ) JUDGMENT (DOC. 27) v. ) 13 ) ORDER DIRECTING PLAINTIFFS TO HEINSOHN CODY, ) SERVE THESE FINDINGS AND 14 ) RECOMMENDATIONS ON THE DEFAULTING Defendant. ) DEFENDANT AND FILE PROOF OF SUCH 15 ) SERVICE WITHIN TEN DAYS OF THE ) DATE OF SERVICE OF THIS ORDER 16 17 18 Plaintiffs are proceeding with a civil action in this Court. 19 The matter has been referred to the Magistrate Judge pursuant to 20 28 U.S.C. § 636(b) and Local Rules 72-302(c)(19) and 72-303. 21 Pending before the Court is Plaintiffs’ motion for a default 22 judgment against Defendant Heinsohn Cody, filed on August 13, 23 2009, including a notice of motion and motion, a declaration of 24 Thomas M. Kerr, and a proposed order. Amended proof of service of 25 various documents was also filed on August 13, 2009.1 26 27 28 1 The jurat is made under penalty of perjury under the laws of the state of California, and thus it does not fully conform to the requirement of 28 U.S.C. § 1746. 1 Dockets.Justia.com 1 Plaintiffs’ motion came on regularly for hearing on October 2 16, 2009, at 10:00 a.m. in Courtroom 7 before the Honorable 3 Sandra M. Snyder, United States Magistrate Judge. Thomas M. Kerr 4 appeared telephonically on behalf of Plaintiff. There was no 5 appearance on behalf of Defendant. 6 I. Directions to Plaintiffs to Serve the Findings and Recommendations 7 The remainder of this document constitutes the Court’s 8 findings and recommendations with respect to Plaintiffs’ motion 9 for default judgment. 10 Plaintiff IS DIRECTED to serve the findings and 11 recommendations on the defaulting Defendant and to file proof of 12 such service no later than ten days after the date of service of 13 this order. 14 II. Legal Standards on a Motion for Default Judgment 15 A court has the discretion to enter a default judgment 16 against one who is not an infant, incompetent, or member of the 17 armed services where the claim is for an amount that is not 18 certain on the face of the claim and where 1) the defendant has 19 been served with the claim; 2) the defendant’s default has been 20 entered for failure to appear; 3) if the defendant has appeared 21 in the action, the defendant has been served with written notice 22 of the application for judgment at least three days before the 23 hearing on the application; and 4) the court has undertaken any 24 necessary and proper investigation or hearing in order to enter 25 judgment or carry it into effect. Fed. R. Civ. P. 55(b); Alan 26 Neuman Productions, Inc. v. Albright, 862 F.2d 1388, 1392 (9th 27 Cir. 1988). Factors that may be considered by courts in 28 2 1 exercising discretion as to the entry of a default judgment 2 include the nature and extent of the delay, Draper v. Coombs, 792 3 F.2d 915, 924-925 (9th Cir. 1986); the possibility of prejudice to 4 the plaintiff, Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th 5 Cir.1986); the merits of plaintiff's substantive claim, id.; the 6 sufficiency of the allegations in the complaint to support 7 judgment, Alan Neuman Productions, Inc., 862 F.2d at 1392; the 8 amount in controversy, Eitel v. McCool, 782 F.2d at 1471-1472; 9 the possibility of a dispute concerning material facts, id.; 10 whether the default was due to excusable neglect, id.; and the 11 strong policy underlying the Federal Rules of Civil Procedure 12 that favors decisions on the merits, id. 13 A default judgment generally bars the defaulting party from 14 disputing the facts alleged in the complaint, but the defaulting 15 party may argue that the facts as alleged do not state a claim. 16 Alan Neuman Productions, Inc. v. Albright, 862 F.2d 1388, 1392. 17 Thus, well pleaded factual allegations, except as to damages, are 18 taken as true; however, necessary facts not contained in the 19 pleadings, and claims which are legally insufficient, are not 20 established by default. Cripps v. Life Ins. Co. of North America, 21 980 F.2d 1261, 1267 (9th Cir. 1992); TeleVideo Systems, Inc. av. 22 Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987). 23 III. Service, Entry of Default, Notice, and Status of Defendant 24 A. Service 25 The declaration of Thomas M. Kerr, Plaintiffs’ counsel, 26 establishes that after Defendant was identified (¶¶ 1-8), 27 Plaintiffs’ counsel sent Defendant a letter advising him that 28 3 1 copyright infringement had been detected and providing contact 2 information for him to use to communicate with Plaintiffs’ 3 representatives to resolve the matter without litigation. When 4 there was no response, Plaintiffs filed suit on April 29, 2008. 5 Kerr further declared that letters concerning possible settlement 6 sent to Defendant in 2008 did not produce a response. (¶¶ 9-12.) 7 It appears from the docket and from the declaration of Kerr that 8 Defendant did not demonstrate a clear purpose to defend the suit 9 and thus did not appear in the action within the meaning of 10 55(b)(2). See, In re Roxford Foods v. Ford, 12 F.3d 875, 879-81 11 (9th Cir. 1993). 12 The proof of service filed on July 18, 2008, reflects that 13 on July 1, 2008, the summons, complaint, and related documents 14 were served by substituted service on Defendant by a registered 15 process server. (Doc. 8.) It states that the documents were left 16 with Tammy Cody, Defendant’s mother, an adult female, at the home 17 or usual place of abode of the Defendant, and that on July 7, 18 2008, the pertinent documents were mailed to Defendant at the 19 same address. In the attached “DECLARATION OF REASONABLE 20 DILIGENCE,” the server states: 21 22 I declare the following attempts were made to effect service by personal delivery: 6/26/2008 9:30 a.m.: No Answer at the door 23 (Doc. 8 p. 3.) 24 At hearing, the Court expressed concern over the legal 25 sufficiency under California law of substituted service after a 26 single attempt at service was unsuccessful, and Plaintiff was 27 given an opportunity to submit by October 30, 2009, further 28 briefing or evidence on the matter, including evidence of 4 1 additional efforts to effect service. On October 22, 2009, the 2 docket reflects that a summons issued to Defendant was issued, 3 and thus it appears that Plaintiff is attempting to serve 4 Plaintiff again. 5 In the interim, the Court has reconsidered the matter of the 6 legal sufficiency of Plaintiff’s service on the defaulting 7 Defendant. Because of the form of Plaintiff’s proofs of service, 8 and in the absence of any briefing or other guidance from 9 Plaintiff with respect to service, the Court understood that 10 Plaintiff was basing its position on notice on state law and was 11 attempting to establish substituted service on an individual 12 after reasonably diligent effort to effect personal service. 13 However, it appears to the Court that the previous service was 14 legally sufficient on a separate basis, namely, pursuant to Fed. 15 R. Civ. P. 4(e)(2)(B), which provides that an individual may be 16 served in a judicial district of the United States by leaving a 17 copy of the summons and complaint at the individual’s dwelling or 18 usual place of abode with someone of suitable age and discretion 19 who resides there. 20 Accordingly, the Court will proceed to file these findings 21 and recommendations to grant Plaintiff’s motion without further 22 input from Plaintiff. 23 24 B. Entry of Default Pursuant to Plaintiffs’ request, the Clerk entered default 25 as to Defendant on September 23, 2008. (Doc. 15.) Plaintiffs 26 served the clerk’s certificate of default on Defendant by mail on 27 August 12, 2009. (Doc. 26.) Defendant was served with the motion 28 for default judgment by mailing on August 13, 2009. Thus, 5 1 regardless of Defendant’s lack of appearance, Defendant has 2 nevertheless received the notice required by Fed. R. Civ. P. 3 55(b)(2). 4 Further, the notice was adequate pursuant to Fed. R. Civ. P. 5 55(d) and 54(c), which require that a judgment by default shall 6 not be different in kind from or exceed in amount that prayed for 7 in the demand for judgment. Plaintiff expressly sought in the 8 complaint the types of relief sought by the instant application 9 for default judgment, including injunctive relief, statutory 10 damages for each infringement at the election of Plaintiff, and 11 costs and fees. (Compl. at p. 5.) The failure to allege a 12 specific sum in the complaint does not prevent entry of a default 13 judgment for a certain sum or a sum that can be made certain 14 where appropriate notice has otherwise been given. See Appleton 15 Elec. Co. v. Graves Truck Line, 635 F.2d 603, 611 (7th Cir. 1980). 16 Thus, the Court finds that Plaintiff gave adequate notice of 17 the nature and amount of its claim. 18 Finally, in the declaration, Kerr states that because 19 Defendant was of sufficient age to maintain an internet service 20 account with SBC on June 8, 2007 (the date the infringement was 21 detected), Kerr is informed and believes that Defendant is 22 neither a minor nor an incompetent person; further, a search for 23 Defendant’s name conducted in the Department of Defense-Manpower 24 Data Center revealed no evidence that Defendant is on active duty 25 in the military service. (Decl. ¶¶ 15-16.) 26 Thus, it appears that with respect to notice and status, a 27 default judgment would be appropriate with respect to Defendant 28 Heinsohn Cody. 6 1 IV. Legal Sufficiency of the Complaint 2 An infringer of copyright is liable for actual damages and 3 any additional profits of the infringer attributable to the 4 infringement. 17 U.S.C. § 504(a). An infringer is anyone who 5 violates any of the exclusive rights of the copyright owner as 6 provided by sections 106 through 118. 17 U.S.C. § 501(a). 7 Copyright protection subsists in original works of authorship, 8 including pictorial and graphic works and sound recordings. 17 9 U.S.C. § 102. The owner of a copyright has the exclusive rights 10 to perform or authorize the reproduction of the copyrighted work 11 in copies, prepare derivative works based on the copyrighted 12 work, distribute copies to the public by sale or other transfer 13 of ownership, and display the copyrighted work publicly. 17 14 U.S.C. § 106. 15 Thus, to prevail on a claim for infringement of copyright 16 under 17 U.S.C. § 501, Plaintiffs must establish that Defendant 17 violated an exclusive right of the copyright owner as provided in 18 17 U.S.C. §§ 106, 501(a). Elektra Entertainment Group Inc. v. 19 Crawford, 226 F.R.D. 388, 392-93 (C.D.Cal. 2005). This means that 20 to establish a prima facie case of direct infringement, 21 Plaintiffs must show 1) ownership of the allegedly infringed 22 material, and 2) the infringer’s violation of at least one 23 exclusive right granted to copyright holders under 17 U.S.C. § 24 106. Marder v. Lopez, 450 F.3d 445, 453 (9th Cir. 2006). 25 Here, Plaintiffs alleged that Plaintiffs owned the 26 copyrights or were the licensees of exclusive rights under the 27 United States copyright law with respect to ten specific 28 7 1 recordings2; each sound recording was the subject of a valid 2 certificate of copyright registration issued by the Register of 3 Copyrights; Plaintiffs owned the exclusive rights under copyright 4 law in the United States to reproduce and distribute the 5 copyrighted recordings. (Cmplt. ¶¶ 13-18.) Plaintiffs then 6 alleged that without Plaintiffs’ permission or consent, Defendant 7 used and continues to use an online media distribution system to 8 download the recordings, as well as additional sound recordings 9 owned by or exclusively licensed to Plaintiffs or Plaintiffs’ 10 affiliate record labels, and distribute them to the public in 11 violation of Plaintiffs’ exclusive rights of reproduction and 12 distribution; Defendant thereby infringed Plaintiffs’ exclusive 13 rights. (Cmplt. p. 4.) Plaintiff further alleged expressly that 14 the acts of infringement were willful, intentional, and with 15 disregard and indifference for Plaintiffs’ rights. (Id. at ¶ 20.) 16 Accordingly, Plaintiffs have adequately stated claims for 17 copyright infringement. 18 V. Discretionary Considerations 19 Here, it does not appear that there is any risk of mistake 20 or excusable neglect on the part of anyone with a potential 21 interest in the subject matter of the instant action. Further, 22 there is no apparent likelihood of a dispute as to a material 23 fact essential to the Plaintiffs’ case. No just cause for delay 24 appears. It is apparent from the declaration submitted to the 25 Court that Defendant is not an infant, incompetent, or member of 26 27 28 2 The recordings’ titles were listed as W ish You W ere Here, Addicted, Hotel California, My Life, Locked Up, Here I Go Again, I’m Gonna Miss Her, Somebody Up There Likes Me, Over and Over, and Celebrity. (Cmplt ¶ 17, Ex. A.) 8 1 the armed services. There does not appear to be any reason why 2 the general policy in favor of a decision on the merits would 3 warrant refusing to enter the requested default judgment. 4 Accordingly, the Court finds that Plaintiffs have shown 5 their entitlement to a default judgment. 6 VI. Damages 7 Plaintiffs request statutory damages pursuant to 17 U.S.C. § 8 504(c) for Defendant’s infringement of each of the ten 9 recordings. 10 Title 17 U.S.C. § 504 provides in pertinent part: 11 (a) In General. Except as otherwise provided by this title, an infringer of copyright is liable for either-- 12 13 (1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or 14 15 (2) statutory damages, as provided by subsection (c). 16 .... 17 (c) Statutory Damages.-- 18 19 20 21 22 23 24 (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of 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. 25 26 27 28 (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case 9 1 where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work. (Emphasis added.) 2 3 4 5 6 7 8 9 10 11 12 13 14 A district court has wide discretion in determining the amount of 15 statutory damages to be awarded and should consider what is just 16 in the particular case in light of the nature of the copyright 17 and the circumstances of the infringement. Los Angeles News 18 Service v. Reuters Television International, Ltd., 149 F.3d 987, 19 996 (9th Cir. 1998). The statutory damages serve both compensatory 20 and punitive purposes, so in order to effectuate the statutory 21 policy of discouraging infringement, recovery of statutory 22 damages is permitted even absent evidence of the actual damages 23 suffered by a plaintiff or of the profits reaped by a defendant. 24 Id. 25 Defendant seeks the minimum statutory amount of $7,500.00, 26 or $750.00 for each of the ten infringements. Statutory damages 27 are particularly appropriate for cases in which the defendant 28 10 1 defaults because the difficulty of ascertaining the plaintiff’s 2 actual damages is increased in such cases. Jackson v. Sturkie, 3 255 F.Supp.2d 1096, 1101 (N.D.Cal. 2003). Further, the Court 4 considers the fact that the copyright relates to a sound 5 recording. Considering all of the pertinent circumstances as 6 demonstrated by the declaration and attachments submitted by 7 Plaintiffs, and in order to effectuate the purposes of the 8 statute, the Court concludes that the minimum amount of 9 $7,500.00 in damages for the multiple infringements is just and 10 reasonable. 11 VII. Injunctive Relief 12 Plaintiffs pray for an injunction that states the following: 13 Defendant shall be and hereby is enjoined from directly or indirectly infringing Plaintiffs’ rights under federal or state law in the Copyrighted Recordings and any sound recording, whether now in existence or later created, that is owned or controlled by Plaintiffs (or any parent, subsidiary, or affiliate record label of Plaintiffs) (“Plaintiffs’ Recordings”), including without limitation by using the Internet or any online media distribution system to reproduce (i.e., download) any of Plaintiffs’ Recordings, to distribute (i.e., upload) any of Plaintiffs’ Recordings, or to make any of Plaintiffs’ Recordings available for distribution to the public, except pursuant to a lawful license or with the express authority of Plaintiffs. Defendant also shall destroy all copies of Plaintiffs’ Recordings that Defendant has downloaded onto any computer hard drive or server without Plaintiffs’ authorization and shall destroy all copies of those downloaded recordings transferred onto any physical medium or device in Defendant’s possession, custody, or control. 14 15 16 17 18 19 20 21 22 23 24 (Mot. pp. 15-20, Cmplt. p. 5.) 25 Title 17 U.S.C. § 502 states: 26 (a) Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a 27 28 11 1 copyright. 2 (b) Any such injunction may be served anywhere in the United States on the person enjoined; it shall be operative throughout the United States and shall be enforceable, by proceedings in contempt or otherwise, by any United States court having jurisdiction of that person. The clerk of the court granting the injunction shall, when requested by any other court in which enforcement of the injunction is sought, transmit promptly to the other court a certified copy of all the papers in the case on file in such clerk's office (emphasis added). 3 4 5 6 7 8 As a general rule, absent a great public injury, a permanent 9 injunction will be granted when liability has been established 10 and there is a threat of a continuing violations. Cadence Design 11 Systems, Inc. v. Avant! Corp., 125 F.3d 824, 829 (9th Cir. 1997); 12 MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 520 (9th 13 Cir. 1993) (issuing an injunction against further infringement of 14 protected software rights where the plaintiff demonstrated that 15 the defendant had computers in its loaner inventory with the 16 protected software on it). Generally a party seeking a 17 preliminary injunction must show either a likelihood of success 18 on the merits and the possibility of irreparable injury, or that 19 serious questions going to the merits were raised and the balance 20 of hardships tips sharply in its favor; however, because in a 21 copyright infringement claim a showing of a reasonable likelihood 22 of success on the merits raises a presumption of irreparable 23 harm, a plaintiff need only show a likelihood of success on the 24 merits to obtain a preliminary injunction. Micro Star v. Formgen, 25 Inc., 154 F.3d 1107, 1109 (9th Cir. 1998). 26 Here, Plaintiffs seek a permanent injunction. They have 27 already shown actual success on the merits because their 28 complaint states a claim for wilful infringement, and Defendant 12 1 has defaulted; further, Plaintiffs have alleged that unless 2 restrained, Defendant will continue to cause irreparable injury 3 for which there is no full monetary compensation. (Cmplt. pp. 44 5.) This is sufficient for a permanent injunction. Sony Music 5 Entertaniment, Inc. v. Global Arts Productions, 45 F.Supp.2d 6 1345, 1347 (S.D.Fla. 1999). An injunction against further 7 infringement and even infringement of future works is permitted, 8 and it is appropriate to grant an injunction on an application 9 for default judgment. Princeton University Press v. Michigan 10 Document Services, Inc., 99 F.3d 1381, 1392-93 (6th Cir. 1996) 11 (noting that an injunction of works copyrighted in the future is 12 supported by the weight of authority); Elektra Entertainment 13 Group Inc. v. Crawford, 226 F.R.D. 388, 393-94 (C.D.Cal. 2005) 14 (granting a final injunction on default judgment to enjoin 15 defendant from directly or indirectly infringing plaintiffs' 16 rights under federal or state law in copyrighted recordings, 17 whether then in existence or later created, where the requested 18 terms of the injunction were the same as those prayed for in 19 complaint, proposed injunctive relief was appropriate, the 20 plaintiffs sent two letters to defendant before plaintiffs sought 21 entry of default which warned of default judgment, defendant 22 failed to respond to serious claims brought against him despite 23 receiving adequate notice, and failure to grant injunction would 24 have resulted in plaintiffs' continued exposure to harm with no 25 method of recourse). If infringement is established, then it is 26 appropriate as part of a final judgment to order the destruction 27 or other reasonable disposition of all copies or phonorecords 28 found to have been made or used in violation of the copyright 13 1 owner’s exclusive rights and of all other articles by means of 2 which such copies might be reproduced. 17 U.S.C. § 503(b). 3 Here, Plaintiffs alleged that Defendant infringed and 4 wilfully continues to use the on-line distribution system to 5 distribute to the public the obviously copyrighted sound 6 recordings and thereby is causing irreparable injury that cannot 7 be measured or compensated in money. Further, it is alleged that 8 Plaintiffs have no adequate remedy at law. (Cmplt. ¶¶ 17-22.) 9 The requested terms of the injunction are the same as those 10 prayed for in the complaint. Defendant’s lack of intent to comply 11 with the copyright restrictions is demonstrated by the 12 Defendant’s failure to reply to Plaintiffs’ correspondence, and 13 by Defendant’s further failure to respond to various forms of 14 notice of serious claims brought against her despite receiving 15 adequate notice. It appears that the failure to grant the 16 requested injunction would result in Plaintiffs' continued 17 exposure to harm with no method of recourse. There does not 18 appear to be any public injury that would result from issuance of 19 the injunction. Accordingly, the Court concludes that injunctive 20 relief is appropriate. 21 However, the injunctive relief sought is too broad. 22 Generally an injunction must be narrowly tailored to remedy only 23 the specific harms shown by the plaintiffs rather than to enjoin 24 all possible breaches of the law; injunctive relief concerning a 25 copyright will be limited to works that infringe on the 26 Plaintiffs’ copyright. Iconix, Inc. v. Tokuda, 457 F.Supp.2d 969, 27 998-1002 (N.D.Cal.2006) (preliminary injunction in copyright 28 case). Further, it is established that every order granting an 14 1 injunction shall set forth the reasons for its issuance; shall be 2 specific in its terms; shall describe in reasonable detail, and 3 not by reference to the complaint or other document, the act or 4 acts sought to be restrained; and is binding only upon the 5 parties to the action, their officers, agents, servants, 6 employees, and attorneys, and upon those persons in active 7 concert or participation with them who receive actual notice of 8 the order by personal service or otherwise. Fed. R. Civ. P. 9 65(d). Even without objections by a party, a court has an 10 independent duty to assure that an injunction is specific in its 11 terms and describes in reasonable detail the acts sought to be 12 restrained. See, EFS Marketing, Inc. v Russ Berrie & Co., 76 F.3d 13 487, 493-94 (2nd Cir. 1996); 4 Nimmer on Copyright, § 14.06(C) 14 (2006). 15 Here, the injunction purports to forbid infringing 16 Plaintiffs’ rights under “federal or state law” in the 17 copyrighted recordings. However, the sole subject of the 18 complaint and this action is infringement of rights created by 19 the Copyright Act, not any other federal or state law. 20 Further, the injunction sought would enjoin infringement not 21 only of copyrighted sound recordings, but also of any sound 22 recording owned or controlled by Plaintiffs; thus, it would 23 include recordings that are not copyrighted. This exceeds the 24 scope of the infringement, which was limited to copyrighted 25 works. 26 Likewise, the proposed injunction would cover infringement 27 not only of recordings copyrighted by Plaintiffs, but also those 28 owned or controlled by any parent, subsidiary, or affiliate 15 1 record label of Plaintiffs. Such a provision does not give 2 reasonable notice of what conduct would be included within the 3 scope of the injunction because a reasonable person would not 4 know what entities or operations constitute parents, 5 subsidiaries, or affiliate record labels of Plaintiffs. This 6 aspect of the injunction would be unclear and also would exceed 7 the scope of the infringement. 8 Accordingly, these aspects should be eliminated from the 9 injunctive relief sought. 10 VIII. Costs 11 Plaintiffs seek $420.00 in costs, consisting of $350.00 in 12 filing fees and $70.00 for service of process. (Decl. of Kerr, ¶ 13 18.) 14 Title 17 U.S.C. § 505 states: 15 In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs. 16 17 18 19 The Court exercises its discretion to award Plaintiffs costs of 20 $420.00. 21 IX. Recommendation 22 Accordingly, it IS RECOMMENDED that 23 1) Plaintiffs’ motion for default judgment against Defendant 24 Cody Heinsohn, aka Heinsohn Cody, BE GRANTED; and 25 2) The Clerk BE DIRECTED to enter judgment in favor of 26 Plaintiffs and against Defendant Cody Heinsohn, aka Heinsohn 27 Cody, in the amount of $7,500.00 of statutory damages, and 28 $420.00 in costs; and 16 1 3) The Clerk BE DIRECTED to enter judgment in favor of 2 Plaintiffs and against Defendant Cody Heinsohn, aka Heinsohn Cody 3 enjoining Defendant from directly or indirectly infringing 4 Plaintiffs’ rights in the following copyrighted sound recordings: 5 “Wish You Were Here,” on album “Morning View,” by artist 6 “Incubus” (SR# 306-181); “Addicted,” on album “No Pad, No 7 Helmets... Just Balls,” by artist “Simple Plan” (SR# 351-060); 8 “Hotel California,” on album “Hotel California,” by artist 9 “Eagles” (SR# N38950); “My Life,” on album “52nd Street,” by 10 artist “Billy Joel” (SR# 4-681); “Locked Up,” on album “Trouble,” 11 by artist “Akon” (SR# 361-456); “Here I Go Again,” on album 12 “Whitesnake,” by artist “Whitesnake” (SR# 82-749); “I’m Gonna 13 Miss Her,” on album “Part II,” by artist “Brad Paisley” (SR# 29814 930); “Somebody Up There Likes Me,” on album “Young Americans,” 15 by artist “David Bowie” (SR# N22804); “Over and Over” on album 16 “Suit” by artist “Nelly” (SR# 358-551); “Celebrity” on album “Mud 17 on the Tires” by artist “Brad Paisley” (SR# 336-114); and any 18 copyrighted sound recording, whether now in existence or later 19 created, which is owned or controlled by Plaintiffs (“Plaintiffs’ 20 recordings”), including without limitation by using the Internet 21 or any online media distribution system to reproduce (i.e., 22 download) any of Plaintiffs’ recordings, to distribute (i.e., 23 upload) any of Plaintiffs’ recordings, or to make any of 24 Plaintiffs’ recordings available for distribution to the public, 25 except pursuant to a lawful license or with the express authority 26 of Plaintiffs; Defendant also shall destroy all copies of 27 Plaintiffs’ recordings that Defendant has downloaded onto any 28 computer hard drive or server without Plaintiffs’ authorization 17 1 and shall destroy all copies of those downloaded recordings 2 transferred onto any physical medium or device in Defendant’s 3 possession, custody, or control. 4 This report and recommendation is submitted to the United 5 States District Court Judge assigned to the case, pursuant to the 6 provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 7 Local Rules of Practice for the United States District Court, 8 Eastern District of California. Within thirty (30) days after 9 being served with a copy, any party may file written objections 10 with the Court and serve a copy on all parties. Such a document 11 should be captioned “Objections to Magistrate Judge’s Findings 12 and Recommendations.” Replies to the objections shall be served 13 and filed within ten (10) court days (plus three days if served 14 by mail) after service of the objections. The Court will then 15 review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 16 (b)(1)(C). The parties are advised that failure to file 17 objections within the specified time may waive the right to 18 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 19 1153 (9th Cir. 1991). 20 IT IS SO ORDERED. 21 Dated: October 26, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 18
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