United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. MILLER SENIOR UNITED STATES DISTRICT JUDGE.
before the court is plaintiff Malibu Media, LLC's (d/b/a
“X-Art.com”) (“Malibu Media”) motion
for default judgment. Dkt. 22. Having considered the amended
complaint, motion, record evidence, and applicable law, the
court is of the opinion that the motion should be GRANTED.
case arises under the United States Copyright Act of 1976, as
amended, 17 U.S.C. §§ 101 et seq. (the
“Copyright Act”). Dkt. 13 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. 13-1,
13-2. Malibu Media brings this copyright infringement action
against defendant Carson Einkauf. Malibu Media alleges that
it owns copyrights to nineteen films (the “Copyrighted
Works”) and that Einkauf used computer software known
as BitTorrent to illegally download, copy, and distribute the
films. Id. at 4.
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.
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.
Alleged Copyright Infringement
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 184.108.40.206, belonging to Einkauf. 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
220.127.116.11 had used BitTorrent to download, copy, and
distribute the Copyrighted Works without authorization.
September 26, 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 18.104.22.168, 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 Einkauf as the infringer. Dkt. 13.
Malibu Media properly served Einkauf by means of posting at
his last known address after this court gave Malibu Media
leave to serve Einkauf by alternative service. Dkts. 19, 21.
On May 28, 2018, Malibu Media filed a motion for default
judgment against Einkauf, which it served by certified mail,
return receipt requested. Dkt. 22. Malibu Media's
attorney provides a sworn declaration stating that Einkauf is
not a minor, incompetent, or in active military service. Dkt.
22-3 (Beik Dec.).
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 are
designed for the just, speedy, and inexpensive disposition of