Strike 3 Holdings, LLC v. Andaya

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION — 7 — 8 STRIKE 3 HOLDINGS, LLC, Case No. 21-cv-00760-VKD 9 Plaintiff, ORDER FOR REASSIGNMENT TO A DISTRICT JUDGE 10 v. REPORT AND RECOMMENDATION 11 EMMANUEL ANDAYA, RE MOTION FOR DEFAULT JUDGMENT Defendant. — 12 — Re: Dkt. No. 20 — 13 — 14 Plaintiff Strike 3 Holdings, LLC (“Strike 3”) filed this action for copyright infringement 15 and now moves for default judgment. No party has consented to proceed before a magistrate 16 judge. 28 U.S.C. § 636 (c); Fed. R. Civ. P. 73. Additionally, defendant Emmanuel Andaya has not 17 appeared and is in default. 18 All named parties must consent to magistrate judge jurisdiction before a magistrate judge 19 may hear and decide a case. 28 U.S.C. § 636 (c)(1); Williams v. King, 875 F.3d 500 (9th Cir. 20 2017). Because not all parties have consented to magistrate judge jurisdiction, this Court directs 21 the Clerk of the Court to reassign this action to a district judge, with the following report and 22 recommendation that Strike 3’s motion for default judgment be granted with some modification. 23 REPORT AND RECOMMENDATION 24 I. BACKGROUND 25 Strike 3 alleges that it owns the registered copyrights for several motion pictures. Dkt. No. 26 10 ¶¶ 2, 42, 45, 56 and Ex. A.1 According to the complaint, Mr. Andaya used the BitTorrent — 27 — 1 protocol to illegally (and anonymously) download and distribute 35 of Strike 3’s motion pictures. 2 Id. ¶¶ 4, 5 and Ex. A. Strike 3 initially did not know Mr. Andaya’s identity but says that its 3 investigation traced the alleged infringing activity to the internet protocol (“IP”) address 4 73.162.81.234. Prior to filing the present action, Strike 3 obtained a Florida state court order 5 permitting Strike 3 to serve a subpoena on internet service provider (“ISP”) Comcast Cable to 6 discover the subscriber for that IP address. Id. ¶ 5. Based on the information received in response 7 to that subpoena, as well as publicly available sources and its own investigation, Strike 3 says that 8 it identified Mr. Andaya as “the true infringer.” Id. ¶ 6. 9 Strike 3 then filed the present action in this Court by filing a complaint, redacting all of 10 Mr. Andaya’s identifying information. Dkt. No. 1. Shortly after, the Court provisionally granted 11 Strike 3’s motion to seal an unredacted version of the complaint (Dkt. No. 10), and required Strike 12 3 to publicly file a version of the complaint and summons that redacted Mr. Andaya’s name and 13 other personal identifying information. Dkt. No. 9. That order also provided that if Mr. Andaya 14 wished to proceed anonymously in this action, he would need to file a motion seeking leave to do 15 so. If no such motion was filed within two weeks from the date Mr. Andaya’s response to the 16 complaint was due, Strike 3’s complaint would be unsealed and the docket would be updated to 17 reflect Mr. Andaya’s name. Id. 18 The docket reflects that on February 24, 2021 Strike 3 personally served Mr. Andaya with 19 the Court’s provisional sealing order, along with the unredacted complaint and summons and other 20 documents. See Dkt. No. 14. As noted above, Mr. Andaya has failed to answer the complaint or 21 otherwise appear in this matter.2 22 On Strike 3’s motion, the Clerk of the Court entered Mr. Andaya’s default on May 11, 23 2021. Dkt. Nos. 17, 18. Although the docket indicates that Strike 3 served Mr. Andaya by mail — 24 — — 25 — serve a copy of this report and recommendation on Mr. Andaya, along with a chart that identifies the titles of the 35 films at issue. — 26 — 2 Accordingly, the Clerk of Court is directed to amend the case caption to reflect defendant’s true — 27 — name, Emmanuel Andaya, in place of “John Doe infringer identified as using IP address 1 with a copy of its request for entry of default (Dkt. No. 19), Mr. Andaya has not filed any 2 response. 3 Strike 3 now moves for default judgment on its sole claim for direct copyright 4 infringement, seeking $26,250.00 in statutory damages and $658.97 in costs, as well as a 5 permanent injunction.3 Strike 3 also requests that the Court retain jurisdiction over this action to 6 enforce the judgment for a period of six months or until the judgment is satisfied. 7 Although the docket indicates that Strike 3 served its motion for default judgment on Mr. 8 Andaya by mail (Dkt. No. 22), he has never filed a response. At the Court’s request, Strike 3 9 submitted further briefing to address the impact, if any, of Cobbler Nevada, LLC v. Gonzales, 901 10 F.3d 1142 (9th Cir. 2018) in the default judgment context. Dkt. Nos. 24, 25. Briefing on this 11 matter is closed. Civil L.R. 7-2, 7-3. Strike 3’s motion for default judgment is deemed suitable 12 for determination without oral argument. Civil L.R. 7-1 (b). 13 II. LEGAL STANDARD 14 Default may be entered against a party who fails to plead or otherwise defend an action. 15 Fed. R. Civ. P. 55(a). After entry of default, a court may, in its discretion, enter default judgment. 16 Fed. R. Civ. P. 55(b)(2);4 Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In deciding 17 whether to enter default judgment, a court may consider the following factors: (1) the possibility 18 of prejudice to the plaintiff; (2) the merits of the plaintiff’s substantive claim; (3) the sufficiency of 19 the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute 20 concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong 21 policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. 22 McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). In considering these factors, all factual 23 allegations in the plaintiff’s complaint are taken as true, except those relating to damages. — 24 — — 25 — 3 Although the Copyright Act authorizes an award of reasonable attorney’s fees, 17 U.S.C. § 505 , Strike 3 does not seek its fees. See Dkt. No. 20-2 ¶ 13. — 26 — 4 “A default judgment may be entered against a minor or incompetent person only if represented — 27 — by a general guardian, conservator, or other like fiduciary who has appeared.” Fed. R. Civ. P. 1 TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). The court may hold a 2 hearing to conduct an accounting, determine the amount of damages, establish the truth of any 3 allegation by evidence, or investigate any other matter. Fed. R. Civ. P. 55(b)(2). 4 III. DISCUSSION 5 A. Subject Matter Jurisdiction and Personal Jurisdiction 6 “When entry of judgment is sought against a party who has failed to plead or otherwise 7 defend, a district court has an affirmative duty to look into its jurisdiction over both the subject 8 matter and the parties.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). In the present action, 9 federal question jurisdiction is based on Strike 3’s claim for relief under the Copyright Act, 17 10 U.S.C. § 501 , et seq. See 28 U.S.C. §§ 1331 , 1338. This Court is also satisfied that personal 11 jurisdiction exists over Mr. Andaya because he is alleged to reside in this judicial district. See 12 Dkt. No. 10 ¶¶ 9, 12. 13 B. Service of Process 14 Pursuant to Rule 4(e) of the Federal Rules of Civil Procedure, an individual defendant may 15 be served by: (1) delivering a copy of the summons and complaint to the individual personally; 16 (2) leaving a copy of the summons and complaint at the individual’s dwelling or usual place of 17 abode with someone of suitable age and discretion who resides there; or (3) delivering a copy of 18 the summons and complaint to an agent authorized by appointment or by law to receive service of 19 process. Fed. R. Civ. P. 4(e)(2). Alternatively, an individual defendant may be served with 20 process pursuant to the law of the state where the district court is located. Fed. R. Civ. P. 4(e)(1). 21 Under California law, individual defendants may be served by several means, including personal 22 delivery of the summons and complaint to the individual or the individual’s authorized agent. Cal. 23 C.C.P. §§ 415.10, 416.90. 24 The record indicates that Mr. Andaya was personally served with process at his residence 25 on February 24, 2021. Dkt. No. 14. 26 C. Eitel Factors 27 For the reasons discussed below, the Eitel factors weigh in favor of entering default 1 1. The possibility of prejudice to Strike 3 2 The first Eitel factor requires the Court to consider whether Strike 3 would be prejudiced if 3 default judgment is not entered. Unless default judgment is entered, Strike 3 will have no other 4 means of recourse or recovery. That is sufficient to satisfy this factor. See, e.g. Michael Grecco 5 Prods., Inc. v. 8 Decimal Capital Mgmt., LLC, No. 20-cv-07466-HSG (TSH), 2021 WL 2534567 6 at *4 (N.D. Cal. June 1, 2021), report and recommendation adopted, No. 20-cv-07466-HSG, 2021 7 WL 2531093 (N.D. Cal. June 21, 2021); Cobbler Nevada, LLC v. Inglesias, No. 15-cv-053138 EDL, 2016 WL 8453643 , at *2 (N.D. Cal. Dec. 16, 2016), report and recommendation adopted, 9 No. 15-cv-5313 CRB, 2017 WL 878039 (N.D. Cal. Mar. 6, 2017). 10 2. The merits of Strike 3’s claim and the sufficiency of the complaint 11 The second and third Eitel factors address the merits and sufficiency of Strike 3’s claim as 12 pled in the complaint. Courts often analyze these two factors together. See Dr. JKL Ltd. v. HPC 13 IT Educ. Ctr., 749 F. Supp. 2d 1038, 1048 (N.D. Cal. 2010) (“Under an Eitel analysis, the merits 14 of plaintiff’s substantive claims and the sufficiency of the complaint are often analyzed 15 together.”). 16 To state a claim for copyright infringement, Strike 3 must establish “(1) ownership of a 17 valid copyright, and (2) copying of constituent elements of the work that are original.” Feist 18 Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991); see also 17 U.S.C. § 501 . Strike 3 19 alleges that it is the owner of the 35 registered copyrighted films at issue. Dkt. No. 10 ¶¶ 2, 42, 20 45, 56 and Ex. A. Additionally, Strike 3 alleges that its investigation revealed that Mr. Andaya 21 willfully copied and distributed the films in question using the BitTorrent protocol, without Strike 22 3’s authorization, permission or consent, thereby violating Strike 3’s exclusive rights to reproduce, 23 distribute, perform, and display the films in question. Id. ¶¶ 43, 44, 57, 58, 59, 60 . 24 Once Strike 3 learns the defendant’s identity, it cannot rely on a bare allegation that a 25 defendant is the registered subscriber of an IP address associated with infringing activity to state a 26 plausible claim for direct or contributory copyright infringement. Cobbler Nevada, LLC v. 27 Gonzales, 901 F.3d 1142, 1144 (9th Cir. 2018). “Because multiple devices and individuals may 1 puzzle. A plaintiff must allege something more to create a reasonable inference that a subscriber 2 is also an infringer.” Id. at 1145 . Courts have denied motions for default judgment where the 3 plaintiff failed to allege any facts beyond the defendant’s status as the subscriber associated with 4 the IP address at issue. See, e.g., Malibu Media, LLC v. Causa, No. 1:19-CV-963 (NAM/ML), — 5 — 2020 WL 5408994 , at *2 (N.D.N.Y. Sept. 9, 2020) (concluding that the complaint failed to state a 6 plausible claim “because the only allegation that connects [defendant] to the infringing activity is 7 that he is the internet subscriber associated with the IP address which was used to download and 8 share Plaintiff’s copyrighted films.”); Malibu Media, LLC v. Doe, No. 3:18-cv-01369 (JAM), — 9 — 2020 WL 4719219 , at *1 (D. Conn. Aug. 13, 2020) (finding that plaintiff failed to allege plausible 10 ground for relief because it “d[id] not allege any additional facts beyond Doe’s subscriber status to 11 show that he engaged in the unlawful downloading of Malibu Media films[.]”); Malibu Media, 12 LLC v. Peled, No. 2:18-cv-00141-KSH-CLW, 2020 WL 831072 , at *3 (D.N.J. Feb. 20, 2020) 13 (concluding that defendant’s “status as the subscriber of the IP address is insufficient to prove that 14 he was in fact the infringer of the copyrighted materials.”). 15 This Court is satisfied that Strike 3 has alleged sufficient additional facts, beyond Mr. 16 Andaya’s status as the subscriber of the IP address at issue, to support a plausible claim for relief. 17 Strike 3 alleges that Mr. Andaya is the infringer based on its investigation of social media and 18 other publicly available information indicating a connection between his professional interests 19 (criminal justice and information technology) and other materials downloaded and distributed 20 using the same IP address. Dkt. No. 10 ¶¶ 12, 47-54. Additionally, in supplemental briefing, 21 Strike 3 has submitted the declaration of Jessica Fernandez, the senior in-house counsel for 22 Strike’s 3’s parent company, who attests to the following facts revealed by Strike 3’s 23 investigation: (1) the subscriber and location information Strike 3 received in response to its 24 court-authorized subpoena to the ISP confirmed the information Strike 3 obtained in its 25 geolocation investigation; (2) during an 18-month period, Strike 3’s software determined that a 26 single BitTorrent client (with only one change reflecting updated μTorrent software) was used to 27 download and distribute all works through the IP address in question, suggesting that an individual 1 (3) during the same 18-month period, the same IP address was used to download and distribute 2 1,696 mainstream media, suggesting that the infringer likely is a permanent resident at the 3 identified address; (4) approximately 15 days after Strike 3 served the court-authorized subpoena 4 on the relevant ISP (i.e., after the subscriber would have received notice from the ISP of the 5 infringing activity), the substantial BitTorrent activity associated with the subject IP address came 6 to an abrupt and complete halt; (5) while Mr. Andaya apparently lives at the residence with his 7 wife and teenage daughter, he is the lone male occupant of the home; and, Strike 3’s customer 8 demographics indicate that its films are generally more popular with males than females; and 9 (6) after Mr. Andaya was personally served with the complaint and summons, his social media 10 pages were taken down. Dkt. No. 25, Ex. A. Courts have granted motions for default judgment 11 based on a similar showing by the plaintiff. See, e.g., Malibu Media, LLC v. Mantilla, No. 3:1812 cv-01369 (JAM), 2020 WL 6866678 (D. Conn. Nov. 20, 2020) (granting motion for default 13 judgment); Malibu Media v. Flanagan, No. 2:13-CV-5890, 2014 WL 2957701 (E.D. Pa. July 1, 14 2014) (granting motion for default judgment); see also, e.g., Malibu Media, LLC v. Doe, No. 18 C 15 450, 2019 WL 8301066 (N.D. Ill. June 5, 2019) (denying motion to dismiss). 16 This Court finds that the second and third Eitel factors weigh in favor of default judgment. 17 3. The amount of money at stake 18 Under this factor, the court considers the amount of money at stake in relation to the 19 seriousness of the defendant’s conduct. Dr. JKL Ltd., 749 F. Supp. 2d at 1050 . “When the 20 amount at stake is substantial or unreasonable in light of the allegations in the complaint, default 21 judgment is disfavored.” Michael Grecco Productions, Inc., 2021 WL 2534567 at *5 (quoting 22 Eitel, 782 F.2d at 1472 ). “‘However, when the sum of money at stake is tailored to the specific 23 misconduct of the defendant, default judgment may be appropriate.’” Id. (quoting Yelp Inc. v. 24 Catron, 70 F. Supp. 3d 1082, 1100 (N.D. Cal. 2014)). 25 Under the Copyright Act, an infringer is liable for either the copyright owner’s actual 26 damages (plus any additional profits of the infringer) or statutory damages. 17 U.S.C. § 504 (a). 27 Strike 3 seeks statutory damages, in which case it may recover “a sum of not less than $750 or 1 where the copyright owner sustains the burden of proving, and the court finds, that infringement 2 was committed willfully, the court in its discretion may increase the award of statutory damages to 3 a sum of not more than $150,000.” Id. § 504(c)(2). For purposes of statutory damages, “all the 4 parts of a compilation or derivative work constitute one work.” Id. § 504(c)(1). “‘Both the text of 5 the Copyright Act and its legislative history make clear that statutory damages are to be calculated 6 according to the number of works infringed, not the number of infringements.’” Synopsys, Inc. v. 7 ATopTech, Inc., No. C-13-02965-MMC (DMR), 2015 WL 1197705 , at *3 (N.D. Cal. Mar. 16, 8 2015) (quoting Walt Disney Co. v. Powell, 897 F.2d 565, 569 (D.C.Cir.1990)). Accord Louis 9 Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 658 F.3d 936, 946 (9th Cir.2011) (“[W]hen 10 statutory damages are assessed against one defendant . . . each work infringed may form the basis 11 of only one award, regardless of the number of separate infringements of that work.”) (citation 12 omitted). However, statutory damages are unavailable if “(1) any infringement of copyright in an 13 unpublished work commenced before the effective date of its registration; or (2) any infringement 14 of copyright commenced after first publication of the work and before the effective date of its 15 registration, unless such registration is made within three months after the first publication of the 16 work.” 17 U.S.C. § 412 (1)-(2). 17 Strike 3 requests the minimum statutory damages of $750 for each of the 35 works at issue, 18 for a total of $26,250. Strike 3’s complaint indicates that while the alleged infringing activity 19 occurred before the effective date of each film’s registration, each film was registered within three 20 months after the date of publication. Dkt. No. 10, Ex. A; see 17 U.S.C. § 412 (2). Although the 21 sum requested is not insubstantial, this Court finds Strike 3’s request reasonable and just. See, 22 e.g., Inglesias, 2016 WL 8453643 at *3 (recommending statutory minimum damages); UMG 23 Recordings, Inc. v. Sanchez, No. C 06-03457 JSW, 2007 WL 485955 (N.D. Cal. Feb. 12, 2007) 24 (adopting report and recommendation for award of statutory minimum damages for the 11 25 copyrighted works at issue); Elektra Entm’t Group, Inc. v. Keys, No. C06-2047 SBA, 2007 WL 26 81912 (N.D. Cal. Jan. 9, 2007) (adopting report and recommendation for award of statutory 27 minimum damages for the 21 copyrighted works at issue). 1 4. The possibility of a dispute concerning material facts 2 The fifth Eitel factor requires the Court to consider the possibility of a dispute concerning 3 material facts. Eitel, 782 F.2d at 1471-72 . Because Mr. Andaya has not appeared, and because all 4 liability-related allegations are deemed true, there is little possibility of a dispute as to material 5 facts. Moreover, for the reasons discussed above, Strike 3 has alleged sufficient facts to support a 6 plausible claim for relief. This factor weighs in favor of default judgment. See, e.g., Dr. JKL Ltd., — 7 — 749 F. Supp. 2d at 1051 (finding that this factor weighed in favor of default judgment where the 8 defendant failed to address any specific allegations of the complaint). 9 5. Whether defendant’s default was due to excusable neglect 10 There is no indication that Mr. Andaya’s default was due to excusable neglect. Eitel, 782 11 F.2d at 1472. As discussed, the record demonstrates that Strike 3 personally served Mr. Andaya 12 with notice of this lawsuit and also mailed to him a copy of its request for entry of his default and 13 the present motion for default judgment. Dkt. Nos. 14, 19, 22. Additionally, Strike 3’s counsel 14 avers that prior to filing the present motion for default judgment, he sent a letter to Mr. Andaya 15 stating that if he did not respond to the complaint by May 11, 2021, then Strike 3 would request 16 entry of his default and proceed with a motion for default judgment. Dkt. No. 20-2 ¶ 8, Ex. 1. Mr. 17 Andaya has never appeared or responded, suggesting that he has chosen not to present a defense in 18 this matter. This factor also weighs in favor of default judgment. 19 6. The strong policy favoring decisions on the merits 20 While “[c]ases should be decided upon their merits whenever reasonably possible,” Eitel, — 21 — 782 F.2d at 1472 , Mr. Andaya’s failure to participate in this litigation makes that impossible. See 22 Dr. JKL Ltd., 749 F. Supp. 2d at 1051 (“Although the Federal Rules espouse a preference for 23 resolving cases on their merits, defendants’ failure to comply with the judicial process makes a 24 decision on the merits likely impossible.”) (citation omitted). This factor weighs in favor of 25 default judgment. 26 D. Requested Relief 27 1. Statutory Damages 1 35 copyrighted works at issue. 17 U.S.C. § 504 (c)(1). For the reasons discussed above, this Court 2 finds Strike 3’s request for minimum statutory damages to be reasonable and recommends that 3 Strike 3 be awarded a total of $26,250. 4 2. Costs 5 The Copyright Act provides that “the court in its discretion may allow the recovery of full 6 costs by or against any party other than the United States or an officer thereof.” 17 U.S.C. § 505 . 7 Strike 3 requests $400 for the filing fee and $258.97 for the service of process fee. The record 8 supports these costs, which this Court finds reasonable. Dkt. No. 1; Dkt. No. 14; Dkt. No. 20-2 9 ¶ 12. 10 3. Permanent Injunction 11 Strike 3 requests a permanent injunction enjoining Mr. Andaya from: 12 directly, contributorily or indirectly infringing [Strike 3]’s rights under federal or state law in the Works, including, without limitation, 13 by using the internet, BitTorrent or any other online media distribution system to reproduce (e.g., download) and/or distribute the 14 Works, or to make the Works available for distribution to the public, except pursuant to a lawful license or with the express authority of 15 [Strike 3]. 16 Dkt. No. 20-3 at 3. Strike 3’s proposed injunction appears to define “Works” to mean the 35 17 specific copyrighted works at issue. Id. at 2 . Strike 3 also requests an order requiring Mr. Andaya 18 to “destroy all copies of [Strike 3]’s works that [Mr. Andaya] has downloaded onto any computer 19 hard drive or server without [Strike 3]’s authorization and shall destroy all copies of the Works 20 transferred onto any physical medium or device in [Mr. Andaya]’s possession, custody, or 21 control.” Id. at 3 . 22 For the reasons discussed below, this Court finds that the requested injunctive relief is 23 reasonable insofar as it pertains to Strike 3’s rights under the Copyright Act for the 35 films 24 identified in the complaint. 25 The Copyright Act authorizes “temporary and final injunctions” on such terms as the Court 26 may deem reasonable “to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502 (a). 27 Additionally, courts may order destruction of unauthorized copies of copyrighted works. Id. 1 Strike 3 must demonstrate four factors: 2 (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to 3 compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is 4 warranted; and (4) that the public interest would not be disserved by a permanent injunction — 5 — 6 eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 , 391 (2006). 7 This Court finds that Strike 3 has established that all four factors are satisfied and that a 8 permanent injunction is warranted. Strike 3 says that “piracy is a major threat to [the] company” 9 and that it “can compete in the industry, but not “when [its] content is stolen.” Dkt. No. 25, Ex. B 10 ¶ 26. According to the complaint, Mr. Andaya unlawfully downloaded and distributed 35 of 11 Strike 3’s copyrighted films globally through the BitTorrent network, and his infringing activity is 12 continuous and ongoing. Dkt. No. 10 ¶¶ 4, 5, 43, 44, 57, 58, 59, 60. In view of the decentralized 13 nature of the BitTorrent protocol,5 Strike 3 says that tracing the extent and magnitude of the 14 damage is impossible. Dkt. No. 20-1 at 9. Strike 3 further states that it has discovered that when 15 it puts videos online for paid members to view, its films are often made available, illegally, in less 16 than a day and that online infringement allows its films to be made “available for free in just 17 minutes.” Dkt. No. 25, Ex. B ¶¶ 27, 29. See generally, e.g., Apple Inc. v. Psystar Corp., 673 F. 18 Supp. 2d 943, 949 (N.D. Cal. 2009), aff'd, 658 F.3d 1150 (9th Cir. 2011) (finding irreparable 19 injury where infringement harms the competitive position and market share of the copyrighted 20 work). The record suggests that without a permanent injunction, Mr. Andaya will likely continue 21 his infringement, exposing Strike 3 to further injury and requiring repeated lawsuits for ongoing 22 infringement. Indeed, in failing to appear and defend this action, he has given no indication that 23 he will respond to Strike 3’s allegations, much less cease his infringing activities, although he 24 appears to have eliminated his social media presence and ceased use of the BitTorrent protocol 25 that Strike 3 used to identify him. See Michael Grecco Productions, Inc., 2021 WL 2534567 at *6 26 (“Monetary damages are not sufficient to compensate[plaintiff] for this injury because it would be — 27 — 1 forced to bring repeated lawsuits to recover for ongoing infringement.”); Inglesias, 2016 WL 2 8453643 at *4 (“Defendant’s failure to respond to the suit, alongside Plaintiff’s pleadings, 3 suggests that Defendant’s infringing activities will not cease absent judicial intervention.”). Mr. 4 Andaya will not suffer a hardship from an injunction that prohibits him from illegally 5 downloading and distributing Strike 3’s works—i.e., conduct that he has no right to engage in at 6 all. Nothing in the proposed injunction prohibits Mr. Andaya from lawfully accessing Strike 3’s 7 films. Under the facts presented here, this Court agrees that the public interest will not be 8 disserved by Strike 3’s requested injunctive relief. See generally Metro-Goldwyn-Mayer Studios, 9 Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197, 1222 (C.D. Cal. 2007) (“The public interest in 10 receiving copyrighted content for free is outweighed by the need to incentivize the creation of 11 original works.”). 12 This Court finds Strike 3’s request for an injunction regarding the 35 films in question to 13 be reasonable. However, insofar as Strike 3 seeks an injunction concerning rights that have not 14 been clearly identified in this litigation or works beyond the 35 films in question for which 15 infringement has not been established, the Court declines to recommend an injunction of the scope 16 proposed by Strike 3. See, e.g Strike 3 Holdings, LLC v. Doe, No. 2:18-cv-5305 (DRH) (SIL), — 17 — 2021 WL 21532 (E.D.N.Y. Jan. 4, 2021) (granting permanent injunction as to the particular films 18 identified in the chart appended to Strike 3’s complaint); Mantilla, 2020 WL 6866678 at *6 19 (“However, to the extent Malibu Media requests I enjoin ‘all other persons who are in active 20 concert or participation’ with Mantilla and order Mantilla to destroy its ‘works’ beyond the 21 infringing copies and related files, I will decline to do so. I will not enter judgment against 22 unknown parties not named defendants in this lawsuit or address ambiguous ‘works’ for which 23 infringement has not been established.”); see also Michael Grecco Productions, Inc., 2021 WL 24 2534567 at *7 (limiting injunction to the copyrighted photograph at issue). 25 IV. CONCLUSION 26 Because not all parties have consented to the undersigned's jurisdiction, IT IS ORDERED 27 THAT this case be reassigned to a district judge. For the reasons discussed above, it is 1 Specifically, this Court recommends that: 2 1. The Court award Strike 3 $26,250 in statutory damages and $658.97 in costs, for a 3 total award of $26,908.97. Interest shall be allowed at the current legal rate 4 allowed and accruing under 28 U.S.C. § 1961 , as of the date default judgment is 5 entered until the date the judgment is satisfied. 6 2. The Court issue a permanent injunction as follows: 7 a. Mr. Andaya is enjoined from directly, contributorily or indirectly infringing 8 Strike 3’s rights under the Copyright Act, 17 U.S.C. § 501 , et seq., in the 9 Works listed in the chart appended to its complaint and this report and 10 recommendation, including, without limitation, by using the internet, 11 BitTorrent or any other online media distribution system to reproduce (e.g., 12 download) and/or distribute the Works, or to make the Works available for 13 distribution to the public, except pursuant to a lawful license or with the 14 express authority of Strike 3. 15 b. Mr. Andaya shall destroy all copies of Strike 3’s Works listed in the chart 16 appended to this report and recommendation that he has downloaded onto 17 any computer hard drive or server without Strike 3’s authorization and shall 18 destroy all copies of the Works transferred onto any physical medium or 19 device in his possession, custody, or control. 20 3. The Court retains jurisdiction over this action for six months after the entry of 21 judgment, to enforce relief. 22 Strike 3 shall promptly serve Mr. Andaya with this report and recommendation, including 23 the chart appended hereto, and file a proof of service with the Court. As noted above, Strike 3 24 shall also provide Mr. Andaya with the titles of the films corresponding to the films identified in 25 the appended chart. Any party may serve and file objections to this report and recommendation — 26 — — 27 — 1 within 14 days after being served. 28 U.S.C. § 636 (b)(1); Fed. R. Civ. P. 72; Civ. L.R. 72-3. 2 Dated: November 4, 2021 — 3 — 4 Unigguiia MAA du March: VIRGINIA K. DEMARCH 5 United States Magistrate Judge — 6 — — 7 — — 8 — — 9 — — 10 — ll a 12 — 13 — — 14 — — 15 — — 16 — € = 17 — 6 — Zz 18 — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —