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Cook Productions, LLC v. Szerlip

United States District Court, D. Hawaii

August 25, 2017

COOK PRODUCTIONS, LLC, Plaintiff,
v.
STANLEY SZERLIP, Defendant.

          FINDINGS AND RECOMMENDATION TO PARTIALLY GRANT PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT STANLEY SZERLIP

          KEVIN S.C. CHANG UNITED STATES MAGISTRATE JUDGE

         Plaintiff COOK PRODUCTIONS, LLC's (hereafter: “Plaintiff”), Motion for Default Judgment Against Defendant STANLEY SZERLIP (“Defendant”), filed herein on June 8, 2017, [Doc. #48], having come on for hearing before the Court, the Honorable Kevin S.C. Chang, Magistrate Judge presiding, with Kerry S. Culpepper appearing for Plaintiff and there being no appearance and no written submission by or on behalf of the Defendant, the Court, after full consideration of Plaintiff's motion and the entire record herein, makes the following Findings and Recommendation:

         This is an action for permanent injunctive relief and damages against Defendant for copyright infringement in violation of the United States Copyright Act, 17 U.S.C. 101 §§ et. seq.

         This Court has subject matter jurisdiction over this action pursuant to 17 U.S.C. §§ 101, et. seq., 28 U.S.C. § 1331, and 28 U.S.C. § 1338. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and (c) and 28 U.S.C. § 1400(a).

         Plaintiff commenced this action by filing its Complaint on December 2, 2016 against eight Doe individuals including the Defendant. [Doc. #1].

         Thereafter, Plaintiff ascertained the identity of the individual who illegally downloaded and distributed the Plaintiff's copyrighted movie Mr. Church (hereafter: the “Work”) by subpoenaing Defendant's Internet Service Provider, Hawaiian Telcom. [Doc. #24 ¶¶ 8, 21].

         Plaintiff's Complaint was then amended to specifically identify Defendant. [Id.] Plaintiff personally served the Defendant with a summons on May 4, 2017 and filed the Proof of Service. [Doc. #38]. Based upon the service date of May 4, 2017, Defendant's answer was due on May 25, 2017.

         When Defendant failed to appear, plead, or otherwise defend, Plaintiff filed a Rule 55(a) request for the entry of default on May 26, 2017 [Doc. # 43]. The request was promptly granted by the Court. [Doc. # 44].

         Plaintiff is a California limited liability company that owns the copyright for the motion picture in the Work under registration number PA 2-002-851. [Doc. # 24, ¶ 29].

         Plaintiff filed this action after discovering that Defendant had illegally downloaded and copied the Work using the BitTorrent protocol. [Id. ¶ ¶ 8 and 21].

         BitTorrent is an interactive “peer-to-peer” (“P2P”) file transfer technology protocol whereby users can: (a) make media files (including entire movies) stored on each user's computer available for copying by other users or peers; (b) search for files that are stored on other users' computers; and (c) transfer exact copies of those files from one computer to another via the Internet. [Id. ¶¶ 19 20-25].

         Defendant is the Internet subscriber that was assigned and had the use of the IP address 72.234.118.117 on October 19, 2016.

         Using a BitTorrent client application, Defendant illegally republished and distributed copies of the Plaintiff's copyrighted Work through the use of the unique hash number SHA1: FB9EAB34A9CC31AABC73B4F560D4B6C49F3C856A to an unknown number of other individuals over the Internet. Particularly, Defendant illegally downloaded the Work on October 19, 2016 3:13 am UTC. [Doc. #24-1]. It is undisputed that his infringement was willful and intentional.

         Defendant distributed copies of his illegitimate copy of the Work at least three times. [Doc. #24-4, item#6]. This contention is also undisputed.

         Defendant's actions contributed to the Work being among the most ten pirated movies of the week of October 17, 2016, which was or very near the week of Defendant's infringements. [Doc. #48-1].

         The Complaint alleges claims for copyright infringements, in violation of the United States Copyright Act, 17 U.S.C. § 101 et. seq., for distributing copies of Plaintiff's Work.

         A plaintiff asserting a copyright infringement claim must demonstrate: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Pubs., Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); LGS Architects, Inc. v. Concordia Homes of Nevada, 434 F.3d 1150, 1156 ...


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