Federal District Court Opinions


ARISTA RECORDS, LLC, and BMG MUSIC, Plaintiffs, v. Magally
MERINO, Defendant. Civil Action 06-3538 (DRD). United
States District Court, D. New Jersey. November 27, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Karen A. Confoy, Esq., STEARNS & WEINROTH,
PC, Trenton, NJ, Attorney for Plaintiffs Fonovisa, Inc.,
Arista Records, LLC and BMG Music.

Magally Merino, North Brunswick, NJ, Defendant.


DICKINSON DEBEVOISE, Senior District Judge

This matter is before the Court on Plaintiffs’ Application
for Default Judgment following the Clerk’s October 20, 2006
entry of default based on Defendant’s failure to appear.
For the reasons set forth below, Plaintiffs’ Application is
granted. Page 2


On August 1, 2006, Plaintiffs filed a one-count complaint
for copyright infringement alleging that, in spite of
properly placed notices of copyright pursuant to 17 U.S.C.
§ 401 and without the permission or consent of the
Plaintiffs, Defendant willfully and intentionally used, and
continues to use, an online media distribution system[fn1]
to download Plaintiffs’ copyrighted recordings and to
distribute the copyrighted recordings to the public, or to
make the copyrighted recordings available for distribution
to others, in violation of 17 U.S.C. § 101 et seq.
Plaintiffs’ Complaint alleges seven infringements by

Defendant failed to appear, answer, or otherwise defend in
the matter despite having been Page 3 served with a copy
of the complaint and summons. Therefore, on October 19,
2006, pursuant to Rule 55 of the Federal Rules of Civil
Procedure (“Fed.R.Civ.P.”), Plaintiffs applied for an entry
of default based on Defendant’s failure to appear. On
October 20, 2006, default was entered by the Clerk of the
Court. Again, in spite of two attempts by Plaintiff to
inform Defendant of the entry of default, Defendant failed
to appear. On October 23, 2006, therefore, Plaintiffs
applied for entry of default judgment by the Court.

Pursuant to 17 U.S.C. § 504(c), Plaintiffs seek
minimum statutory damages of $750 for each infringement,
for a total principal sum of $5,250 (five thousand two
hundred fifty dollars), $420 (four hundred twenty dollars)
for costs of suit, as well as a permanent injunction to
prohibit Defendant from directly or indirectly infringing
Plaintiffs’ rights in its sound recordings, now or in the
future, and to require Defendant to destroy all
unauthorized copies of Plaintiffs sound recordings in any
form or medium.


Downloading of Music from the Internet

A number of courts have held that downloading music from
the internet, for which the user neither pays a fee nor
owns, is a direct infringement violation of the Copyright
Act, 17 U.S.C.A. § 501(a). See In re Aimster
Copyright Lit., 334 F.3d 643, 645 (7th Cir. 2003) (“If the
music is copyrighted, [] swapping, which involves making
and transmitting a digital copy of the music, infringes
copyright. The swappers . . . are [] direct infringers.”),
cert. denied, 124 S. Ct. 1069 (2004); A & M Records, Inc.,
v. Napster, 239 F.3d 1004, 1014 (9th Cir. 2001)
(individuals who upload and download music files without
permission commit direct copyright infringement); BMG Music
v. Gonzalez, 2005 WL 106592, *1 (N.D.Ill. Jan. 7, 2005) (to
permit a defendant “to assert [an Page 4 innocent
infringer] defense based on her ignorance would eviscerate
copyright protection and the old adage that `ignorance is
no defense to the law.'”); Elektra Ent. Group, Inc. v.
Bryant, 2004 WL 783123, at *4 (C.D.Cal. Feb. 13, 2004).

Standard for Entry of Default Judgment

Fed.R.Civ.P. 55 governs the entry of default judgment. A
party must have the clerk of the court enter default
pursuant to R. 55(a) before it may move for default
judgment pursuant to R. 55(b). DeTore v. Local No. 245 of
Jersey City Pub. Emp. Union, 511 F. Supp. 171, 176 (D.N.J.
1981). R. 55(b)(2) authorizes a court to enter a default
judgment against a properly served defendant who fails to
file a timely responsive pleading. Anchorage Assoc. v.
Virgin Is. Bd. of Tax Rev., 922 F.2d 168, 177 n. 9 (3d Cir.
1990) (“When a defendant fails to appear . . ., the
district court or its clerk is authorized to enter a
default judgment based solely on the fact that the default
has occurred.”)

Statutory Damages

Section 504 of the Copyright Act provides that a copyright
infringer is liable for statutory damages[fn3] and that the
copyright owner may elect an award of statutory damages for
each infringement of not less than $750 and not more than
$30,000 provided the court considers the award just.[fn4]
Plaintiffs may elect statutory damages regardless of the
adequacy of the evidence regarding actual damages and
defendant’s profits. See Columbia Pictures TV, Inc. v.
Krypton Broadcasting of Birmingham, Inc., 259 F.3d 1186,
1194 (9th Cir. 2001), cert. denied, 534 U.S. 1127 (2002).
See also L.A. News Serv. v. Reuters TV Int’l, Ltd., 149
F.3d 987, 996 (9th Cir. 1998), cert. denied, Page 5 525
U.S. 1141 (1999).

In default judgments in copyright infringement cases,
federal courts routinely award minimum statutory damages.
See, e.g., Ortiz-Gonzalez v. Fonovisa, Inc., 277 F.3d 59
(1st Cir. 2002); D.C. Comics Inc. v. Mini Gift Shop, 912
F.2d 29 (2nd Cir. 1990); Morley Music Co. v. Dick Stacey’s
Plaza Motel, Inc., 725 F.2d 1, 2-3 (1st Cir. 1983). No
evidentiary hearing is required. See, e.g., Ortiz-Gonzalez,
277 F.3d at 63-64; D.C. Comics Inc., 912 F.2d at 34, 37;
Morley Music Co., 725 F.2d at 2.

Costs of Suit

Section 505 of the Copyright Act provides that “the court
in its discretion may allow the recovery of full costs by
or against any party.” An award of costs is appropriate to
“(1) deter future copyright infringement; (2) ensure that
all holders of copyrights which have been infringed will
have equal access to the court to protect their works; and
(3) penalize the losing party and compensate the prevailing
party.” A & N Music Corp. v. Venezia, 733 F. Supp. 955, 959
(E.D.Pa. 1990). In addition, Courts routinely award costs
of suit on entry of default judgment. See, e.g. Discovery
Comm., Inc. v. Animal Planet, Inc., 172 F. Supp. 2d 1282,
1292 (C.D.Cal. 2001).

Permanent Injunction

Section 502 of the Copyright Act provides for injunctive
relief that is “reasonable to prevent or restrain
infringement of a copyright”[fn5] and such relief is
regularly granted. See, e.g., Comcast Cable Communications
v. Adubato, 367 F. Supp. 2d 684 (D.N.J. 2005); Directv v.
Gendrachi, 2005 WL 350952 (D.N.J. Feb. 14, 2005). However,
“[i]n deciding whether a permanent injunction should Page
6 be issued, the court must determine if the plaintiff has
actually succeeded on the merits (i.e. met its burden of
proof). If so, the court must then consider the appropriate
remedy.” CIBA-GEIGY Corp. v. Bolar Pharmaceutical Co.,
Inc., 747 F.2d 844, 850 (3d Cir. 1984) (citation omitted).


Plaintiffs’ argument for default judgment by the court is
anchored in Defendant’s failure to appear, answer, or
otherwise defend against the allegations in Plaintiffs’
Complaint. Plaintiffs claim that they are entitled to entry
of default judgment simply because Defendant has failed to
appear. Case law supports Plaintiffs’ claim. Defendant has
not made an appearance despite being served with process at
his last known residence and despite several attempts by
Plaintiff to notify Defendant that default has been entered
against him. Entry of default judgment now is appropriate
against Defendant because, as the Tenth Circuit Court of
Appeals noted in In re Rains, 946 F.2d 731, 732-3 (1991),

[t]he default judgment must normally be viewed as
available only when the adversary process has been halted
because of an essentially unresponsive party. In that
instance, the diligent party must be protected lest he be
faced with interminable delay and continued uncertainty as
to his rights. The default judgment remedy serves as such
a protection.

Here, because Plaintiffs seek only the minimum statutory
damages and because those damages easily are ascertainable
from the Complaint, the Court need not conduct an
evidentiary hearing. The Court, therefore, will award
Plaintiffs the requested minimum statutory damages of $750
(seven hundred, fifty dollars) for each of seven (7)
infringements for a total of $5,250.00 (five thousand, two
hundred, fifty dollars).

Further, as the prevailing party in a copyright
infringement, Plaintiffs may be awarded costs Page 7 of
suit under Section 505 of the Copyright Act. The Court,
therefore, will award Plaintiffs the requested costs of
$420 (four hundred, twenty dollars).

Lastly, Plaintiffs allege that Defendant’s conduct has
caused, and is causing, injury that is irreparable and
cannot be compensated or measured in money fully and that
Plaintiffs will continue to suffer such injury unless the
Court enjoins Defendant from continuing infringement of
Plaintiffs’ copyrights. Here, the default against Defendant
satisfies the element of success on the merits necessary
for a permanent injunction to issue, therefore, the Court
will issue a permanent injunction against Defendant.


Defendant has failed to appear, answer, or otherwise
defend against the allegations made in Plaintiffs’
Complaint. Therefore, Plaintiffs motion for entry of
default judgment by the court is granted and the Court will
enter default judgment against Defendant for statutory
damages of $5,250.00, costs of suit of $420.00, and a
permanent injunction in the form sought in Plaintiffs’
Complaint. An appropriate Order follows.

[fn1] Plaintiffs identify the online media distribution
system as Kazaa.


Copyright Artist Recording Title Album Title SR # Owner

Fonovisa, Inc. Los Bukis A Donde Vas A Donde Vas? 140-015

Fonovisa, Inc. Marco Antonio Si No Te Hubieras 20
Aniversario 232-913 Solis Ido

Arista Records Santana Corazon Espinado Supernatural
289-833 LLC

Fonovisa, Inc. Los Bukis Una Noche Come Lo Romantico De
113-279 Esta Los Bukis

BMG Music Cristian Azul Azul 215-047

Fonovisa, Inc. Marco Antonio Inventame Trozos De Me
264-718 Solis Alma

Fonovisa, Inc. Los Bukis Necesito Una 16 Super Exitos
149-919 Companera

[fn3] See 17 U.S.C. § 504(a)(2).

[fn4] See 17 U.S.C. § 504(c)(1).

[fn5] See 17 U.S.C. § 502(a).