United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION & ORDER
H. Miller, United States District Judge
before the court is plaintiff Malibu Media, LLC's (d/b/a
“X-Art.com”) (“Malibu Media”) amended
motion for default judgment. Dkt. 21. Having considered the
amended complaint, motion, record evidence, and applicable
law, the court is of the opinion that the motion should be
GRANTED IN PART AND DENIED IN PART.
case arises under the United States Copyright Act of 1976, as
amended, 17 U.S.C. §§ 101 et. seq. (the
“Copyright Act”). Dkt. 10 at 1. Malibu Media
brings this copyright infringement action against defendant
Jonathan Gonzales. Malibu Media alleges that it owns
copyrights to eighteen adult films (the “Copyrighted
Works”) and that Gonzales used computer software known
as BitTorrent to illegally download, copy, and distribute the
films. Dkt. 10 at 4.
Media is a California corporation engaged in the production
and distribution of adult erotic films through its website
“X-Art.com.” See Dkt. 6-2 (Pelissier
Dec.). Customers pay monthly or annual subscription fees to
access an online library of copyrighted video content.
Id. at 3. Internet subscription sales are Malibu
Media's primary source of revenue. Id. However,
Malibu Media claims its content is well-known and ranks as
the most downloaded adult content on several popular
BitTorrent websites. Id. According to Malibu Media,
it must “protect its copyrights in order to survive and
. . . hope for future revenue growth.” Id. at
Media alleges that the copyright infringement occurred
through the use of BitTorrent. Malibu Media alleges that
BitTorrent is one of the most common computer programs that
allows people to share files over the Internet. Dkt. 10 at
2-3. BitTorrent, a peer-to-peer file sharing system, is
primarily used for distributing large amounts of data,
including digital movie files. Id. at 3. Malibu
Media claims that BitTorrent's defining feature is that
it allows files to be transferred among multiple computers
simultaneously without creating a heavy load on any
individual source computer. Id.
Media explains that in order to distribute a large file, the
BitTorrent protocol breaks a file into smaller pieces and
assigns each piece a “hash, ” a unique
alphanumeric identifier, similar to an electronic
fingerprint. Id. Every digital file has one hash
value correlating to it. Id. The BitTorrent protocol
uses the hash values to ensure each piece is properly routed
among BitTorrent users as they engage in file sharing.
Id. The entire digital media file also has a hash
value that acts as a digital fingerprint to identify the
media file or movie. Id. When a software user
completes downloading all the pieces of a digital media file,
the BitTorrent software uses the file hash to determine that
the file is complete and accurate. Id. Once a
BitTorrent file has been created, other BitTorrent users may
access and download the file. Id.
Alleged Copyright Infringement
Media hired investigators, IPP International UG and Excipio
GmbH (“IPP”), to identify individuals who use
BitTorrent to illegally download and distribute content.
Id. IPP uses software to detect the Internet
Protocol (“IP”) addresses of BitTorrent users
that distribute Malibu Media's Copyrighted Works within
the BitTorrent File Distribution Network. See Dkt.
6-4 at 2 (Fieser Dec.). Infringement of Malibu Media's
copyrights can occur through the distribution of a single
movie file correlating to a copyrighted Malibu Media movie,
or a large scale distribution of “Unauthorized
Packs.” Id. IPP claims it established a direct
Transmission Control Protocol/Internet Protocol
(“TCP/IP”) connection with the assigned IP
address of 220.127.116.11, belonging to Gonzales. Dkt. 10 at
3; Dkt. 1-1. IPP claims it downloaded a full copy of each
file hash from the BitTorrent File Distribution Network and
confirmed that the file hash matched files containing Malibu
Media's Copyrighted Works. Dkt. 10 at 4. IPP claims its
investigation revealed that Gonzales had used BitTorrent to
download, copy, and distribute the Copyrighted Works without
authorization. Dkt. 10 at 4.
August 9, 2016, Malibu Media filed a complaint against an
unnamed individual who allegedly used BitTorrent to copy and
distribute the Copyrighted Works without Malibu Media's
consent, thereby infringing its copyright. Dkt. 1. The
original complaint alleged that the defendant John Doe, a
subscriber with an IP address of 18.104.22.168, infringed on
Malibu Media's registered copyrights using BitTorrent.
Dkt. 1. After filing the complaint, Malibu Media moved for
leave to serve a third-party subpeona on John Doe's
Internet Service Provider, commanding it to provide the
subscriber's name and contact information. Dkt. 8. The
court granted the motion, after which Malibu Media filed an
amended complaint naming Gonzales as the infringer. Dkt. 10.
Malibu Media then moved for entry of default judgment (Dkt.
17), but the court granted an order striking the motion for
failing to comply with filing requirements. Dkt. 20. The
original motion for default judgment failed to serve Gonzales
by certified mail with a return receipt. Id. On
January 24, 2017, Malibu Media properly served Gonzales with
certified mail and a return receipt. Dkt. 21-1. On January
26, 2017, Malibu Media filed an amended motion for default
judgment against Gonzales. Dkt. 21. Malibu Media's
attorney provides a sworn declaration stating that Gonzales
is not a minor, incompetent, or in active military service.
Federal Rule of Civil Procedure 55(a), “[w]hen a party
against whom judgment for affirmative relief is sought has
failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the
party's default.” Fed.R.Civ.P. 55(a). Under Rule
55(b)(2), a party may apply for the court to enter a default
judgment, and the “court may conduct hearings or make
referrals-preserving any federal statutory right to a jury
trial-when, to enter or effectuate judgment, it needs to: (A)
conduct an accounting; (B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or (D)
investigate any other matter.” Fed.R.Civ.P. 55(b)(2).
Rule 4 of the Federal Rules of Civil Procedure requires the
plaintiff to serve a copy of the summons and complaint on the
defendant. Fed.R.Civ.P. 4(c)(1). Under Local Rule 5.5, a
motion for default judgment must be served upon the defendant
via certified mail, return receipt requested. S.D. Tex. L.R.
default judgment is a “drastic remedy, not favored by
the Federal Rules[, ] and resorted to by courts only in
extreme situations.” Sun Bank of Ocala v. Pelican
Homestead & Sav. Ass'n, 874 F.2d 274, 276 (5th
Cir. 1989). “The Federal Rules of Civil Procedure[s]
are designed for the just, speedy, and inexpensive
disposition of cases on their merits, not for the termination
of litigation by procedural maneuver.” Id.
has failed to plead or otherwise defend against this lawsuit.
Malibu Media properly served Gonzales with this lawsuit under
the Federal Rules and with the amended motion for default
judgment under the Local Rules. Dkt. 11; Dkt. 21;
see Tex. L.R. 5.5. Given Gonzales' failure to
answer the complaint in a timely manner, the court: (1) has
the authority to enter default against Gonzales, (2) accept
all well-pleaded facts in Malibu Media's complaint as
true, and (3) award the relief sought by Malibu Media in this
action. See Nishimatsu Constr. Co. v. Hous. Nat'l
Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).