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Malibu Media, LLC v. Zhao

United States District Court, S.D. Texas, Houston Division

July 16, 2019

Malibu Media, LLC, Plaintiff,
v.
Jie Zhao, Defendant.

          MEMORANDUM OPINION AND ORDER

          GRAY H. MILLER SENIOR UNITED STATES DISTRICT JUDGE

         Pending before the court is plaintiff Malibu Media, LLC's (d/b/a “X-Art.com”) (“Malibu Media”) motion for default judgment. Dkt. 20. Having considered the amended complaint, motion, record evidence, and applicable law, the court is of the opinion that the motion should be GRANTED.

         I. Background

         This case arises under the United States Copyright Act of 1976, as amended, 17 U.S.C. §§ 101 et seq. (the “Copyright Act”). Dkt. 14 at 1. Malibu Media is a California corporation engaged in the production and distribution of adult erotic films through its website “X-Art.com.” See Id. at 2; Dkts. 14-1, 14-2. Malibu Media brings this copyright infringement action against defendant Jie Zhao. Malibu Media alleges that it owns copyrights to five films (the “Copyrighted Works”) and that Zhao used computer software known as BitTorrent to illegally download, copy, and distribute the films. Id. at 4.

         A. BitTorrent

         Malibu Media alleges that the copyright infringement occurred through the use of BitTorrent. According to Malibu Media, BitTorrent is one of the most common computer programs that allows people to share files over the Internet. Id. at 3. BitTorrent, a peer-to-peer file sharing system, is primarily used for distributing large amounts of data, including digital movie files. Id. 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.

         Malibu 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. at 3-4. 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.

         B. Alleged Copyright Infringement

         Malibu Media hired the investigator, IPP International UG (“IPP”), to identify individuals who use BitTorrent to illegally download and distribute content. Id. at 4. Malibu Media claims IPP established a direct Transmission Control Protocol/Internet Protocol (“TCP/IP”) connection with the assigned IP address of 73.76.108.134, belonging to Zhao. Id. at 4-5. IPP states that 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. Id. at 4. IPP claims its investigation revealed that a user at the IP address 73.76.108.134 had used BitTorrent to download, copy, and distribute the Copyrighted Works without authorization. Id.

         C. Procedural History

         On August 30, 2018, 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 on its copyright. Dkt. 1. The original complaint alleged that defendant John Doe, a subscriber with an IP address of 73.76.108.134, infringed on Malibu Media's registered copyrights using BitTorrent. Id. After filing the complaint, Malibu Media moved for leave to serve a third-party subpoena on John Doe's Internet Service Provider, commanding it to provide the subscriber's name and contact information. Dkt. 6. The court granted the motion, after which Malibu Media filed an amended complaint naming Zhao as the infringer. Dkt. 14. Malibu Media properly served Zhao by personally delivering documents to him. Dkt. 19. On May 27, 2018, Malibu Media filed a motion for default judgment against Zhao, which it served by certified mail, return receipt requested. Dkt. 20. Malibu Media's attorney provides a sworn declaration stating that Zhao is not a minor, incompetent, or in active military service. Dkt. 20-3 (Beik Dec.).

         II. Legal Standard

         Under 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. 5.5.

         A 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 are designed for the just, speedy, and inexpensive disposition of ...


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